The State Ex Rel. Merrill v. Ohio Dep't of Natural Res.

• Decision Date: 14 September 2011
• Docket Number: No. 2009–1806.,2009–1806.
• Citation: 955 N.E.2d 935,130 Ohio St.3d 30,2011 -Ohio- 4612
• Parties: The STATE ex rel. MERRILL, Trustee, et al., Appellees;Taft, Appellee and Cross–Appellant,v.OHIO DEPARTMENT OF NATURAL RESOURCES et al., Appellants and Cross–Appellees.
• Court: Ohio Supreme Court

130 Ohio St.3d 30

955 N.E.2d 935

2011 -Ohio- 4612

The STATE ex rel. MERRILL, Trustee, et al., Appellees;Taft, Appellee and Cross–Appellant,

v.OHIO DEPARTMENT OF NATURAL RESOURCES et al., Appellants and Cross–Appellees.

No. 2009–1806.

Supreme Court of Ohio.

Submitted Feb. 1, 2011.Decided Sept. 14, 2011.

[Ohio St.3d 30] Syllabus of the Court

1. A party to an action has standing to appeal from a judgment when it is an independent party to an action and has been aggrieved by the final order from which it seeks to appeal.

2. When an organization demonstrates that it has a claim or defense that shares a common question of law or fact with the main action and that intervention will not unduly delay or prejudice the adjudication of the rights of the original parties, it meets the requirements of Civ.R. 24(B)(2) for permissive intervention.

3. The territory of Lake Erie held in trust by the state of Ohio for the people of the state extends to the natural shoreline, which is the line at which the water usually stands when free from disturbing causes. ( Sloan v. Biemiller (1878), 34 Ohio St. 492, and State v. Cleveland & Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 113 N.E. 677, approved and followed; R.C. 1506.10 and 1506.11 construed.)

Homer S. Taft, pro se.

Calfee, Halter & Griswold, L.L.P., James F. Lang, and Fritz E. Berckmueller, for appellee class-action plaintiffs.L. Scot Duncan, pro se, and for appellee Darla J. Duncan.Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief Deputy Solicitor General, Stephen P. Carney, Deputy Solicitor, and Cynthia K. Frazzini, Assistant Attorney General, for appellant and cross-appellee state of Ohio.Porter, Wright, Morris & Arthur, L.L.P., and Kathleen M. Trafford, Special Counsel for appellants and cross-appellees Ohio Department of Natural Resources and Director David Mustine.Neil S. Kagan and Peter A. Precario, Columbus, for appellants and cross-appellees National Wildlife Federation and Ohio Environmental Council.Chester, Willcox & Saxbe, L.L.P., Charles R. Saxbe, and Gerhardt A. Gosnell II, Columbus, in support of the state's first proposition of law on behalf of amici curiae former Ohio Attorneys General Betty Montgomery, Jim Petro, and Nancy Rogers.Michael A. Cox, Attorney General of Michigan, B. Eric Restuccia, Solicitor General, S. Peter Manning, Division Chief, and Robert P. Reichel and Darryl J. Paquette, Assistant Attorneys General; and Thomas W. Corbett Jr., Attorney General of Pennsylvania, in support of the state of Ohio on behalf of amici curiae the states of Michigan and Pennsylvania.The Law Office of Colin Bennett, L.L.C., and Colin William Bennett, in support of appellants and cross-appellees on behalf of amici curiae Joseph Sommer, Frances Buchholzer, Robert Teater, Ohio Bass Federation, Izaak Walton League of America, Ohio Chapter, and Northeast Ohio Watershed Council.R.S. Radford and Luke A. Wake; and Michael R. Gareau & Associates Co., L.P.A., and David M. Gareau, North Olmsted, in support of appellees on behalf of amicus curiae, Pacific Legal Foundation.John P. O'Donnell, L.L.C., and John P. O'Donnell; and Baker & Hostetler, L.L.P., and John H. Burtch, Columbus, urging affirmance on behalf of amici curiae Willow Beach Club, Brookwood–Cresthaven Beach Club, Inc., the Linwood Park Company, and the Ohio Association of Realtors.Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Bruce G. Hearey, and LerVal M. Elva, Cleveland, in support of appellees on behalf of amicus curiae National Federation of Independent Business Small Business Legal Center.Michael E. Gilb, urging affirmance on behalf of amicus curiae Geauga Constitutional Council. Smith, Martin, Powers & Knier, P.C., and David L. Powers, in support of class-action plaintiffs on behalf of amicus curiae Save Our Shoreline.Chad A. Endsley, in support of class-action plaintiffs on behalf of amicus curiae Ohio Farm Bureau Federation.Faulkner, Muskovitz & Phillips and Robert M. Phillips; and Patrick A. D'Angelo, Cleveland, urging affirmance on behalf of amici curiae Ohio Fraternal Order of Police Lodge 8 and Cleveland Police Patrolmen's Association.Montgomery Consulting Group, L.L.C., Betty Montgomery, Columbus, opposing the state's second proposition of law on behalf of amicus curiae Betty Montgomery.Shannon Lee Goessling, in support of class-action plaintiffs on behalf of amicus curiae Southeastern Legal Foundation, Inc.Maurice A. Thompson, urging affirmance on behalf of amicus curiae 1851 Center for Constitutional Law.

O'DONNELL, J.

[Ohio St.3d 31] {¶ 1} We are asked to resolve three issues on appeal and cross-appeal: first, whether the state of Ohio, as distinct from the Ohio Department of Natural Resources (“ODNR”), has standing to appeal from the decisions of the trial and appellate courts in this case; second, whether the court of appeals properly held that the trial court did not abuse its discretion in permitting the National Wildlife Federation and the Ohio Environmental Council to intervene in this action; and third, whether the appellate court identified the proper boundary between property abutting Lake Erie owned by private individuals and the territory of Lake Erie held in trust by the state for all Ohioans.

{¶ 2} Regarding the standing issue, we conclude that despite ODNR's adoption of a conciliatory lis pendens posture agreeing not to enforce its controversial lease policy pending the court's determination of the boundary issue and its failure to appeal the judgment of the trial court, it remains a party to this case; the state of Ohio, a separately named party, had standing to appeal the trial court judgment entered against it affecting the territory of Lake Erie.

{¶ 3} On the intervention question, we agree with the conclusion of the court of appeals that the National Wildlife Federation and the Ohio Environmental Council are proper parties to this action and that the trial court did not abuse its discretion in permitting them to intervene.

{¶ 4} Finally, regarding the shoreline issue, Ohio law with respect to the territory of Lake Erie held in trust by the state and the rights of littoral-property owners has been settled for more than a century, and we see no reason to change the existing law. Based on opinions of this court from as early as 1878 and the Ohio General Assembly's statement of public policy enunciated in the Fleming Act in 1917, we conclude that the territory of Lake Erie held in trust by the state of Ohio for the people of Ohio extends to the “natural shoreline,” which is the line at which the water usually stands when free from disturbing causes.

Factual and Procedural History

{¶ 5} The pleadings in this case allege that ODNR instituted a policy prohibiting littoral-property owners from exercising property rights over all land lakeward of the ordinary high-water mark, despite the inclusion of that area of land in their respective deeds, unless the owner entered into a lease agreement with ODNR and paid a fee for its use.

{¶ 6} In May 2004, Robert Merrill, as trustee for the Diane N. Merrill Living Trust, the Ohio Lakefront Group, Inc., a nonprofit corporation representing lakefront-property owners, and several other individually named lakefront-property owners (collectively referred to as “the Merrill plaintiffs”) filed a complaint [Ohio St.3d 32] for declaratory judgment and mandamus in the Lake County Common Pleas Court against ODNR, its director, and the state of Ohio, seeking declarations that owners of property abutting Lake Erie hold title to the land “between [the ordinary high-water mark] and the actual legal boundary of their properties * * * as defined by their deeds” and that the public trust does not include nonsubmerged lands; alternatively, they sought a writ of mandamus to compel ODNR to commence appropriation proceedings or to compel the state of Ohio to compensate them for its alleged taking of their property. They subsequently filed an amended complaint containing the same counts. The individually named lakefront-property owners also filed attachments to the first amended complaint, containing copies of their deeds and identifying the property's lakeward boundary, although those descriptions varied from deed to deed, i.e., “a distance of 374.0 feet to the shore of Lake Erie,” “to a point in the low water mark of Lake Erie,” “145 feet to a point in the water's edge of Lake Erie,” “to Lake Erie,” “a distance of 293.04 feet to the shore of Lake Erie,” and “to the shore of Lake Erie.”

{¶ 7} Separately, Homer S. Taft, L. Scot Duncan, and Darla J. Duncan (the Taft plaintiffs) filed the next consecutively numbered case in the Lake County Common Pleas Court, claiming ownership of their land to the ordinary low-water mark of Lake Erie. The trial court consolidated that action with the suit filed by the Merrill plaintiffs.

{¶ 8} ODNR and the state counterclaimed, seeking a declaration that the state of Ohio holds the lands and waters of Lake Erie to the ordinary high-water mark, as set by the United States Army Corps of Engineers in 1985, in trust for the people of Ohio, subject only to the paramount authority retained by the United States for the purposes of commerce, navigation, national defense, and international affairs.

{¶ 9} In June 2006, pursuant to a joint stipulation of all parties in Merrill, the trial court certified a class action as to the declaratory-judgment count of the Merrill complaint, with the class consisting of owners of Ohio property bordering Lake Erie. The court stayed the mandamus claims pending resolution of the declaratory-judgment claim.

{¶ 10} Subsequently, the National Wildlife Federation and the Ohio Environmental Council, nonprofit organizations committed to conserving natural resources and whose members make recreational use of the shores and waters of Lake Erie, sought to intervene as defendants and counterclaimants, asserting that the state holds the lands and waters of Lake Erie in trust for the public...