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Permalink Reply by Dott on October 3, 2014 at 5:46am

I know some of this has already been discussed

OH: Recent 7th District DMA Decisions

POSTED ON OCTOBER 2, 2014 BY VORYS

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Recently, the Seventh District Court of Appeals ruled on two cases involving the 1989 and 2006 versions of the Ohio Dormant Mineral Act (“DMA”).

In Taylor v. Crosby (September 24, 2014), the court considered whether mineral rights severed in 1971 were abandoned under the 1989 DMA and 2006 DMA. The trial court construed the 1989 DMA to require a “rolling” look-back period and concluded that severed mineral rights were abandoned where no savings events occurred between 1975 and 1995. The court of appeals reversed, holding that under its prior decisions, the 1989 DMA created a “fixed” look-back period. Under a fixed look-back period, an oil and gas lease executed by the severed mineral owner in 1975 constituted a savings event that preserved the severed mineral rights from abandonment under the 1989 DMA.

 

The court also considered, but did not decide, whether the severed mineral rights were abandoned under the 2006 DMA. Because the trial court had not made a specific ruling on the 2006 DMA claim, the court of appeals remanded the case back to the trial court.

 

You can read the decision here.

 

In Tribett v. Shepherd (September 29, 2014), the court considered a number of procedural and substantive issues relating to the 1989 DMA and 2006 DMA. Drawing in part on its earlier decisions, the court held:

1.     Severed mineral rights originally reserved in 1962 were not the “subject of” later conveyances of the surface that contained language repeating the prior reservations;

 

2.     Although the DMA is a part of the Ohio Marketable Title Act (MTA), the surface owners could not rely on general provisions of the MTA to avoid the specific requirement in the DMA that mineral rights must be the “subject of” a title transaction in order to qualify as a savings event;

 

3.     The 1989 DMA is self-executing and resulted in the abandonment and vesting of severed mineral rights into the surface where no savings events occurred during the statute’s look-back period. Conversely, the enactment of the 2006 DMA did not disturb the prior abandonment of mineral rights under the 1989 DMA;

 

 

4. The surface owners were not barred by the twenty-one year statute of limitations in Ohio Revised Code § 2305.04. The court declined to consider whether the statute of limitations applied to claims for abandonment under the 1989 DMA, finding that even if the statute of limitations did apply, it was not a bar under the particular facts in the case. The earliest date the severed mineral rights would be deemed abandoned under the 1989 DMA was March 22, 1992. The suit, having been brought in April 2012, was within the twenty-one year period;

 

 

5. The 1989 DMA is constitutional. The court looked to Texaco v. Short, in which the United States Supreme Court upheld Indiana’s dormant mineral act. The Texaco court found that it was the owner’s failure to make any use of the property, rather than the state’s action, that caused the lapse of the mineral rights. Indiana’s statute provided for a two-year grace period to allow the mineral owner to save their interest from abandonment. Observing that Ohio’s DMA allowed for a three-year grace period, the court found the 1989 DMA constitutional; and

 

 

6. The 1989 DMA uses a “fixed” look-back period, rather than a “rolling” look-back period. Under the particular facts, the court found that, regardless of whether the look-back period was fixed or rolling, the severed mineral interest was abandoned because no savings events occurred.

Because no savings events occurred, the severed mineral rights were deemed abandoned and vested with the surface as of March 22, 1992. Although the court found the 1989 DMA controlling, the court also addressed the surface owner’s cross-appeals relating to the 2006 DMA. The court held:

1. The heirs of the original severed mineral owner qualified as “holders” for the purpose of filing a claim of preservation under the 2006 DMA because such heirs derived their interest in the minerals from the original owner through testate or intestate succession;

 

 

2. The failure of the surface owners to send a notice of abandonment by certified mail and instead to proceed through publication of the abandonment notice in a newspaper did not prejudice the severed mineral owners, who, having learned of the publication, timely recorded a claim of preservation;

 

 

3. A claim of preservation, timely filed after the service or publication of a notice of abandonment, can preserve severed mineral rights even if no savings events occurred within the twenty-years preceding the notice of abandonment.

The dissent in Tribett found that the 1989 DMA violates the Ohio constitution: “The 1989 ODMA’s lack of notice provision makes it unconstitutional on its face, and by construing it as a self-executing statute resulting in automatic abandonment of a severed mineral interest…the 1989 ODMA is unconstitutional as applied. Such a statutory construction results in an unlawful taking by operation of law…”

You can read the decision here.

 

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Permalink Reply by M Thomas on October 17, 2014 at 8:45am

The 5th District applied the 1989 version of the DMA in Wendt v Dickerson.

Both the 5th and 7th compromise the territory of the Utica Shale formation.

http://www.ohiodormantmineralact.com/wendt-v-dickerson-5th-district/

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Permalink Reply by m.jones on November 4, 2014 at 2:56pm

M. Thomas have you heard any more about the Supreme Court hearings? Is there another sight that has info about other cases going to Appellate Court? Seems like it is a stand still at this point.

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Permalink Reply by deutchen on November 4, 2014 at 3:35pm

Perhaps the most important case before the Ohio supreme court is Corban v Chesapeake. This may determine this very important matter once & for all. Read about it here.:
http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp...

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Permalink Reply by m.jones on November 10, 2014 at 3:46pm

yes, there is a lot to take in from it all. I printed most of it because so much to read on line and I could reread them without getting back online. Thanks

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Permalink Reply by Philip Brutz on December 30, 2014 at 5:56am

http://w***********/title-here?utm_source=Utica+Journal+%2349&u...

11th District upholds Automatic Abandonment under the 1989 DMA as Constitutional

http://w***********/title-here

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

written by Gregory W. Watts, Matthew W. Onest, William G. Williams

practice areas Oil, Gas & Mineral Law

Dec 30, 2014

In Thompson, et al. v. Custer, et al., Krugliak, Wilkins, Griffiths & Dougherty oil and gas attorneys, Gregory W. Watts, and Matthew W. Onest and William G. Williams, successfully defended land owners in a lawsuit involving the 1989 Ohio Dormant Mineral Act (O.R.C. § 5301.56).  In 2013, several individuals claiming to be heirs of a previously severed mineral interest created in 1950, sued the current surface owners of the real property. The surface owners defended the litigation, asserting that the 1989 Ohio Dormant Mineral Act precluded relief for the plaintiffs because the interest had remained dormant from 1950 until 2012, was legally abandoned, and had reverted to the surface estate. The Trumbull County Court of Common Pleas granted summary judgment in favor of the surface owners, finding that the severed mineral interest had been abandoned under the 1989 Ohio Dormant Mineral Act.

The Eleventh District Court of Appeals, in a unanimous decision, held that the plain language of the 1989 Ohio Dormant Mineral Act provided for automatic abandonment of severed mineral interests which were not subject to any savings event and automatically vested with the surface estate without requiring any affirmative act by the surface owner. The Eleventh District found the 1989 Dormant Mineral Act operated prospectively through the use of a three-year grace period (from March 22, 1989 until March 22, 1992), and therefore, held the Act was not an unlawful retroactive statute and thus, complied with Article II, Section 28 of the Ohio Constitution.

This case is significant because it involves the third Ohio appellate court, joining the Fifth District Court of Appeals and the Seventh District Court of Appeals, to decide that the 1989 Ohio Dormant Mineral Act is an automatic abandonment statute, imposed no obligation on surface owners, and complies with the Ohio Constitution.

Thompson, et al. v. Custer, et al., 11th Dist. Trumbull No. 2014-T-0052, 2014-Ohio-5711 (Dec. 29, 2014)

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

 

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Permalink Reply by bessieblues on December 31, 2014 at 3:02am

Hopefully Harrison County courthouse will catch wind of this latest decision.

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Permalink Reply by Bonnie Crawford on February 14, 2015 at 7:16pm

I hate to seem stupid but this is all confusing to me. My family has mineral rights in Belmont Co. So is this Ohio Dormant Act a good thing or a bad thing for us. Bonnie

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Permalink Reply by evan on February 15, 2015 at 12:12am

That depends , are you the surface owner that's trying to claim them or do you have mineral rights that were reserved long ago. ? If it's the latter then it may not be to good for you. .  

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Permalink Reply by Philip Brutz on February 15, 2015 at 4:07am

Ohio Supreme Court Schedules Oral Arguments in Walker and Corban

http://w***********/walker-and-corban

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.

written by Gregory W. Watts, Ryan W. Reaves

practice areas Oil, Gas & Mineral Law

Jan 30, 2015

The Ohio Supreme Court has scheduled Oral Arguments in two cases involving Ohio’s Dormant Mineral Act, O.R.C. § 5301.56:

Walker v. Noon, 2014-0803, Oral Argument scheduled for June 23, 2015

Corban v. Chesapeake, 2014-0804, Oral Argument scheduled for May 6, 2015

Walker and Corban are among several cases involving the Dormant Mineral Act that will be heard by the Ohio Supreme Court in 2015 and will be closely watched by all involved in the title and oil and gas industry in Ohio.

The Ohio Supreme Court live streams video footage of oral arguments on its website, www.supremecourt.ohio.gov/ and archives past arguments on www.ohiochannel.org.

The Oil, Gas & Mineral Law team at KWGD will continue to closely monitor Walker and Corban.

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Permalink Reply by Bluflame on February 15, 2015 at 10:25am

  From a reliable source, I read speculation that all of the various issues revolving around the Dormant Minerals Act(s) via several cases pending before the Ohio Supreme Court will be decided simultaneously. That makes intuitive sense since the issues are interrelated. (not that logic always carries the day with elected officials!)

  This is definitely a circumstance where there will be substantial winners & losers. No way to make everyone happy. Actually, I would not want to be an Ohio Supreme Court Justice rendering these decisions. Can the decisions be appealed to the US Supreme Court?? If so, with the $$$ involved, that would not be a big surprise.

IMHO

BluFlame

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Permalink Reply by Dee on November 8, 2015 at 11:02am

Nov. 5th from the Ohio Supreme Court log.  (Chesapeake and Buell) I cannot open the pdf due to computers problems. Here is the link if anyone is interested.

http://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2014/0067

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