STATE OF INDIANA ) IN THE LA PORTE SUPERIOR COURT NO, 2 )Ss: COUNTY OF LAPORTE) CAUSE NO. 46102-1404-PL-606 DON H. GUNDERSON and BOBBIE J, GUNDERSON in their capacities of Co-Trustees of the Don H. Gunderson Living Trust dated November 14, 2006, Plaintiffs, v. STATE OF INDIANA and INDIANA DEPARTMENT OF NATURAL, RESOUR( and, ALLIANCE FOR THE GREAT LAKES, SAVE THE DUNES, LONG BEACH COMMUNITY ALLIANCE, PATRICK CANNON, JOHN WALL, DORIA LEMAY, MICHAEL SALMON and, THOMAS KING Intervenot Defendants, MEMORANDUM IN SUPPORT. OF DEFENDANTS’, STATE OF INDIANA AND INDIANA DEPARTMENT OF NATURAL RESOURCES, OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT ‘AND CROSS-MOTION FOR SUMMARY JUDGMENT STATEMENT OF FACTS Plaintiffs, landowners of properties abutting the ordinary high water mark (“OHWM”) of Lake Michigan in Long Beach Indiana, brought this action against the Defendants, State of Indiana and Indiana Department of Natural Resources, seeking to quiet title to all property within the Plaintiffs’ east to west property boundaries extending north to the point where the water lastcovers the earth. The State owns and maintains the waters of Lake Michigan, as well as lands beneath the water and extending outward to the OHWM, within the tertitorial boundaries of the state, in trust for use by the public, On October 31, 2014, Plaintiff filed their Motion for Declaratory Summary Judgment requesting this Court to enter judgment as a matter of law declaring the location and scope of the public right of the land on which Plaintiffs seck to quiet title, (x. A: PLAmVTiFFS? MOTION FoR DECLARATORY SUMMARY JUDGMENT at pg. 1). As this Court stated in its October 20, 2014 Order Denying Motion to Set Aside Order Granting Intervention, the issue in this ease is “the question of where the OHWM may be used in certain instances to determine where public ownership or use begins and ends, which is an immense factor in this case as well as to determine who owns the property at issue.” (Ex. B: ORDER DENYING MOTION TO SET ASIDE ORDER GRANTING INTERVENTION, Oct. 20, 2014, 4 36). More precisely, the issue of Plaintiffs’ Motion is the placement of the OHWM. Plaintiffs? do not dispute state ownership of the water or lake bed at any time presently covered by the waters of Lake Michigan. (Ex. C: PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT.OF Motion ror DECLARATORY SUMMARY JUDGMENT at pg. 9), Plaintiffs similarly do not dispute that public ownership is appropriate below the OHWM. (Ex. C: d.). Rather, the dispute of law is the correct placement of the OHWM which serves as demarcation between private lands (up shote from the OHWM) and lands held in the public trust (between the OHWM and the water). Plaintiff contends that the OHWM must be the ever changing point where water last covers the earth (Ex, C: Id. at 9-10), Defendants state the OHWM is defined by the Indiana Administrative Code as five hundred eighty-one and five-tenths (581.5) feet International Great Lakes Datum 1985 (2 measurement roughly equivalent to 581.5 feet above mean sea level). 312 IAC 1-1 (26).STANDARD OF REVIEW ‘The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Monroe Guar, Ins, Co. v. Magwerks Corp., 829 N.B.2d 968, 975 (Ind, 2005). If the moving party fails to make a sufficient prima facie showing, summary judgment should be denied. Jd, “A. genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue.” U-Haul Int'l, Inc. v. Nulls Mach, & Mfg. Shop, 736 N.E.24 271, 274 (Ind. Ct. App. 2000) (quoting interstate Cold Storage, INC. y. General Motors Corp., 720 N.B.2d 727, 729-30 (Ind. Ct. App. 1999)). ‘The trial court must construe all evidence and resolve all doubt in favor of the non-moving party, Town of Avon v. W. Cent, Conservancy Dist., 957 N.B.2d 598, 602 (Ind, 2011). When any party has moved for summary judgment, the court may grant summary judgment for any other party on the issues raised by the motion, Ind. R. Tr. P. 56(2). ARGUME] ccepting all facts in Pl fs’ Motion as true, Defendants are entitled to Summary, Judgment, All parties agree that land below the OHWM is held in trust for the use of the public, (Ex. C: PLAINTIFFS’ MEMORANDUM at pg. 9). Further, all parties agree that the State is the entity charged with determining the scope of the public trust within its territory. “[TJhe contours of that publie trust do not depend upon the Constitution, Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law determines riverbed title under the equal-footing doctrine.” PPL Montana, LLC y, Montana, 132 §, Ct. 1215, 1235, 182 L. Bd. 24 77 (2012), (also Ex. C: 3PLAINTIFFS’ MEMORANDUM at pg. 10-11). The dispute of Iaw is solely on the issue of the correct placement of the OHWM of Lake Michigan which serves as the upper limit of lands held in public trust, Indiana’s legislature has defined the OHWM of Lake Michigan pursuant to its power to “determine the scope of the public trust over waters within their borders.” Id. ‘There are no genuine issues of material fact in this case and Defendants are entitled to judgment as a matter of law, A. The State holds lands below the ordinary high water mark in trust for use by the public. Itis well settled that a State government is the proper holder of lands in the public trust. Lake Sand Co, v. State, 68 Ind, App. 439 (1918), It is similarly well settled law that the land below the OHWM is maintained in the public trust. Shively v. Bowlby, 152 U.S. 1 (1894). “The new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdicuons (sic).” id. at 26 (emphasis added), The Supreme Court of the United States held that the state’s surrounding the Great Lakes were the proper holder of all land in their territories below the OHWM, [Slince this court . . has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs (o the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond [above] the limits of high water. The cases in which this court has seemed to hold a contrary view depended, as most cases must depend, on the local laws of the States in which the lands were situated. Barney v. City of Keokuk, 94 U.S, 324, 338 (1876).In Lake Sand, the Indiana Court of Appeals adopted the reasoning of the Supreme Court of Florida which held, ‘Among the rights thus acquired by the state ... is the right to own and hold the lands under navigable waters within the state, including the shores or space between ordinary high and low water. - marks, for the benefit of the people of the state. When the Constitution of the United States became operative, the several states continued to hold the title to the beds of waters within respective borders that were navigable in fact without reference to the tides of the sea, not for purposes of disposition to individual ownerships, but such title was held in trust for all the people of the states respectively. 120 N.E. 714, 716 (1918) (emphasis in original) (citing Hx parte Powell, 70 Fla. 363, 373, 70 So. 392, 396 (1915) B. The State is the entity charged with determining the ordinary high water mark, ‘The State of Indiana received the lands under and surrounding Lake Michigan when it entered the union. From that point the land and its disposition has been subject to the regulation of Indiana, All navigable waters are under the control of the United States for the purpose of regulating and improving navigation, and although the tile to the shore and submerged soil is in the various states and individual owners under them, it is always subject to the servitude in respect of navigation ereated in favor of the federal government by the constitution, . [ W]hether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.” Oregon ex rel. State Land Bd. v, Corvallis Sand & Gravel Co., 429 U.S. 363, 375-77 (1977) (internal citations omitted).Tndiana has the power to regulate land below the high water mark, which the Corvallis Court phrased as “shore and submerged soil” Jd. See also, PPL Montana, 132 S, Ct, at 1235 (2012), The OHWM, and the extent of the grant of the public trust, has been long held to encompass areas beyond instantly submerged land. Corvallis, 429 U.S-at 375-77, See also, Gibson v, United States, 166 U.S. 269, 271-272 (1897). Pursuant to this power, Indiana has legislatively adopted regulation setting the OHWM of Lake Michigan above the water’s edge including the shore, 322 JAC 1-1 (26). Indiana's adopted definition of the OHWM includes a list of physical characteristics used to determine the location of the OHWM above the water’s current edge. fd, More importantly to the instant case, the regulation defines the OHWM for the “shore of Lake Michigan” as “five hundred eighty-one and five-tenths (581.5) feet” International Great Lakes Datum 1985. Jd. ‘Though the regulation of the Lake Michigan OHWM eschews the physical characteristic test for a set mark of high water, it is within the power of the state to segulate a standard OHWM to provide simple notice that is easier for all shore users and landowners to obey. C. The ordinary high water mark of Lake Michigan is defined as five hundred eighty-one and five-tenths (581.5) feet International Great Lakes Datum 1985 as set by Title 312, Article 1, Rule 1, Section 26 of the Indiana Administrative Code. ‘The dispute of law in this case is the correct placement of the OHWM. The Plaintiffs contends that the OHWM must be the ever changing point where water last covers the earth. (Ex. Cild at 9-10), The Plaintiff is incorrect. The OHWM is properly defined by the Indiana Administrative Code as five hundred eighty-one and five-tenths (581.5) feet International Great Lakes Datum 1985. 312 IAC 1-1 (26). + Reservation of right - The State reserves the right to administratively adjust the OHWM of Lake Michigan to reflect changes inthe elevation ofthe lake, elevation ofthe shore, avulsion, accretion, o other developments sufficient to justify adjustment,‘The State of Indiana holds the land “the lands under navigable waters within the state, including the shores or space between ordinary high and low water marks.” Lake Sand, 120 N.B. at716, The OHWM of Lake Michigan is not, as Plaintiffs would suggest, arbitrary and ever fluctuating, but rather a defined height, 312 JAC 1-1 (26). Though, the OHWM of other navigable bodies of water in the state are judged by physical characteristics, the Indiana ‘Administrative Code codified a defined height for the OHWM of Lake Michigan, Jd, This defined demarcation provides notice to the State, the public, and private land owners of their zones of rights, A private land owner may not exclude the publie below the defined OHWM. Shively, 152. US, at 44, ‘Though ownership boundaries may change by avulsion and accretion when a permanent shift in the boundary of a water’s edge occurs, intermittent undulations of waves lapping on a lake shore do not continuously redraw the boundaries of an owner's property. Shively, 152 U.S. a35. Plaintiffs argue that the State has no power to regulate the shores of a navigable water not currently covered by lake water, (Ex. C: PLAINTIFFS’ MEMORANDUM at pg, 8-13). This is based on a misinterpretation of the history of the public trust doctrine and a misapplication of the Submerged Lands Act (“SLA”) 43 U.S.C. 29. ‘The SLA applies to “lands beneath navigable waters” which it in turn defines as “all Jands within the boundaties of each of the respective States which are covered by nontidal waters . tp to the ordinary high water mark.” 43 U.S.C. § 1301, (Ex. C: PLAINTIFFS’ MEMORANDUM ‘at pg. 10). Plaintiffs apply the same failing argument that placement of the high water mark may ‘be no farther ashore than the water’s instant edge. This position is as incorrect. As shownabove, the OHWM encompasses areas beyond those at any time currently submerged. Corvallis, 429 US. at 375-77, See also, Gibson, 166 U.S.at 271-272, ‘The Indiana Attorney General issued an opinion in 1990 that “[t]he State of Indiana owns the land lakewards of the ordinary high water mark on the Lake Michigan shore.” 1990 Ind. Op. Att'y Gen. No. 8 (Apr. 17, 1990). ‘The United States Court for the Northern District of Indiana, Hammond Division, found 2 fact that “[a]ecording to the Indiana ‘public trust doctrine,’ the beach area between the ordinary high water mark and the edge of the water of Lake Michigan (the land within the Park boundaries) is public land not owned by any person, entity, or municipality.” United States v. Carstens, 982 F, Supp. 24 874, 876-77 (N.D. Ind. 2013), ‘That court described the OHWM as being approximately the same as “the point where the slope of the dune meets the gentler slope of the beach.” Carstens, 982 F, Supp. 2d at 876, That court’s description of the OHWM. encapsulates an area well ashore of the water's edge. ‘This very issue was correctly decided by the Supreme Court of our neighbor state, Michigan, ‘The court in Glass v, Goeckel phrased the issue as, “The issue presented in this case is whether the public has a right to walk along the shores of the Great Lakes where a private Iandowner ostensibly holds title to the water's edge.” 703 N.W.2d 58, 61 (2005). That court concluded that the public trust doctrine does protect [the public's} right to walk along the shores of the Great Lakes. American law has long recognized that large bodies of navigable water, such as the ‘oceans, are natural resources and thoroughfares that belong to the public. In our common-law tradition, the state, as sovereign, acts as trustee of public rights in these natural resources. Consequently, the state lacks the power to diminish those rights when conveying littoral property to private parties. This “public trust doctrine,” as the United States Supreme Court stated in Illinois Central R. Co. v. Ilinois, 146 U.S. 387, 435, 13 S.Ct. 110, 36 L.Bd. 1018 (1892)(linois Central 1) . .. applies not only to the oceans, but also to the Great Lakes. Ta at 62. We hold, therefore, that defendants cannot prevent [the public] from enjoying the rights preserved by the public trust doctrine, Because walking along the lakeshore is inherent in the exercise of traditionally protected public rights of fishing, hunting, and navigation, our public trust doctrine permits pedestrian use of our Great Lakes, up to and including the land below the ordinary high water mark. Therefore, ,. arly member of the public, enjoys the right to walk along the shore of Lake Huron on land lakeward of the ordinary high water merk. Id, at 674-75 ‘A ruling consistent with Plaintiff’ position would lead to an outrageous outcome, ‘Axiomatic in the right to use water must be the right to access water. A right to utilize an area without the concomitant right of access is no right at all. If this Court were to adopt Plaintiffs? position littoral landowners could exclude the public not only from the shore below the OHWM, but also from the waters of Lake Michigan, Plaintiffs haye introduced no evidence showing the State has relinquished title to land below the ordinary high water mark. Because the State properly holds title over the land up to the legislatively defined OWEM of Lake Michigan in trust for the public, itis not the State who must come forth with evidenee of a superior deed, but the Plaintiffs who must demonstrate evidence that the Iand was ceded by an act of the legislature, “IE [the water in question] was susceptible of navigation, or available for navigation in 1816, it follows that the fee simple title to the beds of [the water in question) passed to the State and the State could not part with title to such real estate, except by an act of the Legislature.” State ex rel. Ind. Dep't of Conservation v. Kivett, 228 Ind. 623, 630, 95 N.E.2d 145, 148 (1950) (emphasis added), As the Supreme Court of Indiana stated in Kivett,itis the duty of the Plaintiffs to come forth with evidence of an act of the Legislature granting the real estate in question to Plaintiffs or their predecessors in interest. Jd. ‘The Court in Kiveit also noted that the Plaintiff in that case, like the Plaintiffs in this case, never paid taxes on the real estate in question and has no proper claim of ownership, Jd. The Plaintiffs in this case have failed to meet their burden of presenting evidence on which judgment in their favor can be granted, ‘Moreover, even if the Plaintiffs were able to demonstrate ownership by an act of the legislature, the land would maintain its public character under their new ownership. This is because “[t]he state in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan.” Lake Sand, 68 Ind. App. 439 (1918) (citing, Ohio v. Cleveland, ete., R, Co., 113 N, E, 677), Independent of the actual owner of the land, the State must maintain an interest up to and including the OHWM jn trust for the public, ‘The State may not, by act of the courts or legislature, divest the public from their right to use the land up to and including the OHWM. E.Conelusion WHEREFORE, Defendants, State of Indiana and Indiana Department of Natural Resources through the Attorney General of the State of Indiana, pray this Court grant summary judgment in favor of the State of Indiana and the Indiana Department of Natural Resources, deny the Plaintiffs’ prayer for relief, including but not limited to, that this Court shall not declare that the Plaintiffs own the property in question in fee simple as far north as the water’s edge of Lake Michigan, that the State of Indiana and the Indiana Department of Natural Resources own or have the right to regulate the use of the property in question, that there is a public right or public 10trust encumbering the property in question, and to grant Defendants all requested and other appropriate relief. IL. Alternatively, if this Court determines Defendants are not entitled to summary judgment, genuine issnes of material fact are in dispute which precludes this Courts entry of summary judgment in favor of Plaintiffs. Should this Court find that Defendants are not entitled to summary judgment, issues of fact remain which make Plaintiffs? Motion for Declaratory Summary Judgment inappropriate. A. Plaintiffs’ ownership and boundaries are not undisputed. Plaintiffs claim their ownership of the properties in question to the edge of the water is not in dispute. (Bx, C: PLAINTIFFS’ MEMORANDUM at pg. 2, 3). This assertion is based on the State’s Answer to Plaintiff's Amended Complaint at { 8,9,12, and 23, (Ex. D: STATR’s ANSWER. ‘To PLAINTIFF'S AMENDED COMPLAINT at € 13, 15, 18, and 26). Plaintiffs correctly assert that the State responded thet it was without knowledge of this claims in Plaintiffs Complaint, but Plaintiffs omit that the State therefore denied this claims. Additionally, the State, in its Answer, claimed an interest in the properties that is adverse to the Plaintifis' rights. (Ex. D: Id. at 13, 15, 18, and 26), Moreover, Plaintiffs" quiet title action and motion for Declaratory Summary Judgment action is an attempt by Plaintiffs to acquire title to the disputed property by adverse possession. Such an action against the State is prohibited by Ind, Code § 32-21-7-2. As Plaintiffs’ claims of ownership have been denied by the State, a dispute exists as to the proper owner of the properties at the water’s edge and outward to the OWHM, (See § I of this Memorandum). 2-The State further incorporetes by seference all affirmative defenses listed in its Answer fo Plaintiffs? Amended ‘Complaint Gx. D: ld at pe, 10-13), 11B. Issues of fact remain regarding the placement of the natural high water mark should this court determine that the ordinary high water mark adopted by regulation is inapplicable, Should this Court find that the set OHWM legislatively adopted in 312 IAC 1-1 (26) is inapplicable to the current action, then issues of fact remain in determining the correct placement of the OHWM, To determine the correct placement of the OHWM on the properties rather than applying the set five hundred eighty-one and five-tenths (581.5) feet International Great Lakes Datum 1985, the fact finder would have apply the physical characteristic test of 312 IAC 1-1 (26) (1). Under that test the OHWM is ‘The line on the shore of a waterway established by the fluctuations of water and indicated by physical characteristics. Examples of these physical characteristics include the following: (A) A clear and natural line impressed on the bank, (B) Shelving, (C) Changes in character of the soil, (D) ‘The destruction of terrestrial ‘vegetation,, and (B) The presence of litter or debris. 312 IAC 1-1 (26) (1). This would require additional discovery and the use of expert witnesses to aid in the feet finders determination of this factual issue. C. Conclusion IN THE ALTERNATIVE, Defendants pray this Court to deny summary judgment in favor of the Plaintiffs, deny the Plaintiffs’ relief requested in their prayer for relief, including but not limited to, that this Court not grant the Plaintiffs" request to Quiet Title to the property in question, that this Court not award the Plaintiffs exclusive and peaceful possession of the property in question, and to deny Plaintiffs? request for all other appropriate relief, 12Respectfully submitted, GREGORY F. ZOBLLER Attorney General of Indiana Attorney Reg. No. 1958-98 By: hE ef imniok Deputy Attomey General Attomey Reg. No. 1817-49 23CERTIFICATE OF SERVICE, I certify that a copy of the foregoing was duly served on the persons listed below, by United States mail, first-class postage prepaid, this _ Za" day of, YA WAS A 2015. Mark L. Phillips Matthew J. Hagonow Newby Lewis Kaminski & Jones, LLP 916 Lincolnway P.O. Box 1816 La Porte, IN 46352-1816 Michael V. Knight Bares & Thomburg LLP 700 First Source Bank Center 100 North Michigan South Bend, IN 46601 Kurt R. Eamst Braje, Nelson & Janes, LLP 126 Fast Fifth Street P.O, Box 1006 Michigan City, IN 46361-8206 Jefftey B, Hyman W. William Weeks Conservation Law Center 116 South Indiana Avenue Bloomington, IN 47408 Patricia F. Sharkey Environmental Law Counsel, P.C. 180 N. LaSalle Street, Suite 3700 Chicago, IL 60601 Office of the Attomey General 302 West Washington Street, 5" Floor Indianapolis, IN 46204 Telephone: (317) 234-1776 14