Michigan enjoys one of the longest coastlines in the United States thanks to its inland seas — the Laurentian Great Lakes.¹ While not large enough to be tidal, the power of the Great Lakes and the resulting dynamics of their shorelines are much like ocean coasts with portions of beach alternatively (if infrequently) submerged and exposed as lake levels fluctuate over seasons, years, and decades, and much of that shoreline receding over the long term by about a foot every year due to erosion.² Most of Michigan’s Great Lakes shorelines are privately owned and many shoreland properties have been developed with structures built on sandy shores at risk from coastal storm surges, decadal periods of rising water levels, shoreline erosion and recession, and, ultimately, permanent submersion.³ Those risks will almost certainly persist (if not worsen) because the lakes will likely continue to rise and fall over time, as they always have, such that much of Michigan’s Great Lakes shorelines will continue to recede landward remorselessly and irrepressibly over time.

Because of record high lake levels for the past several years, shoreland property owners have been installing armoring structures like seawalls and revetments in an effort to arrest those natural processes. Unfortunately, those armoring structures, especially where extensive, will ultimately yield significant degradation to — if not the complete loss of — the state’s natural coastal beaches.⁴ Conversely, not installing armoring means that structures and shoreland properties situated along receding shorelines will ultimately give way to the lake.

The clash of imperatives to protect shoreland properties versus conserving coastal resources yields a wicked dilemma the state cannot avoid: should we allow armoring of Michigan’s Great Lakes shorelines in a way that fixes shoreland properties in place perpetually (at least so long as those structures are maintained) at great private and public expense, and even at the ultimate loss of public trust resources? Alternatively, should we allow — and compel shoreland property owners to allow — natural processes to proceed, even if it necessarily results in the conversion of privately owned shorelands into submerged, state-owned bottomlands? It is becoming increasingly evident that we cannot hope to protect both the beach and the beach house along naturally receding shorelines; we must choose which one to prioritize, recognizing the unavoidable cost of doing so may mean ultimately losing the other.

In addition to the complex physical dynamics at play, Michigan’s Great Lakes shorelines are subject to legal complexities as well. The state has long recognized the applicability of the public trust doctrine to its Great Lakes shores, and Michigan courts have resolved several key attributes of that and related doctrines through litigation. Even so, given improved scientific knowledge, increasing development pressures, and increasingly dynamic coastal processes tied to global climate change, conflicts and questions will likely arise in the foreseeable future.

The authors have been researching this topic to identify legal claims most likely to arise regarding shifting Great Lakes coastal shorelines, analyzing Michigan case law related to those matters, and considering the potential adjudication of those claims. Our goal is to fully contemplate the legal, policy, social, and environmental pros and cons implicated by potential resolutions to those likely claims so adjudication is made with a full understanding of both the short-term and the long-term tradeoffs that will necessarily follow.

The purpose of this article is to present preliminary framing of this topic and offer information useful to State Bar members and solicit feedback on our work. In order to understand the key questions that have yet to be resolved, it is helpful to first step through issues that are well settled. We summarize the key attributes of the state’s public trust doctrine and related doctrines and identify several issues likely to arise as we struggle to reconcile public trust and private shoreland rights and expectations along Michigan’s Great Lakes.

MICHIGAN’S GREAT LAKES PUBLIC TRUST SHORES

Almost as soon as Michigan became a state in 1837, seminal federal and state cases made clear that its inland seas — the Great Lakes — represented an especially valuable resource for its citizens and imposed on the state a unique duty to safeguard those resources under the public trust doctrine. The U.S. Supreme Court made clear in 1845 that states joining the Union after the original 13 did so on equal footing with the same rights, sovereignty, and jurisdiction over navigable waters and lands submerged by those waters.⁵ In two key cases decided in the early 1890s, the Supreme Court further held that under the public trust doctrine, a state may not grant title to lands submerged by navigable waters (including the Great Lakes) to private entities except when doing so serves a public trust interest;⁶ that the public trust jurisdiction over those waters and submerged lands extends to the high water mark;⁷ and that beyond those precepts, the title and rights of riparian and littoral owners (particularly with regard to public rights) are governed by the laws of the several states.⁸ Today, it is well settled that title to and jurisdiction over navigable waters and submerged lands underlying them, as between the federal and state governments, are determined by federal law under the equal footing doctrine.⁹ Once the state has title to the bed and banks of a navigable water body, however, the boundary lines of the state’s ownership interests and duties between the state and private shoreland owners are a matter of state law determined under the state’s public trust doctrine.¹⁰

Resolving conflicts and questions regarding shifting coastal shorelines along Michigan’s Great Lakes, therefore, necessitates looking at Michigan’s own unique public trust doctrine both in and of itself and vis-à-vis other relevant doctrines.¹¹ A Michigan chancery court first acknowledged the applicability of the public trust doctrine to the Great Lakes and lands submerged by them in 1843.¹² That ruling and the key principles flowing from it have been recognized and upheld repeatedly by the Michigan Supreme Court ever since, now constituting well-settled law.¹³ In its most recent decision speaking to the public trust doctrine, Glass v Goeckel, the Michigan Supreme Court reviewed extensively the origins and history of that doctrine, reaffirmed a number of its prior elements, and provided additional clarification.¹⁴

The most robust elements of the state’s public trust doctrine are that:

• It applies to the waters and submerged lands of the Great Lakes, including some portion of their foreshores, albeit not to the state’s inland lakes and rivers;¹⁵
• The state owns title to the submerged lands underlying the lakes up to the water’s edge in trust for the people;¹⁶
• Private entities (and governments) can own title to shorelands adjacent to a lake, extending from the water’s edge landward, enjoying littoral rights by virtue of doing so;¹⁷
• The boundary separating bottomland and shoreland dominion (jus privatum) title interests is an ambulatory or moveable free
• hold boundary capable of moving lakeward and landward as the water’s edge shifts through erosion, accretion, inundation, and reliction;¹⁸
• The state also holds a jus publicum interest over the waters of the Great Lakes and lands submerged by them both permanently and periodically up to the “ordinary high water mark” on the shore;¹⁹
• The jus publicum imposes a duty on the state as trustee to conserve those waters and lands for the public interest in navigation, fishing, fowling, commerce, and the access necessary to do those things (including beach walking);²⁰
• The boundaries of jus privatum title ownership (i.e., the coterminous boundary separating state-owned bottomland from privately owned shoreland) and the reach of the jus publicum can and do often overlap; while a shoreland property owner owns to the water’s edge, the title interest is impressed with a public trust servitude lakeward of the ordinary high water mark;²¹ and
• The state cannot surrender the public rights protected by the jus publicum “any more than it can abdicate the police power or other essential power of government;”²² however,
• The state can grant jus privatum title ownership of submerged Great Lakes bottomlands, but only with “due finding of one of two exceptional reasons”: where the state has determined that doing so provides improvement of the public trust or such disposition can be made “without detriment to the public interest in the lands and waters remaining.”²³

Indeed, despite earlier decisions conflicting on the question of where the boundary separating jus privatum title interests (i.e., between submerged bottom land and adjacent shoreland) falls (i.e., at the water’s edge or elsewhere),²⁴ the case law establishing these elements of Michigan’s public trust doctrine has been remarkably consistent. Moreover, the majority and dissenters in the 2005 Glass v. Goeckel decision agreed on virtually all aspects of the doctrine (particularly those addressed or summarized) save for the single question of how far landward the state’s jus publicum interests and duties extend and, correspondingly, how far landward on a Great Lakes beach the public has the right to walk.

On that specific issue, Justice Stephen Markman would have found the lakeward boundary of the jus privatum title interest of a shoreland property boundary to be coincident with the state’s jus privatum and jus publicum dominion interests and placed all of them at the water’s edge, encompassing the wet sand beach.²⁵ Justice Robert Young would have placed those boundaries strictly at the water’s edge.²⁶ Neither justice would have recognized a natural ordinary high water mark (OHWM) or the public trust right to walk along the dry sand portion of a Great Lakes beach — only the right to walk along the wet sand portion of the beach or the walkable portion submerged, respectively. Presumably, neither position would alter the analysis of unresolved questions given shifting coastal shorelines and efforts to arrest shoreline recession because hard shoreline armoring ultimately destroys the entire walkable portion of a beach — dry sand, wet sand, and submerged but still walkable. Nonetheless, some inherent conflicts between principles and less-than-full consideration of their implications leaves some uncertainty.

UNRESOLVED QUESTIONS AND NEXT STEPS

Key dynamics that Michigan courts have not yet fully contemplated and underlie the core of issues likely to arise include:

• Great Lakes shorelands do not just shift lakeward and landward over time as lake levels rise and fall, but are indeed slowly receding landward on average;
• That process will almost surely be exacerbated and accelerated by climate change, a condition not yet considered by the courts;
• The increased bulk and linear extent of shoreline armoring being built and its corresponding potential to degrade and eliminate natural shorelines for long periods of time arguably exceed conditions considered before; and
• The extent of development pressures putting shoreland property investments at risk, particularly in the form of large, permanent residential structures, arguably exceeds conditions considered before.

None of these appear to be abating, and all put a point on the unavoidable dilemma the state confronts looking forward.

Given the doctrinal questions that have been resolved to date combined with these evolving dynamics, the following fundamental questions are likely to arise in the foreseeable future:

• Do Great Lakes coastal shoreland property owners in Michigan have the lawful right to armor their shorelines under state common, constitutional, or statutory law — even if doing so has or might result in the degradation or loss of natural beaches and other public trust resources?
• Does the state (or its Great Lakes coastal localities by delegation) have the lawful authority (if not duty) to constrain (if not fully prohibit) the installation and maintenance of such armoring or possibly compel its removal at some point in the future once installed?
• Which branch of government — especially between the legislature and judiciary — has the primary authority to balance the rights and interests at hand? How should that authority be properly tempered by the other branch(es), deploying which principles of law?
• To what extent would governmental efforts to enact and administer such regulations implicate liability under protections of private property afforded by federal and state due process, equal protection, and regulatory takings doctrines?
• Do Great Lakes coastal shoreland property owners in Michigan have viable claims in nuisance against neighboring shoreland property owners who install shoreline armoring that accelerates the erosion or degradation of their properties?

So far, we have found no Michigan case law that definitively answers any of these questions, especially when contemplating the competing interests at play in light of the evolving physical and legal dynamics we now confront. We welcome any counsel on our framing of these questions or suggestions for additional questions that should be addressed.