INDIANAPOLIS — The U.S. Supreme Court has been asked to overturn the February ruling by Indiana's highest court that Lake Michigan's shoreline is open to all.
Attorneys for Bobbie and Don Gunderson, who previously owned a lakefront home in the LaPorte County town of Long Beach, late last week filed a petition for a writ of certiorari that asks the nation's high court to set the water's edge as the boundary of lake-adjacent properties — with no requirement to provide public access to Lake Michigan beaches.
If the Supreme Court agrees to hear the case, the ramifications of any decision by the justices are likely to extend well beyond Indiana's 45 miles of Lake Michigan shoreline; the Gundersons are asking the high court to apply the water's edge standard to all the land adjacent to all five of the Great Lakes.
"With thousands of miles of Great Lakes beaches hosting millions of visitors every summer — and with thousands of private owners facing that public influx to land they thought was their own — the stakes are unquestionably high," the Gundersons said.
"How to define the boundaries of the states' equal-footing title in the beds of the Great Lakes is an important question of federal law that has not been, but should be, settled by this court."
The Indiana Supreme Court determined, through an exhaustive review of historical property law, that the ordinary high water mark — essentially the spot where beach becomes land — is the boundary between the state-owned land under Lake Michigan and the interests of private property owners.
Within that shoreline area individuals are entitled to access the water for the traditional purposes of navigation, commerce or fishing, the court said.
The Hoosier justices also said, at a minimum, walking on the beach is a protected public use, and the General Assembly is empowered to enlarge the public's rights on Lake Michigan's beaches.
The Gundersons claim in their petition for U.S. Supreme Court review that the Indiana ruling, and a similar 2005 decision by the Michigan Supreme Court, upset a longstanding consensus in the Great Lakes states that held private ownership extended to the water's edge, wherever that edge may be at any given time.
They argue that having a standard based on vegetation changes is confusing and prone to be applied differently in different states.
Moreover, they posit the Indiana standard reaches well beyond the high tide public-private property boundary that applies to oceanfront land, to claim "title to a huge swathe of scenic and valuable real estate that private landowners had thought was theirs" adjacent to the non-tidal Lake Michigan.
"This aggressive theory cries out for this court's intervention," the Gundersons said.
"If a perception that Great Lakes beaches are public becomes widespread, that would make it much more difficult as a practical matter to unwind Indiana's new rule."
The Indiana attorney general's office and other participants in the original case, including Alliance for the Great Lakes, Save the Dunes and the Long Beach Community Alliance, now have at least 30 days to respond to the Gundersons' petition for Supreme Court review.
Nearly every case appealed to the nation's high court ultimately fails to garner sufficient interest from four of the nine justices and is denied certiorari, leaving the lower court ruling in force.
This one, however, may attract some extra attention since Chief Justice John Roberts grew up in Long Beach.