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Supreme Court Reaffirms 1878 Decision Holding That State's Trust Over Lake Erie Extends to the 'Natural Shoreline'

Rejects Opposing Claims Based on High Water, Low Water Marks

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2009-1806.  State ex rel. Merrill v. Ohio Dept. of Natural Resources, Slip Opinion No. 2011-Ohio-4612.
Lake App. Nos. 2008-L-007 and 2008-L-008, 2009-Ohio-4256.  Judgment affirmed in part and reversed in part, and cause remanded.
Pfeifer, Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
O'Connor, C.J., and Lanzinger, J., concur in syllabus and judgment only.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-4612.pdf

Video clip View oral argument video of this case.

(Sept. 14, 2011) In a legal dispute between the state and owners of private property bordering Lake Erie, the Supreme Court of Ohio today reaffirmed court decisions dating back to 1878 and legislation enacted in 1917 by holding that the territory of the lake over which the state holds a public trust “extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes.”

In a 7-0 decision authored by Justice Terrence O’Donnell, the Court reversed a ruling by the 11th District Court of Appeals that lakeside owners’ property rights extend to whatever point on shore is in contact with the waters of the lake on any given day, but also rejected arguments by the state that its public trust over the lake extends to the “ordinary high water mark” on shore as established by a U.S. Army Corps of Engineers survey in 1985.

In resolving two procedural issues that arose during litigation of the underlying dispute, the Court also 1) reversed the 11th District’s ruling that the state did not have independent standing to appeal the trial court’s decision in the case after the Department of Natural Resources chose not appeal that decision; and 2) affirmed the 11th District’s ruling that the trial court did not abuse its discretion by allowing two environmental groups to intervene in the case as interested parties.

The case involved lawsuits initiated by two groups of Lake County property owners whose properties immediately adjoin Lake Erie. In their complaint, the plaintiff landowners named three defendants: the Ohio Department of Natural Resources (ODNR), ODNR director Sean Logan, and the state of Ohio. The two groups’ complaints alleged that ODNR was unlawfully restricting the property owners’ use of their land by asserting that the portion of their lakefront properties located between the water line and the ordinary high water mark on shore was subject to the state’s “public trust” authority as custodian over the lake  for the public use and enjoyment of all Ohioans. The cases were later consolidated and subsequently certified as a class action on behalf of all owners of private property directly adjoining Lake Erie within the borders of Ohio.

The owners asked the Lake County Court of Common Pleas to issue a declaratory judgment declaring that their property rights extended to the geographic boundaries set forth in their deeds, and that the state’s public trust authority was limited to the lake itself and the land actually submerged by the lake. ODNR and the state counterclaimed, seeking a declaration that the state of Ohio holds public trust authority over the waters of Lake Erie and the shoreline up to the ordinary high-water mark established by the Corps of Engineers. Two nature conservation organizations, the National Wildlife Foundation (NWF) and Ohio Environmental Council (OEC), jointly sought and were granted permission by the trial court to intervene in the case as interested parties. They filed briefs supporting the state’s positions.

Both sides entered motions for summary judgment. While those motions were pending, ODNR advised the court that at the direction of the governor it was voluntarily changing its regulatory practice to recognize the presumptive deed rights of lakeside property owners to use their property below the ordinary high water point on shore without requiring them to enter into a lease agreement with the department for that portion of their property. ODNR did not participate in any subsequent stages of the litigation.

The trial court denied the state’s summary judgment motion and granted partial summary judgment in favor of the property owners. The court held that the territory over which the state exercises a public trust is limited to the waters of the lake and the land actually submerged by those waters. It also ruled, however, that the boundary line between the public trust and the plaintiffs’ properties was not the ordinary low-water mark as some of the plaintiffs had argued, but was rather “a moveable boundary consisting of the water’s edge ... wherever that moveable boundary may be at any given time.”  The trial court’s judgment also modified the legal descriptions in the plaintiff property owners’ deeds so that if an owner’s deed purported to extend his property into the lake bed, the judgment limited the owner’s title to that portion of the described property that was landward of the water’s edge. 

While ODNR did not appeal the trial court’s decision, the state, NWF and OEC appealed to the 11th District Court of Appeals seeking reversal of the ruling that the state’s public trust territory did not extend to the ordinary high water mark on shore. The plaintiffs cross-appealed the trial court’s holding that the boundary of their property was a moveable line represented by the changing water’s edge, and one plaintiff also challenged the trial court’s ruling allowing NWF and OEC to intervene in the case.  

On review, the 11th District refused to address the assignments of error or consider the appellate briefs filed by the Ohio Attorney General on behalf of the state, holding that the failure of ODNR to file its own appeal or join the state’s appeal of the trial court’s judgment deprived the state of standing to pursue its own independent appeal.  

After affirming the trial court’s ruling allowing NWF and OEC to intervene in the case, and addressing only the arguments advanced by NWF and OEC, the 11th District affirmed the trial court’s holding that the landward limit of the state’s public trust authority over Lake Erie was the water’s edge, wherever that edge happens to be at any given time. However the court of appeals vacated the portion of the lower court’s decision amending the property descriptions in the plaintiffs’ deeds.

The state sought and was granted Supreme Court review of the 11th District’s rulings with regard to 1) the  boundary of  its public trust authority over the lake shore, and 2) its standing as a separate defendant in the original complaint to appeal the trial court’s decision whether or not ODNR was also a party to that appeal. The property owners cross-appealed, seeking reversal of the 11th District’s holding that the trial court acted within its discretion in allowing NWF and OEC to intervene in the case.

With regard to the boundary issue, Justice O’Donnell wrote in today’s decision: “In its opinion, the court of appeals erroneously stated that the question regarding the boundary of the public trust is a matter of first impression in Ohio. ... It is not.  That question has been a matter of settled law in Ohio for more than a century − since 1878 − when this court first announced the law in a case that called for Lake Erie as the boundary in a deed of conveyance ...”

“More than 130 years ago, in Sloan v. Biemiller (1878) ... we determined that when a real estate conveyance calls for Lake Erie as the boundary, the littoral owner’s property interest ‘extends to the line at which the water usually stands when free from disturbing causes.’ ... Subsequent to our decision in Sloan, in State v. Cleveland & Pittsburgh RR. Co. (1916), ... we held that ‘the state holds the title to the subaqueous land [of Lake Erie within the boundaries of Ohio] as trustee for the protection of public rights.’  In so holding, we followed our decision in Sloan, among other cases, and concluded that ‘[t]he littoral owner is entitled to access to navigable water on the front of which his land lies, and, subject to regulation and control by the federal and state governments, has, for purposes of navigation, the right to wharf out to navigable water.’”

“In that case, we also urged the General Assembly to pass legislation that would ‘appropriately provide for the performance by the state of its duty as trustee for the purposes stated; that [would] determine and define what constitutes an interference with public rights and that [would] likewise, in a spirit of justice and equity, provide for the protection and exercise of the rights of the shore owners.’ ... The General Assembly did so the following year when it enacted the Fleming Act.  The Fleming Act clarified the public policy of the state of Ohio with respect to the waters of Lake Erie, and its pronouncement conformed to decisions of this court dating from 1878 (Sloan). ... The current version of the statute is substantially similar to the original statute and, notably, both reference the ‘natural shore line.’”

 “ ... Accordingly, we conclude that when the General Assembly defined the boundary of the ‘territory’ of the public trust as the ‘natural shoreline,’ it ascribed a meaning to that term consistent with the meaning set forth in this court’s decisions, including Sloan. The boundary of the public trust does not, however, as the court of appeals  concluded in affirming the trial court, change from moment to moment as the water rises and falls; rather, it is at the location where the water usually stands when free from disturbing causes. That is what we stated in Sloan, that is what has been understood for more than a century in Ohio, that is what the General Assembly meant by ‘natural shore line’ when it enacted G.C. 3699-a in 1917, and that is what the law was when ODNR began to enforce the leasing policy, which it has since abandoned and recognized the presumptive validity of the owners’ deeds. We see no reason to modify that law now.” 

“Our decision today reaffirms this court’s previous determination that the territory of the public trust in Lake Erie extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes ... Nothing contained in our opinion interferes with the presumptively valid deeds of the lakefront owners.  Similarly, we reaffirm our statement in [State ex rel. Squire v. Cleveland (1948)]  that ‘[t]he littoral owners of the upland have no title beyond the natural shoreline; they have only the right of access and wharfing out to navigable water.’ ... (W)e affirm the appellate court to the extent its judgment is consistent with this pronouncement, but we reverse its decision implying that ‘artificial fill can alter the boundary of the public trust’ and its decision to affirm the trial court that ‘the public trust boundary is a moveable line that changes from moment to moment.’  This matter is remanded to the trial court for further proceedings on pending claims consistent with this opinion.”

Justice O’Donnell’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton,  Robert R. Cupp and Yvette McGee Brown. Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger concurred in judgment and the syllabus holdings.

Alexandra T. Schimmer, 614.995.2273, for the State of Ohio.

James F. Lang, 216.622.8563, for Robert Merrill and Ohio Lakefront Group.

Intervening Co-Plaintiff Homer S. Taft, pro se, 440.333.1333.