A Taking by Any Other Name Still Smells Rotten

The state of Indiana wanted to expand beach property available to the public along the shoreline of Lake Michigan. Much to its irritation, the beach property was already owed by many other people, as natural extensions of their homes. Indiana could have used its power of eminent domain to pay for this property. Instead, the state attempted to take the beach property without just compensation by abusing the common‐​law doctrine of “public trust.”


In Gunderson v. Indiana, Cato now joins the National Association of Reversionary Property Owners and two other organizations on an amicus brief supporting the property owners’ request that the Supreme Court review this practice.


The “public trust” mechanism for Indiana’s machinations was once used by kings to control public waterways. In ye olden days, kings would assume authority over waterways abutting private property to ensure that navigation and fishing could continue at a relatively uniform pace. The Indiana bureaucracy and courts reformulated the rule to extend the “trust” upwards from any actual water to the “high water mark” on the sand. This meant that even if a house had a private section of beach behind it, if the water had at some time risen upward, the property was now forfeit to the government.


This is a perversion of the “public trust” doctrine and a misreading of the common law, which preserved private property rights both by adhering to uniform decisions over time and by clearly defining what rights people could expect in their property. The “public trust” doctrine was used only to give the sovereign control over waterways for navigation and fishing. It never extended to beaches—and certainly was not meant to deprive private parties of their reasonable expectation to their own property. For the Indiana courts to invoke that power in this context is to steal property under the guise of an ancient protector.


This redefinition is a taking by any other name: what once belonged to a person now belongs to the state. And a taking, by any other name, still requires payment under the Fifth Amendment’s Takings Clause. The Supreme Court has long recognized that states attempt takings without directly invoking their powers of eminent domain. These “inverse condemnations” often come in the form of physical invasions—such as the government’s putting objects on the people’s property—or in regulations. The regulations here may not have been so wide as to deprive the owners of all their land, but the wound to their interests is still there.


The lower courts don’t have the right to kick sand in the face of Fifth Amendment and then hide behind the common law. State and local officials may wish they could step into the place of benevolent kings, but their attempts to do so here show them to be despots.