In a 5-2 ruling in Glass v. Goeckel, the Michigan Supreme Court held that Michiganders have a right to walk along privately owned beaches so long as they do not cross the “high-water mark.” While this will clearly be a popular decision, it is unsound — and it is even more flawed than the dissenting justices recognized.

The court’s ruling now exposes Great Lakes waterfront landowners to new risks and intrusions. Do the landowners have a duty to make the area beneath the high-water mark safe for walkers or wheelchair users? Can people fish all day below the high-water mark?

The case involved a dispute between neighbors about the right to walk along a private beachfront. The owners of the property maintained that they could exclude the plaintiff from traversing it above the waterline, while the plaintiff maintained she had the right to walk the property below the high-water mark.

The Supreme Court’s majority opinion in the case held that “public-trust” uses of the property were permissible below the “high-water” mark, which the court defined as “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 majority justified a dividing line at the high-water mark, as opposed to the water’s edge, by observing that, “Water levels in the Great Lakes fluctuate.” Thus, land “not immediately and presently submerged, falls within the ambit of the public trust because the lake has not permanently receded from that point and may yet again exert its influence up to that point.”

The public-trust doctrine comes from English common law. The English, as a sea-faring people, originally developed the doctrine to protect the right to use navigable waters, and they prohibited private parties from using land under the water in a manner that would interfere with use of the navigable tidal waters for either commerce or fishing. The submerged land that was thus protected included areas that would be exposed at low tide.

The United States Supreme Court in the 19th century held that the public-trust doctrine applied to the Great Lakes, because of its vast commercial shipping. Still, the Michigan Supreme Court’s use of the high-water mark for the Great Lakes is inappropriate.

The high-water mark was developed for ocean waters, which can experience dramatic tidal change. Each day, significant amounts of land are exposed, only to be covered by the water hours later. Designating a “high-water mark” provided a consistent boundary, and that boundary could generally be determined within hours.

With the Great Lakes, there are no radical changes in the water level on a daily basis; such changes occur over much longer periods. This fact renders the definition of a “high-water mark” so vague as to be almost useless to the lower courts. If there is no water near a supposed “high-water mark,” how can a judge sort out the features of the local landscape to tell whether water might “again exert its influence up to that point?” Is it enough that water was there six months ago? Five years ago? Two decades?

In fact, there is no need to use a high-water mark to apply the public-trust doctrine. A readily identifiable boundary already exists: the “wet-sand” boundary championed by dissenting Justices Stephen Markman and Robert Young. This dividing line is truer to the original purpose of the public-trust doctrine, and it is relatively easy to apply.

The problems with the court’s ruling go even further: The court also held mistakenly that walking is an activity protected under the public-trust doctrine. But the doctrine was developed to accommodate the public’s basic needs, not public enjoyment. Even fishing and hunting, which are now leisure activities, were protected originally because most people hunted and fished either commercially or for subsistence.

The court’s ruling now exposes Great Lakes waterfront landowners to new risks and intrusions. Do the landowners have a duty to make the area beneath the high-water mark safe for walkers or wheelchair users? Can people fish all day below the high-water mark? Is there a limit to the state’s regulation of this zone?

The United States Supreme Court once ruled, “The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights.” Unfortunately, the Michigan Supreme Court has now devalued that right for Great Lakes beachfront owners. We may secretly applaud their loss and enjoy our newfound license to the lakes, but our country was built on individual rights — including property rights — and we shouldn’t be happy to see them go.

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Patrick J. Wright is senior legal analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.

Summary

The Michigan Supreme Court has ruled that the public can walk recreationally across privately owned beachfront property as long as people remain below the “high-water mark.” Unfortunately, the “high-water” mark is problematically vague when applied to lakefront property, and walking is not an activity protected under the “public-trust” doctrine the court invoked. The resulting loss of property rights and increase in property disputes will affect us all.

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