|08-21-03: Court ruling nears on local farmers' suit
|By NANCY ALLEN
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
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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