Petition for Writ of Certiorari — Bobbie Gunderson, et vir, Petitioners v. Indiana, et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------BOBBIE GUNDERSON, et vir,

Petitioners,

v.

STATE OF INDIANA, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of Indiana

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------ERNEST SUMMERS

SHAWN M. DOORHY

FAEGRE BAKER DANIELS LLP

311 S. Wacker Dr.

Suite 4300

Chicago, IL 60606

AARON D. VAN OORT

Counsel of Record

NICHOLAS J. NELSON

FAEGRE BAKER DANIELS LLP

2200 Wells Fargo Ctr.

90 S. Seventh St.

Minneapolis, MN 55402

(612) 766-8138

aaron.vanoort@faegrebd.com

October 5, 2018

Counsel for Petitioners

Bobbie and Don Gunderson

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Under federal law, on admission to the Union a

state takes title to lands underlying navigable waters,

up to the “ordinary high water mark.” On the seashore

this mark is the average high-tide line, which typically

falls partway up the beach. But this Court has yet to

clarify how the high-water mark is defined on nontidal lakes, such as the Great Lakes.

The question presented is whether—in conflict

with the rule on the seashore—the newly-admitted

states took title to the entire beach surrounding the

Great Lakes.

ii

PARTIES TO THE PROCEEDING

Petitioners Bobbie and Don Gunderson were the

Plaintiffs and the Appellants/Cross-Appellees in the

Indiana courts.

Respondents the State of Indiana and the Indiana

Department of Natural Resources were the Defendants and the Appellees in the Indiana courts.

Respondents Alliance for the Great Lakes and

Save the Dunes, the Long Beach Community Alliance,

Patrick Cannon, John Wall, Doria Lemay, Michael

Salmon, and Thomas King were Intervenor-Defendants and Appellees/Cross-Appellants in the Indiana

courts.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDING ......................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

3

JURISDICTION ...................................................

3

CONSTITUTIONAL AND STATUTORY PROVISIONS ...............................................................

4

STATEMENT OF THE CASE..............................

5

A.

B.

Federal Law Grants States Title In Submerged Lands ............................................

5

The Federal Equal-Footing Grant Ends At

The High-Water Mark ...............................

8

C. The Great Lakes And Their Water Levels .... 12

D.

States Have Recently Taken Conflicting

Approaches To Public Rights In Great

Lakes Beaches ........................................... 14

E.

Indiana Claims Title To The Lake Michigan Beach .................................................. 18

REASONS FOR GRANTING THE WRIT............ 22

I.

The Great Lakes States Take Conflicting

Approaches To Public Beach Access Because They Have Conflicting Views Of The

Equal-Footing Doctrine ............................. 23

iv

TABLE OF CONTENTS – Continued

Page

II.

Indiana’s Aggressive Approach To EqualFooting Boundaries Is Unjustified ............ 26

III.

Now Is The Time For This Court’s Review .... 28

CONCLUSION..................................................... 30

APPENDIX

Opinion, Supreme Court of Indiana (February

14, 2018) ............................................................ App.1

Opinion, Court of Appeals of Indiana (December

7, 2016) ............................................................ App.40

Order Denying Plaintiffs’ Motion for Declaratory Summary Judgment; Granting Defendants’ and Intervenor Defendants’ CrossMotions for Summary Judgment, Superior

Court of Indiana, Michigan City, Laporte

County (July 24, 2015) .................................... App.64

Denial of Rehearing, Indiana Supreme Court

(May 9, 2018) ................................................... App.91

v

TABLE OF AUTHORITIES

Page

CASES

Alaska Dept. of Natural Resources v. Pankratz,

538 P.2d 984 (Alaska 1975).....................................11

Barney v. City of Keokuk, 94 U.S. (4 Otto) 324

(1876) .........................................................................6

Borax Consolidated v. City of Los Angeles, 296

U.S. 10 (1935) .................................................. 8, 9, 24

Brundage v. Knox, 117 N.E. 123 (Ill. 1917) ................15

Carpenter v. Bd. of Comm’rs of Hennepin Cty., 58

N.W. 295 (Minn. 1894) .............................................16

City of Little Rock v. Jeuryens, 202 S.W. 45 (Ark.

1918) ........................................................................11

Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005) .... passim

Hardin v. Jordan, 140 U.S. 371 (1891) .......................12

Heckman Ranches, Inc. v. Idaho ex rel. Dep’t of

Public Lands, 589 P.2d 540 (Idaho 1979) ...............11

Hilt v. Weber, 233 N.W. 159 (Mich. 1930) ............. 16, 17

Howard v. Ingersoll, 54 U.S. (13 How.) 381

(1851) ............................................................... passim

Idaho v. United States, 533 U.S. 262 (2001) ...............12

Illinois Cent. R. Co. v. Illinois, 146 U.S. 387

(1892) .........................................................................7

Martin v. Waddell’s Lessee, 41 U.S. (16 Pet.) 367

(1842) .........................................................................5

McGilvra v. Ross, 215 U.S. 70 (1909)..........................12

vi

TABLE OF AUTHORITIES – Continued

Page

Minnesota ex rel. Head v. Slotness, 185 N.W.2d

530 (Minn. 1971) .....................................................16

Minnesota v. Korrer, 148 N.W. 617 (Minn. 1914) .......16

Mitchell v. City of St. Paul, 31 N.W.2d 46 (Minn.

1948) ........................................................................16

Nies v. Town of Emerald Isle, 780 S.E.2d 187

(N.C. Ct. App. 2015) ...................................................9

Nollan v. California Coastal Comm’n, 483 U.S.

825 (1987) ................................................................10

Ohio ex rel. Merrill v. Ohio Dep’t of Natural Resources, 955 N.E.2d 935 (Ohio 2011) ................ 15, 29

Oregon ex rel. State Land Board v. Corvallis

Sand & Gravel Co., 429 U.S. 363 (1977)............... 6, 7

Packer v. Bird, 137 U.S. 661 (1891) ..............................5

PPL Montana, LLC v. Montana, 565 U.S. 576

(2012) .........................................................................6

Purdie v. Attorney General, 732 A.2d 442 (N.H.

1999) ........................................................................10

Seaman v. Smith, 24 Ill. 521 (1860) ...........................15

Shively v. Bowlby, 152 U.S. 1 (1894)......................... 5, 7

South Dakota Wildlife Fed. v. Water Mgmt. Bd.,

382 N.W.2d 26 (S.D. 1986).......................................11

Stop the Beach Renourishment, Inc. v. Florida

Dept. of Envt’l Protection, 560 U.S. 702 (2010) .......10

Sun Dial Ranch v. May Land Co., 119 P. 758 (Or.

1912) ........................................................................12

vii

TABLE OF AUTHORITIES – Continued

Page

The Genesee Chief, 53 U.S. (12 How.) 443

(1851) ............................................................. 6, 12, 27

Trepanier v. Cnty. of Volusia, 965 So.2d 276 (Fla.

Ct. App. 2007) ...........................................................9

United States v. Alaska, 521 U.S. 1 (1997) ...................9

United States v. Pend Oreille Pub. Util. Dist. No.

1, 926 F.2d 1502 (9th Cir. 1991) ..............................11

United States v. Texas, 339 U.S. 707 (1950) .................6

Utah Division of State Lands v. United States,

482 U.S. 193 (1987) ....................................... 5, 12, 27

Utah v. United States, 403 U.S. 9 (1971) ....................12

Wisconsin v. Illinois, 388 U.S. 426 (1967) ..................14

Wisconsin v. Illinois, 449 U.S. 48 (1980) ....................14

Wisconsin v. Trudeau, 408 N.W.2d 337 (Wis.

1987) ........................................................................16

Zinn v. Wisconsin, 334 N.W.2d 67 (Wis. 1983) ...........10

CONSTITUTIONAL PROVISIONS

Art. IV, Sec. 3, cl. 1 ........................................................4

STATUTES

28 U.S.C. § 1257(a) ........................................................3

42 U.S.C. § 1301(a) ........................................................9

42 U.S.C. § 1301(a)(1) ...................................................5

42 U.S.C. § 1311(a) ........................................................4

viii

TABLE OF AUTHORITIES – Continued

Page

RULES AND REGULATIONS

312 Ind. Admin. C. § 1-1-26(2) ....................................19

Fed. R. Civ. Proc. 25(c) ................................................19

Indiana Rule of Trial Proc. 25(c) ................................19

S. Ct. R. 10(c)...............................................................23

OTHER AUTHORITIES

B. Flushman, Water Boundaries (2002) .....................12

D. Carden, Indiana Supreme Court rules Lake

Michigan shoreline belongs to all Hoosiers,

Northwest Indiana Times (Feb. 14, 2018) ..............22

Dellapenna, 1-6 Waters and Water Rights § 6.03

(Robert E. Beck ed. 2018) ..........................................7

Int’l Joint Comm’n, Great Lakes Diversions and

Consumptive Uses: A Report to the Governments of the United States and Canada under

the 1977 Reference (Jan. 1985) ...............................14

Int’l Joint Comm’n, Protection of the Waters of

the Great Lakes: Final Report to the Governments of Canada and the United States (Feb.

22, 2000) ..................................................................14

Kilbert, The Public Trust Doctrine and the Great

Lakes Shores, 58 Clev. St. L.Rev. 1 (2010) ........ 22, 23

Maloney, The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary

Line, 13 Land & Water L.Rev. 465 (1978) ..............11

ix

TABLE OF AUTHORITIES – Continued

Page

NOAA, Do the Great Lakes have tides? (June

25, 2018) ..................................................................13

Scanlan, Shifting Sands: A Meta-Theory for

Public Access and Private Property Along the

Coast, 65 S.C. L.Rev. 295 (2013) ......................... 7, 14

U.S. Army Corps of Engineers and Great Lakes

Commission, Living with the Lakes: Understanding and Adapting to Great Lakes Water

Level Changes (1999) ........................................ 13, 14

Wis. Dept. of Natural Resources, Ordinary High

Water Mark ..............................................................16

Wright & Miller, Federal Practice & Procedure

§ 1958.......................................................................19

1

PETITION FOR A WRIT OF CERTIORARI

This case presents the question of who owns thousands of miles of beaches on the Great Lakes. Do the

beaches belong to the government or instead to the private landowners whose deeds include the beaches, and

who have long looked after them and paid taxes on

them? The Indiana Supreme Court now has joined a

recent trend of some Great Lakes states applying a

“soil and vegetation” test to define the boundary of

public rights in the lakebed—in an apparent attempt

to justify government claims to every inch of sand on

the beach. In doing so, Indiana has claimed title to a

huge swathe of scenic and valuable real estate that private landowners had thought was theirs.

This aggressive theory cries out for this Court’s intervention. Under the federal equal-footing doctrine,

when a state joins the Union it takes title to submerged lands up to the “ordinary high water mark” of

each waterbody. This Court has carefully defined

where the high-water mark is located on the seashore:

it is the average high-tide line, which typically falls

partway up the beach. This Court has also clarified

where the high-water mark can be found on rivers: it

is the line where soil and vegetation change from primarily aquatic to primarily terrestrial. But the Court

has yet to address the location of the high-water mark

2

of large lakes that have beaches of their own, such as

the Great Lakes.1

The Indiana Supreme Court’s approach to that issue cannot be squared with the federal common-law

principles that govern the equal-footing doctrine.

Even on the ocean, public title does not run all the way

up the beach but stops at the mean high-tide line—

which the tides submerge on roughly half of all days.

By contrast, applying the “soil and vegetation” test to

lakes would appear to give the state title to the entire

beach, including parts that are almost never submerged. The soil-and-vegetation standard is inappropriate on the Great Lakes for the same reasons it does

not work on the ocean: these large waterbodies affect

the soil and plant life well beyond their actual waterlines.

The decision below is not only unjustified in law,

but is extraordinarily unfair in fact, as it has literally

taken away the backyards of many homeowners.

The time for this Court’s review is now. Although

Great Lakes states historically have respected private

property rights in beaches, Michigan and Indiana recently have claimed the beaches for the public by applying the “soil and vegetation” test. As a result,

developments in the coming years likely will shape

public expectations about what is and is not permitted

on Great Lakes beaches. But as the Indiana Supreme

Court recognized below, the federal equal-footing

1

This Petition primarily focuses on the five Great Lakes and

the law governing them, but other large non-tidal lakes likely will

be governed by many of the same legal principles.

3

doctrine is the indispensable starting point for anything the states do in this area of great importance.

This Court should grant review to ensure that developments in the law governing Great Lakes beaches are

firmly grounded in a correct understanding of those

constitutional principles.

------------------------------------------------------------------

OPINIONS BELOW

The Indiana Supreme Court’s denial of rehearing

is not reported but is reproduced in the Appendix at

App.91. The opinion of the Supreme Court of Indiana

is reported at 90 N.E.3d 1171 and reproduced at App.1.

The opinion of the Court of Appeals of Indiana is reported at 67 N.E.3d 1050 and reproduced at App.41.

The opinion of the Superior Court of Indiana is not reported but is available at 2015 WL 11145128 and reproduced at App.64.

------------------------------------------------------------------

JURISDICTION

The Supreme Court of Indiana issued its opinion

on February 14, 2018, and denied Petitioners’ timely

petition for rehearing on May 9, 2018. On July 31, Justice Kagan extended the time in which to file this Petition to October 5.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

------------------------------------------------------------------

4

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Admission to the Union Clause of the Constitution, Art. IV, Sec. 3, cl. 1, provides in relevant part

that “New States may be admitted by Congress into

this Union”.

The Submerged Lands Act provides in relevant

part that “(1) title to and ownership of the lands beneath navigable waters within the boundaries of the

respective States, and the natural resources within

such lands and waters, and (2) the right and power to

manage, administer, lease, develop, and use the said

lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and

vested in and assigned to the respective States or the

persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land

is located, and the respective grantees, lessees, or successors in interest thereof.” 42 U.S.C. § 1311(a).

The Submerged Lands Act further provides that

“The term ‘lands beneath navigable waters’ means ...

all lands within the boundaries of each of the respective States which are covered by nontidal waters that

were navigable under the laws of the United States at

the time such State became a member of the Union, or

acquired sovereignty over such lands and waters

thereafter, up to the ordinary high water mark as

5

heretofore or hereafter modified by accretion, erosion,

and reliction”. Id. § 1301(a)(1).

------------------------------------------------------------------

STATEMENT OF THE CASE

A. Federal Law Grants States Title In Submerged Lands.

The states have always owned lands that are submerged under navigable waters. Before this Nation’s

independence, “the title in the soil of the sea, or of arms

of the sea, below ordinary high-water mark, [was] in

the king”. Shively v. Bowlby, 152 U.S. 1, 13 (1894). “Because title to such land was important to the sovereign’s ability to control navigation, fishing, and other

commercial activity ... ownership of this land was considered an essential attribute of sovereignty” and “was

therefore vested in the sovereign for the benefit of the

whole people.” Utah Division of State Lands v. United

States, 482 U.S. 193, 195-196 (1987). Then, “when the

revolution took place, the people of each state became

themselves sovereign; and in that character hold the

absolute right to all their navigable waters, and the

soils under them”. Martin v. Waddell’s Lessee, 41 U.S.

(16 Pet.) 367, 410 (1842).

This rule applies to navigable lakes and rivers as

well as to the ocean. Utah Div. of State Lands, 482 U.S.

at 195. At English common law, public title was “confined to such navigable rivers as are affected by the

tides,” because few if any non-tidal English rivers “are

navigable in fact”. Packer v. Bird, 137 U.S. 661, 667

6

(1891). But “[t]he tidal rule ... was ill suited to the

United States with its vast number of major inland rivers upon which navigation could be sustained.” PPL

Montana, LLC v. Montana, 565 U.S. 576, 590 (2012);

see The Genesee Chief, 53 U.S. (12 How.) 443, 454-455

(1851) (discussing similar principles for purposes of

admiralty jurisdiction). Therefore, early in our Nation’s history, this “Court extended the doctrine to waters which were nontidal but nonetheless navigable”.

Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363, 374 (1977). The Court clarified that “the Great Lakes and other navigable waters

of the country, above as well as below the flow of the

tide,” “belong[ ] to the States by their inherent sovereignty”. Barney v. City of Keokuk, 94 U.S. (4 Otto) 324,

338 (1876).

As new states were added to the Union, the rules

about public ownership of submerged lands “assumed

federal constitutional significance under the equalfooting doctrine.” PPL Montana, 565 U.S. at 590. Under

that doctrine, “new States have the same right of sovereignty and jurisdiction over the navigable waters

within their limits as the original ones”. Barney, 94

U.S. at 333. The result is that “[u]pon statehood, the

[new] State gains title within its borders to the beds of

waters then navigable (or tidally influenced ...)”. PPL

Montana, 565 U.S. at 591; see United States v. Texas,

339 U.S. 707, 717 (1950).

Thus, just as “the boundary between the upland

and tideland [is] to be determined by federal law,” so

also for inland waters: “determination of the initial

7

boundary between a riverbed, which the State acquired under the equal-footing doctrine, and riparian

fast lands likewise [must] be decided as a matter of

federal law”. Corvallis Sand & Gravel Co., 429 U.S. at

376. After statehood, the water boundary is governed

by principles of state property law, such as accretion

and reliction. Id. at 376-377. But the starting point—

the original boundary of the submerged lands that the

state acquired on admission—is a federal question. Id.

at 376.

Even when states surrender ownership in parcels

of submerged land, they often continue to reserve certain public rights in it. At common law “an individual

or a corporation” could acquire rights to the seabed “by

express grant” from the King, “or by prescription or usage”. Shively, 152 U.S. at 13. But “this title, jus privatum,” was “held subject to the public right, jus

publicum, of navigation and fishing.” Ibid.; see Illinois

Cent. R. Co. v. Illinois, 146 U.S. 387, 458-459 (1892).

Some states continue to follow a similar rule. Specifically, some states have “limited their title” in submerged lands to a point below the high-water line,

which “effectively convey[s] land above the [new

boundary] to the upland owner”. Dellapenna, 1-6 Waters and Water Rights § 6.03(a)(1.01) (Robert E. Beck

ed. 2018). But when states do this, many of them continue to assert a public trust—the jus publicum—in

the transferred lands. Id. § 6.03(a)(2); see Scanlan,

Shifting Sands: A Meta-Theory for Public Access and

Private Property Along the Coast, 65 S.C. L.Rev. 295,

309, 321-322 (2013).

8

B. The Federal Equal-Footing Grant Ends At

The High-Water Mark.

While the states thus received title to submerged

lands, most littoral or riparian property was conveyed

to private landowners—many of whom naturally are

attracted by the scenic and economic value of the waterbodies, and use the property to enjoy them. Thus,

the precise boundary of submerged lands often has

great importance both for the states and for neighboring landowners.

1. High-water mark on the seacoast. In light of

the high-water mark’s central importance to the equalfooting doctrine, this Court has carefully explained

how to discern the high-water mark on the seacoast.

There, the high-water mark “does not mean ... a physical mark made upon the ground by the waters; it

means the line of high water as determined by the

course of the tides”—that is, the state took title to “the

land over which the daily tides ebb and flow.” Borax

Consolidated v. City of Los Angeles, 296 U.S. 10, 22-23

(1935) (citation omitted). Specifically, the boundary of

the equal-footing grant is “the line of ordinary high water,” excluding times when “[t]he range of the tide ... is

greater than average.” Id. at 23 (quotation marks omitted; emphasis supplied). And since “[t]he range of the

tide at any given place varies from day to day” according to the positions of the Sun and Moon, ibid., the

Court has been even more precise: the high-water line

is “the mean of all the high tides” over an entire astronomical cycle “of 18.6 years.” Id. at 26-27 (citation

omitted). Because this point is the average of the

9

highest marks reached by the tides on each day during

the cycle, it will be underwater for some period of time

on roughly half of all days. See id. at 24. The rest of a

state’s equal-footing grant in the tidal zone is lower in

elevation than the high-water mark, and therefore is

underwater even more frequently.

The equal-footing grant is rooted in the Constitution, but Congress confirmed the grant—and its highwater-mark limit—in the Submerged Lands Act. The

Act reaffirms the states’ title in “all lands within

[their] boundaries ... which are covered by nontidal waters that were navigable ... at the time such State ...

acquired sovereignty ... up to the ordinary high water

mark,” and in “all lands ... covered by tidal waters up

to but not above the line of mean high tide”. 42 U.S.C.

§ 1301(a).2

Under the mean-high-tide rule, the oceanfront

states own part—but not all—of many beaches. “Wetsand” beaches that are within the average daily tidal

zone passed to the states under the equal-footing doctrine. On the other hand, “dry-sand” beaches—those

that are above the average high-tide line—did not pass

to the states, and generally remain in private ownership.3 A change to state property-law rules that

2

The Submerged Lands Act also extended the seaward

boundary of state title: while the equal-footing grant extended

only to the low-tide mark, the Act extended state title to three

miles from the shore. See United States v. Alaska, 521 U.S. 1, 5-6

(1997). As this case involves inland waters, that extension is not

relevant here.

3

See Nies v. Town of Emerald Isle, 780 S.E.2d 187, 190 (N.C.

Ct. App. 2015); Trepanier v. Cnty. of Volusia, 965 So.2d 276, 284

10

extends public holdings farther up the beach is a compensable taking of that private property. Nollan v. California Coastal Comm’n, 483 U.S. 825, 826, 831 (1987)

(mandated public-beach-access easement above “[t]he

historic mean high tide line” was a taking); Purdie v.

Attorney General, 732 A.2d 442, 447 (N.H. 1999) (“expand[ing] public beaches” by moving property line

from “mean high water mark ... to the highest water

mark” was a taking); see Stop the Beach Renourishment, Inc. v. Florida Dept. of Envt’l Protection, 560 U.S.

702, 732 (2010) (finding no taking where “petitioner

does not allege that the State relocated the property

line ... landward of the old mean high-water line”).4

2. High-water mark on rivers. This Court has defined different high-water-mark criteria for inland rivers, which rise and fall not with the tides but

“periodical[ly] with the wet and dry seasons of the

year.” Howard v. Ingersoll, 54 U.S. (13 How.) 381, 417

(1851). In Howard the Court explained that “the outer

line on the bed of a river” is where the bank “is fairly

marked by the water.” Id. at 415, 420. The Court stated

that drawing this line “requires no scientific exploration” because “[t]he eye traces it ... in any stage of water.” Id. at 416.

(Fla. Ct. App. 2007) (“The ‘beach’ ... includes more land than what

is set aside for the people.... The area above the mean high water

line is subject to private ownership”.).

4

Although the high-water mark is less well defined as to

inland lakes, see infra, a state also commits a taking if it expands

the public lakebed by changing the definition of the high-water

mark. See Zinn v. Wisconsin, 334 N.W.2d 67, 71-72 (Wis. 1983).

11

Justice Curtis’s concurring opinion in Howard

provided the most influential standard. He explained

that a river’s high-water mark “is to be found by ... ascertaining where the presence and action of water are

so common and usual ... and so long continued in all

ordinary years, 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 427. According to Justice Curtis, lands

outside the river’s high-water mark support plants

“appropriate to such land in the particular locality,”

while inside the high-water mark is “soil of a different

character and having no vegetation, or only such as

exists when commonly submerged in water.” Id. at

428.

Howard was not strictly an equal-footing case; it

involved the boundary of Georgia’s cession of its unsettled western lands to the young United States. Id. at

397-398 (opinion of the Court). But its “soil and vegetation” test has been widely adopted by courts across

the country to determine the boundaries of state title

in riverbeds. See Maloney, The Ordinary High Water

Mark: Attempts at Settling an Unsettled Boundary

Line, 13 Land & Water L.Rev. 465, 468-476 (1978).5

5

See also, e.g., United States v. Pend Oreille Pub. Util. Dist.

No. 1, 926 F.2d 1502, 1505-06 (9th Cir. 1991); South Dakota Wildlife Fed. v. Water Mgmt. Bd., 382 N.W.2d 26, 31 (S.D. 1986); Heckman Ranches, Inc. v. Idaho ex rel. Dep’t of Public Lands, 589 P.2d

540, 553 (Idaho 1979); Alaska Dept. of Natural Resources v. Pankratz, 538 P.2d 984, 988-989 (Alaska 1975); City of Little Rock v.

12

3. High-water mark on lakes. The only remaining

category of waterbodies subject to the equal-footing

doctrine is non-tidal lakes—the largest of which are of

course the Great Lakes. This Court has always applied

the general principles governing navigable waterbodies to lakes,6 including the Great Lakes. (E.g., The Genesee Chief, 53 U.S. 443.) But it has not defined a specific

test for delimiting the equal-footing grant of a lake

bed.7 Nor, in the absence of guidance from this Court,

have the lower courts reached any discernible consensus. See B. Flushman, Water Boundaries, at 299 (2002)

(for lakes, “[c]ourts have provided no clear ... instructions or guidelines” to identify “the ordinary high-water mark property boundary or where [it] should be

physically located”).

C.

The Great Lakes And Their Water Levels.

In many respects the Great Lakes “are in truth inland seas.” The Genesee Chief, 53 U.S. at 453. Like the

oceans, the Great Lakes feature thousands of miles of

wide sandy beaches. Like the oceans, the Great Lakes

Jeuryens, 202 S.W. 45, 47-48 (Ark. 1918); Sun Dial Ranch v. May

Land Co., 119 P. 758 (Or. 1912).

6

E.g., Idaho v. United States, 533 U.S. 262 (2001); Utah Div.

of State Lands, 482 U.S. 193; Utah v. United States, 403 U.S. 9, 1011 (1971) (Great Salt Lake); McGilvra v. Ross, 215 U.S. 70 (1909).

7

In Hardin v. Jordan, 140 U.S. 371, 391 (1891), the Court

held that at common law, boundaries running through nonnavigable lakes or ponds follow “the line equidistant from the

land on either side.” But the Court noted that “these observations

do not apply to our great navigable lakes ... to which all those reasons apply which apply to the sea itself.” Ibid.

13

generate large waves that push water far up these

beaches. And like the oceans, the Great Lakes attract

many people to their beaches for swimming, walking,

sunbathing, picnicking, and other outdoor activities.

But unlike the oceans, the Great Lakes are nontidal.8 The Lakes’ water levels vary considerably, but

on much longer timeframes than the daily cycle of the

tides. Rainfall and snowfall are the largest factors: the

Lakes reach their highest annual levels in the summer,

after snowmelt and rainfall have flowed into them; and

they recede to their lowest annual levels in winter

when most of their watershed is frozen. This yearly cycle causes the water level of the Lakes to vary by more

than one foot in elevation. U.S. Army Corps of Engineers and Great Lakes Commission, Living with the

Lakes: Understanding and Adapting to Great Lakes

Water Level Changes at 16 (1999).9

The Great Lakes are unlike the ocean in another

way: their water-level fluctuations are less predictable

than the tides. Because some years see more rainfall

and snowfall than others, the Lakes’ annual waterlevel cycle can vary significantly. And a series of wetter

8

The gravities of the Sun and Moon of course pull on the

waters of the Great Lakes, but they “are considered to be nontidal” because the resulting variation in water levels “is less

than five centimeters in height” and is “masked by the greater

fluctuations in lake levels produced by wind and barometric

pressure changes.” NOAA, Do the Great Lakes have tides?

https://oceanservice.noaa.gov/facts/gltides.html (June 25, 2018).

9

http://ijc.org/files/tinymce/uploaded/ILSBC/Living%20with%20

the%20Lakes_1999_e.pdf.

14

or dryer years can impact water levels beyond the

yearly cycle. Id. at 17. Human intervention also affects

lake levels. Dams and control structures can impound

water in the upper Lakes or release it to the lower ones,

and engineering projects allow variable diversions of

water into or out of the Lakes.10 Moreover, ship channels dredged into the rivers flowing out of Lake Huron

have permanently lowered its and Lake Michigan’s

water levels by about 16 inches.11 Due to these phenomena, in the 100-odd years that Great Lakes water

levels have been recorded, they have varied in most of

the Lakes by six to seven feet. Living with the Lakes,

supra, at 17-18.

D. States Have Recently Taken Conflicting Approaches To Public Rights In Great Lakes

Beaches.

With respect to beach ownership and access, “most

of the Great Lakes shoreline [is] under a cloud of uncertainty regarding the expectations of private property owners and the public.” Scanlan, supra, at 306.

10

Int’l Joint Comm’n, Great Lakes Diversions and Consumptive Uses: A Report to the Governments of the United States and

Canada under the 1977 Reference (Jan. 1985), available at

http://www.ijc.org/files/publications/ID279.pdf. See also, e.g., Wisconsin v. Illinois, 388 U.S. 426 (1967) (consent decree regarding

management of Chicago Sanitary and Ship Canal diversion from

Lake Michigan), 449 U.S. 48 (1980) (modifying same).

11

Int’l Joint Comm’n, Protection of the Waters of the Great

Lakes: Final Report to the Governments of Canada and the United

States at 20 (Feb. 22, 2000), available at http://www.ijc.org/files/

publications/C129.pdf.

15

The primary reason is that in recent years, Michigan

and Indiana (in this case) have asserted a novel public

right to access the entire beach. In the process, these

states have eliminated or drastically pared back countless propertyholders’ rights in land that they thought

was their own.

Since the 1800s, the consensus among many Great

Lakes states12 has been that private ownership of the

lakeshore “extends ... to the water’s edge,” which is “the

line at which the water usually stands when free from

disturbing causes.” Seaman v. Smith, 24 Ill. 521, 524525 (1860). Illinois first articulated this rule, and Ohio

quickly adopted it as well. Ohio ex rel. Merrill v. Ohio

Dep’t of Natural Resources, 955 N.E.2d 935, 947 (Ohio

2011) (“[I]n Sloan v. Biemiller (1878), 34 Ohio St. 492,”

Ohio “adopted the position taken by the Supreme

Court of Illinois in Seaman”). In reaffirming the rule,

the Illinois Supreme Court expressly rejected a vegetation test of the kind Justice Curtis applied to rivers

in Howard. Brundage v. Knox, 117 N.E. 123, 131 (Ill.

1917). The Supreme Court of Ohio has reaffirmed its

rule as recently as 2011. Merrill, 955 N.E.2d 935.

Michigan, which has the most Great-Lakes coastline of any state, long followed a similar standard: “[o]n

its admission to the Union, the state ... took title only

to such land on the Great Lakes as was then submerged and was, in fact, lake bed,” while private

12

Because New York and Pennsylvania were among the original 13 states, they did not receive their Great Lakes shoreline

pursuant to the equal-footing doctrine and so are not discussed

here.

16

landowners held “title to the water’s edge.” Hilt v. Weber, 233 N.W. 159, 161 (Mich. 1930). The Michigan Supreme Court even referred to this as a “settled rule of

property.” Id. at 164.

Wisconsin follows a different theory, but with similar practical result. It applies a soil-and-vegetation

test to determine its Great Lakes shorelines. See Wisconsin v. Trudeau, 408 N.W.2d 337, 342, 344 (Wis.

1987). But its Department of Natural Resources interprets the rule to give “the riparian property owner ...

exclusive use of the exposed lake or river bed”; nonowners who use the waterbody must stay below the

waterline, and are trespassing unless “they ‘keep their

feet wet.’ ”13

This long consensus began to crack in 2005, when

the Michigan Supreme Court held that “the public has

a right to walk along the shores of the Great Lakes.”

Glass v. Goeckel, 703 N.W.2d 58, 61 (Mich. 2005). The

13

Wis. Dept. of Natural Resources, Ordinary High Water

Mark, https://dnr.wi.gov/topic/waterways/documents/Ordinary

HighWaterMark.pdf. The remaining Great Lakes state is Minnesota, which has perhaps the least-developed law with respect to

Great Lakes beach access. Littoral landowners in Minnesota hold

title to Lake Superior’s low-water mark, but subject to unspecified

public-trust uses up to the high-water mark. Minnesota v. Korrer,

148 N.W. 617 (Minn. 1914); see Minnesota ex rel. Head v. Slotness,

185 N.W.2d 530 (Minn. 1971) (building highway between highand low-water marks of Lake Superior was a taking). Minnesota

applies a soil-and-vegetation test to determine the high-water

mark on smaller inland lakes, e.g., Mitchell v. City of St. Paul, 31

N.W.2d 46, 48-50 (Minn. 1948); Carpenter v. Bd. of Comm’rs of

Hennepin Cty., 58 N.W. 295, 297 (Minn. 1894), but does not appear

to have considered the application of this test to Lake Superior.

17

court apparently overruled its previous holding that

Michigan’s equal-footing grant “included only ... such

land on the Great Lakes as was then submerged.”

(Hilt, 233 N.W. at 161). Instead, it held in Glass that

the land below the high-water mark includes areas

that are “not ... presently submerged” but from which

“the lake has not permanently receded” and over which

the water “may yet again exert its influence.” Id. at 71.

The court held that this high-water mark should be determined using a soil-and-vegetation test similar to

the one from Howard v. Ingersoll. Id. at 72. The court

acknowledged that the water’s edge is “the boundary

of a littoral landowner’s private title.” Id. at 71. But it

held that lands above the water’s edge had been “conveyed [to private ownership] subject to specific public

trust rights in Lake Huron and its shores up to the

ordinary high water mark,” as defined by soil and vegetation. Id. at 62 (emphasis omitted). Those public

rights, according to the Glass court, included walking

on the beach.

The Glass majority did not explain further how to

apply its soil-and-vegetation standard to a sandy or

pebbly beach. But Justice Young, concurring in part

and dissenting in part, did. He noted that the majority

appeared to be holding that the high-water mark was

“the vegetation line” on the landward side of the beach.

Id. at 80 (Young, J.). Justice Young further identified

the majority’s high-water mark as “the point where

sand gives way to vegetation in the upper right-hand

18

corner” of the following photo, which he included in his

opinion:

Ibid. (crediting David Hansen, Minnesota Agricultural

Experiment Station, University of Minnesota). The

Glass majority did not object to that description.

As a result, beaches that landowners thought

were part of their backyards one day were open to the

public the next day. And in this case, Indiana adopted

a public-beach-access posture that is even more aggressive than Michigan’s.

E. Indiana Claims Title To The Lake Michigan

Beach.

Bobbie and Don Gunderson’s title to a lakefront

lot in Long Beach, Indiana originated in a 19thcentury federal land patent and survey. App.4. These

19

identify the lot as extending to “Lake Michigan and set

post.” App.4, 16. As is common along the Great Lakes,

many lakefront homeowners in Long Beach allow

swimmers, sunbathers, and others to use their lots

with few restrictions.14 But the Gundersons understood that, regardless of who used their beach, the land

still belonged to them.15

Indiana disagreed. For administrative purposes,

the state Department of Natural Resources defines the

high-water mark of Lake Michigan at 581.5 feet above

sea level. App.30-31 (discussing 312 Ind. Admin. C. § 11-26(2)). In 2010 the City of Long Beach took the position that this also is the boundary between public and

private ownership of the beach. App.4. That encroached significantly on the property the Gundersons

had thought was their backyard.

14

See Ind. Ct. App. Appellants’ Appx. pp.632-665 (affiants describing their use of beach without interference from landowners).

15

The Gundersons sold the property while this case was in

the state courts. App.8 n.3. Federal Rule of Civil Procedure 25(c)

provides that “[i]f an interest is transferred, the action may be

continued by or against the original party unless the court, on

motion, orders the transferee to be substituted in the action or

joined with the original party.” Indiana Rule of Trial Procedure

25(c) is identical in substance. This allows the suit to “be continued by or against the original party, and the judgment will be

binding on the successor in interest even though the successor is

not named.” Wright & Miller, Federal Practice & Procedure § 1958

(collecting caselaw). So although the court below declined to inquire into mootness by noting a state-law exception for “questions

of great public interest,” App.8 n.3, that was unnecessary. The Indiana courts did not order substitution, so under both state and

federal Rule 25 the Gundersons remain proper plaintiffs.

20

The Gundersons tried unsuccessfully to persuade

the city to change its position. App.5. They ultimately

brought this suit against Indiana and its DNR “for a

declaratory judgment on the extent of their littoral

rights to the shore of Lake Michigan and to quiet title”.

Ibid. “The State, in turn, [argued] that Indiana owns

the disputed beach” up to the administrative highwater mark. Ibid. Several private parties intervened

as defendants. Ibid. They went even further than the

state: they argued that public rights extended to the

common-law high-water mark, and that this was even

higher on the beach than the DNR’s administrative

line.16

The Supreme Court of Indiana agreed with the intervenors as to the boundary line, and ruled that “the

State retains exclusive title” to the beach. App.3. The

court acknowledged that “this case entails a two-part

analysis”: first the federal question of defining “the

boundary of the bed of Lake Michigan that originally

passed to Indiana at statehood in 1816”; and second

the state-law question “whether [Indiana] has since relinquished title to land within that boundary.” App.89.

The court first addressed the federal question of

the original equal-footing boundary. It noted that this

question turns on whether “the precise location of th[e]

OHWM” is “wherever the water meets the land,” or

16

The intervenors submitted affidavits from individuals asserting that they have the right to use the beach “to the vegetation

line” (Ind. Ct. App. Appellants’ Appx. p.633) or up to or even into

the dune grass (id. pp.644, 646-649, 654, 656; see id. p.658).

21

instead “include[s] the exposed shore.” App.8. To answer that question, the court adopted Michigan’s

recent Glass v. Goeckel rule: the original lakebed,

bounded by the high-water mark, includes lands that

are “not immediately ... submerged” if “the lake has not

permanently receded from that point and may yet

again exert its influence up to that point.” App.20. To

further define the high-water mark, the Supreme

Court of Indiana quoted and adopted Justice Curtis’s

soil-and-vegetation rule from Howard v. Ingersoll.

Ibid.

Turning to the state-law question, the court held

that “with the exception of select parcels of land not in

dispute here, Indiana has [never] relinquished its title

to the shores and submerged lands of Lake Michigan.”

App.23. Finally, the court addressed the Indiana

DNR’s high-water definition that had instigated the

litigation. The court held that the regulation is valid

for certain administrative purposes, but does not

change “the legal boundary” between the state’s

beaches and “privately-owned riparian land.” App.3536.

In conclusion, the Supreme Court of Indiana held

that the public has the right to “walk[ ] below the natural OHWM along the shores of Lake Michigan.”

App.38. The court also held that Indiana’s Legislature

has the power to authorize additional public uses of the

state’s beaches, App.38-39, and suggested that potential new uses might include “picnicking,” “beach

sports,” and “nature tourism.” App.36.

22

Describing the court’s decision, Indiana media

announced “that Lake Michigan’s shoreline is open to

all,” up to “essentially the edge of the beach” or “the

point where the beach becomes soil,” and that “property owners cannot exercise exclusive control of the

beach between their homes and the water.”17

The Indiana Supreme Court denied the Gundersons’ petition for rehearing. App.91. This Petition followed.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

“The shores of the Great Lakes may look serene,

but they are a battleground.” Kilbert, The Public Trust

Doctrine and the Great Lakes Shores, 58 Clev. St. L.Rev.

1, 2 (2010). While some of this battle turns on the peculiarities of state law, the states must start from the

same federal equal-footing principles. Michigan’s

newly-aggressive approach in Glass, and Indiana’s in

this case, take those principles far beyond anything

supported by this Court’s precedents—or by the constitutional rationale for giving states sovereignty over

submerged lands.

How to define the boundaries of the states’ equalfooting title in the beds of the Great Lakes is an

17

D. Carden, Indiana Supreme Court rules Lake Michigan

shoreline belongs to all Hoosiers, Northwest Indiana Times (Feb.

14, 2018), available at https://www.nwitimes.com/news/local/govtand-politics/indiana-supreme-court-rules-lake-michigan-shoreline

belongs-to-all/article_1cd6f4da-f776-5b48-90df-1088e92e8d1c.html.

23

important question of federal law that has not been,

but should be, settled by this Court. See R. 10(c). 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. This Court should intervene now, to clarify the

foundational legal principles before public expectations harden in response to decisions like the one below.

I.

The Great Lakes States Take Conflicting

Approaches To Public Beach Access Because They Have Conflicting Views Of The

Equal-Footing Doctrine.

As described above, “[c]ourts have been inconsistent, in approach and result, when determining the

rights of the public to use the Great Lakes shores.” Kilbert, 58 Clev. St. L.Rev. at 2. Consequently, a stroll

along the beach that now is lawful in Indiana or Michigan could be trespassing if done in Illinois, Wisconsin,

or Ohio.

This is not simply a matter of diverging state

laws. Both the Indiana decision in this case and the

Michigan decision in Glass dealt with the original

boundaries set by the federal equal-footing grant. In

this case the Supreme Court of Indiana purported to

“determine the boundary of the bed of Lake Michigan

that originally passed to Indiana at statehood,” which

it acknowledged “is a matter of federal law.” App.8-9.

24

And the Glass decision applied the public-trust doctrine to land that Michigan or its predecessors once

owned, but “conveyed ... to private parties ... subject to

the public trust.” 703 N.W.2d at 62. In doing so, the

Michigan court cited this Court’s definition of the

equal-footing high-water mark in Borax Consolidated.

Id. at 69.

None of the other Great Lakes states have defined

the equal-footing boundaries as expansively as Indiana and Michigan. Both Glass and the decision below

can reasonably—perhaps most reasonably—be read as

asserting equal-footing rights to all the sandy or pebbly areas on Great Lakes beaches. In this case, the Supreme Court of Indiana defined the edge of the public

beach as the point, usually above the waterline, where

the soil becomes “distinct ... in respect to vegetation, as

well as in respect to the nature of the soil itself.”

App.20. Similarly, the Glass court defined the highwater line as “a distinct mark [left] either by erosion,

destruction of terrestrial vegetation, or other easily

recognized characteristic.” 703 N.W.2d at 62, 72 (citation omitted). But on a typical beach, the areas both

above and below the waterline are identical sand or

pebbles. The vegetation does not change until the point

where dune grass or scrub begins growing, and the soil

does not change until even farther inland.

The beach around the Gundersons’ property is a

good example. The intervenor-defendants in this case

submitted photos of the Long Beach lakeshore, showing that the beach is wide and undifferentiated:

25

Ind. Ct. App. Add. for Alliance for the Great Lakes and

Save the Dunes, pp.36-37. The most “distinct” natural

marks in this landscape are the waterline, the edge of

the dune grass, and the treeline—and Indiana (following Michigan) has rejected the waterline as the

26

boundary. Whatever precise boundary Indiana and

Michigan would choose, there is not a hint that the

other Great Lakes states would place the line in the

same location.

In short: confusion about this question of federal

law is translating to confusion on the ground in the

Great Lakes states, and confusion will continue until

this Court clarifies the rule. Certiorari is appropriate.

II.

Indiana’s Aggressive Approach To EqualFooting Boundaries Is Unjustified.

Indiana’s and Michigan’s novel approach has not

only generated practical conflict and confusion; it also

is wrong as a matter of federal law. Neither the logic

nor the purpose of the equal-footing doctrine supports

these states’ claim to dry-sand beaches on the Great

Lakes.

Logically, the decision below pushes the equalfooting boundary much farther inland than commonlaw principles support. As discussed above, those

principles were first developed to define boundaries on

the seashore. Even on the oceans, the equal-footing

grant typically covers only part of the beach—and it

excludes even sand that is actually covered by water

on half of all days. Supra at 8-9. Since the Great Lakes

are far smaller than the ocean, there is no conceivable

reason why the equal-footing grant should include a

greater portion of their beaches. See Glass, 703 N.W.2d

at 99 (Markman, J., dissenting) (“unsubmerged lands

that are only covered by [Great Lakes] water on an

27

infrequent basis” “should be treated in a manner similar to lands covered by the spring tides, i.e., they are

not subject to the public trust doctrine”).

For similar reasons, the rule adopted below is far

removed from the purposes for state sovereignty over

submerged lands—the facilitation of navigation,

commerce, and fishing. See Utah Div. of State Lands,

482 U.S. at 195-196. These purposes do not suggest a

state claim to dry-sand beaches at all, for boats do not

float on sand and fish do not swim in it. Nor do these

purposes require, or even recommend, public title in

land that “may yet” be under the Lakes someday. See

App.20 (quoting Glass, 703 N.W.2d at 71). No matter

where the current boundary may be, if water levels rise

past it in the future, the property line may follow it as

a “movable freehold.” See Glass, 703 N.W.2d at 90-91;

id. at 99, 106 (Markman, J., dissenting) (under the “water’s edge” rule, “the littoral owner’s title follows the

shoreline” as it moves).

All of these incongruities arise because the

court below applied Howard v. Ingersoll’s soil-andvegetation test to a geographic setting that it does not

fit. That test works well for determining the boundaries of rivers—which is what this Court developed it

for. Riverbanks are not pounded by storm waves, and

so the lines where the soil and vegetation around them

change character reflect their actual average highwater lines. But matters are different on the oceans

and “inland seas” such as the Great Lakes. The Genesee

Chief, 53 U.S. at 453. These larger waterbodies change

the character of the soil and vegetation well above

28

their high-water levels. Soil and vegetation characteristics therefore do not demonstrate where their highwater levels can be found.

Thus, the correct rule is the one reflected in the

law of Illinois and Ohio, used in practice by Wisconsin,

long recognized in Michigan, and re-proposed by the

Glass dissent: the boundary of the states’ equal-footing

title on Great Lakes beaches is simply the water’s edge.

Because the Great Lakes have minimal daily tidal fluctuations, this definition comports with the commonlaw rule governing the seashore. Because the Great

Lakes affect the character of the soil and vegetation

well above their water levels, this definition fits reality

better than the riverine Howard test. And because this

rule preserves state title in the submerged lands

needed for shipping and fishing, it properly balances

the benefits of state sovereignty in the lakebed with

the rights of littoral property owners.

This Court should grant certiorari to clarify this

important matter.

III. Now Is The Time For This Court’s Review.

The sides in this jurisprudential debate are well

developed. Delay would bring only further confusion—

and would risk hardening public expectations in favor

of a public-access rule that this Court may eventually

have to overturn. So the right time for this Court’s review is now.

29

Further review in the state courts is not likely to

solve this problem. Rather, the trend is toward greater

confusion. In the last 13 years two Great Lakes states

(Michigan and Indiana) have reversed the traditional

rule of private beach status, one state (Ohio) has reaffirmed it, and others have avoided the question. Nor

have recent decisions developed the legal doctrines at

issue: Ohio in Merrill simply reaffirmed its age-old rule

of private ownership, 955 N.E.2d 935, while Indiana in

this case largely imported Glass’s 13-year-old definition of the high-water mark.

Moreover, even if there were some likelihood that

the other Great Lakes states would join Indiana in

abandoning the private-ownership rule, this Court’s

review would still be needed. A movement of that kind

would mean that several states were significantly

changing private and public rights in thousands of

miles of beaches—based on a legal regime whose foundations in federal law are highly questionable, at best.

Whether the equal-footing doctrine really supports

that kind of sea change should be determined once and

for all by this Court as the ultimate arbiter of federal

law, not piecemeal by the various state courts.

Finally, this Court should address the status of

Great Lakes beaches before public expectations

harden around the more aggressive rules announced

by Michigan and Indiana. 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. That practical difficulty, in turn, would hamper future review by this

30

Court. Far better to take up the question now, while

the new, erroneous approach applies in only a minority

of Great Lakes states and is widely viewed as unsettled.

------------------------------------------------------------------

CONCLUSION

The Court should grant certiorari.

Respectfully submitted,

October 5, 2018

AARON D. VAN OORT

Counsel of Record

ERNEST SUMMERS

SHAWN M. DOORHY

NICHOLAS J. NELSON

Counsel for Petitioners

Bobbie and Don Gunderson