Lake Michigan Beach Ownership

In the
Indiana Supreme Court

Don Gunderson, et al., Court of Appeals Case No.
Appellants, 46A03-1508-PL-01116 FILED
Jun 22 2017, 3:46 pm
Trial Court Case No.
v. CLERK
46D02-1404-PL-606 Indiana Supreme Court
Court of Appeals
State Of Indiana, et al., and Tax Court
Appellees.
Order
This matter has come before the Indiana Supreme Court on petitions to transfer
jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57. Being duly advised, the
Court GRANTS transfer.
6/22/2017 .
Done at Indianapolis, Indiana, on ___________
Loretta H. Rush
Chief Justice of Indiana
Filed: 4/10/2017 1:44:37 PM
IN THE INDIANA SUPREME COURT
CAUSE NO. _________________
DON H. GUNDERSON AND BOBBIE J. )

GUNDERSON, CO-TRUSTEES OF THE )
DON H. GUNDERSON LIVING TRUST ) Appeal from the
DATED NOVEMBER 14, 2006, ) LaPorte Superior Court No. 2
) Trial Court Cause No. 46D02-1404-PL-606
Appellants-Cross Appellees, )
) The Honorable Richard R. Stalbrink, Jr.
v. ) Judge
)
STATE OF INDIANA, INDIANA DEPT. )
OF NATURAL RESOURCES, )
)
Appellees, ) Court of Appeals
) Cause No. 46A03-1508-PL-1116
and, ) Consolidated herein with
) Cause No. 46A04-1601-PL-84
ALLIANCE FOR THE GREAT LAKES, )
SAVE THE DUNES, )
LONG BEACH COMMUNITY )
ALLIANCE, )
PATRICK CANNON, JOHN WALL, )
DORIA LEMAY, MICHAEL SALMON )
and, THOMAS KING )
Appellees-Cross Appellants. )
APPELLANTS PETITION TO TRANSFER
Michael V. Knight (22066-45)

Barnes & Thornburg LLP
700 1st Source Bank Center
100 N. Michigan Street
South Bend, IN 46601-1632
(574) 233-1171; michael.knight@btlaw.com
Mark L. Phillips (5860-46)

Newby, Lewis, Kaminski & Jones, LLP
916 Lincolnway
LaPorte, IN 46350
(219) 362-1577; mlphillips@nlkj.com
Attorneys for Appellants
1
Appellants Don H. Gunderson, et al.s Petition to Transfer
QUESTION PRESENTED
The exact question, who has a right to use private land abutting Lake Michigans
navigable waters, the owner and/or the public, is one of first impression1 and necessary for this
Courts determination. On one hand this is private property; on the other, it abuts Lake Michigan.
In 1868 this Court in Bainbridge v. Sherlock, 29 Ind. 364, 367 (1868) held that:
The banks belong to the riparian owner, and he

owns an absolute fee down to the low water mark.
Id. Further, use of the land is a trespass.
The right to the use of the river as a highway for

passage is distinct from the right to land for the
purpose of receiving or discharging freight and
passengers. The former is secured to the public; the
latter must be exercised with reference to the rights
of the riparian owner.
Id. at 369 (concerning the Ohio River, a navigable waterway). Unauthorized use of the abutting
private land has always been a trespass. Id.
Donovan v. Grand Victoria Casino & Resort, L.P. 934 N.E.2d 1111, 1113 (Ind. 2010)
held that one of the time-honored principles of property law is the absolute and unconditional
right of private property owners to exclude from their domain those entering without
permission.
The Northwest Ordinance stated: the navigable waters leading into the Mississippi and
St. Lawrence . . . shall be common highways, and forever free. Ind. Dept. of Conservation v.
Kivett, 95 N.E.2d 145, 148 (Ind. 1950). Plainly, only navigable waters are free for public use.
Is the Court of Appeals decision permitting use and occupation on private property
abutting Lake Michigan contrary to these precedents?
1
Gunderson v. State, 67 N.E.3d 1050, 1056 (Ind. Ct. App. 2016) (Gunderson).
2
TABLE OF CONTENTS
Page
QUESTION PRESENTED............................................................................................................. 2
TABLE OF CONTENTS................................................................................................................ 3
TABLE OF AUTHORITIES .......................................................................................................... 4
BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER ............................ 7
ARGUMENT.................................................................................................................................. 8
I. Standard of Review............................................................................................................. 9
II. The Opinion Conflicts with Supreme Court precedent....................................................... 9
a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned................ 9
b. Conflicts with the plain meaning rule. .................................................................... 10
i. Conflicts with the Northwest Ordinance of 1787. ........................................... 11
ii. Conflicts with PPL Montana, LLC v. Montana, 132 S.Ct. 1215 (2012). ....... 11
iii. Conflicts with Martin v. Waddells Lessee, 41 U.S. 367, 413 (1842). ............ 11
iv. Conflicts with Pollard v. Hagen, 44 U.S. 212, 230 (1845). ............................ 11
v. Conflicts with Indiana Code 14-22-14-4....................................................... 12
vi. Conflicts with the Submerged Lands Act, 43 U.S.C. 1301.............................. 12
vii. Conflicts with Doemel v. Jantz, 193 N.W. 393, 398 (Wisc. 1923).................. 13
viii. Conflicts with Lake Sand v. State, 68 Ind. App. 439 (1918). .......................... 14
ix. Conflicts with State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950). ...................... 15
III. Everything else is a red herring. ..................................................................................... 15
IV. Finally, any scope adjustment must comport with the precedent that private
property cannot be taken without just compensation. .................................................... 16
CONCLUSION............................................................................................................................. 18
WORD COUNT CERTIFICATE ................................................................................................. 19
CERTIFICATE OF SERVICE ..................................................................................................... 20
3
TABLE OF AUTHORITIES
Page(s)
Constitutional Provisions
Indiana Constitution, Article 1, 21..............................................................................................18
U.S. Const. Amendment V. ...........................................................................................................18
Federal Cases
Illinois Cent. Railroad Co., v. Illinois,

146 U.S. 387 (1892).....................................................................................................10, 13, 15
Lane v. United States,

274 F. 290 (5th Cir. 1921) .......................................................................................................16
Martin v. Waddells Lessee,

41 U.S. 367 (1842)...................................................................................................................12
Mitchell v. Smale,
140 U.S. 406 (1891)...........................................................................................................16, 17
Oregon v. Corvallis,
429 U.S. 363 (1977).....................................................................................................14, 16, 17
PPL Montana, LLC v. Montana,

132 S.Ct. 1215 (2012)............................................................................................12, 16, 17, 19
Pollard v. Hagen,
44 U.S. 212 (1845).............................................................................................................12, 13
Shively v. Bowlby,
152 U.S. 1 (1894).....................................................................................................................17
State Cases
Bainbridge v. Sherlock,
29 Ind. 364 (1868)..............................................................................................2, 10, 16, 17, 19
Ctr. Townhouse Corp. v. City of Mishaw.,

882 N.E.2d 762 (Ind. Ct. App. 2008).......................................................................................18
Doemel v. Jantz,
193 N.W. 393 (Wisc. 1923) ...................................................................................14, 16, 17, 19
4
Donovan v. Grand Victoria Casino & Resort, L.P.,

934 N.E.2d 1111 (Ind. 2010) ...........................................................................................................2
ESPN, Inc., v. University of Notre Dame Police Department,

62 N.E.3d 1192 (Ind. 2016) .....................................................................................................11
Glass v. Geockel,
703 N.W.2d 58 (Mich. 2005).........................................................................................8, 15, 17
Gunderson v. State,
67 N.E.3d 1050 (Ind. Ct. App. 2016)................................................................2, 17 and passim
Hilt v. Weber,
233 N.W. 159 (Mich. 1930).....................................................................................................17
Ind. Dept. of Conservation v. Kivett,

95 N.E.2d 145 (Ind. 1950) ....................................................................2, 11, 14, 16 and passim
Lake Sand v. State,

68 Ind. App. 439 (1918).........................................................................................15, 16, 17, 19
Larson v. Sando,
508 N.W.2d 782 (Minn. App. 1993)........................................................................................15
Merrill v. Ohio Dept. of Natural Resources,

130 Ohio St. 30, 955 N.E.2d 935 (2011) .................................................................................15
Parkinson v. McCue,
831 N.E.2d 118 (Ind. Ct. App. 2005).......................................................................................17
Seamon v. Smith,
24 Ill. 521 (Ill. 1860)................................................................................................................15
Underwood v. Bunger,
70 N.E. 3d 338 (Ind. 2017) ................................................................................................10, 11
Federal Statutes
Northwest Ordinance of 1787............................................................2, 9, 11, 12, 14, 15, 16, 17, 19
Submerged Lands Act, 43 U.S.C. 1301 ...................................................9, 10, 13, 14 and passim
State Statutes
Ind. Code 14-18-6 ......................................................................................................................16
Ind. Code 14-22-14-4............................................................................................................11, 13
Ind. Code 14-26-2-1..............................................................................................................12, 19
5
Rules
Ind. T.R. 56(C)...............................................................................................................................10
Regulations
312 I.A.C. 1-1-26 ..........................................................................................................................8
312 I.A.C. 1-1-29.5 .....................................................................................................................11
312 I.A.C. 1-1-24 ........................................................................................................................11
6
BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER
Gunderson presented three facts, the deed, the Plat and surveys by Charles Hendricks
(App. 109, 112, 127, 134). Based on these three facts, Gunderson asked the Trial Court to
declare that the Property at issue is bounded by the navigable waters of Lake Michigan and that
the public had no right to use the Property not covered by Lake Michigans waters. (App. 14,
17).
The Trial Court concluded that the Property was bordered by the northern boundary of
Section 15 (App. 16, 18, 52, 57); that the State holds lands below the OHWM at 581.5 feet
(See, 312 I.A.C. 1-1-26(2) in trust (App. 17-18, 55-57); and, the public may use the land
below the OWHM for swimming and walking on the beach (App. 30-31, 65); for commerce,
boating, swimming, sunbathing and other beach sport activities (App 31, 66); and that the
public trust includes and protects recreational activities, such as swimming, picnicking,
sunbathing, or walking, and all other activities incident thereto, along the shores of Lake
Michigan. (App. 32). In short, the Trial Court found an unlimited public right to occupy the
Property and all similar property in Indiana. Id.
All parties appealed.
The Court of Appeals held that the northern boundary is the ordinary low water mark
of Lake Michigan (Gunderson at 1060, 32); that private rights co-exist with those of the public
trust [and] the land at issue below the OHWM is open to limited public use, such as gaining
access to the public waterway or walking along the beach as described in Glass. (Gunderson at
1058-59, 26); that the OHWM is not set by 312 I.A.C. 1-1-26(2) but remains that defined by
common law with factors found at 312 I.A.C. 1-1-26(1) (Gunderson at 1059, 30); and,
affirms the trial courts findings regarding the nature and scope of the public trust as it relates to
Lake Michigan. (Gunderson at 1060, 33).

7
The Court of Appeals did not define what it meant by limited public use (Gunderson at
1058-59, 26), and its affirmation of the Trial Courts findings (Gunderson at 1060, 33) plainly
conflicts with a limited right for passage.
ARGUMENT
The Court of Appeals limited public use right for passage coupled with its affirmation of
the Trial Courts unlimited recreational activities, such as swimming, picnicking, sunbathing, or
walking, and all other activities incident thereto, along the shores of Lake Michigan (App. 32),
resulted in no clarity or limit regarding the scope of any public trust right concerning private
property abutting Lake Michigan. Confrontation and litigation is sure to continue either by the
occupying public or the riparian owners.
To date, no Indiana Court has ever found a public right to enter private property. The
Court of Appeals ignored this Courts precedents concerning exclusive, absolute ownership
rights for private property, including land abutting navigable waterways.
Moreover, the Trial Court and Court of Appeals failed to construe the source of any
public trust right in Indiana, the Northwest Ordinance; failed to abide by the legislatures
definition of Lake Michigan and fashioned their own from whole cloth enlarging the location and
scope of the public trust; failed to construe the Submerged Lands Act, ignored a proper
construction and found a never before public right on private property through these failures
regardless of the location of navigable waters.
For these reasons, this Court should accept transfer and decide this matter for Lake
Michigan.
8
I. Standard of Review
Summary judgment and grant interpretations are reviewed de novo. Ind. T.R. 56(C).
Underwood v. Bunger, 70 N.E. 3d 338, 341 (Ind. 2017).
Gunderson designated his deed, Plat and the Hendricks survey; the Property, its
boundaries and whether encumbered by the public trust are legal questions reviewed de novo.
Id.
II. The Opinion Conflicts with Supreme Court precedent.
a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned.
The question was decided by this Court in Bainbridge v. Sherlock, 29 Ind. 364, 367
(1868) which held in 1868 that:
The banks belong to the riparian owner, and he

owns an absolute fee down to the low water mark.
Id. Further, use of the land is a trespass.
The right to the use of the river as a highway for

passage is distinct from the right to land for the
purpose of receiving or discharging freight and
passengers. The former is secured to the public; the
latter must be exercised with reference to the rights
of the riparian owner.
Id. at 369. The question answered was What are the rights of the navigator of this river,
to the use of its banks and margins? When this Court stated there was no shore, it explained
that is margin between high and low tide. Id. at 367. Just like the Ohio River, Lake Michigan
has no margin between high or low tide. Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387,
436 (1892). And, for a distinction between non-tidal waters and tidal waters, see the Submerged
Lands Act infra.
The Trial Court and Court of Appeals attempted to distinguish Bainbridge as applicable
only to navigable river waters and inapplicable to navigable lake waters by citing Art. 14-26 and
9
14-29. However, there is nothing in these articles to distinguish navigable waters because
Indiana treats all navigable waterways the same. In fact, the IAC has defined waterways to
include both rivers and lakes. See 312 IAC 1-1-29.5. 312 IAC 1-1-24 defines navigable as it
relates to waterways. Drawing a distinction between river laws and lake laws concerning
navigability is contrary to law. And, there is nothing in the granting language from the
Northwest Ordinance to distinguish navigable waters so.
The words come from the Northwest Ordinance that Indiana, by virtue of the Ordinance
of 1787, acquired title to the beds of the navigable waters in the State when, in fact, became a
State and took what rights the Northwest Territory had in said area. Ind. Dept. of Conservation
v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950).
The Northwest Ordinance stated: the navigable waters leading into the Mississippi and
St. Lawrence . . . shall be common highways, and forever free. Kivett, 95 N.E2d at 148. The
grant states nothing about the abutting land. Id.
b. Conflicts with the plain meaning rule.
This Courts recent jurisprudence holds that words matter. ESPN, Inc., v. University of
Notre Dame Police Department, 62 N.E.3d 1192, 1195-96 (Ind. 2016) (stating the rules of
constructionintent, plain meaning, all words have meaning, harmonize all provisions etc... and
that the job of the Court is to interpret, not legislate. Id. at 1200); Underwood v. Bunger, 70
N.E.3d at 341-42 (holding that construction means giving a fair reading to the whole instrument).
In this case, the Court of Appeals conflicts include finding a right never found before on
private property; ignoring the plain meaning of the reservation from the Northwest Ordinance;
redefining Lake Michigan contrary to the Indiana Code (Ind. Code 14-22-14-4); and legislating
an expanded scope of the public trust rights when the General Assembly said its expansion did
10
not apply to Lake Michigan; Land under the waters of Lake Michigan; Any part of the land in
Indiana that borders on Lake Michigan. Ind. Code 14-26-2-1.
i. Conflicts with the Northwest Ordinance of 1787.
First, the navigable waters leading into the Mississippi and St. Lawrence include Lake
Michigan, all other Great Lakes, the White River addressed in Kivett and the Ohio River
addressed in Bainbridge. Second, what was the intent shown by the plain language? Simply that
the navigable waters, are common highways and forever freenothing more. These are
consistent when the trust location is in and limited to the navigable waters.
ii. Conflicts with PPL Montana, LLC v. Montana, 132 S.Ct. 1215
(2012).
In 2012, the United States Supreme Court recently held that the people hold absolute
right to all their navigable waters and soils under them. PPL Montana, LLC v. Montana, 132
S.Ct. 1215, 1227 (2012) (emphasis added). This is consistent when trust location is in navigable
waters.
iii. Conflicts with Martin v. Waddells Lessee, 41 U.S. 367, 413

(1842).
Earlier, Martin v. Waddells Lessee, 41 U.S. 367, 413 (1842) (Gunderson at 1053, 11)
stated If the shores, and rivers, and bays, and arms of the sea, and the land under them, . . to be
freely used by all for navigation and fishery, as well for shell-fish as floating fish Id.
(emphasis added). This quote references four water areas, shores, rivers, bays, arms of the sea,
and the land under them, applies to all four. This is consistent when public trust location means
navigable waters and soils under them.
iv. Conflicts with Pollard v. Hagen, 44 U.S. 212, 230 (1845).
This is consistent with the holding from Pollard that The shores of navigable waters,
and the soils under them, were not granted by the Constitution to the United States, but were
11
reserved to the states respectively. Pollard v. Hagen, 44 U.S. 212, 230 (1845) (regarding the
tidal Mobile Bay). This is consistent when shores mean navigable waters and soils under them.
v. Conflicts with Indiana Code 14-22-14-4.
This is consistent with the definition of Lake Michigan as the waters of Lake Michigan
that are within Indiana. (Ind. Code 14-22-14-4) (emphasis added). This is consistent when
waters mean waters and soil under them.
vi. Conflicts with the Submerged Lands Act, 43 U.S.C. 1301.
What does land beneath navigable waters mean?
The Submerged Lands Act, 43 U.S.C. 1301 (Act) was passed in 1955. The Act states:
(a) The term lands beneath navigable waters means
(1) all lands within the boundaries of each of the respective States which
are covered by nontidal waters that were navigable under the laws of the
United States at the time such State became a member of the Union, or
acquired sovereignty over such lands and waters thereafter, up to the
ordinary high water mark as heretofore or hereafter modified by accretion,
erosion, and reliction;
43 U.S.C. 1301(a)(1) (emphasis added). Tidal waters and periodically covered land, are
addressed in section 1301(a)(2), inapplicable to Lake Michigan. The term boundaries includes
the Great Lakes. See 43 U.S.C. 1301(b). Lake Michigan is not a tidal body of water. Illinois
Cent. Railroad Co., v. Illinois, 146 U.S. 387, 436 (1892) (finding that the Great Lakes are not in
any appreciable respect affected by the tide.; the State holds title to lands under the navigable
waters of Lake Michigan. Id at 451).
The Trial Court addressed the Act in footnote 1 (App. 16), and by its italics ignored the
condition that the land must be covered by navigable waters before the area could include lands
up to the ordinary high water mark. By failing to give meaning to all words, it changed the
meaning and held that the State holds in trust all land beneath the OHWM regardless of the
12
location of the water. (App. 25, 48). Imagine lands beneath navigable waters regardless of the
location of the water. This is an absurdity that must be addressed by this Court.
The Court of Appeals ignored the Act completely.
Any reliance on federal doctrines to claim ownership of State land is contrary to Oregon
v. Corvallis, 429 U.S. 363, 372 n. 4 (1977), which explained that the Act did not alter the scope
or the effect of the equal footing doctrine, nor did it alter state property law regarding riparian
ownership. The effect of the Act was merely to confirm the States title to the beds of navigable
waters within their boundaries as against any claim by the United States government. As merely
a declaration of the States preexisting rights in the [navigable waters], nothing in the Act in any
way mandates, or even indicates that the federal common law should be used to resolve
ownership of lands, which by the very terms of the Act, reside in the States.. Id. (emphasis
added). In Indiana, Kivett explained that the land emerging on either side of a navigable stream
is a matter to be determined by the laws of each state involved. Kivett at 151. This is consistent
with Oregon v. Corvallis, 429 U.S. 363, 372 n. 4 (1977) (no federal law encumbering emerging
land). These authorities do not support an encumbrance on land abutting navigable waters.
vii. Conflicts with Doemel v. Jantz, 193 N.W. 393, 398 (Wisc. 1923).
Instead the Court of Appeals relied on dicta from Wisconsin and elsewhere and ignored
the best plain-meaning explanation of the combined language in the Northwest Ordinance and
Submerged Lands Act. The law in Wisconsin is that the rights of a riparian owner are not
dependent upon ownership of the soil under the water, but upon his title to the banks. Such
rights cannot be taken from him for private purposes in any event, nor can they be taken for
public purposes unless adequate compensation is paid therefore. Doemel v. Jantz, 193 N.W.
393, 398 (Wisc. 1923) (emphasis added). [T]he riparian owner has the right of exclusive access
to and from the waters of the lake at that particular place. Id. at 396. (emphasis added). The
13
foundation of riparian rights, ex vi termini, is the ownership of the bank or shore. In such
ownership they have their origin. They may do and exist though the fee in the bed of the river or
lake be in the state. Id.
The Wisconsin Supreme Court explained what up to means:
The riparian owners rights to the shore are exclusive as to all the
world, excepting on where those rights conflict with the rights of
the public for navigation purposes. up to the ordinary high
water mark, merely affirmed the publics right to pursue the sport of
hunting to the ordinary high water mark of a navigable [body] while
the waters of the [body] actually extended to such mark.
Id. (emphasis added).
Water matters. From the Northwest Ordinance to the holding in 2012, the people plainly
have a right to use navigable waters and soil under them, nothing more just like most of the
rest of the Great Lake states2.
The Indiana cases are consistent. Anything more is arbitrarily encumbering private
property.
viii. Conflicts with Lake Sand v. State, 68 Ind. App. 439 (1918).
In Lake Sand v. State, 68 Ind. App. 439, 120 N.E.2d 714 (1918) the area at issue is
[u]nder the waters of Lake Michigan within the boundaries of this state there are large deposits
of sand and gravel, which are valuable in the market. Id. at 715. This area is consistent with
2
All found that the riparian owner owned at least to the water. Minnesota: Larson v. Sando,
508 N.W.2d 782, 787 (Minn. App. 1993) (this court declined to expand the scope of the public-
trust doctrine, holding that the doctrine applies only to the states management of waterways, not
to the states management of land); Illinois: Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387,
463 (1892) (holding Illinois is the owner in fee of the submerged lands constituting the bed of
Lake Michigan.); Seamon v. Smith, 24 Ill. 521 (Ill. 1860) (the water is the
boundary); Ohio: Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St. 30, 955 N.E.2d
935, 949-50 (2011) (the water is the boundary; land owner has the right to exclude others).
Only Michigan in Glass v. Geockel, 703 N.W.2d 58, 73-75 (Mich. 2005) found a right of passage
on abutting private land incident to hunting, fishing and navigation).
14
navigable waters and soils under them as held by the public trust. The oft quoted line is the
state in its sovereign capacity is without power to convey or curtail the right of its people in the
bed of Lake Michigan. What is bed? From this case bed is the land under the navigable
waters consistent with the Northwest Ordinance, the Act, PPL Montana, LLC v. Montana,
Bainbridge v. Sherlock and Doemel v. Jantz. This case does not concern submerged land. 3
ix. Conflicts with State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950).
In State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950), this Court wrote upon the admission
of a State to the Union, the title of the United States to lands underlying navigable waters within
the States passes to it, as incident to the transfer to the State of local sovereignty, and is subject
only to the paramount power of the United States to control such waters for purposes of
navigation in interstate and foreign commerce. (emphasis added). This Court explained that
the land emerging on either side of a navigable stream is a matter to be determined by the
[property] laws of each state involved. Kivetts holding is consistent that the location of the
public trust is in the navigable waters and soils under them just like the Northwest Ordinance, the
Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Oregon v. Corvallis, Doemel v.
Jantz and Lake Sand v. State; all precedents plainly reserve the location as the navigable waters
not land abutting same.
This Court should accept transfer and uphold these precedents.
III. Everything else is a red herring.
Any boundary other than the navigable waters of Lake Michigan, for the public trust or
the Gunderson Property, is an arbitrary line in the sand and contrary to law. Lane v. United
States, 274 F. 290 (5th Cir. 1921); Mitchell v. Smale,140 U.S. 406 (1891). Any ordinary high
3
Intervenors cited Ind. Code 14-18-6 et seq, procedures to acquire title to submerged property.
15
water mark, OHWM (common law, admin law, definitional or by elevation), and any line in the
sand other than the water line, is not a legally congnizable boundary for Gundersons Property or
the public trust. Id. See also, Shively v. Bowlby, 152 U.S. 1, 35 (1894) (holding that the rule
everywhere admitted, accretion or alluvion . . . belongs to the owner of the land); Parkinson v.
McCue, 831 N.E.2d 118, 128 (Ind. Ct. App. 2005) (holding that the right to accretions belong to
the riparian owner). See also Hilt v. Weber, 233 N.W. 159 (Mich. 1930) (describing the lake
boundary as a moveable freehold).
The Court of Appeals cited PPL Montana, LLC v. Mont., 132 S.Ct. 1215, 1235 (2012)
that the State can define the scope of the public trust within its border. Gunderson v. State, 67
N.E.3d 1050, 1054 (Ind. Ct. App. 2016) (Gunderson at 1054, 12). While true, the quote is . . .
the States retain residual power to determine the scope of the public trust over the waters within
their borders, while federal law determines riverbed title under the equal footing doctrine. PPL
Montana, LLC v. Mont., 132 S.Ct. 1215, 1235 (2012) (emphasis added).
Gunderson concedes the State can define the scope of its public trust rights in the
navigable waters. However, the State cannot change the location from navigable waters to
abutting private property. Such a change in the location is contrary to the plain words of
Northwest Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Doemel
v. Jantz, Oregon v. Corvallis, Lake Sand v. State and State v. Kivett.
Again this is a matter of misconstruction by the Court of Appeals; scope is not location.
IV. Finally, any scope adjustment must comport with the precedent that private
property cannot be taken without just compensation.
The Court of Appeals relied on Glass v. Geockel, 703 N.W.2d 58, 73-75 (Mich. 2005) to
find a public right to walk the shore but that right does not include every right (Gunderson at
1058, 25), not every use, not to trespass, (Id.) but affirmed the trial courts unlimited right to sit,
16
sunbathe and picnic (Id. at 1060, 33). Both cannot be law. Both resolve nothing. Both will
promote continued confrontation and continued litigation. Passage is a transitory use, limited to
the time it takes to go by; its impact is low. Sunbathing and picnicking are occupational uses
limited in neither duration, number, space, etcetera; this impact is high because it precludes the
riparian owners from sunbathing or picnicking on their property and it also usurps for one
sunbather the right of every other person to sunbathe in that particular spot. If an overlap of
public and private uses is found, it cannot provide a public right for one to exclusively occupy
the spot to the detriment of the private owner and public at large. There has never before been a
right of first come first served on private property.
For no other reason, the Court should accept transfer to resolve just what right, if any, is
permitted in this conflicted opinion. It should also measure any public right against the
constitutional protections in favor of private property.
The law provides: No person shall be . deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use, without just
compensation. U.S. Const. amend. V.
The Indiana Constitution, Article 1, Section 21 provides No person's property shall be
taken by law, without just compensation; nor, except in case of the State, without such
compensation first assessed and tendered.
Simply, neither the State nor any court can encumber, take or occupy the Property and
corresponding riparian rights without just compensation. Ctr. Townhouse Corp. v. City of
Mishaw., 882 N.E.2d 762, 771 (Ind. Ct. App. 2008) (holding that a taking or destruction of, or
any actual and material interference with, riparian or other water rights that causes special injury
to the owner is grounds for the recovery of compensation under eminent domain provisions.).
17
This is the precedent. The original trust location was limited to the navigable waters; the
original scope was for navigation, commerce and fishing. The State can freely expand this
scope4 in the navigable waters, but it cannot, without just compensation, expand the location to
privately owned land and expand the scope to include occupation of that land.
For these reasons, any use on private property abutting Lake Michigan without the
owners permission is a trespass by individuals; if ordered by a court, the use is a taking by the
State and for which just compensation is constitutionally required.
CONCLUSION
For these reasons, this Court should accept transfer and decide if the Court of Appeals
creation of a public use on private property comports with the plain meaning of the Northwest
Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Doemel v. Jantz,
State v. Kivett and Lake Sand v. State, or not.
If so, the Court should plainly tell what use right is included, walking or passage; what
use rights are excluded, such as occupation by sitting, sunbathing, picnicking, if any; and, the
correct location, if other than the navigable waters and soil under them, so as to plainly instruct
all citizens of Indiana where they may use the navigable waters and abutting land.
If not, the Court should uphold its precedents and hold that the Property is bordered by
the navigable waters of Lake Michigan and that their rights include the time honored and
unconditional right of private property owners to exclude from their domain those entering
without permission and instruct the lower courts as such.
4
The legislature knows how to expand the scope but has not done so for Lake Michigan. See
Indiana Code 14-26-2-1.
18
Respectfully submitted,
/s/Michael V. Knight
Michael V. Knight (22066-45)
700 1st Source Bank Center
100 N. Michigan Street
South Bend, IN 46601-1632
(574) 233-1171; Michael.knight@btlaw.com
Mark L. Phillips (5860-46)

916 Lincolnway
LaPorte, IN 46350
(219) 362-1577; mlphillips@nlkj.com
Attorneys for Appellants
WORD COUNT CERTIFICATE
I verify that relying on the word count of the word processing system used to prepare the
Petition to Transfer, this Petition contains no more than 4,200 words, and I verify that this
Petition contains 4,164 actual words.
19
CERTIFICATE OF SERVICE
I certify that on April 10, 2017, I electronically filed the foregoing document using the
Indiana E-Filing System. I also certify that the following persons were electronically served
with the foregoing document:
Jeffrey B. Hyman Kurt R. Earnst Andrea E. Rahman

jbhyman@indiana.edu kre@braje-nelson.com Andrea.Rahman@atg.in.gov
W. William Weeks Paul Edgar Harold Mark Miller

wwweeks@indiana.edu pharold@lck-law.com mm@pacificlegal.org
David L. Powers
dpowers@smpklaw.com
I also certify that on April 10, 2017, the foregoing document was served upon the
following persons by first-class U.S. mail, postage prepaid:
Patricia F. Sharkey Keith A. Schofner

Environmental Law Counsel, P.C. P.O. Box 835
180 North LaSalle Street, Suite 3700 Bay City, MI 48707-0219
Chicago, IL 60601
Michael V. Knight
DMS 4886051v1
20
Filed: 4/10/2017 6:18:22 PM
Petition to Transfer
State Defendants
IN THE
No. 46A03-1508-PL-1116
DON H. GUNDERSON AND BOBBIE )

J. GUNDERSON, CO-TRUSTEES OF )
DON H. GUNDERSON LIVING TRUST )
DATED NOVEMBER 14, 2006, ) Appeal from the
Appellants, ) LaPorte Superior Court,
)
v. )
)
STATE OF INDIANA, INDIANA ) Case No. 46D02-1404-PL-606,
DEPARTMENT OF NATURAL )
RESOURCES, )
Appellees, ) The Honorable
) Richard R. Stalbrink, Jr.,
and, ) Judge.
)
ALLIANCE FOR THE GREAT LAKES, )
SAVE THE DUNES, et. al., )
Intervenor Appellees. )
______________________________________________________________________________
PETITION TO TRANSFER OF STATE OF INDIANA AND

INDIANA DEPARTMENT OF NATURAL RESOURCES
______________________________________________________________________________
CURTIS T. HILL, JR.

Attorney General of Indiana
Atty. No. 13999-20
THOMAS M. FISHER
Solicitor General
Atty. No. 17949-49
Office of the Attorney General
IGC South, Fifth Floor ANDREA RAHMAN
302 W. Washington Street Atty. No. 32728-29
Indianapolis, IN 46204 CALE ADDISON BRADFORD
(317) 232-6255 Atty. No. 33969-49
Tom.Fisher@atg.in.gov Deputy Attorneys General
1
State Defendants
QUESTIONS PRESENTED ON TRANSFER
1. Is a landowners declaratory judgment and quiet title action seeking a
determination of the boundary between private land and public trust on the shore of
Lake Michigan rendered mootand are the underlying judgments subject to
vacaturwhen the plaintiffs sell the property and the new owners are not substituted
as plaintiffs?
2. If the case is not moot, does the State, under public trust doctrine, hold
exclusive title up the ordinary high water mark of Lake Michigan, or do adjacent
landowners hold title to either the fluctuating water line or the ordinary low water
mark?
3. If the State holds public trust title to the ordinary high water mark of
Lake Michigan, may the State define that ordinary high water mark through
administrative rule, or is it subject to potentially varying judicial determinations
using common law factors?
2
State Defendants
TABLE OF CONTENTS
QUESTIONS PRESENTED ON TRANSFER .............................................................. 2
TABLE OF AUTHORITIES .......................................................................................... 4
BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER ............. 6
I. Trial Court Disposition ....................................................................................... 7
II. Appellate Court Disposition ............................................................................. 10
ARGUMENT ................................................................................................................ 10
I. All Judgments in the Case Should Be Vacated Because the Gundersons
Newly Disclosed Pre-judgment Sale of Their Property Eliminated the Only
Live Legal Dispute ............................................................................................ 10
II. If the Case Is Not Moot, the Issue Whether the State Holds Exclusive Title
Up To the Ordinary High Water Mark of Lake Michigan Warrants
Review ............................................................................................................... 14
A. Transfer is warranted because the decision below threatens recreational

use of Lake Michigan beaches abutted by private lots .............................. 14
B. Littoral rights versus public trust doctrine on Lake Michigan is a state-

specific legal relationship this Court has yet to address ........................... 16
III. It Is Valid and Efficient for DNR to Define OHWM by Administrative Rule,
Rather than Leave It to Variable Determinations by Courts on a Case-By-
Case Basis ......................................................................................................... 18
CONCLUSION............................................................................................................. 20
WORD COUNT CERTIFICATE ................................................................................. 22
CERTIFICATE OF FILING AND SERVICE ............................................................. 23
3
State Defendants
CASES
Beatty v. McClellan, 134 N.E.2d 701 (Ind. App. 1956) ............................................... 13
Bott v. Nat. Res. Comm'n, 327 N.W.2d 838 (Mich. 1982)..................................... 17, 18
Charles A. Beard Classroom Teachers Assn v. Bd. of Sch. Trustees of Charles A.
Beard Meml Sch. Corp., 668 N.E.2d 1222 (Ind. 1996) ..................................... 19, 20
Freeman v. Burrows, 171 S.W.2d 863 (Tex. 1943)...................................................... 13
Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005) ............................................................ 17
Gunderson v. State, 67 N.E.3d 1050 (Ind. Ct. App. 2016) .................................. passim
King v. Burns, 878 N.E.2d 208 (Ind. 2007) ................................................................. 13
Kranz v. Meyers Subdivision Prop. Owners Assn, Inc., 969 N.E.2d 1068 (Ind. Ct.
App. 2012) ................................................................................................................. 20
Parkison v. McCue, 831 N.E.2d 118 (Ind. Ct. App. 2005) .......................................... 18
Pence v. State, 652 N.E.2d 486 (Ind. 1995) ................................................................. 10
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988) ....................................... 16
Pollard v. Hagan, 44 U.S. 212 (1845) ......................................................................... 16
PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) ............................................ 14
Private Healthcare Sys., Inc. v. Torres, 898 A.2d 768 (Conn. 2006) .......................... 13
Shively v. Bowlby, 152 U.S. 1 (1894)........................................................................... 17
Tyson Foods, Inc. v. Aetos Corp., 818 A.2d 145 (Del. 2003) ....................................... 13
STATUTES
Ind. Code ch. 14-18-6 ................................................................................................... 15
Ind. Code 14-19-1-1(9)............................................................................................... 19
Ind. Code ch. 14-25-12 ................................................................................................. 15
4
State Defendants
RULES
Ind. Appellate Rule 66(C)(10)...................................................................................... 10
Ind. Professional Conduct Rule 3.3(a) ........................................................................ 11
OTHER AUTHORITIES
Jeffrey W. Heinquinet & Tracy Dobson, The Public Trust Doctrine and Sustainable
Ecosystems: A Great Lakes Fisheries Case Study, 14 N.Y.U. Envtl. L.J. 322
(2006) ......................................................................................................................... 17
Josh Eagle, Taking the Oceanfront Lot, 91 Ind. L.J. 851 (2016)................................ 16
5
State Defendants
BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER
When it was a live dispute, this case concerned the boundary of Indianas
public trust title in the shore of Lake Michigan vis--vis an adjacent landowners
claim. The basic controversy has been whether the State holds exclusive title to the
shore up to the ordinary high water mark or whether the adjacent landowner holds
title to the waters edge, such they may exclude members of the public from the beach.
Toward that end, Don H. Gunderson and Bobbie J. Gunderson, as trustees for the
Don H. Gunderson Living Trust, brought this claim to determine the title, rights,
status, and encumbrances, public trust or otherwise, regarding the real estate owned
in fee simple absolute by the Trust. Appellants Appendix 37 [hereinafter App.].
They lost in the trial court but won a partial victory in the court of appeals, which
held that an adjacent landowner and the State hold overlapping title to the Lake
Michigan shore between the ordinary high and low water marks.
But on March 28, 2017, after the court of appeals had denied Petitions for
Rehearing, counsel for the Gundersons filed an Appellants Clarification disclosing
for the first time that, even before the trial court entered judgment in the case, the
Gundersons had sold the property. Appellants Clarification, Gunderson v. State,
Gunderson v. State, 67 N.E.3d 1050, 1052 (Ind. Ct. App. 2016). In response, the State
has filed in the court of appeals Petition for Writ in Aid of Appellate Jurisdiction
asking the court to vacate its opinion and remand the cause to the trial court for
dismissal. Because that filing does not toll the time for seeking transfer, the State
respectfully seeks relief from this Court as well, either because the case is moot or
6
State Defendants
because the court of appeals erred in concluding that the Gundersons and the State
hold overlapping title.
I. Trial Court Disposition
Don and Bobbie Gunderson, as trustees for the Gunderson Living Trust, filed
a declaratory judgment and quiet title action against the State of Indiana and DNR
to determine the extent of their rights in the shore of Lake Michigan abutting
property they own along the lake. Gunderson v. State, 67 N.E.3d 1050, 1052 (Ind. Ct.
App. 2016). Later, the trial court permitted Alliance for the Great Lakes and Save
the Dunes (collectively, Alliance-Dunes Intervenors) to intervene to ensure that the
case for the States ownership of the Lakeshore below the OHWM and for the full
scope of public trust uses that apply there is zealously made. Memorandum in
Support of Motion to Intervene as Defendants by Alliance for the Great Lakes and
Save the Dunes at 25, Gunderson v. State, No. 46D02-1404-Pl-0606 (Lake Super. Ct.
May 27, 2014). They alleged no separate claims. Id. at 23. It also permitted the Long
Beach Community Alliance and a few of its members (collectively, Long Beach
Intervenors) to intervene to defend and protect their [members] rights to their full,
broad historic use of the Shore up to the ordinary high water mark. Brief in Support
of Motion to Intervene by Long Beach Community Alliance and Patrick Cannon, John
Wall, Doria Lemay, Michael Salmon & Thomas King at 13, Gunderson v. State, No.
46D02-1404-Pl-0606 (Lake Super. Ct. July 1, 2014). Long Beach Intervenors
similarly did not bring any new claims. Id.
7
State Defendants
In late 2014 and early 2015, the parties filed cross-motions for summary
judgment. The Gundersons asked the trial court to enter judgment that there is no
public trust right to any land abutting Lake Michigan. App. 83. The State asked
the trial court to declare the State own[s] or [has] the right to regulate the use of
the Gundersons property and that there is a public right or public trust encumbering
[that property]. App. 215. The Alliance-Dunes Intervenors asked the trial court to
find that the State of Indiana owns the disputed shore of Lake Michigan below the
OHWM and Indianas citizens hold public trust rights to use that shore recreation
and other public uses. App. 412. The Long Beach Intervenors asked the court to
[f]ind that the State of Indiana owns the lakebed of Lake Michigan below the OHWM
and holds such lakebed in trust for its citizens. App. 532.
While the trial court had these motions under advisement, the Gundersons
sold their entire trust property adjacent to Lake Michigan in 2015, but did not notify
the court or the State defendants.
Without being advised that the Gundersons had sold their property, the trial
court ruled for the State and the Intervenors. App. 86769. It said the State held
the title up to the OHWM on the shores of Lake Michigan because [t]o hold otherwise
would invite the creation of a beach landscape dotted with small, private, fenced and
fortified compounds designed to deny the public from enjoying Indianas limited
access to one of the greatest natural resources in this State. App. 3132.
Even though they, along with the State, prevailed in the judgment, the two
Intervenors filed separate motions to correct error and to supplement the record.
8
State Defendants
App. 86769. Without having filed any pleadings in the case asking for such relief,
the Intervenors for the first time asked the trial court to invalidate an administrative
rule promulgated by DNR fixing the OHWM at 581.5 feet International Great Lakes
Datum. The OHWM should be set by federal law common law, specifically a
physical characteristics test, they said. Motion for Correction of Error of Defendant-
Intervenors, Long Beach Community Alliance, Patrick Cannon, John Wall, Doria
Lemay, Michael Salmon and Thomas King, Gunderson v. State, 46D02-1404-PL-0606
(Lake Super. Ct. Aug. 13, 2015). Alliance-Dunes similarly alleged the OHWM should
be set at the legal boundary of the public trust on the disputed shore of Lake
Michigan which is the common law natural ordinary high water mark . . .
determined by physical characteristics. Appendix of Alliance-Dunes-Intervenor 2.
Additionally, Alliance-Dunes Intervenors later asked to supplement the record
with an April 18, 2015, letter from DNR and accompanying photographs that would,
in its view, establish that using the administrative OHWM as the boundary of the
public trust at Long Beach is . . . contrary to law and is also highly problematic from
a policy and a practice standpoint. Id. at 26, 30 (emphasis omitted).
The trial court denied these post-judgment motionsincluding the motion to
supplement the recordwithout comment. App. 86769. The Gundersons filed a
notice appealing the trial courts judgment. Gunderson v. State, 67 N.E.3d 1050, 1053
(Ind. Ct. App. 2016). Both Intervenors filed a notice of appeal from the denial of their
post-judgment motions. Id.
9
State Defendants
II. Appellate Court Disposition
The court of appeals affirmed in part and reversed in part, concluding that,
while the State held title to the shore of Lake Michigan up to OHWM, the Gundersons
held overlapping title to the ordinary low water mark. In its view, the land at issue
below the OHWM is open to limited public use, such as gaining access to the public
waterway or walking along the beach. Id. at 1059. In addition, despite the lack of
any appeal of the trial courts ruling upholding the OHWM administrative ruleand
the lack of any formal pleading or evidence establishing their right to invalidation of
that rulethe court of appeals invalidated the rule. It was, said the court, in conflict
with well-established case law regarding the states ability to regulate the shores of
Lake Michigan. Id. at 1059.
As noted, all parties filed petitions for rehearing, which were denied without
comment, and now the Gundersons have clarified that they sold their property well
before the trial courts entry of judgment. Order, Gunderson v. State, No. 46A03-
1508-PL-1116 (Ind. Ct. App. Mar. 9, 2017); Appellants Clarification, supra.
ARGUMENT
I. All Judgments in the Case Should Be Vacated Because the Gundersons

Newly Disclosed Pre-judgment Sale of Their Property Eliminated the
Only Live Legal Dispute
It is a basic tenet of the Anglo-American legal tradition that courts exist to
resolve actual, live legal disputes, not to resolve abstract questions of law. Pence v.
State, 652 N.E.2d 486, 488 (Ind. 1995). When this case began, the Gundersons owned
property abutting the shores of Lake Michigan and asked the trial court to determine
10
State Defendants
the boundary of that property, i.e. to declare the title, rights, status, and
encumbrances, public trust or otherwise, regarding the real estate owned in fee simple
absolute by the Gundersons. App. 37 (emphasis added).
Yet now, after prevailing in the court of appeals, the Gundersons drop a
bombshell: In spring 2015, while the case was pending in the trial court, before
judgment, the Gundersons sold their property. They did so without telling State
Defendants or the court, supposedly believing that [t]his fact was thought to have
been well known to all the parties. Appellants Clarification, supra. They do not
specify who supposedly thought that fact to have been well known, or the basis for
that thought. Nor do they allege that any court was aware they sold the property.
The Gundersons attorneys quite obviously had an obligation to disclose the
sale to every court that heard this case. See Ind. Professional Conduct Rule 3.3(a) (A
lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or
fail to correct a false statement of material fact or law previously made to the tribunal
by the lawyer.). And they had multiple procedural vehicles available for doing so: a
supplemental summary judgment filing prior to judgment, a post-judgment motion
or notice, a response to the Intervenors post-judgment motions, their opening and
reply briefs in the court of appeals, and their memoranda in response to the petitions
for reconsideration in the court of appeals. Yet they did not do so until after the court
of appeals denied the motions for reconsiderationless than two weeks before the
non-extendable transfer deadline.
11
State Defendants
It is not clear why, having sold the property, the Gundersons have continued
to litigate this case. They make no claim for damages and request only to quiet title
(in property they no longer own). The current owners of that property have never
sought to be substituted as parties and may be uninterested in litigating the matter
for any number of reasons.
In their Clarification document, the Gundersons contend they did not believe
the identity of the owner of the property at issue was material to the legal issues
presented and decided. Appellants Clarification, supra. That is not a credible
position. This case has always been about a specific piece property. Ownership of
the property is obviously material to a quiet title action (and an accompanying
request for declaration as to the boundaries of the property).
In any event, no remaining party has a justiciable claim. For while Intervenors
argued that the administrative OHWM is invalid, they never asserted any actual
claim for relief in that respect or made any factual record showing why they, an
environmental conservation group and a community homeownership group that
vaguely asserts some of its members own property adjacent to or nearby the lots that
adjoin Lake Michigan, are entitled to relief. Long Beach Intervention Motion at 10.
This is not a mandamus action, so citizen standing is inappropriate. And surely
public interest groups do not have standing to go around quieting title in other
peoples property. The court sometimes entertains moot cases for the sake of
resolving pressing questions, but the State has held public trust title to its Lake
Michigan shoreline for hundreds of years without anyone challenging it until the
12
State Defendants
Gunderson. There is no pressing need to address public trust as an abstract issue; if
some other adjacent landowner wishes to file a similar challenge, the courts can
consider the matter then.
Under these circumstances, the proper remedy is for the court to grant
transfer, thereby vacating the judgment of the court of appeals, and to direct that the
trial court judgment be vacated as well. See King v. Burns, 878 N.E.2d 208 (Ind.
2007) (transferring jurisdiction and vacating trial court judgment at the States
request because the case had been mooted by an election). Indiana Appellate Rule
66(C)(10) allows this Court to grant any appropriate relief, and this Court has
inherent equitable power to vacate all decisions and judgments below. Beatty v.
McClellan, 134 N.E.2d 701, 703 (Ind. App. 1956) (remanding judgment to trial court
to dismiss the real estate dispute because it was mooted by prior litigation); see also
Private Healthcare Sys., Inc. v. Torres, 898 A.2d 768, 776 (Conn. 2006) (granting
equitable vacatur when case was mooted on appeal); Tyson Foods, Inc. v. Aetos Corp.,
818 A.2d 145, 14748 (Del. 2003) (holding courts can apply equitable vacatur where
justice requires); Freeman v. Burrows, 171 S.W.2d 863, 863 (Tex. 1943) (When a
cause becomes moot on appeal, all previous orders and judgments should be set aside
and the cause, not merely the appeal, dismissed.).
Vacating all decisions and judgments below is in the interest of justice so that
the important issue of the extent of the States public trust title in the shore of Lake
Michigan can be litigated only if necessary, and only on a record reflecting actual
interests in the case.
13
State Defendants
II. If the Case Is Not Moot, the Issue Whether the State Holds Exclusive Title
Up To the Ordinary High Water Mark of Lake Michigan Warrants Review
The court of appeals has held, in effect, that littoral rights and public trust title
are not mutually exclusive. In its view, the State and adjacent landowners hold
overlapping title to the beach and bed of Lake Michigan between the OHWM and the
OLWM. While such a result might seem like a fair compromise, it is inconsistent
with fundamental public trust doctrine and threatens public use (and government
regulation) of Lake Michigans beaches.
A. Transfer is warranted because the decision below threatens

recreational use of Lake Michigan beaches abutted by private lots
The Gundersons claim that public trust doctrine does not apply to the shores
of Lake Michigan. In their view, the rights of landowners adjacent to Lake Michigan
extend to the waters edge, wherever it may be at a given moment. Amended
Appellants Brief at 22, Gunderson v. State, 67 N.E.3d 1050 (Ind. Ct. App. 2016). The
States view, in contrast, is that the State holds title up to the OHWM as established
at the time of Indianas statehood. Brief of Appellees at 20, Gunderson, 67 N.E.3d
1050. The State may set the OHWM administratively as long as it reasonable,
consistent with the Supreme Courts holding that States retain residual power to
determine the scope of the public trust over waters within their borders. PPL
Montana, LLC v. Montana, 132 S. Ct. 1215, 1235 (2012).
The court of appeals decided everybody was right: The Gundersons and the
State have overlapping title to the shore between OHWM and OLWM. The court
recognized that the right to exclude the public from land between the low and high
14
State Defendants
water marks would be inconsistent with the public trust doctrine, but found
persuasive a Michigan case that held public trust doctrine protects only limited
public rights, and it does not create an unlimited public right to access private land
below the ordinary high water mark. Gunderson, 67 N.E.3d at 105759 (quoting
Glass v. Goeckel, 703 N.W.2d 58, 75 (Mich. 2005)). Because the Gundersons and
publics rights could co-exist, the court held that the Gundersons own[] legal title
up to the [low water mark], and the State holds the land below the OHWM as defined
at common law. Id. at 1060.
This result threatens substantial negative consequences and needs to be
reviewed. If the State and property owners hold overlapping titles, the publics use
of the shore is more limited. The court of appeals acknowledged as much, holding
the land at issue below the OHWM is open to limited public use. Id. at 105859
(emphasis added). Just how limited the scope will be going forward remains in doubt.
For example, while the court of appeals says the public may use the water along the
lakeshore, it is unclear whether sunbathing on or fishing from the beach would
constitute trespassing.
Furthermore, overlapping ownership affects DNRs regulatory authority. For
example, DNR is responsible for the Sand Nourishment Fund, which deposits sand
along the shore of Lake Michigan to prevent coastal erosion, see Ind. Code ch. 14-25-
12, and must administer the permitting process for landowners along Lake Michigan
who seek to fill and improve their property. I.C. ch. 14-18-6. Co-ownership of the
beach with adjacent landowners undermines DNRs authority to take unilateral
15
State Defendants
action to deposit sand along the shore and determine whether a landowner qualifies
for a permit. In sum, the court of appeals opinion leaves DNRs ability to regulate
the shores of Lake Michigan in doubt.
B. Littoral rights versus public trust doctrine on Lake Michigan is a

state-specific legal relationship this Court has yet to address
All courts have adopted public trust doctrine, but each state has developed its
own approach to determining its scope. While some states look to the OLWM as the
upper limit of a landowners littoral rights, others mark the boundary at the OHWM.
Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988) ([I]t has been long
established that the individual States have the authority to define the limits of the
lands held in public trust and to recognize private rights in such lands as they see
fit.). The multiplicity of state regulatory models traces back to the circumstances by
which states attained title to public lands, lakes, and rivers following the Revolution,
and then to the adoption of the Equal Footing Doctrine by the Supreme Court in
Pollard v. Hagan, 44 U.S. 212, 224 (1845). See Brief of Appellees at 1920.
In Indiana, public trust doctrine for lakes has always extended to the OHWM,
as even the court of appeals concluded. Gunderson, 67 N.E.3d at 1056. The question
is, what are the implications of that conclusion for littoral rights? In the states view,
which is supported by traditional public trust doctrine, littoral rights and public trust
rights are largely mutually exclusive. That is, where public trust rights exist, littoral
rights generally do not. See Josh Eagle, Taking the Oceanfront Lot, 91 Ind. L.J. 851,
886 (2016) (observing that the public trust doctrine pit[s] private rights against
public rights (citation omitted)).
16
State Defendants
In concluding that the two may overlap, the court of appeals relied in particular
on a case from Michigan, Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005). The decision
below, however, did not address whether that doctrine of overlapping title is
consistent with Indianas traditional use of public trust doctrine. And it did not
elucidate the practical significance of overlapping title for common public recreational
uses of the beach, such as picnicking, sunbathing and fishing (it mentioned only
walking on the beach, not remaining stationary). Quoting Glass, the court of appeals
specifically warned against public trespass on private property, without stating what,
exactly, would constitute trespass in these circumstances. And while that same
quotation from Glass acknowledges a role for government regulation of traditional
public rights on the overlapping lakeshore, it said nothing about regulation of
private rights.
These omissions are critical; as the Supreme Court has observed, [g]reat
caution . . . is necessary in applying precedents in one state to cases arising in
another. Shively v. Bowlby, 152 U.S. 1, 26 (1894); see also Jeffrey W. Henquinet &
Tracy Dobson, The Public Trust Doctrine and Sustainable Ecosystems: A Great Lakes
Fisheries Case Study, 14 N.Y.U. Envtl. L.J. 322, 347 (2006) (As sovereigns, each of
the eight Great Lakes states has their own versions of the public trust doctrine.).
As it happens, Michigan and Indiana public trust doctrine diverge markedly,
especially with regard to lakes. Although Michigan, like Indiana, has historically
treated Great Lakes different than inland lakes, Michigan does not recognize public
trust title for those inland lakes. Bott v. Nat. Res. Commn, 327 N.W.2d 838, 841
17
State Defendants
(Mich. 1982). It is thus hardly surprising that given Michigans preferred model of
public trust title for lakes that it would be more generous to landowners when
applying that doctrine to Lake Michigan. But Indiana has never been so generous.
The State holds public trust title to inland lakes other than Lake Michigan. See, e.g.,
Parkison v. McCue, 831 N.E.2d 118, 130 (Ind. Ct. App. 2005) (recognizing the State
holds title to Clear Lake). Accordingly, the details of public trust doctrine in Indiana
do not follow ineluctably from Michigans public trust doctrine.
This Court should grant transfer and decide whether the State and adjacent
landowners hold overlapping title to the Lake Michigan shoreline between the
OHWM and the OLWM.
III. It Is Valid and Efficient for DNR to Define OHWM by Administrative

Rule, Rather than Leave It to Variable Determinations by Courts on a
Case-By-Case Basis
Though no party in the case properly demanded or established a right to such
relief, the court of appeals invalidated DNRs administrative rule establishing the
OHWM as five hundred eighty-one and five-tenths (581.5) feet I.G.L.D., 1985 (five
hundred eighty-two and two hundred fifty-two thousandths (582.252) feet N.G.V.D.,
1929). Gunderson v. State, 67 N.E.3d at 1059. Instead, it ruled, the OHWM must
be definedas it was prior to 1995by common law, albeit using the factors set forth
in another administrative rule, 312 IAC 1-1-26(1). Id. at n.13. That holding both
ignores statutes giving DNR broad regulatory authority over Lake Michigan and
raises the troubling prospect that the State and citizens alike will have no certainty
as to the public trust boundary of Lake Michigan shore.
18
State Defendants
First, the court of appeals should never have addressed this issue. The
Gundersons filed a narrow declaratory judgment and quiet title claim, asking the
court to define their property boundary at the waters edge of Lake Michigan. And
because they believed their property line extended past the OHWM, it did not matter
to them how the State defined that line. When the Alliance-Dunes and Long Beach
Intervenors joined the case, they made no claims for relief against the State, nor did
they try to establish standing to make a claim for invalidating the administrative
OHWM. Moreover, neither Intervenor asked the court to strike that rule in their
summary judgment motions. Long Beach Intervenors briefly mentioned it in its
memorandum, arguing the court should instead use the common law factors test.
App. 55658. But the trial court rejected that request, reasoning, defining the
OHWM as a set elevation will . . . provide clearer notice to both land owners and the
public. App. 28. The court then rejected a belated attempt to supplement the record
following entry of judgment. App. 86769. Under these circumstances, the propriety
of establishing OHWM via administrative rule has never been properly before the
courtsand is even less so now that the Gundersons have sold their property.
Second, DNR has plenary authority to regulate Indianas Lake Michigan
shoreline, including the authority to establish the OHWM via administrative rule.
Indiana Code section 14-19-1-1(9) specifically gives DNR general charge of the
navigable water of Indiana. DNR would have no way to exercise that general
administrative power if it could not also establish the boundaries of the States
navigable waters under public trust doctrine. See Charles A. Beard Classroom
19
State Defendants
Teachers Assn v. Bd. of Sch. Trustees of Charles A. Beard Meml Sch. Corp., 668
N.E.2d 1222, 1225 (Ind. 1996) ([A]gencies have implicit powers to regulate to
effectuate their respective regulatory schemes outlined by statute). Indeed, the
court of appeals previously allowed the State to define the scope of littoral rights
through administrative rule. Kranz v. Meyers Subdivision Prop. Owners Assn, Inc.,
969 N.E.2d 1068, 1078 (Ind. Ct. App. 2012) (addressing the scope of a lake access
easement and littoral rights on Lake Bass).
In addition, an administratively set OHWM makes practical sense for
everyone. It enables the public and adjacent landowners alike to know precisely
where the boundary of their rights lies at any given moment, and it makes feasible
DNR administration of any number of regulatory and permitting statutes without
endless litigation over the public trust boundary based on a multi-factor test.
CONCLUSION
The Court should grant transfer and vacate all judgments below, or, in the
alternative affirm the trial courts entry of summary judgment in favor of State
Defendants.
CURTIS T. HILL, JR.

Attorney General of Indiana
Atty. No. 13999-20
By: s/ Thomas M. Fisher

THOMAS M. FISHER
Solicitor General
Atty. No. 17949-49
20
State Defendants
ANDREA RAHMAN
Atty. No. 32728-29
CALE ADDISON BRADFORD
Atty. No. 33969-49
Deputy Attorneys General
21
State Defendants
As required by Indiana Appellate Rule 44, I verify that this petition for transfer
contains no more than 4200 words.
/s/ Thomas M. Fisher

Thomas M. Fisher
Solicitor General
22
State Defendants
CERTIFICATE OF FILING AND SERVICE
I certify that on April 10, 2017, I electronically filed the foregoing document
using the Indiana E-filing System (IEFS). I also certify that on April 10, 2017, the
foregoing document was served upon the following persons using the IEFS:
Michael V. Knight Jeffrey Bruce Hyman

mknight@btlaw.com jbhyman@indiana.edu
Mark Miller Kurt Russell Earnst

mm@pacificlegal.org kre@braje-nelson.com
Mark Lawrence Phillips David L. Powers

mlphillips@nlkj.com dpowers@smpklaw.com
Paul Edgar Harold

pharold@lck-law.com
I also certify that on April 10, 2017, the foregoing document was served upon
the following persons by first-class U.S. Mail, postage prepaid:
Patricia F. Sharkey Keith Alan Schofner

180 N. Lasalle St. 755 W. Big Beaver Road, Ste. 410
Ste. 3700 Troy, MI 48084
Chicago, IL 60601
/s/ Thomas M. Fisher

Thomas M. Fisher
Solicitor General
Office of the Indiana Attorney General

Indiana Government Center South, Fifth Floor
302 West Washington Street
Indianapolis, Indiana 46204-2770
Telephone: (317) 232-6332
Fax: (317) 232-7979
Tom.Fisher@atg.in.gov
23
Filed: 4/10/2017 5:58:11 PM
IN THE INDIANA SUPREME COURT

CAUSE NO. 46A03-1508-PL-1116
DON H. GUNDERSON AND BOBBIE J. )

GUNDERSON, CO-TRUSTEES OF THE )
DON H. GUNDERSON LIVING TRUST )
DATED NOVEMBER 14, 2006, ) Appeal from the
Appellants/Cross-Appellees, ) LaPorte Superior Court No. 2
) Trial Court Case No. 46D02-1404-PL-606
v. )
) The Honorable Richard R. Stalbrink, Jr.
STATE OF INDIANA, INDIANA DEPT. ) Judge
OF NATURAL RESOURCES, )
Appellees/Cross-Appellants ) Court of Appeals
) Cause No. 46A03-1508-PL-1116
ALLIANCE FOR THE GREAT LAKES ) Consolidated herein with
and SAVE THE DUNES, ) Cause No. 46A04-1601-PL-84
Appellees/Cross-Appellants, )
)
LONG BEACH COMMUNITY )
ALLIANCE, )
PATRICK CANNON, JOHN WALL, )
DORIA LEMAY, MICHAEL SALMON, )
and, THOMAS KING )
Appellees/Cross-Appellants )
______________________________________________________________________________
LONG BEACH COMMUNITY ALLIANCE ET AL.

PETITION FOR TRANSFER
______________________________________________________________________________
Kurt R. Earnst, #19333-64

Braje, Nelson & Janes, LLP
126 E. Fifth Street, P.O. Box 1006
Michigan City, IN 46361-8206
Phone: (219) 872-2100 [Voice] (219) 873-9163 [Fax]
Patricia F. Sharkey, # 4767-95-TA

Environmental Law Counsel, P.C.
180 N. LaSalle Street, Suite 3700
Chicago, IL 60601
Phone: (312) 981-0404 [Voice] (888) 909-7404 [Fax]
Attorneys for Appellees/Cross-Appellants, Long Beach

Community Alliance, Patrick Cannon, John Wall, Doria
Dated: April 10, 2017 Lemay, Michael Salmon And Thomas King
1
Appellees/Cross Appellants Petition for Transfer
QUESTIONS PRESENTED ON TRANSFER
1) Whether the State of Indiana was granted title to all lands below the ordinary high water
mark (OHWM) of Lake Michigan, a navigable water, by the federal government at
statehood under the Equal Footings Doctrine.
2) If so, absent an act of the State of Indiana in its sovereign capacity transferring the
States title to Equal Footing lands to another party, may an Indiana Court in a quiet title
action extinguish the State of Indianas title to any portion of Equal Footing lands below
the OHWM based on its interpretation of a littoral owners deed? State ex rel. Ind. Dept
of Conservation v. Kivett, 95 N.E.2d 145, 148 (1950)
3) Whether the Appellate Court erred in reversing the Trial Courts denial of Plaintiffs
Motion for Summary Judgment as to the location of Plaintiffs northern property
boundary where evidence as to this location was in dispute. Allen Gray Ltd. Pship IV v.
Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015) Specifically, did the Appellate
Court err by relying solely on Plaintiffs evidence (Slip Op. at 20-22), which was
disputed by LBCA, and ignoring LBCAs undisputed designated evidence showing the
Section Line to be at a different location?
2
TABLE OF CONTENTS
QUESTIONS PRESENTED ON TRANSFER...2
TABLE OF CONTENTS.3
TABLE OF AUTHORITIES...5
Background..7
Trial Court Order.7
Appellate Court Order..9
ARGUMENT.10
I. The Appellate Courts low water mark private title holding is inconsistent with the
Equal Footing Doctrine and cases relied upon by the Appellate Court which recognize
that the State holds title to land below the OHWM...10
II. Unlike some other states, the State of Indiana has not enacted legislation generally
conveying title to its Equal Footing land to littoral property owners11
III. The State of Indiana General Assembly has enacted a permit mechanism allowing filling,
reclamation, and acquisition of a state patent to Lake Michigan equal footing land in
certain circumstances; however, Gunderson does not hold such a permit or patent.13
IV. Gundersons deed did not and could not transfer the States title to Lake Michigan Equal
Footing land...13
V. To the extent that the Appellate Court relied on evidence in the record to conclude that
Gundersons title extends to the ordinary low water mark, it erred as a matter of
law..15
VI. The Appellate Court also erred by relying on disputed evidence on Summary
Judgment16
A. The Appellate Court acknowledged, but failed to apply, the standard of review
required for Summary Judgment.16
B. The Appellate Court failed to recognize and/or consider that Gundersons evidence
was disputed by other designated evidence in the record17
3
TABLE OF CONTENTS (continued)
CONCLUSION..18
WORD COUNT CERTIFICATE..20
CERTIFICATE OF SERVICE..21
4
Page(s)
INDIANA CASES
Allen Gray Ltd. Pship IV v. Mumford

44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015).2, 16
Gunderson v. State,
67 N.E.3d 1050, 1054, 1056, 1060 (Ind. Ct. App. 2016)...9, 10, 11, 12, 17
Bainbridge v. Sherlock
29 Ind. 364, 367 (1868)...........................10
Lake Sand Co. v. State

120 N.E.714, 716 (1918)8, 12, 15
State ex rel. Ind. Dept of Conservation v. Kivett

95 N.E.2d 145, 148 (1950)...2, 8, 9, 10, 12, 15
FEDERAL CASES
Illinois Central Railroad Co. v. State of Illinois

146 U.S. 387, 452-453, 458 (1892)...8, 10, 11
In re Sanders Beach
147 P.3d 75, 79 (2006).11
Pollards Lessee v. Hagan

44 U.S. 212, 226-230 (1845)...8, 14
PPL Montana, LLC v. Montana

565 U.S. 576, 576, 603-604 (2012).8, 10
Shively v. Bowlby
152 U.S. 1, 11-13, 58 (1894).8, 14, 15
United States v. Carstens

982 F.Supp. 2d 874, 878 (N.D. Ind. 2013)8
Waddells Lessee
41 U.S. 367, 3688
OTHER STATE CASES
Fulmer v. Williams
15 A. 726 (Penn. 1888)12
5
TABLE OF AUTHORITIES (continued)

Page(s)
OTHER STATE CASES (cont.)
Glass v. Goeckle
703 N.W.2d 58, 66-68, 69-70 (Mich. 2005)12
Phillips Petroleum Co. v. Mississippi

484 U.S. 469, 475 (1988)...8
Schurmeier v. St. Paul & P.R. Co.

10 Minn. 82, 103 (Minn. 1865)12
INDIANA STATUTES
Indiana Code 14-18-6-4...13
OTHER AUTHORITIES
Robin Kundis Craig

A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private
Rights, and the Evolution Toward an Ecological Public Trust
37 Ecology L.Q. 53, 108-109...12
6
BACKGROUND AND PRIOR TREATMENT OF ISSUE OF TITLE ON TRANSFER
Background
This is a quiet title and declaratory judgment action brought by Plaintiff Gunderson Trust
(Gunderson) against the State of Indiana and Indiana Department of Natural Resources (the
State) seeking a declaration of its fee simple ownership of and exclusive right to access and use
the Lake Michigan beach down to the waters edge.1 These issues were decided by the Trial
Court on Gundersons Motion for Summary Judgment based on designated evidence and without
trial.
In addition to the very important Public Trust Doctrine issues raised in this case, which
Petitioner Long Beach Community Alliance et al. (LBCA) contends the Appellate Court
decided properly, this case involves the equally important question of who holds title (jus
privitum) to the shore of Lake Michigan below the common law Ordinary High Water Mark
(OHWM). LBCAs contends the Appellate Court erred in holding that Gunderson owns legal
title of the shore of Lake Michigan below the OHWM to the ordinary low water mark. The
resolution of this title issue has implications not only for Gundersons beachfront property in the
Town of Long Beach, Indiana, but for the entire shore of Lake Michigan in the State of Indiana.
Trial Court Order
On July 24, 2015, the Trial Court denied Plaintiffs Motion for Summary Judgment in its
entirety and granted Defendant-Intervenors Cross Motions for Summary Judgment, holding, in
part: that the State of Indiana owns the shore of Lake Michigan below the OHWM pursuant to
1
At the outset, the Trial Court granted two motions to intervene submitted by the Alliance for
the Great Lakes and Save the Dunes (Alliance-Dunes), representing the rights of general
public, and Long Beach Community Alliance et al. (LBCA), representing residents and
homeowners in the Town of Long Beach. Both were active Defendant-Intervenors, Appellees,
and Cross Appellants throughout the proceedings below.
7
the federal Equal Footing Doctrine as a matter of law, that Gundersons deed flows from a
federal land patent and could not transfer state owned Equal Footing land, and that the State has
not transferred that shore to the Plaintiffs.2 Trial Court July 24, 2015 Order at 15-16, paras. 47,
48 and 49. Gund.App. 25-26 This Trial Court holding on well-established state and federal Equal
Footing Doctrine precedent (Tr. Ct. Order at 4-8), including Lake Sand Co. v. State, 120 N.E.
714, 716 (1918); State ex rel. Ind. Dept of Conservation v. Kivett, 95 N.E.2d 145, 148 (1950);
Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 452-453 (1892); Shively v.
Bowlby, 152 U.S. 1, 11-13 (1894); Pollards Lessee v. Hagan, 44 U.S. 212, 226-230 (1845);
Waddells Lessee, 41 U.S. 367, 368; Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475
(1988); PPL Montana, LLC v. Montana, 565 U.S. 576, 603-604 (2012); and United States v.
Carstens, 982 F.Supp. 2d 874, 878 (N.D. Ind. 2013)
Regarding the location of Gundersons northern (lake side) boundary, the Trial Court
held: As a matter of interpretation, and common sense, if a lot is carved from within a section,
the boundaries of that lot can be no greater than those of the section from which it was carved.
Gund. App. 26 However, the Trial Court also held it was without evidence showing where the
northern boundary of Section 15 currently lies in relation to the Gundersons lots and the
OHWM. Tr. Ct. Order, at 16, para. 53. Gund. App. 26 As Gunderson had failed to carry its
evidentiary burden of proof to quiet title as to this boundary, the Trial Court denied Summary
Judgment on this issue.
2
The Trial Court also held that the State holds that shore in trust for the public and that trust
includes the publics right to recreational beach uses. The Appellate Court affirmed the Trial
Court on these rulings as to the nature and scope of the States title.
8
Appellate Court Order
The Appellate Courts December 7, 2016 Order concurred with the Trial Courts
conclusion of law that the State acquired and holds title to the shore of Lake Michigan below the
OHWM at statehood pursuant to the Equal Footing Doctrine. Gunderson v. State, 67 N.E.3d
1050, 1054 (Ind. Ct. App. 2016) The Appellate Court Order also did not dispute the Trial Courts
holding that There has been no evidence designated showing that the State has relinquished its
title to the lands below the OHWM, (Tr. Ct. Order at 16, para. 49) Gund. App. 26.
Notwithstanding its concurrence with the Trial Court on the state and federal law that the
State was granted title to Equal Footing lands below the OHWM at statehood and the lack of any
evidence that the State transferred its title to Gunderson, the Appellate Court reversed the Trial
Courts denial of Summary Judgment on the issue of Gundersons title, and found that
Gundersons title extends to the ordinary low water mark of the Lake Michigan based on the
Appellate Courts own findings of fact. Gunderson at 1060.
The Appellate Court Order does not reconcile the inconsistent conclusions of law
inherent in this holding. It cites no case law precedent or other authority supporting its implicit
legal conclusion that the State of Indianas title to Equal Footing land below the OHWM may be
transferred to a private party by a deed, absent an act of the legislature, or that the boundary of
public and private ownership is the ordinary low water mark. cf: State ex rel. Ind. Dept of
Conservation v. Kivett, 95 N.E.2d 145, 148 (1950)
Despite the fact that this issue arises on Summary Judgment, the Appellate Courts
findings of fact as to the location of Gundersons northern property boundary rely solely on
evidence designated by Gunderson, the moving party. See Id. at 1060. The Appellate Court
9
Order makes no reference to the fact that Gundersons evidence and its interpretation of the
evidence were disputed by evidence designated by LBCA.
The law and facts pertaining to who holds title to the Lake Michigan shore below the
common law OHWM and to the location of the northern boundary of Gundersons lots have
been thoroughly briefed and argued at the Trial Court level in Motions and Cross-Motions for
Summary Judgment, Motions to Correct Error, and oral arguments before the Trial Court and at
the Appellate level in Appellant, Cross-Appellant and Appellee briefs, oral argument, and in
LBCAs and Alliance-Dunes Petitions for Rehearing and Gundersons response thereto.
ARGUMENT
I. The Appellate Courts finding that the low water mark is the boundary of private
title is inconsistent with the Equal Footing Doctrine and cases relied upon by the
Appellate Court which recognize that the State holds title to land below the OHWM.
In reaching its conclusion that the common law public trust doctrine applies to the
Indiana Lake Michigan shore below the OHWM, the Appellate Court properly relied upon the
seminal Indiana and federal Equal Footings Doctrine cases which hold that the states acquired
ownership of Equal Footings land below the OHWM from the federal government upon
statehood. Those cases hold both that the State holds title to land below the OHWM and that it
holds it in trust for the public. The Appellate Court itself cites these cases for this very
proposition. The Slip Opinion cites State ex rel. Ind. Dept of Conservation v. Kivett, 95 N.E.2d
145, 148 (1950) for the proposition that When Indiana became a state in 1816 it acquired
ownership of the beds of its navigable waters. Gunderson at 1054.[emphasis added] It cites
Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 452 (1892) for the proposition
that [Equal Footing title] is a title held in trust for the people of the state. Slip Op. at 9.
[emphasis added] It cites PPL Montana, LLC v. Montana, 565 U.S. 576, 576 (2012) for the
10
proposition that federal law determines riverbed title under the equal footings doctrine. Slip Op.
at 9. [emphasis added] The Appellate Court also found that Bainbridge v. Sherlock, 29 Ind. 364,
367 (1868), which held that a riparian owner held title to the low water mark on a navigable
river, does not apply to navigable lakes. Id. at 1056. The Court cited In re Sanders Beach, 147
P.3d 75, 79 (2006) for the proposition that a state holds title to the beds of navigable lakes and
streams below the natural high-water mark for the use and benefit of the whole people. Id. at
1056. [emphasis added]
The Appellate Courts subsequent conclusion (Id. at 1060) that Gundersons private title
extends to the ordinary low water mark a location which by definition is below the OHWM -
- is at odds with this well-established case law and the Appellate Courts own statements that the
State of Indiana was granted title to its Lake Michigan Equal Footing shore at statehood and that
those lands extend to the natural OHWM. Id. at 1054.
II. Unlike some other states, the State of Indiana has not enacted legislation generally
conveying title to its Equal Footing land to littoral property owners.
While a State may not alienate its duties as the trustee of the Public Trust to maintain the
jus publicum on Equal Footing lands, the Equal Footings Doctrine does not prevent a state from
transferring its jus privatum title to Equal Footing land below the OHWM for example, to the
low water mark to littoral property owners or other private parties. Illinois Central Railroad.
Co. v. Illinois., 146 U.S. 387, 458 (U.S. 1892) ("The king, by virtue of his proprietary interest
could grant the soil so that it should become private property, but his grant was subject to the
paramount right of public use of navigable waters, which he could neither destroy nor abridge.)
Indeed, many states have alienated their jus privitum title to Equal Footing land by
legislation, by state patent, or by pre-Equal Footing Doctrine state common law. However, it is
11
undisputed that Indiana has not transferred jus privatum title to the Lake Michigan Equal
Footings shore to littoral owners in general or to Gunderson in particular.
The Appellate Court Order fails to recognize that this key legal predicate, i.e., State
action transferring title to Equal Footing land, is not present in Indiana generally or in this case in
particular. In support of its conclusion that the northern boundary of Gundersons property is
the ordinary low water mark, the Appellate Court relied upon Glass v. Goeckle, 703 N.W.2d 58
(Mich. 2005) and several cases cited in Glass at 69-70 (Gunderson at 1060), all of which were
rendered in jurisdictions in which the states had previously transferred some or all of their jus
privitum title to Equal Footing land to private parties. Neither Glass nor those cited cases decided
the question of riparian title below the OHWM because in those cases the transfer of Equal
Footing land title had previously been effected by state legislation, state patent, or unique pre-
Equal Footing Doctrine state common law.3 Indeed, Glass cites those cases, not for the
proposition that riparian title extends to the low water mark, but rather for the proposition that
the Public Trust (jus publicum) remains impressed on those lands even if a riparian owner has
acquired jus privitum title to the low water mark by state law.
Unlike those states, this Court has held that the State of Indiana owns such lands in its
sovereign capacity and that such title may not be transferred except by an act of the legislature.
Lake Sand Co. v. State, 120 N.E. 714, 716 (1918) and State v. Kivett, 95 N.E.2d 145 (1950)
Further, it is undisputed that the Indiana General Assembly has not enacted legislation
3
Glass simply recognizes that Michigan law provides for state patenting of land below the
OHWM. Id. at 66-68. California adopted a statute in 1872 establishing the low water mark as the
limit of riparian title. See A Comparative Guide to the Western States' Public Trust Doctrines:
Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust, 37 Ecology
L.Q. 53, 108-109. Pennsylvania and Minnesota both had pre-Equal Footing Doctrine property
law establishing the low water mark as the boundary of riparian title in the 1800s. See Fulmer v.
Williams, 15 A. 726 (Penn. 1888) and Schurmeier v. St. Paul & P.R. Co., 10 Minn. 82, 103
(Minn. 1865). This is not the case in Indiana.
12
establishing the low water mark as the boundary of littoral title on navigable water Equal
Footing land or otherwise generally relinquishing any portion of its Equal Footing title to littoral
owners. Tr. Ct. Order at 16, para.49. Gund. App. 26.
III. The State of Indiana General Assembly has enacted a permit mechanism for filling,
reclamation, and acquisition of a state patent to Lake Michigan Equal Footing land
in certain circumstances; however, Gunderson does not hold such a permit or
patent.
Although Indiana has not enacted legislation generally transferring its title to its Lake
Michigan shore down to the low water mark, in 1995 the Indiana General Assembly has
established a mechanism to transfer title to Indianas Lake Michigan Equal Footing shore to
private parties on a case-by-case basis.
Indiana Code 14-18-6-4 creates a procedure for interested persons to acquire title to
submerged real property adjacent to and within the width of the land bordering on Lake
Michigan and between the shore and the dock or harbor line by applying to Indiana Department
of Natural Resources (DNR) for a permit to fill in, reclaim and own the real property.
Notably, this statutory authority requires that such permit is not effective until approved
by the governor. [emphasis added] Gunderson neither designated evidence nor argued that it
holds a permit or a patent pursuant to this statute.
IV. Gundersons deed did not and could not transfer the States title to Lake Michigan
Equal Footing land.
The Appellate Courts holding is predicated on the erroneous assumption that
Gundersons deed could transfer the States title to Gunderson down to the low water mark.
This reasoning is at odds with the legal description in the deed and plat as well as state and
federal law.
13
First, it must be understood that Gundersons deed and the accompanying 1914 Map of
Long Beach subdivision plat do not say to the waters edge, or to the Lake, or the low
water mark or otherwise indicate any intent to convey title to those locations. Gund. App. At
109-113 (Also see enlarged version of plat at Gund. App. 581-583.) Rather, the deed refers to
specific lots shown in the 1914 subdivision plat, titled Map of Long Beach. That plat shows
lots with four sides and contains a legal description referring to a specific quantum of land, lots
of the forms, dimensions, and otherwise as indicated on platt as shown, and all lots as
situatedin specific Sections, including Section 15 in which Gundersons lots lie. Gund. App. at
581-583 There is no ambiguity on the face of the deed or plat as there is no indication
whatsoever that the northern most lots in the subdivision extend to the waters edge or
ordinary low water mark or, for that matter, even to the OHWM.
More importantly, Gundersons deed was not granted by the State of Indiana nor was it
derived from a State land grant. The record demonstrates that Gundersons deed (as well as the
deeds to all other lots in the Long Beach subdivision) was derived from a federal land patent
specifically an 1837 U.S. Land Patent to William W. Taylor. See Gund. App. at 600; Tr. Ct.
Order at 15, para. 46., Gund. App. 25 A federal land patent can only convey land held by the
federal government; in this instance, land above the common law OHWM delineating the
historic boundary between the States Lake Michigan Equal Footing lands and the historic
federal land above. See Pollards Lessee v. Hagan, 44 U.S. 212 (1845) and Shively v. Bowlby,
152 U.S. 1 (1894), holding that a federal patent cannot transfer title to state Equal Footings land.
In Pollard, the U.S. Supreme Court held:
if a federal] patent purported to convey lands which were part

of the tidelands, the patent would be invalid to the that extent
since the Federal Government has no power to convey lands which
are rightfully the States under the equal footing doctrine.
14
In Shively, the U.S. Supreme Court made it clear that the federal government could not
grant state Equal Footing land below the OHWM to private parties. Referring to the Oregon
Donation Act, the Court held:
Grants by Congress of portions of the public lands within a

territory to settlers thereon, though bordering on or bounded by
navigable waters, convey, of their own force, no title or right
below high-water mark, and do not impair the title and dominion
of the future state, when created Id. at 58. [emphasis added]
Further, as discussed above, in Lake Sand Co. v. State, 120 N.E. 714, 716 (1918) and
State v. Kivett, 95 N.E.2d 145 (1950), this Court recognized that Indiana holds title to its Lake
Michigan Equal Footing lands in its sovereign capacity. Thus, any transfer of title to any portion
of these lands cannot be effected by a deed alone. Equal Footing lands in Indiana can only be
conveyed by an act of the State of Indiana in its sovereign capacity, i.e., by an act of the
legislature.
While Gundersons deed may be relevant to determining the boundary of its lots
landward of the OHWM or whether its lots are actually littoral to Lake Michigan, its deed could
not convey title below (lakeward of) the OHWM as a matter of law. The Trial Court correctly
recognized that the State holds the lands below the OHWM in trust for the publics protected
uses (Tr. Ct. Order at 16, para. 49, Gund. App. 26) and that there was insufficient evidence in
the record to quiet title as to the location of Gundersons northern boundary above the OHWM.
(Tr. Ct. Order at 16, para. 53) Gund. App. 26
V. To the extent that the Appellate Court relied on evidence in the record to
conclude that Gundersons title extends to the ordinary low water mark, it
erred as a matter of law.
As stated above, whether Gunderson holds title to any Equal Footing land granted to the
State of Indiana at statehood turns on only one fact question: Did the State in its sovereign
15
capacity (or pursuant to the permit and patent mechanism enacted by the Indiana General
Assembly in 1995) convey its title to any portion of its Lake Michigan Equal Footing lands to
Gunderson. This question was answered by the Trial Court, finding: There has been no
evidence designated showing that the State has relinquished its title to the lands below the
OHWM (Tr. Ct. Order, at 15. para. 49). This finding of fact is undisputed and was not
addressed by the Appellate Court. Therefore, as a matter of law, Gunderson cannot own land
below the OHWM and the Appellate Court erred by ruling on this issue as a question of fact.
VI. The Appellate Court also erred by relying on disputed evidence on Summary
Judgment.
To the extent that the Appellate Courts ruling on the location of Gundersons northern
boundary and/or the location of the Section line have relevance landward of the OHWM, the
Appellate Court also erred. It is evident from the record that the Appellate Court either
misunderstood the evidence in the record or misapplied the standard of review on Summary
Judgment.
A. The Appellate Court acknowledged, but failed to apply, the standard of

review required for Summary Judgment.
While properly stating the standard of review on Summary Judgment (Slip Op. at 6-7),
the Appellate Court improperly reversed the Trial Court on this issue relying solely on
Gundersons designated evidence, ignoring LBCAs designated evidence, and failing to
recognize the existence of an issue of material fact or to resolve all inferences in favor of the
non-moving party. Allen Gray Ltd. Pship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App.
2015)
16
B. The Appellate Court failed to recognize and/or consider that Gundersons

evidence was disputed by other designated evidence in the record.
The Appellate Court acknowledged only two pieces of disputed evidence both
offered by Gunderson -- and plainly ignored LBCAs designated evidence. (Slip Op. at 21)
Gunderson at 1060. Further, in its Conclusion, the Appellate Court incorrectly states:
The designated evidence consistently indicates the northern

boundary of Section 15 is Lake Michigan. Slip Op. at 22.
Specifically, the Appellate Court ignored LBCAs designated evidence disputing
Gundersons evidence (Gund. App. 539-541), including the following unchallenged evidence:
1) A 2003 GIS Photo Shown for LaPorte County Section Lines Per LaPorte
County GIS System, depicting an overlay of the original1829 federal over the Lake Michigan
shore in Section 15 as it existed in 2003 prepared by the Official LaPorte County Surveyor
Anthony Hendricks and an affidavit by Mr. Hendricks explaining how it was performed and
providing his opinion that it provides an approximation of the area and location of the Section
15 Section Lines that is useful in generally understand the location of those lines in relation to
the land today. This display document shows the northern Section 15 Section Line is located
above the beach altogether and far south of the ordinary low water mark of Lake Michigan.
See LBCAs designated evidence in Gund. App. 601-602. Also see LBCAs Brief in Response to
Appellants Petition for Rehearing (Ap. Ct. Dec. 27, 2016).
2) The fact that wording in the Survey Calls from the 1829 federal survey show
they were made on the Bank of Lake Michigan and to specific terrestrial trees (e.g. pine, oak)
on the shore, clearly at or above the OHWM, as historically required by the U.S. Department of
Interiors Manual of Surveying Instructions not the waters edge or ordinary low water mark.
17
See LBCAs designated evidence in Gund. App. 585-593. Also see LBCAs Brief in Response
to Appellants Petition for Rehearing (Ap. Ct. Dec. 27, 2016).
3) LBCAs evidence disputing the relevance and interpretation of the 1984 Survey
offered by Gunderson. Gund. App. at 546. Also see LBCAs Brief in Response to Appellants
Petition for Rehearing (Ap. Ct. Dec. 27, 2016).
While the Appellate Courts holding that Gundersons title extended to the ordinary low
water mark should be reversed as a matter of law alone, the Appellate Court also erred in its
one-sided analysis of the evidence. To the extent the Appellate Courts decision that Gunderson
holds title to the low water mark turned on the designated evidence thought by the Appellate
Court to be undisputed, this was error regarding a material dispute in the record on Summary
Judgment which should be reversed.
CONCLUSION
LBCA respectfully petitions the Supreme Court for reversal of the Appellate Courts
holding that Gunderson holds title to the low water mark of Lake Michigan. In support of its
reversal, LBCA prays that the Supreme Court make the following holdings and findings:
1) That it is well-established under state and federal Equal Footing Doctrine case
law, acknowledged by the Appellate Court, that the State holds title to shore of Lake Michigan to
the OHWM in its sovereign capacity as a matter of law;
2) That under this Courts holdings in Kivett and Lake Sand, the State of Indiana
may not alienate its Equal Footing lands except by an act of the legislature;
3) That it is undisputed fact that the Indiana General Assembly has not generally
transferred its title to any portion of its Lake Michigan Equal Footing shore below the OHWM to
any party;
18
4) That it is undisputed fact that Gunderson has not obtained a permit or patent
pursuant to Indiana Code 14-18-6-4;
5) That the Appellate Court erred as a matter of law in holding that the Gundersons
deed granted it title to the Lake Michigan shore below ordinary low water mark, as such land
is by definition land below the OHWM held by the State which could not be transferred by a
deed, and, particularly, could not be transferred by Gundersons deed which was derived from a
federal patent; and
6) That, to the extent that the location of Gundersons property line above the
OHWM was ruled upon as a fact question by the Appellate Court, the Appellate Court erred in
reversing the Trial Courts denial of Summary Judgment as to the location of Gundersons
northern property line and the northern Section Line of Section 15 because facts on this issue
were in dispute.
By: /s/Kurt R. Earnst
Kurt R. Earnst, #19333-64
126 E. Fifth Street, P.O. Box 1006
Michigan City, IN 46361-8206
Telephone: (219) 872-2100 Facsimile: (219) 873-9163
kre@braje-nelson.com
By: ____________________________________
Patricia F. Sharkey, # 4767-95-TA
Environmental Law Counsel, P.C.
180 N. LaSalle Street, Suite 3700
Chicago, IL 60601
Telephone: (312) 981-0404 Facsimile: (888) 909-7404
psharkey@environmentallawcounsel.com
Attorneys for Long Beach Community Alliance,
Patrick Cannon, John Wall, Doria Lemay, Michael Salmon
and Thomas King
19
I verify that this petition contains no more than 4,200 words. The foregoing brief specifically
contains 4,066 words, as county by counsels word processing system, excluding the parts of the
brief exempted by Ind. Appellate Rule 44(C).
/s/ Kurt R. Earnst

Kurt R. Earnst (Atty. No. 19333-64)
On Behalf of the
Long Beach Community Alliance
20
CERTIFICATE OF SERVICE
I hereby certify that, on April 10, 2017, the foregoing document was filed electronically
via Efile.incourts.gov, powered by Tyler Technologies. I further certify that the following
persons were electronically served with a copy of this document:
Jeffrey B. Hyman Michael V. Knight Andrea E. Rahman

jbhyman@indiana.edu mknight@btlaw.com Andrea.Rahman@atg.in.gov
W. William Weeks Paul Edgar Harold Mark Miller

wwweeks@indiana.edu pharold@lck-law.com mm@pacificlegal.org
David L. Powers Mark L. Phillips Paula Puccio

dpowers@smpklaw.com mlphillips@nlkj.com pp@pacificlegal.org
I also certify that, on April 10, 2017, a copy of the foregoing document was served upon
the following counsel of record by United States mail, postage prepaid:
Keith A. Schofner
755 W. Big Beaver Road
Suite 410
Troy, MI 48084
/s/ Kurt R. Earnst

Kurt R. Earnst
21
FILED
Dec 07 2016, 9:19 am
CLERK
Court of Appeals
and Tax Court
ATTORNEYS FOR ATTORNEYS FOR APPELLEES

APPELLANTS/CROSS-APPELLEES Gregory F. Zoeller
Michael V. Knight Attorney General of Indiana
South Bend, Indiana Andrea E. Rahman
Deputy Attorney General
Mark L. Phillips Indianapolis, Indiana
LaPorte, Indiana
ATTORNEY FOR APPELLEE/CROSS-
APPELLANT, ALLIANCE FOR THE
ATTORNEYS FOR AMICUS CURIAE SAVE GREAT LAKES AND SAVE THE
OUR SHORELINE DUNES
David L. Powers Jeffrey B. Hyman
Smith, Martin, Powers, & Knier, PC Conservation Law Center
Bay City, Michigan Bloomington, Indiana
Keith A. Schofner
Lambert Leser ATTORNEYS FOR
Bay City, Michigan APPELLEES/CROSS-APPELLANTS
LONG BEACH COMMUNITY
ALLIANCE, ET AL.
ATTORNEYS FOR AMICI CURIAE RAY
CAHNMAN, ET AL. Kurt R. Earnst
Mark Miller Michigan City, Indiana
Pacific Legal Foundation
Palm Beach Gardens, Florida Patricia F. Sharkey
Environmental Law Counsel, PC
Paul Edgar Harold Chicago, Illinois
Court of Appeals of Indiana | Opinion 46A03-1508-PL-1116 | December 7, 2016 Page 1 of 22

LaDue, Curran & Kuehn, LLC
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Don H. Gunderson and Bobbie December 7, 2016

J. Gunderson, Co-Trustees of the Court of Appeals Case No.
Don H. Gunderson Living Trust 46A03-1508-PL-1116
Dated November 14, 2006, Appeal from the LaPorte Superior
Appellants/Cross-Appellees/Plaintiffs, Court
The Honorable Richard R.
v. Stalbrink, Jr., Judge
Trial Court Cause No.
State of Indiana, Indiana 46D02-1404-PL-606
Department of Natural
Resources,
Appellees/Defendants,
Alliance for the Great Lakes and

Save the Dunes,
Appellee/Cross-Appellant/
Intervenor-Defendant,
Long Beach Community

Alliance, Patrick Cannon, John
Wall, Doria Lemay, Michael
Salmon, and Thomas King,
Appellees/Cross-Appellants/
Intervenor-Defendants.
May, Judge.
[1] The shores of the Great Lakes may look serene, but they are a battleground.
Members of the public enjoy using the shores for fishing, boating, birding, or
simply strolling along and taking in the scenic vistas. Kenneth K. Kilbert, The
Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1, 2 (2010).
Repeatedly, however, owners of land bordering the Great Lakes (i.e., littoral
owners), armed with deeds indicating they own the shore to the waters edge or
even lower, have tried to stop members of the public from using their property
above the waters edge. Id. (internal footnotes omitted). Today we are called
on to decide one such case.
[2] Don H. Gunderson and Bobbie J. Gunderson, as trustees of the Don H.
Gunderson Living Trust (collectively, Gunderson), sought a declaratory
judgment that their Lake Michigan property extends to the waters edge,
wherever the waters edge is at any given moment. The State of Indiana and
the Indiana Department of Natural Resources (DNR) (collectively, State),
Alliance for the Great Lakes and Save the Dunes (Alliance-Dunes), and Long
Beach Community Alliance (LBCA), 1 argued the State holds in trust for the
public all land up to the ordinary high water mark (OHWM), regardless
whether that land is covered by water.
[3] The trial court granted summary judgment for the State and the Intervenors.
We affirm in part and reverse in part.
1
We will refer to Alliance-Dunes and LBCA collectively as the Intervenors.

Facts and Procedural History 2
[4] Gunderson owns three lots in Long Beach, Indiana (Gunderson Property).
The trial court found, The Gundersons deed, the plat to which the deed refers,
and the survey of the plats reference no northern dimension other than that the
lots are within Section 15. (Appellants App. at 26.) The deed 3 for the
property incorporates by reference a 1914 plat map of Long Beach, which
shows the Gunderson Property is located in Section 15 of the township. The
Gunderson Property is shown on the plat as a series of rectangular boxes with a
northern boundary. A 1984 survey identifies the northern boundary of the
Gunderson Property as lake edge. (Id. at 127.) A survey from 1829 indicates
an irregular property line on the northern border of Section 15, beyond which is
labeled, Lake Michigan. (Id. at 585-7.)
[5] On April 4, 2014, Gunderson brought a motion for a declaratory judgment and
to quiet title against the State, claiming he owns all land to the waters edge and
the public has no rights to any land not covered by water, as that land is his. 4
On June 2, 2014, Alliance-Dunes filed a motion to intervene, which was
2
We heard oral argument at the Indiana Statehouse on September 8, 2016. We commend counsel on the
quality of their oral advocacy.
3
The legal description provided in the deed indicates the Gunderson Property encompasses Lot 240, 242,
and 244, (App. at 110), which correspond to the location of Section 15 on the 1914 plat map.
4
Gunderson filed an amended complaint on April 7, 2014.

granted. On July 1, 2014, LBCA filed a motion to intervene; that motion was
granted on October 20, 2014.
[6] On October 31, 2014, Gunderson moved for summary judgment.
Subsequently, the State filed a cross-motion, as did the Intervenors (collectively
Defendants). On April 22, 2015, the trial court held a hearing on all motions.
On July 24, 2015, the trial court denied Gundersons summary judgment
motion and granted the cross-motions filed by the Defendants. 5 It found and
concluded:
Therefore, as to ownership, this Court finds that the Gundersons

own legal title, jus privatum, in their lots to the northern boundary
of Section 15. Further, this Court finds that the State holds jus
publicum, in public trust, the land below the OHWM, as defined
by 312 Ind. Admin. Code 1-1-26(2). Moreover this Court finds
that the Gundersons cannot unduly impair the protected rights
and uses of the public when the titles to the land overlap.
(Id. at 28.)
[7] Gunderson filed his notice of appeal on August 10, 2015 (Gunderson
Appeal). On August 11, 2015, Alliance-Dunes filed a combined motion for
clarification and to correct error. On August 13, 2015, LBCA also filed a
motion to correct error. On August 20, 2015, the State filed its responses to the
Intervenors respective motions. On October 15, 2015, the trial court scheduled
5
The trial court issued an Amended Order on August 3, 2015, as the first two lines of Paragraph 46 were
inadvertently cut from page 15 during printing. (App. at 34.)

a hearing on the Intervenors motions for December 18, 2015. On October 23,
2015, this court granted a joint motion for temporary stay of appellate
proceedings due to the pending motions from the Intervenors.
[8] On November 9, 2015, Alliance-Dunes filed Combined Motions to Take
Judicial Notice of Facts, to Supplement the Record, and for Leave to Amend
Alliance-Dunes Motion for Clarification and Motion to Correct Error.
(Judicial Notice Motion) (Alliance-Dunes App. at 25.) On November 23,
2015, the trial court issued an order granting Alliance-Dunes Judicial Notice
Motion unless an objection is filed within 10 days from the date of this Order.
(Id. at 90.) On November 30, 2015, Gunderson filed an objection, and on
December 7, 2015, the State filed its objection to the Alliance-Dunes Judicial
Notice Motion. The trial court held a hearing on all pending matters on
December 18, 2015, and denied all pending motions on December 21, 2015.
Alliance-Dunes appealed the trial courts denial of its Judicial Notice Motion
and we consolidated that appeal and the Gunderson Appeal into the current
case.
Discussion and Decision

[9] When reviewing summary judgment, we stand in the shoes of the trial court
and apply the same standards in deciding whether to affirm the ruling. Allen
Gray Ltd. Pship IV v. Mumford, 44 N.E.3d 1255, 1256 (Ind. Ct. App. 2015).
Thus, on appeal, we must determine whether there is a genuine issue of
material fact and whether the moving party is entitled to judgment as a matter

of law. Id. That standard requires us to construe all factual inferences in favor
of the nonmoving party, and to resolve all doubts as to the existence of an issue
of material fact against the moving party. Id.
[10] A ruling on a motion for summary judgment comes before this court clothed
with a presumption of validity. Id. Accordingly, the party appealing a
summary judgment bears the burden of persuading us that the trial courts
ruling was improper. Id. Nevertheless, we carefully review a decision on
summary judgment to ensure that a party was not improperly denied its day in
court. Id. Where, as here, the trial court makes findings and conclusions in
support of its entry of summary judgment, we are not bound by such findings
and conclusions, but they aid our review by providing reasons for the decision.
Id. We will affirm a summary judgment on any theory or basis found in the
record. Id.
Public Trust Rights

[11] Under English law, all navigable waters and the land beneath them were held in
trust by the sovereign for the benefit of the public. Murphy v. Dept of Nat. Res.,
837 F. Supp. 1217, 1219 (S.D. Fla. 1993), affd, 56 F.3d 1389 (11th Cir. 1995).
This arrangement has become known as the public trust doctrine, id., and was
adopted by the United States Supreme Court, such that shores were public
trust land:
For it was expressly enjoined upon [the Duke of York], as a duty

in the government he was about to establish, to make it, as near
as might be, agreeable, in their new circumstances, to the laws

and statutes of England; and how could this be done, if in the
charter itself, this high prerogative trust was severed from the
regal authority? If the shores, and rivers and bays and arms of the
sea, and the land under them, instead of being held as a public
trust for the benefit of the whole community, to be freely used by
all for navigation and fishery, as well for shell-fish as floating
fish, had been converted by the charter itself into private
property, to be parcelled out and sold by the duke, for his own
individual emolument? There is nothing, we think, in the terms
of the letters-patent, nor in the purposes for which it was granted,
that would justify this construction.
Martin v. Waddells Lessee, 41 U.S. 367, 413 (1842). This remained true after
independence:
This right of eminent domain over the shores and the soils under
the navigable waters, for all municipal purposes, belongs
exclusively to the states within their respective territorial
jurisdictions, and they, and they only, have the constitutional
power to exercise it. To give to the United States the right to
transfer to a citizen the title to the shores and the soils under the
navigable waters, would be placing in their hands a weapon
which might be wielded greatly to the injury of state sovereignty,
and deprive the states of the power to exercise a numerous and
important class of police powers.
Pollard v. Hagan, 44 U.S. 212, 230 (1845) (emphasis added). Thus, States that
joined the Union after the original thirteen acquired from the federal
government rights in the lands within the state, including the lands between
the high and low tide marks and the water that periodically covers it. Murphy,
837 F. Supp. at 1219.

[12] When Indiana became a state in 1816 it acquired ownership of the beds of its
navigable waters. State ex rel. Ind. Dept of Conservation v. Kivett, 228 Ind. 623,
629-30, 95 N.E.2d 145, 148 (1950). That title, sometimes called equal
footing 6 title, is different in character from that which the state holds in lands
intended for sale . . . . It is a title held in trust for the people of the state.
Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 452 (1892). After equal
footing lands are passed at statehood, the land is governed by state, and not
federal, law. See PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215,
1235 (2012) (states retain residual power to determine the scope of the public
trust over waters within their borders, while federal law determines riverbed
title under the equal-footing doctrine). A private landowner cannot impair the
protected rights of the public. Lake Sand Co. et al. v. State ex rel. Attorney General,
68 Ind. App. 439, 444, 120 N.E. 714, 716 (1918).
[13] In 1995, our legislature adopted Ind. Code ch. 14-26-2, which provides the
Indiana public has a vested right in the preservation, protection, and enjoyment
of all the public freshwater lakes of Indiana and the use of the public freshwater
lakes for recreational purposes. Ind. Code 14-26-2-5. It provides the State has
full power and control of all of the public freshwater lakes in Indiana, and holds
6
In 1842, the United States Supreme Court declared that, for the thirteen original states, the people of each
state, based on principles of sovereignty, hold the absolute right to all their navigable waters and the soils
under them, subject only to rights surrendered and powers granted by the Constitution to the Federal
Government. PPL Montana, LLC v. Montana, __ U.S. __, 132 S. Ct. 1215, 1227 (2012). In a series of 19th-
century cases, the Court determined that the same principle applied to States later admitted to the Union,
because the States are coequal sovereigns under the Constitution. Id.

and controls all public freshwater lakes in trust for the use of all of the citizens
of Indiana for recreational purposes. Id. A person owning land bordering a
public freshwater lake does not have the exclusive right to the use of the waters
of the lake or any part of the lake. Id. But that section expressly excludes Lake
Michigan: This chapter does not apply to . . . Lake Michigan[, l]and under the
waters of Lake Michigan[, and a]ny part of the land in Indiana that borders on
Lake Michigan. 7 Id.
[14] Gunderson characterizes that chapter as a codification of the public trust
doctrine and argues there is no public trust doctrine applicable to his land
because Indiana expressly excluded Lake Michigan from its public trust
doctrine. (Amended Br. of Appellants at 28.) Therefore, Gunderson contends
he paid for his property and as such has the right to exclude others. (Id. at
30.)
[15] The trial court found:
Indiana did not surrender the public trust encumbering Lake

Michigans shores by partially codifying the public trust doctrine
as it applied to the smaller freshwater lakes in Indiana. That [ ]
land below the OHWM has not been excluded from Indianas
common law public trust doctrine. Furthermore, this Court
7
Gunderson says Three times crowed the General Assembly; there is no recreational right to any part of the
land abutting Lake Michigan. (Amended Br. of Appellants at 28.) Therefore, Gunderson paid for his
property and as such has the right to exclude others. (Id. at 30.) That is not what the General Assembly
crowed. It said only that Ind. Code ch. 14-26-2 does not apply to Lake Michigan. The trial court correctly
determined the exclusion of Lake Michigan does not mean there are no public trust rights. Rather, it reflects
there was no intent to change the common law with regard to Lake Michigan. See, e.g., Shively v. Bowlby, 152
U.S. 1, 41 (1894) (when there was no administratively-set OHWM, there existed a common-law OHWM).

notes that Indiana has the least amount of shoreline along Lake
Michigan. Moreover, this Court finds the idea that Indiana, with
such a limited amount of shoreline, would restrict and in effect
deny its citizens [sic] access to such an amazing resource. [sic]
Granting near exclusive rights to a vast portion of the shoreline
to a select few homeowners, to be a far stretch of reason and
common sense. [sic]
(Appellants App. at 20.)
[16] We decline to hold the exclusion of Lake Michigan from that statute represents
the legislatures statement there are no public trust rights in the shore of Lake
Michigan. Gunderson relies primarily on Bainbridge v. Sherlock, 29 Ind. 364, 367
(1868), in which our Indiana Supreme Court held:
The Ohio [R]iver is a great navigable highway between states and

the public have all the rights that by law appertain to public rivers
as against the riparian owner. But there is not shore, in the
legal sense of that term; that is, a margin between high and low
tide -- the title to which is common. The banks belong to the
riparian owner, and he owns an absolute fee down to low water
mark.
However, it seems, based on the language specifically applying the holding
regarding the riparian rights to the navigable highway between states . . .
[where there] is not shore, id., the holding in Bainbridge applied to rivers, not
lakes as we have here. Compare Kivett, 95 N.E.2d 145 (regarding the use of
resources protected by public trust on a river), and Lake Sand, 120 N.E.2d 714
(regarding the use of resources protected by public trust on a lake); and compare

Ind. Code art. 14-29 (regulating navigable rivers, streams, and waterways) with
Ind. Code art. 14-26 (regulating lakes and reservoirs).
[17] We do not believe the exclusion of Lake Michigan from Indiana Code ch. 14-
26-2 demonstrates legislative intent that there be no public trust rights to the
shore. We presume the legislature is aware of the common law and intends to
make no change therein beyond its declaration either by express terms or
unmistakable implication. Clark v. Clark, 971 N.E.2d 58, 62 (Ind. 2012). There
was no such express declaration here, nor do we characterize the statutory
language as leaving an unmistakable implication. Thus, the rights to the
shore of Lake Michigan are controlled by the common law public trust
doctrine.
Scope of Public Trust Rights

[18] As we have concluded public trust rights exist, we must now consider their
scope. Regarding the nature of the public trust rights relative to Lake Michigan,
the trial court found:
The Gundersons have provided no evidence and no persuasive

argument for finding that the recreational activities, such as
swimming and walking on the beach, should not also be
permissible public uses protected by the public trust doctrine.
This Court notes that several other states, including some of our
sister Great-Lake States, have recognized the public trusts
protection for recreational enjoyment of the beach.
(Appellants App. at 20.)

[19] The states retain residual power to determine the scope of the public trust over
waters within their borders. PPL Montana, __ U.S. at __, 132 S. Ct. at 1235.
Some Great Lakes states have determined the public trust rights include
recreational uses such as swimming, walking along the shore, and preservation
of scenic beauty. E.g., People ex rel. Scott v. Chicago Park Dist., 360 N.E.2d 773,
780 (Ill. 1976) (public trust doctrine, like all common law principles, should not
be considered fixed or static, but should be molded and extended to meet
changing conditions and needs of the public it was created to benefit); R.W.
Docks & Slips v. State, 628 N.W.2d 781, 787-88 (Wis. 2001) (public trust doctrine
originally existed to protect commercial navigation, but has been expansively
interpreted to safeguard the publics use of navigable waters for purely
recreational purposes such as boating, swimming, fishing, hunting, recreation,
and to preserve scenic beauty), cert. denied sub nom. R.W. Docks & Slips v.
Wisconsin, 534 U.S. 1041 (2001)). The scope of public trust rights in Indiana is
an issue of first impression. 8
[20] Granting lakeshore owners the right to exclude the public from land between
the low and high water marks would be inconsistent with the public trust
doctrine because, under that doctrine, a state holds the title to the beds of
navigable lakes and streams below the natural high-water mark for the use and
8
In United States v. Carstens, 982 F. Supp. 2d 874, 878 (N.D. Ind. 2013), the district court said: The land
between the edge of the water of Lake Michigan and the ordinary high water mark is held in public trust by
the State of Indiana. It cited Ill. Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892), and Lake Sand, 68 Ind.
App. 439, 120 N.E. 714 (1918), but neither of those decisions directly supports the Carstens language about
the ordinary high water mark.

benefit of the whole people. In re Sanders Beach, 147 P.3d 75, 79 (Idaho 2006),
rehg denied. In Sanders Beach, lakefront property owners sought a ruling that
their littoral rights gave them authority to exclude the public from that portion
of the abutting lakebed not covered by water. The Court determined that
creating the littoral right they wanted would give them the exclusive right to
occupy this portion of state land, even though the state holds such land in trust
for the public:
Such littoral right would be contrary to the central substantive

thought in public trust litigation, which we have stated is as
follows: [w]hen a state holds a resource which is available for the
free use of the general public, a court will look with considerable
skepticism upon any governmental conduct which is calculated
either to relocate that resource to more restricted uses or to
subject public uses to the self-interest of private parties.
Id. at 86 (quoting J. Sax, The Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention, 68 Mich. L. Rev. 473, 490 (1970)). The Court
therefore declined to create the littoral right requested by the lakeshore owners.
Their littoral rights do not include the right to exclude the public from that
portion of the exposed lake bed lying below the OHWM. Id.
[21] Gunderson argues that land is either submerged or it is not, and asserts he owns
whatever is not under water at any given moment. 9 We find persuasive the
9
Gunderson also relies on Bainbridge as limiting the public right in navigable waters, asserting the public right
is for passage, navigation, and commerce . . . . No more, no less. (Amended Br. of Appellants at 26.)
However, as noted supra, Bainbridge is inapplicable here, as its holding governs riparian rights along a river for
which there was no shore, not lake-based riparian rights. Compare Kivett, 95 N.E.2d 145 (regarding the use

Michigan Supreme Courts analysis in Glass v. Goeckel, 703 N.W.2d 58 (Mich.
2005), rehg denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174 (2006). It
addressed a dispute similar to that before us i.e., whether the public trust land
extends up to the ordinary high water mark or whether, as Gunderson argues, it
applies only to land that is actually under water at any particular moment.
[22] The Glass Court addressed the established distinction in public trust
jurisprudence between public rights (jus publicum) and private title (jus privatum).
Id. at 69. It noted:
Cases that seem to suggest, at first blush, that the public trust
ends at the low water mark actually considered the boundary of
the littoral owners private property (jus privatum) rather than the
boundary of the public trust (jus publicum). Because the public
trust doctrine preserves public rights separate from a landowners
fee title, the boundary of the public trust need not equate with the
boundary of a landowners littoral title. Rather, a landowners
littoral title might extend past the boundary of the public trust.
Our case law nowhere suggests that private title necessarily ends
where public rights begin. To the contrary, the distinction we
have drawn between private title and public rights demonstrates
that the jus privatum and the jus publicum may overlap.
Id. at 69-70. See also State v. Korrer, 148 N.W. 617, 623 (Minn. 1914) (even if a
riparian owner holds title to the ordinary low water mark, his title is absolute
of resources protected by public trust on a river) with Lake Sand, 120 N.E.2d 714 (regarding the use of
resources protected by public trust on a lake); and compare Ind. Code art. 14-29 (regulating navigable rivers,
streams, and waterways) with Ind. Code art. 14-26 (regulating lakes and reservoirs).

only to the ordinary high water mark; the intervening shore space between high
and low water mark remains subject to the rights of the public); Shaffer v.
Baylors Lake Assn, Inc., 141 A.2d 583, 585 (Pa. 1958) (subjecting private title
held to low water mark to public rights up to high water mark); Bess v. Humboldt
Co., 5 Cal. Rptr. 2d 399, 401 (Cal. Ct. App. 1992) (noting that it is well
settled that riparian title to the low water mark remained subject to the public
trust between high and low water marks).
[23] Establishing property rights based on the OHWM attempts to account for the
fact that water levels in the Great Lakes fluctuate. Glass, 703 N.W.2d at 71.
This fluctuation results in temporary exposure of land that may then remain
exposed above where water currently lies. Id. This land, although not
immediately and presently submerged, falls within the ambit of the public trust
because the lake has not permanently receded from that point and may yet
again exert its influence up to that point. Id. The Glass Court noted the
precise location of the ordinary high water mark at any given site on the shores
of our Great Lakes remains a question of fact[.] Id. at 73.
[24] As to the scope of the public trust rights, the Glass Court held that walking
along the shore, subject to regulation (as is any exercise of public rights in the
public trust) falls within the scope of the public trust. Id. As trustee, the state
must preserve and protect specific public rights below the ordinary high water
mark and may permit only those private uses that do not interfere with these
traditional notions of the public trust. Id. Yet its status as trustee does not
permit the state to secure to itself property rights held by littoral owners. Id.
[25] The Glass Court determined
walking along the lakeshore is inherent in the exercise of

traditionally protected public rights. Our courts have
traditionally articulated rights protected by the public trust
doctrine as fishing, hunting, and navigation for commerce or
pleasure. In order to engage in these activities specifically
protected by the public trust doctrine, the public must have a
right of passage over land below the ordinary high water mark.
Indeed, other courts have recognized a right of passage as
protected with their public trust. We can protect traditional
public rights under our public trust doctrine only by
simultaneously safeguarding activities inherent in the exercise of
those rights. Walking the lakeshore below the ordinary high
water mark is just such an activity, because gaining access to the
Great Lakes to hunt, fish, or boat required walking to reach the
water.
Id. at 73-75 (citations omitted). The Glass Court concluded with two caveats:
By no means does our public trust doctrine permit every use of

the trust lands and waters. Rather, this doctrine protects only
limited public rights, and it does not create an unlimited public
right to access private land below the ordinary high water mark.
The public trust doctrine cannot serve to justify trespass on
private property. Finally, any exercise of these traditional public
rights remains subject to criminal or civil regulation by the
Legislature.
Id. at 75 (citation omitted). 10
10
We acknowledge some other Great Lakes courts have been more protective of private property rights. See
e.g., State ex rel. Merrill v. Ohio Dept of Nat. Res., 955 N.E.2d 935 (Ohio 2011), where Lake Erie property

[26] Following the holding and reasoning in Glass, we conclude Gundersons private
rights are able to co-exist with those rights of the public trust. Therefore, the
land at issue below the OHWM is open to limited public use, such as gaining
access to the public waterway or walking along the beach, as described in Glass.
Location of the OHWM

[27] The trial court determined the State holds in public trust the land below the
OHWM, as defined by 312 Ind. Admin. Code 1-1-26(2) [sic], and that
Gunderson cannot unduly impair the protected rights and uses of the public
when the titles to the land overlap. (Appellants App. at 28.) Gunderson
argues at length that the State cannot, by regulation, take property or determine
boundaries because its statutory authority does not permit it. The State argues
it has authority to determine the scope of the public trust.
[28] In Shively v. Bowlby, 152 U.S. 1, 41 (1894), the United States Supreme Court
decided when there was no administratively-set OHWM, there existed a
common-law OHWM. In 1995, the DNR enacted 312 IAC 1-1-26(2), which
reads: Ordinary high watermark means . . . the shore of Lake Michigan at
owners sought a declaration that they held title to the land between the ordinary high-water mark and the
actual legal boundary of their properties as defined by their deeds, and that the public trust did not include
nonsubmerged lands. The Ohio Supreme Court determined the territory of Lake Erie held in trust by the
state for the people extends to the natural shoreline, which is the line at which the water usually stands
when free from disturbing causes. Id. at 950. This court has a history of protecting property rights, and
our decision today continues that long-standing precedent. Id. at 949. However, Merrill is distinguishable
because the holding relied upon long-established Ohio precedent and Ohio state law which specifically stated
the location of the property line in relation to Lake Erie, neither of which we have in this case.

five hundred eighty-one and five-tenths (581.5) feet I.G.L.D., 11 1985 (five
hundred eighty-two and two hundred fifty-two thousandths (582.252) feet
N.G.V.D., 12 1929). (footnotes added)
[29] Alliance-Dunes argues the DNR is without authority to set the OHWM as it
did in 312 IAC 1-1-26(2). Regulations set forth by administrative boards must
be reasonable and reasonably adapted to carry out the purpose or object for
which these boards were created. Potts v. Review Bd. of Indiana Empt Sec. Div.,
438 N.E.2d 1012, 1015 (Ind. Ct. App. 1982). If the rules are in conflict with
the states organic law . . . they are invalid. Id. We hold 312 IAC 1-1-26(2) is
in conflict with well-established case law regarding the states ability to regulate
the shores of Lake Michigan.
[30] In Lake Sand we held: The state in its sovereign capacity is without power to
convey or curtail the right of its people in the bed of Lake Michigan. 120 N.E.
at 716. As the OHWM prior to 1995 was the common law OHWM as held in
Shively, 152 U.S. at 41, the DNRs staking the OHWM at the measurements set
forth in 312 IAC 1-1-26(2) most certainly conveyed or curtailed the rights of the
people of Indiana in Lake Michigan. Therefore, that portion of the Indiana
11
International Great Lakes Datum (IGLD) is a reference system by which Great Lakes water levels are
measured. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. at 58 n.43.
12
NGVD stands for National Geodetic Vertical Datum. http://www.acronymfinder.com/National-
Geodetic-Vertical-Datum-(NGVD).html (last visited July 27, 2016).

Administrative Code is invalid, and the OHWM remains that defined by
common-law. 13
Gundersons Northern Boundary

[31] Gunderson asserts the deed establishes Lake Michigan as the northern
boundary of the Gunderson Property. The trial court found the Gunderson
deed, 14 the plat to which it refers, and a survey
reference no northern dimension other than that the lots are

within Section 15. As a matter of interpretation, and common
sense, if a lot is carved from within a section, the boundaries of
that lot can be no greater than those of the section from which it
was carved. Therefore, this Court finds that the Gundersons
13
The factors used to define OHWM under the common law are also found in 312 IAC 1-1-26(1). Compare
Glass, 703 N.W.2d at 72:
[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 vegetation, or other easily recognized characteristic. And where the bank or shore at any
particular place is of such a character that is impossible or difficult to ascertain where the point of
ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same
stream or lake to determine whether a given stage of water is above or below ordinary high-water
mark.
(quoting Diana Shooting Club v. Hustin, 156 Wis. 261, 272, 14 N.W. 816 (1914)) with 312 IAC 1-1-26(1):
Ordinary high watermark means the following:
(1) The line on the shore of a waterway established by the fluctuations of water and indicated by
physical characteristics. Examples of these physical characteristics include the following:
(A) A clear and natural line impressed on the bank.
(B) Shelving.
(C) Changes in character of the soil.
(D) The destruction of terrestrial vegetation.
(E) The presence of litter or debris.
14
The deed Gunderson designated is the deed from Don and Bobbie Gunderson to the Don H. Gunderson
Living Trust, (App. at 109), not the deed originally conveying the land to the Gundersons.

deed conveyed no title north of Section 15s northern boundary.
However, this Court notes that it is without evidence showing
where the northern boundary of Section 15 currently lies in
relation to the Gundersons lots and the OHWM.
(Id. at 26.) We acknowledge evidence that notes an 1829 survey says the lots
run to Lake Michigan and set post. 15 (Appellants App. at 589) (footnote
added). A 1984 survey indicates the northern boundary of the lots in the plat is
LAKE EDGE. (Id. at 127.) While we agree with the logic, we diverge
slightly from the trial courts finding based on the evidence in the record before
us.
[32] The designated evidence indicates the boundary of Section 15 is Lake
Michigan. We held above, based on Glass, Gundersons property rights overlap
with those of the public trust. Therefore, the northern boundary of
Gundersons property is the ordinary low water mark, subject to the publics
rights under the public trust doctrine up to the OHWM. See Glass, 703 N.E.2d
at 69-70 (regarding overlap of jus privatum and jus publicum); see also Korrer,
148 N.E. at 623 (intervening shore space between ordinary low and ordinary
high water marks are property of land owner, subject to the publics rights
thereto); Shaffer, 141 A.2d at 585 (private title subject to public rights between
ordinary low and ordinary high water marks); and Bess, 5 Cal. Rptr. 2d at 401
15
The meaning of set post is unclear from the record but, based on the context, it would seem the term
indicates the demarcation of the property line. Based on the 1984 survey, no physical post exists.

(private title subject to public rights between ordinary low and ordinary high
water marks).
Conclusion
[33] We affirm the trial courts findings regarding the nature and scope of the public
trust as it relates to Lake Michigan. However, we reverse the trial courts
determination of the OHWMs location.
[34] Gunderson owns legal title up to the northern boundary of Section 15, and the
State holds the land below the OHWM as defined at common law. The
designated evidence consistently indicates the northern boundary of Section 15
is Lake Michigan. Therefore, we reverse the trial courts finding northern
boundary of Section 15 is unknown, and hold the northern boundary of Section
15 is the ordinary low water mark, subject to the publics rights as part of the
public trust.
[35] Affirmed in part and reversed in part.
Baker, J., and Brown, J., concur.

Lake Michigan Beach Ownership

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Lake Michigan Beach Ownership

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In the

Indiana Supreme Court

IN THE INDIANA SUPREME COURT

CAUSE NO. _________________

DON H. GUNDERSON AND BOBBIE J. )

APPELLANTS PETITION TO TRANSFER

Michael V. Knight (22066-45)

Mark L. Phillips (5860-46)

The banks belong to the riparian owner, and he

Id. Further, use of the land is a trespass.

The right to the use of the river as a highway for

private land has always been a trespass. Id.

abutting Lake Michigan contrary to these precedents?

TABLE OF AUTHORITIES .......................................................................................................... 4

BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER ............................ 7

II. The Opinion Conflicts with Supreme Court precedent....................................................... 9

a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned................ 9

b. Conflicts with the plain meaning rule. .................................................................... 10

i. Conflicts with the Northwest Ordinance of 1787. ........................................... 11

v. Conflicts with Indiana Code 14-22-14-4....................................................... 12

vi. Conflicts with the Submerged Lands Act, 43 U.S.C. 1301.............................. 12

III. Everything else is a red herring. ..................................................................................... 15

WORD COUNT CERTIFICATE ................................................................................................. 19

CERTIFICATE OF SERVICE ..................................................................................................... 20

Indiana Constitution, Article 1, 21..............................................................................................18

U.S. Const. Amendment V. ...........................................................................................................18

Illinois Cent. Railroad Co., v. Illinois,

Lane v. United States,

Martin v. Waddells Lessee,

PPL Montana, LLC v. Montana,

Ctr. Townhouse Corp. v. City of Mishaw.,

Donovan v. Grand Victoria Casino & Resort, L.P.,

ESPN, Inc., v. University of Notre Dame Police Department,

Ind. Dept. of Conservation v. Kivett,

Lake Sand v. State,

Merrill v. Ohio Dept. of Natural Resources,

Northwest Ordinance of 1787............................................................2, 9, 11, 12, 14, 15, 16, 17, 19

Ind. Code 14-18-6 ......................................................................................................................16

Ind. Code 14-22-14-4............................................................................................................11, 13

Ind. Code 14-26-2-1..............................................................................................................12, 19

Ind. T.R. 56(C)...............................................................................................................................10

312 I.A.C. 1-1-26 ..........................................................................................................................8

312 I.A.C. 1-1-29.5 .....................................................................................................................11

312 I.A.C. 1-1-24 ........................................................................................................................11

BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER

Property and all similar property in Indiana. Id.

All parties appealed.

Lake Michigan. (Gunderson at 1060, 33).

conflicts with a limited right for passage.

occupying public or the riparian owners.

rights for private property, including land abutting navigable waterways.

regardless of the location of navigable waters.

Underwood v. Bunger, 70 N.E. 3d 338, 341 (Ind. 2017).

II. The Opinion Conflicts with Supreme Court precedent.

a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned.

(1868) which held in 1868 that:

The banks belong to the riparian owner, and he

Id. Further, use of the land is a trespass.

The right to the use of the river as a highway for

Lands Act infra.

Northwest Ordinance to distinguish navigable waters so.

v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950).

grant states nothing about the abutting land. Id.

b. Conflicts with the plain meaning rule.