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IN - Federal appeals court upholds public's right to use Lake Michigan beaches near private property

The public can still use the Lake Michigan shoreline in front of private property. A federal appeals court affirmed that Indiana Supreme Court ruling on Wednesday.

The public can still use the Lake Michigan shoreline in front of private property. A federal appeals court affirmed that Indiana Supreme Court ruling on Wednesday.

Property owners in the case argued the Indiana Supreme Court “took” part of their property when it made that ruling. Chris Kieser is an attorney with Pacific Legal Foundation — a nonprofit representing the property owners. He said the ruling changed his clients’ experience of their beach.

“Before the decision, there was more willingness on the part of the local authorities to enforce the right to exclude along the beach. And now their experience is that this entire stretch of beach is treated as public," Kieser said.

The basis of the plaintiff's case was something called a "judicial taking." U.S. Supreme Court Justice Antonin Scalia said if there has been an established right of property, but that right has been dissolved because of a court decision — that's still a "taking" under the law.

"That's a taking in the same way as if the legislature had simply declared that you no longer own your property, which everyone would recognize, is it taking," Kieser said.

But the 7th Circuit Court of Appeals said no federal appeals court has "recognized this judicial-takings theory."

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