In a surprise filing ODNR has filed for standing in the Appeal. ODNRâ€™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 â€œthat the Court has the benefit of its expertise.â€
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 filledâ€
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 â€œis 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.â€ Note that the Court did not talk about â€œartificial fillâ€ 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 ownerâ€™s deeded land.