[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. AWMS Water Solutions, L.L.C. v. Mertz , Slip Opinion No. 2020-Ohio-5482.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -5482
T HE S TATE EX REL
. AWMS W ATER S OLUTIONS , L.L.C., ET AL ., A PPELLANTS ,

v . M ERTZ , 1 D IR ., ET AL ., A PPELLEES
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. AWMS Water Solutions, L.L.C. v. Mertz , Slip Opinion No. 2020-Ohio-5482.] Oil and gas—Regulatory takings—Summary j udgment—Genuine issues of material fact exist regarding whether state’s suspension of operations at private company’s saltwater-injection we ll constituted total or partial governmental taking of property—J udgment reversed and cause remanded. (No. 2019-0493—Submitted April 7, 2020— Decided September 23, 20 20—

Reconsideration Granted and S lip Opinion Reissued December 2, 2 020. 2 )

1. James Zehringer, the former director of the Ohio Department of Natural Resources (“ODNR”), was originally named as a respondent in this case. Mary Mertz has since replaced Zehringer as ODNR’s director.
2. On September 23, 2020, this court issued its judgment and o riginal opinion in this case. Mertz filed a motion for reconsideration asserting as follows:
[Mertz] does not move to reconsider the judgment. But one stat ement in the opinion is inconsistent with settled practice and settled prece dent. In particular,January Term, 2020

2 A PPEAL from the Court of Appeals for Trumbull County, No. 2016-T-0085 , 2019-Ohio-923.

_________________

F ISCHER , J. {¶ 1} In this regulatory-takings case, appellants, AWMS Water Solutio ns, L.L.C.; AWMS Holdings, L.L.C.; and AWMS, Rt. 169, L.L.C. (colle ctively, “AWMS”), filed a petition for a writ of mandamus in the Elevent h District Court of Appeals to compel appellees, the Ohio Department of Natural Resources (“ODNR”); ODNR’s director, Mary Mertz; ODNR’s Division of Oil and Gas Resources Management (“the divi sion”); and the division’s chief , Richard Simmers (collectively, “the state”), to initiate property-appropriation proceedings. AWMS alleged that it had suffered a taking of its property when the division suspended AWMS’s operation of one of its t wo saltwater-injection wells. The division suspended the operation of the well because of concerns that th e well had induced a pair of earthquakes in its vicin ity. The Eleventh District g ranted summary judgment to the state and denied the writ, determining that AWM S had suffered neither a total nor a partial governmental taking.

[Mertz] moves to have the Court delete its instruction that the appeals court “disregard” the nuisance defense. While the Department may hav e waived that defense for summary judgment—and the appeal to this Court of th at judgment— a defense pleaded in an answer is not waived for trial merely b ecause it was not raised on summary judgment.

See Civ.R. 12(B); First Bank of Marietta v. Cline , 12 Ohio St.3d 317, 318, 466 N.E.2d 567 (1984); Bridges v. Natl. Eng. & Contracting Co ., 49 Ohio St.3d 108, 111, 551 N.E.2d 163 (1990); Gliozzo v. Univ. Urologists of Cleveland, Inc. , 114 Ohio St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714, ¶ 12. A majority of the court agrees with Mertz and therefore grants the motion for reconsideration. See __ Ohio St.3d __, 2020-Ohio-5454, __ N.E.3d __ [page 5] (granti ng motion for reconsideration, with Justices Kennedy, Fischer, and Stewart, JJ., dissenting). This reissued opinion omits the last six words of paragraphs 56 and 88 of our original opinion: “On remand, the court of appeals must weigh the parties’ evidence relating to AWMS’s total-takings cl aim and disregard the state’s nuisance defense.”January Term, 2020

3 {¶ 2} Regulatory-takings cases present “complex and difficult” questi ons that often elude a “simple solution.” State ex rel. R.T.G., Inc. v. State , 98 Ohio St.3d 1, 2002-Ohio-6716 , 780 N.E.2d 998, ¶ 1 ( plurality opinion ). This case is no different. As we will explain below, the court of appeals erre d by entering summary judgment in favor of the state w hen genuine issues of material fact remained regarding whether AWMS had suffered a total or partial taking. Accordingly, we reverse the Eleventh District’s judgment and remand this cause to the court of appeals for further proceeding s consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND A. AWMS obtains permits to dr ill and inject wells, earthquakes ensue, and the division suspends the op eration of one of AWMS’s wells {¶ 3} On December 19, 2011, AWMS, a disposer of waste from oil-and-ga s production and drilling sites, secured a leasehold right to ope rate one or more Class II saltwater-injection wells on 5.2 acres of industrial propert y in Weathersfield Township, Trumbull County, Ohio. A Class II saltwater-injectio n well is used for the purpose of disposing of saltwater, a byproduct of oil- and natural-gas production. A saltwater-injecti on well is designed to isolate the injected fluid in a specific formation and prevent the contamination of freshwater. United States Environmental Protection Agency, Class II Oil and Gas Related Injection Wells , https://www.epa.gov/uic/class-ii- oil-and-gas-related-injection- wells#dw_protect (accessed Sept. 14, 2020) [https ://perma.cc/CH23-MYWS]. The le ase obligated AWMS to pay the lessor a 5 percent royalty on its disposal reve nue. {¶ 4} On December 23, 2011, AWMS applied to the division for permits to construct and operate two wells on the site: “well #1” and “wel l #2.” The next day, a 2.7-magnitude earthquake was recorded in Youngstown, Ohio, ab out seven miles
from AWMS’s Weathersfield Townsh ip site and about one mile from an injection
well known as “Northstar #1” that was not related to AWMS’s wel ls. On December 30, 2011, the division decided that Northstar #1 should be “shu t in”—that is, takenJanuary Term, 2020

4 out of operation. On December 31, 2011, a 4.0-magnitude earthq uake was recorded
within one mile of Northstar #1. T hat earthquake was felt by o ver 4,000 people in parts of northeastern Ohio, west ern Pennsylvania, and Ontario, Canada. The division later issued a report in which it found that a “compel ling argument” existed linking the activities at North star #1 to the two December 2011 earthquakes. {¶ 5} To put these events in context, we note that the United States Geological Survey estimates that more than one million earthqua kes of magnitude 2.0 or greater occur naturally per year globally. Ground Water Protection Council & Interstate Oil & Gas Compact Commission, Potential Injection-Induced Seismicity Associated with Oil & Ga s Development: A Primer on Technical and Regulatory Considerations Inform ing Risk Management and Mitigation 44 (2015), http://www.gwpc.org/sites/defau lt/files/finalpr imerweb.pdf (acc essed Sept. 14, 2020) [https://perma.cc/H9SS-FVKF]. Earthquakes of about magni tude 2.0 or less
are called “microseis mic events” because they usually cannot be felt by people. Id. Buildings usually do not suffer structural damage unless an ear thquake in their vicinity reaches a magnitude o f 5.0, although nonstructural dam age can occur to a building during a 4.0-magnitude earthquake depending on the bui lding’s age and
the materials used to construct it. Id. at 50. AWMS’s expert witness on seismicity, Michael A. Hasting, testified at a March 2015 hearing in this c ase that Ohio probably experiences a couple of 2.0-magnitude earthquakes per day. {¶ 6} Immediately after the December 31, 2011 earthquake occurred, former Governor John Kasich impos ed a moratorium on certain inj ection-well activities, thereby enabling the division to study whether the earthquakes were due to “induced seismicity,” a term used to describe earthquakes tr iggered by human activity. Thereafter, the division adopted rules regarding ind uced seismicity, developed a seismic monitoring net work, hired a seismologist, a nd participated in workgroups to enhance its understa nding of induced seismicity.January Term, 2020

5 {¶ 7} The former governor’s moratorium delayed the processing of AWMS’s application for its operating permits. But on July 18, 2013, the division
authorized AWMS to drill wells #1 and #2. AWMS spent approxima tely $5.6 million constructing its facilities, which included the costs o f wells #1 and #2, infrastructure, drilling, tanks, pumps, installation, and start -up. Well #2, the deeper of the two wells, was drille d to a depth of 8,502 feet, which e nabled it to accept 95 percent of total injections. {¶ 8} In September 2013, AWMS prepared a “confidential offering memorandum” for prospective invest ors in which it offered membe rship shares for $50,000 each. AWMS disclosed severa l investment risks in the m emorandum, including that the government’s regulation of injection wells c ould increase in scope and complexity due to growing industry awareness, that AW MS’s wells
could cause a seismic event similar to the events that had occu rred in Youngstown, and that a seismic event caused by AWMS’s wells could lead to t he suspension of its injection operations. {¶ 9} On March 24, 2014, the division authorized AWMS to commence injections into wells #1 and #2. AWMS’s permits did not contai n express language empowering the division to suspe nd AWMS’s operations due to a s eismic event of a specific magnitude. {¶ 10} The risks that AWMS outlined in its offering memorandum turned
out to be well founded. On Ju ly 28, 2014, a 1.7-magnitude eart hquake was recorded near well #2. And on August 31, 2014, a 2.1-magnitude earthqua ke was recorded in the same area. The Ohio Oil and Gas Commission (“the commis sion”) later determined that the “July and August events were not detectable on the surface, and no property damage was reported.” {¶ 11} On September 3, 2014, the division issued orders requiring AWMS to suspend its operations at wells #1 and #2, stating that the two earthquakes from July and August 2014 were related to AWMS’s operations at the w ells. TheJanuary Term, 2020

6 division also required AWMS to “submit a written plan to the Di vision for evaluating the seismic concerns associated with the operation o f” well #2. Two days later, the division issued new orders clarifying that the seismic events “may”
have been related to AWMS’s wells. The division later determin ed that well #1 likely did not contribute to seismicity in the area, terminated its suspension of operations at well #1, and allowed AWMS to resume operations at well #1. It left the suspension of operations at well #2 in place. {¶ 12} On September 17, 2014, AWMS submitted to the division its writt en plan for well #2. In its plan, AW MS explained that it had not received direction from the division about what to include in the plan. Neverthel ess, AWMS’s plan included several proposals addre ssing the division’s concerns, including a proposal to establish certain operational and management controls over i njections at well #2. The division found AWMS’s plan to be “generic and inadequate.” {¶ 13} On October 2, 2014, AWMS appealed the division’s suspension of operations at well #2 to the commission. During the pendency o f the appeal, AWMS and the division held two meetings during which they discu ssed the induced-seismicity issue. In the first meeting, which took pla ce near the end of October 2014, the division communi cated to AWMS that it was pla nning to adopt a statewide policy on induced seismicity that it expected to be completed in “four to six” months. According to Stephen G. Kilper, vice president of AWMS, the division stated at that meeting that it was not prepared to add ress the suspension order regarding well #2 or AWMS’ s plan until the statewide poli cy was in place. {¶ 14} In the second meeting, which was held near the end of February 2015, the division presented AWMS a single sheet of paper conta ining 14 criteria that the division was considering f or evaluating induced seismi city in its statewide policy. According to Kilper, the division stated at that meeti ng that it would not implement the statewide induced-seismicity policy for at least eight months andJanuary Term, 2020

7 that it would not recommend a policy to ODNR unless the policy “guaranteed zero
risk.” {¶ 15} A few days after the February 2015 meeting, AWMS sent an e-mail to the division seeking clarifi cation of some of the division’s proposed criteria, to which Robert Worstall, deputy c hief of the division, responded that AWMS should propose whatever it thought was appropriate. In early March 20 15, AWMS submitted a plan to the division addressing the division’s prop osed criteria. Nothing in the record suggest s that the division responded to A WMS’s plan. B. Administrative and judicial proceedings regarding the divis ion’s suspension order {¶ 16} On August 12, 2015, the commission issued a decision affirming the division’s suspension of opera tions at well #2. The commission noted that two of AWMS’s expert witnesses had testified that the seismic events i n July and August 2014 were likely associated with well #2. The commission also observed that while both experts had opined that opera tions at well #2 could be saf ely resumed subject to certain conditions, neither could state that the division’s suspension order was
unreasonable under the circumstance s that had led to the order. Turning to the testimony of Simmers, the division’s chief, the commission note d that he favored a temporary cessation of injections at well #2 pending further in vestigation and the implementation of a s tatewide policy on induced seismicity. {¶ 17} In upholding the suspension orde r, the commission acknowledged that under the circumstances, th e division could be perceived a s acting slowly in implementing a statewide policy to address induced seismicity. But the commission stressed that regulating induced seismicity caused b y saltwater injection is a “complicated pro cess that does not happen overni ght.” The
commission also determined that while there had been no evidenc e presented establishing that AWMS had violated the terms and conditions of its permit, the absence of a violation could not justify its lifting the suspen sion in light of theJanuary Term, 2020

8 division’s determination that f urther injection operations at w ell #2 could result in imminent danger to public health and s afety or damage to the en vironment. {¶ 18} AWMS appealed the commission’s order to the Franklin County Court of Common Pleas, which vacated the order. The court dete rmined that although the division had the authority to issue the suspension order, the division’s failure to respond to AWMS’s plan for resuming operations was u nreasonable. The court stated, “[I]t defies logic as to how [the division] can e xpect [AWMS] to formulate and submit a comprehensive plan that would comply wit h a statewide policy that has yet to be formu lated and comple ted.” The court then ordered the parties to submit proposed plans f or restarting operations at w ell #2, which both parties did. Thereafter, the c ourt ordered that operations at well #2 could be
restarted under certain conditions , including that AWMS would c ease injection operations if an imminent threat to public safety and health or to the environment occurred at or near the well. In the event of such a threat, t he court’s order dictated that operations could not be rest arted unless two AWMS represen tatives and two commission representatives deter mined that the threat had passe d. {¶ 19} The division appealed the comm on pleas court’s judgment to the Tenth District Court of Appeals. In a two-to-one decision, the court of appeals affirmed in part, reversed in part, and after modifying the com mon pleas court’s judgment, affirmed the commissi on’s decision and reimposed the suspension of operations at well #2. Am. Water Mgt. Servs., L.L.C. v. Div. of Oil and Gas Resources Mgt. , 2018-Ohio-3028, 118 N.E.3d 385, ¶ 59-60 (10th Dist.) (“ AWMS

I

”). The court of appeals held that the common pleas court had erred in requiring
two commission members to determine that an imminent threat had passed before operations at well #2 could be restarted. Id. at ¶ 28-31. The court of appeals also
held that the court had erred in drawing certain conclusions fr om the record about the seismic risks posed by resta rting operations at well #2. Id. at ¶ 39-49. AWMS appealed the judgment in AWMS I to this court, which denied AWMS’sJanuary Term, 2020

9 discretionary appeal, see 154 Ohio St.3d 1431, 2018-Ohio-4670, 111 N.E.3d 1192, and subsequent motion for reconsideration, see 154 Ohio St.3d 1467, 2018-Ohio5209, 114 N.E.3d 216.
C. AWMS’s mandamus action {¶ 20} On August 26, 2016, while AWMS’s appeal in AWMS I was pending, AWMS filed a petition for a writ of mandamus in the El eventh District to compel the state to commence property-appropriation proceedings . AWMS alleged that the suspension order effected a governmental taking of its property requiring the state to pay AWMS just compensation. In support, AWMS argu ed that it had complied with the relevant law and AWMS’s permit conditions, ha d not endangered public health and safety or the environment, and had been subjected to a “permanent shutdown” (rather than a temporary suspension) of its operations. AWMS emphasized that its mandamus action was not an attempt to challenge the suspension order. {¶ 21} The state moved for summary judgment, asserting that AWMS had failed to establish that a taking occurred. After the Tenth Di strict issued its decision
in AWMS I , the Eleventh District granted the state’s summary-judgment mo tion and
denied AWMS’s mandamu s petition, 2019-Ohio-923, 132 N.E.3d 1151, ¶ 50-51. First, the Eleventh District det ermined that the state had not effected a total regulatory taking because AWMS had not been deprived of all eco nomically beneficial use of its property. In support, it reasoned that a fter the state had suspended operations at well #2, well #1 remained in operation for a period of time;
that AWMS had derived revenue fro m processing, storing, recycli ng, treating, and disposing brine; that third par ties had contacted AWMS about us ing the property; and that AWMS could put the prope rty to other uses related to t he oil-and-gas industry. Id. at ¶ 15-17. Second, the court of appeals determined that the state had not effected a partial regulatory taking. The court found it s ignificant that the suspension order had been designed to “protect[] the public’s h ealth and safety fromJanuary Term, 2020

10 the realistic potential of incre ased induced seismicity resulti ng from injection
activities” at well #2. Id. at ¶ 40. It also found it significant that AWMS’s investors had been aware of the seismic activities in the Youngstown area and of the risks involved with the operation of A WMS’s injection wells. Id. at ¶ 44, 49. {¶ 22} AWMS appealed the Eleventh Distr ict’s judgment to this court.
II. APPLICABLE LEGAL STANDARDS A. Summary-judgment standard {¶ 23} This court reviews a grant of summary judgment de novo. Ratonel v. Roetzel & Andress, L.P.A. , 147 Ohio St.3d 485, 2016-Ohio-8013, 67 N.E.3d 775, ¶ 18. Under Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitle d to judgment as a matter of law, and (3) it appears that after construing the evi dence most strongly in the nonmoving party’s favor that reasonable minds can come to b ut one conclusion. “Neither we nor the trial court may weigh the proof or choose a mong reasonable inferences in deciding whether summary judgment should be grant ed.” Perez v. Scripps-Howard Broadcasting Co. , 35 Ohio St.3d 215, 218, 520 N.E.2d 198 (1988). At the summary-judgment stage, a “court should not rej ect one expert opinion for another simply because it believes one theory over the other.” Miller
v. Bike Athletic Co. , 80 Ohio St.3d 607, 613, 687 N.E.2d 735 (1998).
B. Mandamus standard {¶ 24} To prevail on its mandamus claim, AWMS must show (1) a clear legal right to compel the state to commence property-appropriat ion proceedings, (2) a clear legal duty on the part of the state to institute th at action, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Gilmour Realty, Inc. v. Mayfield Hts. , 122 Ohio St.3d 260, 2009-Ohio-2871, 910 N.E.2d 455, ¶ 15. “Mandamus is the appr opriate action to compel publi c authorities to commence appropriation cases when an involuntary taking of priv ate property isJanuary Term, 2020

11 alleged.” State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs. , 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 15. C. Regulatory-takings doctrine {¶ 25} AWMS has asserted that it is entitled to compensation for the s tate’s regulatory taking of its property under the Takings Clause of t he Fifth Amendment
to the United States Constitution. The Takings Clause provides that private property shall not “be taken for public use, without just compe nsation.” The clause applies to the states through the Fourteenth Amendment. Chicago, Burlington & Quincy RR. Co. v. Chicago , 166 U.S. 226, 239-241, 17 S.Ct. 581, 41 L.Ed. 979 (1897). {¶ 26} We acknowledge that “ ‘[e]very so rt of [real property] interest the citizen may possess’ counts as a property interest under the Fi fth Amendment.” (Brackets sic.) Cienega Gardens v. United States , 331 F.3d 1319, 1329 (Fed.Cir.2003) (“ Cienega Gardens I ”), quoting United States v. Gen. Motors Corp. , 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945). Accordin gly, “the holder of an unexpired leasehold interest in land is entitled” to invoke the Takings Clause’s guarantees. Alamo Land & Cattle Co., Inc. v. Arizona , 424 U.S. 295, 303, 96 S.Ct. 910, 47 L.Ed.2d 1 (1976). {¶ 27} AWMS has also referred to its right to compensation for the sta te’s alleged taking of its property under the Ohio Constitution. “S ection 19, Article I of the Ohio Constitution also pr ovides that private property sh all not be taken for public use without just compensation.” Shelly Materials , 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, at ¶ 16. Although AWMS makes a passing reference to that provision, its substantive arguments rely on Fifth Amendment takings jurisprudence so we focus our analysis here on that jur isprudence. {¶ 28} Although the federal Takings Clause had been originally underst ood to apply only to situations involving the direct appropriation of property or the functional equivalent of a prac tical ouster of an owner’s posse ssion, Lucas v. SouthJanuary Term, 2020

12 Carolina Coastal Council , 505 U.S. 1003, 1014, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (collecting cases), the Un ited States Supr eme Court has recognized that the clause may also be applied to overly burdensome governmental re gulations of property, Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (“while property may be regulated to a certainextent, if regulation goes too far it will be recognized as a taking”). Since Mahon , principles have been established for identifying regulations that go too far. See Lingle v. Chevron U.S.A.,

Inc. , 544 U.S. 528, 538-540, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005)

. {¶ 29} Two of those principles bear on this case. The first is the “categorical rule” discussed in Lucas , which applies to “total regulatory takings.”

Lucas at 1026. Under that rule, the government’s payment of just com pensation is required when its regulation “de prives land of all economically beneficial use,” id. at 1027, unless “background principles of the State’s law of pr operty and nuisance” impose independent restrictions on the owner’s usage, id. at 1029. The second principle derives from the S upreme Court’s decision in Penn Cent. Transp. Co. v. New York City , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), which app lies to “ ‘partial’ regulatory taking[s],” Shelly Materials at ¶ 19. The ad hoc, factspecific analysis established in Penn Cent . requires a court to consider three factors: “(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed e xpectations, and (3) the character of the governmental action.” Id.
III. ANALYSIS {¶ 30} We begin our analysis by addre ssing two preliminary questions, the answers to which will influence our regulatory-takings analysis . First, we consider the state’s argument that this case is unripe. Second, we cons ider the state’s argument that it effected at most a temporary suspension, rathe r than a permanent shutdown, of well #2. After addressing those questions, we tur n to the main issue in this case, i.e., whether the state effected either a total t aking of well #2 under theJanuary Term, 2020

13 standard established in Lucas or a partial taking of it unde r the standard established
in Penn Cent. A. Ripeness {¶ 31} The state faults AWMS for having failed to submit a comprehensi ve plan for restarting operations at well #2, stating that it “sta nds by willing to allow operation of the AWMS #2 Well if [AWMS] submits a comprehensive plan protective of public health and safety.” (Emphasis sic.) Alth ough the state does not precisely identify a legal doctrine in support of its argum ent, the crux of its position, as we understand it, is th at AWMS’s takings claim is unripe. {¶ 32} “[A] claim that the application of government regulations effec ts a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regar ding the application of the regulations to the property at issue.” Williamson Cty. Regional Planning Comm. v. Hamilton Bank of Johnson City , 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), overruled on other grounds , Knick v. Twp. of Scott , ___ U.S. ___, 139 S.Ct. 2162, 2179, 204 L.Ed.2d 558 (2019). “Where furt her administrative process could reasonably result in a more definite statement of the impact of the regulation, the property owner is generally required to pursue that avenue of relief before bringing a takings claim.” Morris v. United States , 392 F.3d 1372, 1376 (Fed.Cir.2004). {¶ 33} The “[r]ipeness doctrine does not,” however, “require a landown er to submit applications for their own sake.” Palazzolo v. Rhode Island , 533 U.S. 606, 622, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Accordingly, “[a] failure to secure a final decision may be excused under the futility excep tion, ‘where [an] agency’s decision makes clear that pursuing remaining administr ative remedies
will not result in a different outcome.’ ” (Second bracket sic .) Freeman v. United
States , 875 F.3d 623, 628 (Fed.Cir.2017), quoting Morris at 1376. “A landowner need not resort to futile piecemeal litigation or submit to rep etitive applicationJanuary Term, 2020

14 requirements to make a taking claim ripe.” Cooley v. United States , 324 F.3d 1297, 1302 (Fed.Cir.2003). Because a takin gs claim is ripe after a g overnmental entity’s final decision, “an applicant need not submit further applicati ons” before it can pursue its claim. Id. at 1302-1303. {¶ 34} In this case, the state suggests that if AWMS would submit a re start plan for well #2 that meets the s tandards it set out during the parties’ commonpleas-court litigation (standards the state settled on after AWMS filed its mandamus petition), then AWMS would be able to restart its operations. Broadly speaking, the state’s standards outlined a five-step restart plan directi ng AWMS to (1) gather information, (2) perform well-c onstruction modifications, (3) i nstall monitoring equipment, (4) perform pre-operation testing, and (5) follow a schedule of operations with defined injection pressures and maximum amounts to be injected, subject to modifications or the suspension of operations depend ing on seismicity in
the area of well #2. {¶ 35} The state ignores that AWMS twice tried—and failed—to persuade the division to allow it to restart operations at well #2. AWM S first tried to do this by submitting its September 2014 plan. According to Simmers, t he division had found that plan to be “generic and inadequate,” although, as no ted by the court of appeals in AWMS I , the division did not contact AWMS to collaborate on the plan or to critique the plan, 2018-Oh io-3028, 118 N.E.3d 385, at ¶ 7 , and the record does not show that the division responde d to the plan. Moreover, AW MS submitted a second plan in March 2015 to which the division apparently neve r responded either,
id. at ¶ 8. {¶ 36} Now, the state argues that AWMS should be faulted for having fa iled to submit a third restart plan for well #2 based on standards t he state set out after AWMS filed its mandamus complaint and after it twice tried to s atisfy the state’s standards. The state’s argument, if we were to accept it, woul d invite protracted litigation. Also, because there i s no indication that the stat e’s standards, if met,January Term, 2020

15 would be binding on the state, the division could change them a t any time, which, under the state’s logic, could create yet another opportunity f or it to say that all AWMS needs to do is submit another plan. We decline the state’ s invitation to issue a decision establishing precedent permitting the state to create moving targets. {¶ 37} In summary, the division either rebuffed or ignored the two pla ns that AWMS had submitted to resta rt well #2. We conclude that A WMS was justified in pursuing compensation through a takings action rat her than submitting a third restart plan and that AWMS’s claim was ripe at the time it instituted its takings action. See Cooley , 324 F.3d at 1302-1303. B. Permanent versus temporary takings {¶ 38} The state next argues that the s uspension of operations at well #2 is merely temporary and cannot amount to a categorical taking. In casting the suspension as temporary, the state seeks the benefit of the rul e articulated in TahoeSierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), in which the Unite d States Supreme Court determined that the principles espoused in Penn Cent. , rather than those set
forth in Lucas , should apply to a moratorium on property development of finit e duration, provided the duration of the moratorium is reasonable under the
circumstances. Tahoe-Sierra at 341-342 (considering a 32-month moratorium).
The court reasoned that Lucas ’s categorical rule should not apply to that situation because a temporary prohibition on property use could not perma nently deprive the property of all its value. “Logically, a fee simple estate can not be rendered valueless by a temporary prohi bition on economic use, because t he property will
recover value as soon as th e prohibition is lifted.” Id. at 332. {¶ 39} The state contends that its sus pension of operations at well #2 is temporary for two reasons. First, it argues that the division did not order the well to be permanently plugged under R.C. 1509.12(B). But from a fu nctional standpoint, there is no material difference between a plugged w ell and a suspendedJanuary Term, 2020

16 well—neither can be used. Second, it argues that the restart o f operations at well #2 is entirely within the control of AWMS because all AWMS need s to do is submit another restart plan. But that is simply untrue. Even if AWMS were to submit another plan, the division might again fail to respond to it or disapprove it. {¶ 40} The state’s attempt to characterize the suspension of operation s at well #2 as temporary founders on its open-endedness. See Wyatt v. United States , 271 F.3d 1090, 1097 (Fed.Cir.2001), fn. 6 (“The essential eleme nt of a temporary taking is a finite start and end to the taking”). Unlike in Tahoe-Sierra , which involved a prohibition on land use of finite duration, this cas e involves a suspension of operations without a fixed exp iration date. Indeed, the rec ord shows that the suspension will remain in effect unless and until the division decides that operations at well #2 may be restarted. {¶ 41} Also instructive here is our decision in State ex rel. BSW Dev. Group. v. Dayton , 83 Ohio St.3d 338, 699 N.E.2d 1271 (1998). In that case, we rejected a property owner’s argument that th e government had permanently t aken the owner’s property because the government indicated that it would have gr anted the owner’s application for a permit upon th e owner’s fulfilment of certain ministerial requirements. Id. at 342-343. Here, the conditions that the division has asked
AWMS to meet to resta rt operations at well #2 are hardly minist erial. {¶ 42} In summary, we reject the state’s argument that the suspension of operations at well #2 is temporary.
C. Whether the division effected a total taking 1. Economically beneficial use {¶ 43} We start our analysis of AWMS’s total-takings claim with the ru le espoused in Lucas , which applies to the “relatively rare situations where the government has deprived a landowner of all economically benefic ial uses.” 505 U.S. at 1018, 112 S.Ct. 2886, 120 L.Ed.2d 798. Under Lucas , the “determinative factor” is whether the regulation effects a “complete eliminati on of a property’sJanuary Term, 2020

17 value.” Lingle , 544 U.S. at 539, 125 S.Ct. 2074, 161 L.Ed.2d 876. See also R.T.G.,

Inc. , 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, at ¶ 39 (plu rality opinion) (“ Lucas applies where the regulation has deprived the property of all economic value”). {¶ 44} AWMS supports its argument that it suffered a total taking with the report of its expert witness, Dr. William W. Wade, who determin ed, using a netpresent-value calculation that A WMS had lost 99.4 percent of it s investment by September 2015 and 101.5 percent of its investment by June 2017 . Dr. Wade
determined that the division’s c ontinued enforcement of its sus pension order for
well #2 created a situation in which AWMS could not cover its o perating costs despite any operating revenues ge nerated by well #1. As he exp lained, “operations without Well #2 are not economically viable” because “Well #2 i s essential to the business operations.” {¶ 45} The state’s expert witnesses fau lted Dr. Wade’s analysis as rel ying on an overly optimistic projection of the volume of wastewater that AWMS’s wells would have accepted. In their view, the well-capacity limitati ons of AWMS’s wells, not the division’s suspension order, had been one of the leading culprits for AWMS’s decline in operating reve nues. Had Dr. Wade accounted f or those limitations, the state says, he would not have concluded that A WMS suffered a total taking. {¶ 46} We need not decide which expert w itness was righ t, for a court may not weigh competing expert-witness opinions at the summary-judg ment stage.
Miller , 80 Ohio St.3d at 613, 687 N.E.2d 735. We hold, however, that these differences of opinion are enough to establish a genuine issue of material fact concerning whether AWMS su ffered a total taking under Lucas . For that reason, we reverse the Eleventh District’s judgment granting summary ju dgment to the
state and remand to that court fo r further proceedings on AWMS’ s total-takings
claim.January Term, 2020

18 {¶ 47} In reaching this decision, we reject the state’s argument that AWMS did not suffer a total taking be cause AWMS used and could conti nue to use its site after the division suspended operations at well #2. The state emphasizes that AWMS could use the site to (1) conduct saltwater-injection oper ations at well #1, (2) store, recycle, and treat wastewater, and (3) sell byproduc ts of the wastewater. According to the state, nothing prevents AWMS from continuing t hose uses. Our concern here, however, is not whether AWMS’s property is capabl e of being used, but whether it is capable of being used in an “economically ben eficial or productive” manner. Lucas , 505 U.S. at 1015, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798. As Dr. Wade opined, the uses to which the state refers yi eld monthly net losses. For the purposes of summary judgment, his opinion is e nough to establish a genuine issue of material fact sufficient to withstand the st ate’s claim that AWMS did not suffer a total taking. {¶ 48} We also reject the court of appeals’ conclusion that AWMS did n ot suffer a total taking because AWMS could have sublet its proper ty to a third party. 2019-Ohio-923, 132 N.E.3d 1151, at ¶ 16. The Federal Circuit a ddressed a similar argument in Lost Tree Village Corp. v. United States , 787 F.3d 1111 (Fed.Cir.2015). In that case, the government argued that an ow ner’s ability to sell an affected parcel of land constitu ted an economically benefici al use under Lucas

. In rejecting that argument, the court explained that “[t]ypical economic uses enable
a landowner to derive benefits from land ownership rather than requiring a landowner to sell the affected parcel.” Id. at 1117. By analogy, AWMS’s subletting the property, which would transfer away its right to directly use the property, also does not rise to the level of an economically be neficial use under

Lucas . Moreover, any sublessee of the property would encounter the same problem as AWMS because it would inherit AWMS’s leasehold rights, which , as noted above, extend no further than sa ltwater-injection-well operatio ns.January Term, 2020

19 {¶ 49} It is doubtful that AWMS’s subletting the property would even b e a viable option here. “[A] proposed ‘use’ requires a showing of reasonable probability that, at the time of the taking, the land was both physically adaptable for
such use and that there was a need or demand for such use in th e reasonably near
future.” Bd. of Cty. Supervisors of Prince William Cty. v. United States , 276 F.3d 1359, 1365 (Fed.Cir.2002). The court of appeals observed that third parties had expressed interest in using AWMS ’s property but that no agreeme nt had been finalized. 2019-Ohio-923, 132 N.E.3d 1151, at ¶ 16. In suppor t, it relied on the deposition testimony of Kilper, AWMS’s vice president, who expl ained that two potential buyers had contacted him and expressed interest in po ssibly buying out AWMS’s interest in the property. The record does not disclose the details of those conversations, but Kilper explained that at some point in the n egotiations the potential buyers stopped returning AWMS’s telephone calls. The evidence, therefore, does not show a legitimate demand for AWMS’s interes t in the property. {¶ 50} The court of appeals also relied on the report of Andrew Adgate , ODNR’s underground-injection-control manager, id. at ¶ 17. In his report, Adgate suggested alternative ways in which AWMS could use the property . But because we conclude that Dr. Wade’s opini ons in his report are enough t o create a genuine issue of material fact regarding whether AWMS suffered a total taking, we need
not consider the substanc e of Adgate’s report. 2. The state’s nuisance defense {¶ 51} Under Lucas , even if a governmental regulation completely deprives an owner of all economically beneficial use of its property, ju st compensation is not required if the government can show that background princip les of property and nuisance law proscribe the owner’s use of the property. Lucas , 505 U.S. at 1029, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798. To take an example from Lucas ,January Term, 2020

20 the corporate owner of a nuclear generating plant [would not be entitled to just compensation] when it is directed to remove al l improvements from its land upon di scovery that the plant sits a stride an earthquake fault. Such regula tory action may well have the effect of eliminating the land’s only economically productive use, but it does not proscribe a productive us e that was previously permiss ible under relevant property and nuisance principles.

Id. at 1029-1030. Courts have interpreted Lucas ’s background-principles-ofproperty-and-nuisance-law passage as creating a defense that the government can raise in a regulatory-takings action. See, e.g. , Rith Energy, Inc. v. United States , 247 F.3d 1355, 1361 (Fed.Cir.2001); Palm Beach Isles Assocs. v. United States , 231 F.3d 1354, 1357 (Fed.Cir.2000). We must consider whether, as AWMS argues,
the state waived its nuisance defense. {¶ 52} “Unlike lack of subject matter jurisdiction, other affirmative
defenses can be waived.” State ex rel. Jones v. Suster , 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998). “[I]t is well settled that ‘[a] party who fails to raise an argument in the court below waives his or her right to raise it here.’ ” (Second bracket sic.) Niskanen v. Giant Eagle, Inc. , 122 Ohio St.3d 486, 2009-Ohio-3626, 912 N.E.2d 595, ¶ 34, quoting State ex rel. Zollner v. Indus. Comm. , 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993). {¶ 53} AWMS argues that the state waive d its nuisance defense because the
state did not raise it in the cour t of appeals. The state’s se cond amended answer to AWMS’s complaint clearly sets fo rth the defense, but whether th e state did so in its summary-judgment motion pr esents a closer question. {¶ 54} In its motion for summary judgment, the state briefly analogize d the facts of this case to the hypothetical used by the court in Lucas in which the government could raise a nuisance defense in a situation in whi ch a nuclear-power-January Term, 2020

21 generation plant sits astride an earthquake fault. In making t hat analogy, the state claimed that AWMS’s facility was located near “a previously unk nown earthquake
fault.” {¶ 55} At first blush, it would appear t hat the state did not waive it s nuisance defense. The problem, however, is that Lucas requires a government-defendant to ground its nuisance defense in pri nciples of its state’s proper ty and nuisance law.

Lucas , 505 U.S. at 1029-1030, 1017, 112 S.Ct. 2886, 120 L.Ed.2d 798. Here, the state did not ground its nuisance defense in principles of Ohio property and nuisance law. We have held that waiver will apply when a litig ant supplies no argument “regarding whether the relevant case law, applied to t he facts of th[e] case, justifies a decision in [the litigant’s] favor.” Util. Serv. Partners, Inc. v. Pub.
Util. Comm. , 124 Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 53. W e find that principle dispositive here and hold that the state wa ived its nuisance defense for purposes of this appeal. {¶ 56} In summary, we conclude that there is a genuine issue of materi al fact concerning whether the state ’s suspension of operations at well #2 deprived AWMS of all economically beneficial use of its leasehold. We f urther conclude
that the state waived its nuisan ce defense. We therefore rever se the Eleventh District’s judgment granting summary judgment to the state on A WMS’s totaltakings claim. On remand, the c ourt of appeals must weigh the parties’ evidence relating to AWMS’s total-takings claim.
D. Whether the division e ffected a partial taking {¶ 57} A regulation that prohibits less than all economically benefici al use
of land falls outside of Lucas ’ categorical rule and into Penn Cent .’s three-factor analysis. Palazzolo , 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592. Under
the framework of the Penn Cent. analysis, a court should consider “(1) the economic impact of the regulation on the claimant, (2) the exte nt to which the regulation has interfered with distinct investment-backed expec tations, and (3) theJanuary Term, 2020

22 character of the governmental action,” Shelly Materials , 115 Ohio St.3d 337, 2007- Ohio-5022, 875 N.E.2d 59, at ¶ 19

. “[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s ec onomic impact and the degree to which it interferes with legitimate property inte rests.” Lingle , 544 U.S. at 540, 125 S.Ct. 2074, 161 L.Ed.2d 876. “These essential ly ad hoc, factual inquiries,” Penn Cent. , 438 U.S. at 123, 98 S.Ct. 2646, 57 L.Ed.2d 631, account for the “particular circumstances of the case,” 767 Third Ave. Assocs. v. United States , 48 F.3d 1575, 1580 (Fed.Cir.1995). 1. Economic impact {¶ 58} Although the court of appeals di d not consider the economic imp act upon AWMS resulting from the state ’s suspension of its operatio ns at well #2, an established method of performing the economic-impact analysis i nvolves “compar[ing] the value that has been taken from the property wi th the value that remains in the property.” Keystone Bituminous Coal Assn. v. DeBenedictis , 480 U.S. 470, 497, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). This met hod is sometimes referred to as the “with and without” method. Eagle, “Economic Impact” in Regulatory Takings Law , 19 Hastings W.-Nw.J.Envtl.L. & Pol’y 407, 417-418, 420 (2013) (“The usual approach to determine the impact of the regu lation subtracts the value of a parcel with the regulation in place from the value o f the parcel without the regulation”). {¶ 59} Although there does not appear to be an exclusive method of comparing the value of property before and after a regulation, at least two approaches have been expressly endorsed. The first is the mark et-value approach, which compares the “market value of the property with and witho ut the restrictions on the date that the restriction began.” Cienega Gardens v. United States , 503 F.3d 1266, 1282 (Fed.Cir.2007) (“ Cienega Gardens II”). The second is the lost-netincome approach, which “compare[s] the lost net income due to t he restriction (discounted to present value at t he date the restriction was im posed) with the totalJanuary Term, 2020

23 net income without the restricti on over the entire useful life of the property (again discounted to present value) .” (Parenthesis sic.) Id. {¶ 60} AWMS’s expert witness, Dr. Wade, calculated the economic impact of the state’s regulation on AW MS under the with-and-without me thod using the lost-net-income approach. In Dr . Wade’s first calculation, he computed “the actual outcome caused by the shutdown of well #2.” In his second calc ulation, he computed “the expected outcome, which motivated [AWMS]’s invest ment in the leased property.” In each scenario, Dr. Wade used a discounted -cash-flow model to arrive at the net present value of AWMS’s property interest as of September 2014 (when the suspension of operati ons at well #2 occurred) by look ing backwards from June 2017 (the last date for which Dr. Wade had figures include d on AWMS’s netincome statement from whic h to perform an analysis). {¶ 61} Regarding the first calculation, Dr. Wade computed a net loss o f $6,119,275, and regarding the second calculation, he computed a n expected net income of $14,475,770. Dr. Wade then computed the difference b etween those two
numbers and determined that th e economic impact upon AWMS was a loss of $20,595,045. Finally, Dr. Wade compared the present value of A WMS’s investment ($6,076,043 as of Septem ber 2014) with the actual ou tcome (a net loss of $6,119,275 as of September 2014) and concluded that AWMS’s “ continued ownership of the facilities thr ough June 2017 incurred a loss o f 101.5% of investment.” In his words, “t he actual outcome does not recoup investment; no
return on investment exists.” {¶ 62} The state’s expert witnesses agree that the lost-net-income app roach is a valid method for computing economic impact. And they too performed a discounted-cash-flow analysis. B ut they concluded that the eco nomic impact of the state’s suspension of operations at well #2 upon AWMS ranged fr om a low of $116,334 to a high of $359,374.January Term, 2020

24 {¶ 63} Again, the court of appeals did not consider the economic impac t upon AWMS resulting from the state’s suspension of its operatio ns at well #2. Given the significant numerical disparities in the results of t he economic-impact analyses between AWMS’s and the state’s expert witnesses, we co nclude that a genuine issue of material fact precluded the granting of summar y judgment on the economic-impact factor under Penn Cent . We therefore reverse the Eleventh District’s judgment granting summa ry judgment to the state on A WMS’s partialtakings claim, remand to the court of appeals, and order it to weigh the parties’ evidence concerning the economic-impact upon AWMS of the state’s suspension of operations at well #2. 2. Reasonable investment-backed expectations {¶ 64} “The reasonable, investment-backed expectation analysis is designed to account for property owners’ expectation that the r egulatory 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). The Federal Circuit has developed three factors to guide a court when conducting that i nquiry: “(1) whether the plaintiff operated in a ‘high ly regulated industry;’ (2) wh ether 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 h ave ‘reasonably anticipated’ the possibility of such regulation in light of the ‘regulatory environment’ at the time of purchase.” Apollo 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). {¶ 65} Starting with the first factor—whether AWMS operated in a highl y regulated industry—AWMS correctly notes that an entrant into a highly regulated
field does not abandon all reasona ble investment-backed expecta tions . See Cienega Gardens I , 331 F.3d at 1350. It is also true, however, that “reasonableJanuary Term, 2020

25 investment-backed expectations are greatly reduced in a highly regulated field.”
Branch v. United States , 69 F.3d 1571, 1581 (Fed.Cir.1995). And here, AWMS does not deny that it had entered a highly regulated industry—t hat of oil and gas. {¶ 66} Turning to the second factor—whether AWMS had been aware of the potential seismicity problem —AWMS admits to having known th at induced seismicity could be an issue with its injection wells. However , we disagree with some of the state’s arguments c oncerning the problem-awareness factor because they focus on circumstances that arose after AWMS had acquired its leasehold on December 19, 2011. First, the state points to the seismic even ts that took place in Youngstown on December 24 and December 31, 2011, which prompted former Governor Kasich to impose a mo ratorium on certain injection act ivities. Second, the state emphasizes the Septem ber 2013 confidential offering m emorandum that AWMS prepared for prospective i nvestors in which AWMS acknowled ged that governmental regulation of injec tion wells might increase, that its wells might induce a seismic event, and that such an event could cause a su spension of its injection operations. True, that evidence tends to show AWMS’s awareness that its operations might be suspended if its wells were to be deter mined to have induced
seismic events. But it is the i nterestholder’s expectations at the time it acquired its interest that is determinative, not its expectations following an event occurring at some later point in time. See Apollo Fuels , 381 F.3d at 1349. {¶ 67} At the time AWMS acquired its leasehold interest, AWMS could no t have anticipated that the state would waver between a case-by-c ase approach and a statewide approach to addressing induced seismicity while rebuf fing AWMS’s attempts to meet the state’s inc hoate regulatory expectations. The parties do not dispute that at the time AWMS obtained its leasehold in Decembe r 2011, the division had not established its approach to managing induced s eismicity. When
the division first issued its sus pension orders in September 20 14, it put the onus on AWMS to “submit a written plan to the Division for evaluating t he seismicJanuary Term, 2020

26 concerns associated with the operation of” well #2. Although A WMS had not
received direction from the divi sion about what to include in t he plan, AWMS nevertheless submitted a plan tha t included several proposals t o establish certain controls over injections at well #2. The division rejected the plan as “generic and inadequate.” {¶ 68} During its appeal of the suspension order, AWMS met twice with the division in an attempt to unde rstand the division’s regulat ory position. At the first meeting in October 2014, the division stated that its sta tewide policy would not be ready for at least four to six more months and declined to address the circumstances of its suspension of AWMS’s operations. At the s econd meeting in February 2015, the division presented AWMS a single sheet of pa per containing 14 criteria that the division was considering for evaluating induc ed seismicity in its statewide policy. But the division also told AWMS that it woul d not implement a statewide policy for at least anot her eight months. A few days after the February 2015 meeting, AWMS sought clarification on some of the division ’s proposed criteria. Once again, the division failed to offer any directi on or clarification. AWMS nevertheless submitted a plan to the division in early Mar ch 2015 addressing the division’s propos ed criteria. The record does n ot indicate that the division responded. {¶ 69} AWMS got its answer in August 2015 when the commission issued its decision affirming the divisi on’s suspension of operations of well #2. AWMS could not have reasonably anticipated when it acquired its leas ehold interest that the state’s inconsistent regulatory approach or its lack of res ponsiveness to AWMS’s attempts at remediation would leave AWMS in limbo for ye ars with an indefinite suspens ion of its operations. {¶ 70} AWMS has demonstrated a material issue of fact that the divisio n’s suspension of operations at #2 in terfered with AMWS’s reasonabl e investment-January Term, 2020

27 backed expectations. We therefore reverse the Eleventh Distric t’s granting of summary judgment on this factor under Penn Cent. 3. Character of the governmental action {¶ 71} The court of appeals began its a nalysis of the character-of-the

governmental-action factor under Penn Cent

. as follows:

In evaluating the character of the Suspension Order, we emphasize that the issue of the reasonableness of the Suspensio n Order has been fully litigated and the Tenth District’s opinion has preclusive effect on that point. * * * The character of the order has been deemed reasonable as a matter of law and that judgment was issued in an action between the same parties. Collateral estoppel therefore bars [AWMS] from challe nging the reasonableness of th e underlying order.

2019-Ohio-923, 132 N.E.3d 1151, at ¶ 22. The court of appeals did not, however, cite any takings-related authority to support its application o f the doctrine of collateral estoppel as a means of deciding the character-of-the -governmental-action inquiry. And neither party’s bri ef defends the court of appeal s’ invocation of that doctrine. The parties’ silence is justified because the charac ter of a governmental action is not determined by its lawfulness or propriety. See Norman v. United
States , 63 Fed.Cl. 231, 285 (2004) (“the lawfulness or appropriatenes s of the governmental action is not akin to the character of the governm ental action”). Applying this principle, we will analyze the character-of-the-g overnmental-action
factor on its merits rather than r ecognize the court of appeals ’ procedural bar. {¶ 72} Without attempting to provide an exhaustive list of the factors that courts have used to guide their character-of-the-governmental-a ction inquiries, we will focus on three factors emphasized by the parties. The fir st factor involvesJanuary Term, 2020

28 whether the interestholder has been impermissibly “singled out” by the government for unfavorable treatment, Sherman v. Chester , 752 F.3d 554, 565-565 (2d Cir.2014), or instead been permi ssibly included within a govern mental program aimed at “adjusting the benef its and burdens of economic life t o promote the common good,” Penn Cent. , 438 U.S. at 124, 98 S.Ct. 2646, 57 L.Ed.2d 631. The
second factor involves whether th e regulation bears a “harm-pre venting purpose.” Rose Acre Farms, Inc. v. United States , 559 F.3d 1260, 1281 (Fed.Cir.2009). And the third factor involves the extent to which regulatory delay accompanied the government’s decisionmaking process. State ex rel. Duncan v. Middlefield , 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, ¶ 19-20. {¶ 73} Turning to the first factor—whether the state impermissibly sin gled
out AWMS for unfair treatment—AWM S claims that the division unf airly did so by suspending its operations at well #2 while not suspending op erations at a seismicity-inducing well in Washington County (the “Long Run we ll”). The state’s expert witnesses agreed that the Long Run well contributed to s eismicity in its surrounding area. And the division’s personnel do not dispute that the division contacted the operator of the Long Run well and asked it to red uce—rather than suspend—the well’s injection vol umes in an effort to mitigate s eismicity risks. {¶ 74} The state argues, however, that there has been no unfair singli ng out of well #2 because the character istics of well #2 and the Long Run well differ. First, the state asserts that the wells differ from a geological stand point. The state stresses the proximity of the bottom of well #2 to a region known as the Precambrian basement, which consists of “ign eous and metamorphic rocks that exist below the oldest sedimentary rock cover.” Ground Water Protection Counci l & Interstate Oil & Gas Compact Commission at 124. According to Simmers, the div ision’s chief, well injections near that region should be avoided. In Washing ton County, the separation between the bottom of the Long Run well’s injection zone and the Precambrian basement is just unde r a mile, which is a significa nt separation. WellJanuary Term, 2020

29 #2, however, is drilled much deeper and bottoms out in an area located directly
above the Precambrian basement. {¶ 75} AWMS agrees that the Long Run well and well #2 differ geologically. But it maintains that the significance of the di fferences have been overblown. The problem with AWMS’s argument in that regard, ho wever, is that AWMS’s brief cites nothing from the record to support that view

. See State ex rel.
Coulverson v. Ohio Adult Parole Auth. , 62 Ohio St.3d 12, 14, 577 N.E.2d 352 (1991) (holding that conclusory allegations are not sufficient to withstand summary judgment). {¶ 76} The state’s second basis for distinguishing the Long Run well f rom well #2 rests on the respective wells’ relative proximities to population centers. In support, the state points to a r eport prepared by one of its ex pert witnesses concluding that “the seismic risk in Trumbull and Washington Co unties are at opposite ends of the spectrum” due to the differences in the “d istribution and density of [the] population and structures” in those areas. AW MS responds that it is not the proximity of injection wells to population centers t hat should matter but rather the proximity of seismic events to population centers. Yet, 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 to persuade us that the state did not unfairly single out well #2. {¶ 77} Under the second character-of-the -governmental-action factor— whether governmental regulation bears a harm-preventing purpose —the character of a regulation will “weigh[] strongly against finding a taking ” when the purpose of that regulation is to prevent harm to public health and safe ty. Rose Acre Farms , 559 F.3d at 1281. “[I]n the context of the protection of publi c health and safety, ‘the private interest has traditionally been most confined and governments are given the greatest leeway to act without the need to compensate those affected by theirJanuary Term, 2020

30 actions.’ ” Dimare Fresh, Inc. v. United States , 808 F.3d 1301, 1311 (Fed.Cir.2015), quoting Rose Acre Farms at 1281-1282. In Rose Acre Farms , the federal circuit addressed a governmental action undertaken to l imit the spread of salmonella bacteria in the chicken-egg market. Id. at 1261. In rejecting the plaintiff’s takings claim, the court gave considerable weight t o the government’s harm-preventing purpose, explaining that human consumption of t he “infected eggs
could have caused serious illn ess and possibly even death.” Id. at 1283. {¶ 78} In this case, the state presents a similar harm-prevention justification, arguing that the purpose behind the division’s s uspension of operations at well #2 was to protect the public against the thr eat of earthquakes. A December 2017 report prepared by S immers bears out this asserti on. Simmers explained in his report that the “protect[ion] [of] public heal th and safety” was the purpose of the state’s suspensi on of operations at well #2. He further noted a strong correlation between the operations at well #2 and the seismic e vents that took place in the vicinity of well #2 on July 28, 2014, and August 31, 201 4. And he concluded that the restarting of operati ons at well #2 would pose a conti nued threat of harm to public health and safety because the division has, since issuin g the suspension order, obtained evidence that well #2 sits near a geological fa ult. {¶ 79} AWMS does not challenge Simmers’s statement tha t the purpose of the suspension was to protect the public from harm—in fact, AWM S recognizes that preventing harm to the public is a laudable goal. Nor doe s AWMS challenge Simmers’s determination that its operations at well #2 correlat ed with the seismic
events from 2014—two of AWMS’s ex pert witnesses concur in that determination. But AWMS does say in its merit brief that no one has determined that AWMS’s operations posed an “imminent threat” to public safety. Howeve r, AWMS identifies no authority that requi res a governmental actor to e stablish that there is an imminent threat of harm before the government implements a r egulatory action to protect public health and safety.January Term, 2020

31 {¶ 80} The third and final character-o f-the-governmental-action factor involves the extent to which delay accompanied the state’s deci sionmaking process. Although “[a] requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself ‘take’ the property in any sense,” United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121, 127, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), “a taking may occur by reason of ‘extraordi nary delay in governmental decisionmaking,’ ” Wyatt , 271 F.3d at 1097, quoting Tabb Lakes,
Ltd. v. United States , 10 F.3d 796, 803 (Fed.Cir.1993). In deciding whether a delay is extraordinary, a court must weigh “all relevant factors,” Duncan , 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, at ¶ 20, including the len gth of the delay,
Bass Ents. Prod. Co. , 381 F.3d at 366. Bad faith on the part of the government wil l influence the inquiry, as will an y delay that the interestholde r’s conduct caused.

Duncan at ¶ 20. The “nature of the permitting process” and the “reas ons for any delay” may also inform the analysis. Wyatt at 1098. {¶ 81} The party alleging a governmental taking must tie its claim of extraordinary delay to the government’s decisionmaking process, namely, the process by which the government reviews an interestholder’s for mal request to use its property in a particular way. Duncan at ¶ 19-20. In Duncan , a case cited by AWMS in its merit brief, a landown er tied his claim of extraord inary delay to the government’s conduct in reviewing his zoning-permit application s. Duncan at ¶ 21 (addressing delays of six and nine months). In Byrd v. Hartsville , a case Duncan cites with approval, see Duncan at ¶ 19, a landowner similarly claimed to have suffered from extraordinary delay during the government’s review of his zoning petition, 365 S.C. 650, 660-662, 620 S.E.2d 76 (2005) (a ddressing delays of two and eleven months). Although the plaintiffs in Duncan and Byrd did not succeed on their extraordinary-delay claims, the salient point for the purpose of our analysis is that the plaintiffs in those cases tied their claim s to the manner in whichJanuary Term, 2020

32 the government conducted itself in reviewing their formal reque sts to use their property in a particular way. {¶ 82} Here, although it is a bit uncl ear, AWMS appears to allege extraordinary delay stemming from the division’s decision to de lay, and then abandon, the implementation of its once-promised statewide poli cy on induced seismicity. But AWMS cites no authority supporting its argumen t that a claim of extraordinary delay will lie aga inst the government for unduly delaying the implementation of a policy, as opposed to deciding an interesth older’s pending request to use its property in a certain way. And AWMS makes n o claim that it is awaiting the division’s approval of its plans to restart well # 2. {¶ 83} AWMS next alleges that the divis ion has engaged in extraordinar y delay based on the length of time that operations at well #2 ha ve been suspended. But that argument is misplaced because it targets the consequen ces of the division’s decisionmaking process, not the decisionmaking process itself. {¶ 84} AWMS also alleges that the division has acted in bad faith. In support of that contention, AWMS points to an affidavit provide d by Kilper, its vice president, in which he state d that he was told by a member of the division that “press and politics” (rather than science) was the real reason that the Long Run well had been permitted to operate and well #2 had not. But as expl ained above, there is no genuine dispute that well #2 and the Long Run well differ in significant ways. Given these differences, AWMS’s allegations of bad faith are no t “significantly probative.” Buckeye Union Ins. Co. v. Consol. Stores Corp. , 68 Ohio App.3d 19, 22, 587 N.E.2d 391 (10th Dist.1990) (if evidence is “merely colorable” or not “significantly probative,” summary judgment may be entered ). {¶ 85} If the crux of AWMS’s argument is that the division took too lo ng to conduct its review of AWMS’s re start plan—again, AWMS’s argu ment regarding the division’s delay is a bit unclear—then the tempor al scope of such reviews must be considered. AWMS is not clear on how it impute s value to aJanuary Term, 2020

33 particular length of time. Approx imately seven months—from Sep tember 2014 to March 2015—elapsed between the d ates on which it submitted its first and second restart plans. And approximately 17 months—from March 2015 to August 2016— elapsed between the dates on which it submitted its second rest art plan and filed its mandamus petition. Because the rec ord does not show that the d ivision ever formally rejected AWMS’s second restart plan, see also AWMS I , 2018-Ohio-3028, 118 N.E.3d 385, at ¶ 8, in the absence of further guidance, we construe the filing of AWMS’s mandamus petition as setti ng the date upon which AWMS re garded the division as having effected a c onstructive denial of its plans. Even if we were to assume that the state acted in bad faith, AWMS cites no authori ty supporting its argument that delays of the lengths that occurred in this case are extraordinary under the circumstances. Further, delays of 45 months and long er have been deemed unextraordinary when, as h ere, complex regulatory scheme s are involved. See, e.g. , Bass Ents. Prod. Co. , 381 F.3d at 1363, 1366-1368 (45-month delay); Wyatt , 271 F.3d at 1098-1100 (76-month delay). {¶ 86} In summary, we conclude that AW MS has not demonstrated that there is a genuine issue of material fact regarding whether the character of the division’s suspension order was to protect the public’s health and safety. 4. Balancing the factors {¶ 87} In a typical partial-takings case, a reviewing court must balan ce the
Penn Cent . factors to determine whether a partial taking has occurred. Reoforce,
Inc. v. United States , 853 F.3d 1249, 1271 (Fed.Cir.2017). But genuine issues of material fact preclude us from pe rforming that balancing exerci se. We reverse the Eleventh District’s judgment gr anting summary judgment to the s tate on AWMS’s partial-takings cla im. On remand, the court of appeals must we igh the parties’ economic-impact evidence and dete rmine in whose favor that fact or falls. After doing so, the court of appeals must balance all three Penn Cent. factors to determine
whether AWMS suffere d a partial taking.January Term, 2020

34 IV. CONCLUSION {¶ 88} For the foregoing reasons, we hold that there is a genuine issu e of material fact concerning whether t he state’s suspension of AWMS ’s operations at well #2 constituted a total taking by depriving AWMS of all eco nomically
beneficial use of its leasehold. We further conclude that the state waived its nuisance defense to AWMS’s total-takings claim. We reverse the Eleventh District’s judgment granting summary judgment to the state on A WMS’s totaltakings claim. On remand, the c ourt of appeals must weigh the parties’ evidence relating to AWMS’s total-takings claim. {¶ 89} We also reverse the Eleventh District’s judgment granting summa ry judgment to the state on AWMS’s partial-takings claim. On rema nd, the court of appeals must weigh the parties’ evidence in accordance with thi s opinion and
balance all three Penn Cent. factors to determine whether AWMS suffered a partial taking. Judgment reversed
and cause remanded.
O’C ONNOR , C.J., and F RENCH and D E W INE , JJ., concur.
K ENNEDY , J., concurs in judgment only, with an opinion.
S TEWART , J., concurs in judgment only.

D ONNELLY , J., dissents, with an opinion.

_________________ K

ENNEDY , J., concurring in judgment only. {¶ 90} Because I agree with the majority that there are genuine issues of material fact precluding the ent ry of summary judgment in favor of appellees, the Ohio Department of Natural Resources (“ODNR”); ODNR’s director, Mary Mertz;
ODNR’s Division of Oil and Gas Re sources Management (“the divis ion”); and the division’s chief, Richard Simmers (collectively, “the state”), I concur in the court’s judgment to reverse the decision of the Eleventh District Court of Appeals.January Term, 2020

35 Appellants, AWMS Water Solutions, L.L.C.; AWMS Holdings, L.L.C. ; and AWMS, Rt. 169, L.L.C. (collectively, “AWMS”), presented evidenc e that the state’s order closing AWMS’s saltwater-injection well effected a total or partial taking of its property sufficient to survive the state’s motion for summary judgment. Total-takings analysis {¶ 91} The threshold issue in a takings analysis is to define the prop erty allegedly taken, and state law determines which individual righ ts constitute property, see State ex rel. New Wen, Inc. v. Marchbanks , 159 Ohio St.3d 15, 2020- Ohio-63, 146 N.E.3d 545, ¶ 24. “An interest in real property i s defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the owner’s interest.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302, 331-332, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). We have recognized, for example, that “[a] mineral estate may be considered the relevant parcel for a compensable regulatory taking if the mineral estate was purchased separately from the other inte rests in the real property.” State ex rel. Shelly Materials, In c. v. Clark Cty. Bd. of Commrs ., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 34. {¶ 92} The property interest at stake in this case is a narrow one: a leasehold right to operate Class II saltw ater-injection wells on 5.2 acre s of industrial property in Weathersfield Township, Trumbull County, Ohio. AWMS has inv ested millions of dollars to develop the fac ilities necessary to operate those wells, but it may use the property only for operations consistent with the limited pr operty interest it owns. That is, AWMS cannot use t he property to operate a fast- food restaurant or a car dealership or anything else exceeding the scope of the le ase. Therefore, in determining whether the state’s order suspending AWMS’s operati ons at well #2 constitutes a total or partial taking, the property allegedly t aken is AWMS’s limited property right allowing it to operate saltwater-injection wells under its leasehold and the ancillary ac tivities associated with that right.January Term, 2020

36 {¶ 93} In the United States Supreme Court’s seminal decision in Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right t o remove the coal underneath thos e parcels. After the sale, Pennsylvania enacted a statute forbidding the mining of c oal that causes the subsidence of any structure use d as a human inhabitation unless , among other exceptions, the owner of the coal also owned the surface land. Id. at 412-413. The Supreme Court determined that th e statute had made it “commerci ally impracticable” to mine the coal and had “very nearly the same e ffect for constitutional purposes as appropriating or destroying” the res ervation of the
mineral interest. Id . at 414. The court therefore held that the statute effected a governmental taking of property. Id. at 415-416. {¶ 94} Similarly, AWMS’s evidence established a triable issue regardin g whether the state’s suspension or der caused a total taking of A WMS’s property by depriving its leasehold of “all economically beneficial or prod uctive use,” Lucas v.
South Carolina Coastal Council , 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). AWMS presented the report of its expert, Dr. Willi am W. Wade, who explained that AWMS had lost 99.4 percent of its investment by September 2015 and 101.5 percent of its investme nt by June 2017. He therefore opined that it was not economically viable for AWMS to conduct saltwater-injection operations at well #1 if the suspension order remained in place for well #2. That evidence, if believed, is sufficient to estab lish that the suspension order was a total governmental taking of AWMS’s property because it completely de prived AWMS of all economically beneficial use of its leasehold interest, a limited property right allowing AWMS to operate saltw ater-injection wells and to condu ct the ancillary
activities associated with the wells. See Lucas at 1015; Mahan at 414. A property right has no economic value if it can only be exercised at an e conomic loss.January Term, 2020

37 {¶ 95} Because Dr. Wade’s opinion creat ed a genuine issue of material fact regarding whether AWMS had suffered a total taking of its prope rty interest, it is unnecessary to consider other fact ual issues regarding whether AWMS’s leasehold
retained some economic value becau se AWMS could continue other kinds of operations on the premises or because it could sell or sublet i ts interest. Those
remain triable issues that shoul d be considered by the court of appeals on remand;
this court should not resolve fact ual disputes in the first ins tance when considering issues on appeal. Partial-takings analysis {¶ 96} Regarding AWMS’s partial-takings claim, I agree with the majori ty that there are genuine issues o f material fact that precluded t he entry of summary judgment in favor of the state. In determining whether a parti al taking has occurred, we apply the analysis from Penn Cent. Transp. Co. v. New York City , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). We have noted that the a nalysis involves an

an ad hoc, factual inquiry that requires the examination of the following three factors to determine whether a regulatory takin g occurred in cases in which there is no physical invasion and th e regulation deprives the property of less than 100 percent of it s economically viable use: (1) the economic impact of the regulat ion on the claimant, (2) the extent t o which the regulation has int erfered with distinct investment-backed expectations, and (3) the chara cter of the governmental action.

Shelly Materials , 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, at ¶ 19. {¶ 97} Regarding the first prong of the Penn Cent . test—the economic impact of the regulation—AWMS presented Dr. Wade’s expert opini on that the economic impact of the suspension order on AWMS was a loss of $ 20,595,045 andJanuary Term, 2020

38 the elimination of any return on investment. The state’s exper ts calculated the economic impact as ranging between $116,334 and $359,374. Acco rdingly, there is a significant factual dispute regarding the scope of the eco nomic impact that AWMS suffered. Without resolving this factual dispute, the cou rt of appeals had no basis to determine what weight, if any, to give the economic impact of the regulation on AWMS’s property. Simply assuming that this facto r weighed in AWMS’s favor, as the court of appeals did here, is no substitut e. There is a difference between assuming that this factor weighed in AWMS’s favor and finding that the suspension order has cost AWMS tens of millions of dol lars. {¶ 98} The majority therefore correctly determines that there are genu ine issues of material fact regarding the economic impact of the re gulation that precluded the court of appeals from granting summary judgment t o the state. {¶ 99} The second prong of the Penn Cent

. test requires us to evaluate the reasonableness of the property owner’s distinct investment-back ed expectations. In investing millions of dollars to construct saltwater-injection wells, AWMS had a reasonable expectation that it would be able to conduct its ope rations if it complied with the statutes enacted by the General Assembly and the rules promulgated by
the division. It was also more th an reasonable for AWMS to exp ect that it would
be able to continue saltwater-i njection operations as long as i t obeyed the terms of its permits. That is, AWMS had the right to expect that the st ate would adhere to the principle that “the governme nt itself is subject to rules o f law, and cannot disregard the law, or remake it to suit itself without heeding those procedures specified by law.” Cooper v. Gwinn , 171 W.Va. 245, 250, 298 S.E.2d 781 (1981). {¶ 100} The state might be correct when it calls AWMS’s investment “a
calculated investment risk.” How ever, that calculation was bas ed on AWMS’s expectations that the division w ould adhere to Ohio’s statutes and rules and AWMS’s permit conditions as written, which would allow AWMS’s c ontinued operation of its well if the terms of its permits were not viol ated. AWMS couldJanuary Term, 2020

39 reasonably rely on R.C. 1509.04(A) and (C), which allow saltwat er-injection operations to be suspended when there is a violation of a statu te, administrative rule, or condition of the permit, but only if (1) the operator has violated an order finding a material and substan tial violation or (2) continued o peration “presents an imminent danger to the health or safety of the public or that r esults in or is likely to result in immediate substantial damage to the natural resources of this state.” And AWMS could rely on the fact that neither the Revised Code nor t he division’s administrative rules include specific provisions regulating ind uced seismicity. And to the extent that Ohio law permits the division to include con ditions regarding induced seismicity in a permit, AWMS could rely on the fact tha t its permits did not contain express language empowering the division to suspend its operations due
to a seismic event of a specific magnitude. {¶ 101} The division and AWMS were both aware of the concerns that saltwater-injection operations c ould induce seismicity prior to the division’s issuing AWMS its permits, but the division nonetheless issued the permi ts for AWMS to construct two wells, without res erving its authority to suspend AWMS’s operations if the wells caused a particul ar amount of seismic activity. T he Supreme Court of the United States has recognized that that such approval “can l ead to the fruition of a number of expectancies embodied in the concept of ‘property’— expectancies that, if sufficiently important, t he Government m ust condemn an d pay for before it takes over the management of the landowner’s property.” Kaiser Aetna v. United
States , 444 U.S. 164, 179, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). And there have been no relevant changes to Ohio ’s regulatory scheme that shoul d preclude
AWMS’s continued reliance on the division’s approval. {¶ 102} Based on these facts, a factfinde r could conclude that the stat e’s suspension order interferes with AWMS’s distinct investment-bas ed expectations and that those expecta tions were reasonable.January Term, 2020

40 {¶ 103} In reviewing this second prong of the Penn Cent . test, the majority
focuses on “the state’s inconsiste nt regulatory approach” and “ its lack of responsiveness to AWMS’s attemp ts at remediation.” Majority op inion at ¶ 69.
But that evidence should not be considered solely under the sec ond prong of the
Penn Cent

. test, because it is also relevant in determining the character of the governmental regulation, which is the third prong of the Penn Cent . test. The third prong recognizes that there can be a range of governmental acti on that can affect property rights, from the physical invasion of property, to a r egulation that “merely affects property interests thr ough ‘some public program adjusti ng the benefits and burdens of economic life to promote the common good,’ ” Lingle v. Chevron
U.S.A. Inc ., 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), q uoting
Penn Cent ., 438 U.S. at 124, 98 S.Ct. 2646, 57 L.Ed.2d 631. The focus s hould appropriately be on “the degree t o which [the regulation] inter feres with legitimate property interests,” id . at 540, and draw on the understanding that the right to use property “is subject to the reas onable exercise of state author ity, including the enforcement of valid zoning a nd land-use restrictions,” Palazzolo v. Rhode Island , 533 U.S. 606, 627, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Our task here is to determine where on the continuum of governmental action the sta te’s suspension
order on AWMS fell. {¶ 104} Contrary to the majority’s reas oning, there are genuine issues of material fact that must be resolved before the third prong of Penn Cent

. test may be balanced against the first two f actors. AWMS presented evidenc e establishing that the division’s suspension order had neither been intended to pr omote public safety nor supported by science, but that it was imposed because of “p ress and politics.” AWMS supports that claim by pointing to situations involving ot her saltwaterinjection wells that had been permitted to continue their opera tions notwithstanding concerns about their inducing seis micity, including one that ha d been permitted to inject saltwater at reduced volumes rather than have its operat ions suspended.January Term, 2020

41 AWMS points to the division’s de lay in reviewing its plan for r estarting its operations, a plan that sought to mitigate potential seismic ac tivity through operational adjustments that had been successfully used with ot her wells. That is, “the state’s inconsistent regulat ory approach” and “its lack of responsiveness to AWMS’s attempts at remediation” that have left “AWMS in limbo f or years with an indefinite suspension of its operations,” majority opinion a t ¶ 69, support AWMS’s assertion that the suspension order is “not * * * a broa dly applied regulation to prevent or limit an existing threat to public saf ety or welfare[,]” but rather requires one injection-we ll operator to solely bear the burden of “a problem that is shared by its peers.” {¶ 105} This evidence establishes a factual dispute regarding the chara cter of the state’s regulation of A WMS’s operations and whether the state’s purpose is to protect the environment and pub lic safety or whether this “p articular exercise of the State’s regulatory power is so unreasonable or onerous as t o compel compensation,” Palazzolo at 627. {¶ 106} For these reasons, I agree with the majority that there are gen uine issues of material fact precluding the entry of summary judgmen t on AWMS’s total-takings and par tial-takings claims.

_________________ D ONNELLY , J., dissenting. {¶ 107} I would hold that appellants, AWMS Water Solutions, L.L.C.; AWMS Holdings, L.L.C.; and AWMS, Rt. 169, L.L.C. (collectively, “AWMS”), suffered neither a total nor a partial regulatory taking, and t hus I would affirm the judgment of the Eleventh District Court of Appeals. Accordingl y, I respectfully
dissent. Total-takings analysis {¶ 108} I start my regulatory-takings analysis where the majority does, by considering AWMS’s total-takings claim against the backdrop of the United StatesJanuary Term, 2020

42 Supreme Court’s decision in Lucas v. South Carolina Coastal Council , 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). In that case, th e property owner bought beachfront property for the purpose of developing it int o single-family
residences. Id. at 1006-1007. Later, the South Carolina legislature enacted legislation forbidding the owner from erecting any permanent ha bitable structures on the property, rendering the property “valueless.” Id. at 1007. The Supreme
Court of South Carolina determin ed that the legislation had not effected a governmental taking of the owne r’s property because the legisla tion’s purpose was to preserve beaches as a public resource. Id. at 1009-1010. {¶ 109} The United States Supreme Court re versed, determining that the legislation’s purpose had no place in a takings analysis. The Supreme Court held that “when the owner of real property has been called upon to s acrifice all economically beneficial uses i n the name of the common good, th at is, to leave his property economically idle, he has suffered a taking,” id. at 1019, unless the state can show that the owner’s “proscribed use interests were not pa rt of his title to begin with,” id. at 1027. The court explained that when a regulation deprives land of any “economically beneficial or produc tive options for its use—typi cally, as here, by requiring land to be left substantially in its natural state,” the regulation carries with it a “heightened risk that priv ate property is being pressed in to some form of public service under the guise of mitigating serious public harm.” Id. at 1018. {¶ 110} The facts presented in this case are a far cry from those invol ved in

Lucas . Appellees, the Ohio Department of Natural Resources (“ODNR”) ; ODNR’s director, Mary Mertz; ODNR’s Div ision of Oil and Gas Resources Management (“the division”); and the division’s chief, Richard Simmers (co llectively, “the state”), did not force AWMS to r ender its property economically idle by leaving it
to its natural state. AWMS continued to use well #1 after the division suspended operations at well #2. In fact, before AWMS voluntarily decide d to shut down its operations at well #1, it had ge nerated hundreds of thousands o f dollars in revenueJanuary Term, 2020

43 from its use. And as the court of appeals noted, even after we ll #2’s suspension, AWMS “still processed, stored, recycled, treated, and disposed of brine” on the property. 2019-Ohio-923, 132 N.E.3d 1151, ¶ 15. {¶ 111} Given that the property was, and still could be, used for incom eproducing purposes, I am puzzled by the majority’s decision to remand the cause to the court of appeals for further weighing of the evidence. The majority points to the parties’ competing economic-impact evidence, explaining tha t there is a genuine issue of material fact about whether the division’s sus pension of operations
at well #2 left AWMS’ leasehold va lueless. True, the parties’ experts offered sharply divergent opinions on how far AWMS undershot its origin al revenue goals and why. The majority correctly notes that the “ complete elimination of a property’s value” is the “determinative factor ” under the analysis espoused in a

Lucas . Majority opinion at ¶ 43, quoting Lingle v. Chevron, U.S.A., Inc. , 544 U.S. 528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005). But from a r egulatory-takings perspective, I fail to see how a property could ever be charact erized as valueless when the property is capable of being put to the economically b eneficial uses
discussed above. As Lucas itself makes clear, a property’s usage informs its value.
See Lucas , 505 U.S. at 1019, 1027, 112 S.Ct. 2886, 120 L.Ed.2d 798. {¶ 112} Indeed, we interpreted the reasoning in Lucas in precisely that way
in State ex rel. Shelly Materials, In c. v. Clark Cty. Bd. of Commrs. , 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59. In that case, a local zoni ng board had denied a company’s request for a permit to mine sand and gravel deposi ts located below the surface of the company’s property. Id. at ¶ 4. The company eventually responded by filing a total-takings claim. Id. at ¶ 14. In one part of our decision, we framed the takings question as turning on whether the govern ment had deprived the owner of all economically beneficial use of the property. Id. at ¶ 18. In another part of our decision, we framed the question as whether the com pany had suffered a “ ‘complete elimination of [the property’s] value.’ ” Id. at ¶ 22, quoting Lingle atJanuary Term, 2020

44 539. We ultimately rejected the co mpany’s argument that the go vernment’s denial of the permit destroyed “all ec onomic value associated with its property,” determining instead that “there are other potential uses available for th[e] land.” (Emphasis added.) Shelly Materials at ¶ 39. We noted that the property could be used for agriculture purposes or developed i nto residential lot s. Id. at ¶ 3. {¶ 113} Other authorities support this understanding of Lucas . According to a leading treatise on regulatory takings, “[t]he tenor of Lucas * * * continually reinforces the idea that ‘property’ consists of rights to use resources.” (Emphasis sic.) 1 Eagle, Regulatory Takings , Section 7-3(b)(5) (2018). While recognizing that the concept of value does appear in Lucas , the treatise explains that Lucas ’s discussion of value “is coupled w ith economically beneficial us e.” Id. This coupling arises from the fact that “[a] large component of prop erty, and of its value, is the right to receive streams of income in the future.” Id. at Section 7-3(b)(6). {¶ 114} The same treatise further observe s that the United States Court of Appeals for the Federal Circuit “has repeatedly found that a ca tegorical taking is measured by complete depriv ation of use, not value.” Id. at Section 7-3(b)(5). The United States Courts of Appeals for the Ninth and Fourth Circui ts have applied

Lucas ’s rule in a similar way. See, e.g. , Del Monte Dunes at Monterey, Ltd. v. Monterey , 95 F.3d 1422, 1433 (9th Cir.1996) ( “our focus is primarily on use, not value”), aff’d on other grounds , 526 U.S. 687, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999); Front Royal and Warren Cty. Indus. Park Corp. v. Front Royal , 135 F.3d 275, 286 (4th Cir.1998) (rejecting the claimant’s total-takings claim under Lucas
because the claimant had not bee n denied “the right to use its property”). {¶ 115} Today’s decision creates friction with those authorities and do es little to bring certainty to Ohio litigants, other than ensurin g that their litigation costs will rise. The majority’s holding will now make it neces sary for litigants to pay an expert to prepare an ec onomic-impact statement to prosec ute (or defend against) a total-takings claim brought under Lucas . Nor is the majority’s decisionJanuary Term, 2020

45 today likely to simplify matters for Ohio courts considering a total-takings claim. Rather than requiring courts to consider, as Lucas instructs, whether an owner has been forced to render his or her property economically idle by leaving it to its natural state (a simple enough inquiry), the courts will now be expected to sift through dense economic analyses and determine which litigant’s expert produced the more probative report. Nothing in Lucas requires that we leave these important questions of constitutional dimens ion in the hands of economist s and corporatestrategy analysts. {¶ 116} The upshot of the majority’s decision today is that Ohio taxpay ers might now be forced to bear the f inancial fallout of an inheren tly risky business venture. Justice Holmes warned of such dangers long ago, obser ving that “[g]overnment hardly could go on if to some extent values incid ent to property could not be diminished without payi ng for every such change in the general law.” Pennsylvania Coal Co. v. Mahon , 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922). I fear that the majority’s decision today has lost sig ht of that principle. Partial-takings analysis {¶ 117} I turn now to the majority’s ana lysis of AWMS’s partial-takings claim and the factors to be applied to that claim derived from Penn Cent. Transp. Co. v. New York City , 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). Although I agree with the majority’s analysis of the factor in Penn Cent

. examining the character of the governmental action and its conclusion tha t there is a genuine issue of material fact concerning the economic-impact factor, I would resolve the
Penn Cent . inquiry solely on the basis of the reasonable-investment-back edexpectations factor. {¶ 118} I agree with a good portion of the majority’s analysis of the f acts of
this case under Penn Cent .’s reasonable-investment-backed-expectations factor. As the majority correctly points out, the government’s regulati on of induced seismicity is an issue of enormous complexity. But, as the Fed eral Circuit noted inJanuary Term, 2020

46 Good v. United States , we have a “growing consciousness of and sensitivity toward environmental issues,” with the r esult here being that AWMS “mu st * * * have
been aware that standards could change to [its] detriment, and that regulatory approval could become harder to get.” 189 F.3d 1355, 1363 (Fed .Cir.1999). Given the added threat to public health and safety or damage to the e nvironment arising from human-induced earthquakes, the majority properly finds tha t the balance of the investment-backed-expectati ons factor tips in the state’s f avor. {¶ 119} Unlike the majority, however, I would go a step further and conclude that the balance tips decisively in the state’s favor, thus obviating the need
to address the other Penn Cent

. factors. That is precisely the approach that the Federal Circuit applied in Good when it held that “the government is entitled to summary judgment on a regulatory takings claim where the plaint iffs lacked reasonable, investment-backed exp ectations, even where the chal lenged government action ‘substantially reduc[ed] the value of plainti ff’s property.’ ” (Brackets sic.) Good at 1363, quoting Avenal v. United States , 100 F.3d 933, 937 (Fed.Cir.1996). The Ninth Circuit Court of Appeals has applied a similar approach. See Guggenheim v. Goleta , 638 F.3d 1111, 1120 (9th Cir.2010) (according dispositive status to its conclusion on the inquiry into reason able investmentbacked expectations). {¶ 120} The majority declines to accord controlling significance to the investment-backed-expectations f actor. I find it problematic t hat while the majority has applied a large swath of the Federal Circuit’s takings juri sprudence in this case, it has chosen not to apply it, as the Federal Circuit did in Good , to conclusively
resolve the Penn Cent . analysis on the basis of the expectations factor. I do not f ind the majority’s piecemeal approach to be particularly helpful. In order to better ensure predictability and uniformity in our takings jurispruden ce, the majority should follow the approach take n by the Federal Circuit in Good

.January Term, 2020

47 {¶ 121} More importantly, I find it probl ematic that the majority focus es on AWMS’s expectations at the time i t obtained its leasehold—rathe r than at the time of its investment. An analysis of a claimant’s reasonable inve stment-backed expectations should necessarily i nvolve consideration of the cl aimant’s expectations formed at the time of its investment. When an int erest in real property is relevant in a takings case, the economic investment and the price of acquiring the property interest are nor mally one and the same. See , e.g. , Love Terminal Partners,
L.P. v. United States , 889 F.3d 1331, 1337, 1346 (Fed.Cir.2018) (claimant’s investment was $6.5 million spent to acquire the property inter est). Not so here. {¶ 122} When AWMS obtained its leasehold in December 2011, its only “investment” was its promise to pay the lessor a 5 percent roya lty on any revenue eventually derived from each well from brine disposal. AWMS’s actual investment occurred, as AWMS itself states, when it spent millions of doll ars “constructing a
state-of-the-art dis posal [f]acility on the leasehold.” The ac tual investment did not start to take place until September 2013, long after the series of earthquakes that occurred in Youngstown, Ohio in December 2011, long after the d ivision took the “Northstar #1” well out of operation for causing the earthquake s, and long after the
statewide moratorium had been im posed on certain well-injection activities so that the division could study induced seismicity. At the time that AWMS’s actual investment occurred, AWMS expli citly acknowledged in its “confi dential offering memorandum” that it knew that the government’s regulation of in jection wells could increase in scope and comp lexity due to growing industry awareness, that
AWMS’s wells could cause a seismic event similar to the events that had occurred in Youngstown, and that a seismic event caused by AWMS’s wells could lead to the suspension of its injection operations. {¶ 123} All three factors in the reasonable-expectations analysis weigh heavily in the state’s favor: AWMS operates in a highly regulat ed industry, it was aware that induced earthquakes ha d caused state regulation of a n injection well inJanuary Term, 2020

48 its property’s vicinity by the time of its investment, and it e xpressly anticipated the possibility of such regulation of its own wells at the time of its investment. See Apollo Fuels, Inc. v. United States , 381 F.3d 1338, 1349 (Fed.Cir.2004). Contrary to the majority’s conclusion, AWMS was absolutely forewarned th at the division would regulate injection-well-i nduced earthquakes in the way th at the division did. {¶ 124} Accordingly, after the division ordered AWMS to temporarily suspend its operations at well #2 due to the likelihood that AW MS’s operations had caused multiple earthquakes, the court of appeals correctly hel d that the suspension
did not cause AWMS to suffer a total or partial regulatory taki ng. I therefore dissent and would affirm the judgment of t he Eleventh Dis trict Court of Appeals.

_________________ Brouse McDowell, L.P.A., Matthew G. Vansuch, and Kyle A. Shelto n, for appellants. Dave Yost, Attorney General, Sa muel C. Peterson, Deputy Solicit or General, and Brett A. Kravitz and W. Scott Myers, Assistant Att orneys General, for appellees.

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