Ohio H.B. 218 - An Update

Stephanie Showalter, J.D., M.S.E.L.

After publication in our last issue of some cursory research on H.B. 218, a controversial bill pending before the Ohio State Legislature that attempts to shift the boundary between private and public land along Lake Erie, additional information came to light which altered portions of the original analysis. This update serves to clarify the Law Center’s original position. It is not, nor is it intended to be, a work of advocacy. The information presented below should not be relied on in litigation or cited as established fact. In such a contentious and unsettled area of law there are often many potential interpretations of the same doctrines.

The Public Trust Doctrine
The public trust doctrine is a common law doctrine. The common law “consists of those principles, usage, and rules of action applicable to government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the legislature.”1 In its simplest terms, common law is judge-made law.

Under the common law, the public trust doctrine provides that “public trust lands, waters and living resources in a State are held by the State in trust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of public uses.”2 Public trust waters are the state’s navigable waters and public trust lands are the lands beneath those navigable waters, up to the ordinary high water mark.3 Public trust lands include tidelands, shorelands, and the land beneath oceans, lakes, and rivers.

To some extent, states can supercede the common law with legislation. Although the public trust lands extend to the high water mark under the common law, a state is free to establish different boundaries through legislation. For example, Delaware, Maine, Massachusetts, New Hampshire, Pennsylvania, Virginia, and Wisconsin have all granted private property owners rights seaward of the high-water mark. These states are low-water states, meaning the boundary between public and private land is the low-water mark. However, even in these states a coastal property owner’s rights in the intertidal zone are subservient to the public’s right of access for fishing, fowling, and navigation, which is in turn subservient to the private owner’s right to wharf out, by means of docks, etc.

The Boundary of Lake Erie
The Ohio Legislature has established the boundary of Lake Erie through legislation. Section 1506.10 of the Ohio Code states that

the waters of Lake Erie extending from the southerly shore of Lake Erie to the international boundary line between the United States and Canada, together with the soil beneath and their contents, do now belong and have always, since the organization of the state of Ohio, belonged to the state as proprietor in trust for the people of the state.4

The demarcation line between public and private land and, therefore, the upper boundary of the public trust lands in Ohio is the “southerly shore” of Lake Erie. While the term “southerly shore” has not been explicitly defined by the Legislature or the courts, it is clear that “a littoral owner along Lake Erie has no title beyond the natural shoreline.”5 In 1948, the Ohio Supreme Court held that “the littoral owners of the upland [along Lake Erie] have no title beyond the natural shore line; they have only the right of access and wharfing out to navigable waters.”6 Unfortunately, the Supreme Court failed to define “natural shoreline” and determining where the natural shoreline falls on a particular parcel of land remains a question of fact for a jury or other factfinder.

Because the term is not defined in the act, the responsibility falls to the state agencies to define “southerly shore” through regulations, policies, and actions. ODNR’s activities in this area have not been consistent, although the agency does currently use the high water mark to establish the boundary between public and private land. Over the years shorefront owners have challenged ODNR’s actions in court, but the Ohio courts have failed to either expressly or clearly define the term “southerly shore.” In cases not involving boundary disputes, both the Ohio Court of Appeals and the Ohio Supreme Court have ruled that the territory of a shorefront city extends to the low water mark.7 The Court of Appeals recently had the chance to rule on the ODNR’s use of the Ordinary High Water mark. Shorefront property owners challenged the issuance of a submerged land lease for Lake Erie. Beach Cliff, an adjacent property owner, contended that “there is no support for ODNR’s arbitrary assignment of 573.4’ or the ordinary high water (“OHW”) mark as the elevation from which a determination is made whether land is submerged.”8 The Ohio Court of Common Pleas had avoided ruling on whether the OHW was the appropriate boundary by finding the elevation level not to be the determinative factor. The trial court “found that the definition of submerged land is based upon the location of the natural shoreline.”9

The Court of Appeals sidestepped the issue. “Even if we were to assume that the OHW elevation of 573.4’ is the demarcation point for submerged lands, the record before us supports that the parties’ evidence is in dispute as to whether the property at issue is below this elevation mark.” The Court did recognize that “ODNR uses the OHW in determining whether land is submerged and whether a submerged land lease must be issued,” but made no ruling on whether the actions of the ODNR were appropriate. The Court of Appeals affirmed the judgment of the trial court, but on different grounds, stating “that there is no genuine issue of material fact regarding the issue of the presence of historic fill on the site of the beachfront property. This finding [by ODNR of the presence of historic fill] satisfies the definition of ‘territory’ contained in R.C. 1506.11 and likewise satisfies the requirements for the issuance of a submerged land lease on land subject to the state’s public trust.”10
The issuance of the submerged land lease was upheld by the trial court and affirmed by the Court of Appeals, without a determination regarding the appropriateness of the OHW. ODNR’s reliance on the OHW appears to have been upheld on a technicality – the ability of the courts to find another, acceptable ground for issuance of the leases.

Conclusion
For over a century, Ohio courts have recognized that certain waters and lands are held by the state in trust for the public. The public has a right to access these “public trust” areas to fish, for navigation, and sometimes for recreational purposes. Private littoral and riparian owners, however, have rights as well. Every state struggles to find a way to balance the public right of access with the rights of private owners. Currently under Ohio law, the boundary between public and private land on Lake Erie is the “southerly shore,” which is usually defined as the “natural shoreline.” H.B. 218 attempts to shift that line, among other things. Due to the potentially significant implications of H.B. 218, which is currently stalled in the Senate, the Law Center will continue to track this legislation as it moves through the Ohio Legislature.

Endnotes
1. Black’s Law Dictionary, 276 (6th Ed. 1990).
2. Coastal States Organization, Putting the Public Trust Doctrine to Work 1 (1997).
3. See Shively v. Bowlby, 152 U.S. 1, 58 (1894).
4. Oh. Rev. Code § 1506.10 (2003).
5. Office of the Attorney General of the State of Ohio, 1993 Op. Atty. Gen 128 at *15 (1993).
6. State ex rel. Squire v. Cleveland, 82 N.E.2d 709, 726 (Ohio 1948).
7. See City of Avon Lake v. Bird, 1974 Ohio App. LEXIS 3129 (Ohio App. 1974); Mitchell v. Cleveland Electric Illuminating Co., 30 Ohio St. 3d 92, 94 (Ohio 1987).
8. Beach Cliff Board of Trustees v. Ferchill, 2003 Ohio 2300, 2003 Ohio App. LEXIS 2132 at *10 (2003).
9. Id. at *12.
10. Id. at *16-17.