VICTORY for Ohioans in Lake Erie Public Trust Case

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 11^th 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.

See previous OELC Posts.

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Legislation Coming to Require Open and Accountable State Government

Partisan blustering shines light on need for accountability reform in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council)

In a press release today, State Reps. Ted Celeste (D-Grandview Heights), Jay P. Goyal (D-Mansfield) and Matt Lundy (D-Elyria) criticized Republicans for moving Ohio away from open, accountable and transparent state government.

The lawmakers pointed out a number of examples of Republicans attempting to hide their actions behind a vault of secrecy, including putting major new policy directives into the state budget without any public hearings, stonewalling virtually all open records requests, exempting JobsOhio from public records and allowing lobbyists to work directly with the non-partisan Legislative Services Commission to write bill language.

While the tenor of the legislators’ criticism was highly partisan, to say the least, the underlying message is an important one — Government transparency is critical to a fully functioning democracy, and Ohio is in desperate need of real policy change.  No matter the party or faction leading the legislature, the process needs to be conducted properly, ethically, transparently.

The three legislators, to that end, have or are planning to introduce three bills:

• Rep. Lundy is the sponsor of the ‘Taxpayer’s Right to Know Act’ (HB 113) which requires that all records from the performance or assistance of a public-private partnership with state functions are public records, and that such entities must conduct official business in open meetings.
• Reps. Celeste and Goyal have introduced legislation to limit special interest groups’ access to the bill-writing process. House Bill 294 – The Commonsense Transparency Bill – prohibits outside parties and individuals from meeting with the Legislative Services Commission (LSC) without a member of the General Assembly or their staff present. LSC is the non-partisan agency that assists the legislature in writing the specific language of bills. The Commonsense Transparency Bill also specifies any form of written, oral, or electronic communication as a meeting that must include either a member or their staff.
• Reps. Goyal and Lundy are planning to introduce legislation soon to roll back Republican attempts to make it easier for officials to stonewall public records requests.

While I work for a “special interest” organization (although surely not the nefarious kind suggested in the press release, I hope) and I do not subscribe wholly to the partisan and political rhetoric, I applaud and support the legislation proposed by Reps Goyal, Lundy, and Celeste.  The collective goal of these proposed bills is to provide transparency in the legislative process and full accountability of our elected leaders.

However, even this is not enough.  I must also offer my own recommendations for legislation that go even farther to providing the necessary government accountability and transparency Ohio needs. I call for a larger Statehouse Accountability and Public Empowerment Act that would provide for:

• Transparency and Accountability through transcription of legislative committee hearings, including testimony, questions from legislators, answers, and commentary; as well as transcription of legislative floor sessions and debates. Further we will seek Transparency and Accountability through advocating for the codification of legislative intent to provide not only better judicial interpretation of laws, but most importantly, will be a transparent way of keeping legislators accountable for why they vote for or against a law.
• Transparency and Accountability through Increased use of technology (such as SKYPE and Closed Circuit television) to allow citizens to view and participate in legislative committee hearings without necessarily traveling across the state.  There is precedent already for SKYPE being used to allow a witness from across the country testify on a bill in Committee during the anti-abortion bills this spring.  Using this precedent, the General Assembly should develop a mechanism in both the House and Senate to permit citizen witnesses to contact the committee chair and request to testify on a piece of legislation via SKYPE at a specified time during the committee proceeding.  Further, as the Ohio General Assembly “televises” its floor sessions on the internet based “Ohio Channel”, similar technology could be used for all legislative proceedings to allow for the public to view committee hearings without traveling to Columbus.
• Timely dissemination of legislative committee and floor session transcripts via readily available websites or otherwise easily accessible media.  While the hope would be for the state to disseminate these documents and notify/educate the public on legislative participation mechanism, OEC along with colleague groups will develop a public outreach and information dissemination campaign.
• Truth in testimony, by requiring those who testify before committees to take an oath or otherwise affirm the truth of their testimony in face of perjury.

I urge legislators on both sides of the aisle to critically review our legislative process to ensure transparency and accountability.  Ohioans deserve to know what is going on in the hallowed halls of Capitol Square, and that policies are in place to provide public awareness of the work their elected officials do (or not do).  And those policies must have one goal in mind — keep legislators accountable for what they say, do, and for positions that they take that otherwise may go unnoticed.

Other recommendations for executive agency transparency and accountability (as well as recommendations to protect Ohio’s Air, Land, and Water) can be found in the Ohio Environmental Council’s 2011 Ohio Environmental-Conservation Legislative Briefing Book.

 

 

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Ohio Supreme Court to hear arguments on Lake Erie shoreline case tomorrow

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 11^th 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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OELC Decries “Activist Court,” Prepares Appeal to Supreme Court of Ohio in Lake Erie Case

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.

UPDATE: Attorney General Richard Cordray files appeal with Supreme Court of Ohio. Read OEC’s press release praising Cordray’s decision.

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