IN THE INDIANA SUPREME COURT No. 46S PL-423 } } } } } } } } } } } } } } } } } } } APPELLANTS LIMITED PETITION FOR REHEARING

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1 Filed: 3/16/2018 3:07 PM IN THE INDIANA SUPREME COURT No. 46S PL-423 DON H. GUNDERSON and BOBBIE J. GUNDERSON, as Trustees of The Don H. Gunderson Living Trust, Appellants/Cross-Appellees (Plaintiffs Below), v. STATE OF INDIANA, INDIANA DEP T OF NATURAL RESOURCES, Appellee (Defendant Below), and ALLIANCE FOR THE GREAT LAKES, et al., Appellees/Cross-Appellants (Intervenor Defendants Below). Court of Appeals No. 46A PL-1116 (consolidated with No. 46A PL-84) Appeal from the LaPorte Superior Court Trial Court No. 46D PL-606 The Honorable Richard R. Stalbrink, Jr., Judge APPELLANTS LIMITED PETITION FOR REHEARING Michael V. Knight [# ] Peter J. Rusthoven [# ] BARNES & THORNBURG LLP John R. Maley [# ] 700 1st Source Bank Center Leah L. Seigel [# ] 100 North Michigan Street BARNES & THORNBURG LLP South Bend, Indiana South Meridian Street Telephone: (574) Indianapolis, Indiana Telephone: (317) Mark L. Phillips [# ] NEWBY, LEWIS, KAMINSKI & JONES, LLP 916 Lincolnway LaPorte, Indiana Telephone: (219) Counsel for Appellants/Cross-Appellees 1

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...3 INTRODUCTION...5 DISCUSSION...6 I. Synopsis Of The Opinion s State Ownership Analysis...6 II. The State Ownership Conclusion Is Mistaken And Unnecessary...9 CONCLUSION...17 WORD COUNT CERTIFICATE...18 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Page(s) Bainbridge v. Sherlock, 29 Ind. 364 (1868)...9, 16 Barney v. Keokuk, 94 U.S. 324 (1876)...8, 10 Bd. of Comm rs of Allen Cnty. v. Simons, 129 Ind. 123, 28 N.E. 420 (1891)...11, 12 Charles A. Beard Classroom Teachers Ass n v. Bd. of Trs. of Charles A. Beard Mem l Sch. Corp., 668 N.E.2d 1222 (Ind. 1996)...17 Crake v. Crake, 18 Ind. 156 (1862)...12 Econ. Light & Power Co. v. United States, 256 U.S. 113 (1921)...7 Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1 (1912)...12, 14 Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005)...15 Gunderson v. State, Ind. Dep t of Natural Res., 90 N.E.3d 1171 (Ind. 2018)... 5, passim Hardin v. Jordan, 140 U.S. 371 (1891)...10 Huse v. Glover, 119 U.S. 543 (1886)...7, 11 Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387 (1892)... 7, 9, Ind. Dep t of Natural Res. v. Lake George Cottagers Ass n, 889 N.E.2d 361 (Ind. Ct. App. 2008)...15, 16 Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm n, 695 N.E.2d 99 (Ind. 1998)...17 Johnson v. Chambers, 12 Ind. 102 (1859)...12 Me-shing-go-me-sia v. State, 36 Ind. 310 (1871)...12 Parkison v. McCue, 831 N.E.2d 118 (Ind. Ct. App. 2005)...15 Pollard s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845)...7 Shively v. Bowlby, 152 U.S. 1 (1894) , 10, 14 State ex rel. Ind. Dep t of Conserv. v. Kivett, 228 Ind. 623, 95 N.E.2d 145 (1950)...13, 14, 16 3

4 Cases (cont d) Page(s) Stop the Beach Renourishment, Inc. v. Fla. Dep t. of Envtl. Prot., 560 U.S. 702 (2010)...16 Utah v. United States, 403 U.S. 9 (1971)...6 Constitutional Provisions IND. CONST. of 1816, art. XII, IND. CONST. of 1816, art. XII, IND. CONST. of 1851 Sched...11 Statutes Act of Aug, 7, 1789, 1 Stat. 50 (readopting Ordinance of July 13, 1787)... 6, passim Enabling Act of 1816, 3 Stat , 12 IND. CODE IND. CODE et seq....9, 14, 15 Other Authority WEBSTER'S THIRD NEW INT L DICT. (1976)

5 INTRODUCTION The Court determined [t]here must necessarily be some degree of temporary, transitory occupation of the [Lake Michigan] shore for the public to access the waters, whether for navigation, commerce, or fishing the traditional triad of protected uses under the common-law public trust doctrine. Gunderson v. State, Ind. Dep t of Natural Res., 90 N.E.3d 1171, 1188 (Ind. 2018) ( Opinion ). Thus, we hold that, at a minimum, walking below the natural OHWM along the shores of Lake Michigan is a protected public use in Indiana. This public right of passage, inherent in the exercise of the traditional protected uses we recognize today, would not infringe on the property rights of adjacent riparian landowners. Id. Beyond these protected uses, however, the Court exercise[d] judicial restraint, concluding that any enlargement of public rights on the beaches of Lake Michigan beyond those recognized today is better left to the more representative lawmaking procedures of the other branches of government. Id. Without waiving rights to seek review of this result, this Petition does not ask the Court to alter it. Rather, it asks the Court to reconsider one aspect of the analysis preceding its result namely, that the State owns land below OHWM, foreclosing private ownership. The State ownership reasoning was rooted in believing the dispute turned on who has title (in a fee ownership sense) to land below Lake Michigan s OHWM. In the Opinion s words: The basic controversy here is whether the State holds exclusive title to the exposed shore of Lake Michigan up to the OHWM, or whether the Gundersons, as riparian property owners, hold title to the water s edge, thus excluding public use of the beach. 90 N.E.3d at Ergo, [r]esolution of this case entails a two-part analysis: First, we must determine the boundary of the bed of Lake Michigan that originally passed to Indiana at statehood in Second, we must decide whether the State has since relinquished title to land within that 5

6 boundary. The former question is a matter of federal law; the latter inquiry, a matter of state law. Id. at This analytic framework is understandable, given briefing and argument. Gundersons did argue they owned to the water s edge, and this excluded public use. The State did argue it had exclusive ownership below OHWM under the equal footing doctrine, accord[ing] newly admitted State[s] the same property interests in submerged lands as was enjoyed by the Thirteen Original States. Utah v. United States, 403 U.S. 9, 10 (1971). But the Court s outcome does not require embracing the State s position on ownership. The core controversy is not Who holds exclusive title? The actual dispute which the Court s result resolved is What are public access rights below Lake Michigan s OHWM? The access rights the Opinion recognized do not require invalidating riparian landowner title claims, reflected in their deeds, and holding the State has exclusive title. All that the Court s result requires is rejecting the view that private title below OHWM excludes public use, and holding the State retains public trust rights. The Opinion s State ownership conclusion was unnecessary to its outcome. As shown below, that conclusion overlooked pertinent authority, and raises troublesome issues that can and should be avoided without altering the Court s outcome. Respectfully, the Court should reconsider and correct this aspect of its Opinion. DISCUSSION I. Synopsis Of The Opinion s State Ownership Analysis. The Opinion s State ownership reasoning sets the context for this Petition. That reasoning starts by holding that under Federal law, exclusive title to the bed of Lake Michigan up to the OHWM passed to Indiana at statehood under the equal-footing doctrine to hold in trust for public use, unaffected by the Northwest Ordinance. 90 N.E.3d at 6

7 1177. The Opinion noted that Pollard s Lessee v. Hagan, where [t]he equal footing doctrine was first discussed and applied[,] cited both the Northwest Ordinance and the statehood clause of the U.S. Constitution. Id. at (citing 44 U.S. (3 How.) 212, (1845)). But thereafter, the former dropped-out. Despite this early reference and reliance on the Ordinance, however, the Court s equal-footing jurisprudence later curtailed and eventually abandoned that source of authority, rooting the equal footing doctrine solely on the U.S. Constitution. Id. at 1178 (citing, e.g., Ill. Cent. R.R. Co. v. Ill., 146 U.S. 387, 434 (1892)). The Opinion then says Indiana, too, abandoned the Ordinance. After acknowledging that early cases in our State s history cited article IV of the Ordinance as a source of public rights in water, the Opinion states: By the mid-nineteenth century, however, a shift in judicial thought rendered the Ordinance inoperative following a state s admission to the union. Id. Shifting back to Federal law, the Opinion adds: The U.S. Supreme Court came to the same conclusion. Id. (citing Econ. Light & Power Co. v. United States, 256 U.S. 113, 120 (1921) (Ordinance was superseded by the admission of the state into the Union on an equal footing with the original states ), and Huse v. Glover, 119 U.S. 543, 546 (1886) (Ordinance could not control the powers and authority of the State after her admission, and ceased to have any operative force, except as voluntarily adopted by her after she became a State )). From this, the Opinion conclude[d] that the Northwest Ordinance of 1787 had no effect on Indiana s title to the shores and submerged lands of Lake Michigan, either at the time of statehood or after. Id. The Opinion then rejected the import of Gundersons deed and plat (showing title extending to Lake Michigan), holding that superior title to land below the OHWM vested in Indiana at statehood, and the [1837] federal land patent at the root of the Gundersons deed conveyed no land below that boundary. Id at 1179 (citing Shively v. Bowlby, 152 U.S. 1, 58 7

8 (1894) ( [g]rants by congress of portions of the public lands within a territory to settlers thereon, though bordering on or bounded by navigable waters, convey, of their own force, no title or right below high-water mark, and do not impair the title and dominion of the future state ), and Barney v. Keokuk, 94 U.S. 324, 338 (1876) ( bed of a navigable water properly belongs to the States by their inherent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water )). From this, the Opinion concluded that, absent evidence of an express federal grant before 1816, the shore lands below Lake Michigan s OHWM were not available for conveyance to private parties. The Opinion then said Indiana necessarily acquired ownership of land below OHWM via the equal footing doctrine. A thorough examination of the authorities reveals that variations in characterizing equal-footing lands are simply alternative expressions of the same rule of law: lands on the waterbody side of the OHWM pass to new states as an incident of sovereignty, whereas lands on the upland side of the OHWM are available for federal patent and private ownership. Id. at 1180 (c iting, e.g., Shively, 152 U.S. at 58 ( congressional grants of public lands bordering on or bounded by navigable waters... leave the question of the use of the shores by the owners of uplands to the sovereign control of each state ), and Barney, 94 U.S. at 336 ( [T]itle of the riparian proprietors on the banks of the Mississippi extends only to ordinary high-water mark, and [ ] the shore between high and low water mark, as well as the bed of the river, belongs to the State )) (Opinion s emphasis). The Opinion then turned to the second question in its analytical framework whether the State has since relinquished title to land below Lake Michigan s OHWM, which is a question of state law. Id. at 1181 (citing, e.g., Shively, 152 U.S. at 57-58). On this, the Opinion said Indiana has not abrogated its common-law fiduciary responsibilities to Lake Michigan 8

9 through the Lake Preservation Act, IND. CODE et seq. Id. at The Act is [p]ublic trust legislation intended to recognize the public s right to preserve the natural scenic beauty of our lakes and to recreational values upon the lakes. Id. at (citation omitted). But though it excludes Lake Michigan from its ambit, the Act does not expressly abrogate the common-law public trust doctrine; it merely states that the Act does not apply to Lake Michigan. Id. at 1183 (quoting I.C ). The Opinion also found nothing in the Act that conflicts with the common-law public trust doctrine as it applies to Lake Michigan. Id. The Opinion further held that the Legislature could not eliminate all public trust rights to Lake Michigan. Even if the legislature had intended to extinguish public trust rights in the shores of Lake Michigan, it lacked the authority to fully abdicate its fiduciary responsibility over these lands. Id. (citing Illinois Central, 146 U.S. at 453 ( The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining )). The Opinion concluded this portion of its analysis by distinguishing Bainbridge v. Sherlock, 29 Ind. 364 (1868), which held [t]he banks belong to the riparian owner, and he owns an absolute fee down to low water mark. 90 N.E.3d at 1183 (quoting 29 Ind. at 371). The Opinion declared Bainbridge is historically unique to the Ohio River and has no application to Lake Michigan. Id. at II. The State Ownership Conclusion Is Mistaken And Unnecessary. The Opinion s scholarly review, summarized above, gathers considerable equal footing precedent. As pertinent here, however, the view that this compels the conclusion that the State 9

10 acquired ownership in land below Lake Michigan s OHWM, foreclosing private ownership, is mistaken. Nor was it necessary to the Court s result. First, the Opinion appears to presume that equal footing means fee ownership in land abutting navigable waters must be identical among all States. Respectfully, this cannot be so. Such rights were not identical among the original 13 States. See Shively, 152 U.S. at (summarizing laws of original States, including Virginia, where the owner of land bounded by tide waters has the title to ordinary low-water mark ; noting that foregoing summary of the laws of the original states shows that there is no universal and uniform law upon the subject, but that each state has dealt with the lands under the tide waters within its borders according to its own views of justice and policy ). Hence, Shively s equal footing holding in the next paragraph new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high-water mark, within their respective jurisdictions, id. at 26 does not mean that as a matter of Federal law, fee ownership in a new State is identical to the law of whichever of the original 13 States asserted the most extensive claim to land abutting navigable waters. Nor has the Supreme Court so held. Yes, Barney says the shore between high and low water mark, as well as the bed of the river, belongs to the State. 94 U.S. at 336. But this is a statement of Iowa law, as the case s extended discourse (id. at ) shows. On the east side of the Mississippi, in the States of Illinois and Mississippi, a different doctrine prevails, and in those States it is held that the title of the riparian proprietor extends to the middle of the current, in conformity to the rule of the common law. Hardin v. Jordan, 140 U.S. 371, 383 (1891). Second, even if the Northwest Ordinance no longer informs Federal equal footing law, this does not mean it has no bearing on State law, at the time of admission, on riparian ownership 10

11 rights. The Opinion recognizes this, quoting Huse (119 U.S. at 546) that the Ordinance has operative force in a State if adopted by her after she became a State of the Union. But the Opinion then overlooks that Indiana has embraced the Ordinance, from and after its admission. The act under which Indiana was admitted provided that the State s government, whenever formed, shall be republican, and not repugnant to those articles of the ordinance of the thirteenth of July, one thousand seven hundred and eighty-seven, which are declared to be irrevocable between the original states, and the people and states of the territory northwest of the river Ohio. Enabling Act of 1816, 3, 3 Stat. 289, 290. Indiana agreed. See Bd. of Comm rs of Allen Cnty. v. Simons, 129 Ind. 123, 28 N.E. 420, 422 (1891) (in June 1816, the territorial legislature of Indiana enacted the following: That we do, for ourselves and our posterity, agree, determine, declare, and ordain that we will, and do hereby, accept the proposition of the congress of the United States as made and contained in [the Enabling Act] ). The 1816 Constitution then provided that laws in effect on its adoption which included the provisions of the Northwest Ordinance remained unchanged. IND. CONST. of 1816, art. XII, 1 ( all rights, suits, actions, prosecutions, recognizances, contracts, and claims, both as it respects individuals and bodies corporate, shall continue as if no change had taken place in this Government ); id., 4 ( All laws and parts of laws now in force in this Territory not inconsistent with this constitution, shall continue and remain in full force and effect, until they expire or be repealed ). The 1851 Constitution had a comparable provision. IND. CONST. of 1851 Sched. ( All laws now in force, and not inconsistent with this Constitution, shall remain in force, until they expire or be repealed ). 1 1 This and 13 other provisions in the original Schedule were deleted as by a 1984 update amendment eliminating transitional language no longer considered necessary. 11

12 This Court has repeatedly noted that the Northwest Ordinance forms part of Indiana law. Ellingham v. Dye quoted the Ordinance s provision that the territorial legislative department shall have authority to make laws, in all cases for the good government of the district not repugnant to the principles and articles in this ordinance established and declared. 178 Ind. 336, 99 N.E. 1, 9 (1912). It then held the same rule applied to the State under the 1816 Act to enable the people of Indiana Territory to form for themselves a Constitution and state government. Id. (quoting Enabling Act provisions that State government shall be republican, and not repugnant to the ordinance of 1787 ); accord Simons, 28 N.E. at 422 (quoting Enabling Act provision that Ordinance articles are declared to be irrevocable between the original states and the people and the states of the territory north-west of the river Ohio, and Indiana enactment accepting this) (enforcing Ordinance provisions on Indian rights); Me-shing-go-mesia v. State, 36 Ind. 310, (1871) (quoting same provisions of Enabling Act and Indiana s acceptance, as the language in which the people of the State of Indiana entered into this irrevocable compact ) (enforcing Ordinance provisions on Indian rights). This Court has also noted that the Ordinance is how common law became applicable in States formed from the Northwest Territory. See Crake v. Crake, 18 Ind. 156, 158 (1862) ( We know judicially that the common law was brought from England to this country by our ancestors, and was declared, by the ordinance for the government of the Territory of the Northwest to be a part of the fundamental law of that territory ): Johnson v. Chambers, 12 Ind. 102, 105 (1859) (taking judicial notice that English common law, so far as applicable in this country, was in force in the thirteen original states, except as modified by the statutes thereof; [and] that it was declared in force in the territories of the northwest by the ordinance of 1787 ). 12

13 Third, the Opinion specifically overlooks pertinent authority on the Ordinance s impact on public water rights in Indiana. Again, after acknowledging that early cases in our State s history cited article IV of the Ordinance as a source of public rights in water, the Opinion states: By the mid-nineteenth century, however, a shift in judicial thought rendered the Ordinance inoperative following a state s admission to the union. 90 N.E.3d at Respectfully, that shift did not occur in Indiana. In the mid-twentieth century, this Court invoked the Ordinance as governing resolution of disputes over public water rights on the White River. The Court first noted that Indiana is a part of the territory covered by an Ordinance of Congress of 1787, in which is found this language: * * * The navigable waters leading into the Mississippi and St. Lawrence shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens of the United States, and those of any other States that may be admitted into the confederacy. State ex rel. Ind. Dep t of Conserv. v. Kivett, 228 Ind. 623, 629, 95 N.E.2d 145, 148 (1950). After reviewing United States Supreme Court cases, this Court held that Indiana, by virtue of the Ordinance of 1787, acquired title to the beds of the navigable waters of the State when Indiana, in fact became a State and took what rights the Northwest Territory had in said area. Id. at 630, 95 N.E.2d at 148 (emphasis added). The Opinion cites this page of Kivett in saying that Indiana, upon admission to the Union in 1816, acquired title to the shores and submerged lands of all navigable waters within its borders. 90 N.E.3d at The Opinion overlooks that Kivett says Indiana acquired title to the beds of navigable waters; that it did so by virtue of the Ordinance of 1787 ; and that the State took what rights the Northwest Territory had in said area. The pertinent point is straightforward. Whatever the effect of the 1837 land grant under Federal law, under Indiana law conveyance of riparian land included ownership to ordinary 13

14 low-water mark. This was the law of Virginia ( Shively, 152 U.S. at 24-25), which ceded Northwest Territory land. It remained Indiana law when the State was formed, and by virtue of the Ordinance took what rights the Northwest Territory had in land abutting navigable waters. Kivett, 228 Ind. at 630, 95 N.E.2d at 148; see also Ellingham, 99 N.E. at 2 (affirming judgment holding that challenged law was violative of provisions of the act of Virginia conveying to the United States the territory northwest of the Ohio river, the ordinance of 1787, [and] the act of Congress of 1816 to enable the people of the Indiana Territory to form a state Constitution and government ) (citation omitted). Fourth and critically the public access rights the Opinion recognized do not require holding that the State acquired ownership of land below the OHWM, to the exclusion of private ownership rights of riparian landowners. Rather, the Court need hold only that the State has public trust rights that are not defeated by private ownership. The Opinion s own analysis of whether the State relinquished title shows the public rights found by the Court do not depend on State title, but rather on the State retaining rights for the public s benefit notwithstanding private fee title. In discussing the Lake Preservation Act, the Opinion said Indiana has not abrogated its common-law fiduciary responsibilities to Lake Michigan ; that the Act does not expressly abrogate the common-law public trust doctrine ; and that nothing in the Act [ ] conflicts with the common-law public trust doctrine as it applies to Lake Michigan. 90 N.E.3d at The Opinion s holding on limits of legislative power shares this focus: Even if the legislature had intended to extinguish public trust rights in the shores of Lake Michigan, it lacked the authority to fully abdicate its fiduciary responsibility over these lands. Id. at The Supreme Court case the Opinion quotes is the same: The control of the State for the purposes 14

15 of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. Illinois Central, 146 U.S. at 453 (emphasis added). Hence, rejecting Gundersons view that ownership to the water s edge excluded public access did not require rejecting that ownership itself, reflected in public records. All it required was holding that State had public trust rights, regardless of the riparian landholder s ownership. That is what was held both by the Court of Appeals here, and by Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005), which the Opinion praised (90 N.E.3d at 1180). It is also what the State itself argues in a parallel context namely, that public trust rights under the Lake Preservation Act do not mean or require ownership of lakes and land. Ind. Dep t of Natural Res. v. Lake George Cottagers Ass n, 889 N.E.2d 361, 364 (Ind. Ct. App. 2008). In upholding the State s position, Lake George clarified earlier language saying the State holds title to a lake under the Act. Id. at 364 n.5 (quoting Parkison v. McCue, 831 N.E.2d 118, 130 (Ind. Ct. App. 2005)) (court s added emphasis). As the court explained, Parkison s reasoning demonstrates the Act was intended to protect the public s right to enjoy public freshwater lakes for recreational purposes, and not to transfer to the State legal title to the land underneath such lakes. Id. Ergo, our reference to the State s title is not a reference to legal title, but rather is to be read in a more general sense as something that justifies or substantiates a claim or a ground of right. Id. (quoting WEBSTER'S THIRD NEW INT L DICT (1976)). The same analysis fits here. Nothing in the public trust rights recognized by the Opinion depends on the State having legal title to land below Lake Michigan s OHWM, eliminating private ownership reflected on riparian landowner deeds. 15

16 Finally, the Opinion s State ownership conclusion, unnecessary to its result, also raises unnecessary issues that should be avoided. [J]udicial elimination of established privateproperty rights, even if foreshadowed by dicta or even by holdings years in advance[,] is nonetheless a taking. Stop the Beach Renourishment, Inc. v. Fla. Dep t. of Envtl. Prot., 560 U.S. 702, 728 (2010) (four-justice plurality). Here, the Opinion s State ownership view was not even foreshadowed by prior Indiana law. Previously, this Court held in language the Opinion doesn t address that Indiana acquired title to beds of navigable waters by virtue of the Ordinance of 1787, and took what rights the Northwest Territory had in said area. Kivett, 228 Ind. at 630, 95 N.E.2d at 148. Previously, this Court held in a decision the Opinion now confines to the Ohio River that banks belong to the riparian owner, and he owns an absolute fee down to low water mark. Bainbridge, 29 Ind. at 371. Nor had the Legislature suggested riparian landowners had no private ownership below OHWM. Excluding Lake Michigan from the Lake Preservation Act may not have abrogated [Indiana s] common-law fiduciary responsibilities or common-law public trust doctrine as to Lake Michigan (90 N.E.3d at 1182). But it certainly evinced no implicit elimination of riparian ownership rights on the Lake, particularly since it doesn t affect ownership of lakes and lands to which it does apply. Lake George, 889 N.E.2d at 364 & n.5. In addressing fishing in Lake Michigan part of the traditional triad of protected uses under the common-law public trust doctrine, 90 N.E.3d at 1188 the Legislature defined the Lake as the waters of Lake Michigan. I.C (emphasis added). This, too, the Opinion does not address. The Opinion says its State ownership view does not declare that what had been private property under established law no longer is. 90 N.E.3d at 1185 (quoting Stop the Beach, 560 U.S. at 728). Perhaps; but at a minimum, it raises serious takings issues, with no reason to do 16

17 so. As this Court instructs, judicial restraint includes not deciding issues (particularly of con - stitutional dimension) when this is unnecessary to the result. Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm n, 695 N.E.2d 99, (Ind. 1998). CONCLUSION Saying riparian landowners do not own land below OHWM, regardless of their deeds, disturbs riparian rights law dating to Indiana s founding and affirmed by this Court s precedent. Potential impact across the riparian law landscape is broad and unpredictable. This is an arrow [that] may come down in places we will not like at all. Charles A. Beard Classroom Teachers Ass n v. Bd. of Trs. of Charles A. Beard Mem l Sch. Corp., 668 N.E.2d 1222, 1227 (Ind. 1996) (Shepard, C.J., dissenting). [S]hooting it up in the air (id.) was unnecessary to hit the Court s target. This Petition asks only that the Court reconsider the Opinion s State ownership conclusion, and hold simply that private ownership to the waters of Lake Michigan does not eliminate the State s common law public trust rights below the OHWM. Respectfully submitted, /s/ Michael V. Knight /s/ Peter J. Rusthoven Michael V. Knight [# ] Peter J. Rusthoven [# ] BARNES & THORNBURG LLP John R. Maley [# ] 700 1st Source Bank Center Leah L. Seigel [# ] 100 North Michigan Street BARNES & THORNBURG LLP South Bend, Indiana South Meridian Street Telephone: (574) Indianapolis, Indiana Telephone: (317) Mark L. Phillips [# ] NEWBY, LEWIS, KAMINSKI & JONES, LLP 916 Lincolnway LaPorte, Indiana Telephone: (219) Counsel for Appellants/Cross-Appellees Don H. Gunderson and Bobbie J. Gunderson, as Trustees of the Don H. Gunderson Living Trust 17

18 WORD COUNT CERTIFICATE Pursuant to Indiana Appellate Rule 44(E) & (F), I verify that the foregoing Petition (exclusive of Appellate Rule 44(C) items) contains no more than 4,200 words, as determined by the word processing system used to prepare the Petition (Microsoft Word 2010). /s/ Peter J. Rusthoven Peter J. Rusthoven [# ] 18

19 CERTIFICATE OF SERVICE Pursuant to Indiana Appellate Rules 24(D) & 68(F), I certify that on March 16, 2018 copies of the forgoing Petition were served electronically on the following, via the Indiana Electronic Filing System: Jeffrey B. Hyman, Esquire W. William Weeks, Esquire THE CONSERVATION LAW CENTER 116 South Indiana Avenue Bloomington, Indiana Kurt R. Earnst, Esquire BRAJE NELSON & JANES, LLP 126 East 5 th Street Post Office Box 1006 Michigan City, Indiana David L. Powers, Esquire SMITH, MARTIN, POWERS, & KNIER, P.C. 900 Washington Avenue Bay City, Michigan Mark Miller, Esquire PACIFIC LEGAL FOUNDATION 8645 North Military Trail, Suite 511 Palm Beach Gardens, Florida Paul Edgar Harold, Esquire Steven M. Judge, Esquire LADUE CURRAN & KUEHN LLC 100 East Wayne Street, Suite 300 South Bend, Indiana Thomas M. Fisher, Esquire Solicitor General Andrea E. Rahman, Esquire Deputy Attorney General David Lee Steiner, Esquire Deputy Attorney General OFFICE OF THE INDIANA ATTORNEY GENERAL Indiana Government Center South 302 West Washington Street, 5th Floor Indianapolis, Indiana Patricia F. Sharkey, Esquire ENVIRONMENTAL LAW COUNSEL, P.C. 180 North LaSalle Street, Suite 3700 Chicago, Illinois Keith A. Schofner, Esquire LAMBERT LESER 755 West Big Beaver Road. Suite 410 Troy, Michigan /s/ Michael V. Knight Michael V. Knight [# ] 19