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State Can Acquire Octagon Earthworks From Country Club

Image of a bronze plate embossed with words and a map

The Court ruled the Ohio History Connection can proceed with its efforts to acquire the Octagon Earthworks of Newark.

Image of a bronze plate embossed with words and a map

The Court ruled the Ohio History Connection can proceed with its efforts to acquire the Octagon Earthworks of Newark.

The Ohio History Connection can proceed with its efforts to transform the Octagon Earthworks of Newark into a public park by extinguishing the Moundbuilders Country Club lease on the land, the Supreme Court of Ohio ruled today.

A Supreme Court majority affirmed a Fifth District Court of Appeals decision allowing the History Connection to take the land through eminent domain. The state agency wants to convert the Octagon Earthworks into a public park so that it can nominate the structures to the World Heritage list as part of the interconnected Hopewell Ceremonial Earthworks.

Writing for the Court majority, Justice Michael P. Donnelly stated that establishing the earthworks as a public park will “help preserve and ensure perpetual public access to one of the most significant landmarks in the state of Ohio.”

Chief Justice Maureen O’Connor and Justices R. Patrick DeWine, Melody Stewart, and Jennifer Brunner joined Justice Donnelly’s opinion. Justice Patrick F. Fischer concurred in judgment only.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that under Court precedent, if the public use of the land is “contingent and prospective” and the private use is “actual and present,” then taking the land by eminent domain is not lawful. She wrote the History Connection presented that its ownership of the land would only allow for the federal government to nominate the earthworks to the World Heritage list, and there are no assurances it will be named a heritage site.

Federal Assistance Prompts Termination of Long-Term Lease
The Octagon Earthworks are part of a system of geometric earth structures that cover 4.5 square miles in and around Newark. Built around 2,000 years ago, the Octagon Earthworks align with the 18.6-year cycle of the moon’s orbital path around the Earth.

“Of all known prehistoric earthworks in the world, it offers a unique example of human ingenuity and the perennial desire to understand the universe and its celestial bodies,” Justice Donnelly wrote. “The historical, archeological, and astronomical significance of the Octagon Earthworks is arguably equivalent to Stonehenge or Machu Picchu.”
The country club has leased the Octagon Earthworks property since 1910 and has operated a private club and golf course there. The History Connection, formerly the Ohio Historical Society, acquired ownership of the land in 1933, which included the country club’s lease. The History Connection allowed the club to renew its lease over the years, most recently in 1997.

Under the terms of the property’s deed, the History Connection has the right to allow public access to the earthworks, but the access is limited to the club’s “reasonable rules.” The History Connection has maintained that since 2003, the club has made it nearly impossible for the public to access the earthworks.

In recent years, the History Connection has explored the possibility of nominating the Octagon Earthworks, in conjunction with two other Hopewell Ceremonial Earthworks, as a World Heritage site under the United Nations Educational, Science and Cultural Organization. The designation would provide international recognition and legal protection.

The U.S. National Park Service and U.S. Department of Interior stated that it would assist the History Connection in getting on the heritage list only if the state agency terminated the country club’s lease and physically removed the golf course.

Acquisition Attempts Fail
In 2017, the History Connection hired two real estate appraisal companies to complete independent appraisals of the country club’s lease. The reports were delivered to the History Connection’s then executive director Lox Albert Logan.

The appraisal by Samuel D. Koon and Associates valued the leasing rights at $795,000. The appraisal by Robert Weiler Company appeared to value the lease at $500,000. Logan used the Koon appraisal and made a written offer to the country club to buy out its leasing rights for $800,000. The country club did not respond.

In November 2018, the History Connection declared that it was unable to negotiate a purchase with the country club. It sought to acquire the rights through eminent domain. To do so, it followed the state law procedure by filing an appropriation action in Licking County Common Pleas Court.

Club Suspects Bad Faith Tactics
During the discovery process, an attorney for the History Connection noticed the Weiler appraisal was not actually for the value of the leasing rights. While not specifically stated in the report, the appraisal valued the club’s leasehold interest at $1.75 million.

During the appropriations case, the club asserted that the History Connection failed to follow key steps to acquire the property. The club maintained the state failed to prove that the taking of the land was “necessary and for a public use,” which is required under R.C. 163.021(A). And the club argued the agency did not submit a good-faith purchase offer before filing the lawsuit.

The club accused Logan and the History Connection of bad faith by purposefully hiding the Weiler appraisal and presenting the much lower amount from the Koon appraisal. Logan countered that he followed the law by using two independent, qualified appraisers, which alone established that he acted in good faith. He also was not aware of the Weiler misinterpretation and used what appeared to be the higher of the two appraisals.

The trial court agreed with the History Connection that full ownership of the land was required to allow for public use and that the purchase of the leasing rights was necessary. The trial court also found the Logan’s misinterpretation of the Weiler appraisal was “completely reasonable,” and based on the trial court’s own reading of the Weiler report.

The country club appealed the decision to the Fifth District, which affirmed the trial court’s decision. The club appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Examines Good Faith Offer
In its appeal, the country club argued the lower courts used too low of a standard to decide that the History Connection’s offer was in good faith. To acquire the property under R.C. 163.04(B), a state agency must make a “written good faith offer” before filing an appropriations lawsuit. But the law does not provide any further definition of a good faith offer, the Supreme Court’s opinion noted.

The country club maintained the lower courts considered that not acting in bad faith constitutes acting in good faith. The club maintained that the courts found the History Connection was acting in good faith only because it was not acting with a “dishonest intent.”

The Supreme Court agreed with the country club that the standard of acting without dishonest intent was too low. It examined a number of other instances in state law and common law where acting in good or bad faith is considered. The opinion stated that in the context of eminent domain, bad faith “can be shown by presenting evidence of objectively unreasonable behavior.”

Under the standard sought by the country club, the Court ruled that the club presented no evidence that the History Connection acted unreasonably or in bad faith. The agency obtained two appraisals and offered the club more money than the highest of the two appraisals. The Court said there was no claim by the club that the “appraisers were unqualified or untruthful.”

Acquisition Considered Necessary
The Court also examined the club’s claim that the taking of the land was necessary. It argued that the Court should consider not only if the land is for a public use, but also whether the taking “is in the best interest of the public as a whole.”

The Court noted the club did not dispute that the History Connection could not create a public park while the club maintained control and private use of the property. Acquiring the leasing rights was necessary for the agency to open the land to public use, the opinion stated.

The club also argued the public interest would not be served because the government will not adequately preserve the site and wants it only to gain World Heritage designation, which is far from certain.

The Court disagreed, stating the History Connection’s purpose is to offer the earthworks up to the public and the world. Citing a 2016 article by Earlham College professors Ray Hively and Robert Horn, the Court stated the earthworks are “a prehistoric monument that has no parallel in the world in its ‘combination of scale, geometric accuracy, and precision.’”

The Court remanded the case to the trial court to proceed with the appropriation proceedings.

Proposed Use Too Speculative, Dissent Maintained
In her dissent, Justice Kennedy wrote the trial court failed to consider the speculative nature of the claimed “necessity’ for appropriating the land. She noted the History Connection’s board of trustees stated in a resolution that it was to restore the Octagon Earthworks, open them to the public, preserve the ceremonial and cultural significance, and nominate the site for the World Heritage list.

The dissent stated the ultimate reason was for more than just “nomination,” but to have the earthworks included on the heritage list. But to be nominated is no assurance the site will be selected, she wrote. Justice Kennedy noted that between 2008 and the trial court’s hearing on the matter, only two of five sites nominated by the United States have been accepted as World Heritage sites.

“Further, no contract, agreement, or memorandum of understanding was submitted as evidence that the appropriation by the History Connection will result in the earthworks’ designation as a World Heritage Site,” she wrote.

Because the designation is speculative and  outside of the control of the History Connection, Justice Kennedy concluded that the case should be remanded to the trial court to consider the necessity of the appropriation while accounting for the speculative nature of the History Connection’s ultimate use.

2020-0191. State ex rel. Ohio History Connection v. Moundbuilders Country Club, Slip Opinion No. 2022-Ohio-4345.

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