Archive for October, 2009

ODNR Files Memorandum of Support of Jurisdiction

In a surprise filing ODNR has filed for standing in the Appeal. ODNR’s brief states that its responsibility is to uphold any findings by the Court and to carry out those responsibilities as they apply to the public trust, upland property owners, and all the people of Ohio. Because of this, ODNR wants to insure “that the Court has the benefit of its expertise.”

ODNR states that they want clear guidance as to what the law is, specifically on how fill material artificially placed by the littoral owner affects the boundary of the territory (i.e. public trust). They specifically refer to the statement: “the waters and the lands presently underlying the waters of Lake Erie and the lands formerly underlying the waters of Lake Erie and now artificially filled”

Many of our OLG members have fill present on their property because of their rights to reclaim property lost due to avulsive (storm) event(s). The Appeals Court decision clearly states that the boundary of the public trust is the natural shoreline which “is the line of demarcation between the waters of Lake Erie and the land when submerged thereunder held in trust by the state of Ohio and those natural or filled lands privately held by littoral owners.” Note that the Court did not talk about “artificial fill” meaning fill placed beyond the original property boundary.

However, ODNR has contended in the past that this fill is illegal because it protruded into public trust waters, subsequently charging the owners for submerged lands leases for this filled area.

OLG is eager to have the Supreme Court clarify the right to fill and to the extents that fill is allowed on the private property owner’s deeded land.

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National Wildlife Federation Files Appeal to Ohio Supreme Court

As expected, and as they stated after the decision by the Appellate Court, the NWF filed their appeal to the Ohio Supreme Court.

Their first basis for appeal was the reiteration of the State’s claim to ownership of Lake Erie’s public trust to the Ordinary High Water Mark since statehood, and specifically for 139 years since a specific case decision that both OLG and the defense used in their arguments to the court.

NWF brazenly tells the Ohio Supreme Court that:

“the court of appeals interpreted the Court’s terminology – “subaqueous soil,” “submerged land,” “land under the waters” – on its face, with a modem sensibility (emphasis added), failing to understand what the (previous) court meant by it. As a result, the court of appeals has twisted this court’s precedents, erroneously reducing the dimensions of Lake Erie and the scope of the public trust in its navigable waters.

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

Secondly. NWF asserts:

“The public trust includes the right of citizen passage along the shore of Lake Erie as a necessary incident to the use and enjoyment of Lake Eric for the traditional public trust purposes of navigation, commerce, and the fishery, and the more modern public trust purposes of recreation and aesthetic enjoyment (emphasis again added).”

So, in the first case NWF does not want the modern sensible solution, but in the second case the modern purpose of recreation and aesthetic enjoyment is preferred.

NWF further quotes from case law:

“The Court held that the state owns the land under the navigable waters “in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

I read navigation, commerce, and fishing, but missed the words recreation and aesthetic enjoyment or walking. In fact, EVERY reference made in their cites refers only to the navigable waters and the land beneath and nowhere is ordinary high water mark or the shore mentioned, even once.

In essence, NWF makes the very same case with no new information. They, like the State, continue the misinformed mantra that the ordinary high water mark has been established since statehood and that the subaqueous land under the waters of Lake Erie somehow includes the dry beach.

Click here to read the entire brief.

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Attorney General Cordray Files Appeal to Ohio Supreme Court

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

OLG replied in a statement by President Tony Yankel saying:

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

In his appeal, Mr. Cordray primarily rejected the Appeals Court decision giving the AG no standing in the case. His key points in the brief:

  • The Appellate Court mangled the doctrine of appellate standing
  • Impaired the ability of the State to protect the public interest
  • Hobbled the State’s ability to protect State’s interests

Mr. Cordray actually recognized that littoral owners have special rights, but continued the worn out mantra that Ohio has held the public trust to the ordinary high water mark since statehood. He casually equates the law defining the public trust, ORC 1506.10 that reads “to the southerly shore”, as meaning the ordinary high water mark. He continues to cite the same cases as cited and rejected in the lower courts.

OLG President Tony Yankel concludes in his statement:

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

The full appeal is here.

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