On December 7 OLG filed its brief in response to the Appeals by the Ohio Attorney, the National Wildlife Federation and Ohio Environmental Council, and co-plaintiff Howard Taft.
Four points are made in the brief and summarized here:
- · OLG has no objection to the Ohio Supreme Court summarily entering a judgment regarding the Attorney General’s standing to represent the people of Ohio in the Appellate Court Appeal. However, there is no reason to remand the case back to the Appellate Court since the AG participated fully throughout the case in filing briefs and being heard in oral arguments before the Court. Also, the AG offered no information beyond what appellants NWF/OEC provided in their appeal. Therefore the Appellate Court has heard all of the information and a remand back to the Court would be superfluous wasting additional time and money by the plaintiffs and defendants.
- · The preposition of error regarding the boundary of the Public Trust raise no real issues as this boundary has been established by law in the Ohio Revised Code, reinforced by the Ohio AG’s formal opinion in 1993, settled in 1878 in a case (Sloan v. Biemiller), and readdressed by the Ohio General Assembly in 1917 all of which stipulate the boundary to be the “natural shoreline†or “water’s edge†as defined by the Trial Court in 2007. Therefore there is no question for the Court to consider, as the Public Trust issue has long been settled, affirmed, and re-affirmed.
- · The proposition of error relating to the right of the public to walk the shores of Lake Erie similarly raises no issue. Again referring to the Sloan v. Biemiller case, while the court found no issue with exercising public rights within the Lake, it found no similar public right with respect to the shore. A later case, Wincus Point Shooting Club v. Bodi, the court affirmed the plaintiff’s title in and to all lands, marshes, shores and islands and said this issue (of private property rights) was “forever quietedâ€. The U.S. Supreme Court in 1926 agreed, “there are no public rights in the shores of non-tidal watersâ€. NWF/OEC assert that a “more modern†public right includes walking the beaches of Lake Erie. As with the boundary issue, this is a matter of law and should be rejected. Therefore there is no question for the Court to decide as this question has, likewise, been long settled and affirmed.
- · The issue of NWF/OEC’s right to intervene in this case is not a question of public or general interest. Numerous actions over previous years have allowed such interventions. This intervention itself is not significant to the case and cannot serve as an independent basis for the Court to decide.
The full OLG brief can be viewed by clicking the link below.