IN THE INDIANA SUPREME COURT CAUSE NO.

Transcription

1 Filed: 4/10/2017 1:44:37 PM IN THE INDIANA SUPREME COURT CAUSE NO. DON H. GUNDERSON AND BOBBIE J. ) GUNDERSON, CO-TRUSTEES OF THE ) DON H. GUNDERSON LIVING TRUST ) Appeal from the DATED NOVEMBER 14, 2006, ) LaPorte Superior Court No. 2 ) Trial Court Cause No. 46D PL-606 Appellants-Cross Appellees, ) ) The Honorable Richard R. Stalbrink, Jr. v. ) Judge ) STATE OF INDIANA, INDIANA DEPT. ) OF NATURAL RESOURCES, ) ) Appellees, ) Court of Appeals ) Cause No. 46A PL-1116 and, ) Consolidated herein with ) Cause No. 46A PL-84 ALLIANCE FOR THE GREAT LAKES, ) SAVE THE DUNES, ) LONG BEACH COMMUNITY ) ALLIANCE, ) PATRICK CANNON, JOHN WALL, ) DORIA LEMAY, MICHAEL SALMON ) and, THOMAS KING ) Appellees-Cross Appellants. ) APPELLANTS PETITION TO TRANSFER Michael V. Knight ( ) Barnes & Thornburg LLP 700 1st Source Bank Center 100 N. Michigan Street South Bend, IN (574) ; michael.knight@btlaw.com Mark L. Phillips ( ) Newby, Lewis, Kaminski & Jones, LLP 916 Lincolnway LaPorte, IN (219) ; mlphillips@nlkj.com Attorneys for Appellants 1

2 QUESTION PRESENTED The exact question, who has a right to use private land abutting Lake Michigan s navigable waters, the owner and/or the public, is one of first impression 1 and necessary for this Court s determination. On one hand this is private property; on the other, it abuts Lake Michigan. In 1868 this Court in Bainbridge v. Sherlock, 29 Ind. 364, 367 (1868) held that: The banks belong to the riparian owner, and he owns an absolute fee down to the low water mark. Id. Further, use of the land is a trespass. The right to the use of the river as a highway for passage is distinct from the right to land for the purpose of receiving or discharging freight and passengers. The former is secured to the public; the latter must be exercised with reference to the rights of the riparian owner. Id. at 369 (concerning the Ohio River, a navigable waterway). Unauthorized use of the abutting private land has always been a trespass. Id. Donovan v. Grand Victoria Casino & Resort, L.P. 934 N.E.2d 1111, 1113 (Ind. 2010) held that one of the time-honored principles of property law is the absolute and unconditional right of private property owners to exclude from their domain those entering without permission. The Northwest Ordinance stated: the navigable waters leading into the Mississippi and St. Lawrence... shall be common highways, and forever free. Ind. Dep t. of Conservation v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950). Plainly, only navigable waters are free for public use. Is the Court of Appeals decision permitting use and occupation on private property abutting Lake Michigan contrary to these precedents? 1 Gunderson v. State, 67 N.E.3d 1050, 1056 (Ind. Ct. App. 2016) ( Gunderson ). 2

3 TABLE OF CONTENTS Page QUESTION PRESENTED... 2 TABLE OF CONTENTS... 3 TABLE OF AUTHORITIES... 4 BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER... 7 ARGUMENT... 8 I. Standard of Review... 9 II. The Opinion Conflicts with Supreme Court precedent... 9 a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned... 9 b. Conflicts with the plain meaning rule i. Conflicts with the Northwest Ordinance of ii. Conflicts with PPL Montana, LLC v. Montana, 132 S.Ct (2012) iii. Conflicts with Martin v. Waddell s Lessee, 41 U.S. 367, 413 (1842) iv. Conflicts with Pollard v. Hagen, 44 U.S. 212, 230 (1845) v. Conflicts with Indiana Code vi. Conflicts with the Submerged Lands Act, 43 U.S.C vii. Conflicts with Doemel v. Jantz, 193 N.W. 393, 398 (Wisc. 1923) viii. Conflicts with Lake Sand v. State, 68 Ind. App. 439 (1918) ix. Conflicts with State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950) III. Everything else is a red herring IV. Finally, any scope adjustment must comport with the precedent that private property cannot be taken without just compensation CONCLUSION WORD COUNT CERTIFICATE CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES Page(s) Constitutional Provisions Indiana Constitution, Article 1, U.S. Const. Amendment V Federal Cases Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387 (1892)...10, 13, 15 Lane v. United States, 274 F. 290 (5th Cir. 1921)...16 Martin v. Waddell s Lessee, 41 U.S. 367 (1842)...12 Mitchell v. Smale, 140 U.S. 406 (1891)...16, 17 Oregon v. Corvallis, 429 U.S. 363 (1977)...14, 16, 17 PPL Montana, LLC v. Montana, 132 S.Ct (2012)...12, 16, 17, 19 Pollard v. Hagen, 44 U.S. 212 (1845)...12, 13 Shively v. Bowlby, 152 U.S. 1 (1894)...17 State Cases Bainbridge v. Sherlock, 29 Ind. 364 (1868)...2, 10, 16, 17, 19 Ctr. Townhouse Corp. v. City of Mishaw., 882 N.E.2d 762 (Ind. Ct. App. 2008)...18 Doemel v. Jantz, 193 N.W. 393 (Wisc. 1923)...14, 16, 17, 19 4

5 Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111 (Ind. 2010)...2 ESPN, Inc., v. University of Notre Dame Police Department, 62 N.E.3d 1192 (Ind. 2016)...11 Glass v. Geockel, 703 N.W.2d 58 (Mich. 2005)...8, 15, 17 Gunderson v. State, 67 N.E.3d 1050 (Ind. Ct. App. 2016)...2, 17 and passim Hilt v. Weber, 233 N.W. 159 (Mich. 1930)...17 Ind. Dep t. of Conservation v. Kivett, 95 N.E.2d 145 (Ind. 1950)...2, 11, 14, 16 and passim Lake Sand v. State, 68 Ind. App. 439 (1918)...15, 16, 17, 19 Larson v. Sando, 508 N.W.2d 782 (Minn. App. 1993)...15 Merrill v. Ohio Dep t. of Natural Resources, 130 Ohio St. 30, 955 N.E.2d 935 (2011)...15 Parkinson v. McCue, 831 N.E.2d 118 (Ind. Ct. App. 2005)...17 Seamon v. Smith, 24 Ill. 521 (Ill. 1860)...15 Underwood v. Bunger, 70 N.E. 3d 338 (Ind. 2017)...10, 11 Federal Statutes Northwest Ordinance of , 9, 11, 12, 14, 15, 16, 17, 19 Submerged Lands Act, 43 U.S.C , 10, 13, 14 and passim State Statutes Ind. Code Ind. Code , 13 Ind. Code , 19 5

6 Rules Ind. T.R. 56(C)...10 Regulations 312 I.A.C I.A.C I.A.C

7 BACKGROUND AND PRIOR TREATMENT OF ISSUES ON TRANSFER Gunderson presented three facts, the deed, the Plat and surveys by Charles Hendricks (App. 109, 112, 127, 134). Based on these three facts, Gunderson asked the Trial Court to declare that the Property at issue is bounded by the navigable waters of Lake Michigan and that the public had no right to use the Property not covered by Lake Michigan s waters. (App. 14, 17). The Trial Court concluded that the Property was bordered by the northern boundary of Section 15 (App. 16, 18, 52, 57); that the State holds lands below the OHWM at feet (See, 312 I.A.C (2) in trust (App , 55-57); and, the public may use the land below the OWHM for swimming and walking on the beach (App , 65); for commerce, boating, swimming, sunbathing and other beach sport activities (App 31, 66); and that the public trust includes and protects recreational activities, such as swimming, picnicking, sunbathing, or walking, and all other activities incident thereto, along the shores of Lake Michigan. (App. 32). In short, the Trial Court found an unlimited public right to occupy the Property and all similar property in Indiana. Id. All parties appealed. The Court of Appeals held that the northern boundary is the ordinary low water mark of Lake Michigan (Gunderson at 1060, 32); that private rights co-exist with those of the public trust [and] the land at issue below the OHWM is open to limited public use, such as gaining access to the public waterway or walking along the beach as described in Glass. (Gunderson at , 26); that the OHWM is not set by 312 I.A.C (2) but remains that defined by common law with factors found at 312 I.A.C (1) (Gunderson at 1059, 30); and, affirms the trial court s findings regarding the nature and scope of the public trust as it relates to Lake Michigan. (Gunderson at 1060, 33). 7

8 The Court of Appeals did not define what it meant by limited public use (Gunderson at , 26), and its affirmation of the Trial Court s findings (Gunderson at 1060, 33) plainly conflicts with a limited right for passage. ARGUMENT The Court of Appeals limited public use right for passage coupled with its affirmation of the Trial Court s unlimited recreational activities, such as swimming, picnicking, sunbathing, or walking, and all other activities incident thereto, along the shores of Lake Michigan (App. 32), resulted in no clarity or limit regarding the scope of any public trust right concerning private property abutting Lake Michigan. Confrontation and litigation is sure to continue either by the occupying public or the riparian owners. To date, no Indiana Court has ever found a public right to enter private property. The Court of Appeals ignored this Court s precedents concerning exclusive, absolute ownership rights for private property, including land abutting navigable waterways. Moreover, the Trial Court and Court of Appeals failed to construe the source of any public trust right in Indiana, the Northwest Ordinance; failed to abide by the legislature s definition of Lake Michigan and fashioned their own from whole cloth enlarging the location and scope of the public trust; failed to construe the Submerged Lands Act, ignored a proper construction and found a never before public right on private property through these failures regardless of the location of navigable waters. For these reasons, this Court should accept transfer and decide this matter for Lake Michigan. 8

9 I. Standard of Review Summary judgment and grant interpretations are reviewed de novo. Ind. T.R. 56(C). Underwood v. Bunger, 70 N.E. 3d 338, 341 (Ind. 2017). Gunderson designated his deed, Plat and the Hendrick s survey; the Property, its boundaries and whether encumbered by the public trust are legal questions reviewed de novo. Id. II. The Opinion Conflicts with Supreme Court precedent. a. Conflicts with Bainbridge v. Sherlock; Abutting land is privately owned. The question was decided by this Court in Bainbridge v. Sherlock, 29 Ind. 364, 367 (1868) which held in 1868 that: The banks belong to the riparian owner, and he owns an absolute fee down to the low water mark. Id. Further, use of the land is a trespass. The right to the use of the river as a highway for passage is distinct from the right to land for the purpose of receiving or discharging freight and passengers. The former is secured to the public; the latter must be exercised with reference to the rights of the riparian owner. Id. at 369. The question answered was What are the rights of the navigator of this river, to the use of its banks and margins? When this Court stated there was no shore, it explained that is margin between high and low tide. Id. at 367. Just like the Ohio River, Lake Michigan has no margin between high or low tide. Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387, 436 (1892). And, for a distinction between non-tidal waters and tidal waters, see the Submerged Lands Act infra. The Trial Court and Court of Appeals attempted to distinguish Bainbridge as applicable only to navigable river waters and inapplicable to navigable lake waters by citing Art and 9

10 However, there is nothing in these articles to distinguish navigable waters because Indiana treats all navigable waterways the same. In fact, the IAC has defined waterways to include both rivers and lakes. See 312 IAC IAC defines navigable as it relates to waterways. Drawing a distinction between river laws and lake laws concerning navigability is contrary to law. And, there is nothing in the granting language from the Northwest Ordinance to distinguish navigable waters so. The words come from the Northwest Ordinance that Indiana, by virtue of the Ordinance of 1787, acquired title to the beds of the navigable waters in the State when, in fact, became a State and took what rights the Northwest Territory had in said area. Ind. Dep t. of Conservation v. Kivett, 95 N.E.2d 145, 148 (Ind. 1950). The Northwest Ordinance stated: the navigable waters leading into the Mississippi and St. Lawrence... shall be common highways, and forever free. Kivett, 95 N.E2d at 148. The grant states nothing about the abutting land. Id. b. Conflicts with the plain meaning rule. This Court s recent jurisprudence holds that words matter. ESPN, Inc., v. University of Notre Dame Police Department, 62 N.E.3d 1192, (Ind. 2016) (stating the rules of construction intent, plain meaning, all words have meaning, harmonize all provisions etc... and that the job of the Court is to interpret, not legislate. Id. at 1200); Underwood v. Bunger, 70 N.E.3d at (holding that construction means giving a fair reading to the whole instrument). In this case, the Court of Appeals conflicts include finding a right never found before on private property; ignoring the plain meaning of the reservation from the Northwest Ordinance; redefining Lake Michigan contrary to the Indiana Code (Ind. Code ); and legislating an expanded scope of the public trust rights when the General Assembly said its expansion did 10

11 not apply to Lake Michigan; Land under the waters of Lake Michigan; Any part of the land in Indiana that borders on Lake Michigan. Ind. Code i. Conflicts with the Northwest Ordinance of First, the navigable waters leading into the Mississippi and St. Lawrence include Lake Michigan, all other Great Lakes, the White River addressed in Kivett and the Ohio River addressed in Bainbridge. Second, what was the intent shown by the plain language? Simply that the navigable waters, are common highways and forever free nothing more. These are consistent when the trust location is in and limited to the navigable waters. ii. Conflicts with PPL Montana, LLC v. Montana, 132 S.Ct (2012). In 2012, the United States Supreme Court recently held that the people hold absolute right to all their navigable waters and soils under them. PPL Montana, LLC v. Montana, 132 S.Ct. 1215, 1227 (2012) (emphasis added). This is consistent when trust location is in navigable waters. iii. Conflicts with Martin v. Waddell s Lessee, 41 U.S. 367, 413 (1842). Earlier, Martin v. Waddell s Lessee, 41 U.S. 367, 413 (1842) (Gunderson at 1053, 11) stated If the shores, and rivers, and bays, and arms of the sea, and the land under them,.. to be freely used by all for navigation and fishery, as well for shell-fish as floating fish Id. (emphasis added). This quote references four water areas, shores, rivers, bays, arms of the sea, and the land under them, applies to all four. This is consistent when public trust location means navigable waters and soils under them. iv. Conflicts with Pollard v. Hagen, 44 U.S. 212, 230 (1845). This is consistent with the holding from Pollard that The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were 11

12 reserved to the states respectively. Pollard v. Hagen, 44 U.S. 212, 230 (1845) (regarding the tidal Mobile Bay). This is consistent when shores mean navigable waters and soils under them. v. Conflicts with Indiana Code This is consistent with the definition of Lake Michigan as the waters of Lake Michigan that are within Indiana. (Ind. Code ) (emphasis added). This is consistent when waters mean waters and soil under them. vi. Conflicts with the Submerged Lands Act, 43 U.S.C What does land beneath navigable waters mean? The Submerged Lands Act, 43 U.S.C ( Act ) was passed in The Act states: (a) The term lands beneath navigable waters means (1) all lands within the boundaries of each of the respective States which are covered by nontidal waters that were navigable under the laws of the United States at the time such State became a member of the Union, or acquired sovereignty over such lands and waters thereafter, up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction; 43 U.S.C. 1301(a)(1) (emphasis added). Tidal waters and periodically covered land, are addressed in section 1301(a)(2), inapplicable to Lake Michigan. The term boundaries includes the Great Lakes. See 43 U.S.C. 1301(b). Lake Michigan is not a tidal body of water. Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387, 436 (1892) (finding that the Great Lakes are not in any appreciable respect affected by the tide. ; the State holds title to lands under the navigable waters of Lake Michigan. Id at 451). The Trial Court addressed the Act in footnote 1 (App. 16), and by its italics ignored the condition that the land must be covered by navigable waters before the area could include lands up to the ordinary high water mark. By failing to give meaning to all words, it changed the meaning and held that the State holds in trust all land beneath the OHWM regardless of the 12

13 location of the water. (App. 25, 48). Imagine lands beneath navigable waters regardless of the location of the water. This is an absurdity that must be addressed by this Court. The Court of Appeals ignored the Act completely. Any reliance on federal doctrines to claim ownership of State land is contrary to Oregon v. Corvallis, 429 U.S. 363, 372 n. 4 (1977), which explained that the Act did not alter the scope or the effect of the equal footing doctrine, nor did it alter state property law regarding riparian ownership. The effect of the Act was merely to confirm the State s title to the beds of navigable waters within their boundaries as against any claim by the United States government. As merely a declaration of the States preexisting rights in the [navigable waters], nothing in the Act in any way mandates, or even indicates that the federal common law should be used to resolve ownership of lands, which by the very terms of the Act, reside in the States.. Id. (emphasis added). In Indiana, Kivett explained that the land emerging on either side of a navigable stream is a matter to be determined by the laws of each state involved. Kivett at 151. This is consistent with Oregon v. Corvallis, 429 U.S. 363, 372 n. 4 (1977) (no federal law encumbering emerging land). These authorities do not support an encumbrance on land abutting navigable waters. vii. Conflicts with Doemel v. Jantz, 193 N.W. 393, 398 (Wisc. 1923). Instead the Court of Appeals relied on dicta from Wisconsin and elsewhere and ignored the best plain-meaning explanation of the combined language in the Northwest Ordinance and Submerged Lands Act. The law in Wisconsin is that the rights of a riparian owner are not dependent upon ownership of the soil under the water, but upon his title to the banks. Such rights cannot be taken from him for private purposes in any event, nor can they be taken for public purposes unless adequate compensation is paid therefore. Doemel v. Jantz, 193 N.W. 393, 398 (Wisc. 1923) (emphasis added). [T]he riparian owner has the right of exclusive access to and from the waters of the lake at that particular place. Id. at 396. (emphasis added). The 13

14 foundation of riparian rights, ex vi termini, is the ownership of the bank or shore. In such ownership they have their origin. They may do and exist though the fee in the bed of the river or lake be in the state. Id. The Wisconsin Supreme Court explained what up to means: The riparian owner s rights to the shore are exclusive as to all the world, excepting on where those rights conflict with the rights of the public for navigation purposes. up to the ordinary high water mark, merely affirmed the public s right to pursue the sport of hunting to the ordinary high water mark of a navigable [body] while the waters of the [body] actually extended to such mark. Id. (emphasis added). Water matters. From the Northwest Ordinance to the holding in 2012, the people plainly have a right to use navigable waters and soil under them, nothing more just like most of the rest of the Great Lake states 2. property. The Indiana cases are consistent. Anything more is arbitrarily encumbering private viii. Conflicts with Lake Sand v. State, 68 Ind. App. 439 (1918). In Lake Sand v. State, 68 Ind. App. 439, 120 N.E.2d 714 (1918) the area at issue is [u]nder the waters of Lake Michigan within the boundaries of this state there are large deposits of sand and gravel, which are valuable in the market. Id. at 715. This area is consistent with 2 All found that the riparian owner owned at least to the water. Minnesota: Larson v. Sando, 508 N.W.2d 782, 787 (Minn. App. 1993) (this court declined to expand the scope of the publictrust doctrine, holding that the doctrine applies only to the state s management of waterways, not to the state s management of land); Illinois: Illinois Cent. Railroad Co., v. Illinois, 146 U.S. 387, 463 (1892) (holding Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan. ); Seamon v. Smith, 24 Ill. 521 (Ill. 1860) (the water is the boundary); Ohio: Merrill v. Ohio Dep t. of Natural Resources, 130 Ohio St. 30, 955 N.E.2d 935, (2011) (the water is the boundary; land owner has the right to exclude others). Only Michigan in Glass v. Geockel, 703 N.W.2d 58, (Mich. 2005) found a right of passage on abutting private land incident to hunting, fishing and navigation). 14

15 navigable waters and soils under them as held by the public trust. The oft quoted line is the state in its sovereign capacity is without power to convey or curtail the right of its people in the bed of Lake Michigan. What is bed? From this case bed is the land under the navigable waters consistent with the Northwest Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock and Doemel v. Jantz. This case does not concern submerged land. 3 ix. Conflicts with State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950). In State v. Kivett, 95 N.E.2d 145, 152 (Ind. 1950), this Court wrote upon the admission of a State to the Union, the title of the United States to lands underlying navigable waters within the States passes to it, as incident to the transfer to the State of local sovereignty, and is subject only to the paramount power of the United States to control such waters for purposes of navigation in interstate and foreign commerce. (emphasis added). This Court explained that the land emerging on either side of a navigable stream is a matter to be determined by the [property] laws of each state involved. Kivett s holding is consistent that the location of the public trust is in the navigable waters and soils under them just like the Northwest Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Oregon v. Corvallis, Doemel v. Jantz and Lake Sand v. State; all precedents plainly reserve the location as the navigable waters not land abutting same. This Court should accept transfer and uphold these precedents. III. Everything else is a red herring. Any boundary other than the navigable waters of Lake Michigan, for the public trust or the Gunderson Property, is an arbitrary line in the sand and contrary to law. Lane v. United States, 274 F. 290 (5th Cir. 1921); Mitchell v. Smale,140 U.S. 406 (1891). Any ordinary high 3 Intervenors cited Ind. Code et seq, procedures to acquire title to submerged property. 15

16 water mark, OHWM (common law, admin law, definitional or by elevation), and any line in the sand other than the water line, is not a legally congnizable boundary for Gunderson s Property or the public trust. Id. See also, Shively v. Bowlby, 152 U.S. 1, 35 (1894) (holding that the rule everywhere admitted, accretion or alluvion... belongs to the owner of the land ); Parkinson v. McCue, 831 N.E.2d 118, 128 (Ind. Ct. App. 2005) (holding that the right to accretions belong to the riparian owner). See also Hilt v. Weber, 233 N.W. 159 (Mich. 1930) (describing the lake boundary as a moveable freehold ). The Court of Appeals cited PPL Montana, LLC v. Mont., 132 S.Ct. 1215, 1235 (2012 ) that the State can define the scope of the public trust within its border. Gunderson v. State, 67 N.E.3d 1050, 1054 (Ind. Ct. App. 2016) (Gunderson at 1054, 12). While true, the quote is... the States retain residual power to determine the scope of the public trust over the waters within their borders, while federal law determines riverbed title under the equal footing doctrine. PPL Montana, LLC v. Mont., 132 S.Ct. 1215, 1235 (2012) (emphasis added). Gunderson concedes the State can define the scope of its public trust rights in the navigable waters. However, the State cannot change the location from navigable waters to abutting private property. Such a change in the location is contrary to the plain words of Northwest Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Doemel v. Jantz, Oregon v. Corvallis, Lake Sand v. State and State v. Kivett. Again this is a matter of misconstruction by the Court of Appeals; scope is not location. IV. Finally, any scope adjustment must comport with the precedent that private property cannot be taken without just compensation. The Court of Appeals relied on Glass v. Geockel, 703 N.W.2d 58, (Mich. 2005) to find a public right to walk the shore but that right does not include every right (Gunderson at 1058, 25), not every use, not to trespass, (Id.) but affirmed the trial court s unlimited right to sit, 16

17 sunbathe and picnic ( Id. at 1060, 33). Both cannot be law. Both resolve nothing. Both will promote continued confrontation and continued litigation. Passage is a transitory use, limited to the time it takes to go by; its impact is low. Sunbathing and picnicking are occupational uses limited in neither duration, number, space, etcetera; this impact is high because it precludes the riparian owners from sunbathing or picnicking on their property and it also usurps for one sunbather the right of every other person to sunbathe in that particular spot. If an overlap of public and private uses is found, it cannot provide a public right for one to exclusively occupy the spot to the detriment of the private owner and public at large. There has never before been a right of first come first served on private property. For no other reason, the Court should accept transfer to resolve just what right, if any, is permitted in this conflicted opinion. It should also measure any public right against the constitutional protections in favor of private property. The law provides: No person shall be. deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. V. The Indiana Constitution, Article 1, Section 21 provides No person's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered. Simply, neither the State nor any court can encumber, take or occupy the Property and corresponding riparian rights without just compensation. Ctr. Townhouse Corp. v. City of Mishaw., 882 N.E.2d 762, 771 (Ind. Ct. App. 2008) (holding that a taking or destruction of, or any actual and material interference with, riparian or other water rights that causes special injury to the owner is grounds for the recovery of compensation under eminent domain provisions. ). 17

18 This is the precedent. The original trust location was limited to the navigable waters; the original scope was for navigation, commerce and fishing. The State can freely expand this scope 4 in the navigable waters, but it cannot, without just compensation, expand the location to privately owned land and expand the scope to include occupation of that land. For these reasons, any use on private property abutting Lake Michigan without the owner s permission is a trespass by individuals; if ordered by a court, the use is a taking by the State and for which just compensation is constitutionally required. CONCLUSION For these reasons, this Court should accept transfer and decide if the Court of Appeals creation of a public use on private property comports with the plain meaning of the Northwest Ordinance, the Act, PPL Montana, LLC v. Montana, Bainbridge v. Sherlock, Doemel v. Jantz, State v. Kivett and Lake Sand v. State, or not. If so, the Court should plainly tell what use right is included, walking or passage; what use rights are excluded, such as occupation by sitting, sunbathing, picnicking, if any; and, the correct location, if other than the navigable waters and soil under them, so as to plainly instruct all citizens of Indiana where they may use the navigable waters and abutting land. If not, the Court should uphold its precedents and hold that the Property is bordered by the navigable waters of Lake Michigan and that their rights include the time honored and unconditional right of private property owners to exclude from their domain those entering without permission and instruct the lower courts as such. 4 The legislature knows how to expand the scope but has not done so for Lake Michigan. See Indiana Code

19 Respectfully submitted, /s/michael V. Knight Michael V. Knight ( ) Barnes & Thornburg LLP 700 1st Source Bank Center 100 N. Michigan Street South Bend, IN (574) ; Mark L. Phillips ( ) Newby, Lewis, Kaminski & Jones, LLP 916 Lincolnway LaPorte, IN (219) ; Attorneys for Appellants WORD COUNT CERTIFICATE I verify that relying on the word count of the word processing system used to prepare the Petition to Transfer, this Petition contains no more than 4,200 words, and I verify that this Petition contains 4,164 actual words. /s/michael V. Knight 19

20 CERTIFICATE OF SERVICE I certify that on April 10, 2017, I electronically filed the foregoing document using the Indiana E-Filing System. I also certify that the following persons were electronically served with the foregoing document: Jeffrey B. Hyman jbhyman@indiana.edu W. William Weeks wwweeks@indiana.edu David L. Powers dpowers@smpklaw.com Kurt R. Earnst kre@braje-nelson.com Paul Edgar Harold pharold@lck-law.com Andrea E. Rahman Andrea.Rahman@atg.in.gov Mark Miller mm@pacificlegal.org I also certify that on April 10, 2017, the foregoing document was served upon the following persons by first-class U.S. mail, postage prepaid: Patricia F. Sharkey Environmental Law Counsel, P.C. 180 North LaSalle Street, Suite 3700 Chicago, IL Keith A. Schofner P.O. Box 835 Bay City, MI /s/michael V. Knight Michael V. Knight DMS v1 20