Contact: William Perry Pendley, 303/292-2021, Ext. 30

December 27, 2013 – DENVER, CO. The U.S. Court of Appeals for the Third Circuit in Philadelphia today refused to rehear a September 2013 ruling affirming a September 2012 ruling by a Pennsylvania federal district court in favor of Pennsylvania energy operators. In that ruling, a three-judge panel dismissed an appeal by three environmental groups consistent with a ruling in September 2011 by another panel upholding a December 2009 ruling by the Pennsylvania federal district court. In June 2009, the energy operators sued the U.S. Forest Service for settling the environmental groups’ lawsuit. In December 2009, the district court barred the agency from implementing its agreement, barred studying the use of private oil, gas, and mineral rights beneath the Allegheny National Forest (ANF), and lifted the moratorium on oil and gas drilling in the ANF. In 2012, the district court converted its 2009 preliminary injunction into a final declaratory judgment.

Minard Run Oil Company and the Pennsylvania Independent Oil and Gas Association are represented by Mountain States Legal Foundation (MSLF), the District of Columbia law firm of Crowell & Moring, and the Wolford Law Firm of Erie.

“Our victory has been upheld by six of the Third Circuit’s judges and should end the matter,” said William Perry Pendley, MSLF president.

The ANF, which covers 500,000 acres in Elk, Forest, McKean, and Warren Counties in northwestern Pennsylvania, comprises lands that were once privately owned and were purchased under the 1911 Weeks Act during the 1920s. Because the United States bought only the surface estate, most of the mineral rights in the ANF are privately owned. Thus, there is no contractual basis for any federal government regulatory authority over outstanding oil, gas, and mineral (OGM) rights in the ANF.
Although, under Pennsylvania law, owners of OGM estates have the right to go onto the surface to access their property and to use as much of the surface as necessary to remove it, the law provides for accommodation; therefore, OGM rights must be exercised with “due regard” for the interests of surface owners. That the United States owns the surface does not change the law. In accordance with the Forest Service Manual, the Forest Service has only limited rights as to the use of OGM rights within the ANF. This was recognized by a Pennsylvania federal district court in a 1980 ruling.

For decades, the Forest Service adhered to the law and its policy and responded to an operator’s 60-day notice of its plans with consultations and a notice to proceed. A notice to proceed, however, is not a decision to allow oil and gas development because the Forest Service has no regulatory power over OGM rights. In 2007, the Forest Service began to reverse this policy.


Diane L. Patrick
Assistant to the President
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, CO 80227
303/292-2021, Ext. 27

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.