Minard Run Oil Co. v. U.S. Forest Serv., 12-4160

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: RENDELL
• Parties: MINARD RUN OIL COMPANY; PENNSYLVANIA INDEPENDENT OIL AND GAS ASSOCIATION; ALLEGHENY FOREST ALLIANCE; COUNTY OF WARREN, PENNSYLVANIA v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; ABIGAIL R. KIMBELL, in her official capacity as Chief of the U.S. Forest Service; KENT P. CONNAUGHTON, in his official capacity as Regional Forester for the U.S. Forest Service, Eastern Region; LEANNE M. MARTEN, in her official capacity as Forest Supervisor for the Allegheny National Forest; ATTORNEY GENERAL UNITED STATES OF AMERICA; FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE PROJECT; SIERRA CLUB ALLEGHENY DEFENSE PROJECT; SIERRA CLUB, Appellants
• Docket Number: No. 12-4160,12-4160
• Decision Date: 26 September 2013

MINARD RUN OIL COMPANY;
PENNSYLVANIA INDEPENDENT OIL AND GAS ASSOCIATION;
ALLEGHENY FOREST ALLIANCE;
COUNTY OF WARREN, PENNSYLVANIA
v.
UNITED STATES FOREST SERVICE,
an agency of the U.S. Department of Agriculture;
ABIGAIL R. KIMBELL, in her official capacity as Chief of the U.S. Forest Service;
KENT P. CONNAUGHTON, in his official capacity as Regional Forester for the U.S. Forest Service,
Eastern Region; LEANNE M. MARTEN,
in her official capacity as Forest Supervisor for the Allegheny National Forest;
ATTORNEY GENERAL UNITED STATES OF AMERICA;
FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS;
ALLEGHENY DEFENSE PROJECT; SIERRA CLUB
ALLEGHENY DEFENSE PROJECT; SIERRA CLUB, Appellants

No. 12-4160

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued on September 11, 2013
Opinion Filed: September 26, 2013

NOT PRECEDENTIAL
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 1-09-cv-00125) District Judge: Honorable Sean J. McLaughlin
Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges

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Marianne G. Dugan, Esquire (Argued)
Counsel for Appellants

J. Michael Klise, Esquire
R. Timothy McCrum, Esquire (Argued)
Thomas R. Lundquist, Esquire
Providence Spina, Esquire
Crowell & Moring, LLP

Steven J. Lechner, Esquire
Mountain States Legal Foundation

Matthew L. Wolford, Esquire
Counsel for Appellees

OPINION

RENDELL, Circuit Judge:

The Allegheny Defense Project and Sierra Club (collectively "Appellants") appeal from the District Court's order granting summary judgment for the Minard Run Oil Company and Pennsylvania Independent Oil and Gas Association (collectively "Appellees"), essentially converting a preliminary injunction into a declaratory judgment. The issue raised on appeal is whether the District Court properly applied the law of the

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case doctrine to preclude arguments raised by Appellants in their cross-motion for summary judgment. For the reasons that follow, we will affirm the District Court's order.

I.

This case arises from a dispute over the split-estate property rights of the federal surface owner and private mineral rights owners in the Allegheny National Forest ("ANF"). The facts of the case have already been extensively detailed in preceding opinions, so we will only summarize facts relevant to this appeal.

The United States acquired the surface estates that now constitute the ANF pursuant to the Weeks Act of 1911. While the U.S. Forest Service ("the Service") manages the surface of the ANF, the mineral rights in most of the ANF are privately owned. From 1980 until recently, the Service and private mineral rights owners utilized a cooperative process to manage access to and use of the surface to drill for oil and gas. Sixty days prior to any planned drilling, mineral rights owners would provide notice to the Service, and the Service would then issue a Notice to Proceed ("NTP"), acknowledging receipt of the owners' notice and memorializing any agreements relating to the planned drilling. In 2008, a number of environmental groups, including the Sierra Club, filed a lawsuit against the Service, stating that its policy of issuing NTPs constituted a "major federal action[] significantly affecting the quality of the human environment," under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332(c), and that therefore an NTP could not lawfully be issued before the appropriate environmental analysis under NEPA (an environmental impact study, or "EIS") was conducted. In 2009, the parties to that litigation entered into a Settlement

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Agreement, requiring that the Service conduct the appropriate NEPA analysis prior to issuing further NTPs. Subsequently, the Service issued a statement to oil and gas companies operating in the forest, stating that no new drilling would be authorized until the forest-wide EIS was completed.

In June 2009, mineral rights owners, including Appellees, filed a complaint in the District Court arguing that the de facto ban on drilling in the ANF exceeded the authority of the Service because a NEPA analysis was not required as a matter of law. The District Court granted their motion for a preliminary injunction, and on appeal, we affirmed in a precedential opinion. See Minard Run Oil Co. v. U.S. Forest Service, No. 09-125, 2009 WL 4937785 (W.D. Pa. Dec. 15, 2009) ("Minard Run II"); Minard Run Oil Co. v. U.S. Forest Service, 670 F.3d 236 (3d Cir. 2012) ("Minard Run III"). We reasoned that: (1) under the Weeks Act, both outstanding and reserved private mineral rights are subject to federal control only to the extent Service regulations are contained in the written instrument of conveyance; (2) the issuance of an NTP is, therefore, not a major federal action under NEPA; and (3) consequently, an EIS need not be completed prior to issuing an NTP. Minard Run III, 670 F.3d at 251-52, 254.

Thereafter, the mineral rights owners moved for summary judgment in the case before the District Court, requesting entry of judgment in their favor, conversion of the preliminary injunction order into a final declaratory judgment, and a permanent injunction against the Service. Appellants filed a cross-motion for summary judgment seeking vacation of the preliminary injunction order and judgment in their favor. The District Court granted the mineral rights owners' motion in part (it denied the request for

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a permanent injunction), concluding that the arguments advanced by Appellants were "precluded by the application of the law of the case doctrine and/or otherwise lack[ed] merit" because our prior opinion had decided the very issue before it. Minard Run Oil Co. v. U.S. Forest Service, 894 F. Supp. 2d 642, 654 (W.D. Pa. 2012) ("Minard Run IV"). The Court...