We’ve reached a turning point in the legal efforts by the Ohio History Connection to reclaim the Newark Octagon for the public. The trial to determine the compensation the Ohio History Connection (OHC) must pay to Moundbuilders Country Club (MCC) to buy back their leasehold on the Octagon is scheduled for May 28.

The Ohio Supreme Court in 2022 ruled that the OHC could use eminent domain to buy back the lease which had allowed MCC over a century ago to build an 18-hole golf course within and around the Octagon itself, and thus play a game on this sacred structure. The court’s ruling was necessary for UNESCO to name the Octagon and other Hopewell Ceremonial Earthworks as Ohio’s first World Heritage site, which it did in 2023. 

The Octagon was originally purchased by the citizens of Newark and Licking County to preserve them so to ensure they were kept and held “free to visitation at all times on the part of the public at large under reasonable rules and regulations.” 

Over the years, and particularly more recently, this “at all times” public visitation has pretty much been reduced to an “at all times” 2-acre moundless plot (out of 134 acres) with a small deck-like overlook that’s roughly ten feet high, which in no way allows a good view of the expansive Octagon. Visitors are allowed to use only five of the parking spaces in MCC’s parking lot. 

You can walk most of the site on Monday mornings when the club does maintenance, but visitors must dodge (and listen to) lawn mowers and pesticide sprayers. MCC does allow four days a year with an Open House when the entire grounds are fully open to the public. This year they added a fifth day. Woo-hoo. 

Meanwhile, archaeologists and astronomers have come to understand how the Octagon itself aligns with a long-term cycle (over 18 years) of moonrises and moonsets, and the events of the culmination of that special cycle happen later this year. They have also come to realize just the sort of Native American genius (and geniuses) it took to create it. Along with that, Native Americans have been working to reclaim their heritage after being driven out of Ohio, and we all are working to be more sensitive to their issues and concerns, and to respect their sacred sites. 

The ownership arrangement between OHC and MCC is such that OHC owns the land (called “fee simple”) and MCC leases the land for its golf course. Such a long-term lease is called a “leasehold,” and the law recognizes that leasehold as property that, just like any other property, cannot be taken for public use without just compensation, which of course is the legal process called eminent domain. Such a process (an eminent domain lawsuit) is what led to the Ohio Supreme Court’s decision in 2022. 

After that decision, the lawsuit was returned to the Licking County Court of Pleas for a trial to determine just how much “just compensation” was required. There are similar situations. Somebody who owns a mobile home probably leases the land the home sits upon with a long-term lease. If the government needs that land for a highway improvement, both the fee simple owner and the mobile home leasehold owner need to be compensated. The usual way to do that is to take what compensation makes sense if there were no lease, and then figure out how to divide this between the fee simple owner and the leaseholder. 

This case is a little different in that the OHC is both the fee simple owner and the one exercising eminent domain. 

Once the lawsuit was returned to the trial court at the end of 2022, what happened next was just mainly civil lawsuit preparation: both sides decided who their witnesses would be, who their expert witnesses would be, and produced reports from those expert witnesses on how the leasehold should be properly evaluated so a jury during the trial could weigh all the evidence and come up with a number. Then the parties filed motions regarding the admissibility of that possible evidence. That led to a trial date being scheduled for last October 17. A month before that trial, Judge W. David Branstool issued his “Decision on Pretrial Motions,” which is normal for any sort of trial. In it, Judge Branstool laid out the parameters of the upcoming trial. Among other issues, he excluded MCC’s expert witnesses as having used, under the law, an invalid approach to value the leasehold. OHC’s experts evaluated the leasehold at around two million dollars. MCC’s experts claimed between ten and twenty million dollars. 

Why the significant difference? 

OHC’s experts looked around the area and saw that comparable golf courses were selling around a $2,000,000 range. MCC’s experts looked around and said that there were no comparable golf courses in the entire country, because there were no other golf courses built upon such an archaeological treasure as the Newark Earthworks, let alone a recently designated World Heritage Site. Their logic is laughable to those who love the game of golf as many an avid golfer will tell you the course is not a true test because the terrain is entirely flat while the mounds themselves make the course akin to Putt- Putt. 

MCC believe they should be compensated for giving up the Earthworks. In fact, in later filings, Moundbuilders claimed that they were the ones who ought to profit from the “windfall” of UNESCO’s recognition of these archaeological and culture treasures. 

But Judge Branstool disagreed. OHC already owned the land itself, the mounds are part of the land, and they hadn’t rented out the public, extraordinary nature of those mounds. As Judge Branstool put it: “the mounds were to be protected for the benefit of the public. . . . It guaranteed public access to the mounds.” Judge Branstool ruled that, as a matter of law, this made clear that “the Country Club had no claim to the earthworks or any value from them.” 

The Earthworks themselves, and any value inherent in them, were never part of the lease. Another way to look at this is that the reason that MCC’s experts could not find any comparable golf course on top of such sacred and culturally important earthworks is that nobody thought that doing such a thing was proper and appropriate. There is simply no market for such a thing. It was like asking what the market was for property with a pinball arcade in something like the Notre Dame Cathedral. It might be possible to reproduce the shapes of the mounds on a new site with a backhoe and bulldozer, but then we would go from desecration to cultural appropriation. 

All Moundbuilders is due is the money to buy an existing golf course, and something like $2,000,000 covers that. 

However, on October 13th, 2023, four days before the scheduled trial, MCC appealed again. 

Normally, one has to wait for the end of any trial to take an appeal. There are some exceptions, as former President Trump keeps demonstrating. In this instance, under Ohio law regarding eminent domain, you can appeal early to make sure an eminent domain taking is proper, in order to protect the rights of property owners. That was the first appeal, which MCC took all the way to the Ohio Supreme Court. 

But for their latest appeal, MCC filed it in the middle of the legal proceeding. They used this “interlocutory” appeal to complain about how all of their witnesses had been disqualified. How, they asked, could that possibly be fair? 

Well, under well-established law, it’s up to you to come up with decent expert witnesses, and if you don’t, it’s on you. If you make the decision to go with a particular strategy and it turns out to be faulty, you live with it. Your “windfall” will turn out to be rotten fruit. 

Judges are trusted to make such decisions about the admissibility of expert witnesses. They will only be overturned on appeal under extraordinary circumstances, if they abuse their discretion. This is a very high standard (legally) to meet. 

“A trial court’s ruling as to the admission or exclusion of expert testimony is within its broad discretion and will not be disturbed absent an abuse of discretion. State v. Tomlin, 63 Ohio St.3d 724, 728 (1992). An abuse of discretion constitutes more than an error of law or judgment and implies that the trial court acted unreasonably, arbitrarily or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court.” Id. State v. Koss, 2014-Ohio-5042. 

Nonetheless, Moundbuilders appealed on that issue, and at a time when such appeals were not allowed. 

The Court of Appeals “quickly” (four months, which is “quick” for an appeal) dismissed the appeal. 

Moundbuilders appealed that to the Ohio Supreme Court. It only took the Justices two months to refuse to hear the case. But that meant we got another six- month Trumpian delay. 

Once the case was returned from the Ohio Supreme Court the second time, Judge Branstool re-scheduled the trial for May 28. 

But MCC was not yet done – they asked (through a motion) for Judge Branstool to reconsider his early decision about disqualifying their witnesses. They also asked Judge Branstool to delay the trial to July 15 (because their witness, the excluded one that they hope will instead be allowed, is not available on May 28). And that would mean even more delay to a legal action that was originally filed in 2018. OHC’s response to MCC’s request has been clear and forceful: they don’t get do-overs. That’s the law.  

MCC is trying to re-litigate issues which have already been litigated, and they had ample opportunity to litigate. 

At the beginning of last week, Judge Branstool had all the briefs he needed to decide about reconsidering his prior decision and whether to delay the trial. 

However, on the 14th, MCC threw another monkey wrench in the works. They subpoenaed three witnesses, all associated with the Ohio History Connection in one way or another, to testify, presumably, on the scientific and cultural value of the Earthworks. Judge Branstool had previously noted that those three were not experts in evaluating golf courses, so it is not clear just what Moundbuilders is trying to achieve with such subpoenas. 

Judge Branstool responded by immediately scheduling a Status Conference for the 16th to straighten all that out. 

It is quite probable that Judge Branstool is tired of all the shenanigans and will decline to delay the trial. 

If that is the case, jury selection will start that morning on May 28 th . It will be the job of the jury to look at all the evidence presented and decide what compensation Moundbuilders will get for their leasehold. 

What happens after the trial? Well, Moundbuilders gets to appeal. Again. However, under Ohio law, (Ohio Revised Code 163.15(A)), as soon as OHC hands over a check, the property is theirs, and OHC gets to start calling the shots. 

Let us hope that the Ohio History Connection will be able to take the actions necessary to make the property available to view all of those upcoming lunar alignments and properly welcome the Newark Earthworks to their World Heritage Status. 

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In 2009, Robert Neinast participated in a “Walk with the Ancients” sponsored by the Newark Earthworks Center at OSU-Newark, which was a week-long pilgrimage from the Chillicothe Earthworks to the Newark Earthworks along the Great Hopewell Road. This sparked his interest in using his physics degrees to find out more about their astronomy, and to keep up with their legal situation.