Village of Jewett v. North American Coal Royalty Company et al

Filing 26

ORDER granting 22 Motion to Intervene; granting 23 Motion for leave to file a motion to intervene instanter. Signed by Magistrate Judge Mark R. Abel on 12/09/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Village of Jewett,

:
Plaintiff

North American Coal Royalty
Company, et al.,

Civil Action 2:14-cv-00175

:

v.

:

Judge Graham

:

Magistrate Judge Abel

:
Defendants

ORDER
This matter is before the Magistrate Judge on the State of Ohio’s September 26,
2014 motion to intervene (doc. 22) and its motion for leave to file a motion to intervene
instanter (doc. 23).
The Ohio Attorney General moves to intervene in this action on behalf of the
State of Ohio pursuant to 28 U.S.C. § 2403(b) and Rule 5.1(c) of the Federal Rules of
Civil Procedure. The Ohio Attorney General has an interest in defending the
constitutionality of Section 5301.56 of the Ohio Revised Code, which defendant North
American Coal Royalty Company has challenged.
On February 19, 2014, plaintiff Village of Jewett initiated this action. On its
answer, defendant North American Coal Royalty Company alleged that Ohio Revised
Code § 5301.56, the Dormant Mineral Act (“DMA”), as enacted in 1989, is
unconstitutional. Defendant alleged that because the 1989 version of the DMA did not
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require advance notice and an opportunity to be heard before mineral interest holders
were divested of their mineral interests, it violated Article I, Section 19 of the Ohio
Constitution and the Due Process Clause of the United States Constitution. On May 19,
2013, upon agreement of the parties, the Court ordered a stay of this case. See doc. 19.
On May 30, 2014, the Ohio Attorney General informed the Court that he did not
wish to participate in the case, although he reserved the right to participate in the case
at a later date. Now the Ohio Attorney General asserts that the constitutionality of Ohio
Revised Code § 5301.56 is an issue of statewide concern that requires his participation
and seeks to intervene in this matter.
Defendant North American Coal Royalty Company opposes the motion to
intervene. Defendant argues that State of Ohio seeks to intervene 158 days after
defendant filed and served the State with its answer in which it alleged that the 1989
version of the DMA violated the Ohio constitution and 120 days after the State informed
the Court that it would not participate in this case. Defendant maintains that the Ohio
Attorney General has failed to offer any authority to excuse the untimely motion to
intervene. Defendant also argues that the State’s intervention is unnecessary because
the States interest is the same as plaintiff’s interest in this case. According to defendant,
the State is a landowner that, like plaintiff, has specifically laid claims to oil and gas
rights in Harrison County that are covered by the same oil and gas lease at issue in this
case. Defendant maintains that it is unlikely that the Court will reach the merits of its
constitutional challenge because there are multiple statutory grounds that would allow
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the Court to dispose of this case without adjudicating the constitutional issue.
Defendants further argues that the State has long been aware of the importance of the
DMA and that nothing has changed since the State elected not to participate in May
2014. Defendant maintains that there is not reason why the State should not have to live
with its original decision to not participate in this case.
Under 28 U.S.C. § 2403(b) and Rule 5.1(c), a state has the right to intervene when
the constitutionality of a state statute is challenged. A state has sixty days in which to
intervene after the notice is filed or the court certifies a constitutional challenge. The
State of Ohio notes that the action was stayed less than thirty days after defendant
North American Coal’s filed its answer and counterclaim. On May 19, 2014, the Court
stayed this action, and defendant North American Coal Royalty Company has not
shown it would be prejudiced if the State is permitted to intervene beyond the normal
sixty-day filing period under Rule 5.1.
The Advisory Committee Note to Rule 5.1 indicate that the court may extend the
sixty-day period on its own or on a motion. Here, the State of Ohio seeks an extension of
the sixty-day period. The State of Ohio’s request is GRANTED. Ohio’s interest is limited
to defending the constitutionality of the DMA, and if the Court reaches this issue, Ohio
is permitted to defend the statue’s constitutionality.
Accordingly, the State of Ohio’s September 26, 2014 motion to intervene (doc. 22)
and its motion for leave to file a motion to intervene instanter (doc. 23) are GRANTED.

s/Mark R. Abel
United States Magistrate Judge

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