Posted on December 1, 2021
The stretch of sandy beachfront just west of Porter Beach is at the center of a Constitutional battle and debate over private versus public ownership rights.
Raymond Cahnman, a Chicago resident and businessman, has owned two houses and 10 lots in Porter that offer an unobstructed view of Lake Michigan since 2006. He has long enjoyed the place as a weekend retreat for friends and family.
There is a sign on his beach frontage that states: “Private Beach Walk Thru Only.”
“When I bought it in 2006, there was no doubt it was private property,” Cahnman said. “Right now I can’t enforce anything.”
That’s due, Cahnman says, to an Indiana Supreme Court ruling in February 2018 that found that the State of Indiana holds exclusive title to the shore of Lake Michigan up to the ordinary high-water mark. In effect, the decision declared that the public had access to Indiana beaches.
The Indiana state legislature with House Enrolled Act 1385 in 2020 codified the Indiana Supreme Court ruling, finding that the public has the right to walk, fish, swim, boat and recreate on Lake Michigan beach land.
Indiana, with 45 miles on Lake Michigan, is the state with the least amount of Great Lakes shoreline but the most unfettered public beach access. Illinois, Wisconsin and Minnesota all find that the public cannot trespass on private property beaches on the Great Lakes, Cahman said. Michigan allows only walking across private beachfront property on the shorelines of Lake Michigan, Lake Erie, Lake Huron and Lake Superior.
“The Indiana Supreme Court made a big error when they made that ruling,” Cahnman said.
The Pacific Legal Foundation, a national nonprofit foundation that defends Americans from government overreach and abuse, has taken up the case. Cahnman said the foundation took the case because of the Constitutional issues at stake.
Cahnman along with Randall and Kimberley Pavlock, who are also Chicago residents who own property near Porter Beach, are the plaintiffs in a lawsuit that raises Constitutional challenges to the Indiana Supreme Court case of 2018, commonly referred to as the Gunderson case.
The case, originally filed in 2019, states that the State of Indiana with its ruling violated Fifth Amendment Constitutional property rights. The Gunderson decision, in effect, “transferred private beach property to the state,” the suit says.
“Lakefront owners have great incentive to preserve their private beach bordering the lake so they can continue to enjoy Lake Michigan’s beauty. They paid for that beach and their deeds reflect as much,” the suit says.
The case was filed in 2019 and in March 2021, U.S. District Court Judge Jon E. DeGuilio dismissed the case by finding that the federal court didn’t have jurisdiction on a matter decided by the Indiana Supreme Court, because the state had sovereignty on this issue under the 11th Amendment.
The Pacific Legal Foundation appealed the case to the U.S. Seventh District Court of Appeals in Chicago, which recently heard oral arguments.
Cahnman said he listened to the oral arguments held before a three-judge panel. He said the oral arguments centered on procedural questions of whether the federal court had jurisdiction, but the legal briefs reinforced the contention that the Indiana Supreme Court’s action violated the Constitutional property rights of property owners.
The journey for this court case started in 2010 in Long Beach, east of Michigan City. The Town of Long Beach approved an ordinance that adopted the Indiana Department of Natural Resources’ administrative boundary, which separated state owned beaches from the private property located upland.
Don and Bonnie Gunderson, along with other property owners, protested that the town’s policy violated their property rights. They cited their property deeds, which showed that they owned the beach down to the water’s edge.
In 2014, the Gundersons filed a lawsuit against the State of Indiana. The state government in turn asked the court to declare that Indiana owns the disputed shore of Lake Michigan below the ordinary high-water mark in trust for public recreational use.
The case went up to the Indiana Supreme Court, which declared that when Indiana was granted statehood in 1816, it acquired exclusive title to the bed of Lake Michigan up to the natural original high-water mark. The state’s high court also found that it didn’t relinquish rights to the beach when the Gundersons’ property was first platted in 1837.
When the Pacific Legal Foundation took the case to the U.S. District Court in Hammond, Judge DeGuilio based his ruling on the fact he believed the federal court didn’t have jurisdiction. However, DeGuilio in his ruling noted that he agreed with the reasoning of the Indiana Supreme Court decision.
“Gunderson did not transform private property into public property but clarified where the boundary of the public trust had always existed along the shores of Lake Michigan,” DeGuilio wrote.
Like the Gundersons in Long Beach, Cahnman and the Pavlocks contend that their property deeds show that they are to have ownership down to the water’s edge.
The history of housing development around Porter Beach dates back to 1891. Orville Hogue created a plat of 100 acres that he would title Porter Beach Lake Shore Addition to the New Stock Yards, the suit says.
“They were trying to market this to naive Chicago people,” Cahnman said.
Cahnman said that the property’s street plan was set up as a grid, like the city of Chicago. He said there was even a Lake Shore Drive, but that actually turned out to be underwater. Some buyers were dismayed when they learned that the “New Stock Yards” development was nowhere near the actual Stockyards of Chicago, the lawsuit says.
A number of people abandoned their land claims. Houses eventually were built on the New Stockyards land. Cahnman said today there are about 10 houses with property deeds that showed the property line going down to the lake.
The suit in federal court emphasizes the point that when the State of Indiana established the Indiana Dunes State Park in 1927, three miles of shoreline was purchased from private owners. That meant the state recognized then that it didn’t own the beachfront
When U.S. Steel in Gary, NIPSCO in Michigan City and Midwest Steel in Portage developed on Lake Michigan, those private companies didn’t purchase the land from the state, the suit says.
After the creation of the Indiana Dunes National Park in 1966, the U.S. National Park Service didn’t negotiate with the state for rights to the beach.
What the federal government did was negotiate an easement that allowed pedestrians the right to walk across privately owned beaches within the 15 miles of shoreline within the Indiana Dunes National Park. Cahnman said the prior owner of his property signed that easement agreement with the federal government.
“If they (the State of Indiana) owned it, why did they wait for more than 200 years?” Cahnman said.
The 7th District Court of Appeals may uphold the U.S. District Court’s decision, but Cahnman is optimistic that the case could go to the U.S. Supreme Court and that property rights will be reaffirmed.
“I am very confident that in the end my property rights will be restored,” Cahnman said.