On January 30, 2018, the Supreme Court of Ohio rejected a constitutional challenge to a statutory unitization order issued by the Ohio Department of Natural Resources, Division of Oil and Gas Resources Management. In State ex rel. Kerns v. Simmers, the Division issued an order under Ohio’s unitization statute, R.C. 1509.28, that consolidated the relators-landowners’ lands with other lands into a unit for oil and gas development.  The landowners unsuccessfully challenged the issuance of the order before the Ohio Oil and Gas Commission.  Afterwards, they commenced a mandamus action before the Supreme Court of Ohio, alleging that the Division’s order resulted in an unconstitutional taking of their property and asked the Court to require the Division to commence appropriations proceedings.

In its decision, the Court denied the landowners’ mandamus request on procedural grounds, concluding that the landowners were not entitled to the writ of mandamus because they failed to demonstrate an adequate remedy at law. The Court concluded that following the landowners’ unsuccessful appeal to the Oil and Gas Commission, the landowners could have pursued a further appeal to the Franklin County Common Pleas Court. Although their claim was beyond the purview of the Oil and Gas Commission, the common pleas court could have addressed the landowners’ challenge to the constitutionality of R.C. 1509.28.  That remedy was complete, beneficial, and speedy, the Court found.  Because the landowners’ mandamus request was procedurally deficient, the Court did not reach the merits of their takings claim.

[Disclosure: Vorys attorneys Gregory D. Russell, John J. Kulewicz, and Ilya Batikov represented amici curiae The Ohio Oil and Gas Association, The Southeastern Oil and Gas Association and producer amici in this case.]