State, community group urge SCOTUS to reject Lake Michigan access case

January 15, 2019

The state of Indiana and a community group favoring public access to the shore of Lake Michigan have filed briefs urging the Supreme Court of the United States to reject an appeal that could partly privatize the state’s 45 miles of Great Lakes beaches.

Briefs filed Friday urge the high court to affirm the Indiana Supreme Court ruling in February 2018 that found the public has a right to walk along the shore of Lake Michigan from the water’s edge to the ordinary high water mark.

The state’s brief asserts for the first time that the petition for writ of certiorari should be rejected because the named plaintiffs in the case, Don and Bobbie Gunderson, have not owned the property for years, having sold it to a developer as this litigation was pending in state court, and therefore lack Article III standing, making the case moot.

“Petitioners sold their lakefront property years ago and stand to gain nothing from review by this Court, which creates substantial doubt as to the Court’s jurisdiction even to hear the matter,” the state’s brief argues. “Untangling that threshold issue only to confront quintessential state-law questions over public trust rights — respecting which there is no real underlying federal-law disagreement — is simply not worth the Court’s time and attention.”

“… Having sold the property, however, the Gundersons have released any plausible personal claim to exclusive title to land above the water’s edge of Lake Michigan. And while purchasers of the former Gunderson property may have such a claim, the Gundersons have no authority to assert their rights — an accountability problem all the more apparent because title to the property has now changed hands multiple times,” the state’s brief says.

The lawsuit involves Long Beach, Indiana — the Lake Michigan lakefront community just south of the Michigan state line that was home to U.S. Chief Justice John Roberts in his youth. Plaintiffs seeking U.S. Supreme Court review contend the Indiana Supreme Court ruling was an extraordinary taking of private land.

 “… Indiana has joined a recent trend of Great Lakes states asserting, for the first time in our Nation’s history, that they have property rights in every square foot of beach along the Great Lakes,” attorneys for the Gundersons wrote in an application for an extension of time to file their cert petition. “Doing so has required those States to adopt the most aggressive interpretation possible of how the federal ‘equal footing doctrine’ applies to non-tidal waterbodies — an important question of federal law that has not been, but should be, decided by this Court.”

The state’s brief and the brief submitted by the Long Beach Community Alliance reject such characterizations.

“The only federal question before the Court in this case is what standard defines the boundary

of Indiana’s Equal Footing title on the Lake Michigan shore. The Indiana Supreme Court properly decided that question in accord with this Court’s Equal Footing Doctrine. There is no reason for this Court to revisit this well-established rule of law in this case,” the Long Beach Community Alliance brief concludes.

The briefs also rejects plaintiffs’ contentions that there is a split in Supreme Court decisions on Equal Footing jurisprudence regarding land rights states received at statehood to public bodies of water.

“Intervention by the (U.S. Supreme) Court here could only interfere with Indiana’s legitimate state law determinations without resolving any actual lower-court federal law disagreements,” the state’s brief says.

Multiple amici have filed briefs on both sides of the case. The Supreme Court is not expected to decide until next year whether it will hear the case, Gunderson v. Indiana, 18-462.



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