Village Of Shorewood Messing With State Law By Fencing Off Lakefront Access
Come on, Shorewood: Knock it off.
The one-mile-square village of about 15,000 people that is immediately north of the City of Milwaukee's East side wants to install fencing to prevent people walking north or south onto its perhaps block-long Atwater Beach below Lake Drive and along Lake Michigan, but how the Village wants to go about it looks like a clear violation of the Public Trust Doctrine.
The fencing, as proposed, would meet the demands of nearby residents by also keeping people on the beach from being able to walk on to shoreline property that is privately-owned as yards work their way down to the lake.
The Public Trust Doctrine is the long-standing Wisconsin legal standard dating to the Northwest Ordinance of 1787 that mandates unfettered public access to waterways, forbids what the Village wants to do and requires the DNR to intervene on the side of public access.
Read what the DNR says about the Public Trust Doctrine on its webpage devoted to the law and its history, here.
The Public Trust Doctrine was at the core of years of disputes with Summerfest, resolved when a walkway was built to circumvent its illegal blockading of lakefront access.
Why Shorewood wants to go down this path is beyond understanding. You can't treat your piece of lakefront as if it were community property suitable for gating.
Just like you can't build a fence across the sidewalk to stop people from walking in front of your house - - even if they are noisy and toss bottles and trash in the yard.
Let's hope Village legal advisers or County officials talk sense to the Village Board before it runs up an unnecessary legal bill and earns the wrath of anglers, hikers, conservationists and the general public.
4 comments:
We have been in discussion with the Village about this issue, and that the public trust doctrine, and recent case law around the Lakes, has maintained that the area of the beach from the Ordinary High Water Mark to the waterline is public and can't be blocked by fencing or other measures. The shorelines of the Great Lakes are a public trust resource that is managed in trust on behalf of all residents by our local and state government. I can't believe that DNR would approve this, but if they do, the action would be legally challengeable.
There is case law in both MI and OH that states the public has the right to walk on a private beach from the waterline to the OHWM. In the past, the interpretation was that the public could walk on private beaches if one foot was wet or on wet sand (this is still the case for rivers for example) but the courts have largely exploded that interpretation when applied to GL beaches on the MI side of Lake Michigan and on Lake Erie. The two big cases are linked below.
Merrill vs State of OH: http://www.sconet.state.oh.us/rod/docs/pdf/11/2009/2009-ohio-4256.pdf
Glass vs. Goekel in MI: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/SCT/20050729_S126409_100_glass4mar05-op.pdf
Just trying to get people to think twice before they leap.
Wow, I have finally found an issue I can agree with James on. In serious, this is not a partisian issue, this is what is right, and Shorewood should not be building a fence.
However, I would bet that most of the people who want this fence in Shorewood, would call themselves politically liberal.
I don't care if they are libertarian vegetarians.
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