No. 5 – Lake Erie Boundary Dispute decision – “a trifecta of injustice” for Ohio’s natural resources, its people, and its Top Cop.
In the December 2007 Lake County Common Pleas decision in State ex. rel. Robert Merrill v. State of Ohio, the court redefined the boundary separating public and private property along the Lake Erie shoreline from the ordinary high water mark to the point at which the water meets land from moment to moment—effectively barring citizens from the shores of Lake Erie unless they are in the lake itself. The 70-plus page decision concluded with a “splitting of baby” ruling stating that the Plaintiffs were not right, the Defendants were not right, so the ruling is somewhere in the middle.
After such tan affront to the law, the Ohio Environmental Council (OEC), National Wildlife Federation (NWF), and State of Ohio appealed the decision to the 11th District Court of Appeals. Over a year and a half passed before the Appeals Court issued its decision in August of this year – and what a decision it was:
1. The Boundary Begins at the Moving Waters Edge (read OELC’s Analysis on this point)
The Court 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.
2. The people of Ohio Lose Legal Counsel (read OELC’s Analysis on this point)
Further, the Appeals Court ruled 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.
What is equally troubling is that the 11th District Appeals Court reached this decision through pure judicial activism—by unilaterally deciding that the meaning of the Revised Code 109.02 is somehow different from the text of that section. The court has attempted to constrain the role of the Ohio Attorney General—an independently elected official—by fiat.
What is more, in addressing the role of the Attorney General in its decision, the court took the unusual step of ruling on an issue that was not raised by either party. Referred to as a “sua sponte” decision, the act of ruling on an issue not raised by the parties at trial is generally frowned upon by courts.
A Brief Background on Merrill
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 through various deeds to various points offshore, including some which claim extent to 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 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 2005 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.
The OEC and NWF, in 2006, intervened in the lower court case to protect the interests of their members in the access to, and protection of, Lake Erie and its shore. The groups’ intervention was also based on a fear that the Ohio Department of Natural Resources, and the Governors’ office may take a different view or posture after the 2006 Gubernatorial Election. It was a wise decision . . .
After Gov. Ted Strickland took office, (and while the Court of Common Pleas was deliberating the case), 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.
Next year, OELC expects the Supreme Court of Ohio to take up this case for final resolution. The complete defiance to Ohio Supreme Court caselaw as appeared in the Appeals Court decision, and the affront on the laws of man, laws of nature, and laws of common sense necessitates a strong reversal by the Court.
The lower courts’ fictitious ruling that 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 – must be overturned. 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.
On three separate occasions (in 1878, 1916, and 1948), the Ohio Supreme Court has referenced the ordinary high water mark as the boundary. On any given day, the location of driftwood, changes in vegetation, and the shelving of sand mark that approximate spot. Finally, common sense dictates that the lake boundary cannot be a moveable one that shifts up and down with periods of high or low lake levels.
The Ohio Supreme Court has ruled in most unambiguous terms that the state can never abandon the lands of Lake Erie that it holds in trust for the people of Ohio and that upland owners have no title beyond the 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.