Buying the subsurface rights in areas of the Allegheny National Forest might be the only way to prevent oil and gas development in those areas.

The United States has no contractual relationship with the owners of more than half of the privately owned mineral rights beneath the Allegheny National Forest, and minimal contractual relationship with almost all of the others.

In an effort to get as much acreage as possible, the U.S. Forest Service did not buy subsurface rights when it created the Allegheny National Forest.

Now, according to a Pennsylvania Oil and Gas Association (POGAM) legal analysis, the Forest Service does not have the authority to require a permit for oil and gas development, nor to otherwise deny a subsurface owner from accessing that property.

If the Forest Service were to buy the subsurface rights, the agency would be in the position to either approve drilling or deny it.

The subsurface rights owners would be willing to discuss selling their property to the Forest Service or private buyers who do not want to see development. Representatives "would be happy to sit and talk to the Forest Service," POGAM ANF Committee Chairman Craig Mayer said.

Otherwise, the owners have the right to access their property. Taking away that right would be illegal and damaging to the companies, he said.

According to Mayer, "It is absolutely clear that (the government and the Forest Service) do not own these rights. You don't get to control them. You never bought them."

"These were private lands," Mayer said. The federal government sought the approval of the state in the purchase of the lands that became the national forest. "The state told the federal government, 'you will own, regulate and control that which you purchase.'"

In the analysis, POGAM quotes the Forest Service Manual - "as a general rule, the Forest Service does not have the authority to deny the exercise of a mineral reservation or outstanding mineral right."

Owners would have to be "justly compensated" for their property if the government decided to take control of the subsurface rights, Mayer said. "You're talking about a substantial economic injury to the owner of these rights."

"The federal government can not prevent or stop" development, Mayer said. "They do not have the ability to control."

What the Forest Service has, Mayer said, is a right and a duty to request accommodations and changes to a development proposal.

"They have every right, and a duty, to request of the private property developer the changes that they would like," Mayer said.

The developer, in turn, has the right to agree or disagree with those suggestions.

"We have every right to agree, or to say no if we think what they suggest is unreasonable," he said.

Making suggestions is all the Forest Service can do.

"They do not have the right to impose" the suggestions, Mayer said. "They are not free to arrest us or threaten to arrest us."

"It's grounded in the history of the country and decades of settled law," he said.

In general, a development plan must be submitted to the Forest Service at least 60 days in advance of development activities. The plan must include proof that the developer has rights to the minerals, locations of roads and facilities including wells and pipelines, a proposed schedule, erosion control and water pollution prevention plans, and a designated field representative.

During the 60 days, the Forest Service may try to reach an "amicable" agreement with the developer.

"If there is a disagreement, the Forest Service is free to seek an injunction" in court, Mayer said.

To those who say 60 days is not a reasonable period of time, Mayer says, "the United States Congress said it was."

In the analysis, POGAM specifies the differences between outstanding and reserved mineral rights.

In cases where the owner of the surface also owned the subsurface rights at the time of the creation of the Forest, the subsurface rights are reserved. The purchase agreements included language from the Weeks Act, including the rights to "rights-of-way, easements and (mineral) reservations."

Where the subsurface and surface ownership had already been severed at the time of purchase, the rights are outstanding. The government did not enter into any sort of agreement with the owners of subsurface rights who were not also the owners of the surface.

Outstanding and reserved rights represent about 93 percent of the subsurface of the ANF. In either case, the Forest Service does not have the right to prohibit oil and gas development, Mayer said.