The case has proven a legal snare for its appellants, the Ohio Department of National Resources (ODNR), whose desire to strip-mine the land was denied by the appeals and common pleas courts that had previously heard the case. Their rulings were based on the fact that the land’s original 1944 contract did not explicitly permit strip-mining and left the seller with “all mineral rights, including rights of ingress and egress and reasonable surface right privilege.”
On Wednesday, Justice Paul E. Pfeifer wrote that the signatories to the original contract “understood that ‘reasonable surface right privileges’ included the right to strip mine,” given that some areas of the property at issue were already strip-mined before the ODNR purchased it.
Terrence O’Donnell was the only justice to reject that interpretation, on the grounds that it denied Ohio Supreme Court precedent. “[T]he right to ‘use’ the surface,” he wrote, “cannot be reasonably construed as the right to destroy it.”
This was the reasoning of the common pleas court that initially handled the claim. “[S]trip mining does not merely use the surface,” reads its summary judgment, “it destroys the surface.”
The Brush Creek Wildlife Area comprises some 651 acres and an estimated $2 million worth of coal. While the decision to allow coal mining on state wildlife lands has drawn criticism from conservationists, it has also added to the controversy swirling around Ohio’s Governor John Kasich.
Earlier this year, Kasich was tied to a 2012 ODNR memo that outlined a plan to simultaneously regulate and promote fracking in state parks and forests. The plan involved discrediting environmental activists, who were referred to as “skilled propagandists.”
According to the memo, “Vocal opponents of this initiative will react emotionally, communicate aggressively to the news media and online, and attempt to cast it as unprecedented and risky state policy.”
Ultimately, the memo’s plan was never carried out, but it has spurred the Ohio Sierra Club to request an investigation.
“This is a PR campaign that appears to have the regulator working with those they regulate to silence the voices of those who may have legitimate policy concerns about this. And that’s not the American way,” said Brian Rothenberg, the executive director of ProgressOhio. “In 28 years in Columbus, I’ve never seen a document from a state agency that has a hit list of people to message against, and I’ve never seen a document so open about working with the regulated industries from the regulator.”
Ohio’s environmental record has been a spotty one this year. In June, Gov. Kasich signed a bill to make it the first state in the country to freeze its renewable energy and energy efficiency standards and has joined 11 other states in suing the EPA over its proposal to reduce national carbon emissions by 2030.