OLG Lawsuit Status after Appellate Court

3RD Lawsuit Win and Update : 

3RD Lawsuit Win and Update September 8, 9, 10, 2009

History and the Future : 

History and the Future The future for OLG is defined by the past. We have moved methodically to battle those in the State who have tried to steal our deeded property.

History : 

History 1993: As Attorney General, Lee Fisher told ODNR that the Public Trust ended at the water’s edge. 1994—1997: ODNR began claiming ownership of all land below the Ordinary High Water Mark. 1999: OLG was formed. 2001—2003: OLG introduced legislation to protect our deeded property. May 2004: OLG filed suit in State Common Pleas Court to stop ODNR’s taking of our deeded property.

History (continued) : 

History (continued) Feb. 2005 Claiming that this was a Federal issue, ODNR moved the case to Federal Court. ODNR stated: “Federal law and Ohio law hold that after statehood, the title and rights of riparian (upland that borders a river, stream, or other such watercourse) or littoral (upland that borders a ocean, lake or the bay of such body of water) proprietors in the soil below the ordinary high water mark are governed by the laws of the several states, subject to the rights granted to the United States by the constitution.”

History (continued) : 

History (continued) Feb. 2006 Federal Judge Oliver threw ODNR out of Federal court. He stated in part: “ODNR appears to be preemptively defending an Army Corps calculation that is not under attack in the first place.” Case goes back to Common Pleas

History (continued) : 

History (continued) June 2006 Common Pleas Judge Lucci certified our case as a class action. All lakefront property owners were now subject to the outcome of the case.

History (continued) : 

History (continued) July 2007 As Governor, Ted Strickland finally makes good on his promise to honor our deeds: “The Governor and ODNR recognize that there are arguable legal claims that some of the deeds have specific defects and that deeds purporting to cover lands below the OHWM may ultimately be found by the Ohio courts to be subordinate to the public’s interest in those lands. Still, without such a determination by the Ohio courts, ODNR believes that it must honor those deeds.”

History (continued) : 

History (continued) Dec. 2007 Common Pleas Judge Lucci rules in OLG’s favor and states that the farthest extent of the Public Trust is the water’s edge. The State of Ohio and the environmental groups lose all of their arguments. The Judge orders all deeds to be revised to the water’s edge. OLG believes that the Judge went beyond the scope of the Lawsuit.

History (continued) : 

History (continued) Jan. 2008 Notices of Appeal were filed by Attorney General Marc Dann, the Ohio Environmental Council, and the National Wildlife Federation. Marc Dann split with the Governor on this issue and filed the Appeal on behalf of the “citizens of Ohio” and not ODNR.

History (continued) : 

History (continued) May 2008 Marc Dann resigns as Attorney General. The appeal by the State of Ohio continues. Nov. 2008 Richard Cordray is elected as Ohio’s new Attorney General. By the time Mr. Cordray took office, all briefs were filed and arguments made. Up until now, Mr. Cordray has said nothing and has allowed the appeal to go forward.

We Win A Third Time : 

We Win A Third Time Aug. 2009 The Court of Appeals: Sided completely with OLG and rejected all of the arguments made by the environmental groups; Said that the Attorney General had no client and therefore no standing in the case; and Agreed with OLG that the Trial Court Judge went too far when he ordered that all of the deeds be modified in accordance with his ruling.

The Future : 

The Future Notice of Appeals to the Ohio Supreme Court are due in about four weeks. The Ohio Environmental Council and the National Wildlife Federation have said they will appeal. We have heard nothing from Attorney General Cordray’s office. The Appeal is expected to take approximately one year.

The Future : 

The Future Concerns Remember the Governor’s statement: “The Governor and ODNR recognize that there are arguable legal claims that some of the deeds have specific defects and that deeds purporting to cover lands below the OHWM may ultimately be found by the Ohio courts to be subordinate to the public’s interest in those lands. Still, without such a determination by the Ohio courts, ODNR believes that it must honor those deeds.”

The Future : 

The Future The Governor has stated that he and ODNR will honor your deeds. The Court of Appeals has said that it will not change your deeds. You should not be making lease payments or leasing any land that is in your deed description.

The Future : 

The Future Will we win in the Supreme Court? ODNR was basically thrown out of Federal Court. ODNR lost every argument at the Trial Court, while we won every argument. We won everything in the Appeals Court, while the other side won nothing. We are hopeful, but Michigan property owners lost in their Supreme Court.

After the Supreme Court : 

After the Supreme Court Pursue the second phase of the lawsuit—temporary takings of your property for the past 10-15 years. Get everyone’s deed back to the original description. Greatly reduce the administrative burden of obtaining a permit from regulators. Pass legislation.

Slide 19: 

Presented to Ohio Lakefront Group by James F. Lang and Fritz E. Berckmueller of Calfee, Halter & Griswold LLP

What we asked the Court to do: : 

What we asked the Court to do: “The question put before the Court is whether the ‘furthest landward boundary’of the territory sits at one of the following lines: 1) a fixed line of elevation approximating the extreme upper limit of where the water rarely ever reaches; 2) a moving boundary where the water stands right now, regardless of any disturbing causes; 3) a moving boundary where the water usually is when free from disturbing causes; or 4) a fixed line of elevation designating navigability based on where the water nearly always flows.” “OLG, and the Ohio Supreme Court, favor the middle approach -- the ‘line at which the water usually stands when free from disturbing causes.’ ” - OLG Brief © Calfee, Halter & Griswold LLP 2009

What the Court gave us: : 

What the Court gave us: “[The] shoreline is the line of actual physical contact by a body of water with the land between high and low water mark undisturbed and under normal conditions. See, e.g., Sloan, supra, at paragraph four of the syllabus.” - Court’s Opinion p. 24 © Calfee, Halter & Griswold LLP 2009

On the question of the Attorney General’s standing: : 

On the question of the Attorney General’s standing: “The governor has ordered ODNR to cease those activities that made it a party to the action. We find no authority for the attorney general to prosecute this matter on his own behalf. We conclude that the state of Ohio no longer has standing in this matter, and order its assignments of error and briefs stricken.” - Op. p. 12 © Calfee, Halter & Griswold LLP 2009

The Court starts with a nod to precedent and OLG argument: : 

The Court starts with a nod to precedent and OLG argument: “We commence with the lead case of Sloan v. Biemiller ... a quiet title action regarding property on Cedar Point. The Supreme Court of Ohio held, at paragraph four of the syllabus: ‘. . . the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to the line at which the water usually stands when free from disturbing causes.’ (Emphasis added.)” - Op. pp. 13-14 © Calfee, Halter & Griswold LLP 2009

On the Opponents’ Federal Equal Footing Doctrine argument: : 

On the Opponents’ Federal Equal Footing Doctrine argument: “We respectfully reject this argument. The Shively court merely noted that the public trust doctrine, in England, set the border of the crown’s trust for the benefit of the public at the high water mark. The Shively court specifically recognized that state law determined the scope of the public trust in land beneath navigable waters in this country.” - Op. p. 18 © Calfee, Halter & Griswold LLP 2009

On the Opponents’ Federal Submerged Land Act arguments: : 

On the Opponents’ Federal Submerged Land Act arguments: “We find this reliance upon the SLA to be misplaced. As the United States Supreme Court has observed, the effect of the SLA ‘was merely to confirm the States’ title of the beds of navigable waters within their boundaries as against any claim of the United States government.’ . . . Further, state law governs the determination of ownership in the land under the Act, as evidenced by the Provision “‘under the law of the respective States in which the land is located ... This issue lacks merit.” - Op. p. 19 © Calfee, Halter & Griswold LLP 2009

On the argument that Ohio cannot abandon the Public Trust : : 

On the argument that Ohio cannot abandon the Public Trust : “We respectfully reject this argument. Just as the public trust in Lake Erie cannot be abandoned, it cannot be improperly extended in violation of littoral property owners’ rights.” - Op. p. 20 © Calfee, Halter & Griswold LLP 2009

On the trial court’s rejection of ODNR’s OHWM of 573.4 ft. IGLD: : 

On the trial court’s rejection of ODNR’s OHWM of 573.4 ft. IGLD: “As ODNR is no longer enforcing this policy, we find this assignment of error moot.” - Op. p. 21 © Calfee, Halter & Griswold LLP 2009

Affirming the Right to Exclude: : 

Affirming the Right to Exclude: “Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property. Sloan, supra.” - Op. p. 21 © Calfee, Halter & Griswold LLP 2009

More on the Right to Exclude and the Right to Walk: : 

More on the Right to Exclude and the Right to Walk: “... the public retains the same rights to walk lakeward of the shoreline along Lake Erie, but these rights have always been limited to the area of the public trust (i.e., on the lands under the waters of Lake Erie and lakeward of the shoreline). Therefore, the public does not interfere with littoral property rights when their recognized, individual rights are exercised within the public trust; that is, lakeward of the shoreline as defined herein.” - Op. p. 21 © Calfee, Halter & Griswold LLP 2009

On your littoral rights: : 

On your littoral rights: “The littoral owner has certain well-defined rights incident to the ownership of shore land. Littoral owners may exercise these rights upon the soil and navigable waters lakeward of the shoreline of Lake Erie within the territorial boundaries of the state, subject to regulation and control by the federal, state and local governments. Those rights include: (1) the right to wharf out to navigable waters to the point of navigability for the purposes of navigation; (2) the right of access to the navigable waters of Lake Erie; and (3) the right to make reasonable use of waters in front of or flowing past their lands. ... We find that the trial court properly declared the rights of the littoral owners, while acknowledging that individual members of the class may have to adjudicate a specific, individualized question.” - Op. pp. 21-22 © Calfee, Halter & Griswold LLP 2009

On reforming deeds: : 

On reforming deeds: “We agree with OLG’s and Taft’s assertion that the trial court erred in reforming the deeds. First, in reforming the deeds, the trial court went beyond the scope of the class certification. Further, since this issue was not before the trial court, the parties were not afforded the opportunity to argue their positions for the trial court’s consideration. Reformation of the littoral owner’s deeds could potentially have an impact on title insurance policies and the littoral owners’ rights established by the Fleming Act or other legislation. By reforming all of the littoral owners deeds to the water’s edge, all parties were deprived of the opportunity to be notified of each other’s arguments, and to respond to those arguments, which is contrary to traditional notions of due process. As a result, we vacate this portion of the trial court’s judgment entry.” - Op. p. 25 © Calfee, Halter & Griswold LLP 2009

The Court’s Conclusion: : 

The Court’s Conclusion: By setting the boundary at the water’s edge, we recognize and respect the private property rights of littoral owners, while at the same time, provide for the public’s use of the waters of Lake Erie and the land submerged under those waters, when submerged. The water’s edge provides a readily discernible boundary for both the public and littoral landowners. - Op. p. 30 © Calfee, Halter & Griswold LLP 2009

What next? : 

What next? OLG has now prevailed three times. Will the Attorney General appeal? Will NWF and OEC appeal? Will ODNR and the Governor continue their support? In the meantime, what will ODNR do with leasing and permits? © Calfee, Halter & Griswold LLP 2009

Money, Time, and Effort : 

Money, Time, and Effort Do we need it? We can always use your time and effort. Things are going well, but we have a lot to do. We will need money for the Appeal that we are expecting.