Gov. Holcomb, do you know what your Department of Natural Resources is doing?
It is unusual for a major department of state government like the DNR to go rogue, especially in a state as politically lopsided as Indiana, where the same party effectively controls all three branches of our supposedly representative government.
But what is happening up in Northwest Indiana seems to demonstrate otherwise. Here, the town of Long Beach has filed a complaint against the DNR because of the state agency’s refusal to abide by a unanimous ruling by the state’s Supreme Court—a court, by the way, that has been packed by Republican governors.
Last February, the Supreme Court sent what amounted to a Valentine to community advocates, finding that the beach along Lake Michigan belonged not to those private citizens fortunate enough to be able to afford beachfront property, but to the state of Indiana.
Here is how the court put it: “Today, we hold that the boundary separating public trust land from privately owned riparian land along the shores of Lake Michigan is the common-law ordinary high-water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary.”
This was a big deal. The Indiana Lawyer called it “a landmark case.”
But there was a catch. Not all judges agreed on how to determine the ordinary high-water mark. The DNR calls the OHWM “the line on Lake Michigan and other navigable waterways used to designate where regulatory jurisdiction lies and in certain instances to determine where public use and ownership begins and/or ends.”
The DNR’s practice has been to rely on a number, 581.5 feet, set by the Army Corps of Engineers, to determine where the OHWM lies. The trouble with this is that you can’t see it; you need an instrument, like an altimeter, to tell where it is. And, since the beach is in a constant state of flux, that number can wind up being in the lake in some places and your neighbor’s kitchen in others.
The Indiana Supreme Court’s February ruling was doubly significant because it not only declared Indiana’s Lake Michigan beach to be public property, it also used common sense, not an altimeter, to determine the OHWM. The court endorsed the public contention that the OHWM be defined by the visible line where vegetation takes hold and debris is collected.
This part of the Supreme Court’s finding has caused the DNR to go rogue. The DNR has refused to enforce the Supreme Court’s February ruling, even though that ruling was certified by the Supreme Court clerk on May 24, effectively making it the law in Indiana.
In its complaint, the town of Long Beach states that the DNR’s refusal to abide by the Supreme Court ruling “gravely impacts Long Beach’s ability to effectively and adequately manage and enforce its ordinances and hinders other necessary public policy decisions regarding issues along the Lake Michigan shoreline over which the DNR and Long Beach both have jurisdiction.”
Indiana’s DNR is placing itself above the law—and sticking it to the state’s Supreme Court. You’ve got a mutiny on your hands, Gov. Holcomb. What are you going to do about it?