Editorial: What is a 'public use'?
Milwaukee Journal Sentinel
Published April 19, 2006
Let's start with a simple premise. The public owns Lake Michigan. It strains credulity to then imagine such ownership means that, while the public is free to float on boats in the lake, it can't always walk virtually anywhere along its immediate shoreline.
Yet this is, essentially, the state of affairs in Wisconsin - though not in Michigan, where, an article this week by Journal Sentinel reporter Dan Egan explained, the state Supreme Court has dispensed with such semantic gymnastics over the terms public use and benefits.
Wisconsin, either through statute via the Legislature or through a court case brought by the Legislature or other interested parties, should apply the same fix here.
Allowing private property owners to claim the land abutting the water is a 1923 Wisconsin Supreme Court ruling. The court said such "riparian" owners have the "exclusive privileges of the shore for purposes of access to his land and water."
This means, essentially, that, while the land above water and to the "ordinary high water mark" is in the public trust, the public is still trespassing if it attempts to walk on it. Folks can walk in the shallow - and, often, cold - water along the shore, but step onto dry land and you're potentially trespassing. In this way, hundreds of miles of Great Lakes beach is rendered unusable by the public.
Now, most likely, common sense prevails most of the time. Property owners allow access, and walkers don't abuse the land. But to the extent that any member of the public is barred from walking the beach - by signage or personal intervention - this is ridiculous.
The Michigan Supreme Court brought some sense to the issue last summer, ruling in a case brought by a would-be Lake Huron beachwalker that shorelines from the ordinary high water mark to the water are open to the public for beachcombing.
Wisconsin is in need of a similar case; a ruling for public use by the current state Supreme Court could upend the ruling by the 1923 court.
That court acknowledged a public ownership of the lake bed up to the high water mark but said the abutting private property owner nonetheless had the right to prevent others from traversing the land. It reasoned that the public use permitted was related to navigation, a narrow reading of public use in our view.
As a letter from state Attorney General Peg Lautenschlager last year to Sheboygan County Supervisor Jim Baumgart explained, the public benefit also should properly include such items as fishing and the "right to enjoy scenic beauty," both often and typically done from shorelines.
A suit could be brought by the Legislature or other interested parties. But if the Legislature is not of a mind to sue, it can simply legislate. Perhaps this is the cleanest way. It could simply spell out by statute what public trust and use of lake beds entail.
This, of course, will be railed against in some quarters as an improper "taking" of private land by government.
Not so. Remember, the lake beds are in the public trust. Therefore, the Legislature could simply define what privileges are allowed to lakefront property owners. But lawsuit or legislation, the Legislature should act.