State of Ohio AG, NWF/OEC, ODNR File Briefs with Ohio Supreme Court
Briefs were filed on Monday this week. We are withholding comment at this time. To read the briefs, click the following links.
State Supreme Court First Merit Brief (note this is in text format converted from the PDF which was too large to upload)
NWF and OEC Supreme Court Merit Brief
ODNR Supreme Court Merit brief
The full Case Documentation since inception is available by clicking the link. Complete Supreme Court Case Document History
OLG Briefs are not due until August. We will comment at that time!
Cordray Wrong About State Law in Lake Erie Shore Dispute
Sheffield Lake, OH – The Ohio Lakefront Group, a coalition of over 7,000 Lake Erie property owners, today responded to a legal brief filed by the Ohio Attorney General in its pending case before the Ohio Supreme Court. The property owners are disputing the improper taking of deeded land.
Ohio law says the state’s interest in the waters and submerged lands of Lake Erie does not extend beyond the water’s edge. However, the Attorney General claims ownership of the dry shorelands of Lake Erie, which in many cases are the privately-owned backyards of property owners. He believes these property owners should pay rent to the state for land contained in their deeds.
“This case in Ohio is not about public access or public rights to the waters of Lake Erie, all of which are secure and none of which are under attack,” Ohio Lakefront Group President Tony Yankel said. “This case is about private property, and the unjust effort by the state to strip it away from thousands of Ohioans without compensation.”
“The Attorney General claims he is attempting to ‘protect the important resource of Lake Erie for the good of all,’” Mr. Yankel said. “However, opening all of this privately-held land along Lake Erie to uncontrolled public use – which means bonfires, litter and increased crime – will only harm Lake Erie, not protect it. The individuals who choose to live along Lake Erie have the strongest interest in protecting it, not bureaucrats in Columbus.”
In his filing, the Attorney General argued a recent U.S. Supreme Court decision based on a Florida coastal dispute bolsters the his case. However, the two cases deal with distinctly different issues and are grounded in differing state laws. The U.S. Supreme Court decided in the Florida case that issues of private property rights are to be decided in accordance with appropriate state law. Florida law deals with “tidal” water, and Florida’s private property extends only to the “mean high tide mark.” Ohio law deals with non-tidal water, and Ohio law says private property extends at least to the “water’s edge.”
Under a controversial action initiated by former Gov. Bob Taft, the state sought to claim the land along the Lake Erie shoreline for its own purposes. The property owners brought legal action against the state and were successful in federal court, common pleas court and the court of appeals. Former Attorney General Marc Dann appealed the case to the Ohio Supreme Court. Attorney General Richard Cordray is continuing the Dann case.
The Ohio Lakefront Group is a non-profit association of Lake Erie property owners and other concerned citizens committed to the protection, preservation and enhancement of private property rights. More information on the group can be found at www.ohiolakefrontgroup.com.
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U. S. Supreme Court Rules Against Florida Oceanfront Property Owners
This week, in an 8-0 decision the U.S. Supreme Court rules that land filled by the State in front of ocean front property owners is the property of the State and that no illegal taking had occurred. The case is based on a suit filed when the State re-nourished beaches in front of private property owners where beaches had been severely damaged by hurricanes. The Court reasoned that the mean high tide line is the boundary between the State land and private property owners. Land which is a result of accretion (gradual building up of land) to the private beach becomes the property of the owners by State law. However, land that is deposite4d by avulsion (sudden and rapid deposit of land) does not add to the property owners land by law. Since the State filled land that was originally submerged and it was a sudden occurrence the Court ruled that this was an avulsion event. Therefore the State did not illegally take land from the property owners.
While OLG and all shoreline property owners would have liked this case to be decided differently, this Florida case is unique to tidal waters and is a very special case where the State filled eroded beaches. The case is not relevant OLG’s case before the Ohio Supreme Court and should not be considered by the Judges.
To read the U.S. Supreme Court ruling click this link: www.supremecourt.gov
OLG Lawsuit Status after Appellate Court Decision Presentation
The following was presented in Lakefront meetings on September 8, 9, and 10th of this year:
OLG Lawsuit Status after Appellate Cour…
OLG Meetings Across Lake Erie
OLG President Tony Yankel
Meetings were held in Westlake, Port Clinton, and Geneva-on-the-Lake September 8th through 10th. OLG Chairman Greg Baeppler presided and made introductions at the meetings.
Tom Lundrum of Huron spoke first at the Westlake meeting. He was the first State Representative to sponsor OLG legislation in the House of Representatives. While the bill passed with a large margin in the full House vote, the Senate never got it out of committee, which doomed the bill to die at the end of the General Assembly’ term. Representative Lundrum lost in his rebid for election as a result of
Tony Yankel presented a history of the lawsuit from before filing, through the Court of Common Pleas, Federal Court, and the Appellate Court. In summary, OLG won all of its points between Judge Lucci’s Court of Common Pleas and the 11th District Court of Appeals. The Federal Court remanded the case back to the State Court with strong language to the State A.G. that this case should have never been brought into Federal Court.
OLG also feels that since our case was not “Stayed” by the Courts that lakeshore owners are not subject to paying leasing fees on their own land. We are still subject to paying leases on land on which we have structures beyond the limits of our deeds. We are also subject to regulation by the Army Corps of Engineers, the Environmental Protective Agency, and ODNR. However, Tony noted that it is still taking up to a year and a half to get a structure permit, whereby a home permit takes weeks. The ODNR continues to drag out the permit process at the expense of the property owner. Further the new Administrative Rules that were promised almost 2 years ago have still not been adopted.
OLG feels it is certain that the National Wildlife Federation and the Ohio Economic Council will appeal to the Ohio Supreme Court. To date, the Attorney General’s office has not made a decision about appealing their lack of standing in the case.
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