This is Bad. This may be Really Bad. Last week the Michigan Supreme Court overturned an Appeals Court decision which had said that the general public did not have a right to walk along Great Lakes beaches on privately owned lakefront property.
Instead, the SupCoM says, the public can walk along the water above the waterline without being trespassers. A very similar battle is going on along Lake Erie in Ohio, between the Ohio Department of Natural Resources and folks who have invested in and been paying taxes on, lakefront property.
In Michigan, a five-member majority on the court said that anyone can wander anywhere between the waterline and the ordinary high water mark. The ordinary high water mark is defined as the line on the shore where continuous water action leaves a distinctive mark.
The majority did not agree, however, on what the boundaries are and just what the public is allowed to do there.
The two dissenting judges said the public only has a right to the wade in the water or walk on the wet sand adjacent to it.
Even the majority did not agree on what legal principles support its decision.
Justice Maura Corrigan wrote the majority opinion. It says that land below the high water mark historically belongs to the state and that there is a common-law public trust interest even after the property is sold to a private owner.
Of course, it looks like this gives the general public the right to come down to a beach, pitch a tent, and hold a weekend-long keg party.
On the bright side, though, Justice Corrigan said the public trust doctrine does not give anybody the right to do whatever they like on the beach. She said the state legislature still has the right to regulate what can go on.
One of the minority justices, Stephen Markman, said that the high water mark standard is confusing. He suggested instead, that the mark be the boundary between the wet sand and dry sand.
Justice Markman said that the "high water mark" standard will lead to more confusion and lawsuits … and fences.
On the face of it, the Michigan decision seems to be a blow for democracy … supporting the Little Guy against all those millionaires who have gobbled up access to one of the nation's greatest recreational resources.
Fact is, though, much privately owned lake front property is not owned by the superwealthy. It is owned by Little Guys like most of us.
Marinas, homes, small businesses are impacted. Folks who worked hard to be able to purchase a home or business and invest their money and lives in them are being told that their ownership rights are trumped by the "Public Interest."
Envision every Tom, Dick and Harry and their families tromping through your front yard, leaving behind pop cans, disposable diapers, and busted foam coolers. Who do you think are better stewards of the land, owners or passersby?
Fact is also, The State of Ohio, i.e., the General Public, already owns a large majority of the lake front property, something like 70 per cent. Thus, there is already plenty of public access to this resource.
The issue in Ohio has not finally landed in the Ohio Supreme Court. It has been in the legislature for several years, with a lot of wrangling and testimony. If it does wind up in the SupCO, the Justices in Columbus can decide whether their ruling is or is not influenced by the Michigan ruling.
These, unfortunately, continue to be Interesting Times.