Coastal Services Center

What began as a dispute between neighbors ended up with Michigan's Supreme Court ruling that the public has the right to walk Michigan's 3,288 miles of shoreline. In February, the U.S. Supreme Court denied the defendants' request to review that decision.

In its Glass vs. Goeckel opinion, the Michigan Supreme Court unanimously ruled that the Public Trust Doctrine applies to the shores of the Great Lakes, just as it governs the nation's ocean coastal waters and shores. This includes the right to walk the lakes' shorelines as part of the public's rights of fishing, hunting, and navigation. Five of the seven justices held that the right extends up to the ordinary high water mark.

"The Public Trust Doctrine underlies all our environmental regulations," says Catherine Ballard, chief of the Michigan Coastal Management Program, which is part of the Environmental Science and Services Division of the state's Department of Environmental Quality. "Not only are we acting as a trustee to protect our environment's natural functions for the public now, but we're also protecting the public's future long-term interests."

The state court's decision "took people's rights away," argues David Powers, the defendants' attorney and vice president of Save Our Shoreline (SOS), a group of lakeside property owners that supported the defendants' appeals. "The position of SOS, and the reason we got involved, is that we did not want the public trust to be established to the high water mark."

The ruling in the case could influence legal decisions in other Great Lakes states that are struggling to judicially define public and private rights along the nation's inland seashores.

Neighbor vs. Neighbor

The Glass vs. Goeckel case began as a clash between across-the-street neighbors, Joan Glass and Richard and Kathleen Goeckel.

Since 1967, Glass has used a 15-foot deeded easement across the highway from her home to reach Lake Huron. When Richard and Kathleen Goeckel purchased the property with the easement in 1998, they objected to Glass's use of the trail.

"Things started to go downhill fairly soon" between the neighbors, notes Pam Burt, Glass's attorney.

Glass filed suit in 2001 in Alcona 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.

In 2002, the neighbors reached a settlement that allowed Glass to use the trail. The circuit court judge also issued a separate ruling that said Glass had the right to walk on the beach as long as she stayed below the high water mark.

The Goeckels appealed the second half of the judge's ruling to the Michigan Court of Appeals, arguing that they owned the land all the way to the water's edge and the public could not walk there.

On Appeal

SOS filed a late amicus brief supporting the Goeckels in the appeal, citing Hilt vs. Weber, a 1930 Michigan Supreme Court ruling that said "shore land down to the water's edge was private land," Powers says.

The Michigan Court of Appeals ruled that citizens have the right to walk along the beach as long as they remain in the water. Property owners, the court said, have exclusive rights down to where dry land begins and may bar access to the beach.

"I felt pretty responsible," recalls Burt. "On my watch, millions of people were denied the right to walk the beaches."

While it appears that the decision of the court of appeals relied heavily on SOS's amicus brief, Powers says the group wasn't happy. "The ruling said the state owned the property but the owner had exclusive use. We didn't agree that the state owned the property."

While SOS was debating appealing the case to the Michigan Supreme Court, Burt appealed on behalf of Glass.

Getting Attention

It wasn't until the appeals court ruling that state coastal managers keyed in on the case.

"There has always been some confusion on the part of the public on the interpretation of our regulations as they relate to beach walking, because Great Lakes water levels fluctuate year to year," says Ballard.

The issue of property owner vs. public rights was ripe for questioning because record low Great Lakes water levels have produced wider beaches that some shoreline property owners claim as their own.

Not Just Walking

The right to manage the beaches is another issue behind SOS's fight to limit state ownership to the water's edge. The problem is that with dropping lake levels, vegetation is growing on the newly exposed beaches.

"Basically there has been regulatory conflict for the past four years" about managing this vegetation, Ballard says.

Powers claims the plants are non-native invasive Phragmites. "These plants are not helpful for fish or wildlife, and grow 10 to 15 feet tall. It crowds out native vegetation and is just nasty." He says the state is not addressing the Phragmites issue, and property owners should be allowed to manage it themselves.

"That's the problem," Powers says. "Phragmites is growing on beaches; we go talk to DEQ [Department of Environmental Quality] about it, and it's going to take years for something to get done. Government departments are just not nimble. Shoreline owners could take care of it in a week or a day."

Phragmites are a problem, Ballard agrees, but "removing native vegetation from the beach just creates more opportunities for Phragmites to establish itself." Phragmites infestation, she explains, is more prolific in areas that have been disturbed, such as when the natural vegetation is removed.

"Our concern is that when you chop up Phragmites, everywhere a little piece lands, you have a new infestation," Ballard says. Many property owners are "not always familiar with the fluctuations in lake levels and the resulting natural process of the lakes," and as a result have mowed, plowed, and bulldozed native vegetation.

She adds, "I believe people who live on the Great Lakes should serve as stewards for the long term and try to understand the resource. You have an obligation to understand the natural processes of the lakes and how individual actions can affect those processes. We've actually done a lot of research that shows the vegetation's critical impact to fish and biodiversity, and the plant's ability to keep property from eroding."

Overturned

While SOS's position is that owners of property abutting the Great Lakes own to the water's edge at whatever stage, free of the public trust, the question before the Michigan Supreme Court was the public's right to walk along the shore.

In its July 29, 2005, ruling, the state supreme court found that although Great Lakes property owners retain their full rights of ownership, they hold these rights subject to the public trust.

"Our court unanimously agrees that plaintiff does not interfere with defendants' property rights when she walks within the area of the public trust," the justices wrote in their opinion. "We conclude that the public trust doctrine does protect her right to walk along the shores of the Great Lakes. American law has long recognized that large bodies of navigable water, such as the oceans, are natural resources and thoroughfares that belong to the public."

The opinion also held that because the Public Trust Doctrine preserves public rights separate from a landowner's property title, the boundary of the public trust does not equate with the boundary of a landowner's littoral title.

"So, even if a given lakefront owner has his boundary right at the edge of the water, the trust lands still extend up to the ordinary high water mark, and the public gets to use the entire area for walking and navigation-related activities," Burt explains.

By Definition

Because the Great Lakes, unlike the nation's oceans, are not tidally influenced and their water levels do not vary much from day to day, the Michigan Supreme Court defined "high water mark" using a Wisconsin definition.

The ruling stated that the high water mark is "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."

This definition may still be a little vague in some instances, says Ballard, because some of the state's shoreline is hard substrate or is rocky.

Land Grab?

SOS and the Goeckels filed a petition for writ of certiorari with the U.S. Supreme Court citing the Fifth Amendment, which states there cannot be a taking of private property for public use without just compensation, and the Fourteenth Amendment, which applies the U.S. Constitution to the states, so a state cannot take private property without compensation.

"What's really happening" with the Michigan Supreme Court's decision, Powers says, "is the transfer of control of that property. We're concerned about the imposition of the Public Trust Doctrine on property rights."

He adds, "This was a taking under the federal Constitution—a judicial taking of private property rights without compensation."

Five judges on the U.S. Supreme Court would have needed to agree to review the case. In February, the Court denied certiorari.

Burt responds, "The U. S. Supreme Court has already rejected SOS's arguments, inherently. . . SOS is flatly wrong as to any taking, and not a single federal takings case has ever, to my knowledge, held that a private property owner has any rights below ordinary high water mark which trump the public trust."

Business as Usual While emotions on both sides of the case ran high, Ballard says she doesn't think it's "changed how people use the beach." She also notes that it isn't changing how her agency does business, because the ruling "upheld our interpretation of our regulations."

As far as Glass is concerned, says Burt, "She's one happy lady."

Burt adds, "She's in her mid 70s, is arthritic, and her only use of the lakeshore is to walk the beach. This case preserved that right for her."

To review the Michigan Supreme Court ruling, point your browser to www.courts.michigan.gov/supremecourt/clerk/Opinions-04-05-Term/126409.pdf. For more information on the case, you may contact Pam Burt at (989) 724-7400, or pb@wabpc.com, or David Powers at (989) 892-3924, or dpowers@smpklaw.com. You may also contact Catherine Ballard at (517) 335-3456, or cunningc@michigan.gov.