Columbus — The Ohio Supreme Court has ruled a mineral rights holder can conduct strip mine operations for coal in the state-owned Brush Creek State Wildlife Area in southeastern Ohio.
The court, in a 6-1 ruling on Sept. 17, held that a contract between the Ohio DNR and Ronald Snyder and Steven Neeley did not exclude strip mining as a method to extract coal from about 10 percent of the land, according to a news release issued by Court News Ohio.
After acquiring mineral rights to 651 acres in 1999, the owners later determined that about 65 acres contained about $2 million worth of coal.
The Supreme Court’s decision overturned a decision by the state appeals court for Jefferson County.
“We are disinclined to believe that strip mining is always inconsistent with the surface-owner’s rights,” Justice Paul Pfeifer wrote for the majority. “If all mining disturbs the surface, there is no reason to believe that strip mining is worse for the surface owner.”
Pfeifer wrote that when the 1944 contract was signed, “strip mining was well known in Jefferson County. In fact, some areas were strip-mined before the ODNR acquired it.”
Pfeifer, along with five other justices, concluded that there is no reason to believe that the original signatories to the contract “intended to exclude strip-mining,” according to a news release.
“The factors to consider are myriad and include the extent of mining (acreage and contiguousness), duration of the mining and the quality of the remediation to be done,”
Pfeifer wrote for the majority, in sending the case back to the Jefferson County Common Pleas Court for further action.
In oral arguments in December, DNR lawyers told the Supreme Court that strip mining, as opposed to deep mining, requires caution, stating in court papers, strip mining causes “violence, destruction, and disfiguration” of the surface.
And, the ODNR had argued, if strip mining is allowed in the wildlife preserve, such mining would “not merely injure the state’s surface right, but utterly destroy it.”
In his lone dissenting opinion, Justice Terrence O’Donnell argued in support of an earlier appeals court opinion that upheld the ODNR arguments against the dangers of strip mining in a wildlife area.
Reserving “reasonable surface right privileges” does not release Snyder and Neeley from “their duty not to injure the surface,” O’Donnell wrote. “Nor does it satisfy their ‘heavy burden’ to establish their right to engage in strip mining in a state wildlife area.
“The ownership of coal does not imply the right to remove it by strip mining, even if other methods are not economically feasible,” O’Donnell wrote.
“ODNR is disappointed by the Supreme Court’s decision, which ignored substantial precedent as to this issue,” DNR spokeswoman Bethany McCorkle wrote in an email.
“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. “
Prior to the Supreme Court decision, McCorkle said Ohio law indicated a surface owner could restrict a mineral owners ability to disturb a surface by a mining operation.
Now, in view of the Supreme Court opinion on mining in the Brush Creek wildlife area, the decision “highlights the need to review restrictive deed language with a different legal perspective.”
Brush Creek Wildlife Area covers 4,131 acres and is managed by the ODNR.
The wildlife area supports fish such as bluegills, bullheads, and largemouth bass, and game including wild turkeys, white-tailed deer, grouse, and beaver. The area’s woods include hickory, oak, maple, beech, elm, and ash trees, the ODNR stated in court filings.