It’s been three years since the Michigan Supreme Court, in Glass v. Goeckel, famously clarified the public’s right to walk along Great Lakes shorelines and left murky just where the walking can take place.
When beachfront property on navigable water is privately owned, the Glass court explained, the owner has littoral title to the water’s edge, but the public trust doctrine allows individuals to walk along the beach within the “ordinary high water mark.” And where’s that? Justice Maura Corrigan, who wrote the lead opinion in Glass, borrowed a definition from the state of Wisconsin and said it’s where:
“[T]he presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.”
Got it? Me neither. Don’t feel bad. A lot of other folks don’t get it, either. Almost everyone would have got what Justice Stephen Markman argued for in vain: walking is okay where the sand is wet. What the lead opinion offered, huffed Markman, was “essentially undecipherable.” No hyper-technical arguments, please, about what percentage of sand moisture content constitutes “wet.”
But despite the confusion about where you can walk, you have to keep moving. Beach walking is protected, not beach gawking.
In Leelanau County, where beach walking is a secondary form of recreation, the first being tasting the latest vintages from the area’s many outstanding wineries, Leland Township officials are dealing with two issues.
First, a lot of roads end at Lake Michigan. In Leland Township, a public right-of-way extends from the road end to the water’s edge. People hang out there in the sand. These public beaches are frequently hemmed in by privately owned land. Second, there’s all that Lake Michigan shoreline available to walkers under Glass, and readily accessible from the public right-of way.
The inevitable conflicts have developed.
The solution is new signs, say Township Supervisor Harry Larkin and Clerk Jane Keen. “Our old signs said it was illegal to walk along the shoreline outside of the public right-of-way,” Keen told The Leelanau Enterprise.
Glass took care of that and the old signs belatedly came down last summer.
“The problem with the ruling, at least in the eyes of Keen and Larkin, is the high water mark is not easily determined or marked on each private beach.
“‘I had one lady insist the tree line on the beach is the ordinary high water mark,’ Keen said.”
But that’s not a bad argument under the Glass Court’s definition.
So, here’s Leland Township’s new approach.
“Township signs will state the public right-of-way is 60 feet wide and runs from the road end to the water’s edge. The area is considered public, and fire rings will be placed so people may build fires. The signs will also state the property outside the right-of-way is private, and to respect the private property owners’ rights as well.”
The signs won’t have any guidance about beach walking.
It’s going to take an overreaching beach walker, a crabby property owner, a befuddled sheriff called to issue a trespassing ticket and another climb up the appellate ladder to flesh things out.