Conservation Impact of the Case: positive
Michigan LCV Analysis
This important ruling confirmed that the public trust doctrine applied to the Great Lakes and that beach-walking was permitted along the shoreline, along with the traditional public trust rights of hunting, fishing, and navigation. The public trust doctrine means that the state protects the lands in trust for certain public uses, even if they’re privately owned.
The Court unanimously held that the public had a right to walk within the public trust zone, but disagreed about the extent of that zone. The majority held that it extended to the ordinary high-water mark, including areas that are uncovered when water levels are low. The dissent, on the other hand, would have limited the public’s right to walk the shoreline to submerged lands.
Water levels vary greatly along Great Lakes shorelines, and the ordinary high water mark provides a consistent line – regardless of temporary lake levels – below which public trust rights are guaranteed. The majority recognized the distinction between public trust rights and private title and that they may co-exist on the same stretch of shoreline, while the dissent relied on cases involving private title rather than public trust to reach its conclusion.
The Michigan Supreme Court determined that the public has a right to walk along the shores of the Great Lakes, even on privately-owned land. Lakefront property owners may own the land down to the water’s edge, but the public trust doctrine nevertheless allows the public to walk on the land between the water’s edge and the “ordinary high water mark,” the place on the shore up to which the presence and action of the water is so continuous as to leave a distinct mark.
Richard and Kathleen Goeckel owned lakefront property on Lake Huron. Joan Glass owned property behind the Goeckels and across a highway. Joan Glass brought suit claiming that she had a right to walk along the Great Lakes shoreline as a member of the public, and seeking to prevent the Goeckels from stopping her. The Goeckels argued that she was trespassing on their land – the deed specified that their property ended at the “meander line of Lake Huron.” The Court of Appeals ruled for the Goeckels, determining that a lakefront property owner has exclusive use of the land down to the water’s edge, and that no member of the public has a right to walk the shoreline above this line.
Do members of the public have a right to walk along the shores of the Great Lakes? If so, where do members of the public have a right to walk when they are walking along lakefront private property?
The Court (Justice Corrigan, joined by Chief Justice Taylor, and Justices Cavanagh, Kelly, and Weaver) held that members of the public have a right to walk along the Great Lakes shoreline. Joan Glass had argued that this right existed because of the public trust doctrine and the Great Lakes Submerged Lands Act (GLSLA). The Court determined that the issue was not addressed by the GLSLA, but that a right to walk the shores is grounded in the centuries-old public trust doctrine. The public trust doctrine holds that the state keeps certain important public resources in trust and must ensure that these resources will always be available for public use. The Court explained that the public trust doctrine applies to the Great Lakes and that Michigan acts as a trustee of the public’s right to fish, hunt, and boat on the lakes. According to “longstanding principles of Michigan’s common law, the state…has an obligation to protect and preserve the waters of the Great Lakes…for the public.” Thus, a lakefront owner’s property rights may be subject to the public’s right to use the Great Lakes. But where do property owner’s rights to exclusive possession end and the rights of the public begin?
Adopting a principle from the Wisconsin Supreme Court, the Court held that the public trust covers the Great Lakes up to the “ordinary high water mark” (OHWM), the place on the shoreline where “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.” The public trust doctrine “permits pedestrian use of our Great Lakes, up to and including the land below the ordinary high water mark” because walking along the lakeshore is “inherent in the exercise of traditionally protected public rights,” like fishing and boating. The Court noted, however, that private property rights and public trust rights may exist simultaneously on a strip of land between the OHWM and the water’s edge. A private property owner may own the land down to the water’s edge, but they must accommodate public trust rights below the OHWM. And the public’s right to walk is not absolute. The exercise of public trust rights is subject to criminal and civil regulation by the Legislature. The Court remanded the case to the Court of Appeals for it to determine how the Goeckels must accommodate the public’s right to walk along the Lake Huron shoreline.
Justice Young concurred in part and dissented in part. He agreed with the majority that the public trust doctrine applies to the Great Lakes, but he did not agree with the majority’s application of the doctrine to lakefront property. First, Justice Young did not think that the public trust doctrine encompasses a right to “walk” the shoreline, as opposed to the traditionally-recognized right to fish or boat in Great Lakes waters. Second, even if there is a right to “walk” the shoreline, Justice Young thought it inappropriate to “gran[t] public access to private shore land up to an ill-defined” boundary, the “ordinary high water mark.” According to Justice Young, the boundary set by the Court was inappropriate for non-tidal waters, such as the Great Lakes, where it may be extremely difficult to determine the ordinary high water mark. He argued that the only clear line of demarcation on the Great Lakes shoreline is the water’s edge, or “the wet portion of the shore over which the lake is presently ebbing and flowing.” The public has a right to walk in the wet sand, and private property owners cannot restrict access to this area. The public has no right, however, to walk on private property above the wet sand line.
Justice Markman also concurred in part and dissented in part. He argued that Michigan case law clearly established that the public trust doctrine is limited to submerged lands, including wet sands. For this reason, a lakefront owner’s property rights, including the right of exclusive possession, “follo[w] the movement of the water.” Like Justice Young, Justice Markman would hold that Great Lakes public trust rights, including any right to walk along the shoreline, only extend up to the water’s edge, the “point at which wet sands give way to dry sands.” By turning to the Wisconsin public trust doctrine for the OHWM, the Court, Justice Markman claimed, was abandoning a clear standard from Michigan case law and adopting a standard created for rivers and streams rather than for the Great Lakes. Justice Markman predicted that greater uncertainty regarding the extent of lakefront property rights will lead to “more fences” as owners move to defend their properties from people claiming a right to walk anywhere between the water’s edge and the ordinary high water mark.