ODNR must demonstrate why it shouldn't be held in contempt of court

By Bret Crow
The Ohio Supreme Court

A year after ordering a state agency to compensate landowners for “taking” their property, the Ohio Supreme Court this week will ask attorneys for the Ohio Department of Natural Resources (ODNR) why it hasn’t complied.

At the show cause hearing on Dec. 4, ODNR will present arguments for why it shouldn’t be held in contempt.

On Dec. 1, 2011, the Supreme Court unanimously ordered ODNR to commence appropriation proceedings to compensate landowners west of Grand Lake St. Mary’s for a “taking” of their property caused by increased overflows from the lake into Beaver Creek resulting from a widening of the western spillway.

The Supreme Court concluded that ODNR was “liable for the damage to downstream landowners caused by the intermittent, but inevitably recurring, flooding that resulted from the new western spillway.”

ODNR opposed the show cause motion stating that it “has moved diligently to meet the requirements” of the Supreme Court’s order.

“ODNR has acted with the diligence and good faith required to properly prepare and file the appropriations cases as mandated by this Court, R.C. Chapter 163 and the trial court in which the appropriations cases will be heard,” according to ODNR’s memorandum in opposition.

“At the same time, ODNR attempted in good faith to avoid the filing of individual cases through (settlement) negotiations. The fact that these negotiations failed, and the fact that ODNR is now following its statutorily mandated duties by filing individual appropriations cases, are insufficient to support a conclusion that ODNR is in contempt of this Court’s mandate.”