Article IX of the Wisconsin Constitution declares that all navigable waters are “common highways and forever free” and held in trust by the state of Wisconsin. The Wisconsin Department of Natural Resources is charged with determining the navigability of our state lakes, rivers and streams. They generally define “navigable” as being below the ordinary high-water mark.
For fat bike riding (or walking) along Lake Michigan, we would start on public beaches where the sand extends past private property, where the landowners have riparian rights to the waterway. We had to keep our tires on the wet sand to avoid trespassing. That was often where the firmest sand was anyway, so it was perfect. Note, this also affects winter riding.
In years when the water level of Lake Michigan was low, we had wide beaches to ride. In high-water years, we often could not ride past the public beach at all.
We often knew when we were riding past private property. Some landowners posted no trespassing signs, which is their right. But since were always careful to keep our tires below the high water mark in those areas, we considered ourselves withing the law.
The lake levels have been relatively low for the last few years, and last summer, Paul Florsheim got a $313 trespassing citation for walking past private property north of Atwater Beach in Shorewood.
Florsheim, professor emeritus at the nearby University of Wisconsin – Milwaukee and a long-time Shorewood resident, has been walking that section of beach for decades. In fact, he grew up nearby and did so as a kid. So he took the case to court rather than pay the ticket. His Dec. 2nd trial lasted four hours. Florsheim argued that the public trust doctrine protects his right to walk along the shoreline up to the ordinary high-water mark.
Last week, after considerable research and deliberation, Shorewood Municipal Judge Margo Kirchner finally ruled against Florsheim. Kirchner cited Doemel v. Jantz, a 1923 Wisconsin Supreme Court ruling, which found that the public cannot walk on the area of the shoreline between the high water mark and the edge of the water. It said that private property owners have exclusive rights to that area and people need to “keep their feet (or tires) in the water to avoid trespassing.
Florsheim intends to appeal the decision, hopefully to the Wisconsin Supreme Court, to clarify the issue. He believes that the Doemel Law was inconsistent with the state constitution and other case law about the land between the OHWM and the water.
Until then, beware of private property and any landowners who post no trespassing signs on beaches. The decision to issue tickets depends on land owners complaining and local law enforcement, but none of us wants to be charged $300 to ride on a beach.
I learned of the ruling listening to Larry Meiller’s show and got much additional information thanks to Evan Casey’s reporting on WUWM. Additional information is from the WDNR’s WATERWAY REGULATIONS AND THE PUBLIC TRUST DOCTRINE webpage and their NAVIGABILITY AND ORDINARY HIGH WATER MARK DETERMINATIONS page.
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