Lake Erie

Ohio Appellate Court Holds that Ohio Holds Title in Trust to Submerged Lands in Lake Erie

Matthew L.M. Fletcher1 Comment

The Doctrine of Discovery strikes again! Here is the opinion of the Ohio Court of Appeals (11th Dist.) in State ex rel. Merrill v. State. Here is one of the key questions presented:

The state of Ohio, through the Ohio Department of Natural Resources (“ODNR”), has asserted trust ownership rights to the area of land along the southern shore of Lake Erie up to the ordinary high water mark, set at 573.4 feet above sea level by the U.S. Army Corps of Engineers in 1985. The Ohio Lakefront Group, 1 (“OLG”), along with several of its members, many of whom own property adjoining Lake Erie, dispute the authority of ODNR to assert these trust ownership rights without first acquiring the property in question through ordinary land appropriation proceedings. The validity of the ordinary high water mark, set at 573.4 feet International Great Lakes Datum (IGLD)(1985) is also disputed, the argument being that the ordinary high water mark is a boundary that must be determined on a case-by-case basis with respect to each parcel bordering the lake. Further, the ODNR’s authority to require landowners to lease land from the state of Ohio when that land is already contained within the legal description in their respective deeds is disputed.

The court holds that Ohio has trust title to the submerged lands, but that the water mark identified by the Army Corps of Engineers must be re-established at trial.

The history of Ohio lands from the moment of “discovery” in 1497 begins in paragraph 26. It may be worth discussing for anyone teaching Johnson v. M’Intosh this week (like me!).

Ottawa Tribe v. Ohio Dept. of Natural Resources — Sixth Circuit Materials

Matthew L.M. Fletcher

Please see our previous post on this case here (it links to the briefs and other materials in the lower court).

Here is the Ottawa Tribe’s opening brief: appellant-brief

And here is the amicus brief signed by the National Congress of American Indians and several Michigan tribes on the laches question: brief-amici-curiae

Ottawa Tribe v. Ohio Dept. Natural Resources Treaty Rights Claim Rejected

Matthew L.M. Fletcher1 Comment

Here is the opinion (H/T Indianz). Here is the link to the materials we placed on the blog in December.

Ottawa Tribe of Oklahoma v. Speck Materials

Matthew L.M. Fletcher1 Comment

Here are materials relating to the Ottawa Tribe of Oklahoma’s attempts to establish hunting and fishing rights to their aboriginal homelands in Ohio.

District Court Opinion Denying Ohio’s Motion to Dismiss

Continue reading →

NYT Article on the Shrinking Great Lakes

Matthew L.M. Fletcher

From the NYTs:

”

The water levels in all five Great Lakes — Superior, Michigan, Huron, Erie and Ontario — are below long-term averages and are likely to stay that way until at least March, according to the Army Corps of Engineers. (The same is true at Lake St. Clair, which straddles the border between the state of Michigan and the province of Ontario and is between Lake Huron and Lake Erie; it is not considered one of the Great Lakes, although it is part of the Great Lakes system.)

“Most environmental researchers say that low precipitation, mild winters and high evaporation, due largely to a lack of heavy ice covers to shield cold lake waters from the warmer air above, are depleting the lakes. The Great Lakes follow a natural cycle, their levels rising in the spring, peaking in the summer and reaching a low in the winter, as the evaporation rate rises.”

NOAA: Climate Change Impacts

Matthew L.M. Fletcher

From NOAA:

  • Overall, drought affected 46 percent of the nation, including the Upper Midwest, where persistently dry and warmer than average conditions have helped bring Lake Superior’s water level to its lowest point on record for this time of year, according to NOAA’s Great Lakes Environmental Research Laboratory.
  • Levels of all the Great Lakes, which together make up about 20 percent of the world’s fresh surface water, have been in decline since the late 1990s.  Lakes Huron and Michigan were about two feet below their long-term average levels, while Lake Superior was about 20 inches off, Lake Ontario seven inches below, and Lake Erie three inches below normal in September.