In the first significant challenge to the Ohio Supreme Court’s ruling in Corban v. Chesapeake Exploration, L.L.C., the Supreme Court of the United States has denied a petition for certiorari in a related case, Walker v. Shondrick-Nau, No. 16-766 (U.S. 2017).

In Walker v. Shondrick-Nau, the surface owner of a severed estate alleged that pursuant to the 1989 Ohio Dormant Mineral Act (“ODMA” or “Act”), the surface owner now owned the mineral interest, even though the mineral-rights owner claimed continued ownership of those rights. The Supreme Court of Ohio, relying on its earlier decision in Corban v. Chesapeake Exploration, L.L.C. holding that the 2006 ODMA applies to all claims asserted after 2006, held that by filing an affidavit to preserve her mineral interest in the recorder’s office, as permitted under the 2006 Act, the mineral-rights owner maintained that ownership.

The surface owner in Walker filed a petition for a writ of certiorari in the Supreme Court of the United States seeking to overturn the Walker opinion. The petition contested Corban – which has been the basis for the ruling in Walker – on two general bases: (1) the 1989 ODMA gave surface owners a vested property interest, and the due process clause of the Federal Constitution precludes retroactively applying a later amendment to divest that property right; and (2) the contracts clause of the Federal Constitution also prohibits this alleged divesting. The mineral owner waived her right to respond to the writ, but on January 17, 2017, the Supreme Court denied the petition.

Despite this clear roadblock for surface owners, this is likely not the end of challenges to Corban. Motions made in ODMA litigation, which remains pending in Ohio’s federal courts, indicate that surface owners will likely move forward and contest the constitutionality of the Corban decision through the lower federal courts.