ASKED & ANSWERED: Supreme Court may hear case of public walking along lakeshores


By Steve Thorpe
Legal News

The U.S. Supreme Court may take up a challenge to an Indiana law that allows the public to walk along lakeshores on the strip of beach between the water’s edge and the normal high-water mark deemed to be within the public domain. A similar Michigan case decided by the state Supreme Court in 2005 favored the beach walkers. Alan T. Ackerman is the managing partner of Ackerman, Ackerman, & Dynkowski PC and focuses his practice on property and eminent domain law. He has been an adjunct professor teaching eminent domain law at the University of Detroit Mercy Law School and also an adjunct professor at Michigan State University College of Law. Recipient of many honors, Ackerman is recognized as one of the leading eminent domain attorneys in the country. He received his law degree from the University of Michigan Law School.

Thorpe: Give us some background history on the Indiana, Michigan and other cases.

Ackerman: When individuals buy properties on lakes and streams, the owners frequently believe that they control the property to the water so no one may walk on whatever beach area exists. These owners do not have an understanding that there has been a traditional “high water mark” ownership that is maintained by the public at large.
Owners frequently contest what the “high water mark” is and frequently maintain that their individuals states allow them total privacy to the beaches.

Thorpe: This is a classic collision of rights. Do both sides have a reasonable argument to make?

Ackerman: There is an alleged collision of rights here in this situation.
First, the “high water mark” changes over years given the climate changes and water fluctuations in lakes and streams.
There is the additional question of whether the state law abrogates the federal limitation that the water is controlled by the public to the “high water mark.” The Supreme Court may delineate the authority in a decision.

Thorpe: The “ordinary high-water mark” is often referred to in these cases, but can be harder to define on the Great Lakes and inland lakes. How does this affect the Indiana and Michigan cases?

Ackerman: High water mark is not only in Michigan and Indiana, but throughout the nation. The “ordinary high water mark” under federal law is generally conditioned upon the high water point of the 1789 passage of federal legislation delimiting ownership to the high water mark. Realistically, this has not been applied in jurisdictions such as Indiana and Michigan because they were not states in 1789. In addition, it frequently is not simply a question of what is the “high water mark,” but also at what point in time the high water mark was to be determined. Currently, water is rising and falling in various waterways.

Thorpe: Property owners also make claims about the airspace above their property and the mineral rights beneath it. How do those claims differ from the beach issue?

Ackerman: Owners frequently make claims about the airspace above their property. The notion of airspace ownership is not unlimited. For at least the last 60 years, the courts have determined that aircraft may fly above individual’s property. Yet, when there is a direct interference with the use of the property, such as substantial noise, a claim may arise against the party using an owner’s airspace.
Mineral rights beneath a property are generally owned by the owner. However, if one looks at the deed to their property, they may find that the mineral rights were assigned to third parties prior to their purchase of the land.
This issue of airspace and mineral rights may differ with the beach issue to the extent that the high water mark will rise and ebb over a number of years and is part of interstate commerce.

Thorpe: What are the possible outcomes and implications of a U.S. Supreme Court ruling?

Ackerman: The outcome of the Supreme Court ruling will most likely be that the Supreme Court refuses to make a decision which creates clear, black letter law. However, the precedent in the Supreme Court would lead one to believe that the Supreme Court could go in a different route in two fashions. It could simply hold that the high water mark is a federal limitation, not to be modified by any state enactments.

In the alternative, the Supreme Court could determine that it no longer desires to deal with land use controls as they relate to the high water mark and leave the decision to each individual state.
These issues have created great conflicts in the court’s decision making process and may offer insight as to how federalism, being the distinction of power between the state and federal government, is to be applied in the future.


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