Long Walks on the Beach? Yes, Please.

By Jennifer L. Colagiovanni posted 03-12-2019 16:16


If you enjoy long walks along the shores of the Great Lakes, you may have been following Gunderson v Indiana. The U.S. Supreme Court recently declined to hear the Gundersons’ appeal, which asked the Court to decide where the public’s right to walk along the shoreline of the Great Lakes ends and where private property owners’ rights begin. The questions presented in the petition framed the issue as unique in the context of large “non-tidal lakes with extensive beaches,” distinct from oceans and rivers or small inland lakes.

The case arose when lakefront property owners along Indiana’s Lake Michigan shoreline challenged an ordinance that defined the boundary between state-owned beaches and private land as the “ordinary high-water mark.” Donald and Bonnie Gunderson, along with other lakefront property owners, sued the State of Indiana and its Department of Natural Resources, claiming the rule infringed on their private property rights. The lakefront property owners asked the court to find that the public has no rights to “any land abutting Lake Michigan.”

Indiana’s response rested on the public trust doctrine—that when Indiana became part of the United States, it received, and held in trust for the public, all lands below the ordinary high-water mark, regardless of whether the land (in this case, beach) is temporarily covered by water. The Indiana Supreme Court agreed and affirmed the “ordinary high-water mark” standard.

Similarly, the Michigan Supreme Court ruled in Glass v Goeckel that the general public had a right to walk along the shores of the Great Lakes on the land below the ordinary high-water mark, as that land is held in the public trust.

The U.S. Supreme Court’s decision not to hear Gunderson leaves the “ordinary high-water mark” standard in place—a figurative breath of fresh air if, like me, you find yourself daydreaming this time of year of the warm summer breeze off the lake.