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Lake Michigan public access bill advances; SCOTUS to confer on appeal

February 12, 2019

A bill that defines the shore of Lake Michigan as belonging to the public and spells out public recreational uses of the shoreline has moved to the full Indiana Senate. Meanwhile, a petition seeking to privatize Indiana’s Great Lakes beaches will be before justices of the Supreme Court of the United States this week.

Senate Bill 553 passed the Senate Natural Resources Committee on a 5-3 vote Monday. Republican Sens. Brian Buchanan, Justin Busch and Chip Perfect voted against the measure.

The bill moved to the full Senate almost exactly one year after the Indiana Supreme Court ruled against undisclosed parties seeking to privatize much of Indiana’s 45-mile Great Lakes shoreline. Justices ruled that Indiana holds in public trust the Lake Michigan shore up to the ordinary high water mark in the case, Don H. Gunderson and Bobbie J. Gunderson, Co-Trustees of the Don H. Gunderson Living Trust v. State of Indiana, Indiana Department of Natural Resources, Alliance for the Great Lakes, et al., 46S03-1706-PL-423.

Justice Mark Massa wrote for the court that ruled the state holds the shoreline in public trust, and that the public has a right to walk along the shore and engage in other activities, but left defining those to the General Assembly.

“Refraining from exercising our common law authority more expansively here is particularly prudent and appropriate where the legislature has codified, in part, our State’s public trust doctrine,” Massa wrote for the court. “Thus, we conclude that any enlargement of public rights on the beaches of Lake Michigan beyond those recognized today is better left to the more representative lawmaking procedures of the other branches of government.”

Sen. Karen Tallian, D-Odgen Dunes, attempts to spell out public rights to the beach in SB 553. The bill defines public use of the lakeshore as activities from sunbathing, swimming and surfing to fishing, boating with non-motorized watercraft such as canoes and kayaks, and other activities that don’t constitute a public nuisance or interfere with others’ right to use the beach.

“It’s important that the General Assembly take charge of this issue and make it clear that all Hoosiers have the right to use the Lake Michigan shoreline,” Tallian said after the bill advanced. She noted her district in LaPorte and Porter counties represents about half of the Indiana shore of Lake Michigan. Her district also includes the town of Long Beach just south of the Michigan State Line, where the case originated.

Tallian’s bill also would assign oversight of the shoreline to the Department of Natural Resources, which could designate some oversight responsibilities to local law enforcement and government entities. The legislation also would require any construction on the Lake Michigan shore to be subject to DNR regulation.

As legislation defining public use of the shore of Lake Michigan advances at the statehouse, a possible appeal of the Indiana Supreme Court’s Gunderson decision will be distributed in Washington for justices of the U.S. Supreme Court at their Friday conference. Justices could decide whether to hear the case shortly thereafter.

But the fact that the owners listed as petitioners have not owned the property for more than three years has become an issue as a petition for writ of certiorari is pending in Bobbie Gunderson, et vir, Petitioners v. Indiana, et al., 18-462. After the Gunderson properties at issue in this case were sold, they were transferred to developers who built multi-million-dollar homes on the parcels.

In its brief in opposition to justices granting cert, the state of Indiana argued in part that justices should reject the case because the transfer of property made the Gundersons’ case moot.

But in a response brief filed Jan. 30, petitioners countered, “Indiana’s attempt to evade review by claiming a mootness problem is baseless. The Federal Rules codify the ancient and uncontroversial rule that a transferor of property pendente lite continues litigating as representative of the successor-in-interest, allowing the claim to be resolved. That is precisely the situation here. Nothing will hinder the Court’s resolution of the important federal question.”

The brief doesn’t identify who is directing the cert petition in the Gundersons’ stead, but says in a footnote, “Although amending the caption is unnecessary, should the Court direct it the (Long Beach Lakefront Homeowners’) Association will promptly move to join or substitute as Plaintiff-Petitioner. As the motion would explain, the Court has permitted similar substitution in numerous previous cases.”

There is no entity registered as the Long Beach Lakefront Homeowners’ Association, according to the Indiana Secretary of State’s business entity records. Likewise, the entity appears to have no internet presence, except for previous mentions of its name in news stories regarding this case.

Meanwhile, the Senate Natural Resources Committee voted 8-0 Monday to advance another Lake Michigan-related bill to the full Senate. The panel passed Senate Bill 581, authored by Sen. Blake Doriot, R-Syracuse, which would establish a Lake Michigan shore zone inland above the ordinary high water mark to regulate seawalls and control the flow of water across private property along the lakeshore, among other things.

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