Beach in Ohio facing Lake Erie. Image via Wikimedia Commons
Can you walk along the shore of Lake Erie in Ohio without owning a piece of it?
Not if the Ohio Supreme Court rules in favor of the property owners who sued the Ohio Department of Natural Resources in 2004.
A group of Lake Erie property owners called the Ohio Lakefront Group claims that their deeds give them ownership of the land right up to the water, said Tony Yankel, president of the organization.
Ohio has long claimed the public has access to land between the water and the ordinary high water mark, according to the lawsuit.
That’s the mark defined as the highest level reached by a water body and that’s been maintained for a period of time, so as to leave visible marks on land.
But Ohio nowhere mentions in its statutes or administrative code an ordinary high water mark, said Yankel.
The National Wildlife Federation and the Ohio Environmental Council has joined the state in the lawsuit to protect public rights, said Neil Kagan, senior counsel at the National Wildlife Federation.
The court case, known as Merrill vs. the state of Ohio, debates the ownership of the strip of land between the ordinary high water mark and low water mark.
The low water mark is the lowest point the water has reached on the shoreline.
The lawsuit filed in 2004, was put in a federal court a year later. The judge decided this was not a federal issue and sent the case back to the state, said Yankel.
The property owners have been successful so far. They won in the trial courts and in the court of appeals, which ruled the water’s edge at any given moment is the boundary line for property owners.
Now the case is before the Ohio Supreme Court and a ruling is expected soon.
It is the latest of several legal struggles to define public and private property along Great Lakes shores.
A bill has been proposed in Ontario, Canada, to let the public walk along the shoreline without being barred by shoreline property owners. And a 2005 state Supreme Court decision ruled that is the case in Michigan.
The difference between the Michigan and the Ohio cases is the size of the shoreline around the different lakes, Yankel said. The shoreline of Lake Erie is very small.
“There is very little beach area,” he said, “We feel that our deeds are valid into the water. We are not fighting the deeds, we’re fighting public trust.”
The public trust doctrine gives the government the authority to maintain for the public certain resources.
Yankel believes the shoreline area of Lake Erie belongs to deed holders and not to the public.
The need to win this case is to maintain public access to the shore of Lake Erie, said Kagan. The public walks along the shoreline, they collect shells and plants, boat in the water and fish in the lake, he said.
“Some areas on the shoreline may be temporarily dry and could be habitat for fish or animals who prey on them,” said Kagan.
These areas should not be claimed by private property owners, he said. The position taken by the state and the National Wildlife Federation argues that the public ownership is below the ordinary high water mark, as defined by the U.S. Army Corps of Engineers.
Will the Michigan ruling affect the case?
Kagan hopes so.
“We brought the (Michigan) case to their attention,” said Kagan, “Those other courts were wrong. The shoreline access extends to the public.”
If the court rules against the shoreline property owners, Yankel would prefer if the legislature would change the current law to make it clear that the shoreline is not owned by property owners.
“The problems I see with opening access to the public is that state park beaches are in a mess,” he said, “The public sounds good, but isn’t always nice.”