The Wisconsin Supreme Court has legalized the theft of the public shoreline.
The theft operates through a surveillance post on Lake Michigan. Daniel Domagala, a dentist, owns a waterfront property in Shorewood with a tiki-style boat house that doubles as a watchtower. He has called the police more than fifty times in a single summer to chase walkers, swimmers, and kayakers from the sand in front of his house. He sets off alarms “to scare people from lounging on his property.” Paul Florsheim, a retired professor, walks his two dogs along the beach. Florsheim walks on the dry sand, just above the waterline. Domagala’s alarms go off. The village issues a trespassing citation for a $313 fine.
The trial judge, Margo S. Kirchner, stated the doctrine that governs this encounter. She acknowledged that a pedestrian walking the dry sand asserts a clear public claim on a navigable lake. She observed that locking the beach off contradicts the shoreline-access norms established in every other Great Lakes state. But she ruled she was bound by Doemel v. Jantz, 180 Wis. 225 (1923), in which the Wisconsin Supreme Court held that a riparian landowner’s agricultural use of the beach—watering cattle—supersedes a pedestrian’s right to traverse the shore when the water is low. “Perhaps Doemel should be overruled,” Judge Kirchner noted, before ruling for the dentist.
What the 1923 court did was a history-and-tradition cherry-pick. It rooted its holding in the needs of nineteenth-century agriculture while ignoring the body of common law and early-statehood decisions that treated the shore as a public thoroughfare. The landowner wanted to water his herd; the court invented a hierarchy of “beneficial uses” in which the private cattleman outranks the public pedestrian. The opinion, as the trial judge observed, was “out of touch” with the practices of neighboring states. It is also out of step with Wisconsin’s own constitutional tradition. Before Doemel, the Wisconsin Supreme Court had already declared that the public trust protects not only navigation but also the incidental uses of the shore that navigation requires—walking, resting, fishing, birdwatching—and that the state holds title to the bed of Lake Michigan in trust for the people. The Doemel court, asked to apply that doctrine to a beachwalker, sidestepped it and handed the dry sand to the cattle farmer.
The landowner’s position, which Domagala’s counsel will undoubtedly press on appeal, is simple enough to state without a lawyer. Title runs to the water’s edge; the state may protect the public’s right to wade, but the dry beach above the ordinary high‑water mark belongs to the riparian owner, and a trespasser can be excluded. This is the steel‑man version: a clear rule that lets property owners control their own land and leaves the state’s interest in navigation untouched. It is the argument that carried the day in 1923, and it is the argument that the Shorewood village prosecutor made in December. It is also—as a matter of the public trust doctrine, common‑law precedent, and simple geography—wrong.
Wisconsin’s public trust doctrine is not a zoning ordinance; it is a constitutional mandate derived from Article IX, Section 1 of the state’s founding ordinance. Navigable waters shall be “common highways and forever free,” the Wisconsin Constitution declares. When state courts confine the public right to the wet sand and force walkers to wade in the surf to bypass a private deck, they functionally nullify the constitutional trust. They draw an imaginary property line in the tide and treat it as law. The public trust vests title to the beds of navigable waters in the state for the benefit of the public, and Wisconsin courts have read that title to include the land between the water’s edge and the ordinary high‑water mark—precisely the dry sand on which Florsheim was ticketed. The ordinary high‑water mark is not a fixed line on a surveyor’s map; it is the physical boundary the lake itself draws and redraws as water levels rise and fall. In low‑water years, that band of dry sand can be dozens of feet wide. The public’s right to walk on that sand is not a “taking” of private property; it is the exercise of a public easement that predates Domagala’s title and every title before it. The dentist’s insistence that he can exclude walkers from the dry beach is no different than a landowner on a riverbank trying to fence off the stream bed itself—except that the Great Lakes hold one‑fifth of the world’s surface freshwater, and the public’s interest in them dwarfs the interest of any single cud‑chewing herd, then or now.
This is the littoral-enclosure regime in its operational form. Domagala’s alarms are the daily enforcement arm of a judicial regime that has privatized the coastline. The state’s navigable waters remain legally “forever free,” but the dry sand becomes a private toll booth. The enforcement mechanism is the municipal police dispatch, called by property owners who log dozens of complaints against casual walkers and demand citations. We saw the same enforcement logic when we documented how local authorities weaponized nuisance ordinances against a coastal tourist who got too close to a Hawaiian monk seal—treating transient public presence as a criminalizable violation of a protected zone. The Shorewood ticket operates the same way. The village police respond to the dentist’s alarms and issue the citation. The municipal court applies the citation. The state judiciary refuses to overrule the 1923 case that validates the citation. The Wisconsin Supreme Court’s refusal to update the trust doctrine is the procedural lock that makes the theft lawful.
The substantive wrong here is not Dr. Domagala’s alarm system. The substantive wrong is the Wisconsin Supreme Court’s retention of a century‑old agricultural precedent that converts Great Lakes beaches into private surveillance zones. A state supreme court that genuinely administers the trust would overrule Doemel. It would draw the public‑access line at the ordinary high‑water mark, which is the baseline used by nearly every other jurisdiction to separate littoral property rights from public shoreline rights. The Michigan Supreme Court, applying the same common‑law public trust doctrine in Glass v. Goeckel (2005), has held that walking along the shore is a protected right regardless of whether a private landowner’s title extends to the water’s edge. Wisconsin is an outlier, and the outlier’s foundation is a single case that prioritised a cow’s thirst over a citizen’s feet.
Florsheim’s appeal, now represented by Midwest Environmental Advocates, places the Doemel question directly before the Wisconsin Supreme Court. The Court will decide whether the public must wade in the surf to exercise a constitutional right, or whether the dry sand remains part of the public commons. The 1923 opinion gave the answer for cattle farmers. The constitutional trust demands a different answer for the public. Wisconsin, no stranger to legal fights over the treatment of living things—from the closure of a beagle breeding facility to the intensifying demands that the state shutter it entirely—cannot afford to let a single 1923 opinion freeze the law while a dentist’s alarms keep the public off a beach the Constitution says belongs to them. Every further season without a ruling extends that freeze. The court has the text, the history, and the example of every neighbor state. All it needs is the will.