The Ohio Supreme Court earlier this month heard oral arguments in State ex rel. Merrill v. Ohio Department of Natural Resources, in which two lower courts have ruled that the public has no right to use the shore of Lake Erie above the water’s edge. Professor Ken Kilbert, Director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, has followed this case closely and wrote about the lower court decision in a previous guest post. Professor Kilbert has published a comprehensive article on this issue, “The Public Trust Doctrine and the Great Lakes Shores,” 58 Clev. St. L. Rev. 1 (2010) (available free online through SSRN) and previews the case looking at the recent oral arguments.

It is undisputed that the State of Ohio owns the bed of Lake Erie in trust for the public to use. Hotly disputed in State ex rel. Merrill v. Ohio Department of Natural Resources, however, is both the public’s right to use the shore of Lake Erie and the proper boundary between the state-owned bed and the privately owned uplands. In 2009, the Ohio Court of Appeals for the 11th District affirmed a Lake County Common Pleas Court decision holding that the water’s edge – as it exists moment to moment – serves as the boundary between privately owned lakefront property and the state-owned lakebed, and that lakefront owners can exclude the public from the privately owned shore above the water’s edge. These Ohio lower court opinions contrast sharply with the Michigan Supreme Court’s 2005 decision in Glass v. Goeckel, which held that the public trust doctrine affords the public a right to walk along even privately owned shores of the Great Lakes up to the ordinary high water mark (OHWM). The dispute was precipitated by the Ohio Department of Natural Resources (ODNR) claiming state ownership of the shore below the OHWM, and the courts held that lakefront owners can use the property down to the water’s edge without the need to obtain leases from ODNR.

Three attorneys argued before the Ohio Supreme Court in Merrill on Feb. 1. Stephen Carney, on behalf of the Attorney General of Ohio, argued in favor of a boundary at the OHWM: above the OHWM is privately owned, below the OHWM is owned by the state, and the public has the right to boat, fish and walk up to the OHWM pursuant to the public trust doctrine. Many of the justices’ questions to Mr. Carney focused on another issue – the Attorney General’s standing to pursue the case after ODNR abandoned its original position requiring lakefront owners to obtain leases for uses below the OHWM. Irrespective of how the standing issue is resolved, the Court should reach the merits of the case because intervenors Ohio Environmental Council and National Wildlife Federation (which ceded their oral argument time to the State) also appealed.

Attorney Homer Taft, himself a lakefront owner, urged that the boundary between state-owned lakebed and privately owned upland is the ordinary low water mark. The public trust doctrine, according to Mr. Taft, gives the public the right to use the waters of Lake Erie but not the beds above the low water mark. Attorney James Lang, counsel for the lakefront owners group, essentially asked the Court to affirm the lower court decisions setting the boundary for ownership and the public trust doctrine as the water’s edge. In addition to the parties’ briefs and oral arguments, the Court received at least a dozen amicus briefs on behalf of more than 30 interested persons and entities.

I learned long ago that it is foolhardy to predict how an appeal will be decided, especially based on the oral arguments. So I will close by offering my own view of what the law should be regarding the Ohio shore of Lake Erie. Pursuant to the equal footing and public trust doctrines, the State of Ohio acquired the land underlying Lake Erie up to the OHWM when it joined the United States and continues to hold that land in trust for the public to use for boating, fishing and other protected uses. Even if the State somehow relinquished title of the shore from the OHWM down to the water’s edge (I disagree), the state legislature has not relinquished the public trust in the shore below the OHWM. Therefore, the public should have the right to walk along the shore of Lake Erie in Ohio up to the OHWM, just as the public does along the shores of the Great Lakes in Michigan. For more analysis, see Kenneth Kilbert, The Public Trust Doctrine and the Great Lakes Shores, 58 Clev. St. L. Rev. 1 (2010), available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604025.