April 8, 2026 – A pedestrian on a Lake Michigan beach, as his lawyer described it, drew a line in the sand.

Paul Florsheim’s quest to overturn century-old precedent – a job for the Wisconsin Supreme Court – made conspicuous his defeat in Village of Shorewood Municipal Court for a $313 trespassing fine.

His challenge to Doemel v. Janz, 180 Wis. 225 (1923), will be a long legal trek in an attempt to change the rules for public access below the ordinary high water mark (OHWM), an issue of the public trust doctrine.

The doctrine, ensconced in Wisconsin Constitution article IX, section 1 and elaborated in case law, makes navigable waters accessible to the public.

Because the state owns the bed of the Great Lakes on behalf of the people, precedent is “saying that the public is trespassing on its land, and that is a little bit wild to me,” said Florsheim’s lawyer, Rob Lee of Midwest Environmental Advocates in Madison.

‘He’s Always Done This’

The dispute began when Florsheim walked along Lake Michigan last summer, north of Atwater Beach in Shorewood, past a “no trespassing” sign.

The landowner and Florsheim exchanged words. Based on the landowner’s complaint, Shorewood police later ticketed Florsheim.^[1]

Florsheim grew up in Shorewood. His family owned a house from 1975 to 2003 along the Lake Michigan shore. He remembers people walking past his house on the beach – backed up by his dad’s testimony in municipal court.

“He’s always done this,” Lee said. “This is the first time it’s resulted in any sort of confrontation with the landowner, much less law enforcement.”

The trespassing ticket turned into a municipal court trial in December that yielded a 16-page decision, detailed in facts and describing the applicable law.

Precedent doesn’t protect Florsheim’s lakeshore walk, the municipal court concluded. Florsheim was guilty.

Milwaukee County Circuit Court now has the case, which Florsheim has filed on an expedited record review, Lee explained.

The circuit court cannot overturn precedent, and the Wisconsin Court of Appeals could only reverse if the case highlights an error of law.^[2]

Direct review by the Wisconsin Supreme Court exists. The court of appeals could certify the question to the Supreme Court, a rare circumstance, or arrive on bypass, another unusual grant.^[3]

Appellate shortcuts are rare because the supreme court benefits from the court of appeals’ work in understanding a case.^[4]

Losing Is Easy

The law isn’t on Florsheim’s side. Doemel explicitly holds that riparian rights preclude a public trust doctrine interpretation permitting use of the waters of the state to walking on the beach below the OHWM.

The riparian landowner through “the right of the soil itself” adjacent to the water has rights the public doesn’t have “to maintain his adjacency to [the water], and to profit by this advantage,” Doemel explained.

Doemel cites what was then a recent decision, Diana Shooting Club v. Husting, 156 Wis. 261 (1914), which expanded the public trust doctrine to include noncommercial and recreational activities.

Even with Diana’s expansive precedent, the Doemel court didn’t allow Frank Janz to walk along the Lake Winnebago shore.

“Whatever may be our individual inclinations or desires or our views as to propriety or the public welfare,” the Doemel court concluded, “we cannot disturb the interests which have so become vested.”

Current Wisconsin Department of Natural Resources (DNR) guidance advises walkers to wade in the water – the "keep your feet wet" rule – on rivers and streams.

Some people, too, may disagree with the public trust doctrine’s current scope, Lee said.

What began as permitting free navigation – by canoe at statehood in 1848 – now encompasses rights for recreation and sightseeing.

Landowners, too, may worry that innocent-looking beachcombers may be thieves or vandals.

‘Difficult to Apply’

Two justices dissenting from Michigan’s decision that allowed the public between the OHWM and the water’s edge on a Great Lake predicted the holding would confuse the public at landowner expense.^[5]

Showing a picture of the beach, Justice Robert P. Young Jr. asked, “Where, however, lies the majority’s [OHWM] in this photograph?”^[6]

The two dissenting opinions limited public walking to the “wet shoreline” or “wet sands.”^[7]

Similarly, a State Bar Environmental Law Blog highlighted that, although the “DNR is statutorily required to make OHWM maps publicly available, the information provided to landowners and the public remains limited and often difficult to apply on the ground.”

Although DNR guidance describes what to look for – water – the issue isn’t easily wet or dry.

The Bureau of Land Management’s (BLM) Manual of Surveying Instructions, which defines how to survey federal grants, describes how to find the OHWM in 11 sections with four non-exclusive tests.^[8]

A selection of tests, each fallible, makes finding the OHWM challenging for surveyors – and the typical walker along the shore isn’t a surveyor.

‘A Quirk’

“We just have a quirk here of how much public trust [doctrine] jurisprudence had developed up to 1923,” when the Supreme Court decided Doemel, “and how it was brought and the arguments asserted by the parties there led to this result.

“I don’t know that it would be the same today, and I think that’s why it really should be revisited,” Lee said.

For example, Rock-Koshkonong Lake District v. DNR, 2013 WI 74, reinforced that the public trust doctrine reaches to the OHWM, Lee said.

“We have this very dramatic pendulum swing where even though you’re standing on public land,” Lee said, “depending on what time of day it is, you could be in the same spot and either you’re exercising a constitutional right or committing a crime.”

Existing public trust doctrine guidance has its own practical limitations, Lee explained.

“The ‘keep your feet wet’ rule just breaks down,” Lee said, in rain, damp sand, or snow cover that makes it hard to see where the lake is, or flooding.

In Reiss v. DNR, No. 2024AP1631, on appeal from Jefferson County Circuit Court, flooding obscured the Rock River OHWM at Thomas Reiss’ home.

When his land became saturated above the OHWM, people went over his waterlogged land in airboats.

The “keep your feet wet” rule also contrasts with Wis. Stat. section 30.134 that allows the public to walk below the OHWM to get around an obstruction on a river or stream, Lee explained.

Great Lakes Are Different

The Great Lakes are “fundamentally different” than Lake Winnebago, the source in Doemel. Lake Winnebago has had a stable, controlled water level since the 1800s, Lee explained.

Lake Michigan water levels vary from decade to decade, high or low.

“[R]egulatory, physical, and market realities underscore how unresolved the boundary between public trust lands and private property remains – particularly along a Great Lakes shoreline that is anything but static,” the Environmental Law Blog summarized.

“And, finally, as to Florsheim’s constitutional claim,” the blog added, “doesn’t it matter if he and the public, meant to be protected by the public trust doctrine, have been accessing and walking along the shoreline between the OHWM and the water level for decades, potentially establishing a claim for prescriptive rights?”

Public rights from historic use of a navigable water are possible in Arkansas, Lee said.

Other Great Lakes states differentiate the Great Lakes from other water bodies in cases granting rights to walk on the beach.

The Indiana Supreme Court allowed beach access in Gunderson v. State, 90 N.E.3d 1171 (Ind. 2018) because the federal grant at statehood, based on the Northwest Ordinance of 1787, granted to Indiana the land under Lake Michigan to the OHWM, not to the water’s edge.

The Northwest Ordinance empowers Wisconsin’s public trust doctrine.^[9]

Federal surveyors didn’t survey below the OHWM, and the “beds of navigable bodies of water are not public domain lands and are not subject to survey and disposal by the United States,” the Court explained from the BLM Manual of Surveying Instructions.

Indiana drew support from Glass v. Goeckel, 703 N.W.2d 58 (Mich. 2005), which allows walking below the OHWM, based on the “common law of the sea,” but only along a Great Lake.

While Indiana looked to laws governing what land it received at statehood, the Michigan Supreme Court looked back to Roman law codified in the Institutes of Justinian and English Crown rights to the sea.

The right to walk along a Great Lake, the Michigan Supreme Court concluded, had always existed. Loud dissents, as the majority described them, claimed the holding “destabilize[d] property rights.”

The majority contrasted that its decision alone “retains and clarifies the status quo.”

‘Reasonable’

Florsheim has stated publicly he believed the right extended only to walking on the shore – not camping or sitting by a fire.

“Our position doesn’t mean the public can trespass upon someone’s dock or pier, and certainly not damage that or anything like that,” Lee added. Airboats are out, too.

“You need to be reasonable on both sides,” Lee said. “Our point though, is that balance does favor public access in the public trust lands.”

Endnotes

[1] Wildlife Wednesday, Municipal Court Rules on Public Access to Lake Michigan Shoreline, Larry Meiller Show, Wis. Pub. Radio, Feb. 4, 2026, available at https://www.wpr.org/shows/larry-meiller-show/wildlife-wednesday-municipal-court-rules-on-public-access-to-lake-michigan-shoreline (last visited Mar. 30, 2026) (including interview with Paul Florsheim); Caitlin Looby, Shorewood Judge Rules in Favor of Less Public Beach Access Along Lake Michigan, Milwaukee J. Sentinel, 3:09 p.m., Jan. 28, 2026, available at https://www.msn.com/en-us/news/us/shorewood-judge-rules-in-favor-of-less-public-beach-access-along-lake-michigan/ar-AA1Vc2Lc (last visited Mar. 30, 2026); Dan Egan, Wisconsin Man Hopes His $313 Ticket Will Reshape Lake Michigan Shoreline Access, Wis. Pub. Radio, Jan. 12, 2026, https://www.wpr.org/news/wisconsin-ticket-reshape-lake-michigan-shoreline-access (last visited April 2, 2026); Caitlin Looby & Maia Pandey, Shorewood Case Could Define Public Access, Milwaukee J. Sentinel, Dec. 6, 2025, 1.

[2] Cook v. Cook, 208 Wis. 2d 166 ¶¶ 50-54 (1997) (describing Court of Appeals’ principal role to error correction and prohibiting reversal of its own precedents); see Wis. Voters Alliance v. Secord, 2025 WI 2 ¶¶ 51-59 (Hagedorn, J., concurring) (evaluating Cook from Court of Appeals subsequent experience).

[3] Wis. Stat. section 808.05(1) (bypass); Wis. Stat. section 808.05(2) (certification); see Wis. Stat. section 809.60 (procedure for seeking bypass); Wis. Stat. section 809.61 (procedure for requesting certification).

[4] Wis. Voter Alliance v. Secord, 2025 WI 2 ¶ 58 (Hagedorn, J., concurring).

[5] Glass v. Goeckel, 703 N.W.2d 58, 79-81 (Mich. 2005) (Young, J., concurring in part and dissenting in part) (noting difficulty in knowing where to walk, which will vary under conditions, and arguing that Michigan law limited the right to wet sand); Id. at 81-107 (Markman, J., concurring in part and dissenting) (elaborating difficulty in determining OHWM and reviewing case law).

[6] Id. at 80.

[7] Id. at 79 (Young, J., concurring in part and dissenting in part); id. at 106 (Markman, J., concurring in part and dissenting).

[8] U.S. Dep’t of the Interior, Bureau of Land Mgmt., Manual of Surveying Instructions sections 3-162 to 3-172 (2009).

[9] Compare An Ordinance for the Government of the Territory of the United States North-West of the River Ohio (Northwest Ordinance), July 13, 1787, section 14, article 4, with Wis. Const. article IX, section 1.