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Lake Erie Residents Defend Property Rights Before Ohio Supreme Court

Former Attorney General Betty Montgomery; 13 Groups Side With Property Owners in Court Filings

Sheffield Lake, OH – The Ohio Lakefront Group, a coalition of over 7,000 Lake Erie property owners, yesterday filed written arguments in the Ohio Supreme Court in its ongoing action against the state of Ohio’s unlawful and uncompensated taking of privately owned land. The property owners were joined by former Attorney General Betty Montgomery and 13 independent groups, who filed amicus briefs in support of the property owners’ legal arguments.

The property owners asked the Ohio Supreme Court to affirm the decision of the Eleventh District Court of Appeals, which restored their legal property rights and rebuked the state. The appeals court – upholding nearly 200 years of legal precedent – ruled that shoreline residents’ deeded property claims are valid. In many cases, the deeded property extends to the water’s edge and pre-date Ohio statehood. Further, the appeals court said the state acted improperly and without legal authority in taking deeded land without properly compensating property owners.

“We respectfully ask the high court to end the injustice created by the Ohio Department of Natural Resources’ and Attorney General Richard Cordray’s rejection of our private property rights,” said Ohio Lakefront Group President Tony Yankel. “Mr. Cordray and state officials have refused to accept prior court rulings and the written legal opinions of former Ohio attorneys general Betty Montgomery and Lee Fisher. The state is trying to rewrite our deeds at the expense of our legal rights and without legislative approval.”

Former Attorney General Betty Montgomery advised the high court that during her tenure as attorney general she issued an opinion addressing the state’s ownership of Lake Erie lakeward of the “natural shoreline,” which moves with the water’s edge – bolstering the property owners’ legal arguments. “I have an interest in ensuring that the opinions issued by the Attorney General’s office are given due weight as persuasive authority in Ohio, and also in protecting the private property rights of Ohio’s citizens,” former Attorney General Montgomery wrote in her amicus brief.

In addition, Ms. Montgomery noted that former Attorney General Lee Fisher’s opinion issued in 1993, as well as her current amicus filing, is consistent with the Eleventh District Appellate Court’s ruling.

Joining Attorney General Montgomery in filing amicus briefs were: the Ohio Farm Bureau Federation; National Federation of Independent Business; Cleveland Fraternal Order of Police Lodge 8 jointly with the Cleveland Police Patrolmen’s Association; the 1851 Center for Constitutional Law; Brookwood-Cresthaven Beach Club, Inc. jointly with the Linwood Park Company; Ohio Association of REALTORS, jointly with the Willo-Beach Park Association, Inc; Geauga Constitutional Council; Pacific Legal Foundation; Save Our Shoreline (Michigan); and Southeastern Legal Foundation, Inc.

Ohio law and past legal precedents say the state’s interest in the waters and submerged lands of Lake Erie does not extend beyond the water’s edge. However, under a controversial action initiated by former Gov. Bob Taft and pursued by former Attorney General Marc Dann, the state sought to claim the land along the Lake Erie shoreline for its own purposes. 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 Dann appealed the case to the Court of Appeals. Attorney General Cordray is continuing the Dann case.

“Mr. Cordray wants us to pay rent to the state for land our deeds say we already own,” said Yankel. “If he is successful, what will the state attempt to take next?”

Also filing Merit Briefs as individuals whose cases were combined with the OLG Class Action were Homer S. Taft;

L. Scot and Darla J. Duncan

Following are copies of filings made with the Ohio Supreme Court yesterday in support of the Ohio Lakefront Group.

Ohio Lakefront Group merit brief

Homer S. Taft Merit brief

L. Scot and Darla J. Duncan Merit Brief

Amicus Briefs:

Former Attorney General Betty Montgomery

Ohio Farm Bureau Federation

National Federation of Independent Small Business

Cleveland Fraternal Order of Police Lodge 8 jointly with the Cleveland Police Patrolmen’s Association

1851 Center for Constitutional Law

Ohio Association of REALTORS jointly with the Willo-Beach Park Association, Inc., Brookwood-Cresthaven Beach Club, Inc. and the Linwood Park Company

Geauga Constitutional Council

Pacific Legal Foundation

Save Our Shoreline (Michigan)

Southeastern Legal Foundation, Inc.

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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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Property Owners Triumph Over Eminent Domain Taking

After a 27-month battle with the $80-billion Texas Department of Transportation backed by the Spanish corporation Cintra-Zachary, with the strong support State of Texas’ Governor, Rick Perry, property owners won an injunction to stop the confiscation of their land. Texas has a unique statute that allows for local governments to join together creating a planning commission, which then allows them to invoke coordination with state agencies. Five towns and school districts combined representing approximately 6,500 people and their jurisdiction covered 30 square miles.

The five communities would have been destroyed by the creation of the I-35 Trans-Texas Corridor, a quarter-mile wide super transportation corridor. The corridor itself was to hold six passenger lanes for commuter travel, four truck lanes for long hauls, freight rail and high speed rail.  The right-of-way that would be condemned for the project was a quarter-of-a-mile wide, taking 146 acres per mile from Americans. Fire stations would have been cut off from the communities they protect.  School districts across the state would have to be redistricted.  School buses would be adding hundreds of miles a day navigating around the limited access super highway.  Residents would be forced to pay a toll to get to work.  500,000 private acres would be confiscated to accommodate not only the internationally funded highway system, but also to provide lease pads to gas, hotel and restaurant services.  The people impacted in these small rural communities would suffer all the economic and social damage for this international project.

No one could stop the Trans-Texas Corridor.  It had the aggressive backing of Governor Rick Perry, the full support of the Texas Department of Transportation (the largest state agency in the nation), and was internationally backed by Cintra-Zachary.  This $80 billion project was on a fast pace to connect the Chinese owned Mexican seaports with Canada, that is, until these five courageous towns and their school districts invoked coordination and took a stand equal in spirit to the Alamo, but with a much better result — Texans won.

The cities are now working to make this injunction permanent so that this debacle canot be revived at a later time. To read the full case story, click the link: Full Case Study

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