Strickland Should Take Stand to Protect Beach Walker Rights

Who owns Lake Erie’s beach front?

The answers to that question can be as slippery as algae-coated rock along Ohio’s lake shore — and as murky as the water above it.

A common pleas court in Lake County (east of Cleveland) will try to sort things out in a major class-action lawsuit brought by lakefront property owners. Two words for the judge handling the case: good luck.

When the U.S. Supreme Court decides a massive fight about property rights — such as when two or more states square off over who owns a river — it often appoints a “special master,” someone who is an undisputed, impartial expert in the field able to help the court make short work of complicated historic “facts” and legal doctrines.

Such an expert might help the court in this case. The controversy boils down to this:

Lakefront property owners are bridling at demands made by the state’s Department of Natural Resources. Before they can build docks and other structures near the water, the state agency has been requiring them to lease area of the beach the owners claim already is their property, not the state’s. The property owners say the descriptions in their land deeds are conclusive — and grant them complete ownership and control of everything to the lake’s low- water mark.

Attorney General Marc Dann counters that everything to the lake side of what’s known as the “ordinary high-water mark,” is public property, held in trust for the people of the state.

That position was held by all of state government until last week, when Gov. Ted Strickland announced a middle ground: Lakefront owners’ deeds will be presumed valid. Unless a court rules otherwise, these property owners may own the beach to the low-water mark, but the state still has authority to manage the coastline for environmental protection purposes.

There is some logic behind each position. But the parties are relying on, and fighting over, all manner of exotic legal authority – - including ancient Supreme Court cases, mossy common-law doctrines, treaties with Indian nations, disputed U.S. Army Corps of Engineers calculations, and agreements governing the old “Western Reserve.” None is conclusive.

Gov. Strickland shows good instincts in attempting to forge a compromise. He is being solicitous of private property rights, something he promised to do when campaigning for governor. But he also is trying to tiptoe away from a big issue he can’t avoid — the public right to Lake Erie beach access.

The private property owners want to shut the public out. Gov. Strickland should not — and need not — stand for that. He should be standing with the people. No one disputes that Lake Erie is public property. Nor does anyone seriously challenge the state’s broad power to protect and improve all 262 miles of Ohio’s shoreline. The question is, “Who controls the shoreline between Lake Erie’s low- and highwater marks?” There is plenty of room to argue that neither the state nor the lakefront property owners has exclusive control of the beach, that both sides have rights. The courts and the governor should be searching for that common ground.

(c) 2007 Dayton Daily News. Provided by ProQuest Information and Learning. All rights Reserved.