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Published: Saturday, 7/14/2007

Governor says shoreline property rights need to be honored

BLADE STAFF
Strickland Strickland
KIICHIRO SATO / AP Enlarge

COLUMBUS - Gov. Ted Strickland clarified his position toward Lake Erie shoreline property rights yesterday by agreeing that valid deeds need to be honored.

Mr. Strickland said his administration will not follow the policy of former Gov. Bob Taft's administration, which had argued that the dividing line between public and private land was the shoreline's historic "ordinary high-water mark."

The Taft administration's stance, accentuated by the recent decline of Great Lakes water levels, was based on the U.S. Supreme Court's so-called public trust doctrine, which Ohio and Michigan adopted decades ago.

The former governor's interpretation of that statute resulted in a 2004 lawsuit in Lake County Common Pleas Court. It was filed by property owners who felt the state was attempting to illegally take their land under the guise of protecting the public's right to access Lake Erie.

A statement issued by Mr. Strickland's office said questions about property lines will be left up to what is covered under each deed.

Property owners no longer will be required to obtain leases from the Ohio Department of Natural Resources to build new structures. But much like local zoning laws that require homeowners to obtain permits before building fences or garages on their own property, shoreline property owners will have to obtain permits from the Ohio DNR before building along the shoreline.

The distinction may not seem that large, but the Strickland administration said it believes its approach "will assure that coastal land management interests are not compromised by construction of unauthorized break walls, docks, or other structures." The lease program had generated about $100,000 a year for the state.

Jack Shaner, Ohio Environmental Council spokesman, said the policy shift leaves open questions about the public's right to access Lake Erie. He said it's unclear if it will be easier or harder to traverse from one shoreline site to another without being accused of trespassing.

The governor's spokesman, Keith Dailey, said that is one of the "core issues before the court now." He said the governor's announcement was intended to be a "common-sense solution" to the issue of whether the past administration's interpretation of the law superseded deeds.

"The ultimate resolution [about public access] is to be determined by the courts," he said.

Tony Yankel, president of the Ohio Lakefront Group, the organization that brought suit against the state, said he was pleased by Mr. Strickland's announcement.

"We really don't have a problem with the permitting system," he said. He said the group might have more to say after the state files a legal brief outlining Mr. Strickland's position. That is expected to be done Monday in conjunction with a filing deadline for the Lake County case.

The administration is not united on Mr. Strickland's position. The governor's office noted that Attorney General Marc Dann "has informed the governor that his office will continue to pursue its current position in support of the public trust doctrine."

Mr. Dann also has appointed outside counsel to represent the Ohio DNR and its director, Sean Logan, in the Lake County case. Those attorneys are to be the ones filing information about the governor's position.

"We think the attorney general made the right call," Mr. Shaner said, claiming the public trust doctrine protects a 200-year-old right people have had to walk along and fish from the shoreline.

The property owners' group claims Ohio's public trust ends at the water's edge - not at an artificial line based on historic high-water marks, a surveying point set by the U.S. Army Corps of Engineers every 15 years as a property line.

A trial date has not been set.

Ohio has 262 miles of Lake Erie shoreline, including Sandusky Bay and other estuaries determined to be a part of the lake.

In 2005, the Michigan Supreme Court ruled 7-0 that the public generally has a right to walk along Michigan's 3,288 miles of Great Lakes shoreline, so long as people don't trespass on private property.

And, in a 5-2 vote, judges said the public is allowed to stroll from the water's edge to the ordinary high-water mark.

In that case, Pam Burt, a lawyer from Harrisville, Mich., succeeded in getting the Michigan Supreme Court to throw out an appellate court's decision that had equated wayward beach walking to trespassing.

Ms. Burt argued that such strolls are protected under the U.S. Supreme Court's public trust doctrine, provided they are on public sand. The doctrine declares certain natural resources, such as lake water, in the public trust because they're too valuable to be privately owned. In that case, she argued that deeds take a back seat to that doctrine.

- Tom Henry



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