On December 7th, the Indiana Appellate Court published its opinion in the case of Gunderson v. State of Indiana, etc., et al. The case was originally filed with the Town of Long Beach as a defendant, but the Town was dismissed out as an improper party in an earlier incarnation of the case since the Town had no legal interest in the ownership or use of the property in question. Among the intervening defendants were the Long Beach Community Alliance (“LBCA”), Patrick Cannon, and others.
The case is a lawyer’s dream as it consists of all sorts of arcane legal theories and legal precedents, ancient surveys, common law citations and the like. It consumed several years of litigation, yet the actual holding of the Appellate Court is fairly simple. So why was this case filed, what was it about, and what is it to us?
For those of us who have lived in Long Beach for awhile, the rules for beach use have always been simple. If you wanted to use the beach you went down to the stops and used the public area the path led to. Since you knew the rest of the beach was private property, if you wanted to use it you asked permission of the property owner. Most of the time you got permission, but if you did not you asked another property owner and used his/her beach. Most of us never had a problem with this, and most of the beach front owners were agreeable.
That is, until recently….
Beginning about six years ago or so a group of people, both permanent and part-time residents, began to use private beach property without asking. One of them even began to argue with and antagonize the owners, to trespass, and to behave as if she and not they owned the beach. She and her friends disrespected the owners and the whole concept of private property. They used it even if the public area was available and empty. They parked their boats in the water in front of it. They pitched tents on it and left them there overnight. They were rude. They poked the bear and continued to poke it. Most of them now belong to the LBCA and the woman is now a twice-elected town board member.
In 2010, the Town of Long Beach came out with a Newsletter. The newsletter contained the following paragraph:
“LAKE FRONT BEACH PROPERTY: The police are going to be looking to enforce the site ordinance #154.060 for the lake front this summer. We believe that this will enable us to control items placed in the area between the rear property line and the high water mark. Riparian Rights: means you have access to the water; does NOT mean you own to the water’s edge or the high water mark.”
Two diagrams followed, both purporting to show an ownership interest by the State of Indiana and one purporting to show, in addition, an ownership interest in the Town of Long Beach.
This was too much, especially since the beach front owners’ deeds showed that they owned to the water’s edge or beyond. Once the Town took the position that they owned part of the beach, redress had to be sought. Don and Bobbie Gunderson agreed to become plaintiffs and sued to quiet title.
The case dragged on for years. At one point, a suggestion was made to settle the case by using the figure of 581.5′ from Lake Shore Drive as the Ordinary High Water Mark (“OHWM”) and providing the area between that and the low water mark (“LWM”) as public trust. This was rejected out of hand by the LBCA.
It soon became apparent that despite the statements in the Newsletter and diagrams, the Town of Long Beach owned nothing. They were eventually dismissed, yet the case continued.
Judge Richard Stalbrink finally decided the case locally and his decision was appealed. The case by now had eleven separate law firms or lawyers involved. The Appellate Court began its opinion by stating: “The shores of the Great Lakes may look serene, but they are a battleground….” Indeed.
The Court went on to give a well-reasoned, and remarkably uncluttered opinion. Essentially it held that the Gundersons owned their property to the water’s edge (the LWM) but the area between the LWM and the ordinary high water mark (“OHWM”), though belonging to Gunderson, was subject to a “Public Trust” held by the State of Indiana for the benefit of the public. All other land was owned by Gunderson without public encumbrance.
As has been stated, long ago it was suggested that the case be settled on these terms, but the LBCA rejected that summarily….and so the litigation continued….
The Appellate Court held that: “[The ordinary high water mark is] the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegitation, or other easily recognized characteristics.” Activities permitted to the public on land between the OHWM and LWM are limited and as observed by the court: “(b)y no means does our public trust doctrine permit every use of the trust lands and waters….The public trust doctrine cannot serve to justify trespass on private property….” The court concluded by stating that it was generally limited to walking along the shore or having access to the water. It does not include pitching tents, blocking the beach owners’ access to the lake, staging beach parties, or “poking the bear”.
It should surprise no one if the LBCA comes out with a fund-raising letter claiming victory in this case, but that would not be true. At best this is a draw for them, and more likely a defeat. The ownership rights of the Gundersons were validated.
This case also gives a vivid illustration of the vacuity of Town Board President Peter Byvoets’ insipid excuses involving the Town not being responsible for legal fees because it is not a plaintiff in any of the cases in which it is involved. If it were not for the Town’s assertion of a right to property which it never had, it would not have been a party to this suit. Similarly, on another pending case, if the Town had not forbidden property owners to protect their property from the Lake by building or improving sea walls there would have been no necessity for a law suit on that issue.
The Gunderson case is the result of activism and zealotry by a small group of residents who value their own rights but no one else’s. The activists in turn are manipulated by those who wish to use them to wield power. Control the focus of the activist and you control the activist. An illustration of this can be seen from Patrick Cannon’s remarks to the state official regarding the securing of more than 200 signatures on a petition in favor of the capital improvement tax at the meeting on September 7th (see: Concerning the Capital Improvement Tax). He was able to access a block of 200 signatures after no more than a ten minute conversation each. Another illustration is the way Patricia Sharkey introduces herself to official commissions and boards, as appearing on behalf of “The Long Beach Community Alliance – 500 (sometimes 400) strong”. It is doubtful if she asks the members or contributors if they agree to have her speak for them in each and every instance, but she appears to suggest that. For these folks it’s all about power. All they have to do to maintain it is to give the activists a cause, and that is probably what was done in this case.
None of the Beach owners wanted to prevent residents from walking on the beach or accessing the lake. As described in “Concerning the Capital Improvement Tax” this was the “big lie” propagated to motivate and keep the zealots in line.
Unfortunately, it created needless controversy and bad feelings between beach front owners and other residents. The was not and never has been necessary. Moreover, it has been costly. The Town Board ordered a survey of the “meander line” by Palm & Associates at the cost of $12,300.00 of our tax money. The most obvious use of this survey would be to locate and establish the OHWM to aid the LBCA. They wasted our money! Remember this when the LBCA asks you for money or wants you to sign a form letter advocating a position. Think for yourself!