Guest authors: Kim Ferraro and Kacey Cook, attorneys at the Conservation Law Center
In the 2018 Gunderson case, the Indiana Supreme Court held that Indiana’s Lake Michigan beaches are, and always have been, held in trust by the State as public trust resources, with State ownership extending from the natural ordinary high water mark (where the dune grass starts) all the way to the submerged lakebed.
Save the Dunes, Indiana’s oldest environmental organization, represented by the Conservation Law Center, intervened in the Gunderson case to ensure those public trust rights are protected. Since then, we have been fighting together to protect those same public lands so that future generations will be able to enjoy them too.
The latest battle has moved to the regulatory arena, where we are stepping in to make sure that the Hoosier State actually enforces its own public trust laws and regulations.
Presenting unique challenges, Indiana’s Lake Michigan’s shoreline hosts highly industrialized ports and factories alongside sections of pristine dune ecosystems sheltered within the state and national park. The cause of erosion along this stretch of beach. Who is responsible for addressing it has long been a source of conflict and controversy. The Port of Indiana’s interruption of natural sand accumulation has exacerbated erosion along the beaches to its west, a trend made worse by increasingly severe and frequent storms and fluctuations in the Lake’s water levels.
The Town of Ogden Dunes, which sits along this impacted stretch of beach, wants to finish building a massive armor-stone revetment, which, if allowed, would span the Town’s one-mile stretch of beach and effectively frustrate public access and use along the shoreline. Unfortunately, the Indiana DNR issued a permit allowing completion of the stone wall in June of this year.
Before approving seawalls and revetments like this, DNR is required by state law and regulation to assess the impacts on navigation, the environment, neighboring properties, and coastal dynamics. The DNR is also required to ensure that these hard structures will not violate the public trust, and if they do, that compensatory measures are taken to mitigate those violations. None of that happened with DNR’s approval of the Town’s stone blockade.
Accordingly, Save the Dunes appealed DNR’s approval for failing to evaluate the serious threats the structure imposes on the public trust and surrounding ecosystems. In fact, the agency could not have evaluated these impacts because it failed to determine the location of the boundary between public trust and private land, otherwise known as the natural ordinary high water mark.
The National Park Service also opposes the Town’s plans because of the devastating impact on the surrounding Indiana Dunes National Lakeshore. Based on extensive study of the problem, the NPS confirmed that annual beach nourishment is a more sustainable alternative that would protect the lakeshore and its fragile ecosystem.
Save the Dunes’ appeal of DNR’s decision is vitally important.
If Indiana’s public trust laws are not translated into sound regulation and effective enforcement, our collective rights to enjoy Lake Michigan, its beaches, and its natural beauty will be reduced to a centuries-old promise made hollow.
For more information on the adverse impacts of seawalls, revetments, and other shoreline hardening structures in the Great Lakes and available alternatives, click here (PDF).
For more information on the Conservation Law Center, Save the Dunes, and the Ogden Dunes case, visit: https://conservationlawcenter.org/blog/press-release-save-the-dunes-challenges-state-for-violating-the-public-trust.
For more information on the Gunderson case and the Indiana Public Trust Doctrine, visit: https://conservationlawcenter.org/publictrust.