There are a few updates on the Lake Erie Shoreline case, now pending before the Supreme Court of Ohio. The case, State ex rel. Merrill v. Ohio Department of Natural Resources, concerns the extent of the “public trust doctrine” as it pertains to the Lake Erie shoreline. Parties to the case include the Ohio Environmental Council, the National Wildlife Federation, and the state of Ohio.
Courts have traditionally held that Lake Erie is held in trust by the state for the use and benefit of all Ohioans—meaning, among other things, that citizens have the legal right to walk the beaches and access the water. However, the centuries-old doctrine was overturned by a recent ruling of Ohio’s Eleventh District Court of Appeals. The Court of Appeals, overruling numerous Ohio cases, found that the public trust portion of Lake Erie only extends to the waters edge, and that citizens do not have the right to access all beaches or waters of the Lake.
The appeals court also stripped the Ohio Attorney General, who was appealing on behalf of the state, of standing in the case, finding that “[t]he Ohio Attorney General may only act at the behest of the governor, or the General Assembly.” Because the Attorney General was not acting on behalf of the Governor, the court reasoned, he had no standing to participate in the appeal.
The Supreme Court has called for preliminary briefs to address this specific issue—whether the Attorney General has standing to participate in the appeal—before ruling on the property rights portion of the case.
Already, there is at least one wrinkle to the case. Because the Supreme Court’s decision could impact the extent and value of a shoreline owner’s property, there could be a conflict of interest for any justice who also owns lake property. Chief Justice Moyer, who owns a condiminium on Catawba island, disclosed his property ownership as a potential conflict of interest. So far, Moyer is the only justice to disclose a potential conflict.
Although it does not appear that Moyer’s property will present a conflict of interest, “We would hope that any other of the justices would follow his lead as well to disclose any possible conflicts,” said Trent Dougherty, OEC staff attorney and Director of the OELC. We should know within the coming days whether other justices choose to disclose any lakefront property ownership.
We are currently working on our briefs addressing both questions: whether the AG has standing to participate in the appeal (the answer is “yes”) and whether the Court of Appeals erred in eviscerating the centuries old public trust doctrine (our answer, again, is “yes”).
Click here to read our press release on the appeals court decision
Read the OELC’s response to the AG’s dismissal