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Save the Dunes opposes bill which would gut Lake Michigan shoreline access ruling

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The Long Beach Community Alliance (LBCA) and Save the Dunes are warning that Indiana Senate Bill 581 poses a grave threat to Indiana public’s rights on the shoreline as well as to the management of upland dunes, affecting more than just Lake Michigan’s coastal communities.

Coming on the heels of the news from the U.S. Supreme Court--which affirmed the Indiana Supreme Court’s landmark ruling in Gunderson v. State that the State of Indiana owns the Lake Michigan shore in trust for the public--on Feb. 21 the Indiana Senate adopted S.B. 581 which threatens to undo that decision and put the public’s right to use and enjoy the shore in jeopardy, LBCA and Save the Dunes said in a statement released on Wednesday.

“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, such as the Pacific Legal Foundation, who funded the Gunderson litigation, are now funding a lobbying effort behind S.B. 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,” the statement said.

S.B. 581 would specifically create a new and confusing unregulated “zone” on the Lake Michigan shore, which would extend above the ordinary high water mark onto municipally owned lots, park land, and dunes as well as below the ordinary high water mark onto the pubic beach.

The bill would expressly grant “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. It would also re-define the historic “ordinary high water mark,” in direct contravention of the Indiana Supreme Court’s ruling and federal law, 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,” LBCA member Patricia Sharkey said, “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? Or will those elected representatives enact a radical bill like S.B. 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 only adjacent private property owners a private right to use public land is in direct contravention of the Gunderson decision, violates the Equal Protection Clause of the U.S. Constitution, and also violates the Public Trust Doctrine,” the statement said. “Furthermore, S.B. 581 strips local governments of the authority to protect their own municipal parks and dune property and to apply zoning laws within their jurisdiction.”

“What began as a quietly introduced proposal expecting to go under the radar, S.B. 581 has now passed the Indiana Senate and is making its way to the House for hearing, raising heightened concerns from municipalities, the public and environmental organizations,” the statement added.

“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,” Save the Dunes Executive Director Natalie Johnson said. “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.”

Meanwhile, another bill, S.B. 553--which passed out of the Senate on Monday--would in contrast preserve both public and private rights, the statement said. “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.”

S.B. 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 below the Ordinary High Water Mark.

“While both S.B. 581 and S.B. 553 will be heard in the Indiana 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,” the statement 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 S.B. 581.”

 

Posted 2/28/2019

 
 
 
 

 

 

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