Lake Erie boundary decision appealed

1/9/2008

Ohio Attorney General Marc Dann and three nonprofit groups yesterday appealed a potential landmark ruling that could force people to keep their feet in water in order to stroll along portions of the state's Lake Erie shoreline that aren't directly connected to public beaches or other government-owned land.

The Dec. 11 decision by Judge Eugene Lucci of Lake County Common Pleas Court established the ever-shifting water's edge as the boundary line separating public and private land in Ohio.

In theory, that boundary would shift as the winds blow.

Judge Lucci's ruling differs from a case in which the Michigan Supreme Court ruled in 2005 that the public's right to walk along the Great Lakes shore is protected by the public trust doctrine. That dates back nearly 15 centuries to the Roman Code of Justinian and is preserved in English common law that Americans follow.

Ohio shoreline property owners hailed Judge Lucci's ruling as a victory in their quest to establish boundaries, an issue that has become intensified by the rising value of private land.

Critics called it a decision that reverses decades, if not hundreds of years, of common law precedent.

Mr. Dann's documents question the process the judge used to arrive at the ruling.

The National Wildlife Federation and the Ohio Environmental Council filed a separate appeal with the League of Ohio Sportsmen.

Neil Kagan, senior attorney for the wildlife federation, said his group hopes "to protect the historic right of all citizens to stroll, fish, and recreate along the shores of Lake Erie."

Said Keith Dimoff, Ohio Environmental Council executive director: "Our appeal comes down to one thing - beating back an attempt to strip Ohio citizens of their centuries-old right to access the shores of Lake Erie."

Larry Mitchell, the sportsmen's president, said his group "will vigorously defend the public trust doctrine."

Tony Yankel, president of the Ohio Lakefront Group, which claims to represent Lake Erie's 15,500 shoreline property owners in Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula counties, could not be reached for comment.

The decision stems from a 2004 class action lawsuit the property owners' group filed, accusing state officials of illegally grabbing private land under the guise of protecting the public's right to access Lake Erie.

Former Gov. Bob Taft's administration argued that the dividing line was the shoreline's historic "ordinary high watermark."

The Taft administration's policy was based on the Supreme Court's public trust doctrine, which Ohio and Michigan adopted decades ago.

That position was softened July 13 by Gov. Ted Strickland, who said he would yield to whatever is outlined in property deeds while waiting for courts to sort out the dispute.

State Sen. Tim Grendell (R., Chesterland), a lawyer who specializes in property rights, said in December the ruling was "well-reasoned and fully developed."

Contact Tom Henry at: thenry@theblade.com or 419-724-6079.