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12-28-05 Local farmers win suit over spillway flooding

By Nancy Allen

  A visiting judge has issued a final ruling in favor of five local farmers suing the state over farmland flooding they say has been worsened by the new West Bank spillway on Grand Lake.

  Judge Lawrence Grey's ruling clears the way for a jury trial, which will be set to determine how the Ohio Department of Natural Resources will compensate the farmers for flood damage.

  "We are gratified that judge Grey has finalized his decision," said Columbus attorney Tony Logan, who represented the farmers. "It is high time my clients had an opportunity to present a case for compensation against the ODNR."

  A spokeswoman for the state said ODNR officials are still reviewing Grey's decision and expect to decide in the next week and a half whether or not to appeal it. The state has until Jan. 13 to file an appeal with the Third District Court of Appeals in Lima.

  Suing the state are Leo Post, 882 Carmel Church Road; Richard Baucher, 3417 state Route 29; Steve Zumberge, 4422 state Route 29; Terry Linn, 7018 Ohio-Indiana State Line Road; and Emily Minch, 7135 state Route 49. Minch was substituted in the civil case after her husband, Jack Minch, died in August.  The ruling came as a result of a two-day civil trial in February held in Mercer County Common Pleas Court. Common Pleas Court Judge Jeff Ingraham recused himself from the case because he represented one of the plaintiff's family members years ago in a similar case. The civil trial was heard by Grey and had no jury.

  The farmers all own land along either Beaver Creek or the Wabash River, which are both fed by Grand Lake. Excess floodwater exits the lake via the West Bank spillway and empties into Beaver Creek, which then empties into the Wabash River in Liberty Township.

  Logan first filed the case on his clients' behalf in May 2001.

  In their lawsuit, the five farmers ask to be compensated by the state for what they claim is an "illegal taking" of 500 acres of their farmland and using it to store impounded floodwater from the lake. They claim the new concrete spillway that opened in 1997 discharges a larger amount of water at a faster rate than the old one built in 1913 and that flooding of their farmland is now more severe and lasts longer with the new spillway. They also testified they lost crops due to the flooding.

  The state denied the charges and said there are many factors which cause the farmers already flood-prone land to flood. Witnesses testifying for the state also noted that much of the plaintiffs' land is in a flood plain.

  Grey in his ruling never found fault with the state for the spillway reconstruction, saying it was done for the greater good to reduce residential flooding. But he also noted it was done at the detriment of farmers downstream and that the state should compensate them. The state replaced the old 1913 spillway because dam inspection regulations said it was in danger of failing due to overtopping.

  "The plaintiffs are suffering and will continue to suffer severe, frequent and persistent increased flooding as a result of the modifications to the west spillway of Grand Lake St. Marys by the Ohio Department of Natural Resources, and they have a clear legal right to be compensated for their lands taken for public use," Grey wrote in his final decision.


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