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E-M:/ Court Reaffirms Balance Between Public Trust and Riparian Rights



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Enviro-Mich message from "Chris Grubb" <chrisgrubb@watershedcouncil.org>
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For Immediate Release

May 18, 2004
 
Contact: Wil Cwikiel
Program Director, Tip of the Mitt Watershed Council
(231) 347-1181 x. 115
 
Court Reaffirms Balance Between Public Trust and Riparian Rights
 
Petoskey, MI - Just in time for summer, a Michigan Court of Appeals
decision reaffirms rights regarding ownership and use of the Great Lakes
shoreline. 
 
At issue in Glass v Goeckel was the right of someone to walk along the
beach in front of private property. In the decision, the Court
overturned an Alcona Circuit Court decision which ruled that the public
could walk across the shore in the area between the ordinary high water
mark and the water=s edge.
 
Walking along the Great Lakes shoreline is a long-held Michigan summer
tradition. However, as was made clear by Court of Appeals, those walking
the shore do so at the generosity of the folks who own the land adjacent
to the Great Lakes, also known as riparian property owners. 
 
AThe Court=s ruling is consistent with a basic understanding of riparian
rights on the Great Lakes,@ said Gail Gruenwald, Executive and Director
and Staff Attorney for the Tip of the Mitt Watershed Council. Gail is a
Lake Michigan property owner and has provided advice to riparian
property owners for 20 years. AMost shoreline property owners realize
how fortunate they are and don=t mind folks walking on the beach in
front of their property. However, it is important for beach walkers to
know that unless you are in the water, you are technically walking on
land for which the shoreline owner has exclusive use.@ 
 
This Aexclusive use@ concept can be confusing. The Great Lakes are
dynamic--with changing water levels, moving sand, and shifting
vegetation. During low water levels, the Great Lakes recede and expose
land that is under water during high levels. Although just who owns
title to this land and who can access this land has been hotly debated,
the decision is consistent with previous rulings. AThe court's ruling is
exactly the same as then Attorney General Frank Kelley ruled in 1978,
and represents no change in the law of access along the shoreline,@ said
Chris Shafer, Associate Professor at Tomas M. Cooley Law School.
 
In simple terms, the State of Michigan Aholds title to land previously
submerged@ (which is commonly referred to as the land below the ordinary
high water mark (OHWM)) for the reason of protecting the public=s
interest in the Great Lakes. However, the state=s title is subject to
the riparian owner=s exclusive use of the Great Lakes bottomlands when
the water recedes, including the right to bar trespass to the public.
So, the public=s right to navigate and the riparian=s right to bar
trespass moves with the water, but the state=s title stays firm.
 
AIt is important to note that this ruling has nothing to do with
regulation of Great Lakes coastal wetlands,@ says Wil Cwikiel, Tip of
the Mitt Watershed Council Policy Director. Some shoreline property
owners have claimed that the state has no right to regulate so-called
beach grooming activities in Great Lakes coastal wetlands. AI support
the exclusive use rights of the riparian landowner, but it=s important
to note that these rights do not include doing anything that could
impact navigation when the water comes back, or tearing up vegetation or
moving sand around without appropriate permits or compliance with the
law while the water is low,@ said Cwikiel. 
 
So, what does this mean when you take your kids to the Great Lakes shore
this summer? If you want to walk the beach beyond the access point, park
boundaries, or public land, then understand you are walking on public
trust bottomlands of which the riparian owner has exclusive use.
Technically, if you are on the sand, you are trespassing. If you are
ankle deep, you are in public waters and can walk as far as you like.
It=s important to realize that we are all fortunate to be able to
experience the Great Lakes. Be respectful of private property and the
Great Lakes environment by treading lightly on both.
 
-end-
 
 
 
Chris Grubb, Policy Associate
Tip of the Mitt Watershed Council
426 Bay Street
Petoskey, MI 49770
(231) 347-1181 ext. 118
fax: (231) 347-5928
email: chrisgrubb@watershedcouncil.org
www.michiganwetlands.org
 


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