State ex rel. Kerns v. Simmers

101 N.E.3d 430, 2018 Ohio 256, 153 Ohio St. 3d 103
CourtOhio Supreme Court
DecidedJanuary 16, 2018
DocketNo. 2016–1011
StatusPublished
Cited by24 cases

This text of 101 N.E.3d 430 (State ex rel. Kerns v. Simmers) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Kerns v. Simmers, 101 N.E.3d 430, 2018 Ohio 256, 153 Ohio St. 3d 103 (Ohio 2018).

Opinion

DeWine, J.

*432*104{¶ 1} In this original mandamus action, a group of landowners ("the landowners") seeks an order compelling the Ohio Department of Natural Resources' Division of Oil and Gas Resources Management ("the division") and its chief, Richard Simmers, to commence appropriation proceedings to compensate the landowners for their land that was included in an oil-and-gas drilling unit. The chief issued an order requiring that a reservoir of oil and gas underlying multiple tracts of land be operated as a unit to recover the oil and gas. The landowners object to the order, claiming that it amounted to a taking of their property for which they must be compensated. But before we may consider their takings claim in mandamus, we must first determine that the landowners lacked an adequate remedy at law. Because we conclude that they had an adequate remedy by way of appeal to the Franklin County Court of Common Pleas, we deny their petition for a writ of mandamus.

Background

{¶ 2} Chesapeake Exploration, L.L.C., submitted an application to the division seeking a unitization order under R.C. 1509.28. Aimed at protecting property rights and preventing waste, unitization consolidates the mineral or leasehold interests in oil and gas underlying multiple tracts of land above a common reservoir. See Amoco Prod. Co. v. Heimann , 904 F.2d 1405, 1410-1411 (10th Cir.1990). According to R.C. 1509.28(A), the owner of at least 65 percent of the land above an underground reservoir may apply for a unitization order to "increase substantially the ultimate recovery of oil and gas." Chesapeake sought to aggregate tracts of land to form an approximately 593-acre unit to drill three horizontal wells and hydraulically fracture shale to recover oil and natural gas from an underground pool.

{¶ 3} The unitization order would allow Chesapeake to drill wells that would remove oil and gas from under the landowners' property. The landowners, whose property accounts for 120 acres of the proposed unit, objected to Chesapeake's application. Over the landowners' objection, the chief issued the unitization order and allocated royalty payments and net proceeds from production to the landowners. The landowners appealed the unitization order to the Ohio Oil and Gas Commission ("the commission"), alleging that the order was "unlawful or unreasonable."

*105Specifically, the landowners argued that Chesapeake had failed to negotiate meaningfully with them for the lease of their property and that the order directs a taking of the landowners' property without compensation in violation of the Ohio and United States Constitutions. The commission dismissed the appeal, concluding that it did not have jurisdiction to determine the constitutionality of the order or of R.C. 1509.28.

{¶ 4} Following the commission's dismissal of their appeal, the landowners filed the instant petition for a writ of mandamus. They again claim that the unitization effects an unconstitutional taking. And they request that we issue a writ of mandamus compelling respondents to commence *433appropriation proceedings pursuant to R.C. Chapter 163. But we cannot issue a writ of mandamus, because the landowners have not satisfied a requirement for this extraordinary remedy: they have not shown that they lack an adequate remedy at law.

Mandamus Requirements

{¶ 5} To be entitled to a writ of mandamus, the landowners need to show (1) that they have a clear legal right to appropriation proceedings, (2) that respondents have a clear legal duty to commence the proceedings, and (3) that the landowners have no plain and adequate legal remedy. See State ex rel. Berger v. McMonagle , 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983). The absence of an adequate legal remedy goes to the heart of the extraordinary nature of the writ of mandamus. Early in our writ jurisprudence, we recognized that mandamus was not to be used as an alternative to another remedy. Rather, "[t]he writ of mandamus, at common law, was a prerogative writ, introduced to prevent discord from a failure of justice, and to be used on occasions where the law had established no specific remedy." Shelby v. Hoffman , 7 Ohio St. 450, 455 (1857). Put another way, "whatever can be done without the employment of that extraordinary remedy, may not be done with it." Ex parte Rowland , 104 U.S. 604, 617, 26 L.Ed. 861 (1881). Here, a remedy has been established for the landowners-appeal to the Franklin County Common Pleas Court.

Appeals under R.C. Chapter 1509 Provide an Adequate Remedy

{¶ 6} The General Assembly has provided a statutory framework for appealing orders issued under R.C. Chapter 1509. Under R.C. 1509.36, "[a]ny person adversely affected by an order" may appeal to the commission for a review to determine if the order is unreasonable or unlawful. If it is, the commission must vacate the order and make "the order that it finds the chief should have made." Id. The statute further provides that "[t]he order of the commission is final unless vacated by the court of common pleas of Franklin [C]ounty in an appeal as provided for in section 1509.37 of the Revised Code." Id.

*106{¶ 7} R.C. 1509.37 in turn provides for appeals to the Franklin County Common Pleas Court on "questions of law and fact." Like the commission's review under R.C. 1509.36, the court is to review the order to determine if it was "lawful and reasonable." R.C. 1509.37.

{¶ 8} The landowners appealed the chief's order to the commission under R.C. 1509.36. And following the commission's dismissal of their appeal, they could have appealed to the Franklin County Common Pleas Court. Had the common pleas court determined, as the landowners argued to the commission, that R.C. 1509.28 is unconstitutional because it allows for the taking of property without compensation, the court would have vacated the order. No taking would have occurred. But the landowners did not file an appeal with the common pleas court. They now claim that such an appeal would not have provided them an adequate remedy.

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Cite This Page — Counsel Stack

Bluebook (online)
101 N.E.3d 430, 2018 Ohio 256, 153 Ohio St. 3d 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kerns-v-simmers-ohio-2018.