Beach Battle

By Steve Eatough, Treasurer

Who owns, and who controls, the Lake Michigan beaches in Wisconsin? These are actually two different questions. The Wisconsin Constitution provides the State with direct authority over navigable water through the Public Trust Doctrine. The citizens of Wisconsin own the land that is held in trust for them by the Legislature. Under a 1923 Wisconsin Supreme Court ruling, however, private property owners adjacent to the shoreline are granted “exclusive” use of the beach, even though the land is publicly owned. These rights are called Riparian Rights. The Court furthermore held that Wisconsinites may walk along the shoreline only if they remain in the water.

However, a University of Wisconsin-Milwaukee Professor, Paul Florsheim, is currently challenging that Supreme Court decision. Florsheim grew up just a few houses away from the Atwater Beach in Shorewood. Another beach resident, who lives in a prominent lakeside home, recorded him walking on the beach adjacent to his house. The resident then called the police. Florsheim was eventually fined $313 for trespassing after walking past the owner’s signs marking his private property that lies just north of the Shorewood Public Beach. He had ignored prior warnings from the police. Municipal Judge, Margo Kircner, found Florsheim guilty and fined him the $313 for trespassing. The Judge cited precedent that limits public access along privately controlled Lake Michigan shoreline. Florsheim was told that the fine would be waived, if he promised to no longer walk on the beach that the resident was arguing was private property. Florsheim replied, “No, I’d rather have my day in the Court. It’s one of the most wonderful things about Milwaukee, about the whole area that are the Great Lakes.”

In Indiana and Michigan, at least, the law currently allows the public to walk along the shore, on the strip of beach deemed to be in the public domain. Specifically, that strip of land is located between the actual waters and the normal high-water mark. Alan Ackerman, a well-known Michigan public rights attorney, argued that in Michigan there is no question that the lakes themselves and the strip of land below the ordinary high-water mark are part of the public domain. Ackerman said, “It’s not private property, never has been, and the owners of nearby lots with lake views have no right to claim otherwise.” That certainly does not mean the Wisconsin Court will necessarily agree with him. The 1923 Riparian Rights ruling would need to be overturned, or at least modified.

In Michigan, the Supreme Court eventually ruled in favor of the public, giving them the right to walk on beaches as close to the water as possible. A Judge is expected to rule on this Wisconsin case by the end of the year. However, more than likely, this case may ultimately end up being decided by the Wisconsin Supreme Court.

Florsheim says he believes it’s simple; enjoying Lake Michigan shoreline should belong to everyone. “It’s given to us through the Public Trust, and I think it’s really important we hang on to it”.

As I’ve owned shorefront property in Door County, and I enjoy walking on the beach, my suggestion to the Court is that people be allowed to traverse the beach, providing they keep moving. I certainly understand that buyers, who invest hundreds of thousands of dollars or perhaps millions, in a dream home overlooking Lake Michigan water, may want to keep the views to themselves, however, that does not, and cannot, overrule the long legal tradition that major bodies of water and adjacent public strips of beach, whether they’re in Indiana, Michigan, or Wisconsin, belong to the public.

As long as everyone is reasonable and considerate, there will be no problem. But perhaps that’s asking a lot in today’s contentious environment?

This article was taken and adapted from articles written by Noe Goldhaber at Wisconsin Watch and Duaa Israr at CBS News 58 in Milwaukee.