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State Supreme Court Could Draw a Line in the Sand

Great Lakes beach walking case pits property rights against an ancient, friendly tradition

April 5, 2005 | By Keith Schneider
Great Lakes Bulletin News Service

MLUI/Carol Blundy

Fences are sprouting along Michigan’s Great Lakes  shoreline

Behold the Great Lakes shoreline: The steep flanks of Lake Michigan dunes. The polished stone beaches of Lake Superior. The table-flat ledges of Lake Huron — all chattering and splashing.

Until a year ago, Michiganians considered beach walking a basic right. But last May the state Appellate Court put that in doubt when it ruled that lakefront owners controlled the beach to the water’s edge. If you walk along a Great Lakes shoreline, said the court, your feet must get wet.

On a cold and clear day in Lansing this March, the Michigan Supreme Court’s seven justices took their turn at the “beach walk case.” Before a packed courtroom, the justices heard oral arguments that will help them decide not only whether citizens will regain the right to walk on Great Lakes beaches, but also what kind of place Michigan is at the start of the 21st century. A lot hangs in the balance — including a vast and (until recently) uncontested social comity around an ancient tradition, and decisions by vacationers about where they will travel this summer.

A 2001 Case Makes The Big Time
The legal question in Glass v. Goeckel, which began nearly four years ago as a nasty spat between neighbors, is straightforward: Can the public legally walk along all 3,200 miles of Michigan’s Great Lakes coast, or can property owners — who own 70 percent of that coast — put up fences and block walkers? The court’s ruling, expected before July, will affect 10 million Michigan residents and millions more who every year come here to open themselves to nature and feel truly alive by walking on some of the most beautiful beaches in the world. If the court closes those beaches, some vacationers may well go elsewhere; the seven other Great Lakes states and Ontario all allow beach walking.

The case tests our state and nation’s character. Are people who visit Great Lakes beaches able to behave with decorum? Will lakefront property owners welcome visitors or turn the Great Lakes shoreline into an exclusive private domain? Can the court set aside ideology to make a sound decision that serves the public interest?

Nobody, including the plaintiff and defendants, anticipated that such questions would arise from a matter of bad blood between Joan M. Glass, a widow in her 70s, and Richard and Kathleen Goeckel, Mrs. Glass’ neighbors. Mrs. Glass owned a home across U.S. 23 from Lake Huron, north of Oscoda. It’s a short walk to the lake, down a 15-foot-wide easement that she and her husband purchased in 1967 from a beachfront landowner.

Sand Storm in Alcona County
Thirty years later the Goeckels, an Oakland County couple, bought the parcel that bordered the easement. They and Mrs. Glass began fighting over the easement and beach access. Mr. Goeckel, according to court documents, tried to stop Mrs. Glass from trimming trees along the easement, blocked it with his vehicle and then with a heavy barrel, and told Mrs. Glass she could no longer use the beach. Mrs. Glass filed suit in 2001 in Alcona County Circuit Court, asserting that the easement established her legal right to walk to the beach and that well-established public trust and common law allowed her to walk along the water’s edge.

On July 9, 2001, Mrs. Glass won the right to use her easement to get to the beach. The Goeckels, though, continued the case and accused Mrs. Glass of trespassing on the beach, claiming it was their property. Mrs. Glass countered that the beach below the ordinary high water mark is held in trust for the benefit of all citizens for navigation and recreation. As a member of the public, Mrs. Glass argued, she had the right to walk along Lake Huron, just as generations before her have always done.

On April 4, 2002, the trial court ruled in Mrs. Glass’s favor, but noted that there was no clear precedent in state statutes or law that expressly allowed Great Lakes beach walking.

The Goeckels appealed, helped considerably by a brief filed by Save Our Shoreline, a four-year-old property rights group based in Bay City. On May 13, 2004 a three-judge panel ruled that private owners control beachfront to the water’s edge and that if citizens want to walk along the Great Lakes shoreline they must put their feet in the water. The Appellate Court ruling, said Pamela Burt, Mrs. Glass’ attorney, reversed generations of tradition and common law.

“The public has always had the right to walk the shores of the Great Lakes under decisions of the Michigan Supreme Court dating back more than a century,” she said.

A Debate About the Lakes and Us
The Great Lakes coastline offers a dramatic stage for considering public and private rights. That coastline remains a rare and authentic refuge for overworked, overwrought Americans flocking to it for the simple, life-affirming things they have no time for at home. That coast is a sanctuary from confrontation and fear, a place where people feel so free and secure that they throw off their street clothes and take long, restoring walks along the water’s edge. 

Yet preserving these privileges, which tradition, statute, and legal precedent have provided for generations, depends on where the state Supreme Court decides to literally draw a line in the sand. Judging from the oral arguments and 10 legal briefs filed with the court, including one from the Michigan Land Use Institute, the justices can choose from three different lines.

Three Proposed Lines

MLUI/Bruce Giffin

South Fox Island

A select group of shoreline property owners and some of the state’s most influential business groups, citing a 1930 state Supreme Court decision, Hilt v. Weber, ask the justices to both affirm and clarify the Appellate Court ruling, which resembles a 1978 opinion by then-Attorney General Frank J. Kelley, and grant property owners the legal authority to control the beach right to the water’s edge.
 James Barrett, the president of the Michigan Chamber of Commerce, says such clarification is urgent. “Stable and predictable property ownership laws are imperative to business,” he said in a statement.

But two more thoughts, both products of our crowded and coarsening culture, lie at the core of that argument. The first is private lakeshore owners’ legitimate distaste for the bad behavior of the few who leave trash, act insolently, get drunk, and despoil the beach in front of their homes. The second is a well-organized bid by some shoreline owners to  gain new authority to control public land to enhance their personal privacy. Save Our Shoreline said in a recent fundraising letter that it had spent $500,000 to advance this view and prevent “any member of the public [to] be able to use your beach as they wish.”

The National Wildlife Federation, the Michigan United Conservation Clubs, and the Michigan Senate Democratic Caucus propose a second line. They say that longstanding state law, particularly the 1955 Great Lakes Submerged Lands Act and prior court decisions, make the “ordinary high water mark” the line separating public and private shoreline: Beach above the high water mark is strictly private property; beach below it is owned and overseen by the state and is open to the public. The two groups told the court they were “committed to maintaining full public access to the Great Lakes and their shorelines.”

But the State of Michigan, the Michigan Land Use Institute, and the Tip of the Mitt Watershed Council suggest a third line, above the water’s edge but below the high water mark. In separate briefs, the state and the organizations found similar legal justifications for drawing a new line that allows the public to walk along the water’s edge while protecting the privacy and rights of shoreline homeowners. That line — based on state law, prior public trust doctrine, and court decisions — defines a band of wet sand as a permanent public path along Great Lakes shorelines.

The Institute’s brief, which draws on the state Inland Lakes and Streams Act, calls for public access below “the line between upland and bottomland that persists through successive changes in water levels, below which the presence and action of the water is so common or recurrent that the character of the land is marked distinctly.” The Institute further argues that the Appellate Court should have ruled that the “swash” or wet zone, which changes daily and seasonally based on water levels and wave activity, is not “dry” land and is subject to public access by citizens. This, the Institute says, does not give people the right to travel on dry sand areas or sit on and take over private property, but does provide right of traverse along the water’s edge. The Institute noted this custom is more than 100 years old and is based on a U.S. Supreme Court ruling that the public trust doctrine applies to the Great Lakes as “inland seas.”

Governor Jennifer M. Granholm’s senior environmental advisors argued a similar point in their brief to the
Supreme Court.

“We believe it is appropriate for the public to have a limited right of access to traverse the area of the water’s edge,” said Skip Pruss, the deputy director of the state Department of Environmental Quality, which joined the Department of Natural Resources in filing its brief. “That right does not necessarily include the right to camp and sunbathe or to engage in activities on land owned by private parties. It does include a right to traverse that area above the water’s edge in a manner that accommodates children and senior citizens. That might suggest that it is broader than the area subject to wave action and saturated sand, but not so much so.”

“We do not think it is appropriate to go all the way to the ordinary high water mark because that is not a line that is discernible by the public,” Mr. Pruss added in an interview with the Great Lakes Bulletin News Service. “The ordinary high water mark might be a few feet from the water’s edge to a couple of hundred feet. There is no way for the ordinary citizen to know that.”

Court Decision Unpredictable

MLUI/Carol Blundy

New barriers actively discourage beach walking in South Haven.

None of the lawyers interviewed for this article would predict where the high court could come down. The law, according to court filings, could justify any of the three lines. Clearly, there are political considerations, especially for a high court dominated by a conservative majority. Drawing the line at the water’s edge is culturally and politically in synch with at least four justices who have sought in previous natural resource cases to enhance individual rights and diminish public oversight.
 But banning beach walking is such a departure from Michigan’s legal and cultural tradition that few attorneys believe the Supreme Court would make such a sweeping decision, particularly when there is a legally sound compromise.

“We’re hoping for a narrow decision that clarifies the law and defines the rights of citizens,” said Gail Gruenwald, an attorney and executive director of the Petoskey-based Tip of the Mitt Watershed Council.

The effect of the ruling will be profound. Should the court ban beach walking, it would effectively limit public access just to shoreline within state parks and other public lands.

Another effect, one already being felt, will be a proliferation of new fences and “keep out” signs marring gorgeous scenery. The irony of this result is unmistakable. Some of the same shoreline owners who are nervous about strangers walking on the beach are already contending with neighbors who have erected unsightly fences to the water’s edge. Confrontations are occurring where none happened before. Morning beach walks are no longer so pleasant and in some areas — parts of Allegan County, for instance — are actively discouraged by new barriers.

The new fences signal that it’s not just ready access to the Great Lakes shoreline that’s at stake. If the state Supreme Court grants citizens the right to walk along the water’s edge, it would affirm something that most Michiganians regard as a birthright and resolve a conflict that, left unresolved, threatens to turn the Great Lakes coast into something it never was — a place of mistrust and unease.

Keith Schneider, a journalist and editor, is deputy director of the Michigan Land Use Institute. Reach him at keith@mlui.org.

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