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Wednesday, May 15, 2013

Dugan: Forest Service has ‘sovereign police powers’ over national forests - The Bradford Era: News - Dugan: Forest Service has ‘sovereign police powers’ over national forests: News

Dugan: Forest Service has ‘sovereign police powers’ over national forests: News:

Posted: Tuesday, May 14, 2013 12:15 am | Updated: 4:03 pm, Tue May 14, 2013.
What is the scope of the U.S. Forest Service’s authority on national forest land?

What is the scope of the U.S. Forest Service’s authority on national forest land?
According to the attorney for the Sierra Club and Allegheny Defense Project in the appeal of a federal lawsuit over mineral rights on the Allegheny National Forest, the U.S. District Court in Erie erred by saying the government had the same rights as private property owners. Instead, the Forest Service has “sovereign police powers over all national forests,” argued attorney Marianne Dugan in a reply brief filed last week in the appeal.

The environmental groups filed the appeal in November after the court made permanent a December 2009 ruling in favor of Minard Run Oil Co. and the Pennsylvania Independent Oil and Gas Association.
In the reply brief, Dugan argued, “The district court’s final ruling unreasonably and impermissibly restricts the (Forest Service) from exercising reasonable authority over acquired lands, and should be reversed.”
Attorneys for Minard Run and PIOGA have said the ruling should stand, as Dugan’s arguments on appeal should have been raised previously because the case has been ongoing for about four years. They argued the law-of-the-case doctrine is applicable, meaning the final judgment by the highest court is the final determination of the rights of the parties involved.
Since the Third Circuit Court of Appeals has already upheld the ruling in the case, it should stand, the oil interests argue.
However, Dugan said the ruling should not stand, as it is against the original intent of Congress when forming the national forest system.
“The Court should not reject this appeal on law-of-the-case grounds,” Dugan wrote. “The drafting and legislative history of the Weeks Act Show Congress intended to protect the (Forest Service’s) proprietary capacity to regulate, preserving sovereign authority to reasonably regulate the occupancy and use of acquired national forests.”
The original lawsuit was filed in 2009 by Minard Run and PIOGA against the Forest Service, its officers, Sierra Club, Allegheny Defense Project and Forest Service Employees for Environmental Ethics. The suit was filed in response to a settlement agreement between the Forest Service and environmental groups, and a subsequent decision by then-forest supervisor Leanne Marten. Those two actions effectively changed the long-standing practices of the Forest Service in dealing with owners of private mineral rights within the national forest by effectively halting new drilling on the forest until a forestwide environmental impact assessment could be made under the National Environmental Policy Act.
In a ruling in December 2009, federal Judge Sean McLaughlin barred implementation of the settlement agreement and reinstated previous rules regarding drilling on the national forest.
That decision was appealed by the Forest Service to the Third Circuit Court of Appeals, which upheld the decision. In September 2012, McLaughlin made permanent his December 2009 ruling. The Forest Service declined to pursue an appeal. However, the environmental groups did.
“There is no legal or practical reason why the exercise of private oil and gas rights on acquired lands cannot peacefully coexist with reasonable (Forest Service) regulation that is documented in an ‘appropriate NEPA analysis,’ as was agreed to in the settlement, and which was the norm throughout the 1980s,” Dugan argued in her reply brief.
Dugan requests the district court reverse its decision and grant judgment to Allegheny Defense Project and Sierra Club.
There was no word on when the appeals court might take action in the case.