The Pennsylvania Oil and Gas Association filed an appeal with
the U.S. Forest Service, claiming its Land and Resource Management
Plan oversteps its powers when it comes to oil and gas development
on the Allegheny National Forest.
POGAM is concerned with the elements of the plan that are a
major change in the management policy regarding the relationship
between the forest land surface and the underlying oil, gas and
mineral rights that have been privately owned and controlled.
“In essence, the Forest Service is trying to use its new plan as
a tool for overturning a century of well-established law that
defines the relationship between oil and gas producers and the
federal government – the co-owners of the ANF,” POGAM President
Steve Rhoads said.
The Record of Decision by Regional Forester Randy Moore
acknowledged that “subsurface owners have the right to access and
develop their privately owned minerals.”
However, Moore concluded that the “1986 Plan was not specific
enough with regard to forest-wide standards and guidelines that
could be utilized in the protection of publicly owned surface
resources.”
“With thoughtful planning, careful mitigation, monitoring of
ongoing operations and eventual well-plugging, the revised Forest
Plan envisions a future in which minerals under the ground are
recovered in a manner that provides for the sustainability and
ultimately, the reclamation of surface resources,” Moore said.
According to POGAM, Moore uses the forest plan, finalized in
March, in an “unlawful attempt to seize administrative control of
oil and gas development in the forest.”
According to the appeal, the plan violates both Pennsylvania and
federal law by inverting the established rights of the dominant
private OGM estate and the servient federal surface estate.
“It purports to give the Forest Service a veto right over
private oil and gas development activities-a right it does not
possess,” according to the appeal. “It does so by requiring the
developer of the OGM estate, in order to gain access to the federal
surface, to prove that its proposed activity is ‘necessary’ in
relationship to ‘operational standards.'”
In the appeal, POGAM challenges the Forest Service’s attempt to
overrule administratively the OGM owner’s basic rights to the
reasonable use of the surface estate in order to develop the
mineral resources. POGAM argues that the exercise of this core
property right is not subject to the ultimate approval of the
surface owner. On the contrary, the true standard for the
development of the private mineral estate in the forest was
established in the 1980 Minard Run case.
“The goal of this plan for mineral development is pretty
straightforward,” Rhoads said. “The new ANF management team has
concluded that oil and gas development is inappropriate in the
national forest, and it has conjured up a magical new veto power to
rein in any oil and gas activity that occurs on the forest
surface.”
Forest officials, on the other hand, could not comment on the
appeal.
“Basically, we don’t have any comment for two reasons,” said
Steve Miller, information officer for the ANF. “First, the appeal
period hasn’t ended yet.”
Secondly, the Record of Decision was signed by Moore of
Milwaukee.
“This is an appeal of his decision. That means the appeal goes
to the chief of the forest service when there’s a response, it will
come from the chief,” Miller said, adding the appeal is a “fairly
lengthy process.”
However, one group was not surprised by POGAM’s actions.
Ryan Talbott, Forest Watch coordinator for the Allegheny Defense
Project, said was wasn’t surprised by POGAM’s appeal Monday since
there was a vast difference between the first draft of the plan and
the final plan itself.
However, as Talbott pointed out, POGAM and the ADP are coming at
the issue from opposite sides of the spectrum.
“We’re both very unhappy with the forest plan, but for very
dramatically different reasons,” Talbott said. POGAM feels as
though the ANF is over-extending its authority; ADP feels the ANF
hasn’t done enough to keep the area safe.
He also noted that forest officials waited until the end of the
public comment period to add anything about oil and gas, claiming
oil and gas wasn’t a significant part of the plan.
“Go look on the ground. The evidence points to the
contrary.”
Talbott said there needs to be more time for the public to
comment.
“The revision process itself was completely deficient,” Talbott
said. “Oil and gas was not considered a significant issue … the
revision process needs to be redone.”
POGAM also urged others drilling in the forest to file an appeal
with the ANF. Any appeals must be postmarked no later than July
2.
