Consistent with Ohio’s Constitution and its historical case law, the Ohio Supreme Court once again strongly protected property rights in the September 14 case of State ex rel. Merrill v. Ohio Dept. of Natural Resources, Slip Opinion No. 2011-Ohio-4612. The impetus for the litigation was the Ohio Department of Natural Resources’ (ODNR) policy prohibiting property owners abutting Lake Erie from exercising property rights over all land lakeward of the ordinary high-water mark, despite the inclusion of that area in the plaintiffs’ deeds, unless the owner entered into a lease with, and paid a fee to, ODNR. The plaintiff littoral-property owners sued ODNR and the State of Ohio to obtain declaratory relief narrowing the Lake Erie public trust boundary or, in the alternative, compensation for the alleged taking of their property.
An unexpected twist in the case occurred in the trial court when ODNR represented to the court that the Governor had directed ODNR to honor the deeds of the plaintiff littoral-property owners. ODNR further represented that it would no longer enforce its current policy requiring the owners to lease their land to the agency.
The substantive issue in this case was the delineation of the proper boundary between the property abutting Lake Erie, owned by private individuals, and the territory of Lake Erie, held in trust by the State for all Ohioans.
Interestingly, the parties and the lower courts all took different views of what the boundary should be. The state argued for the ordinary high water mark. Some plaintiffs posited the low water mark; other plaintiffs, the natural shoreline at any given moment. The trial court declared that the proper definition of the boundary line for the public trust is the Lake’s edge, a moveable boundary determined on a case-by-case basis; the Court of Appeals agreed.
The Court of Appeal’s concurrence with the trial court’s view of the boundary was flatly rejected by the Supreme Court. The Supreme Court, in meticulous language, explained that the law on the boundary of the public trust in Lake Erie had been settled for more than 130 years, and there is no reason to change it. ODNR’s mandatory lease/fee policy was unlawful in view of the well settled law. The Supreme Court held unequivocally that “the territory of Lake Erie held in trust by the State of Ohio for the people of the state extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes [i.e., storm, drought].” Likewise, the littoral owners have no title beyond the natural shoreline – only the right of access and of wharfing out to navigable waters. On a final note, the Ohio Supreme Court also reversed the appellate court’s implication that an owner’s artificial fill could alter the boundary of the public trust.