ENERGY AND NATURAL RESOURCES

Environmental Review • Mineral and Gas Interests • Drilling Restrictions

Pa. Oil and Gas Ass’n v. U.S. Forest Serv., PICS Case No. 14-0278 (W.D. Pa. Feb. 21, 2014) Hornak, J. (14 pages).

PIOGA and the Allegheny Forest Alliance contended that the 2007 Revised Land and Resource Management Plan for the Allegheny National Forrest violated the NEPA and the APA. Dismissed.

This action commenced in 2008 in response to the forest service’s attempt to alter the procedures through which owners of private mineral and gas interests in the ANF access and extract those resources. Prior to 2008, access occurred through the Minard Run framework which required drillers to supply the forest service with detailed notice concerning proposed drilling activities at least 60 days before operations commenced. The parties would then negotiate mitigation to any potentially unnecessary or harmful surface use and the service would issue a notice to proceed. In 2008, several environmental groups sued the service alleging that the practice of issuing NTPs without first conducting an appropriate environmental review was contrary to the NEPA. The service settled the action by agreeing to undertake appropriate NEPA analysis prior to issuing any NTP, taking the position that the issuance of an NTP was a “major federal action” subject to the NEPA. Private mineral owners challenged the settlement agreement arguing that an NTP is an informal document, rather than a mandatory precondition and that the service lacked sufficient regulatory authority over the dominant mineral estate to restrict or bar drilling for the length of time to complete the proposed environmental analysis.

While that court case was ongoing, the service was concurrently revising the 1986 ANF Plan. A preliminary draft of the plan in 2006 retained the Minard Run framework. However the 2007 Plan approved by the regional forester contained new measures and design criteria intended to restrict and regulate private oil and gas development in the ANF. Plaintiffs administratively appealed the 2007 Plan. The chief of the forest service affirmed and finalized the 2007 Plan in an appellate decision but agreed with the plaintiffs that the FEIS and ROD contained procedural violations and issued mandatory instructions to address those deficiencies. In response the service issued a draft SEIS for public comment on July 31, 2009. Before any further action could occur, Judge McLaughlin issued a decision in Minard Run II ordering the service to return to processing drilling proposals in a manner consistent with the Minard Run framework previously used.

The fundamental disagreement between the parties concerned the appropriate remedy for the issues with the 2007 Plan. Plaintiffs wished to strike the 2007 Plan in its entirety and defendants responded that the proper remedy was to strike the offending provisions. By suspending the new design criteria and reinstating the provisions set forth in the 1986 Plan, the service had already provided the plaintiffs with the remedy they were seeking, a return to the status quo of the Minard Run framework.

Two subsequent developments rendered the allegations in this action moot. The relief provided by the service’s decision to overturn the offending provision and the indication of counsel for the service on the record that the service has “no plans to do anything related to updating the [provisions] from the 1986 Plan” shows that there is no reasonable expectation that the plaintiffs will be subjected to the same actions by the service in the foreseeable future.

The action was dismissed without prejudice for want of a live justiciable case or controversy, preserving the ability of the plaintiffs to reopen the case should the service resume the challenged activity by discontinuance of its adherence to the 1986 Plan.