Michigan Aids Cordray in Ohio Supreme Court Dispute Over Private Property Rights Along Lake Erie Shore

Wednesday, July 14, 2010

MICHIGAN AIDS CORDRAY IN OHIO SUPREME COURT DISPUTE OVER PRIVATE PROPERTY RIGHTS ALONG LAKE ERIE SHORE

Michigan and Pennsylvania have come to the aid of Attorney General Richard Cordray is his bid to overturn an appeals court ruling that said landowners along the 262 miles of Lake Erie shore hold title to property all the way to the water’s edge, a changing boundary.

Attorneys general in the two bordering states filed friend of the court briefs at the Ohio Supreme Court in support of Mr. Cordray’s position that private ownership extends to the lake’s ordinary high water mark, making the dry land to the water’s edge available for public use.

Michigan and Pennsylvania said that if the decision from the 11th District Court of Appeals were allowed to stand, it would place Ohio law at odds with that of the other Great Lakes states.

“While each of the Great Lakes states has a different way of describing the respective property interests of lakefront property owners and the public in the shoreline of the Great Lakes, each of the states recognizes the principle that the public has rights in the bottomlands of the Great Lakes below the ordinary high water mark,” they said.

The Supreme Court voted 5-2 in March to accept the case for review at the request of the Ohio Department of Natural Resources, Mr. Cordray, and two environmental groups.

Justices Paul Pfeifer and Terrence O’Donnell dissented from the decision to hear the case, effectively voting to let the appellate court decision stand.

In dispute is a class action lawsuit that the Ohio Lakefront Group, an organization of property owners, filed against ODNR in 2005.

The litigation stemmed from ODNR’s attempt, under former Gov. Bob Taft, to require landowners to obtain leases in order to place docks and other structures along the shoreline. The boundary touches Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula counties.

Mr. Cordray filed a separate written argument at the Supreme Court this week indicating that rights of private landowners should be balanced with the public’s overlapping rights in Lake Erie territory.

Also at issue in the case is the attorney general’s authority to participate.

Gov. Ted Strickland lifted ODNR’s lease rule after taking office in 2007, and the agency withdrew from the case to which it later returned as a party.

Former Attorney General Marc Dann remained as a representative of the state.

However, the court of appeals held in an August 2009 opinion that the state no longer could take part. It said attorneys general could act only when a governor or General Assembly specifically instructed them to enter a case.

Mr. Cordray has contended that the appeals court ruling would undermine an attorney general’s authority and duty to represent Ohioans.

His brief this week discussed the legal authority and traditional duty of an attorney general to defend the state when it is sued.

The Ohio Lakefront Group, a nonprofit association of 7,000 Lake Erie property owners, said in response that Mr. Cordray was claiming state ownership of dry shore lands that, in many cases, were the backyards of property owners.

“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. This case is about private property, and the unjust effort by the state to strip it away from thousands of Ohioans without compensation,” said Tony Yankel, the group’s president.

“(Opening) all of this privately held land along Lake Erie to uncontrolled public which – 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,” Mr. Yankel said in a news release.