State ex rel. Merrill v. Ohio Dept. of Natural Resources, 2009 Ohio 4256 (Ohio App. 8/21/2009), 2008-L-007.

Citation2009 Ohio 4256
Decision Date21 August 2009
Docket NumberNo. 2008-L-007.,No. 2008-L-008.,2008-L-007.,2008-L-008.
PartiesState ex rel. Robert Merrill, Trustee, et al., Plaintiffs-Appellees/Cross-Appellants, Homer S. Taft, Intervening Plaintiff-Appellee/Cross-Appellant, L. Scot Duncan, et al., Intervening Plaintiffs-Appellees, v. State of Ohio, Department of Natural Resources, et al., Defendants, National Wildlife Federation, et al., Intervening Defendants-Appellants/Cross-Appellees. State ex rel. Robert Merrill, Trustee, et al., Plaintiffs-Appellees/Cross-Appellants, Homer S. Taft, et al., Intervening Plaintiffs-Appellees, v. State of Ohio, Department of Natural Resources, et al., Defendants, State of Ohio, Defendant-Appellant/Cross-Appellee.
CourtUnited States Court of Appeals (Ohio)

Fritz E. Berckmueller and James F. Lang, Calfee, Halter & Griswold, L.L.P., 1400 Keybank Center, 800 Superior Avenue, Cleveland, OH 44114-2688 (For Plaintiffs-Appellees/Cross-Appellants).

Homer S. Taft, pro se, 20220 Center Ridge Road, #300, P.O. Box 16216, Rocky River, OH 44116 (Intervening Plaintiff-Appellee/Cross-Appellant).

L. Scot Duncan, 1530 Willow Drive, Sandusky, OH 44870 (For Intervening Plaintiffs-Appellees).

Neil S. Kagan, 213 West Liberty Street, #200, Ann Arbor, MI 48104 and Peter A. Precario, Annex, #100, 326 South High Street, Columbus, OH 43215 (For Intervening Defendants-Appellants/Cross-Appellees).

Nancy Hardin Rogers, Attorney General, State Office Tower, 17th Floor, 30 East Broad Street, Columbus, OH 43215-3428; Cynthia K. Frazzini and John P. Bartley, Assistant Attorneys General, 2045 Morse Road, Bldg. D-2, Columbus, OH 43229 (For Defendant-Appellant/Cross-Appellee).

OPINION

COLLEEN MARY O'TOOLE, J.

{¶1} The issue before us in this case is one of first impression, concerning title to the lands below the ordinary high water mark of Lake Erie. Lake Erie is a non-tidal, navigable body of water, part of which lies within the territorial boundaries of the state of Ohio. The natural shoreline of Lake Erie extends approximately 262 miles, within the

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eight counties of Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula.

{¶2} The state of Ohio, through the Ohio Department of Natural Resources ("ODNR"), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group,1 ("OLG"), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR's authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

{¶3} Procedural History

{¶4} May 28, 2004, OLG, Robert Merrill, and other individuals owning real property abutting Lake Erie, filed a lawsuit (Case No. 04CV001080) in the Lake County Court of Common Pleas against ODNR, ODNR's director, and the state of Ohio, for declaratory judgment, mandamus, and other relief. Immediately thereafter, on said date, Homer S. Taft, L. Scot Duncan and Darla J. Duncan filed a complaint (Case No.

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04CV001081) in the Lake County Court of Common Pleas against the same defendants, containing nearly identical factual allegations and seeking similar relief.

{¶5} July 2, 2004, an amended complaint seeking certification as a class action and for declaratory judgment, mandamus, and other relief was filed in Case No. 04CV001080. August 12, 2004, the trial court consolidated Case Nos. 04CV001080 and 04CV001081.

{¶6} February 23, 2005, ODNR and the state of Ohio filed an answer, a counterclaim, and a cross-claim against the United States of America and the United States Army Corps of Engineers. The counterclaim sought a declaration that the state of Ohio owns and holds in trust for the people of Ohio the lands and water of Lake Erie up to the natural location of the ordinary high water mark within the territorial boundaries of the state, subject only to the paramount authority retained by the United States for the purposes of commerce, navigation, national defense, and international affairs. Also, a declaration was sought that the state of Ohio has owned and held those lands and waters in trust since statehood.

{¶7} This case was removed to the United States District Court for the Northern District of Ohio on March 28, 2005, on the motion of the United States of America and the United States Army Corps of Engineers. The federal case was dismissed on April 14, 2006, when the federal district court found that neither the federal defendants nor the federal questions were properly before it. Consequently, the case was remanded to the court of common pleas.

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{¶8} Class Certification

{¶9} June 8, 2006, the parties filed a notice of joint stipulation to class certification on count one of the first amended complaint, which sought a declaration regarding the extent of the state of Ohio's property rights. Counts two and three of the complaint, which deal with constitutional takings issues, were reserved pending the outcome of the declaratory judgment action. The trial court certified the following group of persons as a class for purposes of pursuing a declaratory judgment action:

{¶10} "`*** all persons, as defined in R.C. 1506.01(D), excepting the State of Ohio and any state agency as defined in R.C. 1.60, who are owners of littoral property1 bordering Lake Erie (including Sandusky Bay and other estuaries previously determined to be a part of Lake Erie under Ohio law) within the territorial boundaries of the State of Ohio' ***. To the extent that governmental entities are included in the class, they are included solely in their proprietary capacity as property owners and not for any purpose or capacity implicating their governmental authority or jurisdiction.

1. "The parties have stipulated that `upland property' is defined as real property bordering a body of water and that, in Ohio, `littoral property' is defined as upland property that borders an ocean, sea, lake, or a bay of any of these water bodies, as opposed to `riparian property' which is defined as upland property that borders a river, stream, or other such watercourse."

{¶11} The class certification order found the following three questions of law common to the class:

{¶12} "(1) What constitutes the furthest landward boundary of the `territory' as that term appears in R.C. 1506.10 and 1506.11, including, but not limited to, interpretation of the terms `southerly shore' in R.C. 1506.10, `waters of Lake Erie' in R.C. 1506.10, `lands presently underlying the waters of Lake Erie' in R.C. 1506.11,

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`lands formerly underlying the waters of Lake Erie and now artificially filled' in R.C. 1506.11, and `natural shoreline' in R.C. 1506.10 and 1506.11.

{¶13} "(2) If the furthest landward boundary of the `territory' is declared to be the natural location of the ordinary high water mark as a matter of law, may that line be located at the present time using the elevation of 573.4 feet IGLD (1985), and does the State of Ohio hold title to all such `territory' as proprietor in trust for the people of the State.

{¶14} "(3) What are the respective rights and responsibilities of the class members, the State of Ohio, and the people of the State in the `territory.'"

{¶15} Intervenors

{¶16} Thereafter, the trial court allowed two groups to intervene: (1) Homer Taft and L. Scot Duncan, members of the class, and (2) the National Wildlife Federation ("NWF") and the Ohio Environmental Council ("OEC"), environmental organizations whose purpose is to protect the rights of their members to make recreational use of the shores and waters of Lake Erie. NWF and OEC assert that the state holds the area of the "territory" of the waters of Lake Erie in trust for the public up to the ordinary high water mark.

{¶17} February 13, 2007, the city of Cleveland filed a motion to opt out of the class, which motion was held in abeyance pending further order of the trial court.

{¶18} Overview of Motions for Summary Judgment

{¶19} A motion for summary judgment was filed on behalf of the state of Ohio, Department of Natural Resources, its director, and the state, by the Ohio Attorney General. In this motion, the state advanced three arguments:

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{¶20} "(1) As a matter of law, the furthest landward boundary of the `territory' as that term appears in R.C. 1506.10 and 1506.11, is the ordinary high water mark, and the State of Ohio holds title to all such `territory' as proprietor in trust for the people of the state;

{¶21} "(2) The furthest landward boundary of the `territory' is the ordinary high water mark as a matter of law, and that line may be located at the present time using the elevation of 573.4 feet IGLD (1985); and

{¶22} "(3) The rights and responsibilities of littoral owners in their upland property, as well as the respective rights and responsibilities of the federal government, the State of Ohio, the public, and the littoral owners in the `territory,' have long been settled in state and federal law, as has the hierarchy of those rights."

{¶23} In their motion for summary judgment, NWF and OEC concurred with and affirmatively adopted the state's position.

{¶24} OLG asserted that under Ohio's case law, public trust rights in Lake Erie, extend no farther than the actual...

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