Beachcombing Ban Ripples Across Great Lakes
Some environmentalists side with property rights activists
July 27, 2004 |
Great Lakes Bulletin News Service
Ohio Department of Natural Resources
Fences like this one in Ohio could soon interrupt Michigan’s Great Lakes shoreline if the state Supreme Court upholds a lower court decision.
Like a boulder crashing into a quiet pond, the recent Michigan Court of Appeals ruling against Great Lakes beachcombing is making big waves across the Great Lakes Basin. The Appellate Court decision, Glass v. Goeckel, has delighted property rights activists in the state, motivated property rights groups in other Great Lakes states to bring the new doctrine to their own beaches, and even attracted support from some Michigan environmentalists.
The decision, announced by the state Appellate Court on May 13, stemmed from a minor tiff between neighbors over access to some Lake Huron shoreline. Yet it resulted in a major ruling that, according to legal observers and a statewide property rights group called Save Our Shoreline, forbids people from strolling along Great Lakes beaches unless they keep their feet in the water. The ruling could also give rise to many fences and No Trespassing signs in a watery landscape that is widely regarded as a place made for wandering.
As the case heads to the Michigan State Supreme Court, however, other environmental groups that oppose the decision point to what they say are even more serious consequences. They worry that, if Glass v. Goeckel stands, it would make it more difficult for the state to prevent beachfront property owners from damaging the shoreline with aggressive vegetation cutting and grooming, excavation, and other activities that could harm both the lakes’ and the land’s ecology and wildlife.
Ohio Catches a Wave
So far, the ruling’s most dramatic effect is in Ohio. On May 28, the Ohio Lakefront Group, a conservative property rights organization, filed a lawsuit in state court that somewhat mimics Glass v. Goeckel in its claim that beachfront residents actually own their property up to where land touches water. Therefore, they claim, they can bar people from strolling along the beach.
“The public has the right to walk along the shoreline only if the owner allows it, otherwise they have to walk with their feet in the water,” Tony Yankel, the president of the group, said in an interview with the Great Lakes Bulletin News Service. “I have people I throw out — this is my property and I can tell them I don’t want them walking across it.”
But the defendant in the case, the Ohio Department of Natural Resources, disagrees. It says that the State of Ohio has owned Lake Erie shoreline below the lake’s high water mark since the state’s 1803 founding. The state asserts that there is a narrow strip of beach, called the foreshore, where people can legally walk without getting their feet wet.
“Ohio was granted all land and water that extends up to the ordinary high water mark as part of a public trust for all of Ohio’s 11 million residents,” said Brenda Culler-Gautschi, public information spokesperson for the Office of Coastal Management, a unit of the Ohio Department of Natural Resources. “The public has the right to use public trust land for swimming, boating, fishing, and walking along the beach.”
The Ohio Lakefront Group is a formidable adversary. Founded in 1999, it claims over 4,000 members dedicated to extending their property rights down to water’s edge. And it is looking to the younger, smaller Save Our Shoreline for guidance.
“In Michigan, Save Our Shoreline is doing good stuff and I just wish we could be that effective,” said Mr. Yankel.
Michigan Hits Bottomlands
To Save Our Shoreline, which claims to represent 2000 households comprised mostly of Great Lakes coastal property owners, the Appellate Court decision was another step in its three-year drive to gain unrestricted private ownership of Great Lakes shoreline, including the lakes’ “bottomlands.” With those bottomlands — legally the area between the historic high-water mark and the water — now very large along most Great Lakes beaches due to historically low water levels, SOS persuaded the Republican-dominated state Legislature to change the state’s rules controlling what landowners can do to their beaches.
The Legislature passed the law with comparative speed. The final proposal gained unanimous Republican and near-unanimous Democratic support, including that of Governor Jennifer M. Granholm who signed the measure into law. For the first time, it is now legal for Great Lakes property owners in Michigan to mow and rake bottomland vegetation. And a smaller group of owners along Saginaw and Grand Traverse Bays, where there are extensive bottomlands, can now dig, plow, fill in, or dredge down to the water’s edge, albeit after obtaining a letter of approval from the Michigan Department of Environmental Quality.
Observers say SOS’s last-minute amicus brief in Glass v. Goeckel heavily influenced the court. Currently the organization is attempting to push the decision well beyond what many legal experts think the court actually said. SOS not only claims that beach walking is illegal, but also that full ownership and control of the bottomlands now rests in private hands, instead of, through the public trust, with the state, which acts to protect them for the sake of navigational, erosion, and ecological concerns.
Taking Property Rights to the Hilt
Attorney Jim Olson, a prominent environmental lawyer from Traverse City, calls the SOS claim “a complete misrepresentation of the law and the Court of Appeals decision.” Mr. Olson also said the decision itself goes too far: “This ruling is not an affirmation of existing property rights, it is an extension of private rights into public trust land.”
The Appellate Court based its decision largely on Hilt v. Weber, a 1930 Michigan Supreme Court ruling that said shore land that was no longer under any threat of submersion could become private land. The court used the words “shore,” “shoreline,” and “water’s edge” without clear definition, leaving its decision open to future re-interpretation.
Twenty-six years ago, Hilt also figured in a legal opinion written by then-Attorney General Frank Kelley that said beach walkers must tread only on ground “covered by water.” But one longtime riparian law expert says that both the Appellate Court and Mr. Kelly were wrong to use Hilt v. Weber to determine where the public can walk. Professor Robert Abrams, who taught water and shoreline law for nearly 30 years at Wayne State University and the University of Michigan, considers Mr. Kelley’s 1978 opinion to be “completely misguided.”
“Hilt v. Weber had nothing to do with public trust rights,” Mr. Abrams said. “The attorney general did not read it very closely because the Hilt decision only concerns land that is permanently dry land — not the land below that.”
Michigan’s Greens Split, but Ohio’s Support Beachcombers
As legal experts debate the controversial decision, some Michigan environmentalists said that Glass v. Goeckel could help their causes. For example, Charles Davis, president of Preserve the Dunes, a non-profit organization, said that the ruling could help protect fragile sand dunes. Mr. Davis, a prominent advocate for better sand dune protection, says some people take advantage of the state’s beach walking tradition to reach remote Lake Michigan sand dunes with high-powered vehicles.
“Now we can cut off their access to these dunes by preventing off-road vehicles from slipping across beachfront property” Mr. Davis said.
But attorney Pamela Burt, who represented beach walker Joan Glass in Glass v. Goeckel and is appealing the case to the state Supreme Court, says the public trust doctrine that protects the Great Lakes and their bottomlands from shoreline-altering activities also bars off-road vehicle passage.
“On public trust land people have the right to walk along the shoreline,” Ms. Burt said. “They do not have the right to ride off road vehicles there.”
Other groups say the sudden shift in shoreline law threatens the state’s ability to properly manage Great Lakes bottomlands, which are actually large ecosystems that influence the health of the big lakes they rim.
"Regardless of the final decision on ownership patterns,” said Wil Cwikiel, policy director for Tip of the Mitt Watershed Council, a non-profit water resource group based in Petoskey, “the State of Michigan will always have an obligation and the authority to protect the public's interest in the health of shoreline ecosystems and the quality of Great Lakes water. The SOS effort to change ownership patterns as part of their strategy to gut environmental laws is contrary to the interests of all Michiganians — not to mention a colossal waste of everyone's time."
Meanwhile, as green groups in Michigan ponder the ruling and some property rights activists begin spreading the SOS message in Wisconsin, activists in Ohio are working to stop the Ohio Lakefront Group. A bill passed by the Ohio state House to advance private ownership of the shoreline stalled in the state Senate after a broad, powerful coalition of more than 10 organizations, including the Audubon Society, the Public Interest Research Group, the League of Ohio Sportsmen, and the Ohio Bass Federation, announced they opposed it. One Ohio DNR official noted that the coalition is both unusual and effective.
“I’ve never before seen more environmentalists and sportsmen joined together like this,” said Jim Lynch, assistant chief of communications for the Ohio Department of Natural Resources. “The Sierra Club and hunters are standing united.”
Jess Piskor is a summer intern at the Michigan Land Use Institute. You can reach him at email@example.com.