COLUMBUS, Ohio (CN) — An Ohio country club that refused to give up its lease for a site that is home to Native American earthworks believed to be roughly 2,000 years old took its fight to the Ohio Supreme Court on Tuesday.
The Ohio History Connection owns the Newark property where the Octagon Earthworks sit, which has been leased to the Moundbuilders Country Club since 1910. Under that lease, the public is guaranteed complete access to the earthworks for four days each year. The club further allows the public access to the cultural site on Mondays from November to March, and on Monday mornings from April to October as long as the club does not have a scheduled activity. A portion of the Octagon Earthworks is also available for viewing from a visitation area at any time.
The historical group wants to open up the site to the public as a park, with unrestricted access, tours and educational opportunities. It also plans to restore the site and preserve it, and make it available for research.
In 2018, the Interior Department asked Ohio History Connection to file a joint application with the National Parks Service to have the Octagon Earthworks and seven other Ohio earthworks sites, which are collectively known as the Hopewell Ceremonial Earthworks, designated as a World Heritage Site. The designation cannot be granted if the Octagon Earthworks is under the control of the Moundbuilders Country Club.
The historical group attempted to buy out the lease in 2018, but the club declined to negotiate. In response, Ohio History Connection filed a petition for eminent domain over the earthworks, kicking off a legal battle against the country club.
In an initial court hearing, Moundbuilders argued that the historical group could not use eminent domain to acquire the property, that the offer was less than fair market value and that taking the property was not necessary. After a four-day hearing, a Licking County judge granted Ohio History Connection’s petition, with the stipulation that the property go through a valuation stage. The country club had argued that the group made a lowball offer of $800,000.
Before that valuation stage could begin, Moundbuilders appealed to Ohio’s Fifth District Court of Appeals, contending that the lower court erred in finding Ohio History Connection negotiated in good faith, but the appellate court upheld the lower court’s decision.
Moundbuilders then took the case to the Ohio Supreme Court, which heard arguments Tuesday via videoconference.
The country club's attorney Josh Fraley opened by going over the historical group's offers, saying a second, lower offer was not presented to the club and arguing the group did not act in good faith.
“The court has said that a party may have failed to make a good faith offer, even when it is not in bad faith,” Fraley argued. “The appellate court erred when it said that a lack of bad faith equated to good faith.”
Justice Patrick DeWine questioned the appraisal argument. “Let’s assume he only had the appraisal for the $800,000, and they made that offer. Would that have been a good faith offer?” the judge asked, referring to Ohio History Connection's CEO.
Fraley answered in the affirmative, explaining to the court that the eminent domain statute only calls for one appraisal.
Chief Justice Maureen O’Connor then questioned why the court is hearing the appraisal argument.
“You can take that appraisal to the court, you can show that the appraisal was inadequate or undervalued, you can then dispute that, and present evidence in court, and a determination on the appraisal is then made," she said. "So why is that fatal here? Because you say that it was an uninformed appraisal, which I would think you’re saying is that it was too low?”
Fraley said Ohio History Connection did not allow the country club to look at the second appraisal. “So this is not about how much the appraisal was or whether that appraisal counts," he said.
The attorney went onto argue that the historical group does not have the right to create a public park, and then said that the only reason they intend to build one is to get the earthworks into UNESCO's World Heritage Foundation. He argued the group only has the right to take the land for a monument. “So this would be a 125-acre monument,” Fraley said.
Arguing for Ohio History Connection, attorney Samuel Peterson explained that two relevant statutes give the group power to reclaim control of the property.
“The statute specifically gives the History Connection the power to acquire property through eminent domain, specifically referring to earthworks and any prehistoric mound," he said. "Another statute sets out the duties of the History Connection, which are to acquire and maintain earthworks.”
He said the historical group owns and operates parks throughout the state, including another park just down the road from the country club which houses another part of the earthworks, “and no one has disputed that the History Connection has the authority to operate that park.”
Peterson then touched on the appraisal issue, claiming that presenting an appraisal done by a licensed appraiser is in good faith.
Justice DeWine questioned him on that point.
“Can’t they just shop around until they get an appraisal that they like? If that’s the only one you disclose, it doesn’t seem like it’s good faith," the judge asked.
“I think it is, your honor," Peterson responded, saying the offer was made for fair market value and pointing out that qualified appraisers are licensed and answer to a higher authority.
DeWine then asked about broad ranges of appraisals like the ones the court sees in tax cases. “Can they all be fair market value?” he asked.
Peterson replied, “You’re right, they can’t all be fair market value, but that’s why we have valuation proceedings, and that’s why they are presented to a jury."
In rebuttal, Fraley was asked numerous times by the justices how knowing about the two appraisals would change anything. The attorney danced around the issue of what would be different, arguing that Ohio History Connection did not “initiate this process properly.”
The Ohio Supreme Court is expected to issue a decision in the next few months.
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