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ODNR Fights Property Owners’ Rights In Spite of Six Consecutive Court Decisions

PRESS RELEASE IMAGEMay 19, 2014 – Ohio Lakefront Group Calls ODNR Action “Arrogant and Illegal”

(Columbus, May 19, 2014)  Despite having lost six consecutive times in court, the Ohio Department of Natural Resources (ODNR) filed an appeal against lakefront property owners in the Ohio Supreme Court late last week, the latest round in a ten year fight in which ODNR has forced lakefront landowners to pay rent for their own property and challenged their legal titles.

ODNR is appealing Ohio’s Eleventh District Court of Appeals’ March 31, 2014 opinion supporting class certification so that Lake Erie property owners can obtain compensation for ODNR’s unconstitutional actions. The Ohio Lakefront Group, a group of 8,000 northern Ohio property owners, is leading this fight to protect their private property right extending to the “natural shoreline” of Lake Erie.

The March 31 Court of Appeals opinion was the sixth consecutive courtroom victory for the group against the ODNR, which includes two court of appeals victories and one unanimous Ohio Supreme Court victory.  The 2011 Supreme Court decision held 7-0 that “the public trust does not extend landward beyond the natural shoreline,” explicitly rejecting ODNR policies that had forced owners to pay rent on their own property up to the “high water mark” and triggered thousands of title challenges.

“This unbroken string of court decisions clearly shows that the rights of Ohioans who live on or own property adjacent to lakes, ponds, rivers, creeks or canal traces cannot be unilaterally repealed or changed by state bureaucrats,” said Ohio Lakefront Group President Tony Yankel of Bay Village.  “These rights had been secure for more than 200 years until ODNR ‘s arrogant and illegal taking of private property.

“ODNR’s appeal continues to drag out the implementation of the Supreme Court’s decision,” Yankel continued, “and, if successful, would hamstring private citizens’ ability to protect their rights in court.

“In fact, ODNR is now using stalling tactics similar to a property rights case near Grand Lake St Mary’s in which ODNR was found to be in contempt of a Supreme Court Order.

“Similar to the Grand Lake St Mary’s case, ODNR’s filing indicates that it retained special counsel to represent them.  It’s unknown what caused ODNR and Attorney General Mike DeWine to part ways, but it won’t affect the outcome, just waste more taxpayer money in legal fees.

“On behalf of thousands of Ohioans who own property adjacent to lakes, ponds, rivers, creeks or canal traces, we ask ODNR to respect the property rights of all Ohioans and immediately heed our courts’ repeated decisions affirming those rights,” Yankel concluded.

Ohio Lakefront Group has thirty days to respond to ODNR’s appeal, and then the Supreme Court will determine whether it wants to consider the merits of the appeal.  If the Supreme Court does not accept the appeal, the case will be sent to Lake County Common Pleas Court Judge Eugene Lucci to continue the next phase of the case.  If the Supreme Court accepts the appeal, briefing and oral arguments will likely take place this year and next.

Amicus briefs supporting the Ohio Lakefront Group filed in previous cases included filings from:
·         The Ohio Farm Bureau
·         NFIB (National Federation of Independent Business Small Business)
·         Cleveland Fraternal Order of Police (FOP) Lodge 8
·         Cleveland Police Patrolmen’s Assn.
·         The Ohio Association of REALTORS
·         Save Our Shoreline
·         Brookwood-Cresthaven Beach Club, Inc.
·         The Linwood Park Company
·         Willo-Beach Park Association, Inc.

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State of Ohio Files New Appeal to the Ohio Supreme Court

11th Court of AppealsWhile not unexpected, the AG has filed an Appeal to Ohio Supreme Court.

  • Appellants’ Proposition Of Law No. 1: A trial court must undertake a separate rigorous analysis with respect to each claim for which class certification is sought in determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.
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    Appellants’ Proposition Of Law No 2: A claim seeking a writ of mandamus to compel appropriation proceedings for an involuntary taking of private property cannot be maintained as a class action under Civ.R. 23(B)(2).

In essence, they continue to waste our taxpayer dollars fighting after 6 consecutive losses in the Courts.

 

To read the Appeal filing click ODNR Appeal to Ohio Supreme Court

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Appellate Court Affirms OLG Class Certification

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April 4, 2014 – The 11th Circuit Court of Appeals affirmed the continuation of Class Certification for OLG and all the class members who own property bordering Lake Erie.

On appeal, appellants (the State) asserted the following assignments of error:

[1.] The Trial Court erred and abused its discretion in determining that this action may be maintained as a class action for Count II of the Amended Complaint.

[2.] The Trial Court erred and abused its discretion in certifying a class and ordering relief in regards to the validity of submerged land leases and claims for the return of payments made under those leases.

[3.] The Trial Court erred and abused its discretion in determining that Plaintiff/Appellee Ohio Lakefront Group is a prevailing party for the purpose of its application for attorney fees under R.C. 2335.39.

[4.] The Trial Court erred and abused its discretion in determining the location of the boundary of the territory of Lake Erie held in trust by the State of Ohio.

The Court limited the appeal to issues related only to class certification, the Court did not address the State’s third and fourth assignments of error.

To read the full Appellate Court decision, click here. Opinion affirming class certification

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Asian Carp Already in Ohio

OLG e-News March 1 2014

asian carpAccording to a news article on Ohio.Com, a few individual Asian carp – four species including the silver and bighead carp – have been found in the Ohio River near Portsmouth. But breeding Asian carp are still near Louisville, Ky. Asian carp are probably 300-plus miles from Medina County, said Rich Carter, the ODNR’s top fishery expert.

The federal Natural Resources Conservation Service is looking at Dewey Hall’s 1,700-acre farm south of Lodi near the Medina-Wayne county line, and the U.S. Army Corps of Engineers is looking at a similar potential connection from the Portage Lakes to the Ohio & Erie Canal in Summit County.

ODNR Director, James Zehringer, called Hall’s farm a “pinch point” and a place of major importance in the battle against Asian carp. The fear is that Asian carp could, at high water and during floods, move from Little Killbuck Creek to the Black River
and get into Lake Erie, where the Asian carp would out-compete local fish like walleyes, perch and bass for food.

What remedies may be needed on Hall’s farm are still unknown but could include building new berms, reconfiguring drainage ditches and eliminating or modifying pumping, the experts said. Hall has pledged to work with the involved agencies to solve the problem and to block the Asian carp.

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