Progress of Lawsuit since Supreme Court Decision?
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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)
Ohio Supreme Court Decision Awaited
We continue to await the decision in the State’s Appeal to the Ohio Supreme Court. Since our annual meeting there have been a number of local newspaper articles on the case. The Plain Dealer ran a story based on a reporters account who attended the annual meeting as well as interviews with OLG President Tony Yankel, 1851 Center for Constitutional Law Director Maurice Thompson, and ODNR Coastal Water management Office Chief John Watkins. The Toledo Blade, always reporting unfavorably towards OLG, reported based on an interview with a law professor. A personal viewpoint is that this professor should go back to law school.
There are some new battles regarding water, ground water. Michigan has passed a law requiring property owners to obtain a permit to use their own ground water under certain circumstances. The Ohio Legislature is considering a bill
that would set thresholds for withdrawals in the Lake Erie watershed covering about a third of Ohio that environmental groups contend could endanger lake levels. The watershed includes groundwater. Click the hot (blue) links to read the articles.
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
Second Round of Briefs are Filed by The State of Ohio – NWF/OEC – ODNR
These briefs, while all less voluminous than the initial briefs, said little more than those initially submitted to the Ohio Supreme Court. The State continues to assert State ownership landward of Lake Erie to the OHWM. The NWF/OEC continues its assertion of the more modern interpretation of the law to include walking along the dry beach. And ODNR focuses on filled land previously covered by the waters of Lake Erie. While these briefs are not as long, they still take some time to peruse. The links for the actual briefs are below. OLG does not have any other required briefs. However, co-plaintiff Homer S. Taft and perhaps L. Scot and Darla J. Duncan will file additional briefs. We still do not expect the Court to set a hearing date for oral arguments until 2011.
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
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