MICHIGAN CITY – Just days after the Indiana Senate approved a bill to spell out the rights of public recreational use of the Lake Michigan shore, environmental groups and municipalities are warning of another bill that could undermine those efforts and take away local control of the shoreline.
"Michigan CIty Mayor Ron Meer has joined with the Long Beach Community Alliance and Save the Dunes to warn that Indiana Senate Bill 581 poses a grave danger for the Indiana public’s rights on the shoreline, as well as the management of upland dunes, affecting more than just Lake Michigan’s coastal communities," a statement from the two non-profits said.
Meer calls the bill a danger to public rights.
"The City of Michigan City is vehemently opposed to Indiana Senate Bill 581," Meer said. "Michigan City has taken great strides in the protection and restoration of our natural resources while providing public access to Lake Michigan and the lakeshore to residents and visitors.
"We have made significant investments on park property, in areas which would become 'Lake Michigan Shore Zone,' under Senate Bill 581. The new zone will allow disturbance of the restored and protected areas."
Less than than two weeks after the U.S. Supreme Court affirmed the Indiana Supreme Court’s landmark ruling in Gunderson v. State that the state owns the Lake Michigan shore in trust for the public, "the Indiana Senate on Feb. 21 adopted SB 581, which threatens to undo that decision and put the public’s right to use and enjoy the shore in jeopardy," Patricia Sharkey of the Long Beach Alliance said.
"Having lost at every level of litigation from the trial court to the U.S. Supreme Court, the same wealthy lakefront homeowners, developers, and out-of-state public trust challengers ... are now funding a lobbying effort behind SB 581 in the General Assembly to circumvent the Gunderson decision and, by a backdoor, are again trying to privatize the Lake Michigan public trust beach and to open it to reckless development," she said.
SB581 creates a "new and confusing unregulated zone on the Lake Michigan shore," according to Sharkey. "This zone would extend both above the ordinary high water mark onto municipally owned lots, park land and dunes; and below the ordinary high water mark onto the public beach.
"The bill expressly grants 'private property owners' the exclusive right to private construction – including more vertical seawalls that contribute to beach erosion – and recreational activities on these public lands."
Meer thinks that could destroy environmentally sensitive areas.
"As part of the Sheridan Beach Land Management Plan, the Michigan City Park Department issues license agreements to allow homeowners to remove invasive species and non-native plant species on the park-owned esplanade adjacent to their private property, furthering our restoration goals," he wrote.
"The projects are completed at the sole expense of the homeowners. Since 2005, 26 homeowners have taken advantage of the restoration license program, improving the dune habitat with no burden to our taxpayers. Senate Bill 581 would allow for development in these areas, which could potentially destroy the restored dune habitat."
Another city program was discontinued in May 2017 over similar concerns, Meer said.
"The Michigan City Park Board suspended the beach path license program, which allowed homeowners to create paths from their private property line, through park property, to the beach," he said.
"Currently there are upwards of 70 beach paths between the Park Department’s designated beach access points and private homes throughout the dunes. These social trails have destroyed soil-stabilizing dune vegetation which has resulted in exposed sand that is blowing and forming nuisance dunes.
"These large dunes are moving south, away from Lake Michigan, at an alarming pace. The sand is already covering the foundations of some private homes and threatening first story porches and rooms on others," Meer said.
SB 581 also redefines the historic “ordinary high water mark,” in direct contravention of the Indiana Supreme Court’s ruling and federal law," Sharkey said, "to rely upon an arbitrary and invisible elevation on the beach which would greatly reduce the state-owned public trust shore and engender more confusion and litigation."
“Right now, Hoosiers need to be asking their elected representatives — Will they respect the law, local government control, and Hoosier’s historic rights to enjoy the Lake Michigan shore?" Sharkey said.
"Or will those elected representatives enact a radical bill like SB 581 that would give away the Indiana Lake Michigan shore to a privileged few, trample over public rights and the Indiana Supreme Court’s decision, and undermine coastal communities’ authority to protect our parks and beaches?”
Granting adjacent private property owners a private right to use public land is in direct contravention of the Gunderson decision, Sharkey said. It also violates the Equal Protection Clause of the U.S. Constitution, and the Public Trust Doctrine. Furthermore, Senate Bill 581 "strips local governments of the authority to protect their own municipal parks and dune property and to apply zoning laws within their jurisdiction."
That part also worries Meer.
The city has spent a lot of money to protect the dunes, and SB 581 threatens those programs, he said.
"Senate Bill 581 would allow for private beach paths, exacerbating the current erosion conditions," Meer said. "Senate Bill 581 supersedes our current local ordinances and rules which were put in place to protect and preserve our natural resources while providing public access and promoting public safety."
Natalie Johnson, executive director of Save the Dunes, warns “Senate Bill 581 threatens to remove the ordinances Indiana’s coastal communities have adopted to maintain the natural dune buffer, limit erosion, and deter destructive development activities, such as the trampling of dune vegetation and leveling of the dune topography.
"Essentially, the bill strips local governments of the authority to protect their own municipal parks and dune property, and to apply zoning laws within their jurisdiction. This opens a whole new threat to such a critical asset to our state.”
The Long Beach Community Alliance, Save the Dunes and the Great Lakes Alliance are all opposed to the bill, but favor another, SB 553, which also passed the Senate and is moving to the House.
The bill, authored by state Sen. Karen Tallian, D-Ogden Dunes, "would preserve both public and private rights. It responds to the Indiana Supreme Court’s call for the General Assembly to enumerate the types of recreational uses that are traditional and ordinary on the Lake Michigan beach and are protected under the Public Trust Doctrine," Johnson said.
"SB 553 would not touch local government authority above the Ordinary High Water Mark and would allow the Indiana Department of Natural Resources to delegate 'time, place and manner' regulatory authority – regulating things like bon fires, dog walking, fireworks, and motorized vehicles on the beach – to the coastal local governments best able to police the beaches..."
While both bills will be heard in the House in the near future, "it is essential to note the two have extremely different impacts on the Lake Michigan shore and Hoosier’s rights to use the shore," Sharkey said.
"After five years of litigation, Long Beach Community Alliance and Save the Dunes believe the public’s rights on the public trust shore of Lake Michigan are a matter of settled state and federal law, and it is imperative that Hoosiers speak out against SB 581."
"In 2018 the Indiana Supreme Court, in Gunderson v. State, unanimously held that the shore of Lake Michigan has been public land since Indiana’s statehood and that Indiana holds that shoreland 'in trust' for the people of the state. On Feb. 19 of this year, the U.S. Supreme Court declined to hear the Gunderson petition for a writ of certiorari, thus ending any further appeals of the case and solidifying the decision as Indiana law.
"Our interpretation of Senate Bill 581 is that it clearly contradicts the Indiana Supreme Court’s decision."
Saving the dunes
Since 2012, Michigan City has spent nearly $629,050 on programs designed to protect and enhance natural areas or the Lake Michigan shoreline, with $148,000 of that in grant money. Projects, which could be threatened by SB 581, included:
2012 – Sheridan Beach Assessment, $40,000
2013 – Fedder's Alley Secondary Dune Restoration, $45,000
2014 – Sheridan Beach & Esplanade Land Management Plan, $27,000
2015 – Bismarck Hill Assessment, $28,050
2017 – Fedder's Alley Public Access Beach Boardwalks design & engineering, $100,000
2018 – Bismarck Hill Restoration Project, $300,000
2019 – Sheridan Beach Erosion Control & Public Beach Access, $89,000