Lake Erie (Mark Hogan/Flickr)

That is the question now being pondered by the Justices of the Ohio Supreme Court.  Last week, the court held a hearing in the case presenting the question: Merrill v. State of Ohio.  I was on hand representing NWF and the Ohio Environmental Council, joining with the Ohio Attorney General in explaining that the state owns Lake Erie in permanent trust for the public.

Some individuals who bought land along Lake Erie mistakenly think they own the shore of the lake and have the right to keep members of the public off when the shore is not covered by water.  They filed the Merrill lawsuit claiming that the state is trying to take their private property.  But the shore never belonged to any private person, and people have a right to walk along the shore if they gain access to it through their own land, state parks, or other publicly-owned land.

When the thirteen colonies became the United States of America, they assumed the English King’s responsibility to protect the seas bordering the land for the benefit of all the people.  And when Ohio joined the Union in 1803, it assumed the same public trust over Lake Erie.  Among other things, the state is responsible for protecting the lakebed necessary to sustain the fishery

Under the “public trust doctrine,” the lake does not extend only as far as the water at any given moment.  So the lake does not go as high as flood waters reach.  Nor is the lake limited to the low level characteristic of a drought.  Rather, the lake includes the shore: the land below the “ordinary high water mark.”  The ordinary high water mark is the highest line the water returns to under ordinary conditions. 

As the Roman Emperor Justinian said long ago, “By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea.”  Let’s hope the Ohio Supreme Court taps into that ancient wisdom.  We should know within the year.