The Ohio Supreme Court heard oral arguments Tuesday on where the state’s public trust authority begins and ends along the Lake Erie shoreline.
In 2009, the 11th Ohio District Court of Appeals ruled property lines change with the water level and that land beneath the water is open to the public and land above the waterlines belongs to lakefront property owners.
The appeals court wrote that by setting the boundary at the water’s edge it was recognizing the private property rights of the landowners and also providing for the public use of Lake Erie and the land under the waters when submerged.
“The water’s edge provides a readily discernible boundary for the both the public and littoral landowners,” the appeals court ruled.
Attorneys for the state are contending when Ohio became a state in 1803, it assumed public trust authority over the same “territory” of Lake Erie as had previously been under the same authority of the federal government. They argue two U.S. Supreme Court cases in the 1890s held that the authority conveyed to states extended not only to the waters of the Great Lakes and the submerged land under the waters at any given moment, but also to the land bordering the lakes up to the normal or “ordinary” high-water mark where the water meets the land under conditions other than floods or droughts.
An Ohio Supreme Court Decision in 1878 (Sloan v. Biemiller) also figured into the arguments last week.
The state says the court in that case adopted for private property bordering Lake Erie the same standard set by the Illinois Supreme Court in 1860 for property bordering Lake Michigan.
In both cases, attorneys for the state argue, the boundary line of the lake territory falling under the state’s public trust authority was the ordinary high-water mark on shore.
They contend the Ohio 11th District Court erred by ignoring those precedents.
Attorneys for the landowners counter that those court decisions and legislation enacted by the Ohio legislature in 1917 terminates the state’s authority over Lake Erie at the “natural shoreline” and recognizes a public trust only over land submerged by lake waters.
At issue, said attorney Stephen Carney, representing the state, is a “strip of land that is sometimes wet and sometimes dry.”
The case took a turn as it wound its way through the court system.
Two groups of Lake County residents with lakeshore property initiated lawsuits but their cases were later consolidated as a class action on behalf of all owners of property in Ohio with land adjoining Lake Erie.
The landowners’ complaint in 2004 named three defendants: Ohio Department of Natural Resources, its then director Sean Logan, and the state, and asked the Lake County Common Pleas Court to invalidate ODNR regulations that enforced the state’s public trust authority up to the high-water point, which the ODNR identified as 573.4 feet above sea level based on a survey by the U.S. Army Corps of Engineers.
Their complaint also objected to the department’s policy of charging the owners a lease to place docks and other structures out into the lake waters and filed claims against the state alleging unconstitutional “taking” without compensation of their property from the waterline up to the high-water mark.
When Gov. Ted Strickland took office, he reversed the policy of requiring leases and the ODNR began recognizing the presumptive deed rights of landowners to use their property below the ordinary high-water point without entering into a lease.
The department said its policy change was subject to future revision after a final decision by the courts on the trust authority issue.
The ODNR didn’t participate further in the case but former Attorney General Mark Dann argued on behalf of the state that its public trust authority extends to the ordinary high-water mark. The National Wildlife Foundation and Ohio Environmental Council were also given permission to intervene in the case as interested parties and filed briefs supporting the attorney general’s position.
Lake County Common Pleas Court Judge Eugene Lucci ruled the water’s edge was a “movable boundary” and the state was barred from exercising public trust authority over property landward of the water’s edge. But he also ruled the property deeds were not enforceable beyond the point where the water touched the shore at the time the deed was filed and private ownership rights to shoreline property could not be extended beyond the original location by any subsequent receding of the lake’s waters or deposit of artificial fill into the lakebed.
Both parties appealed portions of the judgment by the trial court.
The appeals court held that under state law the attorney general may initiate legal action only at the behest of the governor or legislature and, since the ODNR agreed to end its lease requirement underlying the landowners’ claims against the department, the attorney general no longer had standing in the case.
The decision by the appeals court also vacated the trial court’s ruling that limited the extent of an owner’s property to the location of the water’s edge at the time the deed was filed.
Before the supreme court, attorneys for the state argue the Ohio Revised Code requires the attorney general to represent the state in a legal matter when requested by the legislature or governor but doesn’t restrict the attorney general from representing the state under his or her own statutory authority in cases involving the state.
In this case, they contend, the property owners’ complaint named both the ODNR and state as defendants. Consequently, neither the state’s status as a party nor the attorney general’s standing to appeal the trial court decision depends on the continuing participation of the ODNR in the litigation.
Attorneys for the landowners point to legislation passed in 1989 they contend grants exclusive authority to the ODNR “..in all matters pertaining to the care, protection and enforcement of the state’s rights” over Lake Erie and submerged lands. The ODNR’s decision, they say, to end its lease policy and to not appeal the ruling by the common pleas court, in effect, ended the attorney general’s standing to appeal on behalf of the state.
Asked by Justice Judith Lanzinger if there needs to be a static line above elevation decided in the case, James Lang, attorney for the Ohio Lakefront Group, said such a line wouldn’t be appropriate.
Citing the Sloan case and legislation, he said the appropriate boundary is “…the water’s edge where it normally appears undisturbed by short term conditions.”