University Times

An appeal filed by Pitt’s Environmental Law Clinic is among those being considered by the U.S. Forest Service as it reviews comments on a land management plan for the Allegheny National Forest.

The new forest plan, which would guide management of the 517,000- acre forest in northwestern Pennsylvania for the next 10-15 years, took effect in April.

Among its provisions, according to a Forest Service release, are recommendations for two wilderness study areas; the creation of three remote recreation areas (at Clarion River, the East Fork of Hickory Creek and an area adjacent to Heart’s Content); standards and guidelines to protect the forest surface while allowing private oil and gas drilling, and an allowable sale quantity for an average timber harvest of 54.1 million board feet of timber per year.

The plan has drawn criticism, however. Some opponents claim a lack of sufficient public input in the plan’s development; others oppose the content of the plan itself.

Oddly, both timber producers and environmentalists are complaining about the plan’s lack of alternatives in its environmental impact statement, said Environmental Law Clinic director Thomas Buchele. “That has to give the Forest Service pause, that disparate groups are agreeing,” Buchele said.

The Forest Service’s administrative process allows for appeals on the decision, and while the revised plan has drawn more than 80 of them, the number being reviewed in Washington, D.C., has been whittled down. For instance, those received after the July 2 deadline or otherwise deemed invalid were eliminated; others that were essentially the same were combined, said Allegheny National Forest spokesperson Steve Miller.

The Environmental Law Clinic’s appeal, filed on behalf of the Allegheny Defense Project and Heartwood environmental groups, Tionesta Valley Snowmobile Club and five individuals, is among those that remain under review by the Forest Service, which has targeted a Dec. 10 response date, Miller said. In addition to its own 180-page appeal, the law clinic has submitted responses to several other appeals that were submitted to the Forest Service.

The law clinic’s appeal calls for the forest plan to be withdrawn and redone, outlining a number of perceived shortcomings. The largest, Buchele said, centers on how oil and gas development issues were handled in the plan. Other prime issues were the Forest Service’s failure to address climate change, air pollution and recreation.

The 180-page appeal states in part, “Although the revision process purported to deal with the biggest and newest issues impacting the forest, the Forest Service failed to include oil and gas development as such an issue. The Final Environmental Impact Statement, as part of its cumulative effects analysis, does document somewhat the explosive growth in such development over the past few years and into the foreseeable future. But the alternatives analysis and the revised plan do almost nothing to address this huge adverse impact on the forest in any sort of comprehensive or mandatory way. … Climate change is another issue that the FS has almost completely ignored in the revision documents.”

Underlying some of the problems with oil and gas development which has dotted the forest with well sites, is the fact that Pennsylvania has what is called “split estates” — the owner of the surface rights to a parcel of land often is not the owner of its mineral rights. In the case of the forest, about 93 percent of the mineral rights are privately owned; the Forest Service owns the remainder. “The Forest Service has taken the position they can’t do much about oil and gas,” Buchele said, an idea he deems ridiculous. “They’re the federal government.”

Buchele agreed that oil and gas producers can’t be prevented from accessing their oil and gas. “It’s a property matter,” he said. “But there are good ways and bad ways to do this.”

Allegheny Defense Project members took Buchele and his students for a tour to show both pristine sites in the forest as well as those affected by drilling. Of some 30 well sites they visited, all were leaking, Buchele said.

“There’s no program to monitor what’s going on,” Buchele said. “That to me is the first problem. They need to be looking and checking on stuff. … It’s their job to protect the forest.”

Allegheny Defense Project board president Bill Belitskus, who also is among the individuals on whose behalf the appeal was filed, decried some of the practices occurring in the forest. “What’s happening is oil and gas drilling and industry logging have overshadowed all the other uses and it’s getting worse,” he said.

The boom in drilling, fueled by a rise in oil and gas prices, is evident in the forest as new roads are cut to provide access to well sites that are being cleared even in some of the forest’s most scenic areas, near wetlands or along hiking trails, including the North Country Trail. “Every road is fragmenting wildlife habitat,” Belitskus said, adding that the roads also contribute to erosion and affect streams and water quality.

Belitskus said he would like to see a long-term — perhaps 100-year — plan for managing the forest, taking into account its value as a scenic and recreational area. “You can’t just rely on timber and oil and gas,” he said. Acknowledging the cyclical nature of the oil and gas industry, Belitskus said that other forest uses need to remain intact when the current boom is over, and that restoration of well sites needs to be part of the long-term plan. “The concern is when they’re done there won’t be enough left to recreate in.”

The Allegheny Defense Project actively partnered with Pitt’s law clinic in preparation for the appeal, doing monitoring and fieldwork to back up the arguments contained in the document. Without the clinic’s representation, Belitskus said, the group would have had to either represent itself or find an attorney to work pro bono to file the administrative appeal.

The law clinic, which is funded by the Howard and Vira Heinz Endowments, has a two-fold purpose — to provide legal representation for those who otherwise could not afford it, and to provide a learning experience for the students who staff it. Belitskus considers the appeal to have been a learning experience both for Allegheny Defense Project and for the law clinic students. “We should become better, the law students should become better from the project,” Belitskus said.

Buchele said various aspects of the forest plan project have enabled his students to conduct interesting, challenging legal research. Former students prepared comments on the Forest Service’s preliminary draft plan last year. The current appeal was prepared by summer research associates Mark Sanofsky and Elizabeth Barrett, first-year law students who started working with Buchele in May.

“Administrative appeals are fun,” Buchele said. “It’s not court. You can be less formal in the writing and can do research of records. It’s a very good tool,” he said.

Sanofsky said he has no specific interest in pursuing environmental law, but took the summer research position at the law clinic because he had been a student of Buchele’s. He wanted the opportunity to work with him as well as to have the chance to handle actual cases rather than simply conducting research over the summer.

He and Barrett spent from mid-May to early July working almost exclusively on the 180-page appeal. He took on the oil and gas issues; she focused on others including climate change and the effect on native species in the forest.

Sanofsky said he didn’t get a good perspective on the issues at hand until he visited the forest and saw leaking wells and old equipment littering the forest and heard the sounds of generators pumping oil, something he didn’t expect. While he needed to be professional, he couldn’t help noticing the eyesores the clinic’s clients oppose.

But, he said, “the good legal arguments aren’t necessarily the sentimental ones,” adding that while some may wish to see development in the forest end, the appeal had to focus on pointing out what the Forest Service is obligated to do legally.

A common Forest Service theme with regard to regulating drilling is “our hands are tied,” Sanofsky said. “As we researched we found case law and federal regulations that showed they have more authority than they’re claiming.”

The clinic’s arguments also point out the Forest Service’s poor job of properly addressing oil and gas development as the issue that has the greatest potential to impact the surface. “The Forest Service’s duty in drafting a plan is to protect the surface resources,” he said. “If they’re not monitoring oil and gas development, not regulating well site acreage and where they’re being placed, they’re not meeting the regulation,” he said.

Aiding their work was a good bit of give-and-take with the clients. Allegheny Defense Project members know the forest well and helped with research, legwork and input on what issues they wanted to see addressed. “We involved the clients quite a bit,” Sanofsky said.

Buchele guided the students as they developed their legal arguments, but gave them plenty of independence in doing their work, Sanofsky said, adding that it was exciting to develop arguments that Buchele and the clients reacted to positively.

Now that the appeal has been filed, the ball is in the Forest Service’s court. According to Buchele, it can accept, deny or partially accept the content of the appeals filed. Or it could seek more time to examine the complex issues.

Sanofsky, for one, is finding it hard to wait for a response to his work. “You want them to read it and make changes immediately,” he admitted. “I’m interested to see if they make any changes.”

The difficulty of working in the clinic is that it’s short term. “You never see something from start to finish,” he said, adding that he plans to keep up on the progress of the appeal.

Sanofsky views his clinic experience as a benefit. He’s pleased to be able to add the practical, real-world experience of submitting an appeal to the U.S. Forest Service to his resume. Gaining knowledge of oil and gas law also is a plus, since energy is a hot topic today, he said, adding that he also learned about legal processes and administrative appeals. “I got to hone my writing skills and pore over Forest Service documents and legal precedents to hone my research skills,” said Sanofsky, who will be interviewing with law firms as a second-year law student. “Legal research and writing is huge as you go out and seek employment.”

He added, “It was fun to work with Professor Buchele, who has years of experience doing major cases. It was a great experience.”

—Kimberly K. Barlow