Minard appeals continue

The Allegheny Defense Project is trying to convince a federal appeals court not to throw the baby out with the bath water. In fact, the group would like most of the bath water back.

In a brief filed Monday, March 11, with the Third Circuit U.S. Appeals Court, attorney Marianne Dugan asked the court to overturn decisions made in that court and in federal district court with regard to an ongoing case primarily between oil and gas developers and the U.S. Forest Service.

The case of Minard Run Oil Co. vs. the U.S. Forest Service includes several other parties. Pennsylvania Independent Oil and Gas Association (PIOGA), the Allegheny Forest Alliance (AFA), and Warren County were involved on behalf of the plaintiffs, while several officials of the Forest Service, Forest Service Employees for Environmental Ethics (FSEEE), Allegheny Defense Project (ADP), and the Sierra Club are listed among the defendants.

According to the brief, the district and appeals courts improperly cut the legs out from under the federal Weeks Act of 1911 that enabled the U.S. government to buy private land for the purpose of protecting headwaters of rivers and watersheds in the eastern U.S.

“This court’s preliminary ruling effectively nullified the very reason Congress authorized federal ownership of these lands,” Dugan wrote. “Congress specifically developed the Weeks Act model to acquire private lands and place them under federal control because of the states’ and private property owners’ failure to protect these resources.”

She cited a 1913 amendment to the Weeks Act that removed some of its original limitations and was not presented to the court in previous briefs. “Understandably, therefore, neither the district court nor this court addressed this change between the original Weeks Act and the 1913 amendment,” she wrote.

In 1911, the Pennsylvania legislature passed a bill allowing the federal government to acquire land in the state and “pass such laws… as in its judgment may be necessary for the management, control, and protection of such lands…”

Dugan wrote that the case “is not about whether… mineral rights owners must be allowed entry onto the surface lands. It is undisputed that mineral owners have that right.”

The environmental defendants would, however, like to see the Forest Service legally return to performing “appropriate National Environmental Policy Act analysis” of proposed drilling sites prior to development. That portion of a settlement agreement between ADP and the Forest Service was struck down in district court.

The forest service declared that it would perform a forest-wide environmental impact study prior to issuing new permits to drilling proposals. That study would effectively create a moratorium on new drilling for years. The district court struck down the entire agreement.

“Although the USFS’s unnecessary moratorium was not reasonable regulation, that one unreasonable act does not warrant striking down all federal regulation of mineral right underlying Weeks Act forests,” Dugan wrote. “ADP respectfully requests that the decision of the United States District Court be reversed in its entirety and summary judgment granted to the citizen defendants.”