Reconciling Police Power Prerogatives, Public Trust Interests, and Private Property Rights Along Laurentian Great Lakes Shores

Abstract

The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests and private property rights. Indeed, those conflicts implicate fundamental debates over the state’s authorities and prerogatives to regulate privately owned shoreland (the police power), the public’s interest in coastal resources (the public trust doctrine), and private property owners’ rights to use and to exclude others from their shorelands (referred to collectively here as the private property doctrine). While not tidal, standing water levels of the Great Lakes fluctuate over time substantially. As a result, the lakes have beaches much like ocean coasts, and the public trust doctrine is aptly applied to them, albeit awkwardly. All of the eight Great Lakes states have long acknowledged the applicability of the public trust doctrine to their Great Lakes bottomlands and shorelands. In doing so, they have accepted the now-conventional understanding that the doctrine originated in ancient Roman law. Even so, recent critiques of the public trust doctrine assert that it has been misinterpreted and that its historical pedigree is not so strong or aptly applied to American coasts, especially along Great Lakes coasts. These critiques do not address the historical pedigree and robustness of the police power doctrine, or, more importantly, the pedigree and robustness of contemporary notions of private property rights. If the public trust doctrine is indeed lacking upon reconsideration, how does it fare in comparison to these other doctrines? This Article lays the foundation for an extended study of the public trust doctrine as it applies to Great Lakes shores. We provide an overview of the public trust doctrines of all eight Great Lakes states, noting for illustration and, where appropriate, particulars for the State of Michigan, which enjoys more than 60% of the combined U.S. Great Lakes coastline. To explain our motivations in undertaking this study, the Article first briefly reviews the importance of the lakes to the State of Michigan and the other Great Lakes states more broadly and then frames shoreland management as one of the resource management imperatives those states face. The Article then reviews the historical origins, the contemporary contours, and the ongoing debates surrounding the police power, public trust, and private property doctrines separately. Building on that foundation, we then analyze how courts and legislatures have reconciled those doctrines through application in coastal settings broadly. First, we find that the public trust doctrines of the Great Lakes states fall well within the boundaries of the origins and application of that doctrine throughout the nation’s history, even though the Lakes are not tidal. Second, we find that the concept of a ‘moveable freehold’ inherent in the public trust doctrine—that the boundary separating state-owned submerged public trust land from privately owned upland along the shore—reflects natural dynamic shoreline processes, not arbitrary governmental rulemaking, and is well established and accepted by all Great Lakes states. Finally, and most importantly for the purposes of this Article, we find that all three doctrines—public trust, police powers, and private property rights—trace their roots to English common law and even ancient Roman law, but all are in fact distinctly American doctrines. All three doctrines were first fully articulated in the context of unique American institutions, values, and conflicts. Each has evolved over time as American institutions, values, and conflicts have similarly evolved. Thus, despite detractors’ assertions to the contrary, the public trust doctrine is no less robust or aptly applied to Great Lakes coasts than is either the police power or private property rights doctrine. In fact, despite case law and commentary rhetoric that can be dogmatically extreme, efforts to understand and reconcile these doctrines in practice generally strike a pragmatic balance between the private rights inherent in shoreland property ownership and the public interest in common access to and use of submerged lands and the foreshore. Following our analysis of these doctrines from a broad perspective, we conclude by providing a brief overview of the several public trust doctrines as adapted by all of the Great Lakes states and finally identifying a number of questions for further study.