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Ohio court rules that the public cannot walk on Ohio’s Great Lakes beaches

Earlier this week, the Ohio Court of Appeals drastically limited the public’s right to use Ohio’s Great Lakes beaches.  In it decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the court held that public rights to Ohio’s portion of the Great Lakes extend only up to the water’s edge.  As a practical matter, this means you have to keep your feet in the water or you’ll be trespassing.  As a legal matter, this decision puts Ohio at odds with the vast majority of states (including Michigan) that recognize the public’s right to use shorelines up to the ordinary high water mark.  Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and is authoring a forthcoming law review article on the subject.  Ken is leading expert on this issue and provides the following analysis: 

An Ohio appeals court ruled this week that the public has no right to use the Ohio shores of the Great Lakes above the water’s edge.  According to the Ohio Court of Appeals decision in State ex rel. Merrill v. Ohio Department of Natural Resources, 2009-Ohio-4256, the water’s edge – which can change moment to moment – is the boundary between privately owned lakefront property and state-owned lakebed in Ohio.  While the state owns the lakebed in trust, the appeals court ruled that the public trust in Ohio does not extend beyond the water’s edge, and lakefront owners have the right to exclude the public from walking on or otherwise using privately owned shores of Lake Erie above the water’s edge.

The Ohio Court of Appeals’ decision contrasts sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords members of the public the right to walk along even privately owned shores of the Great Lakes in Michigan up to the ordinary high water mark.  Although the Ohio decision recognized that the public has a right to walk on the lakebed, in effect the court said that the public must keep their feet wet when doing so.

The Merrill case was originated in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owns up to the ordinary high water mark along the Lake Erie shore and that lakefront owners must obtain leases from the state for certain uses of the shore below the ordinary high water mark.  (The governor subsequently abandoned that position in 2007, and the state no longer seeks to require leases for privately titled lakefront property.)  But while the case began as a dispute over title, also at issue was the public’s right to use the Great Lakes shores for recreational purposes.  Yesterday’s opinion by the Ohio Court of Appeals for the 11th District largely affirmed a 2007 decision in the case issued by the Lake County Court of Common Pleas.

Acknowledging that the case was one of first impression in Ohio, the state Court of Appeals primarily looked to earlier Ohio Supreme Court cases and the state legislature’s use of the term “natural shoreline” in the Fleming Act (ORC §§ 1506.10 & .11) to conclude that the actual water’s edge serves as the line of demarcation between the lands held in trust by the state underlying Lake Erie and the private lands of the lakefront owners.

In my humble view, the court erred by not recognizing that the public trust extends to the ordinary high water mark on the shores of Lake Erie.  As set forth more fully in my upcoming article, the shores of Lake Erie passed to the State of Ohio in trust up to the ordinary high water mark at the time it entered the union, and the General Assembly has not relinquished the public trust in the shores between the ordinary high water mark and the water’s edge.  The public should have the right to walk along the shores of the Great Lakes in Ohio, just as they do in Michigan, up to the ordinary high water mark.