Ohio Environmental Council, January 25, 2014
Columbus, OH—The battle over ownership of Ohio’s Lake Erie shore will culminate tomorrow as each side with attempt to sway Ohio’s High Court during oral arguments.
The court case—known as Merrill vs. State of Ohio—revolves around ownership of the strip of land between the lake’s ordinary high water mark and the water’s edge, when that land is not covered by water.
Some private property owners adjoining the lake claim ownership to various points offshore, including the international boundary with Canada. The Attorney General and wildlife and nature groups cite state law confirming state ownership to the ordinary high water mark.
The Court has a choice to make: protect 200 years of Ohio’s public trust doctrine and follow a century’s worth of Supreme Court caselaw, or hand a free ticket to the wealthiest of landowners to proceed with unfettered development of our shoreline and jeopardize Ohio’s greatest natural resource. Said Trent Dougherty, Attorney with the Ohio Environmental Council.
Michigan and Pennsylvania guarantee their citizens the right to walk the Lake Erie coast up to the high water mark. In Ohio, that right is under attack, as is our state’s ability to protect the shoreline’s scenic beauty and fragile ecosystem. Beyond just a simple property line dispute, this case and the Supreme Court’s decision could have reverberations on the future of Lake Erie and precedent for whether the state can guard the property of Ohioans.
In its contested decision, the 11th Ohio District Court of Appeals ruled that:
• The boundary between privately-owned upland property and the Lake Erie shore is the point where the water touches the land—a movable boundary that advances and recedes with Lake Erie’s ever-changing water level. If left unchallenged, the finding would outlaw families and anglers to stroll or fish along the dry beach bordering the water’s edge and would allow upland owners to claim ownership over artificially filled bottomlands.
• The State of Ohio had no standing in the case and the attorney general had no right to represent the interests of the public in the case without the express permission of the legislature or the governor’s office. This finding threatened to cast adrift the rightful owners of Ohio’s portion of Lake Erie—the state’s 11 million citizens—with no one to represent their interests in what may prove to be a landmark decision involving ownership and stewardship of the Lake Erie shore.
If the decision were to stand, the result would also strip away essential responsibility given to state and local governments to enforce reasonable and very necessary protection of the Lake Erie shore. This would put our coastal resources at risk by giving those few Ohioans who own land directly on the lakeshore the ability to extend their holdings across the shore and into the lake itself. By handing them this additional property, the decision would also give them new rights to develop the Lake Erie coast up to the waterline without regard for the impact their actions would have on the lake, neighboring property owners or the general public’s right to use this public resource.
In 2005, a handful of owners of upland private property bordering Ohio’s Lake Erie shore sued the Ohio Department of Natural Resources (ODNR). The property owners objected to the ODNR’s enforcement of Ohio law, which requires upland landowners to obtain leases and permits to place docks, wharves, and other structures along the shore.
After Gov. Ted Strickland took office, on July 13, 2007, he announced that the ODNR no longer would require a lease for any shoreline structure. He also stated that the ODNR no longer would contest the court case.
The then-Attorney General, Marc Dann, declared that he would remain in the case, representing the State of Ohio and its citizens and defending the Lake Erie public trust doctrine. Interim Attorney General Nancy Rogers continued to represent the State of Ohio in the case after Dann left office in 2008.
The property owners sued the state in 2005 after several unsuccessful attempts to get the General Assembly to amend Ohio law in the first half of the decade.
Lawmakers decided against changing the law, in part because of opposition from the ODNR under then Ohio Gov. Bob Taft.
The National Oceanic and Atmospheric Administration, which oversees state coastal management programs, advised the ODNR in 20005 that the proposed legislation would grant upland owners “the unabridged right” to fill submerged lands or construct docks, wharves, and other structures along the shore without state oversight.
In a May 13, 2005 letter to then ODNR Director Sam Speck, the federal agency warned that diminished state control over coastal development could compromise the state’s authority to preserve fish habitat and the public’s right to recreate on Lake Erie.
The appeals court ruling, however, went even further than the proposed legislation, enabling upland owners to claim ownership over filled-in lands along the lakeshore.
“On three separate occasions (in 1878, 1916, and 1948), the Ohio Supreme Court has definitively ruled that the ordinary high water mark as the boundary of Ohio’s public trust. The state can never abandon the lands of Lake Erie that it holds in trust for the people of Ohio and upland owners have no title beyond that natural shore line. We hope the current Supreme Court ultimately will respect the precedence established by its predecessors and once again recognize the ordinary high water mark as the landward boundary of Lake Erie.”