Opinion: State beaches still belong
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
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.