Minard Run Oil Co. v. United States Forest Service

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 10-1265 and 10-2332

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; TOM TIDWELL, in his
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 OF THE UNITED STATES OF
AMERICA; FOREST SERVICE EMPLOYEES FOR
ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE
PROJECT; SIERRA CLUB

Forest Service Employees for Environmental Ethics,
Allegheny Defense Project, Sierra Club,

Appellants.
 (Pursuant to Fed. R. App. P. 43 (c)(2))
(Amended Pursuant to the Clerk's Order of June 18, 2010)

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 1-09-cv-00125)
District Judge: Honorable Sean J. McLaughlin

Argued on January 27, 2011

Before: FUENTES, CHAGARES and ROTH, Circuit Judges

(Opinion filed: September 20, 2011)

Brian J. Sonfield, Esquire
Assistant General Counsel
United States Department of Agriculture
Washington, DC 20250

Ignacia S. Moreno, Esquire
Assistant Attorney General
Aaron P. Avila, Esquire
Ruth Ann Storey, Esquire
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 663
Washington, DC 20044

2
Lane N. McFadden, Esquire
Robert P. Stockman, Esquire (Argued)
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 23795, L‟Enfant Plaza Station
Washington, DC 20026

Counsel for Federal Appellants

Timothy M. Bechtold, Esquire
Bechtold Law Firm
317 East Spruce Street
P. O. Box 7051
Missoula, MT 59807

Marianne Dugan, Esquire (Argued)
259 E. 5th Ave., Ste 200-D
Eugene, OR 97401

Counsel for Environmental Appellants

R. Timothy McCrum, Esquire (Argued)
J. Michael Klise, Esquire
Daniel W. Wolff, Esquire
Crowell & Moring LLP
1001 Pennsylvania Ave, N.W.
Washington, DC 20004-2595

Matthew L. Wolford, Esquire
638 West Sixth Street
Erie, PA 16507

3
Steven J. Lechner, Esquire
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, CO 80227

Counsel for Appellees

___________

OPINION
___________

ROTH, Circuit Judge:

I. Introduction

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

4
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. For the reasons that follow, we
affirm in all respects the District Court‟s thorough, well-
reasoned opinion.

II. Background

In the 19th century, all the land now comprising the
ANF was privately owned. In 1891, Congress authorized the
President to designate federal lands as forest reservations in
order to preserve valuable timber resources and ensure
protection of watersheds. Act of March 3, 1891 § 24, 26 Stat.
1095, 1103, codified at 16 U.S.C. § 471 (repealed) (the 1891
Act). In 1897, Congress passed the Organic Act authorizing
the Secretary of Agriculture to regulate “occupancy and use”
of forest reservations designated under the 1891 Act. 30 Stat.

5
11, 34, codified at 16 U.S.C. § 475. These Acts, however, did
not authorize the purchase of land to establish federal forest
reservations – they were limited to land already owned by the
federal government or acquired for other purposes. After
considerable controversy and a decade of campaigning, see
S. REP. NO. 60-459, at 13 (1908) (describing history of forest
preservation bills), Congress passed the Weeks Act in 1911.
Pub. L. No. 61-435, 36 Stat. 961. The Act set aside funds for
purchase of private land by the Secretary of Agriculture to
serve as forest reservations under the Organic Act. Id. §§ 4-8,
36 Stat. at 962. Before purchasing land in a State, the Act
required the Secretary to obtain the State‟s consent. Id. § 7,
36 Stat. at 962. In the decades following the Act, the
Secretary purchased large tracts of forest land, and in 1923,
President Coolidge designated the lands acquired in
Pennsylvania as the Allegheny National Forest. 43 Stat.
1925.

A. Mineral Rights in the Allegheny National Forest

Coal mining was common in the Allegheny Plateau
and oil had been discovered in the area in 1859. To acquire
as much land as possible with limited funds, the Secretary of
Agriculture purchased large tracts of surface estate in the
ANF while leaving valuable mineral rights in private hands.
As a result, over 93% of the mineral estates in the ANF are
privately owned. The mineral rights in the ANF are of two
kinds: reserved rights and outstanding rights.

Reserved rights are those reserved by the fee owner in
the deed conveying surface ownership to the United States.
The Weeks Act authorized the Secretary to acquire surface
estates with a reservation of rights to the grantor and provided

6
that the exercise of reserved rights would be subject to the
“rules and regulations” promulgated by the Secretary and
included in the instrument of conveyance. 16 U.S.C. § 518.
Reserved rights are usually referred to by the year of
promulgation of the regulations in effect at the time of federal
acquisition, i.e., 1911, 1937, 1947, or 1963 reserved rights.
About 48% of the mineral rights in the ANF are reserved
rights and the vast majority of these are 1911 rights. (J.A.
157, 254-55.) The 1911 regulations were quite minimal, and
generally required mineral rights owners to use no more of
the surface than reasonably necessary, pay for any timber cut
down when clearing space for wells, take appropriate
measures to prevent fire, and remove all facilities or refuse
when drilling operations cease.1 The 1911 regulations did not

1
These regulations essentially required mineral rights
owners to do the following:
(1) Furnish proof of mineral rights ownership upon
demand by the Service,
(2) Use only so much of the surface as is necessary for
mining operations,
(3) Take all reasonable and usual precautions in making
tunnels and shafts to support surface land, subject to
inspection by the Service or other federal officials,
(4) Pay (at locally prevailing rates) for timber cut,
destroyed, or damaged in mining operations,
(5) Remove all buildings, camps, or equipment within six
months after completion or abandonment of mining
operations,
(6) Dispose of destructible refuse interfering with forest
administration within six months after completion or
abandonment of mining operations, and

7
require mineral rights owners to obtain a permit from the
Service in order to exercise their mineral rights.

Outstanding rights are those that were severed from
the surface estate prior to its conveyance to the United States.
The Weeks Act was amended in 1913 to permit acquisition of
severed surface estates with outstanding mineral rights,
provided that the National Forest Reservation Commission
concluded that these rights would not hinder administration of
the forest reservation. 37 Stat. 828, 855 (1913). Until
recently, the Service maintained that its regulations did not
apply to outstanding mineral rights.2 Rather, because
outstanding mineral rights were reserved prior to conveyance
to the United States, these rights are governed by the terms of
the earlier conveyance severing the mineral rights and
Pennsylvania property law. See United States v. Minard Run
Oil Co., No. 90-12, 1980 U.S. Dist. LEXIS 9570, at *14-15
(W.D. Pa. Dec. 16, 1980) (Minard Run I).

(7) Use “due diligence” to avoid or suppress fires in the
area.
Minard Run Oil Co. v. U.S. Forest Service, No. 09-125, 2009
WL 4937785, at *3-4 (W.D. Pa. Dec. 15, 2009) (Minard Run
II).
2
For example, the Forest Service Manual (FSM) states
that “[t]he Secretary's rules and regulations do not apply to
the administration of outstanding mineral rights.” FSM §
2830.1 The Service‟s 1984 ANF Handbook similarly states
that outstanding mineral rights “are not subject to any of the
Secretary of Agriculture‟s rules and regulations.” ANF
Handbook, ch. 2, p.11 (1984) (emphasis in original).

8
 Under Pennsylvania law, the mineral estate is the
dominant estate and entails the right to use of as much surface
land as reasonably necessary to extract minerals. Belden &
Blake Corp. v. DCNR, 969 A.2d 528, 532 (Pa. 2009).
Although the mineral owner must show “due regard” to the
rights of the surface owner, the mineral owner need not obtain
consent or approval before entering land to mine for minerals.
Id. at 533; see also Minard Run I, 1980 U.S. Dist. LEXIS
9570, at *13 (mineral rights owner has an “unquestioned
right” to enter the property, subject to “minor restrictions
which . . . should not seriously hamper the extraction of oil
and gas”). Minard Run I concluded that “due regard” to the
Service as surface owner required owners of outstanding
mineral rights to provide information regarding drilling plans
to the Service “no less than 60 days in advance” of
commencing drilling operations. Id. at *22.

The Service‟s 1984 ANF Handbook incorporated the
Minard Run I framework into its “standard operating
procedures” for outstanding mineral rights in the ANF.
Congress codified the notice provisions of Minard Run I in
the Energy Policy Act of 1992, Pub. L. No. 102-486 § 2508,
106 Stat. 2776, 3108, codified at 30 U.S.C. § 226(o). Until
the change in policy that is the subject of this litigation, the
Service and mineral rights owners in the ANF had relied on
the Minard Run I framework and taken a cooperative
approach to oil and gas drilling in the ANF. Under this
framework, mineral rights owners who planned to conduct
drilling operations would provide the Service with the
required notice and the two parties would then negotiate the
details of drilling operations, such as the location of wells or
access roads, so as to prevent any unnecessary surface use.
At the end of this process, the Service would issue a Notice to

9
Proceed (NTP) to the mineral rights owner, which
acknowledged receipt of notice from the mineral rights owner
and memorialized any agreements between the parties
regarding drilling operations.3

B. The Service’s Policy Regarding NEPA and Split
Estates

The National Environmental Policy Act of 1969, Pub.
L. No. 91-190, 83 Stat. 852 (NEPA) requires federal agencies
to file an environmental impact study (EIS) before taking any
“major federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(C). The Service
completed EISs in 1986 and 2007 in connection with
adoption of a Forest Plan for the ANF, which governs the
Service‟s management of the forest. The Service did not
suspend the issuance of NTPs during these EISs. The Service
also occasionally conducted an Environmental Assessment
(EA) – a summary environmental analysis less demanding
than an EIS – when issuing certain NTPs. Although only
limited information on these EAs is available, they appear to
have been completed quite promptly and within the 60-day
Minard Run I framework. However, until recently, the
Service took the position that issuance of an NTP to a mineral
rights owner was not a “major federal action” requiring
environmental analysis under NEPA because the Service‟s

3
Drilling in the ANF is regulated by the Pennsylvania
Department of Environmental Protection (DEP) and subject
to a permit process, see 25 Pa. Stat. §§ 77.51, 78.1, 86.11. A
permit is usually obtained before applying for an NTP. As an
affected landowner, the Service has the right to participate in
the permit process and challenge the terms of a permit.

10
rights as surface owner were so limited. (J.A. 182-83
(testimony before Congress), 185-86 (legal opinion provided
to Congress).) When interacting with mineral rights owners
in the ANF, the Service viewed itself as a resource
management agency negotiating use of jointly owned land,
not as a regulatory agency issuing permits.

C. Changes in Forest Service Policy

Several changes in the Service‟s policy led to this
litigation. On May 24, 2007, an attorney in the Service‟s
Office of General Counsel authored a memorandum
concluding that the issuance of an NTP is a “major federal
action” subject to NEPA. The memo relied heavily on
Duncan Energy Co. v. U.S. Forest Service, 109 F.3d 497 (8th
Cir. 1997) (Duncan I), and adopted a broader interpretation of
the Service‟s authority over 1911 reserved rights than was
adopted in Minard Run I, which the memorandum cited only
once and did not discuss. However, there was no immediate
change in the Service‟s policy in response to this
memorandum.

On November 20, 2008, the Forest Service Employees
for Environmental Ethics (FSEEE) and the Sierra Club filed
suit against the Service seeking a declaration that its practice
of issuing NTPs without conducting an appropriate
environmental analysis under NEPA was contrary to law and
also seeking an injunction against issuance of further NTPs
without proper NEPA analysis. See FSEEE v. U.S. Forest
Service, No. 08-323, 2009 WL 1324154 (W.D. Pa. May 12,
2009). On January 16, 2009, while the action was still
pending, the Service ceased processing and issuing NTPs,
explaining that this was being done “[i]n light of pending

11
litigation” and that the Service intended to file a Notice of
Intent to prepare an EIS the following month. On April 9,
2009, the parties to the FSEEE litigation entered into a
Settlement Agreement purporting to resolve all claims. The
Settlement Agreement provided that, with the exception of 54
grandfathered NTP applications,

[the Service] agrees that it shall undertake
appropriate NEPA analysis prior to issuing
Notices to Proceed, or any other instrument
authorizing access to and surface occupancy of
the Forest for oil and gas projects on split
estates including both reserved and outstanding
mineral interests. Appropriate NEPA analysis
shall consist of the use of a categorical
exclusion or the preparation of an
Environmental Assessment or an
Environmental Impact Assessment.

The Pennsylvania Independent Oil and Gas Association
(PIOGA) and the Allegheny Forest Alliance (AFA), both
appellees in this action, were not included in the settlement
negotiations but sought to intervene in the case once they
learned that the case might settle. Although PIOGA and AFA
were permitted to intervene in the FSEEE action, the district
court declined to consider their objections to the settlement
and approved voluntary dismissal of the case. FSEEE, 2009
WL 1324154, at *4.

On April 10, 2009, ANF Forest Supervisor Leanne
Marten issued a statement (the Marten Statement) explaining
that, because of the Settlement Agreement, “[a]ll . . . pending
oil and gas proposals, and all future proposals, will be

12
processed after the appropriate level of environmental
analysis has been conducted under the NEPA.” Marten
announced that the Service would be “initiating a forest-wide
site specific environmental analysis for proposals that were
not included in the settlement and any other proposals for
activity anticipated between now and 2013,” and that this
process was estimated to take until at least mid-April 2010.
Aside from the 54 NTP applications identified in the
Settlement Agreement, no new drilling in the ANF would be
authorized until the forest-wide EIS was complete.

As these policy changes were taking place, the Service
took the position that mineral rights owners were required to
obtain an NTP prior to making any changes to land in the
ANF. For example, in a 2008 letter, the Service advised a
mineral rights owner that “entry upon, and removal of, timber
from National Forest System lands requires the express prior
written approval of the Forest Service” and that “[f]ailure to
do so is a violation of both federal and state law and federal
regulation.” The Service directed the recipient‟s “considered
attention” to several statutes imposing criminal penalties for
failure to abide by Service regulations. Since the Settlement
Agreement and the Marten Statement, the Service has warned
mineral rights owners and their contractors on several
occasions that new drilling operations without an NTP are not
permitted and may result in criminal penalties. Although the
Service does not appear to have formally adopted a rule to
this effect, it has acknowledged that new drilling without an
NTP may result in a civil enforcement action or criminal
penalties.

13
 D. Litigation

On June 1, 2009, PIOGA, AFA, Minard Run Oil
Company, and the County of Warren brought suit against the
Service and three of its officers, the Attorney General,
FSEEE, the Sierra Club, and the Allegheny Defense Fund.
The plaintiffs‟ complaint alleged that, as a result of the
Settlement Agreement, the Service had imposed a de facto
drilling ban in the ANF until a forest-wide EIS is completed
and that this ban exceeded the authority of the Service and
was contrary to NEPA and the Administrative Procedure Act
(APA). Additionally, plaintiffs allege that because the
Service‟s estimated completion date for its forest-wide EIS –
April 2010 – is unrealistic, the EIS will probably not be
completed for several years. As a result, mineral rights
owners will be prevented from exercising their property rights
during this period, resulting in damage to the owners, related
businesses, and the local community.

At a hearing on the preliminary injunction motion,
plaintiffs presented the testimony of several business owners,
who testified that, as a result of the Service‟s ban on new
drilling, they were prevented from drilling new wells, causing
significant losses to their businesses and harm to the
community. Plaintiffs also presented testimony from several
former Forest Rangers who had worked in the ANF, who
described the Service‟s historical practices regarding NTPs
and EISs and estimated that the EIS would probably require
at least several years to complete.

The Service presented the testimony of ANF Forest
Supervisor Leanne Marten and Forest Ranger Richard
Scardina. These witnesses claimed that, starting in 2007,

14
there was a significant increase in the number of NTP
applications. They explained that a forest-wide EIS is
necessary before approving any new NTPs, because the
Service‟s prior policy of individualized assessment of NTP
applications has hindered forest management, resulting in
duplicative roads or development facilities for adjoining
pieces of land, and unnecessary clearing of the forest. The
environmental defendants presented the testimony of two
members of local environmental organizations who claimed
that the natural beauty of the ANF had been impaired by oil
and gas drilling. Plaintiffs disputed much of this testimony
and presented rebuttal witnesses.

The District Court granted plaintiffs‟ motion for a
preliminary injunction. The 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. Minard Run Oil Co. v. U.S. Forest
Service, No. 09-125, 2009 WL 4937785, at *22 (W.D. Pa.
Dec. 15, 2009) (Minard Run II). 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. Id. at *14-15.
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. Id. at *32-33.

15
 The District Court then enjoined the Service “from
requiring the preparation of a NEPA document as a
precondition to the exercise of private oil and gas rights in the
ANF,” and required the Service to return to the 60-day
cooperative framework for processing NTPs that had been in
place prior to the FSEEE Settlement. Id. The preliminary
injunction was entered on December 15, 2009. The District
Court denied appellants‟ motion for reconsideration on March
9, 2010, and this appeal followed.

II. Jurisdiction

We have appellate jurisdiction under 28 U.S.C. §
1292(a)(1). The Service argued that the District Court lacked
jurisdiction because there is no final agency action subject to
review.4 Because final agency action is a jurisdictional issue,

4
The environmental appellants also claim that
appellees lack standing to challenge the Settlement
Agreement because it did not cause them any harm and
suspending its application would not redress any injury
allegedly suffered by appellees. See Freeman v. Corzine, 629
F.3d 146, 153 (3d Cir. 2010) (constitutional standing requires
(1) injury in fact, (2) causation, and (3) redressability). We
disagree. As the District Court found, the Marten Statement
is the direct result of the Settlement Agreement – its first
sentence describes the terms of the Agreement. Even if the
environmental appellants are correct that the Agreement does
not require the multi-year EIS that the Service has chosen to
implement prior to issuing NTPs, the Agreement nevertheless
establishes – in violation of appellees‟ notice and comment
rights – a new substantive rule on the issuance of NTPs that
could delay issuance of NTPs to appellees. This suffices for

16
TSG Inc. v. EPA, 538 F.3d 264, 267 (3d Cir. 2008), we
review de novo the District Court‟s finding of final agency
action, Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 63
(3d Cir. 2008). The APA provides for judicial review of
“final agency action,” 5 U.S.C. § 702, which is present when
two conditions are met:

First, the action must mark the “consummation”
of the agency‟s decisionmaking process – it
must not be of a merely tentative or
interlocutory nature. And second, the action
must be one by which “rights or obligations
have been determined,” or from which “legal
consequences will flow.”

TSG Inc., 538 F.3d at 267 (quoting Bennett v. Spear, 520 U.S.
154, 178 (1997)). We conclude that the Marten Statement
constitutes final agency action.

First, the Marten Statement represents the
consummation of the Service‟s decisionmaking process on
the specific question of whether to issue NTPs while the
Service is conducting a lengthy EIS. The Service argues that
this decision is “interlocutory,” TSG Inc., 538 F.3d at 267, or
a “preliminary, procedural, or intermediate agency action,” 5
U.S.C. § 704, which will not be final until the EIS is complete
and NTPs are issued. We agree with the Service that the
completion of the EIS or issuance of an NTP would constitute
final agency action, but that does not mean that any

standing purposes. See Massachusetts v. EPA, 549 U.S. 497,
518 (2007); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573
n.8 (1992).

17
determinations made by the Service prior to these actions are
not final. An agency determination of a particular issue that
will not be reconsidered in subsequent agency proceedings
may represent the consummation of the agency‟s
decisionmaking process on that issue. Compare Fairbanks
North Star Borough v. U.S. Army Corps of Engineers, 543
F.3d 586, 591 -592 (9th Cir. 2008) (finding of Clean Water
Act jurisdiction was consummation of decisionmaking
process on jurisdiction because subsequent regulatory
proceedings would not revisit this determination) with In re
Sac & Fox Tribe of Miss. in Iowa/Meskwaki Casino Litig.,
340 F.3d 749, 756 (8th Cir. 2003) (temporary closure order
not final because order was preliminary and subject to further
administrative review).5 The Service does not claim that it
will revisit the propriety of imposing a moratorium on new
drilling in the ANF during the forest-wide EIS, and by the
time the EIS is completed, the propriety of the moratorium
will be moot. Accordingly, the Marten Statement represents
the consummation of the Service‟s decisionmaking process
with respect to the moratorium on new drilling.

5
The Service points out that the Ninth Circuit
ultimately found no final agency action in Fairbanks. 543
F.3d at 593-94. However, this holding rested on the second
Bennett factor – whether agency action has concrete legal
consequences. Id. The jurisdictional finding at issue in
Fairbanks did not affect rights and obligations because “[i]t
does not itself command Fairbanks to do or forbear from
anything; as a bare statement of the agency‟s opinion, it can
be neither the subject of „immediate compliance‟ nor of
defiance.” Id. As we explain below, this is not true of the
moratorium on new drilling imposed by the Marten
Statement.

18
 Second, the Service‟s moratorium on new drilling has
significant legal consequences for mineral rights owners:
they must stop all new drilling or face criminal penalties. See
Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967) (finding
final agency action “where a regulation requires an immediate
and significant change in the plaintiffs‟ conduct of their
affairs with serious penalties attached to noncompliance”).
The Service contends that its moratorium on new drilling is
analogous to a merely procedural or jurisdictional
determination that has the incidental effect of delaying
agency proceedings. We disagree. As the District Court
found, the moratorium represents a “sea change” in the
Service‟s policy regarding mineral rights that directly
prohibits mineral rights owners from engaging in new
drilling, under threat of criminal penalties. Minard Run II,
2009 WL 4937785, at *22. The burden imposed by the
moratorium goes far beyond “the expense and annoyance of
litigation [that] is part of the social burden of living under
government.” FTC v. Standard Oil Co., 449 U.S. 232, 238,
244 (1980) (filing of complaint commencing agency
enforcement action was not final agency action); see also
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 47
(1938) (agency decision to hold hearing is not reviewable);
Univ. of Med. and Dentistry of N.J. v. Corrigan, 347 F.3d 57,
69 (3d Cir. 2003) (initiation of audit not final agency action);
Mobil Exploration & Producing U.S., Inc. v. DOI, 180 F.3d
1192, 1200-01 (10th Cir. 1999) (letter requesting information
not final agency action). Nor is this a case in which an
agency‟s procedural determinations have the incidental effect
of delaying the acquisition of a concededly necessary
regulatory decision. See, e.g., Aluminum Co. of Am. v. United
States, 790 F.2d 938, 941 (D.C. Cir. 1986) (ICC assertion of

19
original jurisdiction that would require more “costly and
time-consuming proceedings” than alternative review method
was not final agency action). Rather, the purpose of the
Service‟s change in policy is to suspend new drilling and its
authority to do so is precisely what is at issue here.

Finally, we note that final agency action “is to be given
a pragmatic definition.” Exxon Corp. v. FTC, 588 F.2d 895,
901-02 (3d Cir. 1978). We have identified a number of
pragmatic considerations relevant to whether agency action is
final:

(1) whether the decision represents the agency‟s
definitive position on the question; (2) whether
the decision has the status of law with the
expectation of immediate compliance; (3)
whether the decision has immediate impact on
the day-to-day operations of the party seeking
review; (4) whether the decision involves a pure
question of law that does not require further
factual development; and (5) whether
immediate judicial review would speed
enforcement of the relevant act.

Corrigan, 347 F.3d at 69 n.7. Each of these considerations
favors a finding of finality here. The Marten Statement
represents the Service‟s final position on the need for a
drilling moratorium, which will not be revisited in subsequent
proceedings. It is evident that the Service expects mineral
owners to refrain from new drilling during the moratorium
and has threatened criminal enforcement against mineral
owners who proceed with drilling without an NTP. The
moratorium on new drilling directly affects the daily

20
operations of mineral owners and related businesses and has
already caused them significant losses. Whether the Service‟s
moratorium is required by NEPA and consistent with the
APA are pure questions of law that require no further factual
development. Finally, our review of the claims presented
here will facilitate a prompt and efficient resolution of
questions regarding the scope of the Service‟s authority over
private mineral rights in the ANF and its obligations under
NEPA.6 We therefore conclude that the Service‟s
moratorium on new drilling in the ANF, as reflected in the
Settlement Agreement and the Marten Statement, constitutes
final agency action.7 Accordingly, the District Court had

6
We note that a number of mineral owners have
brought individual challenges to NTPs recently issued by the
Service, which raise many of the same issues presented in this
case. See Duhring Resource Co. v. U.S. Forest Serv., No. 07-
314 (W.D. Pa.); Catalyst Energy, Inc. v. U.S. Forest Serv.,
No. 09-70 (W.D. Pa.); Seneca Res. Corp. v. U.S. Forest Serv.,
No. 09-154 (W.D. Pa.). In each of these cases, a mineral
rights owner contends that the Service has violated its
property rights and constitutional rights by prohibiting oil and
gas development without an NTP, delaying the issuance of
his NTP beyond 60 days, and imposing unreasonable
conditions in the NTP. Because these cases challenge NTPs
already issued, there is little question that there is final agency
action in each of these cases. However, we believe that the
issues presented both in those cases and in this appeal are
better resolved comprehensively in this appeal rather than
addressing them piecemeal in a series of cases.
7
Strictly speaking, the Marten Statement is final
agency action, and the Settlement Agreement is an

21
jurisdiction in this case and we turn to the merits of its
decision.

III. The Preliminary Injunction

To obtain a preliminary injunction, a plaintiff must
show: “(1) a likelihood of success on the merits; (2) that it
will suffer irreparable harm if the injunction is denied; (3)
that granting preliminary relief will not result in even greater
harm to the nonmoving party; and (4) that the public interest
favors such relief.” Kos Pharm. v. Andrx Corp., 369 F.3d
700, 708 (3d Cir. 2004). In reviewing a preliminary
injunction, we “exercise plenary review over the district
court‟s conclusions of law and its application of law to the
facts, but review its findings of fact for clear error.” Id. We
review the court‟s ultimate decision to issue an injunction for
abuse of discretion. See Nken v. Holder, 129 S. Ct. 1749,
1761 (2009); Novartis Consumer Health, Inc. v. Johnson &
Johnson-Merck Consumer Pharmaceuticals Co., 290 F.3d
578, 595 (3d Cir. 2002).

A. Likelihood of Success on the Merits

The District Court found that appellees were likely to
prevail on the merits of two claims: (1) issuance of an NTP is
not a major federal action for which prior NEPA analysis is
required, and (2) the Settlement Agreement and the Marten
Statement are substantive rules that were not preceded by
notice and comment procedures as required by the APA. We
consider each in turn.

“intermediate agency action” which is “subject to review on
the review of the final agency action.” 5 U.S.C. § 704.

22
 1. Whether Issuance of an NTP Must be
Preceded by NEPA Analysis

The merits of appellees‟ first claim turns on whether
the issuance of an NTP is a “major federal action[]
significantly affecting the quality of the human environment,”
which under NEPA must be preceded by an appropriate
environmental analysis. 42 U.S.C. § 4332(C). We have
identified three types of agency action that typically
constitute “major federal action”: “first, where the agency
itself undertook a project; second, where the agency
supported a project by contract, grant, loan, or other financial
assistance; and third, where the agency enabled the project by
lease, license, permit, or other entitlement for use.” N.J.
Dept. of Envt’l. Prot. and Energy v. Long Island Power Auth.,
30 F.3d 403, 417 (3d Cir. 1994). But “[f]ederal approval of a
private party‟s project, where that approval is not required for
the project to go forward, does not constitute a major federal
action.” Id.; see also Sierra Club v. Penfold, 857 F.2d 1307,
1310 (9th Cir. 1988). Accordingly, the dispositive question is
whether mineral owners are required to obtain the approval of
the Service, in the form of an NTP, before drilling in the
ANF. We conclude that such approval is not necessary.

The Service points out that Congress has broad
authority under the Property Clause of the Constitution to
regulate land owned by the federal government as well as use
of private land that affects federal land. See Kleppe v. New
Mexico, 426 U.S. 529, 540 (1976). Congress has also

23
authorized the Service to regulate use of national forests.8
The Organic Act authorizes the Service “to make such rules
and regulations . . . as will insure the objects of [forest]
reservations, namely, to regulate their occupancy and use and
to preserve the forests thereon from destruction.” 16 U.S.C. §
551. “Special use regulations” promulgated under the Act
provide that “all uses of National Forest System land . . . are
designated „special uses‟ and must be approved by an
authorized officer.” 36 C.F.R. § 251.50(a). The Service
argues that drilling by mineral owners in the ANF is a
“special use” subject to its approval. See Duncan Energy v.
U.S. Forest Service, 50 F.3d 584, 589 (8th Cir. 1995)
(Duncan I) (special use regulations apply to mineral owners‟
access to land purchased under the Bankhead-Jones Farm
Tenant Act).

We disagree. As a preliminary matter, we note that the
Service‟s regulatory authority over Weeks Act land is not as
straightforward as it claims. The Organic Act‟s grant of
regulatory authority applies to “the public forests and national
forests which may have been set aside or which may be
hereafter set aside under section 471 of this title.” 16 U.S.C.
§ 551. Section 471 (now repealed) authorized the President
to designate already owned federal lands as national forests,
but did not authorize the purchase of private land, including
land with reserved or outstanding rights. 16 U.S.C. 471,
repealed by Pub. L. 94–579, title VII, § 704(a), 90 Stat. 2792
(1976). When the Organic Act was passed, the regulation of

8
The statutes authorize regulation by the Secretary of
Agriculture, who has delegated much of his statutory
authority over the national forests to the Chief of the Forest
Service. See 7 C.F.R. § 2.60.

24
“occupancy and use” did not contemplate the regulation of
access by a cotenant.

The Weeks Act was the first law to authorize federal
acquisition of private land for forest preservation. It provides
that land acquired under the Act “shall be permanently
reserved, held, and administered as national forest lands
under the provisions of section 471 of this title,” 16 U.S.C. §
521. This provision “arguably requires treating such land as
if it had been reserved under section 471” and could therefore
be subject to the Service‟s regulatory authority under the
Organic Act. United States v. Srnsky, 271 F.3d 595, 601 (4th
Cir. 2001). However, even if Congress meant by this
language to subject Weeks Act land to the Service‟s
regulatory authority under the Act, it intended to authorize the
Service to regulate the exercise of reserved or outstanding
rights by a joint owner of Weeks Act land.

Indeed, section 9 of the Weeks Act suggests that this
was not Congress‟s intent. Section 9 governs the acquisition
of forest land, and provides:

Such acquisition by the United States shall in
no case be defeated because of located or
defined rights of way, easements, and
reservations, which, from their nature will, in
the opinion of the Secretary of Agriculture, in
no manner interfere with the use of the lands so
encumbered, for the purposes of this Act. Such
rights of way, easements, and reservations
retained by the owner from whom the United
States receives title, shall be subject to the rules
and regulations prescribed by the Secretary of

25
 Agriculture for their occupation, use, operation,
protection, and administration, and such rules
and regulations shall be expressed in and made
part of the written instrument conveying title to
the lands to the United States; and the use,
occupation, and operation of such rights of way,
easements, and reservations shall be under,
subject to, and in obedience with the rules and
regulations so expressed.

16 U.S.C. § 518 (emphasis added). Thus, under section 9,
reserved rights – “rights of way, easements, and reservations
retained by the owner from whom the United States receives
title” – are subject to the regulations “expressed in and made
part of the written instrument conveying title to the lands to
the United States.” Id.

The Service points out that nothing in this provision
provides that reserved mineral rights are subject only to
regulations in the instrument of conveyance – it is possible
that reserved rights are subject to the Service regulations
contained in the written instrument of conveyance and to
other regulations not contained in the instrument. There are
two problems with this interpretation. First, it renders the
provision superfluous: Congress would not have mandated
the inclusion of regulations in deeds with reserved rights if
those rights were subject to all generally applicable Service
regulations – the general regulatory authority granted under
the Organic Act would have been sufficient. See Massie v.
U.S. Dept. of Housing and Urban Dev., 620 F.3d 340, 352
(3d Cir. 2010) (“a core tenet of statutory interpretation [is]
that no provision shall be superfluous, void, or insignificant”)
(internal quotation marks omitted); In re Philadelphia

26
Newspapers, LLC, 599 F.3d 298, 307 (3d Cir. 2010) (warning
against “applying a general provision when doing so would
undermine limitations created by a more specific provision”).

Second, as the Fourth Circuit noted in Srnsky, the
regulatory authority claimed by the Service “has no logical
stopping point” and would therefore raise difficult
constitutional questions. 271 F.3d at 604. For example, on
the Service‟s view, it would have the authority to require any
holder of reserved rights of any kind – even an easement or
right of way – to obtain a permit prior to exercising their
rights. This would effectively “wipe the National Forest
System clean of any and all easements, implied or express”
and dramatically reduce the value of reserved mineral and
timber rights. Id. We do not believe that this is what
Congress intended, and, like the Fourth Circuit, we are
reluctant to construe the Weeks Act “„in a manner that could
in turn call upon the Court to resolve difficult and sensitive
questions arising out of the guarantees of the takings clause.‟”
Id. (quoting United States v. Security Indus. Bank, 459 U.S.
70, 82 (1982)). The better reading of the Weeks Act is that it
“require[s] that any rules or regulations that the Secretary
wishes to apply to easements reserved by the grantor must be
„expressed in and made part of‟ the instrument of
conveyance.” Srnsky, 271 F.3d at 602.

These considerations apply with even greater force to
outstanding rights. Although the Weeks Act contains no
limiting language regarding the regulations applicable to
outstanding rights, this is because outstanding rights are
created prior to conveyance to the United States and there is
no opportunity to limit these rights by inserting regulations
into the instrument defining these rights. Moreover, the

27
language of the Weeks Act indicates that Congress expected
the United States to be bound by the terms of outstanding
rights – purchase of land with outstanding rights is permitted
only where such rights “from their nature will, in the opinion
of the Secretary of Agriculture, in no manner interfere with
the use of the lands so encumbered, for the purposes of this
Act.” 16 U.S.C. § 518. This limitation only makes sense if
the Service is bound by the terms of outstanding rights and
cannot simply invoke its regulatory authority to override any
private use of outstanding rights that it considers inconsistent
with the purposes of the Weeks Act. Additionally, as with
reserved rights, we are reluctant to construe the Weeks Act in
a manner raising difficult constitutional takings questions
absent a clear indication of congressional intent.9

As the District Court recognized, Duncan Energy Co.
v. U.S. Forest Service, 50 F.3d 584 (8th Cir. 1997) (Duncan I)
does not support the Service‟s broad claim of regulatory

9
The Service‟s construction of the Weeks Act and the
Organic Act as conferring regulatory authority over
outstanding rights is not entitled to deference. This
interpretation was adopted in a 2007 General Counsel opinion
(J.A. 380-83 & n.5), not in a formal adjudicatory or
rulemaking proceeding, and thus is not entitled to Chevron
deference. See De Leon-Ochoa v. U.S. Att’y Gen., 622 F.3d
341, 348-49 (3d Cir. 2010) (citing United States v. Mead
Corp., 533 U.S. 218 (2001)). Even Skidmore deference is
unwarranted here, because the Service‟s current interpretation
is an unexplained departure from its longstanding view that
its regulations do not apply to outstanding mineral rights. See
Wyeth v. Levine, 129 S. Ct. 1187, 1201 (2009).

28
authority.10 In Ducan I, the Eighth Circuit held that a private
mineral rights owner seeking to drill in a national forest
acquired under the Bankhead-Jones Farm Tenant Act, 50 Stat.
525 (1937) (BJFTA), codified as amended at 7 U.S.C. §
1010, et seq., was required to obtain authorization from the
Service before beginning mining operations. 50 F.3d at 589-
91. The court acknowledged that the mineral rights owner
had a right under state law to reasonable use of the surface
estate and thus the Service did not have “veto authority” over
mineral rights owners‟ surface use. Id. at 589. But the
Service‟s “special use regulations” governed surface use by
mineral rights owners and empowered it to determine whether
an owner‟s proposed surface use was reasonable. Id. at 590-
91. To respect the rights of the mineral owner, the Service
was required to process requests for surface use within a
reasonable time – generally 60 days. Id.; see also Duncan
Energy Co. v. U.S. Forest Serv., 109 F.3d 497, 499 (8th Cir.
1997) (Duncan II) (clarifying that an inflexible 60-day limit
was not required). The court found that this rule was

10
The Fifth Circuit‟s recent decision in Dunn-
McCampbell Royalty Interest, Inc. v. National Park Service,
630 F.3d 431 (5th Cir. 2011), is also inapposite. That case
considered land acquired under the Enabling Act of 1962, 16
U.S.C. §§ 459d-459d-7, not under the Weeks Act, and the
question presented by the case was whether a Texas statute
consenting to federal acquisition of the land protected both
reserved and outstanding rights. Id. at 433. The Fifth Circuit
found that the plain language of the consent statute extended
only to reserved rights, but not outstanding rights. Id. at 436-
37. Because the language of the Texas statute is different
from the relevant provision of the Weeks Act, this case is not
relevant.

29
consistent with North Dakota law. Duncan I, 50 F.3d at 591-
92.

Duncan I is inapposite for several reasons. First, the
land at issue in Duncan I was not acquired under the Weeks
Act, but under BJFTA, which does not contain the limiting
language of the Weeks Act discussed above. Compare Pub.
L. No. 75-210, 32(a), 50 Stat. 522, 525-26 (1937) with 16
U.S.C. 518. Second, Duncan I found that the authority
asserted by the Service was consistent with the rights of
mineral owners under North Dakota property law. Here, by
contrast, Pennsylvania law is flatly inconsistent with the
authority asserted by the Service. In a case very similar to
this one, the Pennsylvania Supreme Court rejected a claim by
the Pennsylvania Department of Conservation of Natural
Resources that, as surface owner, it could “impose conditions
restraining those exercising their rights to the subsurface.”
Belden & Blake Corp., 969 A.2d at 532. The Court explicitly
held that a surface owner has no right to determine what
constitutes reasonable use in the first instance, and a mineral
rights owner is under no obligation to obtain the surface
owner‟s approval prior to accessing the surface to extract
mineral rights. Id. Third, the Service‟s multi-year
moratorium on new drilling could not be justified even under
the Eighth Circuit‟s rulings in Duncan I and Duncan II. In
Duncan II, the Eighth Circuit held that the Service must be
accorded some flexibility in issuing permits and could not be
held to a strict, 60-day limit. 109 F.3d at 501. But the
indefinite suspension of NTPs for several years goes far
beyond the type of delay contemplated in Duncan II. See 109
F.3d at 500 n.1 (mineral rights owner‟s applications for
surface access were processed in 61, 74, and 90 days and that

30
owner had improperly taken unilateral action when
application had not been processed for 100 days).11

In sum, the Service does not have the broad authority it
claims over private mineral rights owners‟ access to surface
lands. Its special use regulations do not apply to outstanding
rights and the limited regulatory scheme applicable to the vast
majority of reserved rights in the ANF does not impose a
permit requirement.12 Although the Service is entitled to

11
Because we find that the Service does not have the
regulatory authority it claims under the Organic Act and
Weeks Act, we need not consider the Service‟s arguments
that federal common law would govern the United States‟
property rights or that federal law preempted state property
law. See Duncan I, 50 F.3d at 591. In any case, the Service
waived these arguments when it conceded before the District
Court that Pennsylvania law was not preempted and argued
that its new drilling moratorium was consistent with
Pennsylvania law. (J.A. 647-48, 1393-95); Minard Run II,
2009 WL 4937785, at *13.
12
The vast majority of the reserved mineral rights in
the ANF are 1911 rights, which the District Court found do
not impose a permit requirement or empower the Service to
unilaterally determine what constitutes reasonable surface
use. Minard Run II, 2009 WL 4937785, at *3. The Service
claims that some versions of the 1911 regulations require its
approval of the location of access roads and buildings.
(Appellant‟s Br. 44 (citing J.A. 384-86, 449, 454, 2421-28).)
However, the Service‟s 1984 ANF Handbook states that 1911
rights do not impose a permit requirement (J.A. 255), and
appellees‟ expert opined without contradiction that the seven-
section version of the 1911 regulations considered by the

31
notice from owners of these mineral rights prior to surface
access, and may request and negotiate accommodation of its
state-law right to due regard, its approval is not required for
surface access. An NTP is an acknowledgment that
memorializes any agreements between the Service and a
mineral rights owner, but it is not a permit. Accordingly, on
the record before it, the District Court properly concluded that
issuance of an NTP is not a “major federal action” under
NEPA and an EIS need not be completed prior to issuing an
NTP. See Sierra Club v. Penfold, 857 F.2d 1307, 1310 (9th
Cir. 1988); Long Island Power Auth., 30 F.3d at 417. The
court therefore correctly determined that appellees were likely
to succeed on their claim that NEPA does not require the
Service to conduct an environmental analysis prior to issuing
an NTP.

2. Whether the APA Requires Notice and
Comment Prior to Implementation of the Service’s
Policy on Issuance of NTPs

The APA requires an agency to provide public notice
and an opportunity to comment before promulgating a
legislative or substantive rule. See 5 U.S.C. 553(b)-(c);

District Court, which does not require Service approval of
roads or locations, was the “standard version.” (J.A. 160.)
The only deed included in the record by either party also
contains this version of the rules. (J.A. 276.) The court
therefore did not commit clear error in finding that 1911
rights “typically” incorporated the standard version of the
1911 regulations, and that these regulations did not impose a
permit requirement. Minard Run II, 2009 WL 4937785, at
*3.

32
Lincoln v. Vigil, 508 U.S. 182, 196 (1993); Chao v.
Rothermel, 327 F.3d 223, 227 (3d Cir. 2003). Both the
Settlement Agreement and the Marten Statement are “rules”
within the meaning of the APA, because they are “agency
statement[s] of general . . . applicability and future effect
designed to implement, interpret, or prescribe law or policy.”
5 U.S.C. § 551(4). The Service argues that both the
Settlement Agreement and the Marten Statement are not
substantive rules, but rather “rules of agency organization,
procedure, or practice” excepted from the APA‟s notice and
comment requirement.13 See 5 U.S.C. § 553(b). We
disagree.

As we have explained:

Legislative rules are subject to the notice and
comment requirements of the APA because they
work substantive changes in prior regulations,
or create new law, rights, or duties. . . .
Interpretative, or procedural, rules do not
themselves shift the rights or interests of the
parties, although they may change the way in
which the parties present themselves to the
agency.

13
The Service also contends that the decision to
perform a NEPA analysis is not a “rule” under the APA, but
this misses point. Appellees do not object to the Service‟s
conducting a NEPA analysis; they object only to its
moratorium on issuing NTPs until the NEPA analysis is
complete.

33
SBC, Inc. v. FCC, 414 F.3d 486, 497-98 (3d Cir. 2005)
(citations and quotation marks omitted). The Settlement
Agreement and the Marten Statement create new duties for
mineral rights owners: the purpose and effect of the
Settlement Agreement and the Marten Statement were to
prevent new drilling by mineral rights owners during the
course of a multi-year EIS. Additionally, in considering
whether a rule makes “substantive changes in prior
regulations” or “create[s] new law, rights, or duties,” we
consider whether the rule will “have a substantive adverse
impact on the challenging party.” Chao, 327 F.3d at 227.
The Service‟s new policy has a “substantive adverse impact”
on mineral rights owners because it directly interferes with
their property rights to enter ANF lands and drill for oil and
gas. Accordingly, the District Court properly found that
appellees were likely to succeed on the merits of their claim
that the Settlement Agreement and the Marten Statement are
not merely procedural rules, but substantive rules that must be
promulgated pursuant to the notice and comment procedures
of the APA.

B. Irreparable Harm

The District Court found that the Service‟s moratorium
on new drilling irreparably harmed appellees because it
infringed their property rights and threatened bankruptcy or
closure for some businesses. The Service argues that the
District Court‟s finding that some businesses would suffer
temporary economic losses and might go bankrupt was
insufficient to establish irreparable harm. We disagree. As a
general matter, “a purely economic injury, compensable in
money, cannot satisfy the irreparable injury requirement,”
Frank’s GMC Truck Ctr., Inc. v. GMC, 847 F.2d 100, 102 (3d

34
Cir. 1988), but “an exception exists where the potential
economic loss is so great as to threaten the existence of the
movant‟s business.” Vaqueria Tres Monjitas, Inc. v. Irizarry,
587 F.3d 464, 485 (1st Cir. 2009); see also Doran v. Salem
Inn, Inc., 422 U.S. 922, 932, (1975) (irreparable injury shown
where business “would suffer a substantial loss of business
and perhaps even bankruptcy” absent injunctive relief). Here,
the District Court carefully considered and ultimately credited
the testimony of several business owners that the new drilling
moratorium had dramatically affected their business and
would probably cause them to shut down or go bankrupt if it
continued. Minard Run II, 2009 WL 4937785, at *15-16
(citing J.A. 971-72, 978-79, 985-88, 1127-36).

Additionally, where “interests involving real property
are at stake, preliminary injunctive relief can be particularly
appropriate because of the unique nature of the property
interest.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210
(10th Cir. 2009).14 This is particularly true of the mineral

14
Accord Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1090 (7th Cir.
2008) (“As a general rule, interference with the enjoyment or
possession of land is considered „irreparable‟ since land is
viewed as a unique commodity”); East Tenn. Natural Gas Co.
v. Sage, 361 F.3d 808, 828-29 (4th Cir. 2004) (excluding
owner from real property constituted irreparable injury);
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC
Mortg. Capital, Inc., 274 F.3d 1085, 1097 (6th Cir. 2001)
(foreclosure causes irreparable injury because it results in loss
of “unique real property”); Carpenter Tech. Corp. v. City of
Bridgeport, 180 F.3d 93, 97 (2d Cir. 1999) (condemnation of
real property constitutes irreparable harm because condemnee

35
rights at stake in this case. Under Pennsylvania law, oil and
gas resources are subject to the “rule of capture,” which
permits an owner to extract oil and gas even when extraction
depletes a single oil or gas reservoir lying beneath adjoining
lands. Barnard v. Monongahela Natural Gas Co., 65 A. 801
(Pa. 1907). The adjoining owner‟s only remedy against such
drainage is to “go and do likewise.” Id. The Service‟s
moratorium on new drilling deprives mineral owners in the
ANF of this remedy and will cause them to lose oil and gas to
other landowners drilling on private lands adjoining the ANF,
which are not subject to the moratorium.15 (J.A. 155-56.)
Therefore, the moratorium also causes irreparable injury to
mineral rights owners by depriving them of the unique oil and
gas extraction opportunities afforded them by their mineral
rights. See Siegal, 552 F.3d at 1210 (finding irreparable
injury where interference with property rights caused loss of
unique opportunities).

C. The Balance of the Equities and the Public
Interest

Like the District Court, we consider together the final
two elements of the preliminary injunction framework – the

has no adequate remedy at law); K-Mart Corp. v. Oriental
Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (“Real estate
has long been thought unique, and thus, injuries to real estate
interests frequently come within the ken of the chancellor”).
15
Because the ANF is not a single continuous piece of
land – the forest is dotted with numerous private holdings
(J.A. 155-56, 2258, 2260) – this concern is not limited to
mineral rights located on the periphery of the forest.

36
public interest and the balance of the equities. See Nken, 129
S. Ct. at 1762 (“assessing the harm to the opposing party and
weighing the public interest . . . merge when the Government
is the opposing party”). While the Service has an important
statutory duty to protect and maintain the natural resources of
the ANF, the District Court was not required to accept at face
value its claims that a preliminary injunction will prevent it
from doing so. Rather, the court was within its discretion to
carefully consider the evidence presented by the parties to
determine whether appellees had shown that the public
interest favored an injunction. See id. at 1761; but cf. Winter
v. Natural Resources Defense Council, Inc., 129 S. Ct. 365,
377 (2008) (noting the need for special deference to
“„complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military
force,‟ which are „essentially professional military
judgments‟”).

The District Court noted that the Service had
successfully completed an EIS in 1986 without imposing a
moratorium on new drilling or suspending the Minard Run I
framework. Id. at *6 n.2. The Service also conceded that this
framework had adequately protected its interest in preserving
the environmental resources of the ANF. Id. at *15 (citing
J.A. 652-53). However, the Service contended – and
appellees vigorously disputed – that there was a recent
significant increase in drilling in the ANF justifying a
different approach to the current EIS. Id. at *14 (citing J.A.
337-38, 653-54, 1280-81.) The District Court considered the
conflicting evidence and found that although the number of
wells had increased recently, “drilling activity in the ANF is
somewhat cyclic in nature.” Id. at *14. Considered in
historical context, “the total number of active wells in the

37
ANF immediately preceding the drilling ban was not
appreciably greater than the number of existing wells in the
mid-1980s, when the Minard Run [I] framework for
processing Notices to Proceed was utilized.” Id. The Service
has not challenged this finding on appeal, and it is amply
supported by the record.

Because the Service could not credibly distinguish the
present circumstances from the preceding decades in which
the Minard Run I framework was concededly effective in
protecting the ANF, it was not clear error for the District
Court to conclude that a preliminary injunction reinstating
that framework would not harm the public interest or the
interests of the Service in preserving the ANF. By contrast,
granting the injunction would vindicate the public‟s interests
in aiding the local economy, see Earth Island Institute v.
Carlton, 626 F.3d 462, 475 (9th Cir. 2010), protecting the
property rights of mineral rights owners, see 16 U.S.C. 518,
and ensuring public participation in agency rulemaking as
required by the APA, 5 U.S.C. §§ 552-53. On the record
before it, the District Court therefore did not err in finding
that the balance of the equities and the public interest favored
injunctive relief.

IV. Conclusion

For the reasons set forth above, we affirm the
preliminary injunction entered by the District Court against
appellants.

38