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Court’s Unexpected Order: Keep Off The Beach!

Appellate ruling puts private rights ahead of public interest

July 4, 2004 |
Great Lakes Bulletin News Service

MLUI/Pat Owens

If a state Appellate Court ruling stands, strolling on a Great Lakes beach could be confined solely to public lands, like Sleeping Bear Dunes National Lakeshore.

TRAVERSE CITY - In an impassioned address last year, Governor Jennifer M. Granholm declared the public’s ability to dig "their toes into the warm sand of our silver dunes" as central to understanding what she called "the soul of Michigan."

But a legal case that began as a confrontation between neighbors along the Lake Huron shoreline four years ago has now worked its way to the doorstep of the Michigan Supreme Court where justices are being asked to decide whether the public has the right to dig their toes into the sand, or do anything else on the thousands of miles of Great Lakes shoreline that is in front of private homes.

This far-reaching outcome has materialized from the bad blood caused by one Alcona County homeowner who spent two years trying to prevent his 70-year-old neighbor from walking on a Lake Huron beach. The case has gained legal and political prominence because of Save Our Shoreline, a group of increasingly influential "property rights" activists based in Bay City, and a conservative three-judge state Appeals Court panel that was plainly sympathetic to their cause.

On May 13, 2004, the panel overturned a lower court decision and ruled unanimously that Great Lakes shoreline owners have the authority to bar people from strolling along the beach. The ruling, if allowed to stand, could result in the end of a centuries-old pastime in Michigan. The ruling also could result in the proliferation of unsightly barriers on Great Lakes beaches, including "Keep Out" signs and fences.

If the Appellate decision stands, moreover, it would put Michigan at odds with how other coastal states manage their shorelines and recreational economies. From New Jersey to Oregon and from Pennsylvania to Hawaii, coastal states have traditionally recognized that citizens have the right to free access along the entire shoreline.

Influence of Radical Property Rights Group
Proponents and critics of the Michigan ruling say that Save Our Shoreline, a group composed primarily of wealthy shoreline owners, has been aided by an influential court in its campaign to control the Great Lakes shoreline. The group said in a court filing last year that it is "responding to what it perceives as an organized effort, which includes units of state and federal government, and others, to increase public control of the lakeshores, to the prejudice of private owners and the principle of private property."

"Over the past decade there as been a slow, carefully crafted and coordinated plan by government agencies to take control of shoreline property in Michigan," added Ernie Krygier, the president of the three-year-old group.

Critics of Save Our Shoreline noted that the group is seeking to invalidate centuries of legal doctrine that provide public access to the seashore. Critics of the Appellate ruling also said that barring the public from walking on Great Lakes beaches would have enormous ramifications for the state’s recreational economy and culture, and for most shoreline homeowners. Their ability to stroll on beach beyond what is directly in front of their homes could be limited, if not blocked altogether.

Dick Beyer, who owns a home along Grand Traverse Bay, has felt firsthand the sense of loss that comes with restricting access to the beach. Recently one of his neighbors, a family that had just moved in, put a "no trespassing" sign on the beach. "We all felt it was pretty unneighborly. I see people walking by and I always wave because it’s usually people I know," said Mr. Beyer.

"Here’s the irony," said Chris Bzdok, an environmental attorney in Traverse City. "The Appellate decision gives all the Great Lakes property owners the right to bar people from walking on the beach. The decision, though, still recognizes that the land between the water’s edge and the high water mark is owned by the state. It’s owned by the public but you and I can’t walk there. That doesn’t make sense."

Bad Behavior Could Produce Worse Law
The case in question, Glass v. Goeckel, dates from an incident in 2000 when 70-year-old Joan Glass, who lived on the west side of US 23 in Alcona County, clipped a few branches on a trail on the east side of the highway that she had used since 1967 to reach Lake Huron. For years Mrs. Glass put out her beach chair and blankets at the trail’s end on the Lake Huron beach.

Though the trail crossed private property, that land was owned by close friends and Mrs. Glass and her husband gained a 15-foot-wide, permanent, deeded easement so that they could easily walk to the lake as long as they lived. But after Mrs. Glass’s friends sold the property in 1997 to Richard and Kathleen Goeckel, trouble started. The Goeckels, who lived full-time in Oakland County, objected to Mrs. Glass’s use of the trail and where she put down her beach blanket.

According to documents filed in the case, Mr. Goeckel tried to stop the tree trimming, blocked the trail with his vehicle, put a heavy barrel in the center of the trail as a barrier, and told Mrs. Glass she could no longer use the beach. Frustrated, Mrs. Glass filed suit in 2001 in Alcona Circuit Court. She asserted 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.

In 2002 Circuit Judge John F. Kowalski presided over a negotiated settlement that allowed Mrs. Glass to use the trail. He also issued a separate ruling that said Mrs. Glass had the right to walk on the beach.

The Goeckels appealed the second half of Judge Kowalski’s ruling, arguing that they owned the land all the way to the water’s edge and the public could not walk there.

Save Our Shoreline jumped into the case to advance that idea. With more than 2,000 members, SOS, as it calls itself, has proven to be a political force in Michigan since its founding in 2001. Last year it convinced the Legislature and Governor Granholm to approve a new state law that allows Great Lakes shoreline owners to cut, scrape, and fill in weeds and standing water on bottomland that had been exposed by low water levels. Much of the bottomland in question was publicly-owned.

Some Question What’s Right With This Property Decision
The Legislative victory advanced the state property rights movement’s decade-old effort to expand the authority of private land owners to control publicly owned resources.

The three-judge Appellate panel that heard the Goeckel case included two judges appointed by former Governor John Engler, a Republican whose administration consistently sought in the 1990s to open forests, land, water, minerals, and other public resources to private interests. One of those judges, Kurtis Wilder, is a member of the Federalist Society, an ultra-conservative libertarian judicial group.

Pamela Burt, an attorney from Harrisville who represents Mrs. Glass, argues that the Appeals Court ruling is based on an exceedingly narrow interpretation of a single Michigan court decision from the 1930s. The Appellate court, she said, dismissed centuries of common, state, and federal law that establishes the rights of citizens to enjoy the beach.

"This is a no-brainer," said Ms. Burt in an interview with the Great Lakes Bulletin News Service. "It’s always been common law that people can walk the beach and we’ve got U.S. Supreme Court rulings on our side."

The Goeckel case comes down to how the court will treat a relatively narrow strip of sand and stones between the water’s edge and the highwater mark on the shores of the four Great Lakes that define Michigan. Unlike inland lakes, the Great Lakes are legally treated as seas, meaning that the public, not private individuals, own the water and the associated lakebed to the established high water mark. The Appellate Court affirmed this legal principle.

The key issue in the Goeckel case is whether private shoreline owners can exclude people from the beach below the high water mark. The question is more acute now because low Great Lakes water levels have produced wider beaches that some shoreline property owners now claim as their own. But Mrs. Glass and her supporters contend that the newly exposed shoreline is bottomland that is publicly owned. They also assert that if the Supreme Court lets the Appellate ruling stand the only way people can legally walk on a Great Lakes beach is to keep their feet in the water.

Mr. Krygier, the SOS president, asserts that his members are not interested in using the Appellate ruling to exclude beach walkers. Rather, he said, shoreline owners want to prevent people from throwing parties and lighting campfires in front of private homes. "I haven’t talked to anyone who plans on putting up fences to prevent beach walking," he said. "This is about making sure that if someone comes along and has a party on your beach you can say, ‘Excuse me, you can’t do this.’"

But in interviews, several lawyers and shoreline experts took issue with Mr. Krygier’s benign justification for what they believe is a direct attack on the public interest. They noted that existing nuisance laws can prevent disruptive behavior along the shoreline.

And more zealous members of the property rights movement in Michigan have already indicated they are prepared to use the Appellate decision to close beaches to public access. Last month, after a contentious meeting on shoreline policy held by the Leelanau County Board of Commissioners, a shoreline owner stuck a finger in the face of a reporter and threatened him with arrest if he walked along the Lake Michigan beach in front of his house.

Jess Piskor, a native of Suttons Bay who last summer walked the entire length of Leelanau County’s 100-mile Lake Michigan shoreline, graduated in May from the University of Michigan. He is a Leelanau Smart Growth Coalition intern working out of the Michigan Land Use Institute’s regional office in Traverse City. Reach him at jess@mlui.org.

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