Randall Pavlock v. Eric Holcomb

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1599

RANDALL PAVLOCK, et al.,

Plaintiffs-Appellants,

v.

ERIC J. HOLCOMB, Governor of Indiana, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:19-cv-00466-JD — Jon E. DeGuilio, Chief Judge.

____________________

ARGUED NOVEMBER 10, 2021 — DECIDED MAY 25, 2022

____________________

Before MANION, WOOD, and SCUDDER, Circuit Judges.

WOOD, Circuit Judge. In Gunderson v. State, 90 N.E.3d 1171

(Ind. 2018), the Indiana Supreme Court held that the State of

Indiana holds exclusive title to Lake Michigan and its shores

up to the lake’s ordinary high-water mark. See id. at 1173.

Gunderson was an unwelcome development for plaintiffs Ran-

dall Pavlock, Kimberley Pavlock, and Raymond Cahnman,

who own beachfront property on Lake Michigan’s Indiana

shores. Believing that their property extended to the low-

2 No. 21-1599

water mark, they brought this lawsuit in federal district court

alleging that the ruling in Gunderson amounted to a taking of

their private property in violation of the Fifth Amendment.

They would like to hold the state supreme court responsible

for this alleged taking. In other words, they are asserting a

“judicial taking.”

The plaintiffs, whom we will call the Owners, sued a num-

ber of Indiana officeholders in their official capacities: Gover-

nor Eric Holcomb; the Attorney General, now Todd Rokita;

the Department of Natural Resources Director, now Daniel

Bortner; and the State Land Office Director, now Jill Flach-

skam. (We have identified the current officeholders, none of

whom was in place when the complaint was filed, with the

exception of Governor Holcomb. We have substituted the cur-

rent officials for their predecessors in accordance with Federal

Rule of Appellate Procedure 43(c)(2). We refer to the defend-

ants collectively as the State.) The district court granted the

State’s motion to dismiss for failure to state a claim. Because

none of the named officials caused the Owners’ asserted in-

jury or is capable of redressing it, we conclude that the Own-

ers lack Article III standing and affirm the judgment of the

district court, though we modify it to show that it is without

prejudice.

I

A

Indiana has long held in trust the portion of Lake Michi-

gan that lies within its borders and the submerged lands be-

low the water. See Lake Sand Co. v. State, 120 N.E. 714, 715–16

(Ind. Ct. App. 1918). The shores of Lake Michigan are sur-

rounded by privately-owned property. Owners of private

No. 21-1599 3

lakeshore property, including our plaintiffs, and the State dis-

pute where the line should be drawn between the public and

private holdings. In 2014, the Pavlocks’ neighbors filed a

quiet-title action against Indiana in state court. That was the

Gunderson case, in which the Indiana Supreme Court first at-

tempted to fix that line.

The Gunderson plaintiffs, like the Owners here, took the

position that their deeds conferred title (and thus the right to

exclude the public) past the lake’s ordinary high-water mark,

all the way down to the low-water mark. See Gunderson, 90

N.E.3d at 1175. The ordinary high-water mark is a commonly

used method of measuring the boundaries of non-tidal bodies

of water. At common law, it was defined as “the point where

the presence and action of water are so common and usual …

as to mark upon the soil of the bed a character distinct from

that of the banks, in respect to vegetation, as well as in respect

to the nature of the soil itself.” Id. at 1181 (collecting authori-

ties) (internal quotation marks omitted); compare 33 C.F.R. §

328.3 (2021) (defining the ordinary high-water mark for the

Army Corps of Engineers). By contrast, the low-water mark is

the lowest level reached by a lake or a river (for example, a

lake’s low point during a dry season). Low-Water Mark,

OXFORD ENGLISH DICTIONARY (3d ed. 2013).

The state supreme court sided with Indiana in Gunderson,

interpreting state law to require “that the boundary separat-

ing public trust land from privately-owned” lakefront prop-

erty “is the common-law ordinary high water mark.” Gunder-

son, 90 N.E.3d at 1173. The court reached its decision by trac-

ing the history of the public-trust doctrine. It began by apply-

ing the Equal-Footing doctrine, see, e.g., PPL Montana, LLC v.

Montana, 565 U.S. 576, 590–91 (2012), under which Indiana

4 No. 21-1599

received exclusive title to the lands underlying the Great

Lakes when the state was admitted to the Union in 1816.

Gunderson, 90 N.E.3d at 1176–77 (citing Martin v. Waddell’s Les-

see, 41 U.S. 367, 414 (1842) (holding that when the original thir-

teen states “became themselves sovereign” each acquired “the

absolute right to all their navigable waters and the soils under

them for their own common use”); Utah v. United States, 403

U.S. 9, 10 (1971) (holding that, under the “‘equal footing’ prin-

ciple,” later-admitted states acquired “the same property in-

terests in submerged lands as was enjoyed by the Thirteen

Original States”); Hardin v. Jordan, 140 U.S. 371, 382 (1891) (ex-

tending public ownership over navigable waters and under-

lying land “to our great navigable lakes, which are treated as

inland seas.”)). Following the weight of authority, the state

supreme court concluded that “Indiana at statehood acquired

equal-footing lands inclusive of the temporarily-exposed

shores of Lake Michigan up to the natural [ordinary high-wa-

ter mark].” Id. at 1181.

The Indiana Supreme Court then asked whether, at some

point between statehood and the present day, the state relin-

quished title to the land below Lake Michigan’s ordinary

high-water mark. This issue, it recognized, is one of state law.

See Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co.,

429 U.S. 363, 376–77 (1977) (explaining that, while the Equal-

Footing doctrine is a matter of federal law, “subsequent

changes in the contour of the land, as well as subsequent

transfers of the land, are governed by the state law”). To an-

swer that question, the court examined its own cases, the Lake

Preservation Act, Ind. Code § 14-26-2-5, and other provisions

of the Indiana Code. It concluded that, with the exception of

discrete parcels not relevant here, Indiana has never relin-

quished title to Lake Michigan’s shores below the ordinary

No. 21-1599 5

high-water mark. Gunderson, 90 N.E.3d at 1182–85. Thus, as a

matter of state law, the court concluded that Indiana holds ab-

solute title to the lands under Lake Michigan up to the ordi-

nary high-water mark. Private landowners in Indiana may

thus hold title only to beachfront property above (i.e. land-

ward of) that boundary. Id. at 1182.

Shortly after Gunderson was decided, the Indiana General

Assembly passed House Enrolled Act (HEA) 1385, which cod-

ified the Gunderson decision. The Act stipulates that:

(a) Absent any authorized legislative convey-

ance before February 14, 2018, the state of In-

diana owns all of Lake Michigan within the

boundaries of Indiana in trust for the use

and enjoyment of all citizens of Indiana.

(b) An owner of land that borders Lake Michi-

gan does not have the exclusive right to use

the water or land below the ordinary high

water mark of Lake Michigan.

Ind. Code § 14-26-2.1-3. The plaintiffs argue that HEA 1385

further broadened public use of the Lake Michigan shoreline.

Gunderson held that “at a minimum, walking below the [ordi-

nary high-water mark] along the shores of Lake Michigan” is

a protected public use, along with commerce, navigation, and

fishing. Gunderson, 90 N.E.3d at 1188. The statute, however,

expressly recognizes public uses such as boating, swimming,

and other ordinary recreational uses. Ind. Code § 14-26-2.1-

4(b).

6 No. 21-1599

B

Because this case was resolved on a motion to dismiss, we

accept all well-pleaded factual allegations in the complaint as

true. Hardeman v. Curran, 933 F.3d 816, 819 (7th Cir. 2019).

The Owners all hold title to beachfront property on the

Lake Michigan shore. None of them was a party to Gunderson

(though Cahnman participated as amicus curiae). Like the

Gunderson plaintiffs, the Owners here allege that their prop-

erty deeds cover land that extends down to Lake Michigan’s

low-water mark. Therefore, they argue, when the Indiana Su-

preme Court determined that the state has always held title to

the land all the way up to the ordinary high-water mark, In-

diana’s highest court “took” (for Fifth Amendment purposes)

a portion of their property without just compensation. HEA

1385, they argue, was also an uncompensated taking, because

it expanded Gunderson’s easement to permit additional uses.

Faced with this unfavorable ruling from the state court,

the Owners turned to the federal court, filing this action un-

der 42 U.S.C. § 1983 against the state defendants we men-

tioned, all of whom are sued in their official capacities. The

Owners want the federal court to issue a declaratory judg-

ment stating that the Indiana Supreme Court’s decision in

Gunderson (and HEA 1385) effected an uncompensated taking

of their property between the ordinary high-water mark and

the low-water mark. They also seek a permanent injunction

barring the state defendants from enforcing Gunderson and

HEA 1385. The Owners concede that their challenge to HEA

1385 turns on their judicial-takings claim. If Gunderson stands,

it follows that the Owners never held title to the land below

the ordinary high-water mark, and the legislation therefore

had no effect on their property rights. The Owners are not

No. 21-1599 7

seeking compensation for the alleged taking; they want only

to be able to exclude members of the public from the lands

they claim.

The district court granted the State’s motion to dismiss un-

der Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It

held that the Owners’ claims are functionally equivalent to a

quiet-title action, and so are barred by sovereign immunity

under Idaho v. Coeur d’Alene Tribe of Idaho. See 521 U.S. 261

(1997) (establishing a narrow exception to the Ex parte Young

doctrine). The court declined to reach the question whether it

is possible to state a claim for a judicial taking. Even if the an-

swer were yes, the court reasoned, the Owners could not

show that they ever held an “established right” to the prop-

erty allegedly taken by the state court through Gunderson. See

Stop the Beach Renourishment, Inc. v. Florida Dep’t of Env’t Prot.,

560 U.S. 702, 713 (2010).

II

In this court, the Owners have tried to develop their “ju-

dicial takings” theory. They contend that the Indiana Su-

preme Court itself took their property through its Gunderson

decision, and no state actor has paid them for it. Before dis-

cussing this theory any further, it is helpful to provide some

context for it.

The Takings Clause of the Fifth Amendment states that

“private property [shall not] be taken for public use without

just compensation.” U.S. Const. amend. V. The Takings

Clause applies to the states through the Fourteenth Amend-

ment, Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155,

163–65 (1980), but that does not necessarily mean that it ap-

plies to the states’ judiciaries. The Supreme Court last

8 No. 21-1599

considered the judicial-takings question in Stop the Beach Re-

nourishment, Inc. v. Florida Department of Environmental Protec-

tion, but in that case, no majority of the Court agreed on

“whether, or when, a judicial decision determining the rights

of property owners can violate the Takings Clause[.]” 560 U.S.

702, 734 (2010) (Kennedy, J., concurring). Since then, neither

this court nor any of our fellow circuits have recognized a ju-

dicial-takings claim.

In Stop the Beach, only four justices endorsed the argument

that a court decision settling disputed property rights under

state law could, in some circumstances, violate the Takings

Clause. See id. at 706, 713–14. There, owners of littoral prop-

erty challenged a decision of the Florida Supreme Court re-

solving an open question about the boundary between their

private holdings and state-owned land. The case turned on a

Florida statute that authorized local governments to restore

eroding beaches; under the statutory scheme, the state fixed

an “erosion control line” that replaced “the fluctuating mean

high-water line as the boundary between” private and state

property wherever the preservation projects took place. Id. at

709–10. Beachfront property owners sued in state court, argu-

ing that the law deprived them of their property rights with-

out just compensation. The Florida Supreme Court rejected

that argument, holding instead that the law did not violate

Florida’s version of the Takings Clause (which mirrors its

Fifth Amendment counterpart). See Stop the Beach, 560 U.S. at

712. The property owners appealed to the Supreme Court, ar-

guing that the Florida Supreme Court took their property

rights “by declaring that those rights did not exist[.]” Stop the

Beach, 560 U.S. at 729.

No. 21-1599 9

Writing for four Justices, Justice Scalia urged the Court to

declare that a judicial decision resolving contested property

rights could be a taking. In his view, there was “no textual

justification” for “allow[ing] a State to do by judicial decree

what the Takings Clause forbids it to do by legislative fiat.”

Id. at 714. Justice Scalia’s plurality opinion proposed a new

test for identifying when a judicial taking occurs: “[i]f a legis-

lature or a court declares that what was once an established

right of private property no longer exists, it has taken that

property, no less than if the State had physically appropriated

it or destroyed its value by regulation.” Id. at 715 (emphasis in

original).

Justices Kennedy and Breyer filed separate opinions con-

curring in part, and concurring in the judgment, in which they

expressed grave doubts about the judicial-takings concept;

Justice Stevens, the ninth Justice, took no part in the decision.

Justice Scalia’s opinion on the key point did not marshal a ma-

jority, and no “controlling principle [on the judicial takings

issue] can be gleaned” from the plurality and concurring

opinions. Gibson v. Am. Cyanamid Co., 760 F.3d 600, 615 (7th

Cir. 2014). Indeed, much of the discussion about judicial tak-

ings could be regarded as dicta, because the Court unani-

mously held that in any case, the relevant state-court decision

did not effect a taking because it did not “eliminate[] a right

[] established under Florida law.” Stop the Beach, 560 U.S. at

733 (“The Takings Clause only protects property rights as they

are established under state law[.]”).

Justice Kennedy (joined by Justice Sotomayor) took the

position that the state’s “vast” power to take property, so long

as it acts for a public purpose and provides just compensation,

belongs only to the democratically accountable legislative and

10 No. 21-1599

executive branches. Stop the Beach, 560 U.S. at 734–35 (Ken-

nedy, J., concurring in the judgment). If an arbitrary or irra-

tional judicial decision “eliminates an established property

right,” he wrote, that decision could be “invalidated under the

Due Process Clause” as a deprivation of a property right with-

out due process. Id. at 735. The due-process constraint allows

states to make reasonable “incremental modification under

state common law” but bars courts from “abandon[ing] set-

tled principles.” Id. at 738. But, he thought, recognizing a

claim for judicial takings implies that the courts have the

power to take property with compensation—a power “that

might be inconsistent with historical practice.” Id. at 739 (dis-

cussing the Framers’ view of the Takings Clause). Moreover,

he wrote, the judicial-takings theory would raise vexing pro-

cedural and remedial issues. Id. at 740. In a second opinion

concurring in the judgment, Justice Breyer (joined by Justice

Ginsburg) raised comity and federalism concerns, noting that

a claim for judicial takings “would create the distinct possibil-

ity that federal judges would play a major role in the shaping

of a matter of significant state interest—state property law.”

Id. at 744 (Breyer, J., concurring).

Since Stop the Beach was decided, no federal court of ap-

peals has recognized this judicial-takings theory. What has

occurred instead is avoidance: every circuit to consider the is-

sue has expressly declined to decide whether judicial takings

are cognizable. Instead, each court has assumed without de-

ciding that if such a cause of action were to exist, the relevant

test would be the one Justice Scalia suggested in his Stop the

Beach plurality opinion: did some arm of the state declare that

“what was once an established right of private property no

longer exists”? 560 U.S. at 715. In each of the cases that have

reached our sister circuits, the courts have held that the

No. 21-1599 11

challenged state-court decision had not erased an established

property right. Thus, even if there were a theoretical claim for

a “judicial” taking, the plaintiffs failed. See Wells Fargo Bank v.

Mahogany Meadows Ave. Tr., 979 F.3d 1209, 1215–16 (9th Cir.

2020) (declining to answer whether judicial-takings claims are

possible when “nothing in Nevada law” showed that plain-

tiffs had an “established right” to disputed property); Petrie ex

rel. PPW Royalty Tr. v. Barton, 841 F.3d 746, 756 (8th Cir. 2016)

(opting not to decide whether a claim for judicial takings ex-

ists where it “would have failed” anyway); In re Lazy Days’ RV

Ctr. Inc., 724 F.3d 418, 425 (3d Cir. 2013) (quickly discarding a

claim that a bankruptcy order was a taking because “adjudi-

cation of disputed and competing claims cannot be a taking”).

III

The Owners have a different, antecedant problem in the

case before us: that of Article III standing. See Summers v.

Earth Island Inst., 555 U.S. 488, 499 (2009) (“[T]he court has an

independent obligation to assure that standing exists, regard-

less of whether it is challenged by any of the parties.”). The

test for standing is a familiar one: “[a] plaintiff has stand-

ing only if he can allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be re-

dressed by the requested relief.” California v. Texas, --- U.S. ---

-, 141 S. Ct. 2104, 2113 (2021) (citing cases; internal quotations

omitted). The party invoking federal jurisdiction has the bur-

den of proving each of these requirements. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992). We are satisfied that the

Owners have alleged injury in fact, insofar as they assert that

their property was taken without just compensation. They fall

short, however, when it comes to causation and redressabil-

ity.

12 No. 21-1599

A

We begin with redressability. The Owners must show that

it is “likely … that the injury will be redressed by a favorable

decision.” Lujan, 504 U.S. at 561 (internal quotations omitted).

They have not done so. None of the defendants sued has the

power to grant title to the Owners in the face of the Indiana

Supreme Court’s Gunderson decision and HEA 1385. Even if

we were to agree with the Owners, therefore, a judgment in

their favor would be toothless.

Redressability turns on the “connection between the al-

leged injury and the judicial relief requested.” Allen v. Wright,

468 U.S. 737, 753 n.19 (1984). The Owners’ injury stems from

the fact that, for many years, Indiana courts had not decided

where the public land of Lake Michigan ends and private

property begins. The Gunderson decision resolved that uncer-

tainty by definitively holding that the boundary lies at the or-

dinary high-water mark. Essentially, the Owners think that

the state supreme court erred by making that decision (either

as a matter of state law or federal law), and they would like

us to overturn that court’s ruling. Until it is set aside, the

Owners contend, they have been deprived of their asserted

title to the land between the high- and low-water marks with-

out just compensation.

There are a number of problems with this approach, not

least of which is that we lack authority to overrule a state su-

preme court. But the straightforward point is that none of the

state defendants the Owners have named—not the Governor,

not the Attorney General, not the Indiana Department of Nat-

ural Resources, and not the State Land Office—has the power

to confer title on the Owners to land that Indiana’s highest

No. 21-1599 13

court says belong to the state. No injunction we enter can fix

that problem.

Typically, a lawsuit alleging that a plaintiff “suffered a vi-

olation of his Fifth Amendment rights” is redressable through

compensation. Knick v. Township of Scott, --- U.S. ----, 139 S. Ct.

2162, 2168 (2019). But the Owners did not sue for compensa-

tion from the state of Indiana—and even if they had, it is not

clear that federal courts could provide it. The Supreme

Court’s recent decision in Knick v. Township of Scott held that

a plaintiff may “bring a ‘ripe’ federal takings claim in federal

court,” without first exhausting state remedies, “as soon as a

government takes his property for public use without paying

for it.” Id. at 2167, 2170. But unlike Knick, which involved a

suit against a town, the Owners’ suit is against a state, and

states enjoy sovereign immunity. See Jinks v. Richland County,

538 U.S. 456, 466 (2003) (“[M]unicipalities, unlike States, do

not enjoy a constitutionally protected immunity from suit.”).

Every circuit to consider the question has held that Knick did

not change states’ sovereign immunity from takings claims

for damages in federal court, so long as state courts remain

open to those claims. See Zito v. N.C. Coastal Res. Comm’n,

8 F.4th 281, 286–88 (4th Cir. 2021); see also Ladd v. Marchbanks,

971 F.3d 574, 579 (6th Cir. 2020), cert. denied, --- U.S. ----, 141

S. Ct. 1390 (2021); Williams v. Utah Dep’t of Corr., 928 F.3d 1209,

1214 (10th Cir. 2019); Bay Point Props., Inc. v. Miss. Transp.

Comm’n, 937 F.3d 454, 456–57 (5th Cir. 2019), cert. denied, ---

U.S. ----, 140 S. Ct. 2566 (2020). In addition, states are not “per-

sons” for purposes of 42 U.S.C. § 1983. See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989), and so damages are

not available using that theory. Recognizing these hurdles,

the Owners seek only equitable and declaratory relief.

14 No. 21-1599

Specifically, the Owners want an injunction barring the

State from enforcing Gunderson or HEA 1385. Assuming for

the moment that Ex parte Young’s exception to sovereign im-

munity applies here, see Section IV.A infra, and that we can

entertain such a request, it remains true that such an injunc-

tion would not redress the Owners’ injury. Once again, that

alleged injury comes from the fact that Gunderson recognized

that the Owners’ property interests end at the ordinary high-

water mark on Lake Michigan’s shores. An injunction barring

the State from enforcing the decision would do nothing to al-

ter the state’s title to the land.

Gunderson recognized that members of the public have a

right to walk on the beach in front of the Pavlocks’ house as

long as they stay lakeward of the high-water mark; an injunc-

tion requiring the State to refrain from any action would not

grant the Pavlocks the right to exclude. If Cahnman wants to

sell his beachfront property, he may convey land only from

the high-water mark. The requested injunction would not

give him title to submerged lands that Indiana law (confirmed

by both the state’s highest court and its legislature) says be-

longs to the state. To the extent the Owners’ deeds conflict

with Gunderson and HEA 1385, the latter two sources govern.

And if, for example, the Pavlocks tried to sue people who

walked on the section of beach between the high- and low-

water marks for trespass, or Cahnman tried to hoodwink a

buyer by representing that he held title down to the low-wa-

ter mark, an injunction against state officials would not pre-

vent Indiana’s Recorder’s Offices from correcting that error,

or Indiana courts from applying Gunderson.

In this respect, the Owners’ judicial takings claim differs

materially from the one at issue in Cedar Point Nursery v.

No. 21-1599 15

Hassid, --- U.S. ----, 141 S. Ct. 2063 (2021), in which “the gov-

ernment physically [took] possession of property without ac-

quiring title to it.” Id. at 2071. In Cedar Point, California agri-

cultural employers challenged a state regulation that guaran-

teed union organizers physical access to their property to or-

ganize farmworkers. Id. at 2069. The Supreme Court held that

California’s access regulation was a per se physical taking re-

quiring compensation and remanded the case for further pro-

ceedings. Id. at 2080. The Cedar Point plaintiffs, like the Own-

ers, sought only declaratory and injunctive relief. But unlike

our plaintiffs, the California growers’ injury was not the loss

of a dispute about who held title; it was the uncompensated

taking of property that they indisputably owned. A court

could redress that injury prospectively by enjoining enforce-

ment of the regulation, or retrospectively by ordering just

compensation. See id. at 2089 (Breyer, J., dissenting). Here, by

contrast, ordering any of the named state defendants not to

enforce a state property law cannot redress the Owners’ inju-

ries, because non-enforcement will not change the content of

the underlying law itself.

B

The Owners have also failed to establish the related cau-

sation requirement for Article III standing. As the parties as-

serting federal jurisdiction, they must show that their alleged

injury is “fairly traceable” to a defendant’s allegedly illegal

action, “and not the result of the independent action of some

third party not before the court.” Lujan, 504 U.S. at 560 (citing

Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976))

(cleaned up).

The property between the high- and low-water marks is

held in public trust, but not because of any action taken by

16 No. 21-1599

these state defendants. Rather, that property is held in public

trust because the Indiana Supreme Court, an independent ac-

tor, settled the Gunderson dispute as a matter of state law, and

the state legislature then confirmed that result. The court re-

lied on a long line of federal and state decisions recognizing

the Equal-Footing doctrine and setting the boundaries be-

tween Indiana’s public trust lands and surrounding private

property. See Gunderson, 90 N.E.3d at 1179–87. The Owners

attempt to dodge this problem by suing state officials who are

charged with enforcing state property law. As we already

have said, however, the state’s enforcement or non-enforce-

ment has no effect on the underlying title to the land. Moreo-

ver, the Owners’ complaint does not include any allegations

showing that the state defendants’ enforcement of Gunderson

has caused any further injury that they have not already ex-

perienced as a result of the decision itself. The Owners’ injury

is therefore traceable not to the state defendants, but to the

independent actions of the Indiana Supreme Court.

C

The Owners’ causation and redressability problems high-

light the federalism and comity concerns that are inherent in

the judicial-takings theory. In Gunderson, the Indiana Su-

preme Court resolved a state-law issue of first impression and

issued a thorough decision determining where the public-pri-

vate boundary lies on the shores of Lake Michigan. If the court

is correct, then the property between the ordinary high-water

mark and the low-water mark could not have been taken, be-

cause it was never privately owned in the first place. See Co-

nyers v. City of Chicago, 10 F.4th 704, 711 (7th Cir. 2021) (noting

that there is a “predicate requirement [in Takings cases] that

the private property [allegedly taken] must belong to the

No. 21-1599 17

plaintiff.”) The Owners may be able to say, in good faith, that

their expectations were disturbed, just as any losing party in

a state court case involving disputed property rights might

do. But it is the role of “the state court … to define rights in

land located within the states.” Fox River Paper Co. v. R.R.

Comm’n of Wis., 274 U.S. 651, 657 (1927) (adding that “the

Fourteenth Amendment, in the absence of an attempt to fore-

stall our review of the constitutional question, affords no pro-

tection to supposed rights of property which the state courts

determine to be nonexistent”). If the Owners never had title

to this property under Indiana law, it could not have been

“taken” by the state.

As we noted earlier, it is state property law itself, rather

than any action by the state parties, that is adverse to the

Owners’ claims. We would be unable to hold that their prop-

erty was taken without also holding that Gunderson was

wrongly decided. In effect, their theory of the case would

have us sit in appellate review of the Indiana Supreme Court’s

decision about state property law—a role that would sit un-

easily next to the Supreme Court’s exclusive “statutory au-

thority to review the decisions of state courts in civil cases.”

Milchtein v. Chisholm, 880 F.3d 895, 897 (7th Cir. 2018) (citing

28 U.S.C. § 1257). We recognize, in this connection, that the

Rooker-Feldman doctrine does not apply here, because the

Owners were not parties to the Gunderson litigation. See Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

Nonetheless, that doctrine’s animating federalism values

counsel us to proceed cautiously when a novel legal theory

raises the specter of a lower federal court reviewing the merits

of a state supreme court’s decision.

18 No. 21-1599

IV

Before concluding, we note that the district court dis-

missed this case for two additional reasons. First, it held that

it lacked subject-matter jurisdiction because this case falls un-

der a narrow exception to the Ex parte Young doctrine estab-

lished by the Supreme Court’s decision in Idaho v. Coeur

d’Alene Tribe of Idaho, 521 U.S. 261 (1997). Generally, a plaintiff

may sue under Ex parte Young’s exception to the Eleventh

Amendment’s sovereign-immunity bar so long as the com-

plaint “alleges an ongoing violation of federal law and seeks

relief properly characterized as prospective.” Verizon Md., Inc.

v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). In Coeur

d’Alene Tribe, however, the Supreme Court announced that

the Ex parte Young rule has a narrow exception for a “quiet

title suit against [a state] in federal court” or a suit for injunc-

tive relief that is “close to the functional equivalent of quiet

title.” 521 U.S. at 281–82; see also ERWIN CHEMERINSKY,

FEDERAL JURISDICTION (7TH EDITION) 471, 477–78 (2016).

Pointing to some criticism of Coeur d’Alene Tribe, the Own-

ers suggest that it was a one-way, one-day case with no fur-

ther applicability, or alternatively, that it does not apply to

suits brought by private property holders rather than Tribal

nations. The State responds that Coeur d’Alene Tribe remains

good law and squarely governs this case, because it is “close

to the functional equivalent of quiet title.” Coeur d’Alene, 521

U.S. at 282.

The district court agreed with the State. In addition, it held

that even assuming the judicial-takings theory might apply

somewhere, the Owners had not managed to state a claim un-

der it here. Recall that Justice Scalia’s proposed test for a judi-

cial taking requires plaintiffs to show that “the property right

No. 21-1599 19

allegedly taken was established” as a matter of state law, prior

to the decision. See Stop the Beach, 560 U.S. at 728 (emphasis

added). The district court thought that the Owners’ complaint

revealed on its face that no such right was established. Prior

to Gunderson, it noted, the status of Indiana’s Lake Michigan

coastline had been ambiguous at best. The Owners have not

and could not show that the Indiana Supreme Court’s deci-

sion was a sharp or unexpected departure from a clearly es-

tablished property right. Rather, the state court in Gunderson

settled an unclear and disputed issue of first impression. The

district court therefore noted that, even if it had jurisdiction

over the case, it would have dismissed the Owners’ action for

failure to state a claim under Rule 12(b)(6).

Because the Owners lack standing to sue the state defend-

ants, we need not reach either the Coeur d’Alene issue or the

alternative ruling under Rule 12(b)(6) today. We merely note

that the Owners could not prevail without also overcoming

these additional hurdles.

V

The Owners contend that the Indiana Supreme Court’s de-

cision in Gunderson v. Indiana unconstitutionally took their

property without compensation. Because they have sued the

Indiana Governor and several state executive officials who

neither caused the asserted injury nor can redress it, they lack

standing to sue under Article III of the Constitution. We there-

fore AFFIRM the district court’s dismissal of the complaint for

lack of subject-matter jurisdiction, although we modify it to a

dismissal without prejudice.