State ex rel. Yost v. Osborne Co., Ltd.

[Cite as State ex rel. Yost v. Osborne Co., Ltd., 2022-Ohio-2627.]

IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY

STATE OF OHIO ex rel. CASE NO. 2021-L-020
DAVE YOST, OHIO
ATTORNEY GENERAL,
Civil Appeal from the
Plaintiff-Appellee, Court of Common Pleas

-v-
Trial Court No. 2014 CV 000166
OSBORNE CO., LTD., et al.,

Defendants-Appellants.

OPINION

Decided: August 1, 2022
Judgment: Affirmed

Dave Yost, Ohio Attorney General; Gregg H. Bachmann and Catherine A. English,
Assistant Attorneys General, Environmental Enforcement Section, 30 East Broad Street,
25th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).

Richard N. Selby, II and Grant J. Keating, Dworken & Bernstein Co., LPA, 60 South Park
Place, Painesville, OH 44077 (For Defendants-Appellants).

THOMAS R. WRIGHT, P.J.

{¶1} Appellants—Osborne Co., Ltd. and the Executors of the Estate of Jerome

T. Osborne—appeal from the trial court’s judgment entry imposing a civil penalty for

violations of Revised Code Chapter 6111, Ohio’s Water Pollution Control Laws. The

judgment is affirmed.
 {¶2} The East Branch Chagrin River (“River”) is a rare, cold water stream the

state of Ohio seeks to protect. Between 2001 and 2007, pursuant to an agreement with

the Village of Kirtland Hills (“Village”), Defendants Osborne Co., Ltd. (“Osborne Co.”) and

Jerome T. Osborne (“Osborne”) dredged the River twenty-four times. Defendants placed

eight spoil piles of dredged material, each eight to twenty feet high, in the riverbed and

along the riverbank on property owned by either the Village or Osborne, with the exception

of one pile placed on property owned by the Oliva family (“Oliva Pile”). Neither

Defendants nor the Village applied to the Ohio Environmental Protection Agency

(“OEPA”) or the Army Corps of Engineers for a permit for this activity. The OEPA

discovered the activity in July 2007 and ordered Defendants to cease. The Defendants

ceased all activity in the River, but the spoil piles remained until the Village removed all

but the Oliva Pile in November 2013. The Oliva Pile has not been removed.

{¶3} The extensive procedural history of this matter is recounted in two previous

opinions of this court: State ex rel. DeWine v. Osborne Co., Ltd., 2018-Ohio-3109, 104

N.E.3d 843 (11th Dist.) (“Osborne I”) and State ex rel. Yost v. Osborne Co., Ltd., 2020-

Ohio-3090, 154 N.E.3d 183 (11th Dist.) (“Osborne II”).

{¶4} The trial court found Defendants jointly and severally liable for violating R.C.

6111.04(A) and 6111.07(A) by dredging the River and leaving the spoil piles in place,

thereby causing pollution of the River. The trial court ordered injunctive relief in favor of

the state of Ohio and imposed civil penalties against Defendants for dredging

($180,000.00) and for the spoil piles ($224,240.00). This court reversed the judgment in

part, holding that dredging the River was not a violation of the specific statutes pleaded

in the complaint. Osborne I at ¶ 47. We remanded the matter to the trial court “to make

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a finding specifically related to the violations alleged in the complaint [i.e., discharge of

materials into the East Branch Chagrin River without permits, as provided in R.C.

6111.04(A) and R.C. 6111.07(A)] and thereafter limit any civil penalty and injunctive relief

to the consequences of that conduct.” Id. at ¶ 72.

{¶5} On remand, the trial court considered only the findings in its original decision

that related to the spoil piles and pollution of the River, incorporated those findings into

its decision, and again imposed a civil penalty of $224,240.00 for that conduct ($80/day

of violations). This court reversed the judgment in part, holding that “the trial court abused

its discretion when assessing the civil penalty against [Defendants] by not properly

applying the Dayton Malleable factors.” Osborne II at ¶ 71, citing State ex rel. Brown v.

Dayton Malleable, Inc., 1 Ohio St.3d 151, 438 N.E.2d 120 (1982). We remanded the

matter to the trial court for further proceedings “solely related to the assessment of the

civil penalty after considering the appropriate factors supported by the record.” Osborne

II at ¶ 73.

{¶6} On remand, the trial court explicitly considered the Dayton Malleable factors

and again imposed a civil penalty of $224,240.00 for the spoil piles and pollution. The

trial court calculated the penalty as follows:

Based on the Dayton Malleable factors as discussed above,
the court finds that a $100/day civil penalty would be
appropriate for the actual harm and great risk of harm caused
by Defendants’ placing of dredged material in and near the
River, Defendants’ indifference, and the extraordinary
enforcement costs incurred by the State, but that the amount
should be reduced to $80/day due to the Eleventh District’s
finding of lack of evidence of economic benefit gained by the
violation. Accordingly, the court imposes a civil penalty of
$80/day for the 2,301 days (7/13/07 to 11/1/13) that the
Stockpiles remained along the River.

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 Applying the Dayton Malleable factors to the 1,004 days
between when the Village removed all of the piles except for
the Oliva Pile and the date of [the trial court’s] first order, the
court finds that the risk of harm was reduced because there
was less material that could fall into the River, and that the
remaining factors are unchanged. The court further finds that
this reduced risk of harm was due solely to the actions of the
Village, and not to any action taken by Defendants, and
therefore this court will only reduce the civil penalty by 50%.
Accordingly, the court imposes a civil penalty of $40/day for
the 1,004 days (11/2/13 to 7/29/16) that the Oliva Pile
remained along the River.

This court imposes a civil penalty of $224,240.00, consisting
of $184,080.00 for the first period ($80/day * 2,301 days) and
$40,160.00 ($40/day * 1,004 days) for the second period.

{¶7} From this decision, Appellants advance one assignment of error:

The trial court abused its discretion in assessing a civil penalty
against Defendants in the amount of $224,240.

{¶8} “Assessing an environmental civil penalty lies within the trial court’s

discretion. As long as the amount assessed is [equal to or] less than the statutory

maximum, it is within the trial court’s discretion to fix that amount.” State ex rel. DeWine

v. Deer Lake Mobile Park, Inc., 2015-Ohio-1060, 29 N.E.3d 35, ¶ 41 (11th Dist.), citing

State ex rel. Ohio Atty. Gen. v. Shelly Holding Co., 135 Ohio St.3d 65, 2012-Ohio-5700,

984 N.E.2d 996, ¶ 23 and Dayton Malleable, 1 Ohio St.3d at 157-158. Thus, this court

will not reverse the amount of the civil penalty imposed absent an abuse of the trial court’s

discretion. An abuse of discretion occurs when a trial court fails to “‘exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004); see also Dayton

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Malleable at 157 (a trial court abuses its discretion by assessing a penalty that is

“unreasonable, arbitrary, or unconscionable”).

{¶9} “The General Assembly intended to use economic sanctions to deter

violations of R.C. Chapters 6109 and 6111, and thereby to promote the goal of clean

water in the state of Ohio, when it provided for substantial monetary penalties.” Deer

Lake at ¶ 42, citing Dayton Malleable at 157. Specifically, “[a]ny person who violates

section 6111.07 of the Revised Code shall pay a civil penalty of not more than ten

thousand dollars per day of violation.” R.C. 6111.09(A).

{¶10} It is undisputed that the spoil piles remained along the riverbank for a total

of 2,301 days and that the Oliva Pile had not been removed as of the date of the trial

court’s first order, which was an additional 1,004 days. The maximum potential civil

penalty for 3,305 days in violation of R.C. 6111.07(A), at $10,000.00 per day, is in excess

of $33 million. The trial court assessed a penalty of $100/day, mitigated to $80/day, for

the first 2,301 days and $40/day for the remaining 1,004 days, which resulted in a total

civil penalty of $224,240.00—far less than the statutory maximum.

{¶11} In making this determination on remand, the trial court reapplied the Dayton

Malleable factors: “(1) the harm or risk of harm posed to the environment by the violations,

(2) the violator’s level of recalcitrance, defiance, or indifference to the law, (3) the

economic benefit gained by the violation, and (4) the extraordinary enforcement costs

incurred by the state.” Deer Lake at ¶ 44, citing Dayton Malleable, 1 Ohio St.3d at 153-

155. Appellants do not take issue with the enforcement costs incurred by the state.

{¶12} The first issue presented for review is whether the trial court failed to

properly assess Defendants’ level of recalcitrance, defiance, or indifference to the law.

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 {¶13} The dissent contends that “the trial court * * * made findings contrary to this

court’s holding and instructions on remand” in Osborne II. In Osborne II, this court stated:

Appellants additionally argue, with respect to the second
factor, that defendants did not act in bad faith or in defiance
of or indifference to the law. They claim that penalizing them
for failing to remove the piles is, in essence, penalizing them
for failing to reach an agreement with the Ohio EPA. While
this is not an unreasonable argument under the
circumstances, we do not find that the record supports this
conclusion. In assessing defendants’ level of recalcitrance,
the trial court did not merely rely on the fact that they refused
to settle. The trial court also found that “the defendants were
aware of the requirement to at least obtain a National
Pollutant Discharge Elimination System (NPDES) permit yet
failed to do so”; and “defendants showed a disregard to the
preservation of a scenic, cold water habitat and a disregard to
those (the Ohio EPA and ODNR) who sought to protect and
remediate the river.” Nothing in the record suggests, however,
that defendants acted in bad faith or indifference towards the
environmental laws when they agreed to perform work in the
river on behalf of the Village. Further, the trial court failed to
consider that defendants ceased all activity in the river as
soon as they were informed by the EPA that it was not
permitted. This all should have been factually relevant to the
trial court’s determination of defendants’ level of bad faith,
defiance, or indifference to the law, yet it was not mentioned
in the court’s analysis. On remand, the trial court shall also
expressly consider these facts when applying the second
factor of Dayton Malleable.

(Emphasis added.) Osborne II at ¶ 67.

{¶14} On remand, the trial court acknowledged our instruction and found as

follows:

The fact that Defendants agreed to perform work in and
around a State waterway, and chose to place piles of dredged
materials where they could and did fall back into the River,
without any attempt to comply with State or Federal
environmental laws (which at the time were already well-
established), is evidence of (at a minimum) indifference. In
addition, * * * this court does not find that Defendants should

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Case No. 2021-L-020
 be rewarded with a decreased civil penalty because they
chose not to further violate environmental laws after receiving
a notice from the Army Corps of Engineers warning them that
‘[a]ny additional impacts will be considered a knowing and
willing violation of Federal law’ and subject them to civil
penalties. Accordingly, the court finds that Defendants acted
with indifference.

{¶15} The dissent specifically contends that the trial court’s finding of indifference

is contrary to our statement that “[n]othing in the record suggests * * * that defendants

acted in bad faith or indifference towards [sic] the environmental laws when they agreed

to perform work in the river on behalf of the Village.” Id. The dissent fails to consider this

sentence in context and reads it unnecessarily narrow. The opinion refers only to the

time defendants agreed with the Village to perform the work; it says nothing about

defendants’ overall conduct after that agreement was made. The dissent further contends

that the trial court’s finding that defendants “should not be rewarded” for ceasing activity

is a rejection of this court’s determination that the cessation of activity was “factually

relevant.” Id. However, we did not instruct the court to afford this fact any certain weight

on remand. Rather, we instructed the court to expressly consider the fact in its analysis,

which certainly did not preclude the trial court from reaching its conclusion on remand.

Contrary to the dissent’s view, we hold that the trial court’s weighing of the facts and

ultimate finding on this factor was neither arbitrary nor unreasonable.

{¶16} Appellants argue the trial court’s analysis relates to the Defendants’ conduct

when actually performing work in the river and creating the spoil piles rather than for the

days the spoil piles remained on the riverbank. In other words, they argue that any

indifference to the law occurred prior to the OEPA’s cease and desist order, not after,

because the spoil piles remained in place as long as they did due to Defendants’

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Case No. 2021-L-020
compliance with the cease and desist order. While this may be an accurate contention

as it relates to the recalcitrance factor, it was not an abuse of discretion for the trial court

to calculate a penalty for each day the consequences of Defendants’ prior indifference to

the law polluted the River. With respect to a violation of R.C. 6111.07(A)—here, via

violations of R.C. 6111.04(A)—the civil penalty statute imposes strict liability, to wit: “[a]ny

person who violates section 6111.07 of the Revised Code shall pay a civil penalty of not

more than ten thousand dollars per day of violation.” R.C. 6111.09(A). Thus, the statute

requires imposition of a civil penalty, not for each day of indifference, but for each day

Defendants caused pollution of the River or placed or caused to be placed any material

in a location where it caused pollution of the River. See R.C. 6111.04(A).

{¶17} Appellants’ first issue is not well taken. The trial court did not fail to properly

assess Defendants’ level of recalcitrance, defiance, or indifference to the law.

{¶18} The second issue presented for review is whether the trial court failed to

properly assess the harm or risk of harm imposed to the environment by the violations.

Appellants argue that the state failed to meet its burden of establishing that the continued

existence of the spoil piles created any significant harm or risk of harm to the river habitat.

This argument was previously raised and rejected in Osborne II, where we noted that the

state is not required to prove actual harm, as merely threatening environmental health is

an actionable offense, and that the record is replete with evidence of actual and

threatened harm resulting from placing the dredged material along the riverbank.

Osborne II, 2020-Ohio-3090, at ¶ 68. Nevertheless, we instructed the trial court on

remand to expressly consider the harm and threat of harm specifically caused by this

activity as opposed to the dredging. Id. at ¶ 69. Appellants contend that the trial court

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simply pointed to isolated portions of the record unrelated to the concerns expressed by

this court. We disagree. The trial court did address our concerns on remand, finding as

follows:

Defendants placed thousands of cubic yards of dredged
material along the riverbank or in the middle of the River. Ed
Wilk, the 401 Coordinator for OEPA, testified that this was
‘one of the most detrimental cases’ he has seen because of
the stockpiling, and that it ‘was amazing to see the magnitude
and the amount of material that was there.’ The State
presented uncontroverted evidence at trial that some
unquantified amount of dredged material fell back into the
River. Daniel Bogoevski, an environmental specialist with
OEPA, testified that sediment that enters a waterway can be
harmful because it may have picked up foreign materials (e.g.
phosphorus); and it irritates the gills of fish. Paul Anderson, a
former OEPA Environmental Specialist II, testified that the fish
and other inhabitants of the River were affected by sediment
resettling in the River, and that this contributed to the River’s
poor ‘Quality of Habitat Evaluation Index’ score. The court
finds that Defendants created a great risk of harm, and an
unquantifiable amount of actual harm, from the dredged
material that was placed back in the River and on the banks
where it could fall back into the River.

{¶19} Accordingly, we conclude the trial court did not fail to properly assess the

harm or risk of harm imposed to the environment by the spoil piles and pollution of the

River. Appellants’ second issue is not well taken.

{¶20} The third issue presented for review is whether the trial court abused its

discretion when it failed to implement a net reduction in the civil penalty based on this

court’s conclusion in Osborne II that Defendants had not received an economic gain for

the work performed. We held that the trial court’s finding that Defendants gained an

economic benefit from violating the law was arbitrary and unreasonable due to a lack of

evidence, and we instructed the trial court to reconsider the civil penalty. Osborne II at ¶

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66. On remand, applying this court’s holding, the trial court applied a $20/day reduction

due to the lack of economic benefit. Appellants argue that this reduction was illusory

because the trial court had originally imposed a civil penalty of only $80/day for the same

time period and then increased it on remand to $100/day in order to arrive at the same

penalty it had originally imposed after the $20/day reduction—$224,240.00.

{¶21} We note that the case was reassigned to a new judge on remand, due to

the initial judge’s retirement. Even in criminal matters when a penalty is increased

following a successful appeal, a presumption of vindictiveness does not apply if

resentencing is held before a different judge. See, e.g., State v. Mitcham, 11th Dist.

Ashtabula No. 92-A-1693, 1993 WL 164713, *4 (Apr. 23, 1993) (“when a second judge

imposes a more severe penalty, there is no presumption of vindictiveness because in

such scenario, the vindictiveness is highly speculative”); State v. Johnson, 2d Dist.

Montgomery No. 23297, 2010-Ohio-2010, ¶ 6 (“no presumption of vindictiveness exists

‘where a different trial judge, who is not required to preside over a new trial, imposes a

harsher sentence, and explains on the record the reasons for the sentence’”). “This is

because there is little risk under these circumstances of a trial court’s interest in self-

vindication or of discouraging what it views as meritless appeals.” (Citation omitted.)

State v. Ingels, 1st Dist. Hamilton Nos. C-180469, C-180470 & C-180471, 2020-Ohio-

4367, ¶ 12. Appellant provides no case law or other support for the proposition that the

second judge’s imposition of $100/day as opposed to the initial judge’s imposition of

$80/day was an abuse of discretion. As such, we find the third issue not well taken.

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 {¶22} The trial court did not abuse its discretion in assessing a civil penalty against

Defendants in the amount of $224,240. Appellants’ sole assignment of error is without

merit.

{¶23} The judgment of the Lake County Court of Common Pleas is affirmed.

JOHN J. EKLUND, J., concurs,

MATT LYNCH, J., dissents with a Dissenting Opinion.

_____________________________

MATT LYNCH, J., dissents with a Dissenting Opinion.

{¶24} I dissent from the majority’s decision to uphold the penalty awarded against

the appellants as there were critical flaws in the assessment of the penalty. The concerns

raised by this court in the prior appeal were not adequately remedied on remand and

findings were made contrary to this court’s ruling. The penalty amount was demonstrably

arbitrary and, thus, an abuse of discretion, as the lower court ordered appellants to pay

the precise penalty previously assessed while recognizing that one of the factors utilized

to justify that prior amount was inapplicable. The stated consideration of the factors and

corresponding findings, particularly in relation to the harm caused by appellants’ actions,

are not supported by the record. Given the foregoing, and the multiple remands following

appeal that have failed to remedy these concerns, vacating the penalty in its entirety is

the proper remedy.

{¶25} A significant error in this case arises from the fact that the trial court, while

reducing a portion of the penalty on remand for the previous errant finding that appellants

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gained an economic benefit from the violation, still arrived at a penalty that was exactly

the same amount as was ordered prior to remand. It found a penalty of $100 per day

should be assessed but then reduced this amount to $80 a day due to this court’s finding

of a lack of evidence of an economic benefit. The prior award of the trial court had been

$80 per day with the finding that there was evidence of such benefit. The court, although

presented with no new evidence and asked only to clarify and state its consideration of

the Dayton Malleable factors, increased a portion of the penalty amount in what can only

be construed as an attempt to offset the amount of the reduction necessitated by this

court’s finding on appeal. This fails to give the appellants the proper consideration and

weighing of the factors that is warranted in this type of matter. Such a concern is

especially troublesome in this type of case, where the penalty is significant, and places a

large financial burden on the estate of Jerome Osborne, who passed away during the

course of the litigation, making the penalty of limited effectiveness. It must be emphasized

that a civil penalty is not intended to have a “truly devastating impact” on a party as this

would “[improperly] tend more towards confiscation than mere deterrence.” United States

v. Detrex Chem. Industries, Inc., 393 F.Supp. 735, 738 (N.D.Ohio 1975); see State ex rel.

Brown v. Dayton Malleable, 1 Ohio St.3d 151, 159, 438 N.E.2d 120 (1982) (Holmes, J.,

concurring in part and dissenting in part) (“It is universally agreed that the purpose of the

civil penalty provisions of R.C. Chapter 6111 and similar provisions enacted in other

states in accordance with the Federal Water Pollution Control Act is remedial and not

punitive.”). Not only does the penalty lack deterrent effect where the offending party has

passed away, a penalty can hardly be an effective deterrent to others or serve a remedial

purpose when the inconsistent, unpredictable, and unjustified application of the relevant

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factors occurs. See Dayton Malleable at 157 (a civil penalty is intended to have a

deterrent effect as “an example to others”). Ordering an identical penalty while

recognizing that there is less evidence to support this penalty is not consistent with the

foregoing purposes.

{¶26} The majority emphasizes the criminal law principle that a presumption of

vindictiveness does not apply when a different judge resentences a defendant on remand,

observing the new judge assigned to this matter. While recognizing that there are

concerns about the punitive nature of the punishment as addressed above, the conclusion

that the penalty ordered on remand was issued in error is also based on considerations

apart from concerns of vindictiveness, particularly that the trial court abused its discretion.

An abuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal

decision-making’” and occurs when its decision is “arbitrary.” Weglicki v. Rachitskiy,

2022-Ohio-254, 183 N.E.3d 1260 (11th Dist.), citing State v. Beechler, 2d Dist. Clark No.

09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004);

Martin v. Taylor, 11th Dist. Lake No. 2021-L-046, 2021-Ohio-4614, ¶ 26. It is evident that

this penalty is arbitrary and constituted an abuse of discretion since the court acted in a

manner that was unreasonable and did not exercise sound and legal decision-making.

Estate of Brunger, 11th Dist. Portage No. 2018-P-0003, 2018-Ohio-4474, ¶ 9.

{¶27} In determining the penalty here, the trial court applied the factors set forth

by the Supreme Court of Ohio in its Dayton Malleable opinion. The factors are “(1) the

harm or risk of harm posed to the environment by the violations, (2) the violator’s level of

recalcitrance, defiance, or indifference to the law, (3) the economic benefit gained by the

violation, and (4) the extraordinary enforcement costs incurred by the state.” State ex re.

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DeWine v. Deer Lake Mobile Park, 2015-Ohio-1060, 29 N.E.3d 35, ¶ 44 (11th Dist.), citing

Dayton Malleable, supra, at 153-155.

{¶28} Further, the Dayton Malleable factors must be weighed and applied in a

manner consistent with the facts in the record. See State ex rel. Rogers v. Elbert, 180

Ohio App.3d 284, 2008-Ohio-6746, 905 N.E.2d 235, ¶ 61-65 (9th Dist.) (remanding to the

trial court in part due to its failure to consider the deterrent effect of the penalty as well as

harm caused to the environment); State ex rel. Yost v. Osborne Co., Ltd., 2020-Ohio-

3090, 154 N.E.3d 183, ¶ 71 (11th Dist.) (“the trial court abused its discretion when

assessing the civil penalty against appellants by not properly applying the Dayton

Malleable factors”). Appellate courts cannot rubber stamp decisions made by the trial

court if the analysis of the Dayton Malleable factors is perfunctory or contrary to the

record.

{¶29} The record demonstrates that the lower court did not consider the factors in

a meaningful way as was this court’s intent when remanding the matter. The lower court’s

decision to manipulate the penalty amount to avoid the consequences of this court’s prior

decision demonstrates a failure to give genuine consideration to the necessary factors

and shows a lack of sound and reasonable decision-making, which is the hallmark of an

abuse of discretion. While “[t]he trial court [has] discretion to impose civil penalties * * *,

it was required to exercise its discretion within the appropriate parameters.” State ex rel.

Rogers at ¶ 60. This includes consideration of all necessary factors and imposition of

fines that are consistent with those factors. Id. at ¶ 61-65. There can be no legitimate

consideration of the factors if the penalty is exactly the same when an entire factor is

found inapplicable. If a party did not have a financial gain from its actions as here, it

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follows that they should receive a different penalty because the remedial nature of the

penalty would differ. The court’s actions fall squarely within the definition of an arbitrary

decision, which is “one made ‘without consideration of or regard for facts [or]

circumstances.’” State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶

12, citing Black’s Law Dictionary 125 (10th Ed.2014).

{¶30} The arbitrary nature of the lower court’s decision, and, therefore, its abuse

of discretion, is further evidenced by its consideration of the facts in relation to alleged

damages caused by the existence of the piles. As ordered on remand, the lower court

was to consider the distinction between “the harm caused by the pollution [from the piles]

as opposed to the dredging.” Osborne at ¶ 69. As this writer observed in the prior appeal,

the evidence contained in the record did not distinguish in a clear manner the harms

caused by dredging versus discharge from the piles. The record simply lacks evidence

to allow for a penalty justified solely by the existence of the piles placed along the river,

leaving the court’s judgment again unsupported by evidence. The court’s conclusion is

not supported by findings that fairly show significant harm related solely to the piles

themselves.

{¶31} The statement of Wilk, the EPA coordinator, emphasizing the “magnitude

and amount of material” in the piles does not demonstrate harm, nor does evidence that

some dirt may have fallen into the river. The trial court pointed to testimony that sediment

entering a waterway “can be harmful” if it picks up foreign materials and because it can

cause harm to the habitat of plants and animals in the body of water. Such testimony is

not specific to this case and is speculative. The testimony of EPA specialist Anderson

also fails to support the finding of environmental harm. While the trial court points to the

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poor quality of habitat score, fully examining this testimony actually shows it provides

support for a conclusion that the only potential harm caused here was from the dredging,

not the mere existence of the piles by the river. Anderson’s testimony demonstrated that

conditions had improved after the dredging was completed. In testifying about the

Qualitative Habitat Evaluation Index, he noted that while an initial test in 2007 found a

“very poor score” in a portion of the river, it had improved to the “borderline of good” within

just a few months. Anderson further noted that the Index of Biological Integrity score,

used to identify fish populations, had also improved upon testing just a year after the

dredging ceased. This compels the conclusion that dredging was the cause of any

significant environmental harm rather than the piles since, although the piles were still

present years later, the river conditions had improved shortly after the dredging activity

ceased.

{¶32} As is demonstrated by the record, the testimony presented by the EPA

related almost entirely to concerns with altering the river environment by dredging, as well

as removing rocks and natural features, impacting animal habitats, all of which are

unrelated to the piles and cannot be considered given our past determination that

appellants “cannot be held liable for excavating the material out of the river.” State ex rel.

DeWine v. Osborne Co., Ltd., 2018-Ohio-3109, 104 N.E.3d 843, ¶ 47 (11th Dist.). It

should further be acknowledged that the “pollutant” complained of here is merely soil that

originated from the river bottom. The irony should not be missed that the remediation

demanded by the EPA was to destroy the piles and place the dirt, the “pollutant,” back in

the river.

{¶33} The majority also holds that it was not error to consider indifference of the

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appellants as a factor, even though their indifference occurred prior to the cease and

desist order, and to continue to penalize them each day the piles remained in place. It

observes that the statutory language sets forth only that the penalty applies per day of

violation: “[a]ny person who violates section 6111.07 of the Revised Code shall pay a civil

penalty of not more than ten thousand dollars per day of violation.” R.C. 6111.09(A).

However, reviewing this statutory language alone oversimplifies the issue as it addresses

only the fact that a penalty applies and not the amount of the penalty, which is the main

point of contention here. Pursuant to Dayton Malleable, in evaluating the proper civil

penalty, “[t]he totality of the circumstances and the specific facts of each case guide” the

exercise of the court’s discretion. State ex rel. Cordray v. Evergreen Land Dev., Ltd., 7th

Dist. Mahoning Nos. 15 MA 0115 and 15 MA 0116, 2016-Ohio-7038, ¶ 45; see also State

ex rel. Brown v. Howard, 3 Ohio App.3d 189, 444 N.E.2d 469 (10th Dist.1981), paragraph

one of the syllabus (“[t]he determination of the amount of penalty, authorized by R.C.

6111.09, to be imposed, is left to the ‘informed discretion’ of the trial court based on the

totality of the evidence in each case”). As observed above, perfunctory consideration of

these factors is simply not sufficient to comply with Dayton Malleable or to order a proper

penalty and does not constitute reasonable decision-making. In this case, the appellants

were unable to move the piles after the cease and desist order and the court should have

taken this into consideration as a relevant factor when determining its overall penalty after

weighing of the required factors.

{¶34} Significantly, the trial court’s judgment failed to comply with the directives

issued in this court’s opinion relating to bad faith. In our prior opinion, this court

determined that “[n]othing in the record suggests * * * that defendants acted in bad faith

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or indifference towards the environmental laws when they agreed to perform work in the

river on behalf of the Village.” Osborne, 2020-Ohio-3090, at ¶ 67. Nonetheless, the trial

court determined that indifference was demonstrated when the defendants agreed to

perform work in a waterway while failing to comply with environmental laws. This is

contrary to this court’s finding regarding the lack of evidence on this issue. This court

also held that “the trial court failed to consider that defendants ceased all activity in the

river as soon as they were informed by the EPA that it was not permitted” and this was

“factually relevant to the trial court’s determination of defendants’ level of bad faith,

defiance, or indifference to the law.” Id. In response, the trial court made a finding that

the defendants “should not be rewarded” for choosing not to further violate environmental

laws after receiving notice of the violation. Although this court found the ceasing of activity

to be factually relevant, the lower court essentially rejected this finding. Rather than

reweighing the evidence taking into account the foregoing determinations by this court,

the trial court instead made findings contrary to this court’s holding and instructions on

remand. The majority should acknowledge that the trial court is obligated to determine

the penalty in compliance with our decision and failure to do so is an unacceptable and

reversible error. Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus (“an

inferior court has no discretion to disregard the mandate of a superior court in a prior

appeal in the same case”); see also Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204,

2004-Ohio-4704, 815 N.E.2d 286, ¶ 10 (“[b]y refusing to comply with the mandate of an

appellate court, [the judge] violated [a] basic judicial duty”); McConnell v. Bare Label

Prods., Inc., 2017-Ohio-9325, 104 N.E.3d 9, ¶ 16 (11th Dist.) (reversing the trial court’s

judgment due to its failure to comply with appellate court’s order on remand).

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 {¶35} Furthermore, the argument in favor of a finding of bad faith/indifference is

overstated. In addition to the fact that the appellants were unable to remove the piles, it

continues to appear that the lower court is influenced by the alleged indifference in relation

to violating the law while dredging. It is highly questionable that the appellants believed

placing piles of dirt near a river would cause significant environmental harm. Such a point

is only highlighted by the foregoing discussion of the EPA’s failure to present any

evidence of substance that proves such harm when contrasted with the harm caused by

dredging. It appears the court had difficulty separating the two harms given the extensive

amount of testimony presented in relation to the harm of the dredging. If the EPA, as an

environmental expert, was unable to find evidence to demonstrate that appellants’

conduct caused harm, how could appellants be expected to be aware of the alleged risks

of their conduct?

{¶36} It should be reiterated that there is a strong implication here that appellants

are being penalized not based on the Dayton Malleable factors but due to their failure to

settle with the EPA. It cannot be overemphasized that the Village of Kirtland Hills, by

choosing to accede to the demands of the EPA, was able to avoid any penalty

whatsoever. This is especially concerning given that the evidence indicates appellants

were not provided the same opportunity to reach such a deal and avoid a penalty; the city

was offered an opportunity to complete restoration work in exchange for a waiver of

penalty, which offer was not made to appellants.

{¶37} For the foregoing reasons, I respectfully dissent and would hold that the

ordered penalty is arbitrary, unsupported by the record, and an abuse of discretion. There

is an overall lack of justification for the penalty and the amount awarded per day is

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randomly determined by the trial court rather than being based on specific factors or

detriment to the environment. Those facts that were stated to justify its decision were

either unsupported by the record or improperly considered given this court’s prior holding,

and, thus, consideration of such facts was unreasonable. The evidence presented by the

EPA is lacking in its ability to demonstrate any justification for a penalty and vacating the

remedy would be the appropriate outcome in this case. See State ex rel. Cordray v. U.S.

Technology Corp., 5th Dist. Tuscarawas No. 11AP060025, 2012-Ohio-855, ¶ 10-15

(since the lower court’s assessment of the penalty for environmental protection violations

was “not supported by the evidence,” the appellate court entered judgment in a lesser

amount).

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