Supreme Court Reaffirms 1878 Decision Holding That State’s Trust Over Lake Erie Extends to the ‘Natural Shoreline’
After a half decade legal fight — a fight where: Lakeshore property owners sued the state of Ohio and ODNR; where Ohio Environmental Council (OEC) and National Wildlife Federation (NWF) had to intervene to protect the rights of the public to walk the shore; where the ODNR left the case, but Ohio Attorney General remained to defend the case for the 11 million people of Ohio; and where the lower courts ruled that the boundary of the Public Trust is where the water meets the land at any given moment in time — The Ohio Supreme Court today returned the shoreline (and the law) to status quo.
In a 7-0 decision authored by Justice Terrence O’Donnell, the Court reversed a ruling by the 11th District Court of Appeals that lakeside owners’ property rights extend to whatever point on shore is in contact with the waters of the lake on any given day.
The court reaffirmed it’s over century-old decision, preserving the public trust doctrine as it relates to the state’s North Shore. In fact, 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 fourth time (2011) will be the charm, and forever protect the rights of the people and the quality of our Great Lake. 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.
While the Court rejected OEC, NWF, and the State’s argument that the boundary line is “the ordinary high water mark,” the practical effect of the court’s rationale is to establish the line as the ordinary high water mark. To quote the slip opinion:
The boundary of the public trust does not, however, as the court of appeals concluded in affirming the trial court, change from moment to moment as the water rises and falls; rather, it is at the location where the water usually stands when free from disturbing causes. That is what we stated in Sloan, that is what has been understood for more than a century in Ohio, that is what the General Assembly meant by ‘natural shore line’ when it enacted G.C. 3699-a in 1917, and that is what the law was when ODNR began to enforce the leasing policy, which it has since abandoned and recognized the presumptive validity of the owners’ deeds. We see no reason to modify that law now.
Thus, the Court rejected the lower courts’ moment-to-moment water mark, did not endorse low water mark (the line which some of the property owners originally argued), and gave storms and droughts as examples of disturbing causes. Without adopting the term “ordinary,” the Court affirmed the OEC/NWF and the State of Ohio’s’ conclusion of where the Public Trust lies.
The question now is who defines the line and how. That question will be answered in remand to the Lake County Court of Appeals.
Also, the Supreme Court gave a second win to the people of Ohio by rejecting the Court of Appeal’s ouster of the Office of the Ohio Attorney General to represent the people. The Appeals Court ruled that the Ohio Attorney General had no authority to represent the citizens of the state in the matter (even though the state was a named defendant in the case). 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 appeals court reasoned, he had no standing to participate in the appeal. To the rescue, the Ohio Supreme Court unequivocally denounced the lower court’s assertion, and gave the 11 million citizens of Ohio their legal counsel.