COLUMBUS -- The Ohio Supreme Court Tuesday wrestled with where to literally draw the line on where private property ends at the edge of Lake Erie and where public access begins.
The case that began with two groups of Lake County property owners but was expanded to a class action affecting all property owners on the Ohio side of Lake Erie focuses on the strip that the state's attorney described as "sometimes wet and sometimes dry."
"The state of Ohio is not here to take away anybody's private property," said Deputy State Solicitor Stephen P. Carney. "Instead, we're here because some landowners sued us, seeking not only to resolve a boundary dispute along Lake Erie but demanding taxpayer money as compensation."
But Justice Evelyn Lundberg Stratton questioned him on the Department of Natural Resources triggering the controversy when it began to enforce a lease program requiring landowners to pay fees for improvements such as docks or break walls on the disputed stretch of property. The improvements would be submerged during high-water periods. "So when you say this all started because they sued you, there were actions that ODNR took that really led to all this," she said.
Under former Gov. Ted Strickland's instruction, the department stopped enforcing the leases, at least until a court resolves the issue. It also dropped its appeal of the land dispute case.
But three attorneys general, Democrats and Republicans, have pursued the appeal anyhow, leaving Justice Terrence O'Donnell to wonder aloud who current Attorney General Mike DeWine's client is.
The state contends that public access to the lake extends to the "ordinary high water point." The property owners contend that the line is the low-water mark or, in some owners' cases, the water's edge most of the time.
Similar language appears in many of their deeds, with the property owners contending they've paid taxes on land that the state says doesn't belong to them.
The state's position that the public trust extends to the high-water mark is supported by the National Wildlife Federation and the Ohio Environmental Council, who intervened in the case.
"The low-water mark does not involve whether the public has the right to use the water. The public has the right to use the waters," said attorney Homer S. Taft, who represents some of the private property owners.
"What is an issue is the right to the ownership and control of the soil," he said.
A Lake County court has sided with the property owners. On appeal, the Warren-based 11th District Court of Appeals held that the attorney general no longer had standing to appeal the lower ruling once its client, the department of natural resources, dropped out.
The justices seemed to struggle with how to draw the line because even the low-water mark can change. Justice Robert Cupp, of Lima, noted that Lake Erie water levels have been abnormally low for extended periods of time.
Justice Judith Lanzinger, of Toledo, asked, "Does that line have to be declared in this case, and are we the ones to do that?"
James F. Land, who represents some of the property owners, called for a "practical, common-sense boundary."
"The position is that a static water line is not the appropriate boundary," he said. "The appropriate boundary is the boundary reaffirmed by the court of appeals … which is essentially the water's edge where it normally appears undisturbed by short-term conditions. ...The long-term fluctuations are not predictable. They don't track from year to year."
Contact Jim Provance at: email@example.com, or 614-221-0496.