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OLSON BZDOK & HOW

www. enviaw. corn October 16, 2012

Long Beach Town Council Members 2400 Oriole Trail Long Beach, Indiana, 46360 Re: Town Resolution 10-002 Our File N 5877.00

Dear Long Beach Town Council Members: On behalf of our client, the Long Beach Community Alliance and its members, we are submitting this letter to update you on the changes to the Indiana Department of Natural Resources (DNR) non-binding guideline on its webpage and to encourage you to affirm the principles of Town Resolution No 10-002, Concerning Property Adjacent to Lake Michigan in Long Beach, Indiana (Resolution). As you are aware, your current ordinance provides that the Long Beach Police Department shall only enforce Public Property Ordinances along the shores of Lake Michigan above the ordinary high water mark on publicly owned beach accesses and on lots owned by the Town. It relies on the DNR s position as reflected in its publications including, but not limited to, its website stating that the state of Indiana holds title to the beds of Lake Michigan up to the ordinary high water mark. As indicated in our previous correspondence with you, this position reflects well-established legal principles of the equal footing doctrine and the public trust doctrine. The changes made to the DNRs website did not change this position and do not require you to change your Resolution. To begin with, the website still states that the ordinary high watermark is used to determine where public use and ownership begins and/or ends. The main change in the website is that the DNR states that the ordinary high water mark is the dividing line for public use as well as public ownership. This is not a position that you need to address in your Resolution because your Resolution is addressing the title issue, not the public use issue, and it is not necessary for you to take a position on the boundary of public use for purposes of the Resolution. Moreover, the purpose of your Resolution is to give direction to the Police Department whether it has to enforce its ordinance which does not determine ownership or use, but guides the department and Town regarding its regulatory enforcement of certain ordinances. Further, not only has the substance of the website not changed, the DNR did not change its other publications where the DNR explains that it holds title to the ordinary high watermark, and you also reference those in your existing Resolution. Therefore, you could rely on your
420 EHst Fn)n~ Siict, Travurse Cit~; f\lwhigaii 49636

Ph 231.946.0044

Fax 231.9 03. 1307

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James M. Olson I Christopher M. Bzdok I Scott W. Howard Katherine E. Redman I William Rastetter, Of Counsel

Jeffrey L. Jocks I Ross A. Hammersley Michael H. Dettmer, Of Counsel

Long Beach Town Council Members October 16, 2012 Page 2 existing resolution without making changes and still be consistent with the DNR. Ho we v e r, if you would prefer, you could also update your Resolution to mirror the exact language used on the website. A draft redlined Resolution to that effect is attached. We understand that you received a letter from Mr. Michael Knight indicating that the DNR changed its position and that you must as well. This is simply incorrect. The website still identifies the ordinary high water mark as the boundary for state title. For your convenience, here is a redlined version of the relevant portions of the changes to the website: The dividing Line on Lake Michigan and other navigable The ordinary high watermark is the line on Lake Michigan and othei navigable waterways used to designate where regulatory jurisdiction lies and in certain instances to determine where public use and ownership begins and/or ends. In general terms, ordinary high watermark (OHW) has been defined to be the line on the shore of a waterway that is 1. established by the Fluctuations of water; and

2. indicated by physical characteristics such as a clear and natural line impressed on the bank, shelving, changes in the character of the soil, the destruction of terrestrial vegetation, or the presence of litter or debris. For Lake Michigan, both the U.S. Army Corps of Engineers and the Indiana Natural Resources Commission have recognized the ordinary high watermark to be at elevation 581.5 feet, International Great Lakes Datum (1985). The Commission has established the elevation of the OHW for the Indiana shoreline of Lake Michigan by rule at 312 IAC 1-1-26. Although the actual elevation of Lake Michigan fluctuates, the elevation of the ordinary high watermark is fixed. The OHW is significant to many permitting activities, and in certain respect to questions of ownership, and commercial and recreational boating usage. Regulatory authority may be referenced to the OWM, but there are instances when authority extends outside the 01-lW. For example, boating laws and fishing laws are enforced outside the boundaries of the OHW when the lake is high.

Long Beach Town Council Members October 16, 2012 Page 3 As noted, the main change is the indication that the ordinary high watermark is the boundary for public use as well as state title. In addition, the modifier in certain instances was added. This modification was probably appropriate because there could be a few, rare instances where the state has passed title to a private party through legislation for proper public purposes, such that the transfer would be valid. However, the Long Beach shoreline is not one of these instances. Title along Long Beach remains in the hands of the state of Indiana to the ordinary high water mark. It would be Mr. Knights burden to show otherwise, and he has not presented anything suggesting that the state has divested itself of any title to land, let alone that such divestment was done properly through legislation and for a public purpose, as it must be. In addition, as noted above, the purpose of the Resolution is to guide the enforcement of an ordinance, not determine ownership or use. The Town is on solid grounds to provide a directive to its departments regarding non application or enforcement of regulatory ordinances. Therefore, your Resolution remains accurate, as does its reliance on the website and other documents published by the state. Accordingly, we respectfully submit that you could simply keep your current Resolution or adopt the attached version, which incorporates the states changes verbatim, even though the meaning is the same for purposes of Long Beach. We hope that you find this letter and proposed modification pursuant to the DNRs website changes helpful and look forward to your or your Town attorneys thoughts and questions. Thank you for your consideration. Sincerely,

Ji

Kate Redman

JMO:KER:djs xc: Clients William deFuniak, Clerk-Treasurer, Long Beach Jeff Thorne Robert Sulkowski, Chief Marshal, Long Beach Police Dept. Long Beach Police Commission

Resolution No. Resolution Amending ResolutionNo. 10-002 Concerning Property Adjacent to Lake Michigan in Long:Beach, Indiana WHEREAS, there exists in the Town of Long Bea Indiana~ publicly o4vned pioperty h, and privately owned property adjaent to Lake Michigan which is a na~igable waterway; and,. WHEREAS, there are ~ number oflocal. Ordinances cbiitined iii the Code of~ Ordinances of the Town of Long Beach, Indiana, which are designed to regulate or prohibit activity on public and/or Town property (hereinafter referred to as PUBLIC PROPERTY ORDINANCES); and, :
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WHEREAS, the bed of Lake~ Michigan adjac to Long Beach Indi~n, is owned by the t State of Indiana; and; :
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WhEREAS, these disputes can create issues regarding the enforcement by the Long Beah Police Department of PI~BLIC PROPERTY ORDINANCES; and, WHEREAS, it is desirable that aclear policy be established relative, to the enforcerhent of PUBLIC PROPERTY ORDINANCES on properties adjacent to Lake Michigan in the Town of Long Beach, Indiana, both for the benefit of,private property owners, the general public and law enforcement officials; and,: :
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NOW THEREFORE BE IT RESOLVED, by the TOWN COUNCIL of the Town of Lonk:Beach, Indiana, that the fo1lo~ing plic31 be and is hereby adopted: : 1. TheTdwnof Long Beach Indiana, recognizes and accepts~he liidiaa Departrnent:bf Natural kesource~ position as reflected in its publictibns including, but not limited to, its website the oidinaiy high wateimaik is the ii ie on Lake Michigan used to des gnate wheie the states regulato y iuiisdiction lies and to cletet mine wheie public ow eish p ise begins and/ot ends that the dividing line on Lake Michigan between the state and non state ownership is the oidinaiy high ~atei maik .2. That the ordinary high waiermark is anOlevation of 58L5 fOet;as adopted.by~the U.S~ Aimy Corps of Eiigineers, and the Indiana Natural Resources Commission found at312 IAC 1126. : :
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3. The Long Beach Police Department shall only enforce the PRIVATE PROPERTY ORDINANCES between Lake Shore Drive and Lake Michigan in the following loatiOns: A. The entire length and width of all publicly owned beach accesses above :the elevation of 581.5 feet.
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B. The entire length and width of all lots owned by the Town of Long Beach, Indiana, above the elevation of 58 15 feet.

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