Calling it a “trifecta of injustice,” Trent Dougherty, attorney for the Ohio Environmental Council, said the OEC plans to appeal a decision by the 11th District Court of Appeals that said property owners along Ohio’s portion of Lake Erie own the land above the water’s edge and the land beneath the water is open to the public.
The ruling in August largely upholds a decision by the Lake County Common Pleas Court in 2007 that established a moving boundary.
Dougherty, who is also Legal Director of the OEC Environmental Law Center, said a point of law beside the public access issue is at stake in the case.
He said the appeals court’s ruling, in effect, deprives the office of attorney general of legal standing in the case.
“First, this activist court legislates from the bench and attempts to add words to the Ohio Revised Code. Second, it proposes to overrule 100 years of Ohio court precedence, including the clear finding that attorney general has the authority to represent the public’s interest with regard to natural resources held in trust for the public. Finally, it tries to deprive the attorney general of it’s constitutional protection as an independent office provided by Article III of the Ohio Constitution,” Dougherty said.
In 2004, owners of lakefront property sued the Ohio Department of Natural Resources, objecting to the department’s policy of charging the owners a lease to place docks and other structures out into the lake waters.
Under that policy, the state contended the boundary between public and private land was the shoreline’s historic “high water mark” – a surveying point established by the U.S. Army Corps of Engineers.
The ODNR argued the policy was based on the public trust doctrine.
When Gov. Ted Strickland took office, he reversed the policy of requiring leases for land beyond the high-water mark if it was included in the owners’ property deed.
Former Attorney General Marc Dann continued fighting the lawsuit, contending the lands around Lake Erie are held in public trust and should remain open for public access. The OEC and National Wildlife Federation also joined the suit, arguing the public access extended up to the high-water mark.
Lake County Common Pleas Court Judge Eugene Lucci ruled the water’s edge is a “movable boundary.”
The appeals court agreed.
“The water’s edge provides a readily discernible boundary for both the public and littoral landowners,” the court wrote.
The OEC’s Dougherty said the appeals court erred by ruling the attorney general lacks standing in the case after the ODNR lease policy was dropped.
“The law, however, does not state that the Attorney General cannot act on behalf of the public as the appeals court decision implies,” he said.
Last week, the Ohio Lakefront Group, which represents the property owners, scheduled a meeting in Port Clinton to discuss the case and prepare for a likely appeal.
Holly Hollingsworth, a spokesperson for Attorney General Richard Cordray, said his office is reviewing the appeals court decision and hasn’t determined what further action it will take.
A spokesperson for the ODNR said the department is also reviewing the decision and hasn’t decided on any further legal action.