Sep 20: In the U.S. Court of Appeals, Third Circuit, Case Nos. 10-1265 and 10-2332. Appealed from the United States District Court for the Western District of Pennsylvania. The Appeals Court explains that this appeal concerns a dispute between the U.S. Forest Service (the Service) and owners of mineral rights in the Allegheny National Forest (ANF). Although the Service manages the surface of the ANF for the United States, mineral rights in most of the ANF are privately owned. Mineral rights owners are entitled to reasonable use of the surface to drill for oil or gas and from 1980 until recently the Service and mineral owners had managed drilling in the ANF through a cooperative process. Mineral rights owners would provide 60 days advance notice to the Service of their drilling plans and the Service would issue owners a Notice to Proceed (NTP), which acknowledged receipt of notice and memorialized any agreements between the Service and the mineral owner about the drilling operations. However, as a result of a settlement agreement with environmental groups, the Service dramatically changed its policy and decided to postpone the issuance of NTPs until a multi-year, forest-wide Environmental Impact Study (EIS) under the National Environmental Policy Act (NEPA) is completed.
Mineral owners and related businesses affected by this new policy sought to enjoin the Service from implementing the policy, which would halt new drilling in the ANF. After holding a hearing and carefully considering the evidence, the District Court issued a preliminary injunction against the Service, prohibiting it from making the completion of the forest-wide EIS a condition for issuing NTPs and requiring it to return to its prior, cooperative process for issuing NTPs. The Service, the Attorney General, and several environmental organizations appeal the preliminary injunction, contending that the District Court lacked jurisdiction and erred in issuing a preliminary injunction. However, the Appeals Court affirmed in all respects the District Court's "thorough, well-reasoned opinion."
The district court found as follows: "The Settlement Agreement and the Marten Statement represented 'a fundamental „sea change' in the Service's policy; therefore, they constituted final agency action subject to review under the APA. . . The effect of this policy was a 'drilling ban,' which precluded new drilling in the ANF (with the exception of the 54 grandfathered NTP applications) until the Service completed a forest-wide EIS. . . The Service had instituted the drilling ban without following the APA's notice and comment procedures, and the ban was not justified under NEPA because the issuing of an NTP was not a major federal action. The preparation of the EIS would likely last several years, resulting in irreparable harm to the plaintiffs, and the balance of the equities and the public interest favored an injunction."
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