Current News & Events at the Ohio Lakefront Group

Current News and Events

Notice of 2008 Annual OLG Meeting

The OLG Annual meeting will be held on Thursday, May 22nd at the Holiday Inn West at 1100 Crocker Road in Westlake . The business meeting will be from 7 to 9 P.M. Coffee and a cash bar will be available at 5:30 P.M. Senator Tim Grendell and other elected officials will be in attendance.

Please plan to arrive early for registration and ballots for the election of OLG Directors. Dues for 2008 must be current in order to vote.

A $10 gift certificate for Crocker Park will be given to voting members .

Directions: Take I90 to exit 156. Go north on Crocker Road . The hotel is on the left.

Monday, May 12, 2008 – Public Trust Doctrine
The “Public Trust Doctrine” as it is currently understood and practiced was created by Joseph Sax in an article published in the Michigan Law Review in 1970.
A short introduction to the article, debunking Sax' is posted by the Berkeley Electronic Press. That post includes other articles discussing the pros and cons of the public trust as defined by Sax. To read this short introduction, as well as the lengthy article, click here.

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.)

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.

The motions can be viewed by clicking the following links: Motion 1 Motion 2

Friday, January 25, 2008 - Great Lakes Compact - Giving Away Ohio's Most Significant Natural Resource

While the State is telling Ohioans how lakeshore property owners are stealing the beaches from all of the people of Ohio (ongoing disinformation), the State is also asking that the legislature ratify the Great Lakes Compact, which will potentially remove all jurisdiction by the State over the entire Lake Erie as well as all streams and bodies of water in the Lake Erie Basin, including groundwater.

The compact may prevent any property owners or fishers in Lake Erie from taking water from Lake Erie and the entire Lake Erie watershed. This may require well owners, farmers, and other who use ground water to obtain permits to use their own ground water for their use and livelihood upon which they depend. Further, the rule stating only 5.7 gallons may be removed from the lake by an individual will certainly affect fishermen who may use a 10 gallon container in which to hold their catch of fish.

Entering into this Compact will supercede all current legislation and private and public property rights that have been in place since the formation of the State in 1803.

The rush to ratify this Compact will affect every Ohioan now and in the forever future.

To read a synopsis of the misconceptions and facts about the Compact along with problems and solutions, click this link.

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.

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.

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 edge

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:

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, click here.

Saturday, December 1, 2007 - Great Lakes Compact in the News

   Several news articles have been written about the Great Lakes Compact lately, much in the favor of environmentalists who now say that climate change appears likely to reduce already low Great Lakes water levels even further, making it more urgent to approve a regional compact protecting the waters of the Great Lakes from diversion and overuse.
    The primary objective of the Compact between the 8 Great Lakes States and 2 Canadian Provinces is to stop the taking of fresh water from the Great Lakes watershed, which would reduce the total amount of fresh water remaining in the Lakes. This is a very worthy goal, however as is often the case, the devil is in the details. (Note that a federal statute already does provide such protection.)
    In last year's Ohio Senate hearings, OLG President Tony Yankel testified before the Senate Energy and Natural Resources Committee in opposition to the Compact. He expressed the concern that Ohio Lakefront Group members have for the Compact as written, especially the provision that would expand the Public Trust Doctrine to all ground and surface water in the Great Lakes watershed.
    Senator Tim Grendell argued that a provision declaring the waters of the five Great Lakes to be “part of the public trust” would convert existing private property rights to the public domain. Under the Compact, the State gives up its sovereign rights of governance over the entire area specified in the Compact and the Compact's governing group would be immune from all legal actions by individuals or states.
    A special task force recommended by Senator Grendell is charged with review of the Compact to make corrective changes to “fix” the Compact before it comes to a vote by the General Assembly. While some states have already passed the Compact, other states, such as Wisconsin share the concerns voiced by Senator Grendell.

Environmentalists are strongly proposing immediate passage of the Compact as written. We as OLG members, along with anyone who lives in the Lake Erie watershed, need to be concerned about passage. Without the fixes that allow the State of Ohio to retain State sovereignty and private property owners to be assured that property rights are not diminished, the Compact should not be approved.

Friday, November 23, 2007 - Huron River Greenway Property Owners Victorious

Information as reported by Tom Jackson in the Sandusky Register on November 22, 2007:

In a lawsuit filed by property owners, (CPPR “Citizens for the Protection of Property Rights”) , along the Huron River Greenway which was developed by Erie Metro Parks, the Ohio Supreme Court ruled that the taking of property by the park system was illegal. The original lawsuit was filed in 1997.

The court ordered the park system to begin figuring out how to compensate property owners who have claimed ownership of the land that became the Huron River Greenway. The ruling by the court was 6-0. (Justice Terrence O'Donnell did not participate in the ruling.) This is a huge win for property owners throughout the state engaged in similar battles with governmental authorities.

Nels Ackerson of Washington, DC, attorney for the plaintiffs said: The ruling is important because it upholds the principal of the U.S. Constitution that government with the “awesome power” to take private land for public purposes must provide just compensation (for the land owners). “It is a very substantial case. It's a landmark case. It's a result of a great deal of persistence and efforts by he landowners,” Ackerson said. “It's very gratifying to know that in this country, the Constitution does prevail.”

Damages will be determined in a trial that will now go forward. It is likely that other landowners who did not participate in the suit will step forward to receive compensation.

OLG Members: While this is good news, note that CPPR's original lawsuit filed in 1997, after 5 years of fighting the Erie county park system, took an additional 10 years to reach the Supreme Court for a decision. Our lawsuit was filed in 2004; our fight began in 1999, so that means we only have about 6 ½ more years to go. NO JOKE! Whatever the decision by Lake County Common Pleas Court Judge Lucci, the appeal process will be even more arduous than the original suit. While it may seem that Judge Lucci's decision may hand us a win, we still have a VERY long way to go.

Congratulations to all our friends in CPPR, good guys can finish first if you persevere and fight till the end.

Friday, November 10, 2007 - A History of the Western Reserve

An interesting book entitled “The Early History of Lorain County” published in 1879 in Philadelphia by the Williams Brothers that prior OLG board member Tom Jordan found in digital form that can be accessed from the OLG website. The history extends from 1609 to 1879, the year the book was published.

It is interesting in understanding how the territory known as the Western Reserve evolved, embracing the counties of Ashtabula, Trumbull, Portage, Geauga, Lake, Cuyahoga, Medina, Lorain, Huron, Erie, all of Summit except the township of Franklin, and Green; the two northern tiers of townships of Mahoning; the townships of Sullivan, Troy, and Ruggles, of Ashland; and the Islands lying north of Sandusky, including Kelly's and Put-in-Bay.

The book traces the legal title of the land in the U.S. even prior to the Declaration of Independence.

There were ninety-three townships, or equalized parcels drawn east of the Cuyahoga, and forty-six on the west. Congress, on the 28th of April, 1800, authorized the President to execute and deliver on the part of the United States , Letters Patent to the Governor of Connecticut, whereby the United States released for the uses named, all right and title to the soil of the Reserve, and confirmed it unto those who had purchased it from that State.

The entire publication can be viewed by clicking here.

Friday, November 10, 2007 - Proposed Leasing and Permitting Rules Comments Presented at Quarterly CRAC Meeting

The Office of Coastal Management (OCM) compiled the work product of the 4 sessions of review by the CRAC Sub-Committee, including attachments of meeting minutes and other correspondence received by OCM. A binder containing all information was provided to CRAC members at the recent November 8th meeting held in Ashtabula. This represents many man-hours of review and consolidation of input, which resulted in 166 comments, imbedded line by line into the proposed rules. (50 comments related to definitions, 24 related to the application process, 7 related to leases, and the remaining 85 related to the permitting process.)

Comments about the definitions include:

Friday, November 10. 2007 - Audubon Article – “Get Off Your Land”

This is the title of a regular column called Incite by Ted Williams in the November-December issue of Audubon. Mr. Williams has written a variety of columns ranging from the Endangered Species Act to Whitetail Deer and the Golden Eagle to West Nile Virus. This month he has cast his sights on “property-rights radicals” who are chasing the public from its own beaches. He goes on to name this group, the Ohio Lakefront Group. The article goes on with interviews from the Ohio Environmental Council, the National Wildlife Federation and others. We are not only accused of “land-grabbing” but of planning to fill our beaches and build environmentally unfriendly structures that will be a detriment to lake Erie.

Of most interest are quotes from State Attorney General Marc Dann who stated that the Governor's position is “inconsistent with Ohio law”. AG Dann went on to state: ‘I believe my role is to represent my institutional clients as well as the people those institutions were created to serve”. “The only person who can represent the State of Ohio is me. ODNR is a client; they changed their position against my advice. I had no alternative but to hire them outside lawyers.” AG Dann's conclusion about the lakefront property owners is: “These folks have been defrauded by someone, but it wasn't the State of Ohio. You can't give what you don't own”.

The entire article can be accessed by clicking here.

Friday, November 2, 2007 - CRAC Sub-Committee Minutes Posted
   The Rules, Laws, Consistency, Enforcement and Implementation Sub-Committee of the Coastal Resources Advisory Council (CRAC) completed its review of the ODNR proposed rules for Submerged Lands Leases and the Permitting of Coastal Structures on October 25, 2007. The minutes of all three review meetings as well as written comments and associated correspondence are posted on the Office of Coastal Management (OCM) website. To access their website, click here. Links to the proposed rules and meeting minutes are on the right side of the page.
    OCM Chief John Watkins and staff are working on incorporating all the oral and written comments into a single document that will then be presented to the full CRAC council on Thursday, November 8. The meeting will be held at the Ashtabula Marine Museum , 1071 Walnut Blvd in Ashtabula , beginning at 10:00 AM. This meeting is open to the public and we urge you to attend.
    Directions are: Drive east on I90 to exit 228 (OH 11/ OH 46). Go North towards Ashtabula for 6.2 miles. Turn left on OH 531/ E 6th Street and continue .9 miles. Turn right on Morton Drive for .1 miles and then left on Walnut Blvd.
    If the full Council approves the proposed rules, ODNR will continue with soliciting public comments on the rules as approved by the Coastal Resources Advisory Council.
    After receiving and considering public comments, the rules will be presented to Ohio 's Joint Committee on Agency Rule Review.
ODNR hopes to have the final rules in place in early 2008. We are working to ensure that the final rules package respects the rights of all shoreline property owners while protecting Ohio 's valuable Lake Erie resources.
    If you have questions or comments about the rules, please contact the ODNR Office of Coastal Management at 419-626-7980.

Friday, November 2, 2007 - Ohio Environmental Council Continues Misinformation

    In an article posted in the Ohio Environmental-Conservation Briefing Book*, Jack Shaner continues to espouse the mistaken belief that “the public's ownership of the Lake Erie shore, up to the ordinary high water mark-is supported by State and Federal law, the Ohio Department of Natural Resources, and 200 years of tradition.”
    This is not a true statement of fact. There is no such document giving this description or anything like it. What did happen was under the Equal Footing Act, the Federal Government gave Ohio what the Federal Government owned at the time Ohio became a State. This did not include the lands of the Western Reserve, which border Lake Erie. Prior to Ohio Statehood, the President of the United States gave what amounted to a limited warranty deed for the Western Reserve of Connecticut to the State of Connecticut as well as the investors that purchased the Western Reserve of Connecticut from the State of Connecticut in 1795. The State of Ohio has never owned the lands of the Western Reserve .
    Further, the public has enjoyed the use of all lakefront property owned by the State , unless however they are restricted of use by the State.
    Shaner refers to a “tiny group of private property owners”. This “tiny group” is more than 15,000 property owners with valid deeds to their property along the shores of Lake Erie.
    He uses the 11 million population of the State of Ohio along with all future generations as the unknowing losers in the battle for the rights of private property owners. Those private property rights are defined in the Constitution and in the Ohio Revised Code (ORC 1506). If one reads the entire section 1506 of the ORC they would see that the rights of the public as well as those of private property owners are equally protected under the law.
    Mr. Shaner has also coined a new term “common ground” as public land, which actually means the deeded land of private property owners.
    He writes about State and Federal Supreme Court decisions (no cites). There are no court decisions related to the lands of the Western Reserve .
    The article can be accessed by clicking here. The Jack Shaner article begins on page 36. You may want to e-mail Mr. Shaner to share your thoughts with him.

Saturday, October, 27, 2007 - Contact List for Ohio Government and Lakeshore County Legislators

We often have requests for names and contact information for the Ohio Governor's Office as well as your legislators representing the lakeshore counties. We have compiled a contact list which can be accessed by clicking here.

Saturday, October 27, 2007 - One Lakeshore Property Owner's Response to OLG Lease Invoice

One lakeshore owner has come up with his own idea of dealing with invoices for Submerged Lands Leases involving his own property. He is taking this action as a result of the Governor's policy stating that the State of Ohio “will honor valid deeds of local property owners along the coast of Lake Erie.” The owner believes that he has a valid deed for all or a portion of the land for which he has been making lease payments.

He has written the ODNR informing them that until the State can demonstrate that his deed is invalid, he is depositing his lease payments in a separate (escrow) account in the bank. If the State can, within three years, prove his deed invalid, he will turn over appropriate funds deposited in that account. If after three years the State has not done so, he will withdraw the money and assume the matter closed. His letter copies the Governor, ODNR Director, Attorney General, OLG, and several newspapers.

The letter can be viewed by clicking here.

Saturday, October 27, 3007 - Sub-Committee Completes Review of Proposed New Rules

The Rules, Laws, Consistency, Enforcement and Implementation Sub-Committee of the Coastal Resources Advisory Council (CRAC) completed its review of the ODNR proposed rules for Submerged Lands Leases and the Permitting of Coastal Structures this week. OLG members Tom Jordan, Jim O'Connor, Ken Tatter and L. Scot Duncan, Kent Kemmerer, as well as members of the Ohio Environmental Council participated in these public meetings.

The Sub-Committee, chaired by Dave Spotts, must be congratulated for completing this very detailed review, which included at least 100 comments and suggestions from the committee and the public. The proposed rules along with all comments incorporated into the documents will be presented to the full CRAC at their November 8th meeting in Ashtabula.

Office of Coastal Management (OCM) Chief John Watkins, who conceived the idea of this first time public review of proposed rules, maintained the record of comments using a computer projector so that all could see the actual language of the input from the group. The proposed rules with comments will be posted on the ODNR Office of Coastal Management website.

After the full CRAC review and their additional input, ODNR will incorporate all input as possible to provide a revised set of proposed rules. Sub-Committee Chair, Dave Spots, asked that the revised rules be presented to the sub-committee prior to going out for public comment. John Watkins agreed.

The ODNR, after soliciting, receiving, and considering public comments, will present the rules to Ohio's Joint Committee on Agency Rule Review. Their review will take no more than 60 days. Then the rules are delivered to the Secretary of State and within 10 more days they will become law.

At the conclusion of the rules review, Chief John Watkins addressed the group thanking everyone for their input and addressing concerns of trust with the Office of Coastal Management. He explained that he was not involved with the 1994 rules (that were surreptitiously incorporated into legislation, ed.) that gave the Office of Coastal Management broad powers of Lake Erie Coastal property to the Ordinary High Water Mark. He understands the consternation and frustration of lakeshore property owners. He further stated that he was involved with rules making in 1999 and most recently in the HB 199 appropriations bill. His role was as a writer, acting under the authority of the Director. He expected that these rules would be sent out for public comment (as had been done in his time with the Ohio EPA with new rules). He apologized saying that he at no time had an under-handed intent with rules making. This is why he personally took on this public review with CRAC and the public. He assured us that he is trying to build a cooperative process between the Office of Coastal Management and lakeshore property owners.

We hope that ODNR Director Sean Logan and those who will finally implement these rules will work cooperatively and respect private property deeds, provide fair and uniform enforcement of rules, and continue to build the trust of lakeshore property owners.

If you have questions or comments about the rules or the rule making processes, please contact the ODNR Office of Coastal Management at 419-626-7980. To access their website, click here .

Saturday, October 20. 2007 - Lease Holders Must Still Pay Leases

Last week we reported on the letter from ODNR Director Sean Logan advising leaseholders that certain leases may be eliminated or modified in the future. This was as a result of Governor Strickland's order to respect the deeds of private property owners.

However, lease invoices continue to be sent out from the Office of Coastal. Management. I contacted their office and spoke with Chief, John Watkins. The following are points from our conversation:

The bottom line is that you are expected to pay your lease rental when it is due, and until the rules are changed to allow modifications or elimination of the leases. It is important to note that submerged lands leases that extend beyond your deeded property line are still subject to lease payments. This would include groins, docks, and other structures built out into the lake that extends beyond your deeded property.

Saturday, October 13, 2007 - ODNR Proposed Rules

The ODNR website has the new proposed rules for leases and permits. The preamble to the rules includes the statement by Governor Ted Strickland, which directs the ODNR to respect the valid deeds of shoreline property owners. However, the permitting process as currently proposed seems onerous. The seven-step procedure with 6 sub-requirements involves an extraordinary effort that will surely require the services of a professional engineer. For example, the first requirement includes, in addition to deed records and a map showing the location of the proposed structure with respect to county, township, and municipal boundaries and state, county and local reads:

“Detailed plans and specifications, including supporting calculations, analyses, studies and other information used by the professional engineer or applicant in designing the structure. The engineering methods and design conditions (wave height, wind direction, water level, water depth, etc) used in designing the structure shall also be specified. Design methodologies and procedures that have been established by the United Stated Army Corps of Engineers, the American Society of Civil Engineers and others that are recognized as valid coastal engineering practices will generally be acceptable.”

There are six sub-sections to this requirement, which are too lengthy to report here.

The Director's review may include:

• Potential impact upon air and water quality;

• Likelihood that the development… may affect historic, cultural, or aesthetic resources;

• Floral and faunal communities.;

• Potential impact upon wetlands or other state resource waters;

• Potential impact upon littoral zone including sand transport;

• Plus 16 additional review items

To read the entire proposed rules, click here to access the ODNR website. Read down to Draft Rules and then click September 29, 2007 .

Friday. October 12, 2007 - CRAC Seeking New Members

The Coastal Resources Advisory Council has 9 seats to be filled for the next four-year term beginning February 2008. We are asking our members to consider applying for an appointment to provide shoreline owners with better representation and to voice our concerns.

Applications are available from our website and can be downloaded by clicking here. OR contact the ODNR Office of Coastal Management at 419-626-7980. Applications sent to the Office of Coastal Management must be postmarked by November 1.

Thursday, August 8, 2007 - CRAC Council Meeting

We previously reported some erroneous information about the August 8th meeting on Kelleys Island that 12 OLG members attended.

We erroneously reported that CRAC members were made up of many ODNR employees. This is not true. The members come from diverse areas of business, education, and government. The complete list of CRAC members, along with a brief bio can be found at the Office of Coastal Management web site by clicking here. These bios indicate that some of the CRAC members work for a governmental entity or are involved with some conservation organization—hence the misunderstanding about their ODNR affiliation.

Department of Natural Resources Director Sean Logan and Office of Coastal Management Chief John Watkins attended the meeting. Both Director Logan and Chief Watkins spoke about the Governor's New Regulatory Policy Regarding Coastal Land Management. A portion of the policy states:

“The Governor and ODNR recognize that there are arguable legal claims that some of the deeds have specific defects and that deeds purporting to cover lands below the OHWM may ultimately be found by the Ohio courts to be subordinate to the public's interest in those lands. Still, without such a determination by the Ohio courts, ODNR believes that it must honor those deeds.

The Governor and ODNR also recognize that they have a solemn duty to manage coastal lands in a manner that protects the important resource that Lake Erie represents. In that regard, ODNR has begun the planning necessary to implement the following new regulatory policies:

Property owners who wish to build structures along the shores of Lake Erie that could or would impact coastal lands will no longer be required to obtain leases for the lands within their deeds which are beneath such structures, but will be obligated to obtain appropriate permits from ODNR's Office of Coastal Management before commencing any such construction.”

Both Director Logan and Chief Watkins spoke of their planned efforts to revise the ODNR Administrative Code to comply with the Governor's policy. This was very heartening and seemed to pave the way for the resolution to be introduced by O'Connor.

The last item on the agenda was the resolution, which Jim O'Connor introduced with a preliminary overview of the formation and struggle of OLG against the State.

The resolution as read:

“BE IT RESOLVED THAT:

The Coastal Resources Advisory Council recommends that ODNR and the Office of Coastal Management immediately and appropriately notify all residents that have Lake Erie submerged lands leases with the State. The notification should state that, to the extent covered by private deeds, the State will immediately waive the requirement in the lease for the payment of fees pursuant to the Governor's July 13, 2007, announcement. The Coastal Resources Advisory Council further recommends that that ODNR and the Office of Coastal Management convert all leases of privately deeded property to permits within six (6) months.”

O'Connor's motion for the Council to accept the resolution was NOT seconded by any CRAC member. Therefore by Roberts Rules there could be no further discussion.

Despite the lack of a second, Council Chair, James Kastelic, allowed further discussion, which included comments by Director Logan and Chief Watkins. The Council Chair further asked that the resolution be sent to the Rules, Laws, Consistency, Enforcement and Implementation Committee for review prior to asking for a vote of the entire Council. He also asked Jim O'Connor if he would join that committee for this review, to which Jim agreed. The agenda for the meeting, in fact, had shown that the motion would be forwarded to committee.

During the public comment portion of the meeting, the CRAC members were attentive and responsive to points made by those in attendance.

We believe this shows correctly what occurred in the meeting and that the review committee will look carefully at the Governor's policy and find the resolution consistent with that policy.

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.

To read the OLG Reply Brief, click here. To read the OLG Proposed Motion (for the Court) click here. To read the State's Reply Brief, click here.

Thursday, June 21, 2007 - OLG Press Conference Condemns "Takings"

The Ohio Lakefront Group and Senator Grendell held a press conference at the Capitol to express dismay at the recent actions of ODNR and to introduce a new Senate Bill.

In response to ODNR's recent proposal to take deeded land from several property owners and give the land to another, Tony Yankel, President of OLG, said. "...ODNR has taken this stealing of private property to new heights. ODNR is not only claiming private property as public, but it is now considering 'leasing' it to a third party." The proposal is to take property away from three landowners so that a fourth landowner, who has no access to the Bay, will obtain 55 feet of frontage.

"There has been a national outcry against government using eminent domain...taking property from one person and giving it to another...This is a least as outrageous...owners are not even offered any compensation...it is simply stolen," said Yankel. "When is Governor Strickland going to put an end to this madness?" To view the new "land grab" click here.

Thursday, June 21, 2007 - Senator Grendell Introduces SB 189

Senator Tim Grendell introduced a new bill for the Ohio Lakefront Group, SB 189. The co-sponsors include Senators Robert Spada, Randy Gardner, Larry Mumper, Gary Cates and Tim Schaffer. This Bill protects the deeds of shoreline private property owners from illegal takings by the State and restores littoral rights to these owners.

Some of the key items: 1) ..."ordinary high water mark" refers to the level established by the US Army Corps of Engineers for regulatory purposes and shall not be construed to determine property boundaries. 2) If a littoral owner wishes to restore lost lands, ODNR shall bear the burden of proving that the lands were submerged as a result of natural erosion rather than avulsion or artificially induced erosion.

One of the "littoral rights" listed in the Revised Code 1506.01 states that "with respect to lands lost by avulsion" (a sudden loss of land by the action of water or other natural causes) "or artificially induced erosion," you have the right "to restore the lands out to the natural shoreline (the line at which the water usually stands when free from disturbing causes) as it existed at the time of the loss."

In addition, the Bill transfers significant management responsibilities from the Director of ODNR to the Governor and moves major decisions from the Chief of the Office of Coastal Management to the Director. The Office of Coastal Management would have administrative responsibilities only.

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:

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….”

Click here to view the full motion.

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. Click here to read the full motion.

Friday, April 27, 2007 - OLG President Tony Yankel letter to Governor Strickland

In a letter to Governor Ted Strickland, Tony reiterated Governor Strickland's pre-election statement supporting OLG. It stated:

State Senator Tim Grendell was quoted as saying he is “disappointed” with the lack of progress after meeting over the past months with Strickland Administration officials.

Keith Dailey, speaking for the governor, is quoted as saying, "The governor and his staff are engaged in ongoing discussions. The governor is looking for someway to bring both sides together and bring them to an agreement."

OLG President, Tony Yankel, who was interviewed by phone, said that OLG has had little success in trying to meet with the Governor Strickland and Lt. Governor Lee Fisher. Tony is quoted saying, “ At this point we're getting a little antsy," and noted that it's nearing time for the state to file replies in our ongoing lawsuit against ODNR.

The Register reported that “ Last year, Fisher affirmed the ticket's support for the Ohio Lakefront Group while he campaigned in Erie County and noted the position echoes a legal opinion Fisher wrote as attorney general. Fisher said he and Strickland believe it's wrong “for the state to be infringing on the private property rights of landowners along the lake.””

To read the full article in the Sandusky Register, click this link.

Friday, March 2, 2007 - Judge Lucci Conducts Lawsuit Conference

On Wednesday, February 28, 2007, Judge Lucci conducted a conference by telephone with legal counsel for all parties of the lawsuit and with legal counsel for class members opposing inclusion in the class; i.e. the City of Cleveland and two individuals.

Judge Lucci did not grant the motions filed by the individuals and the City of Cleveland to opt out. He asked that these parties continue to participate in the proceedings to assist the court with issues as they arise.

Judge Lucci advised counsel for the State of Ohio to review the State's current position with Governor Strickland and Attorney General Dann to determine whether the new administration would adopt a policy change. The two intervening defendants, the National Wildlife Federation and Ohio Environmental Council, indicated that they would fight on if the state adopted the plaintiffs' (OLG) position.

All parties generally discussed types of evidence they believed would be used to support their respective positions when filing summary judgment motions. Among other things, ODNR's legal counsel stated that the State's public trust is not a question of legal title but a question of rights of use.

Judge Lucci did not issue a schedule for the case. Instead, he instructed all parties to discuss a schedule, including deadlines for discovery and filing summary judgment motions, and to jointly present a schedule to him by the end of next week.With regard to pending motions, Judge Lucci stated that he was granting our motion to allow Tim and Kim Rosenberg and Steve Nickel to withdraw as class representatives. Mr. Nickel will remain as a class member.

Friday, March 2, 2007 - OLG Files Motions on Lawsuit

On February 15, 2007, OLG filed three motions with the Court:

The first was the reply to the National Wildlife Federation and Ohio Environmental Council' Motion to intervene in the lawsuit. In essence, the reply stated that these parties lacked sufficient knowledge or information to support the allegations set forth in their motion. Further, the reply stated that the parties formed legal conclusions for which no response is required. Lastly, the reply denied allegations as contrary to Ohio law. This Reply can be viewed by clicking here.

The second was the Proof of Publication confirming to the Court that legal notices to Class Members were published as directed by the Court. This notice can be viewed by clicking here.

The third was a Motion to the Court to permit withdrawal of two named plaintiffs from the lawsuit. They are three of twelve class members named in the original lawsuit. Two of the original plaintiffs have moved from the State of Ohio and no longer own lakefront property; the third still lives in Ohio but requested to be removed as a plaintiff for personal reasons. the notice can be viewed by clicking here.

Friday, February 23, 2007 - Senator Grendell New Bill for 127th General Assembly

Senator Tim Grendell continues to work on behalf of Ohio Lakefront Group to reintroduce a Bill for this legislative session. He has made a few minor improvements to the Bill (compared to SB 127) that will simply help to clarify our position. This new bill is necessary for the new legislative session, the 127 th Ohio General Assembly which began this year. All bills that were introduced during the past 2-year legislative session died must be introduced and start all over again in the new General Assembly.

This new bill is expected to be introduced as soon as we have co-sponsors. State Senator Randy Gardner has advised Senator Grendell's office that he will be a co-sponsor for the bill.

We expect to have similar legislation introduced into the House of Representatives.

Wednesday, February 9 ,2007 - City of Cleveland Opts Out of Class Action Lawsuit

As of the deadline of February 9, 2007 set by Lake County Common Pleas Court Judge Lucci, the city of Cleveland formally opted out of the Class in our lawsuit against ODNR.

The City of Cleveland stated in its filing with the Court that it “wishes to support the State of Ohio 's position on lakeshore ownership”. It further stated that “The City believes that public access to Lake Erie should be maintained and not diminished.

City of Cleveland can be commended on its lakefront parks and other public works along the Lake Erie Shoreline. However, it too bad that the City did not seem to understand that by opting out of the lawsuit it was not supporting its own lakeshore private property owners. To view the City's motion, click here.

Friday, January 26, 2007 -Last of Legal Ads Run in Area Newspapers (see article below)

The last of three weeks of the Class Suit Notification which began on January 12th ran today. It reads:

"ATTENTION: LAKE SHORE LAND OWNERS Check the legal classified ad in this newspaper for important class action legal notice"

The actual legal notice is quite lengthy, but can be read by clicking here.

There have been questions regarding the wording of the actual Legal Notice. An explanation of the notice can be read by clicking here to read the January 27th e-News.

Wednesday, January 3, 2007 - 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:

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.

Wednesday, January 3, 2007 - Strickland Names new Director for ODNR

Pending approval by the Ohio Senate, former State Representative Sean Logan will take over as director of the Ohio Department of Natural Resources, replacing Sam Speck. Logan would step down as president of the Columbiana County Board of Commissioners. Along with serving as president of the county Board of Commissioners, he also is a member of the Little Beaver Creek Wild and Scenic River Advisory Board.

Mr. Logan served for six years on the House Agriculture and Natural Resources Committee during his 10-year tenure that ended in 2000 due to term limits.

Mr. Logan said: "From camping and hiking to hunting and fishing, our state parks and bountiful natural resources are a vast source of recreation - and economic strength - for our great state, I look forward to ensuring that Ohio's natural heritage will be enjoyed by Ohioans for generations to come."

Ohio Environmental Council Public Affairs Director Jack Shaner said the governor-elect's choice is familiar with the agency's services and needs given that he hails from a county full of ODNR facilities. Mr Shaner added that control of the Lake Erie shoreline and the related issue of the ‘public trust' has been a lightning rod for controversy and extensive legislative debate in recent years.

Mr. Shaner said his group would be watching to assure Governor-elect Strickland continues to maintain Ohio 's 200-year history of protecting the Lake Erie shoreline.

Friday, December 29th, 2006 - Great Lakes Compact News

Ratification of the Great Lakes Compact has appeared in many newspapers across the Great Lakes States, some pro, some questioning. On December 19th the Akron Beacon Journal wrote a particularly biased article against Senator Tim Grendell's opposition to the “Compact” in the Ohio Senate, where it was still in committee. While it was obvious that the writer had no clue as to the implications of the legislative language that would enact the “Compact”, it extolled Governor Taft and the Ohio House for bringing improved stewardship to the region's most treasured natural resource.

To read the full article, click here.

To the Akron Beacon Journal's credit, they published a rebuttal by Senator Grendell in which he stated “I support the main purpose of the Great Lakes Compact. Preventing extraterritorial diversion of water is good. But the Compact goes far beyond that.”

He further stated that the Great Lakes are not under immediate threat as there is a 1986 federal law prohibiting out-of-basin transfers of water without approval from all of the governors of the Great Lakes states. No other state is approving the Compact. The other states are not hesitating because they are waiting for Ohio to show "leadership.'' They, too, have concerns with the Compact as currently written.

He wrote, “Ten years ago, lakefront property owners expressed concerns with the Ohio Department of Natural Resources' Coastal Management Plan, citing the potential impact its language on the public trust could have on their private-property rights. Those concerns were disregarded at the time, labeled ``exaggerated''. Today, those same landowners are in the middle of an exhausting and expensive legal battle to defend their private-property rights.”

He concluded “We should enact a Compact that prevents water diversion, but only if it does not infringe on Ohioans' private-property rights or make Ohio less competitive for economic development. We owe that to Ohioans, especially since there was no reason to pass it in a rush of hasty meetings during the last weeks of session.”

To read the entire article click here.

Thursday, December 13, 2006 - OLG Asks Judge for Notification Change

As reported on November 14, Judge Lucci ordered that OLG take advertisements in 11 newspapers to run for 3 consecutive weeks beginning no later than December 23rd to notify all potential class members of the lawsuit. OLG has determined the cost of such publication would be $47,706, a truly prohibitive cost for our group. Our motion for consideration notes that our class will receive no monetary gain from this lawsuit and that all funding for the lawsuit has been from voluntary contributions from OLG members.

Our motion requests that Judge Lucci allow us to advertise in the legal classified section of only the seven newspapers distributed along Lake Erie and eliminate advertising in the large State newspapers in Akron, Columbus, and Cincinnati. This would reduce our cost to $3200. The motion also points out that there have been ample news publications in all the newspapers in Ohio since the class was certified by the judge. Many of these articles were attached as exhibits to our motion. It is more likely that these stories have been read by class members, than the proposed advertisement as originally specified by the Judge. We are hopeful that Judge Lucci will honor our motion.

To read the full motion, click here.

Wednesday, December 13, 2006 - House Passes Great Lakes Compact by 82/5 vote


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