March 15, 2010
By Cathy Pedler, Forest Watch Coordinator
Tuesday, March 9, 10AM, Bill Belitskus, Megan Rulli, our attorney Marianne Dugan, and I headed to Courtroom C in the Erie Federal Courthouse for oral arguments on the US Forest Service's motion for reconsideration of Federal Judge Sean McLaughlin's disappointing December 2009 decision in Minard Run Oil Company, POGAM v. U.S. Forest Service, Attorney General Eric Holder, Forest Service Employees For Environmental Ethics (FSEEE), Allegheny Defense Project (ADP), and Sierra Club.
I had not rallied the troops for the March 9 court date since in the last oral argument that we attended (for Duhring Resources v. USFS --ADP defendant intervenors and POGAM plaintiff intervenors), Pittsburgh Federal Judge Lancaster took the attorneys, including Thomas Buchele and Paul Burroughs who were representing ADP, into chambers, leaving Bill Belitskus, Jim Kleissler, Peter Wray, Matt Peters, and I to hang out in the courtroom with some of our favorite oil and gas characters: Duhring Resources' Arthur Stewart, and Pennsylvania General Energy's Craig Mayer.
On March 9, however, the proceedings stayed in the courtroom, which was packed with at least 40 oil and gas industry representatives and their attorneys. The industry attorney’s were Matthew Wolford; Timothy McCrum (Crowell and Moring, LLP); and Steven Lechner (Mountain States Legal Foundation). Albert Schollaert and Ruth Ann Storey of the Department of Justice represented the Forest Service. Marianne Dugan represented ADP, the Sierra Club, and FSEEE.
We knew that Judge McLaughlin was unlikely to alter his decision. When he read his order into the record shortly before lunch on March 9, he had indeed declined to change his opinion. However, Judge McLaughlin did concede to grant a request by the Forest Service to clarify his opinion. The industry claimed that the Judge's December decision in Minard Run Oil Company, POGAM v. U.S. Forest Service, Attorney General Eric Holder, FSEEE, ADP, and Sierra Club allowed them to commence their drilling activities, including cutting public timber and bulldozing roads on public land, without the consent of the Forest Service on the 61st day after the company gave notice to the Forest Service.
However, the Judge explained that his decision, "...did not, and was not intended to grant carte blanche..." to the oil and gas drillers. He explained that a period of time longer than 60 days may be necessary for the owners of the surface and the sub-surface estates to come to agreement about how the sub-surface owner could access his estate without destroying or unduly damaging the surface owners property.
Judge McLaughlin's December decision enjoined a settlement that we had reached with the Forest Service in Forest Service Employees for Environmental Ethics, Allegheny Defense Project, Sierra Club v. U.S. Forest Service (POGAM and AFA - defendant-intervenors). The settlement agreement required the Forest Service to comply with the National Environmental Policy Act (NEPA) by conducting environmental analysis of proposed oil and gas drilling in order to mitigate impacts to the public’s (surface) resources and by providing public notice, and opportunity for comment and appeal.
Judge McLaughlin’s decision, however, effectively bars the Forest Service and the public from having any meaningful input into decisions regarding surface disturbance related to oil and gas drilling on the Allegheny (e.g., logging, road building, tank batteries, 3D seismic testing using explosives, Marcellus Shale well water impoundments, and wastewater pits, etc).
In January 2010, Allegheny Defense Project, Sierra Club, and FSEEE appealed the December 2009 decision in Minard Run Oil Company, POGAM v. U.S. Forest Service, Attorney General Eric Holder, FSEEE, ADP, and Sierra Club to the 3rd Circuit Court of Appeals because the decision fails to recognize the Forest Service as a federal agency that has proper authority to regulate oil and gas drilling on federal public land. The Forest Service has not yet decided to appeal, but now has a window of 60 days from March 9, 2010 to do so.