State court affirmation of public rights below the high tide line do not take property without compensation in violation of the 14th amendment

After the Indiana Supreme Court held that private property rights end at the high tide land, giving the public the right to use the wet sand area between the low and high tide lines, see Gunderson v. State, 90 N.E.3d 1171 (Ind. 2018), an owner sued state officials to have that judicial ruling declared to be a taking of property rights without just compensation. But the Seventh Circuit held that the state courts were competent to determine whether private property ownership extended to the tidelands in the first place and because they did not, no property rights were taken from the owner. Pavlock v. Holcomb, 2022 WL 1654038 (7th Cir. 2022).


The converse, however, may not be true. Since the high courts of both Massachusetts and Maine have limited public rights in the tidelands, a statute recognizing such rights might be held to take away vested property rights. On the other hand, state courts historically extended public rights in the tidelands from navigation and fishing to recreation and it is not clear why the Supreme Judicial Courts of Maine and Massachusetts should not have the same freedom to modernize property law to recognize recreational rights on the tidelands.

See also: Takings