Monday, November 2nd, 2009
By Nancy Allen
Suit over Grand Lake spillway moving forward
A lawsuit filed by 86 farmers who blame increased flooding of their land on Grand Lake's West Bank spillway is progressing through the Ohio Supreme Court.
The court recently issued an order appointing a special master to take evidence for the purpose of deciding whether to start proceedings to determine if and how much these landowners should be compensated, the landowners' Columbus attorney Bruce Ingram said.
The landowners, all with acreage along Beaver Creek and/or the Wabash River, filed a writ of mandamus complaint on July 17 in the high court seeking compensation for their flooded land. A writ of mandamus is a court order directing the state to pay landowners for illegally taking property for a flowage easement.
The lawsuit includes more than 200 parcels of land, court documents show. If the farmers win and the state must compensate them for their flooded land, they would still be able to farm it, Ohio Attorney General's Office spokesman Ted Hart said this morning.
The Ohio Supreme Court has denied a motion by ODNR to dismiss the case on the grounds that the statute of limitations during which to file the lawsuit has passed, Hart said. He would not talk about what the state's next step would be.
Ingram said the special master will be responsible for obtaining the evidence and then the court's seven justices will be responsible for deciding the case. The justices could decide the case based just on the written evidence or may accept oral arguments as well, he said.
If the justices decide in favor of the 86 landowners, ODNR would be compelled to institute eminent domain action and compensate the landowners for their flooded farmland, he said.
This is the same type of action taken by five landowners in a separate case first filed against the state in 2001, Ingram said. Those farmers won more than $1 million in compensation from the state for their flooded land due to the spillway, but that case is ongoing as the farmers are suing for more money.
In this latest mandamus complaint, the 86 landowners say the new 500-foot-spillway, opened in 1997, releases a larger amount of water at a faster rate than did the original 39-foot-spillway built in 1913. ODNR replaced the spillway after a dam inspection showed the old one was in danger of over-topping and failing.
From the outset of the replacement project, federal and local agencies and numerous landowners expressed concern that the new spillway would result in greater flooding downstream, the complaint says.
After the new spillway was opened, the state discontinued a drawdown policy whereby the lake's water level was lowered to minimize flooding. The new spillway has two tubes at its base designed for such purposes, the complaint states.
Since the state opened the larger spillway and changed its water level management practices, landowners have experienced and continue to experience increased and severe flooding, the complaint states. Some land that never used to flood now floods, the complaint says.
Landowners continue to suffer damage from erosion, soil compaction, the deposit of silt, sand, stones and other debris on their land, drainage tile failure, crop losses, the destruction of trees and other vegetation, the destruction of homes and buildings, damaged equipment and livestock losses, the complaint states. Severe flooding occurred as recently as this year, it says.
In conclusion, the complaint says that the state's action of redesigning the spillway and improperly controlling the lake's water level has forever altered the landowners' lives, making flooding not a one-time event, but a continuing, persistent problem.
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