Ohio Lakefront Group Lawsuit against the State of Ohio Department of Natural Resources (Originated May 28, 2004)
Appellate Court Affirms Class Certification for OLG
April 4, 2014 – The 11th District Court of Appeals rules in favor of OLG in latest Appeal by the State
The 11th Circuit Court of Appeals affirmed the continuation of Class Certification for OLG and all the class members who own property bordering Lake Erie.
On appeal, appellants (the State) asserted the following assignments of error:
[1.] The Trial Court erred and abused its discretion in determining that this action may be maintained as a class action for Count II of the Amended Complaint.
[2.] The Trial Court erred and abused its discretion in certifying a class and ordering relief in regards to the validity of submerged land leases and claims for the return of payments made under those leases.
[3.] The Trial Court erred and abused its discretion in determining that Plaintiff/Appellee Ohio Lakefront Group is a prevailing party for the purpose of its application for attorney fees under R.C. 2335.39.
[4.] The Trial Court erred and abused its discretion in determining the location of the boundary of the territory of Lake Erie held in trust by the State of Ohio.
The Court limited the appeal to issues related only to class certification, the Court did not address the State’s third and fourth assignments of error.
To read the full Appellate Court decision, click here. Opinion affirming class certification
September 10, 2012 – Judge Lucci Defines private property boundary affirming Private Property Rights
Judge Lucci ruled on the major issues in the case. He specifically rejected the claim by the State that the “ordinary high water mark” was the boundary of waterfront property. “Instead, the Court found that home owners’ boundaries should be calculated according to when the lake’s water is at rest, without disturbance.” His Order further:
1. Voided any submerged land leases forced by the State of Ohio on property owners of any land above the natural shoreline.
2. Rejected the State’s assertion of authority to compel property owners to lease back property owned by them as specified in their deeds, including lands lost due to avulsion.
3. Ordered the State to provide notice and guidance to the public and to governmental authorities on these rules establishing boundaries for waterfront property.
August 2, 2012 – Response Briefs to Judge Lucci’s Order
Judge Lucci requested the parties to brief on the status of class certification. Specifically, if the class was still active and the future plans for re-certification if necessary. The parties were given 10 days to respond.
The State responded that the Class ended with the Supreme Court ruling and that no class currently exists. Further, the State does not plan to seek re-certification for counts 2 and 3 of our lawsuit.
The second count was to seek remedy from the State if the OHWM was not the 573.4 elevation as claimed by the State. The third count was to cause the State to enter into eminent domain proceedings if the OHWM was found to be 573.4 elevation as claimed by the State.
OLG and Intervening Plaintiff Homer Taft responded that the Class does currently exist and will exist until the State complies with the ruling of the Courts. With regard to the second count, OLG suggested that no re-certification is necessary since the class will be identical, consisting of all littoral property owners on Lake Erie. Should the Court decide that re-certification is necessary, OLG would follow the process as originally done in June of 2006. This would only apply to Count 2 as the 3rd count is moot since the Court found that the OHWM is not 573.4 elevation as claimed originally by ODNR. Following are the brief links.
July 27, 2012 Judge Lucci Orders Additional Briefs
After review of all the briefs submitted to date, Judge Lucci ordered the parties to file briefs on the following issues within seven days of the date of the order:
1) Does a certified class exist and is it maintained at this stage of the proceedings as to Count One of the First Amended Complaint?
2) If it no longer exists or is no longer maintained, when did it cease to exist or be maintained?
3) If it still exists and is maintained, when will it cease to exist or be maintained?
4) Regardless of the answers to the foregoing, will a certified class be sought to be maintained as to Counts Two and/or Three of the First Amended Complaint?
5) If a class is sought as to Counts Two and/or Three of the First Amended Complaint, how will it be certified, potential members notified, maintained, and/or members sub-classified, and the issues common to the class and individual to the members adjudicated?
6) When and how, procedurally, will this occur?
Click to read the Order: Lucci order on Class Certification
July 25, 2012 – OLG Reply in Support of It’s Original Statement for Additional Relief
OLG submitted an additional brief regarding:
- the elimination of submerged lands leases
- ODNR providing guidance and notice to the public and governmental entities that the OHWM is not the extent of the Public Trust
- the State cannot avoid monetary relief and must refund money collected illegally for submerged lands leases
Read the entire brief here: Reply Brief to Further Support its Statement of Additional Relief
July 25, 2012 – OLG Response to AG Brief Opposing Fees
In summary the OLG brief stated:
- OLG’s request for fees is proper at this time because a final judgment has been entered on an appeal.
- Fees are recoverable in this action regardless of whether it is an action in Mandamus (which it is not).
- OLG is an “eligible party” entitled to recover fees under the Ohio Revised Code. Also, as an incorporated entity OLG is not required to aggregate the net worth of its employees or members.
- OLG is the prevailing eligible party and is entitled to an award of fees.
- The State’s position in initiating the matter was not substantially justified.
- The State has failed to describe “Special Circumstances” for avoiding the payment of attorney’s fees.
Read the entire brief by clicking: OLG Reply brief to State 2012
June 15, 2012 – State Response to OLG Request for fees
The AG enumerated seven (7) items, all of which he advocated to the court, must be proved in order for OLG to collect any fees for its legal services for fighting the State. Note that it is the State, not ODNR that initiated all the appeals after the OLG victory in the Trial Court of Common Pleas and the Lake County Appellate Court. The State also had us spend a year in Federal Court where the case was rejected and sent back to the trial Court. So the State continues to spend taxpayer money, which will be well in excess of any fees OLG might get.
The items to be proven as stated in their brief are:
- That there is a final judgment concluding this action
- That this is an action which fees may be recovered
- That OLG is an eligible party
- That OLG is the prevailing party
- That the State initiated this controversy
- That the position of the State is this matter was not substantially justified
- That there are no special circumstances in this case that would make the award unjust
Read the full brief, click here. State Response to OLG request for fees, etc. and cover letters. Note that the first dozen or more pages are cover letters including a brief to extend beyond the normal 10 page limit for this action. Move through them to the actual Brief in Opposition.
June 15, 2012 – NWF/OEC Response to OLG Request for Fees
In essence, NWF/OEC states that we did not win in the Supreme Court and therefore should not receive reimbursement for legal fees. We wonder what decision they read as it was very clear that the extent of the Public Trust is not the OHWM as the ODNR and NWF/OEC had argued. The Court said: “Based on opinions of this court from as early as 1878 and the Ohio General Assembly’s statement of public policy enunciated in the Fleming Act in 1917, we conclude that the territory of Lake Erie held in trust by the state of Ohio for the people of Ohio extends to the “natural shoreline,” which is the line at which the water usually stands when free from disturbing causes.” They further stated: “This court has a history of protecting property rights, and our decision today continues that long-standing precedent.” To read their brief click: NWF OEC response to motion for fees.
June 15, 2012 - OLG Statement to Common Pleas Court for Additional Relief
OLG filed a brief to the Court. In Summary we asked that the Court issue a judgement declaring:
1. All submerged lands leases be declared null and void as to any land between the OHWM and the natural shoreline or owned by the plaintiffs.
2. ODNR lacks authority to compel owners to lease back land already owned by them per their deeds that was lost by avulsion and subject to reclamation.
3. ODNR shall provide public notice and guidance that the boundary of the Public Trust is the natural shoreline and not the OHWM.
4. ODNR shall return to the owners all submerged land lease fees paid since 1998 to the present for lands between the OHWM and the natural shoreline.
To read the entire brief click Statement of Add’l Relief (01513587)
November 15, 2011 – OLG Statement to Common Pleas Court on Remaining Issues
The OLG brief presented two important issues:
1. Based on the Appeal Court and Supreme Court decision, the description of the boundary should be changed to read: “The natural shoreline is a moving boundary located at the line where the water would be on any given day, between the ordinary high and low water marks, except for natural disturbances such as storm surges, wind tides, seiches and harbor resonance. The natural shoreline is not an “ordinary” water line or a fixed line of elevation. The line moves throughout the year based on seasonal variations in lake levels. The line also moves based on long term changes to the land caused by erosion and accretion and long term changes to water levels caused by submergence and reliction. In other words, the natural shoreline is the line between what is usually non-submerged land and what is usually submerged land on any given day.”
2. A statement regarding property boundaries should read: “Property descriptions in deeds of littoral owners are presumptively valid, including without limitation metes and bounds descriptions. The presumption that deeds are valid is only the first step in determining the location of the natural shoreline for a particular property, which must also include a presumption that any shore recession was caused by avulsion. When land abutting Lake Erie is stripped away by avulsion, the natural shoreline remains fixed at its last location prior to the avulsion and the littoral owner may reclaim all land so lost between the water’s edge and the natural shoreline. Thus, the presence of fill also is not determinative of the natural shoreline because fill placed landward of the natural shoreline is privately owned and does not affect the natural shoreline. As a result, ODNR’s use of aerial photographs to determine the natural shoreline at a given point in time lacks any sound basis because it fails to account for avulsive losses.”
The Statement can be reviewed by clicking OLG Statement to Court
November 15, 2011 - Interv Plaintiff Homer S. Taft Statement on Remaining Issues
Intervening Plaintiff, Homer S. Taft statement included the following requests to the Court:
1. ODNR should be enjoined from claiming ownership or control of any land along Lake Erie that is within the legal deed of the private owner, unless it is able to be proved by ODNR that the deed is faulty.
2. ODNR should void all leases that are below the OHWM and within the deed of the private property owner, that have clouded the deed of the property.
3. ODNR should be enjoined to respect all littoral rights of private property owners.
The Statement can be reviewed by clicking Intervening Plaintiffs Taft Statement
November 15, 2011 - State of Ohio and NWF Joint Statement on Remaining Issues
The State and NWF filed joint briefs consisting basically of two issues:
1. Seek a judgment declaring that each of the named Plaintiffs in this action and in Taft, who are now Intervening Plaintiffs in this case, arc required to obtain authorization from the State pursuant to Ohio law – R.C. 1506.11 and the administrative regulations promulgated thereunder – for any improvement:i or developments of Plaintiffs that extend beyond “the natural shoreline” of Lake Erie. (This is changing from the OHWM.)
2. OLG claims for “fees” will be disputed by the State Defendants, and discovery and evidentiary hearing will be required for determination and resolution of those claims and issues.
The Statement can be reviewed by clicking Joint State and NWF Statement
November 15, 2011 - NWF OEC Statement on Remaining Issues
A Separate Statement by the NWF and OEC basically said that all issues were resolved by the Supreme Court and that no issues remain, except that of the request for Fees by OLG.
The Statement can be reviewed by clicking NWF OEC Statement to Court
October 14, 2011 - Ohio Lakefront Group Files Motion for Attorney’s Fees in Wake of Supreme Court’s 7-0 Decision
ODNR Forced Home Owners to Sue to Protect Property Rights, Ignored Lower Court Rulings
The Ohio Lakefront Group (OLG), representing 7,000 Ohioans owning property along Lake Erie and other waterways, today filed a motion asking for the Ohio Department of Natural Resources (ODNR) to compensate them for the $578,244 spent on defending their property rights in a seven year legal battle.
The lawsuit began in 2004 when ODNR assessed some landowners for rent on their lakefront property and culminated on September 16, 2011 in a unanimous decision by the Ohio Supreme Court which affirmed the property owners’ rights and rejected the ODNR definition of owners’ property lines. A Lake County trial court and appeals court had both previously affirmed the property owners’ rights.
“ODNR should have changed their policy years ago and stopped trying to charge us for property we had already purchased,” said OLG president Tony Yankel of Bay Village. “ODNR just didn’t listen to two lower courts and a 1993 Ohio Attorney General’s opinion that supported our position.
“We didn’t want to take the issue to court but if we hadn’t, ODNR would have gotten away with an illegal taking of our property,” Yankel continued.
“We are only asking the State of Ohio to compensate us for the money we were forced to spend to defend our rights as property owners,” Yankel concluded. “Our motion does not include compensation for the thousands of volunteer hours that homeowners were forced to spend fighting this policy that was so clearly wrong.“
The Ohio Lakefront Group represents nearly 7,000 property owners. Its law firm in the proceedings was the Cleveland office of Calfee Halter and Griswold.
Read the Court filing, click here.Motion for Fees
September 14, 2011 – Ohio Supreme Court Rules – Protects Private Property Rights
We won our Property Rights
“This court has a history of protecting property rights, and our decision today continues that long-standing precedent.”
In what was a very long awaited decision, the Ohio Supreme Court released its decision in our 7 year battle for our property rights. There were actually 3 questions before the court from the Appellate Court and Trial Court decisions.
1. Did the Ohio Attorney General have standing in the Appellate Court after the Governor directed ODNR to honor private property deeds and subsequently ODNR withdrew from the appeal?
2. Did the National Wildlife Federation and the Ohio Environmental Council properly intervene in the case as allowed by the Appellate Court?
3. Did the Trial Court and the Appellate Courts rule properly that the landward extent of the public trust extended only to the place where the water and the land meet, a moving boundary, at any point in time.
The third point is most important as that was what our lawsuit was all about. In summary, the court stated:
“Based on opinions of this court from as early as 1878 and the Ohio General Assembly’s statement of public policy enunciated in the Fleming Act in 1917, we conclude that the territory of Lake Erie held in trust by the state of Ohio for the people of Ohio extends to the “natural shoreline,” which is the line at which the water usually stands when free from disturbing causes.”
The Court further elaborated in their ruling,
“Having clarified that the territory of Lake Erie is held in trust forthe people of Ohio and extends to the natural shoreline, the line at which the water usually stands when free from disturbing causes, we affirm the appellate court to the extent its judgment is consistent with this pronouncement, but we reverse its decision implying that artificial fill can alter the boundary of the public trust and its decision to affirm the trial court that the boundary of the public trust changes
from moment to moment.
Regarding questions 1 and 2, the Court found that the Attorney General does have standing in the Appeal for the State since the State was a named party along with the ODNR in our lawsuit. Further the NWF and OEC likewise are proper interveners since their members who fish and otherwise recreate on and along the shores of Lake Erie have an interest in the outcome of the lawsuit.
Read the full text of the Ohio Supreme Court Decision, click Ohio Supreme Court decision (01255925)
January 30, 2010 – State Files reply Brief to Ohio Supreme Court
Ohio Attorney General Cordray filed the State’s reply to the OLG brief and those of Scot Duncan and Homer Taft.
The brief begins asserting that no matter the outcome of the AG’s standing as viewed by the Supreme Court, the case should not be remanded to the Appellate Court, but should be heard directly by the Ohio Supreme Court. This is consistent with the OLG assertion in the case before the Supreme Court.
The AG continues to maintain that he has standing to defend the State sans any real named defendant. The brief cites nothing new in defending the AG’s standing, relying on an implicit responsibility to continue the defense of ODNR after Governor Strickland issued his policy statement and ODNR and the Governor took separate attorney representation. (ODNR and the Governor filed no further briefs with the Courts subsequent to taking new representation.)
Governor Strickland’s policy that was supposed to cause the ODNR to cease and desist from charging private property owners to lease their own land from the State. The Governor’s new policy, however, is moot since ODNR never released new administrative rules to eliminate the illegal practice and continues to send lease billings as before. As is required by ODNR, rules are reviewed and referred to JCARR periodically. Administrative rules were released last year to JCARR with NO CHANGES relative to the Governor’s policy.
ODNR contends that new administrative rules, reviewed in public meetings in 2008, are ready for release. They further state that comment and other input from those (2008) meetings have been incorporated to the extent possible. The public has not yet seen the new revised rules.
To read the complete brief, click the link: State’s Reply Brief Supreme Court
January 23, 2010 – OLG, Homer Taft, Scot Duncan and NWF/OEC File Briefs in Reply to Supreme Court Entry
OLG filed its brief to the Ohio Supreme Court on Friday. The brief in summary noted that when ODNR and the Governor withdrew from the lawsuit, the Attorney General lost standing. Since ODNR is the sole party responsible for the management of Lake Erie, by withdrawing, the Attorney General could not defend that responsibility. However, should the Court determine that the AG does have standing, we agree with the State’s brief that the case should not be remanded to the Appeal Court since all the briefs from all parties were provided to that Court for their decision in the appeal.The full OLG brief can be accessed through this link: OLGSupremeCourtbrief
NWF/OEC also filed their brief restating the State’s argument that the AG should have standing in the case. Access the full brief here: NWF_OECSupremeCourtbrief
An Amicus brief was also filed by NWF representing a number of environmental and sportman’s organizations basically stating that the AG is responsible for defending the environment in Ohio which includes Lake Erie. Access the full brief here: Amicusbrief
Co-plaintiffs Homer Taft and Scot Duncan filed supplementary briefs further asserting the AG’s lack of authority to appeal our lawsuit after the ODNR and Governor withdrew and took separate attorney representation. They provied additional case law to support their assertion. Their briefs can be accessed through these links: Duncanbrief 20TaftSupport
January 9, 2010 – Attorney General and ODNR Respond to Supreme Court Entry
The Ohio Supreme Court rejected the notion of summarily dismissing the AG’s standing in the case and instead asked that two issues to briefed prior to considering whether or not to take the entire case. The Entry directed the parties to answer 2 questions:
1. Does the attorney general have standing to appeal a judgment against the State of Ohio if that appeal is contrary to the directive of the governor and the attorney general is not representing an administrative agency.
2. If the answer to the first question is “yes,” is the record in this matter sufficient for this Court to resolve the appeals and cross-appeal, if they are accepted, even though the State of Ohio’s assignments of error and briefs were stricken by the court of appeals?
We have received copies of the ODNR and A.G. briefs. While the ODNR is more succinct with 6 pages as compared to the A.G.’s 21 pages, both sets of briefs basically have the same spin.
In response to question 1:
ODNR states: “The only directive issued by the Governor regarding this case was a directive to ODNR that it should honor the presumptively valid real property deeds of the Lake Erie lakefront property owners unless a court determines that the deeds are limited by or subject to the public’s interest in those lands or are otherwise defective and unenforceable. In responding to this directive, ODNR made its position known to the trial court and ceased to take an active role in the litigation. ODNR indicated to the trial court that it welcomed the court’s resolution of the issues before it, based upon the able and exhaustive briefs submitted on behalf of the lakefront owners and on behalf of the State of Ohio by the Attorney General.”
“Thus, although ODNR ceased to take an active role in litigating this case, it continued to recognize that there was a significant case and controversy in need of judicial resolution. ODNR and the Governor fully expected that the Attorney General of Ohio would continue to defend the action on behalf of the State of Ohio, as a separately named party, and would continue to litigate the merits of the issues as framed in the trial court. ODNR and the Governor understood and expected that the Attorney General would continue to represent the State of Ohio in this action through the appellate process.”
The Attorney General adds that the Attorney General is independent due to the nature of his office and the nature of the State. Ohio has three branches of government that operate independently. Just as the Governor cannot direct a Court decision or the activities of the other branches including the direction of litigation when other parties in the State are sued. The Attorney General’s responsibility is to defend the State whether or not directed by the governor.
In response to question 2:
ODNR states “The court acted on its erroneous conclusion that the Attorney General did not have the authority to prosecute the action on behalf of the State of the Ohio, in the absence of ODNR taking an active role in the litigation. The Court may and should reverse this error at the outset of this case and reinstate the State of Ohio’s assignments of error. Notwithstanding the fact that it struck the State of Ohio’s brief, the court of appeals proceeded to address the merits of the issues before it, such that there is no reason to remand the case back to the court of appeals.”
The Attorney General added that although the Appeals Court erred in ejecting the Attorney General from the case, the Appeals Court did resolve the relevant issues making them ripe for the upper court review. “A remand to the appeals court would add nothing but delay, and all parties are best served by a final resolution of the important lake Erie issues now rather than later.”
To read the ODNR brief, click ODNR Support Brief
To read the Attorney General brief, click State AG Support Brief
December 23, 2009 – Ohio Supreme Court Files Entry
1. Does the attorney general have standing to appeal a judgment against the State of Ohio if that appeal is contrary to the directive of the governor and the attorney general is not representing an administrative agency.
2. If the answer to the first question is “yes,” is the record in this matter sufficient for this Court to resolve the appeals and cross-appeal, if they are accepted, even though the State of Ohio’s assignments of error and briefs were stricken by the court of appeals?
The Court directed that the Appellant/Cross-Appellant State of Ohio’s brief shall be filed within 15 days from the date of this order. All other parties may file briefs within 15 days after the State of Ohio’s brief has been filed. The State of Ohio may file a reply within five days thereafter. No extensions of time shall be permitted. The Clerk shall refuse to file any requests for extension of time.
December 7, 2009 – OLG Files Brief with Ohio Supreme Court
On December 7 OLG filed its brief in response to the Appeals by the Ohio Attorney, the National Wildlife Federation and Ohio Environmental Council, and co-plaintiff Howard Taft.
Four points are made in the brief and summarized here:
- · OLG has no objection to the Ohio Supreme Court summarily entering a judgment regarding the Attorney General’s standing to represent the people of Ohio in the Appellate Court Appeal. However, there is no reason to remand the case back to the Appellate Court since the AG participated fully throughout the case in filing briefs and being heard in oral arguments before the Court. Also, the AG offered no information beyond what appellants NWF/OEC provided in their appeal. Therefore the Appellate Court has heard all of the information and a remand back to the Court would be superfluous wasting additional time and money by the plaintiffs and defendants.
- · The preposition of error regarding the boundary of the Public Trust raise no real issues as this boundary has been established by law in the Ohio Revised Code, reinforced by the Ohio AG’s formal opinion in 1993, settled in 1878 in a case (Sloan v. Biemiller), and readdressed by the Ohio General Assembly in 1917 all of which stipulate the boundary to be the “natural shoreline” or “water’s edge” as defined by the Trial Court in 2007. Therefore there is no question for the Court to consider, as the Public Trust issue has long been settled, affirmed, and re-affirmed.
- · The proposition of error relating to the right of the public to walk the shores of Lake Erie similarly raises no issue. Again referring to the Sloan v. Biemiller case, while the court found no issue with exercising public rights within the Lake, it found no similar public right with respect to the shore. A later case, Wincus Point Shooting Club v. Bodi, the court affirmed the plaintiff’s title in and to all lands, marshes, shores and islands and said this issue (of private property rights) was “forever quieted”. The U.S. Supreme Court in 1926 agreed, “there are no public rights in the shores of non-tidal waters”. NWF/OEC assert that a “more modern” public right includes walking the beaches of Lake Erie. As with the boundary issue, this is a matter of law and should be rejected. Therefore there is no question for the Court to decide as this question has, likewise, been long settled and affirmed.
- · The issue of NWF/OEC’s right to intervene in this case is not a question of public or general interest. Numerous actions over previous years have allowed such interventions. This intervention itself is not significant to the case and cannot serve as an independent basis for the Court to decide.
The full OLG brief can be viewed by clicking the link below.
October 7, 2009 – ODNR Files Memorandum of Support of Jurisdiction to Ohio Supreme Court
In a surprise filing ODNR filed for standing in the appeal. ODNR’s brief states that its responsibility is to uphold any findings by the Court and to carry out those responsibilities as they apply to the public trust, upland property owners, and all the people of Ohio. Because of this, ODNR wants to insure “that the Court has the benefit of its expertise.”
ODNR states that they want clear guidance as to what the law is, specifically on how fill material artificially placed by the littoral owner affects the boundary of the territory (i.e. public trust). They specifically refer to the statement: “the waters and the lands presently underlying the waters of Lake Erie and the lands formerly underlying the waters of Lake Erie and now artificially filled”
Many of our OLG members have fill present on their property because of their rights to reclaim property lost due to avulsive (storm) event(s). The Appeals Court decision clearly states that the boundary of the public trust is the natural shoreline which “is the line of demarcation between the waters of Lake Erie and the land when submerged thereunder held in trust by the state of Ohio and those natural or filled lands privately held by littoral owners.” Note that the Court did not talk about “artificial fill” meaning fill placed beyond the original property boundary.
However, ODNR has contended in the past that this fill is illegal because it protruded into public trust waters, subsequently charging the owners for submerged lands leases for this filled area. OLG is eager to have the Supreme Court clarify the right to fill and to the extents that fill is allowed on the private property owner’s deeded land.
October 7, 2009 – Attorney General Cordray Files Appeal to Ohio Supreme Court
In his appeal, Mr. Cordray primarily rejected the Appeals Court decision giving the AG no standing in the case. His key points in the brief:
- The Appellate Court mangled the doctrine of appellate standing
- Impaired the ability of the State to protect the public interest
- Hobbled the State’s ability to protect State’s interests
Mr. Cordray actually recognized that littoral owners have special rights, but continued the worn out mantra that Ohio has held the public trust to the ordinary high water mark since statehood. He casually equates the law defining the public trust, ORC 1506.10 that reads “to the southerly shore”, as meaning the ordinary high water mark. He continues to cite the same cases as cited and rejected in the lower courts.
To read the full Appeal, click this link. http://www.ohioattorneygeneral.gov/LakeErieFiling
October 7, 2009 – National Wildlife Federation Files Appeal to Ohio Supreme Court
As expected, and as they stated after the decision by the Appellate Court, the NWF filed their appeal to the Ohio Supreme Court.
Their first basis for appeal was the reiteration of the State’s claim to ownership of Lake Erie’s public trust to the Ordinary High Water Mark since statehood, and specifically for 139 years since a specific case decision that both OLG and the defense used in their arguments to the court.
NWF brazenly tells the Ohio Supreme Court that:
“the court of appeals interpreted the Court’s terminology – “subaqueous soil,” “submerged land,” “land under the waters” – on its face, with a modem sensibility (emphasis added), failing to understand what the (previous) court meant by it. As a result, the court of appeals has twisted this court’s precedents, erroneously reducing the dimensions of Lake Erie and the scope of the public trust in its navigable waters.
Secondly. NWF asserts:
“The public trust includes the right of citizen passage along the shore of Lake Erie as a necessary incident to the use and enjoyment of Lake Eric for the traditional public trust purposes of navigation, commerce, and the fishery, and the more modern public trust purposes of recreation and aesthetic enjoyment (emphasis again added).”
So, in the first case NWF does not want the modern definition, but in the second case the modern definition to include recreation and aesthetic enjoyment is preferred
NWF further quotes from case law:
“The Court held that the state owns the land under the navigable waters “in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”
Navigation, commerce, and fishing, are included but the words recreation and aesthetic enjoyment or walking do not appear. In fact, EVERY reference made in their cites refers only to the navigable waters and the land beneath and nowhere is ordinary high water mark or the shore mentioned.
In essence, NWF makes the very same case with no new information. They, like the State, continue the misinformed mantra that the ordinary high water mark has been established since statehood and that the subaqueous land under the waters of Lake Erie somehow includes the dry beach.
Click the link to read the entire brief. NWFSupremeCourtAppeal.
August 24, 2009 – Appellate Court Upholds Trial Court Decisions
The Eleventh District Court of Appeals in Painesville issued the long awaited decision on basic property rights today. This decision stood up for the most fundamental of all property rights—ownership of what is specified on a deed. The highlights of the decision are summarized below:
- The Court rejected the argument that the OHWM dictates the natural shoreline as asserted by the State and NWF/OEC.
- The Court rejected the NWF argument that the public can walk on the dry beach for recreational purposes finding that the “public retains the same rights to walk lakeward of the shoreline along Lake Erie, but these rights have always been limited to the area of the public trust (i.e., on the lands under the waters of Lake Erie)
- The Court observed that ‘Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property.”
- The Court ruled that the trial court exceeded its authority in reforming all deeds of upland property owners to terminate at the water’s edge and reversed that order.
- The Court ruled that the Attorney General of Ohio has no standing in the case as the defendants, ODNR and the Governor, withdrew from the case. They ruled that the attorney general had no defendant.
OLG fully expects the NWF/OEC and the State AG to appeal this case to the Ohio Supreme Court.
Key points in the reply brief are:
- The Low Water mark has historically been the end of the “Public Trust” and has been recognized as such in State documentation from 1970 through 1997 when ODNR took the position of Ordinary High Water mark. Also, Low Water and “where land and water meet” have been synonymous in the past. Lee Fisher as Attorney General affirmed this in his 1993 Opinion. In 2007 ODNR abandoned the OHWM position in response to the Governor’s policy. Only the State A.G. office now fights for OHWM.
- OHWM does not apply to Lake Erie as a non-tidal body of water. The Army Corps of Engineers established OHWM in 1974 for regulation of navigable waters only. The State later used a 1982 to 1988 level of 573.4 based on only 6 years of unusually high water levels to establish its OHWM. The rules established at that time did not comply with rule making requirements established by law and are therefore invalid. Also, the State Appeal often refers to Federal Law, which has never applied to the State’s definition of “territory” or private property.
- The Ohio Supreme Court since 1895 has always supported the rights of private property owners to exclude others from their shore, i.e. “land bordering, but not currently beneath, the waters of Lake Erie”.
- The State’s reliance on a federal court case to support their appeal could not have been more wrong in that the U.S. Supreme Court reversed the cited case. It is incredulous that the State missed this reversal, making their argument null and void. Other cases on which the State relied were equally flawed in upholding the State’s position.
- The State misstated and mistakes Ohio authority in trying to prove error in the Trial Court. The Trial Court relied on (1) Ohio Supreme Court precedent, (2) ODNR rules, (3) Ohio Attorney General opinions and (4) traditional property rights.
Friday, May 30, 2008 – OLG Files Appeal Brief Response to State and Cross Appeal
This past week, OLG filed its brief with the 11thth District State Court of Appeal. The entire 45 page brief is posted on the website and can be viewed by clicking here.
Key Points in the Cross-Appeal are:
- The Trial Court erred in not establishing the Low Water Mark as the boundary of the “territory”. Common usage sets the “shoreline” at the Low Water Mark. Since 1890, Ohio Common Law has equated Low Water Mark with the “water’s edge, “margin”, or “edge of the water”.
- ODNR has abandoned the OHWM as the boundary for the “territory” when they withdrew from the lawsuit. Only the State A. G. office continues this wasteful battle against private property owners.
- Both common and technical usage shows that the “territory” sits at the low water mark, which the Trial Court did not recognize. The Appellate Court should reverse the Trial Court on not recognizing the Low Water mark as the boundary of the “territory”.
- None of the parties to the suit requested that littoral property owner deeds be reformed. At a minimum, littoral property owners hold title to the water’s edge. However some deeds include lands that have been filled or extend into the lake. Previous court cases have supported those deeds. The Trial Court’s order to reform deeds was in error and should be reversed.
Friday, April 18, 2008 – State of Ohio Files Appeal Brief with Appellate Court
On April 17, 2008 the State of Ohio filed its 58 page brief with the Appellate Court. Much of the brief restates what had been previously presented in the original case and citing numerous other court cases that the State believes will support their appeal. The State continues to use the IGLD (International Great Lakes Datum) of 573.4 feet as the ordinary high water mark since statehood and cites Ohio revised code, which never mentions the IGLD.
One key argument by the State is that the Court relied on “Historical records” dealing with this case as one of a real property rather than one of public trust rights. In other words, it appears that the State is claiming that private property rights are not at issue here. Of course, the State cited the Michigan case where the Supreme Court ruled that the public had the right to walk on the beaches of private property owners. (The Michigan law in fact specifically used ordinary high water mark within its context, whereby the Ohio Revised Code does not.)
The State found fault with the Court’s ruling, holding that it was inconsistent with “(1) Ohio Supreme Court precedent; (2) Ohio Department of Natural Resources rules; (3) the Ohio Attorney General’s position on the issue; and (4) traditional property rights.”
Several important reasons for the ruling seem to have been left out. They are the Constitution of the United States , the Ohio Constitution, Ohio Revised Code, and the legal deeds of private property owners.
The State continues its same distorted interpretation of Ohio law, hoping that the appeals court will not see through their charade. As Judge Lucci has shown, the courts are not easily swayed by repetition and skewed interpretations of the law.
The OLG continues to stand by our belief that the U.S. Constitution, the Ohio Constitution, the Ohio Revised Code, and our property deeds are on our side and will prevail over the State. Our deeds have stood on Lake Erie since before statehood. Their legality should not b altered at the whim of a state agency, extreme environmentalists, or sports hunting groups.
To read the full (58 page) brief, click here.
Monday, April 7, 2008 – National Wildlife Federation and Ohio Environmental Council File Appeal Briefs
The National Wildlife Federation and Ohio Environmental Council (NWF/OEC filed their Appeal Brief with the Appellate Court on April 7th. There appears to be no relevant new information that has not come before the Court before the Appeal. The assertions by NWF/OEC in their brief are as follows:
- “The trial court erred in holding that the public trust in Lake Erie is demarcated by the line the water of the lake touches at any given time.”
- “The trial court erred in holding that the Ohio Department of Natural Resources may not use the IGLD elevation to establish the high water mark of Lake Erie.”
- “The trial court erred in holding that the littoral property owners may exclude the people from using the lands below the high water mark of Lake Erie.
Numerous Federal and State trial cases are cited in their brief, including cases involving rivers and tidal waters. Lake Erie is not tidal water. They also exhibited an economic analysis, which stated:
“The beauty and excitement of the lake draws millions of visitors to it each year. They come to experience the rich maritime history, walk its windswept beaches, canoe scenic tributaries, and climb beautiful lighthouses. In addition to direct expenditures the effect of visitors taking part in these activities is the creation of more than 130,000 jobs and the generation of more than $400,000 in state and local taxes.”
It appears that the economy is doing well without the trespass on private property. The economic analysis does not consider private property in its analysis.
A number of affidavits were attached from individuals who claim they have walked the “private” beaches for years and intend to do so in the future. So it would appear that private property owners have not damaged these people. However, the NWF/OEC states they want accessibility to beaches on private property to “picnic, bird watch, exercise…. (and to) canoe or swim from the shore.
While one cannot speculate on what the court may think of the arguments set forth by NWF/OEC, there still appears to be no compelling argument to invalidate private property deeds that have stood on Lake Erie since well before Ohio’s statehood.
To read the full brief, click here.
Friday, February 1, 2008 – OLG Files Motions on State’s Motion for Stay
OLG Plaintiffs filed motions in response to the “State of Ohio’s Motion for Stay of Execution of Judgment pending Appeal”
Two motions were filed. The first took issue with false assertions made by the State. The state cited a similar case involving ODNR’s unconstitutional taking of property. The “Stay for Fees” was ultimately heard in the State Supreme Court, which ruled in favor of granting the plaintiff fees and against the State.
The State’s claim clearly contradicted the case law cited by the State. Also, one of the Assistant Attorneys General signing the State’s Motion for Stay, was council to ODNR in the cited case and surely knew that the outcome was otherwise than that presented by the State.
It appears that the State is not only giving misinformation, as has the ODNR since the inception of our lawsuit, but the State is trying to fool the Courts with their false claims. Hopefully, the Court will not be fooled and will rule on the truth of the law.
The second motion filed by OLG Plaintiffs simply applies logic to the State’s Motion for Stay. By requesting a Stay, the State is merely extending the period for damages resulting in the State’s “temporary” taking of private property. OLG expects that, at a minimum, appropriate damages will include refunding of submerged lands lease payments wrongfully collected as well as other fees that property owners incurred such as engineering fees or mitigation fees. Plaintiffs could also pursue compensation, calculated using market-based lease rates over a multi-year period for the private property wrongfully taken as well as damages to the residual property to the extent that the State’s conduct devalued the market value of Plaintiff’s littoral property. Simply stated, the State’s request for Stay could prove to be economically injurious to the State in the long run, costing the taxpayers more money.
Friday, January 11, 2008 – OLG Files Motion for Fees
In our brief, filed January 10th, we have requested the court to award fees in the total amount of our legal costs in defending the property rights of littoral property owners against the State.
In our motion we stated that we were faced with the challenge of property ownership by the State, who ignored AG Lee Fisher’s opinion in 1993 that the water’s edge was the boundary of the State’s territory in Lake Erie. The State deliberately defied the law, but was defeated in Court and OLG has statutory rights to an award of fees as the prevailing party.
The brief includes a short synopsis of the court action beginning with our initial filing on May 28, 2004, the removal of the case, by the State, to Federal Court in February 2005 and return to Lake County Court in June of 2006. The case was certified as a Class Action on June 9, 2006. After another 14 months of motions by both sides, the Court issued a Summary Judgment in our favor or December 11, 2007.
OLG seeks to recover $303,442.74 in payments for legal costs associated with our lawsuit.
While statute allows for an award of fees, the Judge must determine whether fees will be paid, in whole or in part. Meanwhile, the State has filed for a Motion for Stay of the Judge’s order until the appeal has been completed. We expect that the Court will grant this Stay.
In summary, we cannot depend on receiving any funds from the lawsuit to continue our battle against the appeals.
To read the full Motion, click here.
Friday. January 11, 2008 – Notices of Appeal Filed by State AG, NWF, and OEC
On January 10th Attorney General Dann filed a Notice of Appeal with the Court. On the same date the National Wildlife Federation and the Ohio Environmental Council duly filed their Notices of Appeal.
A Notice of Appeal is simply a form that is filled out stating technical case information (plaintiffs, defendants, case number, etc.) and filed with the Appeals Court. The appeals were filed in the 11th District Court of Appeal, which includes Lake County where the original case was heard.
On January 20th, OLG filed a Notice of Cross-Appeal. Homer Taft filed a cross-appeal. Intervening Plaintiffs Taft and Duncan’s lawsuit was combined with our lawsuit in the class action.
The cross-appeal gives us an opportunity to focus on items in the decision of interest to lakeshore property owners at the same time fighting the State AG’s appeal.
Once the case is assigned to a Judge, the Motions from the State, NWF, and OEC will begin and we expect the legal expenses to begin to pile on, once again.
Tuesday, December 11, 2007 – Lake County Common Pleas Court, Judge Lucci Rules in Favor of OLG
The following is a press release issued by OLG President Tony Yankel today:
This is a great day for the Ohio Lakefront Group and for anyone in Ohio that owns private property.
Today, Judge Lucci of Lake County Common Pleas Court ruled in a class action suit that the property owners along the Lake Erie shoreline own the land consistent with their deeds, and to the water’s edg.
The lawsuit was filed in May 2004 in response to the Ohio Department of Natural Resources’ unsubstantiated claims of state ownership of private property under the Taft Administration, and then forcing private property owners to lease their own property back from the State.
Prior to Ohio ‘s statehood, our deeds said this property belongs to us. Since statehood, Ohio law and our deeds said this property belongs to us. In 1993, then Ohio Attorney General Lee Fisher agreed and said that the land to the water’s edge belongs to the property owner and was not public property. A few months ago Governor Strickland said he would honor our deeds unless a court decided otherwise. And now we have a Court ruling that upholds our position.
This has been a long and expensive fight for our members. It has been disturbing to actually witness the State of Ohio simply invalidating deeds because a few bureaucrats decided to ignore the law and rewrite history. Hopefully the Court’s decision puts an end to this ridiculous government taking of private property.
Significant points of Judge Lucci’s decision include:
“In summary, and as explained in more detail in the Court’s Order, the court concludes that: (1) each owner of Ohio real estate that touches Lake Erie owns title lakeward as far as the water’s edge;” (page 68)
“The court agrees with the attorney general [Lee Fisher]‘s opinion.” (page 58)
“The State of Ohio does not have the authority to require littoral owners to lease the portion of the shore that lies above the water’s edge.” (page 74)
“This court also agrees with the plaintiffs’ assessment of the Michigan case of Glass v. Goeckel as being poorly decided, and as not disturbing the littoral owner’s title to the water’s edge… In addition, the court agrees that ‘Ohio’s land grant history is unique and clearly distinguishes its applicable boundary law from that of western states admitted to the union more than half a century later from public lands.’” (Page 67)
“Accordingly, as long as members of the public are willing to fish from boats on the water, or by standing in the waters of Lake Erie, littoral landowners have no right to stop them from doing so. However, under Biemiller , littoral landowners do have the right to exclude people from standing on the dry shore of the littoral landowner’s property.” (page 57)
“…the court denies the motion for summary judgment of the Defendants-Respondents State of Ohio and ODNR; and the court denies the motion for summary judgment of Intervening Defendants NWF and OEC.” (page 75)
The Ohio Lakefront Group is a non-profit organization of over 6,000 members that live along the shore of Lake Erie .
To read the full order by Judge Lucci, Summary Order granting Plaintiffs’ MFSJ and denying Defendants’ MFSJ
Monday, July 30, 2007 – Final Briefs Filed in Lawsuit
All parties filed Reply Briefs this week as the final round of motions and briefs to go before the Court. While the OLG’s 36-page and the State’s 64-page final Reply Briefs are much too complex to explain in a few words, I believe they can be summarized as follows:
- OLG presents law and case evidence at the federal and state level that completely refutes any of the misinterpretations of the State’s position of ownership to the Ordinary High Water Mark. OLG further defines the State’s boundary at the low water mark.
- The State continues to use the same misinterpretation of law and case evidence to argue the State’s ownership of the dry land up to the Ordinary High Water Mark, including filled land.
In the OLG Proposed Order, we ask the Court conclude that the furthest landward boundary of the “territory” is the low water mark of Lake Erie. We further ask that Class Members enjoy unique rights, known as “littoral rights”, and that the general public does not enjoy these rights.
Further, Class Members are entitled, through the right of accretion, to ownership of new lands adjoining their property formed by the natural deposit of soil above the low water mark. And, Class Members retain ownership of lands lost suddenly and perceptively to Lake Erie and are entitled to reclaim such lost lands by artificial fill.
In the State’s inferred proposed order, it asks that the Court find that the State has ownership of the Public Trust property up to the Ordinary High Water Mark, specifically 573.4 feet, and that the public has the rights to the use of that land.
Friday, June 1, 2007 – State Files Motion for Summary Judgment
On May 30, 2007, the State filed their 66 page Motion for Summary Judgment.
The state’s motion continues the mantra of owning to the OHWM since statehood. In their summary argument they say: “The ‘territory’, consisting of the navigable waters of Lake Erie within Ohio ‘s territorial boundaries, the lands beneath those waters, and their contents, was vested in the State of Ohio pursuant to the Equal Footing Doctrine of the U.S. Constitution, upon the admission of Ohio into the Union in 1803. The landward terminus of the territory is a question of federal law: the well established answer to which is the Ordinary High Water Mark.”
The State continues to make up the concept that there was an OHWM in 1803 and that it has owned the land since statehood.
If you read the actual ORC it still says: “ It is hereby declared that the waters of Lake Erie consisting of the territory within the boundaries of the state, extending from the southerly shore of Lake Erie to the international boundary line between the United States and Canada, together with the soil beneath and their contents, do now belong and have always, since the organization of the State of Ohio, belonged to the State as proprietor in trust for the people of the state……. subject to … the property rights of littoral owners …including the right to make reasonable use of waters in front of or flowing past their lands…”
The entire Motion consists of the State’s own spin which it has used to confuse the public and get the environmentalists on their side, and with which it hopes to win this lawsuit.
Friday, June 1, 2007 – OLG Files Motion for Summary Judgment
On May 30, 2007, OLG filed a Motion for Summary Judgment in Lake County Court of Common Pleas. In essence, this Motion sets forth all the facts from our plaintiff perspective and asks that Judge Lucci issue a ruling in our favor, specifically that our deeds determine the boundaries of our private property.
This 36-page motion plus numerous addendums is a lot to absorb, but the key points are:
- Ohio Courts consistently have limited the Public Trust Rights to the “Waters” of Lake Erie .
- The State has made several attempts in the last 40 years to redefine the Public Trust boundary.
- Ohio Statutes identifies the landward boundary as the “Natural Shoreline.”
- According to common and technical usages and the Ohio Supreme Court, the Natural Shoreline” is the Low Water Mark.
- Use of the Ordinary High Water Mark as the Public Trust boundary conflicts with the Ohio Department of Natural Resources’ own rules as well as earlier Ohio Supreme Court decisions.
- Use of the Ordinary High Water Mark would violate property rights to the shore as supported by case law.
- The rights of the public are expressly limited to navigation, fishery, and water commerce, per Ohio Revised Code.
- Littoral property owners enjoy all the rights of the public on the waters of Lake Erie , plus additional rights of access, the right to lands gained through accretion and reliction, the right to maintain ownership and to reclaim avulsed property and the right to exclude others from using their shores.
The conclusion is:
“The boundary of the Public Trust is set by statute at the “natural shoreline.” The “natural shoreline” has been interpreted, and should be interpreted here, to be the low water mark or water’s edge, as it exists at any point in time. The ordinary high water mark, both in the abstract and as applied here, violates common and legal understandings of the “shoreline” and undermines property rights long-recognized in this state. The public has rights to the water, but none to the private land, even private shores. For all these reasons, the Court should grant plaintiffs motion for summary judgment….”
Wednesday, January 3, 2007 – Judge Lucci Issues Amended Order for Notification of Class Members
This week Judge Lucci responded to our motion to amend his order for Class Notification by allowing us to advertise in newspapers of general circulation in counties that abut the shore of Lake Erie in Ohio . The Notice as set forth by Judge Lucci will appear once each week for three consecutive weeks on the same day of each week in the “legal classified” section of the following newspapers: The Toledo Blade , The News Herald ( Ottawa County ), The Sandusky Register, The Chronicle Telegram , The Plain Dealer , The News-Herald ( Lake County), and The Star Beacon.
In addition, a two column wide and one inch high ad will appear simultaneously in the news section of each newspaper.
The ad will refer lakeshore land owners to the legal classified section to read the full class action notice.
The first publication of this Legal Notice must occur not later than January 20, 2007. OLG is currently preparing to follow this order as issued. We expect the cost to be between $5000 and $6000. This represents a significant reduction in cost from the original order which we had quoted at $47,706.
To read the entire order from Judge Lucci, click here.
Friday, November 24, 2006 – Judge Eugene Lucci Orders Notification of Potential Members of Class Action
In a revised order, Judge Lucci specified the method of notification to be by Newspaper advertisement. The notification will be advertised in 11 newspapers. They specifically are: The Toledo Blade, The News Herald (Ottawa County), The Sandusky Register, The Chronicle Telegram , The Plain Dealer , The News-Herald (Lake County), The Star Beacon, The Columbus Dispatch , The Cincinnati Enquirer , The Akron Beacon Journal , and The Vindicator.
The first publication of this Notice will occur not later than December 23, 2006 and run for three weeks of publication in each of the foregoing newspapers. In addition, the Notice will be sent by the court to, and until February 9, 2007, it shall be displayed conspicuously in, the Clerk of Courts’ Office and the County Recorder’s Office in every county that abuts the shore of Lake Erie in Ohio: Lucas County, Sandusky County, Ottawa County, Erie County, Lorain County, Cuyahoga County, Lake County, and Ashtabula County. The court established February 9, 2007, as the last day for any class member or potential class member to signify that they consider the class representation unfair and/or inadequate.
To read the entire order, click here.
Wednesday, June 14, 2006 – OLG Files Motion in Opposition to NWF and OEC Motion to Intervene
OLG today filed a motion to deny the National Wildlife Federation and the Ohio Environmental Council motion to intervene. Our motion states numerous reasons to deny the motion including the fact that they have no claim no do they have any potential damages related to the lawsuit. We further state that they are organizations, not individuals who walk along the shore, observe the birds and wildlife, or appreciate the beauty of the lake and its environs as they assert in their motion. Significant case law it also cited which, in our opinion, gives these organizations no standing in our lawsuit regarding private property rights and the extent of the Public Trust.
Thursday, June 8, 2006 – Judge Lucci Orders Class Certification for Lawsuit
Today Lake County Common Pleas Judge Eugene Lucci ordered our lawsuit known as Merrill et. al. v. State of Ohio be certified as a Class Action. This means that all owners of property along the shore of Lake Erie , other than the state and its agencies, will be considered a part of this case and not merely the original 13 plaintiffs that filed the suit over two years ago.
A Stipulation was reached between the Ohio Lakefront Group and the Ohio Department of Natural Resources (ODNR) regarding class certification just hours before both parties were due in Court to argue whether the present case should be certified as a Class Action. Given today’s ruling, the case’s outcome will uniformly impact the approximate 14,000 parcels along the entire Lake Erie Shoreline in Ohio .
The Stipulation defines the Class as: “All persons, as defined in R.C. 1506.01(D), excepting the State of Ohio and any state agency as defined in R.C. 1.60, who are owners of littoral property bordering Lake Erie (including Sandusky Bay and other estuaries previously determined to be a part of Lake Erie under Ohio law) within the territorial boundaries of the State of Ohio.”
Ohio Secretary of State Ken Blackwell sent OLG a congratulatory letter saying, “This is an important step in protecting those owners’ private property rights. I remain committed to the principles articulated in Article I, Section 19 of the Ohio Constitution that private property rights are inviolate.”
Friday, May 26th, 2006 – National Wildlife Federation and the Ohio Environmental Council File Motion to Intervene
The National Wildlife Federation and the Ohio Environmental Council filed with the Lake County Court of Common Pleas to be heard as co-defendants with the State of Ohio . They had previously filed in federal court, but their motion was deemed mute when the case was remanded back to the State court by the federal judge. The rationale for their filing as stated in their motion is that â€œthe State’s duty is to protect the public interest, not the particular interest held by members of the NWF. Nor does the state walk along the shore, observe the birds and wildlife, or appreciate the beauty of the lake and its environsâ€¦. In addition the State can only speak on behalf of its citizens, not on behalf of those NWF or OEC who are not citizens of Ohio , but make use and enjoy the Lake Erie.
One might wonder when any of these bird and wildlife appreciators were prevented from observing wildlife, especially from private property concrete walls, small beaches and back yards of lakefront owners. Since there has not been a problem for the past 200 years, we wonder what problem will be caused by preventing the State from the unlawful seizure of our private property.
Tuesday, February 14, 2006 – GOOD NEWS! Judge Solomon Oliver Grants the Fed’s Request for Dismissal
Judge Oliver has issued an order granting the Feds’ motion to dismiss and remanding the action back to State court.
While this is good news, the State has 60 days to appeal to the 6th Circuit Court of Appeals, which it will do, given its practice to date. Parties usually have 30 days to appeal, but there is a special rule that, when the United States is a party, a notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered.Â This gives the State until April 15th to appeal.
To see the full text of the order, click here.
Friday, August 19, 2005 – NWF and OEC File Brief in Support of their Original Brief
The motion in support of the original brief asserts, in part, that the State of Ohio cannot represent the interests of NWF because NWF represents all people in the United States and that all people have the same rights as Ohioans in free access to the “shores” of Lake Erie. (Now there’s a new argument. The whole country will be deprived. I can imagine all the Californians and Floridians who are really upset about this.)
Nevertheless, for your reading enjoyment, you may click here to read the new NWF and OEC motion.
Friday, August 5, 2005 – OLG Motion in Opposition to NWF and OEC Motion to Intercede
OLG’s motion requests that the Court deny NWF and OSC from joining the suit as they have no claim of real interest in this private property action. Further, NWF and OEC are associations, not individuals. According to our motion their is no federal statute that gives them the right to intervene under any circumstances.
To read the full text of our motion, click here .
Monday, July 18, 2005 – National Wildlife Federation and the Ohio Environmental Council file motion with Court
In a not too unexpected action, the NWF and the OEC have filed with the Federal Court in an attempt to join the ODNR as defendants in the lawsuit. These two organizations receive significant annual funding through and from ODNR so it is no surprise that they would attempt to join with ODNR. The filing is an insult to an intelligent reader, claiming that the English Common Law establishes U.S. law. It would also appear that no one has actually read the Ohio Revised Code, section 1506.10 which reads:
“It is hereby declared that the waters of Lake Erie consisting of the territory within the boundaries of the state, extending from the southerly shore of Lake Erie to the international boundary line between the United States and Canada, together with the soil beneath and their contents, do now belong and have always, since the organization of the state of Ohio, belonged to the state as proprietor in trust for the people of the state, for the public uses to which they may be adapted, subject to the powers of the United States government, to the public rights of navigation, water commerce, and fishery, and to the property rights of littoral owners, including the right to make reasonable use of the waters in front of or flowing past their lands.”
It is interesting how the submerged soil gets to be interpreted by ODNR and their benefactors to mean the dry land deeded to private property owners. If you are interested in adding insult to injury, read the Supporting Motion to the Motion to Intervene filed by NWF and OEC by clicking here.
Friday, July 15, 2005 – Federal Defendants File Reply in Support of Motion to Dismiss
The Fed continues to try to move the case out of Federal Court and back to Lake County Court. The State is not only wasting our State tax dollars, but is now wasting our Federal tax dollars as well. The latest motion can be viewed by clicking here .
Monday, June 20, 2005 – OLG and U.S. Motions to Dismiss State’s Amended Cross-Claim
Attorneys for OLG and the United States Attorney General filed nearly simultaneous motions to dismiss the State of Ohio’s Amended Cross-Claim against the United States and the Army Corps of Engineers. The OLG Motion declared the State’s new motion to be both immaterial and impertinent warranting that the State’s motion should be stricken in its entirety. The OLG motion further called the State’s allegations to be frivolous and bizarre in an effort to delay the lawsuit coming to a hearing and to spend unnecessary money by the plaintiffs, the State, and the taxpayers of Ohio. The motion reiterates that this case is between only the private littoral property owners on Lake Erie and the State of Ohio.
The U.S. Attorney General Motion to Dismiss included 28 pages of Case Law and Federal regulations to further substantiate that this case belongs in State, not Federal, Court. The A.G. also stated that the issue is only with private property owners in the State’s definition of its ownership to the ordinary high water mark as opposed to the submerged lands under the waters of Lake Erie.
The A.G. went on to assert that this definition by the ODNR is in violation of Ohio State law. The OHWM established as a regulatory datum by the Army Corps of Engineers, is an issue for neither plaintiff nor ODNR. The A.G. conclusion after more than 20 pages of argument is that the U.S. has no valid interest in private property and that ODNR has made no case for Federal Court Jurisdiction.
You made peruse both motions by clicking on either of them below.
Wednesday, June 8, 2005 – State Files Amended Cross-Claim
This week, the State of Ohio, in its ongoing unscrupulous delaying tactics, has filed an Amended Complaint against the United States and the Army Corps of Engineers. Now ODNR is claiming that the grants of the Connecticut Land Company and the Firelands were a violation of “Congressional policy, in violation of federal law, and in violation of the Constitution of the United States” and should now be vacated by the United States pursuant to order of the Court. The State continues to claim ownership to the OHWM since statehood, even though there was no such datum point established until over 150 years later. We believe this to be another unsubstantiated set of claims by ODNR depending on false information which they continue to espouse.
You can view the full complaint by clicking here.
Wednesday, May 4, 2005 – OLG Files Motion to Strike States’s Cross-Claim with the U.S. and the Army Corps
Among other arguments, our Motion alleges that the State’s sole purpose is to create undue complexity and confusion to defeat certification of a clearly defined class. We contend that the State’s Cross-claim is immaterial, impertinent, and insufficient in that there is no claim for relief sought against the federal government. The State is basically continuing to delay our Class certification and run up our legal fees in an attempt to bankrupt us. There are many good points made in our Motion, which coincidentally are many of the Fed’s same points in their Motion to Dismiss (below).
To read the full motion, click here .
Friday, April 1, 2005 – U.S. removes Law Suit From Lake County to U.S. District Court
We have received official notice that our law suit has been removed from Lake County Common Pleas Court and has been assigned to the U.S. District Court for the Northern District of Ohio. The removal order was sent to Judge Oliver for the OLG suit and to Judge Aldrich for the Homer Taft suit which was originally joined with our suit by Judge Lucci. We will keep you up to date as we hear further from the Federal Court. The actual documents can be viewed by clicking below.
Thursday, March 3, 2005 – OLG Files Motion Contra to State’s Motion for Stay
In this recent motion our contention is that the State’s reasons for stay are based on an unknown (whether the U.S. and the Army Corps of Engineers will accept the cross defendant claim) and upon false information. The false information is that OLG plaintiffs did not reply to interrogatories, when in fact they did, prior to the State filing its motion for stay. Our Motion goes on to say that the State continues to cause delays and make false statements in order to delay any ruling by the Court. (It makes one wonder how long the Court will continue to “go along” with the State’s costly tactics). We again ask the Court to proceed with class certification.
Click here to access the full text of the motion.
Thursday, March 3, 2005 – State Files Motion to add additional Parties to the Suit
In the State’s continuing flurry of motions, they have now asked the Court to require us to include all county governments and cities and municipalities that abut Lake Erie to our suit. The State evidently does not know the difference between a class of private property owners and public government.
Their seven page brief can be accessed by clicking here.
Monday, February 28, 2005 – Court Grants Stay
As expected, the State’s Motion for Stay was granted to allow the United States Federal Court and the Army Corps of Engineers to decide whether to agree to be a co-defendant with the State of Ohio. The United States and Army Corps of Engineers have 30 days to respond. If they do not respond or respond in the negative, the case will be continued in the Lake County Court. At this time we have no idea as to what action the U.S. or ACoE will take.
Judge Lucci’s Order for Stay can be accessed by clicking here.
Friday, February 25, 2005 – State files Answer, Counterclaim and Cross-Claim to OLG Suit
The State filed a twenty-three (23) page response to our lawsuit essentially denying each and every claim against the State. It included the United States of America and the Army Corps of Engineers as defendants in its response to the suit. This sets the stage for the State’s Motion for Stay until it is determined whether the U.S. accepts their role as defendants. The United States and the Army Corps of Engineers have 30 days to accept or decline their roles as defendants in the case as claimed by the State of Ohio.
The full (23 page) response can be accessed by clicking here .
Friday, February 25, 2005 – State Files Motion for Stay
The Motion for Stay is based on the State’s request to move the case to Federal Court, pleading that the U.S. Government and the Army Corps of Engineers have jurisdiction in the case.
The full text of the Motion can be accessed by clicking here.
Wednesday, February 23, 2005 – OLG Files Motion in Support of Motion for Class Certification
The motion states that the Court can rule on a Class Certification without an evidentiary hearing or actually meeting with any attorneys from either side. Since the State admits that it has responsibility for locating the upper boundary of the Lake in the course of its duties, there is in fact a common issue. According to our Motion there is sufficient precedent and evidence for the Court to determine if the Class exists. Specifically, “The fact that the State has engaged in motion practice so as to avoid filing an answer (to our suit) is no impediment to this Court certifying the Class, as certification is based on the …Plaintiffs’ allegations, not on the State’s defenses in the underlying claims.
To read the entire motion, click here .
Tuesday, January 18, 2005 – Court Rules on Motions for Extension
Lake County Common Pleas Court Judge Eugene A. Lucci handed down his ruling on the State’s Motion for Extension of Time as well as the OLG Response to the Motion for Extension. Judge Lucci maintained the hearing date he originally set for Class Certification of March 4, 2005. He altered several of the intermediate steps toward the hearing date favoring the OLG proposed schedule to allow the State sufficient time for discovery. This ruling truly favors the OLG position in our motions.
To read the ruling, click on the link below.
Thursday, January 13, 2005 – OLG Responds to State’s Motions for Extension of Time and for Reconsideration of Court Ruling
OLG Attorney’s filed Motions in response to the three new motions from the State. Our response said that it is sad the lengths to which the State will go in its desperation to avoid answering for its abuse of power. These new motions are just a continuation of its delaying tactics in refusing to address our lawsuit directly. We did offer, to allow sufficient time for the State’s discovery a suggested timetable, but one which maintains the original trial date as set by Judge Lucci. To read the OLG Motions, click on the respective links below.
Thursday, January 6, 2005 – State Files Three New Motions in Lawsuit
The first Motion, filed on December 22, asks for an extension of time moving the initial hearing on Class Action to May 16, 2005. It was initially set for March 4, 2005. The extension is to allow for additional time for discovery and for deposition of the complainants named in the suit.
The second and third Motions, filed January 3, 2005, asks for a general extension of time for the Court to review the third Motion requesting the Court to reconsider its denial of the State’s Motion to Dismiss. The third motion basically restates what had been cited in the original motion to dismiss, but adds additional emphasis to our Plaintiffs not having sufficient damages to bring the suit to trial. It seems to ignore what the Court stated in its denial of the Motion to Dismiss. Click each of the motions below to read them.
Tuesday, December 21, 2004 – Court Rules on Motions
Lake County Common Pleas Court Judge Eugene A. Lucci handed down several rulings that appear to be favorable to our case.
Judge Lucci denied the State’s Motion to Dismiss. His ruling stated that the requirement to exhaust administrative remedies does not exist when there is no administrative remedy available or where pursuit of remedies would be futile. He based his ruling on: The ODNR Director correctly stated that he lacks authority to determine the validity of deeds or to issue an order proclaiming the location of the landward boundary of Lake Erie. Therefore the Director lacks the authority to grant the relief sought by the plaintiffs.
The motion to dismiss is denied. Judge Lucci then lifted the December 1 Stay, since the Court had now ruled on the Motion to Dismiss.
The Motion for Class Certification was set for hearing on March 4, 2005,at 9 a.m. The Judge set a schedule for brief by the Defendants–respondents by January 14, 2005, and for reply by the Plaintiffs–realtors by January 28, 2005.
In other Orders by the Court, our Suit has been combined with a similar suit brought by Homer S. Taft, also an OLG member, acting on his own. The State had entered a motion to move the venue of Taft’s suit to Columbus. The Court denied that motion. Therefore the combined suits will be heard in the Lake County Common Pleas Court. To view the individual ruling click on the links below.
OLG Motion to deny State’s Motion for Stay – Friday, October 15, 2004
OLG filed a Memorandum in Opposition to the State’s Motion for a Stay . In brief, this motion states that this is just another delaying tactic by the State. The motion urges the Court to deny the State’s Motion for Stay and likewise to deny the State’s Motion to Dismiss.
Click here to read the full text of the OLG motion.
State Reply Brief in Support of State’s Motion to Dismiss – Wednesday, October 13, 2004
The state has filed a Reply Brief of the State of Ohio to Plaintiff-Realtors’ Brief in Opposition to the State of Ohio’s Motion to Dismiss Plaintiff-Realtors’ First Amended Complaint . This is a mouthful, exactly what we’d expect. The State intends a long protracted and expensive litany of ongoing filings before we get our hearing in a Court of Law.
To read the Brief, click here .
State Motion for Stay – Tuesday, October 5, 2004
The State has filed a Motion for Stay , which is attached, in response to our Motion for Class Certification.Â The argument is that the State should not have to work on this case until the Court decides the State’s Motion to Dismiss. While this is a possibility, it puts the onus on the Court to address the States Motion to Dismiss as well as our Motion in Opposition of the Motion to Dismiss. Note that the last page of the document is only suggested by the State. It is not an actual Stay.
Click Here to see the document.
OLG Motion in Opposition of State Motion to Dismiss – Thursday, September 30, 2004
Today, OLG filed a Memorandum in Opposition to the State’s Motion To Dismiss. The motion states that the Motion to Dismiss filed by the State fundamentally misconstrues (again) our complaint. Our motion is very well written, going about 10 pages.
It can be viewed by clicking here .
OLG Motion for Class Certification – Thursday, September 23, 2004
On Friday, September 17, OLG filed a ” Motion for Class Certification ” with the Lake County Court of Common Pleas. This motion asserts that there are more than 15,500 parcels of property that abut Lake Erie. Further, the State of Ohio, Department of Natural Resources has illegally confiscated land below the Army Corps of Engineers designated ordinary high water mark affecting all owners of those properties. According to law there are seven tests, three of which must be met for a class to be certified. Our motion states that our class meets all seven of these tests.
To read the entire motion, click here
State Motion to Dismiss – Thursday, September 16, 2004
The Ohio Attorney General has filed a Motion to Dismiss with the Court. You can read the entire motion by clicking here. The motion relies on “Public Trust Doctrine” as the primary evidence of the State’s standing. It also claims that the named complainants lack standing because they have not exhausted all administrative avenues for remedy and that there is no evidence of harm to others named as complainants. The State claims that the possibility of future harm is not cause for suit. Our attorneys are reviewing the motion which was received yesterday.
OLG Motion to Deny – Monday, July 19, 2004
Today, OLG filed a motion with the Court to deny the State’s motion for additional information. Our motion was based on the fact that we are asking the Court to provide a “declaration of the extent of the State’s property rights.” Thus it is unnecessary for OLG plaintiffs to provide deeds, legal descriptions, and other detailed papers. Our motion also cites case law, which is intended to substantiate our original filing, and require the State to respond as requested.
State Response – Monday, July 12, 2004
The ODNR has responded to our initial lawsuit. Our attorney is determining what documents and other information is being requested by the court per the ODNR motion. Likely, this includes deeds to properties. If you are a named complainant in the original suit, please find and make copies of your deed(s). You will be instructed as to whom to provide these copies soon.
First Amended Complaint – July 2, 2004
An amendment to the OLG Lawsuit was filed in Lake County on Friday, July 2, 2004. This amendment contains only minor language changes to eliminate possible ambiguity. The amended filing is basically the same as the original filing.
The Amendment as filed can be viewed by clicking on the link.
Original Filing – Friday, May 28, 2004 – Ohio Lakefront Group Files Suit in Lake County Court
The Lawsuit was filed this afternoon. Use the following links to view a date-stamped copy of what was actually recorded at the Court. There are two documents: 1) the Lawsuit itself; and 2) the motion to intervene, for all of those that we did not directly name in the lawsuit, but wanted to be a part of the case. Click the highlighted links to read the documents.
Ohio Attorney Opinion – October 27, 1993
In 1993 the Ohio Department of Resources asked Attorney General Lee Fisher to render an opinion as to whether thier agency could charge lease fees on land on Lake Erie up to the Army Corps of Engineers established Ordinary High Water Mark. He researched the Ohio Revised Code and previous case law regarding the boundary of the public trust to which the State of Ohio holds title for all the citizens of Ohio. In His opinion he concluded:
1. The determination of the natural shoreline of Lake Erie is a question of fact.
2. A littoral owner along Lake Erie has no title beyond the natural shoreline.
3. A littoral owner along Lake Erie is the beneficiary of a grant pursuant to 43 U.S.C.S. §1311 (1980) of land above the natural shoreline of Lake Erie.
To read his full opinion click the link. Ohio Attorney General Opinion.