Michigan Supreme Court Protects Public’s Right to Walk on Beach

Glass v. Goeckel, 703 N.W.2d 1 (Mich. 2005).

Priscilla Adams, J.D.

In Glass v. Goeckel, the Supreme Court of Michigan was faced with this question: where, if anywhere, can a member of the public walk on the private beach of one of the Great Lakes without trespassing on a lakefront (littoral) owner’s property? On July 29, 2005, the court ruled that the general public has the right to walk along the shore of Lake Huron on land below the ordinary high water mark. The court based its decision on the language of the public trust doctrine and found that walking along the lakeshore is a traditionally protected public right.

Background
Richard and Kathleen Goeckel own property on the shore of Lake Huron. The deed to their property specifies one of the boundaries as the “meander line of Lake Huron.” Plaintiff Joan Glass owns property across the highway from the Goeckels. Glass brought suit to enjoin the Goeckels from interfering with her walking along the shoreline. The trial court held that Glass had a right to walk below the natural ordinary high water mark as defined by the Great Lakes Submerged Land Act (GLSLA).

The Goeckels appealed the trial court’s decision and the Court of Appeals reversed the trial court’s order.1 The Court of Appeals stated that although the State of Michigan holds title to previously submerged land, it does so subject to the riparian owner’s exclusive use up to the water’s edge. Therefore, according to the court, lakefront property owners have the exclusive right to use the land up to the water’s edge. Glass appealed to the Michigan Supreme Court.

The Supreme Court of Michigan heard the appeal in March of 2005 in order to decide whether the public has a right to walk along the shores of the Great Lakes, “where a private landowner ostensibly holds title to the water’s edge.” In reaching its decision that Glass has the right to walk along the shore in front of the Goeckels’ property, the court focused on the public trust doctrine. More specifically, it looked at how the doctrine affects a property owner’s private title, and whether walking is an activity protected by the doctrine.

History of the Public Trust Doctrine
American law has long recognized that the sovereign must preserve and protect the public’s interest in the seas for navigation and fishing. Michigan’s courts have held that the common law of the sea applies to the Great Lakes; therefore, the public trust doctrine inherent in the common law of the sea applies to the Great Lakes.

The Supreme Court relied heavily on the public trust doctrine to reach its decision that Glass does not interfere with the Goeckels’ property rights when she walks along the shore of Lake Huron. According to common law, the state has an obligation to preserve and protect the waters of the Great Lakes, as well as the lands beneath them. The state, in effect, acts as the trustee.

Scope of the Public Trust Doctrine
The Michigan Supreme Court considered whether the public trust doctrine applies only to land that is below the waters of the Great Lakes, as the Goeckels argued, or if it encompasses land up to the ordinary high water mark. Glass relied on the GLSLA arguing that it defines the scope of the public trust doctrine as extending to all lands below the ordinary high water mark. The court disagreed, stating that the GLSLA establishes the scope of the Legislature’s regulatory authority pursuant to the public trust doctrine, but it does not purport to establish the boundaries to which the public trust doctrine applies. The court looked to common law to determine the scope of the public trust doctrine in Michigan.

As applied to oceans, the public trust doctrine encompasses an area from the water and the land beneath them to that point on the shore known as the “ordinary high water mark.”2 The court noted that the term “ordinary high water mark” has a more concrete meaning as applied to tidal waters that have predictable high and low tides based on lunar cycles. Nevertheless, the term “ordinary high water mark” is applicable to the Great Lakes because water levels change because of precipitation and other factors. The court recognized that the fluctuation of the water level of the Great Lakes results in the exposure of land where water once was and that rain or other factors could easily render this land submerged once again. The Court defined the “ordinary high water mark” as follows:

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 recognized characteristic. And where the bank or shore at any particular place is of such a character that [it] is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark.

Walking and the Public Trust Doctrine
Having established that the public trust doctrine applies to land below the ordinary high water mark, the court next had to decide if walking is a protected activity under this doctrine. Fishing, hunting, and navigation for commerce and pleasure have traditionally been protected by the public trust doctrine. It follows that in order to engage in these activities, the public must have a right of passage over the ordinary high water mark. The Supreme Court of Michigan held that walking along the lakeshore below the ordinary high water mark is an activity that must be safeguarded in order to protect these traditional public rights.

Related Points of Interest
While the court unanimously agreed that the Goeckels could not prevent Glass from walking along the shore of Lake Huron, the dissent raised some interesting points. Justice Markman, citing Hilt v. Weber,3 stated that the public trust doctrine should only apply to lands which are submerged under the Great Lakes and the wet sands. Applying the majority’s vague definition of the “ordinary high water mark” could lead to an increase in litigation between the public and lakefront property owners to determine the exact location of this mark. The open beaches of the Great Lakes could become dotted with fences erected by property owners - a viable option according to the dissent.

Furthermore, while the Supreme Court ruled that the public could walk along the shore, it did not address what other activities are permissible in the area below the ordinary high water mark. Litigation may be needed to discern whether various activities such as sunbathing, riding ATVs, building bonfires, etc. are permissible.

Conclusion
The Michigan Supreme Court held that the public trust doctrine protects the public’s right to walk along the beach. Not surprisingly, private property groups are unhappy with the decision, although the opinion is consistent with most courts’ interpretations of the public trust doctrine.

On December 13, 2005, the Goeckels and Save Our Shoreline filed a petition for a Writ of Certiorari with the U.S. Supreme Court arguing the Michigan Supreme Court’s decision effected an unconstitutional taking of private property.4 A decision on whether to hear the Goeckels’ appeal is not expected from the Supreme Court for several months. The Law Center is closely monitoring this case and will issue announcements as it moves forward.

Endnotes
1. 683 N.W.2d 719 (Mich. 2004). For a detailed analysis of the Court of Appeals’ decision, see Stephanie Showalter, No Right to Walk Between High Water Mark and Water’s Edge, The SandBar 3:2, 1 (July 2004).
2. Shivley v. Bowlby, 152 U.S. 1, 13 (1894).
3. 233 N.W. 159 (Mich. 1930).
4. See Traci Anderson-Weisenbach, SOS Asking Supreme Court for Review of Michigan’s Decision on Glass v. Geockel, The Huron Daily Tribune, Dec. 19, 2005.