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SCOTUS rejects appeal of Lake Michigan public access case

February 19, 2019

The Supreme Court of the United States will not hear an appeal that sought to restrict public access to the Indiana shore of Lake Michigan. Justices let stand an Indiana Supreme Court decision that found a public access right to the state’s 45 miles of Great Lakes beaches.

The nation’s high court denied a petition for writ of certiorari in orders issued Monday. The case, Bobbie Gunderson, et vir v. Indiana, et al., 18-462, had been distributed for justices’ consideration at conference last week.

Jeffrey B. Hyman, senior staff attorney at the Conservation Law Center and professor at Indiana University Maurer School of Law, represented public-interest intervenors Alliance for the Great Lakes and Save the Dunes.

“We are very happy with the U.S. Supreme Court’s decision to deny certiorari in Gunderson,” Hyman said in an email Tuesday. “The lawyers of the Conservation Law Center worked hard for over three years to help protect Indiana’s ownership of the lakeshore as well as our citizens’ public trust rights to the shore. But unfortunately this denial of cert. is not the end of that journey. We will now turn our attention to protecting the Gunderson decision from any further challenges and to ensuring that the public trust rights preserved by the Gunderson decision are fully enforced by the state.”

Unnamed landowners appealed last February’s Indiana Supreme Court ruling that preserved public access to the shore of Lake Michigan from the waters edge inland to the ordinary high water mark. 

The Indiana Supreme Court also ruled that at a minimum, the public enjoyed a right to walk along the shore as a protected activity inherent in the exercise of traditional public trust rights. The justices’ decision left to the Legislature any potential expansion of public access beyond the protection of the right to walk along the shore below the ordinary high water mark.

Sen. Karen Tallian, D-Ogden Dunes, whose district in LaPorte and Porter counties includes much of the Lake Michigan region, introduced a bill that would more clearly define public access rights to the shore. Senate Bill 553 passed the Senate Natural Resources Committee last week and is scheduled for a vote by the full Senate on Tuesday afternoon.

Tallian’s bill would define 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 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.

The Senate also is scheduled Tuesday to hear another Lake Michigan-related bill. Senate Bill 581, authored by Sen. Blake Doriot, R- Syracuse, 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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