ELR Citation: ELR 20288
No(s). 09-125 (W.D. Pa. Dec 15, 2009)

A district court preliminarily enjoined the U.S. Forest Service from requiring the preparation of a NEPA document as a precondition to allowing private oil and gas rights to be exercised in the Allegheny National Forest as set forth in a settlement agreement. Under the agreement, the Forest Service agreed, in part, to analyze all future drilling proposals on split mineral estates in the Forest under NEPA prior to issuing notices to proceed. Plaintiffs challenge the agreement, characterizing the settlement agreement as a dramatic and arbitrary change in the manner in which the Forest Service and oil and gas drillers had historically interacted in the Forest in dealing with issues concerning private mineral rights. The Forest Service does not possess the regulatory authority that it asserts relative to the processing of oil and gas drilling proposals. Consequently, its involvement in the approval process does not constitute a major federal action requiring NEPA compliance. The Service also failed to provide notice and comment before entering the settlement agreement. Plaintiffs therefore demonstrated a reasonable likelihood of success on the merits of their substantive and procedural claims. They also made a clear showing of irreparable harm as a result of the ban. And the harm experienced by the plaintiffs as a result of the drilling ban is concrete and irreparable, whereas a return to the status quo would not pose a threat to the ability of the Forest Service to adequately protect its surface estate. The court, therefore, preliminarily enjoined the drilling ban.