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December 23, 2009 – Ohio Supreme Court Files Entry in Case

It appears that the Court has rejected the notion of summarily dismissing the AG’s standing in the case, but instead wants that issue to be heard prior to it even considering whether or not to take the entire case.  The Entry, signed by Justice Pfeifer, directs 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?

The Court directed that the Appellant/Cross-Appellant State of Ohio’s brief shall be filed within 15 days from the date of this order. All other parties may file briefs within 15 days after the State of Ohio’s brief has been filed. The State of Ohio may file a reply within five days thereafter.  No extensions of time shall be permitted. The Clerk shall refuse to file any requests for extension of time.

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OLG Files Brief with Ohio Supreme Court

On December 7 OLG filed its brief in response to the Appeals by the Ohio Attorney, the National Wildlife Federation and Ohio Environmental Council, and co-plaintiff Howard Taft.

Four points are made in the brief and summarized here:

  • · OLG has no objection to the Ohio Supreme Court summarily entering a judgment regarding the Attorney General’s standing to represent the people of Ohio in the Appellate Court Appeal. However, there is no reason to remand the case back to the Appellate Court since the AG participated fully throughout the case in filing briefs and being heard in oral arguments before the Court. Also, the AG offered no information beyond what appellants NWF/OEC provided in their appeal. Therefore the Appellate Court has heard all of the information and a remand back to the Court would be superfluous wasting additional time and money by the plaintiffs and defendants.
  • · The preposition of error regarding the boundary of the Public Trust raise no real issues as this boundary has been established by law in the Ohio Revised Code, reinforced by the Ohio AG’s formal opinion in 1993, settled in 1878 in a case (Sloan v. Biemiller), and readdressed by the Ohio General Assembly in 1917 all of which stipulate the boundary to be the “natural shoreline” or  “water’s edge” as defined by the Trial Court in 2007. Therefore there is no question for the Court to consider, as the Public Trust issue has long been settled, affirmed, and re-affirmed.
  • · The proposition of error relating to the right of the public to walk the shores of Lake Erie similarly raises no issue. Again referring to the Sloan v. Biemiller case, while the court found no issue with exercising public rights  within the Lake, it found no similar public right with respect to the shore. A later case, Wincus Point Shooting Club v. Bodi, the court affirmed the plaintiff’s title in and to all lands, marshes, shores and islands and said this issue (of private property rights) was “forever quieted”. The U.S. Supreme Court in 1926 agreed, “there are no public rights in the shores of non-tidal waters”. NWF/OEC assert that a “more modern” public right includes walking the beaches of Lake Erie. As with the boundary issue, this is a matter of law and should be rejected.  Therefore there is no question for the Court to decide as this question has, likewise, been long settled and affirmed.
  • · The issue of NWF/OEC’s right to intervene in this case is not a question of public or general interest. Numerous actions over previous years have allowed such interventions. This intervention itself is not significant to the case and cannot serve as an independent basis for the Court to decide.

The full OLG brief can be viewed by clicking the link below.

OLG brief to Ohio Supreme Court

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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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