(COLUMBUS, Ohio) – Ohio Attorney General Richard Cordray has asked the Ohio Supreme Court to review a case involving the rights of the public and of private landowners along the shore of Lake Erie. The appeal asks the state's highest court to review a ruling from the 11th District Court of Appeals that said the state did not even have the right to participate in the case.  The further issue addressed in that ruling concerned the location of the proper boundary of Lake Erie and how it affects the rights of the public and of private landowners.

"This ruling by the appeals court undermines the attorney general's authority and duty to represent the people of Ohio. It also affects the rights of all Ohioans, including private landowners, along the shores of Lake Erie," Attorney General Cordray said. "The issues at stake in this ruling are thus of great public interest and importance."

The case began in Lake County in 2004 when several lakefront-property owners sued the State of Ohio, the Ohio Department of Natural Resources (ODNR) and the department's director. The owners disputed the boundary between their exclusive property rights and the state's control over Lake Erie and its shoreline. During trial court proceedings, the State of Ohio and ODNR decided to litigate separately – a not uncommon practice in cases involving multiple government parties. The attorney general represented ODNR by hiring outside counsel. ODNR elected not to appeal from the trial court's ruling, though the attorney general continued to press the state's position in the case on appeal.  Those developments led the appeals court to rule that the state could no longer participate in the case to defend itself.

The state's filing today explains that the appeals court made several mistakes when it threw the state out of the case. The appeals court cited legal principles regarding "standing to sue," or a party's ability to file a lawsuit. But it failed to recognize that the state was a defendant —the party who got sued, not the party who filed the suit. The trial court had ruled against the state, and that automatically gave the state the right to appeal. The separate representation of ODNR did not take away the state's right to appeal because the plaintiffs named the state itself as a separate defendant from the beginning.

The appeals court also misstated the law regarding the attorney general's power and duty to represent the state. The appeals court said the attorney general could act only when the governor or General Assembly specifically instructed the attorney general to enter a case.  Today's filing explains what the law actually provides:  that "the Attorney General has the right, and the duty, to defend the State of Ohio and her entities when they are sued."  The filing explains that the attorney general "often must rush to court" and "file extensive pleadings within hours on urgent matters" such as capital cases and election cases.  The filing further explains that it would be impossible to obtain "case-specific 'permission slips'" in thousands of cases. The state argues that this ruling is so mistaken and harmful that the Supreme Court should reverse it without requiring further briefing or argument, so that the next stage of the case can focus on the Lake Erie issues.

Addressing the Lake Erie issues, the state's filing urges the court to review the case to restore balance among private and public rights along the lake. The state acknowledges that landowners have unique rights that are not shared with the public, such as rights to access the water and build wharfs out into the water. The state explains that the owners' rights "cannot be unduly burdened or restricted," but the state explains that owners' rights "must also be balanced with the public's overlapping rights in the territory of Lake Erie." The state explains that "the appeals court upset that balance" by excluding the public entirely from the shore, restricting the rights of the public by forcing the public to stay in the water only. The state says it is in everyone's interest — that of the state, the owners and the public — to have the Supreme Court review this case.

To read today's filing in full, please visit www.OhioAttorneyGeneral.gov/LakeErieFiling