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

Enviro-Mich message from "Pam Burt" <pb@wabpc.com>

As the attorney for the plaintiff in this Michigan Court of Appeals decision, I was surprised and disappointed by Chris Grubb's commentary on the case.  The Tip of the Mitt Watershed Council's position is out of pace with what I thought that Council was all about.

Because this case may well be heard by the Mich Supreme Court, I will not dive into the legal issues in depth.  Suffice it to say that the right of the public to walk the shores of our Great Lakes has never been squarely addressed by the Michigan Courts until now.  The Attorney General opinion cited by Mr. Grubb is not binding precedent on the courts, and was not mentioned in the Court of Appeals decision.

The Mich Court of Appeals relied principally upon what I view as a tortured reading of the Hilt case decided in 1930 by the MI Supreme Court.  In doing so, the court ignored a venerable body of law on the Public Trust Doctrine extending back centuries to the law of the sea under British common law.  The U. S. Supreme Court ruled that this law was applicable to the Great Lakes (our great "inland seas") in a series of cases decided a century ago.

Like Ms. Gruenwald of the Tip of the Mitt, I too am a Great Lakes riparian owner -- on Lake Huron.  In northeast Michigan where my elderly client and I live, it has been the custom of the public to walk the shore of Lake Huron for decades, as conceded by the defendant in our case.  We have not done in the firmly held belief that it is our right, and not at the whim of private property owners.  

For the Court of Appeals to hold that we have all been trespassing on private property rights all these decades strikes a real blow to all of us who believe in the principle that certain natural resources have such great importance to the people as a whole that they should never be made the subject of exclusive private use.  

The long stretches of sandy Great Lakes shoreline with which Michigan is blessed are a gift of nature to all the people. In my experience, it has always been the custom for the public to walk these natural highways of our beautiful inland seas, along the shores of Lake Michigan, Lake Huron, and Lake Superior.  That the people have done so, within their rights, was the conclusion of The National Public Trust Study by the Coastal States Organization in 1990, which included the Chief of the Great Lakes Shoreland Section of MDNR on its steering committee. 

These are difficult political times for everyone who cares deeply about the Great Lakes.  I am saddened that there are those among us who support depriving the public of yet another valuable right.

Pamela Burt, Attorney
Harrisville, Michigan
(T) 989-724-7400
(F) 989-724-7100
email:  pb@wabpc.com 


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