IN - US Supreme Court may be next stop for lawsuit challenging public ownership of Lake Michigan shoreline
Three lake-adjacent property owners in the town of Porter who claim their holdings include a private beach on Lake Michigan are preparing to take their case to the highest court in the land.
Chris Kieser, an attorney with the California-based Pacific Legal Foundation property rights law firm, recently won permission from U.S. Supreme Court Justice Amy Coney Barrett to take an extra 30 days, until Sept. 22, to file a petition for high court review.
Assuming Kieser follows through before the new deadline, the Indiana attorney general then will have an opportunity to respond to the petition, and outside interests also could weigh in, prior to the nine justices deciding whether to hear the case, likely in early 2023.
Kieser represents plaintiffs Randall Pavlock, Kimberley Pavlock and Raymond Cahnman. They are seeking to undo a 2018 Indiana Supreme Court ruling, and subsequently enacted Indiana statute, that proclaimed the shoreline of Lake Michigan is owned by the state and held in trust for the enjoyment of all Hoosiers.
In May, the 7th U.S. Circuit Court of Appeals in Chicago affirmed a 2021 ruling by U.S. District Court Chief Judge Jon DeGuilio and held the lake-adjacent property owners lack standing to challenge the Indiana high court ruling and statute in federal court.
Circuit Judge Diane Wood, writing for the federal appeals court, said the plaintiffs failed to establish their beach property was "taken" by the state because the 2018 Gunderson v. State ruling by the Indiana Supreme Court clarified that they never owned a private beach on Lake Michigan.
The Gunderson decision held that Indiana owns — and has since statehood in 1816 — the land under Lake Michigan and the adjacent shoreline up to the ordinary high-water mark.
That mark is defined as the line on the shore established by the fluctuations of water and indicated by physical characteristics, such as a clear and natural line on the bank, shelving or changes in the soil's character.