Hellbender Digest 2013, In-Depth: Allegheny Defense Project and Sierra Club Appeal Decision to Third U.S. Circuit Court of Appeals to Protect the Allegheny National Forest
On November 3, 2012, Allegheny Defense Project and Sierra Club filed a notice that our organizations are appealing a decision by the U.S. District Court in Erie, PA that declared the U.S. Forest Service has no regulatory authority to protect the Allegheny National Forest from the impacts of private oil and gas development. Considering that 93% of the mineral rights underlying the Allegheny are privately owned, this decision will have profound impacts on land, air, and water resources, wildlife habitat, and recreation opportunities in the Allegheny, particularly in light of the unfolding shale gas boom. The District Court’s decision is deeply flawed because it ignored the very purpose for which national forests in the east were created in the first place – to restore and protect private lands that had been denuded by private industry – namely, the timber industry. Before diving into the District Court’s decision, however, it is necessary first to retrace how we got here in the first place.
Our initial 2008 lawsuit against the U.S. Forest Service
In November 2008, our organizations sued the Forest Service for its failure to conduct an environmental analysis pursuant to the National Environmental Policy Act (NEPA) before authorizing surface access to the Allegheny for private oil and gas development. Under NEPA, all federal agencies must conduct an environmental analysis for federal actions that could harm the environment. Prior to our lawsuit, the Forest Service said that since it did not own most of the mineral rights in the Allegheny, the drilling was not a “federal action.” Therefore, the Forest Service claimed that NEPA did not apply and, consequently, that it did not have to prepare an environmental analysis or allow the public an opportunity to comment before drilling activities commenced in the Allegheny.
While acknowledging that the Forest Service did not own most of the mineral rights in the Allegheny, our lawsuit nevertheless challenged the Forest Service’s assertion that this fact somehow relieved the agency of its obligations to comply with NEPA. Regardless of the mineral ownership, the Forest Service has discretion to tell oil and gas companies where to locate roads to access their well sites or to require certain mitigation measures to protect surface and water resources. This is enough to trigger the “federal action” requirement of NEPA and the need for an environmental analysis accompanied by an opportunity for the public to comment on proposed oil and gas drilling sites.
In early 2009, the Forest Service changed its tune and by April of that year, we reached a settlement agreement with the agency. Pursuant to the settlement agreement, the Forest Service agreed to undertake “appropriate NEPA analysis” on future private drilling proposals. The settlement defined “appropriate NEPA analysis” as a categorical exclusion (CE), environmental assessment (EA), or environmental impact statement (EIS). If the Forest Service thought a drilling project would not individually or cumulatively have a significant environmental impact, it could analyze the project through a CE, which is the lowest level of environmental analysis under NEPA. If the Forest Service was unsure what the environmental impact of a particular drilling proposal might be, it could have used the EA process, which is the mid-level of environmental review under NEPA. Finally, if the Forest Service thought that a drilling proposal may significantly impact the environment, an EIS, the most rigorous analysis under NEPA, would have been appropriate.
One lawsuit ends and another begins
Rather than utilizing “appropriate NEPA analysis” on a case-by-case basis, the Forest Service decided to prohibit future drilling until a forest-wide EIS was completed, which it admitted could take up to 3 years to complete. With the prospect of facing a multi-year period of no drilling in the Allegheny, the oil and gas industry sued all of the parties to the settlement agreement claiming that the Forest Service had no authority to regulate drilling activities in the Allegheny since it did not own the vast majority of the mineral rights – and, if there is no authority to regulate, there is no authority to conduct a NEPA analysis.
Unfortunately, in December 2009, the U.S. District Court in Erie agreed with the oil and gas industry and granted the industry’s request for a preliminary injunction against enforcement of the settlement agreement. That meant that the settlement was preliminarily blocked from implementation as the case proceeded on the merits. Our organizations and the Forest Service appealed the District Court’s preliminary decision in 2010 but the Third Circuit Court of Appeals upheld the decision in September 2011.
In its decision, the Third Circuit stated that the Forest Service did not possess the same kind of authority over national forests in the eastern United States that it possesses over national forests in the western United States. This distinction, the court said, was based on the particular laws creating the various national forests. In order to understand the Third Circuit’s reasoning, flawed as it may be, it is necessary to take a brief detour into the history of the National Forest System.
A (very) brief history of the National Forest System
In 1891, Congress passed the Forest Reserve Act, which authorized the President to set aside “forest reserves.” These forest reserves were created out of lands that were already owned by the federal government in the western United States, commonly referred to as “public domain” lands. The federal government owned these lands as a result of land cessions from foreign governments such as Great Britain and France or by taking the land from indigenous people. The Forest Reserve Act, however, provided no direction for how these new forest reserves were to be managed. In 1897, Congress provided that direction when it passed the Organic Act. The Organic Act provided the Forest Service with broad authority to regulate the “occupancy and use” of the forest reserves.
In the early 1900s, a push began to bring the concept of forest reserves, which had since been renamed as national forests, to the eastern United States. By this time, many forests in the east had been wiped out through extensive clearcutting, which had accelerated exponentially with the emergence of railroads in the late 19th century. This unprecedented level of clearcutting resulted in catastrophic wildfires throughout the eastern United States because of all the slash left behind to bake in the sun. The clearcutting also resulted in massive flooding since there was nothing to hold the soil in place anymore.
In 1911, Congress responded by passing the Weeks Act, the first federal law authorizing the federal government to acquire private land from individuals to conserve and protect as national forests. According to the Third Circuit, however, one section of the Weeks Act, Section 9, restricted the Forest Service’s authority to protect eastern national forests from individuals that had reserved the mineral rights prior to or at the time the land was sold to the United States. In other words, the Third Circuit held that Section 9 of the Weeks Act restricted, at least in regard to private mineral development, the Forest Service’s otherwise broad authority under the Organic Act to regulate the “occupancy and use” of the national forests created by the Weeks Act.
Deconstructing the Third Circuit’s decision
It is important to understand what this ruling means on the ground. Under the Third Circuit’s reasoning, if the Forest Service determines that someone is negatively impacting a national forest, it has broad authority under the Organic Act to regulate to minimize or prevent that harm. If that “someone,” however, is the owner of private minerals that underlie a national forest created by the Weeks Act, such as the Allegheny, the Third Circuit says that Section 9 of the Weeks Act substantially restricts the Forest Service’s is authority to prevent or to even minimize that harm. This strained distinction essentially creates two separate national forest systems and threatens many eastern national forests where private ownership of the mineral estate is much more common than it is in the western U.S. If the Third Circuit’s reasoning takes hold in other parts of the eastern U.S., the Forest Service could be prohibited from taking actions to protect national forest lands from all types of private mineral development, whether it is traditional shallow oil and gas drilling, deep shale gas drilling and fracking, coal mining, or uranium mining.
At the time the Third Circuit made its decision, the court and the parties were reading Section 9 of the Weeks Act in its current amended form, not as it originally existed in 1911. Unbeknownst to us at the time, Congress significantly amended Section 9 in 1913 and it is this version that the District Court and the Third Circuit relied on in their respective preliminary decisions. More about the distinctions between the 1911 and 1913 versions of the Weeks Act in a bit; first, let’s explore more closely the courts’ preliminary decisions.
The District Court said that under Section 9 the Forest Service “only” had whatever rights were contained in each individual deed at the time the surface was sold to the United States. According to the District Court, none of the deeds could be read in a way that implicated the need for a NEPA analysis or to engage in any broader regulation than was contemplated at the time the deed was executed. In other words, whatever “rules and regulations” were expressed in the deeds were the full extent to which the Forest Service could regulate a private mineral owner’s “occupancy and use” of national forest lands created under the Weeks Act. Such a significant restriction on the Forest Service is in sharp contrast to the agency’s much broader authority under the Organic Act to regulate the “occupancy and use” of national forests by anyone other than the owner of private minerals.
We argued on appeal, however, that it was improper for the District Court to read the word “only” into Section 9 since it was not there. Section 9 simply stated that when the Forest Service acquired the surface estate, the seller could reserve the mineral rights and that certain “rules and regulations” could be inserted into the deeds regarding the Forest Service’s authority over the lands underlain by those private minerals. In such cases, Section 9 provided that the exercise of those private mineral rights “shall be under, subject to, and in obedience with the rules and regulations so expressed.” Nowhere did Section 9 say that these “rules and regulations” were the Forest Service’s “only” authority to regulate, as the District Court said. In other words, we argued that the better reading of Section 9 is that the “rules and regulations” that were expressed in the deeds represented the baseline, or “floor,” of the Forest Service’s regulatory authority to protect national forests created under the Weeks Act, not the ceiling.
The Third Circuit, however, said that the only way to interpret Section 9 was to read the word “only” into it as the District Court had done. Thus, the Third Circuit said that the Forest Service’s “only” authority to regulate private oil and gas drilling in the Allegheny (and, theoretically, other national forests created under the Weeks Act) was based on whatever language was in the deeds, many of which are nearly a century old. Agreeing with the District Court, the Third Circuit said that none of the deeds contained language that could be interpreted to provide the Forest Service with the authority to substantively regulate oil and gas drilling in order to protect the Allegheny National Forest. And, since there is no authority to regulate, the Third Circuit said the Forest Service was prohibited from engaging in a NEPA process as a precondition prior to the commencement of drilling operations.
As an initial matter, the Third Circuit simply got it wrong in interpreting the language in the deeds. For example, the earliest deed language, which was written just months after the Weeks Act passed in 1911, expressly stated that, “buildings, camps, roads, bridges, and other structures or improvements necessary in carrying on mining operations shall be located as approved by the Forest officer in charge.” (emphasis added). Furthermore, the deeds said that private mineral owners “shall” seek the Forest Service’s “permission” before cutting any trees necessary to build roads or well sites. This language clearly indicates that the federal government expected private mineral developers to seek approval from the Forest Service before commencing any operations to extract their minerals. Any other reading of these provisions is simply irrational. The Third Circuit’s decision, however, essentially reads this language out of the deeds.
At this point, it is necessary to point out that the Third Circuit’s preliminary decision addressed two different kinds of private mineral estates that exist in the Allegheny and other national forests created by the Weeks Act: “reserved” and “outstanding.” So far, our discussion has focused solely on that part of the Third Circuit’s preliminary decision that addressed “reserved” mineral rights and the distinctions between these two types of private mineral estates will be explored in more detail below. With regard to “outstanding” mineral rights, it is only important at this point to understand that the Third Circuit said that the Forest Service has even less authority to regulate “outstanding” mineral rights than it does “reserved” mineral rights. The Third Circuit’s reasoning in regards to both “reserved” and “outstanding” mineral rights is equally flawed, as will be explained in detail below.
While the Third Circuit’s decision is problematic on these and numerous other grounds, it did contain an important qualifier. The Third Circuit stated that its decision was based on there being no evidence in the record demonstrating a legislative intent from Congress to empower the Forest Service with regulatory authority to protect the surface from the impacts of private oil and gas drilling. In other words, if there was evidence that Congress did not intend for Section 9 of the Weeks Act to restrict the Forest Service’s broad authority to regulate under the Organic Act, the Court may be convinced that its authority would not be limited “only” to what was contained in the deeds. Following the Third Circuit’s decision, we set out to exhaustively research the history of the Weeks Act. What we found demonstrates that Congress did in fact intend the Forest Service to have the same type of authority over national forests acquired under the Weeks Act that it had over other national forests that already existed at the time in the western United States.
The Weeks Act and the establishment of national forests in the eastern U.S.
In the early 1900s, Congress began debating early versions of legislation that would eventually become the Weeks Act in 1911. A 1908 Senate Report documented the destruction of the forests in the eastern United States and specifically noted that the states had failed to protect their own resources. These failures led to widespread flooding that impacted downstream states. For example, clearcutting in the mountains of West Virginia caused extensive flooding to the north in Pittsburgh via the Monongahela River. Thus, Congress said this was no longer an issue that could be resolved by the states on a state-by-state basis – this was an issue of national scope and importance. Several states even lobbied Congress to step in and regulate where the states had failed.
A 1910 Senate Report further highlighted the intent of Congress to empower the Forest Service to regulate to protect these national forests. The report specifically stated that the people in the eastern states wanted national forests that mirrored the national forests in the western states. The report further declared that it was only the federal government that had the resources and the power to initiate such an endeavor.
In fact, Congress relied on the experience of European countries to justify its rationale for the federal government owning the land outright in order to best protect it. For example, Congress said that European nations “passed through three stages in their treatment of mountain forests.” The first stage, “unrestricted individual ownership,” had “uniformly failed.” That was an important admission since that was essentially the stage the eastern United States was in at the time Congress debated whether or not to pass the Weeks Act. Unrestricted individual ownership of forestlands in the eastern U.S. led to rampant clearcutting and the destruction of forested watersheds.
The second stage was “individual ownership with government regulations as to cutting and fire protection.” Congress frowned on this approach, however, “because of the difficulty of enforcement.” How could the federal government properly regulate and monitor millions of forested acres throughout the eastern U.S. if those forests are owned by thousands of individuals?
The third stage, which Congress said was “the only one that has been entirely successful” in Europe, included “government ownership” of the forests. (emphasis added). Thus, in March 1911, Congress chose this approach when it passed the Weeks Act. Congress decided that the only way to protect many eastern forests was for the federal government to step in and acquire these cut-over lands from willing sellers.
As originally written, Section 9 of the Weeks Act only allowed the federal government to acquire land from a surface owner who also owned the mineral rights. In other words, if “Landowner A” owned both the surface and the subsurface mineral rights, the transaction conveying the surface to the United States while reserving the mineral rights to the seller would look as follows:
A > U.S.
A A
This situation is commonly referred to as “reserved” mineral rights – after the transaction, the United States owns the surface but the seller reserves the mineral rights and has the right to “reasonable access” across the now federal surface to explore for and develop those minerals. What the drafters of the Weeks Act had not anticipated, however, was the fact that there were many instances where the surface and mineral estates already had been severed in previous transactions between private parties. More on that situation in a bit – but first, let’s continue exploring “reserved” mineral rights.
As originally written in 1911, and unbeknownst to us at the time of the Third Circuit’s preliminary decision, Section 9 of the Weeks Act stated that drilling for “reserved” minerals could be regulated “only under and in obedience to the rules and regulations” that were expressed in the deeds conveying the land to the federal government. (emphasis added). This reading of Section 9 would appear to restrict the Forest Service’s authority to whatever “rules and regulations” were expressed in the deeds when the federal government purchased the land. Soon after the passage of the Weeks Act, however, those in charge of selecting the lands to purchase requested that Congress expand the scope of the Weeks Act and relax its provisions somewhat.
For example, Secretary of War Henry Stimson was put in charge of the National Forest Reservation Commission, which Congress created in Section 4 of the Weeks Act. The Commission’s job was to “consider and pass upon such lands as may be recommended for purchase” by the Secretary of Agriculture. Soon after Secretary Stimson began the process of selecting lands to purchase, he discovered that Section 9 needed to be amended. Specifically, Secretary Stimson said that Section 9 “should be more elastic and greater discretion in the matter be vested in the commission.” More importantly, Secretary Stimson said that if Congress amended Section 9 as he recommended, the Forest Service would be in a much better position to protect the land. Specifically, Secretary Stimson said that if the federal government owns the land, a “vigorous enforcement” of the “laws of Congress” would protect these soon-to-be national forests.
Heeding Secretary Stimson’s advice, Congress amended Section 9 of the Weeks Act in 1913 by adding a provision that expanded the Commission’s authority to acquire additional lands where the mineral estate already had been severed in a previous transaction. In other words, in addition to buying land with “reserved” mineral rights, the Commission could also buy land with what are commonly referred to as “outstanding” mineral rights, a situation depicted as follows:
A > B > U.S.
A A A
Thus, when original Landowner A sold the surface to Landowner B, Landowner A kept the mineral rights. Then Landowner B sold the surface to the United States, subject to the previous “outstanding” reservation of the mineral rights by original Landowner A.
Just as significant, Congress also amended the part of Section 9 regarding “reserved” mineral rights by specifically deleting the word “only” from the sentence that was described above. In other words, the “rules and regulations” expressed in the deeds were no longer the “only” authority possessed by the Forest Service to regulate drilling for “reserved” mineral rights in national forests created under the Weeks Act. These two changes to the Weeks Act in 1913 responded precisely to Secretary Stimson’s calls for enhancing the Commission’s authority to acquire more lands and to make the language of Section 9 “more elastic” so that the national forests could be protected by the “vigorous enforcement” of the “laws of Congress” rather than being limited “only” to what was in the deeds.
What was Congress thinking when it included Section 9 in the Weeks Act?
At this point you may be questioning why Congress included Section 9 in the Weeks Act in the first place? If Congress wanted the Forest Service to have the same type of regulatory authority over eastern national forests that it did over western national forests, why include Section 9? The answer involves two Supreme Court cases that were decided a few decades earlier, both of which addressed the federal government’s authority to regulate its own land. These cases addressed the federal government’s role as both a “proprietor” and a “sovereign” in terms of its relationship to the land that it owns.
This distinction between the federal government’s role as both a “proprietor” and a “sovereign” requires some explanation. When the federal government acts in its capacity as a sovereign, its power is at its greatest. If there are any conflicting state laws, the federal law trumps the state law in accordance with the Supremacy Clause of the U.S. Constitution. On the other hand, when the federal government acts in its capacity as a proprietor, it will be treated essentially as just another entity under state law – its power is no more or less than that of other individual landowners under state law.
In Fort Leavenworth Railroad Co. v. Lowe (1885), the Supreme Court suggested that in some instances the federal government’s authority over land that it acquires might not be as broad as it is over land that has always been in its possession. The Supreme Court said that in such cases, the federal government might only be considered to have the authority of an ordinary proprietor, meaning that it would be treated just like any other landowner under state law. In Camfield v. United States (1897), however, the Supreme Court considered the scope of federal authority over the newly created national forests in the western United States. As stated above, these national forests were created out of land that was already owned by the United States (i.e., “public domain” national forests rather than “acquired” national forests). In Camfield, the Supreme Court said that the Forest Service’s authority to regulate to protect the national forests is extensive. In fact, the Court said the authority to regulate was so broad that the Forest Service could even regulate private land adjacent to the national forest if it was necessary to protect the national forest.
The issue in Camfield involved a private landowner who had erected a series of fences on his land in a way that completely enclosed substantial areas of a national forest in Colorado. The Supreme Court said that the Forest Service had authority under federal law to remove those fences because it was interfering with the management of the national forest and impeding the migration of wildlife. Nothing in Camfield, however, limited or overturned the Supreme Court’s previous decision in Fort Leavenworth.
Therefore, when Congress was debating whether or not to pass the Weeks Act in the early 1900s, it had before it two somewhat conflicting Supreme Court decisions regarding the federal government’s authority to regulate its own land. On the one hand, the Supreme Court seemed to suggest that the federal government’s authority to regulate acquired federal land might not be as extensive as its authority over public domain federal lands (Fort Leavenworth). On the other hand, the Supreme Court emphatically stated that the federal government’s authority to regulate public domain national forests is so extensive that it can even regulate private land adjacent to the national forest (Camfield).
So it is reasonable to assume that Congress included Section 9 in the Weeks Act as a sort of “insurance policy” that would protect the federal government’s interests should the reasoning in Fort Leavenworth ever become the controlling doctrine. In other words, Section 9 was aimed at the situation in which the Supreme Court had at one time suggested that the federal government’s authority over acquired federal land might be limited to that of an ordinary proprietor and, therefore, limited to whatever rights existed under state law. If that ever became controlling Supreme Court precedent, then Section 9 of the Weeks Act would ensure that the provisions that had been included in the deeds fully protected the Forest Service’s authority as a proprietor under state law. Furthermore, Section 9 made sense in terms of consistency since it would ensure that the Forest Service had the same “rules and regulations” as a proprietor under state law in all Weeks Act national forests rather than being subject to state laws that frequently vary from state to state.
There is nothing in the legislative history of the Weeks Act, however, to suggest that Congress intended Section 9 to restrict the federal government’s authority as a “sovereign” under federal law. In other words, while Section 9 was a means to fully protect the Forest Service’s interests as a proprietor under state law, it was never intended to restrict any of the Forest Service’s authority to regulate the “occupancy and use” of Weeks Act national forest lands as a sovereign under the federal Organic Act. The Forest Service, therefore, retained all of its broad authority under the Organic Act to regulate the “occupancy and use” of Weeks Act national forests, including that of private mineral operators.
Decades later, the Supreme Court put to rest the distinction between “public domain” and “acquired” national forests in regards to the federal government’s authority to regulate federal property. In Kleppe v. New Mexico (1976), the Supreme Court stated that it does not matter how the federal government comes to own land under its control; according to the Court, whether a national forest is “public domain” land or “acquired” land is irrelevant because Congress “retains the power to enact legislation respecting those lands pursuant to the Property Clause [of the U.S. Constitution]…and when Congress so acts, the federal legislation necessarily overrides conflicting state laws.” The Supreme Court further stated that the federal government’s authority to regulate federal land is “without limitations.”
A few years later, the Eighth Circuit Court of Appeals, in Minnesota v. Block (1981), summarized the Supreme Court’s decision in Kleppe as follows:
Prior to Kleppe, language in Supreme Court opinions [such as Fort Leavenworth] supported the argument that Congress’ power over federally-owned property did not exceed “the rights of an ordinary proprietor” …. The Court in Kleppe, however, rejected any narrow construction of the Property Clause, holding that Congress possessed full legislative/police power over activity occurring on federal property. In other words, any conduct taking place on United States land may be subject to congressional authority, regardless of its relationship to that land. (emphasis added).
This is the proper reading of the Forest Service’s authority relative to private oil and gas rights in the Allegheny National Forest and other national forests created by the Weeks Act. Regardless of the Forest Service’s relationship to the land, the federal government may place reasonable restrictions on the “occupancy and use” of national forests by the owners of private oil and gas rights. Any other reading defies the purposes for which the Allegheny and other Weeks Act national forests were created in the first place – to restore and protect these forests after decades of wanton clearcutting and feckless or non-existent regulation by the states.
As stated earlier, the Third Circuit said that the Forest Service had even less authority to regulate “outstanding” mineral owners than it does “reserved” mineral owners. According to the Third Circuit, that is because there is no contractual relationship between the Forest Service and the owner of outstanding mineral rights like there is between the Forest Service and the owner of reserved minerals. In reserved mineral situations, the Forest Service is directly contracting to purchase land from a landowner who also owns the minerals but decides to keep them. In outstanding mineral situations, the Forest Service is contracting to purchase land from a landowner who does not own the minerals. Thus, the Third Circuit said there are no “rules and regulations” that could be placed in the deed conveying the surface to the United States because the minerals were owned by a third party.
The Third Circuit’s reasoning, however, ignores the Supreme Court’s decision in Camfield. Remember in Camfield, the Supreme Court said that the Forest Service’s authority to protect the national forests was so broad that it could even regulate private land adjacent to the national forest if it was necessary to do so in order to protect the national forest. There is obviously no contractual relationship between the Forest Service and the owner of private land adjacent to a national forest. Therefore, if the Forest Service can extend its arms to reach horizontally and regulate private land adjacent to a national forest, it can certainly regulate vertically to protect a national forest from the impacts of a private mineral operator.
Finally, it is important to specifically highlight the impropriety of the Third Circuit reading the word “only” back into Section 9 of the Weeks Act. As stated above, the Third Circuit said that the only reasonable way to interpret Section 9 was to read it so that the “only” regulatory authority possessed by the Forest Service were those “rules and regulations” included in the deeds at the time the surface was sold to the United States. That interpretation, however, was before we knew that the word “only” had existed in the 1911 version of the Weeks Act but was later deleted in the 1913 after Secretary Stimson lobbied Congress to make Section 9 “more elastic” so that “vigorous enforcement” of the “laws of Congress” could better protect these national forests.
There is a cardinal rule that when Congress deletes words from a statute, it does so for a reason and the courts are prohibited from rereading those words back into the statute. It was one thing for the Third Circuit to read the word “only” into the Weeks Act when it was unaware of the changes to the law between 1911 and 1913. It would be quite another thing for the Third Circuit to continue to read the word “only” into Section 9 now that we know that Congress expressly deleted that word so that the Forest Service was not limited “only” to the “rules and regulations” expressed in the deeds.
Pennsylvania consented to broad federal regulation of the Allegheny National Forest
In addition to researching the history of the Weeks Act, we also researched the history related to the creation of the Allegheny National Forest. Section 7 of the Weeks Act required the Secretary of Agriculture to obtain the consent of the state legislature before purchasing land within a state for national forest purposes. In May 1911, just two months after Congress passed the Weeks Act, the Pennsylvania Legislature passed a law consenting to the United States acquiring land within the state to set aside as the Allegheny National Forest.
The Pennsylvania consent legislation explicitly provided that the “United States of America is hereby empowered to pass such laws … as in its judgment may be necessary for the management, control, and protection of such lands acquired” for national forest purposes. (emphasis added). While such a grant from the state legislature is probably not required for the federal government to invoke its regulatory powers under the Constitution, this consent nevertheless demonstrates that the Pennsylvania Legislature in 1911 clearly intended to turn over the “management” and “control” of these lands to the federal government so that it could “protect” these lands under federal law.
It is important to note that at the time the Pennsylvania Legislature consented to federal acquisition of lands within the state to be set aside as a national forest, oil and gas drilling was quite common in Pennsylvania. Indeed, the country’s first commercial oil well, the Drake Well, was drilled just a few miles west of what is now the Allegheny National Forest in 1859. So the Pennsylvania Legislature was certainly aware of the extensive oil and gas deposits in and around what would become the Allegheny National Forest. The Pennsylvania Legislature, however, made no attempt to condition its consent in a manner that would limit the federal government’s authority to regulate. Rather, the Pennsylvania Legislature unambiguously turned the “management” and “control” of what is now the Allegheny National Forest over to the federal government.
Conclusion
It is clear that the Forest Service has sufficient authority under federal law to place reasonable restrictions on the “occupancy and use” of the Allegheny National Forest by private oil and gas developers. The history of the Weeks Act, which the Third Circuit did not consider in its initial decision, clearly demonstrates that Congress intended the Forest Service to have the same broad authority to regulate to protect national forests created by the Weeks Act that it had to protect other national forests that existed at the time in the western United States. Furthermore, the Pennsylvania Legislature clearly intended to turn over the management and control of these lands to the federal government when it consented to the creation of what is now the Allegheny National Forest.
Although we presented all of this evidence to the District Court at the merits stage of the litigation, the District Court ignored nearly all of it in its most recent opinion in September. Despite the fact that the Third Circuit’s initial opinion conditioned its holding on there being no evidence in the record of Congress’ intent to empower the Forest Service to regulate to protect the national forests from private mineral development, and our subsequent research that clearly establishes that Congress did in fact have that intent, the District Court said that, although we did not present these “precise arguments” at the preliminary injunction stage, the new evidence was essentially a rehash of what was previously argued. Therefore, the District Judge refused to even consider this new evidence.
So after all of that, we are once again appealing the District Court’s decision to the Third Circuit. Much of what was outlined above will be included in our arguments to the Third Circuit. We are confident that an objective reading of the history of the Weeks Act will satisfy the Third Circuit’s previous condition regarding its desire to see that Congress intended the Forest Service to have the authority to regulate to protect the Allegheny National Forest from the impacts of private oil and gas drilling.
On November 3, 2012, Allegheny Defense Project and Sierra Club filed a notice that our organizations are appealing a decision by the U.S. District Court in Erie, PA that declared the U.S. Forest Service has no regulatory authority to protect the Allegheny National Forest from the impacts of private oil and gas development. Considering that 93% of the mineral rights underlying the Allegheny are privately owned, this decision will have profound impacts on land, air, and water resources, wildlife habitat, and recreation opportunities in the Allegheny, particularly in light of the unfolding shale gas boom. The District Court’s decision is deeply flawed because it ignored the very purpose for which national forests in the east were created in the first place – to restore and protect private lands that had been denuded by private industry – namely, the timber industry. Before diving into the District Court’s decision, however, it is necessary first to retrace how we got here in the first place.
