OFBF weighs in on Supreme Court property rights case

Buckeye Farm News

Concerned that it could have implications for farmers across Ohio, Ohio Farm Bureau recently filed a brief with the Supreme Court in a case affecting the rights of landowners along Lake Erie.

The case primarily concerns whether private landowners or the State of Ohio own the land along the Lake Erie shoreline between the high water mark and the low water mark.    

An appellate court had ruled that regardless of the changing shoreline, the dry land above the water belongs to the property owner, while land below the water belongs to the public: essentially, the landowner’s property extends to the water’s edge.

The State of Ohio appealed, arguing that the state owns the land all the way up to the ordinary high water mark.

A concern of the landowners is that if a high water mark is used as the property line, the public would now have access to what they previously believed to be their property.

Furthermore, the landowners would not be compensated for their loss of property because, in theory, this land would have always belonged to the state. 

Farm Bureau expressed concerns to the court that arguments being made in this case could set precedents that threaten farmers’ riparian rights and lead to public access of previously private shores and banks.

A specific concern is that if environmental groups get their way, the court’s decision could establish that the State of Ohio holds title to the land underneath all the now privately-owned navigable rivers, streams and in-land lakes in the state.  

Equally troubling is that if this state ownership is determined, it would not be considered a government “taking”, and no compensation would be owed to the landowner, because the state would be deemed to have held title to those river, stream, and in-land lake beds since 1803.

In it’s brief to the court, OFBF wrote the following:

“While the parties of this case contest the point at which the State’s ownership of Lake Erie’s soil ends and disagree over the scope of the public’s rights below that point, the public indisputably lacks the right to access the banks of Ohio’s other lakes and streams…”

“…therefore, even if the public may walk on Lake Erie’s beaches below the ordinary high water mark, the court should carefully limit such a holding to Lake Erie.

“Otherwise, boundaries established on all other navigable water bodies for hundreds of years in Ohio would be undone in an instant and reset anew at the ordinary high water mark. Both farmers and non-farmers throughout the state would find their ownership and exclusive possession of their land along navigable water bodies under attack. For farmers, the resulting public interference with farming operations would include the loss of access to the banks and beds of rivers for moving and watering livestock, pumping water for irrigation, installing erosion-control measures, and other activities.”

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