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Defining Coastal Boundaries: A Comparison Study of the Influences to Shoreline Policy
around Puget Sound of Washington State and the Great Lakes of Michigan
By
Jesse D. Price
A Thesis
Submitted in Partial fulfillment
of the requirements for the degree
Master of Environmental Studies
The Evergreen State College
June 2013
© 2013 Jesse Price. All rights reserved.
This Thesis for the Master of Environmental Studies Degree
By
Jesse D. Price
has been approved for
The Evergreen State College
By
___________________________
Martha L. Henderson
___________________________
10 June 2013
Abstract
Defining Coastal Boundaries: A Comparison Study of the Influences to Shoreline Policy
around the Puget Sound of Washington State and the Great Lakes of Michigan
Jesse D. Price
The issue of who can maintain ownership of the shoreline has been an important subject
of legal dispute in the United States since the early nineteenth century. A renewed
interest in a common law known as the public trust doctrine has prompted state courts to
address the issue of increasing public ownership to shorelines during the last 50 years.
This study looks at the difference in shoreline access laws on two unique inland water
ways that have been essential to the growth and development of their respective regions:
the Puget Sound of Washington and the Great Lakes of Michigan. Michigan has recently
stated in the courts that the public has the right to pass over and engage in recreation on
privately owned land below the high water mark on the Great Lakes. Conversely,
Washington has not expressly given the public any such rights on privately owned
shoreline land. The research in this thesis explores the historical, geographical and
natural influences that have influenced shoreline policy in these two states. Discussion
focuses on the court cases and legislative decisions that have had a significant impact on
shoreline policy in each state. The analysis extracts the similarities and differences
between the two bodies of water and concludes that the resource rich shoreline of
Washington has contributed to increased private ownership of its tidelands whereas the
multiple natural and anthropogenic shifts in the Great Lake’s water level have affected
Michigan’s more deviated shoreline law-making. Recommendations for future research
include more detailed examinations on the early role of Washington’s shellfish industry
in state government as well as a more detailed focus on specific disputes that arose from
changes in Great Lakes water levels.
Table of Contents
Chapter
Page
I.
Introduction
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II.
Literature Review and Method of Study
Literature Review
III.
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Overview of The Public Trust Doctrine .
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Method of Analysis
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Data
The Puget Sound of Washington.
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Geographical Characteristics and Pre-statehood Industry
Conflicting Interests at the Constitutional Convention
Corporate Interests After Statehood.
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Reexamining Tideland Conflicts .
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24
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Defining Boundaries with the Public Trust Doctrine .
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Recent Avoidance of Conflict .
The Great Lakes of Michigan.
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Geographical Characteristics and Pre-statehood Industry
Conflicting decisions in Michigan’s Supreme Court
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Using the Public Trust Doctrine to Change Shoreline Boundaries
Refining Boundary Lines in the Legislature .
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IV.
Analysis .
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V.
Conclusion
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VI.
Bibliography.
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iv
List of Figures
Figure 1 Map of the Puget Sound Basin in the State of Washington
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Figure 2 Photo of the West Seattle tideland basin and railroads
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Figure 3 Photo of Oyster Farming in the 1890’s on Puget Sound
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Figure 4 Satellite Projection of the Great Lakes surrounding Michigan
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Figure 5 Early Map of the Michigan Territory 1834-1836
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Figure 6 Photo of the historic US Route 2 along Lake Michigan
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Figure 7 Surface water elevation in Lake Huron by year 1917-1935
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Figure 8 Surface water elevation in Lake Huron by year 1997-2013
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Figure 9 Photo of Phragmites growing on a Great Lakes shore
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v
Acknowledgements
First and foremost, I want to thank my wife Doretha as well as my three daughters
Elizabeth, Millie and Stella for their continual support throughout this process. Without
their patience and companionship this would not have been possible. I also thank my
advisor Martha Henderson for not giving up on me and providing periodic insight that
has ultimately allowed me to finish this project. I also want to thank Craig Partridge
from the Department of Natural Resources and Joe Panesko from the Washignton State
Attorney General’s Office for providing helpful advice early on in the project.
vi
Chapter I
Introduction
Natural shorelines have played a significant role in human civilization since early
Paleolithic times. Its importance was described by geographer Carl Sauer, “The sea, in
particular the tidal shore, presented the best opportunity to eat, settle, increase, and learn.
When all the lands will be filled with people and machines, perhaps the last need and
observance of man still will be, as it was at his beginning, to come down to experience
the sea” (Sauer 45,46).
Since Westerners have colonized the North American continent, laws regarding
boundaries between public and private lands on these shorelines have developed in
diverse ways among U.S. states. Lawmakers in many coastal states have addressed the
subject of increasing public ownership to shorelines during the last 50 years. Michigan
has recently stated in the courts that the public has the right to pass over and engage in
recreation on privately owned land below the high water mark on the Great Lakes. On
the other hand, Washington has not expressly given the public any such rights on
privately owned shoreline land. Research in this thesis explores the historical,
geographical and natural influences that have influenced shoreline policy in these two
states.
Central to this debate is a common law called the public trust doctrine which
states that all navigable waterways within a state’s jurisdiction are reserved in the public
trust for the purposes of navigation which include the incidental rights of fishing,
swimming, boating, and other recreational activities. The doctrine is based off historical
precedent dating back to scholarly texts of the Roman Empire. While the doctrine has
1
been used to justify public shoreline access in some states such as Michigan, other states
such as Washington have decided the public trust doctrine does not guarantee any public
rights in areas not covered by navigable waters.
This work will consist of a comparison study of certain factors that have played a
role in Washington and Michigan’s shoreline policy development. Topics examined in
this work are the unique geographical features of each area, the reasons for settlement of
the shoreline, the development of industries around the coast, and the courts handling of
property disputes. The purpose of the comparison is to provide insight into which factors
have played a significant role in the understanding of the public trust doctrine. This
knowledge will better assist those who are advocating for increased public or private
shoreline rights. By showing which geological, historical and geographical features are
typical influencers of shoreline policy, advocates can make better decisions on how to
confront coastal management issues with an educated approach.
Chapter II will set the tone of the analysis by providing a literature review of
cases, books and journals that are relevant to this study. The second part of chapter II
will include an introduction to the public trust doctrine’s historical basis and the relevant
controversy surrounding its implementation. The chapter will end with a more detailed
discussion of the methodology used for the analysis.
The third chapter is comprised of the data that is relevant to the shorelines of the
Great Lakes of Michigan and the Puget Sound of Washington. It starts with an
introduction to Washington’s colonization and discusses the significant cases that have
resulted from coastal disputes. Research is gathered from historical texts dating back to
the territorial days to more recent court cases that have taken place in the last ten years.
2
The second part of this chapter is comprised of Michigan’s shoreline history from the
early settlement to the most recent developments in the legislature. It outlines three
significant cases that made drastic changes to shoreline rights since the early 1900’s. The
fourth chapter focuses on the analysis where the two case studies will be compared with
each other. A graphical example is provided that shows certain aspects chosen out of the
data to be significant for comparison. The concluding chapter will provide a final insight
into the analysis as well as offer insight into further relevant research.
This work provides an interdisciplinary basis for the understanding of how
landscape changes can affect public rights to shorelines. Much literature, mostly law
journals, has been published that advocates or criticizes the public trust doctrine in the
context of state or federal policy. This research does not intend to take a side on how
shorelines should be managed. The complexity of the shoreline requires an
interdisciplinary perspective which includes natural history and cultural identities layered
over the discipline of legal studies. By including the perspectives of multiple disciplines,
this research will provide a more clear understanding of people’s connection to the
shoreline and how identity is closely tied with our laws relating to the natural world.
3
Chapter II
Literature Review
Literature used as data comes from a combination of primary and secondary
historical sources, court cases, and relevant academic literature. This variety of sources
provides a complex multidisciplinary understanding of each case that adds legitimacy to
the analysis. Historical texts give insight into the economic activities that shaped the
development in each state and explain why the shorelines were settled and developed.
Court cases examine the conflicts that resulted from colonization and the academic
literature provides scholarly commentary on the meaning of the decisions.
Arthur Kruckeberg outlines the Puget Sound’s importance to early and
contemporary settlement in his chapter of the book Northwest Lands, Northwest Peoples.
Addressing Puget Sound’s characteristics from a natural history perspective, he explores
how the Sound’s prehistory is connected and disconnected with human settlement.
Other historical texts worth noting are History of Washington from 1909 which
gives insight into the corporate interests and culture during the early days of Washington
State. The perspective in the book provides first hand insight into what spurred coastline
conflict after Washington’s admittance into the Union. Many years later, historian
Robert C. Nesbit wrote the biography of Judge Thomas Burke from the early days of
Seattle. Using many quotes from the Judge himself, he compiles a rich personal history
of the growth of the Puget Sound economy. Included in this account are journal entries
that describe the nature of conflict over tidal waters in Puget Sound.
A large amount of research on Washington shoreline studies is also found in the
graduate thesis of Kenan R. Conte in The Disposition of Tidelands and Shore Lands
4
Washington State Policy, 1889-1982. This work includes a well-researched history of the
constitutional convention’s focus on tideland sales and the road to its eventual
discontinuation. It includes interviews from the late William A. Gissberg who was an
instrumental part of the ban on tideland sales.
Literature on the early history of the Great Lakes of Michigan relating to this
study was found in a historical record from 1883 called History of the Upper Peninsula of
Michigan. Other texts that were examined were written much more recently such as
David Dempsey’s chapter called Ruin and Recovery in The History of Michigan Law. As
the author laments the over-use of Michigan’s natural resources, he provides insight into
how the deforestation and overfishing of the past have shaped present day attitudes
toward the surrounding lakes.
This work also includes the shoreline philosophies of Rachel Carson. Although
most of her works are geared toward the ecological aspects of the shoreline, she
expresses a vivid sense of place to her audience that illustrates her harmony with the
complexities that this boundary entails. Her first chapter in The Edge of the Sea
expresses many of the reasons that people are attracted to a shoreline environment and
what makes it such a multifaceted area of study. She wrote that the best way to
understand the beach is to actually stand on it and “sense the long rhythms of earth and
sea that sculptured its land forms and produced the rock and sand of which it is
composed” (Carson xiii).
Other writers such as Yi-Fu Tuan, author of Topophilia: A Study of
Environmental Perception, Attitudes, and Values have added unique perspectives to the
importance of the coastal zone. Tuan analyzes the zone through the eyes of a geographer
5
by looking at motives for settling the zone and revealing the adaptations and cultural
norms that certain groups of people developed near it. He looks at the seashore, the
valley, and the island but theorizes along with his colleague Carl Sauer that the seashore
was the ideal environment for early human settlement because of the “diversity and
abundance of provisions” that it offers (Sauer 115).
An extensive variety of journal articles written on the topic of the public trust
doctrine is not difficult to find. Law schools throughout the country have written
countless articles on the extent of the doctrine in coastline management but there are also
many that utilize the doctrine in other environmental issues such as hunting and curbing
C02 emissions. Often these cases have very conflicting viewpoints on the practicality of
the public trust doctrine and the authors often pick and choose particular court cases to
justify their own assertions. This work does not attempt to make sense of the many
individual articles on the public trust doctrine but there are a few worthy of mention that
relate to Great Lakes and Puget Sound case studies.
A few sources are essential to the understanding of how Michigan has dealt with
the public trust doctrine on its shorelines. God’s Terminus: Boundaries, Nature, and
Property on the Michigan Shore by Theodore Steinberg provides research into the early
Kavanaugh Cases and Hilt v. Weber. The author claims that although “the states in
America have a lock on the shore,” Michigan law has been an exception to the rule. He
is exposing the public trust doctrine not as a tool to pass an environmental agenda but as
a set of evolving principles and precedents that are adapted to the physical landscape and
the social infrastructure in a state (Steinberg 71). On the other hand, Carl S. Paganelli
dissects the public trust doctrine case by case in Creative Judicial Misunderstanding:
6
Misapplication of the Public Trust Doctrine in Michigan in order to delegitimize the
historic ruling of Glass v. Goeckel. What makes this criticism unique is that Paganelli
dissects the foundation of the public trust doctrine by analyzing the circumstances
surrounding the original Roman and English laws. While Paganelli’s opinions contradict
much of the established literature, they closely mirror the viewpoints of those who
oppose expanding public access to beaches in Michigan.
The public trust doctrine has been the focus of discussion in a three major court
cases throughout the history of Michigan and these are discussed in depth in the analysis
section. The three Kavanaugh cases, Hilt v. Weber and Glass v. Goeckel were the most
historic in terms of setting widespread changes in shoreline management.
In regards to the State of Washington, The Public Trust Doctrine in Washington
State prepared by Ralph W. Johnson et al. provides a basis for legal research of
Washington’s coastline. Johnson outlines the public trust doctrine in relation to
Washington State specifically and summarizes how it was invoked in a few of the state’s
significant court cases. Rather than merely educate on the public trust doctrine’s effect
on Washington’s coasts, the publication is more focused on arguing the benefits of the
doctrine to its audience, who is the Washington Department of Ecology. Johnson’s
primary argument is that “when properly invoked, the doctrine can limit private property
rights while avoiding claims of unconstitutional taking” (Johnson 1).
Another document worthy of mention in this section is Joe Panesko’s article
called The Public Trust Doctrine which was published as a chapter in Volume 4 of the
“Washington Real Property Deskbook Series”. Panesko is an assistant attorney general
in the State of Washington and gives a lawyer’s perspective on the public trust doctrine in
7
Washington State. His article was published in 2009 specifically for use by practicing
attorneys so it offers the most recent cases on the topic and discusses a more practical use
of the public trust for professionals.
While Panesko does not always agree with some of Johnson’s assertions about the
legality of the public trust doctrine, both of them agree that certain Washington court
cases are essential to a complete understanding of the Public Trust Doctrine in
Washington. Starting from the oldest to the most recent, Martin v. Waddell’s Lessee
(1842) and Illinois Central Rail Co. v. Illinois (1892) set the precedent for future court
decisions across the nation. Specifically in Washington State, both cite Sequim Bay
Canning Co. v. Bugge (1908), Wilbour v. Gallagher (1969) and Caminiti v. Boyle
(1987). These are not necessarily the only cases worth noting but represent a few that are
agreed upon as being significant to the development of the public trust doctrine in
Washington.
The Public Trust Doctrine
In United States jurisprudence, navigable waterways have historically been set
aside for the common use of the public through a common law often known as the public
trust doctrine. This doctrine is said to have established roots in Roman civil law in
ancient texts that were codified under the reign of the Emperor Justinian. One of these
texts describing the nature of rivers, ports and seashore states, “Thus, the following things
are by natural law common to all- the air, running water, the sea, and consequently the
sea-shore. No one therefore is forbidden access to the seashore” (Moyle 36). More of
this Roman code has also been translated to read:
8
“. . . all rivers and harbours are public, so that all persons have a right to fish
therein.”
“. . .every one is free to build a cottage upon [the sea shore] for purposes of
retreat as well as to dry his nets and haul them up from the sea.”
“. . .every one is entitled to bring his vessel to the bank, and fasten cables to the
trees growing there, and use it as a resting place for the cargo, as freely as he may
navigate the river itself. But the ownership of the bank is in the owner of the
adjoining land, and consequently so too is the ownership of the trees which grow
upon it” (Moyle 36).
This Roman code is said to have been passed down into British acceptance
through the Middle Ages and later adopted as common law by the original thirteen states
after the American Revolution. Each of the thirteen states held, as still does hold, a
public trust interest in navigable waters up to the high tide mark. Rules and guidelines
pertaining to the public trust doctrine have been left up to each state to define. Each has
its own definition of what constitutes a navigable waterway and each state has developed
its own laws regarding what the public interest means. It is important also to note that
each state’s rules are never static. Being common law, the public trust doctrine is up for
interpretation and cultural changes, interest groups, and stakeholders have influence on
how the law is interpreted. For example, Maine maintains that its coastlines are held in
the public trust but has defined limitations on the public’s rights to the shoreline.
Recreational public access on private tidelands has only been deemed permissible for the
purposes of fishing, fowling and navigation.
The Supreme Court in Bell v Town of Wells acknowledged the increased modern
demand for beach walking but made clear that the court lacks the authority given to them
by the constitution to take private property for changing recreational needs by stating,
“Although contemporary public needs for recreation are clearly much broader, the courts
and the legislature cannot simply alter these long-established property rights to
9
accommodate new recreational needs” (Bell 169). Comparing this case to the verdict of
Glass v. Goeckel, which will be discussed later in this work, shows just how much
coastal law can vary from state to state while invoking the same common law principle.
Outcomes of these cases and the precedent that has been set in each state is often affected
by the values of the judges and the strength of the stakeholders at the time.
Another case that has set early precedent for the public trust doctrine is Martin v.
Waddell which discusses the privatization of the tidelands. The question in the case was
whether or not a grant of 100 acres of tidelands given by the King of England would
override the claim under state statute “authorizing the lands to be leased to abutting
waterfront owners who could stake off lots for purposes of growing and harvesting
oysters” (qtd. in Panesko 6). The Supreme Court of New Jersey decided that it was not in
the king’s power to grant exclusive possession of the tidelands when they stated:
Indeed, it could not well have been otherwise; for the men who first
formed the English settlements, could not have been expected to encounter
the many hardships that unavoidably attended their emigration to the new
world, and to people the banks of its bays and rivers, if the land under the
water at their very doors was liable to immediate appropriation by another,
as private property; and the settler upon the fast land thereby excluded
from its enjoyment, and unable to take a shell-fish from its bottom, or
fasten there a stake, or even bathe in its waters, without becoming a
trespasser upon the rights of another (Martin 414).
The precedent that was set in this case became commonplace in coastal law across
the United States. Almost every journal regarding the public trust doctrine cites the case
in one way or another.
The other landmark case commonly cited as evidence that the public trust doctrine
is applicable in contemporary coastal law is Illinois Central Railroad Co. v. Illinois which
intended to determine title of lakefront lands previously given to Illinois Central Railroad
10
by the state legislature. The court questioned “whether the legislature was competent to
this deprive the State of its ownership of the submerged lands in the harbor of Chicago,
and of the consequent control of its waters” (Illinois 452). It was finally determined that
the Great Lakes were indeed navigable waters and governed by the same public trust
principles that had been given to each state based on the Equal-footing doctrine. This is
in contrast to the English law which stated that tidal influence was a prerequisite for
navigability. Opinion of the court determined 4 votes to 3 that, “It is hardly conceivable
that the legislature can divest the state of the control and management of this harbor, and
vest it absolutely in a private corporation” (Illinois 454).
While this case is cited in nearly all literature referring to the public trust doctrine,
most proponents of public coastal waters ignore the 1902 follow up to the case in which
the court agrees that the railroad’s coastline developments “do not extend . . . into the
lake beyond the point of practical navigability”(Illinois 1902, 464). The railroad ended
up not having to take down the piers and docks for this reason. Joe Panesko, an expert on
the case, wrote that this the Illinois case “confirms that the public trust doctrine is not an
absolute prohibition against the alienation of publicly owned aquatic lands, but is a
scalable limit triggered when such alienation exceeds the scope of public benefit derived
from the privatization and development of the aquatic lands” (Panesko 14).
Even though many state courts recognized a form of public ownership on
waterways and coastlines, the actual public trust doctrine was not popularized until 1969
when Joseph Sax published an influential article called The Public Trust Doctrine in
Natural Resource Law: Effective Judicial Intervention which calls the judicial system to
action “to promote rational management of our natural resources” by invoking the public
11
trust doctrine as a “tool” (Sax 565). He presents the public trust doctrine as the only
concept known to American law that has “the breadth and substantive content which
might make it useful as a tool of general application for citizens seeking to develop a
comprehensive legal approach to resource management problems” (Sax 474). Since
Sax’s article, many legal and environmental scholars have invoked the public trust
doctrine in literature and in the courtroom for a variety of issues.
A few years later with federal funding, David Slade and multiple coauthors
published Putting the Public Trust to Work: The Application of the Public Trust Doctrine
to the Management of Lands, Waters and Living Resources of the Coastal States which
follows Sax’s footsteps and takes an advocacy approach to the doctrine. The book
accepts the texts of Justinian in full and advocates that this basic doctrine was passed
through the Magna Charta to the English and then to American law through the
Revolution. These historical texts are mentioned throughout the book as the basis for
implementing the public trust doctrine in coastline states. Since these two books have
been published, many environmental advocates have tried to use the doctrine as a tool to
push an agenda. Many have questioned the doctrine’s application only to navigable
waters with the intent of applying it to a variety of natural resources as well.
One hallmark California case highlights the expansion of the public trust
doctrine’s application by the Supreme Court. 1n 1983 the National Audubon Society
filed suit against the Superior Court of Alpine County for diverting the water of four of
five ecologically beneficial streams to Mono Lake in the Sierra Nevada Mountains to the
City of Los Angeles. Effects of the diversion had decreased the surface area of the lake
by one-third and exposed the native birds to predators which caused them to leave the
12
area (National 424). The plaintiffs argued that that “shores, bed and waters of Mono
Lake” were protected by a public trust and the courts sided with them.
The Mono Lake case is regarded as a landmark case for two major reasons. First,
it changed the scope of the public trust doctrine by including inland streams and lakes
into its application. This was a big step by the courts to include smaller waterways in the
scope of the doctrine especially because it was previously only focused on waterways
which were only navigable in-fact. This case determined that Mono Lake was deemed
navigable and even though the streams that supply Mono Lake are not navigable in-fact,
they are still protected by the public trust doctrine. Secondly, the doctrine was applied
retroactively to water rights that were previously granted to the City of Los Angeles.
Environmental groups acting as plaintiffs argued that the original water rights which
diverted streams from Mono Lake were unlawful and the defendant argued that “the
public trust doctrine as to stream waters has been ‘subsumed into the appropriative water
rights system and, absorbed by that body of law, quietly disappeared”. The court agreed
with neither of these claims and instead maintained that the state “retains continuing
supervisory control over its navigable waters and the lands beneath those waters” and
holds the authority to prevent “any party from acquiring a vested right to appropriate
water in a manner harmful to the interests protected by the public trust” (National 445)
In the Mono Lake case, the state used judicial authority to deem that the public’s
best interest was the preservation of ecological nature of the lake. In this situation, the
state reserved the right to apply the public trust on an as needed basis. It is a similar
philosophy to that which the judges in the Illinois case purported, “[The use of the public
trust doctrine] must vary with varying circumstances. The legislation which may be
13
needed one day for the harbor may be different from the legislation that may be required
at another day” (Illinois 460).
The public trust doctrine has not gained notoriety in the last forty years without
serious disagreement. These previous case examples all had well stated oppositions and
were decided by small margins in the court rooms. Opposition asserts that the doctrine is
based on fabled history and that early Roman and English law had little or nothing to do
with such rights. James Huffman argues that the English law stating that title to
submerged lands was presumed to be owned by the king, “was a sixteenth century
fabrication that did not take hold in England until late in the nineteenth century, well after
American law had developed on its own” and that “the invented prima facie rule served
to feather the nest of the Crown, not to protect the rights of the public” (Huffman 1).
Huffman encourages the courts to reevaluate the myths that have long held as precedent
and “look to other justifications for a doctrine that threatens the property rights of
millions of individuals, while recognizing in the courts expansive powers to invalidate
the democratic choices of the elected representatives of the people” (Huffman 2).
The dispute over the public trust doctrine almost always boils down to conflict
about property rights. Those who use the doctrine to present a case to the court often
present the doctrine as an unchangeable set of rules that the state is bound by. What
advocates do not account for is the diversity of the land and the prevailing cultures of the
residents.
These are the big issues in the examples of Puget Sound and Lake Huron that will
be discussed further in this work. Areas where coastal property below the high water
14
mark has been sold into private hands have been contested by advocators of the public
trust doctrine all over the United States.
Method of Analysis
The Puget Sound and the Great Lakes are unique inland water ways that have
been essential to the growth and development of their respective regions. Both have
provided important life sustaining resources as well as avenues for transportation and
trade. While many similarities exist among the two water ways, the state governments
and courts that oversee them have developed very different laws regarding public access
to shorelines. In order to fully understand which characteristics have played a role in
policy development and courtroom decisions, an in depth examination of each case is laid
out. The two cases will be compared and examined more closely against each other. For
the purpose of gaining a logical understanding of how both cases are related, the
similarities and differences are both identified and discussed.
15
Chapter III
Data
The Puget Sound of Washington
The dispute over ownership has surrounded the tidelands of Washington State
since its territorial days. While the surrounding circumstances have been in a constant
state of change, the core debate has remained relatively unchanged. This chapter is split
into six sections which outline various stages of the debate. The first section looks at the
history in the years before statehood and the issues the early settlers experienced while
attempting to reconcile local coastal boundaries. The second section deals with the
constitutional convention and why tidal boundaries rose to the forefront of the debate.
The third section points out how corporate interests understood the boundaries set by the
new State of Washington. The fourth section jumps forward to the modern era and
explains how a new way of thinking encouraged the legislature to reevaluate previous
tideland policy more geared to public ownership. Lastly, this section will evaluate the
court’s interpretation of the public trust doctrine’s influence on setting coastal boundaries
and a recent unpublished case is discussed that shed light on Washington’s current policy
towards coastal boundary changes.
Geographical Characteristics and Pre-statehood Disputes
The Puget Sound is located in the most northeastern corner of the continental
United States in the State of Washington. The sound is only a small portion of what is
broadly known as the Salish Sea which stretches north into British Columbia, Canada and
16
west towards the Pacific Ocean via the Strait of Juan de Fuca. Its geographical location
provides access to shipping lanes connecting to Asia, and North and South America.
Figure 1 The Puget Sound Basin in the State of Washington
The Puget Sound is an inland waterway that has been carved into a series
meandering channels and straits by a combination of receding glaciers, volcanic activity
and tectonic shifting. Before European exploration and settlement occurred, it had been
the home of many aboriginal peoples for thousands of years. The area which was
plentiful in salmon, shellfish, terrestrial wildlife and timber provided the opportunity for a
sedentary lifestyle that was unique among many aboriginal people in North America.
Puget Sound also remains one of the largest estuaries in the world and has a rich
ecosystem dependent on the precise combination of fresh water it receives from
17
surrounding rivers and streams and the saline influence of the Pacific Ocean which has
prompted the Environmental Protection agency to declare it as an Estuary of National
Significance. “Its shoreline-nearly 2,000 miles of it—varies from steep bluffs to gently
sloping sandy or rocky beaches and numerous tide flats and salt marshes” (Kruckeberg
61). The shores are scattered with shellfish species that are not to be found anywhere
else in the world and surrounded with dense forests that were beyond the comprehension
of non-natives during the early exploration. After the first European explorers came in
contact with the region, the rumors of the richness of the land started to spread.
When Captain George Vancouver was exploring the Puget Sound he described it
as such, “Nothing can be more striking than the beauty of these waters without a shoal or
a rock or any danger whatever for the whole length of this internal navigation, the finest
in the world.” After further praising the beauty of the waterway, he placed his
exclamation point on the topic by saying, “I venture nothing in saying that there is no
country in the world that possesses waters equal to these.” However, he wasn’t the only
one to comment on the beauty of the sound. Early explorer Archibald Menzies described
it “as if it had been laid out from the premeditated plan of a judicious designer”
(Kruckeberg 410). In his perspective however, this “judicious designer” had a plan
entirely different from what the aboriginal people were working with. He continued:
We cannot quit Admiralty Inlet without observing that its beautiful Canals
& wandering navigable branches traverse through a low flat country . . .
thus diffusing utility & ornament to a rich Country by affording a
commodious and ready communication through every part of it, to the
termination of the most distant branches. Its short distance from the
Ocean . . .& easy access by the streights [sic] of Juan de Fuca is likewise
much in its favour, should its fertile banks be hereafter settled by any
civilized nation. Its shores are for the most part sandy intermixed with
pebbles & a variety of small silicious stones abounding with Iron Ore in
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various forms, for we hardly met with a Rock or Stone that was not
evidently less or more impregnated with this useful Metal which the
benevolent hand of Nature has so liberally dispersed throughout almost
every part of the world but perhaps no where so apparently abundant as
along the shores of this great Inlet . . . .(Kruckeberg 410)
The Puget Sound was truly a unique waterway prime for being taken advantage of
by westerners with a desire to capitalize the land. In an 1852 letter from an Olympia
resident to a friend in Washington D.C., the Puget Sound country was foretold to be “one
of the most important and interesting agricultural and commercial points in all the land
shadowed by the Stars and Stripes.” The quantity and availability of resources around
the Sound influenced many to colonize and inhabit the shoreline. The richness of these
natural resources and the need to consume and trade them set the tone for Washington’s
current policy on tideland access and development.
The Washington territory of the 1800’s was experiencing a growth of commerce
from the sale of timber, salmon and shellfish and continued to flourish throughout the
century. Settlers were flocking to its cities and towns and there was a spirit of
competition with one another to gain an upper hand with respect to imports and exports.
A workable connection between the port cities and the railroads was essential in order to
get an edge by creating an efficient transfer of resources. One author explains, “In the
early 1870s the Puget Sound cities, none of which were large, all aspired to become the
terminus of the transcontinental Northern Pacific Railroad. The settlers of each town
realized that location of the railroad would bring construction and shipping, with their
attendant payrolls and increases in real estate values” (Wiggins 16). To encourage the
railroads to use a particular city as a shipping terminal, piers and wharfs would be
constructed over the tidelands into deep water. This was an obvious result according to
19
Robert Nesbit, author of He Built Seattle (309). Washington territorial law justified this
in section one of the April 1854 act called “An Act to Authorize and Regulate the
Erection of Wharves.” It states:
Any person owning land adjoining any navigable waters or water course,
within or bordering upon this territory, may erect upon his own land any
wharf or wharves, and may extend them so far in said waters or water
courses as the convenience of shipping may require; and he may charge
for wharfage such rates as shall be reasonable: Provided, that he shall at
all times leave sufficient room in the channel for the ordinary purposes of
navigation (Laws of Washington 1854).
Figure 2 (Gibbs, Williamson, 142)
The pursuit of the Puget Sound’s resources brought a diversity of individuals in a
relatively short amount of time and conflict was not unexpected in this situation. Another
issue which attracted considerable conflict at the time was land claims. It was common
20
knowledge in the territorial days that the tidal lands occupied by the squatters and the
railroads were owned by the federal government and that title would be transferred to
state ownership upon statehood. Tideland occupation and development continued
because many hoped that mere possession of the land would convince the government to
grant title. However, despite the uncertainty, new land claims increased as the bid for
statehood drew nearer.
Speculators of waterfront property experienced difficulties in the land rush during
the years leading up to statehood. One resident who had purchased property in South
Seattle explained, “Here in Seattle the craze for salt water has broken out again with
greater violence than ever before. A swarm of salt water lunatics of high and low degree,
have alighted, like so many cawing crows on the mud flats in the Southern part of town,
and have made the place a veritable sight with piles stuck all over it.” He further
laments:
I have more than a passing interest in this subject for some years ago I
bought a lot of property in South Seattle, chiefly for its large shore
frontage, and I paid my gold coin for it. Now this salt water crew, without
so much as saying by your leave, plant themselves on my property, and
tell me that inasmuch as it is below the line of ordinary high tide, they
have as good a right as I have, and even better, because of presuming to
buy it and pay for it, I was flying in the face of the law (Nesbit 310).
This kind of claim jumper activity began occurring in other parts of the Sound as
well. Clubs hoping to stake claims on the tidelands descended on the mud flats of
Bellingham Bay and many other locations in Seattle. There are reports that some of these
jumping gangs would prefabricate houses and float them into a desired location. Nesbit
recounts a different time when, “Another gang floated onto a desirable site at two in the
morning on rafts loaded with lumber and a crew of carpenters to contest ownership.
21
Open war was imminent” (Nesbit 311). It was not unusual for armed guards to be posted
and for physical fights to occur on the tidelands. For this reason, it is not surprising that
this subject played a central role in the constitutional convention.
Conflicting interest at the Constitutional Convention
All navigable waterways in the Washington Territory were transferred to state
ownership from the federal government under the Equal Footing Doctrine in 1890. The
doctrine is defined in Pollard’s Lessee v. Hagan et al. that “first, the shores of navigable
waters, and the soils under them, were not granted by the Constitution to the United
States, but were reserved to the states respectively. Secondly, the new states have the
same rights, sovereignty, and jurisdiction over this subject as the original states” (Pollard
230). The transfer of ownership from the federal government to state control was a hotly
debated topic as statehood was approaching.
According to Kenan Conte, there were three major parties in this debate. These
consisted of the owners of improvements placed on the tidelands, riparian land owners
and a group that was opposed to the sale altogether (Conte 11). The owners of the
improvements were predominantly represented by railroad companies, land developers
and speculators. Intentions were focused on keeping the property they had occupied and
developed after statehood. The riparian landowners who had possession of the uplands
had different interests in mind. While they did argue for the right to keep their property
after statehood similar to those of the first group, they also wanted private access to the
tidelands to aid commerce. The shoreline developers often cut off access to navigable
waters to the riparian landowners. The third group represented in the debate was
22
predominately from eastern Washington and “wanted constitutional provisions which
would not only assert Washington State’s ownership of tidelands, but would also prohibit
any sale of such lands” (Conte 13). This perspective is theorized to have spawned from a
distrust of the corporations and monopolies that were taking over the shores. While the
topic of tideland ownership was debated as the most important matter of the
constitutional convention, the final wording was not agreed upon until the last day.
Article XVII was written as follows:
DECLARATION OF STATE OWNERSHIP. The state of Washington
asserts its ownership to the beds and shores of all navigable waters in the
state up to and including the line of ordinary high tide, in waters where the
tide ebbs and flows, and up to and including the line of ordinary high
water within the banks of all navigable rivers and lakes: Provided, that this
section shall not be construed so as to debar any person from asserting his
claim to vested rights in the courts of the state.
The new Washington State had significant resources that it could use to generate
funds to support the new government. With land that was rich in timber, fresh water,
game and marine life, it was in the best interest to utilize these resources for its own
development. The Puget Sound, with its deep channels and relatively calm waters
leading to hundreds of bays was an ideal waterway for the transportation of its resources.
Although, the government was not large enough at the time to utilize its resources
to the fullest extent, it was able to enlist the help of its residents. Capital from the
railroad companies and other corporate entities was needed to develop the transportation
systems needed to import and export goods. One of the arguments before statehood was
whether Washington should be declared a riparian or non-riparian state. This made a big
difference in how land rights were distributed. Courts have cited Article XVII to express
declare Washington as a non-riparian state meaning that abutting landowners have no
23
rights to “build or wharf-out onto the tidelands or shorelands surrounding navigable
waters” (Conte 17). The courts upheld this point in Port of Seattle v. Oregon and Wash.
Ry. Co.. The non-riparian status was significant because it promoted the inherent
commercial value of the shorelines and paved the way for tideland sales and subsequent
development.
Corporate Interests after Statehood
Shortly after statehood was declared and during the first session of the
Washington State Legislature in 1890, a bill called “Tide and Shore Lands; Appraisement
And Disposal Of” was passed to organize the sale of state owned tidelands. The sale was
to be overlooked by 1)The Board of Appraisers 2)The Commissioner of Public Lands and
3)The Board of Equalization. Tidelands were divided into first class, second class and
third class tidelands with different stipulations on how each type would be sold. Those of
the first class were located within two miles of city limits. The second class tidelands
were located more than 2 miles outside of city limits but had “valuable” improvements
and the third class consisted of all others. The original document mentions that
“Tidelands of the first class shall be surveyed and appraised as rapidly as practicable, and
the state board of equalization shall order such lands surveyed…” Any “person,
association or corporation” that was allowed to purchase real estate during that period
could file an application and purchase state-owned tidal lands in Washington (Session
Laws 432).
This act paved the way for Washington State to generate much needed revenue
for state owned navigation facilities and it also paved the way for industry and economic
24
growth. 75% of the proceeds derived from the state from the sale of tidelands were
appropriated for “the construction and maintenance of a system of permanent and
substantial improvements in aid of commerce and navigation in and for the harbor of
such city or town wherein such tide lands may be sold.” The other 25% was allocated to
the general tide land fund of the state (Laws, Rules 31).
While the waterways were preserved in the public trust, only first class tidelands
received a mention of public access albeit limited. Section 1 of the 1890 act “Public
Ways Across Tide Flats Near Towns” states, “There shall be established one or more
public ways across all of the tide flats that are situated within or in front of any
incorporated city or town, or within two miles either way from any incorporated city or
town within the State of Washington” (Laws, Rules 24). These public ways were
required by law to by at least 50 feet across but were limited to a total width of 1000 feet.
The main purpose of these public ways was to allow water-craft passage so that the
public could access the Puget Sound for navigation as if it were more of a public highway
than a place for beach enjoyment and recreation. No part of this section denotes any right
to the surrounding tidelands. The boundaries of the passage ways were to be well marked
by posts and registered with the Commissioner of Public Lands in order to prevent
becoming mismanaged and lost to private enterprise.
The new State of Washington catered to developing corporations. Another
example of this is with the log booming companies. The state legislature referenced
these log boom companies directly in the first session, “All meandered rivers, meandered
sloughs, and navigable waters in this state shall be deemed as public highways, and said
corporations shall be declared public corporations for the purpose of this act; and the
25
improvement of such streams, sloughs, and waters shall be deemed and declared a public
use and benefit” (Session Laws 473). These companies were allowed to straighten or
“improve” the waterways or build dams on them as long as the navigability of the water
was not interfered with. This designation by the legislature that these corporations were
in the public’s interest is important because it shows what the lawmakers felt was the
most important priority in Washington State at the time. The priority was commerce and
generating funds for the growth of the state. The companies that improved waterways
and made them navigable for
shipping logs were given
authorization to charge a toll
to other logging companies for
the use of the waterway, thus
incentivizing corporations to
develop streams and rivers for
the purposes of navigation.
(East Hoquiam Boom &
Logging 142). This example
shows the importance that
courts and lawmakers in
Washington gave to the
Figure 3 Oyster Farming in the 1890's. Courtesy of
Taylor Shellfish Farms; www.taylorshellfishfarms.com
development of the state.
One characteristic that protected tidelands from being sold away from the state
trust was if they were covered in natural oyster beds. Nevertheless, this stipulation only
26
applied to lands that were located beyond two miles of any incorporated city or town.
The cities and towns being the most important locations for harbor areas and commerce.
Abuse of this law was rampant due to the large distance from formal law enforcement.
Oyster harvesting was acknowledged to play an important role in Washington’s
economy. For those lands that didn’t already contain natural oysters, the state allowed
the lease of tidelands for oyster harvesting but it wasn’t long before disputes between
oyster farmers and other interests arose.
The Supreme Court case Sequim Bay Canning Co. v. Bugge confirmed that the
shellfish on these leased lands constitutes real property. In the case, the plaintiff
company Sequim Bay Cannery, accused an owner of nearby shellfish cannery of
trespassing on the property that was leased to him by the state. Bugge and his partner,
the defendants in the case, were allegedly hiring Indians to go on Sequim Bay’s tidelands
and poach shellfish. Sequim Bay Cannery put up no trespassing signs and personally
notified Bugge to stop taking clams from his property but Bugge threatened to shoot him
and continued to instruct the hired Indians to keep digging on the land. The Supreme
Court ruled in favor of the Sequim Bay Cannery and said, “The complaint in this cause
says the appellant is the holder of the lands by virtue of a regular lease from the state. It
follows that it is entitled to the possession and control of the lands leased, and
respondents are trespassing when they go upon them and remove clams without
appellant's consent” (Sequim Bay 133). This verdict in this case gives insight into just
one of the commercial interests that influenced Washington States tideland policy.
27
Reexamining Tideland Conflicts
Due to the excitement that the industrial revolution and capitalist principles
brought to the region, Washington State continued to sell large amounts of tidelands
without much opposition until the 1950’s. Attitudes changed quite a bit after that and
between the years of 1959 and 1971 a few major occurrences brought about the most
significant legislation regarding tideland management since statehood.
The first is the leadership that brought the bill to fruition in the Legislature. The
Legislation that ended the sale of tidelands in Washington State is often referred to as the
Gissberg Amendment in House Bill 40. It reads, “Notwithstanding any other provision
of law, from and after the effective date of this 1971 amendatory act, all tidelands and
shoreland . . . owned by the state of Washington shall not be sold except to public entities
as may be authorized by law, and shall not be given away” (HB 40). The amendment is
named after Senator William Gissberg, a self-proclaimed environmentalist, who made it a
personal goal to completely halt all tideland sales. In his oral history, Gissberg recounts
his reasons for advocating environmental legislation:
I loved to go fishing in the mountain lakes at a time when there were
hardly any trails leading to the lakes. I started doing that when I was a
youngster. I loved fishing and I loved the rivers. There’s no more
beautiful thing in the world than a river. I saw what the Weyerhaeuser
pulp mills were doing to the waterways in Snohomish County. They were
destroying them. I did everything that I could to cure that kind of problem
by strengthening the water-pollution penalties, and giving more authority
by creating the Department of Ecology (Boswell 53).
He explained his desire to ban tideland sales started when the farm next to his
favorite fishing hole was sold to a new owner who posted “No Trespassing” signs on the
river bank. As an attorney he wrote a letter to the new owner informing them that posting
the signs was illegal. The new owners simply wrote back to express intentions to buy the
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shore land in order to legalize the signage. Later in life after becoming a well-respected
senator he garnered a few key supporters for his cause and piggy-backed his amendment
onto the already popular HB 40 three days before the final vote where it passed through
the House and Senate. Gissberg recalled during his retirement that the passage of this
legislation was his most memorable success in his tenure as a Senator, “I was proud of
the amendment I put on the Senate floor, without giving anybody any notice that it was
coming, prohibiting the sale of shorelines and tidelands by the Department of Natural
Resources, which was rapidly divesting the public of the ability to utilize those areas. It
happened that I was able to do that just with no notice to anybody, and I think it’s going
to last for generations to come” (Boswell 80).
The effect of this legislation has been far-reaching. It instantly brought a halt to
the sale of tidelands on the Puget Sound and showed Washington’s changing perspective
to undeveloped resources, reflecting a more conservative policy in regards to natural
resource management. Such changes in resource management philosophy were
representative of a growing concern for environmental issues.
Around the time of this legislation, the commentary regarding public access on
privately owned shorelines started to appear more and more to the point where the
Washington Attorney General issued a statement on the matter. The Attorney General
Slade Gorton responded solely that the “public, vis-a-vis the private upland owner, has
the right to the free and unhindered use and enjoyment of the wet and dry sands area of
the Pacific Ocean beaches, by virtue of a long established customary use of those areas”
(AGO 1970 No. 27, 19). His statement may have eased the concerns of many residents
29
but he did not address the issue of public access on Puget Sound’s tidelands to the degree
that the question was purposely avoided.
The same attorney general, in response to repeated questions on the matter of
public access rights on Puget Sound beaches, issued a second opinion six years later.
Although no previous Attorney General had made a statement in this regard, Slade
expressed that “there has never been any doubt in our minds as to what the answer would
have to be if such an opinion were formally to be requested.” He stated it is the opinion
of this office that (contrary to the situation which exists on our ocean beaches) members
of the public in this state do not ‘. . . have the right to use and enjoy the wet and dry
sand areas of Puget Sound beaches by virtue of customary use’” (AGLO 1976 No. 41).
Defining Boundaries with the Public Trust Doctrine
1987, Washington state courts explicitly invoked the public trust doctrine for the
first time in state history in Caminiti v. Boyle. The Supreme Court stated that “although
not always clearly labeled or articulated as such,” the public trust doctrine has always
existed in Washington State (Caminiti 670). This case has been regarded as the “modern
touchstone for subsequent Public Trust Doctrine litigation in Washington State” (Panesko
33). The petitioners, who consisted of public shoreline activist Benella Caminiti and the
Committee for Public Shorelines Rights, requested that the Supreme Court of
Washington declare state law RCW 79.90.105 (recodified as RCW 79.105.430), enacted
4 years prior, to be unconstitutional. The code states that “The abutting residential owner
to state-owned shorelands, tidelands, or related beds of navigable waters other than
30
harbor areas, may install and maintain without charge a dock on such areas if used
exclusively for private recreational uses” (RCW 79.105.430).
Previously the state had rented the right to approximately 370 residential owners
to construct docks to landowners abutting state-owned aquatic lands and was receiving
$35,000 a year from the program. The 1987 law was enacted because the administrative
costs of the leasing program were a “substantial portion” of the revenues and it didn’t
make sense monetarily (Caminiti 664). Caminiti et al. was concerned about the possible
damages that could occur in the future to public recreational interests if more docks were
being constructed on the Puget Sound. The future effect that RCW 79.90.105 would
have on new dock construction was unclear at the time but Caminiti considered that the
elimination of lease fees would encourage more shoreline landowners to build docks off
shoreline property which would impact interests such as fishing, swimming, navigation,
procuring shellfish and observing wildlife.
Two major questions were answered in the Caminiti case: 1) Did the State give
up its right of control over the jus publicum by discontinuing to charge private dock
owners an annual rental fee? And 2) If the first is answered affirmatively, did this
promote the interests of the public in the jus publicum or did it substantially impair it
(670)? The court decided that by enacting RCW 79.90.105, the legislature didn’t give up
control over the jus publicum and did not convey title to any state-owned tidelands or
shorelands and affirmed that the Shoreline Management Act of 1971 (SMA) fully met the
requirements of the public trust doctrine. Because the construction of private docks is
regulated by the SMA, it fulfills the requirements of the public trust doctrine and does not
interfere with the jus publicum.
31
Additionally, the court stated that when properly regulated, “it is practical
recognition that one of the many beneficial uses of public tidelands and shorelands
abutting private homes is the placement of private docks on such lands so homeowners
and their guests may obtain recreational access to navigable waters” (674). The court
delineates the classic theory of public trust doctrine’s historical origins very similar to
what is stated by Joseph Sax roughly 15 years earlier by asserting that “the public has an
overriding interest in navigable waterways and lands under them”, a principle “at least as
old as the Code of Justinian, promulgated in Rome in the fifth century A.D” (668).
Sax had advocated the concept in his influential paper The Public Trust Doctrine
in Natural Resource Law: Effective Judicial Intervention, by affirming that the sources
of the public trust doctrine “received much attention in Roman and English law” (475).
While delineating the classic public trust doctrine ideals in this case, it also gives insight
to the modern form of the doctrine in two ways. First, private docks were not allowed to
block access to public tidelands and shorelands. Second, the courts acknowledged that
recreational uses of navigable waterways are naturally included in the limits of the
doctrine. This is a principle that had received little attention throughout the early history
of coastal law in the United States. The public trust doctrine was often invoked to allow
more general public use of coastal resources but the doctrine was stretched to allow
abutting landowners to increase their opportunities for recreational use as long as it does
not deny others the right of navigation.
Notwithstanding the modern application of the public trust doctrine in Caminiti v.
Boyle, limits to coastal access are expressly defined. No express permission is noted
that would give the public any access on private lands. This concept is naturally rooted
32
in the prior commentary regarding the sale of state-owned tidelands after statehood. The
judicial opinion states that, “Private docks cannot, of course, block public access to
public tidelands and shorelands, and the public must be able to get around, under or over
them” (Caminiti 674). The language used by the court in this statement does not allocate
any rights to the public that did not exist previously. The most significant finding in
Caminiti v. Boyle is that the public trust doctrine is recognized by the state as a
foundational theory for the management of the coastlines.
Recent Avoidance of Conflict
The case for beach-walking has been brought in the Washington high courts at
least three times in the last two decades but has been ignored or brushed aside each time.
An unpublished case in 2005, City of Bainbridge Island v. Brennan, dealt with the issue
briefly before disregarding it. During the turn of the twentieth century, a public wharf
was built on a private tideland at the end of a county road in Fletcher Bay, Bainbridge
Island. A ferry ran from the wharf to the mainland up until the year 1947 before it was
discontinued. Over time, the road leading up to the wharf was used less and less and the
surrounding land was subdivided and developed and the abutting homeowners attempted
to curtail the public passage at the end of the road by fencing and padlocking the area.
City of Bainbridge Island sued the homeowners in 1999 to quite title to the road end and
tidelands. The case was directed to the Court of Appeals who ruled that the road was still
public and that the property owners didn’t have the right to fence off the access area. The
court subsequently ordered the neighbors to remove most of their encroachments from
the county road all the way to the low tide mark on the sound.
33
One of the waterfront property owners near the disputed site, whose steep
property made beach accessibility difficult, made a case that the public had the “right to
pedestrian travel for recreational purposes corollary to navigation and fishing across the
tidelands of certain defendants based on our state’s public trust doctrine” (Bainbridge
17). It was the neighboring property owner’s intention to continue using the public road
as an access point to their neighbor’s tidelands regardless of ownership status. The court
dismissed the claim without offering a clear explanation and ordered the landowners next
to the road end to put up no trespassing signs in order to affirm the line of private and
public land. The case for recreational passage over public tidelands was quickly denied
but the court opinion was not published, thus preventing it from being cited in future
cases or used as precedent in the State of Washington. Little attention was given to the
beach-walking issue because according to precedent stated in City of Sunnyside v. Lopez,
the issue was already resolved. The court concluded, “The right to exclude others is an
essential stick in the bundle of property rights” (Bainbridge 16).
Although nothing monumental came out of the Bainbridge Island case, it is
worthy of note because it represents Washington’s conservative policy towards public
access toward private shorelines. Wording in the court opinion suggests that the judges
are of the opinion that the beachwalking issue is already resolved and has been for quite
some time. Not publishing the case and refusing to set clear precedent on this issue
shows that possibly the court feels that future changes might influence a different policy
down the road. The following case study on the shorelines of Michigan’s Great Lakes
shows how shifts in natural forces can influence dramatic revisions in policy.
34
The Great Lakes of Michigan
As the earth started to warm again after the last ice age, large glaciers receded into
the northern latitudes and left behind large amounts of freshwater which over thousands
of years was formed into what we call the Great Lakes. Four out of five of these lakes
border the State of Michigan in the upper Midwestern portion of the United States. These
lakes consist of Lake Superior which is the most northern and western of them all. It lies
on the northern facing beaches of Michigan’s Upper Peninsula and creates an effective
boundary between the United States and Canada. Lake Michigan touches the west coast
of the southern portion of Michigan and the southern coast of the Upper Peninsula. Lake
Huron, which lies on the east coast, is hydrologically unified to Lake Michigan by the
Strait of Makinac. Lastly, Lake Erie borders Michigan on its most south eastern corner
but epresents only a small portion of its total shoreline. Even so, the construction of the
Erie Canal in the 1800s provided Michigan with a trade route with the eastern states
which allowed growth in the region.
Figure 4 Satellite Projection of the Great Lakes Surrounding Michigan
35
The public trust doctrine is interpreted differently between every state and in the
case of Michigan, it has been interpreted many ways since joining the United States in
1837. Activists have been quite vocal in their opinions on the boundaries of public and
private land since the 1920’s and the debate has only increased in recent years. This
section is divided up into four portions that discuss the boundary disputes over the
shoreline of the Great Lakes. First, the settlement patterns and characteristics of
Michigan are discussed. This section looks deeper into the prominent resources of early
Michigan and how they affected population movements around the state. The second
section discusses the famous Kavanaugh cases and includes the follow up case Hilt v
Weber. The third section jumps forward to the famous case Glass v. Goeckel in 2004
which once again reevaluated the boundary line of public and private land using the
public trust doctrine. The final section discusses the counter response of private land
owners to the Glass v Goeckel decision through legislative channels.
Geographical Characteristics and Pre-statehood Industry
Washington State wasn’t the first area in the United States to be labeled as the
Great Northwest. In 1837 the state of Michigan joined the Union as the most
northwestern state in the USA. Beyond its boundaries was the Wisconsin territory which
includes modern day Wisconsin and Minnesota. For many years, Michigan was the
official frontier of the United States of America and settlers were not unlike those that
settled in Washington State. The people were attracted to the resources that the Great
Lakes provided including those that provided sufficient means to aid survival on the
frontier such as fish, game, fertile land and timber. One early visitor in 1688 commented
36
Figure 5 (Bald 186)
that it is difficult to imagine a more delightful prospect, than is presented by this
straight…” (Dempsey 149). Through his perspective, the fruitful landscape was
understood in the context of economic utility rather than appreciated for its wild beauty.
It didn’t take many years before the corporate interests started to take advantage of the
area surrounding the Great Lakes. Commercial fishing entered the state in 1833 and by
1840 the total catch reached an astounding 7 million pounds. Twenty years later in the
beginning of the civil war the catch reached over 17 million pounds per year (Dempsey
150).
Rather than settle the coastline however, the majority of new residents moved
inland and northward in order to take advantage of the fertile soils (Bald 284). “The
choicest spots in Michigan and those which were quickly purchased were the prairies.
Scattered especially through the southwestern part of Michigan, these treeless areas were
attractive because of natural beauty, fertility, and comparative ease of cultivation. They
37
were covered with prairie grasses which grew “four or five feet high which was excellent
pasturage for horses and cattle” (Bald 155). Much of the shorelines in the Southern
region of Michigan were covered by dunes and not conducive to farmland. The
migration inland was demonstrative of a Lockean notion that property was only truly
owned by ones own labors on it. Newcomers to Michigan knew that “the wealth of the
state was largely in the farms and their products” (Bald 250).
Logging was the other profitable sector that settlers were moving inland to take
advantage of. One resident of Saginaw County in 1854 estimated that 61 water powered
sawmills were producing 108 million feet of lumber annually. By 1872, that number had
increased substantially with over 1,500 sawmills which employed over 20,000 workers.
The estimated annual combined output was just over 2.8 billion feet of lumber. At this
time Michigan’s Upper Peninsula had not even been exploited yet, but logging
companies were acutely aware of the wealth that was available in the area. The Great
Lakes played a fundamental part of this logging boom and one account writes that the
waters “…have been and are of inestimable value to many interests, but to none more
than those of the lumberman. They have borne myriads of logs from the forests along
their banks to the booms of mills located at convenient shipping points, and this
economical transportation has added millions to the profits of the business and greatly
aided its remarkable development” (History of the Upper Peninsula 155).
Michigan’s logging industry hit its peak during the late nineteenth century and hit
a speedy decline as the supply of lumber became exhausted. This brought greater
attention to the tourist industry which had been growing steadily for over a hundred
years. The wealthy businessman that had been coming to Michigan during the summers
38
to inspect mining, and
logging operations were
bringing their families to
the shores for the summers.
When the logging
operations began to
dwindle, people began to
see the Great Lakes as the
Figure 6 US 2 along Lake Michigan’s Shore (Titus 120)
“single greatest recreational asset”
(Sommers 137). Residents looking for economic opportunity migrated to the shoreline to
accommodate an increasing number of tourists spending their summers on the sandy
beaches. The industry gained real legitimacy in 1917 when The West Michigan Tourist
and Resort Association formed and also in 1929 when the legislature appropriated
$100,000 to advertise the state abroad. By the year 1936, income from tourists was
estimated to exceed $300,000,000 (Titus 88).
39
Conflicting decisions in Michigan’s Supreme Court
By the 1920’s, much of the shoreline forest had been logged and which paved the
way for increased development. The water level in the lakes was also receding and
exposing new land available for construction (see Figure 7).
Figure 7 Surface water elevation in Lake Huron by year measured in meters; courtesy of NOAA
Residents began building houses, vacation homes and beach cottages on this newly
cleared land all over Michigan’s lakes. What happened next became a turning point in
shoreline property rights during a series of Supreme Court cases commonly known as the
Kavanaugh cases. Kavanaugh v. Rabior (1923) and Kavanaugh v. Baird (1928) were part
of a decade long battle which concerned a dispute regarding the meander line. “A
meander line is a traverse line run along the margin of a stream or a lake used to
incorporate lakes and streams into the grid. All navigable waters and many nonnavigable were meandered but meander lines were not intended to be used as coastal
40
boundaries. “They were approximations that helped federal officials compute how much
land was available for sale (Steinberg 72). According to the U.S. Supreme Court in 1891,
meander lines were used to ascertain “the exact quantity of the upland to be charged for,
and not for the purpose of limiting the title…” (Hardin 380). Often times these meander
lines corresponded to a certain degree with the natural water lines of the Michigan lakes
but there were many differences in other areas.
Such was the case in a parcel of ocean front property in Saginaw Bay owned by
William Kavanaugh. A considerable distance existed between the meander line and the
actual shoreline, which for a variety of reasons was getting larger every year. Expanding
beach front property might seem like a benefit to some but it turned out to be burden on
Kavanaugh. John Rabior discovered that this recently created land had not been properly
surveyed which made it invisible to the state tax code. As a fisherman he saw an unused
opportunity for free beachfront property so he “just squatted on the land” (Records and
Briefs 1923). Kavanaugh wasn’t pleased with a new home on his beachfront and filed
suit to have him removed. His case won in the circuit court but was appealed all the way
to the Michigan Supreme Court who overturned his case. He filed again a second time to
recover the property by settling the title and won in the circuit courts but the case was
appealed and later denied in the Supreme Court. The Kavanaugh court interpreted the
land below the meander line to be state owned land, subject to the public trust doctrine.
This decision converted hundreds of miles of lake shore from private to state
ownership and opened up a plethora of new issues. Landlords were suddenly
unauthorized to collect rent on land which had been transferred to public hands and
41
renters immediately stopped paying rent. This prompted shorefront land owners to
organize as the Shore Owners Equity Association and state their strict opposition:
This is a move on the part of ambitious politicians acting for the state of
Michigan, to confiscate farmers’ and resorters’ property without paying a
cent for it. . . . It is a blow at the development of Bay City and the
surrounding territory, as substantial summer homes will not be built on
land which is open to trespass by everybody, irrespective as to race, color
or character (Steinberg 78)
Unwilling to lose this battle, Kavanaugh took his case to the court a third time.
He filed suit in 1923 against John Baird who was the representative of the Department of
Conversation with the intent to invalidate the Kavanaugh based on a portion of the
opinion where the judges distinguished between accretion or reliction based growth of the
beachfront property. Part of the earlier decisions in the previous cases mentioned that
only relicted land was brought into state ownership so he brought forth evidence to
suggest that his waterfront property below the meander line had accreted over time. His
evidence was convincing but the Judge Houghton did not find interest in it and concluded
that there was no need for property owners to be digging through layers of sand in order
to prove whether their property increased by accretion instead of reliction. Houghton was
primarily concerned with setting the property line at the meander line and closing out the
issue (Steinberg 80). Kavanaugh lost for the third and last time but the people weren’t
willing to let the issue pass. It was only a few years before the issue returned again to the
Supreme Court. Three years later Senator Orville Atwood brought forth a bill to change
the boundary back to the shoreline. The bill went all the way to the governor but was
vetoed.
The meander line as a property line was new and confusing to many people and
legal and social disputes continued to grow. The most famous dispute between John Hilt
42
and Herman Weber escalated all the way to the Supreme Court. The case involved a plot
of land on the shore of Lake Michigan in which the meander line was 277 feet from the
water’s edge and raised up 44 feet above the 1929 level of the lake. Weber purchased the
property from Hilt’s agent with the knowledge that a wooden stake 100 feet from the
shore marked the boundary. When Weber later found that the meander line was actually
the border of his newly purchased property he stopped paying his payments. Hilt sued to
foreclose on the land contract and Weber countersued for fraud dealing with the sale of
the land. Weber argued that the western boundary of his property was sold to him with
misrepresented disclosures. The court had filled three new positions since the first
Kavanaugh hearing and examined deeply the wisdom and legality of using the meander
line as a boundary. The opinion of the court declared:
On its admission to the Union, the state, as a sovereign, took title only to
such land on the Great Lakes as was then submerged and was, in fact, lake
bed. Except as to parcels covered by special grant, of no application here,
the state never has acquired title to land which was then upland and has
continuously remained dry even though, by reason of a mistake of a
surveyor, there was such land between the meander line and the shore
when the survey was made (Hilt 163).
The majority of the court discredited the Kavanaugh decisions and entirely
reversed the notion that the meander line represented a boundary between private and
state land. Six judges out of the eight declared that the previous shoreline boundaries
were based on false precedent from the case Ainsworth v. Hunting & Fishing Club
(1909) which states, “It is the established law of this state that riparian owners along the
Great Lakes own only to the meander line, and that outside this meander line, subject to
the rights of navigation, is held in trust by the state for the use of its citizens. Among
these is the common right to fish and hunt” (Ainsworth 64). At that time of this case and
43
in the area of controversy, the meander line and the water’s edge were one and the same.
It was expressed by the Hilt v. Weber court that State v. Fishing never touched on the
issue of boundaries and that the opinion is solely Mr. Justice Hooker’s. By reversing this
decision the courts reopened hundreds of miles of shoreline for private ownership and the
realty community was relieved.
The Hilt v. Weber decision was legally upheld as the basis for shoreline
management decisions throughout the rest of the 20th century. The Attorney General of
Michigan reiterated his interpretation of the Hilt v. Weber in a 1978 stating:
1. A riparian at all times owns the upland to the ordinary high water mark,
and may exercise control thereto, by virtue of rights stemming from the
Federal patent.
2. The ordinary high water mark is set for all the Great Lakes . . . and
when the water recedes below the ordinary high water mark, the riparian
owner has control over the exposed area, but may not place any permanent
structures, or do any dredging or filling on this land without a permit from
the Department of Natural Resources.
3. The public may not use the beach whether it extends to the ordinary
high water mark or to the low water mark. The public, however, has the
right of passage in any area adjacent to riparian land covered by water
(AGO 1978 No. 5327).
44
Using the Public Trust Doctrine to Change Shoreline Boundaries
The issue of shoreline property rights remained relatively quiet for the remainder
of the 20th century until another drop in water levels coincided with a minor dispute over
a property easement (see figure 5). It started as a property dispute but evolved into a
Figure 8 Surface water elevation in Lake Huron by year measured in meters; courtesy of NOAA
discussion regarding the public’s rights on the shoreline. Joan Glass was entitled by deed
to an easement across Richard and Kathleen Goeckel’s property in order to access Lake
Huron. The Goeckels disputed the easement so Glass sued to enforce the terms. This
matter was resolved one year after the case was brought forward, but the one issue that
remained unsettled was whether or not Glass was able to walk on the Goeckel’s beach
property without issue. The Supreme Court specifically laid out plans for the case:
45
The issue presented in this case is whether the public has a right to walk
along the shores of the Great Lakes where a private landowner ostensibly
holds title to the water’s edge. To resolve this issue we must consider two
component questions: (1) how the public trust doctrine affects private
littoral title; and (2) whether the public trust encompasses walking among
the public rights protected by the public trust doctrine (Glass 62).
Unlike the state of Washington, the Michigan Supreme Court addressed the issue
of walking on the beach without ambiguity. The court was very clear about the objective
of the case and what questions need to be asked in order to arrive at an answer. Leading
up to the supreme court decision however, the case had been settled in different ways.
The initial trial court has granted summary disposition to Glass on the basis stated in the
Great Lake Submerged Lands Act that she had the right to “use the shore of Lake Huron
lying below and lakewards of the natural ordinary high water mark for pedestrian travel”
(Glass-Appeals 2). The issue was raised in 2004 in the Michigan Court of Appeals who
reversed the trial court’s decision and found the Submerged Lands Act inapplicable in the
decision. It was decided in a published opinion that “the state of Michigan holds in trust
the submerged lands beneath the Great Lakes within its border for the free and
uninterrupted navigation of the public. . . .” (Glass-Appeals 8). This set the precedent for
property owners to prohibit the public from walking on their privately owned beaches.
When the case was appealed to the Supreme Court, the Goeckel team argued to the
Supreme Court that “as a matter of law, plaintiff could not walk on defendants’ property
between the ordinary high water mark and the lake without defendants’ permission”
(Glass 6).
In Glass v. Goeckel, the Supreme Court analyzed the limits of the public trust
doctrine in the State of Michigan rather than title on shorelines which had already been
established in Hilt v. Weber (Glass 25). It was established again that the law of the sea
46
applies to the Great Lakes as well, even though they aren’t subject to the same tidal
influences. Thus different verbiage was established to identify the boundaries of the
public trust land. The court embraced “ordinary high water mark as the line which would
determine the boundary of public trust application. The definition of the high water mark
was defined by their “sister state” Wisconsin as:
the point on the bank or shore 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. And where the bank or shore at any particular place is of
such a character that is impossible or difficult to ascertain where the point
of ordinary high-water mark is, recourse may be had to other places on the
bank or shore of the same stream or lake to determine whether a given
stage of water is above or below ordinary high-water mark (Glass 27).
The court asserted that “although the state retains the authority to convey
lakefront property to private parties, it necessarily conveys such property subject to the
public trust” (Glass 11) “Because walking along the lakeshore is inherent in the exercise
of traditionally protected public rights of fishing, hunting, and navigation, our public trust
doctrine permits pedestrian use of our Great Lakes, up to and including the land below
the ordinary high water mark” (Glass 5). The court even goes as far to deem the state a
“trustee” with the obligation to “preserve specific rights below the ordinary high water
mark and permit only those private uses that do not interfere with these traditional
notions of the public trust” (Glass 31). Judges went as far back as The Northwest
Ordinance of 1787, one of the oldest documents from the region, to explain their
decision, “The navigable waters leading into the Mississippi and St. Lawrence, and the
carrying places between the same, shall be common highways and forever free. . .
”(Northwest Ordinance). The courtroom drastically changed once again the status of
47
littoral property ownership on Michigan shorelines. What was once deemed to be private
property became property which required the owner to allow public passing and
repassing.
Strong opposition formed to fight back against the court’s decision. The
opposition put their money skills behind Save our Shoreline, a non-profit organization
founded in 2001 that advocates strict littoral proprietary rights and continues to argue that
the decision is an unconstitutional taking and inconsistent with prior Michigan law. An
amicus brief written by Save Our Shoreline states that allowing the public the right to
walk on privately owned shorelines is a violation of the 5th amendment to the constitution
and a taking without just compensation. According to Save Our Shoreline, this is
“abundantly clear” because of the fact that the Glass court “had to create such a definition
167 years after the state’s admission to the union” (Amicus 15).
Save Our Shoreline also argued that the decision violates the precedent found in
Hilt v. Weber giving the riparian land-owners concomitant right of exclusive use to the
water’s edge (Hilt 176). In order to illustrate their point, the groups reiterates a passage
of the Hilt v. Weber opinion which states, “And it has been held that the public has no
right of passage over dry land between low and high water mark but the exclusive use in
in the riparian owner, although the title is in the state” (Hilt 174). The last part of this
quote “. . . although the title is in the state.” is responsible for the majority of the
confusion regarding the issue of beach-walking in Michigan. The fact that the state gives
“exclusive use” of its beaches to littoral landowners but reserves title for itself (or for the
public trust) is an interesting concept. It is no wonder why radically opposed
perspectives can generate from the same cases. The President of Save our Shoreline
48
expresses his disapproval, “If the government can confiscate my beach in this way, then
what’s to stop them from taking the rest of my property? When they take our property,
they are taking away our liberty, and people should be very concerned about that” (Press
Release 2009).
Conflicting rulings on the issue of shoreline property rights are not out of the
ordinary in Michigan. However, new issues have arisen as the environment has changed.
One common issue is if title remains with the property owner in full, who is required by
law to allow public access on land below the high water mark, who is actually
responsible for the
area below the high
water mark? The lake
has been receding in
recent years and an
invasive species
called Phragmites has
been growing on the
beaches. Phragmites
Figure 9 Phragmites- Photo ©2006 Susan Vincent, Accessesedhttp://www.fs.fed.us/database/feis/plants/graminoid/phraus/all.html
grow 10-15 tall and
crowd out native vegetation. When they chopped up or mowed over a new infestation
grows where each piece lands. Catherine Ballard, chief of the Michigan Coastal
Management Program, which is part of the Environmental Science and Services Division
of the state's Department of Environmental Quality says, “Basically there has been
regulatory conflict for the past four years” regarding this invasive vegetation. Residents
49
were concerned about which practices of vegetation grooming were legally permissible.
If the public trust doctrine was powerful enough in the eyes of the court to take away a
right to prohibit public access on private property, was it powerful enough to restrict
homeowners from managing invasive species on private property? Goeckel’s attorney
who is also the vice president of Save Our Shorelines (SOS) said, "Phragmites is growing
on beaches; we go talk to DEQ [Department of Environmental Quality] about it, and it's
going to take years for something to get done. Government departments are just not
nimble. Shoreline owners could take care of it in a week or a day." He went on to say,
“The position of SOS, and the reason we got involved, is that we did not want the public
trust to be established to the high water mark” (Coastal Services 6).
Refining Boundary Lines in the Legislature
Rather than continue to directly oppose the decision made by the Supreme Court
to allow public access below the high water mark, Save our Shoreline has worked to
assure the continuity of existing private property rights by organizing a bill which
eventually turned into law in 2012 giving the following rights to shoreline property
owners: “1) Leveling of sand, removal of vegetation, grooming of soil, or removal of
debris, in an area of unconsolidated material predominantly composed of sand, rock, or
pebbles, located between the ordinary high-water mark and the water’s edge. 2) Mowing
of vegetation between the ordinary high-water mark and the water’s edge” (SB 1052 7).
Opinions on the effect of this legislation were split. Environmental groups argue that
cutting beach vegetation disrupts the chemical makeup of the lakes which further disrupts
fish populations. Homeowners argue that a permit from the government should not be
50
necessary in order to landscape private property. Whichever position one takes, it is
based off the original argument about who really should have authority over shorefront
property. Some see an expansive public trust doctrine as a way to preserve the Great
Lakes for future generations. One source leaning in this direction establishes a ten point
plan for intergenerational protection of the Great Lakes. Three of these points are:
1)
The waters of the Great Lakes are a human right and must be equitably and
justly shared.
2) Private interests of those with claims to the Great Lakes are subordinate to
public rights.
3) Governments have an affirmative obligation to manage and protect the water
of the Great Lakes as a Commons (Barlow 31)
This viewpoint bears a striking contrast to the goal of Save our Shoreline stated
previously. The current status of the shoreline conflict in Michigan revolves around two
groups which include those who advocate for more exclusive property rights on the
shoreline and those who advocate for more public access.
This debate isn’t looking like it will disappear in the short term future. The public
trust doctrine that was passed to United States law from the British was primarily
intended only for tidal waters and lands. Although it is suitable for the public trust
doctrine to apply to the Great Lakes because of their classification as seas, many of the
disputes and frustrations over the application of the doctrine are due to the fact that they
are non-tidal waters. The doctrine was originally intended for application in areas with
very little variation in water levels and small amounts of salt-water dependent vegetation.
Time will tell what policy adaptations will need to occur in order to conform to the
guidelines of the public trust doctrine.
51
Chapter IV
Analysis
The previous chapter exposed many similarities and differences between the
Great Lakes of Michigan and the Puget Sound of Washington. In this chapter these
aspects are addressed more closely with the intent of answering the question of which
factors have had the largest influence on public ownership laws in the two states.
Examining the distinctive characteristics of each location will provide greater insight into
the development of each states application of the public trust doctrine and their
justification for public beach access laws. Upon closer inspection of the data, two main
factors were uncovered that led to disagreeing state policies. Economic resources and
shifts in water levels are the main factors that will be compared more closely in this
section.
Both Michigan and Washington were frontier lands and both were recognized as
the northwestern United States at different points in U.S. history. The first accounts from
early settlers seem to be equally filled with examples of awe and fascination. However,
the great appreciation for the beauty of each area was often focused on the wealth and
economic utility that the resources could provide. The economic goals between the
settlers were representative of the geographical landscapes in which they inhabited.
The early residents of Western Washington were drawn to the coastline for the
resources that the tidelands provided. Residents of Michigan however, followed the
state’s resources inland to the fertile land and the forests. As more and more people came
to homestead in the state, settlements moved farther north and inland. Shore front
properties were owned mainly for vacation and recreation purposes by those that had
52
disposable income. The rest of the population was concerned about finding work and
providing for themselves and their families. Farming and timber harvesting were the
dominant areas of sustaining employment at the time. It wasn’t until the 20th century
when the logging industry was declining that a large amount of people saw tourism as a
legitimate source of income as well. The allure of Michigan as a vacation destination or
a place to own a beach house allowed for new types of employment away from the state’s
interior.
The result was that each state was compelled to address coastal property
management law in different ways.
These differences are noticed clearly in each state’s
constitutions. It was examined in Chapter II that Washington attributed an entire section
of its original constitution to the management of the tidelands. This inclusion was critical
to the organization of the early state because of the issues that were being faced with
squatters, claim jumpers and clam diggers interested in making quick money off Puget
Sound resources. Washington asserted its authority of the land up to the high tide mark
early on out of necessity to keep order in the new state. The wording in the original
constitution set a significant precedent especially in the cases discussed in the previous
chapter. The Caminiti case cited Article 17 as sufficient precedent to justify the state’s
authority to lease tidelands. Bainbridge Island v. Brennan suggests that the public trust
doctrine was expressed by the Washington legislature through the constitution.
On the other hand, there is no mention of shoreline law in Michigan’s state
constitution. The same type of attitude towards Michigan’s shoreline wasn’t prevalent
during the territorial days. The Great Lakes were very important to the State of Michigan
53
but no shore line territorial disputes had a large enough impact to garner the attention of
the legislature or the highest courts until the 20th century.
Another reason why early conflict appeared less on the shoreline of Michigan was
because of the lack of economic resources that could be derived from it. Main historical
accounts make no mention of the Michigan shoreline being able to provide a natural
resource that can create economic profit. The most important resource based economic
activities were fishing and logging and although fishing was plentiful, the profitable
portion of it was performed mostly using boats. The loggers viewed the shore as merely
an inventory storage place between the land and the sea.
The tidelands of Puget Sound however, were a resource to be claimed. The
availability of naturally occurring shellfish or the prospect of claiming area to cultivate
shellfish brought the people down to the shore for economic gain and profitability.
Disputes arose early in the territorial days over who had the rights to the shellfish on the
tidelands and escalated to become the main topic of contention during the constitutional
convention. Soon after, the state leased the tide lands to prospective shellfish farmers as
a revenue stream. This encouraged residents to move to the water’s edge for economic
reasons. Shoreline law was pressured to develop much earlier and in a much more
definite way in Washington than in Michigan. Sequim Bay Cannery Co. v. Bugge was a
prime example of a dispute that forced the courts to address ownership issues even after
the constitutional debate. The case shows that coastal resources were an important
resource worth protecting and that often the courts were needed to resolve the dispute
early in the days of statehood.
54
Ownership conflicts came much later in Michigan but are attributed to the natural
and anthropogenic forces that affect the water level. The waters of Puget Sound are
tidally connected with the Pacific Ocean where water levels rise and fall only by tidal
influences. Consequently, large fluctuations in water levels have not been a topic of
dispute in any cases dealing with Puget Sound’s tidelands. Conversely, the water level
on the Great Lakes is affected by factors such as water diversion for human use and
changes in precipitation. Often water levels change considerably with a combination of
those two factors. Earlier in this work, Figure 7 showed the water levels decreasing
around the same time that the Kavanaugh cases were being heard in the Supreme Court.
In fact, a sudden increase in available land during the early 1900’s was specifically cited
as the foundation of the conflict over shore line property ownership. Figure 8 showed a
significant drop in water level around the time of the Glass v. Goeckel disputes. This
water level drop of the late nineties put Lake Huron at the lowest level since the sixties
and the lake level has been below the 1918-2013 mean level ever since. While not
specifically stated, it could be hypothesized that the drop in water level added a certain
tension between shoreline property owners and the public.
The way each state measures the water level is also an important difference in this
analysis. Washington has always measured the changes in Puget Sound water level by
using the tide lines: high tide, mean tide, and low tide. However, Michigan is much more
complex in this aspect because of the unpredictable variances of the water level over the
years. Debate over how to define shoreline boundaries amidst changing water levels was
central to all three major Michigan cases described in Chapter 3.
55
In conclusion, this comparative analysis has shown that natural factors play a
large part in the development of coastal policy. This is significant because it shows that
shoreline policies might be less tied to political influences than previously thought and
more closely connected with people’s adaptation to the forces of nature. Overall
however, it is essential to understand that a multidisciplinary approach is necessary when
interpreting any coastal decision because of the complexity of the coastline.
56
Chapter V
Conclusion
Although Michigan and Washington both assert ownership over all navigable
waters and shorelines, each has approached shoreline policy in different ways.
Washington asserted ownership early on in the history of its statehood and its policies
have remained relatively unchanged since. Michigan waited for a significant dispute
before it resolved the issue and was then subject to the decisions of a Supreme Court
unaccustomed to the intricacies of shoreline boundaries. The present boundaries between
public and private land have evolved on a case by case basis as lawmakers attempt to
make sense of the Great Lake’s changing environment. Exploring the historical,
geographical and natural influences surrounding the laws and policies of each coastline
has revealed key reasons why Michigan and Washington approach coastline management
in different ways.
The key principle in the understanding of this study and the foundation of the
debate surrounding the shoreline is based off the public trust doctrine which has received
considerable attention in recent years due to the writings of Joseph Sax. He advocated
using the doctrine as a tool for increasing public ownership of resources but his theory is
not as effective as he hoped it to be. Michigan was able to allow public beach walking on
private shorelines based on the doctrine but Washington has used the same doctrine to
sell tidelands to private ownership under its authority. Each state’s application of the
public trust doctrine is different and the ability to use the doctrine as a tool depends much
on each state’s unique characteristics and precedents.
57
Future research in this area can investigate the role that current environmental
issues such as global climate change will have on each state’s policy toward the issue of
public and private shorefront lands. For example, Lake Huron is experiencing very low
water levels during the last 15 years due to a combination of anthropogenic and natural
forces and scientists are not hopeful that levels will rise in the short term. Climate
change and increasing demand for water to supply a growing population could force lake
level even lower which under current laws would merely increase abutting shoreline
owners’ property. New shoreline land created from reliction will likely cause disputes as
property lines begin to cross. Research into where these disputes are most likely to occur
would be beneficial to law makers and those involved in real estate.
In closing, this research mirrors the words of Rachel Carson who passionately
wrote, “The shore has a dual nature, changing with the swing of the tides, belonging now
to the land, now to the sea.” She went on to describe it as a “strange and beautiful place”
and a “place of compromise, conflict and eternal change” (xiii, 1-2). The coastlines are
always changing and laws and policies will continue to change along with them but
understanding the nature of current and past laws will allow people to efficiently manage
the coastlines of the future.
58
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