Supreme Court Protects Publics Right to Walk on Beach
v. Goeckel, 703 N.W.2d 1 (Mich. 2005).
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) owners
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.
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 courts decision and the Court
of Appeals reversed the trial courts 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
owners exclusive use up to the waters edge. Therefore, according
to the court, lakefront property owners have the exclusive right to
use the land up to the waters edge. Glass appealed to the Michigan
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 waters 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 owners private
title, and whether walking is an activity protected by the doctrine.
of the Public Trust Doctrine
American law has long recognized that the sovereign must preserve and
protect the publics interest in the seas for navigation and fishing.
Michigans 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
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 Legislatures 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
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.
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.
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
majoritys 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.
The Michigan Supreme Court held that the public trust doctrine protects
the publics 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
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 Courts 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.
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 Waters Edge, The SandBar
3:2, 1 (July 2004).
2. Shivley v. Bowlby, 152 U.S. 1, 13 (1894).
233 N.W. 159 (Mich. 1930).
4. See Traci Anderson-Weisenbach, SOS Asking Supreme
Court for Review of Michigans Decision on Glass v. Geockel,
The Huron Daily Tribune, Dec. 19, 2005.