Archive for January, 2011

Court case is more than a boundary dispute; decision could impact 200 years of public access to Lake Erie shore and protection of coastal resources

The battle over ownership of Ohio’s Lake Erie shore will reach a legal watermark tomorrow as each side in this hotly contested dispute attempts to sway Ohio’s seven Supreme Court justices during oral arguments, scheduled to begin at 9 a.m.

The court case—known as Merrill vs. State of Ohio—revolves around ownership of the strip of land between the water’s edge and the lake’s ordinary high water mark, when that land is not covered by water.

Some private property owners with upland property adjoining the lake claim ownership to various points offshore, including the international boundary with Canada.  The Ohio 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.  It can protect 200 years of Ohio’s public trust doctrine and follow a century’s worth of Ohio Supreme Court case law.  Or it can hand a free ticket for unfettered development to the wealthiest of landowners – a pass to reek havoc on our north coast and jeopardize Ohio’s greatest natural resource,” said Trent Dougherty, Director of Legal Affairs for the Ohio Environmental Council, an intervening defendant in the case.

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 the state’s authority 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 public trust.

In its contested decision in the case, the 11th Ohio District Court of Appeals ruled on Aug. 24, 2009 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 Ohio Attorney General had no right to represent the interests of the public in the case without the express permission of the General Assembly or the Governor.  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 lower court’s decision were to stand, the case also would strip away essential responsibility given to the state to enforce reasonable and necessary protection of the Lake Erie shore. This would put coastal resources at risk by giving the relative few Ohioans who own land directly abutting the lakeshore the ability to fill and take ownership of shallow bottomlands, thereby extending their holdings across the shore and into the lake.  By handing them this additional property, such a finding also would give upland owners new rights to develop the Lake Erie coast up to the high watermark without regard to impacts such development 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 to place a structure along the shoreline.  Property owners still were required to obtain a state permit, though.  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 2009 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 is the boundary of Ohio’s public trust.  The Ohio Supreme Court has specifically ruled that 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 Ohio’s Great Lake,” concluded Dougherty.

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FirstEnergy intervention in case signals utility giant’s intention to go forward with massive biomass retrofit

In a merit brief filed with the Ohio Supreme Court on Monday, the Ohio Environmental Council (“OEC”) challenged the Public Utilities Commission of Ohio’s (“PUCO” or “Commission”) certification of FirstEnergy’s R.E. Burger power plant as a “renewable energy facility.”

In a controversial decision last August, the PUCO gave the utility permission to burn whole trees and other biomass fuel at the power plant located near the Ohio River in Shadyside, Ohio.  The order sets the stage for the company to receive renewable energy credits for the electricity produced at the plant.

The decision could allow FirstEnergy to meet all or a portion of its obligations under Ohio’s Renewable Energy Standard, which mandates that all investor-owned electric utility companies must obtain a portion of their electricity sales from “renewable” energy sources such as wind, solar, or renewable biomass generation.  By 2025, utilities must obtain 12.5 percent of their power sales from renewable sources.

While the OEC appeal challenges the Burger decision specifically, the eco group also contends that the Commission’s biomass energy certification procedure is unlawful.

“The PUCO continues to sign off on dubious biomass energy projects such as the Burger retrofit without knowing anything about the source of the biomass fuel,” said Will Reisinger, OEC staff attorney and lead counsel on the case.  “We believe this procedure violates Ohio law.”

In its brief, the OEC argued that the PUCO’s decision to certify the Burger facility was both unlawful and unreasonable and should be reversed by the Ohio Supreme Court.  The OEC argued that the PUCO’s certification of the biomass energy facility without knowing the type of fuel that would be used was inconsistent with Ohio law.  Further, the OEC alleged that the Commission’s application of Ohio Revised Code Section 4928.65—which gives FirstEnergy’s Burger plant an extra special Renewable Energy Credit profit—results in economic discrimination in violation of the United States Constitution.

The PUCO decision last summer rejected warnings filed by the American Wind Energy Association (“AWEA”) that the Burger biomass project could drown out investment in Ohio in other renewable technologies.  AWEA had argued in filings that the PUCO’s approval of FirstEnergy’s application could inflict “catastrophic effects on Ohio’s renewable energy marketplace” leading to a “‘death spiral’ for Ohio’s [Renewable Energy Standard].”[1]

Solar, wind, hydropower, and other renewable energy industries—including other biomass facilities—could be placed at a severe disadvantage as a result of the PUCO decision.

In November, a FirstEnergy press release indicated that the company was cancelling the controversial project.  But the utility has refused to withdraw its application for renewable energy certification for the facility.  FirstEnergy even has filed for formal intervention in the OEC’s appeal at the Ohio Supreme Court, indicating its intent to defend the certification.

“If FirstEnergy intends to abandon this project, then why have they intervened in this case and why haven’t they pulled the plug on their application?” asked Reisinger.  “Based on these facts, we have to assume that the company is planning to go ahead with the Burger retrofit.”

“The PUCO’s decision gave FirstEnergy a blank check to burn almost anything it wants without any regulatory oversight—and allows the company to receive a windfall profit for doing so,” said Reisinger.


“We believe the Ohio Supreme Court should reverse this decision and require the PUCO to evaluate biomass energy projects in a commonsense manner and in accordance with Ohio law.”

[1]PUCO Case No. 09-1940-EL-REN, American Wind Energy Association Comments at pp. 2, 5.

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Join us on Thursday January 20th

The Staff Attorneys at the William W. Ellis, Jr. Ohio Environmental Law Center would like to invite you all to its 2nd Annual Open House — Thursday, January 20, 2011 from 5-7 p.m.  at the Ohio Environmental Council offices in Grandview Heights.

The Open House will be an opportunity to thank everyone who has been a part of OEC’s legal legacy and introduce everyone to OEC’s legal future.  It’s also a great opportunity to meet  other attorneys inside and outside of the environmental law practice, current and former OELC interns, law and policy makers, and OEC members and friends.

It’s free and open to everyone. We’ll enjoy hors d’oeuvres and beverages as we thank OELC supporters for another successful year, take a look forward to 2011, and introduce others to the work we do.

RSVP at or 614.487.7506

Hope to see you on the 20th!

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