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Public has right to walk along beaches

5/31/2006

TRAVERSE CITY, Mich. — People can stroll along Michigan's 3,200 miles of Great Lakes beaches whether owners of adjacent private property like it or not, the state Supreme Court ruled recently.

In a case that put the legality of a cherished tradition to the test, the court unanimously sided with Joan M. Glass, an Alcona County woman who sued a neighbor over access to the Lake Huron waterfront.

But the justices sharply disagreed over the boundary of the area open for public walking and the legal principles under which that access is granted.

A five-member majority held that the public can wander anywhere between the water's edge and the ordinary high water mark -- the spot on the shore where continuous water action leaves a distinctive mark.

Two other justices argued that walkers have a right only to the water and wet sand immediately beside it.

The Supreme Court overturned a ruling by the Michigan Court of Appeals, which said the state owns land below the high water mark but owners of adjacent riparian property have exclusive use of it and can kick others out.

"It's a tremendous victory for the public interest and for Michigan's economy, much of which is based on tourism and access to Great Lakes beaches," said Keith Schneider, deputy director of the Michigan Land Use Institute.

The case drew attention from groups representing property owners, businesses, environmentalists and outdoor enthusiasts, who filed briefs. It doesn't affect public beaches, but 70 percent of shoreline in the state is privately owned, according to the Surfrider Foundation, a nonprofit environmental group.

The debate was triggered in part by a sharp decline in Great Lakes water levels in the late 1990s. The dropoff exposed sometimes wide areas of previously submerged bottomlands, raising the question of who owned them.

"The bottom line is there's this stretch the public has the right to use," said Pamela Burt, attorney for Glass.

Ernie Krygier, president of Save Our Shoreline, a lakefront property rights group, said he hadn't seen the ruling but voiced disappointment.

"I'm surprised, I truly am," said Krygier, of Bay City. He said the group's board would convene shortly to consider its options.

Glass sued neighbors Richard and Kathleen Goeckel in 2001, accusing them of preventing her from reaching the beach adjacent to their Lake Huron house in the northeastern Lower Peninsula. The Goeckels contended Glass was trespassing.

In an opinion written by Justice Maura Corrigan, the Supreme Court majority said land below the high water mark was historically state property and a public-trust interest remained under common law even after the property was sold to a private owner.

Walking along the lakeshore "is inherent in the exercise of traditionally protected public rights of fishing, hunting, and navigation," Corrigan wrote.

Property rights advocates have argued that proclaiming a right to beach walking would leave landowners powerless to stop intruders from building campfires or throwing a party in front of their houses.

But Corrigan wrote that the public trust doctrine doesn't mean people can do anything they like on the beaches. The Legislature is free to regulate such activities, she said in her opinion, supported by Chief Justice Clifford Taylor and Justices Michael Cavanagh, Elizabeth Weaver and Marilyn Kelly.

In a separate opinion, Justice Stephen Markman said the high water mark standard was confusing and would generate more lawsuits instead of the "reasonable harmony" that has long existed between landowners and the public.

Setting the boundary for walkers at "the water's edge -- that point at which wet sands give way to dry sands" -- would be clearer and more consistent with legal precedent, he said. Justice Robert Young Jr. made a similar argument in another opinion.

"In the place of open beaches, there almost certainly will be a proliferation of fences erected by property owners determined to protect their now uncertain rights," Markman wrote.