EDITORIAL: The lake belongs to everyone and so does a bit of the beach

A nasty little dispute in the Village of Shorewood is exposing the perversity of a century-old Wisconsin Supreme Court decision while offering a glimmer of hope it could be replaced with fair and reasonable case law governing access to bodies of water held in the public trust.

Ozaukee County has a significant interest in the outcome of the dispute, which is now in the Shorewood municipal court. The court case is about beaches, and this county has 25 miles of them along its Lake Michigan shoreline.

A UWM professor is fighting a $313 trespassing citation issued to him by Shorewood police for doing what hundreds of people do routinely on the Lake Michigan shoreline in the cities of Port Washington and Mequon and the towns of Port Washington, Belgium and Grafton—walking on a beach in front of private property.

The owner of lakeshore property adjacent to Shorewood’s public Atwater Beach told police that Paul Florsheim, a professor in UWM’s Zilber College of Public Health, was trespassing when he walked from the public beach onto the beach in front of his property. Florsheim was ticketed.

It was a meanspirited performance by both the property owner and the police, but it was in keeping with a flawed 1923 Supreme Court ruling that owners exclusively control land to the edge of bodies of water and others may not set foot on even the ribbon of space between the high-water mark and the water without their permission.

The decision upended the historic public trust doctrine, which is generally interpreted to mean the public owns the shore between navigable water and the ordinary high-water mark and is the basis for water-access law in other states. 

On Michigan’s 3,288 miles of Great Lakes shoreline on the coasts of Lakes Superior, Michigan, Huron and Erie, the public has the right to walk on privately owned beaches between the water and the high-water mark. That right was reaffirmed in 2005 Supreme Court decision citing the public trust doctrine.

In the other state with Lake Michigan shoreline, Indiana, the Supreme Court in 2018 enshrined the right of the public to walk at the edge of the water with a definitive ruling that overrode private deeds claiming ownership all the way to the water.

The 1923 case that makes Wisconsin an outlier on beach access was not even about beaches. The land at issue was a farm pasture that went to the edge of Lake Winnebago. In what was apparently a spat between neighbors, the owner sued another man for trespassing on his land. The lawsuit, appealed to the Supreme Court, was resolved with the unfortunate precedent that resulted in a Shorewood beach walker being given a municipal citation with a hefty fine for trespassing.

The defective case law used to justify that harsh treatment of a citizen who was merely taking a walk has rarely been tested in the many decades it has been in Wisconsin law books. That isn’t surprising. Most police agencies are discerning enough to avoid getting involved in petty landowner disputes and most beach property owners understand that bodies of water like Lake Michigan belong to everyone and respect the desires of others to enjoy them by walking on the wet sand at the water’s edge. 

That understanding is evident year-round on the sandy beaches of Port Washington, which in this low lake-level period are the widest they have been in many years. Walkers start at the entrance of the north or south beach and after less than a mile pass from public to private property, though there are no signs or indications of the boundaries.

Confrontations with beach owners almost never happen. Rather, there are exchanged salutations with owners who themselves are beach walkers and sometimes short conversations that tend to allude to the shared appreciation of the beauty of the water and the beach.

This arrangement rests on the mutual understanding that walkers are merely passing by close to the water and not lingering on private beaches to, say, have a picnic or play with a frisbee.

At a Shorewood municipal court hearing, Florsheim said, “The village is acting unconstitutionally by trying to deny me and others access to walk on a waterway that belongs to all of us.”

If the judge, who is expected to rule before the end of the year, does not agree, the case should be appealed as far up the judicial ladder as it needs to go to reverse the Wisconsin law that wrongly denies that the water and the right to access it belong to all of us.