Ohio Comtemplates Elimination of Submerged Lands Leases

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

In November, at what appeared to be the tail end of an incredible controversy regarding the Ohio Coastal Management Program’s submerged lands leasing program, the Ohio Department of Natural Resources (ODNR) issued proposed rules to eliminate a portion of the program. According to ODNR’s website, the new rules would:

If the rule change is approved, homeowners with existing leases will be offered an opportunity to switch their leases for permits. New permits would be issued at a one-time, $50.00 rate. The Ohio Legislature’s Joint Committee on Agency Rule Review is currently reviewing the proposed rules.

A public hearing was held on January 4, 2005. According to the Toledo Blade, no one spoke in favor of the rule change at the hearing.2 The Ohio Lakefront Group (OLG), a vocal opponent of ODNR and the state’s current coastal management program, urged the Committee to reject the proposed rules, at least until the group’s court case is resolved. On May 28, 2004, OLG filed suit alleging “ONDR has unconstitutionally and unlawfully asserted ownership and possession of the private property of Ohio citizens abutting Lake Erie.”3 Over the years, the ODNR has claimed state ownership of all land lakeward of the high water mark. The OLG wants the court to declare that landowners along Lake Erie have fee title to the land between the high water mark and the legal boundaries of their property as established by their deeds, which might be the low water mark, the water’s edge, or something else entirely.

Legislation attempting to address this boundary issue died in a Senate committee last year. The original sponsor of H.B. 218, newly-elected state Senator Tim Grendell, is also opposing the rule change claiming the ODNR’s proposal “is merely another effort to continue to aggrandize their own authority, misrepresent Ohio law, and continue to shape policy inconsistent with the revised [Ohio] code and common law.”4 Representative Grendell intends to introduce a new version of H.B. 218 in the next legislative session.5

The Committee has 90 days to rule on the proposed rules and its decision is expected by the end of February. In the meantime, the OLG’s lawsuit continues to move forward; the Court of Common Pleas recently denied the State’s motion to dismiss. It is unclear how the lawsuit will turn out for the lakefront property owners and the state or whether Representative Grendell can get his bill passed this time around, but one thing is for certain, Ohio’s coastal managers are living in interesting times.

Endnotes
1. Ohio Coastal Management Program’s Proposed Rules website at
http://www.dnr.state.oh.us/Default.aspx?alias=www.dnr.state.oh.us/coastal .
2. Steve Murphy, Lakeshore Owners Oppose Rule Change, Toledo Blade, Jan. 5, 2005.
3. Complaint for Declaratory Judgment, Mandamus, and Other Relief at 2, State of Ohio ex rel. Robert Merill, Trustee, et. al. v. Ohio Department of Natural Resources (No. 04CV001080) (Court of Common Pleas 2004).
4. State Representative Tim Grendell, Press Release, Grendell Opposes DNR Rule Filing, 12/2/2004.
5. Id.