National law group analyzes
policy implications of HB 218

Ohio House Bill 218 deals with the location of shoreline land
ownership boundaries around the Ohio portion of Lake Erie. This bill is currently being considered in the Ohio Senate. In an effort to allow more informed decision making and allow everyone to better understand the legislation, Frank Lichtkoppler, a Sea Grant Extension agent in Ohio, requested that the National Sea Grant Law Center in Mississippi review and comment on the proposed legislation. That review, written by Stephanie Showalter, J.D., M.S.E.L., follows below.

See a complete version of this review with footnotes (48 KB Word document).

Public access to Lake Erie threatened
A controversial bill pending before the Ohio State Legislature, if passed as introduced, would shift the upper boundary of Ohio's Lake Erie public trust lands from the ordinary high water mark to the low water mark. Brought this matter to our attention and asked us to share our thoughts.

The Public Trust Doctrine
Under the common law, the public trust doctrine provides that "public trust lands, waters and living resources in a state are held by the state in trust for the benefit of all the people, and establishes the right of the public to fully enjoy public trust lands, waters and living resources for a wide variety of public uses." Public trust waters are the state's navigable waters and public trusts lands are the lands beneath those navigable waters, up to the ordinary high water mark. Public trust lands include tidelands, shorelands, and the land beneath oceans, lakes, and rivers.

Public trust lands are unique in that two separate titles exist to the same piece of land. The state holds the public title, often referred to as jus publicum, ensuring the right of the public to use and enjoy the public trust waters and lands for commerce, navigation, fishing, bathing, and other related uses. The jus publicum interest is reserved by the state regardless of the deed. "

A state cannot convey the jus publicum interest into private
ownership, nor can it abdicate its trust responsibilities."2 The private title, the jus privitum, can be held by a private individual or the state.

The holder of the private title has the right of use and possession. The private right to use the public trust lands, however, is subservient to the dominant public right of access.

Ohio's Public Trust Doctrine
Each State manages its public trust lands and waters in different and unique ways. Ohio is a high water state, which means that the state owns both titles, the private right to possess and the public "trust" title, from the shore up to the high water mark.

Section 1506.10 of the Ohio Code establishes Ohio's rights to the waters of Lake Erie. It states that the waters of Lake Erie... 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.

The Ohio Supreme Court has stated that "the state as trustee for the public cannot by acquiescence abandon the trust property or enable a diversion of it to private ends different from the object for which the trust was created."

House Bill 218
When introduced, House Bill 218 contained language that would clearly violate the public trust doctrine. The drafters of the bill sought to alter § 1506.10 by placing the words "natural low water mark of the" before "southerly shore" and adding a paragraph restricting the state's property interest to below the natural low water mark. As mentioned above, a state may not transfer all ownership rights to public trust property to private owners. A shift in the boundary line from the high water mark to the low water mark would improperly divert public trust property from public to private use.

It appears other members of the Ohio House realized the problems with the bill's language. The bill now reads "the waters of Lake Erie...extending from where the waters of Lake Erie make contact with the land to the international boundary...belong to the State."

With the alteration in language, even if the bill passes, the authority of the Ohio Department of Natural Resources and the rights of the public should be preserved. While the version of the bill passed by the House could still be interpreted as granting private property rights above the low water mark, Ohio courts are more likely to adhere to precedent and set the high water mark as the line where Lake Erie makes contact with the land.

Conclusion
It is still too early to tell whether the panic caused by the introduction of this bill was premature. While passage of the bill could greatly affect the state's coastal management program, H.B. 218 has significant hurdles to overcome before adoption. The bill is currently pending in the Ohio Senate, which may not be as susceptible to the political pressure applied by Lake Erie property owners as representatives in the House. Due to the significant public access implications of H.B. 218, the Law Center will continue to track this legislation as it moves through the Ohio Legislature and/or the courts.

Source: Volume 2, No. 4 The SandBar
Legal Reporter for the National Sea Grant College Program
University of Mississippi

Sea Grant Law Center
Kinard Hall, Wing E Room 262
P.O. Box 1848
University, MS 38677-1848

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A state may not transfer all ownership rights to public trust property to private owners. A shift in the boundary line from the high water mark to the low water mark would improperly divert public trust property from public to private use.