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Sunday, July 31, 2005

Law - Right to walk along Michigan's Lake Michigan shoreline

In a May 17, 2004 entry, the ILB reported on the controversial Michigan Court of Appeals decision, Glass v. Goeckel (5/13/04), that decided "Michigan property owners who live along the Great Lakes shoreline have exclusive access up to the water's edge".

A Sept. 14, 2004 ILB entry quotes from a Chicago Tribune article that the fight over access to the Great Lakes is playing out in Micgigan and Ohio courts. A selection:

While the public's right to the waters of the Great Lakes is unquestioned, beach access varies from state to state.

Michigan law was unclear before Glass vs. Goeckel. Some jurisdictions enforced a water's-edge boundary, while open beachcombing was the informal rule in many locales. In Illinois and Wisconsin, the law is the same as what the Michigan court recently ruled: Walkers along private beaches are not trespassing as long as they keep their feet wet. Indiana allows public access up to the ordinary high-water mark of Lake Michigan.

In Ohio, Lake Erie cottage owners are suing the state Department of Natural Resources to end public ownership claims up to the high-water mark, or gain compensation for the state "taking" of beaches.

A Feb. 28, 2005 South Bend Tribune story, quoted in this ILB entry, provided more information on the Michigan case, then awaiting decision by the Michigan Supreme Court.

The Michigan Supreme Court issued its 119-page opinion on Friday, July 29th: Glass v. Goeckel.

Here is a report on the ruling from the Detroit Free Press. Some quotes:

Strolling along a Great Lakes beach is no crime, Michigan's Supreme Court ruled Friday in upholding the time-honored tradition of beach-walking.

The court, with five of seven justices fully agreeing, found that "walking the beach ....is inherent in the exercise of traditionally protected public rights."

The decision reverses a state Court of Appeals judgment that walking along the shoreline was trespassing. That ruling had stunned many Michiganders, for whom beach-walking is a long-standing tradition.

Now, its legality is certain. * * *

All seven justices agreed the public had the right to walk the beach. Five ruled the boundary was the ordinary high-water mark, loosely defined as "the point on the bank or the shore up to which the presence and action of the water is so continuous as to leave a distinct mark." Two -- Justices Stephen Markman and Robert Young Jr. -- said the beach-walker's domain should be confined to the area of shoreline commonly referred to as wet sand, which could be feet from the water's edge, depending on wind and wave conditions.

The decision was a comfort to generations of Michiganders who have enjoyed a tacit understanding that it is acceptable to walk Great Lakes shoreline as long as walkers stayed near the water's edge out of respect for waterfront landowners. * * *

The high court decision did not appear to address what activities other than strolling might be permitted along the shoreline strip, although it did state that beach-walking "remains subject to regulation as is any use of the public trust."

Pro beach-walking groups, including environmental organizations, joined Glass in the case, contending the shoreline is Great Lakes bottomland and belongs to Michigan's citizens.

Property-rights groups, some landowners and the state Chamber of Commerce backed the Goeckels, arguing waterfront property-owners' rights extend all the way to the water's edge, including the high-water mark and the wet sand.

[Update 8/1/05] The Chicago Tribune has this story today. The lead: "People can stroll along Michigan's 3,200 miles of Great Lakes beaches whether owners of adjacent private property like it or not, the state Supreme Court has ruled."

Posted by Marcia Oddi on July 31, 2005 06:16 PM
Posted to Environment | General Law Related