State ex rel. Merrill v. Ohio Dept. of Natural Resources

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[Cite as State ex rel. Merrill v. Ohio Dept. of Natural Resources, 2009-Ohio-4256.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE ex rel. ROBERT MERRILL, TRUSTEE, et al., HOMER S. TAFT, Intervening Plaintiff-Appellee/ Cross-Appellant, OPINION : Plaintiffs-Appellees/ Cross-Appellants, : CASE NO. 2008-L-007 : : : : L. SCOT DUNCAN, et al., : Intervening Plaintiffs-Appellees, : - vs : STATE OF OHIO, DEPARTMENT OF NATURAL RESOURCES, et al., : Defendants, : NATIONAL WILDLIFE FEDERATION, et al., Intervening DefendantsAppellants/Cross-Appellees. _________________________ STATE ex rel. ROBERT MERRILL, TRUSTEE, et al., : : : : : Plaintiffs-Appellees/ Cross-Appellants, HOMER S. TAFT, et al., Intervening Plaintiffs-Appellees, - vs - : : : CASE NO. 2008-L-008 STATE OF OHIO, DEPARTMENT OF NATURAL RESOURCES, et al., : : Defendants, : STATE OF OHIO, : Defendant-Appellant/ Cross-Appellee. : Civil Appeal from the Court of Common Pleas, Case No. 04 CV 001080. Judgment: Modified and affirmed as modified. Fritz E. Berckmueller and James F. Lang, Calfee, Halter & Griswold, L.L.P., 1400 Keybank Center, 800 Superior Avenue, Cleveland, OH 44114-2688 (For PlaintiffsAppellees/Cross-Appellants). Homer S. Taft, pro se, 20220 Center Ridge Road, #300, P.O. Box 16216, Rocky River, OH 44116 (Intervening Plaintiff-Appellee/Cross-Appellant). L. Scot Duncan, 1530 Willow Drive, Sandusky, OH 44870 (For Intervening PlaintiffsAppellees). Neil S. Kagan, 213 West Liberty Street, #200, Ann Arbor, MI 48104 and Peter A. Precario, Annex, #100, 326 South High Street, Columbus, OH 43215 (For Intervening Defendants-Appellants/Cross-Appellees). Nancy Hardin Rogers, Attorney General, State Office Tower, 17th Floor, 30 East Broad Street, Columbus, OH 43215-3428; Cynthia K. Frazzini and John P. Bartley, Assistant Attorneys General, 2045 Morse Road, Bldg. D-2, Columbus, OH 43229 (For Defendant-Appellant/Cross-Appellee). COLLEEN MARY O TOOLE, J. {¶1} The issue before us in this case is one of first impression, concerning title to the lands below the ordinary high water mark of Lake Erie. Lake Erie is a non-tidal, navigable body of water, part of which lies within the territorial boundaries of the state of Ohio. The natural shoreline of Lake Erie extends approximately 262 miles, within the 2 eight counties of Lucas, Ottawa, Sandusky, Erie, Lorain, Cuyahoga, Lake, and Ashtabula. {¶2} The state of Ohio, through the Ohio Department of Natural Resources ( ODNR ), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group,1 ( OLG ), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed. {¶3} Procedural History {¶4} May 28, 2004, OLG, Robert Merrill, and other individuals owning real property abutting Lake Erie, filed a lawsuit (Case No. 04CV001080) in the Lake County Court of Common Pleas against ODNR, ODNR s director, and the state of Ohio, for declaratory judgment, mandamus, and other relief. Immediately thereafter, on said date, Homer S. Taft, L. Scot Duncan and Darla J. Duncan filed a complaint (Case No. 1. Ohio Lakefront Group is a duly formed non-profit corporation which represents owners of littoral property on Lake Erie. 3 04CV001081) in the Lake County Court of Common Pleas against the same defendants, containing nearly identical factual allegations and seeking similar relief. {¶5} July 2, 2004, an amended complaint seeking certification as a class action and for declaratory judgment, mandamus, and other relief was filed in Case No. 04CV001080. August 12, 2004, the trial court consolidated Case Nos. 04CV001080 and 04CV001081. {¶6} February 23, 2005, ODNR and the state of Ohio filed an answer, a counterclaim, and a cross-claim against the United States of America and the United States Army Corps of Engineers. The counterclaim sought a declaration that the state of Ohio owns and holds in trust for the people of Ohio the lands and water of Lake Erie up to the natural location of the ordinary high water mark within the territorial boundaries of the state, subject only to the paramount authority retained by the United States for the purposes of commerce, navigation, national defense, and international affairs. Also, a declaration was sought that the state of Ohio has owned and held those lands and waters in trust since statehood. {¶7} This case was removed to the United States District Court for the Northern District of Ohio on March 28, 2005, on the motion of the United States of America and the United States Army Corps of Engineers. The federal case was dismissed on April 14, 2006, when the federal district court found that neither the federal defendants nor the federal questions were properly before it. Consequently, the case was remanded to the court of common pleas. 4 {¶8} Class Certification {¶9} June 8, 2006, the parties filed a notice of joint stipulation to class certification on count one of the first amended complaint, which sought a declaration regarding the extent of the state of Ohio s property rights. Counts two and three of the complaint, which deal with constitutional takings issues, were reserved pending the outcome of the declaratory judgment action. The trial court certified the following group of persons as a class for purposes of pursuing a declaratory judgment action: {¶10} *** all persons, as defined in R.C. 1506.01(D), excepting the State of Ohio and any state agency as defined in R.C. 1.60, who are owners of littoral property1 bordering Lake Erie (including Sandusky Bay and other estuaries previously determined to be a part of Lake Erie under Ohio law) within the territorial boundaries of the State of Ohio ***. To the extent that governmental entities are included in the class, they are included solely in their proprietary capacity as property owners and not for any purpose or capacity implicating their governmental authority or jurisdiction. 1. The parties have stipulated that upland property is defined as real property bordering a body of water and that, in Ohio, littoral property is defined as upland property that borders an ocean, sea, lake, or a bay of any of these water bodies, as opposed to riparian property which is defined as upland property that borders a river, stream, or other such watercourse. {¶11} The class certification order found the following three questions of law common to the class: {¶12} (1) What constitutes the furthest landward boundary of the territory as that term appears in R.C. 1506.10 and 1506.11, including, but not limited to, interpretation of the terms southerly shore in R.C. 1506.10, waters of Lake Erie in R.C. 1506.10, lands presently underlying the waters of Lake Erie in R.C. 1506.11, 5 lands formerly underlying the waters of Lake Erie and now artificially filled in R.C. 1506.11, and natural shoreline in R.C. 1506.10 and 1506.11. {¶13} (2) If the furthest landward boundary of the territory is declared to be the natural location of the ordinary high water mark as a matter of law, may that line be located at the present time using the elevation of 573.4 feet IGLD (1985), and does the State of Ohio hold title to all such territory as proprietor in trust for the people of the State. {¶14} (3) What are the respective rights and responsibilities of the class members, the State of Ohio, and the people of the State in the territory. {¶15} Intervenors {¶16} Thereafter, the trial court allowed two groups to intervene: (1) Homer Taft and L. Scot Duncan, members of the class, and (2) the National Wildlife Federation ( NWF ) and the Ohio Environmental Council ( OEC ), environmental organizations whose purpose is to protect the rights of their members to make recreational use of the shores and waters of Lake Erie. NWF and OEC assert that the state holds the area of the territory of the waters of Lake Erie in trust for the public up to the ordinary high water mark. {¶17} February 13, 2007, the city of Cleveland filed a motion to opt out of the class, which motion was held in abeyance pending further order of the trial court. {¶18} Overview of Motions for Summary Judgment {¶19} A motion for summary judgment was filed on behalf of the state of Ohio, Department of Natural Resources, its director, and the state, by the Ohio Attorney General. In this motion, the state advanced three arguments: 6 {¶20} (1) As a matter of law, the furthest landward boundary of the territory as that term appears in R.C. 1506.10 and 1506.11, is the ordinary high water mark, and the State of Ohio holds title to all such territory as proprietor in trust for the people of the state; {¶21} (2) The furthest landward boundary of the territory is the ordinary high water mark as a matter of law, and that line may be located at the present time using the elevation of 573.4 feet IGLD (1985); and {¶22} (3) The rights and responsibilities of littoral owners in their upland property, as well as the respective rights and responsibilities of the federal government, the State of Ohio, the public, and the littoral owners in the territory, have long been settled in state and federal law, as has the hierarchy of those rights. {¶23} In their motion for summary judgment, NWF and OEC concurred with and affirmatively adopted the state s position. {¶24} OLG asserted that under Ohio s case law, public trust rights in Lake Erie, extend no farther than the actual waters and those public rights do not extend to the shores or uplands. Further, OLG maintained that shoreline cannot be defined as the ordinary high water mark, for this boundary would run afoul of case law, opinions authored by the Ohio Attorney General, ODNR s own rules as set out in the Ohio Administrative Code, and would violate the rights of littoral property owners. OLG alleged that in locating the ordinary high water mark, ODNR unilaterally adopted the Army Corps of Engineers estimate of 573.4 feet IGLD (1985), which the Corps adopted for regulatory purposes unrelated to the establishment of boundaries between private property and public trust property. 7 {¶25} In their motion for summary judgment, Taft and Homer argued that in determining this case, the trial court was required to consider the historical record, which was extensively set forth in their brief and attachments. {¶26} Trial Court s Ruling on Motions for Summary Judgment {¶27} In ruling on the motions for summary judgment, the trial court stated: {¶28} (1) each owner of Ohio real estate that touches Lake Erie owns title lakeward as far as the water s edge; (2) if the lakeside owner s deed contains a legal description that extends into the lake beyond the water s edge, then that legal description is hereby reformed so that the legal description ends at the water s edge; (3) likewise, 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 [sic]. With respect to Lake Erie, this is the boundary of the territory that is subject to the regulatory authority of the State of Ohio s Department of Natural Resources; and (4) the lakeside landowner also has littoral rights, such as the right to wharf out to navigable waters, and those littoral rights extend into the lake as an incident of titled ownership of property adjoining the lake. {¶29} The trial court further concluded: {¶30} Defendants-Respondents and Intervening Defendants have failed, as a matter of law, to show that the landward boundary of the public trust territory in Ohio along the Lake Erie shore is the Ordinary High Water Mark of 573.4 IGLD (1985), and Plaintiffs-Relators and Intervening Plaintiffs have failed to show that the lakeward boundary of the public trust territory in Ohio along the Lake Erie shore is the Ordinary Low Water Mark. The court declares that the law of Ohio is that the proper definition of 8 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. {¶31} The court s decision does not attempt to list or comprehensively define all of the littoral rights of landowners of Ohio property adjoining Lake Erie, preferring instead to have those rights determined on a case-by-case basis. (Emphasis sic.) {¶32} Standard of Review {¶33} In order for a motion for summary judgment to be granted, the moving party must prove: {¶34} ***(1) [N]o genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. (Citation omitted.) {¶35} Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of facts, if any, *** show that there is no genuine issue as to any material fact ***. Civ.R. 56(C). (Emphasis added.) Material facts are those that might affect the outcome of the suit under the governing law of the case. Turner v. Turner (1993), 67 Ohio St.3d 337, 340, quoting Anderson v. Liberty Lobby, Inc., (1986), 477 U.S. 242, 248. 9 {¶36} If the moving party meets this burden, the nonmoving party must then provide evidence illustrating a genuine issue of material fact, pursuant to Civ.R. 56(E). Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Civ.R. 56(E), provides: {¶37} When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party s pleadings, but the party s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party. (Emphasis added.) {¶38} Summary judgment is appropriate pursuant to Civ.R. 56(E), if the nonmoving party does not meet this burden. {¶39} Appellate courts review a trial court s grant of summary judgment de novo. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine if as a matter of law no genuine issues exist for trial. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 383, citing Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116. {¶40} Ohio s Standing {¶41} Before considering the issues, we must ascertain whether the state of Ohio has standing to participate in this appeal. We conclude it does not. {¶42} On July 16, 2007, ODNR, acting with the consent and direction of Governor Strickland, filed a response to the then pending motions for summary judgment stating that ODNR will discharge its statutory duties and will adopt or enforce 10 administrative rules and regulatory policies with the assumption that the lakefront owners deeds are presumptively valid. In addition, ODNR asserted that while it would still require construction permits for structures that may impact coastal lands, it no longer require[d] property owners to lease land contained within their presumptively valid deeds[,] and that it must and should honor the apparently valid real property deeds of the plaintiff-relator lakefront owners unless a court determines that the deeds are limited by or subject to the public s interest in those lands or are otherwise defective or unenforceable. {¶43} Standing is defined at its most basic as (a) party s right to make a legal claim or seek judicial enforcement of a duty or right. Black s Law Dictionary (8th Ed.2004) 1442. Before an Ohio court can consider the merits of a legal claim, the person or entity seeking relief must establish standing to sue. Ohio Contrs. Assn. v. Bicking (1994), 71 Ohio St.3d 318, 320, ***. (T)he question of standing depends upon whether the party has alleged such a personal stake in the outcome of the controversy, as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. (Citations omitted.) State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973), 35 Ohio St.2d 176, 178-179, ***, quoting Sierra Club v. Morton (1972), 405 U.S. 727, 732, ***, quoting Baker v. Carr (1962), 369 U.S. 186, 204, ***, and Flast v. Cohen (1968), 392 U.S. 83, ***. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007Ohio-5024, at ¶27. (Parallel citations omitted.) {¶44} The Ohio Attorney General may only act at the behest of the governor, or the General Assembly. R.C. 109.02. In this case, the attorney general represented the 11 state due to the activities of the ODNR, which department is under the authority of the governor, in whom the constitution vests the supreme executive power. Section 5, Article III, Ohio Constitution. The governor has ordered ODNR to cease those activities that made it a party to the action. We find no authority for the attorney general to prosecute this matter on his own behalf. We conclude that the state of Ohio no longer has standing in this matter, and order its assignments of error and briefs stricken. {¶45} Appellants /Cross-Appellees Assignments of Error {¶46} NWF and OEC2 assert the following assignments of error: {¶47} [1.] The trial court erred in holding that the public trust in Lake Erie is demarcated by the line the water of the lake touches at any given time. {¶48} [2.] The trial court erred in holding that the Ohio Department of Natural Resources may not use the IGLD elevation to establish the high water mark of Lake Erie. {¶49} [3.] The trial court erred in holding that littoral property owners may exclude the people from using the lands below the high water mark of Lake Erie. {¶50} OLG s and Taft s Cross-Assignments of Error: {¶51} OLG avers the following cross-assignments of error: {¶52} [1.] The Trial Court Erred in Finding that the Boundary of the Territory is Not the Low Water Mark. {¶53} [2.] The Trial Court Erred In Reforming All Littoral Property Deeds to the Water s Edge. {¶54} Taft asserts the following cross-assignments of error: 2. NWF and OEC filed a joint brief in the instant case. 12 {¶55} [1.] INTERVENTION THE [TRIAL] COURT OF [NWF] AND ERRED [OEC] IN AS PERMITTING DEFENDANTS THE AND COUNTERCLAIMANTS, AS THEY PRESENTED NO JUSTICIABLE CLAIM AGAINST ANY PARTY, AND THEIR APPEAL SHOULD BE DISMISSED. {¶56} [2.] THE [TRIAL] COURT ERRED IN REFORMING THE DEEDS OF PRIVATE PROPERTY OWNERS[.] {¶57} [3.] THE [TRIAL] COURT ERRED IN FAILING TO DECLARE THE LITTORAL RIGHTS OF PRIVATE PROPERTY OWNERS ALONG LAKE ERIE. {¶58} Applicable Law {¶59} Prior to analyzing the parties respective assignments and crossassignments of error, a brief summary of Ohio case law, statutes, rules and regulations regarding the rights of littoral property owners along Lake Erie is in order. For a complete history of the development of littoral property rights in the Great Lakes states, we can only advise the reader to study the immensely scholarly opinion of the trial court, attached hereto as an appendix. {¶60} We commence with the lead case of Sloan v. Biemiller (1878), 34 Ohio St. 492, a quiet title action regarding property on Cedar Point. The Supreme Court of Ohio held, at paragraph four of the syllabus: {¶61} Where no question arises in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation, the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to 13 the line at which the water usually stands when free from disturbing causes. (Emphasis added.) {¶62} The Sloan court derived this definition from the opinion of the Illinois Supreme Court in Seaman v. Smith (Ill. 1860), 24 Ill. 521, and quoted that case with approbation in the body of its opinion. Sloan at 512-513. We further note 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. Consequently, we find this extended quote from Seaman illuminating: {¶63} This record presents the question as to what answers the call for Lake Michigan, as a boundary line, in the various deeds in a chain of title, held by the plaintiff below. If high water mark is the point at which his land terminates, then this judgment should be reversed; but if, on the contrary, the line where the water usually stands when unaffected by storms and other disturbing causes, is the boundary, then the judgment must be affirmed. *** The great lakes of the north, present questions affecting riparian rights, that are different from those arising under boundaries on the sea, upon rivers, or other running streams. They have neither appreciable tides nor currents, nor are they affected, like running streams, by rises and falls produced by a wet or dry season. Yet the rules that govern boundaries on the ocean, govern this case. {¶64} A grant giving the ocean or a bay as the boundary, by the common law, carries it down to ordinary high water mark. *** The doctrine, it is believed, is well settled, that the point at which the tide usually flows is the boundary of a grant to its shore. As the tide ebbs and flows at short and regular recurring periods, to the same 14 points, a portion of the shore is regularly and alternately sea and dry land. This being unfit for cultivation or other private use, is held not to be the subject of private ownership, but belongs to the public. When the adjacent owner s land is bounded by the sea or one of its bays, the line to which the water may be driven by storms, or unusually high tides, is not adopted as the boundary. On the contrary, the ordinary high water mark indicated by the usual rise of the tide, is his boundary. {¶65} The principle, however, which requires that the usual high water mark is the boundary on the sea, and not the highest or lowest point to which it rises or recedes, applies in this case, although this body of water has no appreciable tides. Here, as there, the highest point to which storms or other extraordinary disturbing causes may drive the water on the shore, should not be regarded as the point where the owner s rights terminate, nor yet should it not be extended to the lowest point to which it may recede from like disturbing causes, But (sic) it should be at that line where the water usually stands when unaffected by any disturbing cause. Seaman, supra, at 524-525. (Citation omitted.) {¶66} In State v. Cleveland & Pittsburgh RR. Co. (1916), 94 Ohio St. 61, the Supreme Court of Ohio acknowledged the public trust doctrine i.e., that the state holds the waters and subaqueous lands of Lake Erie in perpetual trust for the people of the state, while littoral owners retain a right to wharf out from the shore to the lake s navigable waters. Cf. id., at 79-83. However, the court did not define where the public trust physically commenced, merely using the term shore. Id. at 68, 79. {¶67} The Cleveland & Pittsburgh court further called upon the legislature to codify the public trust doctrine, which the General Assembly did the following year, with 15 passage of the Fleming Act, presently codified at R.C. Chapter 1506. However, present R.C. 1506.10, defining the state s rights in Lake Erie, merely states that they commence at the lake s southerly shore or natural shoreline. R.C. 1506.11(A), defining the extent of the public trust Territory, again merely refers to the natural shoreline. {¶68} In State ex rel. Duffy v. Lakefront East Fifty-Fifth Street Corp. (1940), 137 Ohio St. 8, the Supreme Court of Ohio determined that the Fleming Act, as supplemented by the Abele Act of 1925, did not alter the common law of accretion as it applied to littoral property owners along Lake Erie. Id. at 11-13. The court consistently used the term shore line, without further description, in referencing where the public trust territory commenced. Id. at 9, 11, 12. {¶69} Finally, in State ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, the Supreme Court of Ohio was presented with a dispute regarding whether construction of the east shoreway in Cleveland, Ohio, impinged upon the rights of certain littoral property owners. Id. at 316-321. Throughout the body of the opinion, the court generally used the term natural shore line to describe where the property of littoral owners cease, and the public trust in Lake Erie commences. Id. at 317, 319-322, 334, 337, 339. Notably for the matters at issue herein, the court, in describing the briefs filed on the case, states, at 322: {¶70} There is a full discussion of the common-law rule to the effect that the title to subaqueous and marginal lands of tidal and navigable waters in Great Britain is in the crown, that the law with reference to tidal waters in Great Britain applies not only to tidal waters in the United States but likewise is applicable to the waters of Lake Erie, and that 16 the title to subaqueous and filled-in lands beyond high water mark is in the state bordering upon such waters. (Emphasis added.) {¶71} Further, at 337, the Squire court observed: The littoral owners of the upland have no title beyond the natural shore line; they have only the right of access and wharfing out to navigable waters. {¶72} Moreover, while we recognize that an opinion authored by the Attorney General is persuasive authority and not binding on this court, Gen. Dynamics Land Sys., Inc. v. Tracy (1998), 83 Ohio St.3d 500, 504, the Ohio Attorney General has issued an opinion regarding this matter, which concludes, [t]he land that lies above the natural shoreline of Lake Erie belongs to the littoral owner. 1993 Ohio Atty.Gen.Ops. No. 93-025, at 15. The attorney general further remarked: The shoreline is (t)he line marking the edge of a body of water. The American Heritage Dictionary 1133 (2d college ed. 1985). Naturally, the shoreline of a body of water is in a constant state of change. Id. at 11. {¶73} Further, the Ohio Administrative Code, Chapter 1501-6, Lease of Lake Erie Submerged Lands, defines the term shoreline as the line of intersection of lake Erie with the beach or shore. OAC 1501-6-10(U). Shore is defined as the land bordering the lake[,] OAC 1501-6-10(T) and beach means [a] zone of unconsolidated material that extends landward from the shoreline to the toe of the bluff or dune. Where no bluff or dune exists, the landward limit of the beach is either the line of permanent vegetation or the place where there is a marked change in material or physiographic form. OAC 1501-6-10(E). 17 {¶74} Having summarized the leading authorities bearing on the questions at hand, we turn to the assignments and cross-assignments of error. {¶75} Assignments of Error of NWF and OEC {¶76} By their first assignment of error, NWF and OEC assert the trial court erred in applying dictionary definitions to determine what the natural shoreline is under R.C. 1506.10 and 1506.11(A). The first issue they raise is that federal law requires that the Lake Erie shoreline be defined as the high water mark. In support of this contention, they cite to the decision of the United States Supreme Court in Shively v. Bowlby (1894), 152 U.S. 1, recognizing both the equal-footing doctrine and the public trust doctrine, for the proposition that states upon entering the Union, automatically receive land beneath navigable waters below the high water mark.3 {¶77} We respectfully reject this argument. The Shively court merely noted that the public trust doctrine, in England, set the border of the crown s trust for the benefit of the public at the high water mark. The Shively court specifically recognized that state law determined the scope of the public trust in land beneath navigable waters in this country. {¶78} Next, NWF and OEC turn to federal statutory law. Citing to the Submerged Lands Act ( SLA ), 43 U.S.C.S. 1301-1315, they maintain that Congress confirmed a uniform boundary at the ordinary high water mark for all states. Specifically, they refer to 43 U.S.C.S 1311(a), which provides: {¶79} *** [T]itle to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands 3. The equal-footing doctrine holds that those states entering the Union following the establishment of the United States have the same rights as those originally forming the Union. 18 and waters, and *** the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are hereby, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof[.] {¶80} For non-tidal waters, lands beneath navigable waters includes lands and water *** up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction[,] 43 U.S.C.S. 1301(a)(1), and all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined[.] 43 U.S.C.S. 1301(a)(3). {¶81} We find this reliance upon the SLA to be misplaced. As the United States Supreme Court has observed, the effect of the SLA was merely to confirm the States title to the beds of navigable waters within their boundaries as against any claim of the United States Government. Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co. (1977), 429 U.S. 363, 372, fn. 4. Further, state law governs the determination of ownership in the land under the Act, as evidenced by the provision under the law of the respective States in which the land is located *** [.] California ex rel. State Lands Comm. v. United States (1982), 457 U.S. 273, 288. See, also, Corvallis Sand & Gravel Co., at 372, fn. 4 (discussing Bonelli Cattle Co. v. Arizona (1973), 414 U.S. 313). {¶82} This issue lacks merit. {¶83} By their second issue under the first assignment of error, NWF and OEC argue that, in defining the public trust territory in Lake Erie as commencing at anything 19 below the high water mark, land is removed from the public trust, which is strictly forbidden. See, e.g., Cleveland & Pittsburgh RR. Co., supra, at paragraph six of the syllabus. In support of this, they cite to the Fleming Act, and the decisions of the Supreme Court of Ohio in Cleveland & Pittsburgh RR. Co., and Squire. They contend that these decisions specifically incorporate the United States Supreme Court s decision in Shively, recognizing the English doctrine of the public trust in tidal waters, as well as that court s decision in Illinois Cent. RR. Co. v. Illinois (1892), 146 U.S. 387, 452, making the public trust doctrine applicable to the non-tidal waters of the Great Lakes. Consequently, they argue that any interpretation of the Fleming Act requires the courts of Ohio to recognize the high water mark as the boundary of the public trust in Lake Erie. {¶84} We respectfully reject this argument. Just as the public trust in Lake Erie cannot be abandoned, it cannot be improperly extended in violation of littoral property owners rights. The Shively court specifically recognized that state law defines the boundary of the public trust in navigable waters. We find that any reference by the Supreme Court of Ohio to the high water mark acting as the boundary of the public trust in navigable waters in Cleveland & Pittsburgh RR. Co., and Squire, is simply a reference to the history of the public trust doctrine, as imported from English law not a finding as to the boundary of that trust in Lake Erie. {¶85} The second issue lacks merit, as does the assignment of error. {¶86} By their second assignment of error, NWF and OEC protest the trial court s determination that ODNR cannot use the IGLD to establish the high water mark for Lake Erie. 20 {¶87} As ODNR is no longer enforcing this policy, we find this assignment of error moot. {¶88} By their third assignment of error, NWF and OEC contend the trial court erred in determining that littoral property owners may exclude the public from lands below the high water mark of Lake Erie. By his third cross-assignment of error, Taft asserts the trial court erred in failing to declare the rights of littoral property owners. As the matters are interrelated, for purposes of brevity, we consider them together. We respectfully find each to be without merit. {¶89} Nearly 130 years ago, the Supreme Court of Ohio observed that littoral owners have the right to exclude the public from their property. Sloan, supra. We appreciate and respect the fact that, in Ohio, the public has broad access to navigable waters, including all legitimate uses, be they commercial, transportational, or recreational. State ex rel. Brown v. Newport Concrete Co. (1975), 44 Ohio App.2d 121, 128. See, also, R.C. 1506.10 and 1506.11(G). However, contrary to NWF s and OEC s assertion, the judgment of the trial court does not abolish the rights of the public to walk along Lake Erie. In fact, the public retains the same rights to walk lakeward of the shoreline along Lake Erie, but these rights have always been limited to the area of the public trust (i.e., on the lands under the waters of Lake Erie and lakeward of the shoreline). Therefore, the public does not interfere with littoral property rights when their recognized, individual rights are exercised within the public trust; that is, lakeward of the shoreline as defined herein. {¶90} The littoral owner has certain well-defined rights incident to the ownership of shore land. Littoral owners may exercise these rights upon the soil and navigable 21 waters lakeward of the shoreline of Lake Erie within the territorial boundaries of the state, subject to regulation and control by the federal, state and local governments. Those rights include: (1) the right to wharf out to navigable waters to the point of navigability for the purposes of navigation; (2) the right of access to the navigable waters of Lake Erie; and (3) the right to make reasonable use of waters in front of or flowing past their lands. {¶91} In its judgment entry, the trial court recognized the above enumerated rights of littoral owners. Additionally, the trial court noted that it had not been asked to define categorically all of the littoral rights that are recognized under Ohio law for land adjoining Lake Erie. Accordingly, notwithstanding the argumentation of the parties, the court declines to make a comprehensive, categorical declaration of what those littoral rights are with respect to all members of the class. Such questions are probably best left to the resolution of specific disputes involving individual parties who are asserting such littoral rights with respect to a specific parcel of land, according to specific deed language, and pertaining to a specific area of the Lake Erie coastline. {¶92} The trial court generally recognized the special rights that littoral owners possess, incident to owning shore land. However, it appreciated that the application of such rights to a particular littoral owner or parcel of land would best be resolved on a case-by-case basis. The trial court could not conceivably anticipate every possible scenario with respect to all members of the class. We find that the trial court properly declared the rights of the littoral owners, while acknowledging that individual members of the class may have to adjudicate a specific, individualized question. 22 {¶93} NWF s and OEC s third assignment of error, as well as Taft s third crossassignment of error, lack merit. {¶94} Cross-Assignments of Error of OLG {¶95} We next turn to OLG s first cross-assignment of error, which states: [t]he trial court erred in finding that the boundary of the territory is not the low water mark. {¶96} OLG first argues that common usage dictates when interpreting the term natural shoreline. The 1916 edition of Webster s New International Dictionary, relied upon by the trial court, defined shoreline as the line of contact of a body of water with the shore. OLG states that based upon the 1916 Webster s New International Dictionary, shore is defined as the land between low and high water marks. As such, 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. We find OLG s analysis to be flawed. {¶97} First, the trial court found that the terms shore and beach are synonyms in the context of the issues in the instant case and, as a matter of law, they mean the land between low and high water marks. Since no party objected and we find this definition to be consistent with other dictionary definitions, as well as definitions adopted by Ohio courts and administrative agencies, we hold that shore is the land between low and high water marks. 4 However, this does not mean that the boundary of the territory for purposes of the public trust doctrine should be set at the low water 4. See, e.g., Busch v. Wilgus (Aug. 21, 1922), 1922 Ohio Misc. LEXIS 272, at 14, stating [t]he term shore includes and designates the land lying between the high and low water mark[;] OAC 1501-610(T) defining shore as the land bordering the lake. Black s Law Dictionary defines shore as the [l]and lying between the lines of high- and low-water mark; lands bordering on the shores of navigable waters below the line of ordinary high water. Black s Law Dictionary (8 Ed.2004) 1412. 23 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. See, e.g., Sloan, supra, at paragraph four of the syllabus. {¶98} In addition, OLG cites to Wheeler v. Port Clinton (Sept. 16, 1988), 6th Dist. No. OT-88-2, 1988 Ohio App. LEXIS 3702, and Mitchell v. Cleveland Elec. Illuminating Co. (1987), 30 Ohio St.3d 92, to support the proposition that the natural shoreline is the low water mark. However, we find Wheeler and Mitchell to be inapposite to the instant situation. {¶99} In Wheeler, the appellant, a swimmer who sustained injuries while swimming off of City Beach in Port Clinton, Ohio, sought review of the trial court s decision in granting the city s motion for summary judgment. Wheeler, supra, at 1-2. In reviewing the decision of the trial court, the Sixth District Court of Appeals stated, [t]he north territorial boundary of Port Clinton extends to, but not beyond, the Lake Erie shoreline. Id. at 3. Although OLG attempts to utilize this decision as one that supports the low water mark as the boundary of the territory, we disagree. As we have previously concluded, the shoreline is not the low water mark. Furthermore, the main issue before the Wheeler court was whether the city was liable for appellant s injuries, not the definition of the public trust boundary. {¶100} Similar to Wheeler, the issue before the court in Mitchell was not the definition of the public trust doctrine. In Mitchell, [t]he sole question before [the Supreme Court of Ohio was] whether [the] appellee s opening statement and the allegations of the amended complaint state a cause of action against Avon Lake. Mitchell, supra, at 93. In its discussion of whether Avon Lake owed a duty to 24 decedents, the Supreme Court observed that it was undisputed that Avon Lake s territorial limits extend only to the low water line of Lake Erie. Id. at 94. In making this statement, the Supreme Court was merely observing that the parties chose not to dispute the low water mark as the proper boundary; it clearly was not a legal conclusion of the Court. {¶101} We, therefore, decline to adopt the low water mark to be the boundary of the public trust territory. {¶102} Since OLG s second and Taft s second cross-assignments of error are interrelated, we consider them in a consolidated analysis. {¶103} We agree with OLG s and Taft s assertion that the trial court erred in reforming the deeds. First, in reforming the deeds, the trial court went beyond the scope of the class certification. Further, since this issue was not before the trial court, the parties were not afforded the opportunity to argue their positions for the trial court s consideration. Reformation of the littoral owner s deeds could potentially have an impact on title insurance policies and the littoral owners rights established by the Fleming Act or other legislation. By reforming all of the littoral owners deeds to the water s edge, all parties were deprived of the opportunity to be notified of each other s arguments, and to respond to those arguments, which is contrary to traditional notions of due process. As a result, we vacate this portion of the trial court s judgment entry. {¶104} Taft s First Cross-Assignment of Error {¶105} As Taft s first cross-assignment of error, he alleges NWF and OEC presented no justiciable claim against any party and, thus, the trial court erred in permitting their intervention. 25 {¶106} Ohio courts should liberally construe Civ.R. 24 in favor of intervention. Indiana Ins. Co. v. Murphy, 165 Ohio App.3d 812, 2006-Ohio-1264, at ¶5. The granting or denial of a motion to intervene rests with the discretion of the trial court and will not be disturbed on appeal absent the showing of an abuse of discretion. Peterman v. Pataskala (1997), 122 Ohio App.3d 758, 761. (Citation omitted.) The term abuse of discretion connotes more than an error of law or judgment; it implies that the court s attitude is unreasonable, arbitrary or unconscionable. (Citations omitted.) Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. {¶107} Pursuant to Civ.R. 24, there are two avenues of intervention: intervention of right and permissive intervention. Civ.R. 24(A)(2) sets forth the relevant requirements for intervention of right: {¶108} Upon timely application anyone shall be permitted to intervene in an action: *** (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant s ability to protect that interest, unless the applicant s interest is adequately represented by existing parties. {¶109} To be entitled to intervene as of right, pursuant to Civ.R. 24(A), the applicant must demonstrate: (1) the application is timely; (2) an interest in the property or transaction that is the subject of the suit; (3) the disposition of the action may impair or impede his ability to protect that interest; and (4) the existing parties do not adequately protect that interest. Blackburn v. Hamoudi (1986), 29 Ohio App.3d 350, 352. (Citations omitted.) 26 {¶110} In his brief, Taft alleges NWF and OEC failed to demonstrate a legally protectable interest in the real estate boundary in question. We disagree. {¶111} Civ.R. 24(A) requires that the applicant claim an interest relating to the property or transaction which is the subject of the action. While the claim may be shown to be without merit, *** it is not required that the interest be proven or conclusively determined before the motion is granted. Blackburn at 354. (Internal citation omitted.) {¶112} According to the affidavit of David B. Strauss, attached to NWF and OEC s brief in support of the motion to intervene, NWF is a non-profit organization whose mission is to conserve natural resources and the wildlife that depends on such resources for the use and aesthetic enjoyments of its members. NWF is comprised of approximately 921,922 members nationwide, approximately 303,997 members in the states bordering the Great Lakes, and approximately 98,114 members in Ohio alone. {¶113} According to the affidavit of Vicki Deisner, also attached to the brief in support of the motion to intervene, OEC is an Ohio, non-profit corporation, whose purpose is to preserve and protect the environment of the state of Ohio and to represent the interests of its members across the state regarding environmental and conservation issues. OEC is comprised of approximately 2,135 individual members and 113 group members that represent thousands of citizens throughout the state of Ohio. {¶114} As further stated in their brief in support of the motion to intervene, the NWF and OEC sought to intervene since the relief requested by appellant, if granted, would extinguish the rights of its members to make recreational use of the shore along 27 Lake Erie below the ordinary high water mark and would have a direct and substantial adverse impact upon the recreational use and aesthetic enjoyments of such shorelands. {¶115} Therefore, by fulfilling the requirements as set forth under Civ.R. 24(A) and, further, since it has been established that Ohio courts should liberally construe Civ.R. 24, we conclude the trial court was correct in granting NWF s and OEC s motion to intervene. {¶116} The second type of intervention, permissive, is governed by Civ.R. 24(B), which states: {¶117} Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. {¶118} We further conclude that NWF and OEC were permitted to intervene under Civ.R. 24(B), permissive intervention, since they demonstrated their defense and counterclaim were both legally and factually related to the claims of OLG. In addition, it is evident that NWF and OEC s intervention did not unduly delay or prejudice the adjudication of the rights of the original parties. Civ.R. 24(B). 28 {¶119} Taft also argues that the counterclaim of NWF and OEC failed to state a claim upon which relief could be granted. Civ.R. 12(B) provides, in pertinent part: {¶120} Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: *** (6) failure to state a claim upon which relief can be granted ***[.] {¶121} Save for the exceptions stated in Civ.R. 12(H), a party generally waives all defenses and objections not properly raised by motion, a responsive pleading, or amendment allowed under Civ.R. 15(A). Although Taft alleges he asserted a Civ.R. 12(B)(6) claim in his responsive pleading to NWF s and OEC s counterclaim, a review of the record in this case reveals that this responsive pleading is not part of our record on appeal, for it was only filed in Case No. 04CV001081, which is not pending before this court. Therefore, we cannot consider it on appeal. App.R. 9(A). {¶122} Based on the foregoing, Taft s first cross-assignment of error is without merit. {¶123} Public Trust Boundary is the Water s Edge {¶124} In Sloan, the Supreme Court of Ohio affirmed private property rights in the shores of Lake Erie and held the boundary between public and private rights is, the line at which the water usually stands when free from disturbing causes. Id. at paragraph four of the syllabus. {¶125} As we have identified, the Supreme Court of Ohio recognized the public trust doctrine by holding, [t]he title of the land under the waters of Lake Erie within the 29 limits of the state of Ohio, is in the state as trustee for the benefit of the people, for the public uses to which it may be adapted. Cleveland & Pittsburgh RR. Co., at paragraph three of the syllabus. (Emphasis added.) As a result of the Supreme Court s decision, the Fleming Act, now codified at R.C. Chapter 1506, was enacted. In Squire, the Supreme Court of Ohio further spoke of the title to the lands under the waters of Lake Erie, stating: {¶126} The state of Ohio holds the title to the subaqueous soil of Lake Erie, which borders the state, as trustee for the public for its use in aid of navigation, water commerce or fishery, and may, by proper legislative action, carry out its specific duty of protecting the trust estate and regulating its use. Id., at paragraph two of the syllabus. (Emphasis added.) The Squire court also declared that littoral owners of the upland do not have title beyond the natural shoreline, for they only have the right of access and wharfing out to navigable waters. {¶127} Based upon its decisions, the Supreme Court has identified that the waters, and the lands under the waters of Lake Erie, when submerged under such waters, are subject to the public trust, while the littoral owner holds title to the natural shoreline. As we have identified, the shoreline is the line of contact with a body of water with the land between the high and low water mark. Therefore, the shoreline, that is, the actual water s edge, is the line of demarcation between the waters of Lake Erie and the land when submerged thereunder held in trust by the state of Ohio and those natural or filled in lands privately held by littoral owners. {¶128} 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 30 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. {¶129} Based on principle, authority, and considerations of public policy, we determine that the waters and submerged bed of Lake Erie when under such waters is controlled by the state and held in public trust, while the littoral owner takes fee only to the water s edge. {¶130} Conclusion {¶131} Based on the above analysis, the Ohio Attorney General s assignments of error are stricken. NWF s and OEC s first and third assignments of error lack merit, while the second assignment is moot. OLG s first cross-assignment of error lacks merit, as do Taft s first and third cross-assignments of error. OLG s second cross-assignment of error, as well as Taft s, have merit to the extent indicated. The judgment of the Lake County Court of Common Pleas is modified to vacate the portion of the judgment concerning the amendment of the littoral owner s deed, and the judgment of the Lake County Court of Common Pleas is hereby affirmed as modified. {¶132} It is the further order of this court that the parties share equally costs herein taxed. {¶133} The court finds there were reasonable grounds for this appeal. DIANE V. GRENDELL, J., concurs, 31 TIMOTHY P. CANNON, J., concurs in part and dissents in part with Concurring/ Dissenting Opinion. Appendix attached. ______________________ TIMOTHY P. CANNON, J., concurring in part and dissenting in part. {¶134} I respectfully concur in part with the majority opinion as to the overall disposition of the case; however, I dissent in part as it pertains to the disposition of the issue of standing. {¶135} At the outset, I would note a concern and the need for caution about issuing rulings on matters not raised by any party, particularly when the parties have not been given an opportunity to brief those issues. While App.R. 12(A)(2) allows an appellate court to consider issues not briefed by the parties, I believe the better rule is *** when a court of appeals chooses to consider an issue not briefed by the parties, the court should notify the parties and give them an opportunity to brief the issue. State v. Blackburn, 11th Dist. No. 2001-T-0052, 2003-Ohio-605, at ¶45, citing State v. Peagler (1996), 76 Ohio St.3d 496, 499, fn.2. {¶136} The state of Ohio is a named defendant. The majority cites R.C. 109.02 for the proposition that the attorney general may only act at the behest of the governor, or the General Assembly. I do not agree with that reading of the statute. The statute states: [w]hen required by the governor or the general assembly, the attorney general shall appear for the state in any court or tribunal in a cause in which the state is a party, or in which the state is directly interested. R.C. 109.02. (Emphasis added.) This is language of inclusion, not of exclusion. There is nothing that prohibits the attorney 32 general from appearing and representing the state when suit has been filed against it. I would not suggest the attorney general needs an order from the governor or legislation from the General Assembly to defend the state in litigation without first giving the attorney general the full opportunity to brief the issue. It is, quite simply, ground that does not need to be plowed in this case. As acknowledged by the majority, it is clear the citizens of the state of Ohio have an interest in the public trust portion of the waters of Lake Erie. Consequently, they are entitled to representation. 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110

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