Ohio AG files brief in Lake Erie case

Keith Loria Jul. 14, 2010, 10:34am

COLUMBUS, Ohio (Legal Newsline) - Ohio Attorney General Richard Cordray filed a brief on Monday in a case involving the rights of landowners along the shore of Lake Erie and the legal authority of the attorney general.

In October, Cordray's office asked the state Supreme Court to review a ruling from the 11th District Court of Appeals about the state's right to participate in Merrill v. State of Ohio.

The case revolves around the belief that the state has the legal right to protect the landward boundary of Lake Erie and its shore in harmony with the rights of the public and landowners.

The state of Ohio had asserted trust ownership rights to the area of land along the southern shore of Lake Erie to the ordinary high water mark, set at 573.4 feet above sea level. Robert Merrill and others owning property there filed a lawsuit against the state.

"The state of Ohio has the limited authority to enact laws and regulations necessary and proper to preserve and protect the public trust ownership of the waters of Lake Erie, and of those lands submerged beneath those waters, landward up to the water's edge," the decision says.

Therefore, the state is prohibited from using its public trust ownership of the waters of Lake Erie and the land submerged beneath those waters.

Cordray believes that the Court of Appeals' decision not only undercuts the independent constitutional authority of the attorney general, but it threatens the very power of the citizens of Ohio to enact Ohio's laws through the legislative branch.

Although Cordray's brief recognizes that private landowners have special rights that should not be unduly restricted by the state, it expresses his thoughts that those rights should be balanced in the territory of Lake Erie with the public's overlapping rights.

The brief also examines the legal authority and duties of the attorney general in regards to defending the state in any lawsuits, which dates back more than 200 years.

"The Ohio attorney general is a constitutionally created executive officer with the broad independent authority and obligation to represent the State of Ohio's legal interests in court, and conditioning that authority on the assent of the governor or general assembly undermines Ohio's constitutional design," the brief says.

"Any requirement that the attorney general seek assent from the governor or any other executive officer would seriously hamper the ability of the attorney general to effectively represent the State's interest as a whole and the public generally."

The Merrill case also saw an amicus brief filed from former Ohio attorneys general Betty Montgomery, Jim Petro and Nancy Rogers. Other briefs were filed by the Ohio Department of Natural Resources, the National Wildlife Federation and Ohio Environmental Council.

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