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Vos v. Ohio Environmental Protection Agency

Court of Appeals of Ohio, Tenth District

July 26, 2018

Donald L. Vos et al., Plaintiffs-Appellants,
v.
Ohio Environmental Protection Agency, Defendant-Appellee.

          APPEAL from the Court of Claims of Ohio No. 2017-552

         On brief:

          Donald L. Vos, pro se, and Dennis Scott Wallace, pro se.

         Argued:

          Donald L. Vos.

         On brief:

          Mike DeWine, Attorney General, and Christopher Conomy, for appellee.

         Argued:

          Christopher P. Conomy.

          DECISION

          KLATT, J.

         {¶ 1} Plaintiffs-appellants, Donald L. Vos and Dennis Scott Wallace, appeal a judgment of the Court of Claims of Ohio that dismissed appellants' complaint against defendant-appellee, the Ohio Environmental Protection Agency ("the agency"). For the following reasons, we affirm.

         {¶ 2} Appellants filed a suit against the agency and its directors past and present on June 20, 2017. In the complaint, appellants alleged that the agency failed and refused to abide by its own rules in granting operational permits for the landfill in Negley, Ohio, and to conduct required inspections of that dump. They contended that the agency had knowledge and covered up the fact that material from New York and New Jersey containing blood and body parts from the 911 terrorist attack was being placed in the landfill. According to appellants, the agency also prohibited the Columbiana County Health Board from conducting inspections of the landfill. Based on these alleged facts, appellants claimed that the agency's refusal to hold the Negley landfill to the written rules caused damage to their property. They requested $10, 000 in damages and that the agency pay the cost to dig up the material in the Negley landfill, to test it for blood and body parts, and to turn the Negley landfill into "a grave site for those buried there as common garbage."

         {¶ 3} A magistrate for the trial court dismissed the directors past and present of the agency pursuant to R.C. 2743.02(E) which provides that the state shall be the only defendant in the Court of Claims. The agency then filed a motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim for relief. Appellants opposed the motion.

         {¶ 4} In a September 27, 2017 judgment entry, the trial court granted the agency's motion and dismissed the case. The Court of Claims found that appellants could not recover for a cause of action that alleged the agency failed to enforce its own rules and regulations. It also found that any claim for relief that may be construed from the complaint would involve the performance or nonperformance of a public duty. Because the complaint did not set forth facts to establish the ...


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