Ohio Lawyer, March/April 2017 issue

THE OHIO STATE BAR ASSOCIATION MEMBER MAGAZINE

March/April 2017

VOL. 31, NO. 2 www.ohiobar.org

RISE OF THE MACHINES Is the law ready for synthetic witnesses?

New rulings impact Ohio Dormant Mineral Act 10 Best ways to help your military clients 14 Boost your practice's economic development 26

Protecting your reputation before, during and after the storm.

OBLIC is there to protect your reputation when you need it most.

Reputation Matters. Let OBLIC Protect Yours.

Owned and Proudly Endorsed by the OSBA, OBLIC is the only carrier exclusively devoted to protecting Ohio attorneys. #REPUTATIONMATTERS Visit www.oblic.com to Apply Now or call (800) 227-4111 for more information.

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Vol. 31 No. 2 Departments 3 | President's Perspective The OSBA: Advocating for you every day 4 | Inside OSBA Meet the candidates for president-elect

Features in Oil, Natural Gas and 10 | Developments Energy

14 |

by Justin J. Koterba and Gregory D. Brunton Ohio's Dormant Mineral Act does not automatically transfer oil and gas mineral rights to surface owners.

Lawyers Making a Difference for Military Clients

by Steve Lynch There are many ways volunteer attorneys can achieve lasting, positive outcomes for servicemembers facing legal challenges.

Amazon Echo be the First “Smart�

20 | Will Witness?

by Andrew L. Rossow, Esq. What happens when a smart device has the potential to be used against you in court? Welcome to a new age of rules and policy.

6 | Foundation News OSBF welcomes new board leaders 7 | Member News In memoriam, awards and community involvement of OSBA members 8 | Books & Bytes Book Review: Hillbilly Elegy: A Memoir of a Family and Culture in Crisis 9 | Statehouse Connection What does "No Man's Land" mean in today's politically divided America?

26 | Practice Tips 10 Ways Ohio's Economic Development

Manual can help your practice 28 | Did You Know?

How lawyers protect Lake Erie 30 | Practice Tips Avoid these two pitfalls when applying Ohio's newly interpreted Dormant Mineral Act 32 | Lawyer Lifestyle Hit the road: Explore Ohio's hidden treasures 34 | Did You Know?

You can improve access to justice by choosing where you bank

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March/April 2017

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The OSBA: Advocating For You Every Day Advocacy on behalf of our profession is a significant part of the OSBA’s mission and work. Often it involves interfacing with the Ohio Legislature to encourage adoption of legislation related to the practice of law.

Sometimes it involves interacting with the Ohio Supreme Court concerning rules governing our profession.

Other times it takes the form of making statements to the public.

Examples of our work with the legislature include successfully advocating against invoking a sales tax on legal services (an idea which appears to be cropping up again this year), and in favor of dedicating general revenue monies to civil legal aid. (As to the latter, $1.5 million was dedicated in the last budget cycle to providing veterans with access to legal aid in civil cases.) We have also advocated for numerous changes to various statutes at the request of our committees and sections and, in particular, our Probate and Estate Planning Committee, as well as our Corporate Law Committee.

And we advocated successfully (finally!) for an increase in pay for members of the Ohio judiciary.

Coming up, we will be spending time pushing for increased funding for indigent defense, as appointed counsel across the state have not had a raise in hourly rates for many years. We’ll be considering positions to take on sentencing reforms that might impact Ohio’s response to the opioid epidemic.

We’ll advocate for more funding related to access to justice in the civil arena.

And, of course, we’ll also continue to

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keep a close eye on efforts to begin taxing monies paid for legal services.

temporary restraining order related to the President’s travel ban.

If you’ve yet to meet Todd Book, the OSBA’s Director of Policy and Public Affairs, please take the time to do that.

Todd is a former state legislator from Scioto County, is a graduate of William & Mary College of Law, and is a former member of the OSBA Board of Governors. He also plays a mean game of golf and has an acerbic sense of humor (too often at my expense!).

In that case, when the President labeled Judge James Robart a “socalled judge” for issuing the TRO, the OSBA’s officers and Government Affairs Committee decided that we should provide the public with some information about the role of the judiciary in a tripartite constitutional government.

At the Supreme Court, the OSBA has successfully proposed a number of rule changes to benefit our members and the public. For example, the Court adopted our suggestion that corporate counsel not licensed in Ohio, but who work here, be permitted to perform pro bono legal services. In a similar vein, we were successful in advocating that experienced lawyers who are retiring be permitted to maintain a limited license to offer pro bono services. And we advocated for a rule change that now allows military spouses who are attorneys to have an expedited process for practicing in Ohio when the military member spouse is assigned to a base here.

Once in a while, our advocacy takes the form of speaking to the public, usually through press releases, about issues of public concern related to the judicial branch of government or the practice of law. That happened in February, when we issued a statement about President Trump’s personal criticism of a Washington State federal judge who had issued a

Making decisions about when to advocate is not always easy. In the case of the statement made about the Judge Robart criticism, we knew some members would be angered. Indeed, a few members quit the Association, which we knew was a risk. We nonetheless believed the vast majority of our members would want us to issue a statement, which is what we did.

So what goes into our thought process in deciding whether to issue a statement? First, we do a fair amount of institutional and personal soulsearching to assure that we are not siding with one party or another based upon political preference. Second, we examine whether the advocacy is consistent with the mission and purpose of our Association. Finally, we try to stay out of pure policy debates and focus on whether there’s an impact on the administration of justice, the due process of law or whether we are uniquely positioned to weigh in. continued on page 5

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Inside OSBA Meet the Candidates for President-Elect Edward Smith

Firm: Nolan Sprowl & Smith City: Dayton Date of Admission: 1973 Law School: University of Notre Dame Law School

What made you want to become the president of the OSBA? ED SMITH: I have an opportunity to lead a great organization that has benefitted my career immensely. I’m grateful for everything the OSBA has afforded me over the years: the honor of chairing the Grievance Committee; representing the OSBA in the Ohio Supreme Court; meeting great lawyers; obtaining certification as a specialist in Estate Planning, Trust & Probate Law; learning the complexities of the practice through membership on the Ethics Committee and Probate Section; being a longtime member of Ohio Bar College and policy-holder with OBLIC; and much more. The OSBA has so much to offer. Lawyers throughout Ohio need to be sold on that. My goal is to make the organization even greater by listening to our members.

In that way, we will be true to our Core Purpose – advancing the professional interests of our members.

ROBIN WEAVER: As a member of the Board of Governors, I was appointed to the Enterprise Risk Management Task Force (ERM), which analyzed the operations of the OSBA from top to bottom. The ERM evaluation process revealed the need for continued strong, experienced leadership to guide

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Robin Weaver

Firm: Squire Patton Boggs City: Cleveland Date of Admission: 1974 Law School: University of Michigan Law School

the OSBA through the challenges it and our profession face as a result of the impact of the great recession on our profession. I want to serve as president to continue to advance the professional interests of our members during these challenging times.

lawyers about the possibilities that exist. I will push hard to advance these and other opportunities.

The OSBA is made up of many demographics, younger attorneys and those more experienced, and from diverse backgrounds. How do you plan to ensure the OSBA stays relevant to the many attorneys the bar serves?

ES: Primarily, to provide extraordinary leadership through challenging times. We must continue to have conversations with law schools so that young lawyers are well-prepared and can be successful without huge burdens of debt. We must counter the misleading narrative of drive-through and self-help law – that the law is easy and too expensive, and a lawyer is unnecessary. The public is not generally aware of all the good that lawyers do and all the time they volunteer. This needs to change right now. My goal is to fight for lawyers. If lawyers do well, their clients do well and, in turn, this great organization will thrive.

RW: The core strength of the OSBA is its myriad sections and committees, which serve our diverse membership.

Some of these sections are stronger than others. It is paramount that all of our sections be strong and vibrant so that as a whole the OSBA serves the needs of all of its members. In that way, the purpose of our Association and its core values of member satisfaction and quality services will be fulfilled.

ES: The Young Lawyers and Senior Lawyers Sections can collaborate to bring new lawyers into the practices of retiring lawyers. This is critical to the succession of the Association. The Women in the Profession Section is exploring flexible practice models. We need to educate

What unique opportunities does the OSBA have in the next three years?

RW: The great recession of 2008 and the advancement of the internet have created new challenges to our legal system and the practice of law. These challenges, however, present new opportunities to serve our profession and the public. Chief among these challenges are an intrusion into our profession by internet providers like Avvo and Legal Zoom, and the movement to permit non-lawyers to

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Inside OSBA perform independent legal services.

The OSBA has the opportunity to defend against these intrusions and to ensure they are regulated by the Supreme Court to the extent they are permitted to operate. Additional opportunities for the OSBA include: 1. New lawyer support; 2. Update regulations to reflect changes in practice; 3. New model for CLE and professional development; 4. New legal service options, e.g., unfunded legal services; and 5. Create a public platform for legal services.

These opportunities should be done in collaboration with local bar associations on a regional and state level.

The OSBA: Advocating For You Every Day,

continued from page 3

Any bar association officer will tell you that a raison d’etre of bar associations across the country is the defense of judges who are criticized (especially by those with significant power) for doing their jobs. Why? Because, while presidents, governors and legislators can speak on their own behalves when criticized, judges are prohibited by judicial canons from doing so if the criticism is about their handling of a case.

As we don’t always speak out when a judge is criticized, why did we do so here? First, the personal criticism was leveled by one with substantial powersome would say he is the most powerful man in the world. Also, the case before Judge Robart was one of high national interest and concern. Whether one believes courts should give greater

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How has your family influenced your career?

RW: I was fortunate to have had the best parents anyone could ever hope to have. They instilled in me strength of character, a strong work ethic, integrity, a fundamental sense of right and wrong, and compassion for others. These principles have been the guideposts that have carried me through my career and have governed my approach to the practice of law.

This year, there is a contested election for president-elect between Ed Smith and Robin Weaver, and the election will be held via electronic or mail ballot in May.

ES: I could not have been successful without the support and sacrifice of my wife, Kathie. I met her while working at a law firm before going into the Air Force JAG. She has been a rock for 42 years. And we knew we had done things right when our son became a lawyer and our daughter a teacher, both with two great families. That made my life’s work, and my wife’s support of it, even more satisfying.

All OSBA members will receive an electronic ballot in May. If the OSBA does not have your email address on file, you will receive a ballot through regular mail.

weight to national security concerns, or whether they should err on the side of aiding refugees-or, indeed, whether courts have any authority whatsoever to invalidate an executive order issued by a sitting president-every American had a stake in the outcome.

the time to respond to every positive email, I did take the time to respond to every piece of critical correspondence.

Fortunately for me, there were far fewer of the latter than of the former.

We were careful to limit our statement to the personal attack made on the judicial officer, stating that he was just a “so-called judge,” and to avoid entering the controversy about the substance of his order. Since the judge was prohibited by judicial canon from speaking in his own defense, we (and many other bar associations) chose to speak out.

Look for more information on ohiobar.org, which will include more information on the candidates and voting instructions.

The bottom line is that we work every single day to serve our members, whether it be in providing quality CLE programs, working with an affiliate to provide lawyers assistance with substance abuse problems, addressing access to justice issues, providing online research tools, or, as discussed in this column, advocating in public arenas. In every instance, we do our best to have your back!

Part of our effort was to educate the public as to the role of the judiciary in our constitutional government. We thought of it as a “teaching moment.”

Many seemed to appreciate that. A few did not. While I did not have

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Foundation News OSBF welcomes new board leaders

HONOR. REMEMBER. CELEBRATE.

Andrew C. Storar Andrew C. Storar will serve as 2017 president of the Ohio State Bar Foundation.

Storar, president of Pickrel, Schaeffer and Ebeling, has more than 30 years of experience representing a wide range of industries and has served on the boards of many non-profit and charitable organizations. He is a current board member for Places, Inc., YMCA Camp Kern and past president of the Kettering Education Foundation.

Carol Seubert Marx Carol Seubert Marx, a sole practitioner in Lancaster, will serve as president-elect of the OSBF. Marx is a member of the board of trustees and past chair of the Fairfield Medical Center. She served as president, vice president and treasurer of the Fairfield Family Counseling Center.

Previously, Marx was the OSBA president, and a member of its Council of Delegates and Board of Governors.

Trustees new to the Board this year include: Jeffrey A. Brauer, Cleveland Hahn Loeser

Honor the exceptional, celebrate an occasion and recognize the significant people in your life with a charitable gift to OSBF.

To dedicate your gift, call (614) 487-4477 or visit www.osbf.net and click “Donate Now.�

IN HONOR OF

Gifts made between November 19, 2016 and January 13, 2017

Alison M. Belfrage Staci M. Waterman

Carol Seubert Marx Martha A. Rose

Lee Belardo Carol Seubert Marx

Ohio State Bar Foundation Staff Eric & Alison Belfrage Sarah Lodge

Heather Creed Michael L. Robinson James D. Eckert, Esq. Kristin L. Eckert Justice Patrick Fischer Hon. James D. Jensen William A. Goldman Michael Braunstein James R. Jeffery Grant W. Wilkinson David A. Katz Michelle L. Kranz Ronald Kopp Hon. James D. Jensen

Peter G. Rost Grant W. Wilkinson Andrew Storar Caitlin Storar William K. Weisenberg Melissa Graham-Hurd John D. Holschuh, Jr. Reginald S. Jackson, Jr. J. Kevin West William M. Lane Kalpana Yalamanchili Gary J. Leppla Honorable Jack Zouhary Anonymous

IN MEMORY OF

J. Kristin Burkett, Newark Burkett & Sanderson, Inc.

Gifts made between November 19, 2016 and January 13, 2017

Randall M. Comer, Springfield Martin, Browne, Hull & Harper, PLL

Judge David A. Hejmanowski, Delaware Delaware County Probate/Juvenile Court

Drew Odum, Cleveland

The Goodyear Tire & Rubber Company

To read more about our new board members, please visit: www.osbf.net/news/press-releases.

Carole S. Dougherty Ron Dougherty

Morton L. Stone Christopher C. McCracken

Chief Justice Thomas J. Moyer Phillip & Mitzi Barrett Tom & Ginny Knoll Carmen V. Roberto

Manny Tabackman James R. Office

Edward Noble Stephen L. Smith David Railsback Magistrate R. Lamont Kaiser

Senator George V. Voinovich Grant W. Wilkinson Kathy Weisenberg H. Ritchey Hollenbaugh John S. Stith William K. Weisenberg

Charles L. Richards, III David C. Comstock

CONNECT WITH OSBF 6

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Twitter: @_OSBF_ Facebook: facebook.com/OhioStateBarFoundation LinkedIn: linkedin.com/company/ohio-state-bar-foundation

March/April 2017

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Member News

Bowling Green

In Memoriam

Magistrate Pamela A. Kaufman Heringhaus, Wood County Common Pleas Court, was elected president of the Ohio Association of Magistrates.

2016

Cleveland Richik Sarkar, McGlinchey Stafford PLLC, was selected as a 2017 Fellow of the Leadership Council on Legal Diversity.

Samantha Quimby, Frost Brown Todd, was selected as a 2017 Fellow of the Leadership Council on Legal Diversity.

Columbus Stacy Pollock, Mazanec, Raskin & Ryder, Co., LPA, has joined the COSI Community Board.

Charles F. Johnston, Jr. 86 Wadsworth October 25, 2016

William W. Johnston 70 Worthington December 13, 2016

Rudolph J. Geraci 86 Lyndhurst October 29, 2016

A. David List 81 Newark December 26, 2016

Gerald A. Erhard, Jr. 69 Zanesville November 3, 2016

2017

Robert V. Maher 96 Hudson November 8, 2016

Judge Alan C. Travis 76 Dublin January 5, 2017

Richard L. Cory 89 Bucyrus November 17, 2016 John T. Willard, Sr. 76 Hamilton December 5, 2016 C. Duane Callender 74 Perrysburg December 12, 2016

OSBA Member News in Ohio Lawyer magazine is limited to awards and civic duties. The news listed above is edited from press releases that are sent to the OSBA. Other submitted member news, such as promotions and new positions, is featured on the OSBA website.

To keep up to date with the most recent member news, visit ohiobar.org/membernews.

To submit an announcement for consideration in Member News, please email it to the editor at membernews@ohiobar.org.

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Books and Bytes Book Review: Hillbilly Elegy by J.D. Vance Bradley S. Le Boeuf

Hillbilly Elegy, by J.D. Vance.

264 pages. New York, NY:

HarperCollins Publishers. 2016. $27.99.

“I should have known that no hillbilly makes it to adulthood without a few major screwups along the way,” writes J.D. Vance in his memoir Hillbilly Elegy. “[T]here’s no embarrassment like waving to the neighbors right after the cops have carted your mother off.” Vance, a graduate of The Ohio State University and Yale Law School, struggles to explain the mystique of hillbilly culture after growing up in a southwestern Ohio community with deep Appalachian roots.

Vance’s warts-and-all autobiography of a dysfunctional working-class family that dropped the F-bomb as casually as spreading salt on French fries, is a tale that underscores the influence of his active extended family. His mother had five husbands, a situation that Vance laments, “Sometimes, I’d wax philosophical about the meaning of the word ‘sibling’: Are the children of your mom’s previous husband still related to you?” Vance’s grandmother pleaded with him as a young teenager to provide a clear urine sample for his drug-addled mother, despite Vance’s own pot-smoking behavior. He eventually relented, but “I don’t regret relenting.”

With one foot in the hollers of Appalachia Kentucky and one foot in Middletown, Ohio, a place “so generic that they didn’t even bother to give it a real name: It’s in the middle of Cincinnati and Dayton,” Vance is constantly tormented with finding his own destiny amidst domestic violence, poverty and broken marriages. In a classic natureversus-nurture dichotomy, he asks, “How much of our lives, good and bad, should we credit to our personal decisions, and how much is just the inheritance of our

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culture, our families, and our parents who have failed their children?”

Vance explains, “We spend our way into the poorhouse…. Thrift is inimical to our being. We spend to pretend that we’re upper-class.”

He notes the irony of the deliberately unemployed neighbors and long-term public assistance recipients who complain about their depressing station in life. “We talk about the value of hard work but tell ourselves that the reason we’re not working is some perceived unfairness: Obama shut down the coal mines or all the jobs went to the Chinese.”

Vance’s use of the word “we” pervades Hillbilly Elegy. No matter how far he traveled from Middletown, whether in the rarefied air of Yale or a stint in the Marine Corps before attending Ohio State, Vance cannot shake the bluegrass stains and kudzu from his feet.

The last section of the book describes Vance’s college years at Ohio State and Yale Law School. The passages about his job search are illuminating for law school students or job applicants. The advice from Yale’s career office “emphasized the importance of sounding natural and being someone the interviewers wouldn’t mind sitting with on an airplane.”

In the end, born a hillbilly, Vance will remain a hillbilly, even if his mother changes her surname multiple times.

Submitted by Bradley S. Le Boeuf, Akron

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Statehouse Connection What does "No Man’s Land" mean in today’s politically divided America?

D

uring the War to End All Wars, no man’s land was described as the territory between the opposing entrenched armies that was riddled with destruction, the dead and the dying.

Many new arrivals to the front quickly lost their lives because they couldn’t control their curiosity to peek into no man’s land—only to have their quick glance ended when a sniper’s bullet found its mark. It is safe to say you didn’t voluntarily venture into no man’s land.

As the 100th anniversary of the United State’s entry into WWI is approaching (April 6, 1917), the term no man’s land is taking on a new significance in today’s politically divided America. The opposing sides in this political battle have solidly entrenched themselves, and they have tried to demonize the other side. To maximize the polarization, each side has its own media outlets that relentlessly cater to their viewpoints of the facts or the "alternative facts."

Politicians, who have to worry about elections, are not blind to this development. They know they must appease their base and with the gerrymandered districts, they know they are more likely to lose their position via a primary election than through a general election. It stands to reason that, if a district leans 65% to one party, the nominee from the majority party is going to win the general election, barring an

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extraordinary opposing candidate or other highly unlikely developments.

(I use a similar strategy for my golf matches through careful selection of partners and handicaps. I want to win all my matches before I tee off—you have been warned.)

Therefore, in a heavily one-sided district, the key is to appeal to the base and win the primary. In essence, you want to be the most Democratic or Republican person in the race. That approach is great for getting elected the first time. But when you get to Washington or Columbus, you quickly realize that you need the ability to reach across the aisle and to negotiate or, God forbid, even compromise on some of your positions, to make the government work. But you also know that the electors back home are watching, and they expect you to be strong on your principles and to shut down the government if that is what it takes. If you do compromise or act reasonably, it is seen as a weakness that can be used against you in the next primary when you will be challenged by a “true believer.”

To avoid these primaries, many elected officials have decided it is safer to stay in the trenches and avoid the no man’s land that exists between the parties. A few decades ago, most members of Congress would have classified themselves as centrist. They lived in no man’s land and made the government work. Now very

few self-classify as centrist. It is too dangerous to look into no man’s land, let alone venture out into the region.

So, what do we do to address this revolting development? First, we need to draw district lines in a way that will make for more competitive districts. The rationale is that more competitive districts will necessitate more centrist candidates. A few years ago the people of Ohio took a large step to ensure change when they adopted a new approach for drawing state representative and state senate district lines after the 2020 census.

The state legislature needs to use a similar approach and strive for competitiveness when drawing lines for the Congressional districts.

Second we all need to ratchet down the rhetoric. We may have different views, but in the end, we are all on the same side. We are divided, but we are not at war with each other.

As the oracle Bill Weisenberg has said countless times, we can disagree without being disagreeable.

Folks, representative democracy needs compromise to work. When I was a member of the Ohio House, a good bill was one that had wide bipartisan support. And was one where the opposing interest groups working on the bill were neither completely satisfied nor completely dissatisfied. Being reasonable and willing to brave no man’s land to find agreement needs to be seen as a strength and not as a weakness.

Remember at many spots along the front on Christmas Eve 1914, the opposing armies held their own truce and celebrated Christmas together in no man’s land—it can be done.

Todd Book is the OSBA Director of Policy and Government Affairs.

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Developments in Oil, Natural Gas and Energy

By Justin J. Koterba and Gregory D. Brunton Ohio Dormant Mineral Act does not automatically transfer oil and gas mineral rights to surface owners.

I

n a trio of decisions dated Sept. 15, 2016, the Ohio Supreme Court clarified the provisions of Ohio’s Dormant Mineral Act (ODMA) as it applies to the rights of surface and oil and gas mineral rights owners. First and foremost, the Court ruled that the 1989 version of the ODMA did not operate to automatically vest abandoned oil, gas and mineral rights in the surface owner.

Instead, a surface owner seeking ownership of abandoned mineral interests must be proactive by obtaining a court order declaring the mineral rights abandoned. The Court also decided that surface owners seeking abandoned mineral interests subsequent to the 2006 amendment to the ODMA must follow the notice requirements contained in the amended statute. These rulings are critical as surface owners can no longer assume oil and gas mineral rights automatically vest in their ownership.

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Corban v. Chesapeake Exploration, LLC

The crux of the Court’s analysis is set forth in Corban v. Chesapeake Exploration, LLC.1 In Corban, the Ohio Supreme Court decided that the 1989 ODMA was not self-executing and that the 2006 amendment to the ODMA applies to all claims asserted after 2006 to declare the mineral rights abandoned. The ODMA, enacted in 1989 and amended on June 30, 2006, generally provides that severed oil and gas interests are deemed abandoned and vested in the surface owner if certain “savings events” do not take place within a 20-year period.

The Court noted that, pursuant to Ohio common law, mineral rights severed from surface rights are not subject to abandonment if the mineral owner failed to produce oil or gas or to extract other minerals.

Evidence must be shown that the mineral owner intended to abandon its interest, and abandonment could not be presumed from mere nonuse.

The 1989 ODMA was intended to provide a method for the termination of dormant—i.e. undeveloped—oil and gas mineral rights. The 1989 ODMA provided that if dormant for a 20year period, the oil and gas mineral rights held by a person other than the surface owner would be “deemed abandoned” and transferred to the surface owner absent certain “savings events.” Savings events include, but are not limited to, actual production

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March/April 2017

of the minerals, the underground storage of gas, and whether the mineral interest has been the subject of a sale or other title transaction recorded in the office of the county recorder.

The Corban Court focused on the phrase “deemed abandoned.” It concluded that the language requires judicial action before mineral rights can be forfeited. The Court equated this term with a “conclusive presumption,” which is an evidentiary device, and explained that by “deeming” dormant mineral rights abandoned, the ODMA created an evidentiary assumption that a mineral rights owner abandoned the rights if the 20-year period passed without a savings event. The Court noted that this procedure offered a fair and effective method of terminating abandoned mineral rights by requiring a quiet title action in favor of the surface owner. The Court clarified that because the presumption is only an evidentiary device, the 1989 ODMA does not automatically transfer the oil and gas mineral interest to the surface owner by operation of law. Instead, a surface owner must file a civil action to quiet title and obtain a court order that oil and gas rights have been forfeited.

In addition to the 1989 ODMA, the Corban Court also elaborated on the notice requirements set forth in the 2006 amendments to the ODMA. The ODMA as amended requires a surface owner seeking to quiet title to comply with specified notice provisions before an interest can be deemed abandoned.

In effect, the 2006 ODMA gives the mineral rights owners an opportunity to prove they preserved their interests in any undeveloped minerals. The Court concluded that the 2006 ODMA notice requirements apply to all claims asserted after June 30, 2006, seeking to declare mineral rights abandoned— even if the mineral rights were abandoned prior to the amendment.

Albanese v. Batman

The Court applied its ruling in Corban to Albanese v. Batman.2 In Albanese, which was published the same day as Corban, the Court held that a surface owner’s failure to comply with the notice requirements of the 2006 ODMA prevented the mineral interest at issue from being deemed abandoned.

Albanese involved a consolidated appeal in which two landowners filed separate lawsuits seeking to quiet title to certain oil and gas mineral rights and oil and gas leases on their property. The Court, relying on Corban, explained that all claims to quiet title in dormant mineral interests must follow the 2006 ODMA notice requirements to declare the mineral rights abandoned, even if the mineral rights were abandoned prior to 2006.

Here, the Albanese surface owners failed to comply with the notice provisions in the 2006 ODMA. As such, the severed oil and gas interests were preserved and not abandoned.

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Walker v. Shondrick-Nau

In a third decision, Walker v.

Shondrick-Nau,3 the Court applied Corban again to find that the owner of a severed mineral estate preserved his rights. In Walker, Noon severed the oil and gas rights by deed recorded in 1965. In 2009, Walker acquired the surface of the land and, after becoming aware of the 1965 deed, sent a “notice of abandonment of mineral interests” to Noon’s last known address.

Walker then filed an affidavit of abandonment in the county recorder’s office. Thereafter, Noon filed a claim to preserve his mineral interests. The trial and appellate courts held that the mineral rights were abandoned and vested in the surface owner.

The Ohio Supreme Court reversed. The Court held that, in accordance with Corban, the 2006 ODMA’s notice requirements controlled because the property was purchased in 2009—i.e. three years after the amendment. The Court explained that, under the 2006 ODMA, a mineral interest holder may file a claim to preserve his or her interests within 60 days after notice of the surface owner’s intent to declare those interests abandoned. Since the mineral interest holder in Walker had filed his notice, the Court held that his interests were properly preserved and not abandoned under the 2006 ODMA. These rulings clarify the application of the ODMA to claims arising before and after the 2006 amendment.

Specifically, it is now clear that the 1989

ODMA does not automatically vest dormant minerals in the surface owner without judicial action and the 2006 ODMA notice requirements apply to all claims asserted after June 30, 2006.

The practical effect of these determinations cannot be understated.

The Court precluded any interpretation of the 1989 ODMA that ownership of dormant mineral rights transfer to the surface owner by operation of law.

This holding overturns the analyses of multiple state appellate courts, which held that the 1989 ODMA was selfexecuting and required no judicial action. In addition, the holding that the 1989 ODMA applies only until the 2006 amendment, essentially renders the 1989 statute moot to all claims asserted after the 2006 ODMA. These holdings will affect litigation involving hundreds of properties in numerous counties across Ohio and will dictate the outcomes of multiple disputes involving the ownership of severed oil and gas interests in the state.

These rulings also speak to the Court’s apparent recognition of the value in the Utica Shale mineral deposits and reflect an unwillingness to allow owners to forfeit their property rights in such deposits without the benefit of notice and judicial action. Corban, Albanese and Walker emphasize the importance in protecting the chain of title, as well as the Court’s implied concern that mineral owners could forfeit valuable interest without notice and the opportunity to defend their claims.

As a result of these rulings, surface owners that did not undertake a quiet title action and obtain a judgment entry confirming abandonment of the mineral interest prior to June 30, 2006, must take action and comply with the forfeiture requirements of the 2006 version of the ODMA. Anything less is insufficient to conclusively vest ownership in the surface holder.

Endnotes

(2016-Ohio-5796).

(2016-Ohio-5814).

3 (2016-Ohio-5793).

1 2

Author bios

Justin J. Koterba practices in Reminger Co., LPA’s Columbus office, where his legal practice focuses on a wide variety of areas including oil, natural gas, land use and energy, as well as matters involving commercial real estate.

Gregory D. Brunton is a litigator with Reminger Co., LPA’s Columbus office, whose expertise and experience spans everything from professional negligence, to complex business and commercial litigation, to matters involving land use and eminent domain.

For more information on this issue, see the Practice Tips article on page 30.

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March/April 2017

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Lawyers Making A Difference For Military Clients

BY STEVE LYNCH

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www.ohiobar.org

M

ilitary service poses numerous challenges for servicemembers (SMs), including lengthy periods of separation from home and loved ones and the need to be ready to go into harm’s way on short notice. Less well-known are civil legal challenges posed by frequent moves and life “on the economy.” The Department of Defense (DoD) assigns a small cadre of military attorneys to help, but they are few and far between. The result is a huge resource gap, part of which is filled by volunteers from the local bar.

Volunteer attorneys that come from a variety of settings, such as solo, small, mid-sized and large firms, have achieved positive outcomes for SMs. Some volunteers have prior military experience; others do not. The following cases are examples of how volunteers have helped Ohio veterans in a variety of different ways.

Household Goods Damage

Employment

Pro bono coordinator for national firm with offices on the West Coast found a partner in California willing to handle the case. Fact that SM was pregnant resonated with partner who had recently returned from maternity leave.

She filed case in federal district court, after which moving company agreed to settle for approximately $21,000.

Military attorney determined that supervisor’s threats constituted a prima facie violation of the Uniformed Services Employment and Reemployment Rights Act, which protects reservists from employment discrimination and retaliation. He advised attorney handling labor issues for the federal facility, and provided her with a copy of supervisor’s written “guidance” to reservist.

Shortly thereafter, reservist’s request for military leave was approved and no retaliatory action taken on his return from military leave.

SM had virtually all her household goods and personal possessions lost, stolen or damaged by moving company she hired as part of a military “Do It Yourself ” move from station on the West Coast to unit in the Midwest. Moving company refused to acknowledge negligence or malfeasance, and refused to settle case with SM or military counsel. SM was distraught and under additional stress because she was expecting the birth of her first child a few months hence.

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Military reservist working as civilian security guard at federal facility in Ohio submitted request to supervisor for “military” leave to attend training critical to his duties in the reserves but unrelated to his civilian job. Civilian supervisor advised reservist both in person and in writing that he was subject to disciplinary action and possible dismissal, if he attended training.

Lease Termination

SM received PCS orders requiring a move two years into a three-year lease. Under SCRA, SMs in receipt of orders are entitled to terminate residential leases early without penalty. They also are entitled to return of security deposits, minus lawful deductions. SM advised landlord of her rights and provided a forwarding address. Premises were left in excellent condition. Landlord failed to return any portion of security deposit, and ignored demand letter from SM and military attorney.

Partner in large national firm assigned case to associate who sent demand letter to landlord that varied in no significant way from those sent by SM and military attorney-save for signature block and firm’s address on letterhead. A few weeks after landlord received demand letter from firm, SM received check refunding her entire security deposit. Provenance of letter clearly made a difference.

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Probate

Father of SM died intestate leaving very small estate.

Father’s largest asset was a used truck worth less than $2,000. SM paid for funeral and cremation out of pocket, but was unsure what else to do. SM’s military duties limited the time and resources he could devote to the matter.

Solo practitioner with more than 30 years of probate experience volunteered to prepare all paperwork needed for a small estate, including transfer of vehicle title.

SM traveled from duty station to practitioner’s office, reviewed and signed the paperwork, and filed the documents with probate court, all on the same day.

Debt Collection

Military couple who adopted an infant received bill from hospital for cost of newborn’s delivery. Nothing in state law, the adoption agreement or anything signed by the couple imposed on them an obligation to pay. In short order, couple advised hospital of its “error,” which then referred matter to collection attorney who sued couple on the flimsiest of legal theories.

Couple had neither the money to hire counsel, nor the money (or legal duty) to pay the alleged debt.

A volunteer attorney in small firm responded quickly to request for pro bono assistance. In less than two weeks, attorney filed an appearance, confirmed that opposing counsel’s legal theory was vacuous at best, and convinced plaintiff to withdraw case post haste.

Divorce

Recently married SM received permanent change of station (PCS) orders to military unit in the Midwest while spouse remained on the East Coast. SM suffered serious health crisis that prompted military to begin medical discharge action. About the same time, spouse hired an attorney and filed for divorce on the East Coast. SM initially represented himself pro se, thereby accepting jurisdiction of the foreign court. Military attorney obtained stay of divorce proceeding using SCRA, but judge refused to grant indefinite delay.

Given SM’s worsening medical condition and stress of impending discharge, SM was unable to represent himself pro se, nor could he afford out-of-state counsel.

Family attorney on East Coast with experience handling military divorces accepted case pro bono and reached a fair outcome for SM. She volunteered in part to honor memory of her father who was a career officer in the Navy.

Growing up as a “military brat,” she saw first-hand the hardships that military service imposed on family life, and was glad to help prevent a possible miscarriage of justice.

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Naturalization

Recently married SM stationed aboard military vessel sought help with preparation of naturalization paperwork for his spouse. She was lawfully in the United States, but needed help with the application process. Couple had saved the $1,490 needed for application fees, but could not afford additional money for local counsel. Time was of the essence because within span of six months SM was due to leave his current duty station to attend military training school on East Coast with a follow-on assignment to an undetermined duty station likely far from Ohio.

Solo practitioner with successful immigration practice volunteered to assist couple. Over span of four months, he reviewed all forms and supplemental documentation, and helped them prepare for the field interview. His efforts ensured that the application process went smoothly, enabling newlyweds to travel together to SM’s new duty station following successful completion of military training.

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Car Purchase

The spouse of deployed sailor purchased used car online from dealer in Ohio at a “great” price. Spouse lived near large base on the East Coast and scheduled vehicle delivery just prior to husband’s return from combat assignment. Plan was to surprise him-which it did. It surprised her too because the vehicle was in such bad condition that a local mechanic declared it unsafe to drive. She initially sought help from military counsel who offered scant hope because the car was purchased “asis” with disputes subject to mandatory arbitration in Ohio.

An associate with extensive military experience persuaded partner in large firm to authorize pro bono representation.

Firm had sufficient resources and resolve to engage in prolonged battle over issues of misrepresentation, false advertising, and various other violations of federal and state laws. After months of negotiations and with threat of prolonged litigation looming, case was settled to satisfaction of military spouse (and her husband).

It doesn’t take much to make a difference

Some pro bono cases require resources that only a large firm can sustain, but many impose a lighter burden. Disputes may quickly fade away once military clients have legal “cover.” If one or more of these cases resonates with you, please add your name to a growing list of attorneys who volunteer to help SMs with civil cases through Operation Legal Help Ohio.

The author thanks retired Ohio Supreme Court Justice Eve Stratton, Stephanie Ripma, 3L at CWRU Law School, and Morgan Helgreen, 2L at CWRU Law School, for their help with this article.

Default Judgment

Default judgment of $14,700 was obtained in an Ohio court against soldier stationed in Georgia. Judgment arose from incident in which soldier, while in Cleveland on leave, happened upon shooting victim and stopped to render assistance. After criminal charges against shooter were dropped, shooter brought action for lost wages and attorney fees against soldier and others who responded to the shooting. Claims were dropped against every defendant that appeared in the case; default judgments were obtained against the no-shows. Court failed to stay the proceeding and appoint counsel to represent the soldier as required by the Servicemembers Civil Relief Act (SCRA).

Partner in large firm authorized associate to represent soldier pro bono. Associate obtained affidavits from soldier and another witness, then filed motion under SCRA to have default judgment reopened and vacated. Court dismissed with prejudice claims against soldier and relieved him of any court costs.

Author Bio

Steve Lynch is co-chair of the OSBA Military and Veterans Affairs Committee. He served for 21 years on active duty in the USAF, much of it as a JAG. Since 2001, he has worked as a civilian legal assistance attorney for the Coast Guard in Cleveland. He serves as a volunteer advisor to Statesidelegal.org and on the Board of Directors of the Ohio Military/ Veterans Legal Assistance Project. He can be reached at stephen.t.lynch@uscg.mil or (216) 902-6042.

A more extensive list of cases is included online at ohiobar.org/military.

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Veterans’ courts focus on treatment and diversion rather than punishment The veterans’ court is a hybrid between a drug court and a mental health court and uses a treatment problem-solving model rather than a traditional court model to assist veterans whose problems can be clearly traced to military service.

Ohio, whose population of veterans is sixth among the 50 states, now uses veterans’ courts to help veterans who have become criminal defendants.

The goal of the veterans’ court is not to excuse a veteran defendant’s crime, but to address underlying reasons for the crime in ways that are most likely to prevent repeat criminal behavior.

Ohio currently has at least 20 veterans’ treatment courts and more

are being added, and every Ohio court has access to a veterans’ justice outreach specialist and can connect a defendant veteran to federal services.

Ohio also requires every judge to look at a defendant veteran’s military background to consider whether it may be a mitigating factor in sentencing.

Although the judge already had the discretion to take military background into account before this law was passed, the new statute helps to raise the court’s awareness that military background can be considered.

A recent study indicates that veterans’ courts work effectively: Recidivism rates are far below the national

Ohio Legal Aid

Legal aid societies throughout Ohio provide many noteworthy services to the veteran community.

See ohiolegalaid.org.

Ohio Military/Veterans Legal Assistance Project (OMVLAP)

How to get involved Many low-income veterans and some SMs cannot afford legal services needed to maintain necessities for themselves and their families. If you want to volunteer but are not sure where to start, check out these organizations.

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Attorneys looking to help lowincome veterans and active duty SMs with civil legal issues, can volunteer for OMVLAP. See mvlap.org.

OSBA Military and Veterans Affairs Committee (MVAC) MVAC provides training, mentoring, networking and encouragement to attorneys who share the goal of improving legal services for Ohio’s veterans and military personnel. See ohiobar.org.

March/April 2017

average of more than 50 percent.

In a Cincinnati study, only 10 percent of those referred to veterans’ courts were rearrested; 21 percent gained full-time employment, 31 percent moved to stable housing, and 16 percent enrolled in school or training programs. Youngstown reported 0 percent recidivism, and in Stark County only 5 percent were re-arrested on felony charges.

By Evelyn Lundberg Stratton, who retired from the Supreme Court of Ohio after 16 years to spend more time on criminal justice reforms, especially veterans’ issues.

Veterans’ Service Commission (VSC)

Each Ohio county has a VSC that advises and assists present and former members of the military. See dvs.ohio.gov.

Veterans’ Service Organizations (VSOs)

VSOs provide a multitude of services to veterans and their families, including assistance with VA Claims. See dvs.ohio.gov.

For more information, contact Steve Lynch at stephen.t.lynch@ uscg.mil or (216) 902-6042.

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March/April 2017

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Will Amazon Echo be the First “Smart” Witness?

By Andrew L. Rossow, Esq.

T

oday, consumers are engulfed in the world of smart devices.

As of the 2016 holidays, the most purchased gift for the season was Amazon’s Echo, a smart-device that the consumer can speak to back and forth to control other smart devices, stream music and audio, and receive updates on news, sports and weather. 1 But, what happens when that smart device, such as the Amazon Echo and Google Home, have the potential to be used against you in court….for everything you say and everything it hears? Welcome to the new age of rules and policy that the courts and rules of evidence will soon have to address.

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What in cyberspace is “Alexa”?

Amazon’s Echo, 2 dubbed “Alexa” out of three possible names (Amazon, Echo, Alexa), is a cylindrical, spherical (Echo and Dot) smart voice-enabled speaker that allows users to connect wireless and Bluetooth devices to it, receive news and weather updates, stream music and video libraries and connect to third party services such as calendars and e-mail providers. The device is equipped with seven microphones and responds to a wake word—Alexa or Echo, most commonly. When it detects its wake word, it begins streaming/ recording audio to the cloud.3 Amazon has found itself at the heart of a murder investigation. On the night of Nov. 22, 2015, James Bates called Arkansas police stating that he and a few work buddies, including the victim Victor Collins, had stayed up the night before watching football while drinking. Bates told authorities that he had let two of his friends stay at his place and, after waking up the next morning, found Collins’ lifeless body in his hot tub. After further investigation, police suspected foul play after finding broken bottles and blood spots around the hot tub.

Inside the house, authorities found a plethora of smart home devices, including a Nest thermometer, a Honeywell alarm system and an Amazon Echo. Upon this finding, police believed there could be some pertinent information on Amazon’s servers, if one of the individuals that night inadvertently woke up Alexa and it recorded conversation(s). The Bentonville Police Department seized the Echo and served what allegedly is claimed to be an overbroad warrant of all audio records the Echo may contain. In response, Amazon declined

to provide any information, as it claims the warrant is too overbroad.

While police could extract some information from it, the goldmine (if anything) lies in Amazon’s servers.

Recently, Amazon’s Echo has been the primary subject of this murder investigation. Ironically, it could be a huge witness to the investigation, if it’s allowed to “testify” that is.

Yes, you read that correctly.

The Fourth Amendment to the U.S. Constitution provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”4 In this investigation, several questions pertain to the Fourth Amendment present themselves. First, an individual must have standing to claim protection under the Fourth Amendment. To have standing, there must be a reasonable expectation of privacy, which contains both an objective standpoint and a subjective standpoint. To answer this question, we must follow up with a second, yet more complex question: When it comes to smart devices, such as the Amazon Echo, is there a difference in the reasonable expectation of privacy one may have? Better yet, should there be a difference?

The most promising answer is the one lawyers know best … “it depends.”

These smart devices do an excellent job of informing us that they use cloudbased services to connect and store our data. This is how these devices are able to link or connect to our music libraries, phones, calendars, notes, etc.

However, while we give these devices permission to connect to our accounts, we also don’t like other groups of people (including law enforcement, users and businesses) having the ability to connect to our devices or extract information from our devices whenever they want. Otherwise, why would we purchase something like this? I guess the answer would be, yes there is a reasonable expectation of privacy that society deems exists with these devices, but at the same time, depending on where the device is placed, how it is used and why it is being used, determines how far that expectation goes. This continues to be an open-ended question.

Second, if there is standing for a person to challenge an issue against the Fourth Amendment, we can look at the right of a person to be secure in his or her home against unreasonable searches and seizures. The last thing any of us expects is to have to worry about what we do in our own homes. Amazon’s “Alexa” is constantly “listening” for its wake word, so the privacy concern is what subject matter the device is storing in its cloud system. The last thing consumers would expect is to purchase into a privacy invasion scenario when we bring it home, worrying about her ratting our every move out to law enforcement, albeit legal or not. This is troubling to say the least. These devices are supposed to improve and advance our home, not make it vulnerable or the subject of any sort of legal investigation.

Third, the right of a person to be secure in his or her effects against unreasonable searches and seizures.

While our Framers never included a definition to the term “effects” in the Constitution, courts have still applied the reasonable expectation of

Amazon has sold 5M Echos worldwide in just 2 years.

22

privacy standard to personal property.

When an individual’s personal property is not inside his or her home or on his or her person, there is little to no protection.5 If we apply Christopher Nolan’s Hollywood film idea, “Inception,“ to this scenario, Alexa is considered personal property within personal property (instead of “a dream within a dream“). Alexa is considered personal property within personal property. In a sense, Alexa is a storage device for other personal information we give it access to such as our calendar, notes, reminders and other personal information.

It’s only logical that whatever information of ours that Alexa has been given permission to access or link to, that it also be protected.

Last, that no warrant shall be issued except on probable cause, describing the place to be searched and persons or things to be seized. This requires that a warrant specifically and particularly identify the places and persons to be searched and things to be seized. A warrant will be held invalid if it is too broad or requests general items.

We all know searches and seizures are illegal without a warrant. For law enforcement to obtain a search warrant, there must be probable cause shown to the magistrate. While there are exceptions to the warrant requirement (not discussed here), none address smart devices, obviously. Again, I must ask the question, should there be?

Amazon’s Echo has been the primary subject of a murder investigation.

Ironically, it could be a huge witness to the investigation, if it’s allowed to “testify” that is.

Considering the pending investigation, Arkansas law enforcement officials recently issued a warrant for Amazon to release all recordings from Bates’s Alexa device. Amazon declined to release such information and stated the following to Engadget:6 “Amazon will not release customer information without a valid and binding legal demand properly served on us. Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”

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New devices, same law?

The legal system is finding ways to force smart technology into the rules of civil and criminal procedure (both statewide and federally). Realistically, though, it’s the same law being applied or forcibly applied to include these new devices. However, the obstacle and the opinion of many in the field is that our laws are outdated when it comes to smart technology in terms of how courts address it on an evidentiary level.

So, how can smart devices be used in court? If it can be, which we are starting to see and learn more about, when can they be used in court?

Technically, these devices do produce “statements” and are advanced enough that it could be considered a person for all intents and purposes.

Indeed, that is an entirely different discussion for another time.

Under the Federal Rules of Evidence, evidence is relevant7 if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Additionally, all relevant evidence is admissible, unless another Rule says otherwise.8 Specifically, statements that are considered hearsay 9 are not admissible unless an exception applies.

In the pending investigation of Bates, if the recorded audio were to be extracted and given to the prosecution, these recorded statements are considered hearsay because it was made by Amazon’s device outside of court, for corroborating or proving that Bates either did or did not commit the murder of Collins. Currently, there is no hearsay exception that would allow for “statements” by Alexa to come into evidence as admissible. This could be a problem since we are living in an age of smart devices that we are constantly communicating with to advance our lifestyles. But that’s just it…isn’t it? A smart device… communicating? Sounds like testimony to me, just as accurate as if the person themselves were testifying, no?

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Indeed, it would make sense for experts and the writers of the rules to consider amending them to include provisions that address smart technology, whether it is adding a hearsay exception or other such appropriate provisions.

This is a long process, though, and many more cases would need to be brought before the court before any such legislation is considered. With cases like this, you can most certainly count on hearing more about the court’s involvement in these matters.

We will continue to see unique cases like this become more common, as augmented reality and virtual reality is attempting to establish its presence in our market. It is only a matter of time before courts will have to make rulings on the impact our technology has and will have on our laws and court system.

Marc Rotenberg,10 president of the Electronic Privacy Information Center, said, “There needs to be a clear legal standard that governs law enforcement access” to these smart devices. These smart devices certainly open the door to warranted privacy concerns on many levels. It will be interesting to see what measures are taken to address privacy concerns and evidentiary concerns during this investigation.

In the meantime, I urge all you cyber

and technology attorneys to start thinking about these issues with the goal of paving the legal pathway for what could be the establishment of historical precedent for policy in addressing these issues.

Author Bio

Andrew Rossow is a cyber-space and technology attorney in Dayton. Please follow him on Facebook at facebook. com/drossowlaw and Twitter at @RossowEsq.

Endnotes

1 www.forbes.com/sites/debraborchardt/2016/12/27/ amazon-says-echo-was-the-best-selling-productthis-holiday-sells-millions/#13aa8ded63ce.

2 www.amazon.com/Amazon-Echo-BluetoothSpeaker-with-WiFi-Alexa/dp/B00X4WHP5E. 3 www.washingtonpost.com/news/the-switch/ wp/2016/12/28/can-alexa-help-solve-a-murderpolice-think-so-but-amazon-wont-give-up-herdata/?utm_term=.5d3e50b4c14f.

4 U.S. Const. Amend. IV. 5 www.yalelawjournal.org/article/the-lost-effects-ofthe-fourth-amendment.

6 www.rt.com/usa/372090-amazon-refuses-echowarrant-arkansas-police/.

7 Fed. R. Evid. 401.

8 Fed. R. Evid. 402.

9 Fed. R. Evid. 801-803.

10 www.nytimes.com/2016/12/28/business/amazonecho-murder-case-arkansas.html.

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Practice Tips

10 Ways Ohio’s Economic Development Manual Can Help Your Practice JULIE WOOLLEY

A

ttorneys, business leaders, and government entities now have a resource to help them foster economic development in Ohio. In December 2015, the Office of Ohio Attorney General Mike DeWine released the Ohio Economic Development Manual, which outlines the programs affecting economic development in Ohio and summarizes the laws underlying them. The manual is a guide to those economic development tools most commonly used in Ohio.

Although written by the Ohio Attorney General’s office, the manual incorporates substantive feedback from industry trade groups and representatives from across the state.

Here are 10 ways the manual can assist your practice in Ohio:

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1

The manual can kick start your research

The manual is heavily footnoted. In fact, the 1,500-plus footnotes can direct your research on a particular topic to relevant statutes, cases, attorney general opinions and other resources. Although each topic cannot be covered in detail, you will have enough information to get a head start on research so you can answer your clients’ questions. While the manual could have included even more citations, it strikes a balance between providing too much detail and providing enough information to kick-start research.

2

Industry experts have vetted the research

A number of industry leaders reviewed the manual before its publication with the goal to ensure that it did not contain incorrect

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information. Economic development professionals who reviewed a draft of the manual include representatives from JobsOhio, the Ohio Development Services Agency, all of the JobsOhio Regional Network Partners, a select group of attorneys, and representatives from the largest economic development trade association in Ohio–the Ohio Economic Development Association.

Those who reviewed the draft of the manual did not just “rubber stamp” its contents. They provided real feedback and substantial changes that were incorporated into it and even prompted additional research. Their assistance was vital to completing the manual.

3

Everything is in one location

To function as a “go-to” resource, this manual compiles as much information as possible in one place.

The Attorney General’s economic development webpage even includes links to the JobsOhio and Ohio Development Services websites if you need to find out more information about specific programs. For those who may be less familiar about how the JobsOhio Regional Network is set up, a map and contact information for representatives in each region is also available on the webpage.

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The manual does not advocate on policy matters

This manual was not prepared as an advocacy document or statement of policy. The Attorney General does not advocate whether incentives should exist, how communities should be involved in economic development, or whether tax credits or TIF’s generate some type of investment return in this manual. Instead, the programs that exist are described along with the laws behind the various programs.

The manual maintains a neutral voice regarding public policy matters that are often debated in the statehouse.

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The manual is reader-friendly

Rather than repeating the complex wording of laws and regulations, the manual includes easy-to-read explanations. The manual was written not just for lawyers, but also for anyone who may want to learn more about Ohio’s economic development opportunities. You may want to provide sections of the manual to your clients to read for background before a meeting where you plan to go into more detail about a particular project or legal approach.

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You and your clients choose how to do economic development

Economic development can be accomplished any number of ways.

The Ohio Economic Development Manual provides a summary of the laws behind many of the programs and resources used in economic development projects; however, attorneys still play a crucial part in economic development projects because the Attorney General doesn’t give legal advice through its publications. The manual specifically encourages those who read the manual to consult with their attorneys on how to implement their specific project. You will give the specific legal advice to your clients.

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The manual includes practical examples from all over the state

The manual provides examples for many of the economic development tools and programs used in Ohio.

Ideally, it will enable those involved in economic development projects to access the name of a city, a business, or university where colleagues can discuss the pros and cons of various projects and understand on a more practical level the benefits of various programs and tools. The examples have been collected from across the state–from small communities to the largest cities. These examples and the

various diagrams incorporated into the manual make the concepts more tangible. Wherever possible in the manual, charts and diagrams provide context or helpful information.

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Everything is online

To provide the manual to as many people as possible, the Attorney General has made the entire manual available for download at www.ohioattorneygeneral.gov/ EconomicDevelopment. Additionally, a webpage is dedicated to updates in case a statute, a new case or an attorney general opinion would affect something in the manual. When the office learns of a new case, statute or program, an update will be posted online. All updates will be online until a new print version is produced.

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You can offer advice

The website includes an update page and email contact information. Ideally, those who use the manual will provide new examples, information on new programs (and programs that are no longer used), updated information, and breaking news about case law or legislation.

Updates can then occur in real time.

Please provide any developments or examples at EDManual@ OhioAttorneyGeneral.gov.

10 The manual is free!

Author Bio

March/April 2017

By Julie Woolley, formerly Transactions Counsel in the Attorney General’s Outside Counsel Section.

Ohio Lawyer

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Did You Know?

How Lawyers Protect Lake Erie ELIZABETH EWING

W

hether for boating, fishing or simply sitting on the shore watching the waves disappear into the horizon, Lake Erie is one of Ohio’s most accessible and unique natural resources. As the shallowest and warmest of all the Great Lakes, Lake Erie is also the most biologically productive, supporting many species of sport fish and contributing to a tourism industry worth millions of dollars each year to the local and state economies. The fisheries of Lake Erie support 10,000 jobs per year, and the lake also provides drinking water to over 11 million people.

Recognizing the importance of Lake Erie to Ohio’s families, the Ohio Attorney General’s Office works to protect it in many different ways. At the request of the Attorney General’s client agencies, Ohio Environmental Protection Agency, Ohio Department of Natural Resources and Ohio Department of Agriculture, the Attorney General brings civil and criminal cases to enforce Ohio laws

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against violations that harm the lake.

Examples include surface water laws prohibiting polluting Lake Erie’s tributaries, fishing laws that proscribe overfishing through operational restrictions, agricultural laws that prevent nutrient and pollutant loading into the lake and more. The Attorney General also acts on behalf of Ohio citizens, bringing lawsuits to protect the lake in that capacity as well. Three cases illustrate these different roles.

Cleveland Harbor

The Cleveland Harbor and Cuyahoga River1 dredging case involves protecting commercial shipping channels crucial to Cleveland industry, while simultaneously preventing dumping of contaminated dredged material into Lake Erie. The segment of the Cuyahoga River that discharges into Lake Erie at Cleveland Harbor is a crucial passage for commercial shipping. For the river channel and the harbor to remain deep enough for large commercial vessels to pass through, however, excess sediment

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must be dredged at least once a year.

For decades, the U.S. Army Corps of Engineers performed this task as part of its responsibility by law to maintain the navigability of shipping channels throughout the United States.

After dredging, the Corps disposed of the contaminated material in confined disposal facilities or CDFs. But in 2015, the Army Corps proposed to dump the sediment directly into the lake, instead of containing it in a CDF, because they considered it clean enough for open lake disposal. Testing and data from Ohio EPA and U.S. EPA, however, showed that the sediment contained PCBs, a contaminant with many dangerous properties, none of which make it safe to add to the open waters of the lake. Accordingly, Ohio EPA issued a water quality certification that prohibited open lake dumping of the contaminated material.

Without the certification to allow the dumping, the Army Corps disputed who would pay for the sediment disposal and whether the dredging would be performed at all.

The Attorney General’s Office filed a complaint and preliminary injunction, asking the U.S. District Court for the Northern District of Ohio to force the Corps to perform its duty and conduct the dredging, while disposing of the sediment in the contaminant facilities. The Court granted that motion and the Corps performed the dredging. Since the injunction, the merits of the case are still being decided, while additional motions, including a new complaint, are before the court over the dredging for 2016.

Asian Carp

In its role as a representative of Ohio citizens, the Attorney General’s Office filed suit over another threat to the lake, this time to try to strike a preemptive blow against the invasion of Asian carp. Asian carp are an extremely aggressive, non-native fish species that have occupied the Mississippi River watershed. When disturbed in the areas where they

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now live, scores of fish suddenly leap vertically into the air, their large, powerful bodies wiggling ferociously before falling back into the water with a giant splat. The carp are not only potentially dangerous to boaters, they are an even more serious threat to native fish and plants. The carp are a prolific species that are easily able to out-compete natives. Without any natural predators, once introduced into a watershed they quickly dominate it.

Since their spread first began in the early 1990s, Ohio and other Great Lakes States have been very concerned about preventing Asian carp from reaching the Great Lakes system. The primary path of concern is the Chicago River, which connects the Mississippi River system (currently invaded by Asian Carp) to Lake Michigan. Ohio and other states, led by Michigan, filed suit in federal court, seeking a complete biologic separator between the Chicago River and Lake Michigan to prevent the carp from entering the lake.2 Although this request was not granted, one result of the litigation is that the Army Corps of Engineers maintains a more thorough barrier system of underwater electric currents to prevent fish from swimming through the river to the lake, as well as conducting periodic fish kills. The states continue to closely monitor the situation and are prepared to return to court if the threat worsens or becomes imminent.

third qualifying conviction in a 10year period, the commercial fishing license is permanently revoked.

This rule recently came into play in the criminal case of State v.

White’s Landing Fisheries.3 For its first qualifying criminal offense, White’s Landing Fisheries, Inc. was found guilty of failing to have and use a required vessel monitoring system. Then, in 2016 in a jury trial, the company received its second qualifying conviction, this time for keeping undersized fish. The case is currently on appeal and a third criminal case over additional strike violations is also pending against White’s Landing. As a result of its chronic criminal violations, White’s Landing’s commercial license may be in jeopardy of permanent revocation.

Whether the issues are large or small, the long-term preservation and protection of Lake Erie will continue to be a goal of the Attorney General’s Office. Cases such as the three summarized above are just one part of ensuring the lake remains a valuable, viable resource for generations to come.

Author Bio

White’s Landing

For native species that currently live in the lake, invasive species are not the only hazard. Over-fishing can deplete the native fish population beyond levels from which it can recover. To maintain the population, Ohio laws govern many aspects of fishing: Fishers must track where they make their catch each day and how much they catch and must follow size limitations to allow fish to reach an age to reproduce before they are captured.

If commercial fishers violate these laws and receive criminal convictions, the convictions stay on their records.

Under a three-strikes rule, after the

Elizabeth “Ellie” Ewing is an Associate Assistant Attorney General in its Environmental Section in Columbus.

Endnotes

1Ohio v. United States Army Corps of Engineers, N.D.Ohio No. 1:15 CV 679, 2015 WL 7575935.

2The suit was first filed in the U.S. Supreme Court, then in federal district court in Illinois.

See Wisconsin v. Illinois, 130 S.Ct. 2397, 176 L.Ed.2d 765 (2010); Michigan v. U.S. Army Corps of Engineers, 758 F.3d 892 (7th Cir.2014).

3Sandusky County Municipal Court, Case No. CRB:14-02342.

March/April 2017

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Practice Tips

Avoid These Two Pitfalls When Applying Ohio’s Newly Interpreted Dormant Mineral Act Alexander T. McElroy

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A

quarter-century after Ohio enacted its Dormant Mineral Act (DMA), the Ohio Supreme Court resolved a contentious issue regarding the application of the original Act, and subsequent amendments to it.

On March 22, 1989, the Ohio General Assembly enacted Ohio’s DMA1 and subsequently amended it on June 30, 2006,2 and again on Jan. 30, 2014.3 The contentious issue was whether the 1989 Statute was automatic and self-executing during its effective period from March 22, 1992, until its amendment on June 30, 2006. The majority of Ohio courts, including three appellate courts, had held that the 1989 Statute was automatic and self-executing.4 This meant that severed mineral interest holders were automatically divested of their dormant mineral rights if all

statutory requirements were met, and no notice was required. But in Corban v. Chesapeake Exploration, L.L.C., the Ohio Supreme Court reversed course, holding that the 1989 Statute was not automatic and self-executing, and instead a surface holder must have sought and obtained a judicial ruling that the dormant mineral interest was abandoned.5 Corban was the lead case for 12 DMA cases the Ohio Supreme Court decided, and one of those cases, Walker v. Shondrick-Nau6 was appealed to the U.S. Supreme Court, but the petition has been denied. Thus, the Supreme Court of Ohio decision is final.7 Lawyers should learn how to apply the 1989 Statute in light of Corban and avoid two potential pitfalls when applying the 2006 and 2014 versions of the DMA.

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Applying the 1989 Statute

The 1989 Statute provides that any mineral interest shall be deemed abandoned and vested in the surface estate unless it has been subjected to a savings event within the prior 20 years.8 Based on Corban, the 1989 Statute is not automatic and selfexecuting, therefore a practitioner must only check to see if there was a judicial ruling prior to June 30, 2006, granting the surface owner(s) the rights to the mineral estate.9 If not, then it’s “in with the notice” and the 2006 or 2014 Amendment procedures apply.

Applying the 2006 Amendment

Under the 2006 Amendment, the mineral estate can only be deemed abandoned if a prior 20-year period without a savings event occurs and subsequent notice requirements are met.10 The surface owner must notify the severed mineral interest holder by certified mail or newspaper publication that she intends to have the mineral interests deemed abandoned.11 The severed mineral estate holder then has 60 days to file a response.12 If 60 days pass without a response, then the last step is for the surface owner to have the county recorder memorialize the abandonment on record in each applicable county.13

Applying the 2014 Amendment

The 2014 Amendment removed and replaced the last step in the 2006 Amendment, but otherwise the two statues are identical. Under the 2014 Amendment, if 60 days pass without a response from the severed mineral estate holder then the surface owner must file a Notice of Failure to File and immediately after the notice of failure to file is recorded the mineral estate vests in the surface owner.14

mail. Under both versions, notice by publication is only permitted if service by certified mail “cannot be completed to any holder.”15 This implies that a certain amount of due diligence is required to determine the names and addresses of the severed mineral interest holders, their successors or assigns. As of yet, Ohio courts have not established the amount of due diligence required. To avoid this potential pitfall, at a minimum, check all public records in the county where the land is located when attempting to identify the severed mineral interest holders, and their successors or assigns, to determine whether notice by publication is permitted.

Another potential pitfall specific to the 2014 Amendment is that the surface owner handles the entire process without any confirmation by a court, or official body, that all the steps under the 2014 Amendment were properly followed. As a result, a severed mineral interest holder who originally failed to respond during the 60-day window can later contest the validity of the process, and there is no third party to validate a surface owner’s claim that the process was properly followed.

Thus, it is imperative that a surface owner attempting to have the severed mineral estate deemed abandoned follow all steps in the process in good faith and with due diligence.

Every step should be thoroughly documented in case a severed mineral interest holder appears at a later date and contests the abandonment.

Author Bio

Endnotes

1988 Ohio Laws File 314.

Sub. H.B. 288, Ohio Laws File 5960 (2006) (amending Ohio Rev. Code Ann. §5301.56).

3 Sub. H.B. 72, Ohio Laws File 90 (2013) (amending Ohio Rev. Code Ann. §5301.56).

4 See Wiseman v. Potts, Morgan County Common Pleas No. 2008CV145. See also, e.g., Walker v. Shondrick-Nau, 2014-Ohio1499, appeal allowed, 140 Ohio St.3d 1414, 2014-Ohio-3785, 15 N.E.3d 883, and rev’d 2016-Ohio-5793; Wendt v. Dickerson, 5th Dist.

Tuscawarus No. 2014 AP 01 0003, 2014-Ohio4615, appeal allowed, 142 Ohio St. 3d 1464, 2015-Ohio-1896, 30 N.E.3d 973, and rev’d, 2016-Ohio-5822; Thompson v. Custer, 2014Ohio-5711, 26 N.E.3d 278 (11th Dist.), appeal allowed, 143 Ohio St. 3d 1416, 2015-Ohio-2911, 34 N.E.3d 929, and rev’d, 2016-Ohio-5823.

1 2

No. 2:13-cv-246, 2014 U.S. Dist. LEXIS 182735 (S.D. Ohio May 14, 2014), certified question answered, 2016-Ohio-5796, ¶¶ 25–28.

6 No. 16-776, 2016 WL 7336573 (U.S.) (Dec. 14, 2016).

7 The petitioners argued that the Due Process Clause and Contracts Clause of the Federal Constitution had been violated by the Supreme Court of Ohio’s interpretation and application of Ohio’s DMA. 8 1988 Ohio Laws File 314 (B)(I)(a)–(d).

9 Corban v. Chesapeake, L.L.C., No. 2:13cv-246, 2014 U.S. Dist. LEXIS 182735 (S.D. Ohio May 14, 2014), certified question answered, 2016-Ohio-5796, ¶25.

10 Sub. H.B. 288, Ohio Laws File 5960 (2006) (amending Ohio Rev. Code Ann. §5301.56).

11 Id. at (E)–(F).

12 Id. at (H).

13 Id. 14 Sub. H.B. 72, Ohio Laws File 90 (2013) (amending Ohio Rev. Code Ann. § 5301.56).

15 Id. at (E)(1).

5

Alexander T. McElroy is a partner with Lenington, Gratton, & Alexander, LLP, in Canonsburg, Pennsylvania.

Potential Pitfalls for Practitioners

One potential pitfall for practitioners attempting to reunite the severed mineral estate with the surface under the 2006 or 2014 Amendment is the failure to attempt notice by certified

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March/April 2017

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Lawyer Lifestyle Hit the Road: Explore Ohio's Hidden Attractions Looking to get away this spring? Ohio is home to many attractions that are worth exploring. Whether you’re a history buff, an art connoisseur, a sports fan or just interested in Ohio’s history, there’s an attraction for everyone. As the warmer weather rolls in and you’re ready to set yourself free from winter, consider visiting some of these top Ohio attractions:

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Dayton

Wright Cycle Company Complex nps.gov/daav/learn/historyculture/ wright-cycle-company-complex.htm

This complex consists of the Wright Cycle Company building, the Wright–Dunbar Interpretive Center and the Aviation Trail Museum.

You will learn about Dayton’s aviation history and get an overview of the Wright brothers’ lives. While in Dayton, you should also check out the National Museum of the U.S. Air Force with more than 300 planes and missiles.

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Canton

Pro Football Hall of Fame profootballhof.com

The Pro Football Hall of Fame consists of bronzed busts of football legends, helmets, shoes, game balls, replica Super Bowl Rings and an area for visitors to design their own rings.

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3

Wapakoneta

Armstrong Air and Space Museum armstrongmuseum.org

This museum features one-of-a-kind artifacts including the Gemini VIII spacecraft, Neil Armstrong’s Gemini and Apollo spacesuits and an Apollo 11 moon rock. The museum also houses two full-size aircrafts, both of which Armstrong flew.

The museum features seven interactive exhibits, 10 audio/visual elements and three simulators. Visitors can practice landing the lunar module and space shuttle, or docking the Gemini capsule.

The 56-foot dome in the center of the museum houses the Astro Theater, which allows guests to enjoy the night sky or watch the 25-minute documentary about Apollo 11’s lunar landing.

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Appalachian Country appalachianohio.com

Visitors will find winding roads, rolling hills, rivers and creeks, plus some of the best food in the Midwest in Ohio’s Appalachian Country. This 32-county region spans from Ohio’s southwest corner all the way up to its northeast corner, following the Ohio River.

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Peebles

The Great Serpent Mound greatserpentmound.com

The Great Serpent Mound of southwest Ohio averages about 1,330 feet in length and 3 feet in height. Representing an unwinding serpent, the mound is sheathed in mystery and controversy. The serpent is thought by most to be about to swallow an egg. However, many theories abound suggesting various interpretations. See it for yourself to determine your own interpretation.

Toledo

Toledo Museum of Art toledomuseum.org

More than 30,000 works of art represent American and European painting, glass, ancient Greek, Roman and Egyptian works, Asian and African art, medieval art, sculpture, decorative arts, graphic arts, and modern and contemporary art. Don’t miss the glassblowers’ demonstrations in the Glass Pavilion.

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March/April 2017

Ohio Lawyer

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Did You Know?

You Can Improve Access to Justice

by Choosing Where You Bank MARISSA WELDON

O

hio attorneys have an extraordinary opportunity to help achieve meaningful access to justice for all Ohioans. All you have to do is “bank on justice” by choosing a Prime Partner Bank for your interest on lawyer trust accounts (IOLTA) and interest on trust accounts (IOTA).

The Ohio Legal Assistance Foundation, the single largest state funder of Ohio’s legal aids and administrator of the IOLTA/IOTA program, recognizes Prime Partner Banks for their commitment to ensuring that all Ohioans have a legal voice and access to justice. Prime Partner banks offer interest rates on IOLTA/IOTA at or above the state average; provide and support volunteers and/or board members for Ohio’s legal aids; donate or make in-kind contributions to legal aid; and, promote equal access to justice in Ohio. Prime Partner Banks are committed to ensuring the

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success of the IOLTA/IOTA program and increased funding for legal aid.

Interest earned on IOLTA and IOTA remains one of the largest and most critical sources of funding for Ohio’s legal aids. With the crash of the economy in 2008 and interest rates slashed to nearly zero, trust account interest revenues declined by almost 90 percent. Despite signs of general economic recovery and gradual rate increases, interest rates remain very low.

Therefore, by depositing your IOLTA/ IOTA funds in a Prime Partner Bank you are increasing the dollars available to support civil legal aid services in the state and ultimately, increasing access to justice for all Ohioans.

If every lawyer in Ohio chooses a Prime Partner Bank, funding for legal aid in Ohio would increase by roughly 2.5 million dollars annually.

As a result, more children would be able to achieve success in school, more victims of domestic violence would be able to live safely and securely at home, more seniors would be able to access critical medical care, and more veterans would be able to receive the benefits they have earned by their service.

Citizens Bank, Congressional Bank, Fifth Third Bank, Heartland Bank and Key Bank are the Foundation’s current Prime Partner financial institutions. Please consider choosing one of these banks for your IOLTA or IOTA account, or talk to your own financial institution about your IOLTA or IOTA account or about becoming a Prime Partner bank. You can always ask your bank for a better rate.

Remember, when you bank at a Prime Partner Bank, you “bank on justice.”

For questions about your IOLTA account or more information about the Prime Partner program, go to www. olaf.org or contact the Foundation at primepartner@olaf.org.

Author Bio

Marissa Weldon is Associate Director for Legislative and Media Relations at the Ohio Legal Assistance Foundation, Inc., in Columbus.

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Subscriptions are available exclusively to OSBA members starting at $199/year or $20/month (discounts available for multiple users).

For more information visit www.ohiobar.org/ohiodocs today.

CLE Calendar

LiveCLE To register or for more information, call (800) 232-7124 or (614) 487-8585, or visit our website at yourosba.ohiobar.org to view the full calendar and discover more courses.

March 8, 2017

March 31, 2017

Young Lawyer Connect Video Replay* Akron, Columbus, Cleveland, Dayton, Fairfield, Perrysburg, Webcast

Trial Evidence: Artistry and Advocacy in the Courtroom Columbus, Perrysburg, Cleveland, Fairfield

March 10, 2017

Professional Conduct Seminar: Ethics, Competency and Electronic Information Video Replay* Columbus, Fairfield, Akron, Cleveland, Perrysburg, Webcast

April 5, 2017

March 16-March 17, 2017

April 6, 2017

Add a Little Fiction to Your Legal Writing/Quirks and Curiosities of the U.S. Constitution Columbus

Elder Law Institute Columbus, Webcast

Get Organized! Become Laser Focused, Eliminate Paper & Become More Mobile in 2017!

Akron, Columbus, Fairfield, Cleveland, Perrysburg

March 24, 2017

Supreme Court Year in Review Video Replay* Akron, Fairfield, Cleveland, Perrysburg, Columbus

April 13, 2017

Basics of Employment Law Columbus, Cleveland, Fairfield, Perrysburg

April 20, 2017

Family Law Institute Columbus

April 25, 2017

Booze, Bullets and Bingo Columbus, Cleveland, Fairfield, Perrysburg

April 26, 2017

Introduction to Real Estate Columbus, Fairfield, Cleveland

April 7, 2017

Banking Law Institute Video Replay* Columbus, Cleveland

March 30, 2017

April 7, 2017

Environmental Law Seminar Lewis Center

Add a Little Fiction to Your Legal Writing/Quirks and Curiosities of the U.S. Constitution Cincinnati CLE video replays are marked with an asterisk (*).

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CLE VEL A ND

AUGUST 23-25, 2017

The OSBA Annual Meeting and Convention, now known as the All-Ohio Legal Forum, has a new date. Join us Aug. 23-25, 2017 in Cleveland.

All your favorite activities and events, plus much more.