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Briefs Filed to Ohio Supreme Court

OLG filed its brief to the Ohio Supreme Court on Friday. The brief in summary noted that when ODNR and the Governor withdrew from the lawsuit, the Attorney General lost standing. Since ODNR is the sole party responsible for the management of Lake Erie, by withdrawing, the Attorney General could not defend that responsibility. However, should the Court determine that the AG does have standing, we agree with the State’s brief that the case should not be remanded to the Appeal Court since all the briefs from all parties were provided to that Court for their decision in the appeal.The full OLG brief can be accessed through this link: OLGSupremeCourtbrief

NWF/OEC also filed their brief restating the State’s argument that the AG should have standing in the case. Access the full brief here: NWF_OECSupremeCourtbrief

An Amicus brief was also filed by NWF representing a number of environmental and sportman’s organizations basically stating that the AG is responsible for defending the environment in Ohio which includes Lake Erie. Access the full brief here: Amicusbrief

Co-plaintiffs Homer Taft and Scot Duncan filed supplementary briefs further asserting the AG’s lack of authority to appeal our lawsuit after the ODNR and Governor withdrew and took separate attorney representation. They provied additional case law to support their assertion. Their briefs can be accessed through these links: Duncanbrief 20TaftSupport

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Ohio Lakefront Group Press Conference in Columbus

January 20, 2010 – Republican state lawmakers call on Ohio Department of Natural Resources to stop sending letters demanding lease payments to lakefront property owners on land that they already own. State Legislators Tim Grendell, Tom Patton, Bill Seitz, Nan Baker and John Adams were among the speakers. This has been an going battle concerning Lake Erie shoreline deeds:

Here is a copy of the release:

Columbus (OH)– Legislators and property rights activists today called into question recent actions of the Ohio Department of Natural Resources (ODNR).

The issue stems from a lawsuit over property rights and whether the state will be allowed to reverse centuries of law to allow public access to previously private property along Lake Erie.

Nearly 3 years ago, Governor Strickland ordered ODNR to stop enforcing a policy that required landowners to lease their own property from the state. However, ODNR has continued to enforce the leases.

“ODNR has apparently gone rogue,” State Senator Bill Seitz said. “Governor Strickland and Lieutenant Governor Lee Fisher have repeatedly pledged their support for Ohio property owners. It’s baffling how an agency under the Governor’s control could refuse to comply with his instructions.”

Seitz was joined by colleagues Representative John Adams (R-Urbana), Senator Tom Patton (R-Strongsville), Senator Tim Grendell (R-Chesterland), Representative Nan Baker (R-Westlake), and Tony Yankel from the Ohio Lakefront Group, which filed the initial lawsuit.

State Representative Nan Baker says she’s met with dozens of citizens who have expressed outrage over ODNR’s actions.

“The Governor directed ODNR to stop charging citizens to lease their own property,” Baker said. “Yet I’ve talked to dozens of property owners who are being threatened with legal action if they don’t pay those same lease fees.”

The legislators pointed to the Governor’s campaign pledge to the Lake Erie landowners.

The Governor is previously on the record saying, “I have concluded that the lakefront owners rightfully own the land as specified in their deeds,” and that he and Lee Fisher believe “the State of Ohio has gone too far and is unjustified in its attempt to take this land from those who rightly own it.”

State Representative John Adams says he is worried that the Attorney General and ODNR are trampling Ohio citizens’ rights.

“Private Property rights are among the inalienable rights guaranteed in our Constitution,” Adams said. “Ohioans should be very worried that the state thinks it can take a portion of your backyard without paying you for it.”

The lawsuit began in 2004 when property owners sued ODNR to prevent them from charging owners a lease fee for their own property. In 2007, Governor Strickland directed ODNR to drop the case and honor the deeds of property owners.

While ODNR initially complied with the Governor’s order, former Attorney General Marc Dann vowed to continue the litigation on his own. After Dann’s resignation in disgrace, Richard Cordray continued to press the lawsuit. The property owners have prevailed in Lake County Court, Federal District Court, and the 11th District Court of Appeals. The case is now on appeal in the Ohio Supreme Court.

State Senator Tom Patton said it’s important to remember that all Ohioans could be affected by the outcome of this case.

“This case is far bigger than Lake Erie or Northern Ohio,” Patton said. “Every Ohioan who lives on a lake, river or stream should be concerned with the state’s attitude.”

The Attorney General argued unsuccessfully before the 11th District Court of Appeals that the State of Ohio gained ownership in 1803 of the beds of all navigable waters of the state, not just Lake Erie, up to the ordinary high water mark. If this legal position were adopted by Ohio courts, it could radically alter the last 200 years of Ohio law governing ownership of inland lakes, rivers and streams.

State Senator Tim Grendell said that ODNR’s current behavior is unacceptable.

“ODNR’s position is directly contrary to the governor’s stated policies. Either Attorney General Richard Cordray and lawyers for ODNR have misrepresented the Governor’s position in the Supreme Court, or Ted Strickland and Lee Fisher have broken yet another campaign promise,” Grendell explained. “Ohioans have a right to know where the Governor stands on honoring the deeds of all Ohioans.”

The Ohio Supreme Court is currently deciding whether to accept an appeal from the Attorney General and environmental groups.

Following are video links of excerpts of the press conference!

OLG President Tony Yankel – Introduction and Background

Senator Bill Seitz

Representative Nan Baker, Sentator Tom Patton, Senator Tim Grendell, Representative John Adams

Question and Answer Segments

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United States Supreme Court Hears Oral Arguments in Florida Beach Case

United States Supreme Court Hears Oral Arguments in Florida Beach Case

The following is from Michigan Save Our Shoreline (SOS), who you remember fought to keep Michigan private beach property from trespassers and lost. They have been following a similar case in Florida and filed an Amicus brief in the case.

SOS Florida Case

SOS Florida Case

The state of Florida enacted a law saying, in essence, that the state owns that part of the beach restored by the government. Homeowners on the beach in Destin, Florida challenged the law, saying it resulted in a taking of their right to own to the water, which in Florida is the mean high tide line. The Florida Supreme Court held that the law did not violate the constitution by taking property from the homeowners because their right to own to the water never existed in the first place.

This was the same trick that the state of Michigan used in 2005 to turn Michigan’s beaches into a public thoroughfare. In the case of Glass v. Goeckel, the Michigan Supreme Court simply ignored 160 years of case law holding that waterfront owners had “exclusive use of the bank and shore,” and created a public right to walk the dry beach. By using its courts to change the law, Michigan effectively took our private beach rights and turned them into public property, thereby avoiding the constitutional requirement that it pay just compensation.

Five justices seemed quite critical of Florida’s bold move. Some pointed out that under Florida’s view, the state could expand the beach simply to make room for spring breakers to party in front of the waterfront homes. Justice Scalia even proposed a name for the new law: the “Spring Break Act,” to much laughter from the Court audience. If it wanted, Florida might even build an amusement park in front of the homes. He told Florida’s lawyer that the common law in most states was that beachfront owners owned to the water, and that beachfront owners would be surprised to learn they did not own to the water. Justice Breyer and the new Justice, Sotomayor, argued that the beachfront owners lost nothing. In response to the suggestion that an owner might now find a hot dog vendor out on the beach in front of their home, Justice Sotomayor pointed out that before the re-nourishment, that vendor could have stayed in the same spot, although he would have been in the water, and the landowner would have been powerless to stop him.

The key to the decision will likely be Justice Kennedy, who pointed out concerns on both sides of the issue, but who seemed concerned about a taking. To the argument that the landowners received rights from the government equivalent to the rights they lost (and thereby really lost nothing), the conservative justices suggested that the way to decide that was to find a taking occurred, and then send the case back to the Florida courts for a determination of the value of the loss, if any. This seems to be the best suggestion we heard.

We expect a decision on the case in the spring or early summer of 2010. For more information, look for the SOS Amicus Brief and a transcript of the Supreme Court hearing at You may find the transcript very interesting, while long to read.

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ODNR and Attorney General Respond to Court’s Entry

The Ohio Supreme Court rejected the notion of summarily dismissing the AG’s standing in the case and instead asked that two issues to briefed prior to considering whether or not to take the entire case.  The Entry directed the parties to answer 2 questions:

1. Does the attorney general have standing to appeal a judgment against the State of Ohio if that appeal is contrary to the directive of the governor and the attorney general is not representing an administrative agency.

2. If the answer to the first question is “yes,” is the record in this matter sufficient for this Court to resolve the appeals and cross-appeal, if they are accepted, even though the State of Ohio’s assignments of error and briefs were stricken by the court of appeals?

We have received copies of the ODNR and A.G. briefs. While the ODNR is more succinct with 6 pages as compared to the A.G.’s 21 pages, both sets of briefs basically have the same spin.

In response to question 1:

ODNR states: “The only directive issued by the Governor regarding this case was a directive to ODNR that it should honor the presumptively valid real property deeds of the Lake Erie lakefront property owners unless a court determines that the deeds are limited by or subject to the public’s interest in those lands or are otherwise defective and unenforceable. In responding to this directive, ODNR made its position known to the trial court and ceased to take an active role in the litigation. ODNR indicated to the trial court that it welcomed the court’s resolution of the issues before it, based upon the able and exhaustive briefs submitted on behalf of the lakefront owners and on behalf of the State of Ohio by the Attorney General.”

“Thus, although ODNR ceased to take an active role in litigating this case, it continued to recognize that there was a significant case and controversy in need of judicial resolution. ODNR and the Governor fully expected that the Attorney General of Ohio would continue to defend the action on behalf of the State of Ohio, as a separately named party, and would continue to litigate the merits of the issues as framed in the trial court. ODNR and the Governor understood and expected that the Attorney General would continue to represent the State of Ohio in this action through the appellate process.”

The Attorney General adds that the Attorney General is independent due to the nature of his office and the nature of the State. Ohio has three branches of government that operate independently. Just as the Governor cannot direct a Court decision or the activities of the other branches including the direction of litigation when other parties in the State are sued. The Attorney General’s responsibility is to defend the State whether or not directed by the governor.

In response to question 2:

ODNR states “The court acted on its erroneous conclusion that the Attorney General did not have the authority to prosecute the action on behalf of the State of the Ohio, in the absence of ODNR taking an active role in the litigation. The Court may and should reverse this error at the outset of this case and reinstate the State of Ohio’s assignments of error. Notwithstanding the fact that it struck the State of Ohio’s brief, the court of appeals proceeded to address the merits of the issues before it, such that there is no reason to remand the case back to the court of appeals.”

The Attorney General added that although the Appeals Court erred in ejecting the Attorney General from the case, the Appeals Court did resolve the relevant issues making them ripe for the upper court review. “A remand to the appeals court would add nothing but delay, and all parties are best served by a final resolution of the important lake Erie issues now rather than later.”

To read the ODNR brief, click ODNR Support Brief

To read the Attorney General brief, click State AG Support Brief

OLG has 15 days to respond to these briefs and it will be reported at that time.

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