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OLG Briefs Rebuttal

April 11, 2013 – OLG Briefs Rebuttal to ODNR, the State of Ohio, and NWF/OEC Request for Reconsideration by the Appellate Court and State Brief in Support of Reconsideration

The quick summary to the OLG brief is that the Request for Reconsideration by the State’s is without merit and was erroneous in its assignment of errors to Judge Lucci’s Court.
Also, the Appellate Court is correct in reviewing only the status of our Class Certification.  The Appellate Court ruled that they would review only the matter of Class Certification, citing that the the other assignments of error were not ready for appeal.
OLG stated: “In arguing for reconsideration of this Court’s March 18, 2013 entry, the State cannot point to any error or failure by the court to adequately address or analyze the issues raised in the instant appeal. Rather, the State merely argues that it would have been “better” or “preferable” if the court had reached a different conclusion or engaged in a different analysis.
Further, quoting from our brief:
A. The Court did not err in declining to consider the merits of issues it had no jurisdiction to decide; considerations of ease and judicial economy do not create appellate jurisdiction where none otherwise exists.
B. The Court properly rejected the State’s attempt to re-argue the trial court’s certification of a class for purposes of Count I, which occurred six years ago.
C. The Court committed no obvious error or oversight in determining – in accordance with Ohio law – that one part of an order may be final and appealable while others are not.
In conclusion: “The State’s dissatisfaction with the Court’s March 18, 2013 Judgment Entry is insufficient to support a motion for reconsideration in the absence of any obvious error or failure of consideration by the Court. For the foregoing reasons, the Class Plaintiffs/Appellees respectfully request that the Court deny the State’s Motion for Reconsideration of Judgment Entry of March 18, 2013.”

ODNR submitted a brief in support of their Motion for Reconsideration. Their  basis is that the Appellate Court did not give “full consideration” to all the assignments or error noted by ODNR. Also full consideration should be withheld until the merits are all addressed in a single decision. ODNR continues to contend that the Class Certification does not extend to the other decisions by the lower court, such as the return by ODNR of illegally obtained lease fees by ODNR to property owners .

The briefs pile up as the State continues to bleed our funds, and at this point they are doing very well at the bleeding.

Read the OLG brief by clicking Class Plaintiffs-Appellee’s Brief in Opp to Motion of Defts-Apls to Reconsider

Read the ODNR brief by clicking ODNR Mtn Reconsider FAO as filed

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Appellate Court Decision on Appeals from Judge Lucci’s Court

April 6, 2013 – Response by Court to Appeal by ODNR/State and NWF and Request for Reconsideration by ODNR/State

In their appeal of February 8 ,2013 the state proffered that:

“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.”

“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.”

“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…”

“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 Appellate Court ruled that they would review only the matter of Class Certification, citing that the the other assignments of error were not ready for appeal.

The ODNR/State filed a brief for reconsideration citing that all the rulings should be appealable together thus avoiding multiple appeals on each count. They also spent significant effort on restating their case as to why the Class should not be continued to the second count of the lawsuit which would grant financial relief to leaseholders back to 1998 and grant other possible relief to other lakeshore owners for the illegal taking of their property. They likewise, refute that attorney fees should be paid by the State. The ODNR/State continue to maintain that OLG and the class were not the prevailing party in the decision of the Ohio Supreme Court.

To read the briefs filed with the Court click the links below.

ODNR/State Appeal

NWF/OEC Appeal

ODNR/State Motion to Court for Reconsideration

OLG will be filing a brief in rebuttal to the ODNR/State Brief for Reconsideration.

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Final Briefs submitted in Second Round of Appeals

February 22, 2013- Final Briefs submitted by OLG, State/ODNR and NWF/OEC in Second Round of Appeals

Initial Briefs were filed by the State and NWF/OEC appealing Judge Lucci’s Court declaration that OLG was the prevailing party in the Supreme Court ruling and direction to ODNR voiding all submerged land leases and requiring the State to refund lease payments back to 1998. Other stipulations included ordering the State to provide notice and guidance to the public and governmental authorities on the rules for establishing boundaries for waterfront property. Since that time, briefs were filed back and forth between OLG and the appealing parties.

“The class consists of: “All persons, as defined in R.C. 1506.01(D), excepting the State of Ohio and any state agency as defined in R.C. 1.60, who are owners of littoral property bordering Lake Erie (including Sandusky Bay and other estuaries previously determined to be a part of Lake Erie under Ohio law) within the territorial boundaries of the State of Ohio.”

We first look at the State’s Brief to provide context for the OLG response.

The State’s final brief is aimed primarily at challenging the Class Certification. It is disputing this since it does not want to follow the last Court’s decision that ODNR must deal with all members of the class in terms of any relief, be it monetary damages for “taking” of the land, or repayment of leases that were illegally charged to lakeshore owners for Submerged Land’s Leases. They likewise continue to dispute that the Ohio Supreme Court found in favor of the lakeshore owners. The brief runs to 10 pages. In the State’s conclusion it claims:

“The trial court’s August 27 Order is in error and constitutes an abuse of discretion in many respects, and ODNR’s assignments of error should be sustained.”

“The trial court’s new certification of a class for Count II of the Amended Complaint (August 27 Order at ¶¶ 113-118) must be reversed.”

“The trial court’s purported grant of further relief on Count I, including the new class certification and the order to return lease fees (August 27 Order at ¶ 112) must be reversed.”

“The trial court’s determination of a “prevailing party” (August 27 Order at ¶¶ 119-123) must be reversed.”

“The trial court’s ruling purporting to “establish” the natural shoreline (August 27 Order at ¶¶ 108- 111) must be reversed or modified to confirm with the holding of the Ohio Supreme Court”

To read the full Brief click the link. Reply Brief of Appellants FINAL.

The OLG brief disputed and substantially refuted each of the State’s claims of error. In summary, the OLG Brief stated:

“The Trial Court Did Not Abuse its Discretion by Certifying a Class Where Class Plaintiffs Previously Had Requested Certification and The State Was Given Ample Opportunity to Present Its Position on the Issue.” Further, “The State May Not Unilaterally Take a Position Inconsistent with the Parties’ Stipulation Regarding Class Certification.” While the State argued they had no notification of the extension of the class, the law does not provide that such notification is necessary.

While the State asserted that lakeshore owners suffered no harm in the takings, OLG’s brief asserted: “ODNR’s arbitrary and capricious assertion of ownership and exercise of ownership rights over the lands owned by Plaintiffs at and below OHWM constitutes an unconstitutional temporary taking of those lands, and Plaintiffs have a clear right to receive compensation from ODNR for such taking or appropriation pursuant to Article I, Section 19 of the Ohio Constitution and the Fifth Amendment to the U.S. Constitution.” (Id. ^ 35).”

Regarding fees OLG states “While the State claims that the trial court granted relief that the Class Plaintiffs never requested, the opposite is in fact true. In ordering ODNR to return fees improperly collected from the Class Plaintiffs, the trial court granted an equitable remedy.”

The State argues that OLG is not an eligible party because of the aggregate wealth of all of its members. OLG responded that: OLG is an Eligible Party Under R.C. § 2335,39; Aggregation of its Members’ Net Worth is Neither Required or Warranted.

In the NWF/OEC brief, they continue to argue the same issues asserted by them for the past 9 years. Their focus was on the location of the natural shoreline and what constitutes the “territory” of Lake Erie. Their claim is:

“The Supreme Court’s conception of the natural shoreline as a line that may lie landward of the water means that the public may take advantage of the public trust by walking on dry land on those occasions. Contrary to the Appellees’ claim, then, the Supreme Court did not affirm this Court’s holding that the public can walk only in the water to remain in the “territory.””

They concluded that all the decisions of the Lower Court should be reversed.

Their Brief can be read by clicking here. Reply Brief of Intervening Appellants NWF et al.

In response to both the State’s and NWF/OECs briefs disputing the lakeshore boundary, OLG stated: “The Trial Court Did Not Err in Determining the Location of the Natural Shoreline of Lake Erie. The Supreme Court’s Ruling in Merrill II Did Not Conclude Count I; the Trial Court’s Ruling on the Location of the Natural Shoreline Was Necessary to Effectuate the Relief Granted on that Count.”

Further, OLG stated: The Trial Court Bid Not Err in Describing How to Identify the Natural Shoreline, After Taking Into Account Disturbing Causes. The Trial Court Described the “Natural Shoreline” in a Manner Consistent with Merrill I and Merrill II as a Moveable Boundary Located Between the Ordinary Low and High Water Marks Consisting of the Water’s Edge When Free From Disturbing Causes.

OLG provided a Brief Response to each of the Appealing parties. The OLG briefs were backed up with substantial case law, Ohio Revised Code, and Constitutional law. The 2 briefs together included 46 pages. Read our briefs by clicking the links below:

Brief of Class Plaintiffs-Appellees to NWF/OEC

Brief of Class Plaintiffs-Appellees to State

 

 

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Lake County Court Upholds Property Owners’ Rights

September 6, 2012 – Declares Leases Partially Invalid and Orders State to Refund Lease Payments Wrongfully Taken

Win In case the Attorney General, the NWF and OEC did not actually acknowledge that OLG won its case all the way through the Ohio Supreme Court, Lake County Common Pleas Judge Eugene A. Lucci spelled it out in his recent Order. After months of discussions with ODNR and the Ohio Attorney General Mike DeWine and numerous briefs filed to the Court. Judge Lucci ruled on the major issues in the case. He specifically rejected the claim by the State that the “ordinary high water mark” was the boundary of waterfront property. “Instead, the Court found that home owners’ boundaries should be calculated according to when the lake’s water is at rest, without disturbance.”

As highlighted in a press release by OLG President Tony Yankel, the four important parameters settled by the Court:

1. Voided any submerged land leases forced by the State of Ohio on property owners of any land above the natural shoreline.

2. Rejected the State’s assertion of authority to compel property owners to lease back property owned by them as specified in their deeds, including lands lost due to avulsion.

3. Ordered the State to provide notice and guidance to the public and to governmental authorities on these rules establishing boundaries for waterfront property.

4. Ordered the State to refund all submerged land lease fees for property covered in this suit paid between 1998 and the present.

Further, President Yankel said: “On behalf of the more than 15,000 property owners along Ohio’s Lake Erie waterfront and the 6,000 members of the Ohio Lakefront Group, which brought this law suit eight years ago to defend our rights, we are gratified that the court upheld our position that the State of Ohio had overreached in its dealings with Ohio property owners.”

According to Judge Lucci’s decision, if the waters are undisturbed by such short-term and perceptible occurrences as storms and wind tides, then the natural shoreline is the water’s edge. This boundary between private and public ownership is readily discernible without any expert assistance by the public, property owners, law enforcement and the state of Ohio.

Judge Lucci further explained that the public’s right to use Lake Erie “is limited to the water itself” and, thus, does not include any portion of the dry land adjoining Lake Erie.

To read the press release click here.

To read Judge Lucci’s Order click Lucci’s Order

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