Rarely does the Ohio Supreme Court please both sides in a legal conflict. Yet, on Wednesday, the reaction proved as unanimous as the 7-0 court ruling in what had been a most contentious argument over the public trust and private property rights along the shore of Lake Erie. The Ohio Lakefront Group representing property owners called the decision a “big win.” The Ohio Environmental Council claimed “a huge, huge victory.”
How did the court pull off the feat, Justice Terrence O’Donnell writing the opinion?
For starters, the ruling won applause from environmental groups by repairing an egregious decision of the 11th District Court of Appeals. The lower court looked at the question of where private property rights end and the public trust begins in maintaining sound stewardship of the such a valuable natural resource. The appeals court departed from long precedent, joining the view that the boundary changes with the water level of the lake from moment to moment, or month to month.
That hardly is practical. It did cheer property owners, who launched the lawsuit in 2004 after the state Department of Natural Resources, under then Gov. Bob Taft, required a leasing fee to place docks in the lake. The worry has been that the appeals court endorsed an erosion of the public trust, property owners granted too much leeway at the expense of what Ohioans are supposed to share.
To its credit, the Supreme Court essentially returned to precedent, pointing to laws and rulings dating to the 19th century. It located the boundary at the “natural shoreline,” or “where the water usually stands free from disturbing causes,” such as storms and droughts. Thus, the court reaffirmed the value of consistency in setting the line.
The court did not employ the language of the traditional “high water mark.” That is too bad. The concept serves more clearly the public trust. The court also has left an element of ambiguity for the lower courts to explore in locating the boundary.
What cheered property owners was the reaffirmation of individual property rights. O’Donnell wrote: “This court has a history of protecting property rights, and our decision today continues that long-standing precedent.” The ruling stressed “a right to access and wharf out to navigable waters.” It reminded that if the state or a city impairs property rights, it must compensate the owner.
Ohioans as a whole gained a separate and significant victory. The 11th District Court of Appeals compounded its blunder by holding that the office of the attorney general did not have authority on its own to represent the interests of the state. The appeals court argued that the attorney general must wait for a nod from the governor or the legislature. The Supreme Court rightly said nonsense, explaining that the attorney general is an independent “constitutional officer” and the chief law officer “for the state and all its departments.”
Richard Cordray, then attorney general, pressed the appeal, after the Department of Natural Resources passed. Good thing that he did. The Supreme Court seized the opportunity to reaffirm middle ground, emphasizing the importance of individuals property rights yet returning to what Ohioans share, must protect and deserve to enjoy, Lake Erie and its shoreline.