The Eleventh District Court of Appeals in Merrill v. State of Ohio found that the public may walk upon the shoreline only so long as they stay in the water and that landowners can build all the way to our Lake and construct fences along our coast. The District Court’s decision upheld the trial court’s novel finding that the boundary between private and public property is where the water touches the land at any given time.
These findings eviscerate the centuries old “public trust doctrine,” which provides that Lake Erie is held in trust by the state for the use and benefit of all Ohioans. Courts have always interpreted the public trust doctrine to mean that the shoreline up to the ordinary high water mark, in addition to Lake Erie itself, is held in trust for the citizens of Ohio. In its decision, the Eleventh District simply ignores and misapplies controlling case law from the Supreme Court of Ohio.
Court Strips State of Ohio of its Independent Advocate in the Case
Equally troubling, however, is the court’s finding that the Ohio Attorney General Richard Cordray has no authority to represent the citizens of the state in the matter. Judge Colleen Mary O’Toole, writing for the court, stated 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 court’s decision on this point is a gross misinterpretation of the Revised Code and a stark departure from over 100 years of court precedent.Such an unprecedented finding could have unknown implications for the enforcement of virtually any public protection law– including laws protecting human health, public safety and consumers.
The Appeals Court justified its removal of the State of Ohio and its Attorney General by citing only Ohio Revised Code Sec. 109.02. While this code section states that the Attorney General shall represent the state “[w]hen required by the governor or the general assembly,” the code does not state that the Attorney General cannot act on behalf of the public, as the Appeals Court decision implies.
In fact, for over 100 years Ohio courts have held that the Attorney General has the common law authority to protect the interests of Ohio citizens. “This is textbook judicial activism,” said Will Reisinger, staff attorney for the OELC. “In its decision to remove the Attorney General from the case and to eviscerate the public trust doctrine, the court is clearly trying to ‘legislate from the bench.’
Reisinger added, “We have not confirmed with the Ohio Attorney General as to the intentions of the office as they pertain to this case, however, the direct attack on Lake Erie, the Public Trust Doctrine, and the effectiveness and independence of the office of Attorney General would give the AG no other rational choice. We are more than confident that the AG will continue as his predecessors to stand up for all Ohioans, and stand with the environmental and conservation community to defend this important case.”
Click Here to Read OELC’s Press Release on Merrill v. State of Ohio.
Click Here to Read OELC’s full statement on the State of Ohio’s Dismissal.