Tuesday, January 8, 2008

Groups Appeal Ohio Lake Erie Access Decision

Jan 8: Conservation groups took the first step to appeal an Ohio lower court decision that blocks Ohio citizens from walking, fishing and recreating along the shores of Lake Erie. The groups seek to overturn a December 11th decision by Lake County Common Pleas Court Judge Eugene Lucci, which redefines the boundary separating public and private property along the Lake Erie shoreline from the ordinary high water mark to the point at which the water meets land from moment to moment -- effectively barring citizens from the shores of Lake Erie unless they are in the lake itself. The case is, Merrill v. State of Ohio and NWF, et. al (Case No. 04CV001080). The National Wildlife Federation, Ohio Environmental Council and League of Ohio Sportsmen filed the notice of appeal with the Eleventh District Court of Appeals of Ohio.

Neil Kagan, senior attorney for the National Wildlife Federation (NWF) said, “We are filing this appeal to protect the historic right of all citizens to stroll, fish and recreate along the shores of Lake Erie. The law is clear: The Lake Erie shoreline is a public trust for all to enjoy.” The lower court ruling goes against more than 100 years of Ohio legal precedent, which holds that the land up to the high water mark be held in public trust.

Keith Dimoff, executive director for the Ohio Environmental Council said, “Our appeal comes down to one thing -- beating back an attempt to strip Ohio citizens of their centuries-old right to access the shores of Lake Erie. This flawed decision will mean fences and 'KEEP OUT' signs along our shore; we will not let that happen.” The groups said that Ohio Attorney General Marc Dann is also expected to file a notice of appeal today, even though Ohio Governor Ted Strickland has sided publicly with the plaintiffs who are attempting to keep Ohio citizens off the shores of Lake Erie.

The case is similar to a landmark Michigan lawsuit that resulted in a unanimous Michigan Supreme Court decision upholding the public trust up to the high water mark. On July 29, 2005 the Michigan Supreme Court decided, Glass v. Goeckel, Case No. 126409. In the 5-2 decision, the Michigan Supreme Court overruled , a highly controversial Appeals Court decision, and said that under the public trust doctrine individuals retain the right to walk freely along the shoreline of the Great Lakes up to the ordinary high water mark. In its decision the Michigan High Court defined the "high water mark" using a Wisconsin definition, and clarified the distinction between "littoral property" pertaining to property on the seas, oceans or Great Lakes; and "riparian,” pertaining to property on rivers and streams.

Access a release from NWF (click here). Access Judge Lucci's decision (click here). Access the Ohio Attorney General's website (click here). Access the complete Michigan Supreme Court opinion and dissent (click here). Access links to all of the briefs filed in the Michigan Supreme Court case (click here).