The Supreme Court of Ohio on January 30, 2018 issued an opinion in State ex rel. Kerns v. Simmers, Slip Opinion No. 2018-Ohio-256, denying a writ of mandamus seeking to compel the Chief of the Ohio Department of Natural Resources (ODNR) to commence appropriation proceedings. In this case, a group of landowners objected to ODNR’s issuance of a unitization order under R.C. 1509.28.  Following the issuance of the order, the landowners appealed to the Oil and Gas Commission, and following an adverse ruling before the Commission, filed a writ of mandamus in the Ohio Supreme Court to order the Chief to commence appropriation proceedings to compensate them for an alleged unconstitutional taking of their mineral interests.

In order to be entitled to the writ of mandamus, the petitioners needed to show (1) they had a clear legal right to appropriation proceedings, (2) that respondents had a clear legal duty to commence the proceedings, and (3) the landowners had no plain and adequate legal remedy. The Court denied the writ and dismissed the landowners’ case, reasoning they should have appealed the Oil and Gas Commission’s decision to the Franklin County Court of Common Pleas. Such appeal to the common pleas court would have constituted an adequate legal remedy. The Court’s decision was unanimous, with Justice Kennedy concurring in judgment only.