‘Landmark’ case kept judge busy

February 22, 2019

MICHIGAN CITY – La Porte County Superior Court Judge Richard Stalbrink knew that he had a “landmark case” on his hands in 2015.

The U.S. Supreme Court had ruled in 1892 that all Great Lakes’ waters and bottomlands up to the ordinary high water mark are owned by the states in trust for all citizens. Indiana became a state in 1816 and had been given trust to the shores of Lake Michigan.

Nearly 200 years later, Bobbie and Don Gunderson, who owned a lakefront home in Long Beach, sued the state for exclusive ownership and the right to exclude residents from the beach between their homes and the waters’ edge.

“This was a landmark case,” Stalbrink said Thursday, three days after the U.S. Supreme Court failed to hear an appeal of his ruling in favor of public access to the beach, a ruling which had already been upheld by a state Appellate Court and the Indiana Supreme Court.

“I spent an inordinate amount of time on this in 2015. It was not one of those cases where you’re dealing with surveys from a week ago. I was dealing with surveys from 1787, when Indiana was one of the Northwest Territories; and from 1816, when it became a state. The whole thing was like a history lesson,” the judge said.

“From the beginning I knew this was a huge case for Indiana, a case of first impression” – a legal term meaning the issue raised had not been argued in court before.

And huge cases take a lot of time.

“I spent three to four months researching this one,” Stalbrink said. “I even started doing research before the first arguments. Normally you take 30 days to do that research, but for this one, I told them I needed 90 days, and both sides understood.

“I had a Valparaiso University law clerk helping me with research and we talked about this case every day. Then I wrote a 22-page opinion, and another 20-page order on the motions and evidence, what could be considered.”

On July 24, 2015, Stalbrink issued his ruling, hailed by the group For the Love of Water, as “a near text-book-perfect decision on the public trust doctrine.”

The ruling confirmed that the beach below the ordinary high water mark to the waters’ edge belongs to the state and is subject to a “paramount public trust that cannot be interfered with or impaired by lakefront owners,” Stalbrink wrote.

“Moreover, this court finds the idea that Indiana, with such a limited amount of shoreline, would restrict and in effect deny its citizens access to such an amazing natural resource, 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.”

Though he wrote it was a matter of common sense, the judge actually took quite a while before reaching a decision, he said.

“When you get a case like this you might have a feeling in the beginning, but you must keep an open mind. You can’t decide until you get all of the evidence that can be admissible. You must consider every argument. Then you decide. And once you reach a conclusion, you write an opinion to support it.”

Because of fluctuations in water level, the ruling also affirmed that the state owns the land from the water’s edge to the ordinary high water mark, as set by the U.S. Army Corps of Engineers.

That was important on Lake Michigan – where water levels have fluctuated as much as 6 feet since the Army Corps of Engineers started recording them in 1860. And for Long Beach, where in the late 1980s, water levels and waves threatened lakefront homes, compared to 2013, when the distance from the water to those homes was several dozen yards.

”Private lot owners cannot impair the public’s right to use the beach below the OHWM for these protected purposes,” Stalbrink wrote in his decision. “To 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 Indiana’s limited access to one of the greatest natural resources in this State.”

Save the Dunes Council issued a statement after the ruling saying, “as Judge Stalbrink recognized in his opinion, the lakeshore below the ordinary high-water mark is a critically important public resource. If the beachfront residents had prevailed in their lawsuits, the public’s historic right to freely use the Indiana lakeshore would be gutted and our invaluable connection to the shore of Lake Michigan would be forever changed.”

The plaintiffs disagreed and continued appealing all the way to the Supreme Court. But this week, nearly five years after taking the case, Stalbrink can be assured he got it right.

“The wheels of justice, especially when a case goes through so many courts, can move slowly,” he said.

“I was confident in what I wrote, and what I researched, and in my opinion, but a judge never tries to predict what any other court will do.”

For Stalbrink, having one of his cases go so far had never happened.

“I’ve had several cases of first impression before, and several that went to the Indiana Supreme Court, but this was the first to reach the U.S. Supreme Court,” he said.

“Any judge is happy when you are affirmed in your decision.”

Many others are happy about it, too.

The original decision was lauded by the Long Beach Community Alliance – formed in 2015 just after the Gundersons filed suit and still dedicated to preserving public access to the beach.

“We are fighting for our children and grandchildren, and for generations beyond, to be able to use the beach as we have since Long Beach was founded in the 1920s,” Patrick Cannon, an Alliance board member, said at the time.

That’s something Stalbrink can understand.

“From my office in the Michigan City Courthouse, I can see the lighthouse and Lake Michigan; it’s always right here. It’s so close and it’s such a big part of what Michigan City is,” the judge said. “I get a kick sometimes when someone identifies me as the judge who decided the beach access case.”

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