Shorewood beach trespassing case could impact public shoreline access

SHOREWOOD, Wis. - A $313 ticket and an unrelenting walker could help decide the public's access to Lake Michigan's shoreline.

FOX6 first scratched the surface on this story Tuesday night (Dec. 2) and is back with a look at the case the defendant hopes he loses, and why.

Walking along the beach

What we know:

Even when it's covered in snow, footsteps show the value of Atwater Beach in Shorewood.

"It's just a really nice place to walk all through the year."

It's a spot Paul Florsheim has walked on and off for about 50 years until this summer, when he came across a man who owns property along Lake Drive: Dan Domagala.

"And he kinda waved his arms," said Florsheim. "And he said, 'You can't, you can't walk here.' He said, you know, 'did you see the sign?' and I said, 'Yeah, I saw the sign.' and he said, 'and then?' and I said, 'and then, I ignored the sign'."

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Police called for trespassing

What we know:

Domagala then called police to report trespassing.

To be clear, Florsheim admits to walking past the signs posted on both ends of the beach that read 'no trespassing'.

Shorewood police first gave him a warning.

Domagala gave FOX6 video from a surveillance camera showing Florsheim again past those no trespassing signs later in July.

Florsheim heard from the police again.

"They identified me and said, 'You know, we have a photo of you' and they showed it to me, and I said, 'Yeah, that's me.' and then I received a ticket."

That ticket was $313.

To municipal court

What we know:

That brings us to the municipal courtroom at Shorewood Village Hall.

Florsheim defended himself in court on Tuesday night.

The judge only allowed FOX6 to take photos and record audio of the four-hour trial on short notice.

Domagala was the village's first witness.

Attorney: "What led you to call the police?"
Domagala: "Ummm, just angry, unfriendly manner. This is a Tuesday morning. I would expect maybe, 'hello, my name is...'"

Legal basis

Big picture view:

The village argues a 1923 Wisconsin Supreme Court opinion proves Florsheim was trespassing.

In Doemel vs. Jantz, the court found: "Whether the title to the shore between ordinary high and low watermarks be deemed in the public, or whether it rests in private ownership, the rights of the riparian owner are equally well fixed and established."

That's a 1900s way to say that Domagala owns the land between the water line and what's known as the ordinary high water mark, a boundary line left by water.

The opinion also holds that the public has the right to access that spot when the water is high.

David Striffling is the Director of the Marquette Law School's Water Law and Policy Initiative.

"This is a point where public and private interests collide, and you can understand why, if you spent a lot of money on a piece of waterfront property, you'd want that beach for your own use," said Striffling.

Though he wasn't walking in the water, Florsheim argues, he wasn't trespassing. He says he was navigating a public waterway by walking the beach.

He points to a law within our state constitution — the public trust doctrine. It requires so-called "navigable waters" be forever free, including the land beneath waterways.

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Legal process

What's next:

It's now up for the judge to decide.

"I feel that it's really important for people to stand up for what their rights are and not, you know, give an inch on efforts to curtail those rights," said Florsheim.

The judge gave the village and Florsheim until the end of next week to file briefs on why she should include walking as an example of water navigation.

She said her plan is to issue a written decision before the end of the year.

Florsheim says he's already had environmental attorneys reach out, wanting to represent him should he lose.

He tells FOX6 — he hopes to appeal it all the way to the Wisconsin Supreme Court.

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