Editorial: Property rights don't end at the beach

The Detroit News

The U.S. Supreme Court could soon take up an Indiana case that effectively claimed all privately owned beaches in the state for public use. This has large implications for Michiganians who own property along the Great Lakes -- and for anyone who has concerns about government intrusion on private property. 

Though all waterways in America are held in the public trust, meaning that they are owned jointly by all citizens, there is no general rule for beaches.

Great Lakes states have largely held that private ownership extended to the water’s edge. But the Indiana court ruled that the ordinary high water mark, determined as the line where vegetation begins, is the limit of a lakefront landowners’ property.

Save our Shoreline, a Michigan non-profit comprised of Great Lakes property owners, and the Whalesback Preservation Fund LLC have filed a brief led by the Cato Institute in support of Don and Bobbie Gunderson, two Indiana land owners who own property on Lake Michigan and want to appeal this decision.

The brief cited a 2005 case, Glass v Goeckel, decided by the Michigan Supreme Court that found Great Lakes owners of lakefront property cannot prevent the public from walking along the lakeshore.

In the defining Supreme Court case in Michigan, the majority of justices held that the ordinary high water mark — the portion on the shore to which the water frequently reaches — is boundary of the public trust, or the area within which the public can walk.

Defining the perimeters of lakefront property is difficult. Because the water’s edge fluctuates continually, the size of each lot changes constantly. Also, erosion over time widens beaches, eating into property owners' land.

The Michigan groups and the Cato Institute held in their brief that the “wet sand” mark should define where land becomes publicly accessible.

At high and low tide, it will vary where the public can tread on each beach, but this solution provides a solid definition that protects landowners and also allows the public some use of the shore.

These decisions by both the Michigan and Indiana Supreme Courts effectively claimed huge swaths of valuable private property for public use. Billions of dollars of land was effectively scooped up and handed over to the public without any compensation for landowners, who pay a hefty price for lakefront views and private lake access.

“What Indiana cannot do... is to convert private property to public property by judicial or administrative fiat,” the brief states.

If that state had claimed eminent domain and paid landowners, the cost would have been immense. And those selling lakefront property would likely have to have their property surveyed to eliminate the beach from the overall dimensions of their land.

Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, worked on the brief along with the Michigan groups and believes this ruling exceeds the scope of the public trust.

“If the government needs the beach for good public use, just compensation should be given,” Shapiro says.

Generally, waterways are considered to be owned jointly by all the public, a tradition that goes back thousands of years. The public trust in America has left the power to determine how beaches operate to each state.

Because of this, Michael Cassar, an attorney who has experience with shoreline property issues, says he doesn’t think the Supreme court will take up this issue -- and will defer to the states.

But given these two decisions, the High Court may need to step in to preserve the long-held property rights of Great Lakes residents.