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Abstract

Michigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other shoreland resources, as well as accelerate erosion of neighboring shoreland properties.

The clash of imperatives to protect shoreland properties versus conserve coastal resources signifies a wicked dilemma the State cannot avoid: armor or withdraw? More precisely, should we allow the armoring of Michigan’s Great Lakes shorelines in an attempt to fix in place shoreland properties, at great and ongoing private and public expense, and ultimately risk the loss of public trust resources? Or should we allow—and should we compel shoreland property owners to allow—natural processes to proceed, even though doing so will increase the rate at which privately owned shorelands naturally convert into state-owned submerged bottomlands? We cannot hope to simultaneously protect both the beach and the beach house along naturally receding Great Lakes shorelines; we must choose which interest to prioritize first, recognizing the cost of doing so by losing the other.

In addition to the complex physical dynamics at play along Michigan’s Great Lakes coasts, there are evolving legal complexities as well. The State, as sovereign, enjoys police power authorities that encompass coastal shoreland management. The State has also long recognized the applicability of the public trust doctrine to its Great Lakes shores, and its constitution mandates the protection of natural resources. This article first analyzes current Michigan law to determine how those doctrines and mandates apply to Great Lakes shoreline armoring, particularly in terms of what to prioritize. Based on that assessment, we conclude that Michigan’s courts, legislature, and people have consistently and clearly prioritized protecting and conserving Great Lakes natural coastal resources above developing or impairing them for private use, except when such development truly serves larger public trust interests. In contrast, the administrative rules now used to execute those protections prioritize protecting the private beach house first, even at the expense of destroying the natural beach and impairing other public trust interests. This administrative approach was not inevitable— indeed it may be unlawful—and it has created strong expectations on the part of shoreland property owners, heightening the likelihood of litigation.

The article then analyzes current Michigan law to determine how the courts might resolve disputes between property owners hoping to armor the shore and State or local constraints on such armoring. Here we find that while the Michigan courts have resolved a number of key questions regarding coastal shorelands, there is no caselaw addressing directly the lawfulness of shoreline armoring. Based on our review of relevant caselaw, we conclude the courts are not likely to find that the State lacks authority to regulate—or prohibit altogether—shoreline armoring to protect coastal resources. There is conflicting caselaw, however, upon which the courts could rely to find either that the current regulatory regime provides adequate protection of coastal resources, or alternatively that it is deficient. Finally, beyond questions of regulatory authority, the courts are not likely to find that reinvigorated regulatory efforts to prevent the destruction and impairment of public trust coastal resources from armoring—even those resulting in the accelerated loss of private properties—violate constitutional protections, especially if State reforms are undertaken with deliberation and care.

If the courts conclude that current regulatory efforts are lawful and require no greater protection, then Michigan will likely see much of its Great Lakes shorelines armored and its natural coastal beaches destroyed. If they conclude that current regulatory efforts are deficient (or if they approve of reinvigorated protection efforts), however, then private shoreland properties may be lost to the lakes. Such losses cannot be avoided forever, especially along naturally receding shorelines, but they might occur sooner than would happen absent attempts to arrest shoreline erosion with armoring. As with most wicked policy dilemmas, the best response may not be at either extreme—always armor or always withdraw—but somewhere in between. Crafting that hybrid approach, and the appropriate rules for applying it, will be the most challenging course to navigate.

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