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Monday, February 28, 2005

Law - More on access to Great Lake's beaches

The South Bend Tribune today is carrying an AP story headlined "Alcona County woman pushes for life, liberty, walk on beach: Cherished tradition sparks battle over Great Lakes shoreline access." Some quotes:

The Michigan Supreme Court hears oral arguments March 8 in the case, which is drawing attention from groups representing property owners, businesses, environmentalists and outdoor enthusiasts. The outcome could affect not only beach walking, but the balance of power between riparian landowners and government regulators on shoreline environmental issues.

"What's at stake is losing control of our beach," said Ernie Krygier, president of Save Our Shoreline. The property rights advocacy organization has tangled with state officials over landowners' authority to clear beach vegetation.

Keith Schneider, deputy director of the Michigan Land Use Institute, said a ruling in SOS' favor would continue a trend in the state courts of "stripping the public of its rights and conferring them to a group of generally wealthy private property owners."

The debate has spread to other Great Lakes states. A property rights group in Ohio filed suit last year over Lake Erie beachfront ownership.

Glass, 73, lives in rural Alcona County, on the other side of U.S. 23 from Lake Huron. The deed to her land, purchased in 1967, includes an easement allowing her family to walk along one edge of a waterfront lot across the road to reach the lakeshore.

Glass says Richard Goeckel bought the property containing the easement in 1997 and began "harassing" her family as they made their way to the lake. She filed a lawsuit, which eventually was broadened to deal with not only the 15-foot-wide easement corridor, but a swath of the beach itself. Glass contended she had a right to be there; Goeckel said she was trespassing.

"This isn't just about me any more," Glass says. "It's become a whole issue of who can or cannot use the lake."

Scott Strattard, an attorney representing Goeckel, said his client was unhappy with Glass for trimming shrubbery along the easement path and felt she treated the beach as though she owned it as much as he did.

In part, the clash was triggered by a sharp decline in Great Lakes water levels in the late 1990s. The dropoff exposed sometimes wide areas of previously submerged bottomlands, raising the question of who owned them. Courts have dealt with the issue over the years as water levels fluctuated, but disagreement persists.

All sides agree that waterfront, or riparian, property includes everything above the ordinary high water mark. But Goeckel contends riparian property extends to the water's edge, and includes exposed land below the high water mark.

SOS and business groups including the Michigan Chamber of Commerce, which have filed briefs in the case, support him.

Glass believes land below the high water mark belongs to the state and is open to everyone under the public trust doctrine, a position supported in briefs from several environmental groups including the Land Use Institute.

An Alcona County judge sided with Glass but was overruled last year by the Michigan Court of Appeals, whose written opinion drew criticism from both sides.

The appeals court said the state owns land below the high water mark, but owners of adjacent riparian property -- in this case the Goeckels -- have exclusive use of it and can kick others out. * * *

The state of Michigan will file a brief in the case next week, said Skip Pruss, deputy director of the Department of Environmental Quality. It will argue that the public trust doctrine and long-standing custom grant citizens a right to walk on bottomlands near the water's edge -- but not to treat them like a public park.

"Volleyball, sunbathing, camping out or partying on riparian property is farther than we think is appropriate to go," he said.

Glass says trashing the beach is the last thing on her mind.

"I just don't want to lose my right to walk over to the beach and sit," she said. "I never had any problem for years, but all it takes is one person to mess things up for everybody."

For background and links to Michigan's 5/13/04 appellate court ruling in Glass v. Goeckel, go to this Sept. 14, 2004 ILB entry. A Chicago Tribune story cited includes this statement: "Indiana allows public access up to the ordinary high-water mark of Lake Michigan."

[Thanks to BigEastern.com for the pointer.]

Posted by Marcia Oddi on February 28, 2005 11:29 AM
Posted to General Law Related