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