INDIANAPOLIS — The Indiana Supreme Court heard oral arguments Thursday in a case that could determine whether Region residents and visitors will enjoy the same open access to Lake Michigan beaches as generations past.
Don and Bobbie Gunderson, of Long Beach, asked the state's high court to rule that beachfront properties on Lake Michigan extend to the water's edge and that property owners have the right to limit who enters or uses "their" beach.
Peter Rusthoven, the Gundersons' attorney, claimed the principle of ownership to the water's edge consistently has applied, even if not always enforced, from the time the land that would become Indiana was part of the Virginia colony, through the adoption of the 1787 Northwest Ordinance and into statehood in 1816.
"We have a very simple test," Rusthoven said. "Everybody can see where the water is. Everybody can see where the water's edge is."
Justice Steven David asked Rusthoven what would happen if the water in Lake Michigan receded 100 feet for some reason.
Rusthoven said lake-adjacent property owners would gain 100 feet of land, because their property line is "a moveable freehold to the water's edge."
Access for everybody
Solicitor General Thomas Fisher, representing the state, argued that in 1816 Indiana was given by the federal government ownership of its portion of Lake Michigan and the lands underneath, up to the ordinary high water mark.
That point generally is defined as the line on the shore where the presence and action of water is continuous enough to distinguish it from land through erosion, vegetation changes or other characteristics.
Fisher said the land between the ordinary high water mark and the water itself — effectively the beach — continues to be owned by the state and is maintained as a public trust for all Hoosiers to enjoy.
"The idea is everybody has access to these waters and these beaches for ordinary, reasonable activities," Fisher said.
That contention was supported by Jeffrey Hyman, attorney for Alliance for the Great Lakes and Save the Dunes, and Patricia Sharkey, attorney for the Long Beach Community Alliance.
"These folks never owned to the water's edge," Sharkey said. "They owned to the ordinary high water mark — at most."
No decision timeline
The four sitting justices asked relatively few questions during the one-hour session. Though, at the end, Justice David raised the issue of whether the Supreme Court should decide the case at all.
He observed that since the Gundersons sold their lakefront property near the time of the initial 2015 ruling in favor of the state by LaPorte Superior Judge Richard Stalbrink Jr., there no longer may be a genuine conflict for the court to resolve.
The Indiana Court of Appeals ignored the potential mootness issue last December when it decided, 3-0, that ownership of the land between the ordinary high water mark and the water itself should be shared by property owners and the state — an outcome that satisfied neither side.
Rusthoven argued that the high court should produce a definitive ruling due to the importance of the issue.
He said plenty of other lake-adjacent property owners are willing to substitute themselves as plaintiffs, if necessary.
It typically takes several months following oral arguments for the Supreme Court to announce its decision.
Justice Geoffrey Slaughter, a Crown Point native, is not participating. He has family members who own lakefront property in Ogden Dunes.