by Chris Lareau
editor, Allegheny Almanac
As things currently stand in the multitude and years of litigations over the Allegheny National Forest, a half-million acres of woods in northwestern Pennsylvania, property owners are being denied their rights. Specifically, the right to drill for oil.
In the early 1960s when John Kennedy was President, other property owners, the Seneca Nation and residents of Kinzua, were denied the right of ownership in nearly the same location, and it too was litigated up to but not including the U.S. Supreme Court. The effective federal court decision removed the last vestiges of indian sovereignty in the state of Pennsylvania. The story of this loss of property lives on in song and literature. Resolution of today's important mattter of mineral rights on federal property here may stimulate similar interest. The only difference this time is that the litigation may go all the way to the U.S. Supreme Court.
Read a summary of the federal court case at the Erie Times-News
The building of the Kinzua Dam after the federal government took property by eminent domain broke the oldest treaty in American history, because the original agreement to give the land to the Allegheny Senecas was made by George Washington during the Revolutionary War on behalf of the Continental Congress, before we even had a U.S. President. The guarantee of property rights, however, is even older, which is why it should catch the interest of judges at the Supreme Court.
Under current agreements worked out with the U.S. Department of Agriculture, through the U.S Forestry Service, there appears to be a moratorium on drilling at specified sites which includes those of interest to tourists and environmental groups. In addition, in order to start drilling in other parts of the forest, owners must first go through a lengthy environmental impact study in line with a national environmental act that was passed long after mineral rights were originally purchased.
Just about every acre of the oil field in the half-million acre Allegheny National Forest is owned by private parties. Except for the surface rights. These are owned by the federal government, which wants to be sure there will not be long-lasting or permanent damage to the state's only national forest. Environmental Impact studies can take up to nine months or longer, if there are complications.
Restriction against drilling in recreational and environmentally-sensitive areas and the long delay to obtain a permit effectively controls property ownership, not unlike seizure of property by eminent domain. Call it what you want, the result is the same.
A previous eminent domain case in Connecticut heard recently by the Supreme Court favored business and a city which took a neighborhood for economic reasons. Construction of a pharmaceutical plant there would benefit more people than the few hundreds who lost their homes. This was a new precedent, because for the first time, the court ruled that eminent domain could be exercised for purely economic reasons.
At the current status quo, the government appears to be exercising an eminent domain right in toto in some areas and partially in others. A delay of 6 to 9 months for a business venture could mean its failure while administrators in Washington or Milwaukee review requests for permits. The reason for a seeming suspension of property rights may be the benefit for a nation that is trying to be a good steward to its environment and to comply with federal law which was passed after property rights had already been assigned. Currently the government, I am sure, sincerely believes it is ensuring the greater good of the nation over economic development by a few.
It's a good argument and if I were working for the forestry service I would hesitate to do otherwise. They are doing the job assigned to them by legislation from the U.S. Congress. But it is not fair and invites anarchy at worst and counter-productive political fighting at best. For many, many years.
I suggest the federal government reach a similar solution to the one they made with the Seneca Nation. All property owners who have land in a tourist or environmentally sensitive area or within proposed wilderness areas should be justly compensated for their property, including the value of the minerals in it.
This will not make everyone happy. It may not even make a lot of people happy, as occurred when the federal government kicked the Senecas out of Pennsylvania. But it will maintain a rule of law. What is more important than that?
Another recent ruling by the same U.S. Supreme Court perhaps set another relevant precedent, overruling the principle of "pre-emption" of federal operations in favor of a single individual. The case involved the loss of a patient's arm after taking an intravenous injection of a drug. The drug company argued that the patient couldn't sue because the FDA did not warn about such a possible, uncommon drug reaction. The Supreme Court found in favor of the patient and she received a financial settlement for the loss of her arm. She is a musician. A single individual won out against the federal government.
Does the national environmental protection act "pre-empt" property rights? The findings of the FDA did not pre-empt the unfair loss of a limb. Did the U.S. Congress re-define property rights when it passed the national environmental protection act? I don't think that was their intention.
I think that if the owners of mineral rights sued for the loss of their property they would win just like the musician did.
Comments