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Summary Judgment

An Early Christmas Gift In Northwestern Pennsylvania

Jan 01, 2010 | by William Perry Pendley

In Warren, Pennsylvania on December 15, 2009, days before Christmas, it was overcast and cold, with a 50 percent chance of snow; in fact, daytime temperatures were not expected to break 30, nighttime readings would hit the single digits, and lake effect snow off Lake Erie was a possibility. Nonetheless, the mood was bright; a federal district court had just ruled against the Obama Administration by ending a moratorium the U.S. Forest Service had imposed on oil and gas operations in the surrounding Allegheny National Forest (ANF).

Warren is less than 40 miles from Titusville, where, 150 years ago last summer, the first successful commercial oil well was drilled making it the birthplace of America's oil and gas industry. It is no surprise, therefore, that oil and gas operations have been a mainstay of the local economy ever since, especially within the 500,000-acre ANF in Elk, Forest, McKean, and Warren Counties. Because the ANF is comprised of land purchased by the Forest Service in the 1920s and because the Forest Service bought only the surface, most (93%) of the oil, gas, and mineral (OGM) rights there are privately owned.

Under Pennsylvania law, owners of OGM rights may enter upon another's surface to access their property and to remove it; however, they must exercise their rights with due regard for the surface owners' interests. That the United States owns the surface of the ANF does not change the law, which was recognized in 1980 by a Pennsylvania federal district court and in 2009 by the Pennsylvania Supreme Court. Finally, Forest Service policy, manuals, and regulations, as well as federal law, provide likewise. This means that any proposed use of OGM rights in the ANF does not trigger the National Environmental Policy Act (NEPA), which is the law used by environmental groups and activist judges to stop major federal actions that they oppose. Under NEPA, whatever gets studied gets studied to death!

In early 2009, development of OGM rights in the ANF ended when the Obama Administration rushed to settle a sweetheart lawsuit by environmental groups. The groups alleged that NEPA applied to the use of privately owned OGM rights in the ANF and that no one could use his rights until and unless the Forest Service had complied with NEPA. Attorney General Eric Holder agreed to: apply NEPA to OGM rights; adopt a moratorium on any use of those rights to prepare for applying NEPA; and, award the groups $20,000 in attorneys' fees. The impact on Warren and the region was devastating. Employees were laid off, projects worth $100 million were stopped, companies faced bankruptcy, and school district funds were eroded. Oil and gas was not produced and sent to the refineries, which also faced layoffs. All of this took place with the area facing what experts called the coldest winter in history!

On June 1, 2009, in U.S. District Court for the Western District of Pennsylvania, Minard Run Oil Company, the nation's oldest family owned oil company, and the Pennsylvania Oil and Gas Association (POGAM) sued Holder, the Forest Service, several Forest Service employees, and the environmental groups. Just before Christmas, the court granted Minard Run's motion for a preliminary injunction. It held that the Settlement Agreement was illegal; had caused irreparable harm, including significant financial losses, the possibility that companies may be forced out of business, and the loss of enjoyment or possession of land'; yielded equities that favored Minard Run; and, was contrary to the public interest of preventing unreasonable interference with private property rights. Thereupon, the court enjoined implementation of the Settlement Agreement including preparation of a NEPA document, enforcement of the drilling ban, and processing of all proposed use of privately owned OGM rights in any manner other than that authorized by the federal court in 1980.

Thus, in 2009, in northwestern Pennsylvania, environmental grinches and their helpers in the Obama Administration failed to steal Christmas.

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