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Toledo, Ohio & Lake Erie

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The issue of landowner rights along the Lake Erie shoreline is now before the Ohio Supreme Court.

Ohio Attorney General Richard Cordray is appealing a decision by the 11th District Court of Appeals which ruled the land beneath the waters of the Lake Erie shoreline is open to the public and lakefront property residents own the land above the waterline.

The decision also set limits for the attorney general’s participation in the case, ruling that office’s authority to enter such a case is determined by the governor or state legislature.

“This ruling by the appeals court undermines the attorney general’s authority and duty to represent the people of Ohio,” Cordray said. “It also affects the rights of all Ohioans, including private landowners, along the shores of Lake Erie.”

 

The appeals court ruling in August for the most part upholds a ruling in December, 2007 by the Lake County Common Pleas Court.

“By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide for the public’s use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water’s edge provides a readily discernible boundary for both the public and littoral landowners,” the appeals court wrote.

Members of the Ohio Lakefront Group sued the state in 2004 after the Ohio Department of Natural Resources, under then Gov. Bob Taft, charged lakefront property owners a lease to place docks out into the lake waters. Under that policy, the state contended the boundary between public and private land was the shoreline’s “ordinary high water mark” – a surveying point established by the U.S. Army Corps of Engineers.

Gov. Taft and the ODNR argued their position was based on the public trust doctrine.

Two years ago, Gov. Ted Strickland reversed the policy requiring property owners to lease land from the state beyond the high water mark if that land was included in their property deed.

Then Attorney General Marc Dann continued fighting the lawsuit, however, arguing the land along Lake Erie is held in public trust and should remain open for public access.

The appeals court noted, however, there is precedent with the Ohio Supreme Court, which has identified that the waters of Lake Erie, ``when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark.”

Cordray last week noted that during the trial court proceedings, the state and ODNR decided to litigate separately, which is not uncommon in cases involving multiple governmental parties.

The attorney general represented the ODNR by hiring outside counsel. The ODNR elected not to appeal from the trial court ruling although the attorney general continued to press the state’s position on appeal. With the ODNR not actively participating in the case, the appeals court ruled the attorney general, in effect, no longer had standing in the case.

Cordray said the appeals court failed to recognize the state was a defendant and didn’t file the initial lawsuit. When the trial court ruled against the state it automatically gave the state the right to appeal.

In addition, the separate representation of ODNR didn’t take away the state’s right to appeal because the plaintiffs named the state itself as a separate defendant, he said.

He is also challenging the appeals court ruling that attorney general could act only when the governor or legislature specifically instructs him to enter a case.

Cordray’s filing says the law actually provides the “…attorney general has the right, and the duty, to defend the State of Ohio and her entities when they are sued.”

The filing says the attorney general “often must rush to court” and “file extensive pleadings within hours on urgent matters” such as capital cases and election cases.

Trick or Treat

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