Walking the Lake Michigan beach — a public right, or trespassing?

High Lake Michigan water levels have decimated beaches, leaving little room to walk the shoreline, and potentially pitting the public against private landowners. Photo of Empire Beach by Mimi Wheeler

By Linda Alice Dewey
Sun contributor

It’s common knowledge that the public can walk along the Lake Michigan shoreline. You can walk it anywhere on public property. That means public road ends, or the Sleeping Bear Dunes National Lakeshore. The question is: how far from the water’s edge can a person legally walk along private property? This is an important issue, since about 70 percent of Michigan’s “third coast” is privately owned. The answer is unclear, because neither courts in Michigan nor in other Great Lakes states have offered a clear and consistent answer.

Here’s one simple solution. “The public has always had the right to walk along the Great Lakes shoreline,” said Robyn Wright of the Michigan Department of Environmental Quality (DEQ). “As long as they were walking with their feet in the water.”

Your right to walk in the water comes from something called the Public Trust Doctrine, which originated in Roman law. It states, “Now the things which are, by natural law, common to all are these: the air, running water, the sea, and therefore the seashores.” That later carried over to English common law, which was paraphrased in a 2005 Michigan Supreme Court decision: “The sovereign [in this case, the state] must preserve and protect navigable waters for its people.” It goes on to explain that, “the state serves, in effect, as the trustee of public rights in the Great Lakes for fishing, hunting and boating for commerce or pleasure.”

What about walking? That would be “navigation,” the court decided. Things become complex if the water is too cold or rough to walk in, and you need to walk on dry land. Muddying the case even further — with the water as high as it is now — where can a person walk without trespassing? That question has been tossed around and re-interpreted by Michigan courts for nearly 100 years.

In Ohio, you definitely have to keep your feet in the water. That’s not the case any more in Michigan. In 1955, the Michigan legislature passed the Great Lakes Submerged Lands Act (GLSLA) (see “Riparian landowners” story in our forthcoming July 16 edition). “That GLSLA was really the key,” says attorney Dave Powers with Save Our Shoreline (SOS), an organization that represents the interests of Great Lakes riparians (beach landowners).

“Because what it did was to give the state—the Department of Conservation—the power to regulate land that was in the public trust. Up to that point, it was always clear that the beach was owned by the riparian landowner to the water’s edge, and that therefore the beach was not in the public trust.” Others may take a different point of view on this.

At any rate, the GLSLA created a fixed “Ordinary High Water Mark” (OHWM) point at 580.5 feet in elevation. From that point to the water, the land was deemed in the public trust. What wasn’t clear was where people could walk. Did the public have to stay in the water?

Then, in 1998, a lawsuit was filed by Joan Glass, who owned property behind a couple on Lake Huron by the name of Goeckel. Glass alleged that the Goeckels harassed her when she walked in front of their home on the beach, something she had been doing for decades. When it came to decisions, there was no consensus on this one between the courts. The lower court found in Glass’s favor, the Court of Appeals overturned that decision in favor of the Goeckels, and finally, in 2005, the Michigan Supreme Court found in Glass’s favor. But once again, the judges disagreed over the ruling.

Glass v Goeckel (G v G) was a game-changer, setting a precedent for the public’s right to walk the shoreline. At the same time, the court acknowledged the private rights of property owners to the water’s edge, but held that those private rights overlapped with the Public Trust and could not interfere with the public’s right to walk Great Lakes beaches. It defined a “natural ordinary high water mark,” (NOHWM) which is different from the OHWM defined in the 1955 act. “The natural ordinary high water mark is not the same as the jurisdictional ordinary high water mark elevation [of 580.5],” said the DEQ’s Wright. This NOHWM would ideally be “the point on the bank or shore up to which the 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.”

The G v G decision has since faced severe criticism. “I think the Glass v Goeckel decision is the most poorly written decision I have read in my 28 years as an attorney,” said Powers of Save our Shoreline. “It basically ignores the Peterman Decision from 1994. It largely ignores the holding of Hilt v Weber. It ignores several decisions of the Michigan Supreme Court after Hilt v Weber. There is a decision in Ohio that was basically the same kind of case, and that case has made it to the Ohio Supreme Court and they held in favor of the beach owners in a class action lawsuit. That trial judge, Judge Lucci said that the Glass v Goeckel decision was poorly [reasoned].”

In addition, G v G was confined to the issue of walking the beach. “I am not aware of any subsequent court cases that have expanded or clarified the rights described under the Supreme Court decision to include any other activities than walking,” said Wright. It doesn’t say whether the public can ride off-road vehicles or pitch a tent or an umbrella, or even stop to rest in front of private land.

In its decision, the court stated “the private title of littoral landowners remains subject to the public trust beneath the ordinary high water mark.” So what about landowners’ rights for their strip of public trust land along the shoreline? “All riparian owners have and enjoy the riparian right to their property,” said attorney Jim Olson, president of Traverse City-based FLOW (For Love of Water). “That is, the public trust is paramount, but they (public vs. private rights) are not mutually exclusive. They sit side by side. Riparians have access to the water’s edge to enjoy their docks or riparian uses. Their use is broader and different than the public use of walking.”

So, the public gets to walk up to the observable high water mark. But now there’s a new wrinkle. With the invasive grasses that have taken root practically down to the water’s edge, and with the rising lake levels, “The question for beach walkers is, where is it?” asked Olson. The court, in its 2005 decision, anticipated this problem but only in part, when it stated, “And where the bank or shore at any particular place is of such a character that is impossible or difficult to ascertain where the point of ordinary high-water mark is, recourse may be had to other places on the bank or shore of the same stream or lake to determine whether a given stage of water is above or below ordinary high-water mark.”

But what happens when the whole beach is difficult to ascertain? “Mother Nature, in her swings of climate change and water levels, at times erases the obvious markers under G v G case,” said Olson, “making it difficult for riparian landowners to determine where that line is.” The public has trouble knowing where it is as well.

“The natural high water line,” Olson continued, “is the more permanent physical evidence over a period of time, not the daily high water mark. You look for evidence on the beach of where the longtime dunes or lines are. But when the water comes way up,” he added, “there’s a question mark that the court didn’t resolve. If you take out photos and look where the water was in the ’60s and the ’80s and try to figure out where was the natural high mark, it is not observable,” he explained. “You have to reconstruct.”

The Glass decision is the law. Are we done now? Maybe not, said Powers. “What I say is that Glass v Goeckel is going to stand until it comes across as bad fact. At some point in time there will be a case between a riparian owner and the public, and it’s going to come out on facts that favor the owner. It could be a riparian owner getting bitten by a dog, I don’t know. But it doesn’t make sense for the public to be walking on private land.”

“I have no problem with the public walking in front of my place, but I should be able to pick and choose if someone, if there’s going to be a problem.”

Such a case could open a whole new can of worms. All of this might have serious ramifications for the proposed Bay to Bay Trail in the Sleeping Bear Dunes National Lakeshore, which has stalled at the moment due to intense pushback from shoreline landowners.

So what if you simply want to take a nice walk on the beach this summer?

“Play it safe,” advised Olson. “Be respectful, and play it safe.”

“If your feet are wet,” said Leelanau County Drain Commissioner Steve Christensen, “the question of where is the natural ordinary high water mark, is not a discussion.”

Lake Michigan rises once again

Those of us who have lived in Glen Arbor for years have noticed a trend as the lakeshore moves farther out, followed by the creep of dune grass and the forward moving tree line.

In April 2014, Brian Price, former director of the Leelanau Conservancy, took a group of 40 on a Conservancy geological tour that surveyed the effect of glaciers in forming the land. As we stood back in the woods at the base of Alligator Hill, observing the rolling “dune and swale” of the land as the lake had moved out and back, slowly away from the headland, he explained that the trend was for the lake to continue moving outward. If you owned a piece of land along that waterfront, he said, you would just be gaining “more real estate.”

But then came the heavy winter snows of the 2013-14 winter, followed by a long, cool wet spring, summer and fall. Things reversed. The big lake began to crawl inward, cutting into the newly formed bluffs, making it appear as though the lake was artificially high. But it wasn’t, and though that inward trend continues, it still isn’t.

Residents who have been around for awhile might remember that, in 1979, Lake Michigan beaches looked similar to they way they do now, with rising waters cutting into the dune grass, causing a cliff along some shorelines. In addition, rivers that were normally underground rose above ground and stayed there for years. That trend began again last year, and, although they are not to the point where they were in 1979, they’re getting there. That water stood for 10 years, killing all trees and vegetation. The dead trees can still be seen along wide swaths of forest parallel to the base of Alligator Hill.

The highest level recorded for Lake Michigan occurred, not surprisingly, during that same period, in 1986. Then the water began to recede, the rivers began to dry up, and by 1990, all was “normal.”

Then came the drought. The June 1, 2000 issue of the Glen Arbor Sun, in an article entitled, “Low Water Levels,” observed, “Summer lovers returning to lakefront cottages in Northern Michigan may drop jaws in disappointment before dropping their feet into water … That’s because Lake Michigan water levels are the lowest they’ve been since the mid-60’s, when measurements taken by the United States Army Corps of Engineers bottomed out at 576.05 feet in March of 1964…[W]ater levels reached an all-time low in March of 1964, [but] began rebounding by the late 60’s and climbed to record heights by the mid-70’s. After falling nearly to the lake’s century-mean depth, the water level set a new record in the summer of 1986 at 581.99 feet.”

Steve Yancho, at the time a “resource management specialist” at the National Lakeshore back then, commented, “Over hundreds of years of studying the lake, this isn’t a big deal … As frustrating as this might seem for people, it’s just a natural cycle … The soil, the dunes, everything we’ve come to expect was influenced by lake fluctuations,” said Yancho. “You just have to make adjustments.”

He was right. Later that same year, 15 inches of rain fell in one month, and in 2004, the title of a Sun article proclaimed, “River, lake water levels high as cats’ backs.” Yet it was only a momentary high point. The average lake levels continued to plummet as Glen Arbor continued to suffer hot, droughty summers until, in 2013, Lake Michigan reached its lowest level in 100 years.

Over the past 18 months, Lake Michigan’s water level fluctuation has wreaked havoc with our beaches. 2014 was wet and cool. Last summer, the shoreline began to cut back toward the hills and into the bluffs, washing away dune grass that had advanced toward what had been an ever-receding shoreline (since 1987).

The lake is reclaiming some of what it lost. Though Good Harbor Beach still has nice wide beaches, Sleeping Bear Bay hardly has a beach from Pyramid Point to Glen Haven. Walk round Sleeping Bear Point and head south toward Empire, and you’ll encounter little or no beach in many areas.

In the long run, though lake levels may be approaching their all-time 1986 high, they still have a ways to go. General statistics available from the Army Corps of Engineers (Detroit District) say they’re about 2 1/2 feet below that high. If you’re an old duffer like me, just check out a few beach landmarks you remember from the ’50s and ’60s. You’ll find that they’re still pretty far back from the water’s edge today.

High Points
August 1960 579.95
July 1974 581.76
October 1986 582.35
July 1997 581.33
June 18 2015 579.76

Low Points
March 1965 576.05
January 2008 576.44
January 2013 576.02