Moundbuilders Country Club loses legal fight to keep golf course property
NEWARK − The Ohio Supreme Court ruled the Ohio History Connection can take Moundbuilders Country Club by eminent domain and transform the golf course property, which includes the Newark Earthworks' Octagon Mounds, into a public park.
The country club ran out of legal options to save the golf course on Tuesday, when the Ohio Supreme Court denied the club’s motion to reconsider its Dec. 7 decision, a 6-1 ruling that upheld Ohio’s Fifth District Court of Appeals and Licking County Common Pleas Court verdicts.
Megan Wood, executive director and CEO of the OHC, said the History Connection was prepared for a longer wait to get a ruling on Moundbuilders’ motion to reconsider. A decision next year would be with a new chief justice -- Sharon Kennedy, who cast the lone dissenting vote in the Dec. 7 decision. The current chief justice is Maureen O'Connor.
“We were prepared for it to take longer, but we’re ready to move on to the next steps,” Wood said. “Maybe they wanted to resolve it with the court that originally heard it, but they didn’t have to do that. They weren’t required.”
The decision ends four years of court battles and will soon close the chapter on decades of arguments, confrontations and even arrests as emotions ran high between those committed to increasing public access to an historic site and those determined to keep it operating as a private golf course, which its lease allowed.
The decision sets the stage for a jury trial in Licking County Common Pleas Court to determine the value of the lease, and the amount OHC must pay to Moundbuilders.
The golf course at 125 N. 33rd St. includes the Octagon Earthworks, which is part of Newark Earthworks, the largest set of geometric earthen enclosures in the world, along with Wright Earthworks in Newark and the Great Circle in Newark and Heath.
Newark Earthworks is part of the Hopewell Ceremonial Earthworks nomination to the UNESCO World Heritage list. Inscription on the World Heritage List would show the cultural significance of the site and bring international attention. The nomination will be considered next year.
The Ohio History Connection, which owns the site and leases it to Moundbuilders, said it is allowed just four full access, no-golf days annually for public visitation of the mounds.
“This has been a top priority for us," Wood said. "It’s important to get access. It’s a sacred American Indian site. It’s not an appropriate use of the site, whether or not we have a World Heritage site.”
Joe Fraley, attorney for Moundbuilders Country Club, said the reconsideration filing was based on new information. He said OHC had argued it needed control of the site to pursue World Heritage status.
"The grounds for the reconsideration are that the trial court in reaching its decision on necessity relied on evidence which time has proven to be inaccurate," Fraley stated in the motion to reconsider. "Appellee stated that it was necessary to take appellant MCC’s leasehold interest by eminent domain because appellee could not, and would not, apply for World Heritage status if a golf course existed on the site.
"There is no question that this argument was heavily relied upon by the trial court in reaching its decision on the necessity of the taking and accepted as true by this court in affirming on appeal."
OHC submitted its World Heritage application of the Hopewell Ceremonial Earthworks to the U.S. Department of Interior in December 2021. Then in March, the U.S. Department of Interior submitted to UNESCO the nomination of the site for World Heritage status.
The Hopewell Ceremonial Earthworks is a group of eight archeological sites in Ohio, including Newark Earthworks, Fort Ancient between Cincinnati and Dayton and the Hopewell Culture National Historical Park in Chillicothe.
The Ohio History Connection said pursuit of World Heritage status had no bearing on the key eminent domain questions facing the court and is a separate issue.
The OHC stated the court’s decision was based on three facts – the plans to create a public park on the site of the Octagon Earthworks; that a park is a public use; and that appropriation of the site is necessary because a public park cannot be located at a private country club. World Heritage consideration does not affect those key elements, the OHC stated.
“Nothing in the country club’s motion provides any reason why the court should revisit those aspects of its decision,” OHC argued. “The History Connection still seeks to establish a public park, meaning its taking is as necessary as ever.
“The country club admitted in its answer, for example, that the presence of the golf course on the Octagon Earthworks site was incompatible with the use of the site as a public park. Because the court’s decisions rested on the planned park use, the reconsideration motion provides no sound basis for reconsideration.”
In November 2018, the Ohio History Connection, previously the Ohio Historical Society, filed a civil lawsuit against Moundbuilders Country Club, intending to buy back the lease on the Newark property, which has been operated as a golf course since 1910.
The OHC said it has had three goals -- to open the Octagon Earthworks for public use; to "preserve the original religious, ceremonial, and cultural significance of the site;" and to nominate it to the World Heritage list.
On Jan. 29, 2020, the Ohio Fifth District Court of Appeals rejected a Moundbuilders' appeal, affirming a May 10, 2019, decision of Licking County Common Pleas Court Judge David Branstool that OHC had the authority to acquire the lease by eminent domain. The 1957 lease was amended in 1997, providing a 50-year extension of the lease from an expiration date of 2028 to 2078.
The Ohio Supreme Court voted 5-2 in July 2020 to hear the Moundbuilders’ appeal and both sides made their cases to the justices with oral arguments in April 2021. Then, both sides waited 20 months.
In its Dec. 7 ruling, the Ohio Supreme Court stated, "The Ohio History Connection presented evidence to establish that it made a good-faith offer to purchase the Moundbuilders Country Club Company’s lease interest, and the country club failed to offer anything other than speculation to rebut that evidence.
"Further, the country club failed to rebut the statutory presumption that the creation of a public park for the Octagon Earthworks constituted a public use and that the taking was necessary for that public use."
The Octagon Earthworks consists of a 50-acre, 8-sided enclosure with earthen walls measuring about 550 feet long and 5 to 6 feet in height. Built between 1 and 400 A.D., it was part of a 4-square-mile complex now known as the Newark Earthworks, which was part cathedral, part cemetery and part astronomical observatory.
The Octagon is aligned to the four moonrises and moonsets that mark a complicated 18.6-year-long lunar cycle.
The remaining question is what will the property look like when the country club leaves and it becomes a public park.
Brad Lepper, senior archeologist for the Ohio History Connection, said it will no longer look like a golf course, but that doesn’t mean it’s not being maintained.
"These sites are not supposed to look like a golf course,” Lepper said. “They’re supposed to look like a park. A grassland, almost a prairie. They were prairies before the Earthworks were built. It was a managed environment by American Indian people.
“People have tried to diminish it by saying it’s just piles of dirt," Lepper said. "That’s so naïve, in the same way the Parthenon is just a pile of stones."
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This article originally appeared on Newark Advocate: Moundbuilders Country Club loses legal fight to keep golf course property
