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08-21-03: Court ruling nears on local farmers' suit over spillway

    Mercer County Common Pleas Court Judge Jeff Ingraham soon could decide whether to dismiss or send to trial a civil lawsuit filed by five  Mercer County farmers who claim the West Bank spillway cause  flooding on their land.
    Ingraham said he hopes within the next 30 days to make a decision on a motion to dismiss the case filed by the defendants - the Ohio  Department of Natural Resources (ODNR) and its Director Sam Speck. If Ingraham does not dismiss the lawsuit, it will proceed to trial. If he does dismiss it, the case still could be appealed by the plaintiffs.
    The complex, several inches thick case was first filed in May 2001 and has been under consideration by Ingraham since last December. Ingraham reclassified the case as complex litigation for reporting purposes, due to the number of parties involved and other reasons, court filings indicate.
    Plaintiffs in the lawsuit are Leo Post, 882 Carmel Church Road, Richard Baucher, 3417 Ohio 29, Jack Minch, 7135 Ohio 49, Steve Zumberge, 4422 Ohio 29, and Terry Linn, 7018 Ohio-Indiana State Line Road, all of rural Celina.
    They all own farmland in Jefferson, Washington and Liberty townships subject to flooding from Beaver Creek and the Wabash River, court documents state. Grand Lake St. Marys discharges rainwater overflow  via the West Bank spillway into Beaver Creek, which then empties into the Wabash River.
    In court documents filed by their Columbus attorney, J. Anthony Logan, the farmers say flooding from the spillway makes their agricultural ground useless and that the use of their land to "store" floodwater from  Grand Lake St. Marys constitutes an illegal "taking" of their land. The plaintiffs argue that the state should compensate them for their flooded land and have asked ODNR to initiate appropriation proceedings to determine the compensation amount. They also have requested a jury trial to decide the matter.
    ODNR officials through their counsel, the Ohio Attorney General's office, deny the accusations and say there is no real evidence to prove the spillway is solely responsible for the flooding of their land and that a variety of variables are responsible. ODNR has requested that Ingraham dismiss the case.
    In court documents, the plaintiffs claim the new, larger spillway opened in 1997 and the elimination of a water drawdown policy by ODNR is directly to blame for the increased flooding of their farmland.
    The current 500-foot-long West Bank spillway discharges more flow at one time than the old 39-foot-long spillway built in 1913, causing more frequent, severe and prolonged periods of flooding on their land, the plaintiffs say. They also claim that after the new spillway was opened, ODNR discontinued a policy whereby it used to open discharge tubes below the spillway to draw down the lake's water level during winter months and failed to widen Beaver Creek to accept the larger flow of water.
    In affidavits, the five farmers testified that based on their personal observations, flooding has occurred more frequently and severely than in the years prior to the opening of the new spillway.
    ODNR officials admit the new spillway discharges a greater amount of water at one time than the old one and that it was designed that way to keep the West Bank, a manmad artificial earthen dam, from overtopping with water from the lake during periods of heavy precipitation. The new, larger spillway made it unnecessary for ODNR officials to continue drawing the lake down in winter months, ODNR Engineer Mark Ogden said in his court deposition.
    ODNR officials also noted the reason the old 1913 spillway was replaced was because it was considered a high hazard dam capable of overtopping, an act that could cause the West Bank to fail.
    In ODNR's motion to dismiss the case, Joan Fishel, an assistant Ohio attorney general, states that frequent inundation of the plaintiffs' land is nothing new, noting that it is in a floodplain. The land is flat, poorly drained and subject to frequent flooding, he said, adding that the plaintiffs did not offer any proof to the court that flooding since 1997 has been any greater than flooding they had always experienced prior to the new spillway.
    Phone messages left with the four plaintiffs requesting comments were not returned, but John Zumberge, 80, the father of plaintiff Steve Zumberge, said something needs to be done about how ODNR manages the spillway.
    The elder Zumberge, 6612 Meyer Road, Celina, has wrangled with ODNR officials throughout the years over their management of the spillway. In fact he unsuccessfully filed a similar spillway lawsuit against ODNR in the Ohio Court of Claims back in the 1960s or 1970s.
    "They are holding that lake level way too high," John Zumberge said. "That's why we had the extreme flooding we had this past month."
    Zumberge said he thinks his son and the four other plaintiffs have a chance of winning their case. At least a better chance than he had.
    "Before this flood, I figured nothing was gonna happen, but since this happened, I hope to heck they have a good chance."


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