Author: Luke A. Wake
The Battle of Lake Erie was fought along the shores of Ohio during the War of 1812. But today a second battle for the lake's shores is underway. A legal battle over the disputed territory has made its way the Ohio Supreme Court, and last week Pacific Legal Foundation filed filed an amicus brief on behalf of lakeshore landowners.
Ohio owns the bed of Lake Erie under the public trust doctrine, but Ohio has changed its position three times as to what counts as the bed of the lake. Each time, Ohio claimed more land. First, the state claimed ownership only up to the low-water mark. Then the state claimed ownership to the point where the water meets the shore. Now, the state is claiming ownership all the way up to the Army Corps of Engineers' "Ordinary High Water Mark," which is set at the lake's highest recorded level in history. Not surprisingly, lakeshore landowners brought a takings claim against the state when it began charging them for the use of their own beaches. They contend that the state has taken their land in violation of the Fifth Amendment.
In support of the landowners, we argued that the scope of Ohio's ownership interest in Lake Erie must be understood as it would have been at common law, at the time Ohio entered the Union in 1803. Ohio contends that it gained ownership of the lake under the public trust doctrine when it entered the Union by virtue of the Equal Footing Doctrine, which ensures that new states enter the Union on the same terms as the original 13 states. But if Ohio attained a public trust on the same terms as the original 13 states, its public trust must be constrained by the common law of original 13 states at the time the Constitution was ratified. Ohio cannot expand the public trust doctrine beyond its historical framework for two reasons: (1) Ohio could not have attained greater powers than the original 13 states under the Equal Footing Doctrine, and (2) The Fifth Amendment's protection of private property bars the state from expanding the public trust doctrine in a manner that divests private landowners of their property without compensation.