A Line In the Sand : Court Limits Ohio's Public Trust Doctrine

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SandBar 8:4, January, 2010 Recommended citation: Bowling, Terra, A Line in the Sand: Court Limits Ohio's Public Trust Doctrine , 8:4 SandBar 8 (2010). A Line In the Sand Court Limits Ohio's Public Trust Doctrine Terra Bowling, J.D. In August, an Ohio appellate court ruled that the water’s edge—not the ordinary high water mark—is the boundary between lands held in trust by the state and private lakefront property.1 The ruling prevents the public from enjoying traditional public trust activities above the water’s edge on the shores of Lake Erie in Ohio and contrasts with other states’ public trust laws. PTD The public trust doctrine is an English common law concept stemming from Roman law that states that tidelands and lands below navigable waters are held by the state in trust for the public’s interest. In Shively v. Bowlby,2 the U.S. Supreme Court recognized the English doctrine of the public trust in tidal waters and that pursuant to the equal footing doctrine, states entering the union would automatically receive land beneath navigable waters below the high water mark.3 Under the federal common law, the public trust doctrine encompasses waters and lands beneath navigable waters up to the “ordinary high water mark” (OHWM).4 Many coastal states have adopted the OHWM as the boundary line for applying the public trust doctrine. For example, in Glass v. Goekel, the Michigan Supreme Court ruled that pursuant to the public trust doctrine, the public had the right to walk on the lakeshore up to the OHWM. Pursuant to the equal footing doctrine, Ohio was granted title to lands along Lake Erie in trust up to OHWM upon statehood in 1803. Ohio passed the Fleming Act of 1917 codifying the state public trust doctrine.5 However, the Act does not define the boundary in terms of the OHWM, but refers to the terms “natural shoreline” and “southerly shore” in reference to the extent of state trust lands. The state administrative code defines shoreline as “the line of intersection of lake Erie with the beach or shore.”6 Shore is defined as the “land bordering the lake.”7 ODNR Asserts Ownership When the Ohio Department of Natural Resources (ODNR) began asserting ownership rights over the southern shore of Lake Erie up to the OHWM, several property owners filed suit. The landowners disputed ODNR’s assertion of trust ownership rights, the fact that the Department set the OHWM at 573.4 feet International Great Lakes Datum (IGLD), and the authority of ODNR to require landowners to lease land below the OHWM from the state. The trial court certified the property owners as a class and sought to determine the extent of the state of Ohio’s property rights. Two environmental groups intervened, arguing that the state held title to the area up to the OHWM in trust for the public. While the summary judgment motions were pending, the ODNR, acting with direction from the governor, filed a motion abandoning its assertion of authority and clarifying that it “no longer require[d] property owners to lease land contained within their presumptively valid deeds.” The court granted summary judgment in favor of the property owners stating “the State of Ohio has ownership in trust of the waters of Lake Erie and the lands beneath those waters landward as far as the water’s edge, but no farther.”8 The court rejected the uniform boundary line stating “that the law of proper definition of the boundary line for the public trust territory of Lake Erie is the water’s edge, wherever that moveable boundary may be at any given time, and that the location of this moveable boundary is a determination that should be made on a case-by-case basis.”9 The court also held that the lakefront owners have the right to exclude the public from walking or using the privately owned shores of Lake Erie above the water’s edge. Finally, the trial court’s ruling reformed the littoral owners’ deeds to the water’s edge. Appeal The appellate court first looked at both the Fleming Act and earlier Ohio Supreme Court decisions. The court cited one decision holding “… the boundary of land, in a conveyance calling for Lake Erie and Sandusky [B]ay, extends to the line at which the water usually stands when free from disturbing causes.”10 The appellate court noted that “none of the parties to this hard fought contest, nor we ourselves, have found any other syllabus law of the Supreme Court of Ohio defining where littoral owners’ property extends relative to Lake Erie. Other cases regarding littoral owners’ property rights merely referred to the “shoreline” or the “natural shoreline.” The environmental groups challenged the trial court’s ruling that the public trust is demarcated by the line the water of the lake touches at any given time. The plaintiffs argued that federal law, including the Shively decision and the Submerged Lands Act, requires the shoreline to be located at the high water mark. The court rejected these arguments, noting that the Shively court “specifically recognized that state law determined the scope of the public trust in land beneath navigable waters in this country.” And the SLA “recognizes that state law governs the determination of ownership in the land under the Act.” The court ruled that the claim regarding the Department’s placement of the OHWM at 573.4 feet IGLD was moot. During the course of the litigation ODNR had stopped enforcing this policy. Finally, the groups appealed the ruling that littoral property owners may exclude the public from using the lands below the high water mark of Lake Erie. The court recognized that under Ohio law, littoral owners have the right to exclude the public from their property. And, although the court recognized that the public does have the right to walk on the shoreline, the court explained that those rights are limited to “the area of the public trust.” Essentially, the public may walk along the lake, as long as their feet remain wet. Landowners’ Claims On appeal, the littoral landowners challenged the trial court’s finding that the boundary of the public trust territory is not the low water mark. The landowners had argued that “because the ‘shoreline’ is the line separating the water and the shore, and the ‘shore’ describes the land between high and low water marks, the common meaning of the ‘shoreline’ must be the low water mark.”11 The court declined to adopt the low water mark standard. Although the court agreed that the meaning of shore is “the land between low and high water marks,” it found that “this does not mean that the boundary of the territory for purposes of the public trust doctrine should be set at the low water mark. Instead, shoreline is the line of actual physical contact by a body of water with the land between the high and low water mark undisturbed and under normal conditions.”12 The property owners also appealed the trial court’s ruling reforming the littoral owners’ deeds to the water’s edge. On appeal, the court found that the reformation of the deeds was an error, since the issue went beyond the scope of class certification. Furthermore, the court found the issue was not properly before the trial court. Conclusion The court concluded that “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.”13 The ruling will likely be appealed. Endnotes 1. State ex rel. Merrill v. State, 2009 Ohio 4256 (Ohio Ct. App. Aug. 21, 2009). 2. Shivley v. Bowlby, 152 U.S. 1 (1894). 3. The Supreme Court made the public trust doctrine applicable to the non-tidal waters of the Great Lakes in Illinois R.R. Co. v. Illinois, 146 U.S. 387 (1892). 4. Shivley, 152 U.S. at 13. 5. Ohio Rev. Code Ann. § 1506.10-11 (2009). 6. Ohio Admin. Code 1501:6-10(U). 7. Id. 1501-6-10(T). 8. State ex rel. Merrill , 2009 Ohio 4256 at 9. 9. Id. at 10. 10. Sloan v. Biemiller, 34 Ohio St. 492 (1878). 11. State ex rel. Merrill, 2009 Ohio 4256 at 116. 12. Id. at 117. 13. Id. at *129.
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SandBar 8:4, January, 2010
Recommended citation: Bowling, Terra, A Line in the Sand: Court Limits Ohio's Public Trust Doctrine , 8:4 SandBar 8 (2010).

A Line In the Sand

Court Limits Ohio's Public Trust Doctrine

Terra Bowling, J.D.

In August, an Ohio appellate court ruled that the water’s edge—not the ordinary high water mark—is the boundary between lands held in trust by the state and private lakefront property.1 The ruling prevents the public from enjoying traditional public trust activities above the water’s edge on the shores of Lake Erie in Ohio and contrasts with other states’ public trust laws.

PTD
The public trust doctrine is an English common law concept stemming from Roman law that states that tidelands and lands below navigable waters are held by the state in trust for the public’s interest. In Shively v. Bowlby,2 the U.S. Supreme Court recognized the English doctrine of the public trust in tidal waters and that pursuant to the equal footing doctrine, states entering the union would automatically receive land beneath navigable waters below the high water mark.3 Under the federal common law, the public trust doctrine encompasses waters and lands beneath navigable waters up to the “ordinary high water mark” (OHWM).4 Many coastal states have adopted the OHWM as the boundary line for applying the public trust doctrine. For example, in Glass v. Goekel, the Michigan Supreme Court ruled that pursuant to the public trust doctrine, the public had the right to walk on the lakeshore up to the OHWM.
Pursuant to the equal footing doctrine, Ohio was granted title to lands along Lake Erie in trust up to OHWM upon statehood in 1803. Ohio passed the Fleming Act of 1917 codifying the state public trust doctrine.5 However, the Act does not define the boundary in terms of the OHWM, but refers to the terms “natural shoreline” and “southerly shore” in reference to the extent of state trust lands. The state administrative code defines shoreline as “the line of intersection of lake Erie with the beach or shore.”6 Shore is defined as the “land bordering the lake.”7

ODNR Asserts Ownership
When the Ohio Department of Natural Resources (ODNR) began asserting ownership rights over the southern shore of Lake Erie up to the OHWM, several property owners filed suit. The landowners disputed ODNR’s assertion of trust ownership rights, the fact that the Department set the OHWM at 573.4 feet International Great Lakes Datum (IGLD), and the authority of ODNR to require landowners to lease land below the OHWM from the state.
The trial court certified the property owners as a class and sought to determine the extent of the state of Ohio’s property rights. Two environmental groups intervened, arguing that the state held title to the area up to the OHWM in trust for the public. While the summary judgment motions were pending, the ODNR, acting with direction from the governor, filed a motion abandoning its assertion of authority and clarifying that it “no longer require[d] property owners to lease land contained within their presumptively valid deeds.”
The court granted summary judgment in favor of the property owners stating “the State of Ohio has ownership in trust of the waters of Lake Erie and the lands beneath those waters landward as far as the water’s edge, but no farther.”8 The court rejected the uniform boundary line stating “that the law of proper definition of the boundary line for the public trust territory of Lake Erie is the water’s edge, wherever that moveable boundary may be at any given time, and that the location of this moveable boundary is a determination that should be made on a case-by-case basis.”9 The court also held that the lakefront owners have the right to exclude the public from walking or using the privately owned shores of Lake Erie above the water’s edge. Finally, the trial court’s ruling reformed the littoral owners’ deeds to the water’s edge.

Appeal
The appellate court first looked at both the Fleming Act and earlier Ohio Supreme Court decisions. The court cited one decision holding “… the boundary of land, in a conveyance calling for Lake Erie and Sandusky [B]ay, extends to the line at which the water usually stands when free from disturbing causes.”10 The appellate court noted that “none of the parties to this hard fought contest, nor we ourselves, have found any other syllabus law of the Supreme Court of Ohio defining where littoral owners’ property extends relative to Lake Erie. Other cases regarding littoral owners’ property rights merely referred to the “shoreline” or the “natural shoreline.”
      The environmental groups challenged the trial court’s ruling that the public trust is demarcated by the line the water of the lake touches at any given time. The plaintiffs argued that federal law, including the Shively decision and the Submerged Lands Act, requires the shoreline to be located at the high water mark. The court rejected these arguments, noting that the Shively court “specifically recognized that state law determined the scope of the public trust in land beneath navigable waters in this country.” And the SLA “recognizes that state law governs the determination of ownership in the land under the Act.”
      The court ruled that the claim regarding the Department’s placement of the OHWM at 573.4 feet IGLD was moot. During the course of the litigation ODNR had stopped enforcing this policy.
      Finally, the groups appealed the ruling that littoral property owners may exclude the public from using the lands below the high water mark of Lake Erie. The court recognized that under Ohio law, littoral owners have the right to exclude the public from their property. And, although the court recognized that the public does have the right to walk on the shoreline, the court explained that those rights are limited to “the area of the public trust.” Essentially, the public may walk along the lake, as long as their feet remain wet.

Landowners’ Claims
On appeal, the littoral landowners challenged the trial court’s finding that the boundary of the public trust territory is not the low water mark. The landowners had argued that “because the ‘shoreline’ is the line separating the water and the shore, and the ‘shore’ describes the land between high and low water marks, the common meaning of the ‘shoreline’ must be the low water mark.”11 The court declined to adopt the low water mark standard. Although the court agreed that the meaning of shore is “the land between low and high water marks,” it found that “this does not mean that the boundary of the territory for purposes of the public trust doctrine should be set at the low water mark. Instead, shoreline is the line of actual physical contact by a body of water with the land between the high and low water mark undisturbed and under normal conditions.”12
The property owners also appealed the trial court’s ruling reforming the littoral owners’ deeds to the water’s edge. On appeal, the court found that the reformation of the deeds was an error, since the issue went beyond the scope of class certification. Furthermore, the court found the issue was not properly before the trial court.

Conclusion
The court concluded that “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.”13 The ruling will likely be appealed.

Endnotes
1.   State ex rel. Merrill v. State, 2009 Ohio 4256 (Ohio Ct. App. Aug. 21, 2009).
2.   Shivley v. Bowlby, 152 U.S. 1 (1894).
3.   The Supreme Court made the public trust doctrine applicable to the non-tidal waters of the Great Lakes in Illinois R.R. Co. v. Illinois, 146 U.S. 387 (1892).
4.   Shivley, 152 U.S. at 13.
5.   Ohio Rev. Code Ann. § 1506.10-11 (2009).
6.   Ohio Admin. Code 1501:6-10(U).
7. Id. 1501-6-10(T).
8. State ex rel. Merrill , 2009 Ohio 4256 at *9.
9.   Id. at *10.
10. Sloan v. Biemiller, 34 Ohio St. 492 (1878).
11. State ex rel. Merrill, 2009 Ohio 4256 at *116.
12. Id. at *117.
13. Id. at *129.