Everybody's beach

10/4/2009

SINCE the ancient days of the Roman Empire, the right to walk unimpeded along the shore of a public body of water has been guaranteed to ordinary people.

Last month, however, Ohio's 11th District Court of Appeals in Warren swept aside nearly 15 centuries of rock-solid common law, upholding a lower court's delusion that the property rights of people living along Lake Erie extend to the water's edge - wherever it might be at the moment.

The principle has been long established - extending back through English common law to Rome in the time of the emperor Justinian - that the state holds natural resources such as oceans, lakes, and rivers in trust for the public, protecting the people's rights to those resources, including for recreation, and cannot take action that would diminish those rights.

That's why governments - federal as well as state - have long maintained that private property rights extend only to the ordinary high water mark. To rule otherwise would allow shoreside property owners to deny the public access to public resources.

Conservative property-rights zealots, aided by state Sen. Timothy Grendell (R., Chesterland), have been trying for years to claim that their Lake Erie properties extend to the water's edge, the low water mark, or in some cases the Canadian border. They claim they're just exercising their lawful rights, but their argument boils down to elitism: They want to keep the riff-raff off "their" beach.

Asserting ownership to the water's edge - a boundary that changes every time the wind shifts - would allow them to do so by erecting barriers on their properties that effectively block access by those who just want to walk along the beach.

Last month's appeals court decision was joined by Judge Diane Grendell, who, not coincidentally, is married to Senator Grendell and should have recused herself for conflict of interest. Moreover, the court jumped the legal tracks into the realm of activism by ruling that Attorney General Richard Cordray has no standing in the case because his office did not have the governor's permission to participate.

That is, to coin a legal term, nonsense, which we expect the Ohio Supreme Court to recognize when the case reaches its chambers.

To the contrary, we would argue that Gov. Ted Strickland acted improperly in deciding not to protect the public interest when he removed the Ohio Department of Natural Resources from the case. In pandering to lakeshore property owners to gain votes in the 2006 election, the governor abandoned sound legal precedent.

Setting that aside, however, the court's ruling in relation to the attorney general was both unprecedented and dangerous. The state of Ohio is a named defendant in this suit. Who else would defend its interests, as well as those of the people who make up the state?

The 262 miles of Lake Erie that touch Ohio belong equally to every resident of the state. No one, not even activist judges, should be allowed to prevent Ohioans from enjoying the lake - or the land along its edge.