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).â€
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.