Responsible Drilling Alliance

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21
Apr

Letter to DCNR Secretary Richard Allan

Responsible Drilling Alliance
P.O. Box 502
Williamsport, PA 18701
 
Citizens for Pennsylvania’s Future
15 Public Square, Suite 101
Wilkes-Barre, PA 18701
     
September 7, 2012
 
by hand-delivery & first-class mail
 
Richard J. Allan, Secretary
Department of Conservation and Natural Resources
Rachel Carson State Office Building
P.O. Box 8767
400 Market Street
Harrisburg, PA 17105-8767
 
 
Re: Natural Gas Development in the Loyalsock State Forest 
 
Dear Secretary Allan:
 
Recent seismic testing in the Loyalsock State Forest suggests that the Department of
Conservation and Natural Resources (“DCNR”) is planning to authorize natural gas
development in parts of the Forest where, although the oil and gas rights are in private
ownership, DCNR has exclusive control of the surface. We, the undersigned conservation
and recreation organizations, respectfully request that DCNR afford the public a meaningful
opportunity to participate in DCNR’s decision-making concerning gas development in this
unique public resource. Before making any final development decisions, DCNR should
publish all of its environmental impact studies on such development; hold one or more public
meetings on development alternatives; and solicit public comment on any proposed
agreements with exploration and production companies. As interpreted in a 1989
Commonwealth Court decision, Clarence Moore v. Department of Environmental Resources,
566 A.2d 906 (Pa. Cmwlth. 1989), the deed that gives DCNR surface ownership of more
than 25,000 acres of the Loyalsock State Forest also gives DCNR an extraordinary degree of
control over the use of most of that acreage.  DCNR is legally obligated to exercise this
extraordinary control in the best interests of the public.  To ascertain those interests, DCNR
should engage the public while it considers options for managing the exceptional areas at
stake.
 
BACKGROUND
 
The Loyalsock State Forest encompasses 114,494 acres in Lycoming County and
Sullivan Counties, and secures a wealth of magnificent natural and recreational resources. 
The heart of the Forest, spanning parts of five townships in northern Lycoming County,
includes the Old Loggers Path, a 27-mile hiking path that follows former lumbering and
railway paths; the Devils Elbow Natural Area, a remote plateau of rare plants, bogs and
hemlock forests; the Masten Ghost Town; and, perhaps most sublimely, Rock Run, which
visitors often describe as the single most beautiful stream in the Commonwealth, and whose
watershed the Pennsylvania Department of Environmental Protection classifies as possessing
“Exceptional Value.”  
 
During the past year, seismic testing activities have been conducted in various parts
of the Forest, including the Rock Run watershed. Reviewing maps on DCNR’s website, we
learned that the oil and gas rights under some of the Forest is in private ownership. To
determine who owned these rights, and how much acreage was at risk of development, we
reviewed Lycoming County land records and several judicial and administrative decisions
concerning title to the oil and gas rights. We learned as follows:
 
• There are 25,621 acres of Loyalsock State Forest where the Commonwealth owns
only the surface estate, and does not own oil and gas rights.
 
• The oil and gas rights under these 25,621 acres were once owned by an individual
named Clarence Moore, and are currently owned by Anadarko Exploration and
Production Company, LP (“Anadarko”) and International Development Corporation
(“IDC”) as tenants in common.
 
• IDC has leased its interest in the oil and gas rights under the 25,621 acres to
Southwestern Energy Production Company.
 
• The 25,621 acres include two separate areas, one comprising 18,780 acres and the
other 6,841 acres. The respective surface use rights of the Commonwealth and
Anadarko/IDC are different for each area, as summarized in a 1999 decision of the
Pennsylvania Board of Claims, Estate of Clarence Moore and Pennlyco, Ltd v.
Department of Conservation and Natural Resources, 1999 PA. Bd. Claims LEXIS 6
(Cmwlth. Bd. Claims, 1999).  That decision refers to the 18,870-acre tract as the
“yellow tract” and the 6,841 acre tract as the “blue tract,” reflecting the colors on
maps submitted during the case.  Id. at *1, ¶4.  The Board described the parties’
respective ownership and use rights as follows:    
 
o “[Y]ellow tract: oil and gas is owned by Plaintiffs [predecessors in title to
Anadarko/IDC]; surface is owned by Commonwealth; access prior to
March 28, 1983 was controlled by Plaintiffs; access subsequent to March
28, 1983 is controlled by Commonwealth[.]”
 
o “[B]lue tract: oil and gas is owned by Plaintiffs; surface is owned by
Commonwealth; access is controlled by Plaintiffs.”
 
 Id. at *7; ¶31 (emphasis added).  
 
 
• With respect to the 18,870-acre or “yellow” tract, the Board of Claims relied on the
decision of the Commonwealth Court in Clarence Moore v. Department of
Environmental Resources, 566 A.2d 906 (Pa. Cmwlth. 1989). There, construing the
deed by which the Commonwealth acquired the surface estate, the Court held that
Moore’s right to use the surface to extract oil and gas “expired in March 1983 upon
the conclusion of the fifty year term specific in the deed’s own provisions.”  Id. at
910.  In so holding, the Court expressly rejected Moore’s argument that the 50-year
limitation applied only to the clause of the deed concerning “the rights of ingress,
egress and regress” (to which the court referred as “the easement”). The Court held
that the limitation applied with equal force to the subsequent clause governing use of
the surface for the purposes of mineral extraction:
 
• In its 1999 decision, the Board of Claims accurately described the Commonwealth
Court’s 1989 decision as having “interpreted [the 1933 deed] to mean that Moore
owned the gas and oil underlying the yellow tract but at the end of the fifty (50) years,
March 28, 1983, surface access terminated.”  Estate of Clarence Moore, 1999 PA.
Bd. Claims LEXIS 6 at *2, ¶8 (emphasis added).  The Board of Claims also
accurately stated with respect to the “yellow tract” that “access subsequent to March
28, 1983 is controlled by Commonwealth[.]”  Id. at *7; ¶31.
 
• When Anadarko and IDC acquired Moore’s oil and gas rights, they stepped into his
shoes. As a result, Anadarko and IDC today have no legal right to use the surface of
the 18,870-acre yellow tract area to extract oil and gas. Solely by virtue of its deed,
the Commonwealth has the right to prevent Anadarko and IDC from using the surface
of this tract to extract oil and gas.
 
• For the 6,841-acre area, the “blue tract,” the chain of title apparently does not contain
an express time limitation or other express restriction on the mineral owner’s use of
the surface. Given the decision of the Board of Claims in Estate of Clarence Moore,
access to this area is controlled by Anadarko and IDC, as successors to the plaintiff in
that case.  
 
DCNR’S CONSTITUTIONAL AND STATUTORY DUTIES
 
Under Article I, Section 27 of the Pennsylvania Constitution, DCNR has a legal duty
to conserve and maintain State Forest lands for the benefit of all Pennsylvanians, including
future generations. The Pennsylvania Conservation and Natural Resources Act, 71 P.S. §
1340.101 et seq. (“CNRA”) specifically requires DCNR to protect, maintain and regulate the
occupancy and use of State Forest lands. 71 P.S. § 1340.302(a)(3-4). Where the oil and gas
under a State Forest area are privately owned but DCNR has exclusive control of the surface
(as with the 18,870-acre “yellow tract”), the oil and gas owner may not conduct surface
operations unless it obtains a right-of-way from DCNR. Consistent with its Constitutional
and statutory duties, DCNR may not grant a right-of-way over such lands unless it ensures
that they will be maintained and protected.1 In this instance, both the Pennsylvania                                             
Constitution and the CNRA require that DCNR perform thorough environmental impact
studies before granting any rights-of-way for natural gas development in the Loyalsock State
Forest.
 
Under the CNRA, two additional conditions also must be satisfied before DCNR may
grant a right-of-way.  First, the grant of a right-of-way may not “so adversely affect the land
as to interfere with its usual and orderly administration.” 71 P.S. § 1340.302(b)(3). Given the
ecological sensitivity and recreational significance of the Loyalsock State Forest, any gas
extraction or transmission operations in the Forest would likely run afoul of this restriction,
because they would immediately and permanently impair areas containing “Exceptional
Value” streams and wetlands.  
 
Second, it must be evident “that the interest of the Commonwealth or its citizens will
be promoted by such grant [of a right-of-way].” Id. The only way for DCNR to make an
informed evaluation of the public interest is to receive input from members of the public who
would be affected by gas development in the Forest. Section 302(b)(3) of the CRNA
requires, then, that DCNR solicit public input on any proposal to grant rights-of-way for
large-scale development in the Forest. Even if the solicitation of public comment is not
required under the CRNA, DCNR should still request it. The public resources at stake are the
very heart of the Pennsylvania Wilds, and the public’s ecological, recreational, and economic
interest in them is simply too important. 
 
For these reasons, we call upon DCNR immediately to publish maps showing the
precise location of the 18,870-acre and 6,841-acre parcels in the Loyalsock State Forest; to
conduct and then make public environmental impact studies concerning gas development in
the Forest; to hold one or more public meetings on development alternatives; and to solicit
public comment on any proposed agreements with exploration and production companies. 
 
If you have any questions concerning this matter, please do not hesitate to contact
Ralph Kisberg of the Responsible Drilling Alliance or Mark Szybist, Esq. of PennFuture.
 
Thank you very much for your attention to this matter. 
 
 
 Sincerely,
 
 
Ralph Kisberg     
President, Responsible Drilling Alliance 
570-494-7853     
rkisberg@gmail.com

Mark Szybist 
Staff Attorney, PennFuture
570-208-4007
szybist@pennfuture.org 
                                                                                                                                                  
Richard Martin     
Coordinator, Pennsylvania Forest Coalition  

Thomas V. Au, Sierra Club  

Curt Ashenfelter
Executive Director, Mid-Atlantic Policy Manager,

Mark Zakutansky, Keystone Trails Association Appalachian Mountain Club
 

DCNR could clarify this issue by posting on its public web site the maps introduced into evidence before the
Board of Claims in Estate of Clarence Moore and Pennlyco, Ltd v. Department of Conservation and Natural
Resources, 1999 PA. Bd. Claims LEXIS 6 (Cmwlth. Bd. Claims, 1999), at *1, ¶4.

1  It may be that Anadarko and IDC will also need rights-of-way across the 18,870-acre tract or other areas 
where the Commonwealth controls the surface, in order to access portions of the 6,841-acre “blue tract.” 

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