By Tom Blumer | Special to Ohio Watchdog

Tom Blumer

One of the most offensive U.S. Supreme Court decisions in recent times was Kelo v. New London in June 2005.

In that case, the court ruled that the City of New London, Conn., could condemn houses in the name of urban development, turning the “public use” requirement of the U.S. Constitution‘s Fifth Amendment on its head and leaving property owners around the nation defenseless under federal law to the whims of government planners who supposedly know better.

It should be noted that after the contested properties in the Kelo case were bulldozed in 2006, the area was left to decay for the next five years. Current plans for redevelopment are not in accordance with what the justices laughably described as a “carefully formulated … economic development plan.”

In the wake of Kelo, Ohio‘s Legislature enacted reforms, which were a definite improvement over the old framework. Previously, to contest a taking of land in Ohio at the hands of a government pursuing “economic development,” you had to first give up your property, if an initial court ruling went against you and then sue to get it back. Under the new law, that changed. Now the government can’t take a person’s property, until legal proceedings have fully played out.

What didn’t change, because it wasn’t on anyone’s radar, is something the Columbus Dispatch covered in a very disturbing story on July 29. Under current Ohio law, if you don’t want to give anyone access to the mineral resources on your property, you can’t stop them if most of your neighbors have said it’s OK to do so on theirs:

… under a seldom-used state law … companies (can) add properties to large “ drilling units” even if leases with landowners haven’t been obtained, to maximize access to deeply buried oil and gas. Even the state isn’t immune from the law. The Chesapeake Energy drilling unit of 959 acres in Portage and Stark counties includes a 4-acre corner of Quail Hollow State Park northeast of Canton. That makes it the first state park in line for “fracking.”

Ohio Department of Natural Resources officials say the “unitization” law guarantees fair compensation, and that the properties of unwilling landowners won’t be damaged.

… Ohio’s law lets a drilling company add unwilling landowners’ properties to drilling units as long as the company has leased at least 65 percent of the unit’s acreage.

Whether the property is damaged is not the point. Nor does it matter that “Unwilling landowners will be paid 100 percent of the value of their respective shares of the oil and gas produced from each well.”

What matters is that landowners shouldn’t be forced to give up resources they own.

The way unitization currently operates in Ohio is, as one owner interviewed by the Dispatch contended, “a form of theft.” It shouldn’t be legal, and is a disgraceful usurpation of property rights.

In a mid-July editorial extolling the virtues of America’s legal system in explaining why deep-underground oil and gas drilling activity has accelerated in the U.S. while barely progressing elsewhere, the Wall Street Journal noted that “almost no major country recognizes full subsurface private property rights, except for the United States.”

Ohio is an unfortunate exception. Even though they enthusiastically support expansion of drilling on the properties of willing participants, two libertarian-leaning leaders with whom I have corresponded are outraged that Chesapeake and other energy companies are able to legally extract mineral resources from unwilling owners’ lands.

I also have argued that Ohio needs to proceed aggressively to leverage its natural resources. I’ve never said landowners should be dragged into helping out in that cause.

The law in this area needs to change — and quickly.