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Great Lakes Article:

Beach property debate heating up
Court draws line in sand over what is private, public
By Tom Henry
Toledo Blade
Published August 11, 2005


The romantic warmth and glow of a Lake Erie sunset is hard to pass up.

So is the sound of waves lapping against the shore. And that feeling of cool lake water oozing between your toes as your bare feet crunch the comfy sand? Incredible.

So it's no wonder that people claim to lose control of their senses when they stray too far off public beaches. Their pleas seem to have one thing in common: Being intoxicated by nature.

But are they really trespassing? Or is this intoxicating aspect of nature covered by a little-known federal law that is at least several decades old, allowing people to come within inches of somebody's private beachfront property?

Those questions are the subject of a hot debate.

An Ohio activist yesterday said a recent Michigan Supreme Court ruling in favor of beach walkers has possible implications for the entire Great Lakes region.

The court ruled 7-0 that the public generally has a right to walk along Michigan's 3,288 miles of Great Lakes shoreline, so long as people don't trespass on private property.

And, in a 5-2 vote, judges said the public is allowed to stroll from the water's edge to the ordinary high-water mark. The latter is the spot on the shoreline where waves have left their mark.

"It's very, very relevant," Jack Shaner, spokesman for the Ohio Environmental Council, said.

The problem is that Great Lakes water levels have receded back to their historical averages in recent years, erasing lines in the sand that had distinguished the 30-year era of high water levels through the late 1990s.

High-powered turf battles between shoreline property owners and state officials have resulted. States, by law, own surface water within their jurisdictions and the land beneath it.

Pam Burt, a lawyer from Harrisville, Mich., succeeded in getting the Michigan Supreme Court to throw out an appellate court's decision that had equated wayward beach walking to trespassing.

In a conference call with Ohio reporters yesterday, Ms. Burt said she argued that such strolls are protected under the U.S. Supreme Court's public trust doctrine, provided they are in public sand.

The doctrine she cited is an old law that essentially declares certain natural resources - such as lake water - as being in the public trust because they're too valuable to be privately owned, she said.

"The Ohio Supreme Court adopted the public trust doctrine more than 100 years ago, as did Michigan," Ms. Burt said.

She said that in areas where the public trust doctrine applies, titles to land take a back seat.

Tony Yankel, president of the Ohio Lakefront Group, disagreed.

His group, which represents a number of shoreline property owners, is mired in a federal lawsuit with the Ohio Department of Natural Resources over the public-private boundary line for Ohio's 312 miles of Lake Erie shoreline. The group also is pushing for state legislation to better define parameters.

"Ohio law is different than Michigan law," Mr. Yankel said. But he conceded the Michigan Supreme Court's ruling was a blow to Ohio property owners he represents - at least in terms of public perception.

"The reason [the ruling is important] is because [Michigan] is a neighboring state," Mr. Yankel said.

"It can sway public opinion, but that doesn't matter in a court of law."

The debate weighs heavily upon the current water's edge and the historical high-water mark. State agencies want the latter because that means more land falls into the public's domain.

"We do not question the public's right to be in the water," Mr. Yankel said. "We're trying to make it crystal clear that the public trust [doctrine] ends where the water's edge is."

The National Wildlife Federation and the Ohio Environmental Council have petitioned a U.S. District Court in Cleveland for permission to help the Ohio DNR with its defense, a motion that affected property owners have opposed.

One person supporting the motion, though, is a Kelleys Island lakefront property owner.

Patrick Hayes, owner of a bed and breakfast establishment called The Inn on Kelleys Island, said he wants the Ohio DNR to prevail because bird-watching and other forms of "ecotourism," including strolls on a Lake Erie beach, are important selling points for his business.

A victory by the Ohio Lakefront Group "would end my right and the right of my customers to continue to use and enjoy the shore of Lake Erie as we currently do and have done in years past," he wrote.

Mr. Hayes said he is a member of both the National Wildlife Federation and the Ohio Environmental Council. He also has nearly three years remaining in his term as a member of the Ohio Coastal Resources Advisory Council, a panel that reports to the Ohio DNR about the issue.

Contact Tom Henry at:
thenry@theblade.com
or 419-724-6079.

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