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