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The Ohio Dormant Minerals Act:

A Process for Addressing Abandoned

Mineral Interests

OHIO STATE UNIVERSITY EXTENSION

Law Bulletin

OSU EXTENSION AGRICULTURAL & RESOURCE LAW PROGRAM June 2014

he Ohio Dormant Mineral

Act provides a process to

address inactive mineral

interests.

A landowner may seek a

declaration that an inactive

mineral interest has been

“abandoned.”

A mineral interest holder must

take action to protect the

mineral estate.

If a mineral interest is legally

deemed “abandoned,” the

landowner who holds title to

the surface estate gains title to

the abandoned mineral estate.

Landowners and mineral

interest holders should

consult an attorney for

assistance with the Dormant

Minerals Act.

Ohio has long been a mineral producing state. Oil and gas production

dating back to the late 1800s led many landowners to sell their mineral

interests, as Ohio law allows a landowner to separate the mineral rights

and transfer those rights to a different owner. For this reason, a

landowner who holds title to the land might not also hold title to the oil,

gas and other minerals beneath the land.

Even where a landowner separated the mineral estate from a property, it is

possible that actual development of the minerals never occurred or that

some activity took place long ago but has since subsided. This situation

can be problematic when there is renewed interest in the mineral

resources. Who has the right to develop a mineral interest that appears to

be inactive or abandoned?

The Ohio General Assembly enacted the Dormant Minerals Act in 1989 to

address this question. The act provides a procedure for declaring in-active

mineral interests “abandoned.” Unless the holder of the mineral rights

takes action to protect the rights, the law declares the rights abandoned

and reunites the minerals with the surface estate. The landowner then

holds title to both the mineral rights and the land.

Procedure for Declaring Abandonment of Mineral Interests

Ohio Revised Code Section 5301.56 provides the process a landowner

must follow to seek abandonment of the mineral interest. Note that this

procedure does not apply to coal resources or to mineral interests held by

the federal or state government or any political subdivision. For all other

separated mineral interests, the landowner must complete the following

steps.

1. Notice of intent to declare a mineral interest abandoned.

The landowner must serve notice of the intent to have the minerals

declared abandoned to each mineral interest holder, including any parties

who succeeded the original mineral holder.

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OHIO STATE UNIVERSITY EXTENSION

The notice of intent must include:

a. The names of each holder of the mineral

interest and/or the holder’s successors or

assignees.

b. A description of the land subject to the

mineral interest, including the volume and

page number of the recorded deed or other

recorded instrument.

c. A description of the mineral interest to be

abandoned, including the volume and page

number of the recorded instrument.

d. A statement attesting that none of the events

that would preserve the mineral interest have

occurred within the 20 years immediately

preceding the date the notice was served or

published (see list of events in “affidavit of

event preventing abandonment,” below).

e. A statement that the landowner intends to file

an affidavit of abandonment in the county

recorder’s office at least 30 but not later than

60 days after the date the notice was served

or published.

The landowner must send the notice by certified

mail to the last known address of each mineral

holder and must request a return receipt. If the

landowner cannot obtain an address for the mineral

holder or cannot otherwise serve the notice on the

mineral holder, the landowner must publish the

notice in a newspaper circulated in each county

where the land is located.

2. Affidavit of abandonment

The landowner must next file an affidavit of

abandonment with the county recorder where the

land is located. This filing must occur more than 30

days and less than 60 days after completion of the

notification of intent to declare abandonment. The

affidavit of abandonment must include:

e. A statement declaring that the landowner is

the surface owner of the lands that are

subject to the mineral interest.

a. The volume and page number of the

recorded instrument that established the

mineral interest.

b. A statement that the mineral interest has

been abandoned according to Ohio Revised

Code Section 5301.56(B) and that the

landowner has served notice of the intent to

declare abandonment.

c. The facts that show that the mineral interest

is abandoned.

d. A statement that the landowner served

notice of the affidavit of abandonment

upon the mineral interest holder.

Protecting the Mineral Interest

The holder of a mineral interest who has received

notice of an intent to declare abandonment must

take action to preserve the mineral rights. If the

holder fails to take action, the law will deem the

mineral interest abandoned.

The law provides two options for the mineral

holder who receives notice that the landowner is

seeking abandonment of the mineral interest. In

both cases, the mineral holder must notify the

landowner of the action taken.

1. Affidavit to preserve the mineral interest

The mineral holder may file an affidavit to

preserve the mineral interest no more than 60 days

after receiving the notice of intent to declare

abandonment. The affidavit must contain:

a. A description of the claimed mineral

interest and any recording information

supporting the claim.

b. A declaration of the holder’s intent to

preserve the holder’s rights in the minerals.

2. Affidavit of event preventing abandonment

No more than 60 days after receiving notice, the

mineral holder may file an affidavit stating that an

event occurred during the 20 years preceding the

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OHIO STATE UNIVERSITY EXTENSION

the notice of abandonment that would prevent

abandonment. A “savings event” that preserves a

mineral interest can be any of the following:

a. The mineral interest was the subject of a title

transaction filed or recorded in the county

recorder’s office where the land exists.

b. Actual production or withdrawal of minerals

occurred.

c. The holder of the mineral interest has used

the mineral interest for underground gas

storage operations.

d. The holder of the mineral interest has been

issued a drilling or mining permit and an

affidavit has been filed in the county

recorder’s office that includes the name of

the permit holder, the permit number and

type, and a description of the land affected by

the permit.

e. An affidavit to preserve the mineral interest

has been filed.

f. A separately listed tax parcel number has

been created for the mineral interest.

Filing a Notice of Failure to File

If the landowner meets the legal requirements for

filing both the notice of intent to abandon minerals

and the affidavit of abandonment and the mineral

holder does not meet the legal requirements for

preserving the mineral interest, the surface land

owner must file a notice of failure to file with the

recorder of each county where the land is located.

The notice of failure to file must contain:

1. A statement that the person filing the notice

is the owner of the surface of the land subject

to the mineral interest and

2. A description of the surface of the land that

is subject to the mineral interest.

3. The statement: “This mineral interest

abandoned pursuant to affidavit of

abandonment recorded in … [insert volume

and page of public record].”

a. The mineral interest is in coal, or in mining

or other rights connected to an interest in

coal. If a mineral interest includes both

coal and other minerals, a landowner may

use the Dormant Minerals Act to declare

abandonment of the other minerals.

b. The mineral interest is held by the federal

or state government or any political

subdivision or agency.

c. An event preventing abandonment occurred

within the 20 years preceding the date on

which a notice of abandonment is filed and

the mineral interest holder timely filed an

affidavit identifying the event. See

“Affidavit of event preventing

abandonment” above for a listing of the

events that prevent abandonment.

Is the Dormant Minerals Act Constitutional?

A common reaction to the Dormant Minerals Act

is that it is unconstitutional because it “takes” a

mineral owner’s property rights. While no one has

challenged the constitutionality of Ohio’s law, the

United States Supreme Court has upheld a similar

law in Indiana. In Texaco v. Short, the Supreme

Court heard a challenge that Indiana’s Mineral

Lapse Act allows a taking of private property

without compensation. The Court rejected the

argument, saying that states have never been

required to compensate owners for the

consequences of their own neglect in protecting

their property. The Court explained that states do

have the power to require performance of

reasonable conditions to retain a property interest,

that Indiana’s Act sufficiently allows mineral

holders to retain their interests by taking

appropriate steps, and that the law sorts out

interests that are no longer being used while

allowing new owners to step in to those interests.

Given the similarity between the laws of Ohio and

Indiana, it is not likely that a constitutional

challenge to Ohio’s Dormant Mineral Act would

be successful.

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OHIO STATE UNIVERSITY EXTENSION

Dormant Minerals Act Litigation

The recent increase in shale gas development in Ohio

generated many new court cases regarding the

Dormant Minerals Act. For a listing and other

information on Dormant Minerals Act litigation, visit

the “oil and gas law page

” of our “law library” on our

website, http://aglaw.osu.edu.

Consulting an Attorney

It is important to consult with an attorney about rights

and obligations under the Dormant Minerals Act. If a

party does not understand the different property

interests or correctly follow the law, the party may

lose his or her property rights. An attorney can help

ensure that a party meets the requirements of the law.

Sources:

•

Ohio Dormant Minerals Act, Ohio Rev. Code

Ann. §5301.56 (2014)

•

Indiana Mineral Lapse Act, Ind. Code Ann.

§32-23-10-2 (2002)

• Texaco v. Short, 454 U.S. 516 (1982)

Authors:

• Peggy Kirk Hall, Asst. Professor, Agricultural &

Resource Law

• Catharine Daniels and Matt Muzic, OSU Extension

Agricultural & Resource Law Program

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