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US Supreme Court may decide public’s access to Great Lakes’ shorelines

By Keith Matheny/Detroit Free Press (TNS) • Jan 19, 2019 at 2:00 PM

As about 100 spectators gathered on a stretch of southern Lake Michigan shoreline in Long Beach, Indiana, last August to watch the Great Lakes Grand Prix boat races, they encountered something unexpected: A private security guard and a nearby lakefront property owner telling them they had to leave. They were standing on private property, down to the water, the guard told them.

“I was stunned,” said nearby resident Tom King, who was there that day.

King knew better, however. He’s treasurer with the nonprofit Long Beach Community Alliance, whose advocacy includes preserving Lake Michigan beach access. The alliance had intervened in a court case on the beach access issue, in which the Indiana Supreme Court had affirmed earlier that year that the public has the right to use the beach up to the “ordinary high-water mark,” even in front of lakefront private property.

“I was following behind, telling people to disregard what the security guard was telling them, that they had the right to be there,” he said.

A police officer eventually came, confirmed the beach audience wasn’t trespassing, and the security guard left, King said.

Where does the public’s rights to traverse the Great Lakes shoreline stop and a private property owner’s rights begin? That ordinary high-water mark, caused by the daily action of waves, is usually easily discernible on oceanfront areas with strong tides. But it isn’t always so simple to define on inland lakes, including the Great Lakes, where shorelines can vary widely over the years.

The U.S. Supreme Court will soon decide whether it wants to answer that question, with ramifications for access to thousands of miles of Great Lakes shoreline, across Michigan and other Midwest states.

The case the highest court might consider goes back to 2010, when Long Beach passed an ordinance adopting the Indiana Department of Natural Resources’ administrative boundary — which separates state-owned Lake Michigan beaches from private, upland portions of the shore.

Then-lakefront property owners in Long Beach, Donald and Bobbie Gunderson, along with other waterfront owners, protested the declaration, claiming it infringed upon their private property rights. After failing to change the rule at the administrative level, the Gundersons sued the State of Indiana and its DNR in 2014.

The couple asked the trial court to rule that the public had no rights to “any land abutting Lake Michigan.” The state, in turn, along with intervening public advocacy groups, requested the trial court declare that Indiana holds the disputed beach in trust for public use.

The trial court sided with the state, declaring that when Indiana became part of the U.S., it received, and held in trust for the public, all lands below the ordinary high-water mark, regardless of whether the land is temporarily not covered by the water — a so-called public trust doctrine whose origins date back to ancient Rome.

The Gundersons then appealed to the state Court of Appeals, which upheld the public trust standard; and then again to the Indiana Supreme Court, which affirmed last year the “ordinary high-water mark” standard for Lake Michigan beach access. That prompted the Gundersons’ request to the U.S. Supreme Court.

“This case presents the question of who owns thousands of miles of beaches on the Great Lakes,” the Gundersons’ attorneys state in a writ of certiorari to the U.S. Supreme Court, or request that the court take up the case.

“Do the beaches belong to the government, or instead to the private landowners whose deeds include the beaches, and who have long looked after them and paid taxes on them?”

The Indiana Supreme Court’s determination of what constitutes the ordinary high-water mark, including shoreline areas where wave action has removed upland grasses and plants, was “an apparent attempt to justify government claims to every inch of sand on the beach,” the Gundersons’ attorneys stated.

“In doing so, Indiana has claimed title to a huge swathe of scenic and valuable real estate that private landowners had thought was theirs.”

A very similar case in Michigan sided with the public’s right to access the Great Lakes shoreline. The Michigan Supreme Court in 2005 ruled that the public had the right to walk along the shores of the Great Lakes on land below the ordinary high-water mark, as that area is considered part of the lake bottom lands that are held in trust for citizens.

Michigan’s ruling stemmed from a 2001 lawsuit brought by Joan Glass, who owned a cottage in Greenbush in Alcona County, just across U.S.-23 highway from Lake Huron. Glass’ property deed from her purchase in 1967 included a 15-foot easement on the lakefront property across the highway from her house, to gain access to the lakeshore.

But decades later, shoreline property owners Richard and Kathleen Goeckel began having frequent disputes with Glass, over both her use of the easement and her strolls along the shoreline in front of their property. The Goeckels’ property deed specified one of their boundary lines as the “meander line of Lake Huron.”

A county circuit court sided with Glass’ right to access. The Goeckels appealed, and appealed again when the state Court of Appeals affirmed the lower court’s ruling.

On July 29, 2005, the Michigan Supreme Court ruled that the general public has the right to walk along the shore of Lake Huron on land below the natural, ordinary high-water mark, and that walking the lake shore was a traditionally protected public right.

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“We’ve always been people who have enjoyed the Great Lakes, and (Joan Glass) didn’t want that taken away from anybody,” Frederick Glass, 58, said of his mother, who died in 2010.

Frederick Glass said he remembered visiting the Greenbush cottage when he was 4. It became his mother’s full-time residence after she retired in the early 1990s, and he now lives in the home.

“At first, she was fighting for her original rights to cross and use the lake,” he said. “That’s when her attorney looked into it, and she wanted to fight that fight for everybody to be able to have access to the beachfront.”

The Goeckels, and their attorneys, could not be reached for comment.

Joan Glass’ attorney, Pamela Burt of Harrisville, hopes the U.S. Supreme Court doesn’t take up the Indiana case.

“It should (already) be the same law of the land in all Great Lakes states,” she said. “The U.S. Supreme Court has already articulated the same rule about state sovereignty over its waters to the ordinary high-water mark, period. The federal law on this matter is so well-settled in my mind.”

But Patrick Wright, vice president for Legal Affairs for the Mackinac Center for Public Policy, a nonprofit think-tank based in Midland, has expressed concerns about the Michigan Supreme Court’s 2005 ruling, and said there are a number of questions that the U.S. Supreme Court could help clarify.

“The question is, is it the (private lakefront owners’) property?” he said. “Should people be able to stroll through your backyard if they want to be bird-watching? What are people’s rights to exclude that? And if the public is essentially going to be using somebody’s private property, should (the owners) be compensated for that?”

The U.S. Supreme Court set a deadline of last Friday for filings on the Gundersons’ request. When it might decide whether to have the full court review and rule on the case is unclear.

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