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Great Lakes Article:

Michigan Supreme Court ruling doesn't settle argument over beach access
By John Flesher
Associated Press
Published in the Duluth News Tribune on September 22, 2005


Pete Frauson wasn't pleased when a couple with a cooler and four dogs frolicked for a couple of hours on the beach in front of his Lake Huron house. But he did nothing more than grit his teeth.

The previous day, Michigan's Supreme Court had ruled that people had a right to stroll along Great Lakes beaches, whether publicly or privately owned. The court opinion focused on walking, a time-honored tradition. But Frauson considered the wording fuzzy enough to prevent him from shooing away people using the waterfront as a playground, even though he felt they were trespassing.

"It certainly opens up the possibility for somebody that wants to have a beach party to ... come down with 25 of their friends and a keg of beer and some hamburgers and hot dogs to grill," said Frauson, a resident of Linwood on Saginaw Bay.

Nonsense, replied Keith Schneider, deputy director of the Michigan Land Use Institute. "My reading is it allows the right of traverse but not loitering. The vast majority of citizens who use the beach also respect the beach and the people with homes there. This vast parade of horribles you hear about from the property rights movement has no authenticity."

Nearly two months after the state's highest court rendered its decision, the debate over beach access marches on. The justices' final word came last week, when they denied a request to reconsider their July 29 ruling. But Save Our Shoreline (SOS), a group representing lakefront property owners, may take the fight to federal court.

Richard and Kathleen Goeckel, who lost the case, haven't decided whether to appeal to the U.S. Supreme Court, said their attorney, Scott Strattard. SOS will support them if they do, president Ernie Krygier said. Otherwise, the group may file a "takings" case demanding compensation for denial of private property rights.

"They haven't lost any rights," countered Jim Olson, a Traverse City environmental attorney. "They've lost some perceived rights that didn't exist."

Other observers expect follow-up lawsuits as hard-liners on both sides test the meaning of the Goeckel ruling. With beach season winding down, the kinds of disputes that could wind up in court might not happen immediately. But they're probably inevitable, said John Logie, a veteran real estate lawyer and former Grand Rapids mayor.

"There was not enough precision in the majority opinion to avoid more litigation," Logie said.

The Supreme Court case arose from a spat between the Goeckels and a neighbor who claimed the right to walk along Lake Huron in front of their cottage. The Michigan Court of Appeals sided with the Goeckels, saying waterfront property rights extend to the water's edge.

The Supreme Court, however, said those property rights coexist with a public trust right to use the Great Lakes for activities such as hunting, fishing and navigation. To do such things, people must use the beach - therefore beach walking is a right, the court said.

On that point, all seven justices agreed. But they differed on how much of the beach was covered by the public trust doctrine. Justices Stephen Markman and Robert Young Jr. said it was just the narrow strip of wet sand immediately beside the water.

The other five defined the area as between the lake and the "ordinary high water mark" - the point where continuous water action leaves a distinctive mark. Markman argued the exact location of that spot is "anyone's guess." Logie predicted lawsuits over where to draw the line in some places.

Another point of contention: What can people do within the public trust zone? Is it like a road, where they must keep moving? Or can they spread a blanket, sunbathe, have a picnic?

"It seemed like the court left some room for interpretation there," said Bob McCann, spokesman for the Michigan Department of Environmental Quality.

Walking is the only activity explicitly protected in the majority opinion, written by Justice Maura Corrigan. It says public-trust rights are not unlimited and "cannot serve to justify trespass on private property."

Yet it also refers to previous court rulings that include hunting, fishing and boating within the scope of "traditionally protected public rights." It cites one case that puts bathing, taking shellfish and gathering seaweed on the list.

That's what worries Frauson, a member of SOS, who says he doesn't mind people walking along the water but doesn't want them treating the beach like a public park. He says he's seen people cruising past on all-terrain vehicles since the court ruling.

Supporters of the ruling scoff at the idea it will cause an epidemic of boorish behavior.

Pamela Burt, the Harrisville attorney who represented the winning side, said the only change she has seen is more hostility on the part of some landowners - including a man who turned loose a vicious dog on beach walkers. She blames SOS, saying it gave members the impression "they had exclusive ownership of something they never did and that it's been taken away from them."

The court created no new public rights, simply affirming those that existed under common law even before Michigan became a state, she said. So there's no reason do anything differently. The ruling said walking was OK, but didn't invite beach parties.

Ultimately, it may fall to the Legislature to determine what activities are permissible. Corrigan's opinion noted lawmakers could regulate behavior within the public trust area.

State Attorney General Mike Cox said he hadn't heard of any clashes over beach uses since the ruling but hoped people could work out such issues on their own.

"We can have rules on the books, but there's an expectation in almost every law that people exercise common sense," he said.

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