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SCOTUS asked to take Lake Michigan beach privatization case

October 8, 2018

Arguing the Indiana Supreme Court “asserted a novel public right to access the entire beach” of Lake Michigan, private lakeshore landowners Friday asked the Supreme Court of the United States to rule that the public was entitled to use no part of the beach above the water itself.

The landowners’ petition for writ of certiorari urges the justices to take an appeal the landowners say poses this unsettled question: “whether — in conflict with the rule on the seashore — the newly-admitted states took title to the entire beach surrounding the Great Lakes” at statehood.

The Indiana Supreme Court opinion challenged in this petition did not actually rule as such, instead holding that the state’s public-trust rights extend to the ordinary high water mark. The Indiana justices’ ruling preserved the public’s right to walk along the shore of Lake Michigan, leaving any expansion of public rights to the Indiana General Assembly.

The cert petition in Gunderson v. Indiana is the culmination of years of state court litigation initiated by private landowners in the LaPorte County town of Long Beach, just south of the Michigan state line. Attorneys from Faegre Baker Daniels in Minneapolis and Chicago arguing on behalf of the private landowners wrote in the cert petition that the outcome of the Indiana case could extend well beyond the 45 miles of Indiana Great Lakes shoreline.

“This case presents the question of who owns thousands of miles of beaches on the Great Lakes. Do the beaches belong to the government or instead to the private landowners whose deeds include the beaches, and who have long looked after them and paid taxes on them? The Indiana Supreme Court now has joined a recent trend of some Great Lakes states applying a “soil and vegetation” test to define the boundary of public rights in the lakebed — in an apparent attempt to justify government claims to every inch of sand on the beach,” the petition says. “In doing so, Indiana has claimed title to a huge swathe of scenic and valuable real estate that private landowners had thought was theirs.”

But landowners have lost that argument at every level of state courts, which variously ruled for the public interest in attempting to draw a line in the sand between public and private property.

Landowners Don and Bobbie Gunderson’s names remain on the petition as the sole plaintiffs, even though property records show the couple has not owned the property at issue for years. The petition records the transfer of ownership from the Gundersons in a footnote, but it does not identify who the current plaintiffs are, noting that Federal Rule of Civil Procedure 25(c) does not require a transfer of interest.

“The Indiana courts did not order substitution, so under both state and federal Rule 25 the Gundersons remain proper plaintiffs,” the petition says.

Meanwhile, the case in state court attracted numerous friends of the court aligning to argue for both public and private property rights. Those interests are certain to line up at the U.S. Supreme Court, should justices grant the cert petition.

After the petition is docketed, the state and intervenors will have 30 days to file a brief in opposition or request an extension.

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