A local man is headed to municipal court in Shorewood Dec. 2 to challenge a claim that he trespassed on a private beach.
The case could serve as a test of just how much access the public has to Lake Michigan’s shoreline. It’s a question that has yet to be definitively decided in Wisconsin.
Shorewood native Paul Florsheim is a professor at UWM’s Zilber School of Public Health.
He says for years, he’s walked the winding path down to Shorewood’s public Atwater Beach, and then headed north, walking the shoreline below homes along Lake Drive.
“I sort of beelined for the shoreline because my understanding has always been that along the shoreline, you can walk,” Florsheim says.
But late last summer, Florsheim’s routine was broken when a homeowner just north of Atwater Beach told Florsheim he was trespassing.
“He was out there and said, 'Did you see the sign?' And I said 'Yeah I saw the sign, and then I ignored the sign because this is the private part of the beach and this is the public part of the beach. And I’m going to walk on the public part of the beach,'” Florsheim says.
Florsheim argues the public part of the beach is everything between the water and the high water mark. The high water mark is the point where the water occasionally rises. Often, it’s where sand ends and vegetation begins.
The homeowner was not happy and complained to the village.
The Shorewood police issued Florsheim a $313 ticket for trespassing. He decided not to pay the ticket – out of principal.
"I really actually want to go to court because I don’t think I was trespassing. I admit that I was walking there but I don’t think that was trespassing,” Florsheim says.
In Shorewood municipal court Dec. 2, Florsheim will argue his case.
“It’s a wonderful thing that people should have access to,” he says.
Village Attorney Anthony Bayer says Shorewood maintains that people owning homes along the lakeshore own everything down to the water’s edge.
Bayer chose not to be interviewed for this story. But in an email to WUWM, he said Shorewood’s policy is consistent with a 1923 ruling by the Wisconsin Supreme Court.
The case, known as Doemel v. Jantz, dealt with a conflict on Lake Winnebago.
Bayer says the court “Concluded that walking on the shoreland between the ordinary high water mark and water constituted trespass. An individual was not, however, trespassing if physically in the water.”
David Strifling, director of Marquette University’s Water Law and Policy Initiative, says that 1923 decision is one of many cases that have been taken up in court regarding public access to Wisconsin shorelines.
“You can take snippets from a lot of them that seem to support one position or another,” Strifling says.
He says while those cases haven’t provided definitive answers, the public trust doctrine protects the public’s right to access the water. Strifling says the doctrine is an ancient tenet.
“Honestly, it goes all the way back to Roman law," Strifling says. "It was incorporated in the Northwest Ordinance, the ordinance before Wisconsin even became a state. And then it was carried forward into the Wisconsin Constitution, which guarantees the right of access to navigable waters."
Strifling says navigable waters are waterways or lakes big enough “that you can float a boat on at any time of the year." He says the Great Lakes would be covered within that definition.
But Strifling says the doctrine lacks details that could help resolve conflicts. For instance, people who motor a boat or walk a shoreline may not know where the public portion ends and the private property begins.
Shoreline walking challenges have been taken up in two other states bordering Lake Michigan, according to Melissa Scanlan, director of the Center for Water Policy at UWM’s School of Freshwater Sciences.
Scanlan says state supreme courts in Michigan and Indiana held that their states’ public trust doctrines protect the right of the public to walk on “Great Lakes’ beaches” (in Michigan's case) and Lake Michigan’s beaches (in Indiana's case), below the ordinary high water mark.
Strifling says conflicts intensify when people own waterfront property. And he says another doctrine of sorts holds a lot of sway: a property owner’s right to exclude. State law provides owners of shoreline property special privileges.
“People buy waterfront property for a reason, it’s expensive for a reason," says Strifling. "What happens in a lot of those cases is that...private expectation of the right to exclude others kind of collides with that public trust right to access Wisconsin’s navigable waters. And that’s what this dispute is all about."
Strifling says he’s among the people who will be closely watching the outcome of the Shorewood beach walking case.
It could be a step toward determining if stretches Wisconsin’s Lake Michigan shoreline are private or public.
