Assessing the Implications of Gunderson v. State for Lakefront Property Owners in Indiana
William W. Gooden†
Cale Addison Bradford‡
There is a scene in the movie Marley & Me where the main character, John, takes his dog, Marley, to a beach. The beach had a strict leash policy, prohibiting owners from letting their dogs run free on the sand and in the ocean. Earlier in the movie, despite Marley’s less-subtle attempt to use puppy eyes to guilt John, John resists taking Marley off the leash, fearing the glares he might get from his fellow beachgoers if Marley misbehaved. However, John, now years older and much wiser (or so the audience is led to believe), lets Marley off his leash. For about a minute, the audience sees shots of Marley running on the beach and splashing in the water, quashing any fears John may have had. But naturally, only seconds later, Marley runs in the shallow water and begins to relieve himself, to the disgust of everyone else on the shore.
Most lakefront property owners in Indiana know a “Marley” of their own. Although many lakefront property owners are happy to allow neighbors to pass along their shoreline and enjoy some of Indiana’s greatest natural resources, when dogs leave “gifts” on their shore or neighbors overstay their welcome, these property owners begin to contemplate what rights they have to exclude access to their shore. While some use scowls and verbal pleas to resolve these matters, others are forced to pursue litigation. That was the case in Gunderson v. State, a case where the parties were awash in a dispute over the public’s right to Lake Michigan’s shoreline.
The Gundersons owned property on the shore of Lake Michigan in Long Beach, Indiana. However, it was unclear how far their property boundary extended into Lake Michigan. When the Town of Long Beach passed an ordinance adopting an Indiana Department of Natural Resources (“DNR”) regulation setting that boundary short of the water’s edge, the Gundersons sued, arguing their property should extend to the water’s edge, wherever that might be at a given time. While the State defended the administrative boundary, two groups intervened in the case and argued the boundary should instead be the common law “ordinary high water mark,” which lies where “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.”
The case eventually reached the Indiana Supreme Court, which held the boundary extended to the common law ordinary high water mark, rather than the water’s edge or the administrative boundary set by DNR. The State holds title to the shore past the ordinary high water mark, holding it in trust for the benefit of the public—preserving its use and enjoyment for all Indiana residents. Although this holding is significant, the court’s treatment of an ancillary issue may have broader effects for all lakefront property owners in Indiana, not just those on Lake Michigan.
Although all parties in Gunderson, with the notable exception of the Gundersons themselves, agreed the public had some right to use the shore, they acknowledged Indiana law provided little guidance on the scope of that use. Therefore, the parties asked the court to clarify what activities the public may undertake consistent with the public trust doctrine. The parties pointed to other state courts, which had already decided the question. For example, in Glass v. Goeckel, the Michigan Supreme court held that those public rights included “fishing, hunting, and boating for commerce or pleasure.” A New Jersey court similarly found the public trust doctrine encompassed “navigation, fishing and recreational uses, including bathing, swimming and other shore activities.”
Despite persuasive case law from other states, the court refused to define the scope of public rights other than stating that “at a minimum” those rights include walking along the shore. Even within the context of walking, the court provided no specifics. The court did not clarify how long a person may walk across a property or whether he or she could stop, for example, to view a sunset. The court said only that “[t]here must necessarily be some degree of temporary, transitory occupation of the shore for the public to access the waters[.]” While the case may be a model for judicial restraint, the lack of clarity arguably creates unique challenges for lakefront property owners going forward.
While the case may be a model for judicial restraint, the lack of clarity arguably creates unique challenges for lakefront property owners going forward.
As the Gunderson court acknowledged, the permissibility of a given activity would depend on the Indiana General Assembly’s clarification of the issue through legislation. However, it is more likely the issue will be developed on a case-by-case basis in court or at the Indiana Natural Resources Commission, as the Legislature is unlikely to be able to anticipate the myriad of property disputes that might arise along lake shores. For lakefront property owners—especially those along Lake Michigan—this means they will likely need to resort to administrative action and/or litigation, like the declaratory relief sought by the Gundersons, to determine the extent of the public’s right to use the shoreline. Although many may want to avoid litigation, owning lakefront property near a “Marley” makes it a necessity.
If litigation does ensue, litigants may justifiably argue that Gunderson is lake-specific—meaning its holding has no relevance for disputes for inland state public freshwater lakes, or, more generally, other bodies of water. The Gundersons acknowledged the application of the public trust doctrine may be specific to the body of water. For example, the court limited its holding in Bainbridge v. Sherlock to cases involving the Ohio River. This treatment makes sense, given how waters ebb and flow may differ depending on the nature of the body of water.
Moreover, the public trust doctrine for other public freshwater lakes has been codified, in part. In 1947, the General Assembly passed the Lakes Preservation Act, which explicitly set forth the activities the public may undertake pursuant to the public trust, including using public freshwater lakes for fishing, boating, and swimming. However, that statute explicitly excludes Lake Michigan. The Legislature seemingly recognized that Lake Michigan is much different than say, Crooked Lake or Tippecanoe Lake, and thus should not be treated the same under the law. Similarly, the holding in Gunderson may fit well for Lake Michigan, with its large, walkable beaches, but not for smaller inland lakes that lack shoreline or clear places for individuals to walk.
Even if Gunderson were wholly applicable, each of the provisions in Indiana Code section 14-26-2-5 appear to address activities that take place on the water, rather than on the shoreline, which may fall within the public trust. The Lakes Preservation Act says nothing about sunbathing or fishing along the shore, for example. As a result, the Lakes Preservation Act in its current incarnation does not assist in clarifying the uncertainty Gunderson failed to resolve.
In sum, while Gunderson may have resolved one neighborhood dispute, it may have created many more by exposing the uncertainty in the public trust doctrine in Indiana, leaving the issue for another day. Lakefront property owners should be careful not to overreact or underreact to the decision and should carefully consider their property rights going forward.
† Partner, Clark, Quinn, Moses, Scott & Grahn, LLP; J.D. 1996, Indiana University Robert H. McKinney School of Law; B.A. 1992, Ball State University. A life-long “laker,” Mr. Gooden regularly handles legal issues involving lake issues, including property disputes and assisting clients in the Department of Natural Resources process.
‡ Associate Attorney, Clark, Quinn, Moses, Scott & Grahn, LLP; J.D. 2016, Indiana University Robert H. McKinney School of Law; B.A. 2013, Purdue University.
 Marley & Me (20th Century Fox 2008).
 90 N.E.3d 1171 (Ind. 2018).
 The Gundersons actually sold their property before the disposition of the case, but the Indiana Supreme Court sidestepped the standing issue by holding the case presented “questions of great public interest[.]” Id. at 1176 n.3 (quoting Matter of Lawrence, 579 N.E.2d 32, 37 (Ind. 1991)).
 The Gundersons initially sued the Town of Long Beach, but the Court of Appeals of Indiana held the State was a necessary party to the lawsuit. LBLHA, LLC v. Town of Long Beach, 28 N.E.3d 1077, 1091 (Ind. Ct. App. 2015). In response, the Gundersons filed a declaratory judgment action against the State. Gunderson, 90 N.E.3d at 1174.
 Gunderson, 90 N.E.3d at 1180–81.
 Glass v. Goeckel, 703 N.W.2d 58, 62 (Mich. 2005) (internal citations omitted).
 Gunderson, 90 N.E.3d at 1184–88.
 Glass, 703 N.W.2d at 65.
 Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355, 358 (N.J. 1984).
 Gunderson, 90 N.E.3d at 1187–89.
 Id. at 1188.
 The DNR publishes a list of public freshwater lakes in Indiana, which is available on its website. See Public Freshwater Lake – Legal & Average Normal Water Levels, Ind. Dep’t Nat. Resources, https://www.in.gov/dnr/water/5068.htm (last visited Apr. 18, 2018); see also Ind. Code § 14-26-2-24 (2018) (authorizing DNR to “maintain a nonrule policy statement that lists the public freshwater lakes in Indiana”).
 Gunderson, 90 N.E.3d at 1188.
 29 Ind. 364 (1868); Gunderson, 90 N.E.3d at 1183–84.
 Ind. Code §§ 14-25-2-1 to -11.
 Id. § 14-26-2-5.
 Id. § 14-26-2-1.