State Ex Rel. Merrill v. Ohio Department of Natural Resources

[Cite as State ex rel. Merrill v. Ohio Dept. of Natural Resources, 130 Ohio St.3d 30, 2011-
Ohio-4612.]
THE STATE EX REL. MERRILL, TRUSTEE, ET AL., APPELLEES;
TAFT, APPELLEE AND CROSS-APPELLANT, v. OHIO DEPARTMENT OF NATURAL
RESOURCES ET AL., APPELLANTS AND CROSS-APPELLEES.
[Cite as State ex rel. Merrill v. Ohio Dept. of Natural Resources,
130 Ohio St.3d 30, 2011-Ohio-4612.]
Land held in public trust abutting private property—The territory of Lake Erie
held in trust by the state of Ohio for the people of the state extends to the
natural shoreline, which is the line at which the water usually stands when
free from disturbing causes.
(No. 2009-1806—Submitted February 1, 2011—Decided September 14, 2011.)
APPEAL AND CROSS-APPEAL from the Court of Appeals for Lake County,
Nos. 2008-L-007 and 2008-L-008, 2009-Ohio-4256.
__________________
SYLLABUS OF THE COURT
1. A party to an action has standing to appeal from a judgment when it is an
independent party to an action and has been aggrieved by the final order
from which it seeks to appeal.
2. When an organization demonstrates that it has a claim or defense that shares a
common question of law or fact with the main action and that intervention
will not unduly delay or prejudice the adjudication of the rights of the
original parties, it meets the requirements of Civ.R. 24(B)(2) for
permissive intervention.
3. The territory of Lake Erie held in trust by the state of Ohio for the people of
the state extends to the natural shoreline, which is the line at which the
water usually stands when free from disturbing causes. (Sloan v. Biemiller
(1878), 34 Ohio St. 492, and State v. Cleveland & Pittsburgh RR. Co.
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(1916), 94 Ohio St. 61, 113 N.E. 677, approved and followed; R.C.
1506.10 and 1506.11, construed.)
__________________
O’DONNELL, J.
{¶ 1} We are asked to resolve three issues on appeal and cross-appeal:
first, whether the state of Ohio, as distinct from the Ohio Department of Natural
Resources (“ODNR”), has standing to appeal from the decisions of the trial and
appellate courts in this case; second, whether the court of appeals properly held
that the trial court did not abuse its discretion in permitting the National Wildlife
Federation and the Ohio Environmental Council to intervene in this action; and
third, whether the appellate court identified the proper boundary between property
abutting Lake Erie owned by private individuals and the territory of Lake Erie
held in trust by the state for all Ohioans.
{¶ 2} Regarding the standing issue, we conclude that despite ODNR’s
adoption of a conciliatory lis pendens posture agreeing not to enforce its
controversial lease policy pending the court’s determination of the boundary issue
and its failure to appeal the judgment of the trial court, it remains a party to this
case; the state of Ohio, a separately named party, had standing to appeal the trial
court judgment entered against it affecting the territory of Lake Erie.
{¶ 3} On the intervention question, we agree with the conclusion of the
court of appeals that the National Wildlife Federation and the Ohio
Environmental Council are proper parties to this action and that the trial court did
not abuse its discretion in permitting them to intervene.
{¶ 4} Finally, regarding the shoreline issue, Ohio law with respect to the
territory of Lake Erie held in trust by the state and the rights of littoral-property
owners has been settled for more than a century, and we see no reason to change
the existing law. Based on opinions of this court from as early as 1878 and the
Ohio General Assembly’s statement of public policy enunciated in the Fleming
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Act in 1917, we conclude that the territory of Lake Erie held in trust by the state
of Ohio for the people of Ohio extends to the “natural shoreline,” which is the line
at which the water usually stands when free from disturbing causes.
Factual and Procedural History
{¶ 5} The pleadings in this case allege that ODNR instituted a policy
prohibiting littoral-property owners from exercising property rights over all land
lakeward of the ordinary high-water mark, despite the inclusion of that area of
land in their respective deeds, unless the owner entered into a lease agreement
with ODNR and paid a fee for its use.
{¶ 6} In May 2004, Robert Merrill, as trustee for the Diane N. Merrill
Living Trust, the Ohio Lakefront Group, Inc., a nonprofit corporation representing
lakefront-property owners, and several other individually named lakefront-
property owners (collectively referred to as “the Merrill plaintiffs”) filed a
complaint for declaratory judgment and mandamus in the Lake County Common
Pleas Court against ODNR, its director, and the state of Ohio, seeking
declarations that owners of property abutting Lake Erie hold title to the land
“between [the ordinary high-water mark] and the actual legal boundary of their
properties * * * as defined by their deeds” and that the public trust does not
include nonsubmerged lands; alternatively, they sought a writ of mandamus to
compel ODNR to commence appropriation proceedings or to compel the state of
Ohio to compensate them for its alleged taking of their property. They
subsequently filed an amended complaint containing the same counts. The
individually named lakefront-property owners also filed attachments to the first
amended complaint, containing copies of their deeds and identifying the
property’s lakeward boundary, although those descriptions varied from deed to
deed, i.e., “a distance of 374.0 feet to the shore of Lake Erie,” “to a point in the
low water mark of Lake Erie,” “145 feet to a point in the water’s edge of Lake
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Erie,” “to Lake Erie,” “a distance of 293.04 feet to the shore of Lake Erie,” and
“to the shore of Lake Erie.”
{¶ 7} Separately, Homer S. Taft, L. Scot Duncan, and Darla J. Duncan
(“the Taft plaintiffs”) filed the next consecutively numbered case in the Lake
County Common Pleas Court, claiming ownership of their land to the ordinary
low-water mark of Lake Erie. The trial court consolidated that action with the
suit filed by the Merrill plaintiffs.
{¶ 8} ODNR and the state counterclaimed, seeking a declaration that the
state of Ohio holds the lands and waters of Lake Erie to the ordinary high-water
mark, as set by the United States Army Corps of Engineers in 1985, in trust for
the people of Ohio, subject only to the paramount authority retained by the United
States for the purposes of commerce, navigation, national defense, and
international affairs.
{¶ 9} In June 2006, pursuant to a joint stipulation of all parties in Merrill,
the trial court certified a class action as to the declaratory-judgment count of the
Merrill complaint, with the class consisting of owners of Ohio property bordering
Lake Erie. The court stayed the mandamus claims pending resolution of the
declaratory-judgment claim.
{¶ 10} Subsequently, the National Wildlife Federation and the Ohio
Environmental Council, nonprofit organizations committed to conserving natural
resources and whose members make recreational use of the shores and waters of
Lake Erie, sought to intervene as defendants and counterclaimants, asserting that
the state holds the lands and waters of Lake Erie in trust for the public to the
ordinary high-water mark. The trial court permitted them to intervene.
{¶ 11} ODNR and the state then moved for summary judgment on the
declaratory-judgment claim, urging, inter alia, that the public-trust territory of
Lake Erie extends to the ordinary high-water mark, as identified by the United
States Army Corps of Engineers in 1985. The National Wildlife Federation and
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the Ohio Environmental Council filed a joint motion for summary judgment,
concurring in and adopting the bases for summary judgment advanced by ODNR
and the state.
{¶ 12} The Merrill and Taft plaintiffs each filed cross-motions for
summary judgment. In response to the cross-motions for summary judgment,
ODNR advised the court that it welcomed resolution of the controversy and
posited 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 interests in those lands or are otherwise
defective or unenforceable.” ODNR further explained that “acting with the
consent and direction of” the governor, it “will discharge its statutory duties and
will adopt or enforce administrative rules and regulatory policies with the
assumption that the lakefront owners’ deeds are presumptively valid.” It also
represented to the court that while it “will require owners who wish to build
structures along the shores of Lake Erie that could impact coastal lands to obtain
permits before commencing any such construction[,] * * * it will no longer
require property owners to lease land contained within their presumptively valid
deeds.”
{¶ 13} After review, the trial court granted partial summary judgment to
the Merrill and Taft plaintiffs and denied summary judgment to ODNR, the state,
the National Wildlife Federation, and the Ohio Environmental Council,
concluding that the public trust neither extended to the ordinary high-water mark
nor terminated at the low-water mark; rather, the trial court determined that the
boundary of the public-trust territory is “a moveable boundary consisting of the
water’s edge, which means the most landward place where the lake water actually
touches the land at any given time.” The trial court opinion also reformed the
legal descriptions in deeds held by littoral-property owners containing legal
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descriptions that extended the property into the lake to extend the property only to
the water’s edge.
{¶ 14} The trial court further concluded: “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 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.” (Emphasis sic.)
{¶ 15} The trial court order included language from Civ.R. 54(B), “finding
that there is no just reason for delay,” thereby creating a final, appealable order.
{¶ 16} The state of Ohio, the National Wildlife Federation, and the Ohio
Environmental Council appealed to the Eleventh District Court of Appeals, and
the Merrill plaintiffs and Taft, individually, cross-appealed, all challenging the
trial court’s determination that the public-trust territory of Lake Erie is a
moveable boundary consistent with the water’s edge. Additionally, Taft argued
that the court erred in allowing intervention. Notably, ODNR neither filed a
notice of appeal to the court of appeals nor joined in the state’s notice of appeal.
Its failure to separately appeal prompted the court of appeals, during oral
argument, to question whether the state of Ohio had appellate standing before that
court.
{¶ 17} The appellate court concluded that the state of Ohio lacked
appellate standing without ODNR as an appellant, and it affirmed the trial court’s
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holdings regarding the intervening parties and the boundary of the public trust,
but vacated the trial court’s reformation of the littoral owners’ deeds.
{¶ 18} In holding that the state of Ohio lacked standing, the court of
appeals cited R.C. 109.02 for the proposition that the Ohio attorney general could
“only act at the behest of the governor, or the General Assembly,” and in this
case, the “attorney general represented the state due to the activities of ODNR,
which department is under the authority of the governor,” who no longer
supported the position taken by ODNR. State ex rel. Merrill v. Ohio Dept. of
Natural Resources, 11th Dist. Nos. 2008-L-007 and 2008-L-008, 2009-Ohio-
4256, ¶ 44. Thus, because the governor “ordered ODNR to cease those activities
that made it a party to the action,” the appellate court found “no authority for the
attorney general to prosecute this matter on his own behalf” and concluded that
the state “no longer has standing in this matter.” Id. Thus, the court of appeals
ordered the state’s assignments of error and briefs stricken.
{¶ 19} Regarding intervention, the appellate court held that the trial court
had correctly permitted the National Wildlife Federation and the Ohio
Environmental Council to intervene because they met the requirements for
intervention as of right pursuant to Civ.R. 24(A) in that the relief sought by the
Merrill and Taft plaintiffs “would extinguish the rights” of their members to
“make recreational use of the shore along Lake Erie below the ordinary high
water mark.” Id. at ¶ 114. The court also concluded that the intervening parties
met the requirements for permissive intervention pursuant to Civ.R. 24(B)
because they demonstrated that their defense and counterclaim factually and
legally related to the claims asserted by the Merrill and Taft plaintiffs.
{¶ 20} The court of appeals also affirmed the trial court’s determination
regarding the boundary of the public trust, holding that the boundary is the
shoreline, which it defined as “the actual water’s edge.” Id. at ¶ 127.
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{¶ 21} In its opinion, the court of appeals erroneously stated that the
question regarding the boundary of the public trust is a matter of first impression
in Ohio. Id. at ¶ 1. It is not. That question has been a matter of settled law in
Ohio for more than a century—since 1878—when this court first announced the
law in a case that called for Lake Erie as the boundary in a deed of conveyance,
and when it subsequently clarified that decision in 1916, and when the legislature,
in response to our request, thereafter codified Ohio law regarding the public trust
in Lake Erie by enacting the Fleming Act in 1917.
{¶ 22} Despite this body of law, the court of appeals concluded: “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.” (Emphasis sic.)
Id. at ¶ 127.
{¶ 23} ODNR, its director, and the state jointly appealed to this court, as
did the National Wildlife Federation and the Ohio Environmental Council;
individually, Taft cross-appealed. We accepted jurisdiction over these appeals,
which collectively assert six propositions of law and raise the following three
issues: whether the state of Ohio has appellate standing, whether the National
Wildlife Federation and the Ohio Environmental Council are proper intervening
parties, and whether the territory of the public trust extends to the ordinary high-
water mark, as claimed by the state and the environmental groups, or the low-
water mark, as claimed by Taft.
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Standing to Appeal
{¶ 24} The state presents a twofold argument to support its position that it
had standing to appeal the decision of the trial court, which declared that the
boundary of the public trust is the water’s edge, and the decision of the court of
appeals, which affirmed the trial court’s declaration. First, the state claims that it
had standing because it is an independent party to this action, and the judgment
entered against it is adverse to its interests. Second, it maintains that the Ohio
attorney general is empowered by the common law and statutes to represent the
state when it is a named party.
{¶ 25} The Merrill and Taft plaintiffs collectively argue that the state
lacked standing to appeal because R.C. 1506.10 designates ODNR as the agency
responsible for the enforcement of the state’s public-trust rights in Lake Erie, and
here, ODNR complied with a gubernatorial directive to cease its active
participation in the matter and did not appeal the trial court’s judgment to the
court of appeals. Thus, they assert, ODNR’s waiver of its appellate rights
foreclosed the state from appealing.
{¶ 26} Separately, Taft argues that the court of appeals correctly
determined that the state lacked standing because R.C. 109.02 precludes the
attorney general from representing the state in the court of appeals absent
authorization from the governor or the General Assembly, and the governor’s
directive to ODNR negates any claim by the attorney general of authorization to
represent the state in this matter. Taft further contends that the General Assembly
enacted R.C. 109.02 in abrogation of the common law, and therefore, the attorney
general lacks nonstatutory authority to act on behalf of the state.
{¶ 27} “Standing is a preliminary inquiry that must be made before a court
may consider the merits of a legal claim.” Kincaid v. Erie Ins. Co., 128 Ohio
St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9, citing Ohio Pyro, Inc. v. Dept.
of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, and
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Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858
N.E.2d 330, ¶ 22. Standing is a question of law, so we review the issue de novo.
Kincaid at ¶ 9.
{¶ 28} To have appellate standing, a party must be “aggrieved by the final
order appealed from.” Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm.
(1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, syllabus; see also In re
Guardianship of Santrucek 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683,
¶ 5; Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 26, 591
N.E.2d 1203. Cf. Forney v. Apfel (1998), 524 U.S. 266, 271, 118 S.Ct. 1984, 141
L.Ed.2d 269, quoting United States v. Jose (1996), 519 U.S. 54, 56, 117 S.Ct.
463, 136 L.Ed.2d 364 (“a party is ‘aggrieved’ [by] and ordinarily can appeal
[from] a decision ‘granting in part and denying in part the remedy requested’ ”).
{¶ 29} In this case, both the Merrill and Taft plaintiffs sued both the state
of Ohio and ODNR, seeking a declaration regarding the interest of the state as
trustee over the public trust. In addition, count three of Merrill’s first amended
complaint sought a writ of mandamus to compel the state to pay compensation as
a result of ODNR’s alleged taking. Thus, the pleadings verify that the state
became an independent party to the underlying action. It is also an aggrieved
party; the trial court’s determination regarding the boundary of the public trust,
which the court of appeals affirmed, is adverse to the state’s position, and the trial
court’s ruling denied the relief sought by the state in its counterclaim for
declaratory judgment. Accordingly, we conclude that the state of Ohio had
standing to appeal from the judgments of both the trial court and appellate court
due to its status as an aggrieved party.
{¶ 30} Nor does R.C. 1506.10 deprive the state of the ability to appeal in
this case. That statute designates ODNR as “the state agency in all matters
pertaining to the care, protection, and enforcement of the state's rights designated
in this section.” It also provides that “[a]ny order of the director of [ODNR] in
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any matter pertaining to the care, protection, and enforcement of the state's rights
in that territory is a rule or adjudication within the meaning of sections 119.01 to
119.13 of the Revised Code.” Here, however, the state appealed from a decision
entered in a declaratory-judgment action, and a matter that seeks a declaration of
rights is different from one that pertains to “the care, protection, and enforcement”
of those rights. We do not construe R.C. 1506.10 as prohibiting the state from
litigating its interests in the public trust, including its right to appeal from a
judgment that adversely affects those interests.
{¶ 31} Similarly, the court of appeals erroneously determined that the
attorney general lacked standing to appeal on behalf of the state. We recognize
that pursuant to a gubernatorial directive, ODNR did not appeal the judgment of
the trial court. As a separate party, however, the state did not abandon its
independent right to appeal. By appealing from the trial court’s judgment, the
state preserved its interest in protecting what it perceives to be the public trust.
{¶ 32} Taft also maintains that the attorney general lacked standing to
appeal because pursuant to R.C. 109.02, absent direction from the governor, the
attorney general had no independent authority to act on behalf of the state.
{¶ 33} In Ohio, the attorney general is a constitutional officer. Section 1,
Article III, Ohio Constitution. The General Assembly has also recognized that the
attorney general is the chief law officer “for the state and all its departments.”
R.C. 109.02. That statute sets forth the attorney general’s statutory duties: “The
attorney general shall appear for the state in the trial and argument of all civil and
criminal causes in the supreme court in which the state is directly or indirectly
interested. When 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. Upon the written
request of the governor, the attorney general shall prosecute any person indicted
for a crime.”
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{¶ 34} The state and federal constitutions “were adopted with a
recognition of established contemporaneous common law principles; and * * *
they did not repudiate, but cherished, the established common law.” State v. Wing
(1902), 66 Ohio St. 407, 420, 64 N.E. 514. In deference to that principle, "the
General Assembly will not be presumed to have intended to abrogate a settled
rule of the common law unless the language used in a statute clearly imports such
intention." State ex rel. Hunt v. Fronizer (1907), 77 Ohio St. 7, 16, 82 N.E. 518.
{¶ 35} This court recently addressed the common-law powers of the
attorney general in relation to R.C. 109.02 in State ex rel. Cordray v. Marshall,
123 Ohio St.3d 229, 2009-Ohio-4986, 915 N.E.2d 633. In rejecting an argument
similar to Taft’s position herein, we concluded that nothing in R.C. Chapter 109
abrogated the attorney general’s common-law power to commence a prohibition
action that sought to compel a common pleas judge to vacate an entry issued in a
criminal case. Id. at ¶ 18, 23.
{¶ 36} Guided by that analysis, we reach the same result and hold that
nothing in R.C. Chapter 109 appears to abrogate the attorney general’s common-
law power to appeal on behalf of the state from an adverse judgment. Cf.
Northeast Ohio Coalition for the Homeless & Serv. Emps. Internatl. Union, Local
1199 v. Blackwell (C.A.6, 2006), 467 F.3d 999, 1008 (attorney general permitted
to intervene on behalf of the state in an appeal of a judgment from which the
secretary of state did not wish to pursue an appeal). Thus, Taft’s position is not
well taken.
{¶ 37} Accordingly, we hold that a party to an action has standing to
appeal from a judgment when it is an independent party to an action and has been
aggrieved by the final order from which it seeks to appeal. Hence, the state of
Ohio has standing to appeal in this case, as it is an independent party against
which an adverse judgment had been rendered.
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Intervention
{¶ 38} The court of appeals concluded that the National Wildlife
Federation and the Ohio Environmental Council could intervene either as of right
or with permission. Merrill, 2009-Ohio-4256, ¶ 115, 118. On cross-appeal, Taft
maintains that the appellate court abused its discretion in affirming the trial
court’s decision to permit the National Wildlife Federation and the Ohio
Environmental Council to intervene, contending that these organizations neither
met the requirements of Civ.R. 24(A)(2) for intervention as of right, as they failed
to demonstrate an interest relating to the property or transaction that is the subject
of the action, nor met the requirements of Civ.R. 24(B) for permissive
intervention, in that they failed to demonstrate that they had a claim or defense
that shared a common question of law or fact with the main action.
{¶ 39} In response, the National Wildlife Federation and the Ohio
Environmental Council claim that they met the requirements for intervention as of
right pursuant to Civ.R. 24(A)(2) because some of their members make
recreational use of the land that is the subject matter of this action. In addition,
some of their members are Ohioans and are thus beneficiaries of the public trust
and have a legally protectable interest in public-trust lands. They further contend
that the relief requested by the littoral owners would extinguish their members’
right to use the shore of Lake Erie for recreational purposes.
{¶ 40} These organizations also maintain that they have demonstrated the
existence of common questions of law or fact between their claimed interest in
and right to use the shore and the underlying declaratory-judgment action
sufficient to warrant permissive intervention pursuant to Civ.R. 24(B).
{¶ 41} We construe Civ.R. 24 liberally to permit intervention. State ex
rel. SuperAmerica Group v. Licking Cty. Bd. of Elections (1997), 80 Ohio St.3d
182, 184, 685 N.E.2d 507; see also Rumpke Sanitary Landfill, Inc. v. State, 128
Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 1161, ¶ 22, citing Ohio Dept. of
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Adm. Servs., Office of Collective Bargaining v. State Emp. Relations Bd. (1990),
54 Ohio St.3d 48, 51, 562 N.E.2d 125. Whether intervention is granted as of right
or by permission, the standard of review is whether the trial court abused its
discretion in allowing intervention. See State ex rel. First New Shiloh Baptist
Church v. Meagher (1998), 82 Ohio St.3d 501, 503, 696 N.E.2d 1058, fn.1;
Rumpke, Inc., at ¶ 22. We acknowledge that State ex rel. First New Shiloh Baptist
Church and Rumpke commented only on the standard of review for intervention
as of right, but because there is no reason to apply a different standard of review
to permissive intervention, we conclude that the same standard applies. Cf. Ohio
Consumers' Counsel v. Pub. Util. Comm., 111 Ohio St.3d 384, 2006-Ohio-5853,
856 N.E.2d 940, ¶ 17 (abuse-of-discretion standard is applied when reviewing
permissive-intervention decisions made by the Public Utilities Commission of
Ohio).
{¶ 42} Regarding intervention as of right, Civ.R. 24(A)(2) provides that
any applicant shall be allowed to intervene in a cause of action “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 * * * impede the applicant's ability to protect that interest." Further,
the applicant's interest must be one that is " ‘legally protectable,’ " State ex rel.
Dispatch Printing Co. v. Columbus (2000), 90 Ohio St.3d 39, 40, 734 N.E.2d 797,
quoting In re Schmidt (1986), 25 Ohio St.3d 331, 336, 25 OBR 386, 496 N.E.2d
952, and must not be adequately protected by the existing parties. Civ.R.
24(A)(2); State ex rel. LTV Steel Co. v. Gwin (1992), 64 Ohio St.3d 245, 247, 594
N.E.2d 616.
{¶ 43} Regarding permissive intervention, Civ.R. 24(B)(2) provides that a
trial court has discretion to permit an applicant to intervene “when [the]
applicant’s claim or defense and the main action have a question of law or fact in
common.” However, in exercising its discretion, the court “shall consider
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whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.” Id.{¶ 44} The defense and counterclaim asserted by the National Wildlife
Federation and the Ohio Environmental Council in this case relate both legally
and factually to the claims asserted by the Merrill and Taft plaintiffs; thus, they
have satisfied the “common question of law or fact” requirement of Civ.R.
24(B)(2). Nor did allowing intervention unduly delay or prejudice the
adjudication of the rights of the original parties. The court of appeals, therefore,
did not abuse its discretion in determining that these organizations met the
requirements for permissive intervention. Based on this conclusion, we need not
analyze intervention as of right.
{¶ 45} Accordingly, when an organization demonstrates that it has a claim
or defense that shares a common question of law or fact with the main action and
that intervention will not unduly delay or prejudice the adjudication of the rights
of the original parties, it meets the requirements of Civ.R. 24(B)(2) for permissive
intervention. Hence, the trial court did not abuse its discretion in permitting the
National Wildlife Federation and the Ohio Environmental Council to intervene in
this action.
The Public Trust
{¶ 46} The substantive issue for our resolution concerns the territory of
the public trust, and the parties here disagree as to its boundary. The state, the
National Wildlife Federation, and the Ohio Environmental Council all urge us to
hold that the court of appeals erred in setting the landward boundary of the public
trust at the water’s edge, arguing instead that the boundary is the ordinary high-
water mark, which they claim that case law has construed to mean the natural
shoreline, as well as “the line where the water usually stands when free from
disturbing causes.”
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{¶ 47} The Taft plaintiffs contend that the court of appeals erred by not
defining the landward boundary of the public trust as the low-water mark, as
modified by accretion, reliction, or erosion.
{¶ 48} The Merrill plaintiffs, as appellees in the Supreme Court, assert
that the boundary is the natural shoreline, which it claims is the line at which the
water meets the shore wherever that may be at any given time, and they urge this
court to affirm the judgment of the court of appeals.
{¶ 49} More than 130 years ago, in Sloan v. Biemiller (1878), 34 Ohio St.
492, we determined that when a real estate conveyance calls for Lake Erie as the
boundary, the littoral owner’s property interest “extends to the line at which the
water usually stands when free from disturbing causes.” Id. at paragraph four of
the syllabus. In our analysis, we adopted the position taken by the Supreme Court
of Illinois in Seaman v. Smith (1860), 24 Ill. 521, syllabus (“The line at which the
water usually stands when free from disturbing causes, is the boundary of land in
a conveyance calling for Lake Michigan as a line”).
{¶ 50} Contrary to the position advanced by the state, although Sloan
quoted language from Seaman that referred to “the usual high-water mark,” which
is synonymous with the ordinary high-water mark, neither Sloan nor Seaman
adopted that as the boundary or defined “the line at which the water usually stands
when free from disturbing causes” to mean “the usual high-water mark.” As a
subsequent case from the Supreme Court of Illinois explained, “[i]t is clear from
the reasoning and conclusion in [Seaman], in the light of the judgment entered,
that it was not the high-water mark that was taken as the true limit of the
boundary line, but the line where the water usually stood when unaffected by
storms or other disturbing causes.” Brundage v. Knox (1917), 279 Ill. 450, 471,
117 N.E. 123. In addition to a storm, a drought may constitute a disturbing cause.
See Appeal of York Haven Water & Power Co. (1905), 212 Pa. 622, 631, 62 A.
97.
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January Term, 2011
{¶ 51} Subsequent to our decision in Sloan, in State v. Cleveland &
Pittsburgh RR. Co. (1916), 94 Ohio St. 61, 79, 113 N.E. 677, we held that “the
state holds the title to the subaqueous land [of Lake Erie within the boundaries of
Ohio] as trustee for the protection of public rights.” In so holding, we followed
our decision in Sloan, among other cases, and concluded that “[t]he littoral owner
is entitled to access to navigable water on the front of which his land lies, and,
subject to regulation and control by the federal and state governments, has, for
purposes of navigation, the right to wharf out to navigable water.” Id. at
paragraph five of the syllabus. In that case, we also urged the General Assembly
to pass legislation that would “appropriately provide for the performance by the
state of its duty as trustee for the purposes stated; that [would] determine and
define what constitutes an interference with public rights, and that [would]
likewise, in a spirit of justice and equity, provide for the protection and exercise
of the rights of the shore owners.” Id. at 84. The General Assembly did so the
following year when it enacted the Fleming Act.
{¶ 52} The Fleming Act clarified the public policy of the state of Ohio
with respect to the waters of Lake Erie, and its pronouncement conformed to
decisions of this court dating from 1878 (Sloan). See G.C. 3699-a, Am.H.B. No.
255, 107 Ohio Laws 587, recodified as R.C. 123.03, and now renumbered as R.C.
1506.10. The current version of the statute is substantially similar to the original
statute, and notably, both refer to the “natural shore line.”
{¶ 53} At present, R.C. 1506.10 provides: “It is hereby declared that the
waters of Lake Erie consisting of the territory within the boundaries of the state,
extending from the southerly shore of Lake Erie to the international boundary line
between the United States and Canada, together with the soil beneath and their
contents, do now belong and have always, since the organization of the state of
Ohio, belonged to the state as proprietor in trust for the people of the state, for the
public uses to which they may be adapted, subject to the powers of the United
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SUPREME COURT OF OHIO
States government, to the public rights of navigation, water commerce, and
fishery, and to the property rights of littoral owners, including the right to make
reasonable use of the waters in front of or flowing past their lands. Any artificial
encroachments by public or private littoral owners, which interfere with the free
flow of commerce in navigable channels, whether in the form of wharves, piers,
fills, or otherwise, beyond the natural shoreline of those waters, not expressly
authorized by the general assembly, acting within its powers, or pursuant to
section 1506.11 of the Revised Code, shall not be considered as having prejudiced
the rights of the public in such domain. This section does not limit the right of the
state to control, improve, or place aids to navigation in the other navigable waters
of the state or the territory formerly covered thereby.”
{¶ 54} Subsequently, in State ex rel. Squire v. Cleveland (1948), 150 Ohio
St. 303, 337, 38 O.O. 161, 82 N.E.2d 709, we held that the Fleming Act did “not
change the concept of the declaration of the state’s title as [declared in Cleveland
& Pittsburgh RR. Co., 94 Ohio St. 61, 113 N.E. 677].” Instead, the act merely
reiterated this court’s pronouncement in that case. Thus, we reaffirmed that
“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.” Squire at
337. From that holding, it follows that the converse is also true: if a littoral owner
has no property rights lakeward of the natural shoreline, then the territory of the
public trust does not extend landward beyond the natural shoreline. Hence, our
review centers on the term “natural shoreline.”
{¶ 55} Not long after our opinion in Squire, the General Assembly, in
1955, enacted R.C. 123.031 in Am.Sub.S.B. No. 187, 126 Ohio Laws 137, 138,
which has since been amended and renumbered as R.C. 1506.11. R.C. 123.031
defined the “territory” of the public trust with reference to the “natural shore
line.” The current version of the statute also includes that reference point,
defining the term “territory” to mean “the waters and the lands presently
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January Term, 2011
underlying the waters of Lake Erie and the lands formerly underlying the waters
of Lake Erie and now artificially filled, between the natural shoreline and the
international boundary line with Canada.” R.C. 1506.11.
{¶ 56} As noted previously, the General Assembly enacted the Fleming
Act a year after this court urged it to pass legislation defining what constitutes an
interference with public rights, and, therefore, we presume it did so mindful of the
common law. We likewise presume that the General Assembly acted with full
knowledge of the common law when it subsequently amended and added sections
to the Fleming Act. Accordingly, we conclude that when the General Assembly
defined the boundary of the “territory” of the public trust as the “natural
shoreline,” it ascribed a meaning to that term consistent with the meaning set forth
in this court’s decisions, including Sloan.
{¶ 57} The boundary of the public trust does not, however, as the court of
appeals concluded in affirming the trial court, change from moment to moment as
the water rises and falls; rather, it is at the location where the water usually stands
when free from disturbing causes. That is what we stated in Sloan, that is what
has been understood for more than a century in Ohio, that is what the General
Assembly meant by “natural shore line” when it enacted G.C. 3699-a in 1917, and
that is what the law was when ODNR began to enforce the leasing policy, which
it has since abandoned, having recognized the presumptive validity of the owners’
deeds. We see no reason to modify that law now.
{¶ 58} Finally, the decision of the court of appeals erroneously intimated
that a littoral-property owner might extend lakefront property with the addition of
artificial fill. Merrill, 2009-Ohio-4256, ¶ 127. According to representations in
their briefs, the parties generally agree that artificial fill cannot extend a littoral
owner’s property, except where a littoral owner reclaims land stripped away
because of sudden changes caused by avulsion. Additionally, the parties
acknowledge that while accretion may increase the property of a littoral owner,
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SUPREME COURT OF OHIO
erosion may decrease it. Cf. State ex rel. Duffy v. Lakefront E. Fifty-Fifth St.
Corp. (1940), 137 Ohio St. 8, 11, 17 O.O. 301, 27 N.E.2d 485; United States v.
461.42 Acres of Land in Lucas Cty., Ohio (N.D.Ohio 1963), 222 F.Supp. 55, 56.
Thus, we need not further comment on or clarify the effect of these processes on
the property line because the parties generally have no dispute regarding them.
{¶ 59} Accordingly, the territory of Lake Erie held in trust by the state of
Ohio for the people of the state extends to the natural shoreline, which is the line
at which the water usually stands when free from disturbing causes.
{¶ 60} This court has a history of protecting property rights, and our
decision today continues that long-standing precedent. In Cleveland & Pittsburgh
RR. Co., 94 Ohio St. 61, 113 N.E. 677, syllabus, this court acknowledged that a
littoral owner has a right to access and wharf out to navigable waters, and in
Squire, we held that if the state or a municipality improperly destroys or impairs
that property right, a littoral owner is entitled to compensation. 150 Ohio St. 303,
38 O.O. 161, 82 N.E.2d 709, paragraph six of the syllabus. We recently reiterated
our adherence to the principles that protect property rights in Norwood v. Horney,
110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 37, where we
explained that “the founders of our state expressly incorporated individual
property rights into the Ohio Constitution in terms that reinforced the sacrosanct
nature of the individual's ‘inalienable’ property rights, Section 1, Article I [Ohio
Constitution], which are to be held forever ‘inviolate.’ Section 19, Article I.”
(Footnote deleted.) Id. We further observed that Ohio has always considered
property rights to be fundamental and concluded that “the bundle of venerable
rights associated with property is strongly protected in the Ohio Constitution and
must be trod upon lightly, no matter how great the weight of other forces.” Id. at
¶ 38.
{¶ 61} During the pendency of this litigation, ODNR announced that it
“should honor the apparently valid real property deeds of the plaintiff-relator
20
January Term, 2011
lakefront owners unless a court determine[d] that the deeds are limited by or
subject to the public’s interests in those lands or are otherwise defective or
unenforceable.” It further represented that it “will adopt or enforce administrative
rules and regulatory policies with the assumption that the lakefront owners’ deeds
[are] presumptively valid, and also, will no longer require property owners to
lease land contained within their presumptively valid deeds.”
{¶ 62} Our decision today reaffirms this court’s previous determination
that the territory of the public trust in Lake Erie extends to the natural shoreline,
which is the line at which the water usually stands when free from disturbing
causes, which we first announced in 1878 and clarified in 1916, and which the
General Assembly codified in 1917. Nothing contained in our opinion interferes
with the presumptively valid deeds of the lakefront owners. Similarly, we
reaffirm our statement in Squire that “[t]he littoral owners of the upland have no
title beyond the natural shoreline; they have only the right of access and wharfing
out to navigable waters.” Id. at 337.
Conclusion
{¶ 63} The state of Ohio has standing to appeal from a judgment when it is
an independent party to an action and has been aggrieved by the final order from
which it seeks to appeal. In addition, the National Wildlife Federation and the
Ohio Environmental Council are proper intervening parties to this lawsuit
pursuant to Civ.R. 24. Further, we conclude that the territory of Lake Erie, held
in trust by the state of Ohio for the people of the state, extends to the natural
shoreline, which is the line at which the water usually stands when free from
disturbing causes.
{¶ 64} Consequently, we reverse the holding of the court of appeals that
the state of Ohio lacked appellate standing, but we affirm its holding that upheld
the decision to permit the National Wildlife Federation and the Ohio
Environmental Council to intervene pursuant to Civ.R. 24(B)(2).
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SUPREME COURT OF OHIO
{¶ 65} Having clarified that the territory of Lake Erie is held in trust for
the people of Ohio and extends to the natural shoreline, the line at which the water
usually stands when free from disturbing causes, we affirm the appellate court to
the extent that its judgment is consistent with this pronouncement, but we reverse
its decision implying that artificial fill can alter the boundary of the public trust
and its decision to affirm the trial court’s decision that the boundary of the public
trust changes from moment to moment. This matter is remanded to the trial court
for further proceedings on pending claims consistent with this opinion.
Judgment accordingly.
PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE BROWN, JJ., concur.
O’CONNOR, C.J., and LANZINGER, J., concur in syllabus and judgment
only.
_________________
Homer S. Taft, pro se.
Calfee, Halter & Griswold, L.L.P., James F. Lang, and Fritz E.
Berckmueller, for appellee class-action plaintiffs.
L. Scot Duncan, pro se, and for appellee Darla J. Duncan.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief
Deputy Solicitor General, Stephen P. Carney, Deputy Solicitor, and Cynthia K.
Frazzini, Assistant Attorney General, for appellant and cross-appellee state of
Ohio.
Porter, Wright, Morris & Arthur, L.L.P., and Kathleen M. Trafford,
Special Counsel for appellants and cross-appellees Ohio Department of Natural
Resources and Director David Mustine.
Neil S. Kagan and Peter A. Precario, for appellants and cross-appellees
National Wildlife Federation and Ohio Environmental Council.
Chester, Willcox & Saxbe, L.L.P., Charles R. Saxbe, and Gerhardt A.
Gosnell II, in support of the state’s first proposition of law on behalf of amici
22
January Term, 2011
curiae former Ohio Attorneys General Betty Montgomery, Jim Petro, and Nancy
Rogers.
Michael A. Cox, Attorney General of Michigan, B. Eric Restuccia,
Solicitor General, S. Peter Manning, Division Chief, and Robert P. Reichel and
Darryl J. Paquette, Assistant Attorneys General; and Thomas W. Corbett Jr.,
Attorney General of Pennsylvania, in support of the state of Ohio on behalf of
amici curiae the states of Michigan and Pennsylvania.
The Law Office of Colin Bennett, L.L.C., and Colin William Bennett, in
support of appellants and cross-appellees on behalf of amici curiae Joseph
Sommer, Frances Buchholzer, Robert Teater, Ohio Bass Federation, Izaak Walton
League of America, Ohio Chapter, and Northeast Ohio Watershed Council.
R. S. Radford and Luke A. Wake; and Michael R. Gareau & Associates
Co., L.P.A., and David M. Gareau, in support of appellees on behalf of amicus
curiae, Pacific Legal Foundation.
John P. O'Donnell, L.L.C., and John P. O'Donnell; and Baker & Hostetler,
L.L.P., and John H. Burtch, urging affirmance on behalf of amici curiae Willow
Beach Club, Brookwood-Cresthaven Beach Club, Inc., the Linwood Park
Company, and the Ohio Association of Realtors.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Bruce G. Hearey, and
LerVal M. Elva, in support of appellees on behalf of amicus curiae National
Federation of Independent Business Small Business Legal Center.
Michael E. Gilb, urging affirmance on behalf of amicus curiae Geauga
Constitutional Council.
Smith, Martin, Powers & Knier, P.C., and David L. Powers, in support of
class-action plaintiffs on behalf of amicus curiae Save Our Shoreline.
Chad A. Endsley, in support of class-action plaintiffs on behalf of amicus
curiae Ohio Farm Bureau Federation.
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SUPREME COURT OF OHIO
Faulkner, Muskovitz & Phillips and Robert M. Phillips; and Patrick A.
D'Angelo, urging affirmance on behalf of amici curiae Ohio Fraternal Order of
Police Lodge 8 and Cleveland Police Patrolmen's Association.
Montgomery Consulting Group, L.L.C., Betty Montgomery, opposing the
state’s second proposition of law on behalf of amicus curiae Betty Montgomery.
Shannon Lee Goessling, in support of class-action plaintiffs on behalf of
amicus curiae Southeastern Legal Foundation, Inc.
Maurice A. Thompson, urging affirmance on behalf of amicus curiae 1851
Center for Constitutional Law.
______________________
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