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Cordray Wrong About State Law in Lake Erie Shore Dispute

Sheffield Lake, OH – The Ohio Lakefront Group, a coalition of over 7,000 Lake Erie property owners, today responded to a legal brief filed by the Ohio Attorney General in its pending case before the Ohio Supreme Court. The property owners are disputing the improper taking of deeded land.

Ohio law says the state’s interest in the waters and submerged lands of Lake Erie does not extend beyond the water’s edge. However, the Attorney General claims ownership of the dry shorelands of Lake Erie, which in many cases are the privately-owned backyards of property owners. He believes these property owners should pay rent to the state for land contained in their deeds.

“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,” Ohio Lakefront Group President Tony Yankel said. “This case is about private property, and the unjust effort by the state to strip it away from thousands of Ohioans without compensation.”

“The Attorney General claims he is attempting to ‘protect the important resource of Lake Erie for the good of all,'” Mr. Yankel said. “However, opening all of this privately-held land along Lake Erie to uncontrolled public use – 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.”

In his filing, the Attorney General argued a recent U.S. Supreme Court decision based on a Florida coastal dispute bolsters the his case. However, the two cases deal with distinctly different issues and are grounded in differing state laws. The U.S. Supreme Court decided in the Florida case that issues of private property rights are to be decided in accordance with appropriate state law. Florida law deals with “tidal” water, and Florida’s private property extends only to the “mean high tide mark.” Ohio law deals with non-tidal water, and Ohio law says private property extends at least to the “water’s edge.”

Under a controversial action initiated by former Gov. Bob Taft, the state sought to claim the land along the Lake Erie shoreline for its own purposes. The property owners brought legal action against the state and were successful in federal court, common pleas court and the court of appeals. Former Attorney General Marc Dann appealed the case to the Ohio Supreme Court. Attorney General Richard Cordray is continuing the Dann case.

The Ohio Lakefront Group is a non-profit association of Lake Erie property owners and other concerned citizens committed to the protection, preservation and enhancement of private property rights. More information on the group can be found at www.ohiolakefrontgroup.com.

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Poll shows 83% of Ohioans “strongly disagree” with Attorney General Richard Cordray’s position in Supreme Court Case Vast majority of Ohioans oppose limiting property rights

The following is an Ohio Lakefront Group Press Release by OLG President Tony Yankel.

Columbus (OH) – With the Ohio Supreme Court primed to hear arguments in a case involving property rights, a recent statewide survey shows that 83 percent of Ohioans strongly believe Attorney General Cordray’s position is wrong.

The case concerns the attorney general’s attempt to allow the state to take control of private property along Lake Erie without compensating the Ohioans who own the property.

Cordray, advancing a legal argument made by disgraced former Attorney General Marc Dann, wants Ohio property owners to pay a lease fee to use the property they’ve owned for decades. The attorney general’s argument ignores 200 years of Ohio law that supports property rights.

In the survey, 83% of Ohioans said they “strongly disagreed” with the idea that the state “should be able to force property owners to pay a lease fee to use part of the property the person already owns.”

“The survey confirms what we’ve known all along,” Ohio Lakefront Group president Tony Yankel said. “Ohioans think that paying a lease fee for property they already own is government intrusion on people’s rights.”

Additionally, 87% of citizens surveyed disagreed with Cordray’s position requiring homeowners near a lake, stream, or river to open their backyards to use by the public.

Yankel pointed out that Ohioans simply don’t want the government taking control of their property and telling them what to do.

“The right to own private property is sacred in Ohio,” said Yankel. “Ohioans just don’t tolerate the idea that the government can take control of their property.”

The survey by Washington-based Advantage, Inc. was conducted during the first week of March. The 802-person sample has a margin of error of plus or minus three and a half percentage points. The Supreme Court will hear oral arguments in the case later this year.

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Ohio Supreme Court Accepts Jurisdiction over Property Rights and Attorney General Authority

Columbus (OH) – Today, the Ohio Supreme Court accepted jurisdiction in a case that will give it the opportunity to protect the property rights of all Ohioans and address the authority of the state attorney general to disregard the governor’s policy decisions.

“We look forward to the Supreme Court defending the Constitution and turning back this
Richard Cordray-led assault on private property rights,” said Tony Yankel, president of the Ohio
Lakefront Group. “By accepting jurisdiction on the attorney general’s authority, the Supreme
Court will also get a chance to stop activist attorneys general like Marc Dann, Elliot Spitzer and
Richard Cordray from pandering to special interests at the taxpayer’s expense.”

Since 2006, three different courts have ruled that Ohio property owners can’t be forced to open
their backyards to strangers. Despite that fact, special interest groups and Attorney General
Richard Cordray have continued their efforts to reverse more than 200 years of Ohio law.

A briefing schedule for the case hasn’t been set and the Supreme Court will likely hear oral
arguments this summer. A copy of the Court’s announcement is available online at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-ohio-670.pdf

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State Files Reply Brief to Ohio Supreme Court

Ohio Attorney General Cordray filed the State’s reply to the OLG brief and those of Scot Duncan and Homer Taft.

The brief begins asserting that no matter the outcome of the AG’s standing as viewed by the Supreme Court, the case should not be remanded to the Appellate Court, but should be heard directly by the Ohio Supreme Court. This is consistent with the OLG assertion in the case before the Supreme Court.

The AG continues to maintain that he has standing to defend the State sans any real named defendant. The brief cites nothing new in defending the AG’s standing, relying on an implicit responsibility to continue the defense of ODNR after Governor Strickland issued his policy statement and ODNR and the Governor took separate attorney representation. (ODNR and the Governor filed no further briefs with the Courts subsequent to taking new representation.)

Governor Strickland’s policy that was supposed to cause the ODNR to cease and desist from charging private property owners to lease their own land from the State. The Governor’s new policy, however, is moot since ODNR never released new administrative rules to eliminate the illegal practice and continues to send lease billings as before.  As is required by ODNR, rules are reviewed and referred to JCARR periodically. Administrative rules were released last year to JCARR with NO CHANGES relative to the Governor’s policy.

ODNR contends that new administrative rules, reviewed in public meetings in 2008, are ready for release. They further state that comment and other input from those (2008) meetings have been incorporated to the extent possible. The public has not yet seen the new revised rules.

To read the complete brief, click the link: State’s Reply Brief Supreme Court

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