Federal appeals court upholds public’s right to use Lake Michigan beaches near private property

The public can still use the Lake Michigan shoreline in front of private property. A federal appeals court affirmed that Indiana Supreme Court ruling on Wednesday.

Property owners in the case argued the Indiana Supreme Court “took” part of their property when it made that ruling. Chris Kieser is an attorney with Pacific Legal Foundation — a nonprofit representing the property owners. He said the ruling changed his clients’ experience of their beach.

“Before the decision, there was more willingness on the part of the local authorities to enforce the right to exclude along the beach. And now their experience is that this entire stretch of beach is treated as public,” Kieser said.

The basis of the plaintiff’s case was something called a “judicial taking.” U.S. Supreme Court Justice Antonin Scalia said if there has been an established right of property, but that right has been dissolved because of a court decision — that’s still a “taking” under the law.

“That’s a taking in the same way as if the legislature had simply declared that you no longer own your property, which everyone would recognize, is it taking,” Kieser said.

But the 7th Circuit Court of Appeals said no federal appeals court has “recognized this judicial-takings theory.”

The court also argued you can’t have something taken away that was never yours in the first place. The Indiana Supreme Court ruling clarified that the public has the right to use the Lake Michigan shoreline up to where the high-water mark usually hits the beach. A 2020 Indiana law also codified this.

Plus, the court and state leaders don’t have the authority to overrule the state Supreme Court decision.

Jeffrey Hyman is an attorney with the Conservation Law Center, which represents Save the Dunes. Save the Dunes intervened in this latest case and was a party in the case taken up by the Indiana Supreme Court.

“In other words, you can’t change the law just by stopping the governor and other officers of the executive branch from enforcing that law. The law remains the law,” Hyman said.

Kieser said that’s a circular argument — because the point of the case was to challenge parts of that decision.

The fight over the public’s right to use the Lake Michigan shoreline in front of private property has been going on for about a decade.

In 2019, the issue made it all the way to the U.S. Supreme Court, but the court decided not to hear the case.

Contact Rebecca at rthiele@iu.edu or follow her on Twitter at @beckythiele.

Indiana environmental reporting is supported by the Environmental Resilience Institute, an Indiana University Grand Challenge project developing Indiana-specific projections and informed responses to problems of environmental change.