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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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OLG Lawsuit Status after Appellate Court Decision Presentation

The following was presented in Lakefront meetings on September 8, 9, and 10th of this year:

OLG Lawsuit Status after Appellate Cour…

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Appellete Court Rules in Favor of Ohio Lakefront Group Property Owners

The Eleventh District Court of Appeals in Painesville issued the long awaited decision on basic property rights today. This decision stood up for the most fundamental of all property rights—ownership of what is specified on a deed. OLG is very pleased with this decision.

In a Press Release issued today, Ohio Lakefront Group President Tony Yankel stated:

“The Ohio Lakefront Group has now won three times in court. But, after five years and over $400,000 in legal fees, we now have a very detailed and learned decision from the Court of Appeals that reaffirms the obvious—we own what our deeds say we own. No radical bureaucratic notion can alter our deeds. We have won because we have been defending a simple premise—deeds and private property ownership are one of the cornerstones of this Country.”

The highlights of the decision, as summarized by our attorneys follow. If you want a copy of the full court decision to use the page references on each item, please click this link Court of Appeals Decision 8-24-09 (w-o attachment) (00615029) to view or download document..

  • The Eleventh District Court of Appeals (“Court”) rejected the argument made by the State and the National Wildlife Federation (“NWF”) that the Equal Footing Doctrine of federal law dictates ordinary high water mark as “natural shoreline” – page 18.

•The Court determined that the Ohio A.G. had no standing in this case as he had no client. The Governor and ODNR withdrew from the suit in July 2007, therefore the A.G.was defending no official or agency of the State and had no request to do so.

The Court rejected the argument made by the State and NWF that the Submerged Lands Act dictates ordinary high water mark as “natural shoreline”– page 19.

• The State and NWF argued that the trial court erred in holding that ODNR cannot use IGLD to establish the ordinary high water mark. The Court said this argument is moot because ODNR is no longer doing this – pages 20-21.

• NWF argued that the public could use the dry land between ordinary high water mark and water’s edge for any recreational purpose regardless of objections from upland property owners. The Court rejected this argument, finding that the “public retains the same rights to walk lakeward of the shoreline along Lake Erie, but these rights have always been limited to the area of the public trust (i.e., on the lands under the waters of Lake Erie and lakeward of the shoreline).” – page 21.

• In addition, the Court observed: “Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property. Sloan, supra.” – page 21.

• The Court rejected the proposition that the “natural shoreline” is at the ordinary low water mark. Instead, the Court followed Ohio Supreme Court precedent and defined the natural shoreline using a practical boundary that is relatively easy for property owners to identify: the “shoreline is the line of actual physical contact by a body of water with the land between the high and low water mark undisturbed and under normal conditions. See, e.g., Sloan, supra, at paragraph four of the syllabus.” – page 24. By using ordinary high and low water marks as limits on where the water’s edge can travel, the Court appears to have implicitly incorporated the general common law understanding that flooding doesn’t move the “natural shoreline.”

• OLG argued that the trial court exceeded its authority in ordering that all deeds of upland property owners be reformed to terminate at the water’s edge. The Court agreed with OLG and reversed the trial court’s decision to reform the deeds of all upland property owners – page 25.

• The Court summarized its findings at page 30: “the Supreme Court has identified that the waters, and the lands under the waters of Lake Erie, when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark. Therefore, the shoreline, that is, the actual water’s edge, 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 in lands privately held by littoral owners.”

• And at pages 30-31, the Court further explained its findings: “By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide for the public’s use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water’s edge provides a readily discernible boundary for both the public and littoral landowners.”

Tony Yankel stated in the conclusion of the Press Release:

“Will there be yet another frivolous and wasteful appeal to the Ohio Supreme Court by the current Ohio Attorney General Richard Cordray or another party? I don’t know, but if there is, the OLG and its membership are ready. We’ll never give up our fight for our property rights.”

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