Thursday, May 22nd, 2014
Supreme Court doesn't hold state in contempt
Both sides in Grand Lake lawsuit pleased by ruling
By Kathy Thompson
The Ohio Department of Natural Resources and attorneys for more than 50 Mercer County landowners are each claiming victory after the Ohio Supreme Court on Wednesday opted not to hold the state agency in contempt.
The landowners in late April asked the court to hold the state in contempt, saying ODNR was stalling rather than paying them after local juries began awarding large amounts for their flooded properties. Their attorneys believe the court's ruling will speed up the award process.
The state delayed appropriation trials by appealing the awards with claims of new evidence showing flooding is not as widespread as it was in 2003. The state wants the monetary awards based on the new findings.
ODNR officials hope the Supreme Court's ruling will allow the new evidence to be acknowledged in the local court to determine awards more fairly.
All seven judges concurred the state is not in contempt. Justice Paul E. Pfeifer noted that ODNR at the contempt hearing in April stated it has sufficient funds to compensate the owners for their land and is able to proceed to trial at an "accelerated pace with the possible assistance of visiting judges appointed by the high court."
Pfeifer also stated that Mercer County Common Pleas Court is the proper venue to determine how much money each landowner should receive. He stated his support for basing appropriations on the flood levels set in 2003.
"There is no doubt that the state represented to this court in the 2012 proceeding that the 2003 flood level set the extent of the taking (of land)," he wrote.
Mike Williams, lead attorney for the state, said the local court will now have the option to allow ODNR to enter the new evidence at the trials.
"While the Supreme Court did not say that, exactly, an inference can be made that we can bring in evidence that shows the flooding should be from the 1997 spillway modifications, not for all time," he said. "We still believe that evidence should be considered in the trial courts."
The landowners' attorney Joseph Miller strongly disagreed.
"The Supreme Court has made clear that ODNR cannot relitigate issues that have already been decided in favor of the landowners," he said. "The court of common pleas will handle these matters appropriately to ensure our clients receive just compensation as required by law."
This was the second time the Supreme Court was asked by the landowners' attorneys to hold ODNR in contempt for not moving forward with the appropriation trials. The first time was in late 2012.
The state also expressed its satisfaction with the outcome.
"We're very satisfied with the decision," Williams told The Daily Standard on Wednesday. "We are looking forward to getting the cases back on track and get the owners paid what they are entitled to."
Attorneys for the landowners said they also are pleased with the ruling and expect the state to proceed with the appropriation trials without further delay.
"While the Supreme Court did not hold ODNR in contempt, the court recognized that ODNR must abide by its prior representations and compensate the landowners fully," Miller said. "ODNR cannot back out of those representations to relitigate issues that these landowners previously won."
The landowners sued the state in 2009 for flooding their property via the state-owned West Bank spillway on the west side of Grand Lake. They claimed the flooding of their land resulted in a taking of their property. The Supreme Court in 2011 ruled in favor of the landowners and ordered the cases to be settled in Mercer County court.
Four appropriation trials were held last year. Janet and Wayne Doner received $1.9 million and the case was closed. Three other cases were appropriated: Stanley Ebbing was awarded $765,000; Mark Knapke was awarded $293,000, and Chad Knapke was awarded $482,000. However, those cases were appealed by ODNR to the Third District Court of Appeals.
Some remaining cases are scheduled for trial this year; others have no trial dates.