Beach Access, Legal
December 20 2017

Surfrider Seeks to Protect Lakeshore Recreation at Lake Michigan

by Staley Prom

The Surfrider Foundation, on behalf of its Lake Michigan Chapter, filed a motion in court today in support of public recreational access to Michigan’s lakeshores.

Surfrider’s motion requests the Michigan Supreme Court’s permission to file an amicus curiae (“friend of the court”) brief in the appeal of a Michigan Court of Appeals case, Otto v. Inn at Watervale, Inc., which held that “child’s play on the beach” is not an activity that comes within Michigan’s Recreational Land Use Act’s (RLUA) purview.  The RLUA generally protects landowners from being liable if non-paying persons are injured while recreating on their property, unless caused by gross negligence or willful and wanton misconduct.  As such, the RLUA provides an incentive for landowners to open up their lands for public recreation, including along the shores of Lake Michigan.

The RLUA, in relevant part, provides:

“Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land, unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.” (emphasis added).  (Michigan Compiled Laws § 324.73301)

If the Court of Appeal’s decision stands, it will run counter to the public policy of encouraging landowners to allow public recreation on their lands by limiting liability for personal injury thereon, and landowners who may have previously opened up their lands to the public, may choose not to.  Therefore, this could have serious negative implications on lakeshore access in Michigan, and potentially elsewhere.

-- And the Court of Appeal’s decision is counter to the plain language of the statute, which clearly articulates that in addition to the particular uses explicit in the statute, “any other outdoor recreational use additionally comes within the protective scope of the statute (emphasis added).  If granted amicus status, Surfrider’s brief will provide an evaluation of the legislative history of the RLUA and show why the legislative history indicates that a broad interpretation of the phrase “any outdoor recreational use” which includes beach and lakeshore play is appropriate.  

Second, if granted amicus status, Surfrider will explain what is at stake in terms of the potential loss of recreation and tourism and their economic benefits.  It is imperative that the scope of “any other outdoor recreational use” be correctly interpreted broadly to include beach play recreation. Surfrider is hopeful that the Michigan Supreme Court will grant its motion in order that Surfrider may represent its interests in the case and aid the Court in understanding the importance of this decision and its implications for public beach recreation.  

Surfrider Foundation is being generously represented pro bono by Oday Salim at the Great Lakes Environmental Law Center, along with support from attorneys Noah Hall and Nick Schroek, and students from the Wayne Law environmental law clinic.  Surfrider legal intern Amy Foo has also assisted with this effort.

Please stay tuned for more updates, and to learn more about Surfrider’s Lake Michigan Chapter, please visit the Chapter’s website here.

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