After more than 30 years of working on environmental policy, I moved to within a few hundred feet of one of the Great Lakes. Given the opportunity to stroll along the shore as often as I wanted, I suddenly realized I didn’t know what I could legally do when the water’s edge traversed private property. I only knew the courts had been taking up disputes regarding this issue.
One local I consulted said you could walk the first 10 feet of the beach. Another said you had to keep one foot in the water at all times. I knew I couldn’t assume anything.
Fortunately, Jim Olson was available.
FLOW’s founder and president is one of the nation’s leading authorities on the public trust doctrine, the tenet of common law that holds that our Great Lakes, their submerged lands and their shores are publicly owned — and that government has a responsibility to act as our trustee to protect them.
Jim has set forth the state of that doctrine as it applies to Michigan’s Great Lakes shores. Simply put, the Michigan Supreme Court has upheld the right of the public to traverse the beach up to the ordinary high water mark. No private property owner can exclude the public from that strip of public land.
Dave Dempsey, FLOW Senior Advisor
With that access comes responsibility. Not just the respect for our great waters and shores that should always apply, but also respect for shoreline private property owners. Shoreline access is not a license to litter, make noise, or otherwise disrupt the private property owner’s enjoyment of his or her rights.
With that knowledge, I have trod the shores of the Great Lake I live near, savoring the sounds of swishing water and the panorama of sky and inland sea. It’s a sacred gift. And the public trust doctrine protects it.
What rights does the public have to access the shore? By deciding not to hear an appeal brought by a right-wing foundation on behalf of a coastal property owner, the U.S. Supreme Court has provided an answer, for now.
The Court of Appeals decision whose challenge the Supreme Court refused to hear upheld a local ordinance in North Carolina. The ordinance restricts a beach landowner’s rights to leave or place fixtures or equipment which have the effect of excluding the public along the public access/public trust beach area, below the ordinary mean high-water mark on the beach. Pacific Legal Foundation took up the landowner’s claim that the ordinance constituted a taking of their use of riparian beachfront.
The Court of Appeals noted that custom and law in North Carolina is that ocean beaches below vegetation and other evidence of the high mean water mark are open to the public under the public trust doctrine, and that public access needs to be kept open, especially for emergency vehicles that are necessary for the safety of the public’s use and enjoyment.
Pacific Legal petitioned the Supreme Court to hear an appeal. The Court’s rejection of the request signals that public trust and riparian landowner fights involve the property and public trust law of the states, and that a local ordinance protecting the public’s use of the foreshore of ocean beach within the public trust foreshow does not interfere with or take any property rights of those owning riparian land above the ordinary mean high-water mark.
So, now those of us in the Great Lakes region will wait for the Indiana Supreme Court to decide the fate of long-standing public trust uses below the ordinary high-water mark of Lake Michigan along Indiana’s nearly 50 miles of shoreline. Last week waterfront lot owners in the town of Long Beach, Indiana argued their claim to control and ownership down to the water’s edge in oral arguments to the Indiana Supreme Court. They claim a more than 100-year-old deed to the “low water mark” gives them the right to block public access and walking up and down the foreshore of Lake Michigan.
The attorney representing the residents of Long Beach who have used the beach almost as long argued that the original owner could not deed what he didn’t have. The attorney also argued that the riparian title to land ends at the ordinary high-water mark, and the riparian right to use the land below that goes to the water’s edge or low water mark, but is subject to the state’s and citizens’ access rights under the public trust below the ordinary high-water mark.
The Indiana Attorney General made similar arguments on behalf of the state DNR and public, and Jeff Hyman, the executive director of the Conservation Law Clinic at the University of Indiana Law School, argued that the state received when it joined the U.S., like all states, sovereign title to the waters and land of the Great Lakes below the ordinary high-water mark. All that waterfront lot owners have is a right to use, not own, and that right has always been subordinate to the rights of the state and the public in these sovereign lands under the public trust doctrine.
One can only hope the Indiana Supreme Court sees that centuries of law and tradition protect the public’s right to access the shore.