JUSTICE:ñmñ-ú YOU MAY BE SEATED.ññOUR NEXT CASE IS 14-140,
NAVISTAR VERSUS RICHARD LEVIN --SORRY, HAVE TO TURN THE PAGE.
[LAUGHTER]JUSTICE: WE DON'T WANT TO DO
THAT AGAIN, OUR NEXT CASE IS 14-804, HANS CORBAN V.U@@Ppp CE
@tut5EXPLORATION.THERE IS A TIMEp :úúúú SPLIT U
WILL BE HELD TO YOUR TIME,GENTLEMEN.
WE WILL START@@@@@@@@@@/@@@+@@@ETHE PAGE NUMBERS?
@@@@@@@/@@@@@@@@@@@@@@@@@@@@@ @RHONOR.
I'M HERE WITH REGARD TO THECLAIM THAT MR. CORBIN IS OF THE
INTEREST IN THE PROPERTY AROUND1959 PURSUANT TO THE OPERATION
OF THE REVISED CODE SECTION 50-- 60 -- SECTION 53, THE DORMANT
FEDERAL RIGHTS ACT.THE OWNERSHIP THEREOF VESTED IN
HIM PRIOR TO THE AMENDMENT OFTHAT STATUTE EFFECTIVE IN 2006
SUCH THAT THE PROVISIONS OF THE2006 AMENDED STATUTE MAY NOT BE
APPLIED TO HIS CLAIM.THIS CASE WAS FILED IN STATE
COURT, MOVED TO FEDERAL COURT,FEDERAL COURT WAS SERVED BY TWO
QUESTIONS OF STATE LAW IN THISCOURT, THE FIRST QUESTION
CONCERNS THE APPLICATION OF THE2006 AMENDMENT OF THE STATUTE,
THE SECOND QUESTION CONCERNS THEFACT OF ANY DELAYED PAYMENTS
MADE UNDER THE OIL AND GASLEASE.
IT IS THE PLAINTIFF'S POSITION,THE PETITIONER'S POSITION THAT
WITH REGARD TO THE FIRSTQUESTION, WHETHER OR NOT THE
2006 AMENDED VERSION OF THESTATUE CAN BE APPLIED TO THE
CLAIM IS THAT OHIO LAW IS CLEAR,STATUTORY AMENDMENTS, EVEN
THOUGH THOSE AMENDMENTS AREPROSPECTIVE IN NATURE, MAY NOT
REACH BACK IN TIME TO DESTROYRIGHTS WHICH HAD PREVIOUSLY BEEN
VESTED UNDER THE STATUTE.SO, IN OUR VIEW THE ISSUE IS
WHETHER OR NOT THE STATUTECREATED VESTED RIGHTS.
IT IS WELL-ESTABLISHED IN OHIOTHAT STATUTES CAN, AS WELL AS,
CREATE VESTED RIGHTS.JUSTICE:úúúúúú úúúúúúúúúúúúúúúúN
THEúúúúúú ú LANGUAGE OF THE STA?THAT THE 1989úú ACT SAID SHALL E
DEEMED ABANDONED INVESTED IN THEOWNER AT THE SURFACE?
IS THAT LANGUAGE STILL IN THEACT?
JUSTICE: YES MR. MILLER: -- MR.MILLER: YES.
JUSTICE: WHY IS THAT CONSISTENT?IF YOU ARE SAYING THAT THE 1989
ACT WAS SELF EXECUTING, DOESTHAT MEAN THE 2006 ACT?
MR. MILLER: NO, IT IS A NEW LAWENACTED IN 2006 AND IT HAS
DIFFERENT PROVISIONS, GOALS, ANDOBJECTIVES, THEREFORE DIFFERENT
REQUIREMENTS.THIS CLAIM WAS BOUGHT AFTER 2006
, WE WOULD HAVE TO COMPLY WITHTHE 2006 VERSION.
THE FACT THAT IT STILL SAYSDEEMED ABANDONED, WELL THOSE
WORDS NOW ARE MODIFIED BYDIVISION E, ADDED BY 2006 AND
NOW IT SAYS -- WELL, BEFOREHANDYOU HAVE TO DO CERTAIN THINGS.
AS WRITTEN THE STATUTE DID NOTSAY THAT.
JUSTICE: IF WE LOOK AT ALANGUAGE IN THE 1989 ACT, IS
THERE ANOTHER LAW THAT YOU CANPOINT TO WHERE THE SAME THING
WOULD HAPPEN?WHERE IT IS SELF EXECUTING?
MR. MILLER: I BELIEVE, YOURHONOR, THAT THE STATUTES
EXAMINED REGARDING UNCLAIMEDFUNDS INDICATED THAT THERE WAS
NO STATUTORY PROVISION ON THECLAIM FOR THOSE FUNDS NOT BEING
MADE WITHIN A CERTAIN AMOUNT OFTIME THAT THOSE FUNDS WERE
ABANDONED, DEEMED ABANDONED,WORDS THAT I BELIEVE THE COURT
USED.OUR ARGUMENT IS THAT THAT CASE
STANDS FOR THE PROPOSITION THATIF THE STATUTE IS DEEMED
ABANDONED, THAT'S WHAT IT MEANS.THE RESPONDENTS DO SEEK TO MAKE
MUCH OF THE WORD DEEMED.THE FACT OF THE MATTER IS THAT
UNDER THE COMMON LAW, YOU HAD TOSHOW THAT THE HOLDER ACTUALLY
INTENDED, SUBJECTIVELY, TOABANDON.
THE STATUTE IS DESIGNED TORELIEVE THE SERVICE CENTER OF
THE BURDEN OF SHOWINGABANDONMENT.
JUST AS YOU ARE TO HAVE DEEMEDTO ABANDON YOUR INTEREST IF
CERTAIN THINGS DID NOT OCCUR.WE BELIEVE THAT THEREFORE THE
LANGUAGE OF THE 88 89 STATUTEIS, EFFECTIVELY, SELF EXECUTING
AND WE BELIEVE THAT THE COURTSIN OTHER STATES OR EXAMINED
SIMILAR STATUTES HAVE REACHEDTHE SAME CONCLUSION AND WE
BELIEVE THAT EVERY APPELLATECOURT IN THE STATE THAT HAS
EXAMINED THAT QUESTION HAVE ALLCONCLUDED THAT THEY ARE SELF
EXECUTING.IT DOES NOT SAY MAY BE DEEMED.
IT DOES NOT SAY SHALL BE DEEMEDVESTED IF.
THERE IS NO CONDITIONAL LANGUAGEWHATSOEVER.
SHALL BE DEEMED ABANDONED.WE ARE JUST NOT SURE IN OUR
MINDS HOW THAT GENERAL ASSEMBLYCOULD HAVE BEEN MORE CLEAR AS TO
WHAT THE INTENT WAS IN ENACTINGTHIS LAW, THE LAW THAT WE THINK
APPLIES TO OUR CLAIMS.JUSTICE: COUNSEL, IN YOUR BRIEF
-- IF WE AGREE WITH YOU ON THAT,FACTUALLY THE 20 YEARS RAN AND
ITS ABANDONED.THEN THERE IS THE SECOND
QUESTION.IN YOUR BRIEF YOU OUTLINED BEING
IN FEDERAL COURT WITH A WHOLESERIES OF STIPULATED FACT.
I WAS DOING PRETTY WELL, BUTSOMEWHERE I HAVE LOST IN THE
WEEDS OF ALL OF THAT.COULD YOU ADDRESS THE SECOND
CERTIFIED QUESTION?DO WE NEED TO UNDERSTAND THE
TRANSACTIONS THAT TOOK PLACE TOANSWER THAT QUESTION?
MR. MILLER: NO, NO, THESTIPULATIONúú OF FACTS WAS
PRESENTED FOR THE COURT IF THEYWANTED MORE INFORMATION THAN
NECESSARY.I DON'T THINK THAT MOST OF THAT
INFORMATION IS NECESSARY INTERMS OF DEEDS BEING TRANSFERRED
.THE ISSUE IS VERY
STRAIGHTFORWARD, AN ISSUE OFLAW, NOT A FACT, WHETHER OR NOT
A DELAYED PAYMENT RESULTS IN ATITLE TRANSACTION.
WE ARE TALKING ABOUT OIL AND GASAND IN THE BUREAU CASE THIS
COURT IS CONSIDERING THE ISSUEOF WHETHER OR NOT THE REPORT ON
THE EXECUTION OF THE LEASE OREXPIRATION OF THE LEASE IS A
TITLE TRANSACTION.ARGUMENTS IN THAT CASE RESOLVED
AROUND WHETHERúúúúúúú OR NOT THSA TRANSFER AT THE END OF THE
LEASE.THE POSITION OF THE RESPONDENTS
WAS THAT WHEN THE LEASETERMINATES, JUST TRANSFER THAT
INTEREST AND REVERT BACK.THEREFORE THERE IS A TRANSACTION
THAT AFFECTS TITLE, AFFECTING,CHANGING SOMETHING ABOUT THE
TITLE.SO, WE DISAGREE WITH THAT, BUT
THAT'S NOT AN ISSUE IN THISCASE.
BUT WE ARE ARGUING THAT, INFACT, --
JUSTICE: THE ISSUE DOES NOTRELATE TO THAT AS A SEPARATE
QUESTION AS IF THE LEASES AREGETTING HANDED OVER FROM ONE
ENTITY TO ANOTHER?MR. MILLER: YEAH, THE EXECUTION
OR EXPIRATION OF THE LEASE,THOSE ANSWERS ARE RELEVANT TO
THIS DISCUSSION.BUT FOR THE PURPOSES OF DELAYED
PAYMENTS, OUR POINT IS THATDELAYED PAYMENT DOES NOT AFFECT
TITLE.REGARDLESS OF WHETHER AN OIL AND
GAS LEASE IS IN INTEREST, WHICHWE DON'T BELIEVE IT IS.
WE BELIEVE THAT TITLETRANSACTIONS ON LAND.
WITH REGARD TO DELAY PAYMENTS INPARTICULAR, THEY DON'T AFFECT
TITLE.NOTHING CHANGES.
AT THE TERMINATION OF POLICETHEY SAY IT AFFECTS TITLE
BECAUSE THERE IS A REVERSION.WE DON'T THINK REVERSION, WE
THINK DETERMINATION, BUT THAT'STHE ARGUMENT.
JUSTICE:0@@@@@@@ THE PURPOSE OFDBE TO MAINTAIN THE INTEREST IN
THE MINERALS?MR. MILLER: YES.
JUSTICE:@@ HOW DOES THAT NOTPRESERVE THE RIGHT?
MR. MILLER: IT MAINTAINS THESTATUS QUO, IT DOES NOT AFFECT
THE TITLE, EVERYTHING STAYS THESAME.
MR. MILLER: THE FACT -- JUSTICE:THE FACT THAT YOU HAVE AN
OWNERSHIP INTEREST IN THESURFACE AND ANOTHER PARTY WITH
AN OWNERSHIP SERVE -- INTERESTIN THE MINERALS, THAT'S NOT
CHANGED BY THE PAYMENT?IT'S MAINTAINED BY THE PAYMENT?
MR. MILLER: RIGHT, SO NOTHING'SCHANGED.
JUSTICE: AND IF IT WERE NOTMADE?
MR. MILLER: THAT'S ANINTERESTING QUESTION.
THE ASSUMPTION IS -- IF WE DON'TMAKE THAT DELAYED PAYMENT, THE
LEASE TERMINATES.WELL, THAT'S NOT TRUE.
THE LEASE IN PARAGRAPH FOUR SAYS-- WELL, WE FORGET FOR A MINUTE
AND THEN USE THE WORD OMISSION,THE OMISSION OF THAT DOES NOT
TERMINATE.THE LESSOR HAVE TO SAY YOU DID
NOT MAKE YOUR PAYMENT AND THEYMAKE THE PAYMENT.
SINCE THEY DO NOT MAKE THEPAYMENT UPON DEMAND, THE LEASE
WOULD TERMINATE.UNDER THEIR ARGUMENT, THEIR
LOGIC, PERHAPS THAT WOULDQUALIFY AS A TRANSFER IF THERE
HAD NOT BEEN PAYMENT.AND THE RIGHTS TERMINATED OR
REVERTED --JUSTICE: AN@úJ@@úB@@@úBúB@@@@úFG
QUESTION.@úBHú@@@@@@@@@@@@@úJ@@@@@@@@@@úO
WHERE WE ARE.@@@@úBIN@@úB@@@@@@úB@@@@@úBúJ@@Y
RENTAL IS NOT PAID IN THE --THEN THE LEASE TERMINATES BY ITS
TERMS.DOES THAT TRIGGER A NEW 20
YEARS?IS THAT 20 YEARS FROM THE TIME
THE DELAY RENTAL IS NOT MADE?MR. MILLER: WE DON'T BELIEVE SO.
WE BELIEVE, AS WE HAVEINDICATED, THAT THAT IS NOT A
KIND OF TRANSFER OR CONDUCT ORTRANSACTION THAT QUALIFIES AS A
TITLE TRANSACTION.JUSTICE O'NEILL: IT IS
DETERMINATION OF A LEASE -- THETERMINATION OF A LEúúúúaúúaASE.
úúúúúúúúújújMR. MILLER:úaú@aúúú,IN OUR VIEW.
JUSTICE:úúúúúúaújúúúúúúúúaúúúúúNOTHER MATTERS.
IN YOUR SITUATION BEFORE US, THEBELIEF IS THAT THE 1989 VERSION
IS THE CORRECT VERSION TO APPLYHERE.
WHEN DO YOU THINK THE MINERALRIGHTS OR VESTED WITH YOUR
CLIENTS.MR. MILLER: 2004, IT IS STATED
IN THE BRIEF.JUSTICE O'CONNOR: WAS IT 2013?
MR. MILLER: THE LAWSUIT WASFILED IN 2013.
JUSTICE O'CONNOR: YOUR POSITIONIS THAT THE VESTING, THE POINT
OF VESTING IS THE TRIGGER AS TOWHAT THE STATUTE APPLIES TO, NOT
THE INITIATION OF A STATUTE.MR. MILLER: YES.
JUSTICE O'CONNOR: SIMPLY PUT,THAT IS HOW YOU ARE LOOKING AT
IT.JUSTICE: HOW DID THE RIGHT
BECOME VESTED?MR. MILLER:@ THE PASSAGE OF 20
YEARS WITHOUT ANY STATUTORYSAVINGS EVENT.
JUSTICE: THE PAYMENT OF THEDELAYED RENTAL WAS MADE AT
ONE YEAR?MR. MILLER: THE LEAST ENDS IN
1985 SO IT WAS 1986, 1987.JUSTICE: WHEN DID THE
INTEREST BECOME VESTED, YOU SAID1984.
DIDN'T THE CLIENT ACQUIRED THEPROPERTY, HE ONLY ACQUIRED THE
SURFACE RIGHTS.MR. MILLER: THE ISSUE IS WHETHER
OR NOT THE RESERVATION OFMINERAL INTERESTS IS A TITLE
TRANSACTION.THE STATUTE SAYS A MINERAL
INTEREST HAS TO BE THE SUBJECTOF THE TITLE TRANSACTION.
MERELY TRANSFERRING THE SURFACERIGHTS, AND OUR VIEW, IS NOT A
TITLE TRANSACTION INVOLVING THEMINERALS.
JUSTICE FRENCH: I'M CONCERNEDMORE WITH THE POINT THAT THIS
RULE ITSELF INDICATED WHO HELDTHE SURFACE RIGHTS AND WHO HELD
THE MINERAL RIGHTS, DID IT NOT?THAT WAS 1999.
MR. MILLER: THOSE HAVE BEENINVALIDATED BY THE STATUTE.
JUSTICE FRENCH: BY THE 2006?MR. MILLER: BY THE 1988-19 89.
JUSTICE FRENCH: WE HAVE TO 1989ACTS BY THE TITLE TRANSACTION
OCCURS, THE PURCHASE OCCURRED IN1999.
MR. MILLER: IT -- ANY LEGALEFFECT.
JUSTICE FRENCH: IN YOURVIEW --
MR. MILLER: THE MINERAL INTERESTOF OUR LAND HAS NOT BEEN
PROPERLY USED.BECAUSE OF THAT, THE GENERAL
ASSEMBLY SAYS IT BELONGS TO USAND WE THINK THAT IS FAIR.
I DO NOT THINK IT IS FAIR THATTHEY HAVE SAT ON THEIR RIGHTS
ALL THESE YEARS AND THEN COMEBACK LATER AND ASSERT THESE
CLAIMS.THEY DID NOT FILE ANY CLAIMS FOR
SERVICE INTERESTS DURING THETHREE-YEAR GRACE PERIOD AFFORDED
BY THE STATUTE.THEY COULD DO THAT INDEFINITELY
AND THEY STILL COULD HAVE, EVENWITH THE 2006 STATUTE.
WHAT THEY DID IS THEY ABANDONEDIT UNDER THE STATUTE.
THAT DESCRIBES WHAT THE PUBLICPOLICY OF THE STATUTE SHOULD
BE.FROM A MINERAL HOLDER'S
INTEREST'S POINT OF VIEW ITMIGHT SEEM UNFAIR.
BUT IT IS IMPORTANT TO NOTE THATTHE DORMANT MINERAL RIGHTS ACT
IS INTENDED TO TAKE AWAYSOMEONE'S PROPERTY WHEN THEY DO
NOT INTEND TO ABANDON IT.IF THEY INTENDED TO ABANDON THAT
WE WOULD BE UNDER COMMON LAW ANDWE WOULD NOT NEED THE DMA>
THE DMA IS TO TAKE AWAYSOMETHING FROM SOMEONE THAT THEY
DID NOT INTEND TO ABANDON.JUSTICE: YOU SAID THAT THE 20
YEAR PERIOD ENDED IN 2004, WHENDID IT BEGIN?
MR. MILLER: WE BELIEVE IT BEGAN,IT HAS GOTTEN A LITTLE
CONFUSING.WE ARGUE THAT EVEN IF THE LEASE,
THE EXECUTION OF THE LEASE IN1984 WAS A SAVINGS EVENT,@ THEY
HAD IT UNTIL 1989.OH,@@ BOY.
@@I'M GOING TO APOLOGIZE.JUSTICE: THE IDEA IS IT WEEKEND
BEFORE YOU GOT THE PROPERTY.MR. MILLER: YES.
JUSTICE: THAT IS WHAT IS ALITTLE BIT CONFUSING HERE.
YOU ARE ATTACKING ON -- YOU ARETACKING ON THE ADDITIONAL TIME.
MR. MILLER: THAT WAS THE POINTIN THE OTHER CASE, THERE WAS A
CHAIN OF TITLE AND THAT MINERALTASTE SO IT WAS NOT FAIR TO TAKE
IT AWAY.THE DMAhh@h WAS ENACTED IN RE
TO ALLOW THAT VERY THING TOHAPPEN.
LOOKS LIKE MY TIME IS UP COMEAND WOULD MENTION THAT OUR OTHER
POSITION WAS THERE WAS NOREPARATION OF DELAY PAYMENT.
úTHEY SHOULD BE RECORDED.JUST AS DETERMINATION OF THE
LEASE, WHICH IS STATUTORILYREQUIRED TO BE RECORDED
SEPARATELY.JUSTICE: THANK YOU.
WE WILL START WITH MS. BAGNELL.MS. BAGNELL: THANK YOU.
MAY IT PLEASE THE COURT, IREPRESENT CHESAPEAKE
EXPLORATION, CHESAPEAKE UTICA,LARCHMONT AND TOTAL.
I WILL BEAST LETTING MY TIME --I WILL BE SPLITTING MY TIME WITH
MR. UBERSAX, WHO PLANS TO ADJUSTCONSTITUTIONALITY AND OTHER
IMPEDIMENTS APPLYING TO THE 2006AMENDMENT.
I'VE LIKED TO ADDRESS THE FIRSTQUESTION CERTIFIED TO THIS COURT
AND ACCEPTED BY.WHETHER DOES THE 2006 VERSION OR
THE 1989 VERSION OF THE ODMAAPPLY TO CLAIMS ASSERTED AFTER
2006 ALLEGING THE RIGHTS TO OIL,GAS AND MINERALS AUTOMATICALLY
VESTED IN THE SURFACE WINNERPRIOR TO THE 2006 AMENDMENT.
AS A PRELIMINARY ISSUE, WE HAVETO FIRST ADDRESS WHETHER OR NOT
THERE ARE TWO VERSIONS OF THEACT.
I BELIEVE THERE ARE NOT.THE OHIO DORMANT MINERAL ACT WAS
PROPOSED AND ACCEPTED BY THEGENERAL ASSEMBLY IN 1989.
THE OPERATIVE LANGUAGE HAS NOTCHANGED.
IN 2006, AMENDMENTS WERE MADE TOCLARIFY THE PROCEDURE FOR HOW IT
WOULD BE IMPLEMENTED.WITH THAT IN MIND, THE ANSWER TO
THE QUESTION IS THAT THE 2006AMENDMENT MUST APPLY TO CLAIMS
THAT ARE BROUGHT AFTER 2006.JUSTICE: YOU THINK THAT THE
LATER VERSION OF THE ACT WAS AMODEL OF CLARITY?
MS. BAGNELL: THE 2006 AMENDMENTSTO THE ACT?
WELL, THERE IS SOME DISPUTE OVERTHE 2006 AMENDMENT BUT THEY DO
PROVIDE PROCESS, MORE CLEARLYAND MORE EXPRESSLY THAN THE 1989
ACT.JUSTICE PFEIFER: YOU CAN ARGUE
ALL DAY LONG WHETHER THE NUMBERS-- THEY SEEM SOMEWHAT LOGICALLY
INCONSISTENT.IN THAT VERSION OF THE ACT.
SO --WHEN YOU SAY THE LEGISLATURE
DID THIS TO CLARIFY, IT DOESN'TSEEM LIKE THAT IS WHAT THEIR
GOAL WAS.MS. BAGNELL: I THINK THEIR
INTENT WAS TO CLARIFY THEPROCEDURE.
AND, IN FACT, THEY STATED THATIN THE LEGISLATIVE HISTORY THAT
THE INTENT WAS TO CLARIFY WHATPROCEDURE --
JUSTICE PFEIFER: WASN'T ITPERHAPS TO SAY PERHAPE WE --
PERHAPS WE WENT TO FAR WITH THEFIRST ONE.
BEFORE YOU CAN TAKE AWAY THISRIGHT, YOU GET 60 DAYS NOTICE.
MS. BAGNELL: I DON'T THINK SOAND THAT GOES TO MY FIRST POINT.
JUSTICE PFEIFER: ISN'T THAT THEDIFFERENCE?
MS. BAGNELL: I THINK IT IS NOT.IF IT WERE, AS JUSTICE FRENCH
POINTED OUT --JUSTICE PFEIFER: WHERE IS THE 60
DAY NOTICE IN THE ORIGINAL ACT?MS. BAGNELL: IT IS IN THE WORD
"DEEMED."THE ORIGINALLY ENACTED ACT,÷÷ TE
LEGISLATURE SET -- SAID RIGHTSHALL THE DEEMED TO BEp VESTED.
TAHTp -- THAT HAD MEANING.pIN 2006, THEY WERE CLARIFYING
WHAT THAT PROCESS WAS.IF THOSE 4 WORDS WERE AS STRONG
AS MR. CORBAN ARGUES THAT THEYARE AND THEY TAKE AWAY THE
VESTED RIGHTS OF MINERAL OWNERSCOME WITH GENERAL ASSEMBLY WOULD
HAVE CHANGED THEM IN 2006 IFTHAT WAS THEIR INTENT.
JUSTICE: YOUR FRIENDS ON THEOTHER SIDE HAVE A DIFFERENT
INTERPRETATION.WHEN I ASK IS THERE ANOTHER ACT
THAT HAS BEEN RECORDED, MR.MILLER GAVE ME THE EXAMPLE OF
THE UNCLAIMED FUNDS ACT.THAT ALSO USES THE LANGUAGE
DEEMED TO BE ABANDONED.HOW WOULD YOU ADDRESS THAT?
MS. BAGNELL: HE DID NOT REFER TOTHE ACT IS SO MUCH AS THE CASE
INTERPRETING THAT.THAT CASE DID NOT GO INTO WHAT
THE PROCEDURE WAS FORABANDONMENT.
IT WAS FOR UNCLAIMED FUNDS ANDIT WAS NOT ADDRESSING WHETHER
DEEMED REQUIRED A PROCEDURE.I SIMPLY DO NOT THINK IT IS
APPLICABLE.JUSTICE: WHAT DID THE 1989 ACT
DO?THERE MUST BE SOMETHING WE HAVE
TO APPLY RATHER THAN JUST SAYINGIT DID NOT MEAN ANYTHING UNTIL
2006.WHAT DID IT MEAN IN 1989?
MS. BAGNELL: ABSOLUTELY IT MEANTSOMETHING.
IT WAS A WHOLESALE CHANGE IN THELAW.
PRIOR TO 1989, A VESTED MINERALOWNER COULD NEVER LOSE THEIR
RIGHTS.THERE WAS NOT A WAY THAT IS
RIGHTS COULD BE TAKEN AND GIVENTO THE SURFACE OWNER.
IT WAS IN 1989 THAT THELEGISLATURE SAID IN CERTAIN
CASES WHERE THERE LACKED CLARITYOF TITLE WE WANT TO MAKE IT
CLEAR AND MAKE TITLE CLEAR OFRECORD SO THAT THOSE MINERAL
RIGHTS CAN BE DEVELOPED IF WEWANT THEM TO BE.
THAT'S WHY THEY PUT IN PLACE THE1989 ACT.
THAT IS WHY THE DEEMED LANGUAGEIS SO CRITICAL.
WHY THE 2006 AMENDMENT WHICHCLARIFIES WHAT THAT MEANS MAKES
SENSE WHEN YOU READ IT TOGETHER--
JUSTICE: DON'T WE HAVE ARETROACTIVITY PROBLEM HERE?
UNDER THE 1989 ACT, IF SOMEBODYBOUGHT A PIECE OF PROPERTY SAY,
IN 1992 AND THEY KNEW THERE WEREMINERAL RIGHTS THERE.
THEY KNEW IF THEY DID NOTHINGAND THE REST OF THE WORLD DID
NOTHING FOR 20 YEARS, THEMINERAL RIGHTS WHERE THEIRS.
UNDER THE 1989 ACT.NOT VISITING THE COURTHOUSE AND
NOT DOING ANYTHING.MS. BAGNELL: NO.
JUSTICE: WHAT DID THEY HAVE TODO?
MS. BAGNELL: MR. UBERSAX WILLADDRESS RETROACTIVITY IN MORE
DETAIL.ESSENTIALLY WHAT THEY HAD TO DO
AFTER THE 2006 AMENDMENT.THEY DID NOT AUTOMATICALLY GET
-- N THE FACT THAT IT SAID DEEDMEANT ANOTHER STEP HAD TO BE
TAKEN.BE IT A QUIET TITLE ACTION AS WE
HAVE HERE ARE SOME OTHER ACTIONOF RECORD.
--JUSTICE: VESTED, RIGHT?
WHEN DID THEY VEST UNDER THE1989 ACT?
MS. BAGNELL: AFTER THE NEXT STEPIS TAKEN.
THEY'RE DEEMED ABANDONED ANDVESTED IF ONE OF SIX ACTIVITIES
WHICH PREVENT FORFEITURE HAVENOT OCCURRED.
SOMEONE HAS TO MAKE THE DECISIONTHEY HAVE NOT OCCURRED AND IT IS
NOT A SURFACE OWNER.AS THE JUDGE STATED IN THE
CONCURRING OPINION IN OTHERDECISIONS FROM THE SECOND
CIRCUIT, IT INDICATES THERE ISANOTHER STEP THAT MUST BE TAKEN.
SOME DETERMINATION OF RECORD ORJUDICIALLY.
JUSTICE: UNDER THE 1989 ACT,THERE'S NOTHING IN THE STATUTE
SAYING THEY HAVE TO DO ANYTHING.MS. BAGNELL: I BELIEVE THAT THE
WORD --JUSTICE: DEEMED TO HAVE VESTED
--MS. BAGNELL: I BELIEVE THAT THE
WORD DEEMED MEANS THEY HAD TO DOSOMETHING.
THAT IS IN LINE WITH THELEGISLATIVE HISTORY AND OTHER
PARTS OF THE MARKETABLE TITLEACT.
THEY HAVE USED STRONGER WORDS,FOR EXAMPLE, THE WORD ABANDON OR
NO INVALID.-- ANBANDONED OR NULL AND VOID.
JUSTICE: SOMETHING ELSE, TOCLEAR UP THE TITLE BY FILING A
QUIET TITLE ACTION.BUT YOU STILL HAVE THE ISSUE OF
WASN'T IT VESTED WHEN THE TIMEWAS UP?
MS. BAGNELL: NO, THERE HAS TO BESOME DETERMINATION THAT NONE OF
THE EVENT ACTIVITIES WHICH WOULDPREVENT FORFEITURE HAVE
OCCURRED.SO THERE HAS TO BE SOME NEXT
STEP OF RECORD TO MAKE IT CLEAR.I REALLY THINK --
JUSTICE: YOU SAY IT MUST BE ANEXT STEP BUT IS IT FAIR TO SAY
THAT THE INTEREST SHALL BE DEEMED ABANDONED AND THEN APPLY
DEEM TO MODIFY DEEMED VESTED INTHE OWNER OF THE SURFACE.
IS THAT NOT ONE READING OF WHATDEEMED MODIFIED?
MS. BAGNELL: NO.THE WORD AND MEANS DEEMED
APPLIES TO BOTH ABANDONED ANDVESTED.
THE CRITICAL WORD THAT MR.CORBAN WOULD RELY ON, HE IGNORES
THE WORD DEEMED AND READS IT"SHALL ABANDON AND VEST."
SHALL WILL NOT APPLY TO VEST IFDEEM DOES NOT APPLY TO VEST.
THE ONLY WAY TO LOGICALLY READIS "SHALL BE DEEMED ABANDONED
AND VESTED,"A THEY GO TOGETHER.AND SO I BELIEVE THAT YOU HAVE
TO LOOK AT THE LEGISLATIVEINTENT AND OHIO'S ABHORRENCE OF
FORFEITURE TO SEE THAT THEPURPOSE OF THE ODMA CUT AGAINST
AN AUTOMATIC VESTING ARGUMENT.THE PURPOSE IS TO IDENTIFY OR
LOCATE LONG UNUSED MINERALINTEREST OWNERS AND TO PROVIDE
CLARITY OF TITLE.AN ACT WHERE OWNERS WHO HAVE,
WHO SILENTLY OBTAINED THEIRRIGHTS AND THERE IS NOTHING OF
RECORD BECOMEL THE MINERALINTEREST OWNERS, IT DOES NOT
MAKE SENSE.JUSTICE: I DO NOT WANT TO BE
ARGUMENTATIVE BUT IT JUST SEEMS,AREN'T -- THE 1989 ACT, AT THE
END OF 20 YEARS IF SOMEONE HASNOT DONE SOMETHING, YOU ARE
DONE.UNDER THE 2006 ACT, THEY SAY WHY
DON'T YOU POST A NOTICE AND GIVEEVERYBODY 60 DAYS.
MAYBE THIS IS NOT OVER.ISN'T THAT A FUNDAMENTAL CHANGE
OF THE PROPERTY RIGHTS OF THESURFACE OWNER?
MS. BAGNELL: FIRST OF ALL, I DONOT BELIEVE IT IS A FUNDAMENTAL
CHANGE.IF THAT WERE TRUE, IF THOSE 4
WORDS MEANT AUTOMATICALLY VESTIN 1989, THE GENERAL ASSEMBLY
WOULD HAVE CHANGED THEM IF THEYWERE MAKING A CHANGE IN THE LAW.
THEY LEFT THOSE IN.ALL THEY DID WAS PROVIDE A
PROCEDURE.IN FACT, THE MINERAL RIGHTS ARE
VESTED IN THE MINERAL OWNER.UNLESS NONE OF THE ACTIVITIES
THAT ARE PROVIDED FOR IN ODMA --JUSTICE:S@IúC%÷ YOU'REú INTOxR
E é(hXhCOCOUNSEL'S PRESENTA.P@@@PP@@@@PP@88u 8p 8pppp p p E
@COURT.@AStww MYtM
GOING TO ADDRESS÷t÷t÷÷÷÷÷÷EIS CONSTITUTIONAL OR
RETROACTIVITY PROHIBITION ONAPPLYING THE 2006÷w÷÷÷÷÷t÷÷÷S
HERE.TO THE÷÷÷÷÷÷÷÷ CLG
TO APPLY THE LAW RETROACTIVELY.÷÷÷÷t÷÷÷÷÷÷÷÷÷÷÷F
THESE AMENDMENTS WHEN÷÷÷TINTO EFFECT IN 2006.
t÷÷HIS CLAIM WAS NOT FILED UNTILSEVEN YEARS LATER --
JUSTICE: HE WAS NOT VESTED IN2006, YOU ARE SAYING?
MR. UBERSAX: NO, WE SAY HE DIDNOT VEST@ú UNDER THE OLD STATUTE
AND HE DOES NOT UNDER THE NEWSTATUTE.
JUSTICE:@ WHEN YOU ARE SAYING HEHAD NO CLAIM, HE DID NOT PRESENT
--MR. UBERSAX:@ @ HE DID NOT PRET
A CLAIM.JUSTICE:@@ WHAT DATE WOULD YOU Y
THAT HE WAS ELIGIBLE TO PRESENTA CLAIM IN COURT?
MR. UBERSAX: WELL, OBVIOUSLY,WE, OUR POINT IS THERE WAS NO
SAVINGS EVENT.÷÷÷÷÷HE NEVER HAD A CLAIM UNDEE
ORIGINAL ACT.UNDER THEIR ARGUMENT, THEY COULD
HAVE HAD A CLAIM AS EARLY AS1992, 3 YEARS AFTER THE 1989 ACT
WENT INTO EFFECT.THEY CLAIM THAT IT THAT POINT
THEY AUTOMATICALLY BECAME VESTED.
÷WE HAVE SHOWN IN OUR BRIEF THATTHERE IS NO FAIR INTERPRETATION
OF THE ORIGINAL ACT ALLOWING FORAUTOMATIC VESTING GIVEN THE
PURPOSES OF THE ACT, WHICH ARETO CLARIFY THE CHAIN OF TITLE
AND TO ALLOW PERSONS TO RELY ONTHE CHAIN OF TITLE.
IF YOU HAVE AUTOMATIC --JUSTICE: TALKING ABOUT CHAIN OF
TITLE, MR. CORBAN, THIS WASTITLED IN 1999 IN HIS NAME,
CURRENT?MR. UBERSAX: CORRECT.
JUSTICE: THAT TITLE TRANSACTIONREFERENCED THE RESERVATION OF
THE MINERAL RIGHTS.MR. UBERSAX: CORRECT.
IT REFERENCED ALL÷ PREVIOUSRESERVATIONS.
SPECIFICALLY IT DID NOT CALL OTTHE MINERAL RESERVATION BUT IT
WAS MADE SUBJECT TO --JUSTICE: TO PREVIOUS
TRANSACTIONS INVOLVING MINERALRIGHTS.
THERE WAS A RESERVATION OR ATLEAST IN THE DOCUMENT YOU WOULD
SAY, I'M A STRANGER TO THEHISTORY OF THIS PIECE OF
PROPERTY AND I LOOK AT THATTRANSFER IN 1999, LAST TIME
THERE WAS A RECORDED DEED.I LOOK AT IT AND SAY THERE MIGHT
BE SOME MINERAL RIGHTS THAT DONOT GO ALONG WITH THIS SURFACE
RIGHTS.WOULDN'T THAT TELL ME THAT?
MR. UBERSAX:÷tttt@ú@@@@@@@ THUTHAT YES, THERE HAD BEEN A
PREVIOUS --JUSTICE: ASSIGNMENT --
MR. UBERSAX: RESERVATION ANDSEPARATION.
JUSTICE: OWNERSHIP OF MINERALRIGHTS IN SOMEONE OTHER THAN THE
SURFACE OWNER.MR. UBERSAX: CORRECT.
JUSTICE: ISN'T THAT WHAT THESETWO STATUTORY PROVISIONS ATTEMPT
TO DO?MR. UBERSAX: EXACTLY.
THESE STATUTEStttttttttutttt ADEtttttttttttttttttSITUATION.
IT APPLIES WHEREVERtttt THE OWNFtttttttttttttRECORD OF THE MINES
DIFFERENT FROM THE OWNER OFRECORD --
JUSTICE: THERE HAS BEEN ASEVERING OF THE MINERAL RIGHTS
FROM THE SURFACE RIGHTS.THERE HAS TO BE SOMETHING
KNOWLEDGE MEANT OF THAT ORRECORD OF THAT SO -- THERE HAS
TO BE SOME ACKNOWLEDGMENT OFttttTHAT OR RECORD OF THAT SO THAT
STRANGERStt÷t÷tttttt÷tttttttt ONWILL HAVE÷tt NOTICED.
t÷ttTHAT IS WHAT THIS IS ABOUT.WE HAVE OTHER CASES PENDING.
SHOULD WE ADDRESS THAT AND SAYTHAT THE 1999 DEED TRANSFER
THAT MENTIONS THE MINERAL RIGHTSIS A SAVINGS TRANSACTION?
WHERE ARE YOU?MR. UBERSAX:÷÷t÷t÷÷÷÷÷÷÷tttttt÷A
SAVINGS EVENT, THEN YOU ADD 20YEARS PAST 1999 AND YOU GET WELL
WITHIN THE 2006 ACT.÷÷÷÷÷YOU THEN APPLY ALL THE
REQUIREMENTS TO THE 2006 ACT.÷THAT IS OUR POSITION.
JUSTICE: YOUR POSITION IS NOTBECAUSE AT THEt÷ttt÷t÷ 1999tt÷÷D
TRANSFER, ISt÷÷÷÷÷÷÷÷÷ IT?3÷÷÷÷÷÷÷t÷÷t ÷÷÷÷÷÷÷÷÷÷÷÷÷÷÷--
÷÷÷÷÷÷÷÷÷÷÷÷MR. UBERSAX: NO.÷÷÷t÷÷÷tt÷÷÷÷t÷÷÷÷÷÷÷÷IT'S BECAN
FORCE --JUSTICE: THE STATUTE AT THE
TIME, THE LEGAL ACTION WASINITIATED AND THAT IS THEREFORE
THE STATUTE THAT GOVERNS.YOU ARE NOT LOOKING AT WHAT
OPPOSING COUNSEL WOULD SAY, THATTHE VESTING DATE WAS 1989 OR
WHENEVER AND IT TACKS ON TO THECURRENT OWNERS AND THEIR
POSITION IS A LITTLE DIFFERENT.IF WE DECIDE THAT A TRANSACTION,
A SAVINGS TRANSACTION OR SAVINGSEVENT HAS OCCURRED WITH A DEED
TRANSFER, YOU ARE IN THE SAMEPLACE.
MR. UBERSAX: WE ARE IN THE SAMEPLACE, THE 2006 WOULD APPLY.
JUSTICE: IF I MAY -- I WANT TOTRY ONE MORE TIME.
YOU WILL AGREE THAT AS TO ALEASE THAT HAS GONE PAST 20
YEARS WITH NO SAVINGS EVENT,THAT THE MINERAL OWNERS RECEIVED
A BRAND-NEW GIFT IN THE 2006 ACTTHAT BREATHES LIFE INTO A DEAD
LEASE, DOES IT NOT?MR. UBERSAX: I WOULD NOT AGREE
WITH THAT --JUSTICE: THE LEASE WAS THAT IN
-- WAS DEAD IN 2005.MR. UBERSAX: HE GETS WHAT THE
DOCTRINE CASE REFERRED TO AS ARIGHT.
THE STATUTE SAYS THE INTERESTUNDER THOSE CIRCUMSTANCES SHOULD
BE DEEMED ABANDONED AND VESTED.THAT REQUIRES IMPLICITLY THAT
THERE IS SOME JUDICIAL ACT ORDETERMINATION THAT PLACES ON THE
RECORD THIS TRANSFER OFINTEREST.
YOU HAVE TO LOOK AT IT IN TERMSOF THE WHOLE PURPOSE OF THE
TITLE ACT OF WHICH THE DORMANTMINERAL ACT IS A PART.
JUSTICE: I'M TRYING TO FIGUREOUT YOUR POSITION.
I DON'T UNDERSTAND HOW THE 2006ACT DOES NOT GIVE NEW RIGHTS TO
MINERAL HOLDERS.MR. UBERSAX: ALL IT DOES IS TO
CHANGE THE PROCEDURES FORSETTING RIGHTS.
JUSTICE: THEY DID NOT USED TOHAVE 60 DAYS.
MR. UBERSAX: AGAIN, THESE AREMATTERS OF PROCEDURE.
WHEN YOU LOOK AT THE SUBSTANTIVECORE OF THE÷÷t÷÷÷÷÷÷÷ STATUTE H
DEFINES÷÷wt÷ WHEN AND UNDER WHATCIRCUMSTANCES MINERAL RIGHTS ARE
ABANDONED OR DEEMED ABANDONED,THAT IS UNCHANGED.
THERE IS SUBSTANTIVE CORE, THESTATUTE WAS LEFT UNTOUCHED.
ALL THE LEGISLATURE DID WASIMPLEMENTED NEW PROCEDURES.
IT IS TRUE, FOLLOWING THOSE NEWPROCEDURES CAN I -- CAN IN
SOME CIRCUMSTANCES LEAD TODIFFERENT RESULTS BUT IT IS NOT
BEEN THOROUGHLY THE CASE THATWILL HAPPEN.
THAT IS WHY IT IS NOT ACONSTITUTIONAL PROBLEM.
IT IS NOT TAKING THE WAY ACOMMON-LAW RIGHT OF ACTION OR
CHANGING THE SUBSTANTIVEELEMENTS OF A RIGHT OF ACTION,
AS IN THE VAN SLOSSEN CASE.WHERE IT WIPES OUT A
SUBSTANTIVE CASE THAT EXISTED.HERE ALL IS HAPPENING IS
PROCEDURES HAVE BEEN STAT UP.-- SET UP.
IF THE PEOPLE ARE NOT ABLE TOMAKE A SUCCESSFUL CLAIM UNDER
THE NEW ACT, THAT IS BECAUSE OFTHEIR INABILITY OR REFUSAL OR
FAILURE TO FOLLOW THE NEWPROCEDURES.
IT IS NOT BECAUSE THELEGISLATURE BY ITS OWN FIAT
WIPED OUT A SET OF SUBSTANTIVERIGHTS.
IT IS SIMILAR TO THIS COURT'SLONG BOTTOM CASE.
THE COURT LOOKED AT DO NOTICEPROCEDURES SET UP WITH REGARD TO
JUDGMENT INTEREST.JUSTICE:t÷÷ DO YOU NOT AGREE, S,
THAT IF YOU HAVE A FARMER WHOOWNS A FARM AND GRANDPA PUT A
LEASE INTO IT IN THE 1930'S.THE FARMER IN 2005 IS THINKING
OF SELLING.I OWN THE MINERAL RIGHTS BECAUSE
THOSE WERE ABANDONED.NOBODY HAS DONE ANYTHING FOR 50
YEARS.THEN STATE LEGISLATURE SAYS OH,
BY THE WAY, LET'S GIVE ANYBODYFROM THE 1930'S ANOTHER 60 DAYS
TO SEE IF THEY REALLY WANT TOHAVE THIS LEASE.
ISN'T THAT A NEW RIGHT IN THATPROPERTY IN THOSE MINERAL HOLDER
HEIRS?vtMR. UBERSAX:v÷÷v÷÷÷÷÷÷t IT ISW
SUBSTANTIVE RIGHT, IT IS A NEWPROCEDURAL RIGHT.
ttt÷t÷BOTHt SIDES÷t ARE GIVEN WPROCEDURAL÷÷ RIGHTS.
IT ISt÷÷ THE EXERCISE OF THOSERIGHTS OR THE FAILURE TO
EXERCISE THOSE RIGHTS --JUSTICE:ON÷÷÷ DAY ONE I HAVE A
PIECE OF PAPER WORTH 0 AND ONDAY TWO I HAD A PIECE OF PAPER
WORTH $1 MILLION, THAT IS NOTSUBSTANTIVE.
MR. UBERSAX: @WELL,@@@@@@@ THE ,THE OUTCOME OF THE CLAIM IS
@@@DECIDED BY THE PROCEDURE, NOYA SIMPLE LEGISLATIVE ACT.
THAT IS THE POINT.IF THE LEGISLATURE HAD DONE
SOMETHING, WHICH AUTOMATICALLYWOULD WIPE OUT SOMETHING WORTH
SEVERAL MILLION DOLLARS, THATWOULD BE AN ISSUE.
@@@@@@tttttttttTHAT IS WHAT YOUEPREVIOUS CASES ON RETROACTIVITY.
BUT HERE, THAT DID NOT÷÷÷ HAPPE.÷AGAIN, WE ARE JUST SETTING UP
NEW÷ PROCEDURES÷.THEY MAY CHANGE THE RESULT AND
THEY MAY NOT.IN YOUR EXAMPLE,÷÷tttttttttttt 0
úúDAY PERIODBUTtttt@vtt THEt MINERAL OWNER D
MIGHT NOT EXERCISE THAT RIGHT ATALL.
EVEN TODAttttttY, SOMEONE WHO CStTO÷÷t÷÷÷÷t÷ HAVE AUTOMATICALLYD
-- BEEN÷÷÷÷÷ V÷÷t÷÷÷t÷÷÷÷t÷÷t÷EORIGINAL ACT STILL QUALIFIES
UNDER THE NEW ACT.THE RESULT MIGHT BE THEa@@Ñ÷÷E
UNDER THE OLD ACT.JUSTICE: THANK @ YOU.
(((((YOU HAVE USED YOUR TIME.YOU MAY TAKE A MINUTE.
>> WITH REGARD TO THERESERVATION OF THE MIDDLE
INTEREST IN A DEED TRANSFERRINGTHE SURFACE, I THINK THE POINT
IS THE GENERAL ASSEMBLY SAIDTHAT IS ANYTHING THAT THE HOLDER
OF THE MINERAL INTEREST HAS DONEOR IS INVOLVED IN.
IT IS THE SALE OF THE SURFACEFROM ONE PERSON TO ANOTHER.
IT IS NOT USE OF THE MINELINTEREST.
JUSTICE: WELL, YOU GO BACK TOTHE BASIC PREMISE OF WHY DO WE
NEED TITLED DOCUMENTS TO BERECORDED.
IT IS NOT FOR THE BENEFIT,NECESSARILY, OF THE PEOPLE
TRANSFERRING THE PIECE OFPROPERTY.
HERE IT WAS WITHIN THE FAMILY.IT IS FOR THE BENEFIT OF THE
PUBLIC, THE COMMUNITY --IT'S NOTICE.
MR. MILLER: IT'S RECORDED.BUT WITH REGARD TO WIN THIS
CLAIM WAS VESTED, WE BELIEVE IFTHE LEASE IS NOT A SAVINGS
EVENT, THIS INTEREST VESTED INMR. CORBAN'S VESTED IS ENTITLED
AT THE@@ END OF THE GRACE PERIODIN 1992.
0WITH REGARD TO THE OTHER CASE,I DID NOT MEAN TO STATE THAT THE
STATUTE SAYS DEEMED ABANDONED.I THINK WHAT I TRIED TO SAY WAS
THE COURT SAID THE FUNDS WERENOT ABANDONED BECAUSE THE
STATUTE DID NOT SAY THEY WOULDBE DEEMED ABANDONED.
ON THE OTHER HAND, IN THIS CASEIT DOES SAY DEEMED ABANDONED.
PPPPPPPPPPPPPPTHINGS WE HAVE ADEBELIEVE IT SAYS TREATED AS IF.
JUSTICE: THANK YOU.PPP@PPPPPPPPPPPPPPPPPPP@@@úú@@@R
ADVISEMENT AND YOU WILL BENOTIFIED OF OUR DECISION.