Beach access ruling reverberates in Ozaukee

In a case that has bearing on a Town of Grafton dispute over where the public is entitled to walk when it comes to privately owned lakefront, a Milwaukee judge has dismissed a case against a man who was ticketed for trespassing on a Shorewood beach, saying his action was protected by the state’s public trust doctrine.

Milwaukee County Circuit Court Judge J.D. Watts on Sept. 1 reversed the decision of a municipal judge who, citing a 1923 Wisconsin Supreme Court case, found Paul Florsheim guilty of trespassing when he left a public beach and walked onto a private beach. 

Florsheim appealed the municipal judge’s decision to Milwaukee County Circuit Court, saying he hoped the case would make its way to the Wisconsin Supreme Court so the court could weigh in on public beach access in the state.

Watts, in his decision, wrote, “the strip of land below the (ordinary high water mark) is lake bed owned by the state of Wisconsin,” and that the state’s property extends to that point along Lake Michigan and that Florsheim’s stroll below that mark was “a recreational activity.” 

Florsheim, a professor at University of Wisconsin-Milwaukee, told Wisconsin Public Radio he felt “vindicated” by Watts’ decision.

Florsheim argued that the state’s public trust doctrine protects his right to walk along the shoreline up to the ordinary high water mark. 

Florsheim’s case is of interest in Ozaukee County due to recent clashes between owners of lakefront property and beach walkers, especially in the Town of Grafton near Lion’s Den Gorge Nature Preserve, the county’s busiest park.

This summer, neighbors of the preserve complained that beach walkers coming from the nature preserve are trespassing, littering or otherwise disturbing their property.

Homeowners went so far as to stretch ropes across the beach from the base of the bluff into the water and posted signs to ward off hikers.

As a result, homeowners were vilified on social media and their beach properties have been littered with trash, campfires and even feces, they say.

The homeowners appealed to county officials, who posted their own signs alerting walkers to the limits of public property.

More recently, officials with the state Department of Natural Resources visited the property and deemed the rope line a structure that required a permit to extend into the water and ordered it removed.

They also marked the location of the “ordinary high water mark,” which the DNR website defines as “the point on the bank or shore of a waterway up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation or other easily recognized characteristic.”

A press release last week from Midwest Environmental Advocates, who represented Florsheim in the case, said the decision from Watts did not overrule the 1923 decision, which involved property on Lake Winnebago, but said it provided “little guidance” in Florsheim’s case.

In a statement, Michael Greif, an attorney with Midwest Environmental Advocates, said, “The dismissal affirms that the shore of Lake Michigan is public land, and, while the direct impact of the decision is limited to the dismissal of Paul’s ticket, we believe the principles affirmed in this case should be broadly applied.”

Mark Harris, one of the Town of Grafton homeowners, said Tuesday he doesn’t believe the Shorewood ruling changes anything.

“It doesn’t change what the actual law is. The law still stands,” he said.

He said the rope line that landowners had raised had been “adjusted” so that it didn’t go beyond the ordinary high water mark, delineated by a slight ridge in the beach.

“It remains up and they have been informed and we sent them (the DNR) pictures,” he said. 

Harris said animosity between landowners and beach walkers has lessened in recent walks.

“I was out in the yard yesterday on the bluff and saw some people down below walking in the water. I yelled ‘hello’ and waved to them and they waved back,” he said. 

On the other hand, not everyone is so friendly, he said.

“Someone decided to put their eye right up to the camera we have set up on the beach. They were  trespassing,” he said.

In another instance, five or six people were on his beach recently at 3:30 a.m.

“They weren’t trespassing because they were in the water, but it was after (Lion’s Den) park hours so we sent it to the sheriff.”