[Cite as State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 2024-Ohio-4451.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY

STATE OF OHIO ex rel. AWMS WATER

SOLUTIONS, LLC, et al.,

Relators,

- v -

MARY MERTZ, DIRECTOR OHIO

DEPARTMENT OF NATURAL 

RESOURCES, et al., 

Respondents.

CASE NO. 2016-T-0085

Original Action for Writ of Mandamus

O P I N I O N

Decided: September 9, 2024

Judgment: Petition granted in part and denied in part

Daniel J. Rudary, John N. Childs, Elizabeth Shively Boatwright, Justin M. Alaburda, and 

Hilary F. DeSaussure, Brennan, Manna & Diamond, LLC, 75 East Market Street, Akron, 

OH 44308 (For Relators).

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, 

Columbus, OH 43215; John K. McManus and Brett A. Kravitz, Assistant Attorneys 

General, Environmental Enforcement Section, 30 East Broad Street, 25th Floor, 

Columbus, OH 43215 (For Respondents).

MARY JANE TRAPP, J.

{¶1} This matter is before the court on remand from the Supreme Court of Ohio. 

See State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 2024-Ohio-200. After this court 

granted judgment as a matter of law in favor of respondents, Mary Mertz, Director, Ohio 

Department of Natural Resources (“ODNR”), et al. (collectively “the Division”). See State 

ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 2022-Ohio-4571 (11th Dist.), the high 

court reversed this court’s opinion and judgment. 
2

Case No. 2016-T-0085

{¶2} Pursuant to the Supreme Court of Ohio’s remand order, this court must 

weigh the parties’ relative evidence to determine whether relators, AWMS Water 

Solutions, LLC, et al. (collectively “AWMS”), through the Division’s September 2014 

shutdown order (“Suspension Order”), suffered a categorical taking and/or, in balancing 

the relevant Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (2005) factors, 

engaged in a partial, regulatory taking of subject leased property. Mertz, 2024-Ohio-200,

at ¶ 31. 

I. Synopsis of Ruling

{¶3} In 2014, AWMS began injecting wastewater brine pursuant to permits 

issued by the Division. After induced seismic events were traced to AWMS’ primary 

injection well, the Division issued the Suspension Order, which was not lifted on that well 

until May 2021. In the interim, AWMS filed a petition for writ of mandamus asking this 

court to find the order effected an unconstitutional taking of its leasehold. The action 

requested that we order the Division to file appropriation proceedings to justly 

compensate the company for its lost earnings resulting from the Suspension Order. 

{¶4} After lengthy legal proceedings, this court has considered the evidence 

submitted by both parties. We conclude a categorical taking did not occur, but a partial 

regulatory taking occurred as to the primary well. The weight of the credible evidence 

does not support the conclusion that AWMS lost all economically viable use of the 

leasehold; indeed, the Division produced evidence that AWMS could utilize the leased 

property in alternative, reasonable manners that would allow it to again generate income.

{¶5} We determine, however, the weight of the credible evidence supports 

AWMS’ claim for a partial regulatory taking because it suffered an economic impact as a 

result of the Suspension Order, which interfered with reasonable, distinct investment-
3

Case No. 2016-T-0085

backed expectations. While the Order was deemed reasonable as a matter of law, the 

reasonableness does not negate the significant impact of the other prongs of a partialtakings analysis. AWMS is entitled, in part, to relief in mandamus. The Division must, 

therefore, proceed to commence an appropriation action in the Trumbull County Probate 

Court for that court to determine just compensation.

II. Introduction

{¶6} After leasing acreage in Weathersfield Township, Trumbull County, Ohio, 

AWMS sought and obtained two Level II injection well permits to inject wastewater brine 

deep into the subsurface areas of the leased property. To obtain the permits, AWMS was 

required to follow specific statutory procedures and submit to significant governmental 

oversight. The oversight was premised upon certain inherent risks attendant to injecting 

wastewater, not the least of which is the risk of inducing earthquakes. Shortly after

injection commenced, two seismic events took place – the first, a 1.7M event (“M” = 

“magnitude”); the second, a 2.1M event. 

{¶7} The seismic events prompted the Division to issue suspension orders on 

both wells. Shortly thereafter, the shallower of the two wells, AWMS #1 Well was allowed 

to continue operation (which AWMS ultimately closed due to economic losses), but the 

second well, AWMS #2 Well, remained closed. Although AWMS attempted to meet the 

Division’s requests for a restart plan of the second well, the Suspension Order remained 

active. After unsuccessfully challenging the Suspension Order, AWMS filed the instant 

action seeking an order requiring the Division to file appropriation proceedings based 

upon an alleged unconstitutional taking requiring just compensation. 
4

Case No. 2016-T-0085

III. FACTUAL AND PROCEDURAL BACKGROUND

{¶8} Relator, AWMS, is a company involved in disposing wastewater from oil and 

gas production sites as well as drilling sites. Respondents are Mary Mertz, the Director 

of the Ohio Department of Natural Resources (“Director”); the ODNR; Richard Simmers, 

the former Chief of the Division of Oil and Gas Resources Management; and the Division.

{¶9} AWMS secured a lease on 5.2 acres of property (“the Site”) in an industrial 

area in Weathersfield Township, which it acquired for the purpose of constructing and 

operating salt-water injection wells, also known as Class II disposal wells. The Site is 

located in the urban area of Weathersfield Township, near the city of Niles. Schools, 

residences, the Mineral Ridge Dam, a fire department, a hospital, and other infrastructure 

are within three miles of the Site. 

A. AWMS APPLIES FOR PERMITS

{¶10} On December 23, 2011, AWMS applied to the Division for permits to 

construct the wells, designated AWMS #1 Well and AWMS #2 Well. At the time AWMS 

submitted its applications for drilling permits, it had invested approximately $100,000 into 

the development of the Site. The Division’s procedure for obtaining authorization to 

operate a Class II injection well is a two-step process. First, an applicant must apply for 

a permit to drill and construct a Class II injection well, and second, the applicant must 

apply to inject into the well.

{¶11} Also, between March and December 2011, six seismic events of varying 

magnitudes were detected in Youngstown, Ohio, near an injection well designated 

“Northstar #1,” operated by a third party not connected to this matter. On December 24, 

2011, a 2.7M earthquake was recorded within one mile of the Youngstown well. After 
5

Case No. 2016-T-0085

reviewing the seismic data, the Division found that Northstar #1 Well likely induced the 

earthquake. 

{¶12} On December 31, 2011, one day after Northstar #1 Well voluntarily ceased 

operations at the Division’s request, a 4.0M event was recorded within one mile of the 

well. Northstar #1 Well is located approximately seven miles from the Site. After the 

second seismic event, the Division temporarily halted the issuance of permits through 

November 2012. During the pause in permit issuances, the Division drafted emergency 

rules to protect the public’s health and safety.

{¶13} On July 18, 2013, the Division issued a drilling permit to AWMS. In 

September 2013, AWMS furnished a Confidential Offering Memorandum to potential 

qualified investors to raise the capital to construct the wells on the Site. Among other 

things, including projected production volume of the wells, the Memorandum identified 

“risk factors,” emphasizing that the securities at issue “involve a high degree of risk” and 

prospective investors should be aware of these risks. The Memorandum highlighted the 

“continuing risk” of “seismic events similar to the one that occurred in the Youngstown, 

Ohio area.” 

{¶14} The Memorandum additionally noted that, due to the inherent risks of 

operating a well site, there is a possibility that well operations could be suspended and/or 

terminated by the Ohio Environmental Protection Agency (“OEPA”) and/or the ODNR. 

The Memorandum also outlined certain geologic risks. It stated that AWMS had 

performed no “subsurface testing.” As a result, the Memorandum disclosed that the 

adequacy of the geology and the suitability of the wells “will only be known upon drilling, 

completion, and operation of the wells.”
6

Case No. 2016-T-0085

B. AWMS BEGINS OPERATIONS

{¶15} AWMS #1 Well was drilled to a true vertical depth of 4,403 feet below 

ground surface, and AWMS #2 Well was drilled to a true vertical depth of 8,502 feet below 

ground surface. On March 24, 2014, an operational permit was issued. Full commercial 

operations of the wells commenced in May and June of 2014. AWMS installed four 

seismic monitoring stations for monitoring seismic activity around the Site and the 

surrounding community in accordance with and at the request of the Division.

{¶16} During July 2014, AWMS injected 71,434 barrels of fluid, and, in August 

2014, it injected 54,734 barrels. During the time the wells were operating, AWMS #1 Well 

represented 5% of total injections between the two wells, while AWMS #2 Well 

represented 95% of total injections. AWMS generated a gross income of $242,799 in 

July 2014 and $170,695 in August 2014.

{¶17} On July 28, 2014, a seismic event measuring a magnitude of 1.7 occurred 

in Trumbull County in the vicinity of AWMS’ wells. ODNR did not receive any “felt reports” 

for the July event.1 On August 31, 2014, another seismic event occurred in the vicinity of 

the wells measuring 2.1M. The earthquakes were connected in time and space with 

injections at AWMS #2 Well, and experts agreed that the events were likely induced by 

AWMS’ operations. 

C. ODNR ISSUES SUSPENSION ORDER

{¶18} On September 3, 2014, the Division issued Chief’s Order No. 2014-372, 

amended by Chief’s Order No. 2014-374, ordering AWMS to (1) immediately suspend all 

operations at AWMS #2 Well, and (2) submit a written plan to the Division for evaluating 

1. When a member of the public feels a seismic event, it is known as a “felt event.”
7

Case No. 2016-T-0085

certain “seismic concerns associated with the operation of the AWMS #2 saltwater 

injection well.” The Division also suspended operations at AWMS #1 Well but 

subsequently terminated this suspension in September 2014 after AWMS submitted 

additional information that AWMS #1 Well did not contribute to the earthquake activity. 

{¶19} Following the termination of the order on AWMS #1 Well, AWMS injected 

into AWMS #1 Well from September 2014 until September 2015. The monthly revenues 

generated from the AWMS #1 Well did not cover the monthly expenses incurred to keep 

the facility running. In effect, AWMS was unable to inject the volumes at the AWMS #1 

Well that it expected in its Confidential Offering Memorandum. And, because of the 

Suspension Order, AWMS #2 Well was not operational, and the company was unable to 

generate revenue.

{¶20} AWMS submitted a plan to restart its operations at AWMS #2 Well. The 

Division found, however, that the plan was deficient, “generic and inadequate,” and did 

not support terminating the Suspension Order. AWMS #2 Well was not operational or 

allowed to operate until May 2021, when an order (“Restart Order”) was issued allowing 

AWMS to recommence injection in AWMS #2 Well as long as it adhered to certain 

conditions.

D. ADMINISTRATIVE AND JUDICIAL PROCEEDINGS

{¶21} AWMS appealed the Suspension Order to the Ohio Oil & Gas Commission 

(“Commission”). On February 24, 2015, the Division and AWMS met to discuss resolution 

of the appeal of the Suspension Order. The Division provided AWMS with a list of 14 

criteria consisting of additional tools and/or recommendations for AWMS to consider in 

aid of potentially restarting AWMS #2 Well. 
8

Case No. 2016-T-0085

{¶22} A hearing was held on AWMS’ appeal of the Suspension Order, at which 

the Division’s former Chief, Richard Simmers, issued a report and testified that “AWMS 

has not submitted a plan with sufficient detail or information to minimize risk presented by 

induced seismicity.” Additionally, he testified that if AWMS “presented a very 

comprehensive plan; then it’s possible we would consider that plan.” Experts for AWMS 

testified that, in their view, AWMS’ plan was reasonable but could also not conclude the 

Suspension Order was unreasonable. Still, AWMS’ experts opined that the Order was 

unnecessary.

{¶23} In August 2015, the Commission found former Chief Simmers’ issuance of 

the Suspension Order was not unlawful or unreasonable and affirmed the Division’s 

issuance of the Suspension Order. 

{¶24} AWMS filed an appeal of the Commission’s affirmance of the Suspension 

Order to the Franklin County Court of Common Pleas. In November 2016 and on 

December 20, 2016, ODNR informed AWMS through letters from its counsel that, 

consistent with former Chief Simmers’ testimony at the March 2015 Commission hearing, 

the Division was open to considering a comprehensive plan from AWMS that properly 

minimized risk. 

{¶25} On December 23, 2016, the Franklin County Court of Common Pleas found 

that the Suspension Order was lawful but reversed the judgment of the Commission, 

concluding the Order was unreasonable. The Division appealed this decision to the Tenth 

District Court of Appeals.

{¶26} Meanwhile, on August 26, 2016, AWMS filed the instant petition for writ of 

mandamus alleging the continued enforcement of the Suspension Order had substantially 

interfered with AWMS’ property rights by depriving them of all economically viable use of 
9

Case No. 2016-T-0085

the property. AWMS sought a judgment ordering the Division to commence appropriation 

proceedings for the purpose of awarding it just compensation for the State’s alleged 

taking of its leasehold.

{¶27} In light of the appeal to the Tenth Appellate District, this court stayed the 

underlying proceedings due to the possibility of rendering an inconsistent ruling contrary 

to the jurisdictional-priority rule.

{¶28} On July 31, 2018, in the administrative appeal, the Tenth District reversed 

the judgment of the court of common pleas in part, concluding, inter alia, the lower court 

based its decision on impermissible evidentiary inferences made between experts who 

testified before the Division and the trial court drew conclusions regarding the likelihood 

of seismic risk without reliable evidentiary support. See Am. Water Mgt. Servs., LLC v.

Div. of Oil & Gas Resources Mgt., 2018-Ohio-3028, (10th Dist.). 

{¶29} The Tenth District determined the Suspension Order was reasonable and 

reinstated the same. See id. at ¶ 59. AWMS filed a jurisdictional appeal with the Supreme 

Court of Ohio, and, on November 21, 2018, the Court declined jurisdiction. See Am.

Water Mgt. Servs., L.L.C. v. Div. of Oil & Gas Resources Mgt., 2018-Ohio-4670. On 

December 26, 2018, the Court denied AWMS’ motion for reconsideration. See Am. Water

Mgt. Servs., L.L.C. v. Div. of Oil & Gas Resources Mgt., 2018-Ohio-5209.

{¶30} This court subsequently lifted the stay and proceeded to consider the 

Division’s motion for summary judgment and AWMS’ memorandum in opposition. On 

March 15, 2019, after considering the parties’ filings, this court entered summary 

judgment in the Division’s favor, concluding AWMS failed to establish a genuine issue of 

material fact requiring trial on both their categorical-regulatory takings claim and their 
10

Case No. 2016-T-0085

partial-regulatory takings claim. See State ex rel. AWMS Water Solutions, LLC v. 

Zehringer, 2019-Ohio-923, ¶ 17, ¶ 50 (11th Dist.).

{¶31} AWMS filed a direct appeal to the Supreme Court of Ohio, and, on 

December 2, 2020, the Court reversed this court’s order entering summary judgment. 

See State ex rel. AWMS Water Solutions, L.L.C. v. Mertz, 2020-Ohio-5482. The Supreme 

Court determined there were genuine issues of material fact for trial on both AWMS’ 

categorical-regulatory takings claim and their partial-regulatory takings claim and 

remanded the case to this court for further proceedings. See id. at ¶ 88-89. 

{¶32} Subsequently, on May 21, 2021, Chief Vendel issued Chief’s Order No. 

2021-97, which terminated the Suspension Order, i.e., the Restart Order. The Restart 

Order authorized AWMS to resume injection operations at the AWMS #2 Well to the 

extent it met and maintained certain operational conditions.

{¶33} In light of the Supreme Court’s remand order, the matter proceeded to trial. 

Trial commenced on September 20, 2021, and concluded on October 1, 2021. After trial, 

this court ordered additional briefing on a threshold legal issue of whether AWMS 

possessed a cognizable property interest in its lease such that it could proceed with its 

respective takings’ claims. We determined AWMS did not. See State ex rel. AWMS 

Water Solutions, LLC v. Mertz, 2022-Ohio-4571, at ¶ 104 (11th Dist.).

{¶34} AWMS filed another direct appeal to the Supreme Court of Ohio. The Court 

reversed this court’s judgment, finding that AWMS had established a constitutionallyprotected property interest in its leasehold interest, and remanded for further proceedings. 

See State ex rel. AWMS Water Solutions, L.L.C., 2024-Ohio-200, at ¶ 25-31. Accordingly, 

we proceed to an analysis of the merits of AWMS’ claim. 
11

Case No. 2016-T-0085

IV. MANDAMUS

{¶35} In order for a writ of mandamus to issue, AWMS must establish a clear legal 

right to compel the Division to initiate an appropriation action, the Division’s corresponding 

duty to institute the action, and the lack of an adequate remedy for AWMS in the ordinary 

course of law. See State ex rel. Duncan v. Mentor City Council, 2005-Ohio-2163, ¶ 10.

{¶36} The “standard of proof” is the threshold quantum of evidence that a party 

must establish in order to be entitled to the relief requested. State ex rel. Todd v. State 

Teachers Retirement Sys., 2016-Ohio-5073, ¶ 17 (6th Dist.). The standard of proof 

placed upon a relator seeking a writ of mandamus is heightened. See State ex rel. Doner

v. Zody, 2011-Ohio-6117, ¶ 56. “Parties seeking extraordinary relief bear a more 

substantial burden in establishing their entitlement to this relief.” Id. In a mandamus 

case, a relator must prove its entitlement to a writ by clear and convincing evidence. See 

State ex rel. Summit Cty. Republican Party Executive Commt. v. LaRose, 2021-Ohio1464, ¶ 8. Clear and convincing evidence is “intermediate” evidence, in that it requires 

more than a preponderance of evidence, but less than evidence beyond a reasonable 

doubt. Cross v. Ledford, 161 Ohio St. 469, 477 (1954). “Clear and convincing evidence 

is that measure or degree of proof which will produce in the mind of the trier of facts a 

firm belief or conviction as to the allegations sought to be established.” Id.

{¶37} “[M]andamus is the vehicle for compelling appropriation proceedings by 

public authorities where an involuntary taking of private property is alleged.” State ex rel.

Levin v. Sheffield Lake, 70 Ohio St.3d 104, 108 (1994). “In such actions, the court, as 

the trier of fact and law, must determine whether any property rights of the owner have 

been taken by the public authority.” Id.
12

Case No. 2016-T-0085

V. THE DIVISION’S PARTIAL TAKING ARGUMENT AND NUISANCE DEFENSE

{¶38} The Division has argued that the suspension of AWMS #2 Well was, at 

most, merely a temporary taking and could never rise to the level of a categorical taking. 

Thus, the Division contends we need not consider AWMS’ position that a complete taking 

was effected by the Suspension Order. We do not agree.

{¶39} The Division asserted, during summary judgment, that no categorical taking 

occurred because the Suspension Order did not require AWMS #2 Well to be 

permanently “plugged.” The Supreme Court, however, emphasized “there is no material 

difference between a plugged well and a suspended well – neither can be used.” Mertz, 

2020-Ohio-5482, at ¶ 39. The Division further argued that a restart of AWMS #2 Well is 

entirely within the control of AWMS because the burden was on it, not the Division, to 

submit a restart plan. The Supreme Court found this argument disingenuous because 

“[e]ven if AWMS were to submit another plan, the [D]ivision might again fail to respond to 

it or disapprove of it.” Id.

{¶40} To the extent the Division attempted to limit this court’s analysis at trial to a 

temporary taking, we decline to indulge this invitation. The issue, even after the 

Suspension Order was lifted in May 2021, is not only whether the Suspension Order’s 

effect and scope was temporary, but whether it eliminated all economically beneficial use 

such that it was completely unable to derive any economic benefits from its lease. This 

question is a matter of evidential weight, not a matter of law. We will proceed with an 

analysis of this important issue in this opinion. The Division’s arguments to the contrary 

are unpersuasive.
13

Case No. 2016-T-0085

{¶41} Next, the Division asserts that background principles of property and 

nuisance law are a viable affirmative defense and thus preclude consideration of a 

categorical taking.

{¶42} At the summary judgment stage, the Supreme Court held the Division 

“waived its nuisance defense” for purposes of the appeal on award of summary judgment. 

Id. at ¶ 55. The Supreme Court, however, preserved the Division’s nuisance defense 

upon review of its motion for reconsideration, noting the defense was not waived for trial. 

Id. at fn. 2. We conclude the Division failed to establish the defense such that AWMS’ 

categorical takings claim would require dismissal or judgment as a matter of law.

{¶43} “There is no more impenetrable jungle in the entire law than that which 

surrounds the word ‘nuisance.’” Keeton, Dobbs, Keeton & Owen, Prosser and Keeton on 

The Law of Torts, Section 86, at 616 (5th Ed. 1984). Traditionally, a nuisance is defined 

as “the wrongful invasion of a legal right or interest.” Taylor v. Cincinnati, 143 Ohio St.

426, 432 (1944). “Wrongful invasion” envelops the compromise of one’s use and 

enjoyment of property or of personal rights and privileges associated with the property. 

Kramer v. Angel’s Path, L.L.C., 2007-Ohio-7099, ¶ 15 (6th Dist.) A public nuisance is “an 

unreasonable interference with a right common to the general public.” Brown v. Scioto

Cty. Bd. of Commrs., 87 Ohio App.3d 704, 712 (4th Dist.1993). A private nuisance is 

understood as “a non[-]trespassory invasion of another’s interest in the private use and 

enjoyment of land.” Id.

{¶44} We acknowledge that the public’s welfare is paramount in a matter such as 

this. Consistent with this observation, the Division argues there can be no taking when 

the State acts to abate a nuisance. In Lucas, 505 U.S. at 1029, the Supreme Court of 

the United States recognized that there are certain property-use limitations that “inhere in 
14

Case No. 2016-T-0085

the title itself, in the restrictions that background principles of the State’s law of property 

and nuisance already place upon land ownership” or “by the State under its 

complementary power to abate nuisances that affect the public generally, or otherwise.” 

{¶45} The Division asserts that AWMS’ use of its leasehold, under the 

circumstances, constitutes a nuisance because its operations will (at some point) 

fundamentally cause harm to others. See, e.g., Louden v. Cincinnati, 90 Ohio St. 144, 

152 (1914) (noting that “one may not use his own property to the injury of any legal rights 

to another . . .”). Moreover, the Division underscores, “the constitutional right of the 

individual to use private property has always been subservient to the public welfare under 

Section 19, Article I of the Ohio Constitution, such use is subject to the legitimate exercise 

of local police power pursuant to Sections 3 and 7, Article XVIII of the Ohio Constitution.” 

N. Ohio Sign Contrs. Assn. v. Lakewood, 32 Ohio St.3d 316, 318 (1987).

{¶46} The Division claims that the threat of catastrophic harm – an induced 

seismic event that could destroy basic and necessary infrastructure – or even the 

annoyance of “felt events” constitute sufficient, credible evidence of a nuisance which 

would preclude a categorical taking.

{¶47} Nothing in the evidence indicates AWMS’ injection activities were an 

imminent threat to public health and safety. During the course of its operations, two minor 

seismic events occurred at magnitudes that did not pose a danger to public health, safety, 

or the environment. Moreover, the Restart Order reflects that AWMS #2 is allowed to 

operate to the extent it did not cause an event over a specific magnitude set by regulatory 

authorities. This essentially undercuts, if not refutes, the Division’s argument that the 

Site’s operations are either a public or private nuisance. 
15

Case No. 2016-T-0085

{¶48} AWMS was allowed to move forward with injections in AWMS #2 Well in 

May 2021. The Restart Order was a result of the governing, regulatory body concluding 

that AWMS can safely operate its facility that would not cause a dangerous-magnitude 

event to occur. The Restart Order was issued pursuant to Ohio law governed by R.C. 

Chapter 1509 (controlling the oil and gas sector, which also embraces injection wells of 

the variety AWMS drilled at the Site). “What the law sanctions cannot be held to be a 

public nuisance.’” Allen Freight Lines, Inc. v. Consol. Rail Corp., 64 Ohio St.3d 274, 277 

(1992), quoting Mingo Junction v. Sheline, 130 Ohio St. 34 (1935), paragraph three of the 

syllabus.

{¶49} Furthermore, nothing in evidence demonstrates that the seismic activity 

traced to the injections at AWMS #2 Well resulted in felt events that materially or 

substantially affected any local resident’s enjoyment of his or her property. The events 

connected to the Site in the summer of 2014 were not felt by any members of the public 

and did not approach any level of magnitude that caused even superficial property 

damage. 

{¶50} We therefore conclude that the Division failed to adduce credible evidence 

that AWMS’ operations at the Site created either a public or private nuisance sufficient to 

meet its burden on the affirmative defense. At most, the Division provided speculative 

arguments that continuing injections at the Site could cause a public or private nuisance. 

The issuance of the Restart Order, however, undermines the Division’s current 

postulations. The affirmative defense of nuisance, therefore, is inapplicable to the actual 

facts and circumstances of this case.
16

Case No. 2016-T-0085

VI. REGULATORY TAKINGS DOCTRINE

{¶51} The Takings Clause of the Fifth Amendment to the United States 

Constitution provides that private property shall not “be taken for public use, without just 

compensation.” This clause applies to the individual states by virtue of the Fourteenth 

Amendment to the United States Constitution. See Barber v. Charter Twp. of Springfield,

Michigan, 31 F.4th 382, 387 (6th Cir.2022). Moreover, the Takings Clause applies to both

ownership interests in fee and unexpired leasehold interests. See Alamo Land & Cattle

Co., Inc. v. Arizona, 424 U.S. 295, 303 (1976) (“It has long been established that the 

holder of an unexpired leasehold interest in land is entitled, under the Fifth Amendment

[of the United States Constitution], to just compensation for the value of that interest . . .”) 

(Footnote omitted.)

{¶52} Originally, the federal Takings Clause was thought to apply only to 

situations where the direct appropriation of property or the functional equivalent of a 

practical elimination of an owner’s possession. Lucas v. South Carolina Coastal Council,

505 U.S. 1003, 1014 (1992). The Supreme Court of the United States has recognized, 

however, that the clause may also be applied to overly burdensome governmental 

regulations of property. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)

(“[W]hile property may be regulated to a certain extent, if regulation goes too far it will be 

recognized as a taking”). 

{¶53} The Court has established guidelines for identifying regulations that go too 

far. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-540 (2005). “The rub, of 

course, has been - and remains - how to discern how far is ‘too far.’” Id. at 538. “In 

answering that question, we must remain cognizant that ‘government regulation—by 

definition - involves the adjustment of rights for the public good,’ and that ‘[g]overnment 
17

Case No. 2016-T-0085

hardly could go on if to some extent values incident to property could not be diminished 

without paying for every such change in the general law[.]’” (Internal citation omitted.) 

Id., quoting Mahon at 413.

{¶54} Two forms of regulatory acts are deemed per se unconstitutional takings: 

(1) governmental actions that cause an owner to experience a permanent physical 

invasion of the property. State ex rel. Shelly Materials v. Clark Co. Bd. of Commrs., 2007-

Ohio-5022, ¶ 18, citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,

435-440 (1982); and (2) governmental regulations that completely deprive the owner of 

all economically beneficial use of the property. Shelly, supra, citing Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1019 (1992).

{¶55} Beyond these two narrow categories, temporary takings are governed by 

the standards set forth in Penn Cent. Transp. Co., 438 U.S. 104, Shelly. “Penn Cent.

recognizes an ad hoc, factual inquiry that requires the examination of the following three 

factors to determine whether a regulatory taking occurred in cases in which there is no 

physical invasion and the regulation deprives the property of less than 100 percent of its 

economically viable use: (1) the economic impact of the regulation on the claimant, (2) 

the extent to which the regulation has interfered with distinct investment-backed 

expectations, and (3) the character of the governmental action.” Shelly, supra, at ¶ 19, 

citing Penn Cent. at 124.

VII. ANALYSIS

A. CATEGORICAL TAKING

{¶56} As adumbrated above, a categorical-takings’ claim applies to narrow 

scenarios “where the government has deprived a landowner of all economically beneficial 

uses.” Lucas, 505 U.S. at 1018. Pursuant to Lucas, the essential analysis is whether the 
18

Case No. 2016-T-0085

suspension order effected a “complete elimination of a property’s value.” Lingle, 544 U.S. 

at 539.

{¶57} After the September 3, 2014 Suspension Order was issued, the Division 

issued an amended order which allowed AWMS #1 Well to recommence injecting brine. 

At trial, Dr. Brian Roach, an environmental and natural reserve economist testifying as an 

expert for AWMS, stated:

[R]ight after the suspension of well #2 AWMS went from, at 

the time of the suspension, a profitable enterprise to now, over 

the last seven years, an unprofitable enterprise. Even with 

[the] possibility of operating well #1 that was not sufficient to 

cover their ongoing cost, and they have been essentially shut 

down since 2015 accruing losses and paying some modest 

amount each month to keep the sites active.

{¶58} Dr. Roach testified the goal of his report was to determine, absent the 

shutdown, the volume of brine that would have been delivered to AWMS’ facility at the 

Site. He stated that the key variable in his analysis was how much brine would AWMS 

have been or would be receiving had the Division not issued the Suspension Order. Dr. 

Roach outlined the customer base within AWMS’ region and estimated percentages of 

brine received from Ohio customers and Pennsylvania customers. In doing so, Dr. Roach 

set forth a nine-step methodology for calculating his estimations regarding the profitability 

of the Site without the Suspension Order. 

{¶59} Our task does not require a damages calculation. Rather, we must merely 

decide whether a categorical taking occurred. Hence, we need not indulge in a discussion 

of the estimated or potential profits the Site may have garnered or might be received in 

futuro. Instead, we simply must determine whether, in light of the Suspension Order 

affecting the Site at large, the Division created a categorical taking, i.e., whether the 
19

Case No. 2016-T-0085

Suspension Order completely deprived AWMS of all economically beneficial use of the 

property. We conclude it did not.

{¶60} Andrew Adgate, the Division’s Natural Resources Administrator, testified on 

behalf of the Division. Mr. Adgate has a bachelor’s degree of science and geology and a 

master’s degree in geology and, when he originally began work with the Division, he, 

along with his seven-person staff, oversaw “all of the permitting, reporting, [and] field 

enforcement compliance” regarding, inter alia, Class II injection wells for the Division. Mr. 

Adgate testified to the nuances of the permit process for such wells. 

{¶61} Mr. Adgate additionally testified, after serving in this capacity, he was in the 

emergency-incident response section of the Division. After working in this role for 

approximately one year, he became the Division’s Natural Resources Administrator. In 

this role, he testified he ensures that permittees are in compliance with applicable rules 

and that enforcement amongst permittees occurs in a standard and uniform manner. 

{¶62} With Mr. Adgate’s experience, as well as the foundation for his opinion in 

mind, we acknowledge the Supreme Court, in Mertz, 2020-Ohio-5482, determined certain 

testimony by Mr. Adgate regarding alternative uses did not permit judgment as a matter 

of law in the Division’s favor. Specifically, the Court pointed out:

[the Division] emphasizes that AWMS could use the [Site] to 

(1) conduct saltwater-injection operations at well #1, (2) store, 

recycle, and treat wastewater, and (3) sell byproducts of the 

wastewater. According to [the Division], nothing prevents 

AWMS from continuing those uses. Our concern here, 

however, is not whether AWMS’s property is capable of being 

used, but whether it is capable of being used in an 

‘economically beneficial or productive’ manner.

Id. at ¶47
20

Case No. 2016-T-0085

{¶63} Furthermore, the Supreme Court rejected this court’s analysis that AWMS 

could sublet the property to recoup its losses. Id. at ¶ 48-49. Still, the Court observed 

that Mr. Adgate’s report, while not dispositive as a matter of law, is probative of issues of 

consequence; namely, whether AWMS experienced a total, categorical taking. (“Adgate 

suggested alternative ways in which AWMS could use the property. But because we 

conclude that Dr. Wade’s opinions[, AWMS’ expert in the early stages of litigation,] in his 

report are enough to create a genuine issue of material fact regarding whether AWMS 

suffered a total taking, we need not consider the substance of Adgate’s report.” Id. at ¶ 

50). 

{¶64} Accordingly, Mr. Adgate’s opinions and testimony are competent evidence 

of whether AWMS suffered a categorical taking. With this in mind, we proceed to assess 

the credibility and weight of Mr. Adgate’s report, testimony, and recommendations in 

relation to AWMS’ experts’ assessments.

{¶65} Mr. Adgate noted that the Division possesses primary enforcement 

authority relating to Class II injection wells. In this regard, Mr. Adgate emphasized that 

the Division, in its review of permits, is not concerned with the commercial viability of any 

given site. Instead, such viability is the sole concern of the applicant. Accordingly, the 

permittee, in relation to its speculation for an injection-well site, must evaluate whether its 

assessment of a particular property will redound to its economic benefit. 

{¶66} Mr. Adgate was asked by the Division to provide a report regarding potential 

alternative activities that could be conducted at the Site. He submitted his report in 2017 

and testified at trial that his recommendations and conclusions had not changed as of 

2021. 
21

Case No. 2016-T-0085

{¶67} With respect to AWMS #1 Well, which Dr. Roach (and his predecessor Dr. 

William Wade) asserted had no economic viability, Mr. Adgate testified AWMS could 

apply to obtain a permit to drill deeper. In doing so, AWMS Well #1 would reach into a 

deeper formation for injection. In particular, he testified that AWMS could seek a permit 

to inject into the deeper Clinton Sandstone formation and such a process does not, in the 

instant case, prevent such drilling and injection. 

{¶68} Moreover, Mr. Adgate testified that, in addition to seeking an additional 

permit to drill AWMS #1 Well into a deeper rock stratum, AWMS could also seek to modify 

AWMS #2 Well by “plugging back the existing open hole section and injecting into a 

shallower injection zone.”

{¶69} Further, Mr. Adgate testified AWMS could use a combination of the two 

(non-exhaustive) scenarios to operate and move forward with injections.

{¶70} Finally, Mr. Adgate observed that AWMS could apply for completely new 

permits with the option of drilling new wells. Given the size of the Site, slightly over five 

acres, Mr. Adgate stated the Site was large enough to obtain adequate spacing for 

additional wells.

{¶71} Dr. Roach assessed the economic viability of the Site in relation to the 

Suspension Order. His testimony reflected the economic gains (without the Suspension 

Order) in relation to the losses, in light of the order. Alternatively, Mr. Adgate’s testimony 

did not focus on economic profits and losses, but the availability of reasonable, alternative 

uses of the property considering the parameters of AWMS’ leasehold. And Mr. Adgate 

emphasized that the Division’s concerns in issuing permits focuses upon an applicant’s 

compliance with the statutory and administrative process, not potential economic benefits 

or banes – such considerations are solely within the bailiwick of the applicant. 
22

Case No. 2016-T-0085

{¶72} AWMS did not specifically refute any of Mr. Adgate’s non-exhaustive 

options for utilizing the leasehold in the manners he suggested.

{¶73} With these points in mind, we conclude the Suspension Order did not 

fundamentally deprive AWMS of all economically viable use of its leasehold rights. In 

other words, the order did not completely eliminate the leasehold’s value. 

{¶74} While AWMS would have to modify its approach for injecting brine in view 

of the Suspension Order, it was not precluded from seeking different avenues for utilizing 

its leasehold in a manner consistent with its exclusive purpose. We find Mr. Adgate’s 

testimony credible. Weighing Mr. Adgate’s testimony in relation to AWMS’ evidence, Mr. 

Adgate’s alternative, reasonable options for use of the property militate against AWMS’ 

contrary claims which primarily rely on alleged damages. 

{¶75} AWMS cannot, therefore, sustain its heightened burden to establish, by 

clear and convincing evidence, that it suffered a categorical taking. The Division’s 

evidence on this issue is compelling, persuasive, and is sufficient to overcome AWMS’ 

categorical regulatory takings claim. Judgment on this claim is granted in favor of the 

Division and against AWMS.

B. PARTIAL REGULATORY TAKING

{¶76} As set forth above, even if a party does not suffer a categorical taking, that 

party may still experience a partial taking if, in balancing the three factors set forth in Penn 

Cent., 438 U.S. 104, this court concludes AWMS has met its burdens of production and 

persuasion. See Shelly Materials, 2007-Ohio-5022, at ¶ 19. We shall consider each 

factor in turn.
23

Case No. 2016-T-0085

i. Economic Impact on the Claimant

{¶77} The Supreme Court of Ohio acknowledged that the instant matter is not a 

typical land-appropriation/takings case where an appraiser provides an opinion on the 

value of a fee-simple parcel by looking at comparable properties, sales, etc. The property 

interest at issue is a prospective income-producing leasehold with one permissible use; 

namely, the operation of Class II injection wells. The Court observed that “the lost-netincome approach is a valid method for computing economic impact” in this matter, as is 

the use of a “discounted cash-flow analysis.” Mertz, 2020-Ohio-5482, ¶ 59, 62. Neither 

party objected to the use of these analyses.

{¶78} For AWMS, Dr. Roach created and compared discounted cash flows for two 

projections: (1) an “actual” or “suspension” framework containing only AWMS’ real 

revenue and cost data, reflecting the actual effect of the suspension order on the Site; 

and (2) an “expected” or “no-suspension” framework containing both (a) real revenue and 

cost data and (b) projected revenue and cost data as though the Suspension Order was 

never issued. See AWMS Exhibit 90. Dr. Roach relied on Stephen Kilper and Mark 

Cawthorne, each of whom are vice presidents of AWMS, for data and assumptions 

utilized in his calculations and estimates.

{¶79} AWMS initially invested approximately $6.1 million capital into the property 

and Site. From that original investment, due to the Suspension Order, it is uncontroverted 

it has generated minimal revenue. According to Dr. Roach, the net present actual value

of AWMS investment (in light of the Suspension Order and the Restart Order in May 2021) 

is $6,105,873. The operating revenue at the date of trial was $922,774; the operating 

costs as of trial was $1,043,122. In total, therefore, AWMS had lost $6,226,221

($6,105,873 plus $1,043,122 minus $922,774). See Exhibit 90, Table 7.
24

Case No. 2016-T-0085

{¶80} Dr. Roach calculated the net present value of expected profits from the 

Suspension Order to the Restart Order as well, i.e., the estimated profit amount AWMS 

would have made had the Division never issued the suspension order. Specifically, he 

acknowledged the initial capital costs of $6,105,873. And, based upon brine prices in the 

regional market, as well as AWMS’ customer base, Dr. Roach estimated AWMS would 

have enjoyed operating revenues of $17,636,293; had the Suspension Order not been 

issued, he estimated the Site’s operating costs would be $4,494,861. Given these 

figures, Dr. Roach concluded AWMS would have experienced a $7,035,559 profit 

($17,636,293 minus $6,105,873 minus $4,494,861).2 Id. 

{¶81} Comparing both the actual projection, wherein AWMS suffered a loss of 

$6,226,221, and the expected projection, where AWMS could garner a profit of 

$7,035,559, Dr. Roach concluded AWMS experienced an economic loss of $13,261,780 

from September 2014 through May of 2021.

{¶82} Roland Blauer, a reservoir engineer whose expertise involves analyzing 

injection-well reservoirs, their performance, production, and optimization, testified on 

behalf of the Division. According to Mr. Blauer, after fluid is injected into a well, the 

bottom-hole pressure will decrease as the fluid dissipates into the surrounding rock 

formation. This allows additional fluid, in this case brine, to be injected.

2. It bears noting that Dr. Roach also calculated estimated operating revenues and operating costs beyond 

the May 2021 restart order through December 2034. These estimations were calculated based upon 

AWMS’ speculation that, without the suspension order, the Site would be fully operational and sustainable 

through 2027 (a total of 13 years of operation). Because the suspension order shut down the Site for six 

years, however, Dr. Roach engaged in a calculation that would allow for the Site to operate fully, given 

assumptions that temporary shutdowns would occur during this period, for 13 years after the restart order. 

Because our analysis will focus only on the time of the Suspension Order, see infra, ¶ 74, we need only be 

concerned with Dr. Roach’s estimations and calculations from the date of the Suspension Order to the date 

of the restart order.
25

Case No. 2016-T-0085

{¶83} Mr. Blauer testified the leak-off rate is the rate that fluids leave a reservoir 

and permit additional fluid to be injected. If the leak-off is high, then an operator can 

replace the fluid with additional fluid. If it is low, the operator must wait for pressure to 

drop in order to inject more fluid into the reservoir. Under the latter circumstance, it may 

take days or longer for the pressure to sufficiently drop to inject additional fluids. Where 

the pressure fails to adequately drop, that is an indication that the well is having difficulty 

accepting additional fluids going forward. By implication, a reservoir is essentially full 

when an operator cannot inject any more fluid than can be received in light of its reservoircapacity restrictions. In this matter, the maximum pressure injection limit is 1,680 PSI.

{¶84} Mr. Blauer engaged in five different injectectivity tests of AWMS #2 Well at 

different times. See AWMS Exhibit LLL, Report of Kenneth J. Malek, CPA, CFF, CIRA, 

CDBV, CGMA and Roland Blauer PE., p. 44.3 Each successive test resulted in higher 

bottom-hole pressure readings and the last tests resulted in the fluid pressure reaching 

near maximum allowable injection pressure. Mr. Blauer testified:

In the world of reservoirs, this is [an] indication that you have 

a small reservoir, you have injected a small quantity of water, 

and you’re seeing a consistent fast rise in pressure . . . [T]hat 

is an indication, again, that the reservoir is filling up. . . The 

permeability has not changed; so, we’re looking at the 

reservoir is resisting the entry of new fluid more here because 

the pressure is higher than here [referring to “AWMS #2 Five 

Single Injection and Fall-Off Sequences” chart]; and it also 

gives us an indication of what the leakoff rate is. Not 

particularly important [that] we know what the leakoff rate is. 

What’s important is the pressure is telling us this reservoir is 

filling and filling very quickly.

3. Kenneth J. Malek, is an expert in, inter alia, evaluating business plans and assessed AWMS’ experts’ 

(Drs. Wade and Roach) valuations and damages estimations. He collaborated with Mr. Blauer in the report 

at issue.
26

Case No. 2016-T-0085

{¶85} Mr. Blauer created an additional chart entitled “AWMS #2 Daily Injection 

Rate and Tubing Pressure Total Four Month Test May to August 2014.” Id. at p. 36. This 

chart was a result of data that AWMS submitted which identified some 169,000 data 

points. Based upon this data, Mr. Blauer testified that, at the outset, injection and shut-in 

pressures in AWMS #2 Well were increasing. And, at the end of August 2014, the 

reservoir did not leak off significantly. According to Mr. Blauer, the reservoir was filling

fast with leak off occurring very slowly. 

{¶86} Mr. Blauer also created a “Hall-Plot” chart which traced the volume of fluid 

versus the pressure in the reservoir. See AWMS’ Exhibit LLL, pp. 47-48. The Hall Plot, 

while used in various circumstances by reservoir engineers, was used in this case to 

determine “the cumulative amount of water injected and the pressure at which it was 

injected.” And Mr. Blauer testified that a Hall Plot may be used to determine reservoir 

capacity as a standard engineering practice.

{¶87} Mr. Blauer stated that higher and higher pressures were required to inject 

fluid into AWMS #2 Well and that if injections continued the well would be unable to 

receive more fluid without exceeding the maximum pressure. In light of the data received 

by Mr. Blauer, as well as his assessment of AWMS #2 Well’s capacity (and AWMS #1 

Well’s capacity), he determined:

[T]he two AWMS wells have severely limited capacity 

to accept additional brine at economic injection rates 

assuming the current regulatory maximum well-head 

pressures are honored.

Current bottom-hole reservoir pressure and pressure 

increases with injection in the AWMS #2 indicates the well can 

continue accepting water for less than a year depending on 

the injection rate.
27

Case No. 2016-T-0085

Estimated future injection volume ranges between 

approximately 90,000 and 160,000 barrels of water based on 

reservoir dynamics for AWMS #2. The range of potential 

volumes is a result of applying different predictive methods. 

However, the two estimates are confirmative and consistent 

with the limited injection potential of the well. These estimates 

are based on data as of August 31, 2014. Additional fluids 

injected into AWMS #2 through September 3, 2014 will not 

materially change the capacity remaining as of September 3, 

2014. We treat 90,000 barrels as the expected (base) case 

additional injections into AWMS #2 and 160,000 barrels as the 

sensitivity test (upside) case additional injections.

The historic pressure and pressure transient behavior 

is so persuasive that the reservoir is nearly at capacity, little 

additional technical evaluation is required.

. . .

Although not as thoroughly investigated as the capacity 

of AWMS #2, the AWMS #1 well has remaining capacity 

between 20,000 and 40,000 barrels assuming injection rates 

do not exceed 100 barrels per day and well head pressures 

remain below allowable limits. During actual May – Aug 2014 

injection periods the average daily injection rate was less than 

100 barrels per day. At that rate, the well head pressure 

quickly reached the maximum allowable surface pressure 

during short injection cycles and leaked off slowly, similar to 

the performance of the AWMS #2. Based on this performance 

ultimate reservoir capacity will range between 20,000 and 

40,000 barrels of brine. The range of ultimate reservoir 

capacity is within normal engineering variation. The important

note is the range is small and clearly indicates the limited 

capacity of the reservoir associated with the AWMS #1 well. 

See AWMS’ Exhibit LLL, p. 49.

{¶88} Extrapolating from Mr. Blauer’s testimony and his substantive conclusions 

in AWMS’ Exhibit LLL, a report submitted into evidence, the ultimate remaining capacity 

of the two wells on the Site range from 110,000 conservatively to 200,000 barrels in a 

best-case-scenario for AWMS (90,000 barrels for AWMS #2 Well and 20,000 barrels for 

AWMS #1 on the “low end” and 160,000 barrels for AWMS #2 and 40,000 barrels for 
28

Case No. 2016-T-0085

AWMS #1 on the “high end”). The economic impact of these estimations range between 

$201,150 (“low end”) to $359,373 (“high end”), depending on the ultimate capacity.

{¶89} With the foregoing in mind, AWMS submitted expert testimony from Tom 

Tomastik, a certified petroleum geologist who formerly worked for the ODNR Division of 

Oil and Gas. Mr. Tomastik testified he is not a petroleum engineer or a reservoir engineer. 

He recognized that, in issuing permits, the Division does not, itself, estimate reservoir 

capacity; instead, this task is the obligation of the operator or permittee. Mr. Tomastik 

testified that Hall Plots are generally used in assessing water flooding and oil production, 

but not typically seen in association with injection wells. 

{¶90} Mr. Tomastik stated he did not estimate the reservoir capacity of the wells 

on the Site and acknowledged he was not trained in the calculation of reservoir capacity. 

He opined, however, that the problems experienced by AWMS #2 Well with increased 

reservoir capacity may be from well-bore damage/buildup which could be treated with an 

acid-wash treatment. Mr. Tomastik merely stated that this scenario “could be a 

possibility.” Mr. Tomastik had no specific data and did not run an analysis to support his 

opinion. And Mr. Tomastik acknowledged that despite recommendations that AWMS 

engage in an acid-wash treatment to AWMS #2 Well, no such treatment was completed 

as far as he was aware.

{¶91} Alternatively, Mr. Blauer opined that the treatment and filtration done by 

AWMS should have addressed any build-up or contaminants that could have caused wellbore damage. Additionally, he testified that even a very large acid-wash treatment might 

only extend 10 or 20 feet from the wellbore and would not have significant impact on the 

reservoir.
29

Case No. 2016-T-0085

{¶92} Mr. Tomastik also opined that the problems experienced by AWMS #2 Well 

may have been partially due to the light water it was receiving; Mr. Blauer testified, 

however, that when AWMS was able to inject heavier water (i.e., fluid with greater brine 

content), the bottomhole pressure remained high, and the reservoir did not leak-off 

significantly. As a result, Mr. Blauer concluded, irrespective of the weight of the injected 

fluids, the reservoir was close to full.

{¶93} Although we are an appellate court, in this original action we sit as the trier 

of fact. As such, we must weigh and determine the credibility of each witness. In this 

capacity, we must reconcile competing testimony of the respective parties’ experts on 

matters bearing on the ultimate issues before us. Indeed, it is axiomatic that such 

credibility evaluations and the weight, if any, to be accorded the evidence is within our 

sole province. With these guiding points in mind, we conclude:

(1) AWMS did suffer specific economic impact as a result of 

the suspension order.

(2) The evidence submitted by Mr. Blauer, via testimony or 

report, regarding the Site’s reservoir capacity has greater 

credibility than the evidence to the contrary submitted by 

AWMS.

(3) Neither Dr. Roach nor Mr. Tomastik actively tested or fully 

considered the capacity of the reservoirs on the Site.

(4) Mr. Blauer’s testimony was thorough and convincing such 

that this court concludes, while AWMS experienced some 

economic impact, it was not to the extent that Dr. Roach 

estimated and neither Dr. Roach nor Mr. Tomastik in any 

way refuted Mr. Blauer’s testimony.

(5) Accordingly, with respect to the economic impact on 

AWMS, we conclude the Site, conservatively will accept 

110,000 remaining barrels and, at best, will accept 

200,000 remaining barrels.
30

Case No. 2016-T-0085

ii. The Extent to which the Regulation has Interfered with Reasonable and 

Distinct Investment-Backed Expectations (“DIBE”)

{¶94} “The reasonable, investment-backed expectation analysis is designed to 

account for property owners’ expectation that the regulatory regime in existence at the 

time of their acquisition will remain in place, and that new, more restrictive legislation or 

regulations will not be adopted.” Love Terminal Partners, L.P. v. United States, 889 F.3d

1331, 1345 (Fed.Cir.2018). As the Supreme Court of Ohio observed in Mertz, 2020-Ohio5482, “[t]he Federal Circuit has developed three factors to guide a court when conducting 

that inquiry: ‘(1) whether the plaintiff operated in a “highly regulated industry”; (2) whether 

the plaintiff was aware of the problem that spawned the regulation at the time it purchased 

the allegedly taken property; and (3) whether the plaintiff could have “reasonably 

anticipated” the possibility of such regulation in light of the “regulatory environment” at the 

time of purchase.’” Id. at ¶ 64, quoting Appolo Fuels, Inc. v. United States, 381 F.3d 1338,

1349 (Fed.Cir.2004), quoting Commonwealth Edison Co. v. United States, 271 F.3d

1327, 1348 (Fed.Cir.2001).

{¶95} Regarding the first factor, whether AWMS operated in a highly regulated 

industry – AWMS does not deny that it entered a highly regulated industry in this state, 

i.e., the oil and gas industry. This is apparent by AWMS’ compliance with the multi-step 

permit process required by Ohio law, which involves significant administrative oversight. 

The Supreme Court, again in Mertz, recognized this point, id. at ¶ 65, and the evidence 

adduced at trial did not change this conclusion. Indeed, Stephen Kilper, Executive Vice 

President of AWMS Holdings, Inc., testified to AWMS’ recognition that injection-well 

facilities are regulated by the Division as well as the Ohio Environmental Protection 

Agency. 
31

Case No. 2016-T-0085

{¶96} According to Mr. Kilper, all regulations are reviewed every five years and, 

as such, there is an acknowledgement that regulatory changes may be made in the State. 

He noted specific risks attendant to operating injection wells (which are the basis for the 

regulations) such as spill or contamination and geologic risks, in particular induced 

seismicity. Thus, there is no credible question that AWMS was not aware of the inherent 

and significant regulation of the industry into which it was embarking at the time it acquired 

its leasehold.

{¶97} Still, testimony from AWMS’ witnesses clearly established the company had 

a subjective expectation that their operations at the Site would generate a profit; in light 

of the surrounding circumstances of the venture, however, we cannot unequivocally 

conclude this subjective expectation was objectively reasonable. We shall address this 

latter point under the next DIBE factor.

{¶98} Under the second factor of the DIBE analysis, we must consider whether 

AWMS was aware of the problem that caused the suspension order when it leased the 

property on which the Site was constructed. 

{¶99} In September 2013, AWMS issued a Confidential Offering Memorandum to 

prospective investors. See Joint Stipulation No. 54. In the Memorandum, AWMS 

identified certain “risk factors” and it emphasized that the securities at issue “involve a 

high degree of risk” and prospective investors should be aware of these risks. The 

Memorandum highlights the “continuing risk” of “seismic events similar to the one that 

occurred in the Youngstown, Ohio area.” (Referencing 4.1.M event). AWMS was 

consequently not only aware that, even though the Site was not adjacent to the 

Youngstown-event site, there were dangers posed by the operations and, significantly, 

that such dangers were sufficiently foreseeable such that they must be disclosed.
32

Case No. 2016-T-0085

{¶100} The Memorandum also noted that, due to the inherent risks of operating an 

injection well site, there is a possibility that well operations could be suspended and/or 

terminated by the OEPA and/or the ODNR. AWMS was thus aware that its business 

investment was subject to noteworthy oversight and regulation. And, by investing in the 

business, investors were assuming a potentially foreseeable and significant risk.

{¶101} Furthermore, the Memorandum also outlined certain geologic risks. It 

stated that AWMS had performed no “subsurface testing.” As a result, the Memorandum 

disclosed that the adequacy of the geology and the suitability of the wells “will only be 

known upon drilling, completion, and operation of the wells.” 

{¶102} These points indicate that AWMS had no ability to predict that the Site would 

be viable; in effect, investors must “take a chance,” in light of the significant risks, that 

after construction and commencement of operations, the wells would perform without 

potential environmental problems or a catastrophic (or even a minor, but meaningful) 

seismic incident. 

{¶103}Importantly, AWMS leased the property for the limited purpose of drilling 

Class II injection wells and it drilled into the area assuming there would not be a fault line. 

A fault existed and Mr. Kilper admitted that the company “got that wrong.” 

{¶104} Although Mr. Kilper’s testimony reflects a potential change in DIBEs after

AWMS acquired its interest (and after commencement of drilling), the weight of the 

advisements and caveats in the Memorandum clearly and convincingly demonstrate that 

AWMS’ DIBEs at the time it acquired the leasehold were fundamentally tempered by its 

express awareness of the serious risks of a shutdown. In this respect, we conclude the 

weight of the evidence supports the conclusion that AWMS was aware of the problem 
33

Case No. 2016-T-0085

that “spawned the regulation” at the time it obtained its leasehold for the exclusive 

purpose of injecting brine.

{¶105} Notwithstanding, this analysis is not dispositive of whether AWMS’ DIBEs 

were reasonable or unreasonable. In evaluating this question, we move to the third 

inquiry into AWMS’ DIBEs, i.e., whether AWMS could have “reasonably anticipated” the 

possibility of the nature and extent of the Suspension Order in the face of Ohio’s injectionwell regulatory scheme when it secured its leasehold.

{¶106} When AWMS acquired the lease, it did not (nor could it) anticipate that the 

Division would effectively “stonewall” its efforts to comply with the Division in interest of 

either lifting or modifying the suspension order. We recognize that the Supreme Court of 

Ohio has previously held in Mertz, 2020-Ohio-5482, that the Division neither engaged in 

extraordinary delay nor bad faith in its failure to implement a state-wide policy regarding 

regulation of injection wells such as those at issue. Id. at ¶ 82-86. This does not, 

however, imply that the Division’s acts or omissions in rebuffing AWMS’ attempts to 

submit a restart plan were reasonable.

{¶107} As late as March 2020 (when former Chief Richard Simmers retired), it was 

the Division’s position that AWMS could not resume operations because “the Division had 

[not] received supportive scientific data to address the concerns that the Division had to 

allow reoperation.” The former Chief testified that a core component of AWMS’ restart 

plan – reducing volumes injected or pressures at the wellhead for a period of time after a 

certain level of seismic activity occurs and then allowing volumes or pressures to increase 

at a percentage-based increment after certain periods of time – is an “inappropriate” risk 

mitigation tool for which there is “no scientific basis.”
34

Case No. 2016-T-0085

{¶108} Current Chief Eric Vendel’s Restart Order removed various provisions from 

former Chief Simmers’ plan, including a risk assessment, a principal stress determination, 

a geology review, a seismic survey, a plug back, and well-construction-design 

modifications. Despite testimony regarding the former Chief’s position on risk 

assessments, the Division ultimately determined many of the criteria were “too 

conservative.” Indeed, Ivan Wong, a seismologist testifying as an expert on behalf of the 

Division, expressly rendered this opinion. 

{¶109} As such, Chief Vendel was not of the ostensible opinion that the former 

Chief’s risk assessments were, in part, necessary for AWMS to restart operations. In 

effect, pursuant to the May 2021 Restart Order, AWMS was not required to submit any 

additional information or scientific support for its plan before the Suspension Order was 

lifted in May 2021. The Division’s Restart Order essentially relaxed the burden(s) on 

AWMS to recommence operations. This evidence demonstrates a lack of consistency 

and weighs strongly in favor of AWMS’ position.

{¶110} Moreover, the evidence indicates there was little to no meaningful dialogue 

between the Division and AWMS regarding the company’s plans to resume operations 

once AWMS submitted its plans to restart operations. Mr. Kilper testified that, on 

September 3, 2014, after the second seismic event (the 2.1M event), he and other officers 

of AWMS engaged the Division via phone. According to Mr. Kilper, Ron Klingle, Chairman 

and CEO of AWMS’ parent company, offered to voluntarily suspend operation or reduce 

injection if the Division could provide terms of restarting or resuming operations. The 

Division, however, simply issued the Suspension Order. As part of the Order, the Division 

required AWMS to provide a plan “for evaluating the operation of the AWMS #2 saltwater 

injection well.” See AWMS’ Exhibit HH.
35

Case No. 2016-T-0085

{¶111} Two weeks later, on September 14, 2014, AWMS submitted its restart plan 

to the Division. At an October 31, 2014 meeting with the Division, Mr. Kilper testified that 

operatives for the Division were “not prepared to give any feedback” on a restart of 

operations. The Division simply indicated AWMS’ appeal of the Suspension Order was 

“the right thing to do.” 

{¶112} Moreover, at the October 2014 meeting, Mr. Kilper testified that Division 

officials stated that the standard for restarting was “zero seismicity.” In response to this, 

Mr. Kilper rejoined that if “zero” is the standard, then every injection well in the State 

should be shut down because the Division has no formal standard based upon “zero risk.” 

Mr. Kilper testified that Division officials had no express response to his observation. At 

the conclusion of the meeting, former Chief Simmers stated he would review AWMS’ plan 

for restart “in the next two weeks and get back to you.” Mr. Kilper testified AWMS did not 

receive a response.

{¶113} On February 24, 2015, the parties again met. During this meeting, former 

Chief Simmers provided AWMS with 14 criteria to assist the company in creating a more 

comprehensive restart plan. AWMS officers asked if AWMS met the 14-point criteria, 

would it be permitted to move forward with a restart. Division officials responded in the 

negative.

{¶114} Several days after this meeting, AWMS emailed the Division seeking 

clarification of the Division’s proposed criteria. Robert Warstall, Deputy Chief of the 

Division, responded that AWMS should propose whatever it deemed appropriate. 

Accordingly, in March 2015, AWMS submitted a plan to the Division addressing its 

proposed criteria. Nothing in the record indicates the Division responded to the plan. See 

also Mertz, 2020-Ohio-5482, ¶ 15.
36

Case No. 2016-T-0085

{¶115} Considering the evidence, we conclude that even though AWMS was aware 

it was operating in a highly regulated industry and it was additionally aware of the problem 

that generated the Suspension Order at the time it acquired its property interest, AWMS 

could not have reasonably anticipated the manner in which the Division addressed its 

repeated proposals in light of the regulatory environment at the time it acquired its 

leasehold. The last point is critical because the Division’s acts or omissions, in the face 

of AWMS’ apparent cooperation with the Division’s orders and requests were not only 

unhelpful, but arguably obstructive. 

{¶116} The Supreme Court of Ohio in Mertz, 2020-Ohio-5482, at ¶ 69 stated, 

“AWMS could not have reasonably anticipated when it acquired its leasehold interest that 

the state’s inconsistent regulatory approach or its lack of responsiveness to AWMS’s 

attempts at remediation would leave AWMS in limbo for years with an indefinite 

suspension of its operations.” Thus, the court concluded that “AWMS has demonstrated 

a material issue of fact that the division’s suspension of operations at well #2 interfered 

with AWMS’s reasonable investment-backed expectations” and it reversed this court’s 

granting of summary judgment on this factor. Id. at ¶ 70.

{¶117} Moreover, in Mertz, the Supreme Court also highlighted the Division’s lack 

of direction and decisiveness in its management of the injection-well industry irrespective 

of the predictable and consistent nature of the regulatory scheme to which AWMS 

adhered. The Court observed:

At the time AWMS acquired its leasehold interest, AWMS 

could not have anticipated that the state would waver between 

a case-by-case approach and a statewide approach to 

addressing induced seismicity while rebuffing AWMS’s 

attempts to meet the state’s inchoate regulatory expectations. 

The parties do not dispute that at the time AWMS obtained its 

leasehold in December 2011, the division had not established 
37

Case No. 2016-T-0085

its approach to managing induced seismicity. When the 

division first issued its suspension orders in September 2014, 

it put the onus on AWMS to “submit a written plan to the 

Division for evaluating the seismic concerns associated with 

the operation of” well #2. Although AWMS had not received 

direction from the division about what to include in the plan, 

AWMS nevertheless submitted a plan that included several 

proposals to establish certain controls over injections at well 

#2. The division rejected the plan as “generic and 

inadequate.”

Id. at ¶ 67.

{¶118} The foregoing highlights the ambiguity of the Division’s regulatory decisionmaking process. While the Division is entitled to engage in a dynamic or reactive way of 

managing the regulation of the injection-well industry (including recommending a 

moratorium on all activities), it bears emphasis that this management is fundamentally 

part of the administrative oversight process. And it is this very process that informs and 

animates the regulatory scheme to which injection-well speculators are subject.

{¶119} The dissent focuses, not inappropriately, on the Federal Circuit Court of 

Appeals’ opinion in Love Terminal Partners, 889 F.3d at 1345 for the proposition that a 

litigant’s reasonable DIBEs must be principally and inherently premised upon the 

expectation that the regulatory regime existing at the time the litigant acquired its interest 

would remain in place. Here, the regulatory regime did not fundamentally or meaningfully 

change. Still, simply because the regulatory scheme did not change, this does not imply 

the Division’s management of its regulatory scheme was effective, fair, and reasonable. 

The Supreme Court’s observation in Mertz, 2020-Ohio-5482, at ¶ 67, supports this point.

{¶120} The dissent seems to assert that the enforcement policies of the Division 

are unrelated to AWMS’ DIBEs because its DIBEs relate only to the expectation that the 
38

Case No. 2016-T-0085

“regulatory regime” (qua regulations or statues) would remain in place at the time it 

acquired its interest. We take issue with this construction. 

{¶121} While the expectation that the regulations in place at the time AWMS 

acquired its interest would remain in place is a necessary component to the DIBEs 

analysis, the phrase “regulatory regime” envelops more than just the regulations or 

statutes governing the industry. A “regulatory regime” also contemplates the system or 

plans which give effect and meaning to the regulations under consideration. See 

Merriam-Webster Online, https://www.meriam-webster.com/dictionary/regime (accessed 

Aug.14, 2024) (Regime: “A mode or rule of management.”) Thus, it follows that a 

“regulatory regime” involves the regulations, statutes, as well as the actual process of 

“regulating.”

{¶122} Even though the bones of the regulatory scheme did not change and 

remained in place throughout the parties’ lengthy and sometimes tumultuous association, 

AWMS was placed in a position where it had little, if any, direction. The Division provided 

no indication it would ever approve AWMS’ proposals because the Division, itself, could 

not determine what it wanted to do in its management of the industry. This is problematic 

because there was no formal moratorium on injection-well drilling/use at the time the 

shutdown occurred and the Division repeatedly advised AWMS to continue to submit 

proposals (which were either rebuffed or ignored).

{¶123} We recognize that, as the dissent emphasizes, reasonable expectations 

must be measured in relationship to the time AWMS acquired its interest. We also 

recognize that the regulatory regime did not really change from the time AWMS acquired 

its interest and the time it filed suit and beyond. We also, however, maintain that the 

dynamic nature of the process and management of the regulatory scheme cannot be 
39

Case No. 2016-T-0085

separated from the static scheme which exists “on paper.” It is this point that we differ 

with and depart from the dissent’s position.

{¶124} Given the particularities of the testimony and the evidence adduced at trial, 

as well as the Supreme Court’s observations in Mertz, the Division clearly and 

convincingly interfered with AWMS’ DIBEs.

{¶125} The evidence demonstrates that AWMS submitted two plans; the first was 

deemed generic and insufficient (even though the May 2021 restart order reflects the 

Division’s change of position on this dismissive response). And the second plan was 

essentially ignored. Weighing the factors at issue, we find the third factor strongly 

militates in favor of the conclusion that the Division did interfere with AWMS’ DIBEs.

iii. The Character of the Regulation

{¶126}In Mertz, 2020-Ohio-5482, the Supreme Court of Ohio focused on three 

factors emphasized by the parties in its analysis of the character of the suspension order. 

First, whether AWMS was impermissibly “singled out” by the government for unfavorable 

treatment or, instead, was permissibly included within a governmental program aimed at 

“adjusting the benefits and burdens of economic life to promote the common good.” Id. 

at ¶ 72. Second, whether the suspension order bears a “harm-preventing purpose.” Id. 

And the third factor centers on the extent to which the suspension order’s delay related 

to or accompanied the Division’s decision-making process. Id.

{¶127} With respect to the first factor, the Court concluded that “AWMS fails to 

identify anything in the record that affirmatively negates the State’s emphasis on the wells’ 

proximity to population centers. And even if it had done so, there are still enough 

differences between well #2 and the Long Run well [in Washington County] to persuade 

us that the state did not unfairly single out #2.” Id. at ¶ 76.
40

Case No. 2016-T-0085

{¶128} Accordingly, the Court determined there was no genuine issue of material 

fact on the first factor and therefore the Division was entitled to judgment as a matter of 

law.

{¶129} Regarding the second factor, the Court determined “AWMS identifies no 

authority that requires a governmental actor to establish there is an imminent threat of 

harm before the government implements a regulatory action to protect public health and 

safety.” Id. at ¶ 79. Accordingly, the Court, once again, concluded AWMS failed to create 

a material issue of fact on the second factor. Thus, it determined the Division was entitled 

to judgment as a matter of law on the “harm-preventing purpose” factor.

{¶130} Finally, the Court construed “the filing of AWMS’s mandamus petition as 

setting the date upon which AWMS regarded the division as having effected a 

constructive denial of its plans.” Id. at ¶ 85. The Court pointed out that “AWMS cites no 

authority supporting its argument that delays of the lengths that occurred in this case are 

extraordinary under the circumstances.” Id. The Court consequently concluded that no 

genuine issue of material fact remained for trial on the third factor and the Division was 

entitled to judgment as a matter of law on this point.

{¶131}In sum, the Supreme Court held that there was no factual issue for trial on 

whether the character of the Division’s suspension order was reasonable and designed 

to protect the public’s health and safety. Id. at ¶ 86. In light of this conclusion, that issue 

was not a salient subject of litigation at trial.

iv. Balancing the Factors

{¶132}In balancing the Penn Cent. factors, we must “ascertain whether, in light of 

those factors, it is unfair to force the property owner to bear the cost of the regulatory 

action.” Rose Acre Farms, 559 F.3d 1260, 1282 (Fed.Cir.2009). 
41

Case No. 2016-T-0085

{¶133} As discussed above, AWMS was economically impacted by the Suspension 

Order, although not to the extent its experts suggested. On this point, we find Mr. Blauer’s 

testimony more credible than the evidence advanced by AWMS. This factor, to the extent 

limited in our analysis under subsection VII(B)(i) of this opinion, weighs heavily in AWMS’ 

favor. 

{¶134} Similarly, in weighing the three factors emphasized by the Supreme Court 

of Ohio in Mertz, 2020-Ohio-5482, we find AWMS presented strong evidence that, at the 

time it obtained its leasehold, it could not have reasonably anticipated the manner in which 

the Division addressed the Suspension Order in relation to its business enterprise and 

especially in relation to Ohio’s regulatory environment. Although we recognize AWMS 

was aware it operated in a highly regulated industry and was aware of the problems that 

generated the Suspension Order and that such suspension was likely given these 

problems, these factors do not militate strongly for the Division and are less significant in 

relation to what AWMS reasonably anticipated upon obtaining the leasehold. In this

respect, we conclude AWMS presented persuasive and tenable evidence that the 

Suspension Order interfered with its DIBEs.

{¶135} Finally, the character of the Suspension Order was previously deemed 

reasonable, as a matter of law, by the Supreme Court of Ohio. Id. at ¶ 86. The reasonable 

character of the action does not, however, weigh heavily against AWMS’ taking claim. 

But despite the Supreme Court’s conclusion that the character of the regulation was, in 

effect, reasonable, we emphasize that the Division’s orders and administrative decisions 

must be fundamentally consistent. It is at this point that we think the Penn Central factors 

relating to the character of the regulation and the reasonable DIBEs that AWMS was 

required to establish intertwine.
42

Case No. 2016-T-0085

{¶136} The dissent points out that our observation relating to “consistency” is 

somewhat opaque and is unsupported by legal authority. We appreciate the dissent’s 

point, but “consistency,” as it pertains to our analysis, does not necessarily derive from a 

point of “black-letter” law. Instead, it is derived from the factually-driven nature of any 

partial-regulatory takings case. This fact-finding and weighing exercise is fundamental to 

the mandate we were expressly given by the Supreme Court of Ohio.

{¶137} We acknowledge that the dissent’s focus on the Federal Circuit Court’s 

teleological expression of the DIBE analysis expressed in Love Terminal, 889 F.3d at 

1345 is accurate. We nevertheless maintain that this expression is more nuanced than 

simply accounting for whether the regulatory regime at the time the interest was acquired 

changed or remained the same. In our view, it requires an analysis of the management 

as well as the purported and actual decision-making strategies employed by the State in 

light of the backdrop of the regulatory regime. 

{¶138} Although the character of the regulation was reasonable (and this 

conclusion was buttressed by the Supreme Court’s rationale that the delay was not 

excessive and the Division did not act in bad faith), we still maintain AWMS, as would any 

speculator in the industry, had a reasonable expectation, at the time it acquired its 

interest, that the management of the industry would be reasonably predictable and foster 

predictability to the extent a permit-holder complied with the Division’s recommendations. 

In this case, given the evidence adduced at trial, we narrowly conclude that the Division 

did not meet this relatively low bar. 

{¶139} That said, consistency does not imply overall similarity of treatment among 

those who inject brine into the earth with permits. Administrative permits are issued 

without regard to a leaseholder’s interest as long as the administrative criteria are met. 
43

Case No. 2016-T-0085

In short, we do not hold all speculative interest-holders are entitled to redress in 

appropriation.

{¶140} While the Division emphasizes, and we acknowledge, that the State, 

whether in practice or law, is not obligated to usher any private interest holder through 

the obstacles of the administrative process, our record demonstrates AWMS was 

“blocked” in its attempts to remediate the problems the Division identified. Of course, 

neither the Division nor the State at large is obligated to “hold the hand” of permittees as 

they go forth in their injection enterprises. Nevertheless, AWMS offered restart plans that 

were neither addressed nor, in our record, given effective consideration. This is 

especially important considering the “loosened” nature of the Restart Order in relation to 

AWMS’ proposals.

{¶141} Further, the Division vacillated between employing a case-by-case 

regulatory regime versus a state-wide and more objective regulatory management of the 

industry. This is not to say the Division acted improperly in determining which regulatory 

method was more effective. We simply maintain that, in this case, AWMS reasonably 

could not expect the vacillation; its expectations when it obtained its interest were 

consequently interfered with and, in this respect, undermined. Simply put, it was 

reasonable for AWMS to expect to be regulated in the same fashion as other injectionwell operators in the State of Ohio.

{¶142} Again, we recognize, especially given the Supreme Court’s holding, that the 

regulation was reasonable and that the Division did not act in bad faith. Still, AWMS 

offered two restart plans that were essentially disregarded. Although this disregard may 

have been a function of the Division’s purported interest in developing a state-wide policy 

on injection wells, we find the Division’s lack of attention to AWMS’ efforts dismaying. 
44

Case No. 2016-T-0085

{¶143} The matter went to trial. Both parties provided testimony of experts and 

general witnesses. The hazards of trial require a trier-of-fact to assess the weight of the 

evidence. Under the circumstances, and despite the reasonable character of the 

regulation, we conclude AWMS presented clear and convincing evidence that it was 

unreasonably deprived of meaningful consideration of its restart proposals. This 

consideration is the foundation for our observation relating to consistency in treatment. 

We therefore decline to conclude that AWMS was afforded adequate attention in light of 

its efforts to comply with the Division’s requests and recommendations.

{¶144} Although AWMS did not establish a strong and cogent analogy between the 

Site and the Washington County site, see Mertz, 2020-Ohio-5482, ¶ 73-76, the Division’s 

“management” of AWMS’ attempts to comply were less than adequate.

{¶145} We do not know why communications failed between the parties or why the 

Division all but ignored AWMS’ entreaties to consider its restart plans. In any event, our 

evaluation of the evidence demonstrates that, despite the Suspension Order’s inherent 

reasonableness, the Division “dragged its heels” even after AWMS attempted to 

ameliorate the issues identified by the Division.

{¶146} To be sure, public safety is a preeminent concern of any regulatory body. 

These bodies, however, cannot leave a party in regulatory purgatory when that party 

seeks to cooperate in good faith with state decisionmakers.

{¶147} The Supreme Court has explained that “the Penn Central inquiry turns in 

large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact 

and the degree to which it interferes with legitimate property interests.” Lingle, 544 U.S.

at 540. After weighing the Penn Central factors, we conclude that AWMS has established 
45

Case No. 2016-T-0085

a compensable partial, regulatory taking claim. As a result, and to the extent discussed 

in this opinion, it is entitled to relief in mandamus on its partial taking claim. 

VIII. CONCLUSION

{¶148} Based on our analysis and, in particular, our careful review of the evidence 

presented, AWMS has failed to establish, by clear and convincing evidence a credible 

claim for a categorical taking of its leasehold under the relevant dates identified in this 

opinion.

{¶149} AWMS has, however, presented clear and convincing evidence that it is 

entitled to relief in mandamus on its claim for a partial, regulatory taking. It is so entitled, 

pursuant to our analysis from the date of the Suspension Order to the date of the Restart 

Order, i.e., September 2014 through May 2021. Moreover, because this court finds the 

Division’s testimony and evidence significantly credible as it relates to the capacity of the 

reservoirs on the Site, just compensation must be assessed only and insofar as such it 

may be established in relation to this conclusion.

{¶150} Therefore, we grant a writ of mandamus to compel the Division to 

commence appropriation proceedings to determine just compensation to the limited 

extent this court has determined, as outlined in this opinion, AWMS has suffered a partial 

regulatory taking. See State ex rel. Donor v. Zody, 2011-Ohio-6117, at ¶ 86; see also 

State ex rel. Shemo v. Mayfield Heights, 95 Ohio St.3d 59, 69 (2002).

{¶151} Because the Supreme Court remanded this matter for this court to weigh 

the evidence and this court finds the Division’s expert testimony highly credible in relation 

to AWMS’ expert testimony on the Site’s capacity, the Trumbull County Probate Court is 

limited in determining just compensation and may so determine consistent with this 

opinion and judgment.
46

Case No. 2016-T-0085

{¶152} For the reasons discussed in this opinion, AWMS’ petition for writ of 

mandamus is denied in part, as it relates to its claim for a categorical taking; the petition, 

however, is granted, to the extent outlined above, as it relates to AWMS’ partial regulatory 

takings claim.

{¶153}It is so ordered.

EUGENE A. LUCCI, P.J., concurs, 

JOHN J. EKLUND, J., dissents with a Dissenting Opinion.

____________________

JOHN J. EKLUND, J., dissents with a Dissenting Opinion.

{¶154}I respectfully dissent from the majority’s judgment because it is based on a 

finding that AWMS suffered a partial taking under the balancing tests mandated in Penn 

Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). and State ex rel. AWMS 

Water Sols., L.L.C. v. Mertz, 2020-Ohio-5482 (“Mertz [2020]”).

{¶155} Those decisions require that we review and weigh the parties’ evidence, 

decide whether AWMS suffered a total taking and, if not, that we balance the factors set 

forth in Penn Central to determine whether it suffered a partial taking.

{¶156} The majority opinion’s first 92 paragraphs conclude there was no total 

taking. I agree with that analysis and conclusion. 

{¶157}It also finds that AWMS suffered an adverse economic impact from the 

suspension order at issue and defines its scope, thereby satisfying the first of Penn 

Central’s three factors for analyzing whether a partial taking occurred. I agree with that 

analysis and the conclusions drawn from it. 
47

Case No. 2016-T-0085

{¶158}It is the majority’s analysis of, and conclusions on, Penn Central’s second 

and third factors with which I disagree. Those factors are whether the State interfered 

with reasonable, distinct investment-based expectations, and the “character” of the 

regulation complained of.

Interference with reasonable, distinct investment-backed expectations

{¶159}In the words of the Federal Circuit Court of Appeals (embraced by the Ohio 

Supreme Court in Mertz [2020]), analysis of this factor “is designed to account for property 

owners’ expectation that the regulatory regime in existence at the time of its acquisition 

will remain in place, and that new, more restrictive legislation or regulations will not be 

adopted.” Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed.Cir. 

2018).

{¶160}In Mertz [2020], the Ohio Supreme Court used the three-part test the 

Federal Circuit uses to guide that inquiry. Essentially, it is whether the property owner 

who harbored such an expectation was reasonable in its expectation, and turns on at 

least three issues: whether the property owner: 1) operated in a highly-regulated industry, 

2) was aware, when it purchased the property interest, of the problem that “spawned” the 

regulation, and 3) could have “reasonably anticipated the possibility of such regulation in 

light of the regulatory environment at the time it acquired the property interest.” 

(Emphasis added). Mertz [2020] at ¶ 64. 

{¶161}I agree that the evidence in this case weighs heavily against AWMS on the 

first two parts of the analysis.

{¶162}It weighs against AWMS on the third, too, for at least three reasons. 
48

Case No. 2016-T-0085

Love Terminal

{¶163} First, the expectation that Love Terminal instructs us to account for was not 

impaired in any way, i.e., the expectation that the regulatory regime existing at the time 

AWMS acquired its interest would remain in place. Both the statutory and regulatory 

aspects of that regime did so remain and did not change throughout AWMS’s dealings 

with the Division.

{¶164} The majority views Love Terminal’s guidance as more “nuanced” than this. 

The majority opinion suggests that the “nuance” in reviewing the regulatory regime in 

place at the time a property interest was acquired “requires an analysis of the 

management as well as the purported and actual decision-making strategies employed 

by the State in light of the backdrop of the regulatory regime.” (Majority Opinion at ¶ 137).

{¶165} That expression of a court’s scope of review over administrative/executive 

functions is dangerously overbroad and the majority opinion offers no legal authority for 

such sweeping disregard for the principles of separation of powers. It also would handcuff

the government’s ability to react to, and act upon, developments in a regulated field that 

may not have been contemplated when a regulatory scheme was first put in place. 

{¶166} The majority’s formulation would result in the courts taking an improper role 

in the administration of executive functions. We are not called to micromanage the 

execution and enforcement of the laws of the State. Especially where there has been no 

showing of any constitutional violation, any violation of law, or any bad faith. Instead, the 

majority is effectively second guessing the executive branch decision making process 

years after the fact because the Division “vacillated between employing a case-by-case 

regulatory regime versus a state-wide and more objective management.” Id. at ¶ 141. 
49

Case No. 2016-T-0085

Yet, the majority cannot say that the Division acted improperly in determining “which 

regulatory method was more effective.” Id.

{¶167} AWMS signed its lease on December 19, 2011. The parties stipulated to 

certain facts, including the following: seismic events were reported in the Mahoning Valley 

for at least 9 months immediately before that, and on December 24 and 31, 2011 (after 

the lease was signed) more were reported (and all these events were reported widely in 

the media). After the lease was signed, two regulatory (and no relevant statutory) 

changes occurred in Ohio. They both were based on those 2011 events: a moratorium 

on issuing new injection well permits and emergency regulations mandating additional 

seismic monitoring near injection wells. 

{¶168} There was no evidence that these changes affected AWMS’s ability to 

operate (it had only just applied for its first of two necessary permits and was months 

away from raising the capital it needed to build its facilities). Indeed, these changes were 

not the regulatory actions about which it has complained in this action. 

{¶169} Preliminarily, it is axiomatic that “the law presumes that every man knows

the law [and] is bound by it whether he actually knows it or not[.]” Foster v. Scarff, 15 

Ohio St. 532, 537 (1864). On this basis, we can and should presume that AWMS was 

aware of the laws governing the industry into which it entered at the time it acquired its 

interest. These laws and regulations did not meaningfully change throughout the course 

of this case. AWMS could not reasonably expect to be treated differently than it was

actually treated by the Division.

{¶170} There was no evidence adduced at trial that Ohio’s laws, regulations, or 

practices for suspending, revoking, reviving or renewing injection well permits changed 

after AWMS signed its lease - not the substantive grounds for suspending or revoking 
50

Case No. 2016-T-0085

and not the procedures used in doing so. The record therefore reflects that the legislative 

and regulatory environment in place in December 2011 (insofar as it bore on AWMS’s 

petition in mandamus, and whether we approve of it or not) was the same as the one 

pursuant to which the Division later issued the suspension order. The only material thing 

that changed was that more earthquakes occurred, and that AWMS Well #2 was causally 

responsible for these seismic activities.

{¶171} Second, the only level of “investment-based expectations” that needs to be 

analyzed here is the expectations of AWMS at the time it acquired its leasehold.

{¶172} There was no trial evidence that AWMS had any relevant expectations on 

December 19, 2011, reasonable or otherwise, about whether the regulatory regime in 

existence at the time of its acquisition regarding operating injection wells would remain in 

place, or that new, more restrictive legislation or regulations to which it was subjecting 

itself would not be adopted.

{¶173} Mr. Kilper testified that, based on his personal experience with 

environmental authorities in the coal mining business, blasting, and operating landfills,

his expectation was that regulators would “work with” a regulated entity to develop and 

implement risk-minimizing strategies. Tr. Vol. 2 at 196. That proves nothing, clearly and 

convincingly, about AWMS’s expectations concerning changes or additions to, or 

enforcement of, regulations or statutes in the world of brine-injection wells in December 

2011, or any other expectations with which we are concerned here. On those, the record 

is barren of evidence. Of course it is, AWMS had never drilled a well into which it would 

inject brine waste.

{¶174} AWMS also introduced evidence that it expected to generate revenue and 

profit from operating brine injection wells. The majority opinion foregoes any analysis of 
51

Case No. 2016-T-0085

the reasonableness of those expectations. So do I, because as much as those 

expectations might bear on AWMS’s damages if there was a taking, they have no bearing 

on whether there was a taking. That issue turns not on expectations of profitability, but 

on expectations regarding changes to, or new, more restrictive laws, regulations or their 

enforcement. Of that, again, we have nothing relevant in the record.

{¶175} AWMS had the burden of proving, clearly and convincingly, that it had 

expectations about regulatory and legislative interference with its use of its property, what 

they were and their reasonableness. It did not offer clear and convincing evidence on 

any of these issues.

{¶176} Without proof of what those expectations were, we should not rule that they 

were reasonable or that the State interfered with them. 

{¶177}In support of its conclusion that on December 11, 2011, AWMS did have 

distinct, investment backed expectations worthy of considering, the majority opinion 

contends and finds, without citing any evidence, that AWMS “did not (nor could it) 

anticipate the Division would effectively ‘stonewall’ its efforts to comply with” the Division’s 

interest in a safe re-start. In Mertz [2020], the Ohio Supreme Court put it slightly 

differently: On December 19, 2011, “AWMS could not have anticipated that the State 

would waver between a case-by-case approach to addressing induced seismicity while 

rebuffing AWMS’s attempts to meet the State’s inchoate expectations.” Mertz [2020] at 

¶ 67. 

{¶178} There are several gaps in this logic, in my view. First, the majority opinion 

cites no record evidence of what AWMS did not anticipate about anything, much less how 

the State would react to events of induced seismicity from the AWMS wells. Of course 

not; there was none. Second, it does not answer the critical question: what were AWMS’s 
52

Case No. 2016-T-0085

expectations in December 2011? There was no clear and convincing proof at trial on that 

issue either. Courts should not suppose what parties knew, anticipated, or expected (or 

did not). The parties must prove it.

{¶179} Third, the Ohio Supreme Court already has held, in analyzing the “character 

of the regulation” at issue, (see infra at ¶ 189) that as a matter of law, the State’s delay in 

reviewing AWMS’s restart plans was not “extraordinary.” Mertz [2020], para. 85. How is 

it that a business “could not” anticipate “ordinary” delays (whether born of “stonewalling”, 

“rebuffing”, “red tape”, “overabundance of caution” or anything short of bad faith) in its 

efforts to obtain or regain licensure? Again, nothing in the record suggests, much less 

proves, much less clearly and convincingly so, that it did not, much less could not, so 

anticipate.

{¶180} More fundamentally, the real threshold question before us is what AWMS 

did expect when it acquired its leasehold interest, not what it could not anticipate. We 

need to know what its expectations were and whether they were reasonable before we 

can say whether the State interfered with them and whether any interference with them 

entitles it to relief. It was AWMS’s burden to prove those things, and it failed to do so.

{¶181} Finally, the majority opinion’s finding proceeds from the proposition that the 

Division did, indeed, “stonewall” AWMS. It was not proven clearly and convincingly that 

the Division did, and no law cited by the majority supports such a conclusion.

{¶182} On September 3, 2014, prior to the suspension order, the parties met by 

telephone at AWMS’s request. For what? To begin a negotiation. AWMS tried to avoid 

the suspension order altogether by offering to reduce injection volumes or to suspend its 

operations completely if the Division would forgo a suspension order and tell it what 

modification(s) for injecting brine would be acceptable for re-starting full operations. Why 
53

Case No. 2016-T-0085

would a business be willing, and voluntarily offer, to stop or curtail operations in exchange 

for staving off a suspension order from the government? The question almost answers 

itself: To avoid the administrative hassle of having one’s business under the thumb of a 

government order. That strategy is a paradigm (and not a bad one) for anyone who knows 

that government orders, once in place, create uncertainty over whether and on what terms 

they might ever go away. Any business that has contrary expectations has unreasonable 

expectations.

{¶183} The negotiation strategy went moderately well at first. Although the Division 

declined the initial offer and issued the suspension order, within 15 days (and after AWMS 

presented evidence that Well #1 was not the culprit inducing seismicity) it lifted the

suspension order as to that well. That is hardly “stonewalling” much less “bad faith.”

{¶184} AWMS submitted a proposed re-start plan for Well #2, but the Division 

found it wanting. In response, the negotiations continued in a meeting on October 31, 

2014. However, by then, AWMS had filed, on October 2, 2014, an administrative appeal 

of the suspension order with Ohio’s Oil and Gas Commission. The gauntlet had been 

thrown down; the fat was in the fire. AWMS had turned a negotiation into a battle over 

whether and to what extent the State of Ohio could suspend the operation of brineinjection facilities in the interest of preventing induced seismicity. That battle raged until 

late December 2018, kept alive in no small measure by both parties’ refusal to accept 

defeat at every turn (which was their right to do).

{¶185}I recognize, at the October 31, 2014 meeting, in response to AWMS’s 

reiterated request for the Division to tell it what to do to get a preapproved re-start opinion, 

the Division responded: a plan that assures zero seismicity. The majority accurately 

reports AWMS’s response. Essentially: No, thank you. Who was stonewalling whom? 
54

Case No. 2016-T-0085

Or was AWMS taking a chance that the appellate process it had just started would bail it 

out? Either way, the evidence did not show clearly and convincingly that AWMS had any 

expectation that a suspension order would not result in a potentially long, frustrating 

process with attendant delays in its operations. To the contrary, the evidence showed 

AWMS saw it coming, exacerbated it by its obstinance and took repeated steps (however 

unavailing) to avoid it.

{¶186} And, I repeat, there was NO evidence adduced at trial to show what 

AWMS’s “expectations” on this issue were on December 19, 2011. How could there be? 

Nothing in our record suggests, much less proves by any standard, that either the State 

or AWMS had ever been faced with such a record of induced seismicity caused by brine 

injection wells.

Character of the regulation

{¶187} Our record on Penn Central’s third factor also weighs against finding a 

partial taking, contrary to the majority opinion’s assertions. 

{¶188} The inquiry here is, again, three-fold, at least: 1) was the relator singled out 

for unfavorable treatment, 2) did the regulation have a harm-preventing purpose, and 3) 

to what extent did a regulatory delay accompany the government’s decision-making 

process.

{¶189} The Ohio Supreme Court already has held in Mertz [2020] that 1) AWMS 

was not “singled out,” 2) that the Division’s actions had a valid harm-preventing purpose 

even if there was no imminent threat to public safety, and 3) under any discernible theory, 

the delay associated with the suspension order and the State’s non-responsiveness was 

neither extraordinary nor in bad faith given the purpose of the regulatory regime. 
55

Case No. 2016-T-0085

{¶190} Frankly, that should end the discussion of this factor. The Ohio Supreme 

Court held the regulation was reasonable (or, at least, not unreasonable). But, it is not 

the end, because the majority opinion nevertheless brushes it aside with the assertion 

that the “Division’s orders and administrative decisions must be fundamentally 

consistent.” (Majority Opinion at ¶ 135). I confess that I do not know what that means, 

and the majority opinion does not help me much. It offers no legal authority that creates 

such an obligation; nor should there be one since regulatory enforcement decisions are 

inherently fact specific.

{¶191} Moreover, no evidence at trial added to or subtracted from the record on 

which the Ohio Supreme Court reached its conclusion on the character of the regulation. 

If (as the majority opinion at least suggests) “consistent” means that decisions regarding 

permits should be made based on “the administrative criteria” (Id. at ¶ 139), then where 

is the evidence that the Division’s actions in this case were not? There was none. Of 

course there was none; the State of Ohio had not faced repeated incidents of induced 

seismicity in densely populated areas from brine injection before, and so there were no 

benchmarks, laws, regulations, administrative procedures or practices for issuing restart 

orders for permit suspensions. Hence, no inconsistency.

{¶192} The majority discusses the Division’s changing enforcement practices 

between Chief Simmers and Chief Vendel and finds that the Division’s decision to relax 

the regulatory burdens on AWMS demonstrates a lack of consistency in enforcement. 

However, such a conclusion is fallacious because it relies on post hoc ergo propter hoc 

reasoning. That the Division’s ultimate restart order used a more relaxed enforcement 

attitude does not mean that the Division’s first position was incorrect, too conservative, or 

fundamentally inconsistent with enforcement practices and administrative criteria. 
56

Case No. 2016-T-0085

{¶193} The majority opinion falls back on the assertion that the evidence showed 

the Division “blocked” AWMS by not addressing or giving “effective consideration” to two 

restart plans it offered. 

{¶194} There are two fundamental problems with that assertion. First, it proves too 

much. Every property interest holder is “blocked” by government action or inaction that 

disappoints them. Under the majority opinion’s framework, all of them would be able to 

claim that they were not given “effective consideration.” Do we want judges 

micromanaging executive branch (or legislative branch) decisions for the “effectiveness” 

of consideration?

{¶195} Second, the Ohio Supreme Court already has decided that the delays 

asserted to have arisen from that inattention do not form the basis for a taking because 

those delays were not “extraordinary.” In short, it is neither a foundation for asserting a 

taking, nor a taking in and of itself.

{¶196} Third, it also ignores a finer point of the Penn Central analysis – the extent 

to which delays were the result of the Relator’s own actions. Here, there was ample 

evidence at trial that AWMS was equally dismissive of the Division’s proposals for an 

acceptable restart order. 

{¶197} On October 31, 2014, even after AWMS had ignited the administrative and 

civil litigation pyres, the Division suggested a restart plan that assured zero seismicity 

risk. AWMS categorically rejected it. In February 2015, the Division proposed a 

Wilsonian “14 point Plan” for a restart. AWMS rebuffed it out-of-hand. In November and 

December 2016, the Division told AWMS that it still was open to considering other 

comprehensive restart plans. AWMS’s response? Crickets. 
57

Case No. 2016-T-0085

{¶198} What is more, AWMS was afforded the full, due administrative process to 

which every party is entitled throughout this dispute and used it. In early October 2014, 

it filed a statutory administrative appeal of the suspension order. In 2015-2016, it filed 

and successfully prosecuted an appeal from that proceeding to the Franklin County Court 

of Common Pleas. In August 2016, it filed the mandamus petition before us. In 2017, it 

defended itself (albeit unsuccessfully) in the Division’s appeal to the Tenth District from 

the Franklin County Common Pleas Court’s 2016 decision and sought (again, 

unsuccessfully) review (and reconsideration) in the Ohio Supreme Court from the Tenth 

District’s decision.

{¶199} But, the majority opinion holds that AWMS was not “afforded adequate 

attention” and declares this to be “dismaying.” (Id. at ¶ 142-143). I have little doubt that 

AWMS was dismayed, too. But, I am not familiar with that concept as a standard upon 

which to decide whether government’s law and regulation enforcement actions have 

resulted in an unconstitutional partial taking, when the complainant had and exercised full 

due process of law. 

{¶200} There are cases that suggest, if not hold, that delays in governmental 

administrative decision-making can form the foundation for a partial taking claim. See 

First English Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., Cal., 482 

U.S. 304 (1987). In such cases, a taking only accrues when the delay becomes 

unreasonable. Resource Investments, Inc. v. United States, 85 Fed.Cl. 447, 497 (2009).

{¶201} However, such delays are difficult to define, are fact-based inquiries, and 

the length of the delay alone cannot establish that an extraordinary delay exists. Id. at 

498. Indeed, extraordinary delay “rarely travels without bad faith.” Id. at 499.
58

Case No. 2016-T-0085

{¶202}In this case, the Ohio Supreme Court has found on review of our first grant 

of summary judgment that there was no bad faith. Mertz [2020] at ¶ 83-84. The Court 

also concluded that there was no extraordinary delay, saying that a delay of 45-months 

is not on its face extraordinary, particularly in cases involving complex regulatory 

schemes. Id. at ¶ 85; see also Williamson County Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, (1985) (eight years is insufficient delay to effect a 

taking); Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360, 1367 (Fed. Cir. 

2004) (45 months’ delay is not extraordinary); Wyatt v. United States, 271 F.3d 1090, 

1098 (Fed.Cir. 2001) (nearly ten-year permitting process including seven years’ delay is 

not extraordinary); 1902 Atlantic Ltd. v. United States, 26 Cl.Ct. 575 (1992) (five years’

delay not extraordinary). There was no additional evidence of extraordinary delay or bad 

faith presented at trial, and the majority, despite its references to “stonewalling,” does not 

suggest any exists. 

{¶203} The only evidence at trial on the issue already had been part of the record 

at the summary judgment stage that the Ohio Supreme Court reviewed. In any event, the 

cases in this line also hold that, absent a total taking, the plaintiff in a case asserting 

extraordinary delay still must carry its burden under the Penn Central factors. Appolo

Fuels, Inc. v. United States, 381 F.3d 1338, 1352 (Fed.Cir. 2009) (“Even if the delay were 

considered extraordinary, we have already determined that application of the Penn 

Central factors here does not support a finding that there was a permanent regulatory 

taking”). As discussed above, I would hold that AWMS did not carry its burden under 

Penn Central. What the Division essentially did here was refuse to comply with AWMS’s 

requests for an advanced statement of what the Division would approve as a restart plan. 

That does not rise to the level of singling out AWMS, does not change the suspension 
59

Case No. 2016-T-0085

order’s “harm-preventing purpose,” and does not delegitimize the relationship between 

the Division’s actions and its legitimate regulatory decision-making process.

{¶204} Finally, let us remember that much of the delay complained of here was 

based on the Division’s expressed desire to develop a state-wide plan for minimizing 

induced seismicity risks from injection wells, which delay the Ohio Supreme Court already 

has said was not “extraordinary[.]” Mertz [2020] at ¶ 85.

{¶205}I do not consider this delay to be in any way “extraordinary,” nor do I 

consider the Division’s actions to have been in bad faith. Moreover, the evidence failed 

to prove clearly and convincingly that AWMS had reasonable, distinctive, investmentbased expectations that new, more restrictive legislation or regulations would not be 

adopted in this highly regulated, volatile industry. If they had them, the evidence failed to 

prove clearly and convincingly what they were. There was no evidence that Ohio changed 

its statutory or regulatory scheme or enforcement practices for suspending or restarting 

brine injection activities under state-issued permits from December 2011 until trial. 

Balancing the factors

{¶206} By my count, we have three factors to weigh under Penn Central. Two of 

them are trifurcated. That makes 7 points of analysis:

{¶207} On the first, I acknowledge that AWMS has at least suffered some adverse 

economic impact, thus satisfying the first Penn Central factor.

{¶208} On the second, the extent to which the regulation interfered with Distinct 

Investment Backed Expectations, the majority finds, and I agree, that AWMS was aware 

of the significant regulation involved in its operations, that AWMS was aware of the 

dangers of seismicity involved in drilling and knew that its operations could be suspended 

and/or terminated. Finally, I would find the evidence did not clearly and convincingly 
60

Case No. 2016-T-0085

support a conclusion that the Division stonewalled AWMS or engaged in bad faith in 

issuing its restart order. Therefore, AWMS failed to establish any of the subparts of the 

second Penn Central factor.

{¶209} On the third, the character of the regulation, the Ohio Supreme Court said 

in Mertz [2020] there was no material question of fact supporting this factor of the Penn 

Central analysis. As a result, this issue was not salient at trial and AWMS certainly did 

not establish any of the three subparts of this factor by clear and convincing evidence. 

{¶210} Balancing each of the seven points of analysis leads ineluctably to the 

conclusion that AWMS failed to establish by clear and convincing evidence a partial taking 

under Penn Central.

{¶211} For the foregoing reasons, I would hold that there was no partial taking of a 

property interest and respectfully dissent from the Court’s judgment.