Legal skirmishes in Ohio and Michigan are reviving debates over whether those who own Great Lakes shoreline properties exclusively control their waterfront land or whether the public can access and travel along the coast. The same legal doctrine at issue in these battles is a central focus in current debates about n a time of potential c ommercialization of Great Lakes water.
The fight in Ohio stems from a court ruling that private landowners own and control property up to the water’s edge, rather than the ordinary high-water mark. The latter would mean that in periods of low water, any person could traverse the exposed land or beach without landowner permission. The ruling, however, requires the public literally to keep its feet wet if passing along the shoreline. Last week, Ohio Attorney General Richard Cordray sought to intervene in the case on behalf of the public.
In Michigan, the battle is over whether road endings at the Great Lakes adjacent to private property afford the public unfettered access for beach activities or merely the right to traverse the water’s edge.
The common law doctrine of public trust has supported the public’s right to access shoreline in the Great Lakes while requiring states to permit private use or dispose of the land only when that can be done without “substantial impairment” of the public interest. This has held true since a famous 1892 U.S. Supreme Court case, Illinois Central v. State of Illinois.
The public trust doctine has recently been invoked by Great Lakes advocates to call for correction of the 2008 Great Lakes Compact, which limits exports or diversions of Great Lakes water (which contain about 18% of the world’s available surface freshwater). The advocates say the Compact has the unintended impact of permitting private ownership and sale of Great Lakes water because it defines water removed from the Great Lakes system and intended for consumers as a product not covered by the diversion limitation of the Compact. Other environmental groups, the Council of Great Lakes Governors and the business community say the Compact does not need to be clarified on this score.
Photo credit: Michigan Environmental Council.