State Ex Rel. Merrill v. Ohio Department of Natural ResourcesState Ex Rel. Merrill v. Ohio Department of Natural Resources
{¶ 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 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
{¶ 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
{¶ 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 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
{¶ 15} The trial court order included language from
{¶ 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 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
{¶ 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
{¶ 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.
{¶ 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.
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
{¶ 26} Separately, Taft argues that the court of appeals correctly determined that the state lacked standing because
{¶ 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 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
{¶ 30} Nor does
{¶ 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
{¶ 33} In Ohio, the attorney general is a constitutional officer.
{¶ 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
{¶ 35} This court recently addressed the common-law powers of the attorney general in relation to
{¶ 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.
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, 2009 WL 2591758, ¶ 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
{¶ 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
{¶ 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
{¶ 41} We construe
{¶ 42} Regarding intervention as of right,
{¶ 43} Regarding permissive intervention,
{¶ 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
{¶ 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
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.”
{¶ 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
{¶ 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.
{¶ 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
{¶ 53} At present,
{¶ 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
{¶ 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
{¶ 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, 2009 WL 2591758, ¶ 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, 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,
{¶ 61} During the pendency of this litigation, ODNR announced that it “should honor the apparently valid real property deeds of the plaintiff-relator 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., 150 Ohio St. at 337, 38 O.O. 161, 82 N.E.2d 709.
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
{¶ 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
{¶ 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
Judgment accordingly.
Pfeifer, Lundberg Stratton, Cupp, and McGee Brown, JJ., concur.
O‘Connor, C.J., and Lanzinger, J., concur in syllabus and judgment only.