The Ohio Supreme Court this week issued its decision in State ex rel. Merrill v. Ohio Department of Natural Resources, holding that the public has no right to use the shore of Lake Erie above the “natural shoreline.” Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed the case closely and published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN). His previous Great Lakes Law guest posts analyzed the lower court’s decision and previewed the Supreme Court case based on oral arguments. Ken once again offers his insights and analysis of the Ohio Supreme Court’s decision.
The Ohio Supreme Court this week ruled that the public has no right to use the shore of Lake Erie above the “natural shoreline,” which it defined as the line at which water usually stands when free from disturbing causes. The Court in State ex rel. Merrill v. Ohio Department of Natural Resources also decided that same line represents the boundary between privately owned uplands and the state-owned lakebed.
The unanimous 7-0 decision is a blow to lakefront property owners because it reversed aspects of earlier decisions in this case by lower Ohio courts which had drawn the boundary line for purposes of the public trust and state ownership at the water’s edge as it exists moment to moment. However, the Court also rejected the argument advocated by other parties in the case, the State and two environmental groups, that the boundary should be the ordinary high water mark (OHWM). In the aftermath of the Court’s opinion, both sides in the case seem to be declaring victory.
While the Court explained that neither the water’s edge nor the OHWM is the boundary, the opinion did not explain where “the line at which water usually stands when free from disturbing causes” exists on the shore. Fleshing out the meaning of that phrase, and the location of the boundary line, apparently will be left to future court opinions and/or future Ohio Department of Natural Resources (ODNR) regulations.
The Merrill case was begun in 2004 by a group of lakefront property owners in response to ODNR’s position that the state owned the shore up to the OHWM and the owners must obtain leases from the state for certain uses of the shore below the OHWM. (ODNR subsequently abandoned that position, leading the court of appeals to rule that the Ohio Attorney General lacked standing to pursue the appeal on behalf of the State, a ruling that the Supreme Court reversed.) Although the case began as a dispute over title, also at issue was the public’s right to use the Lake Erie shore. Pursuant to the public trust doctrine, the public has a right to use land and water within the public trust for certain important purposes, including boating and fishing. It is undisputed that Lake Erie and the lakebed are owned by the state and are subject to the public trust. The Merrill case involved questions of how far state ownership and the public trust extend up the Lake Erie shore and, secondarily, whether walking the shore is a protected use.
The Lake County Court of Common Pleas and the Ohio Court of Appeals for the 11th District had ruled that the public has no right to use the Lake Erie shore above the water’s edge; the public has a right to walk along the shore, but only to the extent they keep their feet wet by staying on state-owned lakebed (see this previous guest for more on the court of appeals decision). The Ohio Supreme Court did not expressly discuss the public’s right to walk along the shore, but it did hold that the territory held in trust by the state does not extend landward beyond the “natural shoreline” as it defined the term, meaning that the public has no right to use the privately owned shore above that natural shoreline. The Court held that the lakefront property owners have no title lakeward of that same natural shoreline.
Although the Court of Appeals had called the case one of “first impression,” the Supreme Court emphasized that its decision regarding the boundary of the public trust along the shore of Lake Erie was merely a reiteration of law settled in an 1878 Ohio Supreme Court case, which was clarified in a 1916 Court case and codified by a state statute in 1917.
The Merrill decision sharply contrasts with the 2005 decision by the Michigan Supreme Court in Glass v. Goeckel, which held that the public trust extends to the OHWM along the Michigan shores of the Great Lakes. The Glass Court ruled that the public has a right to walk along even privately owned shores up to the OHWM in Michigan.
I respectfully disagree with the Merrill opinion, at least regarding the public trust. The boundary of the public trust was not at issue in the 1878 case or any subsequent Ohio Supreme Court case, and Ohio Rev. Code §§ 1506.10 & .11 were not intended to modify the geographic scope of the public trust. Further, the Court erred in assuming that the boundary for title must be the same as the boundary for the public trust. Rather, in my view, the shores of Lake Erie passed to the State of Ohio up to the OHWM at the time Ohio became a state, and the State has never clearly relinquished the public trust in the shores of Lake Erie below the OHWM, so the public should have a right to walk along the Ohio shore of Lake Erie up to the OHWM. See Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN).
The Merrill case and its implications will be the topic of a panel discussion, featuring attorneys from both sides of the case, at the annual Great Lakes Water Conference on November 4 at the University of Toledo College of Law.