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Appeals Court Refuses to Reconsider Allegheny Forest Ruling

A federal appeals court has refused to reconsider its decision to throw out a ban on oil and natural gas drilling in the Allegheny National Forest.

Third U.S. Circuit Court Judge Jane Richards Roth denied a petition for panel rehearing and rehearing en banc that was requested by the Sierra Club, the Allegheny Defense Project (ADF) and Forest Service Employees for Environmental Ethics, which are appellants in the case Minard Run Oil Company v. United States Forest Service et al. (Case No. 1-09-CV-125, Appeals Docket No. 10-2332).

Last September the appeals court's three-judge panel ruled that the U.S. Forest Service (USFS) could not refuse to give operators permission to drill in the forest while an environmental impact study (EIS) was being conducted (see Shale Daily, Sept. 23, 2011).

The September ruling upheld a 2010 decision by U.S. District Judge Sean McLaughlin that Notice to Proceed (NTP) documents, which the USFS once issued to operators within 60 days of a request to begin drilling in the forest, don't qualify as drilling permits.

Bradford, PA-based Minard Run Oil Co. (MROC), the Pennsylvania Independent Oil and Gas Association (PIOGA), the Allegheny Forest Alliance and Warren County, PA were appellees in the case.

MROC President Fred Fesenmyer and PIOGA President Louis D'Amico could not be reached for comment Thursday.

"Essentially, the Third Circuit has created two separate standards for reviewing Forest Service decisions," ADF Executive Director Ryan Talbott wrote in a blog dated Nov. 23, about one month before Roth's Dec. 20 decision to deny the appeal. "When environmental plaintiffs sue the Forest Service to protect the environment, those plaintiffs will have a considerable burden to overcome. When industry plaintiffs sue the Forest Service because the agency was actually trying to protect the environment, those plaintiffs will have a much lower burden. The result in both situations benefit industry, not the environment."

The oil and gas industry filed a complaint in U.S. District Court for the Western District of Pennsylvania last July, asking McLaughlin to find the USFS in contempt for refusing to follow his Dec. 15, 2009 order to process requests by operators to drill in the forest (see Shale Daily, July 21, 2011a). The plaintiffs also accused the USFS of violating a 1980 federal law on surface landowner rights.

The appeals court had predicted that industry lawsuits against the USFS would likely prevail. Court documents revealed that Duhring Resource Co., Catalyst Energy Inc. and Seneca Resources Corp. are among the operators filing lawsuits against the agency.

McLaughlin ruled in 2009 that the USFS could not require oil and gas companies to prepare an EIS on their activities in the forest, nor could the USFS implement a forestwide drilling ban there. But last June a forest supervisor told SWEPI LP -- a Shell Oil Co. affiliate and a PIOGA member -- that the company did not have the right to withdraw groundwater from the forest for hydraulic fracturing at three nearby natural gas wells (see Shale Daily, July 21, 2011b).

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