Last month, in State ex rel. AWMS Waters Solutions, LLC v. Mertz, the Eleventh Appellate District held that AWMS had failed to establish a sufficient property interest in its injection well permit (and other property) in order to assert a regulatory taking under the Fifth Amendment to the U.S. Constitution.[1] In particular, the court held that while AWMS may have a protected property interest in that permit for purposes of due process, that “does not transform the permit or the benefits it confers into a vested, cognizable property interest under the Just Compensation Clause.” Rather, the property interest must be transferable, must include a right to exclude others, and must exist independent of the regulatory scheme in order to be compensable in nature under the Just Compensation Clause. Here, according to the court, none of that was the case, and therefore AWMS has no cognizable property interest in its permit. For more, see the decision here.
[1] 2022-Ohio-4571.