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Great Lakes Article:

The littoral truth on beach walking
The Saginaw News
Posted on on August 11, 2005

The state Supreme Court recently ruled, in a 5-2 opinion, that Great Lakes shorelines are part of the public trust, and that "littoral" or coastal landowners must allow public access up to the "ordinary high water mark."

The ruling is a victory for the public. The experience of squeaking sand and ceaseless surf underfoot along a Great Lake is a time-honored tradition for millions of Michiganders, as well as the tourists who visit our shores each summer. Losing that right would have curtailed one of the unique attractions of living in or visiting Michigan.

Yet the majority's opinion, as dissenting Justices Robert P. Young Jr. and Stephen J. Markman spell out, goes too far by extending that "right" to the nebulous "ordinary high water mark." Markman proposed restricting access to what most of us would call the surf zone -- the Great Lakes and their wet sands.

Most beach walkers saunter near the shoreline or in the water. But, as lakefront property owners would tell you, not every walker uses good sense and courtesy -- building fires along the beach, camping out or overstaying their welcome on what the high court agrees is private property. Markman warned that using the "ordinary high water mark" as the zone of public trust would create more disputes.

"Just as some members of the public are likely to become more assertive in their claim of a 'right' to use the property of another, so too will some property owners become more assertive in purporting to 'defend' their properties from the encroachments of such persons," Markman writes. "As a result of the majority's opinion to replace clearly understood and long-standing rules of private property rights ... the rights of both the public and property owners will likely become less well protected."

Markman and Young's definition better balanced the rights of property owners with the joy of beach strolling. Using the wet portion of the shore as the public trust limit, rather than the "ordinary high water mark," would have offered a clearer answer than the court majority's footprints in the sand.

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