Ohio Supreme Court rules against Moundbuilders Country Club in Newark Earthworks case

NEWARK − The Ohio Supreme Court ruled Tuesday against Moundbuilders Country Club in its appeal of lower court rulings allowing the Ohio History Connection to reclaim the Newark golf course property by eminent domain.

The 6-1 ruling upheld decisions in Ohio’s Fifth District Court of Appeals and Licking County Common Pleas Court. Justice Sharon Kennedy cast the lone dissenting vote. Justice Patrick Fischer concurred in the decision only, not in the written opinion by Justice Michael Donnelly.

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.

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 has the authority to acquire the lease by eminent domain.

The Newark golf course is located at the Octagon Earthworks site, 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.

The Ohio History Connection, which owns the site and leases it to Moundbuilders, said it is allowed just four full access days annually for public visitation.

In its 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. Accordingly, we affirm the judgment of the Fifth District Court of Appeals, and we remand the cause to the trial court to proceed to a jury trial in the History Connection’s appropriation action.”

The Newark Earthworks is part of the Hopewell Ceremonial Earthworks nomination to the UNESCO World Heritage List. The National Parks Service announced earlier this year the nomination will be considered in the summer.

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. Inscription on the World Heritage List would show the cultural significance of the sites and bring them international attention.

Joe Fraley, attorney for Moundbuilders Country Club, said the Ohio Supreme Court ruling is not the end of the legal proceedings.

"We're obviously disappointed," Fraley said. "But we're not done. Most likely, we'll file for reconsideration to the Ohio Supreme Court of that decision."

Fraley said the reconsideration filing would be based on new information. He said OHC previously said they needed control of the site to obtain World Heritage status, "but it turns out they don't. They filed for World Heritage even though they didn't control the property. That could change the whole perception it's in the public interest and they need this for World Heritage."

The Ohio History Connection declined to comment on the Moundbuilders plan to file for reconsideration and directed questions to the Ohio Attorney General’s Office.

OHC spokesman Neil Thompson said the decision allows the state to continue pursuit of the Octagon Earthworks lease from Moundbuilders Country Club and provide access to the site. He said OHC also seeks to provide Moundbuilders with fair compensation for the value of the lease.

"The court’s decision supports our mission to make the Octagon Earthworks fully accessible to the public," Thompson said. "It also recognizes the incredible accomplishments of American Indian ancestors in Ohio, how relevant these amazing earthworks are today and how essential their preservation and careful restoration are for the future.”

The OHC stated in a press release the court ruled OHC made a good-faith offer to acquire the Octagon earthworks and the acquisition is necessary and for a public use.

Megan Wood, executive director and CEO of the OHC, said, “This has been a top priority for us. This, along with our World Heritage efforts, were really top priorities.

“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.”

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 Ohio Supreme Court decision would allow for a jury trial in Licking County Common Pleas Court to determine the value of the lease.

The 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.

The long wait for a decision had both sides on edge.

Wood said, “We waited over a year from oral arguments to a decision. It slows down our ability to get to our ultimate goal of public access for the Octagon.”

Fraley said, “It was an extraordinarily long period of time. The longer it takes, typically they’re having a difficult time coming to a conclusion.”

David Kratoville, president of the country club board of trustees, said, “there’s always hope,’ when asked about the chances of the court reversing its decision.

“We’ve been put in an awkward place,” Kratoville said. “The OHC doesn’t want to honor the lease and don’t want to pay us. They’ve never been willing to pay us a dollar amount that allows us to relocate in Licking County. It’s not enough to pay off our debt and relocate somewhere else.”

In a press release, the Moundbuilders Board of Trustees stated the lease was modified several times through the years, with the current lease approved by both sides in 1997, making it valid until 2078.



Twitter: @kmallett1958

This article originally appeared on Newark Advocate: Ohio Supreme Court rules against Moundbuilders Country Club