State ex rel. AWMS Water Solutions, L.L.C. v. Mertz

2022 Ohio 4571, 204 N.E.3d 140

• Court: Ohio Court of Appeals
• Decided: December 19, 2022
• Docket: 2016-T-0085
• Status: Published

Opinion

[Cite as State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 2022-Ohio-4571.]

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

STATE OF OHIO ex rel. AWMS WATER CASE NO. 2016-T-0085 SOLUTIONS, LLC, et al.,

Relators, Original Action for Writ of Mandamus

-v-

MARY MERTZ, DIRECTOR OHIO DEPARTMENT OF NATURAL RESOURCES, et al.,

Respondents.

PER CURIAM OPINION

Decided: December 19, 2022 Judgment: Petition denied

Matthew G. Vansuch and Brian A. Coulter, Brouse McDowell, LPA, 6550 Seville Drive, Suite B, Canfield, OH 44406; Kyle A. Shelton, Brouse McDowell, LPA, 388 South Main Street, Suite 500, Akron, OH 44311 (For Relators).

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, OH 43215; W. Scott Myers and Brett A. Kravitz, Assistant Attorneys General, Environmental Enforcement Section, 2045 Morse Road, Suite A-3, Columbus, OH 43229-6693; Matthew E. Meyer, Assistant Attorney General, Environmental Enforcement Section, 30 East Broad Street, 25th Floor, Columbus, OH 43215 (For Respondents).

PER CURIAM.

{¶1} This matter came for trial before this court on relators’, AWMS Water

Solutions, LLC, et al. (collectively “AWMS”), petition for writ of mandamus filed against

respondents, Mary Mertz, Director, Ohio Department of Natural Resources, et al.

(collectively “the Division”). Trial was held commencing on September 20, 2021, and concluded on October 1, 2021. The parties filed post-trial briefs in support of their relative

positions. Also, this court requested additional briefing on a pivotal but under-addressed

issue of what, if any, cognizable property interest was allegedly taken by the Division’s

actions. Both parties filed their supplemental briefs. AWMS argued it possessed a

cognizable interest in both the lease and the permit to inject, which was suspended, and,

hence, this court must proceed to analyze the merits of their taking claim. The Division

argued AWMS possessed no cognizable property interest, and, as a result, AWMS is not

entitled to a writ of mandamus necessitating an order to commence appropriation

proceedings.

{¶2} I. SUMMARY OF THE FACTS AND HOLDING

{¶3} After leasing acreage in Weathersfield Township, Trumbull County, Ohio,

AWMS sought and obtained two Level II injection well permits to inject wastewater brine

deep into the subsurface areas of the leased property. To obtain the permits, AWMS was

required to follow specific statutory procedures and submit to significant governmental

oversight. The oversight was premised upon certain inherent risks attendant to injecting

wastewater, not the least of which is the risk of inducing earthquakes. Shortly after

injection commenced, two seismic events took place – the first, a 1.7M event (“M” =

“magnitude”); the second, a 2.1M event.

{¶4} The seismic events prompted the Division to issue suspension orders on

both wells. Shortly thereafter, the shallower of the two wells was permitted to continue

operation (which AWMS ultimately closed due to economic losses), but the second well

remained closed. Although AWMS attempted to meet the Division’s requests for a restart

plan of the second well, the suspension order remained active. After unsuccessfully

challenging the suspension order, AWMS filed the instant action seeking an order 2

Case No. 2016-T-0085 requiring the Division to file appropriation proceedings based upon an alleged

unconstitutional taking requiring just compensation.

{¶5} The matter eventually proceeded to trial. A necessary legal hurdle to

overcome for this court to proceed to the merits of the case, however, was neither

broached, let alone discussed, until after the trial’s conclusion; namely, whether AWMS

possessed a cognizable property interest under the law such that it is entitled to both an

analysis of the merits of its claim as well as whether it might prevail. Because AWMS has

failed to establish a cognizable property interest contemplated under the Fifth

Amendment’s Just Compensation Clause, we conclude the Division is entitled to

judgment as a matter of law and deny AWMS’ petition for writ of mandamus.

{¶6} II. FACTUAL AND PROCEDURAL BACKGROUND

{¶7} AWMS is a company involved in disposing wastewater from oil and gas

production sites and drilling sites. Respondents are Mary Mertz, the Director of the Ohio

Department of Natural Resources (“Director”); the ODNR; Richard Simmers, the former

Chief of the Division of Oil and Gas Resources Management (“Chief”); and the Division.

{¶8} AWMS secured a lease on 5.2 acres of property (“the Site”) in an industrial

area in Weathersfield Township, which it acquired for the purpose of constructing and

operating salt-water injection wells, also known as Class II disposal wells. The Site is

located in the urban area of Weathersfield Township, near the city of Niles. Schools,

residences, the Mineral Ridge Dam, a fire department, a hospital, and other infrastructure

are within three miles of the Site.

{¶9} A. AWMS APPLIES FOR PERMITS

{¶10} On December 23, 2011, AWMS applied to the Division for permits to

construct the wells, designated AWMS #1 Well and AWMS #2 Well. At the time AWMS 3

Case No. 2016-T-0085 submitted its applications for drilling permits, it had invested approximately $100,000 into

the development of the Site. The Division’s procedure for obtaining authorization to

operate a Class II injection well is a two-step process. First, an applicant must apply for

a permit to drill and construct a Class II injection well, and second, the applicant must

apply to inject into the well.

{¶11} Also, between March and December 2011, six seismic events of varying

magnitudes were detected in Youngstown, Ohio, near an injection well designated

“Northstar #1,” operated by a third party not connected to this matter. On December 24,

2011, a 2.7 magnitude earthquake was recorded within one mile of the well. After

reviewing the seismic data, the Division found that Northstar #1 Well likely induced the

earthquake. On December 31, 2011, one day after Northstar #1 Well voluntarily ceased

operations at the Division’s request, a 4.0 magnitude event was recorded within one mile

of the well. Northstar #1 Well is located approximately seven miles from the Site. After

the second seismic event, the Division temporarily halted the issuance of permits through

November 2012. During the pause in permit issuances, the Division drafted emergency

rules to protect the public health and safety.

{¶12} On July 18, 2013, the Division issued a drilling permit to AWMS. In

September 2013, AWMS furnished a confidential offering memorandum to potential

qualified investors to raise the capital to construct the wells on the Site. Among other

things, including projected production volume of the wells, the memorandum identified

“risk factors,” emphasizing that the securities at issue “involve a high degree of risk” and

prospective investors should be aware of these risks. The memorandum highlighted the

“continuing risk” of “seismic events similar to the one that occurred in the Youngstown,

Ohio area.” The memorandum additionally noted that, due to the inherent risks of 4

Case No. 2016-T-0085 operating a well site, there is a possibility that well operations could be suspended and/or

terminated by the Ohio Environmental Protection Agency and/or the ODNR. The

memorandum also outlined certain geologic risks. It stated that AWMS had performed

no “subsurface testing.” As a result, the memorandum disclosed that the adequacy of the

geology and the suitability of the wells “will only be known upon drilling, completion, and

operation of the wells.”

{¶13} B. AWMS BEGINS OPERATIONS

{¶14} AWMS #1 Well was drilled to a true vertical depth of 4,403 feet below

ground surface, and AWMS #2 Well was drilled to a true vertical depth of 8,502 feet below

ground surface. On March 24, 2014, an operational permit was issued. Full commercial

operations of the wells commenced in May and June of 2014. AWMS installed four

seismic monitoring stations for monitoring seismic activity around the Site and

surrounding community in accordance with and at the request of the Division.

{¶15} During July 2014, AWMS injected 71,434 barrels of fluid, and, in August

2014, it injected 54,734 barrels. During the time the wells were operating, AWMS #1 Well

represented 5% of total injections between the two wells, while AWMS #2 Well

represented 95% of total injections. AWMS generated a gross income of $242,799 in

July 2014 and $170,695 in August 2014.

{¶16} On July 28, 2014, a seismic event measuring a magnitude of 1.7 occurred

in Trumbull County in the vicinity of AWMS’ wells. ODNR did not receive any “felt reports”

for the July event.1 On August 31, 2014, another seismic event occurred in the vicinity of

the wells measuring 2.1M. The earthquakes were connected in time and space with

1. When a member of the public feels a seismic event, it is known as a “felt event.” 5

Case No. 2016-T-0085 injections at AWMS #2 Well, and experts agreed that the events were likely induced by

AWMS’ operations.

{¶17} C. ODNR ISSUES SUSPENSION ORDER

{¶18} On September 3, 2014, the Division issued Chief’s Order No. 2014-372,

amended by Chief’s Order No. 2014-374 (“Suspension Order”), ordering AWMS to (1)

immediately suspend all operations at AWMS #2 Well, and (2) submit a written plan to

the Division for evaluating certain “seismic concerns associated with the operation of the

AWMS #2 saltwater injection well.” The Division also suspended operations at AWMS

#1 Well but subsequently terminated this suspension after AWMS submitted additional

information that AWMS #1 Well did not contribute to the earthquake activity. Following

the termination of the Suspension Order on AWMS #1 Well, AWMS injected into AWMS

#1 Well from September 2014 until September 2015. The monthly revenues generated

from the AWMS #1 Well did not cover the monthly expenses incurred to keep the facility

running. In effect, AWMS was unable to inject the volumes at the AWMS #1 Well that it

had expected in its confidential offering memorandum.

{¶19} AWMS submitted a plan to restart its operations at AWMS #2 Well; the

Division found, however, that the plan was deficient, was “generic and inadequate,” and

did not support terminating the Suspension Order. AWMS #2 Well has not operated since

imposition of the Suspension Order.

{¶20} D. PROTRACTED ADMINISTRATIVE AND JUDICIAL PROCEEDINGS

{¶21} AWMS appealed the Suspension Order to the Ohio Oil & Gas Commission

(“Commission”). On February 24, 2015, the Division and AWMS met to discuss resolution

of the appeal of the Suspension Order. The Division provided AWMS with a list of 14

criteria consisting of additional tools and/or recommendations for AWMS to consider in 6

Case No. 2016-T-0085 aid of potentially restarting AWMS #2 Well. A hearing was held on AWMS’ appeal of the

Order, at which the Division’s former Chief, Mr. Simmers, issued a report and testified

that “AWMS has not submitted a plan with sufficient detail or information to minimize risk

presented by induced seismicity.” Additionally, he testified that if AWMS “presented a

very comprehensive plan; then it’s possible we would consider that plan.” Experts for

AWMS testified that, in their view, AWMS’ plan was reasonable but could also not

conclude the Suspension Order was unreasonable. Still, AWMS’ experts opined that the

Order was unnecessary.

{¶22} In August 2015, the Commission found the Chief’s issuance of the

Suspension Order was not unlawful or unreasonable and affirmed the Division’s issuance

of the Suspension Order. AWMS filed an appeal of the Commission’s affirmance of the

Suspension Order to the Franklin County Court of Common Pleas. Meanwhile, in

November 2016 and on December 20, 2016, ODNR informed AWMS through letters from

its counsel that, consistent with former Chief Simmers’ testimony at the March 2015

Commission hearing, the Division was open to considering a comprehensive plan from

AWMS that properly minimized risk.

{¶23} On December 23, 2016, the court of common pleas found that the

Suspension Order was lawful but reversed the judgment of the Commission, concluding

the Order was unreasonable. The Division appealed this decision to the Tenth District

Court of Appeals.

{¶24} Meanwhile, on August 26, 2016, AWMS filed the instant petition for writ of

mandamus alleging the continued enforcement of the Suspension Order had substantially

interfered with AWMS’ property rights by depriving them of all, or at least partial,

economically viable use of the property. In light of the appeal to the Tenth Appellate 7

Case No. 2016-T-0085 District, this court stayed the underlying proceedings due to the possibility of rendering

an inconsistent ruling contrary to the jurisdictional-priority rule.

{¶25} On July 31, 2018, in the administrative appeal, the Tenth District reversed

the judgment of the court of common pleas in part, concluding, inter alia, the lower court

based its decision on impermissible evidentiary inferences made between experts who

testified before the division and the trial court drew conclusions regarding the likelihood

of seismic risk without reliable evidentiary support. See Am. Water Mgt. Servs., LLC v.

Div. of Oil & Gas Resources Mgt., 2018-Ohio-3028, 118 N.E.3d 385, ¶ 57 (10th Dist.).

The Tenth District therefore determined the Suspension Order was reasonable and

reinstated the same. See id. at ¶ 59. AWMS filed a jurisdictional appeal with the Supreme

Court of Ohio, and, on November 21, 2018, the court declined jurisdiction. See Am. Water

Mgt. Servs., L.L.C. v. Div. of Oil & Gas Resources Mgt., 154 Ohio St.3d 1431, 2018-Ohio-

4670, 111 N.E.3d 1192. On December 26, 2018, the court denied AWMS’ motion for

reconsideration. See Am. Water Mgt. Servs., L.L.C. v. Div. of Oil & Gas Resources Mgt.,

154 Ohio St.3d 1467, 2018-Ohio-5209, 114 N.E.3d 216.

{¶26} This court subsequently lifted the stay and proceeded to consider the

Division’s motion for summary judgment and AWMS’ memorandum in opposition. On

March 15, 2019, after considering the parties’ pleadings, this court entered summary

judgment in the Division’s favor, concluding AWMS failed to create a genuine issue of

material fact requiring trial on both their categorical-regulatory takings claim and their

partial-regulatory takings claim. See State ex rel. AWMS Water Solutions, LLC v.

Zehringer, 2019-Ohio-923, 132 N.E.3d 1151, ¶ 17, ¶ 50 (11th Dist.).

{¶27} AWMS filed a direct appeal to the Supreme Court of Ohio, and, on

December 2, 2020, the court reversed this court’s order entering summary judgment. See 8

Case No. 2016-T-0085 State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 162 Ohio St.3d 400, 2020-Ohio-

5482, 165 N.E.3d 1167. The Supreme Court determined there were genuine issues of

material fact for trial on both AWMS’ categorical-regulatory takings claim and their partial-

regulatory takings claim and remanded the case to this court for further proceedings. See

id. at ¶ 88-89. The threshold issue of whether AWMS possessed a cognizable property

interest that would trigger a takings analysis, however, was neither briefed nor addressed

by this court or the Supreme Court.

{¶28} Subsequently, on May 21, 2021, Chief Vendel issued Chief’s Order No.

2021-97, which terminated the Suspension Order (“Restart Order”). The Restart Order

authorized AWMS to resume injection operations at the AWMS #2 Well by modifying

operational conditions of the Suspension Order. In July 2021, AWMS appealed the

Restart Order to the Commission. To date, AWMS has not sought a stay of the Restart

Order and has not resumed injection operations at the AWMS #2 Well. AWMS #2 Well

has not operated since September 2, 2014.

{¶29} In light of the Supreme Court’s remand order, the matter proceeded to trial.

{¶30} III. MANDAMUS

{¶31} In order for a writ of mandamus to issue, AWMS must establish a clear legal

right to compel the Division to initiate an appropriation action, the Division’s corresponding

duty to institute the action, and the lack of an adequate remedy for AWMS in the ordinary

course of law. See State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372,

2005-Ohio-2163, 826 N.E.2d 832, ¶ 10.

{¶32} The “standard of proof” is the threshold quantum of evidence that a party

must establish in order to be entitled to the relief requested. State ex rel. Todd v. State

Teachers Retirement Sys., 6th Dist. Lucas No. L-15-1267, 2016-Ohio-5073, ¶ 17. The 9

Case No. 2016-T-0085 standard of proof placed upon a relator seeking a writ of mandamus is heightened. See

State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶

56. “Parties seeking extraordinary relief bear a more substantial burden in establishing

their entitlement to this relief.” Id. In a mandamus case, a relator must prove its

entitlement to a writ by clear and convincing evidence. See State ex rel. Summit Cty.

Republican Party Executive Commt. v. LaRose, 165 Ohio St.3d 185, 2021-Ohio-1464,

177 N.E.3d 218, ¶ 8. Clear and convincing evidence is “intermediate” evidence, in that it

requires more than a preponderance of evidence, but less than evidence beyond a

reasonable doubt. Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

“Clear and convincing evidence is that measure or degree of proof which will produce in

the mind of the trier of facts a firm belief or conviction as to the allegations sought to be

established.” Id.

{¶33} “[M]andamus is the vehicle for compelling appropriation proceedings by

public authorities where an involuntary taking of private property is alleged.” State ex rel.

Levin v. Sheffield Lake, 70 Ohio St.3d 104, 108, 637 N.E.2d 319 (1994). “In such actions,

the court, as the trier of fact and law, must determine whether any property rights of the

owner have been taken by the public authority.” Id.

{¶34} IV. REGULATORY TAKINGS DOCTRINE

{¶35} AWMS claims it is entitled to compensation for the state’s regulatory taking

of its property under the Takings Clause of the Fifth Amendment to the United States

Constitution. The Takings Clause of the Fifth Amendment to the United States

Constitution provides that private property shall not “be taken for public use, without just

compensation.” This clause applies to the individual states by virtue of the Fourteenth

Amendment to the United States Constitution. See Barber v. Charter Twp. of Springfield, 10

Case No. 2016-T-0085 Michigan, 31 F.4th 382, 387 (6th Cir.2022). Moreover, the Takings Clause applies to both

ownership interests in fee and unexpired leasehold interests. See Alamo Land & Cattle

Co., Inc. v. Arizona, 424 U.S. 295, 303, 96 S.Ct. 910, 47 L.Ed.2d 1 (1976) (“It has long

been established that the holder of an unexpired leasehold interest in land is entitled,

under the Fifth Amendment [of the United States Constitution], to just compensation for

the value of that interest * * *.”) (Footnote omitted.)

{¶36} Originally, the federal Takings Clause was thought to apply only to

situations where the direct appropriation of property or the functional equivalent of a

practical elimination of an owner’s possession. Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). The Supreme Court of

the United States has recognized, however, that the clause may also be applied to overly

burdensome governmental regulations of property. See Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“[W]hile property may be

regulated to a certain extent, if regulation goes too far it will be recognized as a taking”).

{¶37} The Court has established guidelines for identifying regulations that go too

far. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-540, 125 S.Ct. 2074, 161

L.Ed.2d 876 (2005). “The rub, of course, has been—and remains—how to discern how

far is ‘too far.’” Id. at 538. “In answering that question, we must remain cognizant that

‘government regulation—by definition—involves the adjustment of rights for the public

good,’ and that ‘[g]overnment hardly could go on if to some extent values incident to

property could not be diminished without paying for every such change in the general

law[.]’” (Internal citation omitted.) Id., quoting Mahon at 413.

{¶38} With the foregoing in mind, federal courts have established a two-part test

to determine whether government actions amount to a taking of property under the Fifth 11

Case No. 2016-T-0085 Amendment. First, a court must determine whether a party possesses a cognizable

property interest in the subject of the alleged taking.2 See Conti v. United States, 291

F.3d 1334, 1339 (Fed.Cir.2002), cert. denied, 537 U.S. 1112, 123 S.Ct. 904, 154 L.Ed.2d

785 (2003). Second, once a court has determined a property interest exists, it must

determine whether a taking occurred. Id. “If the claimant fails to demonstrate the

existence of a legally cognizable property interest, the court[’]s task is at an end.” Am.

Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1372 (Fed.Cir.2004), cert.

denied, 545 U.S. 1139, 125 S.Ct. 2963, 162 L.Ed.2d 887 (2005). “The question of

whether [AWMS] owned a compensable property interest presents ‘a question of law

based on factual underpinnings.’” Mohlen v. United States, 74 Fed.Cl. 656, 660

(Fed.Cl.2006), quoting Walcek v. United States, 303 F.3d 1349, 1354 (Fed.Cir.2002).

{¶39} Regarding the concept of a cognizable property interest, “‘the Fifth

Amendment concerns itself solely with the “property,” i.e., with the owner’s relation as

such to the physical thing and not with other collateral interests which may be incident to

his ownership.’” Mitchell Arms, Inc. v. United States, 7 F.3d 212, 217 (Fed.Cir.1993),

cert. denied, 511 U.S. 1106, 114 S.Ct. 2100, 128 L.Ed.2d 662 (1994) (“Mitchell Arms II”),

quoting United States v. Gen. Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed.

311 (1945). Further, in order to have a cognizable property interest, one “‘must have

more than an abstract need or desire for it * * * [or] a unilateral expectation of it,’ and

‘must, instead, have a legitimate claim of entitlement to it.’” Horne v. Mayor & City Council

2. For purposes of the Fifth Amendment’s Takings Clause, the phrases “property interest,” “cognizable property interest,” and “compensable property interest” are generally used in caselaw interchangeably. Accordingly, if one lacks a “Fifth Amendment property interest,” a “cognizable property interest,” or a “compensable property interest,” one is not entitled to a Just-Compensation Takings analysis. 12

Case No. 2016-T-0085 of Baltimore, 349 Fed.Appx. 835, 838 (4th Cir.2009), quoting Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

{¶40} Moreover, “[w]e determine whether an asserted right is one of the rights in

the bundle of sticks of property rights that inheres in a res by looking to ‘existing rules or

understandings’ and ‘background principles’ derived from an independent source such as

state, federal, or common law.” (Emphasis sic.) Am. Pelagic Fishing Co., supra, at 1376,

quoting Lucas, supra, at 1030. Moreover, “‘in the case of personal property, by reason

of the State’s traditionally high degree of control over commercial dealings, [the owner]

ought to be aware of the possibility that new regulation might even render his property

economically worthless * * *.’” Id., quoting Lucas at 1027. In this respect, “there is a

distinction between simply not being disturbed in the particular use of one’s property and

having the right to that use of the property. Clearly, in order for there to be a cognizable

property interest sufficient to support a takings claim, the latter must be true.” (Emphasis

sic.) Id.

{¶41} V. ANALYSIS

{¶42} A. WHAT PROPERTY INTEREST, IF ANY, WAS ALLEGEDLY TAKEN?

{¶43} AWMS purchased a leasehold in the property for purposes of constructing

and operating salt-water injection wells. It obtained permits to drill wells and inject brine.

Both wells were initially shut down, but AWMS #1 Well was subsequently allowed to re-

commence injection; thus, there is no meaningful argument that any property interest

AWMS possessed in AWMS #1 Well and/or its permit was taken such that it would be

entitled to compensation for Fifth Amendment purposes. The subject of AWMS’ claim for

relief, therefore, is the property interest it had in its lease, its well/equipment, and/or its

permit and whether that (or those) interest(s) rises to the level of a cognizable property 13

Case No. 2016-T-0085 interest as a matter of law. AWMS asserts it has a cognizable property interest, for

purposes of a Fifth Amendment takings claim, in the lease, its well, and the permit issued

by the Division. We shall address each of these points individually.

{¶44} B. PROPERTY INTEREST IN THE LEASE

{¶45} Initially, AWMS contends that, in reversing this court’s award of summary

judgment, the Supreme Court of Ohio held AWMS has a protected property interest in the

lease. Specifically, AWMS cites the court’s observation that “‘the holder of an unexpired

leasehold interest in land is entitled’ to invoke the Takings Clause’s guarantees.” Mertz,

supra, at ¶ 26, quoting Alamo Land, supra, at 303. To be sure, as the court noted,

“‘“[e]very sort of [real property] interest the citizen may possess” counts as a property

interest under the Fifth Amendment.’” Id., quoting Cienega Gardens v. United States,

331 F.3d 1319, 1329 (Fed.Cir.2003), quoting Gen. Motors Corp., supra, at 378. The

question is not whether AWMS has some property interest in its lease, it clearly does; the

question germane to this matter is what property interest, if any, was taken via the

Division’s Suspension Order.

{¶46} The Supreme Court, in issuing its remand order, did not hold that AWMS

had a cognizable property right in the lease or permit under the Fifth Amendment’s Just

Compensation Clause. Indeed, on appeal from the grant of summary judgment, the legal

question of whether AWMS possessed a cognizable property interest was not at issue.

Despite the sine qua non character of this preliminary legal point, the issue of AWMS’

alleged cognizable property interest was not discussed or briefed until closing arguments

and post-trial briefing. As such, neither this court nor the Supreme Court had occasion

to comment on whether the property interest AWMS possessed was a cognizable and

thus compensable property interest under the Fifth Amendment’s Takings Clause. 14

Case No. 2016-T-0085 {¶47} At most, in the above quote cited by AWMS, the Supreme Court was noting

that AWMS was prima facie entitled to invoke the constitutional right to just compensation;

this did not imply, however, AWMS was entitled to relief or even an analysis of such an

entitlement if it could not establish a cognizable property interest. In short, the Supreme

Court’s passing observation vis-à-vis AWMS’ right to “invoke” the Fifth Amendment’s

guarantee did not establish AWMS possessed any such interest.

{¶48} Adjunctly, AWMS argues the Division conceded that AWMS possessed an

extensive property interest in its lease, i.e., the Division regularly pointed out AWMS could

utilize the property for other purposes, not the least of which would be obtaining additional

permits to drill in alternative areas on the property. We discern nothing inconsistent with

the Division’s concession of AWMS’ property right in the leasehold and its concomitant

denial that it engaged in a compensable taking of a cognizable property interest. AWMS’

leasehold rights remained intact even though AWMS #2 Well was shut down. There is

nothing preventing AWMS from securing additional permits for the narrow purpose of its

lease. Regardless of the economical and logistical feasibility of this option, such an option

is still available and would allow AWMS to retain some use regardless of the Suspension

Order.

{¶49} Again, while we recognize AWMS possesses a property right in its lease,

the real question is whether that right is cognizable such that it is entitled to a just-

compensation analysis. In Mitchell Arms II, supra, the Federal Circuit Court of Appeals

addressed a similar point. Specifically, the plaintiff in Mitchell Arms II was a federally-

licensed arms importer who entered into a contract to purchase Yugoslavian assault rifles.

The plaintiff imported rifles pursuant to the contract and its permits throughout 1987 and

1988. In March of 1989, however, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) 15

Case No. 2016-T-0085 issued an announcement suspending the import of assault rifles under existing permits.

The plaintiff filed suit, asserting its reliance on the issued permits constituted “property”

and thus the suspension constituted a taking under the Fifth Amendment. The Federal

Claims Court dismissed the plaintiff’s complaint for failure to state a claim. Id. at 213-215.

{¶50} On appeal, the court rejected the plaintiff’s assertion, reasoning that in

revoking the import permit, the government did not take the rifles, and the plaintiff could

have done anything it wished with them except import them into the United States. Id. at

217. The court underscored that the Fifth Amendment addresses “property” and the

owner’s relation to that property, but not with collateral interests that might be incident to

that ownership. Id. As such, the plaintiff’s expectation that it would be allowed to import

and then sell those weapons in the United States was a collateral interest that “‘comes

into being only upon the issuance of an import permit.’” Id., quoting Mitchell Arms, Inc. v.

United States, 26 Cl.Ct. 1, 6 (Cl.Ct.1992) (“Mitchell Arms I”).

{¶51} Here, although we are currently concerned with the nature of AWMS’

property interest in its lease, the foregoing points are instructive. AWMS entered into its

lease with an awareness that injection wells are subject to pervasive governmental

control. And AWMS’ lease afforded it only the extremely narrow right to inject brine. Just

as the plaintiff’s ability in Mitchell Arms II to import and sell rifles was entirely subject to

the ATF’s regulatory power, so was (and is) AWMS’ ability to inject brine subject to the

Division’s overarching oversight. And, as a result, even though AWMS had an

expectation (particularly after receiving its permits) to utilize its leasehold pursuant to its

terms, its collateral interest in injecting brine came into being only upon the issuance of

the relevant injecting permits. Hence, any expectation AWMS had in using its lease for

Case No. 2016-T-0085 the narrow purpose for which it entered, the same cannot constitute a property right

protected by the Fifth Amendment.

{¶52} Further, in order to have a cognizable property interest in the lease, AWMS

must have more than an abstract or one-sided expectation for that which the leasehold

granted. Horne, supra, at 838. Rather, it must demonstrate “‘a legitimate claim of

entitlement’” to the property interest. Id., quoting Roth, supra, at 577.

{¶53} The Suspension Order required AWMS to cease injecting brine. As just

noted, AWMS was legally allowed to inject brine, subject to significant regulatory

oversight, through the Division’s issuance of a permit pursuant to R.C. Chapter 1509.

The lease did not and could not confer a right to inject brine. Instead, it only afforded

AWMS the right to apply for a permit, without which (or without special permission by the

Division’s Chief) AWMS could not inject wastewater. See R.C. 1509.22(D).

{¶54} A review of the lease itself does not (nor could it, given the highly regulated

nature of wastewater injection) afford AWMS any guaranteed interest that it would be

conclusively able to inject brine on any aspect of the property; in other words, it does not

confer or purport to confer a specific property interest in the industrial activities which are

at the heart of AWMS’ takings claim. The lease merely affords AWMS the exclusive right

to operate Class II disposal wells and install, operate, and maintain infrastructure. AWMS’

ability to utilize these provisions of the lease, however, were fundamentally conditioned

on its ability to secure the necessary permits.

{¶55} While the lease conferred certain rights of use, those rights were not

inherent in the instrument itself; rather, they were necessarily dependent on AWMS

meeting specific statutory criteria established by the General Assembly and administered

Case No. 2016-T-0085 as well as enforced by the Division.3 The lease represented a gamble, like many facets

of this highly regulated industry, which, without the synergy of various surrounding

circumstances, might easily eventuate in a “bust.” Although AWMS’ ability to do what it

desired to do on the leased property was halted by virtue of the Suspension Order, the

lease did not represent an assurance that AWMS was entitled to fulfill its aspirations under

the instrument. AWMS, consequently, only possessed a “unilateral expectation” in its

lease, the scope of which was limited to injecting brine, not the “legitimate claim of

entitlement” necessary for a cognizable property interest. In short, AWMS has failed to

establish a cognizable property interest under the Fifth Amendment in its lease that would

necessitate a just compensation/takings analysis.

{¶56} C. PROPERTY INTEREST IN WELLS AND EQUIPMENT

{¶57} AWMS also contends it has a cognizable property interest in its well and all

attendant equipment in which it invested for its business. While AWMS has a property

interest in its physical investments, the Division did not physically commandeer the

infrastructure. To the contrary, the infrastructure’s use was halted due to the Suspension

Order, which was deemed lawful and reasonable during the administrative appeals

process. In this regard, even if AWMS could establish a cognizable property interest in

the equipment, we fail to see how the physical investments installed on the leasehold

property, which were only operable by virtue of AWMS securing a permit, were taken.

3. The legal reality that the injection-well industry is highly regulated in Ohio foreshadows an additional reason why AWMS has no cognizable property interest in its lease. As will be discussed below in significant detail, the traditional features of a cognizable property interest include the right to assign or sell the interest and, most fundamental, the right to exclude others - most significantly, the government. (See infra, ¶ 64- 87). Even if AWMS could assign its interest in the lease (a matter on which the lease is silent), it cannot prevent the government from inserting itself at any moment and directing the way in which AWMS conducts its business. At any time, the Division’s oversight would supersede any property right AWMS might possess to inject brine. 18

Case No. 2016-T-0085 {¶58} Still, for a comprehensive legal analysis, we shall address whether AWMS

possesses the requisite property interest. As noted above, the state generally exercises

a high degree of control over commercial endeavors. Am. Pelagic Fishing Co., supra, at

1377. As such, where personal property is also commercial property, the owner should

be on notice of the possibility that a regulation may render that property economically

valueless. Id. To establish a cognizable property interest in personal, commercial

property, therefore, AWMS was required to demonstrate it had a right to use the

equipment. Id.

{¶59} Prior to the Suspension Order, AWMS was able to enjoy the use of the

equipment without the Division’s interference. The use of the equipment, which is not

inherent in AWMS’ ownership, was totally and entirely dependent upon the permit issued

by the Division. See Mitchell Arms II, supra, at 217. Even though AWMS had an

expectation that, upon purchasing and erecting the equipment at issue, it would be able

to freely use the same for commercial profit, it had no legitimate claim of entitlement to

use it. Therefore, we decline to hold AWMS possessed a cognizable property interest in

the equipment under the Fifth Amendment.

{¶60} D. PROPERTY INTEREST IN THE PERMIT

{¶61} Next, AWMS contends it has a vested property interest in its permit

because, in issuing the permit, the Division did not confer a discretionary benefit that

could be arbitrarily revoked. AWMS underscores that Ohio statutory law and

administrative rules create and ensure that its property interests under the permit are

protected. While AWMS’ assertions are not without some basis, it appears to be

conflating its due process property interests with the property interests necessary to

Case No. 2016-T-0085 establish a cognizable property interest for a compensable-takings analysis. These two

Fifth Amendment property interests are legally distinct.

{¶62} The existence of a property interest in an intangible benefit, such as a

permit, may give the holder of the interest a right to a hearing before the benefit is taken

away as a matter of procedural due process.4 See, e.g., Perry v. Sindermann, 408 U.S.

593, 603, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). This right, however, does not necessarily

mean the interest entitles a holder to compensation under the Takings Clause of the Fifth

Amendment. See Pro-Eco, Inc. v. Bd. of Commrs. of Jay Cty., 57 F.3d 505, 513 (7th

Cir.1995) (“[P]roperty as contemplated by the Takings Clause and property as

contemplated by the Due Process Clause cannot be coterminous. * * * The Due Process

Clause * * * recognizes a wider range of interests as property than does the Takings

Clause”); Corn v. Lauderdale Lakes, 95 F.3d 1066, 1075 (11th Cir.1996) (“‘Property’ as

used in the Just Compensation Clause is defined much more narrowly than in the due

process clauses”); Kizas v. Webster, 707 F.2d 524, 534-540 (D.C.Cir.1983); Arctic King

Fisheries, Inc. v. United States, 59 Fed.Cl. 360, 372 (Fed.Cl.2004), fn. 27. To wit, “[a]

claim of deprivation of property without due process cannot be blended as one and the

4. It is worth pointing out that, given the manner in which AWMS has pleaded this matter, the substantive component of the Due Process Clause would not apply to this case. There are three forms of regulatory action that generally will be deemed a taking for Fifth Amendment purposes, see Crown Point Dev., Inc. v. Sun Valley, 506 F.3d 851, 855 (9th Cir.2007): First, where the government requires an owner to suffer a permanent physical invasion of property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); second, where a regulation deprives an owner of all economically beneficial use of property, see Lucas, supra; and third, a partial regulatory taking where the Penn Central factors are met. See Penn Cent. Transp. Co. v. New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). To the extent a property owner’s complaint falls within one of these categories (or some other recognized application of the Takings Clause), the Supreme Court of the United States has indicated that the claim must be analyzed under the Fifth Amendment. Crown Point Dev. at 855-856, citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). To the extent, however, the conduct alleged cannot be a taking, a substantive due process claim is not precluded. See Lingle, supra, at 542 (“[A] regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause”). Throughout these proceedings, AWMS has argued the Division’s actions have effected either a categorical or a partial regulatory taking. Hence, the substantive aspect of the Due Process Clause is inapplicable. 20

Case No. 2016-T-0085 same with the claim that property has been taken for public use without just

compensation.” (Emphasis sic.) Sackman, Nichols’ The Law of Eminent Domain, Section

4.3.

{¶63} A “legitimate claim of entitlement” to a permit or the benefits of possessing

a permit does not transform the permit or the benefits it confers into a vested, cognizable

property interest under the Just Compensation Clause. That is, although one who applies

for and receives a permit may have such a legitimate claim, that claim is, in Ohio,

protected by due process through administrative procedures. As such, due process

“property interests” in the permit or its benefits are “limited, as a general rule, by the

governmental power to remove, through prescribed procedures, the underlying source of

those benefits.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 798, 100 S.Ct.

2467, 65 L.Ed.2d 506 (1980) (Blackmun, J., concurring in judgment).

{¶64} While AWMS had/has a legitimate entitlement to due process protections in

its possession of the permit (which have been vindicated through the administrative

process), we decline to conclude that this entitlement rises to the level of “property”

protected by the Takings Clause. If AWMS’ right to receive the benefits from the permit

was a cognizable property interest under the Takings Clause, the state could not deprive

AWMS of the permit’s benefits, even after notice and an opportunity to be heard, without

affording it just compensation.

{¶65} Such an outcome would be absurd and inconsistent with the heightened

regulatory authority the statutory scheme accords the Chief and the Division as well as

general, accepted conceptions of the state’s police power. See DeMoise v. Dowell, 10

Ohio St.3d 92, 96, 461 N.E.2d 1286 (1984) (because nearly every exercise of the state’s

police power interferes with the enjoyment or possession of property, the constitutional 21

Case No. 2016-T-0085 provisions against the taking of property must give way to the exercise of the state’s police

power if it bears a real and substantial relation to the public health and safety and is

neither unreasonable nor arbitrary).

{¶66} With the foregoing in mind, we acknowledge that, over the course of the

parties’ ongoing interactions from the inception of AWMS’ business venture, the acts or

omissions of the Division could be seen as a form of bureaucratic stonewalling. While we

neither condone nor validate what might reasonably be considered administrative foot-

dragging, AWMS received procedural due process via the administrative procedures

under Ohio law. The Tenth Appellate District determined the suspension order was

reasonable, and its decision was left untouched by the Supreme Court of Ohio.

{¶67} We therefore conclude AWMS’ due process rights vested in its possession

of the permit do not rise to the level of a cognizable property interest protected by the

Takings Clause.

{¶68} With these points in mind, “[c]ourts which have directly considered the

question at bar have taken a dim view of the notion that government-issued licenses [or

in this matter a permit] are compensable property interests.” Kafka v. Montana Dept. of

Fish, Wildlife & Parks, 348 Mont. 80, 96, 201 P.3d 8 (2008), citing United States v. Fuller,

409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (grazing permit not a compensable

property interest); Conti, supra, at 1342 (commercial fishing permit not a cognizable

property interest); Am. Pelagic Fishing Co., supra, at 1374 (previously issued fishing

permits were revoked, but court found no compensable property interest).

{¶69} In addressing whether AWMS’ interest in its permit is entitled to the

protection of the Fifth Amendment’s Just Compensation Clause, we reiterate the axiom

that “‘[p]roperty interests * * * are not created by the Constitution. Rather, they are created 22

Case No. 2016-T-0085 and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law * * *.’” Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), quoting Roth, supra,

at 577. These “rules or understandings” focus upon the nature of the citizen’s relationship

to the alleged property, not the government’s. See Conti at 1340, citing Gen. Motors,

supra, at 378. To the point, courts have considered specific factors inherent in an alleged

“property right” that, when considered in sum, may or may not create a cognizable

property interest under the Just Compensation Clause.

{¶70} Specifically, compensable property interests may exist in a governmentally-

issued permit if there is no explicit statutory language preventing the formation of such an

interest, combined with the right to transfer the interest and the right to exclude others.

See Members of the Peanut Quota Holders Assn., Inc. v. United States, 421 F.3d 1323,

1331 (Fed.Cir.2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2967, 165 L.Ed.2d 951 (2006);

see Kafka at 96; Conti at 1341-1342; Am. Pelagic Fishing Co. at 1373-1374.

{¶71} Moreover, “courts must consider whether the affected ‘right of use’ is

dependent upon the regulatory scheme or whether ‘an independent or preexisting right

of use under common law applies.’” Page v. United States, 51 Fed.Cl. 328, 339

(Fed.Cl.2001), quoting Maritrans Inc. v. United States, 40 Fed.Cl. 790, 798 (Fed.Cl.1998).

If the interest was independent of the regulatory scheme, courts have found that a

compensable taking has occurred. See, e.g., Cienega Gardens, supra, at 1334

(concluding that federal statutes preventing the prepaying of federally subsidized

mortgages were a taking of property despite heavy regulation of the federal housing

program).

Case No. 2016-T-0085 {¶72} Conversely, courts have determined that property interests that are

dependent on a regulatory scheme are not compensable where pervasive regulation

exists in the area. See, e.g., Bowen v. Pub. Agencies Opposed To Social Sec.

Entrapment, 477 U.S. 41, 55-56, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986) (holding there

was no vested property interest where an act of Congress eliminated the state’s ability to

terminate participation in national social security program where Congress retained the

right to amend the statutory scheme for the public welfare); see also Conti at 1341-1342

(finding no property interest for fisherman where, inter alia, the permit was altered by a

new regulation permitted under existing statutory scheme).

{¶73} We shall address each of the relative “sticks” in AWMS’ abstract bundle of

property rights to determine whether it possesses a cognizable property interest in the

permit. It bears noting that when we requested the parties to identify the alleged

cognizable property interest at issue (if any), AWMS did not engage in this analysis in its

post-trial supplemental brief or direct this court to authority as to why such an analysis

might be unnecessary.

{¶74} i. ABILITY TO TRANSFER

{¶75} “The right to transfer is a traditional hallmark of property.” Members, supra,

at 1332. Here, the “Well Permit” issued to AWMS for the #2 Well, issued on July 18,

2013, expressly states, “This permit is NOT TRANSFERABLE.” Pursuant to the

unequivocal and bold language of the permit itself, AWMS plainly lacked the ability to

transfer its rights and/or privileges under the permit.

{¶76} Moreover, while perhaps less directly, the governing statutory scheme, read

in relation to AWMS’ lease, demonstrates it was precluded from transferring or assigning

its permit to drill and inject. AWMS’ lease affords it a right to operate injection wells on 24

Case No. 2016-T-0085 the subject property. Specifically, the lease provides, in relevant part: “Lessor hereby

grants and leases to Lessee the exclusive right to operate one or more Class II Saltwater

disposal wells * * * on the Property * * *. Lessor expressly excepts from this Lease and

reserves to Lessor all minerals of every kind and character including but not limited to oil

and gas.”

{¶77} R.C. 1509.01(A) defines “Well” as “any borehole, whether drilled or bored,

within the state for production, extraction, or injection of any gas or liquid mineral,

excluding potable water to be used as such, but including natural or artificial brines and

oil field waters.” (Emphasis added.) R.C. 1509.01(K) defines “Owner,” in relevant part,

as “the person who has the right to drill on a tract or drilling unit, to drill into and produce

from a pool, and to appropriate the oil or gas produced therefrom either for the person or

for others, except that a person ceases to be an owner with respect to a well when the

well has been plugged in accordance with applicable rules adopted and orders issued

under this chapter. ‘Owner’ does not include a person who obtains a lease of the mineral

rights for oil and gas on a parcel of land if the person does not attempt to produce or

produce oil or gas from a well or obtain a permit under this chapter for a well * * *.”

(Emphasis added.)

{¶78} Here, AWMS has two wells as contemplated by R.C. 1509.01(A). AWMS

obtained permits for its wells; it does not, however, have a lease for the mineral rights for

oil and gas on the leased land. Hence, even as a statutory permit holder and injection

well operator, AWMS is not an “owner” under the code – especially because the General

Assembly included injection of brine water in its definition of a well but did not include a

leaseholder for the right to inject brine in its definition of owner.

Case No. 2016-T-0085 {¶79} Pursuant to the narrow nature of AWMS’ rights under its lease, in

conjunction with the interplay of R.C. 1509.01(A) and (K), AWMS is not a statutory

“owner.” If it is not an owner (because it only possesses the leasehold right to operate

disposal wells), regardless of whether it is a permit holder, it cannot transfer or assign

that right. Pursuant to R.C. 1509.01(K) and R.C. 1509.31(C), only an “owner” holding a

drilling permit for an “oil and gas lease” can transfer or assign that interest.

{¶80} The permit, by its plain language, prevents transferability. Further, AWMS

is not a statutory “owner” and accordingly cannot “transfer or assign” its interest under the

revised code. We therefore conclude AWMS necessarily lacks the fundamental ability to

transfer its property interest in the permit.

{¶81} ii. RIGHT TO EXCLUDE

{¶82} The Supreme Court of the United States has recognized “that the right to

exclude is ‘perhaps the most fundamental of all property interests.’” Members, supra, at

1333, quoting Lingle, supra, at 539. “In the bundle of rights we call property, one of the

most valued is the right to sole and exclusive possession—the right to exclude strangers,

or for that matter friends, but especially the [g]overnment.” (Emphasis sic.) Hendler v.

United States, 952 F.2d 1364, 1374 (Fed.Cir.1991). To provide further definition of the

right to exclude as being fundamental to a cognizable property interest, caselaw on the

subject is highly instructive.

{¶83} In Conti, supra, the Federal Circuit was asked to decide whether a fishing

permit was a cognizable property interest subject to a takings analysis. See id. at 1340.

The permit holder was subject to the federal government’s prohibition on drift gillnet

swordfishing in the Atlantic Swordfish Fishery. Id. at 1337. The holder brought a lawsuit

alleging that the regulation effected a taking of his permit requiring just compensation. Id. 26

Case No. 2016-T-0085 The court reasoned that “courts have held that no property rights are created in permits

and licenses.” Id. at 1340. The court emphasized the fact that the holder did not have

the right to assign, sell, or otherwise transfer the permit and stated that such rights “are

traditional hallmarks of property.” Id. at 1341. The court also pointed out the holder did

not have the right to exclude under the permit. Id. The court observed that the fishing

permits did not confer exclusive fishing privileges in the oceanic fisheries and that the

government retained the right to suspend, revoke, or modify the permit. Id. at 1341-1342.

Accordingly, the court held the permit holder had no cognizable property right in the

permit. Id. at 1342.

{¶84} In Mitchell Arms II, supra, the Federal Circuit declined to recognize a

property interest in a contract entered into in accordance with the terms of a firearm import

permit issued pursuant to federal law and suspended before the contract could be

performed. See id. at 215-216. The court determined that when a citizen voluntarily

enters a market subject to pervasive governmental control and regulation, he or she does

not possess the right to exclude. Id. at 216. Put differently, the court concluded that the

relevant right to exclude that the permit holder lacked was the ability to exclude others

from the market for sale of firearms. Id. at 215. Only the government possessed this

power. Id.

{¶85} In Kafka, supra, the Supreme Court of Montana considered whether owners

of an alternative livestock game farm suffered a compensable taking as a result of an

initiative that prohibited the owners from charging a fee to shoot the livestock – a

significant source of income which was previously permissible via state licensing. See id.

at 91. Although the court concluded the licenses were transferrable when issued, it

determined the owners did not possess the right to exclude. Id. at 99-100. Specifically, 27

Case No. 2016-T-0085 the court noted nothing in the language of the licenses gave the license holders the right

to exclude others from the Game-Farm industry. Id. at 99. The holders were not assured

freedom from competition nor were they guaranteed a discrete segment of the industry.

Id. at 100. The court also underscored the industry was highly regulated, which militated

significantly against the right to exclude because the government exercised control over

licensing. Id. Although the licenses in Kafka were transferable and they were free of any

language prohibiting the formation of a compensable property interest, the court

concluded the licenses lacked excludability and thus were not a cognizable property

interest. Id.

{¶86} In Carney v. Atty. Gen., 451 Mass. 803, 890 N.E.2d 121 (2008), the

Supreme Judicial Court of Massachusetts determined dog track owners’ racing licenses

lacked excludability, and thus owners’ expectation of continued renewal of licenses was

not a property interest. See id. at 816-817. The court underscored the licensees lacked

the power to prevent other market entrants from obtaining licenses. Id. at 817. In so

concluding, the court underscored that “the licenses lack the essential attribute of

exclusivity.” Id. at 816.

{¶87} In Members, supra, the court, in discussing the “right to exclude,” stated:

{¶88} “A license represents a limited suspension of the otherwise general

restrictions imposed by the government—in the case of a fishing license, it is merely a

representation by the government that it will not interfere with the licensee’s efforts to

catch fish. The number of licenses to be issued under such a scheme is not fixed. Each

additional license dilutes the value of the previously issued licenses. So long as the

government retains the discretion to determine the total number of licenses issued, the

number of market entrants is indeterminate. Such a license is by its very nature not 28

Case No. 2016-T-0085 exclusive. Neither the fisherman nor the firearms salesman can exclude later licensees

from entering the market, increasing competition, and thereby diminishing the value of his

license.” Id. at 1333-1334.

{¶89} In this matter, AWMS’ permit did not give it the right to exclude others from

the injection-well industry or confer upon it a discrete segment of the injection industry in

Trumbull County. There was nothing to indicate the number of permits in the region of

AWMS’ wells was limited or that another potential well operator could not obtain a well

permit in direct propinquity to AWMS’ leasehold property. Further, the Division retained

the discretion to determine the total number of permits issued, and, as a result, the

number of market participants in any given region is unfixed.

{¶90} Also, there is nothing to indicate that the Division somehow represented or

otherwise suggested it would not interfere with AWMS’ well operation once its permit was

issued. To the contrary, the permit issued by the Division included multiple conditions

demonstrating that AWMS could only operate if it met the Division’s criteria for operation.

Indeed, prior to initiating operations, AWMS was required to receive additional, written

approval from the Division to commence injection.

{¶91} We recognize that AWMS does have the right to exclude others from

surface injection of brine on the leased property. That is, AWMS entered into the lease

with the lessor, and the lease conferred exclusive rights to inject brine (to the extent

AWMS received the necessary permits). In this regard, AWMS could, by operation of its

leasehold, prevent others from entering its leased property and attempting to commence

surface injection. This right, however, is not a function of the permit but is due to the

inherent rights conferred by the leasehold itself. Hence, this point is irrelevant to AWMS’

legal ability to exclude others as it relates to the property interest that was allegedly taken. 29

Case No. 2016-T-0085 Each of the foregoing points militates strongly against any claim that AWMS possessed

the right to exclude.

{¶92} Additionally, in Chance v. BP Chems., Inc., 77 Ohio St.3d 17, 670 N.E.2d

985 (1996), the Supreme Court of Ohio rejected property owners’ trespass claim based

upon the lateral migration of subsurface waste injectate beneath the property owners’

land. The court concluded that without demonstrating some physical damage or

interference with the property itself, the claim for relief was without merit. See id. at 28.

{¶93} The court determined that “subsurface rights in [the owners’] properties

include the right to exclude invasions of the subsurface property that actually interfere

with [their] reasonable and foreseeable use of the subsurface.” Id. at 26. From this, we

can extrapolate that AWMS cannot universally exclude wastewater that might migrate

from other wells onto its leased property, which is an additional point that weighs

significantly against any arguable right to exclude.

{¶94} Finally, similar to the situation in Mitchell Arms II, supra, AWMS voluntarily

entered into an industrial arena that is subject to significant if not complete governmental

control. The industry is highly regulated, and a prospective market participant can only

inject wastewater if it obtains the necessary permit. “‘[E]nforceable rights sufficient to

support a taking claim against the [government] cannot arise in an area voluntarily

entered into and one which, from the start, is subject to pervasive [g]overnment control.’”

Id. at 216, quoting Mitchell Arms I, supra, at 5 (applying Bowen, supra).

{¶95} Accordingly, an entity does not possess the “right to exclude” in a regulated

arena where the government possesses complete control over the manner in which the

entity operates its business. AWMS knowingly and voluntarily entered into a market

which, by its own recognition, included significant and continuing investment risk and is 30

Case No. 2016-T-0085 also highly regulated. Due to such risks and regulation, AWMS knew that operations

could be suspended and/or terminated at any time. See Confidential Offering

Memorandum submitted by AWMS to potential investors in September 2013.

{¶96} AWMS pursued its risky investment, aware of the heightened governmental

oversight and scrutiny, fully aware it could not “keep out” the government. In this

additional regard, AWMS’ expectation of continued or consistent operation, which

fundamentally and necessarily flowed from its Division-issued permit, cannot meet the

excludability condition essential to a cognizable property interest.

{¶97} In sum, we conclude that AWMS has failed to establish, and the facts and

circumstances demonstrate, it does not possess the right to exclude necessary for

establishing a cognizable property interest.

{¶98} iii. TRADITIONAL STATE PROPERTY INTEREST OR COMMON LAW

RIGHT

{¶99} Just as in Mitchell Arms II, where the court explained the ability to sell a

firearm does not inhere in ownership of the firearm itself, the right to inject does not inhere

in the ownership of a physical injection well. The right or privilege to inject exists only by

virtue of an authorized and valid permit. Moreover, in Kafka, the court concluded that “the

ability to operate a Game Farm is not a common law right incident to the ownership of

real property, and is legal only by virtue of legislative enactment.” Id. at 99.

{¶100} Similarly, Ohio received “primacy” for its Underground Injection Control

program from the United States EPA in 1983 and was thus given authority to enforce and

administer the program. See Am. Water Mgt. Servs., LLC, 2018-Ohio-3028, at ¶ 23. The

ability to inject wastewater into the earth is permissible only by virtue of R.C. Chapter

1509. If the requirements of that chapter are not met, an entity could not inject such 31

Case No. 2016-T-0085 waste. AWMS’ rights under the permit are inextricably dependent on the regulatory

scheme enacted by Ohio’s General Assembly. In this respect, injection cannot be viewed

as a traditional property interest under state law or an otherwise common-law right.

{¶101} Additionally, the Federal Circuit has observed that, when considering

whether a cognizable property interest exists, a court “should inquire into the nature of

the land owner’s estate to determine whether the use interest proscribed by the

governmental action was part of the owner’s title to begin with, i.e., whether the land use

interest was a ‘stick in the bundle of property rights’ acquired by the owner.” M & J Coal

Co. v. United States, 47 F.3d 1148, 1153-1154 (Fed.Cir.1995), cert. denied, 516 U.S.

808, 116 S.Ct. 53, 133 L.Ed.2d 18 (1995), quoting Lucas, supra, at 1027. As just noted,

injecting brine is neither a common law right incident to ownership, and an owner’s or

leaseholder’s ability to do so is fundamentally dependent upon statutory compliance and

the Division’s oversight. AWMS’ “use interest,” therefore is not a Fifth Amendment

property interest under the Takings Clause.

{¶102} VI. CONCLUSION

{¶103} AWMS’ lease does not, nor could it, vouchsafe it any assured interest that

it could inject brine on any aspect of the property. And, while the lease gives it exclusive

rights to operate Class II disposal wells, such a right is conditioned on its ability to obtain

necessary permits. Any ability to operate such wells was not inherent in the lease but

dependent upon the Division’s discretion to issue such permits and subject to heightened

governmental oversight. Even if AWMS could transfer or assign its lease, it therefore

fundamentally lacked the necessary right to exclude the government. Accordingly,

AWMS does not possess a cognizable property interest in the lease that would trigger a

Fifth Amendment takings analysis. 32

Case No. 2016-T-0085 {¶104} Moreover, while AWMS has a property interest in its wells and equipment,

these items were not physically seized by the Division. Rather, their use was merely

suspended via an order deemed reasonable and lawful during the administrative process.

And, significantly, AWMS’ ability to operate its equipment was fundamentally dependent

upon the Division’s oversight; as such, it had no legitimate entitlement to utilize the same.

Any interest AWMS has in this property, therefore, does not require a Fifth Amendment

takings analysis.

{¶105} Finally, although there appears to be no express statutory language

preventing the formation of a property right in AWMS’ permit, the lack of transferability,

the lack of the right to exclude, coupled with the lack of a common-law right incident to

property ownership compel the conclusion that AWMS has no cognizable property

interest in its permit. Thus, because the permit does not meet any of the criteria for

compensability under governing law, we therefore additionally conclude that AWMS has

failed to meet the necessary, preliminary prong of the Fifth Amendment’s takings analysis.

AWMS’ petition for writ of mandamus is accordingly denied.

JOHN J. EKLUND, P.J., THOMAS R. WRIGHT, J., MARY JANE TRAPP, J., concur.

Case No. 2016-T-0085