December 9 , 2003 Testimony

Testimony of Brian Preston, National Wildlife Federation, December 9, 2003

The National Wildlife Federation is a membership based conservation organization dedicated to sound science and common sense stewardship of our natural resources. Our mission is supported by 38,000 Ohio members and more than one million members nation wide. This document is in support of verbal testimony presented at committee hearings on December 3, 2003.

The National Wildlife Federation opposes any legislative action that would transfer property historically held in the public trust for all Ohio citizens, to a relative few individual private property owners. The risks associated with this transfer of ownership are substantial while the presented need to make such a transfer appears to serve the wants of the few at the expense of the many.

These comments are focused on the risks associated with the thousands of acres of critical Lake Erie coastal habitat moving from land held in the public trust to private property.

Lake Erie Restoration - you can't manage what you don't own

Recently passed federal legislation introduced by Ohio Representative Marcy Kaptur and Michigan Representative John Dingell move to create the Detroit River International Wildlife Refuge and substantially expand the Ottawa National Wildlife Refuge on the western Lake Erie coast. Current federal legislation personally drafted by Ohio Senator Mike DeWine and introduced by Ohio Senator George Voinavich will initiate a 5 to 6 Billion dollar great lakes restoration project. Ohio Governor Bob Taft has protected the Lake Erie coastal area from slant drilling operations and introduced the Lake Erie Protection and Restoration Plan for improving the environmental, recreational and economic potential of the lake. Governor Taft also established the Lake Erie Conservation Reserve Enhancement Program to protect 5,000 miles of tributary streams by reducing soil erosion and runoff pollution. Ohio's successful wildlife reintroduction programs also rely on critical coastal habitats. A record 73 nesting pairs of bald eagles had 105 eaglets in 2001 along with record nestings of Ospreys and trumpeter swans. The return of these spectacular native Ohio species speaks volumes for cooperative coastal management efforts by federal agencies the Ohio DNR. Conservation organizations, and the general public.

Legislation compromising the state's ability to manage coastal areas flies in the face of coastal management and restoration efforts that have been overwhelmingly supported by the citizens of Ohio, other great lakes states and the nation. As these international, federal and regional great lakes restoration efforts move forward any risks of compromising restoration opportunities are unacceptably disproportionate to the self serving special interests of lake front property owners. What we do or don't do with our north coast impacts an important international resource.

Habitat Loss - From wildlife nursery to sterile beach

The thousands of acres between the ordinary high water mark and the ordinary low water mark represent some of Lake Erie's most critical wildlife habitats. Submerged natural structures and plants serve as spawning and nursery habitat for many fish and other aquatic species as well as feeding and nesting habitat for waterfowl and shore birds. With private ownership of these acres comes the right to pursue private interests. In order to maintain sandy beaches during low water periods proposed beach "grooming" involves plowing as deep as two feet into the lake bottom to remove vegetation root systems. This permanent loss of habitat also leads to substantial coastal erosion and opens the lake bottom for the introduction of invasive species.

In addition to direct habitat risk this legislation will serve as a start point for ongoing interpretation of what the property owners can and can not do with their newly acquired Lake Erie coastal real-estate. Commercial level water withdrawals, back filling, and a variety of other potential resource compromising oportunities will need to be ruled on. This inevitable time and resource sink will present no benefits to the general public.

Access - Private Property - No Fishing

A significant benefit of the public trust concept is the comfort it provides all the citizens of a state that the resource is theirs to enjoy. Part of the rational for using the ordinary high water mark is that it is recognizable to people on the ground. It generally is where visible changes occur such as where sand meets landward vegetation. Submerged private property lines scattered across the entire state will lead to a signage debacle and compromise public access to a public resource.

Lake Erie provides a substantial recreation based economic source for Ohio. Boating, fishing, birdwatching, waterfowling and shoreline sightseeing can only be compromised by privatization of the coastal area.

Conclusion - Change the bathwater, keep the public trust baby

If there is a problem with the DNR permit system, then all concerned parties agree the system should be fixed with all due haste. The department of Natural Resources should be accountable for developing and maintaining processes that both serve the public and protect the natural resources they are charged with managing. If titles and deeds were inappropriately created than we can work with the appropriate organizations to adjust them. This legislation has been advertised as fighting for the rights of deeded property owners yet the clear intent is to give public trust land away to all lake front property owners, regardless of whether or not they have a deed.

The question that has not been answered in months of discussions, debates and meetings is WHY? If the central problem of lake front property owners is the permit system, and the system gets fixed. Why is there then a need to move the property lines? If construction permits will still be required, if habitat won't be destroyed, and public access won't be compromised, then why do it?

There are immeasurable risks associated with this legislation with no apparent benefits for the vast majority of the 11 million citezens of Ohio I encourage all Ohio State Legislators to oppose any legislative language that creates long-term risks for the many while needlessly giving to the few. The privilege of owning property along Ohio's most precious natural resource should not be confused with ownership rights based on proximity.

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Testimony of David Scott, Sierra Club, December 9, 2003

With over 18,000 dues-paying members, the Ohio Chapter of the Sierra Club is Ohio's largest environmental advocacy organization. We believe that, as written, Substitute House Bill 218 will jeopardize the state's ability to protect Lake Erie's shore. Changing the shore boundary from the high-water mark is unnecessary and unwise. That provision and other provisions will create uncertainty, encourage lawsuits, and hamper the state's ability to prevent shoreline erosion. We urge the legislature to scrap most of this bill - especially the shoreline change - and to narrowly focus on property owner grievances against ODNR as a management and policy issue, not a call to change the map of the lakeshore.

Protection of Lake Erie's coast is a legitimate and necessary state function. Ohioans have paid a steep price for past failures to fulfill that role. The Ohio Lake Erie Commission's 1998 State of the Lake Report warned that "many stretches of shoreline, rivermouths and streams can no longer support healthy, biologically diverse communities of fish, invertebrates of plant life" (30). The commission graded the biological health of the shoreline in the lake's western basin as "poor." Wetlands that once provided flood control, erosion protection and ground water recharge have all but disappeared (34).

Intensive, poorly-planned development has not only drastically affected near-shore fish and wildlife, it has adversely affected people as well. Lakefront property owners fight the effects of erosion caused by the inappropriate actions of less responsible neighbors down the coast.

Any documented problems between ODNR and lakefront property owners should be fairly and thoroughly investigated, and then appropriately addressed. The state should correct management problems and revise policies as necessary. But changing ODNR practices doesn't require redrawing the legal boundary of a Great Lake, and the provision changing that boundary must be deleted from the bill.

Changing the legal boundary of Lake Erie risks the following consequences:

•  The change will hamper ODNR's ability to slow or arrest lakefront erosion - by definition, it's easier to oversee public land than private land.

•  The change will cause uncertainty about public access to the lake, The State of the Lake report notes that even now, only 3% of Ohio's 262 miles of lakefront is public beach. Lake Erie's shore has enough "Keep Out" signs as it is - we don't need to privatize thousands of acres of public trust shore lands .

•  The change will foster unnecessary litigation. By redefining public trust property as private property, this bill invites "regulatory takings" lawsuits that will cost large sums of money and foster uncertainty about property rights and oversight.

In addition to the shoreline change, other portions of the bill also invite unnecessary litigation. Both the federal and state constitutions require just compensation for government takings of private property, but decades of established case law have balance private property rights against the government's duty to protect the public. Private property owners already have the Fifth Amendment's protection against takings, I question the wisdom of this bill's superfluous statutory language about compensation - do we really need to insert statutory banners that say "Please sue the taxpayers?"

The appeal process set forth in the bill also risks undesirable consequences. By giving exclusive jurisdiction to local courts along the lake, the bill sidesteps the state court with the most administrative expertise in favor of local courts that are less insulated from local political pressures. As outlined in the bill, the appeal process also creates the risk of inconsistent rulings in different county courts.

The proposed permitting process has other major flaws. The bill fails to give ODNR explicit authority to evaluate permit applications on the basis of how modifications could affect environmental quality. The bill's notice provision fails to protect the public: when a landowner applies for a permit, the bill only requires ODNR to give notice to adjoining landowners, not the public at large (p. 40).

Even more disturbingly, the bill appears to limit the criteria for granting commercial leases to consideration of potential impact upon "the public right of navigation, water commerce and fishery" (p. 24). Again, the language omits any reference to environmental impacts. Ill-advised choices in this bill may hurt ODNR's ability to do its job, and I urge state officials to carefully reconsider the language regarding permits and leases.

Substitute H.B. 218 creates a drastic, overreaching solution to what is, if anything, a departmental policy and management issue. We urge legislators to drop the change in the lake boundary and redraft this bill in a way that is narrowly tailored to address specific, documented problems. Instead of enacting a hasty legislative fix, the General Assembly should appoint a study committee to review coastal program management. Otherwise, in its rush to placate a few angry citizens, the state may cripple its ability to protect the public, the lake, and even lakefront landowners, who have the most to gain from effective erosion control.

Slow down and do this right.

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Testimony of Dr. Sam Speck, Director of Ohio Department of Natural Resources, December 9, 2003

Madam Chair and members of the committee, on behalf of the Ohio Department of Natural Resources, we want to commend you for the changes made in regards to today's version of House Bill 218.

Specifically, we appreciate the committee's amendments to the following:

•  Retaining the Coastal Erosion Program, a critical component of our federally approved coastal management program

•  Consolidation of our coastal management program under one central authority,

•  Consolidating the Coastal Resources Advisory Council and the Submerged Lands Advisory Council into the Lake Erie Coastal Advisory Council,

•  Removing the "consumptive use" language under the "littoral rights" definition,

•  Adjusting the appeals process for permits to a process that will allow or an administrative record to be created,

•  Incorporating a large portion of House Bill 276 into the bill

I don't think anyone realized the complexities surrounding the coastal program. And while there remain a number of items that must be clarified and resolved before the Department can lend its support to House Bill 218, this latest version is a welcome improvement. In the next few paragraphs, I want to outline those items we feel need additional attention and improvement.

First is the Fiscal Aspect of Sub. H.B. 218

Based on our assumption that commercial leases will remain as in current law, we believe the funding outlined is adequate to run the program. There is, however, some confusion as to the fee (lease and permit) for commercial operations. Does the bill cap the fee at a one-time $500 license or permit? (See page 16 lines 474-482)   And is this $500 cap on commercial leases? If this is the intent of the bill, our assumption is wrong and our coastal program will experience a major shortfall, and in turn the inability to adequately address the public in a timely manner. This could also negatively jeopardize program viability with the NOAA.

Next is concern in the area outlining the Permits and Leases .

This particular area provides much concern for the department. As noted in my earlier letter, I felt as though the permit process was somewhat confusing in the last draft of the bill and my concern is for not only my staff, but also for the property owner, to be able to clearly decipher the process. We want a program that is easy to understand for all parties and as we expressed to the chair, we are interested in working with the Ohio Lakefront Group and other interested parties to come up with a workable permit process that is acceptable for all involved. To get a better understanding of how this process would work under the language found in this version of the bill, my staff ran a range of scenarios. We quickly became confused in regards to what section pertains under different scenarios. Some examples:   the easiest - a property owner comes to us with a 15-foot breakwall that is just below the ordinary high water mark. This person would fall under section 1506.40 with a cap on the permit fee of no greater than $500 (see page 38-39, lines 1174-1180). Next, where the confusion begins - a property owner is going to install a 500-750-square foot dock going into the water. Does this dock need a permit under 1506.40? Perhaps it is excluded because it is not intended to be an erosion control structure (see page 39, lines 1175-1179). Another example is a commercial marina. This falls under 1506.11. The problem with this scenario - is the permit required because the upland property has a commercial use, or because the property to be leased for the marina would be a commercial use? A final example, a constituent who has lost part of his or her property to erosion is interested in filling in the lake to recover the lost property. While we believe it is the intent of the committee to require permits for all activities lakeward of the natural OHWM (see page 24, lines 723-727), we feel the language needs clarified so there is no question about the need for a permit. The uses that are neither residential nor commercial - such as a municipal boat launch ramp - are difficult to assign under the requirements in the bill. We feel this needs clarified.

We are concerned that the bill provides no clear criteria for evaluating the permit application. While this could possibly be accomplished through rule making authority, clearly defining the criteria in the Revised Code would be extremely beneficial for both the department and the constituent.

And, finally, how the Ownership Issue is outlined in the bill.

Improvements to Sub. Bill 218 have been made, but there still are problems, largely with consistency. There are conflicts or inconsistencies in regards to the definition to territory expressly noted in both 1506.10 (B)(1) and 1506.11 (see page 23, lines 686-706, especially line 691; and compare with page 24, lines 723-727, especially lines 726-726). While the addition of Ordinary High Water Mark is useful, there is concern that the word natural is not incorporated into the reference in 1506.11. Without this reference, it leaves on to believe that the bill grandfathers all on existing fill as outside of the public trust, including commercial fill.

Concern also remains in regards to the public's ability to access the lake and shore. We believe the legislation clarifies public access via the waters of Lake Erie, however, the language does not provide for access on the dry shore. In a letter the NOAA provided the Department (and attached to this testimony) in regards to the first version of Sub. H.B.218, it notes the CZMA section 303(2) states that priority consideration should be given: (E) "public access to the coasts for recreation purposes." So this is an area where further discussion is necessary.

We also remain concerned with the "littoral rights" definitions contained in section 1506.10 (see page 23, lines 677-685). The definition does not state that the exercise of littoral rights is subject to the permit requirements of the Revised Code, and we feel that such should be clarified to avoid later confusion. The language remains very wide open in the fact that it allows for things the state may not be able to control - such as filling, structures for launching and storing watercraft, and "other purposes." Without proper controls, this activity could negatively impact the resource - in the environmental, recreational and economical arenas. This, too, is an area of concern raised by the NOAA.

We have also identified another, albeit relatively minor, inconsistency in the bill. Section 1506.11 calls for the permit dollars to be deposited in the Lake Erie Submerged Lands Fund (see page 27, lines 810-832). Section 1506.40 also calls for the permit dollars to be deposited into the Lake Erie Submerged Lands Fund (see pages 39-40, lines 1203-1210). However, when one reads Section 1506.41, you will find that permit funding resulting in 1506.40 to be deposited into the permit and lease fund (see page 42, lines 1268-1280). While this example is relatively easy to fix, the complexities that are involved in the permitting process are not as easy.

As noted in my opening remarks strides were indeed made to Sub. H.B. 218. But there remain some inconsistencies and confusion that must be resolved before an efficient and effective management program can result for the citizens of Ohio. While we understand the legislature's desire to move ahead today with passage of this legislation. I would encourage you to take additional time to closely examine these areas I have outlined and consider additional improvements before casting your vote. The Ohio Department of Natural Resources supports the desire to improve the state's coastal management program and we are committed to working with you through this process.

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Testimony of Mark Squillace, University of Toledo College of Law, December 9, 2003

Thank you for the opportunity to appear before you today to comment on House Bill No. 218. My name is Mark Squillace and I am a Professor of Law at the University of Toledo College of Law. Although I have lived in Ohio only since 2001, I have been teaching water law for nearly 20 years, and I have written extensively on the subject. On two separate occasions I have also practiced law as an attorney with the Office of the Solicitor at the U.S. Department of the Interior, in Washington, D.C. In that capacity I was involved with several important water rights issues. While I thus have a significant professional interest in this proposed legislation, I appear today in my private capacity to urge the Ohio legislature to abandon this legislation.

I am particularly opposed to the language in Section 1506.10 (B) (1) (lines 702-03) that appears to relinquish state authority over those lands below the high water mark and to the water's edge. Private shoreline owners may claim that this proposed legislation simply confirms title to lands that are rightfully theirs. But these are not private lands and they never were. They are public lands of incalculable value, and if the state succeeds in enacting this legislation it will have abdicated its responsibility as trustee for the people of Ohio. Let me briefly explain why.

Public rights to our lake and sea shores have been protected at least since the time of the Roman Empire, when the Institutes of (Emperor) Justinian proclaimed that -

"By the law of the nature these things are common to all mankind--the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only the laws of the nations."

Borrowing from these principles, the English common law made clear that tidelands were public property , held by the government in trust for its people . See William Drayton, The Public Trust in Tidal Areas: A Sometimes Submerged Traditional Doctrine , 79 Yale L.J. 762 (1970). Here in America, the public trust doctrine found early acceptance in the courts and was quickly expanded to encompass the land under all navigable waters. The most celebrated American case involving this public trust doctrine is Illinois Central Railroad v. Illinois , 146 U.S. 387 (1892) - a case with close parallels to the proposed legislation since it involved Lake Michigan.

The Illinois Central case concerned a grant to the railroad by the Illinois State legislature of title to that portion of the bed of Lake Michigan that included the Chicago harbor. Several years after approving the grant, the State had second thoughts and enacted legislation to repeal it's grant. The railroad sued. The Supreme Court described the issue before it as "whether the legislature was competent to thus deprive the state of its ownership of of the submerged lands in the harbor of Chicago." The Court replied as follows:

That the state holds the title to the lands under the navigable waters of Lake Michigan ... in the same manner that the state holds title to soils under tide water ... we have already shown. ... But it is a title different in character from that which the state holds in lands intended for sale.... It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them.

The Ohio Supreme Court has faithfully followed these principles. In State v. Cleveland & Pittsburgh Railroad. Co .,

94 Ohio St. 61 (1916), the Court first recognized that the scope of public trust property extends to the high water mark, and then concluded that - "(t)he state as trustee for the public cannot, by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created."

Any doubt that the scope of trust rights extends to all lands below the highwater mark is quickly erased by reference to the federal Submerged Lands Act of 1953, which expressly confirmed the states' title to the lands under all navigable waters within a State's boundaries and explicitly makes clear that these public right extend " up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction." 43 U.S.C 130l.

Against this backdrop, the proposed law cannot be seen as anything other than a naked land grab by private shoreline owners of public property. Specifically, the proposed legislation attempts to give to shoreline owners what is now state property between the ordinary high water mark and the water's edge. And it is a land grab of historic proportions for it purports to forever deprive the citizens of Ohio of the right they currently enjoy to use the lake shore below the high water mark.

As you consider your vote on this proposed legislation, I ask that you try to imagine looking back on this moment 100 years from now. Most of us here today would probably agree that Lake Erie is one Ohio's most precious natural resources. In 100 years, as our population grows and our natural amenities give way to new development, resources like Lake Erie will become even more valuable than they are today. If this legislature chooses to protect our precious Lake Erie shoreline for all of its citizens, generations to come will applaud the foresight and courage that you showed. If you choose to give these resources away, however, for short-term political gains, we will forever regret that decision.

I see no possible grounds on which this proposed legislation can be justified either as a matter of law or as a matter of policy. But even assuming some doubt, how should we err: Should we err on the side of giving away our shoreline resources to private landowners? Or should we err on the side of protecting those resources for all of the people of this State. For hundreds of years, people have enjoyed free access along navigable shores for boating, fishing and other recreational and aesthetic pursuits. I cannot understand how we could enact legislation that puts those rights at risk for the benefit of a handful of private shoreline owners.

In staking out my position, I fully recognize that over the years, some states have granted patents to public and private entities to develop particular harbor lands and that courts have sometimes upheld these grants, usually on the grounds that overall these grants promote the exercise of public trust rights. But to my knowledge no court has ever sanctioned a wholesale abdication of public trust rights as would occur under the proposed legislation. On the contrary, in one case where the Arizona legislature tried to convey the submerged lands under navigable waters to the private riparian landowners to all but three of its rivers, the Arizona court stuck down the legislation on public trust grounds..     in Arizona Center for Law in the Public Interest v. Hassell, 837 P.2d 158 (Ariz. Ct. App. 1992). The court held that the Arizona law violated the public trust doctrine because it "fail(ed) to provide a mechanism for particularized assessment" of the lands that were granted. That is exactly the problem with the legislation proposed here.

If this proposed legislation is enacted, I am confident that it will be challenged, and that like the Arizona legislation, it will not survive judicial scrutiny. But litigation is rarely the best way to resolve important policy issues. And so, I urge this committee to restore the public rights that are threatened by this bill by removing the language that purports to recognize the title of shoreline owners to lands below the ordinary high water mark.

Before closing, I would also urge the committee to clarify the language from the bill appearing at Section 1506.10 (A) and (B)(2) that purports to give littoral owners the "right" to make reasonable use of the submerged lands and waters fronting their lands, While littoral owners plainly do have certain common law rights, those rights do not extend to uses that would interfere with public rights in shore lands. Any implication to the contrary from the current language should be removed.

I appreciate this opportunity to comment on H.R.218 and would be happy to answer any questions.

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Testimony of Jerome C. Tinianow, Executive Director, Audubon Ohio, December 9, 2003

Chairman Hollister, members of the Energy and Environment Committee, my name is Jerry Tinianow, and I am the Executive Director of Audubon Ohio. Thank you for this opportunity to provide testimony in opposition to Substitute House Bill 218. I will focus my testimony today on that portion of the bill that would amend Section 1506.10 of the Revised Code to define the lakeward property boundary of a littoral owner as the place where the waters of Lake Erie make contact with the land.

Audubon Ohio is the state office in Ohio of the National Audubon Society, a 98-year-old conservation organization with nearly 500,000 members nationwide. Audubon Ohio serves nearly 19,000 Audubon members who live in Ohio. We have 19 local chapters around the state. The mission of Audubon Ohio is to conserve and restore ecosystems, focusing on birds and other wildlife, through advocacy, education, stewardship and Audubon chapter support, for the benefit of Ohio citizens of today and tomorrow.

By way of personal introduction, I am presently completing my first year as Executive Director of Audubon Ohio. Prior to this year I had a 22-year career as an attorney in private practice with two of Ohio's largest law firms, Dinsmore & Shohl and Hahn Loeser & Parks. In my practice I represented a number of businesses and individuals, including several Fortune 500 companies, primarily in commercial disputes, including property disputes. I thus bring an atypical background to my work as the leader of one of Ohio's premier conservation organizations.

Audubon Ohio opposes Sub. H.B. 218 because it needlessly and improperly attempts to divest the public trust lands along Ohio's portion of the Lake Erie shore to private ownership. While Audubon Ohio does not believe that the General Assembly has authority to divest public trust lands, we will concentrate today on three fallacious arguments advance by proponents of the legislation, namely:

•  That the legislation is needed to redress a wrong done to lakefront landowners whose deeds recite a purported conveyance of title out to the ordinary low water mark;

•  That such owners have been victims of appropriation of their property by the State without compensation; and

•  That the legislation is needed because such owners have been paying property taxes on the land between the ordinary high and low water marks even though the State denies that they own this property.

We note that these proponents frequently assert the need to protect private property rights along the Lake. Audubon Ohio believes in the protection of private property rights. Asserting the need to do so, however, merely begs the question, who owns what? The proponents argue that they own the land down to the ordinary low water mark, based on language in some of their deeds and on the fact that they are supposedly paying taxes on this land. As we demonstrate below, this argument totally lacks merit.

The "Deed" Argument

The mere fact that a deed contains language setting a particular boundary line for a property does not of itself create rights in the recipient out to that line. A fundamental tenet of real property law is that a grantor cannot convey greater title than the grantor has. The question is not what the most recent deed says; it is what the first deed in the chain of title says.

At some point in the past, all lakefront land in Ohio was owned by a public entity. Unless the original deed conveying a parcel from that entity to the first private owner specified title out to the ordinary low water mark, the fact that subsequent deeds specified such a boundary would be meaningless. We have yet to see a single original deed to an initial private owner along the Lake that set a boundary at the ordinary low water mark.

Perhaps you have heard someone say the following: "Hey, buddy, if you believe that , there's a bridge in Brooklyn that I'd like to discuss with you." Perhaps you have said it yourself. We all know what this refers to - con artists who try to convince gullible people to purchase the Brooklyn Bridge. This is humorous because, as we all know, no person could have the right to sell the Brooklyn Bridge. According to the logic of the proponents of Sub. H.B. 218, however, if someone had nonetheless received a deed to the Brooklyn Bridge from one of these con artists, the City of New York would be compelled to transfer title to the bridge to that person. After all, it says right in their deed that they own it!

We do not mean to suggest that those who sold lakefront properties to their current owners were con artists. In all likelihood they were simply mistaken individuals who assumed that they had title out to the low water mark, perhaps because they themselves had deeds that said so. Whether the deed language arose innocently, however, is irrelevant. If the original conveyance from public ownership did not specify a boundary out to the low water mark, the language of subsequent deeds suggesting such a boundary means nothing.

The "Takings" Argument

The second argument we address today, that asserting an unconstitutional taking of private property without compensation, is based on the same flawed assumption as the first argument, namely, that lakefront property owners own land out to the low water mark if their deeds say so. Indeed, by the logic of this argument, the latest revision of H.B. 218 would itself constitute a taking, since it would move the boundary supposedly held by the affected owners back from the ordinary low water mark to the water's edge. As demonstrated above, however, unless these owners can trace back to an original conveyance out to the ordinary low water mark, the fact that the State asserts title up to the ordinary high water mark does not constitute a taking.

A notable fallacy of the "takings" argument is that if it were accurate, there would be no need for revision of Section 1506.10, since the owners in question would need no legislative action to confirm their title to the submerged lands that they claim. Where an owner believes a taking has occurred, the remedy is to bring an action in court to require the State to pay just compensation. In the alternative, the General Assembly could spare these owners the need to go to court by appropriating the compensation directly. The remedy for a taking - if one has occurred - is the payment of compensation, not the conveyance of property.

Audubon notes again that it denies that the deeds in question created actual rights out to the low water mark, and hence denies that there have been any takings.

The "Property Tax" Argument

Finally, the argument that lakefront owners have been paying property taxes unfairly on property out to the low water mark is based on a fundamental misunderstanding of property tax law. Property taxes are based on the value of property as a whole, not on separate segments of the property. It is misleading, for example, to state that I pay taxes on the front 10 feet of my property. I pay taxes on the value of my property as a whole. While the property might be less valuable if the front 10 feet were removed, the actual effect of such a reduction would vary property by property.

We note that a major component of the value of lakefront property is its location on the lakefront. We doubt that most lakefront property would fetch a significantly different price based on high versus low water mark. People buy such property because they want to live adjacent to the Lake.

As noted above, the mere presence of language in a deed conveying title out to the low water mark does not of itself indicate that the owner holds such title. If the owner does not, and if the owner is being taxed by local authorities upon the mistaken assumption that the owner does, then the appropriate remedy is for the owner to use the procedures provided by law for seeking a reassessment of the property value based on actual ownership.

In the alternative, the General Assembly could adopt legislation specifically forbidding country auditors from including land below the ordinary high water mark in lakefront property valuations. The remedy is not for the State to donate the "missing" property to the owner free of charge so that the property tax assessment becomes accurate.

Conclusion

The State's management of lakefront properties and its relationship with lakefront landowners can no doubt be improved. Certain reforms may well be warranted. Outright conveyance of public trust lands to private landowners, however, is not warranted. As demonstrated above, the deed, takings and property tax arguments advanced by the proponents of Sub. H.B. 218 are fundamentally flawed. They do not provide any justification for turning public trust lands over to private owners (even if the State had the authority to do so, which Audubon Ohio denies).

The right of Ohioans to stroll along the portion of the lakefront below the ordinary high water mark, to swim and fish in it, and otherwise to engage in appropriate recreational activities in this area has existed since we became a state 200 years ago. There is no reason to give it up now. Audubon Ohio respectfully requests that this Committee refrain from reporting this legislation favorably to the House unless and until it deletes the language in the substitute bill that attempts to adjust the lakeward property line of upland property owners.

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