Exclusive 'public' beaches rile some
Michigan court case renews Wisconsin's debate over public access
By DAN EGAN
degan@journalsentinel.com
Posted: April 16, 2006
You can go for a walk on the beach at Whitefish Bay's Klode Park, but you can't stroll too far.
The beach along Lake Michigan in front of private property can be blocked off to public access, according to court rulings. This aerial photo shows the North Shore in March.
This sign on the beach at Klode Park in Whitefish Bay warns people not to venture too far along the beach. The view looks north toward private property frontage.
"Private Keep Out" is spray painted on the far left of this concrete barrier, north of a nature preserve hiking trail in Shorewood.
Would-be beachcombers are stopped by twin signs at each end of this public slice of Lake Michigan shoreline sandwiched between some of the priciest real estate in Milwaukee County: Private Property Beyond This Point-No Trespassing.
Those signs, and similar ones dotting Wisconsin's hundreds of miles of Great Lakes shoreline, are only half true.
The swath of sand along the water beyond the public park is not private property. Lakefront land between the waterline and the area known as the "ordinary high water mark" - often defined as the place where the sand stops and the vegetation starts - is, according to the Wisconsin Department of Natural Resources, held in public trust by the state of Wisconsin.
But just because we own it doesn't mean we can enjoy it; a 1923 Wisconsin Supreme Court ruling gives waterfront property owners on natural lakes "exclusive privileges" to the land between their property boundary and the waterline. That means, in low water years such as this one, that if you venture beyond the park boundary at Klode or any other lakefront park in Wisconsin, you are free to splash in the surf. But the moment you step on dry land, you are a trespasser - on your own land.
So that sign at Klode Park should actually read: Public Property Beyond This Point- No Trespassing.
And if that doesn't make any sense to you, you are not alone. It didn't make any sense to the Michigan Supreme Court, either.
Michigan's top court ruled late last summer that Michigan Great Lakes shorelines, from the ordinary high water mark to the waterline, are open to the public for beachcombing. It carries huge ramifications for a state with 3,200 miles of Great Lakes shoreline. Given that the ordinary high water mark and the water line can be more than 50 sandy feet apart, it effectively certified as public untold thousands of acres of some of the most cherished property in the Midwest.
It all started in 2000 with a spat between a Lake Huron beachfront property owner and a neighbor across the street who became upset by the beachfront owner's efforts to stop her from walking along the shore in front of his house, something she had been doing since the 1960s.
The beach walker won her initial case, but that was overturned by the Michigan Court of Appeals, which ruled that Great Lakes beach walkers are trespassing unless, like in Wisconsin, they slosh along in the sand or rocks below the water line.
Then last summer the state Supreme Court stepped in and sided with the beach walker, ruling that everyone had access to beach property up to the ordinary high water mark. The beachfront owner, backed by a property rights group called Save Our Shoreline, appealed to the U.S. Supreme Court, which in February opted not to hear the case.
The result is this summer there is an "open" sign on enough Michigan shoreline to stretch from San Francisco to New York City.
Public access advocates are as ecstatic as private property rights groups are distraught.
"There is a strong private property rights mood out there, and it was very important to get this set straight, before it went too far," says Pamela Burt, attorney for the beach walker.
Counters Dave Powers, a member of Save Our Shoreline, which fought against the increased access:
"I certainly understand the other side's position, but the one thing I just can't agree with is these properties were sold with government's promise that we own and control to the water's edge," says Powers, an attorney. "They broke that promise, and I can't swallow that."
The Michigan court case has no direct bearing on Wisconsin because rules governing Great Lakes beach access vary from state to state. Illinois, like Wisconsin, has a similar "keep-your-feet-wet" rule, though Indiana allows public access up to the ordinary high water mark. The state of Ohio claims anything below the ordinary high water mark as open for public beach walking, though a citizens group is in court trying to overturn that rule.
Burt, the beach walker's attorney, predicts that the Michigan ruling could have a domino effect throughout the Great Lakes.
"We're kind of the granddaddy of the Great Lakes states, (and) it will probably creep over to the other states . . . the groundwork is there for it," she says. "What state supreme court would ever want to say no to the masses who so greatly outnumber the property owners?"
Powers agrees that a wave of support for increased public access to beachfronts could sweep through the region, and says that is not necessarily a good thing.
"It's almost a green light for any state Supreme Court that wants to ignore the . . . federal constitutional protection of private property," he says. "I think the public trust crowd got a big victory under their belt in Michigan, and now they're going to be targeting other states, and they're going to use the Michigan decision in order to convince other states to go the other way."
Watching Michigan law
Wisconsin leaders already have an eye on what's unfolding in Michigan.
Sheboygan County Supervisor and former state legislator Jim Baumgart thinks Wisconsin residents have been getting a raw deal as Lake Michigan levels have dropped in recent years to near-record lows.
"When Lake Michigan goes down a foot, a landowner gets another acre or two of the public's land. Does that make sense?" he asks. "We're giving away free land, public land. . . . That's not logical."
Baumgart found a sympathetic ear in Wisconsin Attorney General Peg Lautenschlager last year when he wrote to ask her if the Michigan ruling could open up more beaches in Wisconsin.
"Unfortunately, the answer currently is no," Lautenschlager replied in an Aug. 16 letter.
Lautenschlager went on to explain that a 1923 Wisconsin Supreme Court ruling, the basis for our state's beach walking rules today, is premised on the idea that the public's right to lakes is restricted to uses associated with navigation on the water, and not for walking.
"The Attorney General then, as I do now, believed the Wisconsin Supreme Court was wrong for a host of reasons," Lautenschlager wrote in the letter now posted on the DNR Web site, "not the least of which is that the state, even as the (Supreme) court recognized, holds title to the beds of our lakes to the ordinary high water mark for the benefit of the public, and that the public enjoys the public rights of fishing, which is commonly done from shore."
But Lautenschlager said she doesn't expect the law to change anytime soon.
"Until the Legislature or the Wisconsin Supreme Court overrule (the 1923 case), . . . Wisconsin citizens will not lawfully enjoy the public right of walking on certain areas of the shoreline that Michigan citizens now enjoy."
The Michigan ruling came in so late last summer that many believe its real impact won't be felt until beach season rolls around in the next several weeks.
Powers, who owns a beachfront home on Lake Huron, says he has no problem with all the people who have for more than a decade strolled along his backyard shoreline.
"Walking has never been our issue. It's not my issue. I love people walking on my beach," he says. "But if I saw a kid driving at a high rate of speed on a four-wheeler, and my kids were trying to play on the beach, I'd want the ability to tell them he's not able to drive on my beach anymore. I don't think today I'd have that right. That doesn't mean I wouldn't try, but I won't have the right."
Nonsense, says Chris Bzdok, an adjunct law professor at Michigan State University and a strong supporter of the court ruling.
"They're just trying to scare people," he says.
The Michigan Supreme Court justices were indeed careful not to give the impression that it's suddenly open season for bonfires, beer bashes, volleyball games and ATV rallies in heretofore private backyards. The ruling grants access for only traditional activities enjoyed under the public trust doctrine, which includes navigation, hunting and fishing, as well as walking.
"It does not create an unlimited public right to access private land below the ordinary high water mark," the justices wrote.
But that high water mark itself can be a fuzzy concept. The Michigan Supreme Court relied in its ruling on Wisconsin's own definition, which is: "the point on the bank or shore up to which 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 recognizable characteristic."
Powers and others point out that that definition might work for a piece of oceanfront property, but it is too wishy-washy for lakes where water levels don't fluctuate on regular cycles based on the tide. Great Lakes levels can swing wildly, but it can take years or even decades for them to do so.
"I don't think there is any such thing as an ordinary high water mark. On oceans, it happens every 12 hours. On the Great Lakes, that ordinary high water mark may happen only once every 30 years," Powers says.
The Michigan ruling was not unanimous.
One Michigan Supreme Court justice who dissented on a portion of it warned that his fellow justices weren't so much opening a door as they were a can of worms, that the state was about to enter an era where unwritten codes of behavior guided by common sense and courtesy would be replaced by lines drawn in the sand by lawyers.
"Just as some members of the public are likely to become more assertive in their claim of a 'right' to use the property of another, so too will some property owners become more assertive in purporting to 'defend' their properties from the encroachments of such persons," wrote Justice Stephen J. Markman. "At least some of these owners can be expected to assert their property rights in circumstances where today this has been thought unnecessary. It may well be that a legacy of the majority opinion is the proliferation of fences along the beaches of the Great Lakes.
"Fences and more fences."
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