Asked and Answered . . .

Alan Ackerman on public access to lakeshore beaches

By Steve Thorpe
Legal News

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

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

When individuals buy properties on lakes and streams, the owners frequently believe that they control the property to the water so no one may walk on whatever beach area exists. These owners do not have an understanding that there has been a traditional “high water mark” ownership that is maintained by the public at large.

Owners frequently contest what the “high water mark” is and frequently maintain that their individual states allow them total privacy to the beaches.

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

There is an alleged collision of rights here in this situation.

First, the “high water mark” changes over years given the climate changes and water fluctuations in lakes and streams.

There is the additional question of whether the state law abrogates the federal limitation that the water is controlled by the public to the “high water mark”.

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

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

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