Great Lakes beach-walking rights still clear as mud

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.”

Where is the "ordinary high water mark?" It is the debris washed up in the foreground? What about the bluff and tree line in the distance?

Where is the ordinary high water mark? Is it the debris washed up in the foreground? What about the bluff and tree line in the distance?

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.

This beach walker on Lake Superior just east of Marquette is probably in the right spot.

This beach walker on Lake Superior just east of Marquette is probably in the right spot.

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.


15 thoughts on “Great Lakes beach-walking rights still clear as mud

  1. I would like to walk the entire length of the Great Lakes shoreline in Michigan on both peninsulas. Can I do this without problems re private ownership of lake-front land?

  2. My home town recently past an ordinance fining individuals $500.00 for allowing a dog on the beach. May I walk my dog along the shoreline of Lake Michigan without being subject to a fine

  3. the fact that someone can own a beach is absurd. how selfish are you that you think having the money to live on the lakefront, which, lets face it, is quite expensive and therefore, limited to a select group of people, allows you to deny the rest of the public the right to enjoy the natural wonders of the lakes and beaches? it s high time that michigan follow hawaii in making all beach property public property.

    • I do agree. I also believe there has to be very clear limits as to what people can and cannot do. I am not so sure I want someone building a fire infront of my house just because I happen to live abutting the beach.

    • We have every right to be selfish about our beachfronts when I assume like my family other property owners have worked their tails off to buy a piece of the American Pie. Do we not all pay Enormous taxes to provide the public with state beaches, parks and open space? Just because I own woods next to a park does that make it all right for someone to walk into my backyard too?
      It’s always the few that ruin it for the masses anyways like the constant forager who picks bags of petosky stones etc. every day for resale. My children wonder why the Petosky’s are disappearing – it’s because of the greed of a beach monger.

      • Apparently, as i understand it, “lakefront owner” DOES have the right to ‘be selfish’ about the BEACH, but not the water’s edge.
        Re: the taxes,
        btw, many of the richest pay a far far lower % of their income as taxes than the poor. For example, Romney paid 13%, while you probably pay in the 30% range. Warren Buffet openly states he pays far less taxes %-wise than his secretary pays.

        and not all wealthy ppl have “worked their tails off”, and many poor are working 2 and 3 jobs.
        but, i see all those topics you brought up as irrelevant.

        see, that’s the thing with nature, we don’t have to “deserve” it, or “earn” it, it’s just there for us ALL to enjoy. It seems the courts agree..

  4. What is the definition of shoreline of Lake Michigan? Lake Charlevoix is connected by water to Lake Michigan. Is Lake Charlevoix part of the waters of Lake Michigan. Can I walk past waterfront homes of Lake Charlevoix as long as I am in the wet sand??

    • I would love to know the answer to this question. My son recently got scolded by a woman because he was in the wet sand where the waves splash walking along a short section of beach looking at the mignots close to shore. He is 8 yrs old and was not causing any type of annoyance.

      From what I can decifer from all of the legal statements I can find, I am inclined to think that the answer is yes you can. The Public Trust Doctrine applies to “navigable waters”. There are many tests to determine what is navigable. I believe that Lake Charleviox passes all of them. In fact I found one website were the National Coast Guard and Army have Lake Charlevoix noted as “fully navigable”. The Public Trust Doctrine allows individuals to walk in the area below the “ordinary high water mark”. If I can confirm my interpretation, I will post more 🙂

  5. Maybe I’m one of those “crabby old ladies” who doesn’t mind people walking on the beach but, because we are blessed(?) with the best beach around, it really rankles me to put up with neighbor’s kids who scream and holler, as kids normally do, playing on my beach when they have their own beach, but mine is better. I hate to make enemies of my neighbors but I think this is pretty nerdy of them to just assume it is all right with me. I’m thinking of putting up a sign that would say something like “Private Beach, Can I do that legally??

    • This is opinion based upon all of the legal statements I have been researching. I believe that your beach is indead private so you can put up the sign. This will likely help especially with kids. However, the Public Trust Doctrine does allow people to walk along the beach upto the high water mark even though your beach is private. So I guess what I am saying is the sign will likely detur those that do not know their rights, but the smart ones will know better.

    • I am not totally against beach walking but like you it is the ones young or old that linger to examine every stone or pebble and creep closer and closer to the house without any respect for our privacy.
      What needs to be stressed to the public is the public trust doctrine states beach “WALKING” not loitering on private lakefront and beaches.

  6. To the blogger: You ask “got it?” about the definition of high water mark. My answer, “yup, I got it.” It’s patently obvious in the foreground of the photo you supplied. If you want to discuss the bluff, let’s go there and look. The ordinary high water mark will be obvious there, too. It may or may not include any dry areas, it may or may not permit walking with dry feet, but it will be obvious.

    My justification for saying it’s obvious is that I know the definition of the word “ordinary”. It means commonplace, not extraordinary, so that means limited to the behavior of the water on the majority of the days of the year. Behavior on other days, such as stormy days, isn’t ordinary, so it doesn’t count.

    I’m glad the majority had more common sense than you or Young and Markman.

  7. I have lived all around the world and have stayed in beach communities in places such as Costa Rica, New Zealand and in Spain. These countries allowed the public access to the beach. My parents had a house on Lake Superior near Marquette MI when I was a teenager. I think its disgusting and wrong for a few Americans to deny the public nature/environment. Those of you who would have your fellow Americans tread in water or the ‘wet’ areas are putting people in the community at risk. The other day I watched a few children follow the law, they tread up to their ankles. If a undercurrent or something comes then a person such as a child could die. Personally, when I live on the beach it makes me happy to see others who don’t have the privilege of the beach have access to. I think the greater good of the community outweighs the greed of a few.

    • I agree, and it is interesting how differently various places treat the right to access a beach.
      I think nature is one of those things we can’t buy, or own,
      but, is there for us ALL to enjoy.

      A person who lives on a street, can’t much complain about passersby, (or even a game of soccer) on the publicly-owned street in front of their home, either.

      Some things can’t be bought, or owned, and apparently, Lake Michigan is one of those things.

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