INDIANAPOLIS — A years-long legal dispute over who owns Lake Michigan's shoreline may be headed to the nation's highest court.
In February, the Indiana Supreme Court decisively ruled that the shoreline is owned by the state, held in trust for use by all Hoosiers, and the property of lake-adjacent land-owners ends where the soil becomes beach, also known as the ordinary high water mark.
But attorneys for Bobbie and Don Gunderson, the Long Beach couple who claim lakefront property should extend to the water's edge, with owners entitled to exclusive control over "their" beach, are preparing to appeal that decision to the U.S. Supreme Court.
Justice Elena Kagan last week approved without comment a request from Gunderson attorneys Aaron Van Oort and Nicholas Nelson, of the Minneapolis firm Faegre Baker Daniels LLP, to extend to Oct. 5 the deadline for seeking U.S. Supreme Court review.
Typically, a request for action by the Supreme Court, also known as filing a petition for a writ of certiorari, must be made within 90 days of a final decision by a federal appellate court or a state court of last resort.
In this case, the clock began ticking toward Tuesday's original deadline after the Indiana Supreme Court on May 9 denied a Gunderson motion to reconsider its landmark Feb. 14 decision.
U.S. Supreme Court rules state that an application to extend the time to file a petition for a writ of certiorari "is not favored." But a justice may permit an additional 60 days "for good cause."
The Gunderson application was sent to Kagan because she is assigned to handle such requests originating from the 7th U.S. Circuit Court of Appeals, which includes Indiana, Illinois and Wisconsin, as well as the 6th Circuit states of Michigan, Ohio, Kentucky and Tennessee.
Van Oort and Nelson said in their request for additional time they've only recently been retained by the Gundersons and still are working to "familiarize themselves with the record in the case and to prepare the petition."
Both Minnesota natives have near-Northwest Indiana ties. Van Oort is a graduate of the University of Chicago Law School, while Nelson earned his law degree at the University of Notre Dame.
The attorneys note in their application that the Gunderson case offers the U.S. Supreme Court an opportunity to resolve the unsettled question of how the ordinary high water mark is defined for large non-tidal lakes with extensive beaches — such as the Great Lakes.
They point out that the ordinary high water mark for the ocean is its highest tide level, and adjacent residents can own and control any beach that exists prior to that spot.
However, they observe that the Great Lakes states, now including Indiana, insist that their shoreline ownership extends to where the beach becomes land, in effect asserting rights over "beachfront that private landowners had thought were their own (and often paid property taxes on)."
"The states cannot assert property rights in Great Lakes beaches if, as a matter of federal law, they never received those rights in the first place," Van Oort and Nelson write. "A petition for certiorari in this case would present that question for the court's review."
Assuming the Gunderson attorneys file a certiorari petition by Oct. 5, it's still far from guaranteed that the Supreme Court will agree to hear the case and issue a ruling.
Between 7,000 and 8,000 petitions for certiorari annually are filed with the high court. During the 2017-18 term, the nine justices decided just 72 cases, or about 1 percent.
Four of the nine justices must agree to accept a case before it can be set for review by the Supreme Court.
Indiana Attorney General Curtis Hill is expected to defend the state court ruling that Lake Michigan's beaches are property of the state and open to all.
Before that, however, Hill is likely to urge the Supreme Court to dismiss the case as moot, since the Gundersons sold their Lake Michigan-adjacent property to a developer in March 2015, and no longer have legal standing to challenge the location of the ordinary high water mark.
The Indiana Supreme Court agreed to decide the case anyway, because it involved "questions of great public interest."
The U.S. Supreme Court generally requires an actual controversy be at stake before it will consider setting a nationwide legal precedent.
Though this case may get special attention as Chief Justice John Roberts spent most of his childhood in Long Beach.