Judge says lakefront rights extend to the 'water's edge'

12/12/2007

The boundary line that separates public and private land along Ohio's Lake Erie shoreline moves in accordance with the tides, a state judge ruled yesterday.

The 77-page decision by Lake County Common Pleas Court Judge Eugene Lucci has potentially sweeping implications for Lake Erie beach walkers as well as fishermen, waterfowl hunters, and birders who want to access the shoreline.

It defines the "water's edge" - not the historic high-watermark - as the boundary.

Such a distinction is crucial as Great Lakes water levels drop and the debate over property rights versus public access is played out.

Filed on behalf of Lake Erie's 15,500 shoreline property owners in Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula counties, the 2004 class action lawsuit accused 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." Its policy was based on the Supreme Court's public trust doctrine, which Ohio and Michigan adopted decades ago.

That position, supported by environmental groups and sportsmen, 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.

Judge Lucci's ruling states that Ohio "has ownership in trust of the waters of Lake Erie and the land beneath those waters landward as far as the water's edge, but no farther."

Larry Mitchell, president of the League of Ohio Sportsmen, said the decision is disappointing and confusing because it suggests the boundary changes with wave action.

"It says that the boundary for upland property adjoining the lake is neither the high watermark, the state's position [under Mr. Taft], nor the low watermark, the upland owners' position. Instead, according to the ruling, the boundary is wherever the water meets the land, changing day by day and minute by minute," he said.

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

"Judge Lucci rejected the efforts by some special interest groups to steal private property along Lake Erie's shore," he said.

"The decision affirms what we have said all along; there are no public trust beaches in Ohio. The public's rights start and end with the water," according to Mr. Grendell.

Tony Yankel, Ohio Lakefront Group president, said he hopes the ruling "puts an end to this ridiculous government taking of private property."

"It has been disturbing to actually witness the state of Ohio simply invalidating deeds because a few bureaucrats decided to ignore the law and rewrite history," Mr. Yankel said.

Andy Buchsbaum, executive director of the National Wildlife Federation's Great Lakes office in Ann Arbor, said the decision "privatizes the Lake Erie shoreline."

He cited a 2005 Michigan Supreme Court ruling which asserted the public trust went up to the high watermark.

"We are confident that the higher courts in Ohio will affirm the public's rights to Lake Erie and its shoreline up to the ordinary high watermark," Mr. Buchsbaum said.

Jack Shaner, Ohio Environmental Council spokesman, said the ruling will be used for "legislative mischief" that benefits a small group trying "to cast a wide net in hopes of snaring unabridged new development rights to fill and build structures and place more fences along the shore without state oversight."

Contact Tom Henry at:

thenry@theblade.com

or 419-724-6079.