EDITORIAL: An old common-sense treatment for beach stress

It wasn’t that long ago that the beach at the lakeshore outlet of the rugged ravine in rural Grafton that was colloquially known as the lion’s den was a remote littoral walked on only by a few hardy hikers and lake lovers. 

Today the beach is a destination for some of the more than 100,000 people per year who visit what is now the Ozaukee County park named the Lion’s Den Gorge Nature Preserve.

Beach stress has been growing apace with beach popularity.

Nearby property owners are upset over park visitors traversing their beaches and are complaining to the county, posting warning signs, summoning the Sheriff’s Office to deal with people they regard as trespassers and even, in one case, putting up a barrier from the base of the bluff to the water of Lake Michigan.

Walkers who venture beyond the half-mile park beach and cross a beach connected to private property are affronted by the restrictions and some have been sounding off in harsh terms on social media.

The conflict is not surprising.

Some homeowners living on valuable land with lake frontage and paying high taxes for the privilege consider their beaches private space not to be touched by anyone without the owner’s permission.

Beach walkers believe they have a right to access the lakes and oceans that belong to them as much as to beachfront property owners by walking at the water’s edge.

These are age-old disputes seen at one time or another almost everywhere there are beaches. Most of them are resolved with guidance from a legal principle that dates to Roman law, was written in the Magna Carta, affirmed in American law in the mid-19th century and established in the Wisconsin Constitution in 1848—the public trust doctrine.

That principle holds that natural resources such as the Great Lakes and oceans belong to the public and are held in trust by government for the benefit of everyone. All of the states on the coasts of the Atlantic and Pacific Oceans, the Gulf of Mexico and Great Lakes cite the doctrine in determining public access to navigable water.

With but a few exceptions, those states interpret the public trust doctrine to mean that the public may walk on lake and ocean beaches fronting private property, but not without guidelines. Generally, those rules address the privacy of property owners by requiring the public to walk close to the water to cross private beaches without stopping to, say, set up a canopy tent, make a campfire, play with a frisbee or engage in any other activity that establishes a presence on the beach.

More than an arcane legal principle, it is the basis for an agreement between beach owners and walkers that has resolved disputes everywhere there are beaches, including those that stretch for miles north of Port Washington in front of scores of homes that are even more sensitive to privacy issues because they are at lake-level, unlike those in the Lion’s Den area that are atop steep bluffs out of sight from the beach.

That common-ground understanding can work in spite of an unfortunate complication caused by a flawed Wisconsin Supreme Court decision more than a century ago holding that owners exclusively control land to the edge of bodies of water and others may not set foot on it without their permission.

That 1923 case was not even about beaches—the issue was a farm pasture that extended to the shore of Lake Winnebago—but it makes Wisconsin an outlier on beach access. The seven other Great Lakes states, including Michigan with its 3,288 miles of coastline on Lakes Michigan, Superior, Huron and Erie, recognize that the public has the right to walk on beaches between the water and the high-water mark.

The Lion’s Den contretemps are, of course, exacerbated by the growing numbers of people attracted to its beach, and that means the park owner, Ozaukee County, has a role to play in settling things down. That should include informing visitors in prominent signs, park literature and the county website where the public beach ends and private property begins.

For its part, the county Sheriff’s Office, thrust into the dispute by complaining property owners, is taking a sensible approach to the situation, telling beach walkers they should stay on “wet sand or in the water when walking along the shoreline” and instructing owners they cannot post signs or erect barriers beyond what is known as the ordinary high water mark.

That should be established as Wisconsin’s law of the land and water, which could be the result of a case now being appealed in Milwaukee Circuit Court that is challenging the defective 1923 case law as a violation of the public trust doctrine as it applies to beaches.

That finding, beyond its legal implications, would be a solid basis for the understanding that the glorious resource of Lake Michigan belongs to all of us and we all have the right to partake of its beauty from beaches—within reasonable limits.