Putting beach ruling into law

February 25, 2019

LONG BEACH — When the state’s highest court ruled last year that Indiana’s beaches, up to the high water mark, are state property that can be used for public recreation, they left one thing out.

“When the Indiana Supreme Court case came down, they basically said the land belongs to the public for public use and recreation,” State Sen. Karen Tallian, D-Ogden Dunes, said Wednesday from Indianapolis.

“But they left one question about how do you define and what does recreation mean? The Supreme Court specifically said we are not going to define recreational use and will leave it to the legislature.”

With a large portion of Indiana’s Lake Michigan shoreline in her district, Tallian has authored a bill to do just that – spell out specifically what recreational uses are proper for the beach.

“Half of the lakeshore is in my district,” she said, “and I wanted to define recreation in the broadest way so you can keep using the beach the way it’s been used for 100 years.”

That includes sunbathing, swimming, surfing, fishing, boating with non-motorized watercraft such as canoes and kayaks, and other activities that don’t create a public nuisance or interfere with others’ right to use the beach.

The bill would give oversight of the shoreline to the Department of Natural Resources, which could designate that authority to local governments. Any construction on the shoreline would also be subject to DNR oversight.

Patricia Sharkey, an to environmental law attorney and director of the Long Beach Community Alliance, which fought the Gunderson v.Indiana case to assure public ownership of the beach, said Tallian’s bill is important to spell out what can be done on the beach.

“The Supreme Court advised the General Assembly in Gunderson that it recognized the Public Trust Doctrine has evolved from fishing, commerce and navigation; it has evolved into many more things,” she said

“Indiana wants to make use of this recreational resource. Judge [Richard] Stalbrink recognized that in his earliest opinion in Superior Court. But the Supreme Court got cold feet defining recreation and left it to the General Assembly, and that’s what Sen. Tallian’s bill is about.

“These are just normal recreational uses of a beach; people have been using the beach this way for years.”

When the U.S. Supreme Court rejected an appeal of the Long Beach-based case this week, which did not surprise Tallian, she said the bill became even more critical.

So far it has passed the Natural Resources Committee, survived first and second readings on the Senate floor, and the senator plans to call it for a vote on Monday.

Natalie Johnson, executive director of Save the Dunes, is a fan.

“Though the attacks on the public trust are ongoing, we can now confidently move forward defending the Gunderson v. Indiana (beach access) decision, ensuring the shoreline is open to all,” she said Wednesday.

“Did I say ongoing? Yes I did. While the U.S. Supreme Court denying certiorari is a big win for us, there are many public trust adversaries working to undo the right for Hoosiers to enjoy the Lake Michigan shoreline.”

Johnson went to Indianapolis earlier this month to testify before the Natural Resources Committee on behalf of Tallian’s bill, and against another she finds troublesome.

Of the bills – Tallian’s SB 553 and SB 581, authored by Sen. Blake Doriot, R-Syracuse – she said “one helps our cause and one harms it.

“It is likely the public trust adversaries won’t be resting any time soon ... It is going to take a lot of vigilance to ensure this right is protected. Save the Dunes is committed to this vigilance.”

Tallian said some of those public trust adversaries have been trying to weaken her bill.

“I was surprised to find out that a small group of homeowners from Long Beach hired a lobbyist to fight against recreational use of the beach. But the only things they wanted to take out of the bill were sitting and sunbathing. They say you can use their beach to walk, but just keep on walking.”

She said that type of attitude stuns her.

“I’ve lived 43 years in Ogden Dunes and there has never been such an issue. I don’t know of anywhere else in Indiana (where) this is happening. In Ogden Dunes if you walk on the beach, someone will give you a chair.”

Doriot’s bill would establish a Lake Michigan shore zone, inland above the ordinary high water mark, to regulate seawalls and control the flow of water across private property along the lakeshore.

Tallian said the bills are basically about different things.

“My bill is about the meaning of recreational use, and his covers the building of seawalls and revetments, and other shoreline structures. They are different but I think they can work together,” the senator said.

In fact, the definition of the ordinary high water mark was amended in both bills so they would be identical, and there was even some early talk of putting the two bills together.

Sharkey is not as sure about Dorian’s measure.

“It seems to be an attempt to create a new zone above the ordinary high water mark which the DNR, via the Natural Resources Commission, can regulate use.”

She said a lot of property owners still believe they own right up to that high water mark and “this might allow them build right up to that high water mark. But if they think they can build all the way to the water’s edge, or beyond, that’s not going to happen.

“We’ve just spent the last four years litigating this issue, and if they build like that, we’ll end up right back where we were. We want a resolution. We want Long Beach back to the way it was.”

Jeffrey Hyman, an attorney with Conservation Law Center in Bloomington who represented Save the Dunes and the Great Lakes Alliance in the Gunderson case, said legislative action is important.

“These important cases are just battles in a bigger war about the balance between private and public property. I expect the backers of the plaintiffs in Gunderson to try to undermine the Gunderson decision in any way possible.

“So while we can celebrate this important victory, we must and will remain vigilant and continue to work to protect the public trust on Lake Michigan and elsewhere in the Great Lakes region.”

Tallian said she is quietly optimistic the bill will pass.

“I’m counting my votes,” she said.