By: Edward B. (Ned) Witte, Partner, Earth & Water Law, and
Heidi Kennedy, Senior Scientist, Short Elliot Hendrickson Inc. (SEH®)
What began as a routine walk along the Lake Michigan shoreline in Shorewood, Wisconsin, last summer has evolved into a dispute related to the foundational Wisconsin public trust doctrine – many observers believe this dispute between Shorewood residents could lead to the Wisconsin Supreme Court revisiting a 100-year-old decision on the limits of public access rights that are enshrined in the Wisconsin Constitution.
Paul Florsheim, a longtime resident of Shorewood and a University of Wisconsin–Milwaukee professor, was walking north on the beach along the Lake Michigan shoreline near the public park known as Atwater Beach, a route he had used for decades. That walk ended in a confrontation when a lakeside property owner accused Florsheim of trespassing and contacted the police. After issuing warnings based on Florsheim’s continued access, the Village of Shorewood ultimately issued a $313 municipal trespassing citation.
Testing the Boundaries of Public Trust Access
Florsheim contested the citation in Shorewood Municipal Court, framing the matter not as a simple ordinance violation but as a constitutional dispute over the scope of Wisconsin’s public trust doctrine. He argued that the doctrine, which originated in the Northwest Ordinance and is rooted in the Wisconsin Constitution, allows the public to traverse the shoreline between the water’s edge and the ordinary high water mark (OHWM). On the Great Lakes, where water levels fluctuate regularly, he contended that he was walking within a zone held in trust for the public and that walking the shoreline is a protected incident of navigation.
The Village of Shorewood took a sharply different position. It argued that Florsheim was not navigating in the water, but walking on exposed, dry sand landward of the water’s edge. As the court later found, images “show him wearing shoes on the sand beach, not in the water,” and established repeated entries onto the property after the owner had personally told Florsheim not to walk there.
In her January 28, 2026 Decision and Order in Village of Shorewood v. Paul Florsheim (Citation 8N8002G29J), Shorewood Municipal Judge Margo Kirchner emphasized that “[t]he evidence in this case is not contested in any material way,” and that Florsheim ultimately conceded the dispositive issue was legal rather than factual: “whether he had a legal right to walk the beach pursuant to the public trust doctrine under Wisconsin law.”
A 1923 Case Controls the Outcome
That legal question, in the court’s view, is answered by Doemel v. Jantz, 180 Wis. 225 (Wis. 1923), a 1923 Wisconsin Supreme Court decision relating to the inland waterbody Lake Winnebago. After an extensive review of the case law, Judge Kirchner concluded that Doemel foreclosed Florsheim’s defense. In Doemel, the Supreme Court held that a member of the public who walked on the exposed shore between the OHWM and the waterline of a navigable lake committed trespass, notwithstanding the public trust doctrine. As the municipal court summarized, Doemel stands for the proposition that “the public trust doctrine rights … did not include walking or standing on the beach between the ordinary high-water mark and the water.”
The court rejected Florsheim’s argument that subsequent Wisconsin cases expanding public trust protections for recreation and scenic beauty had implicitly overruled Doemel. While acknowledging that the doctrine “is to be construed broadly,” the court concluded that Wisconsin precedent has consistently treated protected public trust activities as water-based, not land-based.
Ultimately, Judge Kirchner emphasized the institutional limits of a municipal court. “Perhaps Doemel should be overruled,” she wrote, and perhaps modern understandings of public trust rights along the Great Lakes warrant a different balance between public and private interests. “However, as a municipal court judge, I cannot modify or overrule Doemel. Only the Supreme Court of Wisconsin can do that.”
On that basis, the court entered judgment for the Village and upheld the $313 fine.
Larger Questions Remain Unresolved
The decision, while definitive at the municipal level, leaves larger questions unresolved. Applying an inland-lake case decided more than a century ago to a dynamic Great Lakes shoreline underscores the tension between private rights that run to the water’s edge and a revered constitutional doctrine that holds navigable waters in trust for the public.
That tension is further sharpened by the Wisconsin Department of Natural Resources’ (DNR) long-standing approaches to identifying the OHWM. For decades, the agency has tended to locate the OHWM conservatively and, at times, well inland of the visible waterline – an interpretation that can have profound consequences for riparian lands. Those consequences have become especially acute over the past decade, as record-high water levels on Lake Michigan have driven widespread shoreline armoring through revetments and riprap, fundamentally altering the physical character of the coast and obscuring traditional indicators of the OHWM.
At the same time, while 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. The resulting uncertainty is compounded by title insurance practices, which frequently treat ownership below the OHWM as qualified or indeterminate, even where deeds purport to extend to the water’s edge. Taken together, these regulatory, 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.
Additionally complicating matters further is a recent, unpublished Jefferson County decision from 2023, Reiss v. Wisconsin Department of Natural Resources (Case 2023CV000258), which appears to have narrowed aspects of public trust authority above the OHWM in times of flooding. Critics of the Reiss holding have noted the impracticality of the decision: in times of flooding, how can one determine where the (submerged) OHWM is located?
And, finally, as to Mr. Florsheim’s constitutional claim, 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?
If, as anticipated, this matter proceeds through the appellate courts, the Wisconsin Supreme Court may soon be asked to confront a question it last addressed directly in 1923: how the public trust doctrine applies along the ever-shifting shores of the Great Lakes. If or, more likely, when the Supreme Court does consider Florsheim’s case, it will need to find the balance between the legitimate expectations of riparian property owners and the public access rights rooted in the Wisconsin Constitution. That balance will determine not only who may walk on that strip along the beach, but how robust the public trust doctrine remains in Wisconsin in the future.
