The OHWM for Lake Michigan is statutorily set at 579.8 feet of elevation above sea level, but respondent, citing Glass v. Goeckel, 473 Mich. 667, 693, 703 N.W.2d 58 (2005), ruled that the NOHWM is found at the point where the " presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic." Respondent ruled that the NOHWM is coterminous with the public trust that applies to littoral lands.

The OHWM for Lake Michigan is statutorily set at 579.8 feet of elevation, but respondent, citing Glass v Goeckel, 473 Mich 667, 693; 703 NW2d 58 (2005), held that the NOHWM is found at the point where the "presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic." Respondent held that the NOHWM is coterminous with the public trust that applies to littoral lands.

[21] Gunderson argues that land is either submerged or it is not, and asserts he owns whatever is not under water at any given moment. We find persuasive the Michigan Supreme Court's analysis in Glass v. Goeckel, 473 Mich. 667, 703 N.W.2d 58 (2005), reh'g denied, cert. denied sub nom Goeckel v. Glass, 546 U.S. 1174, 126 S.Ct. 1340, 164 L.Ed.2d 54 (2006). It addressed a dispute similar to that before us—i.e., whether the public trust land extends up to the ordinary high water mark or whether, as Gunderson argues, it applies only to land that is actually under water at any particular moment.

Application of this concept to non-tidal waters has proved problematic, and in some cases controversial. See, e.g., Glass v. Goeckel, 473 Mich. 667, 690, 703 N.W.2d 58, 71 (2005) (observing that "[w]hile this term has an obvious meaning when applied to tidal waters with regularly recurring high and low tides, its application to nontidal waters like the Great Lakes is less apparent"); id. at 705, 703 N.W.2d at 705 (Young, J., concurring and dissenting) (stating that "I remain convinced that the `ordinary high water mark' concept on which the majority relies applies only to tidal waters, with their regularly recurring high and low tides"). Nonetheless, section 329.11 of the regulations enacted by the plaintiff defines the ordinary high water mark "on non-tidal rivers as the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas."

The bottomlands of the Great Lakes are retained in public trust by the adjoining states. SeeGlass v. Goeckel, 473 Mich. 667, 694, 703 N.W.2d 58, 73 (2005) ("[T]he public trust doctrine serves to protect ... the waters of the Great Lakes and their submerged lands-shared in common by the public"); Gunderson v. State, Indiana Dep't of Nat. Res. , 90 N.E.3d 1171, 1182-83 (Ind. 2018) (same); State ex rel. Merrill v. Ohio Dep't of Nat. Res. , 130 Ohio St.3d 30, 955 N.E.2d 935, 950 (2011) (same). In contrast, Michigan courts have found that the state transferred title to the bottomlands of the St. Clair and Detroit rivers to the owners of riparian property along their banks in the same way littoral/riparian rights are divided among landowners on inland lakes and rivers in Michigan.

This fluctuation results in temporary exposure of land that may then remain exposed above where water currently lies." Glass v. Goeckel , 473 Mich. 667, 703 N.W.2d 58, 71 (2005). And "although not immediately and presently submerged," this land "falls within the ambit of the public trust because the lake has not permanently receded from that point and may yet again exert its influence up to that point."

It refers to the fact that, "[u]nder common law, the state owns and holds the waters and bottomlands of the Straits and Great Lakes in public trust." As stated in Glass v Goeckel, 473 Mich. 667, 678; 703 N.W.2d 58 (2005), with regard to the public trust doctrine, "[U]nder longstanding principles of Michigan's common law, the state, as sovereign, has an obligation to protect and preserve the waters of the Great Lakes and the lands beneath them for the public." (Emphasis added.)

The "public trust doctrine" recognizes that Michigan's "navigable waters" are "natural resources and thoroughfares that belong to the public," and the state "acts as trustee of public rights in these natural resources." Glass v Goeckel, 473 Mich. 667, 673-674; 703 N.W.2d 58 (2005). "Our courts have traditionally articulated rights protected by the public-trust doctrine as fishing, hunting, and navigation for commerce or pleasure."

"The Great Lakes Submerged Lands Act, formerly MCL 322.701 et seq., is now part of Michigan's Natural Resources and Environmental Protection Act, MCL 324.101 et seq." Glass v Goeckel, 473 Mich 667, 673 n 3; 703 NW2d 58 (2005). Defendants also rely on Palmer v Dodd, 64 Mich 474, 474-475; 31 NW 209 (1887), which involved a trespass by the defendant onto the plaintiff's land.

"A land patent is '[a]n instrument by which the government conveys a grant of public land to a private person.'" Glass v Goeckel, 473 Mich 667, 683 n 11; 703 NW2d 58 (2005), citing Black's Law Dictionary (7th ed). Defendant fails to recognize, however, that "[w]here federal land is sold to a private person, it becomes part of the general mass of property in the state and is subject to ad valorem property taxation."