Last week’s decision by the Ohio Supreme Court of a dispute between the state and property owners bordering Lake Erie actually addressed three issues - drawing on court decisions dating back to 1878 and legislation enacted in the early 1900s.

In addition to the matter of the boundary between the owners’ property and the public territory of the lake, the court also ruled on whether the state, as distinct from the Ohio Department of Natural Resources, had legal standing to appeal the case, and also whether two environmental groups should have been allowed to intervene in the case.

In a 7-0 decision, the court ruled the state holds a public trust that “extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes.” The decision 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 on any given day.

But the Supreme Court also rejected state arguments that its public trust over the lake extends to the “ordinary high water mark” as defined by a survey by the U.S. Army Corps of Engineers in the 1980s.

Judge Terrence O’Donnell wrote that the boundary of the public trust was settled by a case in 1878 (Sloan v. Biemiller):  “More than 130 years ago….we determined that when a real estate conveyance calls for Lake Erie as the boundary, the littoral owner’s property interest `extends to the line at which the water usually stands when free from disturbing causes.”

The court also held in a 1916 case the state “holds the title to the subaqeuous land (of Lake Erie within the boundaries of Ohio) as trustee…”

Judge O’Donnell wrote the court has held the property owners are entitled access to navigable water on the front of which their land sits, and, subject to regulations of the state and federal governments, have a right to “wharf out to navigable water.”

He referred to legislation approved by the General Assembly in 1917 that mirrored the definition set in the Sloan decision.

Lawsuit filed in 2004
In 2004, lakefront owners filed a complaint in the Lake County Common Pleas Court against the state and Ohio Department of Natural Resources alleging the ODNR prohibited them from exercising their property rights lakeward of the ordinary high water mark even though that land was included in their property deeds.  That policy, which has been discontinued by the department, imposed a lease fee on the landowners wanting to extend structures into the water.

The property owners contended they held title to the land between the ordinary high water mark and the legal boundary of their properties as defined by their deeds; that the public trust didn’t include non-submerged lands.

The National Wildlife Federation and Ohio Environmental Council were granted permission by the trial court to intervene in the case as interested parties and both filed briefs supporting the state’s position.

The trial court ruled that territory over which the state exercises a public trust is limited to waters and land actually submerged by the waters. But it also ruled that boundary line between the public trust and landowner’s properties was not the ordinary low-water mark as some owners argued; rather it was a “moveable boundary consisting of the water’s edge.”

The ODNR didn’t appeal the case but the NWF and OEC sought a reversal.

The appelate court refused to consider briefs filed by the Ohio Attorney General on behalf of the state, holding that ODNR’s decision to not file its own appeal or join the state’s appeal deprived the state of standing in the case.

The appeals court also rejected the landowners’ argument the NWF and OEC shouldn’t be allowed to intervene in the case.

The Supreme Court upheld the appeals court ruling to let the two organizations intervene and ruled the ODNR remained a party to the case and that the state had standing to appeal the trial court judgment.

The Supreme Court ruling also reverses an appeals court decision that implies artificial fill can alter the boundary of the public trust.

That matter was remanded to the trial court to decide pending claims.

Ohio Attorney General Mike DeWine said he was pleased with the court’s “reasonable decision.”

“The court has also set forward the basis where there can be a reasonable approach for proper boundaries that balance the rights of both landowners and the public trust,” he said.

The Ohio Environmental Council, in a prepared statement, said the court’s decision “returned the shoreline (and the law) to status quo.”

Postings on the website of the Ohio Lakefront Group, a non-profit group representing property owners, were generally positive and claimed the decision was positive for the owners.

Comments (0)

Subscribe to this comment's feed