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Great Lakes Article:

Opinion: State beaches still belong to landowners
By Thomas Bray
The Detroit News
Published April 27, 2005

The self-appointed advocates of the little guy are jumping up and down about a recent state appeals court decision that allows beachfront residents to bar people from strolling along the waterfront.

As a result, the decision in the case of Glass v. Goeckel is being appealed to the Michigan Supreme Court. Though a Michigan court opinion wouldn't be binding in other states, the legal reasoning behind it might carry weight with judges elsewhere as they contemplate similar lawsuits -- as is happening in an Ohio case involving beachfront rights on Lake Erie.

The May 13 opinion of the Michigan Court of Appeals stemmed from a suit filed by owners of a beachfront house on Lake Huron that they purchased in 1997. Neighbors across the street held an easement allowing access to a 15-foot-wide sliver of beach, but the owners of the beachfront home alleged that they were abusing the easement by trespassing on their property.

The Alcona Circuit Court found in favor of the neighbors, reasoning that "public trust doctrine" guarantees a right to use beachfront below the high-water mark.

But the Court of Appeals disagreed, citing a 1930 decision, Hilt v. Weber, which explicitly reiterated longstanding Michigan doctrine that beachfront residents have the exclusive right to the use of the property to the actual shore line -- even if water levels had changed, exposing more of the beach.

Even Frank Kelley, the die-hard Democrat who served as attorney general from 1961 to 1998, earning the sobriquet "eternal general," had to agree. In an opinion issued in 1978, he concluded that "the riparian owner may prevent persons from using the beach of his riparian land regardless of whether the land is above or below the ordinary high water mark."

Critics such as the Michigan Land Use Institute have filed briefs with the Supreme Court arguing that portions of a beach between the historical high water mark and the actual shoreline -- which can be considerable around the still-depleted Great Lakes these days -- should be open to the public.

Moreover, they rightly note, the Court of Appeals decision contains an important caveat: Though the public might be barred from walking the beaches, recently exposed, or "relicted," areas of beach still belong to the state under the public trust doctrine.

And if that's the case, then logically the state can decide whether the public should have access or not to exposed stretches of beach.

For that reason, Defenders of Property Rights, a conservative, Washington-based legal defense fund that has won some landmark decisions around the country, has filed a brief with the Michigan high court, arguing that it should modify the appeals court decision to make clear that when water levels drop, property owners have a "moveable freehold" on the newly exposed beach.

The state Legislature agreed in essence last year when it approved laws allowing beachfront residents to mow or remove grasses and other noxious vegetation cropping up in the drought-exposed areas.

It's not as if John Q. Public lacks access to the Great Lakes. The state owns nearly 1,000 of Michigan's 3,200 miles of shore line, as well as 1,300 boat access sites. The government is free to buy up even more if it can find willing sellers -- and can manage its budget so it can afford the expensive coastal property.

What the plaintiffs and their allies in Glass v. Goeckel are really arguing is that because government doesn't have the money, the financial burden of beachfront access should be borne entirely by the existing property owners. But as a prior Michigan Supreme Court decision held -- back in the days when the court was still under Democratic control -- though it might be considered "laudable" for the state to provide more public parks, beach access and so on, "[t]he state must be honest."

Even if that's asking a lot of our politicians.



















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