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Tear Down Those Fences

Supreme Court unanimously supports public’s right to walk Great Lakes beaches

August 2, 2005 | By Keith Schneider
and John Latella
Great Lakes Bulletin News Service


The Michigan Supreme Court's decision confirmed the legality of an age-old pastime: Beach walking.

ELBERTA, Mich. — Late Sunday afternoon, two days after the seven justices of the state Supreme Court surprised everyone and emphatically supported the public’s right to walk along every single one of Michigan’s 3,200 miles of Great Lakes shoreline, I exercised that privilege right here in Benzie County.

For those who’ve never been to Benzie’s Lake Michigan coast, let’s just say that the wide path of unbroken sand bordered on one side by towering dunes and emerald green forests, and on the other by topaz blue waters, is one of the truly compelling maritime landscapes on earth. My wife and our two teenage daughters played in frothy white waves stirred up by a strong eastward wind, the four of us the sole visitors on the beach. Afterwards we strolled along the water’s edge, the slowly setting sun warm on our shoulders, the sound of hungry gulls, crashing waves, and unyielding wind in our ears.

But until Friday night, July 29, 2005 — when the high court issued its crystal clear ruling — my family’s right to stroll the magnificent Lake Michigan beach, midway between Arcadia and Elberta, had been very much in doubt.

The Law vs. The Trends
A year ago, for reasons that appeared to have less to do with the law and much more to do with political and ideological trends, a conservative three-judge panel of the state Appellate Court summarily ended the right of Michigan citizens to walk on the Great Lakes shoreline in front of private homes. The Appeals Court, in a ruling that reversed more than a century of common law and practice, said private homeowners controlled the beach to the water’s edge. If citizens wanted to be there, they had to have their feet wet.

The court, in effect, replaced strolling with wading. It also conferred to private shoreline owners certain rights and privileges to control the beach they had never before earned.

The significance of the Appellate Court decision was immediately recognized by the dozens of people who called me and my colleagues at the Michigan Land Use Institute in the days after we published our first article on the issue. Their frustration with the court’s decision, regardless of political affiliations, was typically expressed in very few words that went like this: “How can they do that?”

The answer, of course, lies in the swiftly moving currents of public opinion, political ideology, and legal interpretation in a conservative era that is redefining how Michigan and America address issues that affect public resources and the public interest. In case after case, Michigan’s high courts are generally seeking to limit government’s ability to manage natural resources, trimming regulatory authority and citizen oversight where they can.

In the beach walking case, though, the state Supreme Court appeared to toss out its ideological preferences and rule on the merits of the law. The result, for this era of the court, is an all too rare affirmation of the public interest.

Ideology vs. Practicality
Among the most intriguing facets of the beach walking case, unlike others involving decisions about the uses of land, is that aside from the elderly plaintiff, Joan P. Glass, and the middle-aged defendants, Richard and Kathleen Goeckel, the lines separating warring opponents were often blurry. Clearly that affected the legal vision of the Appeals Court last year.

Take shoreline business owners, for instance. Great Lakes beaches are a mainstay of a multi-billion dollar economy for recreation, home building, and tourism. Yet the state Chamber of Commerce staked a position that aggressively supported blocking citizens from strolling the beaches in front of private homes. The chamber’s allegiance to its conservative core values — in this case the principle of “property rights” — put the organization in the position of impeding the development of income and jobs associated with shoreline businesses, which ardently supported allowing citizens to stroll the beach.

Similarly, private shoreline homeowners were divided. Save Our Shoreline, a beach homeowners association based in Bay City, and which has become a new wing of the radical right in Michigan, opposed beach walking. The group argued that “private property rights” allowed their members to kick citizens off Great Lakes beaches.

But many more beachfront owners who aren’t members of SOS supported the public’s right to stroll in front of their homes. Why? After the Appeals Court decision in May 2004, their neighbors began erecting fences and putting up “keep out” signs. The barriers marred one of the primary joys that had attracted people to build their homes on the Great Lakes shoreline in the first place.

Triple Bottom Line
The Michigan Supreme Court, in a powerful opinion late last week, sorted through the conflicting views and reached a decision in three parts that finally brought some reason to an age-old pastime.

First, the court ruled that large bodies of navigable water, including the shoreline, are valuable resources owned by the public that the state is obligated to manage as a public trust.

Second, the court said that when the state granted the authority to private landowners to build along the shoreline, it was done so with the express provision that the state would continue to allow the public to use that resource.

And third, the court ruled that citizens had the right to stroll on Great Lakes beaches in the area between the water’s edge and the “ordinary high water mark.” The court built its decision around Wisconsin law, which defines the ordinary high water mark as the place where “the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.”

Justice Maura Corrigan, who wrote the majority’s opinion, said, “Wisconsin’s definition of ordinary high water mark is not far removed from meanings previously recognized in Michigan.” She added, “This definition also parallels that employed by the federal government.”

A High Water Mark
Critics of the majority’s decision pointed out that in most places along the Great Lakes, the ordinary high water mark is no mark at all. In fact, most people would be hard pressed to pick it out from everything else on a Great Lakes beach. Two Supreme Court justices, Robert P. Young, Jr. and Stephen Markman, made that same point in their dissenting opinion, suggesting that the area of wet sand next to the water’s edge was a better alternative for delineating where people should walk because it offered the only clearly visible path.

But supporters of the majority’s decision countered that because of the difficulty of walking along soft sand on Lake Michigan, or unstable rocks on Lake Superior and Lake Huron, in most cases people walk along the water’s edge anyway.

For Mrs. Glass and the Goeckels, the decision ends a four-year-old struggle between neighbors who just never got along. Pamela Burt, Mrs. Glass’ attorney, said she was delighted with the ruling. “In the three days since the opinion was released,” she said, “phone calls and emails have poured in from citizens all across our two peninsulas, expressing heartfelt gratitude for the court’s protection of our cherished right to walk the Great Lakes shores.”

But leaders of Save Our Shoreline, which invested its credibility and tens of thousands of dollars in legal fees in the case, were still trying to figure out why their arguments about private land and property rights were so profoundly rejected by a court made up of a majority of conservative jurists. “Property rights have been pretty well squelched,” conceded Ernie Krygier, the group’s president.

For the rest of us, the Supreme Court’s ruling is a welcome jolt of legal reason, a moment to celebrate Michigan’s incomparable and boundless Great Lakes shoreline, free again for all to enjoy.  

Keith Schneider, a writer and editor, is deputy director of the Michigan Land Use Institute. John Latella, a student at the University of Chicago, is a Jeff Metcalf Fellow on the Institute’s news desk. Reach them at keith@mlui.org, and john@mlui.org.

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