Can we anchor and swim here?

Public and riparian rights on Leelanau’s inland waters

By Linda Alice Dewey

The Aug. 9 issue of the Glen Arbor Sun explored Michigan laws regarding public recreation and riparian (waterfront property owners’) rights on our inland lakes, rivers and streams. This article examines a few common misunderstandings relating to those confusing laws.

The number of boats anchored near the Glen Lake Narrows may have hit a record on Aug. 4, reported one riparian who lives near the bridge. She says those boaters often come close to shore to swim in the area frequently used by her grandchildren. She has even seen the public get on the dock to her boat lift, unzip the boat cover and peek inside.

Although such situations are rare, boats do anchor there often. In fact, you may have noticed a new line of white buoys along the south side of the Narrows Channel as it opens into Big Glen. Those buoys, put out by her neighbors to herd the boats away from shore, seem to be doing the job.

They’re marked “Private Mooring”, and that’s true, legally. Michigan law says that, on inland lakes, anything moored to a riparian’s bottomland—a dock, boat lift, rafts, unoccupied boats, and buoys—is private property. The water, however, is not.

State laws regarding open bodies of water are based on a concept called the “Public Trust Doctrine”; everyone has a right to certain things, like water and air. On inland lakes, the riparian owns the bottomland to the center point of the lake, like a wedge of pie. (It’s different for Great Lakes.)

Here’s the rub. The riparian doesn’t own the water except as a member of the public, and the boater doesn’t own the “bottomland.” Yet both have the right to enjoy and recreate on the water. Riparians, in addition, have the right to enjoy peace and quiet on their property, as well as a view of the water from their land. The boater also has the right to enjoy the view from public waters. The rights overlap.

 

Potential for conflict

Let’s use boat anchoring while relaxing on the water as an example. Most riparians acknowledge the public’s right to drift in their boats on a public inland body of water. However, in order to enjoy the waters above riparian bottomlands, the public often drops anchor to avoid that drifting, which can cause problems.

Chip Hoagland also lives on Big Glen Lake, but far away from the Narrows. Yet boaters frequently anchor for long periods of time in front of his home, too. “I’ve gone to people and told them, ‘No, this is our property. We don’t mind short term; we’re not happy with long term’,” he says.

According to the State of Michigan document “Public Rights on Michigan Waters,” if the boater enters the body of water legally (either from a public access, a boat livery, or via private property with permission), the boater has the right to anchor, or “moor,” temporarily on riparian bottomlands for purposes of navigation. But attorneys disagree with one another on how to interpret this.

“Even though riparian landowners own the bottom land … to the center,” says attorney Jim Olson of Olson, Bzdok and Howard, PC and president of For Love of Water (FLOW, Flowforwater.org). “They [riparians] are subject at all times and forever to the superior rights of the public under the Public Trust Doctrine to use the water for swimming.

“They [members of the public] have the right to boat,” Olson says, “and they certainly have the right to anchor for swimming and fishing.”

Clifford H. Bloom, Esq., of Grand Rapids represents several property owners’ associations across the state and writes for a state-wide periodical called “The Riparian” (MI-Riparian.org).In a Lake Ann Association article, “Inland Lake Law and Myths,” Bloom summarizes his view of the situation:

“Put in lay person’sterms, a person has the right to throw out an anchor temporarily on the bottomlands of another in order to fish or steady their boat while they are in the boat. Obviously, this limited right to anchor temporarily is necessary and practical. This does not allow the public to anchor for sunbathing, partying, or general recreation in front of a private property on an inland lake. (Italics added).”

Others might say that anchoring to avoid drifting (toward shore/into deep water/into another boat/away from swimmers, etc.) while enjoying the right to swim constitutes a purpose of navigation.

There is another major question relevant to this law.

“The issue in every case is how long is ‘temporary’,” says Olson.“There are no court cases. The general understanding is that ‘temporary’ includes any time of the day, but that it does not allow for continuous overnight stay, number one. So, it does not include mooring overnight, although it probably does, if it’s one night. If it continues, it would not be understood to be authorized. But again no court case has defined the word ‘temporary’ with respect [to this situation].

“Secondly, there is a qualification based upon where the anchoring occurs. The anchoring, by members of the public for fishing, cannot interfere with the rights of a riparian owner to have access to a dock, raft, moor a boat, or have access to the lake as riparian rights. So even though the public trust is paramount, it cannot be exercised in a way that interferes with assured riparian rights.”

 

Take it to the judge

Parties with conflicting, yet overlapping and in many ways shared, rights—it’s a mess even the courts sometimes can’t, or won’t, decide.

In 1982, the Michigan Supreme Court in three rulings called the “Bott Trio” refused to rule several disputes between the public and riparians, because both sides appeared valid. The decision read, in part:

“The importance that society attaches to the various public values, like the importance society attaches to the need for expanded recreational uses, cannot be gauged by this court with accuracy … Faced with an uncertain societal consensus, an inability to compensate riparian owners for the loss of a valuable right, and the need for a comprehensive legislative solution, we believe that this court is not an appropriate forum for resolving the competing societal values which underlie this controversy.” (From the State of Michigan document, “Public Rights on Michigan Waters”)

As you can see, the court kicked the entire ball of wax back to the Michigan legislature. Until the legislature clarifies the laws—which it has yet to do—this decision says the court cannot rule, at least on those particular issues. There have been some rulings on water rights law since, but they have been narrow and force common sense interpretations in order to apply them more broadly.

 

The options

The remaining recourse for parties involved is either to try and settle it themselves based on their subjective interpretations of these oft misunderstood laws, or test it in courts, which can only be done on a case-by-case basis.

There is a third option. That is to call law enforcement, which happens every once in a while. This will be covered in a subsequent issue of the Sun.