Get Off Your Land!

Here’s Tinianow’s take on Logan’s statements: “What he’s saying is that of course you need a permit to put a structure into the water. They’re still going to regulate that. I think the question is going to be, though, if someone owns land below the high-water mark, can they now lay down fill and develop it to the water’s edge without getting a lease from ODNR.”

The new policy threatens much more than habitat behind shoreline houses. The governor’s abandonment of the public trust may abrogate Ohio’s legal authority to protect Lake Erie from polluters as well as out-of-state interests bent on pumping water from it. “The public trust isn’t some esoteric legal theory,” says the Ohio Environmental Council’s Jack Shaner. “It may seem incredible that the public’s rights to air, water, fish, and wildlife could ever be at risk, but here is prima facie evidence that this is a possibility.”

The National Wildlife Federation’s Brian Preston offers this: “We’re pursuing a $20 billion Great Lakes Restoration Act in Congress. This is the northern equivalent of the Everglades restoration. Then we go to the Hill and get asked, ‘How are you going to manage something you don’t own?’ If I produced some deed that said I owned part of Yellowstone National Park, would anybody honor it? That’s the insanity of this.”

Currently the ODNR’s Office of Coastal Management gets about $2 million a year from NOAA, money that is matched one to one with non-federal funds. The office then awards grants for all manner of important habitat restoration. Now that money may dry up. “We don’t know how the new policy is going to affect our grants,” says the Office of Coastal Management’s public information officer, Brenda Culler-Gautschi. “If there’s a change in the coastal management program—legislative or otherwise—the federal government has to look at our program and reauthorize it. At any time they can say, ‘Sorry, you don’t meet the conditions for approval.’ Then we don’t get the $2 million and we can’t issue grants.”

Under the governor’s new policy, coastal residents don’t need to get leases for beach development if they produce deeds (all of them invalid under state and federal law) that say they own to low water. Culler-Gautschi declined to share her opinion of the new policy, but she did say this about what she perceived to be the value of the lease system: “If a community is looking to develop, they might not realize the project is in one of the tributaries in which walleyes spawn. Considering how much money comes from recreational fishing, they might want to change their plans. We’re trying to give local decision makers the tools for good management.”

Messes created by property-rights radicals, weak politicians who two-step for them, and gullible electorates who imbibe their snake oil invariably get cleaned up. But the remarkable thing about these messes is the damage they do. For example, in 2004 Oregon voters overwhelmingly approved Measure 37, which compels the state to waive land-use regulations or cough up cash to property owners who contend that the regulations reduce their property values. Measure 37, written by and for the timber industry, has vaporized the nation’s strongest anti-sprawl laws. So far contributors to the campaign have filed $600 million worth of takings claims against the state, and since there’s scant money to pay them, the state is letting them hack away. Damage to farmland and forestland has been horrendous, so now the legislature has passed a partial fix, Measure 49, that will be on the ballot this November. “It doesn’t get Oregon back to where it was,” says John Echeverria, director of the Georgetown University Environmental Law & Policy Institute. “But it undoes a great deal of the damage.”

If the Ohio mess gets fixed, it will be largely the doing of the state’s new attorney general, Marc Dann—a champion of fish and wildlife who, in his first six months in office, served notice to polluters and habitat destroyers by filing 57 environmental enforcement actions. Dann, who was glad to meet with an Audubon columnist on short notice, finds the position of the governor (a fellow Democrat) “inconsistent with Ohio law” and has therefore refused to represent the ODNR in its legal battle with the Lakefront Group.

“I believe my role is to represent my institutional clients as well as the people those institutions were created to serve,” Dann declared. “In this lawsuit the state and the ODNR are separate defendants. The only person who can represent the State of Ohio is me. ODNR is a client; they changed their position against my advice. I had no alternative but to hire them outside lawyers. And I continue to represent the people of the state. The case law and the history of the creation of Ohio and the Northwest Territory and the Western Reserve all lead to the same conclusion—that if anybody had a deed showing their land went to the low-water mark, that deed couldn’t be valid because nobody ever had the authority to give away submerged land. These folks may have been defrauded by someone, but it wasn’t the State of Ohio.  You can’t give what you don’t have.”

The more I talked with Dann the clearer it became to me that the Lakefront Group has no long-term future in Ohio. But I’ve dealt with and written about the property-rights movement long enough to have learned that neutralizing it is like clipping Asian bittersweet. It always comes back (albeit in new places and under new names such as the “Wise-Use Movement,” the “Sagebrush Rebellion,” and “County Supremacy”). It always flimflams the public and politicians. It always disrupts. And it always destroys fish and wildlife.

Ted Williams’s opinion column has been a leading independent voice of environmental journalism for 20 years.