RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0007p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_________________

D OROTHY H ENSLEY , et al., Plaintiffs-Appellants,

v.
C ITY OF C OLUMBUS , et al., Defendants-Appellees. 

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### , - - N No. 02-3778

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 99-00888—George C. Smith, District Judge. Argued: December 4, 2003 Decided and Filed: January 10, 2006 Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.

_________________ COUNSEL ARGUED: Steve J. Edwards, Grove City, Ohio, for Appellants. Patricia A. Delaney, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus, Ohio, for Appellees. ON BRIEF: Steve J. Edwards, Grove City, Ohio, for Appellants. Patric ia A. Delaney, COLUMBUS CITY ATTORNEY’S OFFICE, Columbus, Ohio, Kevin P. Foley, RE MINGER & REMINGER, Columbus, Ohio, Kenneth E. Harris, HARRIS, TURANO & MAZZA, Colum bus, Ohio, Thomas J. Broschak, ULMER & BERNE, Columbus, Ohio, for Appellees.

_________________ OPINION

_________________ BOYCE F. MARTIN, JR., Circuit Judge. This case involves a federal takings claim arising from dewatering activities conducted by the City of Colu mbus. In our review of the district court’s judgment, we requested that the Supreme Court of Ohio answer an important question of first impression which was raised in the case. The Supreme Court of Ohio has now answered that question and given its answer, the case must be REMANDED to the district court for trial.
I. In 1990, the City of Columbus decided to exte nd a sewer line. The defendants, the City of Columbus and several private entities, were fo rced to create a dry trench by pumping groundwater out from the plaintiffs’ property area (“dewatering”) in order to install the pipe necessary for the

1No. 02-3778 Hensley, et al. v. City of Columbus, et al. Page 2

planned sewer line extension. The defendants have stipulated that for purposes of this proceeding their dewatering activity caused the plaintiffs’ wells to become dry.
II. A. State Court On April 21, 1992, the plaintiffs filed a complain t in state court alleging that the defendants’ actions constituted an unreasonable use of their groundwater pursuant to the tort claim created by the Supreme Court of Ohio’s decision of Cline v. American Aggregates Corporation , 474 N.E.2d 324 (Ohio 1984). The state court denied the plain tiffs’ request for class certification, which was affirmed on appeal. The Ohio Supreme Court declined to review the appeal. The plaintiffs voluntarily dismissed the case, but re-filed their complaint later that same day. The state court granted the defendants’ summary judgment motion on immunity grounds and the appellate court affirmed under slightly different reasoning. The Supreme Court of Ohio declined review. B. Federal Court On September 30, 1999, the plaintiffs filed a complaint with the district court pursuant to 42 U.S.C. § 1983, alleging a federal takings claim and a procedural and substantive due process claim. On May 23, 2002, the district court conc luded that Ohio does notrecognize a property interest in groundwater, which the district court concluded was insufficient to support a federal takings claim. Accordingly, the district c ourt granted summary judgment to the defendants. Because the district court found that the plain tiffs did not have a property interest in the groundwater, it concluded that the plainti ffs were not deprived of due process. We heard the appeal of that judgment on December 4, 2003 and on February 20, 2004 this panel filed an order certifying a question of law to th e Supreme Court of Ohio. That question of first impression for Ohio was “[d]oes an Ohio homeowner have a property interest in so much of the groundwater located beneath the land owner’s property as is necessary to the use and enjoyment of the owner’s home?” The Supreme Court of Ohio agreed to answer this question on April 28, 2004. Hensley v. City of Columbus , 807 N.E.2d 365 (Ohio 2004). OnDecember 21, 2005, the Supreme Court of Ohio answered the question in the affirmative, holding that “Ohio homeowners have a property interest in the groundwater underlying thei r land and [] governmental interference with that right can constitute an unconstitutional taking.” McNamara v. City of Rittman , 838 N.E.2d 640, 646 (Ohio 2005).
III. Now that the Supreme Court of Ohio has held that property owners in Ohio have a property interest in the groundwater beneath their land, the district court’s judgment on that issue must be REVERSED and the case REMANDED for further pro ceedings consistent with this opinion and the decision of the Supreme Court of Ohio.