INDIANAPOLIS — There is no need for the U.S. Supreme Court to wade into a dispute over who owns the Lake Michigan shoreline, since the Indiana Supreme Court already has clearly resolved the question in favor of the state.
That's the argument recently forwarded by the Indiana attorney general's office to the nation's highest court, in response to a final effort by Bobbie and Don Gunderson, of Long Beach, to claim ownership and exclusive control of the beach to the water's edge.
As a preliminary matter, the state urges the Supreme Court not even to consider the Gunderson petition for review, because the Gundersons sold their lake-adjacent Long Beach property in 2015 and no longer have a direct interest in the outcome of the case.
Solicitor General Thomas Fisher, who represents Indiana at the Supreme Court, pointed out that under federal court precedents, "An actual controversy must be extant at all stages of review, not merely at the time the complaint is filed."
The Gundersons' sale of their property, its subdivision into two lots and the second sale of the two properties to individuals living in Chicago and England, means there is no reason for the Supreme Court to look at the Gundersons' appeal, Fisher said.
"The current owners of (the parcels) are not wholly owned subsidiaries, insurers or even friends of the Gundersons (so far as is known to the state)," he said.
"Instead, the Gundersons wish to litigate the property rights of wholly unrelated persons, and to do so with no evidence in the record suggesting that the current owners even desire this litigation of their rights."
The Indiana Supreme Court acknowledged the Gundersons' lack of standing in its Feb. 14, 2018 decision, but nevertheless heard arguments and reached a ruling under a state mootness exception for questions of "great public interest."
Fisher explained there is no similar exception for federal court cases, which he said makes the Gundersons' appeal an "exceedingly poor candidate" for a high court decision that could affect property owners in every Great Lakes state.
No federal question
Beyond the standing issue, Fisher said there's no point in the U.S. Supreme Court weighing in, because the Indiana high court correctly identified the boundary of lake-adjacent properties as the ordinary high water mark, or roughly the spot where beach becomes land.
The Indiana Supreme Court ruled, in a 4-0 decision, that the state acquired the property under its portion of Lake Michigan and up to the ordinary high water mark on the shoreline when it achieved statehood in 1816.
Within that shoreline area, individuals are entitled to access the water for the purposes of navigation, commerce, fishing, walking and any other public rights identified by the General Assembly, the Hoosier justices said.
Fisher acknowledged that while some Great Lakes states have permitted lake-adjacent property owners to share title to the shoreline, Indiana has not, and there is no federal dispute for the U.S. Supreme Court to resolve, since the ownership question has been answered by each state.
"Intervention by the court here could only interfere with Indiana's legitimate state law determinations without resolving any actual lower-court federal law disagreements," Fisher said.
The Supreme Court last week also received filings from the Long Beach Community Alliance, Save the Dunes and Alliance for the Great Lakes recommending that the Indiana high court ruling remain undisturbed.
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.