Wednesday, February 18, 2004 - Opponent testimony on HB 218 gets personal

My name is Jerry Tinianow, and I am the Executive Director of Audubon Ohio.   We are the Ohio office of the National Audubon Society.   On behalf of the 19,000 Audubon members in Ohio, thank you for this opportunity to explain our opposition to Sub. H.B. 218, and to identify the changes you should make if the bill is to be adopted.

Introduction

The proponents of H.B. 218 present it as a victim's rights bill.   They do not argue that the bill will promote the general welfare of the people of Ohio.   Rather, they present themselves as victims of the Ohio Department of Natural Resources (ODNR), and the bill as a reasonable measure needed to redress their grievances.

The best way to evaluate the bill is to ask the following questions:

•  Are the proponents victims?

•  If so, of whom?  

•  If they are victims, how can the General Assembly provide adequate relief at the least cost to the public?

Audubon Ohio believes that the proponents of H.B. 218 are victims to some degree, but not to the full extent they claim.   While we thus recognize that the owners have some legitimate grievances, we oppose H.B. 218.   It provides remedies that grossly exceed those necessary to redress legitimate grievances, and it does so at the expense of all of the other people of Ohio.   In particular, the bill needlessly and improperly surrenders public trust lands below the Ordinary High Water Mark (HWM) and expands the rights of littoral (i.e., lakefront) owners.

Where We Agree and Disagree

The proponents argue that they are victims in the following respects:

•  Some have deeds that describe their lakeward boundary as the Ordinary Low Water Mark (LWM).   Others have more vague descriptions, such as "shoreline."   ODNR has supposedly used "intimidation" and "extortion" to force them to sign leases for property above that line.

•  Counties have assessed and taxed the proponents' properties as if they extended to the LWM.

•  ODNR has administered its lease and permit programs poorly, resulting in delays, excessive requirements, contradictory messages, and, in some instances, rude treatment of the owners.

•  Private parties have engaged in noisy, dirty and vagrant behavior in areas below the HWM, and have trespassed through the owners' properties.

The last three of these points are the easiest for us to address, so we start with them.

Tax Assessments.   No one's property should be assessed on any basis other than that unfettered ownership ends at the HWM.   Counties that do otherwise are wrong.   In this regard, proponent Russell Claus testified:

ODNR states that I do not own the property and must pay a lease fee.   The County states that I do own the property and I must pay the taxes on this same property.   One of these government agencies is incorrect.

Claus Testimony at 3.   We agree.   ODNR is right (as explained below), and the county is wrong.

Fortunately, Ohio law already provides a remedy.   Proponent Sandra Wade testified that she applied for, and was granted, a reduced valuation after applying to her county board of revision.   None of the other proponents said whether they had sought similar relief, or if not, why not.    Mr. Claus said that he "informed" his county of his ODNR lease, and they did not lower his taxes.   Claus Testimony at 3.   He did not, however, say that he applied to his board of revision for a reassessment.   A remedy is available to Mr. Claus and the others if they choose to pursue it.

Lease and Permit Administration.   Audubon Ohio can neither dispute nor verify the instances of alleged improper conduct by ODNR officials described by proponents.   If such conduct occurred, it is unacceptable.   ODNR should be able to govern lakefront structures through a permit system that is efficient, clear, simple, prompt and inexpensive.  

Private Conduct on the Beaches.   Lakefront owners should not have to put up with rude, noisy, dirty or vagrant behavior on public coastal areas adjoining their homes.   The public does not have the right to trespass across private lands to get to beach lands within the public trust.

Deeds vs. The Public Trust .   The "deed" argument is the one area where we have a substantial dispute with the proponents.   As discussed below, the owners have never demonstrated, nor can they demonstrate, that they have title below the HWM.  

Why Is The HWM Significant?

The State of Ohio has held the waters of Lake Erie south of the Canadian border, and the lands underneath them up to the HWM, in trust for the people of Ohio since Ohio became a state in 1803.   The Submerged Lands Act, adopted by Congress in 1953, confirmed this.

43 U.S.C. 1311(a) provides that "title to and ownership of the lands beneath navigable waters within the boundaries of the respective States ... are ... recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto ...."   43 U.S.C. 1301(a) defines "lands beneath navigable waters" to mean "all lands within the boundaries of each of the respective States which were covered by nontidal waters that were navigable ... at the time such State became a member of the Union, ... up to the ordinary high water mark ...."

Under Article VI of the U.S. Constitution, this law is "the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

In passing the Submerged Lands Act, Congress was not adopting a new doctrine.     Rather, the language quoted above "merely fixes as the law of the land that which, throughout our history ... was generally believed and accepted to be the law of the land."   The language "recognizes, confirms, vests, and establishes in the States the title to ... submerged lands, which they have long claimed, over which they have always exercised all the rights and attributes of ownership."   1953 U.S. Code Congressional and Administrative News 1385, 1399 (quoting H.R. Rep. No. 215).

Ohio courts recognize that the State's control over submerged lands along Lake Erie has existed since statehood.   "It is clear to this court that the trust doctrine of state control over the submerged lands of Lake Erie and its bays for the beneficial ownership of the public, which originated in England and has been strongly reinforced in this country by judicial decision, has existed in this state since Ohio was admitted to the union in 1803."   Thomas v. Sanders, 65 Ohio App. 2d 5, 9 (Erie County 1979).

The Submerged Lands Act did not define the "Ordinary High Water Mark."   Chapter 1506 of the Revised Code (the Chapter that H.B. 218 seeks to amend), delegates administration of Ohio's public trust lands and waters to ODNR.   ODNR has chosen to use the HWM defined by the U.S. Army Corps of Engineers at 573.4 feet above see level.   ODNR notes that this boundary "coincides very well with the physical evidence of what is sometimes referred to" as the HWM.   Beach Cliff Board of Trustees v. Ferchill, 2003-Ohio-2300 ¶ 16 (Ct. App. Cuyahoga County May 8, 2003).  Thus, the HWM recognized by ODNR matches both the level designated by the Corps and the physical evidence of where the Lake lies at its ordinary highest level.

What's Wrong With The Proponents' Legal Analysis?

The proponents of H.B. 218 insist that the State's public trust ends at the LWM.   In arguing this position, they compare apples to oranges, and then hide part of the fruit.   Specifically:

•  They rely on cases that deal with riparian owners (i.e., people who own land along rivers).   H.B. 218 deals with littoral owners (i.e., people who own land along Lake Erie).   The rules are different.

•  They rely on cases that deal with state and municipal boundaries.   H.B. 218 deals with private property boundaries.   The rules are different.

•  They quote selectively from cases, omitting crucial information.

Proponent David Carek provided most of the proponents' legal analysis.   Mr. Carek is an engineer, not an attorney.   His testimony contained many errors.

Mr. Carek first suggests that ODNR itself acknowledges that the public is not allowed to walk along the beach below the HWM.   To support this argument, he quotes an ODNR "Coastal Management Document" stating: "The public has no right of access across private property to the beaches of the Lake Erie shoreline in Ohio."   Carek Testimony at 4 (emphasis added).   We agree that people cannot cut across private property to get to the beach.   The issue raised by H.B. 218, however, is whether Ohioans can continue to walk along the beach.  

There are many access points that people can use to get to the beach without trespassing.   These include public lands, lands owned by those friendly to recreational users, and access from the Lake via boat, kayak or canoe.   Under present law, anyone lawfully accessing the beach by any of these methods can then walk along it at all points below the HWM.    They may not cut through private property to get to the beach.

Mr. Carek next argues that the same public trust rights apply to all navigable waters of the state.   Carek Testimony at 4-5.   This is simply wrong.   "There is a distinction between property bordering the navigable waters of lakes and bays (littoral land) and property bordering navigable streams (riparian land)."   Thomas, 65 Ohio App. 2d at 10 n.9.  

Mr. Carek believes his position is supported by an 1878 Ohio Supreme Court case, Sloan v. Biemiller, 24 Ohio St. 49.   Carek Testimony at 9.   Yet the very first headnote of the case provides as follows:

The rule of the English common law that the owners of land situate on the banks of non-tidal streams ... are owners of the beds of the rivers to the middle of the stream is not applicable to the owners of land bounding on Lake Erie and Sandusky Bay (emphasis added).

Mr. Carek nonetheless quotes from Sloan .   He does so selectively, however, suggesting that a critical sentence ends where it does not.   Here is the quote that Mr. Carek uses:

Our large fresh-water lakes ... are wholly unprovided for by the law of England.   As to these, there is neither flow of the tide nor thread of the stream; and our local law appears to have assigned the shores down to ordinary low water mark.

The second quoted sentence, however, does not end with the term "low water mark."   Rather, the sentence actually reads as follows:

As to these, there is neither flow of the tide nor thread of the stream; and our local law appears to have assigned the shores down to ordinary low water mark to the riparian owners, and the beds of the lakes, with the islands therein, to the public (emphasis added).

The quoted passage, when read in its entirety , clearly indicates the very distinction that Audubon Ohio argues.   Riparian owners own out to the low water mark, but "the beds of the lakes, with the islands therein, [belong] to the public."   Simply put, the rules that apply to Lake Erie are different from those that apply to rivers.

Mr. Carek persists in citing inapplicable case law.   He cites the Ohio Supreme Court's decision in Lembeck v. Nye , 47 Ohio St. 339 (1890), in which the court expressed concern that a high water mark standard would lead to litigation.   Carek Testimony at 9-10.   Lembeck , however, did not deal with Lake Erie; it dealt with a small, non-navigable inland lake, namely, Chippewa Lake in Medina County.   Such lakes are not subject to public trust doctrines.   The Supreme Court was concerned that a high water mark standard would lead to litigation on small, non-navigable inland lakes.   Indeed, the language quoted by Mr. Carek on page 10 of his testimony expressly refers to riparian owners, yet he fails to advise this Committee of the plain distinction Ohio law makes between riparian and littoral owners.

Mr. Carek not only ignores the difference between riparian and littoral owners; he also ignores the difference between government and private boundary disputes.   He cites cases that discuss where state and municipal boundaries lie, none of which address where a private littoral owner's property line ends.   Corporate boundaries determine the areas that states, cities and villages regulate, not the lands that they or their residents own.

Mr. Carek first cites an unpublished case from the Lorain County Court of Appeals, City of Avon Lake v. W. W. Paine , and a brief that ODNR filed in the case.   Carek Testimony at 8.   The very language quoted by Mr. Carek, however, states that the issue in the case was where the corporate boundary of Avon Lake lay, and not where any private owner's property ended.  

Mr. Carek next cites Mitchell v. CEI, 30 Ohio St. 3d 92 (1987).   Carek Testimony at 8-9.   The subject of that case, however, was again where the boundary of Avon Lake ran, and not where any private property ended.  

For his last case on this point, Mr. Carek cites the U.S. Supreme Court's decision in Vermont v. New Hampshire, 289 U.S. 593 (1933).   Carek Testimony at 10.   That case adjudicated the boundary between Vermont and New Hampshire; again, no private property was at issue.   Mr. Carek once again quotes selectively from the decision in an apparent effort to give a false impression of what it holds.   Here is the quotation provided by Mr. Carek:

...that the words 'shore' and   'lake,' ... in defining the boundary ... were synonymous, and the boundary upon the shore was fixed at low-water mark on Lake Ontario.

Here is the actual passage:

Upon considerations of this nature we held in Massachusetts v. New York, supra, that the words "shore" and "lake" used in the Treaty of Hartford of 1786 in defining the boundary of New York and Massachusetts, were synonymous and the boundary upon the shore was fixed at low-water mark on Lake Ontario.

The Court was construing a 1786 treaty between two states fixing their boundary. It was not determining where the public trust ended and private property began.

The only other proponent who attempted to argue points of law was Judge Adrian Betleski.   Betleski Testimony at 3-4.   He directed the Committee to the Squire case, arguing that it demonstrated that the State had to compensate littoral owners when it took their property.  

In Squire a lakefront owner in Cleveland had filled in land in front of its property in order to wharf out to navigable waters.   The city later built a highway across the fill, without compensating the owner.   The court confirmed that the littoral right to wharf out was a property right, albeit one that was "limited and entirely subservient to the power and authority of the state and federal governments in whatever either of them do in and of navigation, water commerce or fishery."   150 Ohio St. at 342.   The city had not demonstrated that it built the highway to promote navigation, water commerce or fishery, so it had to compensate the littoral owner for overrunning the wharf.

Squire thus does not hold that the State's exercise of public trust rights up to the HWM constitutes a taking and requires compensation to the private landowner.   It merely holds that government interference with a wharf lawfully constructed pursuant to an owner's littoral rights requires compensation, unless the interference was undertaken to promote navigation, commerce or fishing .   "[M]ore recently navigability has been held to include recreational as well as commercial use."   Thomas, 65 Ohio App. 2d at 14.

In considering H.B. 218, this Committee must have an accurate understanding of the public trust law of Ohio as it applies to private property on Lake Erie.   The proponents do not provide accurate or applicable authorities.   They are not credible on legal issues.

What About The Deeds?

Some lakefront owners have deeds that describe their lakeward property line as the LWM, or some other ambiguous point that may be below the HWM.   They argue that such deeds trump the State's control of lands below the HWM.

The simple response to this argument is that a deed may or may not accurately describe what rights the grantor owned and conveyed.   A grantor cannot convey more than it owns.   Putting language in a deed that sets a property line beyond what the grantor received from its predecessor does not suddenly expand the boundary of the property.   It merely creates a cloud on title.   People buy title insurance, and lenders insist on it, because deeds can contain errors.  

Judge Betleski testified that, around 1900, owners started including language in their deeds fixing their lakeward boundaries as the LWM.   Prior to that time, other language, which he described as more ambiguous, was used.  

According to Judge Betleski, the new language came into vogue to protect lakefront owners from being accused of trespassing on state-owned submerged lands.   This motivation was understandable, but the methodology - simply extending the property boundary into public trust lands through new language in deeds - could not accomplish this purpose.

To determine title, you must look beyond the most recent deed.   Our investigation has revealed that the properties of two proponents whose deeds say LWM were apparently part of an earlier grant that was limited to HWM.

James O'Connor (4269 Lake Road, Sheffield Lake) and Thomas Jordan (4301 Lake Road, Sheffield Lake) own properties near each other.   Their deeds say that their properties go out to the LWM.   As is the case with most residential properties in Ohio, however, these two properties were once part of a larger tract.  

Audubon Ohio learned that the Office of Coastal Management had investigated the state of title along this portion of the Lake.   Through a public records request we obtained a copy of what we believe to be the 1871 deed for the larger tract (attached as Attachment A).   The deed plainly sets the boundary of the tract "along high water mark" on Lake Erie.

If, as we suspect, this deed encompassed the properties now owned by Messrs. O'Connor and Jordan, then why would their deeds say something different?   As noted above, Judge Betleski provided the explanation.   An intervening owner later decided to describe the boundary as extending further into the Lake, which error was then repeated in all later deeds.   Private owners, however, have no right to appropriate public trust property to private uses, even if the State has been ignoring the property for decades.   See Thomas, 65 Ohio App. 2d at 14.

Now we have two owners who feel completely victimized by the State of Ohio because ODNR wants them to lease land that their deeds say they own, and that their local communities tax.   Neither one, however, claimed to have done a thorough title search.   They apparently assumed that if their deed said LWM, it must be correct.   Had they checked before acquiring their properties, they would have learned the truth.

Lakefront title is more complicated than merely looking to see what the latest deed says.   As discussed below, the circumstances in which a lakefront owner could establish a chain of title back to a valid conveyance of land beyond the HWM would be extremely narrow.   Thus far, no one has offered proof of such a title.

Intimidation

Even though there are apparently hundreds of lakefront owners who have LWM deeds, not a single one has ever proven in court that such a deed trumps the public trust.   In fact, there is no evidence that anyone has even attempted a legal challenge to ODNR's demand for a lease.   [As Mr. Schabel testified, however, the Beach Cliff Trustees challenged ODNR's interpretation of its public trust rights in court.   The Trustees lost.]  

Judge Betleski testified that in his opinion the Coastal Zone Management Act of 1989 constituted a taking from lakefront owners.   In response to a question, however, he admitted that in the 15 years since the law was enacted, no court has so held.

The absence of a court challenge, let alone a successful court challenge, is ample evidence that the owners know full well that their deeds do not supersede the public trust.   If they really believed that they owned out to the LWM, why would they sign leases?   Wouldn't someone, at some point, have gone to court?

The owners do have an explanation.   They say they have signed the leases, instead of fighting them, because they were "intimidated" and "extorted" by ODNR.   They say they had no choice.

Two proponents - Messrs. O'Connor and Jordan - directly charged ODNR with extortion and intimidation in dealing with them.  As demonstrated above, there is a serious question as to whether either one has title to land below the HWM.   Thus, regardless of whether ODNR used intimidation, or was instead a model of propriety, it likely had every right to require them to sign leases to build on land below the HWM.

Messrs. O'Connor and Jordan nonetheless believe that they own out to the LWM because their deeds say so and their county is mistakenly taxing them as if they did.   They also say they were intimidated and extorted.   Even if they had a legal basis for disputing ODNR's right to a lease, however, an examination of their testimony demonstrates that the "intimidation" and "extortion" arguments are baseless.

Mr. O'Connor gave compelling testimony, complete with photos of his children, about ODNR intimidation and extortion.   He said always wanted to live on Lake Erie.   He views the Lake, however, as a dangerous place that must be controlled through artificial means in order to protect his children.   In other words, he did not really want to live along Lake Erie -- he wanted to live along Lake Erie Lite.

Mr. O'Connor chose to move to a property on the Lake without first contacting ODNR to find out what would be involved in obtaining permits to reconstruct a breakwall near his property.   Despite his fear of the threat that the Lake posed to his children, he went ahead and bought lakeshore property without doing his homework.

Mr. O'Connor described himself as a "victim."   In his testimony, however, he admitted that "attorneys told me I was a fool to sign" an ODNR lease; that he was "stupid" to sign it, and that he didn't have a good answer for why he signed it.   Moreover, he provided ample evidence that he was not backed into a corner by ODNR; rather, he had options, which he chose, for whatever reason, not to pursue.

Mr. O'Connor testified that "the attached legal description of my deed contained within my title insurance that insures that deed as described to the low water mark.'   O'Connor Testimony at 4.   Moreover, he testified that he spent $50,000 constructing a new breakwall.   Evidently he was not destitute when the events he complains of occurred.

It is not clear whether Mr. O'Connor claims that he actually has title insurance that covers down to the LWM, or simply that his title policy mentions that boundary.   If he does have title insurance, he is in the clear.   When ODNR told him that he didn't own land down to the LWM, he could have simply turned the matter over to his title insurance company and told them to fix it - that is what he paid the premium for!

Even if Mr. O'Connor did not have title insurance, he still had at least $50,000 to spend to improve his property.   Surely he could have afforded to spend some of it on some legal advice before signing the lease - or indeed, before buying the property in the first place.   He was not intimidated; he was just in a hurry.   He didn't want to delay his purchase of land along "dangerous" Lake Erie before completing his homework, and he didn't want to delay rebuilding his breakwall before checking on the true status of his rights and title.

Mr. Jordan presents a similar case.   He also claims he was intimidated by ODNR.   He testified, however, that he was first asked to sign a lease on December 23, 1993, but he did not actually sign it until 1997, 3-1/2 years later.   He had plenty of time to consult counsel, research his title, and otherwise find a way to resist the purported intimidation.  

Mr. Jordan, an experienced realtor, testified that he had title insurance coverage right down to the LWM.   He admitted in his oral testimony that when ODNR told him he did not own down to that point, he could have called his insurance company and "ask for support in court."   He said that he chose not to do so because it made him uncomfortable.   Perhaps Mr. Jordan, as a realtor, didn't want to harm his longstanding professional relationships with title insurers by making a big claim; if so, however, this would be his choice, not a product of ODNR intimidation.

As previously noted, Audubon Ohio cannot comment on what ODNR did or said in its dealings with Messrs. O'Connor and Jordan.   Even if ODNR was perfectly within its rights in demanding leases, as we believe it was, owners are entitled to prompt and courteous service.   Their own testimony, however, indicates that they either had title insurance coverage or financial means to challenge ODNR if they chose to, and in Mr. Jordan's case, over three years to think it over.   If they did not do their homework, or wanted to live next to a Lake tamed through artificial means, or were in a hurry, or didn't want to make a claim against their purported title insurance, these were matters of personal choice, not intimidation or extortion.

We suspect that the real reason proponents have signed leases instead of going to court is that they know their title claims would not stand up in court.

Victims

We began our testimony by agreeing that lakefront owners had some legitimate grievances.   For example, they have been asked to sign leases, when permits would do.   They have paid taxes on land they do not own.   They have been subjected to inappropriate conduct on the public beach behind their homes, and across their properties.

The owners may have also been victims of delay, misinformation, inefficiency and lack of courtesy by ODNR officials.   Audubon Ohio cannot say whether they have or have not.

The owners also claim to be victims because they had to sign leases for land below the HWM.   Here we do not agree with them.   We have demonstrated that, absent a chain of title back to an original deed unambiguously granting land below that point, the owners have no claim to public trust lands.  

It is possible that somewhere along the lakefront a private owner does have a chain of title back to an original grant that specified title out to the HWM.   The Submerged Lands Act provided for such a possibility, specifying that the public trust lands described in it belonged to the respective states or to "the persons who were on June 5, 1950, entitled thereto ...."   43 U.S.C. 1311(a).  

Even if there were such an original grant, however, it would be effective only if it had been made for the purpose of promoting public navigation, commerce or fishing.   The State lacks authority to divert public trust property into private uses.   In Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387 (1892) the U.S. Supreme Court held in its ninth headnote that any act of the legislature purporting to grant title to submerged lands in Lake Michigan was ineffective, because the state could not convey public trust lands.   Similarly, in State ex rel. Squire v. City of Cleveland, 150 Ohio St. 303 (1948), the Supreme Court of Ohio held in its sixth headnote:

[T]the state, as trustee for the people, cannot by acquiescence or otherwise abandon the trust property or permit a diversion of it to private use different from the object for which the trust was created.   The littoral owner is charged with knowledge that nothing can be done by him that will destroy the rights of the public in the trust estate.

We doubt, therefore, that any private lakefront owner has a legitimate chain of title establishing rights below the HWM.   In feeling that they own less than they bargained for, the owners may still be victims.   They may be victims of realtors, attorneys or title companies that did not research and explain their rights; predecessors who altered deed language to create a false impression of ownership; or title insurers who provided coverage below the HWM but are now not honoring that coverage.   They are not, however, victims of ODNR when ODNR denies their title to land below the HWM.

Remedies  

Sub. H.B. 218 purports to divest the State of all exposed beach between the HWM and the water's edge along Lake Erie.   This would allow private owners to close all such beach along their lands to the 11 million Ohioans who presently enjoy access to it.   There would be no more strolling along this beach, no more fishing from it, and no bird watching.   While such activities could still occur in the water, this is of little comfort to the old, the young, the disabled and others who would have difficulty walking in the water.   It also presents substantial difficulties to anyone who would want to access the coast during the cold weather months.

The bill also substantially expands littoral rights.   It would, for example, create a littoral right of fill where none existed before (except as a means of wharfing out).

The bill, in short, is a giveaway.   It is a giveaway of land and a giveaway of rights, from the many to the few.   It needlessly goes far beyond the remedies necessary to redress the legitimate grievances of lakefront owners.

Audubon Ohio believes that no changes are needed in the current statutory definition of the public trust along Lake Erie.   The changes contained in Sub. H.B. 218 should be removed.   We are confident that our interpretation of the law under the current statutory language will continue to be upheld in the courts, as it has been in the past.  

We also believe that littoral rights should not be expanded.   Current law strikes a proper balance between the needs of littoral owners and the rights of the public.

Reform is needed in the coastal program.   The lease program should be abolished in favor of a permit program that is simple, efficient, prompt and fully funded.   State law should clearly provide that counties may not assess lakefront owners upon an assumption that they have unfettered title below the HWM.   Administrative reforms should be implemented to insure that owners are treated courteously.  

Abuses by those who lawfully access the public beach should be curbed.   Noise, litter, and vagrancy, to the extent not already outlawed, should be made illegal.   The General Assembly could even enhance penalties for such misconduct, and for trespass across private lands, as it does for misconduct by motorists in construction zones.  

Audubon Ohio commends Senator Robert Gardner on the proactive approach he has taken in developing compromise language to address the legitimate grievances of lakefront owners at the least cost to the general public.   The proposals he discussed during this Committee's hearing on February 11, 2004 are appealing (although we would need to study further the proposal to grandfather existing erosion control devices).   We understand that Sen. Gardner has not completed his analysis, and has not made a final proposal.   We will be prepared to comment on his final proposals when they are announced.   At this point he is heading in the right direction, using an approach that we hope the entire Committee will follow.

The court of appeals in Beach Cliff held that ODNR controlled lands below the HWM, even though they had been artificially filled to a level above that line.   Proponent Ned Schabel gave the Committee the history of this case, using it to complain about the position taken by ODNR.   The court, however, held that ODNR's position was correct.   The Ohio Supreme Court recently declined to review the case.

Proponent Raymond Ginter said he believed he had "no choice" to sign a lease (Ginter Testimony at 4).   Proponent Russell Claus said he was "forced" to sign a lease in order to get a permit for an erosion control structure (Claus Testimony at 3), and that ODNR had "demonstrated ... that they will work through intimidation."   Neither one, however, objected to obtaining a permit, so their complaints can be addressed simply by terminating the lease program, which Audubon Ohio supports.

Page updated 2/19/04; Randy Pindor