Get Off Your Land!

All the press about the ongoing contamination of Lake Erie with alien species and chemicals draws attention from its astonishing resurrection. I knew Lake Erie when no one wanted it. Houses and office buildings along Ohio’s 262-mile shore—including Cleveland’s city hall—had been constructed facing away from the water. Not a single otter survived in the state. Garbage littered beaches. Decaying alewives clogged water intakes. The lake was a bubbling, deoxygenated witches’ brew of E. coli and petroleum by-products. In 1969 a major tributary, the Cuyahoga River, caught fire, inspiring Randy Newman’s song “Burn On, Big River” and galvanizing Congress into passing the Clean Water Act.

But in late July 2007, as I walked the shore west of Cleveland, I saw a lake transformed. Purple martins swarmed over the clean surface, feasting on emerging insects. Herons and egrets stalked vast carpets of yellow lotus blooms. Glistening carapaces of midland painted turtles adorned floating logs. Boats loaded with anglers bobbed over offshore reefs, where—under the right light conditions—you can see perch, walleyes, sheepsheads, and bass 40 feet down. At Sheldon Marsh in Sandusky, now a state nature preserve, killdeers, semipalmated plovers, lesser yellowlegs, and assorted sandpipers patrolled mudflats while Caspian, Forster’s, and common terns wheeled and dipped over shallows that now provide spawning and nursery habitat to at least 20 fish species.

The only thing blazing in the Cuyahoga River these days are the flanks of steelhead trout in scarlet spawning garb. Otters, reintroduced by the Ohio Division of Wildlife in 1986, now breed in 52 of the state’s counties and 44 watersheds. Today Lake Erie is the most ecologically diverse and productive of the Great Lakes, supplying more fish to commercial and recreational fishermen than the others combined.

But all this has brought new ugliness in the form of loud, in-your-face property-rights privatizers who covet what they never owned, what they can’t legally own, and what they scorned 20 years ago—the land below Lake Erie’s ordinary high-water mark. They spew invective, stomp, shout, interrupt, and march around in shirts that say “ODNR [Ohio Department of Natural Resources] Off My Land.” Now, with their attempted land grab of the occasionally exposed and always publicly owned lake bottom, they are trying to cash in on arguably the most impressive and costly pollution-control project in history. If they get their way, they’ll destroy what the rest of the nation sacrificed so much for—the restored fish, wildlife, and natural beauty of the 11th-largest lake in the world.

The Public Trust Doctrine—a federal and state law long tested by the courts—guarantees ownership of Lake Erie’s sometimes submerged lands to all people of the state. As the ODNR explains: “The states have the never-ending obligation to allow the public to conduct certain activities upon the waters and shores of their Great Lakes and oceans. The right of public use of Lake Erie for commerce, navigation and recreation is a fundamental element of the public interest in the great bodies of water that border the United States.” The Ohio Supreme Court has ruled that the state “cannot by acquiescence abandon the trust property or enable a diversion of it to private ends.” Says Jerry Tinianow, executive director of Audubon Ohio and a former trial lawyer, “No case law has been more impregnable.”

But property-rights radicals in Ohio and elsewhere attempt to apply case law as if it were Silly Putty. My guides—Marnie Urso, grassroots coordinator for Audubon Ohio, and her husband, David Kriska, the Cleveland Museum of Natural History’s biodiversity coordinator—took me to the popular kayak-launching beach at Bradstreets Landing in Rocky River, where a sign that had obviously been up a long time ordered the people of Ohio to vacate their own property: “Keep Out. Private beach beyond this point.” When Urso called the town Department of Parks and Recreation to inquire about the sign, it professed ignorance, then did nothing.

At Huntington Beach in Bay Village we were confronted by a chain-link fence extending well below the ordinary high-water mark and, fastened to it, a sign that read: “Beach ends here. No trespassing.” The sign had been erected by Cleveland Metroparks. Even the city buys in to the property-rights BS.

In Huron I met with Firelands Audubon member Pat Krebs, a lakefront owner of a different sort and a key player in the successful fight to save Sheldon Marsh when, in 2000, the U.S. Army Corps of Engineers issued an improper wetlands permit that would have opened it to development. Along East Sandusky Bay she showed me former lake bottom that, because of reduced precipitation in recent years, now extends more than 100 yards to water’s edge. Instead of a natural succession of wetland plants vital to wildlife, it’s clad in alien grasses planted and manicured by the lakefront residents who claim it for their own. Across the street, on the lake side, other residents have erected seawalls that have eroded the beach by bouncing waves and sand straight out. “Twenty years ago the beach here was 100 feet wide,” said Krebs. Now it doesn’t exist.

The best perspective I’ve seen on the property-rights phenomenon privatizing land across our nation is offered by a self-described “crass, unrepentant, capitalist, real-estate, Republican type”—one Donovan Rypkema of Place Economics, a Washington, D.C.–based real estate and economic development consulting firm: “The property rights movement is the most selectively aggrieved political force in America. Those who loudly proclaim, ‘It’s my land and you can’t tell me what to do with it’ are quick to appear before City Council when a homeless shelter is moving in next door or a sanitary landfill is proposed next to their cottage. And their argument won’t be ‘I’m against the homeless’ or ‘Waste shouldn’t be disposed of’ but rather, ‘That action will have an adverse effect on my property value. . . .’ This surreal concept that the right to own real estate somehow exempts one from having to balance rights with responsibilities, this Larry Flint attitude of ‘I can do what the hell I please and the rest of you be damned’ is . . . alien to 300 years of American political history.”

Certainly there are no property-rights radicals in America more “selectively aggrieved” than those who populate Lake Erie’s Ohio shore. Along with the privilege of living next to this now beautiful water body and along with the soaring value of their properties (a gift from the rest of us), they have the legal right to develop public trust lands in front of their houses with sundry fill and structures such as docks, marinas, piers, boat ramps, and even beach-destroying seawalls, groins, and jetties.