Ohio Supreme Court and DMA Look Back Period

I got this in my email today if anyone is interested.

Ohio Supreme Court Will Hear Oral Arguments on DMA Look-Back Period



The Supreme Court of Ohio will hear oral arguments in Eisenbarth v. Reusser today, November 17th, 2015. The appellants in Eisenbarth contend that (1) the 1989 version of the DMA (1989 DMA) had a “rolling” look-back period which operated to vest a severed mineral interest in the owner of the surface if no savings events occurred during any twenty-year period in which the 1989 DMA was in effect, and (2) that an oil and gas lease executed by the owner of the surface and the executive right to lease the severed mineral interest is not a “title transaction” of which the severed mineral interest is the subject.

Eisenbarth is the third case that will be heard today. Oral arguments will begin at 9 a.m. and can be viewed live at The Ohio Channel. Check back later for a link to the replay of the arguments.



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Permalink Reply by deutchen on November 17, 2015 at 3:08pm

One interesting thing I noticed is that in 3 of the most important cases, Walker v Nau, Eisenbarth v Reusser, & Tribettt v Shepherd which involves my family the Mineral rights owners are represented by the same attorney, Matt Warnock of Bricker & Eckler in Columbus.

Permalink Reply by searcherone on November 17, 2015 at 5:15pm

Not only can you watch the oral arguments live, if you missed the live presentation you can watch the video here.

http://www.ohiochannel.org/MediaLibrary/Media.aspx?fileId=147653

And the video of this is very good, one can see the lawyers and justices up close.  A previous case I viewed was like being in the back of the courtroom, but this one is spot on showing their faces.

Permalink Reply by Bluflame on November 18, 2015 at 11:07am

   This case is terribly convoluted with multiple generations of families squabbling over mineral rights. The many events surrounding the case date back to the 1960's. Eisenbarth v. Reusser is supposed to set a precedent for "fixed or rolling" aspect of the 20-year lookback period included in the 1989 Dormant Minerals Act (DMA) related to re-connecting severed mineral rights to surface owners.

   Both the attorneys and the Supreme Court Justices seemed befuddled with all the facts in the case. The fixed vs rolling lookback question seemed almost tangential to the overall argument. IMHO, no clear direction was established during the oral arguments. None of the attorneys could deliver a "silver bullet" to make it an easy decision for the justices. This is despite of several pleas from the justices for simple "yes or no" answers. 

   Millions if not billions of $$$ hinge on their decision. There will be definite winners and losers based on "fixed vs rolling". The "Friends of the Court" filings unanimously supported a "rolling" lookback period. Those included an opinion from the Ohio Attorney General's office, which I imagine carries weight with the court.

   I welcome other opinions in this important matter.

BluFlame

Permalink Reply by Dott on November 18, 2015 at 11:22am

I did not know the Friends of the Court favored a rolling look back.  It would simplify things if the decision was for a fixed period. I am hopeful that this will indeed be their decision since a lower court already ruled that the 1989 DMA was for a fixed period. Also I did feel that Matt Warnock

presented the most concise argument out of the bunch and he was for the fixed period.

Permalink Reply by Bluflame on November 18, 2015 at 2:28pm

Hello Dott,

  I agree with your assessment of Atty. Warnock at the hearing. Also, there have been several previous decisions concerning the 1989 DMA, but the 9th District (I think) Appeals Court in Monroe County is the first one to uphold the "fixed" lookback period. All others favor the rolling lookback. That fact may have influenced the "Friends of the Court" submissions.

   This issue really puts political pressure on the Supremes (and they are elected politicians in Ohio, I believe all Republicans in this case). While they are charged to decide based on merits of the case, human nature says they will be also watching their political backsides. In this case, either decision will create a cadre of very unhappy Ohio voters. Could be why they seemed to be seeking an "easy" solution, based on their "yes or no" inquiries of the attorneys.

  Dott, most of this in conjecture on my part, but I have followed the issue closely the last few years. BTW…I am not an attorney!

BluFlame

Permalink Reply by Dott on November 18, 2015 at 2:38pm

Bluflame,

Since you have been following this for a while and are familiar with the other decisions, what is your best guess?  Just for fun.

Permalink Reply by Bluflame on November 19, 2015 at 2:46am

Dott,   

   OK. Just for fun. My best guess, "rolling". Several lower court decisions favored this answer. This case is the only instance I am aware that favored "fixed". One of the appellate judges in Monroe County wrote a dissenting opinion. Also, as BessieBlues notes below, if the court decides "fixed" it brings up the sticky question of what do you do with 1989-2006? (actually 1992 because there was a 3-yr waiting period prior to the 1989 act going into effect) Not really fair to make the 2006 law retroactive, since no one in the 17 (actually 14) year period knew about the 2006 Act. And I already mentioned the unanimous opinion of the "friends of the court". (was going to cite the Latin name, but would have butchered the spelling)

   This is a political hot potato that I'm sure the Supremes wish would quietly fade into history. Since you seem to be in the other camp, maybe a wager would be in order!

  Finally, this is a terrific discussion with well-thought-out posts.

Cheers,

BluFlame

Permalink Reply by Dott on November 19, 2015 at 5:41am

I am not a gambler. Haha   Okay, but confirm something for me.  Is it true that as it stands right now "fixed" is the law because of the decision of the 9th Circuit Court of Appeals and that over rules the other lower court decisions of "rolling"? If so the Supreme Court could just stay that decision.  But I'm not sure if that is how it all works.  Also I have watched this Supreme Court's other videos dealing with these same issues and they always seem befuddled.  I came to the conclusion that they know a lot more about the cases then they let on and that they are just trying to bring out the best in the Lawyers in stating their case. Otherwise it's pretty scary.

Permalink Reply by Bluflame on November 19, 2015 at 6:06am

  Let's hope you are correct and the Supremes are smarter than they appear on camera. Of course, it's not like this is the only sticky issue on their respective plates. The real shame is that the lawyers in this case, who theoretically should have been totally prepared, mostly came off as incompetent.

   So right now, IMHO, lots of proceedings are on "hold" pending the outcome of this case, or one of the others such as Walker v Nau. Once they issue a decision, Pandora's Box will open and lots of previously decided verdicts will be appealed, regardless of the decision by the Supremes. As I mentioned earlier, again IMHO, most of the early decisions favored "rolling". The "fixed" concept is relatively new.  These  appeals could involve leases signed several years ago with big signing bonuses, and the money long gone. The big winners will be O&G lawyers. It will be interesting.

BluFlame

   

Permalink Reply by bessieblues on November 18, 2015 at 2:51pm
To all. If the 20 year look back period is "fixed" ,that is to say from 1989 back to 1969, what do we do with the 17 years (1989 to 2006) that the 1989 DMA was in effect for, before the 2006 amended DMA was adopted? As far as the simple "yes" or "no" answers, there are none. The Supreme Court justices were befuddled no doubt, but just a little less than they were in the previous cases. They are slowly educating themselves on the interaction of the 1989 DMA and the 2006 DMA , but still seemed a little confused; The Chief didn't understand the original mineral division as it pertains to the case.
Permalink Reply by deutchen on November 18, 2015 at 3:20pm

I believe that this question of the look back period along with so many others will ultimately be answered first by the supreme courts ruling in Walker v Nau since it had oral arguments in June and will be decided first.

Permalink Reply by Dott on November 18, 2015 at 3:30pm

I think the years from 1989 to 2006 would then be covered by the 2006 version. Meaning the Surface Owner would have had to lay their claim according to the 2006 version as they now have to do in order to reunite the minerals with the surface. 

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