Weaponizing a Walk on the Beach

The Next Grab for Power

If property rights-advocates aren’t on their toes—and maybe even if they are—the next major expansion of government power in Wisconsin might not arrive as a piece of legislation or as a budget maneuver, or even as a bureaucratic regulation.

It could show up as a man walking on the beach.

I’m not being flip. That is literally the legal vehicle now moving toward the Wisconsin Supreme Court, a Shorewood, Wisconsin, trespass ticket that environmental litigators could well try to convert into a massive expansion of the state’s public trust doctrine, and, consequently, into ever more effective land confiscation.

(The doctrine does need to be reviewed, not to expand it but to narrow its scope and return it to its original jurisdictional lane, and that will be the subject of Parts II and III in the following weeks.)

At issue in this case are two deceptively simple questions: When the water stops, do your public-interest rights stop with it? And, if not, where exactly do they stop?

For the better part of a century in Wisconsin, the answer to the first question has been muddled. The public owns the water, for sure, and has protected rights in them. You can swim, fish, paddle, and float, but what happens when your feet hit dry sand? This is where things get a little nebulous. Courts have established that the state owns the land up to the ordinary high-water mark (OHWM), but the courts have also said you are trespassing once you step out of the water. In other words, it is public land to the OHWM, but the riparian rights of the adjacent property owner take primacy over public rights.

The latter has been true since 1923, even if there is dry sand below the ordinary water high mark, that is, between the mark and the water.

If successful on appeal, the Shorewood case, in which a man walking along just such a strip in the village of Shorewood was found guilty of trespass, would erase infractions for strolling along the water’s edge. It probably should. The problem is, besides resolving an obvious source of tension between public and riparian rights, the case has the potential to impact and even swallow up private property rights well beyond the OHWM—affecting buffer zones, boathouses, cottages, and, for that matter, any land a court decides upsets the public’s “experience” of water.

It all depends on how narrow or broad a higher court opinion would be, and whether a nefarious court would try to take the public trust doctrine to places where the public trust doctrine has never gone before. And, just in case you don’t know it, look up ‘nefarious’ in the dictionary, and you’ll find a picture of the current Wisconsin Supreme Court majority.

Already, the “trespasser” and a major environmental group, Midwest Environmental Advocates (MEA), have appealed the verdict, which tells you how important they think this case is, and the municipal judge in her ruling essentially acknowledged the real audience was not her courtroom but the appellate courts above her.

So environmentalists are paying attention. As Rob Lee, a senior staff attorney at MEA, said, “This case raises fundamental questions about how Wisconsin’s public trust doctrine applies to accessing the Great Lakes, questions the Wisconsin Supreme Court has never answered.”

Whenever an environmentalist says fundamental questions are being raised, they mean they want to take away private property rights. Let’s take a look at how that might happen.

A simple case of trespassing, or not

On the surface, the case is almost absurdly ordinary. It involves a trespass ticket after a Shorewood homeowner, Daniel Domagala, told Paul Florsheim to stay off his beach. Suffice it to say, Florsheim kept walking. Surveillance cameras captured Florsheim continuing to walk on the exposed sand between the OHWM and the water’s edge, and police issued a $313 citation.

Florsheim did not deny the conduct. Far from it. Instead, he argued he had a constitutional right to be there under the public trust doctrine. He further testified that he had been walking the beach for decades and believed it was public.

Florsheim’s argument didn’t carry the day, but his appeal to the Milwaukee County circuit court is the next step in a series of legal proceedings that could go to the Wisconsin Supreme Court, and, given what environmentalists are capable of, that may have been the plan all along.

If I’m right, that plan includes expanding the public trust doctrine to encompass regulation of land above the OHWM, something environmentalists and the DNR have been trying to do for decades, and Florsheim himself has offered tantalizing hints of what he thinks the doctrine should look like, no matter what the constitution says.

“Wisconsin’s lakes and shorelines are some of our most treasured public resources,” Florsehim said in announcing the appeal. “This appeal is about ensuring that the public trust doctrine continues to serve the public—not just as it was understood a century ago, but as it should function today.”

And there you have it. The public trust doctrine should function not as it was designed but as modern progressives think it should function, that is, by destroying private property rights as much as possible.

Margo Kirchner, the municipal judge, didn’t necessarily disagree but said she was bound by earlier court decisions, in particular Doemel v. Jantz (1923), a foundational case governing shoreline rights in Wisconsin. In that case, which Kirchner said is determinative, the Wisconsin Supreme Court addressed virtually the identical issue: “[t]he only question [was] whether a member of the public can legally enter upon and use for the purposes of public travel that strip of land adjacent to plaintiff’s upland, and lying between the ordinary high and low water marks, and constituting what is ordinarily known as the shore, without committing trespass.”

The court answered no. It acknowledged that public uses of navigable waters had expanded beyond commercial navigation to include “fishing, recreation, boating, bathing, hunting, etc., [as] incidents to the rights of navigation,” but it drew a firm boundary, declaring that those rights remained tied to water.

Indeed, Kirchner cited the Doemel court’s finding that “the original purpose of the use of such waters for navigation purposes has never been lost sight of, and, in fact, such use is at the very foundation of the public right ... for in defining the public use the various purposes for which the public waters may be used, besides navigation for commercial purposes, are declared to be incidents to navigation.”

As Kirchner summarized it: “Under Doemel… regardless of what Florsheim could do in the water, he could not walk on the beach without trespassing.”

The only real question was whether case law had modified the Doemel decision over the years, Kirchner wrote. It certainly didn’t in McFarren, a later case that reaffirmed Doemel by declaring that a riparian owner “may exclude the public [from the land between the ordinary high-water mark and the water] but he may not interfere with the rights of the public for navigation purposes.”

Say hello to natural scenic beauty

Still, Kirchner wrote, Florsheim argues that the meaning of navigation and the understanding of the public rights that are protected as incidents of navigation under the doctrine have evolved since Doemel such that walking on the beach is now protected.

Kirchner at least gave the point a nod.

“‘Navigation is a term of art’ in the public trust doctrine context, and is broader than the commonly understood sense,” she wrote, quoting case law. “In the generally understood sense, ‘navigation’ is defined as ‘the science of getting vehicles from place to place,’ ‘ship traffic or commerce,’ and ‘the act or practice of navigating.’ To ‘navigate’ means ‘to travel by water,’ or ‘to steer a course through a medium.’ As Florsheim suggested at trial, in a very broad sense, people navigate websites, and cars have navigation systems or a passenger navigator.”

However, Kirchner wrote, in a constitutional context, the meaning is specific.

“But regarding the public trust doctrine, the commonly understood meaning involves water navigation, though water navigation has expanded to include other activities that are incidents of, or connected to, navigation,” she wrote. “As noted above, Doemel listed fishing, bathing, recreation, and hunting in addition to water travel as protected navigation-related activities.”

Still, Kirchner asserted, to the extent discernible, the various activities considered to be navigation or otherwise protected by the Supreme Court for purposes of the public trust doctrine have been solely water-based.

“In 1930, the Supreme Court, in discussing public rights to navigable lakes and streams, noted that ‘these waters are used by the people for sailing, rowing, canoeing, bathing, fishing, hunting, skating, and other public purposes,’” she wrote. “The statement addressed the use of waters.”

Ah, though, it also slipped “other public purposes” in there. More expansion of the doctrine, and a slight crack in the long-locked door keeping the doctrine water bound. And now the judge—and also all of us—begins to get to the heart of where Florsheim is going with his argument of evolution: his right to natural scenic beauty gives him the right to walk the beach.

“State v. Trudeau took a turn toward Florsheim’s position,” the judge observed. “Trudeau said that public trust rights include the enjoyment of scenic beauty, which arguably could include walking a beach.”

Unfortunately for all of us, if that is the case, the enjoyment of natural scenic beauty has the potential to expand the public trust doctrine beyond merely navigable waters, whether above or below the water line, to non-navigable waters and to lands adjacent to navigable waters. By its very definition, beauty is a combination of qualities that are aesthetically pleasing to the senses. It is an impressionistic circumstance—a walk on the beach, the visual contentment of a pristine shore uninjured by human intervention. More than anything, it is subjective and emotional. If natural scenic beauty is a protected incident of navigation, the ordinary high-water mark can’t contain it.

In this case, Kirchner wrote, the point failed because the Trudeau court pointed to Just v. Marinette County to make its point and that decision did not go nearly so far, not even overturning Doemel and its decision concerning dry sand below the ordinary high-water mark.

“The Supreme Court in Just addressed whether a zoning ordinance that prohibited filling wetlands amounted to a taking of private property or instead was part of the state’s valid police power,” she wrote. “In finding that the ordinance was permissible police power, the Court pointed to the state’s responsibility under the trust doctrine to protect against pollution in its navigable waters.”

And so the state’s responsibility for preserving its navigable waters for use by the public does

not necessarily equate with the public’s right to use the waters, the judge wrote: “Therefore, I do not read the expansion of language about enjoyment or preservation of scenic beauty, as mentioned in Trudeau, … [and other cases] as altering Doemel’s holding.”

Later court cases, Kirchner observed, still referenced the use of “waters,” not land around waters.

“Florsheim points to no Wisconsin case holding that an activity occurring out of the water constitutes navigation or other protected activity under the public trust doctrine,” she wrote.

Do as they do?

Kirchner also reviewed court cases in Indiana and Michigan.

“In each state, the high court has held that the public is legally entitled under the public trust doctrine to walk Great Lakes beaches between the water line and the ordinary high-water mark,” she wrote. “The [Indiana] court noted that it retained a common law power to expand the scope of protected uses under the doctrine, stating that the doctrine ‘should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit,’” she wrote.

Still, the Indiana Supreme Court did not say that walking was public trust navigation, Kirchner emphasized, simply that walking was a necessary incident of other recognized public uses. They did not create new rights and the doctrine remained tied to the water.

“They do not alter the applicability of Doemel, which is directly on point,” she wrote. “They do not alter my conclusion that, to date, Wisconsin cases have recognized as protected public trust activities only those that have a direct tie to the water: swimming, boating, hunting on the water, and therefore, as to walking, only walking in the water.”

Ah, but the key words in those sentences are “to date.” I wouldn’t call it judicial signaling, but the judge was pointing out how a future court decision could separate that direct tie to the water. And then, Kirchner wandered into a musing that, though she did not say it explicitly, indicated that this could conceivably be that case.

“Perhaps the Doemel court was wrong,” she wrote.

In the end, Kirchner wrote, maybe Doemel should be overruled.

“Since Doemel, the Supreme Court of Wisconsin has found that state ownership of bodies of water extends to the ordinary high-water mark and said that the public trust doctrine traditionally extends there as well,” she wrote. “That, in connection with the state’s need to protect the public’s rights, may change the weighing of private and public rights to the exposed shores.”

Indeed, Kirchner wrote, the public trust doctrine might expand as times change.

“Wisconsin opinions that added protection of scenic beauty to the list of public uses suggest that could be the case,” she wrote. “The question here …is where walking can occur. If walking in the water (even in an inch or two) is part of protected public activity, then perhaps the same activity along the water’s edge now is, too.”

Opening the shoreland door

The question is, how much expansion as times change? Just where will the public ultimately be allowed to walk? How far will the commandment to provide the public with natural scenic beauty extend?

We’ve all heard the saying that if you “give them an inch, they will take a mile,” and, truth be told, that’s exactly what the state and environmentalists will likely try to do with the public trust doctrine in this case—and in any case where the doctrine comes into play, just as they have in the past.

To use their logic, if natural scenic beauty is what moves the public trust doctrine out of the water and onto dry land, then natural scenic beauty could also move it beyond the OHWM.

It’s a natural progression. Some might even call it evolution.

Don’t get me wrong, I’m not saying the judge’s decision is wrong. She was doing what she had to do, given the existence of natural scenic beauty—a subjective notion ideologically inserted into the public trust doctrine. It’s not the decision that is wrongheaded; it’s ‘natural scenic beauty’ as a public trust doctrine standard that’s wrong-headed.

And so the public and private-property advocates need to keep this case contained. It would be a lot simpler if it were just about the strip of sand between the water line and the ordinary high-water mark, but, especially because the appellants use natural scenic beauty as an argument, it could become about expanding the public trust doctrine itself.

The case can now proceed along two disparate lines.

One would be a narrow resolution that does not involve the public trust doctrine at all, but simply resolves the tension between the Doemel (and later McFarren) decision asserting the primacy of riparian rights and the courts’ parallel findings that the state owns the land up to the ordinary high-water mark and that the public trust doctrine also goes to that point.

In that scenario, the court could find that Doemel is obsolete precisely because land up to the ordinary high-water mark is public land, and Florsheim would be free to roam those narrow strips all he wants, and so could we all. That’s the cleanest fix, if indeed a fix is needed.

But Kirchner’s decision, which dwelled on natural scenic beauty and the public trust doctrine, not to mention Florsheim’s own remarks about an evolving doctrine and MEA’s talk about raising fundamental questions, suggest they will ask the state Supreme Court to issue a more sweeping ruling that explicitly extends public trust rights based on natural scenic beauty to lands adjacent to and beyond the water.

Will the case be decided on the basis of the right to walk public land along a beach, or will it be decided on the basis of a protected right to enjoy natural scenic beauty that is incidental to the rights of navigation?

The DNR for years has tried to use the latter argument to expand the public trust doctrine, the latest case being Rock Koshkonong Lake District v Lake Koshkonong Wetland Association, Inc. and Thiebeau Hunting Club, in which the agency had attempted to use an earlier decision to support scenic beauty above the OHWM. That was a step too far, the court observed.

That was a conservative court, though, and this court would not now likely consider such a sweeping ruling a step too far.

The encroachment of the public trust doctrine beyond its originally intended purpose—much like the state’s Stewardship program—has a long history. From protecting the rights of navigation, the doctrine embraced the public’s right to fish and to enjoy recreation.

But natural scenic beauty was a sea change. With it, the doctrine no longer protected an activity, such as navigation or recreation; it protected a human experience, and a deeply subjective one at that. And guess what? Such experiences do not respect property lines.

Once the law protects what a person perceives—the aesthetics of the view—the legal boundary moves from the water’s edge to anything affecting that view, or any other “experience” of water. The Shorewood decision itself acknowledges the doctrine has been “expansively interpreted” over time and could be expanded again. In Koshkonong, the DNR attempted to take it there openly.

The municipal judge acknowledged that she could not extend the public doctrine, but that the state supreme court could.

Cleverly, in this case, no one is arguing that people should be allowed on private property. Instead, Florsheim and MEA are arguing that walking the shoreline is inseparable from exercising water rights.

That is where the expansion occurs. If walking becomes a protected activity based on natural scenic beauty, then anything that affects that beauty affects public trust rights. The doctrine leaves the water entirely and sets sail into other jurisdictions. Bluffs, vegetation, structures, development standards—all these and more will move into the crosshairs of the public trust doctrine.

Remember that for years, dating back to when Jim Doyle was governor, the state argued that lake cottages were little more than eyesores akin to junkyards that should be removed.

Natural scenic beauty was the weapon in the arsenal, designed by progressives long ago to remove them. Now, as this case moves forward, it could weaponize the doctrine as originally intended. Property rights advocates need to gear up for a potential fight.

One thing is for sure. It’s not going to be a walk on the beach.