ofUGrNu. 


31n tTje 
^&UprETTCE Court of bID 


STATE OF OHIO ex rel. 
ROBERT MERRILL, TRUSTEE, et al., 


Plaintiffs-Appellees, 

and 

HOMER S. TAFT, et al., 

Intervening PlaintiffsAppellees-
Cross-Appellants 

V. 
STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 

Defendants-AppellantsCross-
Appellees, 

and 

STATE OF OHIO, 

Defendant-AppellantCross-
Appellee, 

NATIONAL WILDLIFE FEDERATION, et al., 

Intervening DefendantsAppellants-
Cross-Appellees. 

Case No. 2009-1806 

On Appeal from the 
Lake County 
Court of Appeals, 
Eleventh Appellate District 

Court of Appeals Case 
Nos. 2008-L-007, 2008-L-008 
Consolidated 

IF 

F© 

JUL 12 2010 

CLERK OF COURT 

SUPREME COURT OF OHIO 

MERIT BRIEF OF 
DEFENDANT-APPELLANT-CROSS-APPELLEE STATE OF OHIO 



RICHARD CORDRAY (0038034) 
Attomey General of Ohio 

KATHLEEN M. TRAFFORD (0021753) 
Porter, Wright, Morris & Arthur, LLP 
41 S. High Street 
Columbus, Ohio 43215 
614-227-1915 
614-227-2100 fax 
ktrafford@porterwright.com 

Special Counsel for Defendants


Appellants-Cross-Appellees, 
Ohio Department of Natural Resources and 
Sean Logan, Director 

JAMES F. LANG (0059668) 
FRITZ E. BERCKMUELLER (0081530) 
Calfee, Halter & Griswold LLP 
1400 McDonald Investment Center 
800 Superior Avenue 
Cleveland, Ohio 44114-2688 
216-622-8200 
216-241-0816 fax 
jlang@calfee.com 

Class Counsel and Counsel for Plaintiffs-
Appellees, Robert Merrill, Trustee, et al. 

HOMER S. TAFT (0025112) 
20220 Center Ridge Road, Suite 300 

P.O. Box 16216 
Rocky River, Ohio 44116 
440-333-1333 
440-409-0286 fax 
hstaft@yahoo.com 
Intervening Plaintiff-AppelleeCross-
Appellant, Pro Se 

L. SCOT DUNCAN (0075158) 
1530 Willow Drive 
Sandusky, Ohio 44870 
419-627-2945 
419-625-2904 fax 
scotduncan@alum.mit.edu 
Intervening Plaintiff-Appellee, Pro Se and 
Counsel for Intervening Plaintiff-Appellee, 
Darla J. Duncan 

RICHARD CORDRAY (0038034) 
Attorney General of Ohio 

BENJAMIN C. MIZER* (0083089) 
Solicitor General 

*Counsel of Record 

STEPHEN P. CARNEY (0063460) 
Deputy Solicitor 
CYNTHIA K. FRAZZINI (0066398) 
Assistant Attorney General 
30 East Broad Street, 17th Floor 
Columbus, Ohio 43215 
614-466-8980 
614-466-5087 fax 
benj amin.mizer@ohioattorneygeneral. gov 

Counsel for Defendant-AppellantCross-
Appellee, State of Ohio 

NEIL S. KAGAN* (pro hac vice pending) 
*Counsel ofRecord 

Senior Counsel 
National Wildlife Federation 
Great Lakes Regional Center 
213 West Liberty Street, Suite 200 
Ann Arbor, Michigan 48104 
734-887-7106 
734-887-7199 fax 
kagan@nwf.org 

PETER A. PRECARIO (0027080) 
326 South High Street 
Annex, Suite 100 
Columbus, Ohio 43215 
614-224-7883 
614-224-4510 fax 
precariolaw@aol.com 

Counsel for Intervening Defendants


Appellants-Cross-Appellees, 
National Wildlife Federation and 
Ohio Environmental Council 


TABLE OF CONTENTS 


Page 

TABLE OF CONTENTS .....................................:........................................................................... i 
TABLE OF AUTHORITIES .......................................................:................................................. iv 
INTRODUCTION ...........................................................................................................................1 
STATEMENT OF THE CASE AND FACTS ...................................................:..................:.........4 


A. Landowners sued the State over the scope of the State's public-trust ownership of 
Lake Erie . .....................................:.......................................................................................4 
B. Before the trial court ruled, ODNR changed its regulatory approach, and the State 
and ODNR chose to litigate separately ................................................................................ 6 
C. The trial court rejected all parties' definitions of the boundaries and adopted a 
momentary "water's edge" boundary for all purposes, and it reserved issues such as 
the State's possible liability for future detennination within this case ......:...:.....................8 
D. The appeals court ejected the State from the case, holding that the State had no 
"standing" and that the Attorney General could not represent the State here . ..................10 
E. The appeals court adopted the momentary water's edge as the boundary for both the 
State's title and its public trust authority, and it granted lakefront owners absolute 
right over Lake Erie lands that are artificially filled .......................................................... 11 
ARGUMENT ............... .................................................................................................................. 12 


Defendant-Appellant State of Ohio's Proposition of Law No. 1: 

Any defendant against whom judgment is entered has standing to appeal, including 
the State of Ohio when it is named independent of a specifac agency, and including 
when the State's broader interests exceed an agency's administrative interests. In 
all such cases, the Attorney General represents the State, and his authority to 
proceed does not require case-by-case instructions from the Governor or the 
General Assembly . .........:.........................................................:................................:........12 

A. The State is a party independent of ODNR . ......................................................... ............. 12 
1. Plaintiffs sued the State, and the trial court granted relief against the State after 
ODNR changed its approach . ................. .................................................................... 13 
2. The State was entitled to appeal, and to participate as an Appellee, because it 
was a party aggrieved by the trial court order . .....................:......................:..............15 

B. The Attorney General represents the State and decides its litigation strategy, and the 
State's position is not controlled by the Governor, ODNR, or any other agency ..............16 
1. The Attorney General represents the State whenever it is sued . ................:...............16 
2. ODNR's duty to administer issues regarding Lake Erie does not include the right 
to control the Attorney General's power to direct the State's litigation .....................18 
C. Plaintiffs cannot disclaim the State's party status after relying on it both to secure the 
rulings below and to seek further relief on remand . ...............................:..........................19 
Defendant-Appellant State of Ohio's Proposition of Law No. 2: 

Lake Erie, within the State's boundaries, belongs to the State of Ohio as proprietor 
in trust for the people of Ohio, and the State's public trust duties extend to the usual 
or ordinary high-water mark, and not the highest or lowest point to which the water 
rises or recedes or where the water stands at the moment. Further, although 
gradual, natural changes such as accretion may move that mark or natural 
shoreline, private landowners may not use fills or other artificial encroachments to 
move the boundary of public rights. Adjacent landowners do, however, possess 
special property rights, known as "littoral rights, " below the ordinary high-water 
mark that are not possessed by other members of the public and that are entitled to 
respect and certain protections even against the State ..:..........................:........:.:.............21 

The State has always held Lake Erie and its submerged lands as a public trust for the 
benefit of all Ohioans, and the main issue in this case is the boundary used to mark 
the Lake and its bed to protect the public trust consistently, even when the water is 
below its ordinary high-water level . .............................................................:...:................21 

1. Under federal law, Ohio received, upon admission to the Union, sovereign 
authority and title in trust to Lake Erie within its territorial boundaries, including 
submerged lands up to the ordinary high-water mark . .................:.............................23 
2. Because Ohio received a public trust obligation to preserve Lake Erie for the 
people of Ohio, Plaintiffs can succeed only by showing the clearest evidence 
that Ohio surrendered any aspect of title below the ordinary high-water mark. :.......28 
B. Ohio has always defined the landward boundary of Lake Erie, as a matter of law, as 
the ordinary high-water mark, as to both the public trust and the State's title . ..............:..30 
1. This Court held in Sloan v. Biemiller that the boundary of Lake Erie is the 
ordinary high-water mark . ..........................................................................................30 
2. The Court held in State v. Cleveland & Pittsburgh Railroad Co. that only the 
General Assembly could address the State's Lake Erie authority, and it held that 
the State could not abandon its public trust obligations . ............................................33 
ii 


3. The General Assembly confirmed the Court's holdings by enacting the Fleming 
Act, and the Court then re-affirmed that the boundary had not changed . ..................34 
4. Every Great Lake State preserves the State's public trust up to the ordinary high-
water mark, including even "low-water" States that grant limited title below that 
point . ...:..................................................................................................................:....37 
5. The lower courts' altemative boundary of the momentary water's edge has no 
support in law and is impractical for all parties, including the adjacent property 
owners ......................................:....:...:...............................:.........................................39 
C. The State retains title over the artificially-filled lands of Lake Erie, and only gradual, 
natural accretion transfers title to littoral owners . .....:..................:....................................42 
D. All parties' rights are best protected and balanced by Ohio's longstanding public 
trust doctrine, with the boundary properly set at the ordinary high-water mark, and 
while the Court need not resolve here the precise substantive scope of the 
overlapping rights within the State's public trust area, the lakefront owners' special 
littoral rights, which extend below the ordinary high-water mark, must always be 
protected, even against the State and the public . ...............................................................45 
CONCLUSION ..............................................................................................................................50 


CERTIFICATE OF SERVICE ..................................................................................:...unnumbered 


APPENDIX 
Ex. I Joint Notice of Appeal, October 7, 2009 ................:................................................. A-1 
Ex. 2 Eleventh Appellate District Judgment Entry, August 24, 2009 ................................ A-5 
Ex. 3 Eleventh Appellate District Opinion, August 24, 2009 ....................:....................... A-7 
Ex. 4 Lake County Court of Common Pleas Order, June 9, 2006 ..:................................ A-40 
Ex. 5 Lake County Court of Common Pleas Order Certifying Class Action, 

June 9, 2006 .............................:................................:...................................... A-117 
Ex. 6 R.C. 1506.10 ...............................................:.....................................:................... A-121 
Ex. 7 R.C. 1506.11 ..........:........................................:................................................:.... A-122 


iii 


TABLE OF AUTHORITIES 


Cases Page(s) 

Appleby v. City of New York (1926), 

271 U.S. 364 .........................................................................................................................30 


Baumhart v. McClure (6th Dist. 1926), 
21 Ohio App. 491 ................................:................:................................................................44 

Borax Consol., Ltd. v. Los Angeles ( 1935), 

296 U.S. 10 ..............................................:......................................................................26, 27 


Denovchek v. Bd of Trumbull County Comm'rs ( 1988), 

36 Ohio St. 3d 14 ...................................:...............:...............................................:..............15 


Freeland v. Pa. R.R. Co. (1901), 

197 Pa. 529 .........................................................................................................:.................3 8 


Gavit v. Chambers ( 1828), 

3 Ohio 495 ....................:.......................................................................................................32 


Glass v. Goeckel (2005), 
473 Mich. 667 .................................................................................................................24, 38 

Greer-Burger v. Temesi, 

116 Ohio St. 3d 324, 2007-Ohio-6442 ..........................................:............:.........................20 


Hortman v. City ofMiamisburg, 

110 Ohio St. 3d 194, 2006-Ohio-4251 .......................:.........................................................30 


Idaho v. Coeur d'Alene Tribe (1997), 

521 U.S. 261 ...:.....................................................................................................................25 


Ill. Cent. R.R. Co. v. Ill. (1892), 

146 U.S. 387 ..........................................................................................:.......:................ 25-26 


Ill. Cent. R.R. v. Chicago (1900), 

176 U.S. 646 .............:.....................................................................................................27, 29 


Lake Front-East 55 St. Corp. v. Cleveland (1939), 

21 Ohio Op. 1, 7 Ohio Supp. 17 .................................................... ....................................... 40 


Martin v. Lessee of Waddell ( 1842), 

41 U.S. 367 ....................:........................................................:..........................:..................30 


Oregon ex rel. State Land Bd v. Corvallis Sand & Gravel Co. (1977), 

429 U.S. 363 .........................................................................................................................25 


iv 



Phillips Petroleum Co. v. Mississippi ( 1988), 

484 U.S. 469 .................:.............................................................:...................................24, 26 


Pollard v. Hagan (1845), 

44 U.S. 212 .............:.............................................................................................................29 


Seaman v. Smith ( 1860), 

24111.521 ......................:.......................................................................................................32 


Shively v Bowlby ( 1894), 
152 U.S. 1 ........ ................................................................................................... ...... 24, 25, 37 

Sloan v. Biemiller (1878), 

34 Ohio St. 492 ......................................................... ...................................... .............. passim 


Sprague v. Nelson (1924), 

6Pa.D.&C.493 ..................................................................................................................38 


State ex rel. Cordray v. Marshall, 

123 Ohio St. 3d 229, 2009-Ohio-4986 ..... ............................................................................ 17 


State ex rel Doerfler v. Price (1920), 

101 Ohio St. 50 .:.......................................:....:................................................................ 16-17 


State ex rel. Duffy v. Lakefront East Fifty-Fifth Street Corp. (1940), 

137 Ohio St. 8 .......................:......................................:...:..............................................19, 41 


State ex rel. Gabriel v. City of'Youngstown ( 1996), 

75 Ohio St. 3d 618 ................................................................................................................15 


State ex rel. Merrill v. Ohio Dep't ofNatural Res. (11th Dist.), 

2009-Ohio-4256 .........................:.....................................:............................................ passim 


State ex rel. Squire v. Cleveland ( 1948), 

150 Ohio St. 303 ...................................................:....................................:........19, 36, 43, 46 


State v. Cleveland & Pittsburgh R.R. Co. (1916), 
94 Ohio St. 61 ("C&P R.R. Co.") :......................................:.:.......................:............... passim 

State v. Korrer (1914), 

127 Minn. 60 ..:................................................................................................................37, 38 
Stop the Beach Renourishment, Inc. v. Fla. Dep't ofEnvtl. Prot., Case No. 08-1151 
(June 17, 2010), 2010 U.S. Lexis 4971 ...:.........:.............................:.....:...................... passim 
The L&N Rd. Co. v. City of Cincinnati (1907), 

76 Ohio St. 481 ..................:.....:............................................................................................34 


v 


Thomas v. Sanders (6th Dist. 1979), 
65 Ohio App. 2d 5 ............ ..................................................................................................... 36 

United States v. 461.42 Acres of Land (N.D. Ohio 1963), 
222 F. Supp. 55 .................. ............................................................................................. 41, 44 

Constitutional Provisions, Statutes, and Rules 

43 U.S.C. ¤ 1301(a)(1) ...................................................................................................................26 
43 U.S.C. ¤ 1301(a)(2) ............................................................................................:................26, 27 
43 U.S.C. ¤ 1301(a)(3) .... ......................................................................................................... 26, 27 
43 U.S.C. ¤ 1311(a)(1) ............................................... .................................................................... 26 
43 U.S.C. ¤ 1311(a)(2) .......................................................................................:..:........:...............26 


G.C. 3699-1 ...................................................................................................:..................:.......13, 35 


G.C. 3699-2 ................:.....:....................................................................................................:..13, 35 


G.C. 3699-3 ..............................................................................................................................13, 3 5 


G.C. 3699-4 ............................................ .................................................................................. 13, 35 


G.C. 3699-5 ............................................................:.................................................................13, 35 


G.C. 3699-6 ..............................................................................................................................13, 35 


G.C. 3 69 9-7 ........ ............................................................................................................................ 3 5 


G.C. 3699-8 ....................................................:.....................:...................:.......................:............3 5 


G. C. 3 699- 9 ...........................................:..:.........................................................:..........................3 5 


G.C. 3699-a ................... ........................ ................................................... ................................ 13, 35 
Minn. Stat. ¤ 103G.005-14 ............. ............................................................................................... 38 
Ohio's Administrative Procedure Act, R.C. Chapter 119 ("APA") ....................... .............. ......... 19 


R.C. 109.02 ..................................................................................:.......................................6, 17, 18 


R.C. 109.07 ...........:.....................................................................................:.........:.........................6 


R.C. 1506.10 ...........................................:.............................................................................. passim 


R.C. 1506.11 ........................................ .......................................................................... 6, 13, 14, 35 


vi 



R.C. 15 06.11(A) .............................................................................................................................43 


R.C. 1506.11(B) .............................................................................................................................48 


R.C. 1531.06 .................................................................................................................................29 


R.C. 1531.07 .................................................................................................................................29 


R.C. 1531.08 ......................................................................................................................:..........29 


R.C. 1533.32 et. seq ..................................................................... ................................................. .29 
Section I, Article III; Ohio Constitution ........................................................................................16 
Submerged Lands Act of 1953, 43 U.S.C. ¤¤ 1301-1315 .............................................................26 


Other Authorities 

2000 Op. Att'y Gen. No. 2000-047 ..., ....................,....................................................:.................29 


H.B. 206, 126th General Assembly (2005-2006) ...................................................... ..................... .4 


H.B. 218, 125th General Assembly (2003-2004) ............................................................................4 


H.B. 583, 124th General Assembly (2001-2002) ........................... ................................................. 4 


July 13, 2007 Press Release, "Goveruor Strickland Announces New Regulatory Policy for 
Coastal Land Management," available at http://ohio.gov/news/2007/jul.stm (last 
visited July 9, 2010) ..........................................................................................:................. 7-8 

Kenneth T. Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. 
Rev. 1(publication forthcoming), available at SSRN: http://ssrn.com/abstract=160402 ....37 

S.B. 127, 126th General Assembly (2005-2006) .................................................:......:....................4 


S.B. 189, 127th General Assembly (2007-2008) ..................................................................:..........4 


Thomas, The Institutes of Justinian, Text, Translation and Commentary (Amsterdam: 
North-Holland Publishing Company, 1975) ................................................................... 23-24 

vii 


INTRODUCTION 


Lake Erie is one of Ohio's greatest natural assets, and no one doubts the importance of 
protecting the Lake for future generations. Further, no one doubts that all parties here have 
important rights and responsibilities regarding the Lake, even if the parties dispute key aspects of 
those rights. Plaintiffs, landowners who own private property along the lakefront, do not dispute 
that the State owns the Lake as a public trust for the good of all Ohioans. The State does not 
dispute-and indeed vigorously supports-the landowners' rights to their own land, along with 
their special littoral rights to access and use the public Lake in ways that the general public may 
not. The dispute arises because the courts below radically relocated the physical line used to 
define the Lake itself, and thus the point where the State's special public trust authority over the 
Lake begins and ends. The State does not seek to take anyone's land; it simply asks the Court to 
re-affirm the centuries-old definition of the Lake and the public trust, to restore a balance of 
everyone's overlapping rights. 

Before reaching that issue, the Court should reverse the appeals court's mistaken ejection 
of the State from the case. The State is a proper party, separate from the Ohio Department of 
Natural Resources and its Director (together, "ODNR"), because Plaintiffs sued "the State of 
Ohio" separately, seeking and obtaining relief that runs against the State and its public trust and 
ownership interests. The Attorney General rightly represents the State because he has the 
constitutional power and duty to defend the State when it is sued, and nothing about this case 
transfers that duty to the ODNR, the Governor, or anyone else. 

With that threshold issue resolved, the Court should re-affirm that the State's public trust 

authority over Lake Erie extends to a line called the "ordinary high-water mark," and that the 

rights below that point are overlapping and balanced. Both courts below erred in redefining the 

boundary of the "territory" of Lake Erie in a way that abolished long-held public-trust rights that 


exist up to the ordinary high-water mark, and that redefinition upset the careful balance among 
the legitimate rights of the landowners, the State, and the public. Ohio law has always 
recognized that the State holds, as a public trust, Lake Erie and the land underneath the Lake. 
The dispute here is simply over the boundary of that public trust. 

The Court should maintain Ohio's traditional rule, which defines the Lake to include all 
areas that are submerged when the Lake is at its ordinary high-water mark. This rule is not only 
well-established by case law, statute, and tradition, but it has proved workable over time because 
it is sensible. The appeals court's contrary view says that the boundary moves with every 
minimal, momentary change-that is, even if the water drops a few feet for a few days, the State 
loses all title and all public trust authority for those few feet over those days. That view defies 
both settled law and common sense. 

The State's view is not only the better legal and practical position, but it is also the 
balanced one, as it fully recognizes and protects the lakefront owners' special rights, on their 
land and even into the Lake. The appeals court's extreme view, by contrast, draws a sharp (but 
moving) line: It fully eliminates the State's public trust at the water's edge. The State's 
balanced view places the boundary at the ordinary high-water mark as a physical matter, but that 
is merely the starting point for proper treatment of the overlapping rights and responsibilities that 
apply within the public trust area. Lakefront owners have littoral rights, not shared with the 
public, that extend past that boundary and even down into the water, such as the rights to wharf 
out or build piers, to consume reasonable amounts of water, and so on. These littoral rights are 
entitled to respect and certain protections-even against the State. And while the public trust 
allows all citizens to enjoy the Lake, those rights are limited, and they cannot be used to interfere 
with the littoral owners' rights. 

2 


Thus, this case is not about taking away anyone's land, and it is not about forcing 
landowners to accept campers in their backyard. It is simply about accepting the traditional 
definition of Lake Erie to include the lakebed, as that boundary was defined at the common law, 
and protecting all private and public rights along the Lake Erie shore. 

The Court should reverse the court below in both respects. It should re-affirm the Attorney 
General's traditional power and duty to represent the State of Ohio, and it should re-affirm the 
State's traditional power and duty to protect Lake Erie in a balanced manner that recognizes and 
respects both the public's rights and the special legal rights of adjacentproperry owners. 


STATEMENT OF THE CASE AND FACTS 


A. Landowners sued the State over the scope of the State's public-trust ownership of 
Lake Erie. 
This case began when two sets of plaintiffs, owners of property bordering Lake Erie, filed 
parallel suits in Lake County in May 2004. State ex rel. Merrill v. State, Lake County Court of 
Common Pleas No. 04CV001080; State ex rel. Taft v. State, Lake County Court of Common 
Pleas No. 04CV001081. Both complaints named three defendants: (1) ODNR, (2) ODNR's 
Director, and (3) the State of Ohio. Complaint, Merrill Trial Docket Entry ("Tr. Dkt.") 12, May 
28, 2004, and First Amended Complaint ("OLG FAC"), Merrill Tr. Dkt. 22, July 2, 2004, 
Supplement ("Supp.") S-7; Complaint ("Taft Compl."), Taft Tr. Dkt., May 28, 2004, Supp. S-18. 
The cases were consolidated, and the National Wildlife Federation and the Ohio Environmental 
Council (together, "NWF") intervened as defendants. Order Consolidating Cases, Merrill Tr. 
Dkt. 32, Aug. 12, 2004; Order Granting Motion to Intervene, Merrill Tr. Dkt. 148, Jan. 10, 2007. 
(All Tr. Dkt. references below are to the Merrill docket except where noted.)1 

In both cases, plaintiffs sought declaratory relief regarding the boundary of the State's 
public trust authority over Lake Erie, the boundaries of the State's and the lakefront owners' 
titles, and the consequent rights of the owners, the State, and the public along the Lake Erie 
shoreline. In particular, the Merrill plaintiffs sought declarations that "the interest of the state as 
trustee over the public trust applies to the waters of Lake Erie and does not apply to or include 
non-submerged lands," and that "ODNR lacks authority" to lease to lakefront owners any 

1 Before suing, several plaintiffs asked the General Assembly to enact the outcome that they now 
seek from the judicial branch. Several bills were introduced, but the General Assembly did not 
pass them, nor has it passed the bills introduced while this case has proceeded. See H.B. 583, 
124th General Assembly (2001-2002); H.B. 218, 125th General Assembly (2003-2004); S.B. 
127 and H.B. 206, 126th General Assembly (2005-2006); and S.B. 189, 127th General Assembly 
(2007-2008). 

4 


property that Plaintiffs claimed they "already owned." OLG FAC at 9, Prayer for Relief, ¦ 2, 
Supp. S-15. Plaintiffs claimed that the State's use of the "ordinary high-water mark" as a 
boundary amounted to a taking of their property. Consequently, they sought mandamus to force 
ODNR to file appropriation proceedings in probate courts in the lakefront counties, in which 
Plaintiffs could recover compensation for the taking. Id. at 10, ¦ 3. The Taft plaintiffs made 
similar claims and sought similar relief See Taft Compl. at 2-10, Supp. S-19-S-26. 

The trial court, following the parties' stipulation, certified the case as a class action on 
limited issues. Joint Stipulation to Class Cert., Tr. Dkt. 122, June 8, 2006; Class Certification 
Order, Tr. Dkt. 123, June 9, 2006, Apx. Ex. 5, A-117. It defined the class as "all persons ... 
excepting the State of Ohio and any state agency . . . who are owners of littoral property 
bordering Lake Erie ... within the territorial boundaries of the State." Class Cert. Order at 2, 
A-118? The trial court noted the parties' stipulation that "`upland property' is defined as real 
property bordering a body of water and that, in Ohio, `littoral property' is defined as upland 
property that borders an ocean, sea, lake, or a bay of any of these water bodies, as opposed to 
`riparian property' which is defined as upland property that borders a river, stream, or other such 
watercourse." Id. at n.1. The court then certified three questions of law: 

(1) What constitutes the furthest landward boundary of the "territory" as that term 
appears in R.C. 1506.10 and 1506.11, including, but not limited to, interpretation of 
the ternis "southerly shore" in R.C. 1506.10, "waters of Lake Erie" in R.C. 1506.10, 
"lands presently underlying the waters of Lake Erie" in R.C. 1506.11, "lands 
2 The court's class certification named the Merrill plaintiffs as class representatives. The named 
plaintiffs in Merrill include Robert Merrill, eleven other named property owners, and the Ohio 
Lakefront Group, an association of lakefront property owners. The State refers to this group 
collectively as "Ohio Lakefront Group" or "OLG," as the class plaintiffs have done in their 
briefs. Plaintiffs Taft and the Duncans have continued to litigate separately from OLG at all 
stages; the Duncans filed jointly with Taft in the trial court but separated from him on appeal. 
The State uses the term "Plaintiffs" where applicable to all, including OLG, Taft, and the 
Duncans. 

5 


formerly underlying the waters of Lake Erie and now artificially filled" in R.C. 
1506.11, and "natural shoreline" in R.C. 1506.10 and 1506.11. 

(2) If the furthest landward boundary of the "territory" is declared to be the natural 
location of the ordinary high water mark as a matter of law, may that line be located 
at the present time using the elevation of 573.4 feet IGLD (1985), and does the State 
of Ohio hold title to all such "territory" as proprietor in trust for the people of the 
State. 
(3) What are the respective rights and responsibilities of the class members, the 
State of Ohio, and the people of the State in the "territory." 
Id. at 2-3, A-118-19. 

B. Before the trial court ruled, ODNR changed its regulatory approach, and the State 
and ODNR chose to litigate separately. 
When the case began, the Attorney General represented all three State Defendants through 
assigned assistant attorneys general, pursuant to his duty to represent the State and its entities in 
legal proceedings, under both the Constitution and R.C. 109.02. The representation continued in 
that form from May 2004 to July 2007. In July 2007, after all sides filed various summary 
judgment motions, the State Defendants decided to pursue different paths. At that time, the 
Attomey General exercised his power under R.C. 109.07 to appoint special counsel to represent 
ODNR. 

When representation diverged, the State and ODNR filed two documents, both of which 
explained their understanding of ODNR's new posture and the State's continued, separate 

litigation track. First, the State and ODNR filed a joint notice about the change in representation. 
See Notice of Substitution of Counsel for Defendants-Respondents Ohio Department of Natural 
Resources and Sean Logan, Director of Natural Resources ("ODNR Counsel Notice"), Tr. Dkt. 
169, July 16, 2007, Supp. S-1. That Notice explained in full: 

Please take notice that Kathleen M. Trafford of Porter, Wright, Morris & Arthur LLP 
is hereby entering her Notice of Appearance on behalf of Defendants-Respondents 
Ohio Departrnent of Natural Resources and Sean Logan, Director of Natural 
Resources, pursuant to an appointment by Ohio Attorney Marc Dann as Outside 

6 


Counsel for these Defendants-Respondents. Defendant-Respondent State of Ohio 
will continue to be represented by Ohio Attorney General Marc Dann and Assistant 
Attorneys General Cynthia K. Frazzini and John P. Bartley. Please serve all notices, 
pleadings, motions and other documents filed with the Court upon Ms. Trafford at the 
address indicated below. 

Id. The Notice was separately signed by counsel for ODNR and for the State. 

Second, on the same day that the parties filed the ODNR Counsel Notice, ODNR filed a 
response to the pending summary judgment motions, explaining ODNR's new litigating and 
regulatory positions. Response of Defendants-Respondents Ohio Department of Natural 
Resources and Sean Logan, Director of Natural Resources, to the Pending Motions for Summary 
Judgment at 1-2 ("ODNR MSJ Resp."), Tr. Dkt. 170, July 16, 2007, Supp. S-4. ODNR's new 
litigating position was that it would no longer participate in the ongoing boundary dispute. Id. at 
2, Supp. S-5. ODNR "welcome[d] the Court's resolution" of the dispute, and it noted that the 
Court could rely on the "able and exhaustive briefs by the Plaintiffs-Relators on behalf of the 
lakefront owners and the Attorney General on behalf of the State of Ohio." Id. ODNR's new 
regulatory position was to honor the lakefront owners' "apparently valid real property deeds ... 
unless a court determines that the deeds are limited by or subject to the public's interests in those 
lands or are otherwise defective or unenforceable." Id. 

ODNR's summary judgment response noted that ODNR was "acting with the consent and 
direction of Governor Ted Strickland," and, consistent with that position, the Governor issued a 
press release that further detailed his and ODNR's regulatory and litigation approaches. See July 
13, 2007 Press Release, "Governor Strickland Announces New Regulatory Policy for Coastal 
Land Management," available at http://ohio.gov/news/2007/jul.stm (last visited July 9, 2010) 
(attached as Ex. 3 to State's Reply at Supplemental Jur. Stage). The release explained that "[t]he 
Attorney General, in his role as counsel to the State of Ohio, has informed the Governor that his 

7 



office will continue to pursue its current position in support of the public trust lands doctrine." 

Id. 

After ODNR and the State diverged, the parties continued to litigate the summary judgment 
motions and other disputes in the trial court, and no party suggested that the State was not a party 
or that the controversy had evaporated. OLG filed two separate summary judgment briefs after 
the divergence, a brief opposing the State's summary judgment motion and a reply brief 
supporting OLG's own summary judgment motion. Tr. Dkt. 178, July 19, 2007; Tr. Dkt. 180, 
July 31, 2007. Neither brief raised any issues regarding the State's status as a party or 
questioning the continued existence of a live controversy. In particular, OLG's reply brief noted 
that the State of Ohio continued to litigate separately to resolve the boundary and public trust 
issue, and that "ODNR awaits the Court's determination as to whether ODNR's acceptance of 
presumptively valid deeds is lawful." OLG Reply, Tr. Dkt. 180, July 30, 2007, at 1 n.1. 

C. The trial court rejected all parties' definitions of the boundaries and adopted a 
momentary "water's edge" boundary for all purposes, and it reserved issues such as 
the State's possible liability for future determination within this case. 
On the merits, the State separately maintained that its public title and the public's rights run 
to the "ordinary high-water mark"-that is, the usual reach of high water established over time, 
not the momentary water's edge, and not the highest or lowest point to which the water rises or 
falls. Plaintiffs, on the other hand, claimed that the boundary was the "low-water mark," even 
when that mark was below the water, with no public trust rights above that point. See OLG SJ 
Mot., Tr. Dkt. 165, May 30, 2007, at 11-16; Taft and Duncans SJ Mot., Tr. Dkt. 168, June 15, 
2007, at 3. Plaintiffs diverged, however, in describing the low-water mark: The OLG described 
it as the "low-water mark," but without advocating any more specific definition. See OLG SJ 
Mot. at 15 n. 11. Taft and the Duncans said the boundary was the "level of low water, or the low 
water mark, as it existed at the time of statehood in 1803, or at any lower level to which the 

8 



water has since receded." Taft and Duncans SJ Mot. at 3. As noted above, ODNR took a neutral 
posture as to the boundary disputes, stating that it would "carry out [its] statutory duties 
consistent with the Court's ultimate declarations." ODNR SJ Resp. at 2, Supp. S-5. 

The trial court rejected all parties' suggested boundaries, declining to recognize the 
ordinary high-water mark or any version of a low-water mark. See Summary Judgment Order, 
Tr. Dkt. 183, Dec. 11, 2007 ("Com. P1. Op."), Apx. Ex. 4, A-40, at 69. It ruled that the most 
landward boundary of Lake Erie held in trust by the State of Ohio is "the water's edge, which 
means the most landward place where the lake water actually touches the land at any given 
time." Id. at 71-72. In other words, it held that the lakefront owners hold title in fee simple-
with no subservience to the public trust or any public rights-down to the "water's edge ... at 
any given moment." Id. at 74-75. 

The trial court went further and reformed the legal descriptions in all class members' deeds 
to reflect ownership "to the water's edge as it existed when the deed was filed." Id. at 74. The 
court noted that artificial fill could not be used to move the line, referringto the "landward 
boundary where the lake water actually touched the land, notwithstanding any subsequent 
artificial filling of those lands." Id. at 72. It also ordered that the owners can "exclude others 
from using the shore down to the water's edge." Id. at 60. 

The trial court also entered relief against the State in multiple ways. It barred the State 

from exercising any "public trust" rights inconsistent with the "water's edge" regime. Id. at 74. 

It specifically reserved, for future proceedings in this case, Plaintiffs' claims that the State had 

committed a "taking" of their land and Plaintiffs' claims for damages, whether as compensation 

for the alleged taking or under any other damages theory. Id. at 75-76. 

9 



Both OLG and Plaintiff Taft appealed, listing the State,of Ohio as an appellee. See OLG 
Notice of Appeal, Tr. Dkt. 200-01, Jan. 18, 2008; Taft Notice of Appeal, Tr. Dkt. 199, Jan. 18, 
2008. The State appealed, and NWF separately appealed as well. State Notice of Appeal, Tr. 
Dkt. 192, Jan. 8, 2008; NWF Notice of Appeal, Tr. Dkt. 189, Jan. 8, 2008. 

D. The appeals court ejected the State from the case, holding that the State had no 
"standing" and that the Attorney General could not represent the State here. 
On appeal, the appeals court ejected the State from the case, although no Plaintiff assigned 
as error the State's continued litigation after ODNR's changed approach. State ex rel. Merrill v. 
Ohio Dep't ofNatural Res. (11th Dist.), 2009-Ohio-4256 ("App. Op."), Apx. Ex. 3, A-7. (Taft's 
appellee brief included a footnote questioning the Attorney General's authority to proceed, 
describing it as "unclear," but he did not assign it as an error. See Taft Answer (Appellee's) Br. 
(filed in 11th Dist. Case No. 07-L-008) at 1 n.1.) The appeals court initially questioned "whether 
the state of Ohio has standing to participate in this appeal," and "conclude[d] it does not." App. 
Op. at ¦ 41. The court cited case law governing a plaintiff's "standing to sue," id. at ¦ 43, 
without noting that the State was sued here as a defendant. The court then stated that the 
"Attorney General may only act at the behest of the Governor or General Assembly." Id. at ¦ 44. 
The court concluded that, because "[t]he governor has ordered ODNR to cease those activities 
that made it a party to the action," the Attomey General has "no authority ... to prosecute this 
matter on his own behalf." Id. Finally, returning to what it called "standing," the court held that 
"the state of Ohio no longer has standing in this matter," and it struck the State's briefs and 
assignments of error. Id. 
Judge Cannon, dissenting on this point, stated that this issue was "not raised by any party," 
id at ¦ 135, and that "[t]he state of Ohio is a named defendant," id. at ¦ 136. 

10 


E. The appeals court adopted the momentary water's edge as the boundary for both the 
State's title and its public trust authority, and it granted lakefront owners absolute 
right over Lake Erie lands that are artificially filled. 
The appeals court then addressed the merits of the boundary issues, relying on NWF's 
status as an intervenor. The court adopted most of the trial court's holdings, including a unitary 
boundary of the "actual water's edge" at a given moment. App. Op. at ¦ 127. It held that this 
boundary limited the State's "public trust," so that only the water itself and "lands under the 
waters of Lake Erie, when submerged under such waters, are subject to the public trust." Id. 
(emphasis added). But it departed from the trial court's ruling in significant respects: (1) it did 
not define "water's edge" as fixed at the time the deeds were filed, id.; (2) it did not define 
"water's edge" as a definitive boundary at all times, but only when it stands between the "high 
and low water mark," id.; (3) it vacated the trial court's order reforming the legal descriptions in 
the owners' deeds, which it held should be resolved individually, id at ¦ 103; and (4) it disagreed 
with the trial court about the effects of artificial fill, suggesting that owners who deposited 
artificial fill, thus moving the water's edge from where it had been, were entitled to own the 
newly-filled area in fee simple, with such areas no longer subject to the State's public trust 
authority, id at ¦ 127.3 

The State appealed to this Court, as did NWF and ODNR. Taft cross-appealed. The Court 
ordered supplemental briefing regarding the State's appeal, and the Court granted all parties' 
appeals and cross-appeals. See Order of Dec. 23, 2009 (ordering briefing on two specific 
questions); Order of Mar. 3, 2010 (granting review). 

3 The lower courts did not reach the second question of law that the trial court had certified for 
class treatment; that question concerns the method used to locate the ordinary high-water mark. 
Both courts found that the issue was moot because that mark, under their approach, has no legal 
meaning. Consequently, that issue is not before the Court here, although it will again become a 
live issue on remand if the Court restores the ordinary high-water mark as the relevant boundary. 

11 



ARGUMENT 


The Court should reverse the appeals court on both issues in the State's appeal. First, the 
Court should hold that the State of Ohio is a proper party here, independent of ODNR, and that 
the Attorney General represents the State. Second, the Court should hold, as it always has, that 
the State's public trust authority over Lake Erie includes all lands that are submerged when the 
Lake is at its ordinary high-water mark. The State does not lose and regain its public trust 
authority day-to-day when the momentary "water's edge" fluctuates between the low-water mark 
and the ordinary high-water mark. 
Defendant-Appellant State of Ohio's Proposition of Law No. 1: 

Any defendant against whom judgment is entered has standing to appeal, including the 
State of Ohio when it is named independent of a specific agency, and including when the 
State's broader interests exceed an agency's administrative interests. In all such cases, the 
Attorney General represents the State, and his authority to proceed does not require case-
by-case instructions from the Governor or the General Assembly. 

A. The State is a party independent of ODNR. 
The State here is, and always has been, a party separate from ODNR. As an initial matter, 
the issue here is not a plaintiff s"standing to sue," see App. Op. at ¦ 43, nor is it the Attorney 
General's right to sue "on his own behalf," id. at ¦ 44. Rather, Plaintiffs themselves sued "the 
State of Ohio" as a defendant, and the Attorney General has always proceeded in the State's 
name, not his own. Therefore, the issue is the State's status, beginning in the trial court, both 
before and after ODNR's changed approach, and the State's consequent right both to appeal the 
judgment against it and to participate as an appellee. At all stages, the State has been, and 
continues to be, a separate party, because Plaintiffs have always sought relief from the State. 

12 



1. Plaintiffs sued the State, and the trial court granted relief against the State after 
ODNR changed its approach. 
First, Plaintiffs sued "the State of Ohio" and sought relief from the State. All Plaintiffs 
named three Defendants: ODNR, its Director, and the State of Ohio. Notably, while OLG stated 
its factual allegations in terms of ODNR, it named "the state" as the target of its request for 
declaratory relief regarding the limits of the State's public trust authority. See FAC at 7¦ 32, 
Supp. S-13 (seeking declaration as to the "interest of the state as trustee over the public trust"); 
id at 9, Prayer for Relief, ¦ 2 (same), Supp. S-15. Plaintiffs Taft and Duncan similarly sued the 
State and sought relief from it, and they specified that the "state of Ohio" would have to pay for 
any alleged taking by ODNR. See Taft Complaint at 3 ¦ 5, Supp. S-20 (naming State separately 
from ODNR and defining all farther ODNR references to include the State); id at 8 ¦ 40 
(claiming that "if ODNR is entitled" to "take" the disputed territory, "then Plaintiffs have a clear 
right to receive compensation from the state of Ohio"); id at 9 Prayer for Relief; ¦ 2 (demanding 
:separate declarations that the "ownership interest of the state" is limited and that "ODNR lacks 

authority" as a result). 
Plaintiffs were correct to sue the State as a separate defendant, as the State of Ohio is the 
trustee as to the public trust over Lake Erie. The State currently has delegated to ODNR the duty 
to administer the trust, but it is the broader State that holds the trust. R.C. 1506.10-.11. 
Reflecting that broader trusteeship in the State as a whole, the General Assembly has, over the 
years, delegated that administrative responsibility to different agencies. It assigned it originally 
to municipal corporations along the lakefront, then to the Department of Public Works, then to 
the Department of Administrative Services, and now to ODNR. See G.C. 3699-1-6 eff. 1917 
amended and recodifled in 1955 as R.C. 721.04-.11 (delegating to municipal corporations); G.C. 
3699-a as first amended in 1945 and recodified in 1955 as R.C. 123.03-.031 (delegating to 

13 



department of public works); R.C. 123.03-.031 as amended in 1973 (delegating to department of 
administrative services); R.C. 123.03-.031 as amended and renumbered in 1989 as R.C. 1506.10-:
11 (delegating to department of natural resources). When OLG and other owners 
unsuccessfully sought a legislative grant of the disputed area (before suing instead), they asked 
the General Assembly to legislate; they did not ask ODNR for an administrative grant. 

Second, the State remained a party after ODNR changed its regulatory approach, and the 
parties and the trial court recognized that common-sense reality by continuing with the case. 
Plaintiffs did not challenge the State's authority to proceed after ODNR changed its approach, 
nor did Plaintiffs pursue any of the procedural options that would have been available-such as 
dismissal for mootness or a default judgment-if the State could not continue alone. 

Third, the trial court's order granted relief against "the State of Ohio" in several respects. 
Its concluding paragraphs were titled "(C) The rights of the State of Ohio," (D) "The 
responsibilities of the State of Ohio," "(E) The rights of the people of the State of Ohio," and 
"(F) The responsibilities of the people of the State of Ohio." Com. Pl. Op. at 74-75. The court 
addressed what it called "the limited authority" of the "State of Ohio" to "enact laws and 
regulations" regarding "the public trust ownership of the waters of Lake Erie." Id at 74 (ODNR, 
of course, has no power to "enact laws.") The court held that the "State of Ohio is prohibited 
from using its public trust ownership" in certain ways, and it purported to define the "rights and 
responsibilities of the people of the State of Ohio" pursuant to the public trust. Id. Such orders 
could not be binding without the State's presence as a defendant. 

The trial court also noted that several issues were reserved for fiirther proceedings, 

including whether the State must pay compensation for an alleged taking of property. Id. at 75. 

This discussion of possible future relief shows that Plaintiffs needed the State's presence not 

14 



only to reach the summary judgment decision after ODNR's policy change, but also to pursue all 
the relief sought in their Complaints 4 
After the trial court ruled, both OLG and Taft (but not the Duncans) appealed. They 
argued that the trial court should have designated the low-water mark as the boundary, not the 
water's edge. Both named "the State of Ohio" as appellee. See OLG Notice of Appeal, Tr. Dkt. 
200-01, Jan. 18, 2008; Taft Notice of Appeal, Tr. Dkt. 199, Jan. 18, 2008. 
All of this shows that the State was a party separate from ODNR in the trial court. 

2. The State was entitled to appeal, and to participate as an Appellee, because it 
was a party aggrieved by the trial court order. 
The State's status as a party on appeal flows naturally from its status as a party in the trial 
court. As the losing defendant in the trial court, the State was an aggrieved party entitled to 
appeal. 
The party with standing to appeal is the "party aggrieved by the final order appealed from." 
State ex rel. Gabriel v. City of Youngstown (1996), 75 Ohio St. 3d 618, 619. A party lacks 
appellate standing only when the party "is not prejudiced by the" appealed order. Denovchek v. 
Bd. of Trumbull County Comm'rs (1988), 36 Ohio St. 3d 14, 17. It is this "party aggrieved" 
test-not the appeals court's discussion of case law regarding "standing to sue," App. Op. at ¦ 
43-that applies here, because Plaintiffs sued the State. 
The State easily meets the "party aggrieved" test, because the trial court ordered relief that 
runs against the State, not ODNR. As detailed above, the trial court's own words phrased the 
relief as against the "State of Ohio," as well as against "the people" of Ohio. Com. Pl. Op. at 73


4 The trial court was mistaken in saying that valuation of the taking could occur in this case, 

although that mistake does not affect this appeal. Plaintiffs sought mandamus to force ODNR to 

initiate takings proceedings in another court, where valuation would be determined. See OLG 

FAC at 10, Prayer for Relief ¦¦ 3-4, Supp. S-16; Taft Compl. at 10, Prayer for Relief ¦¦ 3-4, 

Supp. S-26. 

15 


75. Moreover, the nature of the relief was such that it could only apply to the State as a whole, 
not ODNR, as the trial court purported to bind the State's public trust authority for all purposes, 
including future legislation. 
Also, the State had the additional right to participate as an appellee on the Plaintiffs' prossappeals. 
The appeals court held broadly that the State could not "participate" in the appeal, App. 
Op. at ¦ 41, and it struck the State's briefs in whole, id. at ¦ 43, without addressing any of the 
State's merits arguments, including those defending against the cross-appeal. The appeals court 
therefore did not even allow the State to defend those portions of the judgment on which the 

State had prevailed below. 

In sum, the State is a party here, so the question is, "who represents the State and decides 
its litigation strategy?" The answer, as explained below, is the Attoiney General. 

B. The Attorney General represents the State and decides its litigation strategy, and the 
State's position is not controlled by the Governor, ODNR, or any other agency. 
Because, as shown above, the State of Ohio is a proper party to this litigation, the only 
remaining question is who controls the State's litigation when the State is a party. The appeals 
court was mistaken to elide this distinction, and it was mistaken in suggesting that anyone other 
than the Attorney General directs the State's litigation. 

1. The Attorney General represents the State whenever it is sued. 
Several considerations establish that the Attorney General has the power and duty to 
represent the State when it is sued, as it was here. 
First, the Constitution creates the Attomey General as an officer independent of the 
Govemor and other offices. Section I, Article III, Ohio Constitution. "[T]he attorney general of 
Ohio is a constitutional officer of the state ... with such duties as usually pertain to an attorney 
general, and especially with those delegated to him by the general assembly of Ohio." State ex 

16 



reL Doerfler v. Price (1920), 101 Ohio St. 50, 57. These constitutionally-based duties 
"especially"-not solely-include powers added or clarified by statute. Id. The constitutional 
grant also sweeps in the recognized common-law powers of an attomey general. State ex rel. 
Cordray v. Marshall, 123 Ohio St. 3d 229, 2009-Ohio-4986, ¦ 19. 
Second, R.C. 109.02 confirms the Attorney General's constitutional role by broadly 
empowering the Attorney General to represent the State when it is a party, and by excluding 
other representation. It says that the "attorney general is the chief law officer for the state and all 
its departments," and that "no state officer ... or institution of the state shall employ, or be 
represented by, other counsel ... or attorneys at law." This language shows that "the state" is 
separate from "its departments," and it confirms that the Attorney General represents the State 
and her entities, for they cannot hire other counsel, and they cannot go unrepresented when sued. 
Revised Code 109.02 does not require the Attorney General to seek the Governor's 

permission to represent the State, as the appeals court would seem to have it. The statute 
provides that "[wJhen required by the governor or the general assembly, the attorney general 
shall appear for the state." (Emphasis added). This provision, however, merely supplies an 
additional way for the Attomey General to appear, such as when the State has an interest that 
warrants intervention or an amicus filing in a case in which the State is not a party. That 
additional mechanism does not require the Governor's permission to represent the State in all 
cases. In particular, reading R.C. 109.02 to require such approval would make no sense in cases 
that do not involve entities under the Governor's or the General Assembly's control, such as 
when someone sues the Auditor of State or this Court. The same is true when someone sues the 
State as a whole, which encompasses more than the Govemor's or the General Assembly's 
sphere of control. Such a reading also defies common sense, as the Attorney General often must 

17 



rush to court to defend against temporary restraining order or to file extensive pleadings within 
hours on urgent matters such as capital cases, election emergencies, and the like. Obtaining 
case-specific "permission slips" on every such case is not only impossible, it is also 
unprecedented over centuries of tradition and practice. 

But even if the Attorney General's duty to represent the State required the Govemor's 
approval (and it does not), such approval existed here. As the State detailed in supplemental 
briefing requested by this Court, and as summarized in the facts above, the Governor (and 
ODNR) fully supported the State's continued litigation here. See State's Supp. Jur. Mem. at 510; 
see also ODNR Supp. Jur. Br. at 2 (reiterating ONDR's and Governor's support of Attorney 
General's authority here); compare Taft Supp. Jur. Br. at 1("If the Governor `required' 
(requested or approved) the appeal," then Taft "would concede the appeal falls within the 
express requirements" of R.C. 109.02). ODNR's separate path was not contrary to the State's 
continued litigation; indeed, ODNR's approach expressly relied on the State's continued 
litigation. It "welcome[d] the Court's resolution" of the dispute, based on the "able and 
exhaustive briefs by the Plaintiffs-Relators on behalf of the lakefront owners and the Attorney 
General on behalf of the State of Ohio." ODNR SJ Resp. at 2, Supp. S-5. 

2. ODNR's duty to administer issues regarding Lake Erie does not include the 
right to control the Attorney General's power to direct the State's litigation. 
Nothing in R.C. 1506.10, which directs ODNR to manage the State's interests in Lake Erie, 
grants ODNR control over the State's litigation when the State of Ohio is validly a separate 
party. That provision directs ODNR to protect Lake Erie and to enforce the State's rights 
through regulatory or administrative management, not through control over litigation. It states: 
The department of natural resources is hereby designated as the state agency in all 
matters pertaining to the care, protection, and enforcement of the state's rights 

designated in this section. 

18 


Any order of the director of Natural Resources in any matter pertaining to the care, 
protection, and enforcement of the state's rights in that territory is a rule or 
adjudication within the meaning of sections 119.01 to 119.13 of the Revised Code. 

R.C. 1506.10 (emphasis added). The parallel use of the same clause shows that the phrase 
"enforcement of the state's rights" has the same meaning in both sentences. The second 
sentence, meanwhile, declares that all of the ODNR Director's actions under that power are rules 
or adjudications subject to Ohio's Administrative Procedure Act, R.C. Chapter 119 ("APA"). 
That commitment to APA review shows that the contemplated "enforcement" actions are 
regulatory ones, not litigation ones, as only such decisions can sensibly be subject to further 
review under Chapter 119. And while ODNR is of course a party in many cases challenging its 
specific regulatory actions, the Attorney General has, since the enactment of the statute that 
became R.C. 1506.10, represented the State's interests in Lake Erie in the State's name. See 
State ex rel. Duffy v. Lakefront East Fifty-Fifth Street Corp. (1940), 137 Ohio St. 8(Attorney 
General sued as relator for the State); State ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303 
(Attorney General represented the State's interests as an amicus in dispute between city and 
private landowner). 
C. Plaintiffs cannot disclaim the State's party status after relying on it both to secure the 
rulings below and to seek further relief on remand. 
Plaintiffs' attacks on the existence of this appeal-whether basedon denying the State's 
party status or on attacking the Attorney General's representation of the State-fail for all the 
reasons above. Moreover, Plaintiffs cannot have it both ways: They cannot simultaneously 

(1) insist now that neither the State nor ODNR has been a valid adversarial party since July 2007, 
thus eliminating any State appeal, while (2) seeking to maintain the judgments entered against 
the State after the point at which, in Plaintiffs' view, no State party remained. Plaintiffs' 
inconsistency, and its implications, are undeniable. 
19 


On one hand, Plaintiffs claim that the State is not, and never was, truly a party, even though 
Plaintiffs sued it. OLG insists that it sued the State only "out of an abundance of caution," and 
that its choice to do so is irrelevant because "OLG ... has no . . . authority to change the identity 
of the proper parties by naming certain entities as defendants." OLG Supp. Jur. at 5 n.l. OLG 
therefore concludes that "ODNR is the only proper party here." Id. 

On the other hand, OLG also insists that ODNR "withdrew from the case on July 16, 
2007," and is now merely an amicus. OLG Jur. Resp. at 1 n.l. OLG's claim that ODNR 
"withdrew" is wrong, for ODNR remains a party, and a defendant's ability unilaterally to 
withdraw from a case is a novel concept. But accepting, for argument's sake, the claim that 
ODNR "withdrew," that claim necessarily means that no State defendant remains in this case-
not the State (because it never belonged), and not ODNR (because it walked away). 

No plausible theory, legal or factual, allows Plaintiffs to insist that they have had no State 
opponent since July 2007, while still retaining the later-issued judgments-both the trial court's 
and the appeals court's-that were entered against the State. Indeed, Plaintiffs' tack is a 
textbook example of when courts apply judicial estoppel: "Courts apply judicial estoppel in 
order to preserve[] the integrity of the courts by preventing a party from abusing the judicial 

process through cynical gamesmanship, achieving success on one position, then arguing the 

opposing to suit an exigency of the moment" Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 

2007-Ohio-6442, ¦ 25 (internal quotations and citations omitted). Here, Plaintiffs relied on the 

State's presence to secure judgments against the State, but now, with those judgments in hand, 

they urge the State's absence as a reason to render those judgments unreviewable. That does not 

wash. 

20 



In the alternative, if the State is not and never has been a party, the Court should vacate the 
judgments below (to the extent they run against the State) based on that flaw. 
Defendant-Appellant State of Ohio's Proposition of Law No. 2: 

Lake Erie, within the State's boundaries, belongs to the State of Ohio as proprietor in trust 
for the people of Ohio, and the State's public trust duties extend to the usual or ordinary 
high-water mark, and not the highest or lowest point to which the water rises or recedes or 
where the water stands at the moment. Further, although gradual, natural changes such as 
accretion may move that mark or natural shoreline, private landowners may not use fills or 
other artificial encroachments to move the boundary ofpublic rights. Adjacent landowners 
do, however, possess special property rights, known as "littoral rights, " below the 
ordinary high-water mark that are not possessed by other members of the public and that 
are entitled to respect and certain protections even against the State. 

Both courts below erred in redefining the boundary of the "territory" of Lake Erie in a way 
that abolished long-held public-trust rights that exist up to the ordinary high-water mark. That 
redefinition upset the careful balance among the legitimate rights of the littoral landowners, the 
State, and the public. The State urges the Court to maintain Ohio's traditional rule, which is 
well-established by case law and statute and has proved workable over time. 

A. The State has always held Lake Erie and its submerged lands as a public trust for the 
benefit of all Ohioans, and the main issue in this case is the boundary used to mark 
the Lake and its bed to protect the public trust consistently, even when the water is 
below its ordinary high-water level. 
Before addressing the ultimate question of Lake Erie's boundary, it is critical to understand 
the underlying natural conditions and the settled legal context, and to clarify what is, and is not, 
at issue in determining the boundary. 

No one disputes that the State owns Lake Erie and what are called "submerged lands"; 
what the parties dispute is whether lands that are often physically submerged lose their 
traditional legal designation as "submerged lands" in any moment when the water recedes. That 
is, the parties dispute the status of any strip at the Lake's edge that is submerged when the water 
is at its ordinary high, but is sometimes dry. While the answer lies in the law of Ohio, the issue 

21 



arises because of a basic law of nature: the only thing constant is change. Water moves, whether 
quickly or slowly, whether it be ocean tides, flowing rivers, or the more gradual (but sometimes 
sudden) rise and fall of the water level of the non-tidal Great Lakes, such as Lake Erie. That 
reality means that bodies of water-and property that touches those bodies of water-have given 
rise to their own body of law. Property lines along ever-changing waterfronts cannot be fixed 
with the same "metes and bounds" precision that is used on dry land. The resulting set of 
common law rules allows boundaries to move gradually, to reflect natural changes in the water 

line. 

While the law accommodates change, it also recognizes the need for stability, along with 
the overlapping rights that arise from the need to protect public resources and to honor the 
special rights of lakefront owners. The need for stability means that boundary lines may move in 
thelong run, by natural, gradual, changes. But such lines should not move too frequently and 
abruptly, with a strip changing hands back and forth, month-to-month or even day-to-day, in dry 
or rainy seasons. 

Equally important, the law recognizes that wherever the lines are drawn, there are areas in 
which the State, the public, and private owners have overlapping rights. For example, although 
private property owners cannot own a parcel in the Lake itself, they do have well-established 
rights-unique to them as lakefront owners-to build piers or wharves out into the public water. 
But such wharfmg may not interfere with public rights of fishing, navigation, recreation, and 
commerce in the Lake; no one can fence in a piece of the Lake itself as a private preserve. 
Similarly, the State has both the power and duty, under the public trust doctrine, to preserve Lake 
Erie as a natural resource and to protect public rights. 

22 



While the details of those overlapping rights are discussed below, the existence of 
overlapping rights demonstrates that this case is not about drawing a bright line that separates 
absolute state<control from absolute private control. Instead, this case is about preserving a 
framework for balancing rights and responsibilities on both sides of whatever lines are drawn. 
And to the extent this case involves line-drawing, it is about clarifying the definitions of the lines 
that have always existed, even if some parties had a different view of those lines. That is, this 
case is not about the State "taking" from landowners any property that was indisputably theirs; it 
is about clarifying what was, or was not, always theirs. 

In this light, the following subparts of Part A explain the history of the public trust 
doctrine, its basic contours and its adoption in Ohio law as to Lake Erie, and the basic issues 
involving the public trust and issues of public and private title to land along the Lake. Part B 
explains why the boundary of Lake Erie is and always has been the point at which the water 
usually touches the land, known as the "ordinary high-water mark." Part C addresses the special 
situation of "artificial fill," which creates-by human action rather than Mother Nature-surface 
land where the Lake's water once stood. Part D explains the unique "littoral rights" that 
lakefront owners possess, which they do not share with the public and which are entitled to 
respect and certain protections even against the State. 

1. Under federal law, Ohio received, upon admission to the Union, sovereign 
authority and title in trust to Lake Erie within its territorial boundaries, 
including submerged lands up to the ordinary high-water mark. 

The State's "chain of title," so to speak, formally begins with the establishment of the 
United States of America, but the relevant common law traces back to England and even to 
Roman law. As the Michigan Supreme Court noted, in a case similar to this one, the Roman 
Emperor Justinian explained that the sovereign owned the seas and the shores for the common 
use of all: "Now the things which are, by natural law, common to all are these: the air, running 

23 



water, the sea, and therefore the seashores. Thus, no one is barred access to the seashore ...." 
Justinian, histitutes, book II, title I, ¤ 1, as translated in Thomas, The Institutes of Justinian, Text, 
Translation and Commentary (Amsterdam: North-Holland Publishing Company, 1975), 65, and 
quoted in Glass v. Goeckel (2005), 473 Mich. 667, 677. The English adopted the principle that 
the King owns the sea, and the United States likewise vested title to the seas in the sovereign. 
Shively v Bowlby (1894), 152 U.S. 1, 11, 57; see Phillips Petroleum Co. v. Mississippi (1988), 
484 U.S. 469, 473 (noting that the "seminal case in American public trust jurisprudence is 

Shively v. Bowlby"). 
In Shively, the United States Supreme Court explained that, under the English doctrine, 

(1) the sovereign's title over the sea extended to lands that were always or usually underwater, 
and (2) the sovereign's title included both a "private title" and a unique "public trust" form of 

title that differed from both private title and regular sovereignty: 

[B]oth the title and the dominion of the sea, and of rivers and arms of the sea, where 
the tide ebbs and flows, and of all the lands below high water mark, within the 
jurisdiction of the Crown of England, are in the King. Such waters, and the lands 
which they cover, either at all times, or at least when the tide is in, are incapable of 
ordinary and private occupation, cultivation and improvement; and their natural and 
primary uses are public in their nature, for highways of navigation and commerce, 
domestic and foreign, and for the purpose of fishing by all the King's subjects. 
Therefore the title, jus privatum, in such lands . . . belongs to the King as the 

sovereign; and the dominion thereof, jus publicum, is vested in him as the 
representative of the nation and for the public benefit. 

Shively, 152 U.S. at 11. As this passage shows, the sovereign's title in the sea itself logically 

includes the lands under the sea. Further, because the tide ebbs and flows, the definition of the 

"lands" under the water includes all lands that are covered "at all times," id., and lands covered 

"at least when the tide is in," id. That is, the area between low and high tide was considered 

underwater land or submerged land, or part of the sea, even in the times when the water did not 

24 



actually cover that area. Put another way, under English law, the sovereign owned "all the lands 
below high water mark." The American starting point is the same. 

Shively also noted that the sovereign's title was special in its dual nature and in its 
accompanying obligations to the public. First, the "title" itself was actually two titles, the 
"private title," or jus privatum, and the "dominion" for "the public benefit," or jus publicum. 
The latter, vested in him for the public benefit, obliged the sovereign as a trustee to treat lands 
held in public trust differently from other lands that the sovereign might own, buy, or sell in the 
ordinary sense of title (that is, when the sovereign acts like any other property owner). 

Most important, the Shively Court did not just explain these precepts as English history, but 
it held that the United States adopted the same doctrine, and that the sovereign's powers and 
duties under the doctrine were passed on to each State upon its admission to the Union. "The 
shores of navigable waters and the soil under them were not granted by the Constitution to the 
United States, but were reserved to the States respectively. And new States have the same rights 
of sovereignty and jurisdiction over this subject as the original ones." Id. at 36. That principle-
that all States received the same sovereignty and title over navigable waters-is called the Equal 
Footing Doctrine, and it exists as a matter of constitutional law, predating Congress's statutes. 
Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co. (1977), 429 U.S. 363, 372-74 (a 

"State's title to lands underlying navigable waters within its boundaries is conferred not by 

Congress but by the Constitution itself'); Idaho v. Coeur d'Alene Tribe (1997), 521 U.S. 261, 

283-84 (describing ownership of lands underlying navigable waters as "an essential attribute of 

sovereignty"). All this specifically applies to Lake Erie, as the United States Supreme Court 

applied these rules to the "inland seas"-the Great Lakes. Ill. Cent. R.R. Co. v. Ill. (1892), 146 

25 



U.S. 387, 436-37 (noting that the "same doctrine ..: applies" to "lands under the navigable 
waters of the great lakes" as applies to "lands under the tide waters on the borders of the sea"). 
The U.S. Supreme Court has repeatedly reaffirmed Shively and Illinois Central, both as to 
all States' equal footing and as to the inclusion of lands under navigable waters, and Congress 
confirmed both principles when it enacted the Submerged Lands Act of 1953, 43 U.S.C. ¤¤ 
1301-1315. See, e.g., Phillips Petroleum, 484 U.S. at 478-79; Corvallis Sand & Gravel, 429 

U.S. at 372-74; Borax Consol., Ltd. v. Los Angeles (1935), 296 U.S. 10, 26-27. 
The federal Submerged Lands Act re-affirmed the common-law definitions of both the 

geographic and substantive scope of the States' authority, and it distinguishes between those 

States bounding tidal waters and those States bounding non-tidal navigable waters, such as the 

Great Lakes. Congress confirmed that the States received "the title to and ownership of the lands 

beneath navigable waters within the boundaries of the respective States, and the natural resources 

within such lands and waters" along with "the right and power to manage, administer, lease, 

develop, and use the said lands and natural resources all in accordance with applicable State 

law." 43 U.S.C. ¤¤ 1311(a)(1) and (2). 

As to the physical extent of that authority, Congress adopted principles previously 

articulated by the U.S. Supreme Court in defining "lands beneath navigable waters" for tidal 

states and non-tidal coastal states. See 43 U.S.C. ¤¤ 1301(a)(l)-(3). The Act defines "lands 

beneath navigable waters" for non-tidal States, such as Ohio and the other Great Lakes States, as 

those "lands ... up to the ordinary high water mark as heretofore or hereafter modified by 

accretion, erosion, and reliction . . . [and] all filled in, made, or reclaimed lands which formerly 
were lands beneath navigable waters, as hereinabove defined." 43 U.S.C. ¤¤ 1301(a)(1) and (3). 
See Phillips Petroleum Co., 484 U.S. at 478-79 (noting that the original grant to each non-tidal 

26 



State extends to the ordinary high-water mark, "and not upon the ebb and flow of the tide"); Ill. 
Chicago (1900), 176 U.S. 646, 660 (providing the same rule before the Act was

Cent. R.R. v. 
codified). For tidal States, such lands include both those "lands permanently or periodically 
covered by tidal waters up to but not above the line of mean high tide" and those lands that were 
"filled in, made, or reclaimed" in those areas. 43 U.S.C. ¤¤ 1301(a)(2) and (3). See Borax 
Consol., Ltd., 296 U.S. at 26-27 (providing the same rule before the Act was codified). 
The Supreme Court reaffirmed these core principles just recently, in rejecting a takings 
claim by beachfront owners in Stop the Beach Renourishment, Inc. v. Florida Department of 
Environmental Protection, Case No. 08-1151 (June 17, 2010), 2010 U.S. Lexis 4971. The Court 
explained that state law generally defines property interests, "including property rights in 
Id. at *9. It further explained that Florida

navigable waters and the lands underneath them." 

law, which was at issue, had retained the same approach to littoral or beachfront property that the 

common law and the federal statute had. Under that approach, the "State owns in trust for the 

public the land permanently submerged," id., and the State also owns land that is submerged 

when the water is at the applicable high-water mark, whether the "mean high-water line" on 

Florida's oceanfront, id; or the ordinary high-water mark here. 

While the specific type of high-water mark differs between Florida's oceanfront and Ohio's 

lakefront-mean high-water for tidal States tidal and ordinary high-water for non-tidal States-

the key point is that both contexts use some form of high-water mark as the boundary. Both 

types of high-water mark ensure that the State's public trust includes "submerged land" that is 

legally submerged but is physically dry when the water stands below the relevant high-water 
mark. 

27 



In Stop the Beach, the Supreme Court reviewed Florida's case law and statutes to 
determine if Florida had granted beachfront owners rights beyond the baseline that applied from 
common law and the federal statute, and the Court found that Florida had not done so. While the 
particulars of the issue in Stop the Beach are different from those at issue here, the conunon 
ground is the need to start with the common law and then look for any changes in state law from 
there. 

Consequently, as a matter of historical fact and legal underpinnings, the State of Ohio's 
title and authority over Lake Erie starts with the dominion that the State received upon statehood, 
which extended to the ordinary high-water mark. To be sure, the States are generally free to redefine 
and recognize private rights in public trust lands as a matter of state law. "The issue ... is 
not what rights the State has accorded private [land] owners in lands which the State holds as 
sovereign; but, rather, how far the State's sovereign right extends under the equal-footing 
doctrine and the Submerged Lands Act." Corvallis Sand & Gravel, 429 U.S. at 369 (internal 
quotations and citations omitted). But the default position, as a matter of common law and 
federal constitutional, statutory, and case law, begins with the State holding the full extent of title 
and authority held by the United States over the Great Lakes, and held by English kings and 
Roman emperors over their seas-namely, a public trust and title up to the ordinary high-water 
mark, including lands that are submerged when the Lake is at that point. 

2. Because Ohio received a public trust obligation to preserve Lake Erie for the 
people of Ohio, Plaintiffs can succeed only by showing the clearest evidence that 
Ohio surrendered any aspect of title below the ordinary high-water mark. 
As explained above, Ohio received sovereign authority and title over Lake Erie to the 
ordinary high-water mark, as a matter of federal law, and the form of that title includes an 
obligation to hold Lake Erie as a public trust. Ohio is free, as a sovereign State, to define the 
scope of that authority in several respects. The State may, by state law, define what rights extend 

28 



to the public through the public trust, such as regulating the extent of fishing, commerce, 
recreation, and navigation in the Lake. For example, Ohio's obligation to preserve fish, as a 
natural resource, both empowers and obliges the State to regulate to avoid overfishing, to 
manage the various species, and to fight invasive species such as zebra mussels and Asian carp. 
See, e.g., R.C. 1531.06-.08 (authorizing administrative regulation of fishing, along with hunting 
and other wildlife protection); R.C. 1533.32 et seq. (fishing provisions). As a matter of the 
physical property line and title, Ohio may, as a sovereign, grant title (subject to the public trust 
limits in subpart B-3 below) to adjacent landowners, either on an individual or broad basis, if 
certain conditions are met. "Under the public trust doctrine, any such conveyance must be 
authorized by the legislature through specific legislation, must advance public trust purposes, and 
must not substantially impair the public's use of the remaining public trust lands or waters." 
2000 Op. Att'y Gen. No. 2000-047 at 11. 

Any such grant of title, however, can only be conveyed by the clearest evidence of the 
State's decision to relinquish title, such as a statutory enactment declaring such a grant. The U.S. 
Supreme Court has consistently applied a presumption that a grant of submerged lands requires 
the strongest showing of the State's intent, such as a statute and not just a document purporting 
to grant such lands. It has explained "that, in the absence of any local statute or usage, a grant of 
lands by the State does not pass title to submerged lands below high water mark; and that this 
principle also applies to the Great Lakes." Ill. Cent. R.R., 176 U.S. at 660 (citing Pollard v. 
Hagan (1845), 44 U.S. 212). Thus, as to submerged lands under a lake, courts presume that a 
sovereign did not intend to part with any portion of its public trust domain, or its rights in that 
domain, unless clear, express words are used in an enactment-not just a grant of title using 
words such as "to the lake"-to show such an intent. 

29 


That presumption guards against the unintended surrender of valuable public resources to 
private parties. Martin v. Lessee of Waddell (1842), 41 U.S. 367, 411; Appleby v. City of New 
York (1926), 271 U.S. 364, 383-84; 2000 Op. Att'y Gen. No. 2000-047 at 22-23. It specifically 
prevents the inference of a surrender based upon administrative statements from state agents. In 
addition, any unintended surrender of the State's public trust authority is not only unavailable as 
a matter of specific public trust law, but also under the broader principle that promissory estoppel 
does not apply against the State based upon administrative acts as opposed to express statutory 

law. Hortman v. City of Miamisburg, 110 Ohio St. 3d 194, 2006-Ohio-4251, ¦ 25 ("as a general 
rule, the principle of estoppel does not apply against a state or its agencies in the exercise of a 
governmental function"). 

Consequently, Plaintiffs can succeed in claiming title to lands below the ordinary high-
water mark only if they can show the clearest evidence that Ohio chose to do so-and they 
cannot. 

B. Ohio has always defined the landward boundary of Lake Erie, as a matter of law, as 
the ordinary high-water mark, as to both the public trust and the State's title. 
Plaintiffs cannot meet the high burden of showing that Ohio surrendered part of its 
federally received title or authority over the Lake and its submerged lands. Case law and 
statutory enactments demonstrate that Ohio has always maintained its ownership of Lake Erie to 
the ordinary high-water mark. 

1. This Court held in Sloan v. Biemiller that the boundary of Lake Erie is the 
ordinary high-water mark. 
This Court first addressed the Lake Erie boundary in Sloan v. Biemiller (1878), 34 Ohio St. 
492, and it located that boundary as the "ordinary high-water mark." Id. at 513. Sloan was a 
dispute between private parties, not a dispute with the State over its public trust authority or its 
title. But its definition of the Lake Erie boundary applies, and Sloan is notable for its use of the 

30 



term "ordinary high-water mark." Sloan is also important for its explanation of how that mark is 
also described as the line where the water "usually" stands or touches the land. 

In Sloan, the Court addressed a private dispute over fishing rights along Lake Erie's shore, 
near Cedar Point, where the Lake and Sandusky Bay intersect. Plaintiff Sloan had originally 
held title to most of "Cedar Point ... bounded ... on the northeasterly side ... by the waters of 
Lake Erie, and ... by the waters of Sandusky Bay." Id. at 493. Sloan conveyed about sixteen 
acres of his Cedar Point property to Defendant Biemiller by deed that expressly reserved to 
Sloan "the right of fishing in either the lake or bay." Id. at 493-94. However, Biemiller 
continued to fish in the lake and bay, and Sloan sued Biemiller to quiet title in the fishing rights 
he had reserved, arguing that Lake Erie and Sandusky Bay, and all rights to their fisheries, were 
owned and controlled by the adjacent lakefront owners to the middle of the Bay and Lake. Id. at 
492-95, 501-02, 511. 

Because Biemiller claimed he was exercising public rights to fish in public waters, and 
because Sloan claimed that his upland title-defined as extending to "the waters" of Lake Erie 
and Sandusky Bay-ran to the center of the Lake and bay, the Court's resolution of this private 
dispute turned on the location of the boundary of Lake Erie for both the exercise of public rights 
and the extent of private title. Id. at 511-13. In addressing this issue, the Court extensively 
reviewed English common law and the law of other States. It explained how American States 
needed to modify English law to address the Great Lakes, because English law covered rivers, 
small lakes and seas but "[o]ur large freshwater lakes or inland seas are wholly unprovided for 
by the law of England." Id. at 511-12. The Court rejected application of the English common-
law riparian rule, which provided for private ownership of the beds of non-tidal rivers down to 
the river's "low-water mark," or to the middle of the stream, which the Court had previously 

31 



applied to Ohio's navigable rivers. Id. at syllabus ¦ I and at 512 (citing Gavit v. Chambers 
(1828), 3 Ohio 495, 496). The Court instead used the English rule that applied to seas, but it 
modified that rule to reflect the fact that Lake Erie's water, unlike the oceans, does not move 

with the tides. Id. at syllabus ¦ 4 and at 512-13. 

The Court ultimately held that Lake Erie's boundary was the "ordinary high-water mark," 
and it adopted an extensive definition of that mark from the Illinois Supreme Court's earlier 
decision in Seaman v. Smith (1860), 24 Ill. 521. Seaman had defined the boundary line of Lake 
Michigan-for purposes of private titles that defined parcels as running to Lake Michigan-as 
extending to "that line where the water usually stands when unaffected by any disturbing cause. . 
And the line at which it usually stands unaffected by storms and other causes, represents the 
ordinary high water mark on the ocean." Id. at 525. Sloan cited that definition with approval, 

and it explained and adopted Seaman's farther elaboration of what that line meant: 

In the [Seaman] opinion it is said: "A grant giving the ocean or a bay as the boundary, 

by the common law, carries it down to ordinary high-water mark . .. The principle, 

however, which requires that the usual high-water mark is the boundary on the sea, 

and not the highest or lowest point to which it rises or recedes, applies in this case, 

although this body of water has no appreciable tides.... The portion of the soil 

which is only seldom covered with water may be valuable for cultivation or other 

private purposes." 
Sloan, 34 Ohio St. at 512-13 (quoting Seaman, 24 Ill. at 524) (intemal citations omitted) 
(emphases added). This Illinois definition-the only one that the Court adopted in Sloanplainly 
refers to the "ordinary high-water mark," also called the "usual high-water mark." And 
the Court equated that "ordinary" or "usual high-water mark" term with the "the line at which the 
water usually stands." Moreover, by contrasting the approved "ordinary" high-water mark with 
the more extreme "highest or lowest point to which [the water] rises or recedes," the Court 
confirmed that the line does not shift to whatever rare extreme the water may reach at a given 
time, such as in a time of flooding or drought. 

32 


2. The Court held in State v. Cleveland & Pittsburgh Railroad Co. that only the 
General Assembly could address the State's Lake Erie authority, and it held that 
the State could not abandon its public trust obligations. 
After the Court defined the boundary of Lake Erie as the ordinary high-water mark in 
Sloan, it addressed the nature of the State's public trust duties and the littoral rights of lakefront 
owners in "the subaqueous land below the high-water mark of navigable waters" in State v. 
Cleveland & Pittsburgh R.R. Co. (1916), 94 Ohio St. 61 ("C&P R.R. Co."). In C&P R.R. Co., 
the Court considered a dispute between the State and several railroad companies over the 
ownership of "land" in Cleveland that had been created by artificially filling in part of Lake Erie. 
(The artificial fill holding is discussed below in Part C). The Court held that only the General 
Assembly could alter state law regarding the public trust doctrine and that the State could not 
abandon its trust duties. 

First, the Court explained that the State held title to Lake Erie, and that any changes, 
including regulations based on the State's ownership or its public trust, had to come from the 
General Assembly. "As shown, the state holds the title to the subaqueous land as trustee for the 
protection of public rights. The power to prescribe such regulations resides in the legislature of 
the state." Id. at 79. In the absence of legislation, the Court acknowledged that the private 
owners had the right to wharf out into the water, as that was a long-recognized common-law 
right that lakefront owners possessed. Id. at 77. But the Court rejected the landowner-railroads' 
claim that their wharves or filled-in areas had become their unencumbered property by virtue of 
the fill, the State's alleged administrative acquiescence, or both. The Court reasoned that a 
landowner could do nothing "that will destroy or weaken the rights of the beneficiaries of the 
trust estate. His right must yield to the paramount right of the state as such trustee to enact 
regulatory legislation." Id. at 79. Thus, the "state as trustee for the public cannot by 

33 



acquiescence abandon the trust property or enable a diversion of it to private ends different from 
the object for which the trust was created." Id. at 80. 

Second, that last sentence means not only that the General Assembly alone can convey the 
State's title to Lake Erie's lands to private owners, but also that not even the Assembly, in 
speaking for the State, can abandon its obligations as trustee. Thus, even if the Assembly wished 
to transfer private title, it could transfer only the private title that the State holds, not the public 
trust that would still apply to any transferred strip of land. "[I]t is not in the power of the 
legislature, unless in the exercise of the power of eminent domain, to authorize property, 
dedicated to the public for a specific purpose, to be used for a purpose inconsistent with the 
purpose for which it was dedicated." Id. (citing The L&N Rd. Co. v. City of Cincinnati (1907), 
76 Ohio St. 481). hi short, the "state as trustee for the public cannot by acquiescence abandon 
the trust property or enable a diversion of it to private ends different from the object for which 
the. trust was created," and even beyond any such acquiescence, the State is limited in what it can 
surrender by legislation, based on its duties as public trustee. 

Finally, the Court expressed confidence that the General Assembly would act to clarify the 
rights of lakefront owners and the State and the public along Lake Erie: 
It is to be presumed that the legislature, in the enactment of legislation on the subject, 
will appropriately provide for the performance by the state of its duty as trustee for 
the purposes stated; that it will determine and define what constitutes an interference 
with public rights and that it will likewise, in a spirit of justice and equity, provide for 
the protection and exercise of the rights of the shore owners. 
Id. at 84. The General Assembly responded the next year. 

3. The General Assembly confirmed the Court's holdings by enacting the Fleming 
Act, and the Court then re-affirmed that the boundary had not changed. 
In 1917, one year after C&P R.R. Co., the General Assembly passed the Fleming Act, 
defining the boundary of Lake Erie, the duties of the State as trustee, and the rights of the public 

34 



and adjacent landowners. The Act, originally found in Sections 3699-a to 3699-9 of the General 

Code, has changed little in the near-century since, and the relevant portions are now found at 

R.C. 1506.10-.11. As initially enacted, the declaratory section of the Act provided, in relevant 
part: 


It is hereby declared that the waters of Lake Erie within the boundaries of the state 
together with the soil beneath and their contents do now and have always, since the 
organization of the state of Ohio, belonged to the state of Ohio as proprietor in 
trust for the people of the state of Ohio, subject to the powers of the United States 
government, the public rights of navigation and fishery and farther subject only to the 
right of littoral owners while said waters remain in their natural state to make 
reasonable use of the waters in front of or flowing past their lands, and the rights and 
liabilities of littoral owners while said waters remain in their natural state of 
accretion, erosion and avulsion. Any artificial encroachments by public or private 
littoral owners, whether in the form of wharves, piers, fills or otherwise beyond the 
natural shore line of said waters not expressly authorized by the general assembly, 

acting within its powers, shall not be considered as having prejudiced the rights of the 
public in such domain. Nothing herein contained shall be held to limit the right of the 
state to control, improve or place aids to navigation in the other navigable waters of 
the state or the territory formerly covered thereby. 

G.C. 3699-a (emphases added). As this language shows, the Fleming Act expressly re-affirmed 
that the lands, waters, and contents of Lake Erie composing the "territory" are those that were 

granted to the State at statehood. Id. 

The current statute preserves the principle that the boundary has never changed. See R.C. 

1506.10. Specifically, it provides that the waters and lands of Lake Erie that "do now belong and 

have always, since the organization of the state of Ohio, belonged to the state as proprietor in 

trust for the people of the state." Id. The statute's reference to "always, since the organization of 

the state," confirms that Ohio maintained then, as it does today, the full extent of what the State 

received at statehood under the federal Equal Footing Doctrine. 

In addition, the Act's references to "artificial encroachments," which cannot destroy the 

State's ownership, expressly agreed with C&P R.R. Co. This usage is notable for what it says 

about artificial fill, as explained in Part C below, and further, because it shows why the General 

35 



Assembly referred to the "natural shoreline" in the statute. The General Assembly did so not to 
adopt any specific new definition of the boundary or "line," as it preserved the traditional 
ordinary high-water mark when it maintained the approach that had applied "always, since the 
organization of the state." Rather, the term "natural shoreline" was meant to contrast with the 
artificial shoreline that is created when artificial fill is used to expand usable land-and in such 
cases, that man-made area of "land" is still in State's hands, because it stands on what would 
naturally be Lake Erie. Cf. Stop the Beach, 2010 U.S. Lexis 4971, at *49-50 (explaining that 
artificially filled area was the State's, regardless of whether the State or the landowner deposited 
the fill, because the landowner gains only gradual, natural accretions, while the State maintains 

public trust lands taken by sudden natural avulsion or filled by artificial means). 

When this Court returned to the topic after the Fleming Act was passed, it held that "[i]t is 

obvious that this section does not change the concept of the declaration of the state's title as 

found in" C&P R.R. Co. State ex rel. Squire, 150 Ohio St. at 337. The Court therefore 

continued to apply pre-Fleming Act precedent, such as C&P R.R. Co., in addressing the issue in 

Squire. In particular, the Court in Squire explained that the term used in the Fleming Act to 

describe the boundary-namely, the "natural shore line"-did not change the substance of the 

law. Squire, 150 Ohio St. at 336-37; see also Thomas v. Sanders (6th Dist. 1979), 65 Ohio App. 

2d 5, 9-10 ("The Fleming Act did not purport to change the common law with regard to other 

navigable waters in this state," but rather codified and re-affirmed the existing common-law 

boundary of the "territory."). 

Consequently, this Court has already decided, under its own common-law cases and under 

cases applying the Fleming Act, that Lake Erie's legal boundary remains what it always has 

been: the "natural shoreline," R.C. 1506.10, which is the same as the "ordinary high-water 

36 



mark," or the "the line at which the water usually stands when free from disturbing causes," 
Sloan, 34 Ohio St. at 512-513. This is the proper legal boundary of the Lake, rather than the 
constantly fluctuating line at which the water stands at any given moment, including movement 
with every lapping of the waves. 

4. Every Great Lake State preserves the State's public trust up to the ordinary 
high-water mark, including even "low-water" States that grant limited title 
below that point. 

As noted above, all States received, upon admission to the Union, authority and title over 

navigable lakes, such as Lake Erie, up to the ordinary high-water mark. Shively, 152 U.S. at 11; 
Submerged Lands Act, 43 U.S.C. ¤¤ 1301(a)(1) and (3). The States, then, had the power to 
defme, as a matter of state law, the extent of public trust and State title, both in the substantive 
sense of defining what rights and responsibilities apply within the area govemed by the public 
trust, and in the title/boundary sense of defining what, if any, private title might be granted below 
the ordinary high-water mark. 

Eight States border the Great Lakes, and every one of them has preserved the State's 

public-trust authority up to the ordinary high-water mark, not merely to the momentary water's 

edge or to the low-water mark, or to any other point. See Kenneth T. Kilbert, The Public Trust 

Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (publication forthcoming), available 

at SSRN: http://ssrn.com/abstract=160402 (last visited July 9, 2010) (summarizing all States' 

laws); see Amicus Brief of Michigan et al. (same). 

Notably, at least one State, Minnesota, has granted lakefront owners a limited form of 

"title" to the low-water mark. That special, limited form of title is subservient to the State's 

public trust, which is described as the dominant title. See State v. Korrer (1914), 127 Minn. 60, 

75-76; Shively, 152 U.S. at 11 (explaining that sovereign's public trust and title include two 

components, even when sovereign held both together). In Korrer, the Minnesota Supreme Court 

37 



explained, "While the title of a riparian owner in navigable or public waters extends to ordinary 
low-water mark, his title is not absolute except to ordinary high-water mark. As to the 
intervening space his title is limited or qualified by the right of the public to use the same for 
purpose of navigation or other public purpose." Korrer, 127 Minn. at 76. Thus, Minnesota's 
"riparian" owners (a term that includes lakefront or littoral owners in Minnesota) may hold 
"title," but rather than a fee simple title as with real property, the Minnesota riparian owner's title 
is always subject to the public trust. Korrer further explained that the public trust not only 
extends up to the ordinary high-water mark in Minnesota, but that the trust allows the State to 
"use it for any such public purpose, and to that end may reclaim it during periods of low water, 
and protect it from any use, even by the riparian owner, that would interfere with its present or 
prospective public use, without compensation." Id Minnesota's current statutes codify that 
approach, defining the upper boundary of "public waters" as the "ordinary high water level." 

Minn. Stat. ¤ 103G.005-14. 

Pennsylvania's law is unclear on whether it, like Minnesota, is a "low-water State" as to 

private title, but it plainly remains an "ordinary high-water mark" State as to the public trust. 

See Freeland v. Pa. R.R. Co. (1901), 197 Pa. 529, 539 (explaining that on navigable rivers, "the 

absolute title of riparian owners extends to high watermark only, and that between ordinary high 

and ordinary low watermark, his title to the soil is qualified, it being subject to the public rights" 

and "the authority of the state"); see Sprague v. Nelson (1924), 6 Pa. D. & C. 493 (trial court 

applying Freeland rule to Lake Erie). The Michigan Supreme Court summarized several States' 

laws on this point in Glass, 473 Mich. 667, which held that Michigan's public trust authority, 

like its sister States', runs to the ordinary high-water mark, regardless of private title issues, id. at 

691-93. 

38 


In sum, the appeals court's approach is not only contrary to long-established Ohio law, but 

it is also contrary to the law of every sister State along the Great Lakes. 

5. The lower courts' alternative boundary of the momentary water's edge has no 
support in law and is impractical for all parties, including the adjacent property 
owners. 

Against all this precedent, both the trial court and the appeals court rejected the ordinary 
high-water mark as the boundary of Lake Erie, reasoning that the boundary lies wherever the 

water touches the land at a given moment, even if the current water level is much lower than 
"usual" or "ordinary." Specifically, the trial court defined the boundary as "the water's edge, 
which means the most landward place where the lake water actually touches the land at any 

given time." Com. Pl. Op. at 71. 

The appeals court also defined the boundary as the water's edge at the moment, but instead 

of using the trial court's "any given time" phrase, it explained the same concept as the "actual 

water's edge," App. Op. at ¦ 127, so that the State held only the water itself and "lands under the 

waters of Lake Erie, when submerged under such waters. " Id. (emphasis added). The appeals 

court clarified that it was adopting that boundary not just as to the State's private title, but also as 

a limit on the State's public trust, saying that only lands "when submerged are subject to the 

public trust." Id. And it fiuther confused matters and modified the trial court's ruling by holding 

that the "water's edge" was not a definitive boundary at all times, but only when it stands 

between the "high and low water mark." Id. 

Both lower courts were mistaken as a matter of law, for all of the reasons explained above. 

Both courts purported to rely on Sloan, quoting the language in that case that referred to "the line 

Sloan, 34 Ohio St. at 512


at which the water usually stands, when free from disturbing causes." 

513. But both courts ignored both the importance of the word "usually" in that phrase and the 
entire paragraph of Sloan that equated that phrase with the ordinary high-water mark. Indeed, 
39 



neither court even acknowledged that Sloan used the term "ordinary high-water mark." Id. at 

513. 
Both courts also relied on the Fleming Act's use of the term "natural shoreline," and both 
reasoned that a "line" must refer to the line where the shore touches the water at the moment. 
Neither court, however, analyzed the Fleming Act's express statement that the statutory 
defmition of Lake Erie was what it had always been, as established at the common law. The 
statute says that Lake Erie's waters and lands underneath "do now belong and have always, since 
the organization of the state of Ohio, belonged to the state as proprietor in trust for the people of 
the state." R.C. 1506.10. In addition, neither court acknowledged how, as explained above (in 
subpart B-3), the Fleming Act's use of the "natural shoreline" reflected the then-recent decision 
in C&P R.R. Co., which rejected the use of an artificial shoreline created by artificial fill. 
Consequently, those courts reached the wrong result. 

The use of the momentary water's edge, as opposed to the ordinary high-water mark, is not 

only against precedent, but it is also impracticable in application because of its instability. To be 

sure, the ordinary high-water mark moves, but only slowly over decades, or even centuries. 

Established doctrine has long accounted for such slow, natural change. The "moveable freehold" 

doctrine encompasses several related concepts well established in the law-accretion, erosion, 

reliction, submergence, and avulsion-that allow for water-based boundaries to move by virtue 

of gradual, natural, long-term processes. Accretion, for example, grants a landowner rights-as 

real property, in fee simple-to all soil that builds up naturally, turning what was once lake to 

land. Stop the Beach, 2010 U.S. Lexis 4971 at *11-12; Lake Front-East 55 St. Corp. v. 

Cleveland (1939), 21 Ohio Op. 1, 8, 7 Ohio Supp. 17. Erosion is the opposite: if land erodes and 

the area turns to water permanently, it becomes part of the public lake; a landowner cannot own a 

40 



parcel of lake just because the area was once land. United States v. 461.42 Acres of Land (N.D. 
Ohio 1963), 222 F. Supp. 55, 56. But those doctrines apply to accommodate gradual changes 
that result in a permanent change in the line between land and water; they do not react to rapid, 

State ex rel. Dufff v. Lakefront East Fifty-Fifth Street Corp.

temporary, or artificial changes. 

(1940), 137 Ohio St. 8, 11 (explaining that both erosion and accretion must occur naturally and 
"gradually and imperceptibly through the action of waves and currents" in order to effect a 
change in title). 

By contrast, the water's edge-as determined at any given moment-moves hour by hour, 

and also over days, months, and seasons, according to rainfall or drought. Under the appeals 

court's theory, in an especially dry season, the State's public trust authority recedes with the 

water line, so that lands that are submerged for much of the time are, for the brief time that they 

dry up, under the exclusive fee simple ownership of the adjacent private property owner. An 

owner should have little confidence in doing anything of any permanence on that land-other 

than exercising his established littoral rights, as discussed below in Part D-when his "exclusive 

rights" will wash away with the next rainy month. 

Further, if the water's edge means any level that the water reaches at a given moment, as 

the trial court said, then temporary floods or periods of unusually high water would deprive an 

adjacent owner of all his rights over what had previously been his property, which would sorely 

hamper his ability to respond appropriately in emergency conditions. The appeals court implied 

that this result is constrained by having the ordinary high-water mark apply as an upper bound 

upon its water's-edge rule, but that just shows the internal inconsistency of its approach: It 

denies that the ordinary high-water mark has any role at all, but then drafts it into service as a 

backup to the obviously impractical implications of a pure momentary-water's-edge rule. 

41 


Moreover, the momentary-edge rule cannot be squared with any common-sense approach 
regarding the activities to which the public is entitled pursuant to the public trust. This case does 
not require the Court expressly to define what the public trust allows the public to do, in the 
sense of reviewing the extent of fishing or beachwalking rights as a substantive matter. The 
Court need only reverse the appeals court's holding regarding the physical border where the 
public trust ends, and it is for the courts below on remand, or for future cases, to define what the 
public may do within the public trust territory. Nonetheless, those rights are relevant because the 
appeals court's view eliminates many shoreline-related rights by leaving no public rights above 
the momentary water's edge. 

For all these reasons, the Court should hold-as it has for generations-that the boundary 
of Lake Erie is the ordinary high-water mark, and that the State's public trust extends to that 
point, even when the water stands lower than that established mark at a given moment. 

C. The State retains title over the artificially-filled lands of Lake Erie, and only gradual, 
natural accretion transfers title to littoral owners. 
For the same reasons, the Court should reverse the appeals court's mistaken holding that 
landowners may claim exclusive title over areas of the Lake that have been artificially filled in. 
The appeals court did not analyze this issue at all; instead, it merely added a few words in its 
conclusion that made its already-mistaken ruling an even more radical one. After concluding 
that the boundary of Lake Erie was the momentary water's edge, the court restated and 
summarized its holding thusly: "Therefore, the shoreline, that is, the actual water's edge, is 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 in lands privately held by littoral 
owners." App. Op. at ¦ 127 (emphasis added). By adding the words "or filled in" to "natural," 
and referring to those lands as privately held, the appeals court rewrote Ohio law dramatically. 

42 



That unexplained legal leap requires reversal-even if the Court were somehow to reject the 

State's view of the ordinary high-water mark generally (though it should not). 

Ohio law has never granted landowners the right to claim exclusive title over public trust 
lands that have been artificially filled in to "become dry"; to the contrary, Ohio law has always 
provided that areas artificially filled in, as opposed to those arising from natural accretion, 
remain the State's, even if the area "looks like land" to observers and has been such for 
generations. The Fleming Act expressly rejected any loss of public authority over such areas, 
and the statute still says today that the State retains "the lands formerly underlying the waters of 
Lake Erie and now artificially filled." R.C. 1506.11(A). This Court expressly addressed filled-
in land twice, in C&P R.R. Co. and Squire, and both times it rejected the idea that landowners 
could expand their holdings by filling in areas that were previously part of the lakebed. 94 Ohio 
St: at 79, 150 Ohio St. at 325-26. Thus, the appeals court's novel approach violated the plain 
terms of the statute and this Court's precedent. 

Allowing private owners such a windfall, based on artificially filling in rather than by 
natural accretion, violates common sense as well. The appeals court's approach allows private 
owners, by trucking in soil, to expand their property and shrink the public's Lake. The appeals 
court offered no reason, let alone a sound one, for such a rule. Nor could any such rule be 
justified on the theory that such a transfer occurred in such cases where the State consented to 
the fill, as opposed to an owner's unilateral expansion. The State has only consented to filling in 
any land against a backdrop of settled law assuring the State that it retained ownership to such 
land. 

While the statute and this Court's C&P R.R. Co. and Squire decisions are enough to resolve 
this issue in the State's favor, the U.S. Supreme Court's recent Stop the Beach decision further 

43 



supports the State's retention of title over artificially filled-in trust land. See 2010 U.S. Lexis 
4971. In that case, the Court upheld Florida's right to retain title over filled-in land below mean 
high-water mark even when the State itself did the filling. Id. at *49-54. Some Florida 
landowners complained that the new fill cut off the contact between their land and the water, 
depriving them of the rights to remain beachfront owners and to gain future accretions, and 
interfering with their littoral access rights. Id. at *16-17. The Court rejected that claim, noting 
that under common law, littoral owners benefited only from gradual, natural accretion, not from 
sudden natural avulsion or from artificial fill, and the Court found no reason to create a different 
rule when the State created the fill. Id at *50-51. This case is an easier one in this regard than 
Stop the Beach, since the appeals court here purported to grant owners the right to benefit from 
the owners' own artificial fill, not the State's acts of filling. 

Ohio's landowners are entitled to use artificial fill, and to retain full title over the area that 
is filled in, in only one circumstance: when the fill is used to restore loss of soil caused by a 
sudden, natural avulsion. That is, if a sudden storm event washes away land, and leaves nothing 
but standing water in an area that was plainly the owner's beforehand, the owner may use 
artificial fill to restore the previous line, as long as he does so reasonably promptly. 461.42 
Acres ofLand, 222 F. Supp. at 56; Baumhart v. McClure (6th Dist. 1926), 21 Ohio App. 491, 
493-494. But that is not at issue here, as no one contests the owner's rights in that regard. The 
issue here is the appeals court's unwarranted grant of title over all areas artificially filled in. 

To be sure, this is a matter of state law, and Florida and Ohio are free to walk different 
paths. But both Florida and Ohio have retained the common-law approach, so the same result 
should follow. Plaintiffs here have not pointed to anything that would justify the Ohio courts in 

44 



breaking with the common law, other than the unexplained ipse dixit announced by the court of 
appeals below. 

Consequently, the Court should reverse the appeals court's mistaken holding as to artificial 
fill, and it should reaffirm that filled-in areas remain part of the State's public trust ownership of 
Lake Erie. 

D. All parties' rights are best protected and balanced by Ohio's longstanding public 
trust doctrine, with the boundary properly set at the ordinary high-water mark, and 
while the Court need not resolve here the precise substantive scope of the overlapping 
rights within the State's public trust area, the lakefront owners' special littoral rights, 
which extend below the ordinary high-water mark, must always be protected, even 
against the State and the public. 
This appeal requires the Court only to resolve the issue of Lake Erie's boundary as a 
physical matter, that is, whether to reaffirm that the State's public trust over Lake Erie continues 
to extend to the ordinary high-water mark, or whether to redefine the boundary to some other 
point. Once the traditional boundary is reaffirmed, the Court need not proceed on to define with 
precision the various rights and responsibilities of the public and of adjacent landowners that 
overlap within the area of the public trust. Nonetheless, it may be in the public interest for the 
Court to address those matters to some extent, given the rarity of cases that raise such issues and 
the apparent confusion that gave rise to this dispute in the first place. In particular, it appears 
that Plaintiffs filed this lawsuit originally out of concern that state officials were trampling on 
their property rights rather than respecting them, when state officials should honor both the 
owners' upland property rights and the special littoral rights that they possess by virtue of their 
status as adjacent landowners. Thus, the existence and basic outlines of those certain rights-
both for adjacent landowners and for the public-are relevant here in several respects. 

First, as the Court explained in C&P R.R. Co., even though the unfettered fee of an 
adjacent property owner extends only to the ordinary high-water mark, the "upland" owners of 

45 



lakefront property are entitled to certain littoral rights (but not title) extending below the ordinary 

high-water mark. C&P R.R. Co., 94 Ohio St. at 75-76. These special rights, which are ancient 
rights at the common law, are rights that extend beyond those enjoyed by other members of the 
public. The Court has found that Ohio, like most other States, recognized an unfettered "right of 
access" to the lake waters; the right of wharfage to construct piers and wharfs reaching out to 
navigable waters so as to effectuate the right of access; and the right of reasonable use of the 
waters so accessed, all below the ordinary high-water mark and subject only to such general rules 
as Congress or the state legislature may prescribe. See id. at 77-78; State ex rel. Squire, 150 
Ohio St. at 337. As a matter of Ohio law, these special rights in the lands lying below the Lake's 
ordinary high-water mark belong to the adjacent landowner to be exercised reasonably, and they 
are a species of "property rights" that cannot be curtailed or even unduly burdened by restrictive 
processes, unreasonable fees, or other limitations not germane to the State's superior authority to 
protect the public trust below the ordinary high-water mark. See State ex reZ. Squire, 150 Ohio 

St. at 342. If these littoral rights are appropriately understood and respected by state officials, 
then the sweeping redefinition of the common-law boundaries of the Lake announced by the 
lower courts here is not necessary to protect their traditional property interests. 

Second, the appeals court's redefinition of the boundary of the Lake improperly eliminated 
the public's rights to engage in any transient activities along the shore between the ordinary 
high-water mark and the momentary water's edge-whether walking along, fishing from, or 
otherwise accessing the public's part of the Lake and shore. By correcting the proper parameters 
of the boundary, the Court can and should restore the existence of those rights, with a full 
accounting of their extent perhaps left for another day. But, notably, the public's rights have 
always been defined in a limited fashion, in terms of traditional rights to use the Lake and shore 

46 



"in aid of navigation, water commerce or fishery," and the State may, "by proper legislative 
action, carry out its specific duty of protecting the trust estate and regulating its use." Id. at 
syllabus ¦ 2. For example, the State has both the power and duty to regulate the public's right to 
fish, to preserve the fish population for the common good. Similarly, the public's right to walk 
along the beach, or any other right akin to an easement (such as landing a boat in distress), is 
limited and does not allow anyone to interfere unreasonably with the rights of lakefront owners 
or the rest of the public, such as by squatting or otherwise abusing these limits. Thus, the 
Court's restoration of the proper public trust boundary does not establish a license for the public 
to trample on Plaintiffs' legitimate property rights. 

Third, Plaintiffs' littoral rights, such as their right to wharf out into the water, are in no way 
diminished by acknowledging the State's public trust up to the ordinary high-water mark. By 
definition, the right to wharf out-to build a pier into the water deep enough to launch a boat-
has always extended not only beyond the ordinary high-water mark, but beyond the momentary 
water's edge. And if the State were to attempt to forbid all wharfing arbitrarily, it could not do 
so, not because the public trust authority does not physically include the water around a wharf, 
but because the substantive scope of the public trust does not eliminate the substantive nature of 
littoral rights. But a lakefront owner's wharfing rights do not need to include, and cannot 
include, exclusive "ownership" of the water around his pier, which continues to belong to the 
State of Ohio, as it always has since the advent of statehood. On the contrary, those littoral 
rights extend from, or are "appurtenant" to, the ownership of the adjacent land, and they exist 
within the public trust area. See C&P R.R. Co., 94 Ohio St. at 77-78. 

For that reason, littoral rights, just like the public's rights, must be exercised "in 

furtherance of the object of the trust"; for example, wharfing is in aid of navigation and 

47 



commerce. Id. Thus, the substantive scope of the public trust does not eliminate the substantive 
nature of littoral rights, but establishes them as consistent with trust purposes. See also R.C. 
1506.11(B) (providing that the state may only grant a lease or permit to develop any part of Lake 
Erie "without impairment of the public right of navigation, water commerce, and fishery" and 
"without prejudice to the littoral rights of any owner of land fronting on Lake Erie"). 

Viewed from the broadest vantage point, therefore, the unique public resource of the Lake 
requires the legal system to accommodate and safeguard the overlapping interests of the Federal 
government, the State of Ohio, the public at large, and the adjacent landowners. The State of 
Ohio not only has sovereign authority over the shore, but also a perpetual and inalienable duty to 
act as the trustee for public trust rights in the "territory" of Lake Erie. That territory is 
traditionally defined as the lands, waters, and contents of the Lake up to its ordinary high-water 
mark. The State's authority in this territory is subject to the supreme navigational servitude of 
the United States, reserved over those same lands and waters up to the ordinary high-water mark, 
to protect the nation's navigable waterways. Subordinate to the State's authority are the public's 
individual rights in the territory, including use of the lakebed itself for purposes of navigation, 
commerce, fishery, or recreation, and more limited access to its shores on a temporary basis for 
reasonable uses incident thereto up to the ordinary high-water mark. Finally, in coordination 
with the public's rights, the upland owners of lakefront property enjoy special "littoral" property 
rights below the ordinary high-water mark, including rights of access, wharfage, and reasonable 
use, which the State cannot lawfully infringe or unreasonably constrain except pursuant to its 
valid role as trustee. 

In sum, though the Court need not address every aspect of the parties' respective rights in 
this case, it can and should recognize that the public trust doctrine, properly applied, is not 

48 



contrary to lakefront owners' rights, but complements them, as the State of Ohio may then act to 
protect the important resource of Lake Erie for the good of all. 

49 



CONCLUSION 


For the above reasons, the Court should reverse the appeals court's rejection of the 


Attorney General's representation of his client, the State of Ohio, as a named defendant in this 

case. It should then reverse the appeals court's definition of the Lake Erie boundary at the 

momentary water's edge, and it should hold instead that Lake Erie, and the State's public trust 

authority over Lake Erie, extends to the traditional common-law boundary, which is the ordinary 

high-water mark of the Lake, even if the Lake recedes below that line from moment-to-moment 

on a given day. 

Respectfully submitted, 

RICHARD CORDRAY (0038034) 
omey Gpsnera,] of Ohio 

IN C(MIYER* (0083089) 
Solicitor'Gener 

*Counsel of Record 

STEPHEN P. CARNEY (0063460) 
Deputy Solicitor 
CYNTHIA K. FRAZZINI (0066398) 
Assistant Attorney General 
30 East Broad Street, 17th Floor 
Columbus, Ohio 43215 
614-466-8980 
614-466-5087 fax 
benj amin. mizer@ohioattorneygeneral. gov 

Counsel for Defendant-AppellantCross-
Appellee, 

State of Ohio 


50 



CERTIFICATE OF SERVICE 


I certify that a copy of this Merit Brief of Defendant-Appellant-Cross-Appellee State of 
Ohio was served by electronic mail this 12th day of July, 2010, upon the following counsel: 

James F. Lang 
Fritz E. Berckmueller 
Calfee, Halter & Griswold LLP 
1400 McDonald Investment Center 
800 Superior Avenue 
Cleveland, Ohio 44114-2688 

Class Counsel and Counsel for Plaintiffs-
Appellees, Robert Merrill, Trustee, et al. 

Homer S. Taft 
20220 Center Ridge Road, Suite 300 

P.O. Box 16216 
Rocky River, Ohio 44116 
Intervening Plaintiff-Appellee-Cross-
Appellant, Pro Se 

L. Scot Duncan 
1530 Willow Drive 
Sandusky, Ohio 44870 
Intervening Plaintiff-Appellee, Pro Se and 
Counsel forTntervening Plaintiff-Appellee, 
Darla J. Duncan 

Kathleen M. Trafford 
Porter, Wright, Morris & Arthur, LLP 
41 S. High Street 
Columbus, Ohio 43215 

Special Counsel for Defendants-Appellants


Cross-Appellees, 
Ohio Department of Natural Resources and 
Sean Logan, Director 

Neil S. Kagan 
Senior Counsel 


National Wildlife Federation 
Great Lakes Regional Center 
213 West Liberty Street, Suite 200 
Ann Arbor, Michigan 48104 

Peter A. Precario 
326 South High Street 
Annex, Suite 100 
Columbus, Ohio 43215 

Counsel for Intervening Defendants


Appellants-Cross-Appellees, 
National Wildlife Federation and 
Ohio Environmental Council 



3jn t(je 
pre e Court of ¨ 

STATE OF OIIIO ex rel. 
ROBERT MERRILL, 'I'RUSTTE, et al., Case No. 2009


Plaxntiffs-Appeilees, 
On Appeal from the 
and Lake County 
Court of Appeals, 
IIOMER S. TAFT, et al., Fleventh Appellate District 

Intervening Plaintiffs- Court of Appeals Case 
Appellees Nos. 2008-L-007, 2008-L-008 
Consolidated 

V. 
STATE OF OHIO, DEPARTMENT OF 
NATURAi., RESOURCES, et al., 

Defendants-AppellĄants, 

and 


STATE OF OIIIO, 

Defendant-Appellant, 

NA'I'IONAL WILDLIFE FEDERATION, 
iJ(,i f 0 ,7 2 0 .',1q

.

et al., 

C l..f_R 1^ C-) r t;0 i.1i

Intervening Defendants-

SUE''FiEME GCiui'd' ;7{ˇ

Appellants. 

JOINT NOTICE OF APPEAL OF 
DEFENDANTS-APPELLANTS STATF OF OHIO, 
OHIO DEPARTMENT Or NATURAL RESOURCES, AND 
SEAN LOGAN, DII2.ECTOR 



RICHARD CORDRAY (0038034) 
Attorney General ol' Ohio 

KATHLEEN M. 1'RAFFORD (0021753) 
Porter, Wright, MorTis & Arthur, LLP 
41 S. Iiigh Street 
Columbus, Ohio 43215 
614-227-1915 
614-227-2100 fiix 
ktrafford@porterwright.com 

Special Counsel for Defendants-Appellants, 
Ohio Department of Natural Resources and 
Sean Logan, Director 

JAMES F. LANG (0059668) 
FRITZ E. BF,RCKMUELLER (0081530) 
Calfee, Halter & Griswold LLP 
1400 McDonald Investinent Center 
800 Superior Avenue 
Cleveland, Ohio 44114-2688 
216-622-8200 
216-241-0816 fax 

Class Counsel and Counsel for Plaintiffs-
Appellees, 
Robert Merrill, Tru.stee, et al. 


HOMER S. TAFT (0025112) 
20220 Center Ridge Road, Suite 300 


P.O. Box 16216 
Rocky River, Ohio 44116 
440-333-1333 
440-409-0286 fax 
Intervening Plaintiff-Appellee, Pro Se 

L. SCOT DUNCAN (0075158) 
1530 Willow Drive 
Sandusky, Ohio 44870 
419-627-2945 
419-625-2904 fax 
Intervening Plaintiff-Appellec, Pro Se and 
Counsel for Intervening Plaintiff-Appellec, 
Darla J. Duncan 

RICHARD CORDRAY (0038034) 
Attorney General of Ohio 

BENJAMIN C. MIZER* (0083089) 
Solicitor General 

'sCoarrzsel ofRecord 

STEPHEN P. CARNEY (0063460) 

Deputy Solicitor 
CYNTHIA K. FRAZ7INI (0066398) 
JOIIN P. BARTLEY (0039190) 
Assistant Attorneys General 
30 East Broad Street, 17th Floor 
Columbus, Ohio 43215 
614-466-8980 
614-466-5087 fax 

benjamin.mizerQohioattoineygeneral.gov 

CoLuisel for Defendant-Appeliant 
State of Ohio 


NEIL S. KAGAN* (pro hac vice pending) 
*Counsel ofRecord 

Senior Counsel 
National Wildlife Federation 
Great Lakes Regional Center 


21.3 West Liberty Street, Suite 200 
Ann Arbor, Michigan 48104 
734-887-7106 
734-887-7199 fax 


PETER A. PRECARIO (0027080) 
326 South High Street 
Annex, Suite 100 
Cohunbus, Ohio 43215 
614-224-7883 
614-224-4510 fax 


Counsel for Intervening Defendants-

Appellants, 
National Wiidlife Federation anc3 
Ohio Environmental Council 



JOINT NOTICE OF APPEAL OF llF.FENDANTS-APPELI.ANTS STATF, OF 0I1I0, 
OHIO DEPARTMENT OF NATURAL RESOURCFS, AND SEAN LOGAN, DIREC'1'OR 
Defendants-Appellants State of Ohio, Ohio Department of Natural Resources, and Sean 
Logan, Director, give notice of their claimed appeal of right and discretionary appeal to this 
Coivt, pursuant to the Court's Rule 11, Sections 1(A)(2) and (3), from a decision of the Lake 
County Court of Appeals, Eleventh Appellate District, journalized in consolidated Case Nos. 
2008-L-007 and 2008-L-008 on August 24, 2009. Date-stainped copies of the Eleventh 
District's Judgment Entry and Opinion are attached as Exhibits I and 2, respectively, to the 
Defendant-Appellant State of Ohio's Memorandum in Support of Jurisdiction. 
These parties, represented by separate legal counsel listed below, jointly file this notice of 
appeal pursuant to Rule 11, Section 4. However, the parties are &ling separate Memoranda in 
'Support of JLnisdiction, each of rvliich will separately explain why this case raises substantial 
constitutional questions and is of public and great general interest. 

Respectfully submitted, 
RICITARD CORDRAY (0038034) RICHARD CORDRAY (003 34) 
Attorney General of Ohio /' Attqfney General,of Ohio 
:l ^~^.if 71 
\^X.^.=M 
KATIILEEN M. TRAFFO 
1-(A'4-021753) 
ENARIN C^MIZER^ (083089) 
Porter, Wright, Morris & A r, LLP olicitor General 
41 S. High Street *Cozsnsel of Record 
Columbus, Ohio 43215 STFPHF.N P. CARNEY (0063460) 
614-227-1915 Deputy Solicitor 
614-227-2100 fax CYNTI-TIA K. FRAZZINI (0066398) 
ktrafford@porterwright.com JOHN P. BAR'1'LEY (0039190) 
Assistant AttoiYieys General 
Special Counsel forbefendarits-Appellants, 30 East Broad Street, 17th Floor 
Ohio Department of Natural Resources and Columbus, Ohio 43215 
Seasu Logan, Director 614-466-8980 
614-466-5087 fax 
benj amin.rnizer@ohioattorneygeneral. gov 

Counsel for Defendant-Appellant, 
Statc of Ohio 


CFRTIFICATE OF SERVICE 


I certify that a copy of this Joint Notice of Appeal of Defendants-Appellants State oC Oliio, 
Ohio Department of Natural Resources, and Sean Logan, Director, as served by U.S. mail this 

7th day of October, 2009, upon the following 

James F. Lang 
Fritz E. Berckmueller 
Calfee, Halter & Griswold LI,P 
1400 McDonald Investment Center 
800 Superior Avenue 
Cleveland, Ohio 44 1 1 4-2 68 8 

Class Counsel and Counsel for PlaintifCs-
Appellees, 
Robert Merrill, Trustee, et al. 

L. Scot Duncan 
1530 Willow Drive 
Sandusky, Ohio 44870 
Intervening Plaintiff-Appellee, Pro Se and 
Counsel for Intervening Plaintiff-Appellee, 
Darla J. Duncan 

Peter A. Precario 
326 South High Street 
Annex, Suite 100 
Columbus, Ohio 43215 

Counsel for Inteivening Defendants-

Appellants, 
National Wildlife Federation and 
Ohio Environmental Council 

ounsel: 

Neil S. Kagan 
Senior Counsel 
National Wildlife Fecleration 
Great Lakes Regional Center 
213 West Liberty Street, Suite 200 
Ann Arboi, Michigan 48104 

Counsel for Intervening Defendants-

Appellants, 
National Wildlife Federation and 
Ohio Environmental Council . 

Homer S. Ta$ 
20220 Center Ridge Road, Suite 300 


P.O. Box 16216 
Rocky River, Ohio 44116 
Intervening Plaintift=Appellee, Pro Se 

A-4 



STATE ex rel. ROBERT MERRILL, 
TRUSTEE, et al., 

P l a intiffs-Appe1lees/ 

Cross-Appeliants, 

Intervening PlaintifE-Appellee/ 
Gross-Appellant, 

L. SCOT DUNCAN, etal., 
Intervening Plaintiffs-Appellees, 

STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 
Defendants, 

NATIONAL WILDLIFE FEDERATION, et al., 
It!tervenng Defendanks-
App ellants/Cross-Appellees. 

STATE ex re1. ROBERT MERRILL; 
TRUSTEE, et a1., 

P I a i nti#Fs-Appe Eleesl 
Cross Appe3lants. 
HOMER S. TAFT, et al., 
Intervening Plain9iffs-Appellees, 

-vs-

IN THE COURT OF APPEALS 
EL)=VENTH DISTRICT 

JUDGMENT ENTRY 
CASE NO. 200$-L-047 

_.nL:i'ii' :^"Ą . Ą:'Y' -5;?'^ 
xr!t' n A `3flf!7J 


:ˇ+r-;:cSrkC,.!<r'.-Y1 

CASE NO. 2008-L-008 

t 


EXHIBIT 2 

A-5 


STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 

‰ efendants, 
S"fATE OF OHIO, 

Defendant-Appellant/ 
Cross-Appellee. 


For the reasons stated in the opinion of this court, the Ohio Attorney 
General's assignments of error are stricken. Nationai Wildlife Federation's and 
Ohio Department of Natural Resource's first and third assignments of error lack 
merit, while the second assignment is moot. The Ohio Lakefront Group's first 
cross-assignment of error lacks merit, as Homer S. Taft's first and third cross-
assignments of error. Ohio Lakefront Group's second cross-assignment of error, 
as weli as Homer S. Taft's have merit to the extetit indicated. The judgment of 
the Lake County Court of Common Pleas is modified to vacate the portion of the 
judgment concerning the amendment of the littoral owner's deed, and the 

judgment of the Lake County Court of Cotnmon Pleas is hereby affirmed as 

modified. 

It is the further order of this court that the parties share equally costs herein 

taxed. 

The court finds there were reasonable grounds for this appeai. 

4 

JIJDG OLLEEtN MARY O'T LE 

DIANE V. GRENDELL, J., concurs, 

TlMOTI-+Y P. CANNON, J., concurs in part and dissents in part with Concun-ing/ 

Dissenting Opinion. 

2 
A-6 


THE COURT OF APPEALS 
ELEVENTH APPELLATE DISTRICT 
LAKE COUNTY, OHIO 


STATE ex rel. ROBERT MERRILL, OPtNiC)N 
TRUSTEE, et al., 
CASE NO. 2008-L-007 

Pla intiffs-Appelleesl 

M- : ^ .^_. ^...Ą

Cross-Appellants, 

r1 1_a 

c^ĄL'ˇi ity. fiili'EALS 
HOMER S. TAFT, 

.

AUG 24 2009 

Intetvening Plaintiff-Appellee/ 
Cross-Appellant, 


L, SCOT DUNCAN, et alĄ, 

intervening PlaintifPs-Appe(lees, 
-vs-
STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 
Defendants, 

NATIONAL WILDLIFE FEDERATION, et al.; 

Intervening Defendants


Appellants/Cross-Appellees. 

.. ' p A4ornayt'eĄ_+^r,;ir!^ 
STATE ex rel. ROBERT MERRILL, (;P[Se1i-L't'' >I_fl^-:en:r 
TRUSTEE, et al., 

Pieintiffs-Appellees/ 
Cross-Appellants, 


HOMER S. TAFT, et at., 

. Intervening Plafntiff.s-Appellees, 

- vs 


A-7 



STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 

Defendants, 

STATE OF OHIO, 

Defendant-Appellant/ 
Cross-Appellee. 


Civil Appeal from the Court of Common Pleas, Case No. 04 CV 001080. 
Judgment: Modified and affirmed as modified. 

Fritz E. Berckmueller and James F. Lang, Calfee, Halter & Griswold, L.L.P., 1400 
Keybank Center, 800 Superior Avenue, Cleveland, OH 44114-2688 (For PlaintiffsAppellees/
Cross-Appellants). 

Homer S. Taft, pro se, 20220 Center Ridge Road, #300, P.O. Box 16216, Rocky River, 
OH 44116 (Intervening Plaintiff-Appellee/Cross-Appellant). 

L. Scot Duncan, 1530 Willow Drive, Sandusky, OH 44870 (For Intervening Plaintiffs-
Appellees). 
Neil S. Kagan, 213 West Liberty Street, #200, Ann Arbor, MI 48104 and Peter A. 
Precario, Annex, #100, 326 South High Street, Columbus, OH 43215 (For Intervening 
Defendants-Ap pellants/C ross-Appellees). 

Nancy Hardin Rogers, Attorney General, State Office Tower, 17th Floor, 30 East Broad 
Street, Columbus, OH 43215-3428; Cynthia K. Frazzini and John P. Bartley, Assistant 
Attorneys General, 2045 Morse Road, Bldg. D-2, Columbus, OH 43229 (For 
Defend ant-Ap pellant/Cross-Appe llee). 

COLLEEN MARY O'TOOLE, J. 

{¦1} The issue before us in this case is one of first impression, concerning title 
to the lands below the ordinary high water mark of Lake Erie. Lake Erie is a non-tidal, 
navigable body of water, part of which lies within the territorial boundaries of the state of 
Ohio. The natural shoreline of Lake Erie extends approximately 262 miles, within the 


eight counties of Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and 
Ashtabula. 

{¦2} The state of Ohio, through the Ohio Department of Natural Resources 
("ODNR"), has asserted trust ownership rights to the area of land along the southern 
shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level 
by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group,' ("OLG"), 
along with several of its members, many of whom own property adjoining Lake Erie, 
dispute the authority of ODNR to assert these trust ownership rights without first 
acquiring the property in question through ordinary land appropriation proceedings. The 
validity of the ordinary high water mark, set at 573.4 feet International Great Lakes 
Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water 
mark is a boundary that must be determined on a case-by-case basis with respect to 
each parcel bordering the lake. Further, the ODNR's authority to require landowners to 
lease land from the state of Ohio when that land is already contained within the legal 
description in their respective deeds is disputed. 

{¦3} Procedural History 

{¦4} May 28, 2004, OLG, Robert Merrill, and other individuals owning real 
property abutting Lake Erie, filed a lawsuit (Case No. 04CV001080) in the Lake County 
Court of Common Pleas against ODNR, ODNR's director, and the state of Ohio, for 
declaratory judgment, mandamus, and other relief. Immediately thereafter, on said 
date, Homer S. Taft, L. Scot Duncan and Darla J. Duncan filed a complaint (Case No. 

1. Ohio Lakefront Group is a duly formed non-profit corporation which represents owners of littoral 
property on Lake Erie. 
3 

A-9 


04CV001081) in the Lake County Court of Common Pleas against the same 
defendants, containing nearly identical factual allegations and seeking similar relief. 

{1[5} July 2, 2004, an amended complaint seeking certification as a class action 
and for declaratory judgment, mandamus, and other relief was filed in Case No. 
04CV001080. August 12, 2004, the trial court consolidated Case Nos. 04CV001080 
and 04CV001081. 

{¦6} February 23, 2005, ODNR and the state of Ohio filed an answer, a 
counterclaim, and a cross-claim against the United States of America and the United 
States Army Corps of Engineers. The counterclaim sought a declaration that the state 
of Ohio owns and holds in trust for the people of Ohio the lands and water of Lake Erie 
up to the natural location of the ordinary high water mark within the territorial boundaries 
of the state, subject only to the paramount authority retained by the United States for 
the purposes of commerce, navigation, national defense, and international affairs. Also, 
a declaration was sought that the state of Ohio has owned and held those lands and 
waters in trust since statehood. 

{117} This case was removed to the United States District Court for the Northern 
District of Ohio on March 28, 2005, on the motion of the United States of America and 
the United States Army Corps of Engineers. The federal case was dismissed on April 
14, 2006, when the federal district court found that neither the federal defendants nor 
the federal questions were properly before it. Consequently, the case was remanded to 
the court of common pleas. 

{¦8} Class Certification 

{119} June 8, 2006, the parties filed a notice of joint stipulation to class 
certification on count one of the first amended complaint, which sought a declaration 
regarding the extent of the state of Ohio's property rights. Counts two and three of the 
complaint, which deal with constitutional takings issues, were reserved pending the 
outcome of the declaratory judgment action. The trial court certified the following group 
of persons as a class for purposes of pursuing a declaratory judgment action: 
{¦10} "'"** 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' **". To the extent that governmental entities are included in the class, they are 
included solely in their proprietary capacity as property owners and not for any purpose 
or capacity implicating their governmental authority orjurisdiction. 

1. "The parties have stipulated that'upland property' is defined as real property bordering a body of water 
and that, in Ohio, 'littoral property' is defined as upland property that borders an ocean, sea, lake, or a 
bay of any of these water bodies, as opposed to 'riparian property' which is defined as upland property 
that borders a river, stream, or other such watercourse." 
{¦11} The class certification order found the following three questions of law 
common to the class: 

{¦12} "(1) What constitutes the furthest landward boundary of the 'territory' as 
that term appears in R.C. 1506.10 and 1506.11, including, but not limited to, 
interpretation of the terms 'southerly shore' in R.C. 1506.10, 'waters of Lake Erie' in 

R.C. 1506.10, 'lands presently underlying the waters of Lake Erie' in R.C. 1506.11, 

'lands formerly underlying the waters of Lake Erie and now artificially filled' in R.C. 
1506.11, and 'natural shoreline' in R.C. 1506.10 and 1506.11. 

{¦13} "(2) If the furthest landward boundary of the 'territory' is declared to be the 
natural location of the ordinary high water mark as a matter of law, may that line be 
located at the present time using the elevation of 573.4 feet IGLD (1985), and does the 
State of Ohio hold title to all such 'territory' as proprietor in trust for the people of the 
State. 

{¦14} "(3) What are the respective rights and responsibilities of the class 
members, the State of Ohio, and the people of the State in the 'territory."' 

{¦15} Intervenors 

{¦16} Thereafter, the trial court allowed two groups to intervene: (1) Homer Taft 
and L. Scot Duncan, members of the class, and (2) the National Wildlife Federation 
("NWF") and the Ohio Environmental Council ("OEC"), environmental organizations 
whose purpose is to protect the rights of their members to make recreational use of the 
shores and waters of Lake Erie. NWF and OEC assert that the state holds the area of 
the "territory" of the waters of Lake Erie in trust for the public up to the ordinary high 
water mark. 

{¦17} February 13, 2007, the city of Cleveland filed a motion to opt out of the 
class, which motion was held in abeyance pending further order of the trial court. 

{¦18} Overview of Motions for Summary Judgment 

{q19} A motion for summary judgment was filed on behalf of the state of Ohio, 
Department of Natural Resources, its director, and the state, by the Ohio Attorney 
General. In this motion, the state advanced three arguments: 


{1120} "(1) As a matter of law, the furthest landward boundary of the 'territory' as 
that term appears in R.C. 1506.10 and 1506.11, is the ordinary high water mark, and 
the State of Ohio holds title to all such 'territory' as proprietor in trust for the people of 
the state; 

{¦21} "(2) The furthest landward boundary of the 'territory' is the ordinary high 
water mark as a matter of law, and that line may be located at the present time using 
the elevation of 573.4 feet IGLD (1985); and 

{¦22} "(3) The rights and responsibilities of littoral owners in their upland 
property, as well as the respective rights and responsibilities of the federal government, 
the State of Ohio, the public, and the littoral owners in the 'territory,' have long been 
settled in state and federal law, as has the hierarchy of those rights." 

{¦23} In their motion for summary judgment, NWF and OEC concurred with and 
affirmatively adopted the state's position. 

{1124} OLG asserted that under Ohio's case law, public trust rights in Lake Erie, 
extend no farther than the actual waters and those public rights do not extend to the 
shores or uplands. Further, OLG maintained that "shoreline" cannot be defined as the 
ordinary high water mark, for this boundary would run afoul of case law, opinions 
authored by the Ohio Attorney General, ODNR's own rules as set out in the Ohio 
Administrative Code, and would violate the rights of littoral property owners. OLG 
alleged that in locating the ordinary high water mark, ODNR unilaterally adopted the 
Army Corps of Engineers' estimate of 573.4 feet IGLD (1985), which the Corps adopted 
for regulatory purposes unrelated to the establishment of boundaries between private 
property and public trust property. 


{¦25} In their motion for summary judgment, Taft and Homer argued that in 
determining this case, the trial court was required to consider the historical record, 
which was extensively set forth in their brief and attachments. 

{¦26} Trial Court's Ruling on Motions for Summary Judgment 

{¦27} In ruling on the motions for summary judgment, the trial court stated: 

{¦28} "(1) each owner of Ohio real estate that touches Lake Erie owns title 

lakeward as far as the water's edge; (2) if the lakeside owner's deed contains a legal 
description that extends into the lake beyond the water's edge, then that legal 
description is hereby reformed so that the legal description ends at the water's edge; (3) 
likewise, the State of Ohio has ownership in trust of the waters of Lake Erie and the 
lands beneath those waters landward as far as the water's edge, but no farther [sic]. 
With respect to Lake Erie, this is the boundary of the 'territory' that is subject to the 
regulatory authority of the State of Ohio's Department of Natural Resources; and (4) the 
lakeside landowner also has littoral rights, such as the right to wharf out to navigable 
waters, and those littoral rights extend into the lake as an incident of titled ownership of 
property adjoining the lake." 

{1129} The trial court further concluded: 

{¦30} "Defendants-Respondents and Intervening Defendants have failed, as a 
matter of law, to show that the landward boundary of the public trust territory in Ohio 
along the Lake Erie shore is the Ordinary High Water Mark of 573.4 IGLD (1985), and 
Plaintiffs-Relators and Intervening Plaintiffs have failed to show that the lakeward 
boundary of the public trust territory in Ohio along the Lake Erie shore is the Ordinary 
Low Water Mark. The court declares that the law of Ohio is that the proper definition of 


the boundary line for the public trust territory of Lake Erie is the water's edge, wherever 
that moveable boundary may be at any given time, and that the location of this 
moveable boundary is a determination that should be made on a case-by-case basis. 

{¦31} "The court's decision does not attempt to list or comprehensively define all 
of the littoral rights of landowners of Ohio property adjoining Lake Erie, preferring 
instead to have those rights determined on a case-by-case basis." (Emphasis sic.) 

{1132} Standard of Review 
{¦33} In order for a motion for summary judgment to be granted, the moving 
party must prove: 
{1134} ""**(1) [N]o genuine issue as to any material fact remains to be litigated, 

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears from 
the evidence that reasonable minds can come to but one conclusion, and viewing such 
evidence most strongly in favor of the nonmoving party, that conclusion is adverse to 
the party against whom the motion for summary judgment is made." Mootispaw v. 
Eckstein (1996), 76 Ohio St.3d 383, 385. (Citation omitted.) 
{¦35} Summary judgment will be granted if "the pleadings, depositions, answers 
to interrogatories, written admissions, affidavits, transcripts of evidence, and written 
stipulations of facts, if any, """` show that there is no genuine issue as to any material 
fact'**." Civ.R. 56(C). (Emphasis added.) Material facts are those that might affect the 
outcome of the suit under the governing law of the case. Turner v. Turner (1993), 67 
Ohio St.3d 337, 340, quoting Anderson v. Liberty Lobby, Inc., (1986), 477 U.S. 242, 

248. 

{1[36} If the moving party meets this burden, the nonmoving party must then 
provide evidence illustrating a genuine issue of material fact, pursuant to Civ.R. 56(E). 
Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Civ.R. 56(E), provides: 

{¦37} "When a motion for summary judgment is made and supported as 
provided in this rule, an adverse party may not rest upon the mere allegations or denials 
of the party's pleadings, but the party's response, by affidavit or as otherwise provided 
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If 
the party does not so respond, summary judgment, if appropriate, shall be entered 
against the party." (Emphasis added.) 

{¦38} Summary judgment is appropriate pursuant to Civ.R. 56(E), if the 
nonmoving party does not meet this burden. 

{¦39} Appellate courts review a trial court's grant of summary judgment de novo. 
Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. "De novo 
review means that this court uses the same standard that the trial court should have 
used, and we examine the evidence to determine if as a matter of law no genuine 
issues exist for trial." Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 
383, citing Duplerv. Mansffeld Journal Co., Inc. (1980), 64 Ohio St.2d 116. 

{¦40} Ohio's Standing 

{¦41} Before considering the issues, we must ascertain whether the state of 

Ohio has standing to participate in this appeal. We conclude it does not. 

{¦42} On July 16, 2007, ODNR, acting with the consent and direction of 
Governor Strickland, filed a response to the then pending motions for summary 
judgment stating that ODNR "will discharge its statutory duties and will adopt or enforce 


administrative rules and regulatory policies with the assumption that the lakefront 
owners' deeds are presumptively valid." In addition, ODNR asserted that while it would 
still require construction permits for structures that may impact coastal lands, it "no 
longer require[d] property owners to lease land contained within their presumptively 
valid deeds[,]" and that it "must and should honor the apparently valid real property 
deeds of the plaintiff-relator lakefront owners unless a court determines that the deeds 
are limited by or subject to the public's interest in those lands or are otherwise defective 

or unenforceable." 

{¦43} "'Standing' is defined at its most basic as '(a) party's right to make a legal 
claim or seek judicial enforcement of a duty or right.' Black's Law Dictionary (8th 
Ed.2004) 1442. Before an Ohio court can consider the merits of a legal claim, the 

v.
person or entity seeking relief must establish standing to sue. Ohio Contrs. Assn. 
Bicking (1994), 71 Ohio St.3d 318, 320, **'. "'(T)he question of standing depends upon 
whether the party has alleged such a 'personal stake in the outcome of the controversy,' 
as to ensure that 'the dispute sought to be adjudicated will be presented in an adversary 
context and in a form historically viewed as capable of judicial resolution."" (Citations 
omitted.) State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973), 35 Ohio 
St.2d 176, 178-179, **", quoting Sierra Club v. Morton (1972), 405 U.S. 727, 732, *'*, 
quoting Baker v. Carr (1962), 369 U.S. 186, 204, "`", and Flast v. Cohen (1968), 392 

U.S. 83, *'*." Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007Ohio-
5024, at ¦27. (Parallel citations omitted.) 
{¦44} The Ohio Attorney General may only act at the behest of the governor, or 
the General Assembly. R.C. 109.02. In this case, the attorney general represented the 


state due to the activities of the ODNR, which department is under the authority of the 
governor, in whom the constitution vests the "supreme executive power." Section 5, 
Article III, Ohio Constitution. The governor has ordered ODNR to cease those activities 
that made it a party to the action. We find no authority for the attorney general to 
prosecute this matter on his own behalf. We conclude that the state of Ohio no longer 

has standing in this matter, and order its assignments of error and briefs stricken. 

{¦45} Appellants'/Cross-Appellees' Assignments of Error 

{¦46} NWF and OEC2 assert the following assignments of error: 

{147} "[1] The trial court erred in holding that the public trust in Lake Erie is 
demarcated by the line the water of the lake touches at any given time. 
{¦48} "[2] The trial court erred in holding that the Ohio Department of Natural 
Resources may not use the IGLD elevation to establish the high water mark of Lake 
Erie. 
{¦49} "[3] The trial court erred in holding that littoral property owners may 
exclude the people from using the lands below the high water mark of Lake Erie." 
{¦50} OLG's and Taft's Cross-Assignments of Error: 
{¦51} OLG avers the following cross-assignments of error: 
{1[52} "[1] The Trial Court Erred in Finding that the Boundary of the Territory is 

Not the Low Water Mark. 
{¦53} ˇ[2] The Trial Court Erred In Reforming All Littoral Property Deeds to the 
Water's Edge." 
{¦54} Taft asserts the following cross-assignments of error: 

2. NWF and OEC filed a joint brief in the instant case. 
12 

A-18 


{¦55} "[1.] THE [TRIAL] COURT ERRED IN PERMITTING THE 
INTERVENTION OF [NWF] AND [OEC] AS DEFENDANTS AND 
COUNTERCLAIMANTS, AS THEY PRESENTED NO JUSTICIABLE CLAIM AGAINST 
ANY PARTY, AND THEIR APPEAL SHOULD BE DISMISSED. 

{¦56} "[2.] THE [TRIAL] COURT ERRED IN REFORMING THE DEEDS OF 
PRIVATE PROPERTY OWNERS[.] 
{¦57} "[3.] THE [TRIAL] COURT ERRED IN FAILING TO DECLARE THE 
LITTORAL RIGHTS OF PRIVATE PROPERTY OWNERS ALONG LAKE ERIE." 

{¦58} Applicable Law 

{¦59} Prior to analyzing the parties respective assignments and cross-
assignments of error, a brief summary of Ohio case law, statutes, rules and regulations 
regarding the rights of littoral property owners along Lake Erie is in order. For a 
complete history of the development of littoral property rights in the Great Lakes states, 
we can only advise the reader to study the immensely scholarly opinion of the trial court, 
attached hereto as an appendix. 

{¦60} We commence with the lead case of Sloan v. Biemiller (1878), 34 Ohio St. 
492, a quiet title action regarding property on Cedar Point. The Supreme Court of Ohio 
held, at paragraph four of the syllabus: 

{1161} "Where no question arises in regard to the right of a riparian owner to build 
out beyond his strict boundary line, for the purpose of affording such convenient 
wharves and landing places in aid of commerce as do not obstruct navigation, the 

boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to 


the line at which the water usually stands when free from disturbing causes." 
(Emphasis added.) 

{¦62} The Sloan court derived this definition from the opinion of the Illinois 
Supreme Court in Seaman v. Smith (III. 1860), 24 III. 521, and quoted that case with 
approbation in the body of its opinion. Sloan at 512-513. We further note that none of 
the parties to this hard fought contest, nor we ourselves, have found any other syllabus 
law of the Supreme Court of Ohio defining where littoral owners' property extends 
relative to Lake Erie. Consequently, we find this extended quote from Seaman 
illuminating: 

{¦63} "This record presents the question as to what answers the call for Lake 
Michigan, as a boundary line, in the various deeds in a chain of title, held by the plaintiff 
below. If high water mark is the point at which his land terminates, then this judgment 
should be reversed; but if, on the contrary, the line where the water usually stands when 
unaffected by storms and other disturbing causes, is the boundary, then the judgment 
must be affirmed. *** The great lakes of the north, present questions affecting riparian 
rights, that are different from those arising under boundaries on the sea, upon rivers, or 
other running streams. They have neither appreciable tides nor currents, nor are they 
affected, like running streams, by rises and falls produced by a wet or dry season. Yet 
the rules that govern boundaries on the ocean, govern this case. 

{¦64} "A grant giving the ocean or a bay as the boundary, by the common law, 

carries it down to ordinary high water mark. '** The doctrine, it is believed, is well 

settled, that the point at which the tide usually flows is the boundary of a grant to its 

shore. As the tide ebbs and flows at short and regular recurring periods, to the same 

14 

A-20 


points, a portion of the shore is regularly and alternately sea and dry land. This being 
unfit for cultivation or other private use, is held not to be the subject of private 
ownership, but belongs to the public. When the adjacent owner's land is bounded by 
the sea or one of its bays, the line to which the water may be driven by storms, or 
unusually high tides, is not adopted as the boundary. On the contrary, the ordinary high 
water mark indicated by the usual rise of the tide, is his boundary. 

{¦65} "The principle, however, which requires that the usual high water mark is 
the boundary on the sea, and not the highest or lowest point to which it rises or recedes, 
applies in this case, although this body of water has no appreciable tides. Here, as 
there, the highest point to which storms or other extraordinary disturbing causes may 
drive the water on the shore, should not be regarded as the point where the owner's 
rights terminate, nor yet should it not be extended to the lowest point to which it may 
recede from like disturbing causes, But (sic) it should be at that line where the water 
usually stands when unaffected by any disturbing cause." Seaman, supra, at 524-525. 
(Citation omitted.) 

{1166} In State v. Cleveland & Pittsburgh RR. Co. (1916), 94 Ohio St. 61, the 
Supreme Court of Ohio acknowledged the "public trust" doctrine - i.e., that the state 
holds the waters and subaqueous lands of Lake Erie in perpetual trust for the people of 
the state, while littoral owners retain a right to "wharf out" from the shore to the lake's 
navigable waters. Cf. id., at 79-83. However, the court did not define where the public 
trust physically commenced, merely using the term "shore." Id. at 68, 79. 

{¦67} The Cleveland & Pittsburgh court further called upon the legislature to 
codify the public trust doctrine, which the General Assembly did the following year, with 

15 

A-21 



passage of the Fleming Act, presently codified at R.C. Chapter 1506. However, present 

R.C. 1506.10, defining the state's rights in Lake Erie, merely states that they commence 
at the lake's "southerly shore" or "natural shoreline." R.C. 1506.11(A), defining the 
extent of the public trust "Territory," again merely refers to the "natural shoreline." 
{¦68} In State ex rel. Duffy v. Lakefront East Fifty-Fifth Street Corp. (1940), 137 
Ohio St. 8, the Supreme Court of Ohio determined that the Fleming Act, as 
supplemented by the Abele Act of 1925, did not alter the common law of accretion as it 
applied to littoral property owners along Lake Erie. Id. at 11-13. The court consistently 
used the term "shore line," without further description, in referencing where the public 
trust territory commenced. Id. at 9, 11, 12. 

{¦69} Finally, in State ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, the 
Supreme Court of Ohio was presented with a dispute regarding whether construction of 
the east shoreway in Cleveland, Ohio, impinged upon the rights of certain littoral 
property owners. Id. at 316-321. Throughout the body of the opinion, the court 
generally used the term "natural shore line" to describe where the property of littoral 
owners cease, and the public trust in Lake Erie commences. Id. at 317, 319-322, 334, 
337, 339. Notably for the matters at issue herein, the court, in describing the briefs filed 
on the case, states, at 322: 

{¦70} "There is a full discussion of the common-law rule to the effect that the title 
to subaqueous and marginal lands of tidal and navigable waters in Great Britain is in the 
crown, that the law with reference to tidal waters in Great Britain applies not only to tidal 
waters in the United States but likewise is applicable to the waters of Lake Erie, and that 


the title to subaqueous and filled-in lands beyond high water mark is in the state 
bordering upon such waters." (Emphasis added.) 

{¦71} Further, at 337, the Squire court observed: "The littoral owners of the 
upland have no title beyond the natural shore line; they have only the right of access 
and wharfing out to navigable waters." 

{¦72} Moreover, while we recognize that an opinion authored by the Attorney 
General is persuasive authority and not binding on this court, Gen. Dynamics Land 
Sys., Inc. v. Tracy (1998), 83 Ohio St.3d 500, 504, the Ohio Attorney General has 
issued an opinion regarding this matter, which concludes, "[t]he land that lies above the 
natural shoreline of Lake Erie belongs to the littoral owner." 1993 Ohio Atty.Gen.Ops. 
No. 93-025, at 15. The attorney general further remarked: "The 'shoreline' is '(t)he line 
marking the edge of a body of water.' The American Heritage Dictionary 1133 (2d 
college ed. 1985). Naturally, the shoreline of a body of water is in a constant state of 
change." Id. at 11. 

{¦73} Further, the Ohio Administrative Code, Chapter 1501-6, "Lease of Lake 
Erie Submerged Lands," defines the term "shoreline" as "the line of intersection of lake 
Erie with the beach or shore." OAC 1501-6-10(U). "Shore" is defined as the "land 
bordering the lake[,]" OAC 1501-6-10(T) and "beach" means ˇ[a] zone of unconsolidated 
material that extends landward from the shoreline to the toe of the bluff or dune. Where 
no bluff or dune exists, the landward limit of the beach is either the line of permanent 
vegetation or the place where there is a marked change in material or physiographic 
form." OAC 1501-6-10(E). 


{¦74} Having summarized the leading authorities bearing on the questions at 
hand, we turn to the assignments and cross-assignments of error. 

{¦75} Assignments of Error of NWF and OEC 

{¦76} By their first assignment of error, NWF and OEC assert the trial court 
erred in applying dictionary definitions to determine what the "natural shoreline" is under 

R.C. 1506.10 and 1506.11(A). The first issue they raise is that federal law requires that 
the Lake Erie shoreline be defined as the high water mark. In support of this contention, 
they cite to the decision of the United States Supreme Court in Shively v. Bowlby 
(1894), 152 U.S. 1, recognizing both the equal-footing doctrine and the public trust 
doctrine, for the proposition that states upon entering the Union, automatically receive 
land beneath navigable waters below the high water mark.3 
{¦77} We respectfully reject this argument. The Shively court merely noted that 
the public trust doctrine, in England, set the border of the crown's trust for the benefit of 
the public at the high water mark. The Shively court specifically recognized that state 
law determined the scope of the public trust in land beneath navigable waters in this 
country. 

{¦78} Next, NWF and OEC turn to federal statutory law. Citing to the 
Submerged Lands Act ("SLA"), 43 U.S.C.S. 1301-1315, they maintain that Congress 
confirmed a uniform boundary at the ordinary high water mark for all states. 
Specifically, they refer to 43 U.S.C.S 1311(a), which provides: 

{1[79} "*'* [T]itle to and ownership of the lands beneath navigable waters within 
the boundaries of the respective States, and the natural resources within such lands 

3. The "equal-footing" doctrine holds that those states entering the Union following the establishment of 
the United States have the same rights as those originally forming the Union. 
18 

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and waters, and "' the right and power to manage, administer, lease, develop, and use 
the said lands and natural resources all in accordance with applicable State law be, and 
they are hereby, subject to the provisions hereof, recognized, confirmed, established, 
and vested in and assigned to the respective States or the persons who were on June 
5, 1950, entitled thereto under the law of the respective States in which the land is 
located, and the respective grantees, lessees, or successors in interest thereof[.]" 

{¦80} For non-tidal waters, "lands beneath navigable waters" includes "lands 
and water *"* up to the ordinary high water mark as heretofore or hereafter modified by 
accretion, erosion, and reliction[,]" 43 U.S.C.S. 1301(a)(1), and "all filled in, made, or 
reclaimed lands which formerly were lands beneath navigable waters, as hereinabove 
defined[.]" 43 U.S.C.S. 1301(a)(3). 

{¦81} We find this reliance upon the SLA to be misplaced. As the United States 
Supreme Court has observed, the effect of the SLA "was merely to confirm the States' 
title to the beds of navigable waters within their boundaries as against any claim of the 
United States Government." Oregon ex rel. State Land Bd. v. CorvaltisSand & Gravel 
Co. (1977), 429 U.S. 363, 372, fn. 4. Further, state law governs the determination of 
ownership in the land under the Act, as evidenced by the provision "`under the law of 
the respective States in which the land is located *** [.]"' California ex rel. State Lands 
Comm. v. United States (1982), 457 U.S. 273, 288. See, also, Corvallis Sand & Gravel 
Co., at 372, fn. 4 (discussing Bonelli Cattle Co. v. Arizona (1973), 414 U.S. 313). 

{¦82} This issue lacks merit. 
{1[83} By their second issue under the first assignment of error, NWF and OEC 
argue that, in defining the public trust territory in Lake Erie as commencing at anything 


below the high water mark, land is removed from the public trust, which is strictly 
forbidden. See, e.g., Cleveland & Pittsburgh RR. Co., supra, at paragraph six of the 
syllabus. In support of this, they cite to the Fleming Act, and the decisions of the 
Supreme Court of Ohio in Cleveland & Pittsburgh RR. Co., and Squire. They contend 
that these decisions specifically incorporate the United States Supreme Court's decision 
in Shively, recognizing the English doctrine of the public trust in tidal waters, as well as 
that court's decision in Illinois Cent. RR. Co. v. Illinois (1892), 146 U.S. 387, 452, 
making the public trust doctrine applicable to the non-tidal waters of the Great Lakes. 
Consequently, they argue that any interpretation of the Fleming Act requires the courts 
of Ohio to recognize the high water mark as the boundary of the public trust in Lake 

Erie. 

{¦84} We respectfully reject this argument. Just as the public trust in Lake Erie 
cannot be abandoned, it cannot be improperly extended in violation of littoral property 

owners' rights. The Shively court specifically recognized that state law defines the 
boundary of the public trust in navigable waters. We find that any reference by the 
Supreme Court of Ohio to the "high water mark" acting as the boundary of the public 
trust in navigable waters in Cleveland & Pittsburgh RR. Co., and Squire, is simply a 
reference to the history of the public trust doctrine, as imported from English law - not a 
finding as to the boundary of that trust in Lake Erie. 

{¦85} The second issue lacks merit, as does the assignment of error. 

{¦86} By their second assignment of error, NWF and OEC protest the trial 

court's determination that ODNR cannot use the IGLD to establish the high water mark 

for Lake Erie. 


{¦87} As ODNR is no longer enforcing this policy, we find this assignment of 
error moot. 

{¦88} By their third assignment of error, NWF and OEC contend the trial court 
erred in determining that littoral property owners may exclude the public from lands 
below the high water mark of Lake Erie. By his third cross-assignment of error, Taft 
asserts the trial court erred in failing to declare the rights of littoral property owners. As 
the matters are interrelated, for purposes of brevity, we consider them together. We 
respectfully find each to be without merit. 

{¦89} Nearly 130 years ago, the Supreme Court of Ohio observed that littoral 
owners have the right to exclude the public from their property. Sloan, supra. We 
appreciate and respect the fact that, in Ohio, the public has broad access to navigable 
waters, including "all legitimate uses, be they commercial, transportational, or 
recreational." State ex rel. Brown v. Newport Concrete Co. (1975), 44 Ohio App.2d 121, 

128. See, also, R.C. 1506.10 and 1506.11(G): However, contrary to NWF's and OEC's 
assertion, the judgment of the trial court does not abolish the rights of the public to walk 
along Lake Erie. In fact, the public retains the same rights to walk lakeward of the 
shoreline along Lake Erie, but these rights have always been limited to the area of the 
public trust (i.e., on the lands under the waters of Lake Erie and lakeward of the 
shoreline). Therefore, the public does not interfere with littoral property rights when 
their recognized, individual rights are exercised within the public trust; that is, lakeward 
of the shoreline as defined herein. 
{¦90} The littoral owner has certain well-defined rights incident to the ownership 
of shore land. Littoral owners may exercise these rights upon the soil and navigable 


waters lakeward of the shoreline of Lake Erie within the territorial boundaries of the 
state, subject to regulation and control by the federal, state and local governments. 
Those rights include: (1) the right to wharf out to navigable waters to the point of 

navigability for the purposes of navigation; (2) the right of access to the navigable 
waters of Lake Erie; and (3) the right to make reasonable use of waters in front of or 
flowing past their lands. 

{¦91} In its judgment entry, the trial court recognized the above enumerated 
rights of littoral owners. Additionally, the trial court noted that it had not been "asked to 
define categorically all of the littoral rights that are recognized under Ohio law for land 
adjoining Lake Erie. Accordingly, notwithstanding the argumentation of the parties, the 
court declines to make a comprehensive, categorical declaration of what those littoral 
rights are with respect to all members of the class. Such questions are probably best 
left to the resolution of specific disputes involving individual parties who are asserting 
such littoral rights with respect to a specific parcel of land, according to specific deed 
language, and pertaining to a specific area of the Lake Erie coastline." 

{¦92} The trial court generally recognized the special rights that littoral owners 

possess, incident to owning shore land. However, it appreciated that the application of 

such rights to a particular littoral owner or parcel of land would best be resolved on a 

case-by-case basis. The trial court could not conceivably anticipate every possible 

scenario with respect to all members of the class. We find that the trial court properly 

declared the rights of the littoral owners, while acknowledging that individual members 

of the class may have to adjudicate a specific, individualized question. 


{q93} NWF's and OEC's third assignment of error, as well as Taft's third cross-
assignment of error, lack merit. 

{1[94} Cross-Assignments of Error of OLG 

{¦95} We next turn to OLG's first cross=assignment of error, which states: "[t]he 
trial court erred in finding that the boundary of the territory is not the low water mark." 

{¦96} OLG first argues that common usage dictates when interpreting the term 
"natural shoreline." The 1916 edition of Webster's New International Dictionary, relied 
upon by the trial court, defined "shoreline" as the "9ine of contact of a body of water with 
the shore."' OLG states that based upon the 1916 Webster's New International 
Dictionary, "shore" is defined as the land between low and high water marks. As such, 
because theshore[ine" is the line separating the water and the shore, and the "shore" 
describes the land between high and low water marks, the common meaning of the 
"shoreline" must be the low water mark. We find OLG's analysis to be flawed. 

{¦97} First, the trial court found that the terms "shore" and "beach" are 
synonyms in the context of the issues in the instant case and, as a matter of law, they 
mean "'the land between low and high water marks."' Since no party objected and we 
find this definition to be consistent with other dictionary definitions, as well as definitions 
adopted by Ohio courts and administrative agencies, we hold that "shore" is "the land 
between low and high water marks."4 However, this does not mean that the boundary 
of the territory for purposes of the public trust doctrine should be set at the low water 

4. See, e.g., Busch v. Wilgus (Aug. 21, 1922), 1922 Ohio Misc. LEXIS 272, at 14, stating "[t]he term 
'shore' includes and designates the land lying between the high and low water mark[;]" OAC 1501-610(
T) defining "shore" as "the land bordering the lake." Black's Law Dictionary defines "shore" as the 
"[I]and lying between the lines of high- and low-water mark; lands bordering on the shores of navigable 
waters below the line of ordinary high water." Black's Law Dictionary (8 Ed.2004) 1412. 
23 

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mark. Instead, shoreline is the line of actual physical contact by a body of water with 
the land between the high and low water mark undisturbed and under normal 
conditions. See, e.g., Sloan, supra, at paragraph four of the syllabus. 

{¦98} In addition, OLG cites to Wheeler v. Port Clinton (Sept. 16, 1988), 6th Dist. 
No. OT-88-2, 1988 Ohio App. LEXIS 3702, and Mitchell v. Cleveland Elec. Illuminating 
Co. (1987), 30 Ohio St.3d 92, to support the proposition that the natural shoreline is the 
low water mark. However, we find Wheeler and Mitchell to be inapposite to the instant 
situation. 

{¦99} In Wheeler, the appellant, a swimmer who sustained injuries while 
swimming off of City Beach in Port Clinton, Ohio, sought review of the trial court's 
decision in granting the city's motion for summary judgment. Wheeler, supra, at 1-2. In 
reviewing the decision of the trial court, the Sixth District Court of Appeals stated, "[t]he 
north territorial boundary of Port Clinton extends to, but not beyond, the Lake Erie 
shoreline." Id. at 3. Although OLG attempts to utilize this decision as one that supports 
the low water mark as the boundary of the territory, we disagree. As we have 
previously concluded, the shoreline is not the low water mark. Furthermore, the main 
issue before the Wheeler court was whether the city was liable for appellant's injuries, 
not the definition of the public trust boundary. 

{¦100} Similar to Wheeler, the issue before the court in Mitchell was not the 
definition of the public trust doctrine. In Mitchell, "[t]he sole question before [the 
Supreme Court of Ohio was] whether [the] appellee's opening statement and the 
allegations of the amended complaint state a cause of action against Avon Lake." 
Mitchell, supra, at 93. In its discussion of whether Avon Lake owed a duty to 


decedents, the Supreme Court observed that it was "undisputed that Avon Lake's 
territorial limits extend only to the low water line of Lake Erie." Id. at 94. In making this 
statement, the Supreme Court was merely observing that the parties chose not to 
dispute the low water mark as the proper boundary; it clearly was not a legal conclusion 
of the Court. 

{¦101} We, therefore, decline to adopt the low water mark to be the boundary of 
the public trust territory. 
{¦102} Since OLG's second and Taft's second cross-assignments of error are 
interrelated, we consider them in a consolidated analysis. 

{¦103} We agree with OLG's and Taft's assertion that the trial court erred in 
reforming the deeds. First, in reforming the deeds, the trial court went beyond the 
scope of the class certification. Further, since this issue was not before the trial court, 
the parties were not afforded the opportunity to argue their positions for the trial court's 
consideration. Reformation of the littoral owner's deeds could potentially have an 
impact on title insurance policies and the littoral owners' rights established by the 
Fleming Act or other legislation. By reforming all of the littoral owners deeds to the 
waters edge, all parties were deprived of the opportunity to be notified of each other's 
arguments, and to respond to those arguments, which is contrary to traditional notions 
of due process. As a result, we vacate this portion of the trial court's judgment entry. 

{¦104} Taft's First Cross-Assignment of Error 

{¦105}As Taft's first cross-assignment of error, he alleges NWF and OEC 
presented no justiciable claim against any party and, thus, the trial court erred in 
permitting their intervention. 


{¦106} Ohio courts should liberally construe Civ.R. 24 in favor of intervention. 
Indiana Ins. Co. v. Murphy, 165 Ohio App.3d 812, 2006-Ohio-1264, at ¦5. The granting 
or denial of a motion to intervene rests with the discretion of the trial court and will not 
be disturbed on appeal absent the showing of an abuse of discretion. Peterman v. 
Pataskala (1997), 122 Ohio App.3d 758, 761. (Citation omitted.) "`The term "abuse of 
discretion" connotes more than an error of law or judgment; it implies that the court's 
attitude is unreasonable, arbitrary or unconscionable."' (Citations omitted.) Blakemore 

v. Blakemore (1983), 5 Ohio St.3d 217, 219. 
{¦107} Pursuant to Civ.R. 24, there are two avenues of intervention: intervention 
of right and permissive intervention. Civ.R. 24(A)(2) sets forth the relevant requirements 
for intervention of right: 
{¦108} "Upon timely application anyone shall be permitted to intervene in an 
action: "*" (2) when the applicant claims an interest relating to the property or 
transaction that is the subject of the action and the applicant is so situated that the 
disposition of the action may as a practical matter impair or impede the applicant's 
ability to protect that interest, unless the applicant's interest is adequately represented 
by existing parties." 

{¦109}To be entitled to intervene as of right, pursuant to Civ.R. 24(A), the 
applicant must demonstrate: (1) the application is timely; (2) an interest in the property 
or transaction that is the subject of the suit; (3) the disposition of the action may impair 
or impede his ability to protect that interest; and (4) the existing parties do not 
adequately protect that interest. Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 

352. (Citations omitted.) 

{¦110} In his brief, Taft alleges NWF and OEC failed to demonstrate a "legally 
protectable" interest in the real estate boundary in question. We disagree. 

{¦111} "Civ.R. 24(A) requires that the applicant claim an interest relating to the 
property or transaction which is the subject of the action. While the claim may be 
shown to be without merit, "`*" it is not required that the interest be proven or 
conclusively determined before the motion is granted." Blackburn at 354. (Internal 
citation omitted.) 

{11112}According to the affidavit of David B. Strauss, attached to NWF and OEC's 
brief in support of the motion to intervene, NWF is a non-profit organization whose 
mission is to conserve natural resources and the wildlife that depends on such 
resources for the use and aesthetic enjoyments of its members. NWF is comprised of 
approximately 921,922 members nationwide, approximately 303,997 members in the 
states bordering the Great Lakes, and approximately 98,114 members in Ohio alone. 

{¦113} According to the affidavit of Vicki Deisner, also attached to the brief in 
support of the motion to intervene, OEC is an Ohio, non-profit corporation, whose 
purpose is to preserve and protect the environment of the state of Ohio and to represent 
the interests of its members across the state regarding environmental and conservation 
issues. OEC is comprised of approximately 2,135 individual members and 113 group 
members that represent thousands of citizens throughout the state of Ohio. 

{¦114} As further stated in their brief in support of the motion to intervene, the 
NWF and OEC sought to intervene since the relief requested by appellant, if granted, 
would extinguish the rights of its members to make recreational use of the shore along 


Lake Erie below the ordinary high water mark and would have a direct and substantial 
adverse impact upon the recreational use and aesthetic enjoyments of such shorelands. 

{¦115}Therefore, by fulfilling the requirements as set forth under Civ.R. 24(A) 
and, further, since it has been established that Ohio courts should liberally construe 
Civ.R. 24, we conclude the trial court was correct in granting NWF's and OEC's motion 

to intervene. 
{¦116} The second type of intervention, permissive, is governed by Civ.R. 24(B), 
which states: 
{¦117} "Upon timely application anyone may be permitted to intervene in an 
action: (1) when a statute of this state confers a conditional right to intervene; or (2) 
when an applicant's claim or defense and the main action have a question of law or fact 
in common. When a party to an action relies for ground of claim or defense upon any 
statute or executive order administered by a federal or state governmental officer or 

agency or upon any regulation, order, requirement or agreement issued or made 

pursuant to the statute or executive order, the officer or agency upon timely application 

may be permitted to intervene in the action. In exercising its discretion the court shall 

consider whether the intervention will unduly delay or prejudice the adjudication of the 

rights of the original parties." 

{¦118} We further conclude that NWF and OEC were permitted to intervene 

under Civ.R. 24(B), permissive intervention, since they demonstrated their defense and 

counterclaim were both legally and factually related to the claims of OLG. In addition, it 

is evident that NWF and OEC's intervention did not "unduly delay or prejudice the 

adjudication of the rights of the original parties." Civ.R. 24(B). 


{¦119} Taft also argues that the counterclaim of NWF and OEC failed to state a 
claim upon which relief could be granted. Civ.R. 12(B) provides, in pertinent part: 

{¦120} "Every defense, in law or fact, to a claim for relief in any pleading, whether 
a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the 
responsive pleading thereto if one is required, except that the following defenses may at 
the option of the pleader be made by motion: *** (6) failure to state a claim upon which 
relief can be granted 

{¦121} Save for the exceptions stated in Civ.R. 12(H), a party generally waives all 
defenses and objections not properly raised by motion, a responsive pleading, or 
amendment allowed under Civ.R. 15(A). Although Taft alleges he asserted a Civ.R. 
12(B)(6) claim in his responsive pleading to NWF's and OEC's counterclaim, a review of 
the record in this case reveals that this responsive pleading is not part of our record on 
appeal, for it was only filed in Case No. 04CV001081, which is not pending before this 
court. Therefore, we cannot consider it on appeal. App.R. 9(A). 

{¦122} Based on the foregoing, Taft's first cross-assignment of error is without 
merit. 

{¦123} Public Trust Boundary is the Water's Edge 

{¦124} In Sloan, the Supreme Court of Ohio affirmed private property rights in the 
"shores" of Lake Erie and held the boundary between public and private rights is, "the 
line at which the water usually stands when free from disturbing causes." Id. at 
paragraph four of the syllabus. 

{¦125} As we have identified, the Supreme Court of Ohio recognized the public 
trust doctrine by holding, "[t]he title of the land under the waters of Lake Erie within the 


limits of the state of Ohio, is in the state as trustee for the benefit of the people, for the 
public uses to which it may be adapted." Cleveland & Pittsburgh RR. Co., at paragraph 
three of the syllabus. (Emphasis added.) As a result of the Supreme Court's decision, 
the Fleming Act, now codified at R.C. Chapter 1506, was enacted. In Squire, the 
Supreme Court of Ohio further spoke of the title to the lands under the waters of Lake 
Erie, stating: 

{1[126} "The state of Ohio holds the title to the subaqueous soil of Lake Erie, 
which borders the state, as trustee for the public for its use in aid of navigation, water 
commerce or fishery, and may, by proper legislative action, carry out its specific duty of 
protecting the trust estate and regulating its use." Id., at paragraph two of the syllabus. 
(Emphasis added.) The Squire court also declared that littoral owners of the upland do 
not have title beyond the natural shoreline, for they only have the right of access and 
wharfing out to navigable waters. 

{¦127} Based upon its decisions, the Supreme Court has identified that the 
waters, and the lands under the waters of Lake Erie, when submerged under such 
waters, are subject to the public trust, while the littoral owner holds title to the natural 
shoreline. As we have identified, the shoreline is the line of contact with a body of water 
with the land between the high and low water mark. Therefore, the shoreline, that is, 
the actual water's edge, is 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 in lands privately held by littoral owners. 

{t128} By setting the boundary at the water's edge, we recognize and respect the 
private property rights of littoral owners, while at the same time, provide for the public's 


use of the waters of Lake Erie and the land submerged under those waters, when 
submerged. The water's edge provides a readily discernible boundary for both the 
public and littoral landowners. 

{¦129} Based on principle, authority, and considerations of public policy, we 
determine that the waters and submerged bed of Lake Erie when under such waters is 
controlled by the state and held in public trust, while the littoral owner takes fee only to 
the water's edge. 

{¦130} Conclusion 

{¦131} Based on the above analysis, the Ohio Attorney General's assignments of 
error are stricken. NWF's and OEC's first and third assignments of error lack merit, 
while the second assignment is moot. OLG's first cross-assignment of error lacks merit, 
as do Taft's first and third cross-assignments of error. OLG's second cross-assignment 
of error, as well as Taft's, have merit to the extent indicated. The judgment of the Lake 
County Court of Common Pleas is modified to vacate the portion of the judgment 
concerning the amendment of the littoral owner's deed, and the judgment of the Lake 
County Court of Common Pleas is hereby affirmed as modified. 

{¦132} It is the further order of this court that the parties share equally costs 
herein taxed. 
{¦133} The court finds there were reasonable grounds for this appeal. 
DIANE V. GRENDELL, J., concurs, 


TIMOTHY P. CANNON, J., concurs in part and dissents in part with Concurting/ 
Dissenting Opinion. 

Appendix attached. 

TIMOTHY P. CANNON, J., concurring in part and dissenting in part. 

{¦134} I respectfully concur in part with the majority opinion as to the overall 
disposition of the case; however, I dissent in part as it pertains to the disposition of the 
issue of standing. 

{¦135} At the outset, I would note a concern and the need for caution about 
issuing rulings on matters not raised by any party, particularly when the parties have not 
been given an opportunity to brief those issues. While App.R. 12(A)(2) allows an 
appellate court to consider issues not briefed by the parties, I believe the better rule is 
""*" when a court of appeals chooses to consider an issue not briefed by the parties, the 
court should notify the parties and give them an opportunity to brief the issue." State v. 
Blackburn, 11th Dist. No. 2001-T-0052, 2003-Ohio-605, at ¦45, citing State v. Peagler 
(1996), 76 Ohio St.3d 496, 499, fn.2. 

{¦136} The state of Ohio is a named defendant. The majority cites R.C. 109.02 
for the proposition that the attorney general may "only act at the behest of the governor, 
or the General Assembly." I do not agree with that reading of the statute. The statute 
states: "[w]hen required by the governor or the general assembly, the attorney general 
shall appear for the state in any court or tribunal in a cause in which the state is a party, 
or in which the state is directly interested." R.C. 109.02. (Emphasis added.) This is 
language of inclusion, not of exclusion. There is nothing that prohibits the attorney 

32 

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general from appearing and representing the state when suit has been filed against it. I 
would not suggest the attorney general needs an order from the governor or legislation 
from the General Assembly to defend the state in litigation without first giving the 
attorney general the full opportunity to brief the issue. It is, quite simply, ground that 
does not need to be plowed in this case. As acknowledged by the majority, it is clear 
the citizens of the state of Ohio have an interest in the public trust portion of the waters 
of Lake Erie. Consequently, they are entitled to representation. 


IN THE COURT OF COMMON PLEAS 
LAKE COUNTY, OHIO 
JUDGE EUGENE A. LUCCI 
STATE ex rel. ROBERT MERRILL, TRUSTEE, et al. ) CASE NO. 04CV001080 


Plaintiffs-Relators 


and 
HOMER S. TAFT, et al. 
Intervening Plaintiffs 
and Plaintiffs-Relators, Pro Se 

vs. 

STATE OF OHIO, DEPARTMENT OF 

NATURAL RESOURCES, et aL 
Defendants-Respondents 
and Counterclaimants 

and 
NATIONAL WILDLIFE FEDERATION,et al. 

Intervening Defendants and 
and Counterclaimants 


ORDER GRANTING 
PLAINTIFFS' AND INTERVENING PLAINTIFFS' MOTIONS FOR 
PARTIAL SUMMARY JUDGMENT, 
IN PART 


ORDER DENYING 
DEFENDANTS' MOTION FOR 
SUMMARY JUDGMENT 


and 


ORDER DENYING 
INTERVENING DEFENDANTS' MOTION FOR 
SUMMARY JUDGMENT 


EXHIBIT 4

1 

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TABLE OF CONTENTS 

Introduction .......................................................:............................................................... 4 
Foundational Issues ...................................................................................................:.. 4 
Nature of the Dispute between Plaintiffs and ODNR ................................................ 5 
Nature of the Dispute between Plaintiffs and NWF and OEC ................................. 6 
Recent Legislative Treatment of the Issues ................................................................ 6 
Recent Executive Branch Treatment of the Issues .........................................8 
American View of Sovereignty .................................................................................... 9 
Issues to be resolved in this case .................................................................................... 11 
Historical development of the State of Ohio .....:........................................................... 13 
Timeline and History of the Western Reserve ......................................................... 13 
Continued Conflicting Title Claims in the Ohio region .......................................... 19 
Pleadings and procedural history of this case .............................................................. 24 
First Amended Complaint Seeks Declaratory Judgment/Mandamus ................... 24 


Declare plaintiffs own fee title between OHWM and actual boundary .................... 25 
Declare public trust does not apply to non-submerged lands .................................. 25 
Declare state lacks authority to compel owners to lease back to state .................... 25 
Declare ODNR land leases to be void as to plaintiffs land below OHWM ............. 25 
ODNR has unconstitutionally taken plaintiffs' land ................................................: 25 
Plaintiffs are entitled to compensation for the taking of their land .......................... 25 


Answer, Counterclaim, and Cross Claim of ODNR ................................................ 26 
ODNR's Answer ..........................................:........................................................... 26 


Denial of all allegations and assertion of 17 affirmative defenses .......:............... 26 


ODNR's Counterclaim ...........:............................................................................... 26 


Federal law governs conveyances made by federal land grants .......................... 27 
Federal land grants convey no title below OHWM .............................................. 27 
Federal law governs title to navigable waters received at statehood .................. 27 
States' title to navigable waters is by reservation, not constitutional grant ........ 27 
Federal common law says Ohio's grant extends to OHWM ................................. 27 
Federal common law says U.S. retains navigational servitude ............................ 28 
FSLA confirmed States' title to submerged lands ...............................:................. 28 
FSLA defined "lands beneath navigable waters" up to OHWM .......................... 28 
FSLA confirmed that U.S. retained navigational servitude .................................: 28 
Lake Erie is a non-tidal navigable body ofwater ........:........................................ 29 
Navigable bodies ofwater include areas covered during high water .................. 29 
Ohio was granted title in trust up to OHWM at statehood in 1803 ...................... 29 
After statehood, title below OHWM is governed by state law ............................:. 29 
Ohio has granted wharfing, access, and reasonable use rights to owners........... 29 
Littoral rights are not titles to land, but rather licenses or franchises ................. 30 
Ohio law governs movements in the recognized OHWM ..................................... 30 
Public rights in the navigable waters of Lake Erie ............................................... 31 
Ohio's public trust law prior and subsequent to the Fleming Act of 1917........... 31 
Defining "natural shoreline " and "southerly shore " (RC 1506.10-11) .............. 31 
Ohio has never granted or abandoned title below OHWM .................................. 32 
Ohio has never granted littoral rights of exclusive use along Lake Erie ............. 32 
Plaintiffs claim fee title below OHWM under Ohio law and their deeds ............. 32 


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Locating the ordinary high water mark ................................................................ 33 
Under Ohio law, the State authorizes all improvements below OHWM .............. 33 
Declaratoryjudgment must resolve these actual, justiciable controversies....:.... 34 

ODNR's Prayer for Declaratory Relief on Counterclaim ................................... 34 


State of Ohio holds title as trustee up to OHWM .......:.........................................: 34 
Ohio never granted or abandoned title to land below OHWM ............................ 34 
Landowners hold 3 littoral rights: wharfage, access, and reasonable use .......... 35 
Plaintiffs have no title and no exclusive right below OHWM ............................... 35 


573.4 IGLD (1985) is not arbitrary for determining OHWM ............................... 35 
Plaintiffs must get permission from ODNR to improve below OHWM ................ 35 
ODNR's Cross Claim against the United States and Army Corps .................... 36 


Federal law governs the scope of pre-statehood federal land grants ...............36 
Federal land grants, pre-statehood, convey no title below OHWM ..................... 36 
Plaintiffs claim to own fee title below OHWM by their original patent ............... 36 
Federal law governs the scope of rights received at statehood ............................ 37 
Navigable waters were reserved by the States ...................................................... 37 
Equal Footing Doctrine gives Ohio same rights as original 13 States ................ 37 
Under federal common law, original grant to State was to OHWM .................... 37 
Under federal common law, U.S. retained its navigational servitude .................. 37 
FSLA confirmed States' title to submerged lands ..........:...................................... 37 
FSLA defined "lands beneath navigable waters" up to OHWM .......................... 38 
FSLA confirmed that U.S. retained navigational servitude .................:................ 38 
Lake Erie is a non-tidal navigable body of water ....:..:...........,..:........:................. 38 
Navigable bodies of water include areas covered during high water ... ............... 38 
Ohio was granted title in trust up to OHWM at statehood in 1803 ...................... 39 
After statehood, title below OHWM is governed by state law .............................. 39 
Ohio has granted wharfing, access, and reasonable use rights to owners........... 39 
Littoral rights are not titles to land, but rather licenses or franchises ................. 40 
Ohio law governs movements in the recognized OHWM ..............:...................... 40 
Locating the ordinary high water mark as 573.4 IGLD (1985) ........................... 40 
State of Ohio's federally-approved coastal zone management program .............. 41 
OCMP Enforceable Policy 16 requires state approval of improvements ............. 41 
If Plaintiffs prevail, Ohio will losefederal approval of its OCMP ....................... 41 
Plaintiffs dispute ODNR's authority to require leases below OHWM ................. 41 
There is an actual and justiciable controversy between the parties ....................: 42 


Prayer for Relief in Defendants' Cross Claim ..................................................... 43 
Removal to Federal District Court .......................................................44 
Summary Judgment Arguments of the Parties and Court's Analysis ....................... 44 
SJ arguments of plaintiffs' class, including OLG, on Count I ................................ 45 


Public trust rights are limited to the "waters" of Lake Erie .................................... 45 
The actual intersection of Lake Erie's waters and shoreline fuctuates ................... 45 
Ohio tried to redefine the public trust boundary several times recently .................. 46 
First, Ohio cited the low water datum as the boundary ....................................... 46 
Second, Ohio cited the water's edge as the boundary .......................................... 47 
Third, ODNR has now adopted the Army Corps' HWM ...................................... 47 
The General Assembly set the "natural shoreline " as the LWM .............................. 48 


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Statutes set the "Territory" boundary as the "Natural Shoreline" ......................... 49 
The "shoreline" is where the water touches the land on shore ............................ 50 
The "shore" means the land between high and low water marks .................... 50 
The "Territory" includes lands presently underlying Lake Erie waters .......... 51 
Ohio Supreme Court allegedly held "natural shoreline" is LWM ................... 51 
State of Ohio has previously declared the boundary to be LWM ..................... 53 
Case law and common meaning says "shoreline " cannot be HWM ................ 54 
Using HWM as public trust boundary violates ODNR's own rules ................. 54 
Using HWM as public trust boundary violates Ohio S. Ct. case law ................ 55 
Using HWMas public trust boundary violates property rights ...................57 
Ohio AG advised ODNR that public trust did not extend to HWM ................:. 58 
OHWM cannot be set at 573.4IGLD .........................:.......................................... 58 
The parties have different rights in the "territory................................................ 59 
Littoral rights include access, exclusion, new property, and reclamation ....... 60 
SJ arguments of Plaintiffs Taft and Duncan ........... ................................................. 60 
Landward boundary of Public Trust Should Allegedly be L WM .............................. 61 
SJ Arguments of Defendants State of Ohio, ODNR ................................................ 64 
SJ Arguments of NWF and Ohio Environmental Council ..................................... 67 
Conclusions and Rulings of the Court ...... .................................................................... 68 


Summary of the Court's Rulings and Rationales .............:............................................ 68 


Summary Judgment ...................................................................:................................... 69 


Answers to the Nine CertiSed Questions ...................................................................... 71 


(A) The rights ofthe class members ...................................::............................... 73 


(B) The responsibilities of the class members .:................................................... 74 


(C) The rights of the State of Ohio ...................................................................... 74 


(D) The responsibilities of the State of Ohio ....................................................... 74 


(E) The rights of the people of the State of Ohio ................................................ 75 


(F) The responsibilities of the people of the State of Ohio ................................. 75 


SUMMARY JUDGMENT RULINGS ...:.................:.................................................... 75 


[¦1] The table of contents, headings, and paragraph numbers in this opinion are for the 

convenience of the court and the parties. They form no part of the opinion of the court. 

Introduction 

Foundational Issues 

[¦2] Foundationally, this case concerns the American view of the relationship between: (1) the 

derivative sovereignty of individuals and other legal persons in the State of Ohio, as that 

sovereignty relates to their private right to own real property bordering the southern shore of 

Lake Erie; (2) the derivative sovereignty of the State of Ohio, as that sovereignty relates to the 

state's ownership in trust of the waters of Lake Erie and the soil beneath the lake; and (3) the 

balance or harmony that the law requires with respect to: (a) protecting the fee title and littoral 

rights of the lakeside landowner, and (b) properly limiting the power of the state to regulate the 

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landowner's private property rights, while still allowing the state enough sovereign power to 

exercise its trust responsibilities properly. 
[¦3] Many of the cases cited by the parties review the common law of England in an effort to 
resolve issues related to the boundaries of the Great Lakes. In doing so, the courts have often 

surveyed the British viewl of the relationship between the sovereign legal rights and 
responsibilities of the royal crown in the waters of Great Britain and those of riparian and littoral 
landowners. In the present case, the court believes that there is a distinctively American view of 
sovereignty that undergirds the proper balancing of the rights of the parties in Ohio, and that this 
American view of sovereignty is distinguishable from the British view. 
[¦4] Under Ohio law, the common law of England relating to navigable waters does not apply 
to Lake Erie because "(o)ur large freshwater lakes or inland seas are wholly unprovided for by 
the law of England. As to these, there is neither flow of tide nor thread of the stream; and our 
local law appears to have assigned the shores down to ordinary low-water mark to the riparian 
owners, and the beds of the lakes, with the islands therein, to the public."2 The public's rights, 

such as navigation and fishing, exist in the navigable waters of Lake Erie 3 

Nature of the Dispute between Plaintiffs and ODNR 

[¦5] The State of Ohio, through the Ohio Department of Natural Resources, has asserted trust 
ownership rights to the area of land along the southerrl shore of Lake Erie up to the ordinary high 
water mark as determined by the U.S. Army Corps of Engineers in 1985 (573.4 feet above sea 
level). Plaintiffs dispute the authority of ODNR to assert these trust ownership rights apart from 
first acquiring the property in question through ordinary land appropriation proceedings in the 
relevant courts of common pleas 4 Plaintiffs also dispute the validity of the arbitrary choice of 

573.4 feet IGLD (1985) as a uniform measure of the ordinary high water mark, arguing that the 
ordinary high water mark is a boundary that must be determined on a case by case basis with 
1 Some authorities have referenced Magna Carta ( aka Magna Charta) of 1215 as the first English instance of 
balancing the rights of the crown to alienate non-navigable (i.e. non-tidal) land to private individuals, and the rights 
of the public to fish in navigable (i.e. tidal) waters. See, Lincoln v. Davis (1884), 53 Mich. 375, 381, 19 N.W. 103, 

1884 Mich. LEXIS 691; Arnold v. Mundy ( 1821), 6 N.J.L. 1, 1821 N.J.Sup.Ct. LEXIS 1 (The court described 

Magna Carta as the resolution of property disputes arising out of the seizure of common law rights by powerful 
landed barons on the one hand, and excessive royal grants to courtiers and7oyal favorites on the other.) 
2 Sloan v. Biemiller (1878), 34 Ohio St. 492, 516-17, 1878 Ohio LEXIS 176. 


Bodi v. The Winous Point Shooting Club (1897), 57 Ohio St. 226, 48 N.E. 944, 1897 Ohio LEXIS 114. 
ˇ Both the Courts of Common Pleas and the Probate Courts in Ohio have jurisdiction to hear land appropriation 
City of Cleveland v. City ofBrookpark (1995), 103 Ohio App.3d 275, 659 N.E.2d 342, 1995 Ohio App.


cases. 
LEXIS 1731. 


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respect to each parcel bordering the lake. Plaintiffs also dispute the authority of ODNR to 
require plaintiffs to lease land from the State of Ohio when that land is already contained within 

the legal description in their respective deeds. 
Nature of the Dispute between Plaintiffs and NWF and OEC 

[116] As set forth in the motion to intervene, filed by the National Wildlife Federation 
("NWF") and the Ohio Environmental Council ("OEC") on June 5, 2006, these intervening 
defendants are environmental organizations whose purpose it is to protect the rights of their 
members to make recreational use5 of the shores and waters of Lake Erie. NWF and OEC assert 
that the State of Ohio holds the area of the "Territory" of the waters of Lake Erie in trust for the 
public up to the ordinary high water mark. 
{¦7] The scope of the court's decision will affect the rights of approximately 15,500 littoral 
owners of parcels of real property abutting Lake Erie within the State of Ohio. These parcels of 
real estate are located along approximately 311 miles of Ohio coastline6 within the eight counties 
of Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula.7 

Recent Legislative Treatment of the Issues 

[¦8] In recent years, the Ohio General Assembly has made three attempts - all, to date, 
unsuccessful - to address some of the issues that must be decided by the court in this case. 
[¦9] In the 125th General Assembly (2003-2004), HB 218 was introduced in the Ohio House 
on June 10, 2003. On December 11, 2003, the bill passed its third consideration and was 
introduced in the Ohio Senate, where it was assigned to the Environmental Affairs Committee. 


No further action was taken on the bill. 
[1f10] With respect to the issues to be decided in this case, HB 218 sought to do the following: 


(1) enact R.C. 1506.01(J) to provide a legislative definition of "ordinary high water mark" by 
reference to the mark established by the United States Army Corps of Engineers; (2) amend R.C. 
1506.10 and enact R.C. 1506.10(A) to list and define "littoral rights" as that term is used in R.C. 
1506.11; (3) amend R.C. 1506.10 and enact R.C. 1506.10(B)(1) to declare legislatively that the 
5 NWF and OEC distinguish their position from that of the State of Ohio by arguing that the state is defending "the 
broad public interest" whereas NWF and OEC are defending the specific recreational uses held by their members, 
including the alleged right of their members to walk along the shore of Lake Erie. They also point out that some of 
their members are not citizens of the State of Ohio, even though they make recreational use of the waters and shores 

of Lake Erie. 
6"Ohio Coastal Atlas" Page 1 of "County Profiles" subsection, Ohio Department of Natural Resources, retrieved 
December 22, 2005. 
' httnĄ//www doY state.oh us/mapl/cntvman asp. 


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boundary of the waters of Lake Erie within the State of Ohio is the point "where the waters of 
Lake Erie make contact with the land," and that this is the territory that the State of Ohio owns as 
proprietor in trust for the people of the state; (4) enact R.C. 1506.10(B)(2) to declare legislatively 
that property owners on Lake Erie have the right to exercise littoral rights, subject to all 
applicable provisions of the Revised Code; (5) amend R.C. 1506.11(A) and enact R.C. 

1506.11(A)(1) to define the term "territory" as being bordered by the "ordinary high water mark" 
instead of the "natural shoreline; and (6) amend R.C. 1506.11(A) and enact R.C. 1506.11(A)(2) 
to constrain the construction of the use of the ordinary high water mark as being for 
administration of this section only, and not for the determination of any kind of property 
boundary. Similarly, R.C. 1521.22 would have been renumbered as R.C. 1521.40, and it would 
have constrained the construction of the use of the ordinary high water mark as being for 
administration of this section only, and not for the determination of any kind of property 
boundary. 

[¦11] In the 126th General Assembly (2005-2006), SB 127 was introduced in the Ohio Senate 
on April 19, 2005, where it was assigned to the Environmental Affairs Committee. No further 

action was taken on the bill. 

[112] With respect to the issues to be decided in this case, SB 127 sought to do the following: 
(1) enact R.C. 1506.01(N) to list and define "littoral rights" as that term is used in Chapter 1506 
of the Revised Code; (2) amend R.C. 1506.01 and enact R.C. 1506.01(0), (P), and (Q) to define 
the terms "accretion," "reliction," and "avulsion;" (3) amend R.C. 1506.10 to declare 
legislatively that the proprietary trust of the State of Ohio is subject to the littoral rights of littoral 
owners; (4) amend R.C. 1506.11(B), (C), and (D) to limit the state's ability, through the director 
of natural resources, to require littoral owners to enter into a lease to construct waterfront 
improvements by exempting the exercise of littoral rights; and (5) renumber R.C. 1521.22 as 
R.C. 1521.40, and enact subsections (A), (B), and (G) to define the term "ordinary high water 
mark by reference to the regulatory mark set by the Army Corps of Engineers, prohibit the use of 
that term to determine property boundaries, and prohibit anything in this section from being 
construed as determining the boundary of the state's ownership of the waters of Lake Erie as 
provided in section 1506.10 of the Revised Code." 
7 

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[¦13] In the 127th General Assembly (2007-2008), SB 189 was introduced in the Ohio Senate 
on June 21, 2007, where it was again assigned to the Environmental Affairs Committee. No 

further action has been taken on the bill. 
[¦14] With respect to the issues to be decide in this case, SB 189 sought to do the following: (1) 
enact R.C. 1506.01(N) to list and define "littoral rights" as that term is used in Chapter 1506 of 
the Revised Code; (2) amend R.C. 1506.01 and enact R.C. 1506.01(0), (P), and (Q) to define the 
terms "accretion," "reliction," and "avulsion;" (3) amend R.C. 1506.10 to declare legislatively 
that the proprietary trust of the State of Ohio is presumptively subject to the littoral rights of 
littoral owners to restore lands lost by avulsion or artificially induced erosion; (4) amend R.C. 
1506.11(A), (B), and (C) to limit the state's ability, through the director of natural resources, to 
require littoral owners to enter into a lease to construct waterfront improvements by exempting 
the exercise of littoral rights; and (5) renumber R.C. 1521.22 as R.C. 1521.40, and enact 
subsections (A), (B), (G), and (H) to define the term "ordinary high water mark by reference to 
the regulatory mark set by the Army Corps of Engineers, prohibit the use of that term to 
determine property boundaries, and prohibit anything in this section from being construed as 
determining the boundary of the state's ownership of the waters of Lake Erie as provided in 

section 1506.10 of the Revised Code." 

Recent Executive Branch Treatment of the Issues 

[¦15] It must be noted that on July 16, 2007, ODNR filed a short response to the pending 
motions for summary judgment in which ODNR announced its new regulatory policy under the 
direction of Governor Ted Strickland,8 and stated ODNR "must and should honor the apparently 
valid real property deeds of the plaintiff-relator lakefront owners unless a court determines that 
the deeds are limited by or subject to the public's interests in those lands or are otherwise 
defective or unenforceable." ODNR also stated that, although it would continue to require pre-
construction permits for structures that could impact coastal lands, it would "no longer require 
property owners to lease land contained within their presumptively valid deeds." 
[¦16] Accordingly, it would appear that plaintiffs-relators and defendants-respondents are now 
in agreement9 that, in the absence of a court order finding that a littoral owner's deed is limited 
by the public's interests or is defective or unenforceable, the State of Ohio lacks the authority to 

8 Govemor Strickland was newly-elected in November 2006, and his administration began in January 2007. 
9 The parties also appear to agree that, whatever the proper boundary is between the public trust territory and the title 
rights of littoral landowners, that boundary is always coterminous and never overlaps. 

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require such landowners to obtain leases for land contained within the legal description in their 

presumptively-valid deeds. Nevertheless, the issue still needs to be resolved by this court 

because: (1) the regulatory policy of the ODNR may change yet again with future changes in the 

occupancy of the Governor's office; (2) the legislature may enact legislation that contravenes the 

Ohio Constitution or otherwise constitutes an unlawful taking without just compensation; and (3) 

intervening defendants NWF and OEC have not stipulated to ODNR's change in its regulatory 

policy. 

American View of Sovereignty 

[¦17] Since this case involves balancing the sovereign rights of the property owner against the 

sovereign power and trust ownership of the State of Ohio of lakefront property in the State of 

Ohio, as well as the rights of the public, it is worthwhile to begin this analysis by reviewing the 

historical American view of sovereignty. 

[¦18] As evidenced by the bold and succinct language of the Declaration of Independence in 

1776, the American view of sovereignty began its articulation by recognizing that all10 human 

beings have certain unalienable rights, derived first and foremost from God as their Creator.1l 

These unalienable rightslZ are evidence that individual human beings have been given a derived 

sovereignty that is ultimately subordinate to God's complete sovereignty.13 The Declaration also 

states that it is one of the primary purposes of civil government to use its delegated sovereignty 

10 Some might suggest that this written recognition in 1776 that all human beings have certain unalienable rights 
was contradicted in 1789 by the enactment of the U.S. Constitution which failed to abolishslavery, and which 
included language in Article I, Section 2, stating that slaves ("other persons") would be legally considered as 3/5 of 
non-slaves for purposes of apportioning representation and direct taxation. But this was in no way a denial of the 
principles of the Declaration. History has proven that - although it would take a bloody Civil War and several 
constitutional amendments to do it- the trajectory set in motion by the principles of sovereignty announced in the 
Declaration of Independence would be fulfilled in time. 
""W e hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator 
with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure 
these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." 
Declaration of Independence, ¦2 (1776) (emphasis added). 
12 A similar provision appears in the Ohio Constitution in Article VIII, Section 1, which states: "That all men bom 
equally free and independent, and have certain natural, inherent and unalienable rights; amongst which are the 
enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining 
happiness and safety; and every free republican government, being founded on their sole authority, and organized 
for the ˘reat ^urpose of protecting their riehts and liberties, and securing their independence; to effect these ends, 
they have at all times a complete power to alter, reform or abolish their govemment, whenever they may deem it 
necessary." (emphasis added). 
13 Although it may be unpopular today to discuss the legal concept of sovereigntyin theological terms, our founding 
documents demonstrate that the American system of govemment was and is based on the presupposition that all 
sovereignty - both that of the individual and that of civil government- ultimately comes from God. See, "The 
Christian Life and Character of the Civil Institutions of the United States," by B.F. Moms (1864). 

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to secure the unalienable rights that God has given to all human beings.14 By implication, 

therefore, if civil government acts in a way that improperly takes away the unalienable rights that 

God has given to all human beings, then the civil government has stepped outside of the scope of 

its derivative sovereignty and has begun to engage in a usurpation of authority. That kind of 

usurpation is properly called tyranny. 

{1119] In this sense, then, it is no less an act of unconstitutional tyranny for the government of 

the State of Ohio to take the property of an individual or other person who owns lakeside 

property - without giving just compensation - than it is for an individual or other person to use 

his or her ownership of lakeside property to interfere substantially with the public rights in Lake 

Erie that are held in trust by the State of Ohio. 

[¦20] Under the American system of government- which was ultimately founded on the U.S. 
Constitution some thirteen years after the Declaration of Independence was signed - "we the 
people" have voluntarily delegated a limited amount of our derived sovereignty to the local, 
state, territorial, and federal governments for the specific and limited purposes that are defined 
by local ordinances, state and federal statutes, the various state constitutions, and the U.S. 
Constitution:15 Hence, just as the delegated sovereignty of "the people" is ultimately subordinate 
to the sovereignty of God, so the delegated sovereignty of local, state, and federal governments is 
ultimately subordinate to the original derived sovereignty of "the people."16 This was the 
principle on which the founding fathers based their declaration that, "[W]henever any Form of 
Government becomes destructive of these ends [i.e. securing the unalienable rights that men 
were endowed with by their Creator], it is the Right of the People to alter or to abolish it, and to 
institute new Government, laying its foundation on such principles and organizing its powers in 
such form, as to them shall seem most likely to effect their Safety and Happiness.i17 It is also 

14 ". .. That to secure these rights, Governments are instituted among Men, deriving their just powers from the 

consent of the governed." Declaration of Independence, ¦2 (1776). 
15 It should be noted that the Northwest Ordinance of 1787govemed the territory that eventually became the State of 
Ohio in 1803. Prior to the ratification of the U.S. Constitution in 1789, the abortive Articles of Confederation enacted 
in 1777 - formed a national govemment that was not consistent with the foundational principles set forth in 
the Declaration of Independence. See, John Quincy Adams, The Jubilee of the Constitution (1839). 

16ldaho v. Coeur d'Alene Tribe oflddho (1997), 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 ("The Court from 
an early date has acknowledged that the people of each of theThirteen Colonies at the time of independence 
`became themselves sovereign: and in that character hold the absolute right to all their navigable waters and the soils 
under them for their own common use, subject only to the rights since surrendered by the Constitution to the general 
govemment."' (emphasis added). 
". Declaration of Independence, ¦2 (1776). 

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one of the foundational rationales for the holding in Arnold v. Mundy,18 where the court 

observed, "I am of the opinion, that when Charles II took possession of this country, by his right 

of discovery, he took possession of it in his sovereign capacity,... that those royalties, therefore, 

of which those rivers, ports, bays, and coasts were part, by the grant of King Charles, passed to 

the Duke of York, as the governor of the province, exercising the royal authority, for the public 

benefit, and not as proprietor of the soil ....[U]pon the Revolution, all those royal riQhts vested 

in the neonle of New Jersey, as the sovereien of the country, and are now in their hands[.]" 

(Emphasis added).19 

[¦21] This American view of sovereignty is distinctive, and it must constrain our understanding 

of the earliest cases that sought simultaneously to: (1) apply traditional English common law in 

the early years of the United States, and (2) adapt that common law to the categorically different 

topographical, political, and governmental conditions that exist in the American republic. 

Issues to be resolved in this case 

[¦22] In resolving the issues raised by the parties in this case, the court observes first that there 

is a uniqueness to: (1) the historical development of the American form of government as a 

democratic republic founded by "the people;"20 (2) the revolutionary manner in which the United 

States was established as a sovereign nation upon the Earth;21 and (3) the physical nature and 

extent of the Great Lakes, including Lake Erie 22 These unique factors affect how principles of 

8 Arnold v. Mundy (1821), 6 N.J. 1, 1821 N.J.Sup.Ct. LEXIS 1. 
19 See Massachusetts v. New York (1926), 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838, 1926 U.S. LEXIS 608 (Headnote 
2). See, Shively v. Bawlby (1894), 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331, 1894, U.S. LEXIS 2090 ("When the 
Revolutiontook place, the people of each state became themselves sovereign; and in that character hold the absolute 
right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights 
since surrendered by the Constitution to the general government ˇ) 
20 The modem form of the nation-state as a vehicle of political sovereignty entitled to be free from outside 
interference began with the Treaty of Westphalia in 1648, which ended the Thirty Years War in Europe. But prior 
to the United States, no such nation state had been founded by "the people." 
21 "This act [the establishment of the U.S. Constitution] was the complement of the Declaration of Independence; 
founded upon the same principles, carrying them out into practical execution, and forming with it, one entire system 
of national government. The Declaration was a manifesto to the world of mankind, to justify the one confederated 
people, for the violent and voluntary severance of the ties of their allegiance, for the renunciation of their country, 
and for assuming a station for themselves, among the potentates of the world - a self-constituted sovereign- a self-
constituted country. In the history of the human race this had never been done before." John Quincy Adams, The 
Jubilee of the Constitution, (1839) (emphasis added). 
22 As originally constituted, none of the thirteen original colonies had large inland seas of fresh water forming a 
border with Canada; therefore, it is no surprise that their wholesale adoption of the English common law would be 
somewhat unwieldy when applied by states bordering the Great Lakes. Hardin v. Jordan (1891), 140 U.S. 371, 11 
S.Ct. 808,35 L.Ed. 428, 1891 U.S. LEXIS 2472. 

11 

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common law - particularly principles of the common law in England - should or should not 

apply to this case. 

[123] Second, as framed by the "Notice of Joint Stipulation to Class Certification on Count One 
of the First Amended Complaint," filed June 8, 2006, the court observes that it is being asked to 
issue a declaratory judgment that will define the following specific questions of law: 
1) What constitutes the farthest landward boundary of the "territory" as that term appears in 

R.C. 1506.10 and 1506.11? 
2) What is the proper interpretation of the term, "southerly shore" in R.C. 1506.10? 
3) What is the proper interpretation of the term, "waters of Lake Erie" in R.C. 1506.10? 
4) What is the proper interpretation of the term, "lands presently underlying the waters of Lake 
Erie" in R.C. 1506.11? 
5) What is the proper interpretation of the phrase, "lands formerly underlying the waters of 

Lake Erie and now artificially filled" in R.C. 1506.11? 
6) What is the proper interpretation of the term, "natural shoreline" in R.C. 1506.10 and 

1506.11? 

7) If the farthest landward boundary of the "territory" is declared to be the natural location of 
the ordinary high water mark as a matter of law, may that line be located at the present time 

using the elevation of 573.4 feet IGLD (1985)? 
8) If the line may be located at the present time using the elevation of 573.4 feet IGLD (1985), 
does the State of Ohio hold title to all such "territory" as proprietor in trust for the people of 

the State? 
9) What are the respective rights and responsibilities of the class members, the State of Ohio, 

and the people of the State in the "territory?" 
[¦24] In reviewing the issues to be decided, the court also echoes the 19ffi Century observance 
of Chief Justice Kirkpatrick in Arnold v. Mundy,23 where he observed that the issues in this kind 

of case raise new questions that have never before come before the courts of Ohio "in this 
shape," involving questions of great importance, immense interests, and that lay at the 
foundation and extent of private property rights and the state's ownership in trust of the waters 

and soil of Lake Erie. 

z3 Arnold v. Mundy (1821), 6 N.J. 1,1821 N.7.Sup.Ct. LEXIS 1. 

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[¦25] The court notes in passing that none of the issues currently before the court specifically 

calls for a declaration of the rights and responsibilities of the parties to lands governed by the 

federal Swamp Land Act of September 28, 1850. With respect to swamp lands, therefore, the 

court observes that property rights in such lands have been treated differently under both state24 

and federal law. Swamp lands are generally treated as property that can be transferred by the 

state in fee absolute to individuals and other persons, free of the public trust?5 

Historical development of the State of Ohio 

[¦26] Questions of title and questions of history are inevitably tied together, and the present 

case is no exception. Accordingly, a brief review of the history of the creation of the State of 

Ohio is appropriate before entering into the legal analysis of the court. 

[¦27] Tn 1800, while serving in the U.S. House of Representatives, John Marshall - the future 

Chief Justice of the United States Supreme Court - made a written report to the House of 

Representatives in Washington, D.C. in which he sought to communicate an accurate and official 

timeline and history of the origin of the "Western Reserve," out of which the State of Ohio was 

established. That timeline and history can be summarized as follows: 

Timeline and History of the Western Reserve 

1497 King Henry VII, of England, obtained title to the northern continent of America by 
discovery first made and possession first taken under a commission given to Sebastian 
Cabot. 

1606 April 10th, James I, King of England, granted a charter in response to an application by 
Sir Thomas Gates and others for a license to settle a colony in that part of America called 
Virginia, not possessed by any Christian prince or people. He divided the latitudinally-
defined country into two colonies. 

The first colony (Jamestown) consisted of the citizens of London and was defined as the 
east coast lands between the latitudes of 34 and 41 degrees north. Jamestown was given 
the exclusive right to license additional settlements toward the mainland beyond the 
initial grant of fifty miles of coastland, and other subjects of the King were expressly 
forbidden from settling in the back country without a written license from the colony. 

' See, Glass v. Goeckel (2004), 262 Mich.App. 29, 683 N.W.2d 719, 2004 Mich. App. LEXIS 1229 (Court of 
Appeals noted that the Michigan statute governing the ordinary high water mark for Lake Huron specifically excepts 
"property rights secured by virtue of a swamp land grant or rights acquired by accretions occurring through natural 
means or reliction"). See, Sterling v. Jackson (1888), 69 Mich. 488, 37 N.W. 845, 1888 Mich. LEXIS 754 (The 
federal Swamp Land Act of 1850 conveyed to the states in fee all lands within the purview of the act, and such title 
in fee became vestedin the state from the date of the act. Accordingly, a state could grant to an individual title in 
fee to such lands.) 

u State v. Lake St. Clair Fishing and Shooting Club (1901), 127 Mich. 580, 87 N.W. 117,1901 Mich. LEXIS 1040. 

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The second colony (Plymouth) consisted of Thomas Hanham and others of the Town of 
Plymouth and was defined as consisting of east coast lands between the latitudes of 38 
and 45 degrees north, with the proviso that no plantation be made within one hundred 

miles of a prior plantation. 

By the same charter, the King agreed to give letters patent to the persons nominated or 
assigned by the council of each colony "as for the manor of East Greenwich, in the 
county of Kent, in free and common soccage26 only, and not in capite 27" The letters 
patent were intended to be assurance from the patentees that they would establish their 
plantations in accordance with the orders of the colony's council. 

1609 May 23`d, King James gave the first colony (Jamestown) a second charter in which they 
were incorporated by the name of "The Treasurer and Company of Adventurers and 
Planters of the city of London, for the first colony of Virginia." This second charter, 
granted in response to the application of the colony, enlarged and explained the first 

grant. 

1611 March 12'', King James granted the first colony (Jamestown) another charter, in response 
to the colony's request, extending the seaward reach of the grant from 100 miles to 300 
leagues?$ The new grant also extended the latitudinal boundary from 34 degrees north to 
30 degrees north, provided always that none of the granted territory was actually 
possessed or inhabited by any other Christian prince or state, nor be within the bounds of 
the northern colony (Plymouth). 

1620 November 3`a, King James gave a charter to the second colony (Plymouth) and declared 
that the land between the 40th and the 48th degrees of north latitude should be called 
"New England." He also incorporated a council at Plymouth, in the county of Devon, 
and granted to them and their successors all that part of America between 40 degrees to 
48 degrees, "and in length of, and within all the said breadth aforesaid, throughout all the 
main lands, from sea to sea, together with all the firm lands, &c., upon the main, and 
within the said islands and seas adjoining." The charter also contained a proviso that 
excepted any lands "actually possessed or inhabited by any Christian prince or state" and 
any lands within the boundaries of the southern colony. The charter also commanded the 
council to distribute and assign lands within the charter to the adventurers as they should 

think proper. (emphasis added). 

1624 July 15th, James I granted a commission for the government of Virginia. The commission 
stated that the previous charters for the first colony had been legally voided upon a quo 
warranto proceeding brought in England. 

z6 "Socage." The modem spelling uses only one "c." The term means "A species of tenure, in England, whereby the 

tenantheld certain lands in consideration of certain inferior services of husbandry to be performed by him to the lord 

of the fee. "Free" socage was viewed as a kind of service that was both honorable and certain. See Black's law 

Dictionary, Revised Fourth Edition (1968). 

21 "Capite." Tenure in capite was an ancient feudal tenure, whereby a man held lands of the king immediately. See 

Black's Law Dictionary, Revised Fourth Edition (1968). 

28 A league is approximately 3 statute miles. Webster's New World Dictionary of the American Language (1968). 

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1624 August 20a', James I granted another commission for the government of Virginia, reciting 
again the voiding of the previous charters through a quo warranto proceeding that arose 
when the Treasurer and Company of the colony failed to submit their charters to be 
reformed. 

1625 May 13ffi, Charles I proclaimed and declared - after alleging that the letters patent to the 
colony of Virginia had been legally questioned and then judicially repealed and adjudged 
void - that the government of the colony of Virginia shall immediately depend on the 
King and not be committed to any company or corporation. "From this time Virginia was 
considered a royal government, and it appears that the Kings of England, from time to 
time, granted commissions for the government of the same." "The rieht of makina grants 
of lands was vested in and solely exercised by the Crown." "The colonies of Maryland, 
North and South Carolina, Georgia, and part of Pennsylvania, were erected by the Crown 
within the chartered limits of the first colony of Virginia." (emphasis added). 

1628 March 4th, The Council of Plymouth granted to Sir Henry Roswell, and others, a tract of 
land called Massachusetts. 

1629 March 4a', King Charles I confirmed the sale of Massachusetts to Sir Henry Roswell and 
others and granted them a charter, but once again limited the grant with a proviso not to 
extend to lands possessed by a Christian prince, or within the limits of the southern 
colony. 

1631 March 19th, the Earl of Warwick granted to Lord Say-and-Seal and others a described 
part of New England; the land had been previously granted to the Earl of Warwick by the 
council of Plymouth in 1630. 

1635 June 7a', the council of Plymouth surrendered their charter to the Crown. 

1635 Lord Say-and-Seal and other associates appointed John Winthrop their Governor and 
agent to take possession of their territory, which he did by beginning a settlement near the 
mouth of the Connecticut River. A number of English colonists began to emigrate from 
Massachusetts to the Connecticut river settlement because the Massachusetts settlers 
found themselves to be without the patent of that colony. They formed into a political 
association by the name of the Colony of Connecticut and purchased from Lord Say-and-
Seal, and others, their 1631 grant from the Earl of Warwick. 

1661 The Colony of Connecticut petitioned King Charles II for a charter of government that 
would reflect the history of the previous thirty years: (1) colonization; (2) adoption of a 
voluntary form of government; (3) their grant from Lord Say-and- Seal and others; (4) 
their acquisition by purchase and conquest. They sought power equal to that of the 
Massachusetts colony, or of the lords from whom they had purchased the land, and they 
sought confirmation of the grant or patent they had obtained from the assigns of the 
Plymouth council. 

15 

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1662 King Charles II granted the requested charter in which he constituted and declared John 
Winthrop and others his associates, a body corporate and politic, by the name of the 
Governor and Company of the English Colony of Connecticut in New England, in 
America. 

1664 March 12a', King Charles II granted to James, Duke of York a tract on the eastern coast 
of North America, from the St. Croix River in Nova Scotia to Long Island. This grant 
overlapped part of the lands included in the previous charter to Connecticut, and part of 
the grant to James, Duke of York also contained lands that had been settled by Christian 
nations prior to the charter of Connecticut. A dispute therefore arose between the Duke 
of York and the Colony of Connecticut respecting the bounds of their respective grants. 

1664 April 23`d, King Charles sent a letter to the Governor and Company of Connecticut in 
which he speaks of having renewed their charter. 

1664 October 13th, Commissioners arrived to resolve the boundary dispute, and the General 
Assembly of the Colony of Connecticut appointed agents to wait on the Commissioners. 
On November 30th, the Commissioners determined the proper boundaries of the disputed 

lands. 

1673 June. New York was recovered by the Dutch, and their government was ceded by peace 
treaty in 1674. 

1681 March 4th, Charles II granted Pennsylvania to William Penn. 

1730 The Duke of York obtained a renewal of the patent, and claimed a re-settlement of New 
York, which was finally effected when the Biram River was established as the border. 

1754 July 9ffi, "At a meeting of commissioners from sundry of the then colonies at Albany ... 
it was, among other things, agreed and resolved ...[t]hat his majesty's title to the 
northerq continent of America appears to be founded on the discovery thereof first made, 
and the possession thereof first taken in 1497 under a commission from Henry VII of 
England to Sebastian Cabot.... That all lands or countries westward from the Atlantic 
ocean to the South Sea between 48ˇ and 34ˇ north latitude, was expressly included in the 
Grant of Charles I to divers of his subjects, so long since as the year 1606, and afterwards 
confirmed in 1620, and under this grant the colony of Virginia claims extent as far west 
as the South Sea; and the ancient colonies of the Massachusetts Bay and Connecticut 
were by their respective charters made to extend to the said South Sea: so that not only 
the right of the sea coast, but to all the inland countries from sea to sea, has, at all times, 
been asserted by the Crown of England." 

1754 
Some settlements were made from Connecticut on lands on the Susquehanna, about 
Wyoming,29 within the chartered limits of Pennsylvania, and also within the chartered 

29 "Wyoming" refers not to the western state or territory, but rather to an area near Wilkes-Barre, Pennsylvania. See, 
httpĄ//en wikipedia or˘/wiki/Wvomine Pennsylvania. 

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limits claimed by Connecticut, which produced a letter from the Governor of Connecticut 

to the Governor of Pennsylvania disclaiming any right to do so. 

1755 May. The Susquehanna Company presented a petition to the General Assembly for 
Connecticut praying for the assent of the Legislature to a petition to his majesty for a new 
colony within the chartered limits of Connecticut and describing lands lying west of New 
York. The Legislature expressed their willingness to acquiesce if the King were to grant 
such a new colony. 

1763 The Treaty of Paris resulted in the King of France ceding to the King of Great Britain all 
land in the Louisiana province of North America. 

1774 The British parliament passed an Act declaring and enacting an annex to the Province of 
Quebec. The annex was bounded by the "eastern and southeastern bank of Lake Erie 
followine the bank until the same shall be intersected by the northern boundary, granted 
by the charter of the province of Pennsylvania, in case the same shall be so intersected; 
and from thence, along the said northern and western boundaries of said province, until 
the said western boundary strikes the Ohio. But in case the said bank of the said lake 
shall not be found to be so intersected, then ...; and northward to the southern boundary 
of the territory granted to the merchants, adventurers of England, trading to Hudson's 
bay. ..." The Act also provided that this annex to Quebec would not affect the boundary 
of any other colony, and that the Act would not alter any rights under any grant or 
conveyance previously made to lands therein 30 (emphasis added). 

1779 August 31s`, an agreement was concluded between commissioners duly appointed by 
Virginia and Pennsylvania resolving a boundary dispute concerning the Mason-Dixon 
line. Pennsylvania ratified this agreement on September 3, 1780. 

1779 November 27`s, the Legislature of Pennsylvania vested the estate of the proprietaries in 
the Commonwealth. The charter of Pennsylvania included part of the land in the charter 
of Connecticut (between the 41st and 42 nd degrees of north latitude), giving rise to a 
dispute between the two colonies. Pursuant to the weak Articles of Confederation then in 
effect, the dispute came to a final decision before a court of commissioners on December 
30, 1782. The commissioners concluded that the State of Connecticut had no right to the 
lands included in the charter of Pennsylvania, and that the State of Pennsylvania had the 
right of jurisdiction and pre-emption. 

1780 September 6th, Congress passed a resolution calling upon the States having claims to the 
western country to surrender their claims liberally. 

1783 October.31 Notwithstanding Connecticut's acquiescence in the decision of the 
connnissioners resolving the 1779 boundary dispute with Pennsylvania, Connecticut did 

3o Marshall omits any reference in his timeline to the Declaration of Independence, which was signed on July 4, 

1776. 

31 Marshall also omits any reference to the Treaty of Paris, which officially concluded the American Revolutionary 
War, and which was signed on September 3, 1783. 


17 

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not abandon its claim to lands west of Pennsylvania. Connecticut passed an Act asserting 
that it had "undoubted and exclusive right of jurisdiction and pre-emption to all the lands 
lying west of the western limits of the State of Pennsylvania and east of the River 
Mississippi, and extending between latitude 41 degrees north and 42 degrees 2 minutes 
north. Connecticut claimed this land under the authority of the charter granted by King 
Charles II to the Colony (now State) of Connecticut, bearing the date of April 23`d, 1662. 

1783 November 15ffi, Connecticut Governor Trumbull issued a proclamation stating the State 
of Connecticut intended to maintain its claim to the territory west of Pennsylvania. 
1784 April 29th, Congress adopted a resolution urging the states to again consider ceding their 


claims on westem lands. 

1786 May. The State of Connecticut authorizes delegates to go to Congress and sign a deed of 
release and cession of lands west of Pennsylvania. On May 26a`, 1786, congress resolved 
to accept the release and cession once the deed was presented for that purpose. 

1786 September 14ffi, the delegates from Connecticut executed the deed of cession. Other 
similar cessions were made by Virginia, New York, and Massachusetts. 

1786 October. The Connecticut Legislature passed an act directing the survey of "that part of 
their western territory not ceded to Congress, lying west of Pennsylvania, and east of the 
River Cayahoga [sic], to which the Indian right had been extinguished; and by the same 
act opened a land office." Under this act, a part of the tract was sold 32 

1788 June 6a', Congress directed the geographer of the United States to ascertain the boundary 
between the United States and the States of New York and Massachusetts, agreeably to 
the deeds of cession of those states, and also directed that the meridian line between Lake 
Erie and the State of Pennsylvania being run, the land lying west of the said line, and 
between the State of Pennsylvania and Lake Erie, should be surveyed for sale. (Emphasis 

added). 

1788 September 3d, Congress passed a resolution transferring to Pennsylvania all rights to the 
land surveyed as being between Lake Erie and Pennsylvania. 

1792 The Connecticut Legislature granted 500,000 acres (The Firelands) in the westem part of 
the retained territory to certain citizens for property bumed in the Connecticut cities of 
New London, New Haven, Fairfield, and Norwalk. Following these grants, many 
transfers of parts of this land were made for valuable consideration. 

1795 May. The Connecticut Legislature passed a resolution appointing a committee to receive 
proposals for the purchase of the Connecticut lands west of Pennsylvania. The 
committee was authorized to negotiate, contract, and execute deeds to accomplish its 
purpose. The resolution limited the committee's authority to contract by requiring that all 

32 The sale of these lands, and other land sales that took place before Ohio became a state, support the position of 
plaintiffs-relators regarding whether pre-statehood transactions are relevant to determining the proper boundary of 


the trust territory today. 

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contracts for the sale of the entire territory be consummated together at one time, and that 
the purchasers would hold their respective parts as tenants in common of the whole tract 
or territory, and not in severalty. The committee's contract authority was also limited in 
that the minimum sale price was set at one million dollars "in specie" with interest at six 

percent per annum. 

1795 September 9`h, the Committee signed the quit-claim deeds to the Connecticut lands west 
of Pennsylvania. 

1796 May 18'', Congress passed an act entitled, "An act providing for the sale of the lands of 
the United States Northwest of the River Ohio, and above the mouth of the Kentucky 
River." 

1800 
As of the date of Marshall's historical report to Congress, he also gave the following 
status report on the ten-current conditions in the Western Reserve: 

(1) 
The Legislature of Connecticut had appropriated the money arising from the sale 
of the lands for the support of schools, and had pledged the annual interest as a 
perpetual fund for that purpose; 
The purchasers had surveyed the entire tract east of the Cuyahoga River into 
townships five miles square; 


Thirty-five of the surveyed townships were already settled by about a thousand 

inhabitants; 
Mills had been built, and roads had been cut through the territory to the extent of 
seven hundred miles; and 

Numerous sales and transfers of parcels of land had been made. 

[¦28] Congressman Marshall also stated, "As the purchasers of the land commonly called the 

Connecticut Reserve hold their title under the State of Connecticut, they cannot submit to the 

Government established by the United States in the Northwestern Territory, without endangering 

their titles, and the jurisdiction of Connecticut could not be extended over them without much 

inconvenience. Finding themselves in this situation, they have applied to the Legislature of 

Connecticut to cede the jurisdiction of the said territory to the United States. In pursuance of 

such application, the Legislature of Connecticut, in the month of October 1797, passed an act 

authorizing the Senators of the said State in congress to execute a deed of release on behalf of 

said State to the United States of the jurisdiction of said territory." 

Continued Conflicting Title Claims in the Ohio region 

[¦29] Subsequent to Congressman Marshall's March 21, 1800 report to Congress, on October 

1, 1800, President Adams sent an American mission to Paris where they concluded a commercial 

treaty with the French. On the very same day, France purchased Louisiana from Spain in secret. 

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After the inauguration of Thomas Jefferson on March 4, 1801, by treaty signed April 30, 1803, 

Napoleon sold all the Louisiana territories which Spain had ceded to France. For fifteen million 

dollars, Louisiana was transferred to the United States 33 But even this transfer of title to the 

enonnous territory of approximately 530 million acres was not without its uncertainties. Some 

doubted whether Napoleon had the legal right to sign these lands away. Some were concerned 

that the title deed received by the United States was faulty. And some looked to the U.S. 

Constitution in vain for a clause that expressly empowered the federal govennnent to carry out 

such an act.34 

[1[30] Although not noted in John Marshall's report to the House of Representatives in 1800, at 

the end of the Revolutionary War the British crown had surrendered its western lands as far as 

the Mississippi River to the United States under the terms of Article 2 of the Treaty of Paris 

signed September 3, 1783 35 At that time, the British referred to these lands as "crown lands," 

and they were known to the colonists as "back lands" or "back country."36 

[t31] In 1783, the interests in the land were many. 37 The British had previously won these 

lands from the French by the united arms of the King and the colonies. After the Treaty of Paris 

at the end of the American Revolution, the lands lying beyond the Ohio River were referred to in 

the public councils of the colonies and in the proceedings of Congress as "The Western 

Territory." Later, when the famous Ordinance of 1787 was passed, these lands became known as 

the "Northwest Territory." 

33 A History of the English-Speaking Peoples, Vol III, The Age ofRevolution, by Winston S. Churchill (1957), pp. 
285-286. 
34 President Jefferson claimed that the negotiations were valid under his treaty-making powers in the Constitution. 
35 It is interesting to note that, inkeeping with the view of sovereignty first articulated by the Declaration of 
Independence in 1776, the Treaty of Paris - which constitutes the first official act by the United States of America 
among the nations of the world - begins with the following7anguage: "In the name of the most holy and undivided 
Triqity. It having pleased the Divine Providence to dispose the hearts of the most serene and most potent Prince 
George the Third, by the grace of God, king of Great Britain, France, and Ireland, defender of the faith, duke of 
Brunswick and Lunebourg, arch-treasurer and prince elector of the Holy Roman Empire, etc., and of the United 
States of America, to forget all past misunderstandings and differences that have unhappily interrupted the good 
correspondence and friendship which they mutually wish to restore, and to establish such a beneficial and 
satisfactory intercourse, between the two countries upon the ground of reciprocal advantages and mutual 
convenience as may promote and secure to both perpetual peace and harniony ...[they] have agreed upon and 
confirmed the following articles." Hence, the language of the treaty acknowledges that the sovereignty of the King 
of Great Britain and the sovereignty of the United States of America was subject to the disposition of "the Divine 
Providence." 

36 Dyer, Albion Morris, "First Ownership of Ohio Lands" (1969) as reprinted by the Genealogical Publishing 

Company, Baltimore, MD. 

" "It would be difficult to find any country so covered with conflicting claims of title as the Territory of the 

Northwest." Discovery and Ownership of the Northwestern Territory, and Settlement of the Western Reserve, by 

James A. Garfield, (1873). 

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[1132] Four colonies had covered the property with overlapping titles based on vague and 

confusing royal grants and Indian treaties 38 During the period governed under the awkward and 

weak Articles of Confederation, the United States was expressly bound by the Articles to respect 

the claims of the various states to these lands. In addition, many tribes of Indians occupied the 

territory as hereditary owners, and their right of habitation had been confirmed to them by royal 

proclamation.39 There were also complications from pledges of bounty land to members of the 

military, indeterminate grants within the territory to independent companies, squatters, and 

British garrisons still encouraging natives in their hostilities 40 In short, when the United States 

took title to the Northwest Territory, there were many conflicting claims still to be resolved 

within the context of the "firm league of friendship" established by the Articles of 

Confederation.41 

[1f33] As Congressman Marshall had made clear in his report to Congress, the presence of such 

title conflicts was nothing new to the Northwest Territory. As early as the summer of 1776, just 

prior to the issuance of the Declaration of Independence, and in the midst of threats of British 

invasion, the colony of Virginia had unilaterally claimed jurisdiction and possession of all lands 

and waters of the region between the Chesapeake frontage and the Mississippi River. Virginia 

warned off all intruders and announced intentions of setting up dependent territorial govel-nments 

westward of the Allegheny Mountains 42 During a Maryland legislative convention held in late 

October 1776, delegates strongly opposed this land-grab by Virginia and voted to contest and 

deny Virginia's title claim to these back lands. For some time thereafter, the Congress refused to 

consider the matter of the territorial lands, choosing instead to focus on the more pressing issues 

38 Dyer, Albion Morris, "First Ownership of Ohio Lands" (1969) as reprinted by the Genealogical Publishing 
Company, Baltimore, MD. Massachusetts and Connecticut rested their title claims on royal charters; New York 
claimed title by the historic deed of the Six Nations [of the Iroquois] as well as its charter of 1614; Virginia's claim 
was rooted in the royal grants and European treaties as supported by the subsequent military achievement of Clark 
and Virginia's claimby right of conquest. In addition, there were the claims of the Six Nations (settled by treaty in 

1784); the claims of the four Western Tribes -- Wyandottes, Delawares, Chippewas, and the Tawas(settled by treaty 

in 1785); the claims of other tribes in the Maumee area (settled by treaty in 1795 following the military defeat of 

those tribes and their British allies). And finally, there were the unfulfilled promises of military bounty, including 

150,000 acres promised by Virginia to George Rogers Clark and his officers and soldiers who captured the British 

ports in the West. But none of these claims had been tested by any court. Discovery and Ownership of the 

Northwestern Territory, and Settlement of the Western Reserve, by James A. Garfield, (1873). 

39 Dyer, Albion Morris, "First Ownership of Ohio Lands" (1969) as reprinted by the Genealogical Publishing 

Company, Baltimore, MD. 

40 Id. 

41 Id. 

42 Id. 

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pertaining to the Revolutionary War. Ultimately, however, Virginia's land grab gave way to its 
cessation of those westem lands to the United States for the formation of additional states 43 
{¦34] Some of this title confusion was quieted by a series of legislative Acts and Deeds that 
began with a Congressional Act passed on December 2, 1799. Previously, on September 14, 
1786, Congress had accepted a cession from the State of Connecticut of certain land, but that 
cession expressly excepted what was called "The Western Reserve." The 1799 Congressional 
Act then authorized the President to accept for the United States another cession of Connecticut's 
jurisdiction over the territory west of Pennsylvania, and to execute and deliver letters patent on 
behalf of the United States back to the Govemor of the State of Connecticut "for the use and 
benefit of persons holding and claiming under the State of Connecticut, their heirs and assigns 

forever." 
[1135] The President's authority was made conditional on certain corresponding legislation 


being passed by the State of Connecticut within eight months. On the second Thursday in May 

1800, the legislature of Connecticut followed suit by timely passing an Act renouncing its claims 

to the designated land. Thereafter, on March 2, 1801, President John Adams issued a patent 

conveying title back to the Governor of Connecticut and his successors in office forever "for the 

use and benefit of the persons holding and claiming title under the State of Connecticut."44 All 

of this was done to try to quiet title in the designated land. 
I¦361 Another interesting wrinkle in the origin of title claims along the southern shore of Lake 
Erie arises from an exception that was made in the treaty of January 1785, made at Fort 
McIntosh (now Beaver, Pennsylvania) in which the four signatory Indian tribes (Wyandottes, 
Delawares, Chippewas, and the Tawas) expressly retained an area of land described in the treaty 

as follows: 

Except that portion bounded by a line from the mouth of the Cuyahoga up that 
river to the portage between the Cuyahoga and the Tuscarawas; thence down that 
branch to the mouth of the Sandy; thence westwardly to the portage of the Big 
Miami, which runs into the Ohio; thence along the portage to the Great Miami or 
Maumee, and down to southeast side of the river to its mouth; thence alonQ the 
shore of Lake Erie to the mouth of the Cuyahoga. (Emphasis added). 

43 Id. This cessation by Virginia came in response to objections raised originally by the Maryland General 
Assembly. 
44 Discovery and Ownership of the Northwestern Territory, and Settlement of the Western Reserve, by James A. 


Garfield, (1873). 

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The territory thus described was declared to be forever the exclusive possession of these 
Indians.45 The same territory west of the Cuyahoga was also expressly reserved to the Indian 
tribes in the treaty of August 3, 1795.46 However, by treaty held at Fort Industry on July 4, 1805, 
between the commissioners of the Connecticut Land Company and the Indians, the Indians ceded 

all lands west of the Cuyahoga to the company.'7 

[137] A final note that must be added has to do with what is now called the "Toledo War." The 
Toledo War took place between the State of Ohio and the then Territory of Michigan in 1835 and 
1836, and it reflects again the unsettled nature of title in the early years of the State of Ohio. The 
origin of the Toledo War was a boundary dispute between the State of Ohio and the territory of 
Michigan that arose when Michigan was attempting to become a state. 
[¦38] When the Northwest Ordinance was enacted in 1787, the ordinance defined the territory 
as having a boundary on "an east and west line drawn through the southerly bend or extreme of 
Lake Michigan." (emphasis added). However, at the time of the enactment of the Northwest 
Ordinance, the map on which Congress relied in enacting that ordinance - known as the 
"Mitchell Map" - erroneously showed the southern tip of Lake Michigan as being entirely north 
of Lake Erie. Under the boundary description in the proposed 1802 Ohio state constitution, this 
boundary location would have given Ohio access to most or all of the Lake Erie shoreline west 
of Pennsylvania, and would have excluded Michigan from having any shoreline access to Lake 

Erie. 
[¦39] In the proposed Ohio Constitution of 1802, the northwesteln border of the proposed State 
of Ohio was similarly described as "an east and west line drawn through the southern extreme of 
Lake Michigan (emphasis added), running east ... until it shall intersect Lake Erie on the 
territorial line [with Canada]; thence with the same, through Lake Erie to the Pennsylvania line 
aforesaid." However, by the time of the 1802 Ohio constitutional convention, there had been 

45 Id. 

46Id. It should be pointed out that it was the well-established policy of the British crown and colonies that the title 

grant of an Indian tribe was not in itself sufficient to convey the right of property to an individual. Chief Justice 

Marshall agreed with that policy when he wrote, "a title to lands derived solely from a grant made by an Indian tribe 

northwest of the Ohio in 1773 and 1775 to private individuals cannot be recognized in the courts of the United 

States." Johnson's Lessee v. M'Intosh (1823), 21 U.S. 543, 5 L.Ed. 681, 1823 U.S. LEXIS 293, 8 Wheaton 543. In 

order to be valid, such transfers from Indian tribes had to be approved by the relevant public authority. Dyer, Albion 

Morris, "First Ownership of Ohio Lands" (1969) as reprinted by the Genealogical Publishing Company, Baltimore, 

MD 
ˇJ Discovery and Ownership of the Northwestern Territory, and Settlement of the Western Reserve, by James A. 


Garfield, (1873). 

23 
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reports from a fur trapper that Lake Michigan's southern tip actually extended significantly 
farther south than had previously been believed or mapped. Hence, it was possible under the 
legal description of the boundaries of the state that the State of Ohio could lose all access to the 
Lake Erie shoreline west of Pennsylvania. As a precaution, the delegates added a proviso to the 
proposed 1802 Ohio Constitution that provided for an angled adjustment to the state boundary, 
northeast to the northerly cape of the Maumee Bay," if surveys revealed that the southern tip of 
Lake Michigan was, in fact, substantially farther south than Congress had believed in 1787. The 
proposed 1802 state constitution - including the proviso - was accepted by Congress in 1803, 

and Ohio became a state in February of that year. 

Pleadings and procedural history of this case 

First Amended Complaint Seeks Declaratory Judgment/Mandamus 

[1[40] Plaintiffs filed their complaint for declaratory judgment, mandamus, and other relief on 

May 28, 2004. On July 2, 2004, plaintiffs filed their first amended complaint for declaratory 

judgment, mandamus, and other relief. 
[¦41] The first amended complaint sought certification as a class action, and identified the 
following actual controversies between the parties: (1) whether the State of Ohio or the deeded 
lakeshore property owner has fee title to the lands located above the line of ordinary low water 
mark and below the "administratively arbitrary"48 line of ordinary high water mark along the 
southem shore of Lake Erie; (2) whether plaintiffs' private property rights and title are defined 
by Ohio law, their deeds, and original patents, if any; (3) whether ODNR is unlawfully and 
unconstitutionally asserting and exercising ownership rights over real property that is not part of 
the public trust lands; (4) whether ODNR's policy is directly contrary to Ohio law, including 

R.C. ¤¤1506.10 and 1506.11; (5) whether ODNR's contention - that plaintiffs are prohibited 
from using any land located below OHW, regardless of fee ownership of that land, unless and 
until plaintiffs agree to pay ODNR to lease that land from ODNR - is erroneous and contrary to 
Ohio law; and (6) whether ODNR's actions violate plaintiffs' rights under Article I, Section 19 
of the Ohio Constitution and the Fifth Amendment of the United States Constitution. 
[1142] Having identified the foregoing actual controversies between the parties, plaintiffs' first 
amended complaint sought the following declaratory relief: 

48 Plaintiffs maintain that ODNR's use of High Water Mark as a fixed elevation determined most recently by the 
Army Corps of Engineers is the use of an arbitrary line, and that ODNR has no administrative authority to adopt 
such an arbitrary line as the uniform lakeward boundary of all property adjoining the southern shores of Lake Erie. 


24 

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Declare plaintiffs own fee title between OHWM and actual boundary 
[¦43] (1) declaratory judgment declaring that plaintiffs own their fee title to the lands located 
between OHW and the actual boundary of their properties, as defined by Ohio law (including the 
rules of accretion, avulsion, erosion, and reliction), their deeds, and their original patent; 

Declare public trust does not apply to non-submerged lands 

[¦44] (2) declaratory judgment declaring that the interest of the state as trustee over the public 
trust applies to the waters of Lake Erie and does not apply to or include non-submerged lands; 

Declare state lacks authority to compel owners to lease back to state 

[1145] (3) declaratory judgment declaring that ODNR lacks authority to compel plaintiffs, or 
any one of them, to lease back property already owned by them; and 


Declare ODNR land leases to be void as to plaintiff's land below OHWM 

[¦46] (4) declaratory judgment declaring that any current submerged land lease between ODNR 
and any of the plaintiffs is void and invalid as to any land below OHW but owned by the 
respective plaintiff. In addition, the plaintiffs requested that the court grant further relief, 
including injunctive relief, as necessary to carry out its declaratory judgment. 

ODNR has unconstitutionally taken plaintiffs' land 

[¦47] In Count II of the first amended complaint, plaintiffs assert that the actions of ODNR 
constitute an unconstitutional taking for which compensation is due under Article I, Section 19 
of the Ohio Constitution and the Fifth Amendment of the U.S. Constitution. They also state that 
plaintiffs have no adequate remedy at law, and that ODNR has a legal duty to commence 
appropriation proceedings in the respective court of common pleas or probate court for each of 
the plaintiffs. 

Plaintiffs are entitled to compensation for the taking of their land 

[1148] In Count III of the first amended complaint, plaintiffs assert in the alternative that, if 
ODNR is entitled to take and appropriate the lands owned by plaintiffs below the ordinary high 
water mark, then plaintiffs have a clear right to receive compensation from the State of Ohio for 
such takings or appropriation pursuant to Article I, Section 19 of the Ohio Constitution and the 
Fifth Amendment of the U.S. Constitution, as a consequence of ODNR's taking of the plaintiffs' 
real property without rendering any compensation to plaintiffs. Once again, plaintiffs alleged 
they have no adequate remedy at law, and that ODNR has a legal duty to commence 

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appropriation proceedings in the respective court of common pleas or probate court for each of 
the plaintiffs. 

[¦49] Plaintiffs' prayer for relief requested certification as a class action. On Count I, the 
prayer for relief requested a declaratory judgment as outlined above. On Count II, the prayer for 
relief requested a writ of mandamus compelling ODNR to commence appropriation proceedings. 
And on Count III, the prayer for relief requested in the alternative a similar writ of mandamus 
compelling ODNR to commence appropriation proceedings. 

Answer, Counterclaim, and Cross Claim of ODNR 
ODNR's Answer 


Denial of all allegations and assertion of 17 affirmative defenses 

[1[50] On February 23, 2005, Defendants-Respondents State of Ohio, Department of Natural 
Resources filed its Answer, Counterclaim, and Cross Claim. The answer raised 18 numbered 
defenses: (1) a paragraph-by-paragraph denial of the substance of the allegations of the 
complaint; (2) failure to state a claim upon which relief can be granted; (3) failure to state a 
claim upon which relief can be granted by the judiciarv; (4) lack of jurisdiction over the subject 
matter; (5) failure to join all necessary and indispensable parties; (6) failure to meet the statutory 
requirements for a writ of mandamus; (7) failure to exhaust administrative remedies; (8) 
"Plaintiffs-Relators have no clear legal right to the relief they seek;" (9) "The State is under no 
duty to perform the acts requested by Plaintiffs-Relators;" (10) "Plaintiffs-Relators can have no 
more rights, title or interest than their predecessors in title;" (11) "Plaintiffs-Relators can have 
no more rights, title or interest than that granted under federal and state law;" (12) "No right, 
title, or interest by adverse possession can be acquired against the State;" (13) 'Plaintiffs-
Relators' claims may be time-barred by an applicable statute of limitations;" (14) "Plaintiffs-
Relators' claims are barred by the doctrines of waiver, release, estoppel and laches;" (15) 

"Plaintiffs-Relators' claims are barred by the doctrines of res judicata and collateral estoppel;" 

(16) "Plaintiffs-Relators lack standing and ripeness;" (17) a catch-all denial of any allegations 
not specifically denied; and (18) a reservation of the right to add additional defenses as they may 
appear during discovery. 

ODNR's Counterclaim 

[¦51] The counterclaim of Defendants-Respondents State of Ohio made the following 47 
allegations: 

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Federal law governs conveyances made by federal land grants 

[¦52] (1) "The question of what rights, title and interest are conveyed in a federal grant of land 
bordering navigable bodies of water prior to the formation of a state is a question of federal law." 

Federal land grants convey no title below OHWM 

[¦53] (2) "A federal grant of land bordering on a navigable body of water, known as upland, 
conveys no title below the ordinary high water mark of that navigable body of water, and does 
not impair the rights, title or interest of the future state to be created;" (3) "Plaintiffs-Relators' 
respective predecessors in title were granted no title below the ordinary high water mark of Lake 
Erie by virtue of any federal grant;" (4) "Plaintiffs-Relators claim in their First Amended 
Complaint to `own fee title' to the lands of Lake Erie below its ordinary high water mark by 
virtue of `their original patent,' and that they are `entitled to an order of this Court declaring that 
... they own fee title to the lands located between OHW and the actual legal boundary of their 

properties, as defined by ... their original patent." 

Federal law governs title to navigable waters received at statehood 

[¦54] (5) "The question of what rights, title and interest a state receives at statehood with 
respect to navigable bodies of water within its territorial boundaries is a question of federal 
law >,49 

States' title to navigable waters is by reservation, not constitutional grant 

[¦55] (6) "Navigable waters, lands beneath navigable waters, and their contents were not 

granted by the Constitution to the United States, but were reserved to the States respectively;" (7) 

"Under the Equal Footing Doctrine each new state was granted the same rights, title and interest 

in the navigable bodies of water within that state's territorial boundaries as that held by the 

original 13 states;" (8) "The State of Ohio is on equal footing with all of her sister states in this 

nation with regard to any navigable body of water reserved and granted to the State of Ohio at 

statehood within Ohio's territorial boundaries." 

Federal common law says Ohio's grant extends to OHWM 

[¦56] (9) "Under Federal Common Law, in those states that contain non-tidal navigable waters, 
such as the Great Lakes, within their territorial boundaries, the original grant to the state extends 

49After removal to federal district court, the federal court did not expressly decide the issue of whether this is a 

question of federal law; however, the dismissal of this case by the federal court would seem to indicate that it is not. 

If the issue had involved a federal question, presumably the district court would have retained jurisdiction over the 

case. Instead, the federal court found that there were no federal issues to be decided and remanded the case to this 

court. 

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to the ordinary high water mark, as that line denotes the common law boundary for navigable 
waters upon which the state's jurisdiction was made to depend, and not upon the ebb and flow of 
the tide." 

Federal common law says U.S. retains navigational servitude 

[¦57] (10) "Under Federal Common Law, the United States retained all its navigational 
servitude and rights in and powers of regulation and control of said lands and navigable waters 
for the constitutional purposes of commerce, navigation, national defense, and intemational 
affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights 
of ownership." 

FSLA confirmed States' title to submerged lands 

[¦58] (11) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed the 
States' `title to and ownership of the lands beneath navigable waters within the boundaries of the 
respective States, and the natural resources within such lands and waters' along with `the right 
and power to manage, administer, lease, develop, and use the said lands and natural resources all 
in accordance with applicable State law."' 

FSLA defined "lands beneath navigable waters" up to OHWM 

[¦59] (12) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed that 
the terms `lands beneath navigable waters' means the following with respect to non-tidal 
navigable bodies of water: (1) all lands within the boundaries of each of the respective States 
which are covered by nontidal waters that were navigable under the laws of the United States at 
the time such State became a member of the Union, or acquired sovereignty over such lands and 
water thereafter, up to the ordinary high water mark as heretofore or hereafter modified by 
accretion, erosion, and reliction; (2) all filled in, made, or reclaimed lands which formerly were 
lands beneath navigable waters, as hereinabove defined." 

FSLA confirmed that U.S. retained navigational servitude 

{1[60] (13) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed that 
the United States retained all its navigational servitude and rights in and powers of regulation 
and control of said lands and navigable waters for the constitutional purposes of commerce, 
navigation, national defense, and international affairs, all of which shall be paramount to, but 
shall not be deemed to include, proprietary rights of ownership." 

28 

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Lake Erie is a non-tidal navigable body of water 

[¦611 (14) "Lake Erie is a non-tidal navigable body of water within the territorial boundaries of 

the State of Ohio." 

Navigable bodies of water include areas covered during high water 

[¦62] (15) "A navigable body of water is not limited in its description to only that portion of it 

covered by water at any given moment, but that portion which is ordinarily covered by water 

during periods of naturally and routinely occurring high water." 

Ohio was granted title in trust up to OHWM at statehood in 1803 

[¦631 (16) "The State of Ohio was granted50 title in trust to the navigable waters of Lake Erie, 
the lands beneath the navigable waters of Lake Erie, and their contents up to the ordinary high 
water mark of Lake Erie at its statehood in 1803, subject only to the superior authority retained 
by the United States in its navigational servitude and rights in and powers of regulation and 
control of said lands and navigable waters for the constitutional purposes of commerce, 

navigation, national defense, and international affairs." 
[¦64] (17) "Plaintiffs-Relators dispute in their First Amended Complaint that the State of Ohio 
holds title to all lands below the ordinary high water mark of Lake Erie, and that `Plaintiffs are 

... the interest of the state as trustee over the

entitled to an order of this Court declaring that 
public trust applies to the waters of Lake Erie and does not apply to or include non-submerged 

lands. "' 

After statehood, title below OHA'M is governed by state law 

[¦65] (18) "Federal law and Ohio law hold that after statehood, the title and rights of riparian 
(upland that borders a river, stream, or other such watercourse) or littoral (upland that borders an 
ocean, lake, or the bay of such body of water) proprietors in the soil below the ordinary high 
water mark are governed by the laws of the several states, subject to the rights granted to the 

United States by the constitution." 

Ohio has granted wharfing, access, and reasonable use rights to owners 

[¦66] (19) "The State of Ohio has granted the following three littoral rights to owners of 
uplands bordering Lake Erie which they may exercise upon the soil and navigable waters below 

soThe court notes the defendants' use of the passive voice in alleging that the State of Ohio "was granted" title in 
trust to the navigable waters. This grammatical usage obscures the identity of the alleged grantor. Elsewhere, 
defendants acknowledge that the original 13 sovereign States obtained title to their land not by federal grant, but 
rather by reservation of their pre-existing title when they joined the United States, and that subsequent states, such as 
Ohio, obtained similar title under the Equal Footing Doctrine. 

29 

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the ordinary high water mark of Lake Erie within the territorial boundaries of the State, subject 
to regulation and control by the Federal, State and Local governments, and provided that the 
littoral owner does not interfere with public rights: (1) the right to wharf out to navigable waters 
to the point of navigability for the purposes of navigation; (2) the right of access to the navigable 
waters of Lake Erie, and; (3) the right to make reasonable use of the waters in front of or flowing 

past their lands." 

Littoral rights are not titles to land, but rather licenses or franchises 

{¦67] (20) "Pursuant to Ohio's public trust doctrine, littoral rights appurtenant to upland 
property in the State of Ohio are not titles to land but are licenses or franchises entirely subject 
and subservient to the power and authority of the State as proprietor in trust of the lands, waters 
and contents of Lake Erie and the United States with its supreme authority over navigation, 

commerce, national defense, and international affairs." 

Ohio law governs movements in the recognized OHWM 

[¦68] (21) "Plaintiffs-Relators claim in their First Amended Complaint that the `trust ownership 
;by the state of the waters of Lake Erie and the soil beneath ... is expressly made subject to the 
property rights of littoral owners."' 


[¦69] (22) "Ohio law recognizes doctrines and legal principles that apply to the following 


natural and artificial changes to land bordering navigable waters, or the waters themselves, 


which do or do not result in a loss or gain of title as a matter of law, and a corresponding 


movement of the location of the ordinary high water mark of Lake Erie: (1) erosionsl; (2) 


accretion52; (3) submergence53; (4) reliction50.; (5) avulsion55; and (6) artificial fill or other 


artificial changes." 
[¦70] (23) "Plaintiffs-Relators claim in their First Amended Complaint that `the lakeward 
property line of a littoral owner whose ownership extends to Lake Erie is a`moveable freehold' 


51 "Erosion. The gradual eating away of the soil by the operation of currents or tides." Black's Law Dictionary, 

Fourth Edifion (1968). 

52 "Accretion. The act of growing to a thing; usually applied to the gradual and imperceptible accumulation of land 

by natural causes, as out of the sea or a river." Black's Law Dictionary, Fourth Edition (1968). 

53 "Submergence. The disappearance of land under water and the formation of a more or less navigable body over 

it." Black's Law Dictionary, Fourth Edition (1968). 

sa "Reliction. An increase in the land by the permanent withdrawal or retrocession of the sea or a river." Black's 

Law Dicfionary, Fourth Edition (1968). 

ss "Avulsion. The removal of a considerable quantity of soil from the land of one man, and its deposit upon or 
annexation to the land of another, suddenly and by the perceptible action of water." Black's Law Dictionary, Fourth 
Edition (1968). 

30 

A-69 


in that it can move either lakeward or landward [by] virtue of accretion, erosion, or reliction,' 
and that `Plaintiffs are entitled to an order of this Court declaring that ... Plaintiffs own fee title 
to the lands located between OHW and the actual legal boundary of their properties, as defined 

by Ohio law (including rules of accretion, avulsion, erosion, and reliction)." 

Public rights in the navigable waters ofLake Erie 

[¦71] (24) "Ohio law recognizes the following public rights that exist in the lands and 
navigable waters of Lake Erie: ( 1) navigation; (2) commerce; (3) fishery; and (4) recreation." 
{1172] (25) "Plaintiffs-Relators recognize in their First Amended Complaint only `the public 
uses of navigation, water commerce, and fishery."' 

Ohio's public trust law prior and subsequent to the Fleming Act of 1917 

[¦73] (26) "Ohio law, establishing Ohio's public trust doctrine, held the following prior to and 
subsequent to the enaction of the Fleming Act of 1917 (current R.C. 1506.10-.11, hereinafter 
"the Act"): (1) The State, as trustee for the people of the State, is the custodian of the legal title 
in the lands beneath the navigable waters of Lake Erie, charged with the specific duty of 
protecting the trust estate and regulating its use; (2) an individual may abandon his private 
property, but a public trustee cannot abandon public property; (3) The State cannot abdicate its 
trust over property in which the whole people are interested, like navigable waters of Lake Erie 
and soils under them, so as to leave them entirely under their use and control of private parties; 

(4) Lands under navigable waters of Lake Erie cannot be placed entirely beyond the direction 
and control of the State; (5) The ownership of the navigable waters of Lake Erie and the lands 
under them is a subject of public concem to the whole people of the State, and that the trust with 
which they are held is governmental and cannot be alienated." 

Defining "natural shoreline " and "southerly shore " (RC 1506.10-11) 

[1174] (27) "The Act contains the terms `natural shoreline' and `southerly shore' in reference to 

the extent of the State's rights, title and interest as proprietor in trust for the people of the State in 

the lands beneath the navigable waters of Lake Erie in the State of Ohio." 

[1175] (28) "The terms `natural shoreline' and `southerly shore' are ambiguous terms that must 

be interpreted under Ohio's canons of statutory construction." 

[¦76] (29) "Under Ohio's canons of statutory interpretation and pursuant to Ohio's,public trust 

doctrine, the terms `natural shoreline' and `southerly shore' can mean nothing other than the 

natural location of the ordinary high water mark of Lake Erie, for the State, as trustee for the 

31 

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people of the State, cannot abandon or alienate the title it has held in trust since statehood to any 
portion of the lands, waters and contents below the ordinary high water mark of Lake Erie." 

[¦77] (30) "The Act did not purport to change the common law with regard to navigable waters 
in this State and did not purport to grant title in the lands beneath the navigable waters of Lake 
Erie to owners of uplands bordering Lake Erie within the territorial boundaries of the State.ˇ" 

Ohio has never granted or abandoned title below OHWM 

[¦78] (31) "The State of Ohio has never granted title in the soil below the ordinary high water 
mark of Lake Erie to owners of uplands bordering Lake Erie within the territorial boLmdaries of 
the State, nor abandoned its title to the same." 
[¦79] (32) "Pursuant to Ohio's public trust doctrine, the State, as trustee for the people of the 
State, cannot grant fee simple title in the soil below the ordinary high water mark of Lake Erie to 
owners of uplands bordering Lake Erie within the territorial boundaries of the State, as such 
would result in an abdication of the public trust forbidden by Ohio law." 

Ohio has never granted littoral rights of exclusive use along Lake Erie 

[180] (33) "The State of Ohio has never granted any littoral right of exclusive use of lands 
beneath the ordinary high water mark of Lake Erie to owners of uplands bordering Lake Erie 
within the territorial boundaries of the State." 
[1181] (34) "Only the Ohio General Assembly may grant a littoral right to owners of uplands 
bordering Lake Erie within the territorial boundaries of the State, provided that said right 
remains subject to the regulation and control by the Federal, State and Local governments and 
provided that the littoral owner does not interfere with public rights in the exercise of the right." 
[1182] (35) "Neither Plaintiffs-Relators, nor their respective predecessors in title, have been 
granted any title interest, or littoral right to exclusive use, below the ordinary high water mark of 

Lake Erie by the State of Ohio. 

Plaintiffs claim fee title below OHWM under Ohio law and their deeds 

[¦83] (36) "Plaintiffs-Relators claim in their First Amended Complaint to `own fee title' to the 

lands of Lake Erie below its ordinary high water mark by virtue of `Ohio law' and `their deeds' 

and that they are `entitled to an order of this Court declaring that ... Plaintiffs own fee title to the 

lands located between OHW and the actual legal boundary of their properties, as defined by ... 

Ohio law and `their deeds."' 

32 

A-71 



[¦84] (37) "Plaintiffs-Relators dispute in their First Amended Complaint that the State of Ohio 
holds title to all lands below the ordinary high water mark of Lake Erie, and [sic] that `Plaintiffs 
are entitled to an order of this Court declaring that ... the interest of the state as trustee over the 
public trust applies to the waters of Lake Erie and does not apply to or include non-submerged 

lands."' 

Locating the ordinary high water mark 

[1185] (38) "Ohio law is silent as to a preferred process by which to locate the natural location 
of the ordinary high water mark of Lake Erie for the purposes of the care, protection, and 

enforcement of the State's rights and duties under the Act." 
[¦86] (39) "When state law is silent or unclear, it is proper to rely upon federal law." 
[1187] (40) "Pursuant to 33 CFR 329.11, the United States Army Corps of Engineers 
(hereinafter "the Corps") has defined its geographic and jurisdictional limits over navigable 
waters of the United States with regard to navigable lakes to include all the land and waters 

below the ordinary high water mark." 

[¦88] (41) "The Corps has defined the current elevation of the ordinary high water mark of 

Lake Erie as 573.4 International Great Lakes Datum (1985)." 

[¦89] (42) "Plaintiffs-Relators claim in their First Amended Complaint that `ODNR recently 

has asserted and continues to assert and maintain that the State of Ohio owns all land lakeward of 

`ordinary high water mark' or "OHW,' which for administrative convenience, the ODNR 

currently defines as wherever the U.S. Army Corps of Engineers defines Ordinary High Water 

for purposes of federal law (currently a fixed line running at 573.4 feet above International Great 

Lakes Datum (1985)),' and that this line of the ordinary high water mark is `administratively 

arbitrary."' 

Under Ohio law, the State authorizes all improvements below OHWM 

[1190] (43) "Pursuant to Ohio law, the Act, and the administrative regulations promulgated 

thereunder, any improvements or developments occupying the lands beneath the natural location 

of the ordinary high water mark of Lake Erie must be authorized by the State." 

[1191] (44) "Plaintiffs-Relators are required to obtain authorization from the State pursuant to 

Ohio law, the Act, and the administrative regulations promulgated thereunder, for any 

improvements or developments of Plaintiffs-Relators occupying the lands beneath the natural 

location of the ordinary high water mark of Lake Erie." 

33 

A-72 


[1[92] (45) "Plaintiffs-Relators claim in their First Amended Complaint that `ODNR has forced 
some littoral owners wishing to use their private property located below OHW to lease that land 

-which is owned in fee by the littoral owners - the state' and that `except pursuant to a lease, the 
issuance and terms of which are wholly within the power of ODNR, ODNR maintains that no 
littoral owner may make use of its own property, or exclude others from its property, as long as 
that property lies below OHW."' 
[¦93] (46) "Plaintiffs-Relators claim in their First Amended Complaint that `Plaintiffs are 
entitled to an order of this Court declaring that ... ODNR lacks authority to compel Plaintiffs, or 
any of them, to lease back property already owned by them' and `any current submerged land 
lease between ODNR and any of Plaintiffs is declared void and invalid as to any land below 
OHW but owned by Plaintiffs."' 

Declaratory judgment must resolve these actual, justiciable controversies 

[¦94] (47) "The allegations contained within Plaintiffs-Relators' First Amended Complaint 
have demonstrated that an actual and justiciable controversy regarding the State's rights, title and 
interest in the land beneath the navigable waters of Lake Erie, and Plaintiffs' alleged rights 
therein, may exist and that a declaratory judgment is necessary and appropriate to resolve that 

controversy." 
ODNR's Prayer for Declaratory Relief on Counterclaim 

[¦95] Defendants-Respondents/Counterclaimants seek six forms of declaratory relief declaring: 

State of Ohio holds title as trustee up to OI-IWM 

{¦96] (a) "The State of Ohio holds title and superior rights and interest as Trustee for the people 
of the State to the lands and waters of Lake Erie, up to the natural location of the ordinary high 
water mark of Lake Erie within the territorial boundaries of the State of Ohio, subject only to the 
paramount authority retained by the United States in its navigational servitude over those same 
lands and waters, along with its rights in and powers of regulation and control of said lands and 
navigable waters for the constitutional purposes of commerce, navigation, national defense, and 
intemational affairs, and has so held since statehood." 

Ohio never granted or abandoned title to land below OHWM 

[1[97] (b) "The State of Ohio has never granted any title in the soil below the ordinary high 

water mark of Lake Erie to owners of uplands bordering Lake Erie within the territorial 

boundaries of the State, nor abandoned its title to same." 

34 

A-73 


Landowners hold 3 littoral rights: wharfage, access, and reasonable use 

[1[98] (c) "Plaintiffs-Relators, if adjudged to be upland owners bordering Lake Erie in the State 
of Ohio, hold the following three littoral rights which they may exercise upon the soil and 
navigable waters below the ordinary high water mark of Lake Erie within the territorial 
boundaries of the State, subject to regulation and control by the Federal, State and Local 
govemments, and provided they do not interfere with public rights: (1) the right to wharf out to 
navigable waters to the point of navigability for the purposes of navigation; (2) the right of 
access to the navigable waters of Lake Erie,; and (3) the right to make reasonable use of the 
waters in front of or flowing past their lands. These littoral rights appurtenant to upland property 
in the State of Ohio are not titles to land but are licenses or franchises entirely subject and 
subservient to the power and authority of the State as proprietor in trust of the lands, waters and 
contents of Lake Erie and the United States with its supreme authority over navigation, 

commerce, national defense, and international affairs." 

Plaintiffs have no title and no exclusive right below OHWM 

[1199] (d) "Plaintiffs-Relators have no title and no right of exclusive use in the soil below the 
ordinary high water mark of Lake Erie within the territorial boundaries of the State." 

573.4IGLD (1985) is not arbitrary for determining OHWM 

[11100] (e) "The Corps' methodology in its determination of the current elevation of the ordinary 
high water mark of Lake Erie as 573.4 International Great Lakes Datum (1985) is not arbitrary. 
It is an acceptable methodology for determining the upper boundary of non-tidal navigable 
waters of the United States, and may be properly relied upon by the State of Ohio in its 
determination of that boundary over those same non-tidal navigable waters which were granted 56 
to the state at statehood, until such time as Ohio law provides another methodology for the 
State's determination of the natural location of the ordinary high water mark of Lake Erie." 

Plaintiffs must get permission from ODNR to improve below OHWM 

[11101] (f) "Plaintiffs-Relators are required to obtain authorization from the State pursuant to 
Ohio law, the Act, and the administrative regulations promulgated thereunder, for any 

s6 Again, the court notes that Ohio's title to its non-tidal navigable waters was not "granted" to it at statehood. 
Under the Equal Footing Doctrine, it is more accurate to say that the State of Ohio entered the United States by 
retaining its title to the lands and non-tidal navigable waters that it previously held as a Territory govemed by the 
Northwest Ordinance. 

35 

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improvements or developments of Plaintiffs-Relators occupying the lands beneath the natural 

location of the ordinary high water mark of Lake Erie. 

ODNR's Cross Claim against the United States and Army Corps57 

[¦102] ODNR's cross claim made the following allegations: 

Federal law governs the scope of pre-statehood federal land grants 

[¦103] (1) "The question of what rights, title and interest are conveyed in a federal grant of 

land bordering navigable bodies of water prior to the formation of a state is a question of federal 

law." 

Federal land grants, pre-statehood, convey no title below OHWM 

[¦104] (2) "A federal grant of land bordering on a navigable body of water, known as 

upland, conveys no title below ordinary high water mark of that navigable body of water, and 

does not impair the rights, title or interest of the future state to be created." 

[¦105] (3) "Plaintiffs-Relators' respective predecessors in title were granted no title below 

ordinary high water mark of Lake Erie by virtue of any federal grant." 

Plaintiffs claim to own fee title below OHWM by their original patent 

[¦106] (4) "Plaintiffs-Relators claim in their First Amended Complaint to "own fee title" to 

the lands of Lake Erie below its ordinary high water mark by virtue of "their original patent" and 

that they are entitled to an order of this Court that ... Plaintiffs own fee title to the lands located 

between OHW and the actual legal boundary of their properties, as defined by ... their original 

patent." 

5' The court notes that neither the complaint nor the first amended complaint named the United States or the Army 
Corps of Engineers as a defendant. Accordingly, the filing and service of the defendants' cross claim on February 
23, 2005, is procedurally defective as a cross claim. It should have been styled as a third party complaint. 
Additionally, the service of the cross claim by regular U.S. mail, as recited in the certificate of service, failed to join 
the United States and the Army Corps of Engineers as parties to this case. Nevertheless, it appears from the docket 
that the cross claim was also served on the cross claim defendants by certified mail on February 25, 2005 and March 

3,2005. 

It appears from the docket of the federal district court that the United States and the Army Corps responded to 

the cross claim by filing a removal to federal court on March 28, 2005 (Case No. 1:05-cv-00818-SO). The notice of 

removal made no mention of any defect in the cross claim. The federal case was terminated when the District Court 

remanded the case to this court, and the remanding order of the district court lists the United States and theArmy 

Corps as cross-defendants. 

Neither the United States, nor the Army Corps has responded to the cross claimbr otherwise defended or 

entered an appearance in this case. For purposes of summary judgment, the court has an obligation to consider all 

the pleadings. Therefore, even though the cross claim in this case may have been ineffectivein joining the United 

State and the Army Corps as parties, the court nonetheless has considered the cross claim as one of the pleadings in 

order to properly frame the issues raised by the parties. 


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Federal law governs the scope of rights received at statehood 
[¦107] (5) "The question of what rights, title and interest a state receives at statehood with 
respect to navigable bodies of water within its territorial boundaries is a question of federal law." 

Navigable waters were reserved by the States 

[¦108] (6) "Navigable waters, lands beneath navigable waters, and their contents were not 
granted by the Constitution to the United States of America . but were reserved the States 
respectively." 

Equal Footing Doctrine gives Ohio same rights as original73 States 

[¦109] (7) "Under the Equal Footing Doctrine each new state was granted the same rights, 
title and interest in the navigable bodies of water within that state's territorial boundaries as that 
held by the original 13 states." 

[¦110] (8) "The State of Ohio is on equal footing with all of her sister states in this nation 

with regard to any navigable body of water reserved and granted to the State of Ohio at statehood 

within Ohio's territorial boundaries." 

Under federal common law, original grant to State was to OHWM 

[¦111] (9) "Under federal common law, in those states that contain non-tidal navigable 
waters, such as the Great Lakes, within their territorial boundaries, the original grant to the state 
extends to the ordinary high water mark, as that line denotes the common law boundary for 
navigable waters upon which the state's jurisdiction was made to depend, and not upon the ebb 

and flow of the tide. 

Under federal common law, U.S. retained its navigational servitude 

[¦112] (10) "Under federal common law, the United States retained all its navigational 

servitude and rights in and powers of regulation and control of said lands and navigable waters 

for the constitutional purposes of commerce, navigation, national defense, and international 

affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights 

of ownership." 

FSLA confirmed States' title to submerged lands 

[¦113] (11) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed 
the States' `title to and ownership of the lands beneath navigable waters within the boundaries of 
the respective States, and the natural resources within such lands and waters' along with the 

37 

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`right and power to manage, administer, lease, develop, and use the said lands and natural 
resources all in accordance with applicable State law."' 


FSLA defined "lands beneath navigable waters" up to OHWM 

[1114] (12) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed 
that the terms "lands beneath navigable waters" means the following with respect to non-tidal 
navigable bodies of water: (1) all lands within the boundaries of each of the respective States 
which are covered by nontidal waters that were navigable under the laws of the United States at 
the time such State became a member of the Union, or acquired sovereignty over such lands and 
water thereafter, up to the ordinary high water mark as heretofore or hereafter modified by 
accretion, erosion, and reliction; (2) all filled in, made, or reclaimed lands which formerly were 

lands beneath navigable waters, as hereinabove defined." 

FSLA confirmed that U.S. retained navigational servitude 

[¦115] (13) "The federal Submerged Lands Act, 43 USCS 1301-1315, expressly confirmed that 
the United States retained all its navigational servitude and rights in and powers of regulation 
and control of said lands and navigable waters for the constitutional purposes of commerce, 
navigation, national defense, and international affairs, all of which shall be paramount to, but 
shall not be deemed to include, proprietary rights of ownership." 

Lake Erie is a non-tidal navigable body of water 

[¦116] (14) "Lake Erie is a non-tidal navigable body of water within the territorial boundaries 
of the State of Ohio." 

Navigable bodies of water include areas covered during high water 

[11117] (15) "A navigable body of water is not limited in its description to only that portion of it 
covered by water at any given moment, but that portion which is ordinarily covered by water 
during periods of naturally and routinely occurring high water." 

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Ohio was granted title in trust up to OHWM at statehood in 1803 

[¦118] ( 16) "The State of Ohio was granted58 title in trust to the navigable waters of Lake 

Erie, the lands beneath the navigable waters of lake Erie, and their contents up to the ordinary 
high water mark of Lake Erie at its statehood in 1803, subject only to the superior authority 
retained by the United States in its navigational servitude and rights in and powers of regulation 
and control of said lands and navigable waters for the constitutional purposes of commerce, 


navigation, national defense, and international affairs." 


[¦119] (17) "Plaintiffs-Relators dispute in their First Amended Complaint that the State of 
Ohio holds title to all lands below the ordinary high water mark of Lake Erie, and that `Plaintiffs 
are entitled to an order of this Court declaring that ... the interest of the state as trustee over the 
public trust applies to the waters of Lake Erie and does not apply to or include non-submerged 

lands."' 

After statehood, title below OHWM is governed by state law 

[¦120] (18) "Federal law and Ohio law hold that after statehood, the title and rights of riparian 

(upland that borders a river, stream, or other such watercourse) or littoral (upland that borders an. 
ocean, lake, or the bay of such body of water) proprietors in the soil below the ordinary high 

water mark are governed by the laws of the several states, subject to the rights granted to the 

United States by the constitution." 

Ohio has granted wharfing, access, and reasonable use rights to owners 

[¦121] (19) "The State of Ohio has granted the following three littoral rights to owners of 

uplands bordering Lake Erie which they may exercise upon the soil and navigable waters below 

the ordinary high water mark of Lake Erie within the territorial boundaries of the State, subject 

to regulation and control by the Federal, State and Local governments, and provided that the 

littoral owner does not interfere with public rights: (1) the right to wharf out to navigable waters 

to the point of navigability for the purposes of navigation; (2) the right of access to the navigable 

waters of Lake Erie, and; (3) the right to make reasonable use of the waters in front of or flowing 

past their lands." 

58 The court again notes the defendants' usebf the passive voice in alleging that the State of Ohio "was granted" title 
in trust to the navigable waters. As noted above, this grammatical usage obscures the identity of the alleged grantor. 
Elsewhere, defendants acknowledge that the original 13 sovereign States obtained title to their land not by federal 
grant, but rather by reservation of their pre-existing title when they joined the United States, and that subsequent 
states, such as Ohio, obtained similar title under the Equal Footing Doctrine. 

39 

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Littoral rights are not titles to land, but rather licenses or franchises 

[¦122] (20) "Pursuant to Ohio's public trust doctrine, littoral rights appurtenant to upland 
property in the State of Ohio are not titles to land but are licenses or franchises entirely subject 
and subservient to the power and authority of the State as proprietor in trust of the lands, waters 
and contents of Lake Erie and the United States with its supreme authority over navigation, 
commerce, national defense, and international affairs." 

Ohio law governs movements in the recognized OHWM 

[¦123] (21) "Plaintiffs-Relators claim in their First Amended Complaint that the `trust ownership 
by the state of the waters of Lake Erie and the soil beneath ... is expressly made subject to the 
property rights of littoral owners."' 

Locating the ordinary high water mark as 573.4 IGLD (1985) 

[¦124] (22) "Ohio law is silent as to a preferred process by which to locate the natural location 
of the ordinary high water mark of Lake Erie for the purposes of the care, protection, and 
enforcement of the State's rights and duties under the Act." 
[11125] (23) "When state law is silent or unclear, it is proper to rely upon federal law." 
[¦126] (24) "Pursuant to 33 CFR 329.11, the United States Army Corps of Engineers 
(hereinafter "the Corps") has defined its geographic and jurisdictional limits over navigable 
waters of the United States with regard to navigable lakes to include all the land and waters 

below the ordinary high water mark." 

[¦127] (25) "The Corps has defined the current elevation of the ordinary high water mark of 

Lake Erie as 573.4 International Great Lakes Datum (1985)." 

[¦128] (26) "Plaintiffs-Relators claim in their First Amended Complaint that `ODNR recently 

has asserted and continues to assert and maintain that the State of Ohio owns all land lakeward of 

`ordinary high water mark' or "OHW,' which for administrative convenience, the ODNR 

currently defines as wherever the U.S. Army Corps of Engineers defines Ordinary High Water 

for purposes of federal law (currently a fixed line running at 573.4 feet above Intemational Great 

Lakes Datum (1985)),' and that this line of the ordinary high water mark is `administratively 

arbitrary."' 

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State of Ohio's federally-approved coastal zone management program 

[¦129] (27) "The State of Ohio has a federally approved Coastal Management Program under 
the federal Coastal Zone Management Act, 16 USCS 1451-1465 (hereinafter "the CZMA") and 
its corresponding federal regulations, 15 CFR Part 930." 

[11130] (28) "The State of Ohio's Department of Natural Resources (hereinafter "ODNR") is 
designated as the "State agency" under the Ohio Coastal Management Program (hereinafter 
"OCMP"), the CZMA, and its regulations." 

[¦131] (29) "Pursuant to the CZMA and its regulations, a designated State agency is required 
to uniformly and comprehensively apply the enforceable policies of the State's management 

program." 

OCMP Enforceable Policy 16 requires state approval of improvements 

{11132] (30) "Enforceable Policy 16 - Public Trust lands, is an enforceable policy of the 
OCMP that relies upon Ohio's public trust doctrine and Ohio statutory law found at Ohio 
Revised Code Sections 1506.10-.11, and the administrative regulations promulgated thereunder 
at Ohio Administrative Code Sections 1501-6-01-06. 
[¦133] (31) "Pursuant to Ohio law referenced in Enforceable Policy 16 of the OCMP, 
Plaintiffs-Relators are required to obtain authorization from the State for their improvements or 
developments occupying lands beneath the natural location of the ordinary high water mark of 
Lake Erie within the territorial boundaries of the State of Ohio." 

If Plaintiffs prevail, Ohio will lose federal approval of its OCMP 

[¦134] (32) "Should Plaintiffs-Relators prevail in this action, ODNR will be unable to 
unifonnly and comprehensively apply Enforceable Policy 16 of the OCMP, and the State of 
Ohio will lose federal approval of the OCMP, as the State of Ohio will no longer hold and will 
not be able to manage the lands beneath the navigable waters of Lake Erie, but will only be able 
to manage those lands of Lake Erie covered by water from moment to moment." 

Plaintiffs dispute ODNR's authority to require leases below OHWM 

[¦135] (33) "Plaintiffs-Relators claim in their First Amended Complaint that `ODNR has 
forced some littoral owners wishing to use their private property located below OHW to lease 
that land - which is owned in fee by the littoral owners - from the state' and that `except 
pursuant to a lease, the issuance and terms of which are wholly within the power of ODNR, 


ODNR maintains that no littoral owner may make use of its own property, or exclude others 

from its property, as long as that property lies below OHW." 
[11136] (34) "Plaintiffs-Relators claim in their First Amended Complaint that `Plaintiffs are 
entitled to an order of this Court declaring that ... ODNR lacks authority to compel Plaintiffs, or 
any one of them, to lease back property already owned by them' and `any current submerged 

land lease between ODNR and any of the Plaintiffs is declared void and invalid as to any land 
below OHW but owned by Plaintiffs." 

There is an actual and justiciable controversy between the parties 

[¦137] (35) "The allegations contained within Plaintiffs-Relators' First Amended Complaint 
have demonstrated that an actual and justiciable controversy regarding the respective rights, title, 
interests, duties, and authority of the United States, the Corps, and the State of Ohio in the lands 
beneath the navigable waters of Lake Erie, and the Plaintiffs' alleged rights therein, may exist 
and that a declaratory judgment is necessary and appropriate to resolve that controversy." 
[¦138] (36) "The United States and the Corps claim certain rights, interests, duties, and 
authority pertaining to the lands beneath and the navigable waters of Lake Erie within the 
territorial boundaries of the State of Ohio, and in any upland property bordering Lake Erie in the 
State of Ohio to which the United States may claim title." 

[¦139] (37) "The State of Ohio is unable to represent and defend the rights, interests, duties 
and authority of the United States and the Corps in the lands beneath and the navigable waters of 
Lake Erie, or in any upland property bordering Lake Erie in the State of Ohio to which the 
United States may claim title, which will be impacted in this case." 

[¦140] (38) "The disposition of this action in the absence of the United States and the Corps 
will prevent complete relief from being accorded to the parties and may as a practical matter 
impair and impede the ability of the United States and the Corps from protecting their rights, 
interests, duties and authority in the lands beneath and the navigable waters of Lake Erie, or in 
any upland property bordering Lake Erie in the State of Ohio to which the United States may 

claim title." 

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Prayer for Relief in Defendants' Cross Claim 
[11141] Defendants' prayer for relief in the cross claim sought a declaratory judgment asserting 

six things: 
[11142] (a) Under federal law, at statehood, the State of Ohio received title as proprietor in 
trust to the land and waters of Lake Erie up to the natural location59 of the ordinary high water 

mark subject only to the servitudes retained by the United States. 
[¦143] (b) Plaintiffs-Relators have obtained no title and no right of exclusive use in the soil 
below the ordinary high water mark of Lake Erie within the territorial boundaries of the State 

from the United States superior to the rights, title and interest of the State of Ohio. 
{¦144] (c) If Plaintiffs-Relators are littoral landowners, then they have the following littoral 
rights: (1) to wharf out to navigable waters to the point of navigability; (2) to access the 
navigable waters of Lake Erie; and (3) to make reasonable use of the waters in front of or 

flowing past their lands. 
[11145] "These littoral rights appurtenant to upland property in the State of Ohio are not titles to 
land but are licenses or franchises entirely subject and subservient to the power and authority of 
the State as proprietor in trust of the lands, waters and contents of Lake Erie and the United 
States with its supreme authority over navigation, commerce, national defense and international 

affairs." 
[11146] (d) "The Corps' methodology in its determination of the current elevation of the 


ordinary high water mark of Lake Erie as 573.4 International Great Lakes Datum (1985) is not 

arbitrary. It is an acceptable methodology for determining the upper boundary of non-tidal 

navigable waters of the United States, and may be properly relied upon by the State of Ohio in its 

determination of that boundary over those same non-tidal navigable waters which were granted6o 

to the state at statehood, until such time as Ohio law." 

s9 As established by the materials attached to the motions for summary judgment and the respective briefs in support 
and in opposition, we live in an age in which both the influx of water from the upper Great Lakes into the western 
basin of Lake Erie, and the outflow of water from the eastern basin of Lake Erie, can be artificially controlled to 
some extent. This artificial manipulation, in turn, can have an effect on the location of the water's edge. In this 
modem context, therefore, reference to the "natural" location of the ordinary high water mark is a misnomer. 
60 Again, the court notes that Ohio's title to its non-tidal navigable waters was not "granted" to it at statehood. 
Under the Equal Footing Doctrine, it is more accurate to say that the State of Ohio entered the United States by 
retaining its title to the lands and non-tidal navigable waters that it previously held as a Territory govemed by the 

Northwest Ordinance. 

43 

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[11147] (e) Plaintiffs-Relators are required to obtain all required federal and state 
authorizations for any improvements or developments of Plaintiffs-Relators occupying the lands 
beneath the ordinary high water mark of Lake Erie. 
[¦148] (f) ODNR's ability to uniformly and comprehensively apply Enforceable Policy 16 
of the OCMP is not impaired, and federal approval of the OCMP is not impaired, as the State of 
Ohio holds undisputed title and shall manage all lands beneath the navigable waters of Lake Erie 
within the territorial boundaries of the State. 

Removal to Federal District Court 
[11149] As noted elsewhere in this opinion, this case was removed to the United States District 
Court for the Northern District of Ohio on March 28, 2005, when the United States of America 
and the United States Army Corps of Engineers filed a notice of removal. Subsequently, on 
April 14, 2006, the federal case was dismissed because the federal district court found that 
neither the federal defendants nor the federal questions were properly before that court. 61 In 
addition, the federal court declined to exercise its pendent or supplemental jurisdiction over the 
state law claims. Accordingly, the case was remanded to this court to consider and rule upon the 
issues of state law. Other than filing their notice of removal, the United States and the Army 
Corps of Engineers have filed nothing in this case and have not participated in any of the 
proceedings. 

Summary Judgment Arguments of the Parties and Court's Analysis 

[11150] The sunnnary judgment arguments of the parties, together with the court's analysis of 

those arguments, can be summarized as follows: 

61 As noted elsewhere in this opinion, there are good reasons for concluding that these federal parties were never 
properly joined as parties in this court either. 

44 

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SJ arguments of plaintiffs' class, including OLG, on Count I 
[¦151] The summary judgment arguments of plaintiffs' class, including the Ohio Lakefront 
Group, Inc. can be summarized as follows: 

Public trust rights are limited to the "waters " of Lake Erie 
[¦152] Plaintiffs assert that, under Ohio's case law,62 public trust rights such as hunting and 
fishing in Lake Erie extend no farther than the actual waters, and that those public rights do not 
extend to the shores or the uplands. 

The actual intersection of Lake Erie's waters and shoreline fluctuates 

[¦153] Plaintiffs attached to their brief the affidavit of Dr. Charles E. Herdendorf 3 to provide an 

overview of the natural physical processes in Lake Erie that produce non-tidal water level 
fluctuations in the lake. 
{¦154] Dr. Herdendorf states that the elevation of Lake Erie typically is reported with reference 
to low water datum which defines the boundaries of Lake Erie within which navigation and 
water commerce may safely proceed. The selection of low water datum in 1933 was done to 
provide a reasonable safety factor for navigation on the lake. Thus, plaintiffs argue, low water 
datum is directly related to "the public rights of navigation, water commerce, and fishery 
exercised in the territory defined in R.C. 1506.10 and 1506.11." Initially an elevation of 570.5 
feet above mean tide at New York City was selected for this purpose based on considerations of 
earlier reference places dating back to 1838. Since then, the elevation number has twice been 
changed: The first revision, known as International Great Lakes Datum 1955, was a change in 
the point of reference from New York City to Father Point, Quebec. This resulted in a new 
elevation number of 568.6 feet for Lake Erie LWD. Dr. Herdendorf states that currently, IGLD 

"PlaintifEs cite Sloan v. Biemi7ler (1878), 34 Ohio St. 492, 516-17, 1878 Ohio LEXIS 176, and Bodi v. The Winous 

Point Shooting Club (1897), 57 Ohio St. 629, 50 N.E. 1127, affirming in part, Winous Point Shooting Clubb. Bodi 

(1895), 10 Ohio Cir.Dec. 544, 20 Ohio C.C. 637, 1895 Ohio Misc. LEXIS 451. However, as discussed in Opinion 

No. 93-025 by Attorney General Lee Fisher, Sloan v. Biemiller "did not hold that a littoral property owner on Lake 

Erie holds title to the low water mark." Instead, the fact-specific holding in Biemiller established that the public 

retains a right to fish in the waters of Lake Erie regardless of attempts by private littoral landowners to reserve 

shoreline fishing rights to themselves through deed restrictions. In passing, the court also made reference to various 

methods by which the boundary of littoral property may be determined in different jurisdictions, but that was not the 

precise issue before the court. 

6' In the State of Ohio's brief in opposition, filed July 16, 2007, defendants-respondents argue in footnote 6 on page 

30 that Dr. HerdendorŁs affidavit testimony is largely hearsay, and that as a former named plaintiff/class 

representative, his testimony should not be given much weight orpredibility under Evidence Rule 616(A). 

However, when ruling on a motion for summary judgment, it is not the function of the trial court to weigh the 

credibility of the witnesses. It is the function of the court to determine whether there is a genuine issue of material 

fact, and whether the movant is entitled to judgment as a matter of law. 

45 

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1985 is in use to define the elevation of LWD at 569.2 feet. Similar elevation adjustments to the 
line are required every 25 to 35 years to reflect continuing movements in the Earth's crust. 
[¦155] According to Dr. Herdendorf, the long term (since 1960) mean monthly elevation of Lake 
Erie is 571.29 feet (IGLD 1985) which equates to 2.09 feet above Low Water Datum (LWD). 
The maximum monthly mean of 574.28 feet was reached in June 1985 - a level of 5.08 feet 
above LWD. The minimum monthly mean of 568.18 feet was recorded for February 1936 - a 
level of 1.02 feet below LWD. Thus the monthly mean water level for Lake Erie has a historic 

range of 6.10 feet. 
[¦156] Dr. Herdendorf states that the measure of "Ordinary High Water Mark (OHWM) for 
Lake Erie was established by the U.S. Army Corps of Engineers in 1974 for determining the 

limit of that agency's jurisdiction over navigable waters of the United States. OHWM for Lake 
Erie was initially set by the Army Corps at 572.8 (IGLD 1955) (4.2 feet above LWD) as "simply 
a convenient way of relating things to a common elevation." In 1992, this elevation was adjusted 

to 573.4 (IGLD 1985) (4.2 feet above LWD). 

Ohio tried to redefine the public trust boundary several times recently 
First, Ohio cited the low water datum as the boundary 


[¦157] By letter dated October 1, 1970, attached as Exhibit 2 to plaintiffs' motion for summary 
judgment, the State of Ohio's Department of Public Works cited Section 123.03 of the Revised 
Code for the proposition that the State of Ohio was the proprietor in trust for the people of the 
lands underlying the waters of Lake Erie. The department stated, "Such land is defined as that 

which is inundated by water when the lake level is at an elevation of 568.6 feet, which was the 
Low Water Datum (1955) at that time." (emphasis added). 
[¦158] Similarly, in Rheinfrank v. Gienow,64 the State of Ohio unsuccessfully maintained that 

the boundary of Lake Erie's public trust territory should be determined by low water datum of 

568.6 feet. 
6aRheinfrank v. Gienow, 1973 Ohio App. LEXIS 1671. Although the 10" District Court of Appeals in Rheinfrank 

decided against the State of Ohio on the merits of the case, holding that the plaintiffs' land adjoined the waters of the 

Maumee River and not Lake Erie, the court did not challenge the state's reliance on the low water datum to 

determine the boundaries of Lake Erie. Instead, the court of appeals acknowledged that the parties had already 

stipulated in the common pleas court that low water datum was not a standard for determining where the Maumee 

River ends and Lake Erie begins. This stipulation had the effect of eliminating the probative value of the State's 

expert, Charles Edward Herdendorf - who is plaintiffs' expert in this case - who at that time was employed by the 

Ohio Department of Natural Resources, Division of Geological Survey, and who testified in Rheinfrank that low 

water datum was the proper standard for determining the boundary of Lake Erie. 

46 

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Second, Ohio cited the water's edge as the boundary 

[¦159] In the Spring 1979 Public Review Draft of the Ohio Coastal Zone Management Program, 
published by the State of Ohio's Deparhnent of Natural Resources, Division of Water (attached 
as Exhibit 3 to plaintiff s motion for summary judgment), the State of Ohio acknowledged that, 
"Currently, Ohio's shoreline of Lake Erie, the line where land and water meet, is normally used 
to determine where the state's rights over the bed of Lake Erie begin." Because this boundary 
was moveable, and therefore something of an administrative burden, the State of Ohio then made 
the following reconunendation of three altemative, more practical fixed definitions of where the 
state's rights begin: (1) Low water datum (568.6 feet IGLD); (2) Ordinary high water level 

(averages 572.6 feet IGLD); and (3) Mean water level over period of record (570.5 feet IGLD). 

[¦160] In 1993, Attorney General Lee Fisher was asked by ODNR to opine regarding the extent 
of the littoral property owners' title, and specifically whether the landowners held title to the 
ordinary low water mark. In response, the Attomey General issued Opinion No. 93-025, 1993 
AG LEXIS 27 (1993) in which he stated that "a littoral owner along Lake Erie holds title to the 
extent of the natural shoreline" which he defined as "the edee of a body of water." (emphasis 
added). Although the moveable boundary made it impossible to fix a permanent property line 
for a littoral owner, the Attorney General did acknowledge that land lying between the shoreline 
and the ordinary high water mark belongs to the littoral owner and not to the State. 

[¦161] In addition, the Ohio Coastal Management Program and Final EIS,65 issued in March 

1997 by the U.S. Department of Commerce and ODNR, acknowledged that the defmition of 

"beach" was the area extending landward from the water's edge, and stated that "Private littoral 

property rights extend to the point where land and water meet."66 

Third, ODNR has now adopted the Army Corps' HWM 

{¦162] Plaintiffs next point out that ODNR has now rejected its previous two definitions of the 
boundary between the property of littoral landowners and the public trust property of the State of 
Ohio, and ODNR has now unilaterally adopted the Army Corps of Engineers' estimate of 
OHWM - 574.4 feet IGLD (1985) -which the Corps adopted for regulatory purposes unrelated 
to the establishment of boundaries between private property and the public trust territory. 

bs Final Environmental Impact Statement of the State of Ohio, United States Department of Commerce and ODNR 

(March 1997) Part II at Chapter 9, page 12, attached as Exhibit 4 to Plaintiffs-Relators' motion for summary 

judgment. 

66 See Plaintiffs Exhibit 4, attached to their motion for summary judgment. 

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ODNR did not engage in rule-making to re-set this boundary, nor has it issued any formal orders 
declaring the same. Similarly, the General Assembly has not taken any action to shift the public 

trust boundary from the moveable shoreline to the Army Corps' fixed line boundary. 
[¦163] Having adopted this new boundary line, ODNR now requires littoral owners to enter into 
submerged land leases with the State of Ohio to place private improvements on land lakeward of 

where Ordinary High Water intersects the natural shore. 

The General Assembly set the "natural shoreline " as the LWM 

[¦164] Plaintiffs reference the express language in Sections 1506.10 and 1506.11 of the Ohio 
Revised Code to point out that the Ohio General Assembly has already adopted the term "natural 


shoreline" as the boundary definition of the public trust territory. 
[11165] Recognizing that the use of this moveable boundary line may, at times, result in the 


private ownership of submerged lands, plaintiffs cite to Hogg v. Beerman67 for the proposition 
that there can be private ownership of submerged lands. Specifically, Hogg states, "So long as 
the navigable waters are left free to the public, for unembarrassed passages to and fro, we know 
of no reason why the United States, or any state, holding ownership and jurisdiction of land and 
water, may not vest in a private grantee such a body of land, marsh and water as `East Harbor."' 
The court held that East Harbor was part of the 1792 grant by the State of Connecticut to certain 
individuals because, when the state used the words "shore of Lake Erie" in the original grant, it 
used that phrase in the popular sense to mean to the water's edge. The court added, "The private 
grantee of the land cannot do anything that will interfere with the channel, or hamper the passage 
of water craft [sic] through it. But he may, without the limits of the channel, erect fishing houses 
or such other structures as his means and the depth of water will permit; he may convert shallow 
portions into cranberry patches; he may fill up other parts and make solid ground. Although 
such action by him may lessen the water surface available for the fishing boats, the fishermen 

cannot complain. Such public right to fish always yields to any permanent improvement by the 
owner of the land on which the water rests." (Emphasis added). 
[¦166] Notwithstanding the language in Hogg that gives primacy to the littoral rights of the 

landowner over the general public right to fish, the Ohio Supreme Court said the exact opposite in 
State ex rel. Squire v. City of Cleveland68 -about the littoral rights of the landowner with 

67 Hogg v. Beerman ( 1884), 41 Ohio St. 81, 1884 Ohio LEXIS 290. 
68 State ex rel. Squire v. City of CJeveland (1948), 150 Ohio St. 303, 82 N.E.2d 709,1948 Ohio LEXIS 375. 


48 

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respect to the primacy of the right of the state as trustee to enact regulatory legislation. In 

Squire, the court quoted with approval from State v. Cleveland & Pittsburgh Rd. Co 69 and 

stated, "His [the landowner's] right must vield to the paramount right of the state as such trustee 

to enact regulatory legislation." (emphasis added). Hence, "The littoral owners of the upland 

have no title beyond the natural shore line; they have only the right of access and wharfing out to 

navigable waters. That right is a property right, although not a tangible one, that is subject to the 

superior right of the state as the owner of title in trust for the people of the state, and of the 

United States with the authority accruing to it by virtue of its exclusive power over interstate 

commerce."70 

[¦167] If the state enacts regulations in aid of the navigation, water commerce, or fishery aspects 

of its trust responsibilities, and those regulations negatively affect the littoral rights of the 

landowners, then the state has not taken any rights from the upland owner. This is so because the 

state's trust rights are generally superior to the landowner's littoral rights 71 However, when the 

state acts in a way that is not in aid of navigation, water commerce, or fishery, and that state 

action harms the littoral rights of the landowner, then the landowner's property rights have been 

harmed. In Squire, the court held that lighthouses, wharves, docks, and like instrumentalities 

were clearly aids to navigation, and that roads connecting wharves and docks could be aids to 

navigation. However, under the facts before the court in Squire, the court held that there was a 

question of fact about whether the construction of the shoreway along the south shore of Lake 

Erie in Cleveland, Ohio, was an aid to navigation. Accordingly, the court declined to decide as a 

matter of law whether the property rights of the littoral landowners had been harmed in a 

compensable way by the construction of the highway. 72 

Statutes set the "Territory" boundary as the "Natural Shoreline " 

[¦168] Plaintiffs point to R.C. 1506.10 and 1506.11 as expressly establishing the farthest 

landward boundary of the public trust territory as the "naturalshoreline.ˇ" 

[1169] Plaintiffs argue that, because of the express definitional language set forth in R.C. 
1506.11, the primary and controlling definition of the landward boundary of the Territory 


69 State v. Cleveland & Pittsburgh Railroad Co. ( 1916), 94 Ohio St. 61, 113 N.E. 677, 1916 Ohio LEXIS 164. 
"0 State ex ret. Squire v. City of Cleveland ( 1948), 150 Ohio St. 303, 82 N.E.2d 709, 725-726, 1948 Ohio LEXIS 

375. 
" Id. , 82 N.E.2d 709, at 726. 
12 Id. , 82 N.E.2d 709, at 730. 
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described in R.C. 1506.10 and 1506.1173 is the "natural shoreline," and this statutory definition 
controls the court's application of the statute. Plaintiffs further argue that using the "natural 
shoreline" as the definition of the boundary comports with the holdings of Ohio case law. 74 

[¦170] The court agrees that the "natural" shoreline is the statutorily-defined landward boundary 
of the territory as a matter of statutory law and as a matter of Ohio case law. 

The "shoreline" is where the water touches the land on shore 
[¦171] Plaintiffs argue that the ordinary dictionary definition of the "shoreline" is the line where 
a body of water and the land on shore meet. Specifically, plaintiffs reference the Merriam 
Webster Online Dictionary to define "shoreline" as "the line where a body of water and the shore 
meet" Similarly, plaintiffs reference the 1916 edition of Webster's New lnternational 
Dictionary, which defines the "shoreline" as the "line of contact of a body of water with the 
shore." The 1916 edition was published the year before the language currently in R.C. 1506.10 
and 1506.11 was first adopted by the General Assembly as part of the General Code. Therefore, 
it is fair to say that this definition accurately reflects the common usage of the term at that time. 
Third, plaintiffs refer to OAC 1501-6-10(T), in which the term "shore" is defined to mean "the 
land bordering the lake" and OAC 1501-6-10(U), in which the term "shoreline" is defined to 
mean the "line of intersection of Lake Erie with the beach or shore" 

[¦172] The court agrees, as a matter of law, that the "shoreline" is the place where the water of 

Lake Erie actually touches the land on shore. 

The "shore " means the land between high and low water marks 

[¦173] Because the foregoing definitions of the shoreline refer to the "shore" and the "beach," 
plaintiffs next seek to establish the definition of these terms as a matter of law. Starting with 
Black's Law Dictionary, and referencing several pertinent dictionaries, Ohio case law,75 and the 
Ohio Administrative Code,76 plaintiffs argue that these terms are synonyms that mean the same 
thing: "the land between low and high water marks." 

73 R.C. 1506.11(A) expressly defines the term "Territory" as used in this section in terms of the "natural shoreline." 


" State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 339, 82 N.E.2d 709, 1948 Ohio LEXIS 375; 
State ex. rel. DuJ,jy v. Lakefront East Ffry-Ffth Street Corp. (1940), 137 Ohio St. 8, 27 N.E.2d 485, 1940 Ohio 
LEXIS 412; Hogg v. Beerman (1884), 41 Ohio St. 81, 1884 Ohio LEXIS 290. 
'S Busch v. Wilgus (1922), 24 Ohio N.P. (n.s.) 209 at *217, 1922 Ohio Misc. LEXIS 272 at * 14. 


76 O.A.C. 1501-6-10(E). 


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[¦174] The court agrees that the "shore" and the "beach"77 are synonyms in the context of the 
issues in this case and that, as a matter of law, they mean "the land between low and high water 

marks." 

The "Territory" includes lands presently underlying Lake Erie waters 

[¦175] Plaintiffs also note that R.C. ¤1506.11 specifically defines the "Territory" as including 
"the waters and the lands presently^$ underlying the waters of Lake Erie." (emphasis added). 
Because there is an approximately six-foot fluctuation between the elevation of ordinary high 
water mark and ordinary low water mark in Lake Erie, the land "presently" underlying the waters 

of Lake Erie varies at any given time. 
[¦176] Accordingly, with respect to the "shore" or the "beach," the court finds that the boundary 


of the area of the "Territory" varies with the place where the water actually touches the shore at 

any given time. 

Ohio Supreme Court allegedly held "natural shoreline" is LWM 

[¦177] Plaintiffs next argue that the Ohio Supreme Court, and other courts in Ohio, have already 
interpreted the language at issue in this case, and that the courts have found the "natural 

shoreline" to be the low water mark. 
[11178] First, plaintiffs cite Mitchell v. Cleveland Electric Illuminating Co 79 In that case, the 


Ohio Supreme Court noted that it was "undisputed" in that case that "Avon Lake's territorial 

limits extend only to the low water line of Lake Erie." The Supreme Court's observation that the 

parties in the Mitchell case chose not to dispute the validity of the low water mark as the proper 

boundary is not a legal holding on which this court is willing to rely as a statement of the law in 

Ohio. 
However, Lembeck involved a small, non


[¦179] Next, plaintiffs look to Lembeck v. Nye.80 
navigable lake in Medina County known as Chippewa Lake, in which the State of Ohio held no 

" Defendants-Respondents argue that the term "beach" is disfinguishable from the term "shore" in that "beach" can 
refer to uplands well-above the high water mark. However, the court takes the view that any discussion of the term 
"beach" as it may apply to uplands above the high water mark is inapplicable to the context of the issues in this case. 
When "beach" is used to discuss the rights and responsibilities of the respective parties in this case, it refers to the 
land between the ordinary low water mark and the ordinary high water mark. 
" Although the word "presently" sometimes has a secondary meaning that refers to what is about to happen, the 
primary meaning of this term in American English refers to what is currently happening. See, A Dictionary of 
Modern Legal Usage, Second Edition, by Bryan A. Gamer (1995). 

Mitchell v. Cleveland Electric Illuminating Co. (1987), 30 Ohio St.3d 92, 507 N.E.2d 352, 1987 Ohio LEXIS 270. 
80 Lembeck v. Nye (1890), 47 Ohio St. 336, 24 N.E. 686, 1890 Ohio LEXIS 79. 

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trust ownership. The Lembeck case, therefore, does not apply to the boundaries of the public 


trust territory in a large navigable body of water such as Lake Erie. 
[¦180] In Wheeler v. City of Port Clinton,81 the court of appeals for the sixth district stated in 


passing that, "The north territorial boundary of Port Clinton extends to, but not beyond, the Lake 


Erie shoreline." The main issue in Wheeler was whether the City of Port Clinton could be held 
liable for the injuries that plaintiff sustained on submerged rocks located some distance lakeward 
from the shoreline of Lake Erie. Accordingly, the precise definition of the territory of the public 
trust in Lake Erie, and the delineation of the title and littoral rights of lakeside landowners, was 
not before the Wheeler court; therefore, Wheeler's mention of the "shoreline" fails to establish 


low water mark as the boundary of the Territory. 
[¦181] Plaintiffs then turn their attention to the Ohio Supreme Court's opinion in James v. 
Howell,82 arguing that in that case the Ohio Supreme Court "equated the shoreline both with the 
low water line and the boundary of the public trust territory." However, the holdings in the 
James case did not have to do with defining the shoreline of Lake Erie or equating the shoreline 
of Lake Erie with the low water mark. As noted in the syllabus of that case, the holdings in the 
James case had to do with: ( 1) clarifying that the ordinary purpose of a surveyor's meander line 


is not to set a border but to calculate acreage, especially in a marshy area; and (2) establishing an 


exception to that general rule where the documentary evidence clearly shows an intent to run the 


meander line as a border or boundary. Since the present case does not involve the meaning or 


effect of meander lines, the court concludes that the James case has no direct bearing on the 


issues in this case. 


[1[182] Finally, plaintiffs cite to a United States Supreme Court decision - Niles v. Cedar Point 


Club83 -as holding that marsh land bordering Lake Erie, but not permanently covered with water 


or continuously submerged, did not belong to the State of Ohio as submerged land, and that it 


could be sold separately from the parcel of dry upland already sold by the United States to 


another person. This much is true. However, the reason the court reached this holding had 


nothing to do with defining the shoreline of Lake Erie. It had to do instead with interpreting the 


intent of the federal government when it issued a patent to land that was surveyed as stopping 


81 Wheeler v. City ofPort Clinton (1988), 1988 Ohio App. LEXIS 3702. 
" James v. Howell (1885), 41 Ohio St. 696, 710,1885 Ohio LEXIS 261. 
83 Ni(es v. Cedar Point Club (1899), 175 U.S. 300, 308-309, 20 S.Ct. 124, 44 L.Ed. 171, 1899 U.S. LEXIS 1566. 


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short of the marsh in question. Manifestly, the Niles case did not involve littoral property; 
therefore, it does not apply in this case. 

[¦183] In light of the foregoing analysis of the cases cited by the plaintiffs, the court disagrees 
with the plaintiffs' contention, and concludes that the Ohio Supreme Court has not ruled, as a 
matter of law, that ordinary low water mark is the "natural shoreline" boundary of the public 

trust territory. 

State of Ohio has previously declared the boundary to be LYVM 

[11184] In support of their claim that the State of Ohio has already officially adopted LWM as the 
official boundary of the public trust territory, Plaintiffs point first to a letter, dated October 12, 
1970, from the State of Ohio Deparhnent of Public Works to Mr. Edward L. Feick, P.E. (Exhibit 
2 attached to plaintiffs' MFSJ). In that letter, the State of Ohio stated that the Ohio Revised 
Code84 provided that "the land underlying the waters of Lake Erie belongs to the State of Ohio as 
proprietor in trust for the people of the State of Ohio" and that "Such land is defined as that 
which is inundated by water when the Lake level is at an elevation of 568.6 feet." At that time, 
the elevation of 568.6 feet was recognized as the low water datum for Lake Erie. 

[¦185] Plaintiffs also point to the legal position taken by the State of Ohio in the Rheinfrank85 

case to support their argument that the State of Ohio has officially acknowledged the Low Water 

Mark as the proper boundary of the public trust territory of Lake Erie. However, Rheinfrank is a 

shaky foundation on which to rest such a legal conclusion because the stipulations that were 

involved in that case eliminated the relevance of the state's position with respect to the low water 

mark. 

[¦186] Accordingly, although it appears that 37 years ago the State of Ohio was indeed 

informing members of the public through written correspondence that the low water mark 

defined the boundary of public trust area of Lake Erie, it does not appear from Rheinfrank that 

84 Then R.C. ¤ 123.03. 

ss Rheinfrank v. Gienow, 1973 Ohio App. LEXIS 1671. As noted above, although the court of appeals in Rheinfrank 

decided against the State of Ohio on the merits of the case, holding that the plaintiffs' land adjoined the waters of the 

Maumee River and not Lake Erie, the court did not challenge the State's reliance on the low water datum to 

determine the boundaries of Lake Erie. Instead, the court of appeals acknowledged that the parties had already 

stioulated in the common pleas court that low water datum was not a standard for determining where the Maumee 

River ends and Lake Erie begins. This stipulation had the effect of eliminating the probative value of the state's 

expert, Charles Edward Herdendorf-who is plaintiffs' expert in this case - who at that time was employed by the 

Ohio Department of Natural Resources, Division of Geological Survey, and who testified in Rheinfrank that low 

water datum was the proper standard for determining the boundary of Lake Erie. 

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this position was actually adopted as the position of the State of Ohio in that case. To the 
contrary, in Rheinfrank, the State of Ohio appears to have stipulated in the common pleas court 

to the opposite position. 
]¦187] It is not clear to this court what the legal effect is of such 37-year-old correspondence 
between an agency like ODNR and a private citizen, and plaintiffs have provided the court with 
no case law to establish what that legal effect might be. As a mere letter, unsupported by a 
sworn affidavit, or written admission by the party-opponent, or some other means of satisfying 
the requirements of Rule 56(C) of the Ohio Rules of Civil Procedure, the letter does not appear 
to comply with the evidentiary requirements of Rule 56. Therefore, the court declines to 
consider the letter as being persuasive on this issue at the summary judgment stage of the 

proceedings. 

Case law and common meaning says "shoreline " cannot be HWM 

[¦188] Plaintiffs argue that the defendants' position - using the ordinary high water mark using 
mid-1980s data as the boundary of the public trust territory - would conflict with common usage, 
the definitions in OAC 1501-6-10, the OAG opinion (supra), and the holdings of the Ohio courts. 
In light of these alleged conflicts, plaintiffs argue that proper rules of statutory construction 
under R.C. 1.49 (governing the interpretation of ambiguities in statutory language) require the 
court to find that the "shoreline" cannot be interpreted to mean the "ordinary high water mark" as 
used by ODNR. Plaintiffs make this argument in three parts: First, that HWM conflicts with 
statutory provisions; second, the HWM contradicts the holdings in various Ohio Supreme Court 
cases; and third, using the HWM violates private property rights of lakeside property owners. 
And finally, the plaintiffs argue that HWM cannot be the proper boundary because the Ohio 
Attorney General already advised ODNR in a written opinion that the public trust did not extend 

to the high water mark. 

Using HWM as public trust boundary violates ODNR's own rules 

[¦189] Plaintiffs point out that ODNR's own regulations - as set out on O.A.C. 1501-6-10 and as 
approved by the Joint Committee on Agency Rule Review ("JCARR") - should not conflict with 
or render meaningless the term "shoreline" as used in R.C. 1506.10 and 1506.11. Yet a 
"shoreline" at the ordinary high water mark does conflict with the statutory terms. 
[11190] Plaintiffs argue further that, "ODNR defines the `shoreline' in its regulations as the `line 
of intersection of Lake Erie with the beach or shore.' O.A.C. 1506-6-10(U). As noted above, 

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ODNR defines both the `shore' and `beach' as the land between the ordinary high and low water 
marks. Thus, according to plaintiffs, the shoreline under ODNR's regulations and as approved 

by JCARR sits at ordinary low water mark." 
[¦191] Most significantly, plaintiffs observe that "if the `shoreline' for purposes of R.C. 
¤1506.10 is the ordinary high water mark as the State contends here, then ODNR has a 
`shoreline' at the foot of the shore for its erosion rules, which were approved by the General 
Assembly, and another `shoreline' at the top of the shore for its submerged lands lease policy, 
which was not approved by the General Assembly." Indeed ODNR's `shoreline' proposed here 
directly conflicts with the `shoreline' in its erosion rules, as a`shoreline' fixed at 573.4 feet 
IGLD (1985) sweeps under state control much of the beach or shore (while also ignoring `beach' 
that could exist landward of that fixed line of elevation.) Such a result is nonsensical and 

impermissible under Geier86 and R.C. 1.47(B). 
[¦192] Although the plaintiffs make no direct reference to the language of the erosion 
regulations, O.A.C. 1501-6-01(M) specifically defines the "littoral zone" to mean "the indefinite 
zone between the shoreline extending lakeward to the furthennost line where waves begin to 
break." (emphasis added). In addition, O.A.C. 1501-6-01(W) provides that, "Where the territory 
has been artificially filled, the director shall determine the natural shoreline as accurately as 
possible, using the best practicable measures including, but not limited to, an analysis of the 

earliest known chart, maps, or photographs." (Emphasis added). 
[¦193] It is apparent to the court that neither of these erosion zone regulations sets the boundary 
of the public trust territory as the high water mark or the low water mark. Instead, these 
regulations set the boundary as the place where the waves begin to break. Accordingly, the court 
agrees with the plaintiffs that using the HWM as the boundary of the public trust area contradicts 

the ODNR's own rules. 

Using FIWM as public trust boundary violates Ohio Supreme Court case law 

[¦194] Plaintiffs next assert that Ohio courts have pointed to the shoreline, in one manner or 


another, as the boundary of the territory. 
[¦195] First, plaintiffs cite Sloan v. Biemiller,87 in which the Ohio Supreme Court stated in 


paragraph 4 of its syllabus that a littoral owner's property rights extend to the boundary line at 


86 Geier v. National GG Industries., Inc. (1999), 1999 Ohio App. LEXIS 6260, *9-10. 
s' Sloan v. Biemiller (1878), 34 Ohio St. 492, 1878 Ohio LEXIS 176. 


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which the "water usually stands when free from disturbing causes." However, as noted above, a 
strong argument can be made that this was not the actual holding in Sloan v. Biemiller. As 
Sloan v. Biemiller "did not

discussed in Opinion No. 93-025 by Attorney General Lee Fisher, 
hold that a littoral property owner on Lake Erie holds title to the low water mark." Instead, the 
fact-specific holding in Biemiller established that the public retains a right to fish in the waters of 

Lake Erie regardless of attempts by private littoral landowners to reserve shoreline fishing rights 
to themselves through deed restrictions, and that the public right to fish is still available to a 
grantee of shoreline property, notwithstanding reservation language in the grant specifically 
reserving the right to fish to the grantor. In passing, the court also made reference to various 
methods by which the boundary of littoral property may be determined in different jurisdictions, 

but that was not the precise issue before the court. 
In Busch, the Logan County Common Pleas

[¦196] Second, plaintiffs cite Busch v. Wilgus.88 
Court held that: (1) where an "island" was formed in a canal by reservoir-building actions of the 
state, and (2) where the island was then conveyed by the state as "Orchard Island," using a deed 
conveyance description that incorporated survey language referring to the "ordinary low water 
mark" as the boundary of the island being conveyed, and (3) where the platted island shows lots 
fronting on the surrounding water without any space or margin between the lot and low-water 

mark, the lot owner, in the absence of restrictions to the contrary, takes title to the land fronting 
on the lake to ordinary low water mark. Elsewhere in the Busch opinion, the court makes clear 
that the owner of the island takes title to the water's edge. Part of the court's rationale for 
reaching this conclusion included the thought that, by definition, an island is bounded by nothing 

but water. Therefore, the boundary of an island must be the water's edge. 
(¦197] Third, plaintiffs cite to Hogg v. Beerman,89 noting that the referee from the district court 
found that the water's edge is the boundary of property abutting Lake Erie as a matter of law. 
Accordingly, Hogg supports the plaintiffs' claim that wherever the boundary line may be set, the 
one place where it simply can not be set is ordinary high water mark. Similar holdings were 

reached in State ex rel. Squire90 ("upland owners have title only to the natural shore line of Lake 

$a Busch v. Wilgus (1922), 24 Ohio N.P. (n.s.) 209, 215, 1022 Ohio Misc. LEXIS 272, at * 11. 
89 Hogg v. Beerman (1884), 41 Ohio St. 81 at 89, 1884 Ohio LEXIS 290. 
ˇ State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 339, 82 N.E.2d 709, 1948 Ohio LEXIS 375. 

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Erie") and in State ex rel Duffy91 ("littoral owner owns land formed by extension of the 

shoreline"). Plaintiffs argue that these references in the case law require the legal conclusion that 
the proper location of the "shoreline" can not be ordinary high water mark. The court agrees. 

Using HWM as public trust boundary violates property rights 

the plaintiffs argue that the holding in that case

[¦198] Referring again to Biemiller,92 
simultaneously affirmed the right of the public to fish in the waters of Lake Erie as well as the 
right of littoral property owners to "own" the lakeshore and exclude others from the area above 


the lakeshore. Accordingly, as long as members of the public are willing to fish from boats on 
the water, or by standing in the waters of Lake Erie, littoral landowners have no right to stop 
them from doing so. However, under Biemiller, littoral landowners do have the right to exclude 


people from standing on the dry shore of the littoral landowner's property. 
[11199] In Lamb v. Rickets,93 the Ohio Supreme Court held that - in the computation of the 


number of acres in a survey that uses the courses of the bank of a stream as one of the called 
the stream at low water mark is the proper boundary. The court reasoned that the

boundaries use 
of the low water mater mark was required in such instances to ensure that the grantee of the 
land retained access to the stream notwithstanding changes to the course of the stream due to 

alluvion. 
[¦200] In the present case, plaintiffs have previously submitted to the court several deeds in 
which the metes and bounds in the legal description used calls defining the northernmost border 
To the extent that the metes and bounds

of the land by reference to the shoreline of Lake Erie. 
legal description contains a call to the shore of Lake Erie, or an equivalent reference to the 
water's edge, if Lamb v. Rickets was on all fours with the facts of this case, then the class 

member's titled ownership would extend to the low water mark of Lake Erie. However, Lamb v. 
Lamb involved the categorically-different situation of

Rickets is not on all fours with this case. 
the riparian rights of a landowner whose property bordered a river, as opposed to Lake Erie. 


Accordingly, even though Lamb is not binding on the categorically-different facts in this case, 
the court nonetheless agrees with the plaintiffs that the use of HWM as the boundary of the 
"territory" would violate the property rights of the plaintiffs in that it would impermissibly 


91 State ex. ret. Duffy v. Lakefront East Fifty-Fifth Street Corp. (1940), 137 Ohio St. 8, 27 N.E. 2d 485, 1940 Ohio 

LEXIS 412. 
" Sloan v. Biemiller ( 1878), 34 Ohio St. 492, 1878 Ohio LEXIS 176. 
9' Lamb v. Rickets ( 1842), 11 Ohio 311,1842 Ohio LEXIS 87. 


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intrude into the area of the shore that lies below the HWM and above the water's edge (i.e., the 

place where the water actually touches the land).94 

Ohio AG advised ODNR that public trust did not extend to HWM 

[¦201] Plaintiffs-Relators next refer to an Ohio Attorney General Opinion95 issued on October 

27, 1993, in response to a request from ODNR for a legal opinion clarifying the boundary of the 

public trust territory. In that opinion, the attorney general opined that a littoral owner of land 

bordering Lake Erie holds title to the extent of the natural shoreline, and no farther, even if the 

deed describes a northern boundary that is lakeward of the natural shoreline. In addition, the 

littoral owner has littoral rights that permit the owner to do things such as access the waters of 

Lake Erie, and to wharf out to the point of navigability. 
[¦202] It appears, therefore, that the plaintiffs are correct in arguing that the State of Ohio's 
Attomey General did advise ODNR that the public trust territory did not extend to HWM but 
ended at the "natural shoreline." The court agrees with the attorney general's opinion. 


OHWM cannot be set at 573.4 IGLD 

]11203] Plaintiffs argue that the line of 573.4 feet IGLD (1985) relied on by ODNR is not 
"ordinary," and that it destroys long-recognized rights of littoral property owners to new lands 
formed from accretion or reliction and to restore lands lost to avulsion. Plaintiffs cite to U.S. v. 
Marion L. Kincaid Trust,96 as an example of the federal courts rejecting the Army Corps of 
Engineers' ordinary high water mark standard for Lake Michigan (581.5 feet IGLD in 1985). 
The court in Kincaid noted that the data used by the Army Corps contained the historic maximum 
lake levels (rendering the term "ordinary" inapplicable), and that there were no federal 
regulations authorizing the Army Corps to establish an administrative ordinary high water mark. 
The Kincaid court further noted that the Michigan courts had rejected attempts by the Michigan 
legislature to use the Army Corps' high water mark to delineate the "rights, privileges, 

94 tLtassachusetts v. New York (1926), 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838, 1926 U.S. LEXIS 608 (In a case 
involving territory bounded by the "shore" of Lake Ontario, the U.S. Supreme Court held that the rule that a grant 
whose boundaries extend to the "shore," or "along the shore," of the sea carries only to high water, is inapplicable to 
conveyances of land on non-tidal waters because such a rule would be impracticable, and because it would deny 
access to the waters of the lake except on the irregular and infrequent occasions of flood.) 
95 1993 Ohio Op. Atty. Gen. 128; 1993 Ohio Op. Atty. Gen. No. 25; 1993 Ohio AG LEXIS 27. 
96 U.S. v. Marion L. Kincaid Trust (2006), 463 F.Supp.2d 680, 2006 U.S. Dist. LEXIS 88250 (Although this case 
was, strictly speaking, about whether the defendants were the prevailing parties for purposes of making an award 
under Federal Rule 11, the court engaged in a substantial discussion of the merits, in which the environmental action 
brought by the United States had been dismissed). 

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obligations, and responsibilities of shoreline landowners:' Accordingly, the court concluded that 
the federal government's reliance on the Army Corps' high water mark was an unreasonable way 
to define its geographic jurisdiction to enforce environmental laws against the lakeside 


landowner. 
[11204] Similarly, in the present case, the high water mark set by the Army Corps for Lake Erie is 
based on historically extraordinary record data from 1985, and the adoption of that high water 


mark by the ODNR was not the result of legislation or the promulgation of administrative rules, 
regulations, or orders by ODNR. 
[¦205] Plaintiffs also argue that setting the boundary at 573.4 IGLD (1985) would destroy the 
upland owner's rights created by reliction and accretion, as well as the upland owner's right to 


access the waters of Lake Erie, by creating a gap between the boundary of the upland owner's 


title and the actual edge of the water. 


[¦206] The court agrees that, in the absence of Ohio legislation establishing the high water mark, 

or the promulgation of administrative rules, regulations, or orders by ODNR, the "ordinary" 

high water mark cannot be set at 573.4 feet IGLD (1985). Furthermore, as explained elsewhere 

in this opinion, the boundary of the public trust territory in Ohio is not the ordinary high water 

mark on Lake Erie, but rather it is the water's edge. 

The parties have different rights in the "territory" 

{¦207] Plaintiffs argue that, under R.C. 1506.10 and State ex rel. Squire v. City of Cleveland,97 
the public trust extends to protecting the public's rights to navigation, fishery, and water 
commerce. Plaintiffs also attempt to restrict the public's rights in the public trust to these three 
categories, expressly ruling out any additional categories such as hunting. However, although 
plaintiffs' citations to Bodi v. The Winous Point Shooting Club,98 and Biemiller99 do support the 
conclusion that the public has the right to navigation, fishery, and water commerce, those cases 
do not support the categorical conclusion that the public has no right to hunt while in or on the 
waters of Lake Erie. Nevertheless, any right that the public has to hunt in the waters of Lake 
Erie does not extend landward beyond the water's edge. 

9' State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 82 N.E.2d 709,1948 Ohio LEXIS 375. 
98 Bodi v. The Winous Point Shooting Club (1897), 57 Ohio St. 226, 48 N.E. 944, 1897 Ohio LEXIS 114. 
99 Sloan v. Biemiller (1878), 34 Ohio St. 492, 516-17, 1878 Ohio LEXIS 176. 

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Littoral rights include access, exclusion, new property, and reclamation 

[11208] Plaintiffs' final argument alleges that littoral property owners have the same rights as the 
rest of the public to use the waters of Lake Erie for navigation, water commerce, and fishery, and 
that they also have specific "littoral' property rights by virtue of their ownership of property 
adjoining the waters of Lake Erie. These littoral rights extend beyond the natural shoreline and 
include: (1) the right to make reasonable uses of the waters in front of or flowing past their lands, 

(2) the right of access to navigable waters, and (3) the right to wharf out to navigable waters.100 
Littoral property owners also have the right to all lands gained through accretion or reliction,101 
and maintain ownership of lands lost by avulsion.lˇ2 And finally, littoral property owners have 
the right to exclude others from using the shore down to the water's edge.1ˇ3 
[¦209] The court agrees with plaintiffs' description of the littoral property rights of lakefront 
property owners; however, this court has not been asked to define categorically all of the littoral 
rights that are recognized under Ohio law for land adjoining Lake Erie. Accordingly, 
notwithstanding the argumentation of the parties, the court declines to make a comprehensive, 
categorical declaration of what those littoral rights are with respect to all members of the class. 
Such questions are probably best left to the resolution of specific disputes involving individual 
parties who are asserting such littoral rights with respect to a specific parcel of land, according to 
specific deed language, and pertaining to a specific area of the Lake Erie coastline.104 

SJ arguments of Plaintiffs Taft and Duncan 

[¦210] Intervening Plaintiffs Taft and Duncan's ("Taft plaintiffs") arguments for summary 

judgment on Count I, together with the court's assessment of those arguments, can be 

summarized as follows. 
[¦211] First, the Taft Plaintiffs support OLG's memorandum in support of their motion for 


summary judgment. 


0o State ex rel. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 82 N.E.2d 709, 1948 Ohio LEXIS 375. 
101 State ex. rel. Duffy v. Lakefront East F9fty-Fifth Street Corp. (1940), 137 Ohio St. 8, 27 N.E. 2d 485, 1940 Ohio 
LEXIS 412. 


102 United States v. 461.42 Acres ofLand (1963), 222 F.Supp. 55, 1963 U.S. Dist. LEXIS 6602. 
'03 Eastwood Mall, Inc. v. Slanco (1994), 68 Ohio St.3d 221,1994-Ohio-433, 626 N.E.2d 59, 1994 Ohio LEXIS 48 
("The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of 


property rights.") 
104 The court's reluctance to issue such a comprehensive, categorical declaration of littoral rights is also related to 
the fact that some of the land along the shore of Lake Erie is swampland which may be owned by individuals or 
other persons, free of the restrictions of the public trust. 


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[¦212] In addition, the Taft plaintiffs argue that the historical record, including the existing laws 
and surveying practices at the time of Ohio's statehood must be considered in order to 
understand the intent of the major grants by the Connecticut Legislature and the United States 
Congress which occurred before Ohio's statehood. This court agrees, which is why the court has 


set forth a good portion of the historical record above. 
j¦2131 The Taft plaintiffs argue that the "cadastral"105 survey definition at the time of the 


original patents or grants controls the extent to which HWM or LWM is applicable to this case, 
and that today's many regulatory definitions do not control because they were set for 


administrative convenience without legislative enactment or judicial review. 


Landward boundary of Public Trust Should Allegedly be LWM 

[¦214] The Taft plaintiffs argue that the landward boundary of the public trust territory is the 
low water mark as it existed in 1803 when Ohio became a state. The essence of the plaintiffs' 
argument is that, since the entire Westem Reserve passed into private ownership under patents or 
grants issued in 1795, before the federal cession of land under "Quieting Act," the littoral lands 
bordering Lake Erie within the Western Reserve were never public lands of the United States. 
Plaintiffs then cite to the exception described in Massachusetts v. New York,106 in which the 

court held that title to the soil under navigable waters is in the sovereign, except so far as private 

rights have been acquired by express grant or prescription. (emphasis added). 

[¦215] The Taft plaintiffs reviewed the development of the cadastral survey system in Ohio, 

beginning with the Land Ordinance passed by Congress in 1785, and including the Northwest 

Territory Act of 1787, and argue that three pre-statehood surveys107 consistently set the boundary 

of the public trust territory as the low water mark. Plaintiffs further argue that the low water 

mark boundary set for lands held privately prior to Ohio's statehood is the proper boundary of 

the public trust territory today. In support of this argument, the plaintiffs cite to four cases.108 

However, none of those cases involved boundary disputes involving the shores of Lake Erie. 

'os "Cadastral" refers to a survey that defines the boundaries of a tract of land, usually for the purposes of taxation. 

106 Massachusetts v. New York (1926), 271 U.S. 65, 46 S.Ct. 357, 70 L.Ed. 838, 1926 U.S. LEXIS 608. 

10' The three surveys defined: (1) the lands of the Connecticut Land Company, which encompassed the Western 

Reserve, but did not include the Firelands; (2) the Firelands, also known as the "Sufferers' Land;" and (3) the public 

lands of the United States, located west of the Westeru Reserve. The federal lands were surveyed and sold to the 

public under the authorization of the land ordinance of 1785. 

108 Handly's Lessee v. Anthony (1820), 18 U.S. 374, 5 L.Ed. 113, 1820 U.S. LEXIS 262, 5 Wheat. 374 (state's grant 

of land to bordering state did not include the river, so the boundary was the low water mark on the northwest side of 

the river); Ohio v. Kentucky (1973), 410 U.S. 641, 93 S.Ct. 1178, 35 L.Ed.2d 560, 1973 U.S. LEXIS 101 (Ohio 

sought a judicial declaration defining its boundary with Kentucky as being one of several locations, including the 

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[¦216] Next, the Taft plaintiffs argue that the Quieting Act of 1801 passed all federal claim of 
title to the soil of the Western Reserve to the State of Connecticut in trust for its grantees under 
metes and bounds descriptions that used terms such as "to Lake Erie," "traversing along the 
shore of Lake Erie," or "to the shore," or "including the whole beach." Subsequent to these 
grants from Connecticut, the initial grantees in turn passed title using similar terms. Plaintiffs 
further argue that the federal Submerged Lands Act reconfirmed the congressional grants under 

the Quieting Act and provided new grants to the states along the coasts. 
[¦217] Next, the Taft plaintiffs argue that, since 1795, the responsibility for determining the 
boundaries of lands under the public land survey system (PLSS) has rested with the Geographer 
of the United States and not the Army Corps of Engineers. Plaintiffs point out that theLand 
Ordinance of 1785 originally appointed a Surveyor General to establish the boundaries of the 
Public Lands of the United States, including those along the shore of Lake Erie west of the 
Connecticut Western Reserve, and that this authority currently rests with the Bureau of Land 

Management. Citing to Niles v. Cedar Point Club,109 Plaintiffs also point out that it was not until 

1891 that the term "ordinary high water mark" was used in public land surveying instructions, 
and that when it was adopted as a surveying term in 1891, it replaced the previous standard of 

"ordinary low water mark." 
[¦218] In light of the foregoing factors, plaintiffs argue that the only definition of the "natural 
shoreline" which is fully compatible with the early laws of Ohio, Virginia, Connecticut, and the 
United States is the low water mark as it existed in 1803 or at any lower level to which the water 
has since receded. Plaintiffs also argue that any altertrate definition for the term "natural 
shoreline" through new statutes or regulations more than 200 years after the initial grants and 

low water mark on the nor[herly shore of the Ohio River as it existed in 1792, rather than the more modem low 
water mark. Procedurally, Ohio's motion to amend its complaint was denied, and the court held that Ohio was 
foreclosed by its long-term acquiescence from contesting the boundary); Lessee ofBlanchard v. Porter, Collins 
(1841), 11 Ohio 138 (Under the Northwest Ordinance, land on the Ohio river, lying between high and low water 
mark, is not common to the public, but may be conveyed by the adjacent proprietor, whose land bounds on the river; 
Lessee ofMcCullock v. Aten (1826), 2 Ohio 307 (In a case involving conflicting deeds to property adjoining a creek, 

the court held that the landowner's boundary was the water's edge and not the bank). 
'09 Niles v. Cedar Point Club (1899), 175 U.S. 300, 20 S.Ct. 124 44 L.Ed. 171, 1899 U.S. LEXIS 1566 (Plaintiff was 
the holder of a federal patent to land bordering a marsh along the shore of Lake Erie. The plaintiff's land was 
originally surveyed in 1834 and 1835 when the waters of Lake Erie were above their ordinary stage. In 1844, 
defendant's predecessor purchased land bordering the marsh. The area was again surveyed in 1881 and was patented 
and sold. The court held that the amount of land contained in the defendant's parcel could not be expanded by 
arguing that the survey contained an error extending the boundary across the meander line of the marsh). 

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contracts would violate the U.S. Constitution, the Northwest Territory Act, and the Ohio 

Constitution. 
[¦219] In the present case, as discussed above, the court disagrees that low water mark is the 
only defmition of the "natural shoreline" that is compatible with the relevant law in Ohio. The 
court is of the opinion that the proper legal definition of the "natural shoreline" is the water's 

edge, meaning the place where the water touches the land at any given time.11o 
[¦220] The Taft plaintiffs next argue that because both the Quieting Act and the Submerged 
Lands Act of 1953 have been found to be constitutional,"l the federal government had the power 
to dispose of lands below 573.4 feet (IGLD 1985) under or adjacent to the waters of Lake Erie in 

the same manner as a private individual. 
[¦221] The Taft plaintiffs' final arguments are: (1) that if HWM is the boundary, then the 
boundary must be established factually on a property-by-property basis; (2) that the LWM - as it 
existed when the original cessions of land were made - should be used instead of using 573.4 
feet IGLD (1985); and (3) in addition to the littoral rights described by class plaintiffs, littoral 
landowners also have the right to protect their fast lands from inundation, erosion, and avulsion 
by the waters.112 Plaintiffs point out that Ohio's Fleming Act provided in 1917 that the littoral 
rights of lakeside landowners were superior to the public rights held in trust by the State of 

Oh10.113 . . . 


[¦222] In the State of Ohio's brief in opposition to the Taft Plaintiffs' motion for summary 
judgment, filed July 16, 2007, defendants-respondents cite to Barney v. Keokuktl4 for the 
proposition that, "In those territories bounding navigable non-tidal waters, such as the Great 
Lakes, the lands reserved to the states extend to the ordinary high water mark." However, in 

"0 In their brief in opposition, filed July 16, 2007, the defendants-respondents argue on pages 34 and 35 that using 
the moveable boundary of the water's edge would be an unconstitutional abdication of the state's trust 
responsibilities whenever the water receded lakeward, and an unconstitutional taking whenever the water advanced 

landward. 

However, if the boundary moves with the water's edge, then neither of these problems arises. There is no 

abdication of the trust because, when the water recedes gradually, the boundary of the trust territory also recedes 

with the water; similarly, there is no unconstitutional taking when the water advances landward gradually, because 

the moveable boundary of the littoral owner's title also moves landward with the water. And when the waters 

recede or advance suddenly, such as through reliction or avulsion, the boundary remains where it was prior to the 

sudden change. 

"' Alabama v. Texas (1954), 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689, 1954 U.S. LEXIS 2335; United States v. 

Texas (1950), 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221, 1950 U.S. LEXIS 1814. 

112 State ex ret. Duf, fy v. Lakefront East Fifty-Fifth Street Corp., (1940), 137 Ohio St. 8, 27 N.E. 2d 485, 1940 Ohio 

LEXIS 412. 

li3 General Code Section 3699-a, as enacted in 107 Ohio Laws 587, 1917. 

114 Barney v. Keokuk (1877), 94 U.S. 324,24 L.Ed.2d 224, 1876 U.S. LEXIS 1869. 

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Keokuk, the issue concerned the title boundary along the Mississippi River, not the Great Lakes. 
In addition, the Keokuk court acknowledged that the title of the state to navigable waters is 
bounded to the extent that it might interfere with vested rights and established rules of property. 
In that case, the court held that the City of Keokuk held title to the high water mark, but that the 
city also had the right, as a riparian landowner, to "build wharves and levees on the bank of the 

Illinois Central Rd. Co. v.

Mississippi below high water." The State of Ohio also cites to 
Illinois,lls and State of Ohio v. Cleveland & Pittsburgh Railroad Co.116 for the proposition that 
the ordinary high water mark is the proper boundary of the territory. However, in Cleveland & 
Pittsburgh, the court acknowledged that the courts of Illinois have declared that, under the 

common law, ownership on the shore of Lake Michigan extends to the water's edge. 

[¦223] The court finds that neither HWM nor LWM is the proper boundary between the title 

ownership of the littoral owner and the trust title held by the State of Ohio, but rather that the 

proper boundary is the water's edge at any given time, subject to the right of the littoral owner to 

reclaim property lost through avulsion. However, without ruling on the matter, the court does 

agree with the Taft plaintiffs that, in some cases, the littoral rights of the owners of lakeside 

property appear to include the right to protect their fast lands from inundation, erosion, and 

avulsion by the waters of Lake Erie. 

SJ Artmments of Defendants State of Ohio, ODNR 
[¦224] Defendants-Respondents' motion for summary judgment is structured around three basic 

points: 
[¦225] (1) As a matter of law, the furthest landward boundary of the "territory" as that term 
appears in R.C. 1506.10 and 1506.11, is the ordinary high water mark, and the State of Ohio 

holds title to all such "territory" as proprietor in trust for the people of the state; 
[11226] (2) The furthest landward boundary of the "territory" is the ordinary high water mark as a 
matter of law, and that line may be located at the present time using the elevation of 573.4 feet 

IGLD (1985); and 
[¦227] (3) The rights and responsibilities of littoral owners in their upland property, as well as 
the respective rights and responsibilities of the federal government, the State of Ohio, the public, 

15Illinois Central Rd Ca. v. Illinois ( 1892),146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018, 1892 U.S. LEXIS 2208. 
16 State of Ohio v. Cleveland & Pittsburgh Railroad Co. ( 1916), 94 Ohio St. 61, 113 N.E. 677, 1916 Ohio LEXIS 

164. 
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and the littoral owners in the "territory," have long been settled in state and federal law, as has 

the hierarchy of those rights. 
[¦228] With respect to the first basic point, defendants-respondents argue that the question of the 
landward boundary of the lands beneath navigable waters of Lake Erie granted to the State of 
Ohio at statehood is a question of federal law. As a question of federal law, the issue is 
controlled by the holdings of the U.S. Supreme Court interpreting the Equal Footing Doctrine, 
and by Congress's re-affirmation of those holdings through the passage of the Submerged lands 

Act.117 According to those authorities, defendants-respondents argue that the states were granted 
title in trust to all lands below the HWM of non-tidal navigable bodies of water within their 
territorial boundaries upon their admission to the union. Defendants-respondents also argue that 
after a state's admission to the Union, the federal government cannot make any grant of title to 
the lands below HWM. In addition, defendants-respondents argue that after statehood, any title 
recognized or conveyed by the State of Ohio in the lands beneath that boundary to the owners of 

the adjacent lands is a question of state law. 
[¦2291 Defendants-respondents then argue that the State of Ohio has never granted title to lands 
below HWM, Ohio's Fleming Act reaffirms that the "territory" conveyed to the State of Ohio at 

statehood is what the state continues to hold in trust for its people, and the State of Ohio has 

never abdicated its title in trust to lands below HMW. 
[¦2301 In light of the foregoing reasoning, the defendants-respondents conclude that the 
plaintiffs cannot claim title to the lands below HWM on the basis of grant language from post-

federal grantees or the legal descriptions of the current deeds. 

[¦231] With respect to the second basic point, the defendants-respondents assert that the 
appropriate method for locating the ordinary high water mark on the Great Lakes is an unsettled 
question of federal law. They further assert that the method used must conform to the Equal 
Footing Doctrine, and that the use of 573.4 feet IGLD (1985) conforms to that doctrine. In 
addition, they argue that, under R.C. 1506.11, ODNR has authority to manage the use and 

"" As noted elsewhere in this court's opinion, and as stated in Hogg v. Beerman (1884), 41 Ohio St. 81, 1884 Ohio 
LEXIS 290, "The question as to the ownership of the soil under the water, is one which each state is at liberty to 
determine for itself, in accordance with its views of local law and public policy ...:" Accordingly, with respect to 
grants made or patents issued prior to Ohio's statehood, the scope of the grant or patent depends on the intent of the 
grantor or issuer of the patent. Similarly, there is a variety of rules among the various states. Some of the Great 
Lakes states (e.g., Michigan, Wisconsin, and Minnesota) have adopted high water mark as the appropriate boundary, 
and some of the Great Lakes states (e.g., New York, Pennsylvania) use low water mark as the boundary. 

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occupation of the "territory" by issuing a lease from the state for any portion of the "territory" 

occupied by an artificial improvement. 
[¦232] With respect to the third basic point, the defendants-respondents make four assertions in 
which they attempt to describe a hierarchy of rights that places the private property rights of 
littoral owners at the bottom of the hierarchy. At the top of the hierarchy, the defendants-
respondents place the rights and responsibilities of the federal government. Next in the hierarchy 
come the rights and responsibilities of the State of Ohio as proprietor in trust. Next in the 

hierarchy come the rights of the public to use the "territory." And finally, at the bottom of the 
hierarchy, the defendants-respondents place the title rights and littoral rights of upland owners. 
[¦233] As this court noted in its introduction and discussion of the American view of 
sovereignty, in the hierarchy of rights involving private property rights held by individuals and 
other persons, state and federal governments have limited authority, under the state and federal 
constitutions as well as under the connnon law, to regulate those rights. Contrary to the 
defendants-respondents' description, it is the right of private property that belongs at the top of 
the hierarchy. Under the American system of govemment, one of the crucial functions of 
government - indeed, one of the reasons for even having governmental institutions - is to serve 
and protect the private property rights of individuals and other persons. The limited powers that 
have been delegated to governmental institutions may take precedence over individual private 
property rights in a particular case, but that precedence only exists because it has first been 

granted by the people to the state and federal governments. The granting of those limited powers 
does not entitle state or federal governments to extend the scope of their authority beyond what 


was granted." $ 
[¦234] While it is true that, under the U.S. Constitution, the federal government retains various 


servitudes over navigational waters,119 and while it is true that the State of Ohio holds title in 
trust to the waters of Lake Erie and the lands submerged beneath those waters, those 
governmental interests do not in any way change the primacy of the titled private property rights, 
together with the littoral rights, that individuals and other persons have in littoral property they 


118 This point is illustrated by the language of the Tenth Amendment to the U.S. Constitution, which states, "The 
powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the 


states respectively, or to the people." 
.19 It is worth noting that this case was removed to the Federal District Court for the Northem District of Ohio on 
March 29, 2005, and that the district court dismissed the federal action, in part, because "the U.S. has no interest in 
title to the disputed property, and there is no way it could have an interest[.]" (Emphasis added). 


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own along the shores of Lake Erie in Ohio. Under both the U.S. Constitution and the 
constitution of the State of Ohio, if the government takes these property rights from individuals 
or other persons, it must provide reasonable compensation for the taking. In the present case, to 
the extent that ODNR has been intruding on the title rights of littoral owners above the waters 

edge, or the owners' littoral property rights, ODNR has overstepped its authority. 
[11235] In their reply brief, filed by the Taft plaintiffs on July 16, 2007, the plaintiffs assert that 
the defendants-respondents made various misrepresentations of Ohio case law. Without 
rehearsing all of the points made imthe reply brief, suffice it to say that the court agrees with the 
Taft plaintiffs. For example, prior to Ohio's statehood, the lands along the shores of Lake Erie 
were not part of federal lands, but were claimed by Connecticut, Virginia, and New York. These 
conflicting claims to the "backlands" pre-dated both the formation of the United States, as well 
as the formation of the State of Ohio. Therefore, the defendants-respondents' argument to the 
contrary - that prior to Ohio's statehood, the lands in question were federal lands - is incorrect. 
Similarly, as the reply brief points out, there are cases, statutes, and attomey general opinions in 

Ohio's jurisprudence that support the conclusion that the proper riparian and littoral boundary is 


not the high water mark. 
[¦236] This court also agrees with the Taft plaintiffs' assessment of the Michigan case of Glass 


v. Goeckel120 as being poorly decided, and as not disturbing the littoral owner's title to the 
water's edge, but merely providing beachcombers in Michigan with an easement to walk on the 
dry portion of the shore as opposed to restricting the rights of beachcombers to the wet sand. 
The court also agrees with the Taft plaintiffs' analysis of the development of surveying 
techniques and how that development affected the language used in legal descriptions for 
property adjoining Lake Erie.121 In addition, the court agrees that "Ohio's land grant history is 
unique and clearly distinguishes its applicable boundary law from that of western states admitted 
to the union more than half a century later from public lands." 

SJ Arz?uments of NWF and Ohio Environmental Council 
[¦237] In the motion for summary judgment filed by the defendants and counterclaimants, 
National Wildlife Federation ("NWF") and Ohio Environmental Council ("OEC"), the movants 

120 Glass v. Goeckel (2005), 473 Mich. 667, 703 N.W.2d 58, 2005 Mich. LEXIS 1314. 
121 The Taft plaintiffs state that "In 1881, for the first time, surveyors were instructed to survey to the low water 
mark. Previously, there had been no mention of the terms low water mark or high water mark in the cadastral 


survey instructions." 

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concurred with the motion for summary judgment filed by the defendants-respondents, and 
referred to the arguments raised by NWF and OEC in their motion to intervene, filed June 5, 

2006. 

[¦238] In addition, NWF and OEC submitted two affidavits to bolster their standing in this case 
by establishing: (1) their respective organizational purposes as protecting and preserving the 
environment of the State of Ohio; and (2) the adverse affect that plaintiffs' position has on the 
rights of the public seeking to use the waters of Lake Erie for fishing, swimming, and launching 

boats. 

Conclusions and RulinEs of the Court 

Summary of the Court's Rulings and Rationales 

[¦239] In summary, and as explained in more detail below, the court concludes that: (1) each 
owner of Ohio real estate that touches Lake Erie owns title lakeward as far as the water's edge; 

(2) if the lakeside owner's deed contains a legal description that extends into the lake beyond the 
water's edge, then that legal description is hereby reformed so that the legal description ends at 
the water's edge; (3) likewise, the State of Ohio has ownership in trust of the waters of Lake Erie 
and the lands beneath those waters landward as far as the water's edge, but no farther. With 
respect to Lake Erie, this is the boundary of the "territory" that is subject to the regulatory 
authority of the State of Ohio's Department of Natural Resources; and (4) the lakeside landowner 
also has littoral rights, such as the right to wharf out to navigable waters, and those littoral rights 
extend into the lake as an incident of titled ownership of property adjoining the lake. 
[¦240] Balancing the sovereign rights of the private owners of lakefront property against the 
sovereign authority and trust ownership of the State of Ohio of the waters of Lake Erie and the 
lands submerged beneath those waters, the court recognizes that the American view of 
sovereignty is unique in its historical development. The sovereign authority of civil governments 
to regulate or take privately-owned property is ultimately derived from individuals by their 
consent, which authority is confirmed and limited by the U.S. and Ohio constitutions. 
[¦241] The authority delegated to civil governments is limited, and its ultimate purpose is, in 
part, to enable civil govemments to secure and protect the unalienable rights of private property 
owners, and to enable civil governments to be a good steward of the rights of the public in the 
waters and submerged lands held in trust by the State of Ohio. 

[¦242] Prior to the conclusion of the American Revolution, the respective colonies had the 


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authority, and did, in fact, issue land grants and patents to individuals and corporations, and 
some of those grants and patents were issued for lands that are currently located along the 
southern shore of Lake Erie. When the United States successfully concluded the Revolutionary 
War, the sovereign rights of the British Crown vested directly in "the people" of the United 
States, and not in the state governments or the federal government. The sovereign rights of "the 
people" were then delegated, in a limited way, to the federal and state governments in 
accordance with the language of the U.S. Constitution, the Northwest Ordinance, and the Ohio 
Constitution; however, the limited delegation of this authority to the federal, territorial, and state 
governments did not constitute a wholesale abandonment of previously-acquired private property 

rights. 
[1[243] Defendants-Respondents and Intervening Defendants have failed, as a matter of law, to 
show that the landward boundary of the public trust territory in Ohio along the Lake Erie shore 

is the Ordinary High Water Mark of 573.4 IGLD (1985), and Plaintiffs-Relators and Intervening 
Plaintiffs have failed to show that the lakeward boundary of the public trust territory in Ohio 

along the Lake Erie shore is the Ordinary Low Water Mark. The court declares that the law of 
Ohio is that the proper definition of the boundary line for the public trust territory of Lake Erie is 
the water's edge, wherever that moveable boundary may be at any given time, and that the 
location of this moveable boundary is a determination that should be made on a case-by-case 

basis. 
[¦244] The court's decision does not attempt to list or comprehensively define all of the littoral 
rights of landowners of Ohio property adjoining Lake Erie, preferring instead to have those 
rights determined on a case-by-case basis. Similarly, the court's decision does not attempt to 

cover swamp lands covered by the federal Swamp Land Act of 1850. 

Summary Judgment 

[¦245] Rule 56(C) of the Ohio Rules of Civil Procedure governs summary judgment motions in 

Ohio, and states, in pertinent part, as follows: 

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers 
to interrogatories, written admissions, affidavits, transcripts of evidence, and written 
stipulations of fact, if any, timely filed in the action, show that there is no genuine 
issue as to any material fact and that the moving party is entitled to judgment as a 
matter of law. No evidence or stipulation may be considered except as stated in this 
rule. A summary judgment shall not be rendered unless it appears from the evidence 
or stipulation, and only from the evidence or stipulation, that reasonable minds can 
come to but one conclusion and that conclusion is adverse to the party against whom 

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the motion for summary judgment is made, that party being entitled to have the 
evidence or stipulation construed most strongly in the party's favor. 

Thus, before summary judgment may be granted, it must be determined that: (1) no genuine issue as 
to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of 
law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and 
viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to 
the party against whom the motion for summary judgment is made.1zz 

[¦246] Although Rule 56(C) states that "No evidence or stipulation may be considered except as 
stated in this rule," Ohio courts have recognized that when the opposing party "fails to object to the 
admissibility of evidence under Civ. R. 56, the court may, but need not, consider such evidence in 
determining whether summary judgment is appropriate.i123 
[11247] The main purpose of the summary judgment procedure is to enable a party to go behind the 
allegations in the pleadings and assess the proof in order to see whether there is a genuine need for 
trial. The remedy should be applied sparingly and only in those cases where the justice of its 
application is unusually clear. Resolving issues of credibility, or reconciling ambiguities and 
conflicts in witness testimony is outside the province of a summary judgment.124 In reviewing a 
motion for summary judgment, the court must construe the evidence and all reasonable inferences 

drawn therefrom in a light most favorable to the party opposing the motion.125 
[¦248] In the present case, the certified questions concerning the declaratory judgment issues are 
matters of law. Accordingly, there is no genuine issue of material fact with respect to the declaratory 

judgmenbissues. 
[¦249] In light of the foregoing discussions of the history of the State of Ohio, the law of the 
State of Ohio, the pleadings, the motions for summary judgment, the affidavits and other 
materials attached to the motions for summary judgment, the briefs and arguments of the parties, 
the court reaches the following conclusions as a matter of law. 


'22 Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267; Mootispaw v. Eckstein (1996), 76 Ohio 

St.3d 383, 667 N.E.2d 1197.123 Carver v. Deerfield Township (Portage 2000), 139 Ohio App.3d 64, 742 N.E.2d 1182, citing Felker v. Schwenke 
(Cuyahoga 1998), 129 Ohio App.3d 427, 431, 717 N.E.2d 1165, 1168, State ex rel. Spencer v. E. Liverpool 

Planning Comm. (1997), 80 Ohio St.3d 297, 301, 685 N.E.2d 1251, 1255, and Bowmer v. Dettelbach (1996), 109 
Ohio App.3d 680, 684, 672 N.E.2d 1081, 1084 (holding that "[w]hile the court of appeals may consider evidence 
other than that listed in Civ R. 56[C] when there is no objection, it need not do so.") 
124 Napier v. Brawn (Montgomery 1985), 24 Ohio App.3d 12, 492 N.E.2d 847. 
121 Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.2d 45, 517 N.E.2d 904; Harless v. Willis Day Warehousing 

(1978), 54 Ohio St.2d 64,375 N.E.2d 46. 

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Answers to the Nine Certified Questions 
[¦250] The parties have agreed that the following nine certified questions of law must be ruled 
upon by this court, and the court hereby renders the following answers to these certified 

questions: 

1. What constitutes the farthest landward boundary of the "territory" as that term 
appears in R.C. 1506.10 and 1506.11? 
Answer: 
The farthest landward boundary of the "territory" as that term appears in R.C. 1506.10 
and 1506.11 is a moveable boundary consisting of the water's edge, which means the 
most landward place where the lake water actually touches the land at any given time. 
The location of this moveable boundary on any particular parcel of littoral property is a 
question that should be determined on a case-by-case basis. 


2. What is the proper interpretation of the term, "southerly shore" as used in R.C. 
1506.10? 

Answer: 
The proper interpretation of the term, "southerly shore" in R.C. 1506.10 is the moving 
boundary of the water's edge, which means the most landward place where the lake water 
actually touches the land at any given time. The location of this moveable boundary on 
any particular parcel of littoral property is a question that should be determined on a case-
by-case basis. 

3. What is the proper interpretation of the term, "waters of Lake Erie" in R. C. 
1506.10? 

Answer: 
The term "waters of Lake Erie" in R.C. 1506.10 is properly interpreted to mean the 
waters of Lake Erie up to the moveable boundary where the lake water actually touches 
the land at any given time. The location of this moveable boundary on any particular 
parcel of littoral property is a question that should be determined on a case-by-case basis. 

4. What is the proper interpretation of the term, "lands presently underlying the 
waters of Lake Erie " in R. C. 1506.11 ? 
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Answer: 
The proper interpretation of the term, "lands presently underlying the waters of Lake 
Erie" in R.C. 1506.11 is all lands currently beneath the lake up to the landward boundary 
where the lake water actually touches the land at any given time. The location of this 
moveable boundary on any particular parcel of littoral property is a question that should 
be determined on a case-by-case basis. 

5. What is the proper interpretation of the phrase, "lands formerly underlying the 
waters of Lake Erie and now artificially falled" in R. C. 1506.11 ? 
Answer: 
The proper interpretation of the phrase, "lands formerly underlying the waters of Lake 
Erie and now artificially filled" in R.C. 1506.11 is all lands formerly beneath the waters 
of Lake Erie, up to the landward boundary where the lake water actually touched the 
land, notwithstanding any subsequent artificial filling of those lands. 

6. What is the proper interpretation of the term, "natural shoreline" in R.C. 1506.10 
and 1506.11? 
Answer: 
The proper interpretation of the term, "natural shoreline" in R.C. 1506.10 and 1506.11 is 
the moveable boundary on the shore where the lake water touches the land at any given 
time. The location of this moveable boundary on any particular parcel of littoral property 
is a question that should be determined on a case-by-case basis. 

7. If the farthest landward boundary of the "territory" is declared to be the natural 
location of the ordinary high water mark as a matter of law, may that line be located at 
the present time using the elevation of 573.4 feet IGLD (1985)? 
Answer: 
No. First, the premise is invalid because the farthest landward boundary of the "territory" 
is not the location of the ordinary high water mark as a matter of law. Second, the use of 
the elevation of 573.4 feet IGLD (1985) is improper for establishing the farthest landward 
boundary of the territory because: (1) that elevation does not correspond uniformly to the 
moveable boundary of the place where the lake water actually touches the land at any 
given time; (2) the current selection of that elevation as the landward boundary has not 
been determined by legislative enactment; and (3) if such a uniform elevation were 

72 

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declared by the legislature as the farthest landward boundary of the "territory," it would, 
in many cases, constitute a "taking" for which reasonable compensation would be due. 

8. If the line may be located at the present time using the elevation of 573.4 feet 
IGLD (1985), does the State of Ohio hold title to all such "territory" as proprietor in 
trust for the people of the State? 

Answer: 
No. Again, the premise is false because the boundary line may not be located at the 
present time using the elevation of 573.4 feet IGLD (1985). However, the State of Ohio 
does hold title in trust for the people of the state to all submerged lands located lakeward 
from the place where the water actually touches the land at any given time. The location 
of this moveable boundary on any particular parcel of littoral property is a question that 
should be determined on a case-by-case basis. 

What are the respective rights and responsibilities of the class members, the State

[¦251] 9. 

of Ohio, and the people of the State in the "territory? " 
Answer: 


(A) The rights of the class members 
Class members have the right to exercise their title rights to the water's edge and to 
exercise their littoral rights 126 as long as they do not interfere substantially with rights of the 
public to use the waters of Lake Erie and the lands submerged thereunder, or the servitudes of 
the federal govemment for navigation, commerce, international relations, and national defense. 
Class members also possess littoral rights that extend lakeward beyond the water's edge. 
However, the court declines to use this decision to define categorically what those littoral rights 
are in all cases. Similarly, the court declines to establish categorically whether all littoral rights 
are in the nature of a titled property interest, a franchise, a license, or a license coupled with an 
interest in land. And finally, the court declines to use this opinion to define categorically the 
rights of all class members when it comes to cases involving accretion, reliction, avulsion, 

erosion, etc. 

"' As noted above, this court has not been asked specifically to define all of the littoral rights that are recognized 
under Ohio law. Accordingly, notwithstanding the argumentation of the parties, the court declines to make a 
comprehensive, categorical declaration of what those littoral rights are with respect to all members of the class. 
Such questions are probably best left to the resolution of specific disputes involving individual parties who are 
asserting such littoral rights with respect to a specific parcel of land, according to specific deed language, and 


pertaining to a specific adjoining body of water. 

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In light of this declaratory judgment, the court hereby reforms the legal descriptions in all 
deeds to littoral property along the southern shore of Lake Erie, located within the territorial 
boundaries of the State of Ohio, and limits the lakeward boundary of title in those legal 
descriptions to the water's edge as it existed when the deed ,was filed. The location of this 
moveable boundary on any particular parcel of littoral property is a question that should be 

determined on a case-by-case basis. 

(B) The responsibilities of the class members 
Class members are prohibited from using their title rights (to the water's edge) or their 

littoral rights to interfere substantially with the rights of the people of the State of Ohio in the 
public trust in the waters of Lake Erie, and in the lands submerged beneath those waters, in the 
"Territory" as defined in R.C. ¤¤1506.10 and 1506.11. They are also prohibited from 
substantially interfering with the servitudes of the federal govetnment for navigation, commerce, 

international relations, and national defense. 

(C) The rights of the State of Ohio 
The State of Ohio has the limited authority to enact laws and regulations necessary and 

proper to preserve and protect the public trust ownership of the waters of Lake Erie, and of the 

lands submerged beneath those waters, landward up to the water's edge. The State of Ohio does 

not have the authority to require littoral owners to lease the portion of the shore that lies above 

the water's edge. 

(D) The responsibilities of the State of Ohio 
The State of Ohio is prohibited from using its public trust ownership of the waters of 
Lake Erie, and of the lands submerged beneath those waters, in the "Territory" as defined in R.C. 
¤¤1506.10 and 1506.11, to interfere substantially with the title rights (to the water's edge) or the 
littoral rights of class members, or to interfere substantially with the servitudes of the federal 
government for navigation, commerce, intemational relations, and national defense. The State of 
Ohio's public trust responsibilities include the custodia1127 responsibility of protecting the public 
uses to which the waters of Lake Erie and the soils beneath them have been adapted. R.C. 

1506.10. 

12' State of Ohio v. C&P R. Co. (1916), 94 Ohio St. 61, 113 N.E. 677, 1916 Ohio LEXIS 164 ([T]he state is merely 

the custodian of the legal title, charged with the specific duty of protecting the trust estate and regulating its use ... 

.,,) 

74 

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(E) The rights of the people of the State of Ohio 
The people of the State of Ohio128 have the right to exercise their individual rights as 

members of the public in the waters of Lake Erie, and in the lands submerged beneath those 
waters, up to the water's edge, for traditional purposes such as fishing, navigation, and 
recreation. The location of this moveable boundary on any particular parcel of littoral property is 

a question that should be determined on a case-by-case basis. 

(F) The responsibilities of the people of the State of Ohio 
The people of the State of Ohio, and other members of the public who make use of Lake 
Erie, are prohibited from interfering substantially with the title rights (to the water's edge) or the 
littoral rights of class members, or from interfering substantially with the servitudes of the 
federal government for navigation, commerce, international relations, and national defense. 

Similarly, the people of the State of Ohio, and other members of the public who make use of 
Lake Erie, are prohibited from substantially interfering with the State of Ohio's exercise of its 

responsibilities under the public trust. 
SUMMARY JUDGMENT RULINGS 
[¦2521 In accordance with the foregoing declarations, the court grants the motion for summary 

judgment of the plaintiffs-relators, in part; the court grants the motion for summary judgment of 

the intervening Taft plaintiffs, in part; the court denies the motion for sunnnary judgment of the 

Defendants-Respondents State of Ohio and ODNR; and the court denies the motion for summary 

judgment of Intervening Defendants NWF and OEC. 

11[2531 The court finds there is no just reason for delay. In addition to the class action issues 
resolved by this decision, there remain several important issues to be resolved by this court. 
Among those issues are questions regarding whether any of the named plaintiffs-relators has 
been unconstitutionally deprived of property without due process of law and without reasonable 
compensation therefor. If any of the plaintiffs have been unlawfully deprived of their property, 
then the court must decide what the reasonable value of that property deprivation was. In the 

128 For purposes of these summary judgment rulings, the court limits its class action holding to the rights and 
responsibilities of the people of the State of Ohio, and makes no class action ruling on the rights and responsibilities 
of individuals who are not citizens of the State of Ohio. The reason for limiting the court's holding in this way is 
that the class was not defined in such a way that the rights and responsibilities of visitors to Ohio canbe disposed of 
here. Reasonable notice to members of the class was published only within the eight counties along the southem 
shore of Lake Erie, and notwithstanding the able participation of Intervening Defendants NWF and OEC, it cannot 
be said that reasonable notice was given to out-of-state individuals who may seek to use the waters and submerged 

lands of Lake Erie. 

75 

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process of making those findings, the court may also be called upon to make specific findings 

with regard to the nature and extent of the littoral rights of the named plaintiffs-relators. All of 

these issues will depend upon the validity of the court's rulings in the class action portion of this 

case. 

[¦254] Accordingly, by finding that there is no just reason for delay, the court allows the parties 

to test this court's ruling on appeal before proceeding with the individual claims of the named 

plaintiffs. 

[¦255] IT IS SO ORDERED. 

NDGE EUGENE A. LUCCI 

Copies: 

James F. Lang, Esq., Fritz E. Berckmueller, Esq., and K. James Sullivan, Esq. 
Calfee, Halter & Griswold, LLP 


Class counsel and attorneys for Plaint^s-Relators 

1400 McDonald Investment Center 
800 Superior Avenue 
Cleveland, Ohio 44114-2688 


Homer S. Taft, Esq. 

Intervening Plaintiff-Relator, pro se 

20220 Center Ridge Road, Suite 300 

P.O. Box 16216 
Rocky River, Ohio 44116 
L. Scot Duncan, Esq. 
Intervening Plaintiff-Relator, pro se 

1530 Willow Drive 

Sandusky, Ohio 44870 


Thomas J. Kaiser, Esq. 
Chief Assistant Director of law 


Attorney for Movant City of Cleveland 

City of Cleveland, Department of Law 
601 Lakeside Avenue, Suite 106 
Cleveland, Ohio 44114 


76 

A-115 


Cynthia K. Frazzini, Esq. and John P. Bartley, Esq. 

Assistant Attomeys General 

Ohio Attorney General's Office 
Environmental Enforcement Section 

2045 Morse Road, Building D-2 
Columbus, Ohio 43229-6693 

Kathleen M. Trafford, Esq. 

Outside counsel to Defendants-Respondents 

Porter, Wright, Morris & Arthur, LLP 
41 S. High Street 
Columbus, Ohio 43215 

Julie A. Blair, Esq. 

Assistant General Counsel 
Northeast Ohio Regional Sewer District 

3900 Euclid Avenue 

Cleveland, Ohio 44115 

Neil S. Kagan, Esq. 

Attorney for intervening defendants 

National Wildlife Federation and 

Ohio Environmental Council 

Great Lakes Natural Resource Center 

213 West Liberty Street, Suite 200 

Ann Arbor, Michigan 48104 

Peter A. Precario, Esq. 

Attorney for intervening defendants 

National Wildlife Federation and 

Ohio Environmental Council 

326 South High Street Annex, Suite 100 

Columbus, Ohio 43215 

F1 AL APPEALABLE ORDER 
Cler'k to serve pursuant 

To Civ¨Rn 58(B) 

77 

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IN THE COURT OF COMMON PLEAS 
LAKE COUNTY, OI-I}O 

STATE OF OHIO EX REL. ) CASE NO. 04CV001080 
ROBERT MERRILL, TRUSTEE, et al., 

) JUDGE EUGENE A. LUCCI

Plaintiffs-Relators, 

vs. 

STATE OF OHIO, DEPARTMENT OF 
NATURAL RESOURCES, et al., 

Defendants-Respondents. 

STATE OF OHIO EX REL. ) CASE NO. 04CV001081 
HOMER S. TAFT, et al., 
) JUDGE EUGENE A. LUCCI

Plaintiffs-Relators, 

vs. 

STATE OF OHIO, DEPARTMENT OF 

NATURAL RESOURCES, et al., 

Defendants-Respondents. 

ORDER CERTIFYING CLASS ACTION ON COUNT ONE OF THE FIRST AMENDED 
COMPLAINT IN CASE NO. 04-CV-001080 


{¦1} The court has reviewed and considered the Notice of Joint Stipulation to Class 
Certification on Count One of the First Amended Complaint filed by the parties in State ex rel. 
Nlerrill et al. v. State of Ohio Department of Natural Resources, et al., Case No. 04-CV-001080 
(hereina8er "Merrill") on June 8, 2006. The Stipulation seeks on Order certifying a class in this 
lawsuitlimited to Coant I of ilie First Amended Complaint, which seeks a declaratory judgment 
from this court. For good cause shown, the Stipulation is well-taken and is granted under the 


terms set forth herein. 

1 

EXHIBIT 5 
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Class Acdon Definition 

{12} As stipulated by the parties, the class shall consist 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 
estuaries

owners of littoral property' bordering Lake Erie (including Sandusky Bay and other 
previously determined to be a part of Lake Erie under Ohio law) within the territorial boundaries 
of the State of Ohio" (hereinafter "the Class"). To the extent that governmental entities are 
included in the class, they are included solely in their proprietary capacity as property pwners 
and not for any purpose or capacity implicating their governmental authority or jurisdiction. 

1. Civ.R.23(A)(1) 
{13} The court fmds that the class is so numerous that joinder of all members is impracticable. 
As stipulated by the parties, the shore of Lake Erie in the State of Ohio extends approximataly 
312 miles, eight counties in the State of Ohio abut the shore of Lake Erie (Ashtabula, Lake, 
Cuyahoga, Lorain, Erie, Sandusky, Ottawa, and Lucas), and approximately 14,000 parcels of 
littoral property abut Ohio's Lake Erie shore. Owners of littoral parcels of land may be 
ascertained from available property records. 

2. Civ.R.23(A)(2) 
{14} Pursuant to the stipulation of the parties, the court hereby finds that the following 
questions of law are common to the class: 
(1) What constitutes the furthest landward boundary of the "territory" as that term 
appears in R.C. 1506.10 and 1506.11, including, but not limited to, interpretation 
of the terms "southerly shore" in R.C. 1506.10, "waters of Lake Erie" in R.C. 
1506.10, "lands presently underlying the waters of Lake Erie" in R.C. 1506.11, 
"lands formerly underlying the waters of Lake Erie and now artificially filled" in 

R.C. 1506.11, and "natural shoreline" in RC. 1506.10 and 1506.11. 
(2) If the furthest landward boundary of the "territory" is declared to be the natural 
location of the ordinary high water mark as a matter of law, may that line be 
located at the present time using the elevation of 573.4 feet 1GLD ( 1985), and 
' The parties have stipulated that "upland property" is defined as real property bordering a body of water and that, in 
Ohio, "littoral property" is defined as iipland property that borders an ocean, sea, lake, or a bay of any of these water 
bodies, as opposed to "riparian property" which is defined as upland property that borders a river, stream, or other 

such watercourse. 

2 

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does the State of Ohio hold title to all such "territory" as proprietor in trust for the 
people of the State. 

(3) What are the respective rights and responsibilities of the class members, the State 
of Ohio, and the people of the State in the "territory." 
3. Civ.R.23(A)(3) 
{¦5} Pursuant to the stipulation of the parties, the court hereby finds that the claims or 
defenses of the named Plaintiffs in Merrill are typical of the claims or defenses of thq class. 
_amed Plaintiffs in Merrill is eitber a member of the class or, with respect to Named

Each of the.nPlaintiff Ohio Lakefront Group, Inc:, a non-profit corporation representing its members who are 
members of the class. All of the named Plaintiffs in Merrill seek a declaratory judgment that 
resolves the questions of law common to the class. All members of the class have the same 
interests in a declaratory judgment that resolves the questions of law common to the class. 

4. Civ.R.23(A)(4) 
{16} Pursuant to the stipulation of the parties, the court hereby finds that the named Plaintiffs 
in 1Vlerrill will fairly and adequately protect the interests of the proposed class. No named 
Plaintiff in Merrill seeks rights that will prejudice any other member of the class. The named 
Plaintiffs in Merrill collectively are comnvtted to the vigorous prosecution of this class action 
litigation. The court fiu-ther finds that class counsel - Calfee, Halter & Griswold LLP - consists 
of over 170 lawyers who are members in good standing of the bar of the State of Ohio and have 
the experience and fmancial ability to protect the interests of the class. 
5. Civ.R.23(B)(2) 
{17} Pursuant to the stipulation of the parties, the court fmds that the allegations contained 
within the First Amended Complaint and Counterclaim in Merrill have demonstrated that actual 
and justiciable controversies exist, thereby making appropriate declaratory relief with respect to 
botli the State and to the proposed class as a whole. 
Class Action Certification 

{18} As authorized by Civ.R. 23(C)(1) and 23(C)(4), the cotut detennines that a class acflon 
shall be maintained on Count I of Plaintiffs-Relators' First Amended Complaint upon the 
common questions of law found herein, and hereby certifies that class action under the 
provisions of Civ.R. 23(B)(2). The two remaining counts of Plaintiffs-Relators' First funended 
Complaint - "Count lI - Mandamus/Inverse Takings Compensation" and "Count III - (In the 
3 

A-119 


Alternative) Mandamustinverse Takings Compensation" - are hereby bifurcated pending fmal 
resolution of Count I. 

{19} The class certification hearing in Merrill, scheduled for June 9, 2006 at 9:00 a.m., is no 
longer necessary and is cancelled. 
{110} The parties in Merrill have requested that the consolidated case of State ex rel. Taft et al. 
v State of Ohio, Department of Natural Resources, et al., Case No. 04-CV-001081 (hereinafter 
"Taft"), be stayed pending final resolution of the class action in Merrill, with the conpent of 
counsel in Taft. The court krill consult with all counsel in Taft before rendering a decision on 
this issue. 

{ll1} ITISSOORDERED. 

cc: James F. Lang, Esq., Michael T. Mulcahy, Esq., K. James Sullivan, Esq., Attorneys for 
Plaintiffs/Relators in Case No. 04CV001080 
Cynthia K. Frazzini, Esq. and John P. Bartley, Esq., Assistant Attorneys General for 
Defendants/Respondents in Case No. 04CV001080 and Case No. 04CV001081 

Homer S. Taft, Esq. Plaintiff/Relator Pro Se in Case No. 04CV001081 

L. Scot Duncan, Esq., Plaintiff/Relator Pro Se and Attomey for Plaintiff-Relator Darla J. 
Duncan in Case No. 04CV001081 
A-120 



Page 1 of 1

Lawriter - ORC - 1506.10 Lake Erie boundary lines. 

1506.10 Lake Erie boundary lines. 

It is hereby declared that the waters of Lake Erie consisting of the territory within the boundaries of 
the state, extending from the southerly shore of Lake Erie to the international boundary line between 
the United States and Canada, together with the soil beneath and their contents, do now belong and 
have always, since the organization of the state of Ohio, belonged to the state as proprietor in trust for 
the people of the state, for the public uses to which they may be adapted, subject to the powers of the 
United States government, to the public rights of navigation, water commerce, and flshery, and to the 
property rights of littoral owners, including the right to make reasonable use of the waters in front of 
or flowing past their lands. Any artificial encroachments by public or private littoral owners, which 
interfere with the free flow of commerce In navigable channels, whether in the form of wharves, piers, 
fills, or otherwise, beyond the natural shoreline of those waters, not expressly authorized by the 
general assembly, acting within its powers, or pursuant to section 1506.11 of the Revised Code, shall 
not be considered as having prejudiced the rights of the public in such domain. This section does not 
limit the right of the state to control, improve, or place aids to navigation in the other navigable waters 

of the state or the territory formerly covered thereby. 

The department of natural resources is hereby designated as the state agency in all matters pertaining 

to the care, protection, and enforcement of the state's rights designated in this section. 

Any order of the director of Natural Resources in any matter pertaining to the care, protection, and 
enforcement of the state's rights in that territory is a rule or adjudication within the meaning of 
sections 119.01 to 11 9 .13 of the Revised Code. 

Effective Date: 03-15-1989 

EXHIBIT 6 

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Lawriter - ORC - 1506.11 Development and improvement of lakefront land. Page 1 of 3 

1506.11 Development and improvement of lakefront 

land. 

(A) ˇTerritory," as used in this section, means 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 filled, 
between the natural shoreline and the International boundary line with Canada. 
(B) Whenever the state, acting through the director of natural resources, upon application of any 
person who wants to develop or improve part of the territory, and after notice that the director, at the 
director's discretion, may glve as provided in this section, determines that any part of the territory can 
be developed and improved or the waters thereof used as specified in the application without 
impairment of the public right of navigation, water commerce, and fishery, a lease of all or any part of 
the state's interest therein may be entered into with the applicant, or a permit may be issued for that 
purpose, subject to the powers of the United States government and in accordance with rules adopted 
by the director In accordance with Chapter 119. of the Revised Code, and without prejudice to the 
littoral rights of any owner of land fronting on Lake Erie, provided that the legisiative authority of the 
municipal corporation within whlch any such part of the territory is located, if the municipal corporation 
is not within the jurisdiction of a port authority, or the county commissioners of the county within 
which such part of the territory Is located, excluding any territory within a municipal corporation or 
under the jurisdiction of a port authority, or the board of directors of a port authority with respect to 
such part of the territory Included in the jurisdiction of the port authority, has enacted an ordinance or 
resolution finding and determining that such part of the territory, described by metes and bounds or by 
an alternate description referenced to the applicant's upland property description that is considered 
adequate by the director, is not necessary or requlred for the construction, maintenance, or operatlon 
by the municipal corporation, county, or port authority of breakwaters, piers, docks, wharves, 
bulkheads, connecting ways, water terminal facilities, and improvements and marginal highways in aid 
of navigation and water commerce and that the land uses specified in the application comply with 
regulation of permissible land use under a waterfront plan of the local authority. 
(C) Upon the filing of the application with the director, the director may hold a public hearing thereon 
and may cause written notice of the filing to be given to any municipal corporation, county, or port 
authority, as the case may be, in which such part of the territory is located and also shall cause public 
notice of the filing to be given by advertisement in a newspaper of general circulation within the 
locality where such part of the territory is located. If a hearing is to be held, public notice of the filing 
may be combined with public notice of the hearing and shall be given once a week for four consecutive 
weeks prior to the date of the initial hearing. All hearings shall be before the director and shall be open 
to the public, and a record shall be made of#he proceeding. Parties thereto are entitled to be heard 
and to be represented by counsel. The findings and order of the director shall be In writing. All costs of 
the hearings, including publication costs, shall be paid by the applicant. The director also may hold 
public meetings on the filing of an application. 

If the director finds that a lease may properly be entered into with the applicant or a permit may 
properly be issued to the applicant, the director shall determine the consideration to be paid by the 
applicant, which consideration shall exclude the value of the littoral rights of the owner of land fronting 
on Lake Erie and improvements made or paid for by the owner of land fronting on Lake Erie or that 
owner's predecessors in title. The lease or permit may be for such periods of time 

A-122 EXHIBIT 7 

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Lawriter - ORC - 1506.11 Development and improvement of lakefront land. Page 2 of 3 

determines. The rentals received under the terms of such a lease or permit shall be paid into the state 
treasury to the credit of the Lake Erie submerged lands fund, which is hereby created, and shall be 
distributed from that fund as follows: 

(1) Fifty per cent of each rental shall be paid to the department of natural resources for the 
1506.10 of the Revised Code and for the coastal
administration of this section and section 
management assistance grant program required to be established under division (C) of section 
1506.02 of the Revised Code; 

(2) Fifty per cent of each rental shall be paid to the municipal corporation, county, or port authority 
making the finding provided for in this section. 
All leases and permits shall be executed in the manner provided by section 5501.01 of the Revised 
Code and shall contain, in addition to the provisions required in this section, a reservation to the state 
of all mineral rights and a provision that the removal of any minerals shall be conducted in such 
manner as not to damage any Improvements placed by the littoral owner, lessee, or permit holder on 
the lands. No lease or permit of the lands defined in this section shall express or imply any control of 
fisheries or aquatic wildlife now vested in the division of wildlife of the department. 

(0) Upland owners who, prior to October 13, 1955, have erected, developed, or maintained structures, 
facilities, buildings, or Improvements or made use of waters in the part of the territory in front of those 
uplands shall be granted a lease or permit by the state upon the presentation of a certiflcation by the 
chief executive of a municipal corporation, resolution of the board of county commissioners, or 
resolution of the board of directors of the port authority establishing that the structures, facilities, 
buildings, improvements, or uses do not constitute an unlawful encroachment on navigation and water 
commerce. The lease or permit shall specifically enumerate the structures, facilities, buildings, 
improvements, or uses so included. 

(E) Persons having secured a lease or permit under this section are entitled to just compensation for 
the taking, whether for navigation, water commerce, or otherwise, by any governmental authorlty 
having the power of eminent domain, of structures, facilities, buildings, improvements, or uses erected 
or placed upon the territory pursuant to the lease or permit or the littoral rights of the person and for 
the taking of the leasehold and the littoral rights of the person pursuant to the procedure provided in 
Chapter 163. of the Revised Code. The compensation shall not include any compensation for the site in 
the territory except to the extent of any interest In the site theretofore acquired by the person under 
this section or by prior acts of the general assembly or grants from the United States government. The 
failure of any person to apply for or obtain a lease or permit under this section does not prejudice any 
right the person may have to compensation for a taking of littoral rights or of improvements made In 
accordance with a lease, a permit, or littoral rights, 

(F) If any taxes or assessments are levied or assessed upon property that is the subject of a lease or 
permit under this section, the taxes or assessments are the obligation of the lessee or permit holder. 
(G) Ifalease or permit secured under this section requires the lessee or permit holder to obtain the 
approval of the department or any of Its divisions for any changes in structures, facilities, or buildings, 
for any improvements, or for any changes or expansion In uses, no lessee or permit holder shall 
changeany structures, facilities, or buildings, make any improvements, or expand or change any uses 
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unless the director first determines that the proposed action will not adversely affect any current or 
prospective exercise of the public right of recreation in the territory and in the state's reversionary 
interest in any territory leased or permitted under this section. 

Proposed changes or improvements shail be deemed to "adversely affect" the public right of recreation 
if the changes or improvements cause or will cause any significant demonstrable negative impact upon 
any present or prospective recreational use of the territory by the public during the term of the lease 
or permit or any renewals and of any public recreational use of the leased or permitted premises in 

which the state has a reversionary interest. 

Effective Date: 03-18-1999 


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