Progress of Lawsuit since Supreme Court Decision?

What is happening with the Supreme Court remand to Judge Lucci’s Common Pleas Court?

On December 13th, Judge Lucci issued an order requiring our attorneys and the state to discuss resolving or narrowing the remaining outstanding issues after the Supreme Court decision. A 60 day window was set to complete this process. Our attorneys provided a detailed proposal to the state on November 9th.  Following discussions, including phones calls with ODNR attorneys and a face to face meeting with ODNR and its attorneys, the state replied in writing on January 30, and our attorneys replied in writing on February 3.  Significant issues remain unresolved.  Our attorneys have advised the State that, while the Ohio Lakefront Group remains interested in continuing settlement discussions, a case schedule should be established. In a letter to Judge Lucci our attorneys requested that a case management conference be scheduled to consider and set a case schedule.

Statements Filed to Judge Lucci’s Court

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

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 clickingState and NWF Statement to Court

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

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

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

Media Contact: Matthew Henderson
614-499-6602
matthew@piercecomm.com

Ohio Supreme Court Decision Sustains 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)

Reply Merit Brief filed by co-plaintiff Homer S. Taft

In the final brief  to the Ohio Supreme Court on behalf of property owners, co-plaintiff Homer Taft raises  separate issues and makes persuasive argument against the State and Intervening  defendants National Wildlife Federation and Ohio Environmental Council.

Taft’s first proposition regarding the boundary between private property and the public trust is:

The furthest landward boundary of the State of Ohio’s public trust interest in the waters of Lake Erie and the lands underlying those waters is the low water mark of Lake Erie when those lands were conveyed into private ownership, subject to natural long term changes which occur thereafter. Where those lands are prresently under water, the ownership of the soil beneath the waters is only affected where long term, imperceptible erosion is shown to reduce that grant by natural occurrence. The best evidence locating that boundary is usually contained in the conveyance documents to owners and the surveys and descriptions of the conveyance in the chain of title if a particular property.

Taft’s second proposition regarding interveners NWF/OEC:

“In an action of property owners against agencies of the State of Ohio respecting the boundary of submerged lands of Lake Erie with their littoral lands, membership organizations whose members claim a recreational right in the public lands may not properly intervene as defendants under Civ. R. 24 especially as a matter of right where they neither claim nor demonstrate any property interest of such organization or even a property right generally and collectively of its members, in the boundary issue which is the subject of the “main action”".

The entire brief is only 25 pages and is good reading. You can access it by clicking Taft Reply 4th Merit Brief