A small stretch of Wisconsin’s Lake Michigan shoreline has been getting a lot of attention lately.
It’s in Shorewood next to Atwater Beach. The Village of Shorewood cited an avid beach walker for walking on what it considers private property along the lakeshore. But the beach walker, Paul Florsheim, is challenging that policy in court, saying the coast should be open to the public.
Variations on this debate have been going on for over a century.
Interpreting the Public Trust Doctrine
The public’s right to access our shared rivers, streams and lakes is rooted in something called the Public Trust Doctrine.
David Strifling, director of Marquette University's Water Law and Policy Initiative, says its origins date way back to Roman times. Originally the doctrine, ”Mostly focused on transportation and trade and commerce and those sorts of purposes," says Strifling. "But as we’ve advanced through time, it has been expanded to other rights as well, like recreation."
“When we look at Wisconsin, really it starts with English common law through to the Northwest Ordinance which governed the Northwest Territory before Wisconsin even became a state," Strifling says. "And then that language from that document was incorporated into the Wisconsin Constitution."
The language of the Public Trust Doctrine is unwieldy. Here’s a taste: "[T]he river Mississippi and the navigable waters leading into, and the carrying places between the same, shall be common highways and forever free."
“Right, so it’s pretty vague. I think the key difficulty is how do we operationalize what it means to be common highways and forever free. Does it mean access? Does it mean the state can’t sell that land or give it to a private party? Does it mean there’s some restriction on what a private property owner can do with their land?” Strifling says.
It's the Wisconsin Legislature’s responsibility to uphold the Public Trust Doctrine.
In turn, “Our Legislature designated the DNR [Department of Natural Resources] as our trustee for the Public Trust Doctrine and lands and the DNR has to figure out exactly what that means for the public to have that right on a day-to-day basis,” Strifling says.
That’s more easily said than done.
Strifling says the Village of Shorewood case is a variation on decades-long conflicts that have resulted in a boatload of court cases. They swirl around private property owners’ rights versus public rights.
“One of the most important rights that a property owner has is to exclude others from their property," Strifling says. "What we have here is a situation in which that private property right. the right to exclude others is clashing — or at the very least colliding — with the public’s right to access navigable waters. And the question is how are the courts going to draw those lines between where the private right ends and the public right begins and vice-versa."
So far, Lake Michigan shoreline clashes haven’t risen to the Wisconsin Supreme Court.
“And it seems hard to believe, right, because it’s such a relatable scenario. There you are walking along the beach. Suddenly you turn to the side and see there are private homes there and you wonder, 'Do I have the right be here or not?'” Strifling says.
What other states have decided
Some of our fellow Lake Michigan states have answered this question. Both Indiana and Michigan state supreme courts ruled in favor of public access.
“Public access to that dry beach as long as it’s below the ordinary high-water mark,” Strifling says.
He’s watching a yet-to-be-decided case in Jefferson County he thinks could affect the Shorewood case, although, “The situation there is not quite the same as the Shorewood scenario," Strifling says.
It has to do with a stretch of the Rock River when it was flooded, and water rose above its usual level along the shore.
“The property owner there is complaining that boaters even in some cases, not just walkers, have actually gone significant distances above the orindary high-water mark onto what he considers to be his private property,” Strifling says.
Wisconsin’s Court of Appeals is considering the case. Strifling thinks the outcome could be significant.
“If the court limits its analysis to 'This is only true when the water rises above the ordinary high-water mark,' then that would not affect the Shorewood case. But I think it’s going to be pretty difficult to narrow the ruling in that way without just saying ‘Do we look at the ordinary high-water mark or the level of where the water is right now,’” Strifling says.
Back along the Lake Michigan shoreline, Shorewood’s municipal judge plans to announce her ruling during the first full week of January.
