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02-01-06 State appeals ruling in area spillway suit

By Nancy Allen

  The Ohio Department of Natural Resources is appealing a local court ruling in favor of five local farmers who sued the state over farmland flooding they say has been worsened by the West Bank spillway.

  In the December decision, visiting Judge Lawrence Grey ruled there had been an "illegal taking" of 500 acres of the farmers' land by the state due to recurring flooding due to the spillway. He also ruled the farmers were entitled to damages from the state and that is to be determined during a jury trial.

  The appeal, filed Jan. 11, is being heard by Third District Court of Appeals in Lima.

  The farmers' attorney, Tony Logan, this morning said he is not convinced ODNR has grounds for appeal, a procedural decision that will be made by the appeals court.

  "It is an unusual case in that we received a decision from the court finding that my clients did suffer a taking from recurring flooding. The next phase is to determine the compensation," Logan said. "But in the meantime, the ODNR is trying to move the case into the court of appeals."  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, died in August.

  Grey's decision came after a two-day civil trial in February 2005 in Mercer County Common Pleas Court. Judge Jeff Ingraham recused himself from the case because he had 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, 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 the lawsuit, the farmers claimed 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. They claimed flooding is more severe and lasts longer with the new spillway. They also testified they lost crops as a result.

  The state denied the charges and said there are many factors that caused the farmers already flood-prone land to flood other than just the new spillway. Witnesses testifying for the state also noted that much of the land owned by the plaintiffs is in a floodplain.

  Grey never found fault with the state for the spillway reconstruction, saying it was done for the greater good to reduce residential flooding. But he noted it was done at the detriment of farmers downstream and 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.


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