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Decision pending in forest drilling appeal

January 31, 2011

This photo shows the drilling a typical oil well in the Allegheny National Forest (ANF). Drilling continues under a preliminary injunction issued 13 months ago by U.S. District Court Judge Sean McLaughlin in Erie. His ruling has been appealed to the Third District Court in Philadelphia and a hearing on the appeal was held last week. A decision on the appeal is expected within two months. Most of the mineral rights in the ANF are privately owned. Photo by Ted Lutz

A decision is pending in the appeal of a preliminary injunction that 13 months ago cleared the way for the resumption of oil and gas drilling in the Allegheny National Forest (ANF).
A panel of three judges from the U.S. Court of Appeals for the Third Circuit heard the appeal last Thursday in the Collins J. Seitz Courtroom in the federal courthouse in Philadelphia. Judges serving on the panel included Julio Fuentes, Michael Chagares and Jane Roth.
U.S. District Court Judge Sean McLaughlin ruled in December 2009 in Erie that drilling could resume on the 513,000-acre national forest, where 93 percent of the subsurface mineral rights is privately owned.
The 53-page ruling lifted a Forest Service moratorium on drilling. The moratorium was put in place in April 2009 as part of a settlement of a November 2008 lawsuit filed by the Sierra Club, the Allegheny Defense Project and the Forest Service Employees for Environmental Ethics (FSEEE). These groups joined with the Forest Service in appealing McLaughlin's ruling to the federal Appeals Court.
Robert P. Stockman, an attorney with the Environmental and Natural Resources Division for the U.S. Department of Justice, represented the Forest Service at the hearing.
Marianne G. Dugan represented the Sierra Club, the Allegheny Defense Project and the FSEEE.
R. Timothy McCrum, a Pittsburgh native and a Washington-based attorney, represented the "appellees"-- the Pennsylvania Independent Oil and Gas Association (PIOGA) and Minard Run Oil of Bradford.
McCrum believes the Appeals Court would take at least six weeks to make a decision on the appeal.
Pending the decision, drilling is expected to continue in the ANF. The drilling companies are regulated by the state Department of Environmental Protection (DEP) and need to meet certain criteria before they receive permits to drill.
Commenting on the hearing before the Appeals Court, McCrum said he "feels very good" that the appellate judges will not find reasons to overturn the McLaughlin ruling in the case.
"Our argument went well," McCrum said. "I'm pleased with the court's level of interest in the case." He said the three judges who heard the appeal showed "a keen interest" and asked questions.
McCrum said he remains "optimistic" that the Appeals Court will uphold the preliminary injunction to allow drilling to resume in the ANF. If the preliminary injunction is upheld, McCrum said the case will go back to McLaughlin for "final disposition."
The Forest Service in April 2009 placed a moratorium on drilling pending the preparation of a study under the National Environmental Policy Act (NEPA). The preliminary injunction, however, enjoins the Forest Service from "requiring the preparation of a NEPA document as a pre-condition to the exercise of private oil and gas rights in the ANF."
McLaughlin issued the preliminary injunction in mid-December 2009, nearly four months after he held a three-day evidentiary hearing at the federal courthouse in Erie. The hearing included more than 16 hours of testimony.

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