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



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Enviro-Mich message from "Wil Cwikiel" <wil@watershedcouncil.org>
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Hello Enviromich Readers:

I am writing in response to the thoughtful comments criticizing the
press release that I wrote and was posted by Tip of the Mitt Watershed
Council yesterday. 

First, Ms. Burt made a comment about "what the Watershed Council is all
about."  We are "all about" trying to employ sound science and policy to
protect the lakes, rivers, wetlands, groundwater, and Great Lakes in
Michigan.  Our intention with this particular press release was to
clarify the misinformed "spin" put out by a group of shoreline property
rights advocates that claimed shoreline property owners "own to the
water's edge."

As we all know, attorneys often disagree-and this helps to ensure a
vigorous and democratic debate about civil liberties and personal
rights. Our staff attorney and executive director, Gail Gruenwald,
interprets "exclusive use" in the same way as the Court of Appeals did
in the Glass v Goeckel case, as well as Frank Kelly's 1978 A.G. Opinion.
However, she does feel that the opinion did not clearly articulate the
state's interest in regulating resources along the shoreline and the
public trust doctrine and would support clarification by the Supreme
Court.

The Watershed Council stands by our interpretation of riparian law and
exclusive use, however, that doesn't mean that we don't support and
honor the custom of walking along the Great Lakes shoreline.
Furthermore, we agree with Ms. Burt that this particular issue of
pedestrian access along the shoreline has not been adjudicated and that
an A.G.'s opinion, though useful guidance, is not binding.

The public trust doctrine is ever-evolving. Many states interpret the
public trust doctrine to include pedestrian access along the shoreline.
The Great Lakes are indeed a treasure and birthright for residents of
the Great Lakes State. It would be fantastic if all citizens could be
able to walk along the shoreline. We support the efforts of Ms. Burt and
her client to push the envelope of public use and enjoyment of
Michigan's spectacular coastlines.

Sincerely,

Wilfred Cwikiel, Program Director
Tip of the Mitt Watershed Council

Wil Cwikiel, Program Director
Tip of the Mitt Watershed Council
426 Bay Street
Petoskey, MI  49770
Phone: (231) 347-1181 ext. 115
FAX: (231) 347-5928
e-mail: wil@watershedcouncil.org

-----Original Message-----
From: Pam Burt [mailto:pb@wabpc.com] 
Sent: Wednesday, May 19, 2004 9:36 AM
To: enviro-mich@great-lakes.net
Subject: E-M:/ Court Reaffirms Balance Between Public Trust and Riparian
Rights
Importance: Low

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

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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