EDITORIAL: Draw a legal line in the sand

The lame Wisconsin Supreme Court precedent that has caused confusion and controversy over beach rights for more than a century did not get the burial it deserved in a court case decided last week, but it got the next best treatment—it was ignored.

In Milwaukee County Circuit Court, Judge J.D. Watts overruled a municipal court decision that found a man who walked on a Lake Michigan beach past private property in Shorewood guilty of trespassing. 

Judge Watts cited the public trust doctrine in affirming the public’s right to walk on beaches. He brushed off the 1923 supreme court decision that canceled that right as providing “little guidance.”

The Milwaukee decision deals only with the Shorewood case, but it reverberates in Ozaukee County, which has 25 miles of Lake Michigan beach and a hot controversy over beach rights going on in the Town of Grafton.

In Shorewood last summer, Paul Florsheim, a university professor who walked frequently on the beach, was issued a $313 ticket by village police at the behest of a property owner who claimed Florsheim was trespassing when he walked on the beach in front of his property. 

The village police department’s faulty judgment in taking the property owner’s side in a dispute over public access to a natural resource was compounded by a municipal court judge who cited the dubious precedent in finding that Florsheim had violated a trespassing ordinance.

The Milwaukee Circuit Court found the arrest and municipal court decision invalid on grounds that should be taken as guidance by other jurisdictions in beach disputes. The ruling affirms that, within reasonable limits, the shore of Lake Michigan is public land.

That principle derives from the public trust doctrine, which is taken to mean that navigable bodies of water like Lake Michigan are held in trust for the public and must be accessible by the public.

Though the doctrine is a foundation of the Wisconsin Constitution, it was rejected by a misguided state Supreme Court in a long-ago case that was not even about beaches, but rather was a dispute over pasture land fronting on Lake Winnebago. The resulting ruling has been interpreted to mean the public has no right to walk on beaches, but can only walk in the water adjoining the shore.

That defective case law has cast its shadow over a dispute about public access to beaches adjoining Lion’s Den Gorge Nature Preserve in the Town of Grafton. Nearby residents have been demanding action by Ozaukee County authorities to prevent park visitors from walking on beaches in front of their properties. Warning signs have been posted and in one case a rope barrier extending into the water was installed.

Wisconsin Department of Natural Resources  agents ordered the barrier moved and determined the location of the ordinary high-water mark on the beach adjacent to the public nature preserve beach, an important factor in applying the public trust doctrine, but then confused the issue with a statement reminding beach walkers to “keep their feet wet.”

The public trust doctrine, as applied by other Great Lakes states and most states on ocean coasts, does not require people to walk in the water. It means that members of the public have the right to walk on the narrow strip of dry land between the water’s edge and the ordinary high-water mark.

In his decision, Watts explained: “Florsheim’s walking below the ordinary high-water mark on the lakebed of Lake Michigan is a protected activity under the Public Trust Doctrine . . . and forever free.”

That tenet also protects owners’ property rights—by drawing a line between private land and land open to public use. That line is the high-water mark, and beach space behind it is private property off limits to public use. People have the right to walk close to the water, but not to, for example, set up chairs and umbrellas, have picnics or campfires, play with a frisbee or walk their dog on the land above the high-water mark.

Homeowners near Lion’s Den, which attracts thousands of people a year to its narrow stretch of Lake Michigan beach, have experienced some of that. This presents a challenge to Ozaukee County, owner of Lion’s Den and the soon-to-open Clay Bluffs Cedar Gorge Nature Preserve, also on the lakeshore, to educate its visitors on beach protocol.

Signs, printed handouts and instructions by park personnel, along with website information, should make clear the limitations on beach access.

That effort, unfortunately, will be hampered by Wisconsin’s legal ambiguity over beach rights. The state law that wrongly denies that access to navigable waters from beaches is a public right must be reversed by the Court of Appeals or the Supreme Court. A Milwaukee judge has shown the way.