DNR Liable for Beach Erosion on Grand Traverse Bay

This case established that the DNR must compensate riparian landowners for the destruction of beach property above and below the ordinary high-water mark due to the construction of a boat launch and jetties on the adjacent property. The Court found that though the DNR may make navigational improvements without compensation for the loss of land below the ordinary high-water mark, in this case the DNR had to compensate for its loss because it could have constructed the jetties in a way that did not interrupt the natural flow of water. Justice Griffin would have allowed compensation only for land above the ordinary high-water mark.

The Michigan Department of Natural Resources (DNR) constructed a boat launch ramp next to the Petermans’ beachfront property. The new ramp’s protective jetties altered the current, causing the beach to wash away, and the erosion of some of the Petermans’ property above the high-water mark. The Petermans sued, claiming that the DNR had in effect “taken” their property without just compensation, in violation of the constitution, and had essentially trespassed on their land. The majority of the justices agreed that the Petermans should be compensated by the DNR for the loss of their land, but that there had not been a trespass.

The Michigan DNR built a boat launch ramp on Grand Traverse Bay thirty feet north of Robert and Gail Peterman’s beachfront property. In order to protect the ramp, the DNR constructed two jetties around it. The jetties trapped the sand that would normally have drifted onto the Petermans’ beach and compensated for the effects of natural erosion. Within a year, the Petermans’ had lost their beach, as well as some land above the high water mark that eroded away.

The Petermans sued, and the trial court awarded them money for the loss of their land. The Court of Appeals reversed this decision because the jetties only diverted sand from the beach and the DNR did not actually trespass on the Petermans’ land. The Court of Appeals did not rule on whether there was an unconstitutional “taking” by the government because that issue had not been decided by the trial court.

Did the loss of beach and land constitute a taking? Was there a trespass onto the plaintiff’s property?

The majority held that the loss of land was a “taking,” and therefore that the DNR had to compensate the Petermans. Under the United States and Michigan constitutions, the government must compensate property owners for any government action that deprives them of the full use and enjoyment of their property. No physical intrusion on the property is required, as long as the deprivation is a consequence of the government’s actions.

The majority recognized that waterfront property owners’ rights to their land below the high water mark is subject to the state’s authority to improve navigation. In other words, the state can usually take actions to improve navigation without having to compensate people for the effects of erosion on land below the high water mark. But the majority justices also stated that any state action must be necessary to improving navigation to not constitute a taking. Because the ramp could have been built in a way that did not destroy the Petermans’ beach, the destruction did not serve a public interest, and the DNR had to compensate the Petermans. The DNR also had to compensate the Petermans for the loss of their “fast lands” – the portion of their property above the high water mark that eroded away.

However, the majority also held that there was no trespass. There was no physical intrusion onto the Petermans’ land by the government, and the jetties diverted sand away from the property. Therefore, the Petermans were not entitled to additional compensation.

The concurrence in part, written by Justice Boyle and joined by Justice Cavanagh, agreed with the majority opinion except for one part about the proper method for determining the meaning of constitutional provisions.

Justice Griffin, dissenting, agreed that the plaintiffs should be compensated for losing their land above the high water mark, but disagreed that they should receive compensation for the beach. He argued that that the State of Michigan has a right to take actions that will improve recreation and commerce on the public waters, and that the jetties were necessary to this purpose.