This week, the Ohio Supreme Court ruled 6–1 to potentially allow part of a state wildlife area to be strip-mined for coal. The ruling, which settles a dispute involving an esoteric land contract from 1944, could open up $2 million of coal to be dug out of a 651-acre section of the Brush Creek Wildlife Area owned by the Ohio Department of Natural Resources.
Appellants Ronald Snyder and Steven Neeley appealed to the Ohio Supreme Court after an appeals court and common pleas court ruled in favor of the state’s claim that the land could not be strip mined unless it was explicitly permitted in the contract. They argued that the only way to get at the coal was to surface mine.
When the 1944 contract was transferred from the landowners to the ODNR the seller “reserve[d] all mineral rights, including rights of ingress and egress and reasonable surface right privilege.” The court found this to be the “ultimate issue” on Wednesday, with Justice Paul E. Pfeifer writing that “some areas of the property at issue were strip-mined before ODNR acquired it:
Thus, there is reason to believe that the signatories to the original contract understood that ‘reasonable surface right privileges’ included the right to strip mine, and there is no reason to believe that the signatories intended to exclude strip-mining.
Bethany McCorkle, spokesperson for the ODNR, disagrees with Pfeifer’s interpretation.
“ODNR is disappointed by the Supreme Court’s decision, which ignored substantial precedent as to this issue,” she told ThinkProgress. “Based on this decision ODNR intends to review all of its deeds to confirm what other surface disturbances, if any, are possible as a result of this outcome.”
In its summary judgement, the common pleas court had found that although the reservation of mineral rights implies the right to remove the minerals, it does not imply the right to remove them by strip mining because “strip mining does not merely use the surface, it destroys the surface.”
The ODNR website describes the Brush Creek Wildlife Area as being composed of “broad ridges with steep slopes” descending into a valley. Second growth hardwoods occupy 80 percent of the area with oak and hickory lining the ridgetops and beech, elm, ash, and tulip poplar found on the lower slopes.
The case will now be returned to the common pleas court to determine the extent of the strip-mining to extract 10 percent of the wildlife acres, which is what the appellants requested as being a “small, reasonable portion.” This includes considering “myriad” factors such as extent, duration, and quality of remediation.
The lone dissenter, Justice Terrence O’Donnell, said the court previously ruled that strip mining is not always authorized under mineral-rights contracts, having found that “the right to ‘use’ the surface cannot be reasonably construed as the right to destroy it.”
While the case itself seems to be based on prior rulings and events in Jefferson County, there is a broader debate in Ohio about natural resource extraction on state lands. Earlier this year it was revealed that in 2012 top advisers of Ohio Governor John Kasich (R) and the ODNR were involved in a plan to sway public opinion in favor of opening up public lands for oil and gas drilling. In February, Gov. Kasich abruptly abandoned this effort on the same day that state Democrats called for an investigation into a leaked 2012 memo outlining the plan. Gov. Kasich is now engrossed in a legislative battle to try to impose a new severance tax on fracking in Ohio. While he originally proposed the tax as a way to provide Ohioans with a fair return, he now wants it as part of a plan to cut income taxes.
This summer Ohio also became the first state to freeze its renewable energy and energy efficiency standards, in a bill signed by Gov. Kasich. With the EPA’s Clean Power Plan calling for Ohio to reduce the carbon intensity of its existing power plants by 28 percent by 2030, strip-mining coal seems even further ill-advised on top of the immediate environmental degradation.
Ohio is one of a dozen states suing the EPA in an attempt to obstruct the proposed rules designed to cut GHGs from existing coal-fired power plants.