Beach property debate heating up
Court draws line in sand over what is private, public
By Tom Henry
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
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
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
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
"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
"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.
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