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Michigan Supreme Court Asked to Draw Line In The Sand

Arguments heard to allow or ban public from Great Lakes beaches

March 19, 2005 | By Keith Schneider
Great Lakes Bulletin News Service

Carol Blundy/MLUI

One effect of last year's Appellate ruling is a proliferation of new fences, “keep out” signs, and other barriers specifically intended to discourage citizens from strolling on the beach, like these on Lake Michigan near South Haven.

Behold the Great Lakes shoreline: The steep flanks of Lake Michigan dunes. The polished stone beaches of Lake Superior, a safe zone beside the water’s cold intensity. The table-flat, foam-washed ledges of Lake Huron, chattering and splashing.

Until a year ago there was a common understanding that in Michigan beach walking was a right reserved for all citizens. But last May the state Appellate Court put that right in doubt when it ruled that the owners of lakefront property controlled the beach to the water’s edge. If you want to walk along a Great Lakes shoreline, said the court, your feet need to be wet.

On a cold and clear winter day in Lansing earlier this month, amid a wealth of competing issues for citizens to feel indignant and worried about, the seven justices of the Michigan Supreme Court gathered to take their turn at what has come to be popularly called the “beach walk case.” Before a packed courtroom, the justices heard oral arguments in a case that will 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 2001 Case Makes The Big Time
The legal question in Glass v. Goeckel, which began nearly four years ago as a struggle between neighbors who despise each other, is straightforward: Does the public have the right to walk along all 3,200 miles of Michigan’s Great Lakes coast, or can private owners — who own 70 percent of lakefront property — put up fences, barriers, and other impediments to discourage visitors. The court’s ruling, expected before July, affects 10 million Michigan residents and millions more who every year come here to breathe, to open themselves to nature, and feel truly alive walking on some of the most beautiful beaches in the world.

But even more than that is at stake. In the legal details of a case that pits an elderly woman against her younger and wealthier neighbors rests the social and political framework of a story that is another test of our state and national character. Do people who visit Great Lakes beaches have it in them to respect the privilege and behave with decorum? Will lakefront property owners welcome visitors or quietly endorse legal barriers that turn the Great Lakes shoreline into an exclusive private domain? And can the court set aside ideology to make a sound decision that serves the public interest?

Nobody, and that includes the plaintiff and defendants, anticipated that such questions would arise from what was initially just 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 on the west side of US 23 north of Oscoda, and a short walk to Lake Huron across a 15-foot wide easement that she and her husband had purchased in 1967 from the landowner across the road.

Sand Storm in Alcona County
Thirty years later the Goeckels, an Oakland County couple, bought the parcel that bordered the easement. Though their accounts differ, there is no dispute that it wasn’t long before the neighbors began fighting over the use of the easement and the beach. Mr. Goeckel, according to court documents, tried to stop Mrs. Glass from trimming trees along the easement, 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.  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.

The issue of whether Mrs. Glass had a right to use her easement to get to the beach was settled by the trial court in her favor on July 9, 2001. The Goeckels, though, continued the case and accused Mrs. Glass of trespassing on the beach, which they said 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 have always done.

On April 4, 2002, the trial court issued its opinion, again in Mrs. Glass’s favor. The court noted, however, that there was no clear precedent in state statutes or law that expressly provided citizens the right to walk on Great Lakes beaches.

The Goeckels jumped through that opening and appealed. They were 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, in an 11-page opinion, the 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 do so with their feet in the water. The Appellate 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.

An Argument About the Lakes and Us
There could hardly be a more portentous stage than the Great Lakes coast to consider public and private rights. In an era of powerful social and economic transformation, the beaches of the Great Lakes remain a rare and authentic refuge. Overworked, overwrought, car-happy Americans flock to Great Lakes beaches precisely to do the simple, life-affirming things few have time for at home. They fill their lungs and take in the earth’s living quality. They open their eyes and marvel at the place where land meets blue water. In the modern age, Great Lakes beaches are a distinct safe zone, a sanctuary from confrontation, from fear, a place where people feel so free and secure they actually throw off their 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, depend 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 have three lines from which to choose.

Three Proposed Lines
A select group of shoreline property owners, and some of the state’s most influential business groups suggest one line. Citing a 1930 state Supreme Court decision, Hilt v. Weber, they’ve asked the justices to both affirm and clarify the Appellate Court ruling — which also is similar to a 1978 opinion by former Attorney General Frank J.Kelley —  and grant property owners the explicit legal authority to completely control the beach all the way to the water’s edge.

James Barrett, the president of the Michigan Chamber of Commerce, said such clarification is a matter of urgency to his members. “Stable and predictable property ownership laws are imperative to business,” he said in a statement.

But two more thoughts, both a product of an ever more crowded and coarser culture, really lie at the core of the argument. The first is a legitimate distaste that private lakeshore owners have for the bad behavior of a few who leave their 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 exert their political influence and use the levers of the law and government 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 16-member Michigan Senate Democratic Caucus have proposed a second line. They told the court that long-standing state law, particularly the 1955 Great Lakes Submerged Lands Act, as well as court decisions in prior public trust cases, had established the “ordinary high water mark” as the line of demarcation for deciding public and private control of the shoreline. Beach above the high water mark, which is 579.8 feet above sea level on Lake Huron, is reserved for private landowners to enjoy exclusive property rights. Beach and wet sand below the high water mark is expressly owned and overseen by the state, and open to the public. The two conservation groups said they were “committed to maintaining full public access to the Great Lakes and their shorelines.”

Between the water’s edge and the ordinary high water mark lies a third line suggested by the State of Michigan, the Michigan Land Use Institute, and to some extent by the Tip of the Mitt Watershed Council. In separate briefs filed with the court, the state and the two citizen organizations found similar legal justifications for drawing a new line along the Great Lakes shoreline that preserves the public’s right to walk along the water’s edge, and also protects the privacy and rights of shoreline home owners. That line, which is based on state law and prior public trust doctrine and court decisions, would define a band of wet sand as a permanent public path along the edge of the Great Lakes.

The Institute’s brief, which is strongly based in 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 based on daily and seasonal changes in water is not "dry" land, and is subject to public access by citizens. This does not give people the right to travel on dry sand areas or to sit and take over private property. But it does give people the right to traverse along the water's edge. The Institute also argued that this has been the custom for  more than a 100 years 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 argument in the case. “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
None of the lawyers involved in the case and interviewed for this article had a clear notion where the high court might come down. The law, according to the court filings, could be used to justify any of the three lines. Clearly, there are political considerations as well, 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 of the 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 the state and two citizen groups have suggested a legally sound middle ground 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 Tip of the Mitt Watershed Council, which is based in Petoskey.

Either way the court rules, the effect will be profound. Should the Supreme Court uphold the Appellate ruling and ban beach walking, it would effectively limit public access just to shoreline within the boundaries of parks and other public lands.

Another effect of upholding the Appellate ruling, one that is already being felt, is a proliferation of new fences, “keep out” signs, and other barriers specifically intended to discourage citizens from strolling on the beach. The irony of this result is unmistakable. Some of the very same shoreline owners who are nervous about strangers walking on the beach are now contending with their neighbors, who have erected new fences to the water’s edge. Confrontations have occurred 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 are a signal that it’s not just the ready access to the beauty of the Great Lakes shoreline that’s at stake for Michigan’s citizens, whether they own land along the Great Lakes or are just visiting. It’s also something more precious in a busy, raucous world: The quiet, the safety, the sense of belonging. If the state Supreme Court reverses the Appellate decision and specifically grants citizens the right to walk along the water’s edge, it would guarantee a privilege that most residents regard as a Michigan birthright. Such a decision also will resolve a land use conflict that has the potential to turn the Great Lakes coast into something it never was before — 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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