Strickland policy on Lake Erie raises questions about public’s right to walk the shore

Strickland policy on Lake Erie raises questions about public’s right to walk the shore

By Jack Shaner, Ohio Environmental Council

A controversial new policy ordered by Ohio Governor Ted Strickland has given sportsmen and women, beach visitors, and conservation leaders cause for concern over the future of one of Ohio’s most sensitive natural resources — the 312-mile shoreline of Lake Erie.

The controversy revolves around control of the strip of land between the water’s edge and the lake’s furthest natural landward reach (the “ordinary high water mark”) when this land is not covered by water.

Under Ohio law, shoreland located lakeward of the ordinary highwatermark is subject to government protection and public access, regardless of whether it is covered bywater on a given day.

Some private owners of upland property adjoining the coast contend that their deeds give them exclusive control over the coast—to the water’s edge and even beyond. Under the ODNR’s new policy, as ordered by Governor Ted Strickland:

  • The ODNR will accept all upland property deeds at face value, regardless of whether a deed recites a property boundary of the ordinary high water mark, the water’s edge, the low water mark, or even the international boundary with Canada—unless a deed’s boundary is found to be limited and/or unenforceable by a court of law.
  • A state permit will continue to be required before an upland property owner can build a dock, breakwall, condominium, or other structure along the lakeshore.
  • A state lease for any land that may be occupied by a lakeshore structure will no longer be required; instead, leases will be optional.
  • The ODNR no longer will be represented by the Ohio Attorney General in a lawsuit pending in Lake County that contests the State of Ohio’s ownership of the Lake Erie shore. Instead, ODNR will not contest supposed private ownership of the coast and will be represented by separate counsel.

The Strickland Administration’s new policy is aimed at accommodating the complaints of some of the estimated 5,000 owners of private upland property along the lake.

But the new policy has left sportsmen and women, and conservationists wondering about their rights and the rights of 11 million Ohioans to access and walk along the shoreline.

How vigorously will the Strickland-Fisher administration protect Ohio’s North Coast and its sensitive spawning grounds and coastal wetlands from commercial development?

Will the new administration defend the right of families and anglers to walk and fish along the dry shore?

Or will the Strickland-Fisher team allow the coast to become the exclusive domain of a few thousand privileged upland property owners, stripping access to the exposed bottomlands from their rightful owners, the 11 million people of Ohio?

While the Strickland-Fisher administration has withdrawn to the sidelines of this debate, an outspoken champion of the public’s interest in Lake Erie has emerged:Ohio Attorney GeneralMarc Dann. Attorney General Dann has argued forcefully in the pending court case that the State of Ohio has always owned the lakeshore below the ordinary highwatermark and that sportsmen and families in fact do have a legal right to walk below the ordinary high water mark of Lake Erie.

Ultimately, it may take the Ohio Supreme Court to resolve this debate.Meantime, you are encouraged to learnmore aboutwhat’s at stake and to express your concerns to Governor Strickland and Lt. Governor Fisher and your appreciation to Attorney General Marc Dann. For more information, go to www.ConservationOhio.org.

For more information, contact Jack Shaner, Ohio Environmental Council Public Affairs Director, 1207 Grandview Ave., Ste. 201, Columbus, OH 43212, (614) 487-7506, Jack@TheOEC.org

Michigan Shorelines Open to AllIn July 2005, Michigan’s Supreme Court confirmed that the public has the right to walk on the Great Lakes shoreline – specifically between the water’s edge and the ordinary high water mark. The complete decision can be found at http://courts.michigan.gov/supremecourt/Clerk/Opinions-04-05Term/126409.pdf. The decision upheld that the Great Lakes shoreline is a resource shared in common by the public and thus protected under the public trust doctrine for public access.

 

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