In this election year where a wall to the south has become so controversial, a similar battle is going on in Northern Indiana. Along the Lake Michigan shoreline in LaPorte County, groups of residents are fighting over the consequences of building seawalls. As Indiana Public Broadcasting’s Nick Janzen reports, that fight may turn on the definition of “private property.”
The Long Beach Community Alliance, or LBCA, objects to the seawalls because they can worsen erosion. That’s something Pat Sharkey sees first hand. Sharkey lives in the town of Long Beach, and is the LBCA’s lawyer. The beach Sharkey is walking along eventually narrows until there’s nothing left.
“Look at that,” said Sharkey. “This gets worse every day, every time I look at this. Where that flat seawall is, the beach is gone in front of that wall right now.”
The residents looking to build the seawalls say they’re necessary to protect septic systems buried under the beach in front of their homes. And even though Sharkey is against the seawalls, she can see their point: “It’s no kidding there’s an issue with lake coming up and that’s why people like this want to get a seawall in.”
The fight over seawall construction is playing out in two places—LaPorte County Superior Court and the Long Beach Board of Zoning Appeals.
At a BZA meeting in mid-June, the board questioned Sharkey and the lawyer for the residents looking to build the sea wall. This went on for about 45 minutes, until the board voted to continue the hearing, saying they needed more time to make a decision based on the new information they received.
Judge Richard Stalbrink, who’s presiding over the court case, hasn't issued a ruling yet either. But Stalbrink has ruled on another case involving Long Beach concerning the line between public and private property.
Two residents, Don and Bobbie Gunderson, argue their property extends all the way to the water’s edge, and that they own all the beach in front of their house. The LBCA and the state Department of Natural Resources disagree. They argue the Gundersons’ property ends at a line called the ordinary high water mark, although there’s disagreement on where that line is.
The case hinges on a legal concept called the public trust doctrine, which dates back to ancient Roman times according to Rob Fischman, an Indiana University law professor.
“Historically and traditionally,” Fischman said, “the public trust doctrine applies to areas that surround and are adjacent to navigable waters.”
Most states define public trust lands as extending from the water to the ordinary high water line, meaning the beach is public, not private. And that’s what the trial court that first heard the case found, too, although that decision is being appealed.
Determining that line is important. In addition to settling the question of public beach access, the decision could also affect economic development and the way people build houses. And it could decide whether those residents can build their seawalls.
The Wisconsin and Michigan Supreme Courts have ruled on similar cases in recent years; both found the natural ordinary high water mark to be the boundary between private and public property. Sharkey expects a ruling from the Indiana Court of Appeals in the fall, though she says the Indiana Supreme Court is likely to be the ultimate decider in the case.