Judge denies USFS motion
Upholds original ruling in favor of oil and gas interestsBy BRIAN FERRY bferry@timesobserver.com
Federal District Court Judge Sean McLaughlin was asked on Tuesday to change a ruling he made less than three months ago.
He declined.
In December, McLaughlin issued a preliminary injunction against a settlement that would require the U.S. Forest Service to perform the "appropriate level of National Environmental Policy Act (NEPA) analysis" before any mineral extraction operation could take place on the Allegheny National Forest (ANF).
That ruling was based on a three-day evidentiary hearing held last August.
The Forest Service filed a motion for reconsideration of the ruling.
During Tuesday's hearing at the Federal Courthouse in Erie, McLaughlin said the laws regarding reconsideration are strict and that the only justifications are: to correct clear errors of law or fact; and to consider newly uncovered evidence.
U.S. Department of Justice attorney Ruth Ann Storey said, "The federal defendants brought this motion for two reasons: to clearly articulate the U.S. Forest Service's authority" with regard to oil and gas development on the ANF; and to determine whether or not the court "agrees with Forest Service procedure."
In opening, attorney Tim McCrum, representing the Pennsylvania Oil and Gas Association (POGAM) and Minard Run Oil, said "there is no need or basis to reconsider the preliminary injunction. The relief granted... is appropriately crafted."
Storey argued that there was new evidence. A particular version of the Week's Act language on some deeds issued to owners of mineral rights beneath the ANF when the surface rights were purchased by the government should have been considered the official version, rather than a shorter version referenced during the August hearings, she said.
McLaughlin disagreed.
"The Forest Service at the evidentiary hearing never challenged" the shorter version, McLaughlin said. "The 10-paragraph version that you're now saying is the official one is somewhat of a 'Johnny-come-lately'."
He also ruled that the other half of the requirement was not met. "I find no error, clear or otherwise."
"I am not going to alter or amend my judgment," he said. "The motion to reconsider my previous order is denied."
Although he denied the motion, McLaughlin gave the Forest Service some clarification it requested.
Storey said some developers have contacted the Forest Service and informed agency officials that they would proceed with "surface disturbing operations" on the 61st day after application.
According to the 1981 Minard Run decision which has been the basis for much of the oil and gas production procedure on the ANF for the past three decades, the developers must give the Forest Service 60 days notice before beginning new operations.
Testimony at the August hearing indicated that the Forest Service has generally taken longer than 60 days to issue notices to proceed in recent years.
On Tuesday, McCrum said, "every project that is pending is now well in excess of 60 days."
"My order did not and was not intended to grant the drillers carte blanche on the 61st day," McLaughlin said.
The Forest Service may seek "injunctive relief" if the parties cannot come to an accord after 60 days, he said, but he did not specify what court or agency the Forest Service would go to for an injunction of that nature.
The oil and gas industry representatives expressed complaints about the Forest Service's dealings with them.
When trees have to be cut down to make way for oil and gas development, the Forest Service may market the timber itself, or may sell the trees to the oil and gas developer.
POGAM attorneys said the Forest Service is demanding unreasonable prices for developers to purchase the timber.
"They are trying to bring themselves back into the role of a regulating agency," McCrum said.
"The way that they're using this timber contract is to give them veto power," POGAM attorney Matthew Wolford said. "Over time, (dealings with the Forest Service) have become more and more onerous."
"It would be impossible for me to micromanage every little thing that happens on the forest," McLaughlin said.
He returned with his decision less than two hours after the hearing opened.
"We're very pleased," Duhring Resources Owner Arthur Stewart said. "It allows us to continue the drilling of new wells and getting the folks back to work that were laid off."
According to Storey, since McLaughlin's injunction in December, nine notices to proceed have been issued for drilling projects involving a total of 50 wells. Projects involving 201 more wells are nearing that stage, and projects representing 353 other wells are in negotiations.
The December "order is having a positive effect," McCrum said. "There is activity returning to the national forest which is desperately needed by the region."
An appeal filed by the Allegheny Defense Project (ADP), Forest Service Employees for Environmental Ethics, and the Sierra Club, co-defendants with the Forest Service in the case, is pending in the Third Circuit Court of Appeals. Those groups did not join in the filing of the Forest Service motion for reconsideration.
ADP Board President Bill Belitskus said the group's position has not changed. "The Forest Service has the authority to regulate oil and gas drilling in order to protect the surface," he said.
Storey said at the beginning of the hearing that the Forest Service had not decided whether to appeal.
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Milkman
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03-11-10 9:02 AM
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Perhaps Mr./Ms. TaxpayerNumber9 would be in favor of "taxing" the OGM rights annually and using that revenue to restore the surface to its original condition after the extraction of minerals?
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TaxpayerNumber9
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03-10-10 10:37 PM
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Good ruling! Now these environmental nut-cases can look for a real job! Why can't they understand that folks own the oil and gas under this ground, and that they have a right to their property?
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alkalinegram
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03-10-10 12:33 PM
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They are trying to bring themselves back into the role of a regulating agency," McCrum said. why the*****did they lose it in the beginning...and what is wrong with them trying to regain an out of control system of drilling?
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alkalinegram
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03-10-10 12:32 PM
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The judge is doing more than that...He is giving them the key to absolutely disrupt several ways of life and our water supply. This guy needs ousted...along with our commissioners and governor. They are all selling us out...and they are getting away with it because the masses do not pay enough attn.
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brianhagberg
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03-10-10 12:09 PM
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I'd say so, especially considering they are planning over 600 new well projects...
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Milkman
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03-10-10 10:52 AM
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So, let's cut to the chase. Basically Judge McLaughlin gave Minard Run Oil Company carte blanche to continue to despoil the Route 59 Scenic Byway. Does that about sum it up?
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