ODNR and Attorney General Respond to Court’s 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

OLG has 15 days to respond to these briefs and it will be reported at that time.

December 23, 2009 – Ohio Supreme Court Files Entry in Case

It appears that the Court has rejected the notion of summarily dismissing the AG’s standing in the case, but instead wants that issue to be heard prior to it even considering whether or not to take the entire case.  The Entry, signed by Justice Pfeifer, directs 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?

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.

New preliminary Lake Erie Coastal Erosion Area maps to be released by ODNR in January

ODNR has announced that property owners along Ohio’s Lake Erie coast will receive letters from the Ohio Department of Natural Resources after the first of the year identifying if their property is preliminarily located within a coastal erosion area. The letters will initiate a 120-day comment period for an updated set of coastal erosion maps originally released in 1998.

Under Ohio’s Coastal Management rules, ODNR is required to measure coastal recession rates along the state’s Lake Erie shore. Land areas predicted to erode within a 30-year period, if additional approved erosion control measures are not completed, are included in designated coastal erosion areas. Ohio law defines a coastal erosion area as beginning at the water’s edge and extending landward a specific distance based upon the rate of recession along that stretch of bluff, bank or beach ridge.

All 1998 Coastal Erosion Area designations and maps will be in effect and enforced for construction and property sale purposes until the 2010 maps are finalized The 2010 maps are expected to be finalized in early 2011.

Property owners considering a construction project along Ohio’s coast or selling littoral property may visit the ODNR Office of Coastal Management’s website at www.ohiodnr.com/coastal or call (419) 626-7980 to learn more. Staff will assist landowners in determining if a property is within a 1998 designated coastal erosion area. The Office of Coastal Management can also guide property owners through the permitting process and advise about Ohio’s Residential Property Disclosure law.

Littoral property owners, municipalities, counties and townships that have questions about the 2010 preliminary Coastal Erosion Area maps can visit the ODNR Division of Geological Survey’s website at www.ohiodnr.com/geosurvey or call (614) 265-6595 for more information.

ODNR is developing fact sheets and a website dedicated to the 2010 Coastal Erosion Area program. Additionally, eight public hearings to present the preliminary 2010 Coastal Erosion Area maps are being scheduled across Ohio’s Lake Erie coast. These meetings will be announced in early January when the preliminary coastal erosion area designations are released.

OLG will keep you advised as to when the new website is available and when the public meetings are announced.

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.

OLG brief to Ohio Supreme Court

NY HIGH COURT affirms Eminent Domain for Atlantic Yards

Court of Appeals upholds Atlantic Yards eminent domain 6-1

We reported last week on the latest eminent domain case to come before the high courts, this one in New York. This is the result of that case, unfortunately a decision that private property owners throughput the country should beware of.

In a decision that gives the crucial–but perhaps not final–boost to the Atlantic Yards project, the state’s highest court, the Court of Appeals, approved the use of eminent domain by a 6-1 margin, saying that it’s not the role of the courts to intervene in agency decisions, given the wide latitude in state law to decide on blight. (Note that two other lawsuits are still pending as reported last week.)

The case that involved nine petitioners (homeowners, commercial property owners, and residential and commercial renters) is known as Goldstein, et al. vs. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation (or ESDC).

Project backers had long expressed confidence about the result, given the State Court’s general deference to agency decision making, but the Court’s willingness to accept the case in the first place–the Appellate Division had unanimously upheld the Empire State Development Corporation (ESDC) in the first round–had left some room for ambiguity.

Moreover, two of the seven judges seemed skeptical of the ESDC during the oral argument October 14, though the judges spent the most time on procedural issues and the attorney for the nine petitioners faced similar skepticism. One of those judges, Robert Smith, filed a blistering dissent that stated:

“The majority is much too deferential to the self-serving determination by Empire State Development Corporation (ESDC) that petitioners live in a “blighted” area, and are accordingly subject to having their homes seized and turned over to a private developer….It is clear to me from the record that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development at issue in this case.”

The ruling also has broader implications — reaffirming New York’s use of eminent domain even as many state legislatures seek to curb government’s power to condemn private property.

The project’s opponents had argued that eminent domain on behalf of the private developer, Bruce C. Ratner, was improper and unconstitutional. They vowed to continue their battle, but there was no question that a cloud of uncertainty that has hung over Atlantic Yards for more than a year had lifted.

Government continues to take private property by whatever means! How long before the government determines that all private property is really theirs?

Paste this link in your browser to view the court decision as it is posted on the Internet: http://graphics8.nytimes.com/packages/pdf/nyregion/178opn09.pdf

ODNR Files Memorandum of Support of Jurisdiction

In a surprise filing ODNR has 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.

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.

So it would appear that the NWF is not looking for a sensible decision, rather one that is foolish.

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 sensible solution, but in the second case the modern purpose of 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.”

I read navigation, commerce, and fishing, but missed the words recreation and aesthetic enjoyment or walking. 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, even once.

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 here to read the entire brief.

Attorney General Cordray Files Appeal to Ohio Supreme Court

Yesterday, Ohio Attorney General Richard Cordray filed an appeal to the Ohio Supreme Court.

OLG replied in a statement by President Tony Yankel saying:

I am disappointed that Mr. Cordray would follow in the footsteps of former Attorney General Marc Dann and continue to steal 15,000 parcels from Ohioans that have held deeds to this land since before Ohio even became a state.  Like Marc Dann, Mr. Cordray is pursuing a course that in the last five years has been overwhelmingly rejected by one Federal Judge, a Lake County Common Pleas Judge and now the 11^th Circuit Court of Appeals.  Despite Ohio law, the Governor’s position, the Lieutenant Governor’s 1993 Attorney General Opinion and three Court decisions, Mr. Cordray foolishly marches on.

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.

OLG President Tony Yankel concludes in his statement:

The Ohio Supreme Court has a strong record defending property rights guaranteed by the Ohio Constitution.  Should the Ohio Supreme Court agree to hear the case – which is within their discretion – we are confident that we will prevail.  Any reasonable person, who ignores the rhetoric, reads the facts of the case and understands Ohio law would come to the same conclusion.

The full appeal is here.

Appellete Court Rules in Favor of Ohio Lakefront Group Property Owners

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. OLG is very pleased with this decision.

In a Press Release issued today, Ohio Lakefront Group President Tony Yankel stated:

“The Ohio Lakefront Group has now won three times in court. But, after five years and over $400,000 in legal fees, we now have a very detailed and learned decision from the Court of Appeals that reaffirms the obvious—we own what our deeds say we own. No radical bureaucratic notion can alter our deeds. We have won because we have been defending a simple premise—deeds and private property ownership are one of the cornerstones of this Country.”

The highlights of the decision, as summarized by our attorneys follow. If you want a copy of the full court decision to use the page references on each item, please click this link Court of Appeals Decision 8-24-09 (w-o attachment) (00615029) to view or download document..

• The Eleventh District Court of Appeals (“Court”) rejected the argument made by the State and the National Wildlife Federation (“NWF”) that the Equal Footing Doctrine of federal law dictates ordinary high water mark as “natural shoreline” – page 18.

•The Court determined that the Ohio A.G. had no standing in this case as he had no client. The Governor and ODNR withdrew from the suit in July 2007, therefore the A.G.was defending no official or agency of the State and had no request to do so.

The Court rejected the argument made by the State and NWF that the Submerged Lands Act dictates ordinary high water mark as “natural shoreline”– page 19.

• The State and NWF argued that the trial court erred in holding that ODNR cannot use IGLD to establish the ordinary high water mark. The Court said this argument is moot because ODNR is no longer doing this – pages 20-21.

• NWF argued that the public could use the dry land between ordinary high water mark and water’s edge for any recreational purpose regardless of objections from upland property owners. The Court rejected this argument, 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 and lakeward of the shoreline).” – page 21.

• In addition, the Court observed: “Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property. Sloan, supra.” – page 21.

• The Court rejected the proposition that the “natural shoreline” is at the ordinary low water mark. Instead, the Court followed Ohio Supreme Court precedent and defined the natural shoreline using a practical boundary that is relatively easy for property owners to identify: the “shoreline is the line of actual physical contact by a body of water with the land between the high and low water mark undisturbed and under normal conditions. See, e.g., Sloan, supra, at paragraph four of the syllabus.” – page 24. By using ordinary high and low water marks as limits on where the water’s edge can travel, the Court appears to have implicitly incorporated the general common law understanding that flooding doesn’t move the “natural shoreline.”

• OLG argued that the trial court exceeded its authority in ordering that all deeds of upland property owners be reformed to terminate at the water’s edge. The Court agreed with OLG and reversed the trial court’s decision to reform the deeds of all upland property owners – page 25.

• The Court summarized its findings at page 30: “the Supreme Court has identified that the waters, and the lands under the waters of Lake Erie, when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark. Therefore, the shoreline, that is, the actual water’s edge, 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 in lands privately held by littoral owners.”

• And at pages 30-31, the Court further explained its findings: “By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide for the public’s use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water’s edge provides a readily discernible boundary for both the public and littoral landowners.”

Tony Yankel stated in the conclusion of the Press Release:

“Will there be yet another frivolous and wasteful appeal to the Ohio Supreme Court by the current Ohio Attorney General Richard Cordray or another party? I don’t know, but if there is, the OLG and its membership are ready. We’ll never give up our fight for our property rights.”