```

[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]

   H.R. 3881, TO AMEND THE MINERAL LEASING ACT TO REPEAL PROVISIONS 
    RELATING ONLY TO THE ALLEGHENY NATIONAL FOREST, ``COOPERATIVE 
              MANAGEMENT OF MINERAL RIGHTS ACT OF 2015''

=======================================================================

                          LEGISLATIVE HEARING

                               BEFORE THE

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 OF THE

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                        Tuesday, April 19, 2016

                               __________

                           Serial No. 114-38

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
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                                   or
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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
Louie Gohmert, TX                    Madeleine Z. Bordallo, GU
Doug Lamborn, CO                     Jim Costa, CA
Robert J. Wittman, VA                Gregorio Kilili Camacho Sablan, 
John Fleming, LA                         CNMI
Tom McClintock, CA                   Niki Tsongas, MA
Glenn Thompson, PA                   Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY                Jared Huffman, CA
Dan Benishek, MI                     Raul Ruiz, CA
Jeff Duncan, SC                      Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Matt Cartwright, PA
Raul R. Labrador, ID                 Donald S. Beyer, Jr., VA
Doug LaMalfa, CA                     Norma J. Torres, CA
Jeff Denham, CA                      Debbie Dingell, MI
Paul Cook, CA                        Ruben Gallego, AZ
Bruce Westerman, AR                  Lois Capps, CA
Garret Graves, LA                    Jared Polis, CO
Dan Newhouse, WA                     Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Darin LaHood, IL

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                  Sarah Lim, Democratic Chief Counsel
                                
                                
                                ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                       DOUG LAMBORN, CO, Chairman
            ALAN S. LOWENTHAL, CA, Ranking Democratic Member

Louie Gohmert, TX                    Jim Costa, CA
Robert J. Wittman, VA                Niki Tsongas, MA
John Fleming, LA                     Matt Cartwright, PA
Glenn Thompson, PA                   Donald S. Beyer, Jr., VA
Cynthia M. Lummis, WY                Ruben Gallego, AZ
Dan Benishek, MI                     Lois Capps, CA
Jeff Duncan, SC                      Jared Polis, CO
Paul A. Gosar, AZ                    Vacancy
Raul R. Labrador, ID                 Vacancy
Paul Cook, CA                        Vacancy
Garret Graves, LA                    Vacancy
Ryan K. Zinke, MT                    Vacancy
Jody B. Hice, GA                     Vacancy
Alexander X. Mooney, WV              Raul M. Grijalva, AZ, ex officio
Cresent Hardy, NV
Rob Bishop, UT, ex officio
                               ----------                                

                                CONTENTS

                                ----------                              
                                                                   Page

Hearing held on Tuesday, April 19, 2016..........................     1

Statement of Members:
    Lamborn, Hon. Doug, a Representative in Congress from the 
      State of Colorado..........................................     1
        Prepared statement of....................................     3
    Lowenthal, Hon. Alan S., a Representative in Congress from 
      the State of California....................................     4
        Prepared statement of....................................     5
    Thompson, Hon. Glenn, a Representative in Congress from the 
      State of Pennsylvania......................................     6
        Prepared statement of....................................     8

Statement of Witnesses:
    Casamassa, Glenn, Association Deputy Chief, National Forest 
      System, U.S. Forest Service, U.S. Department of 
      Agriculture, Washington, DC................................    15
        Prepared statement of....................................    16
    Cline, Mark, President, Pennsylvania Independent Petroleum 
      Producers Association, Inc., Bradford, Pennsylvania........     9
        Prepared statement of....................................    10
    Furnish, Jim, Former Deputy Chief, U.S. Forest Service, 
      Washington, DC.............................................    16
        Prepared statement of....................................    17
    Mayer, Craig, Secretary, Pennsylvania Independent Oil & Gas 
      Association, Warren, Pennsylvania..........................    18
        Prepared statement of....................................    20
    Shuffstall, Dearald ``Bud'', National Association of Royalty 
      Owners, Meadville, Pennsylvania............................    11
        Prepared statement of....................................    13

Additional Materials Submitted for the Record:
    Letter to Subcommittee from various organizations in 
      opposition of H.R. 3881....................................    28
                                     

 
 LEGISLATIVE HEARING ON H.R. 3881, TO AMEND THE MINERAL LEASING ACT TO 
   REPEAL PROVISIONS RELATING ONLY TO THE ALLEGHENY NATIONAL FOREST, 
        ``COOPERATIVE MANAGEMENT OF MINERAL RIGHTS ACT OF 2015''

                              ----------                              

                        Tuesday, April 19, 2016

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to notice, at 2:19 p.m., in 
room 1324, Longworth House Office Building, Hon. Doug Lamborn 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Lamborn, Thompson, Gosar, Hice, 
Hardy; Lowenthal, and Costa.
    Mr. Lamborn. The Subcommittee on Energy and Mineral 
Resources will come to order. We are here today to hear H.R. 
3881, introduced by Representative Glenn Thompson of 
Pennsylvania, to amend the Mineral Leasing Act to repeal 
provisions relating only to the Allegheny National Forest, the 
``Cooperative Management of Mineral Rights Act of 2015.''
    Under Committee Rule 4(f), any oral opening statements at 
hearings are limited to the Chairman and Ranking Minority 
Member, and the Vice Chair and a designee of the Ranking 
Member. This will allow us to hear from our witnesses sooner 
and help Members keep to their schedules.
    Therefore, I ask unanimous consent that all other Members' 
opening statements be made part of the hearing record if they 
are submitted to the Subcommittee Clerk by 5:00 p.m. today.
    [No response.]
    Mr. Lamborn. Hearing no objection, so ordered. I now 
recognize myself for my opening statement.

    STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF COLORADO

    Mr. Lamborn. This afternoon's hearing is on H.R. 3881, 
introduced by my colleague from Pennsylvania, Representative 
Glenn Thompson. This legislation addresses the U.S. Forest 
Service's long-standing attempt to usurp regulatory 
jurisdiction over private property rights in Northwestern 
Pennsylvania and the Allegheny National Forest.
    Production of oil and natural gas in the Allegheny region 
has been occurring for over a century. In fact, long before 
Edwin Drake mechanically drilled the first commercial oil well 
in Titusville, Pennsylvania in 1859, Native Americans in the 
region skimmed crude oil from natural seepage and used it for 
medicinal purposes. While the Drake well sparked the first oil 
boom in the United States, the dawn of horizontal drilling, 
paired with the age-old method of hydraulic fracturing, led to 
the most recent boom in the Marcellus Shale.
    In less than a decade, Pennsylvania has become the second 
largest producer of natural gas in the United States, behind 
Texas, and has contributed toward our Nation's renewed status 
in leading global production of energy. Unfortunately, the 
Commonwealth of Pennsylvania's success also put it directly in 
the crosshairs of environmental activists focused on banning 
American energy production in this region and elsewhere.
    All of the land that the Allegheny National Forest sits on 
was once privately owned. When the Federal Government acquired 
the land to establish a new national forest in 1923, most of 
the acquisition was of surface rights, with most of the 
subsurface mineral rights remaining in private ownership. 
Today, 93 percent of the subsurface mineral estate in the 
Allegheny National Forest is in private hands and is regulated 
under state law.
    For decades, the Forest Service worked cooperatively with 
the state and energy producers in accordance with Federal and 
state laws. Yet in 2007, the Forest Service changed the game, 
eventually proposing new rules to apply NEPA to private mineral 
rights. Soon after, a sweetheart ``sue-and-settle'' deal 
occurred in which the Forest Service settled with Sierra Club 
and other environmental groups, agreeing to apply a multitude 
of new Federal regulations on these private mineral rights.
    As a result of the settlement, the Forest Service also 
enacted an outright ban on future oil and natural gas 
development in the Allegheny until new regulations were 
finalized. Thankfully, Federal courts eventually struck down 
this regulatory over-reach, but not without a very real cost to 
many families and businesses in the Allegheny region.
    Given the vast regulatory over-reach we have seen under 
this Administration, it is clear that the need to further rein 
in the Forest Service is very necessary. The way the Forest 
Service sought to trample upon the rights of private property 
owners and state jurisdiction in this instance is a cautionary 
tale for every single parcel of land managed by the Federal 
Government.
    My colleague's legislation should be a model for 
eliminating statutory language that provides enough leeway for 
Federal agencies to run roughshod over private property rights. 
This bill will also help prevent the Forest Service from 
manipulating our broken regulatory system in the future to 
prevent the development of affordable energy upon which 
American families and businesses currently rely.
    In his book, ``The Prize,'' Daniel Yergin includes a quote 
from the mid-19th century on the virtues of Pennsylvania's 
newfound oil resources: ``It is the light of the age . . . the 
brightest, and yet the cheapest in the world; a light fit for 
Kings and Royalists, and not unsuitable for Republicans and 
Democrats.'' I would say this statement still holds true. The 
safe and responsible development of American energy throughout 
our Nation enjoys support from responsible members of both the 
Republican and Democratic parties, from Pennsylvania to Texas, 
to the shores of California.
    These resources will remain a fundamentally important 
energy source for American families, manufacturers, and 
businesses far into the future. The current regulatory 
environment is making it increasingly difficult and extremely 
costly to produce this much-needed energy in our Nation. In 
this instance, I am glad that the courts were able to prevent 
such over-reach from shutting down energy production on the 
Marcellus. Unfortunately, other areas of our country have not 
been so lucky.
    With that, I look forward to hearing the testimony from our 
witnesses.
    [The prepared statement of Mr. Lamborn follows:]
Prepared Statement of the Hon. Doug Lamborn, Chairman, Subcommittee on 
                      Energy and Mineral Resources
    This afternoon's hearing is on H.R. 3881, the ``Cooperative 
Management of Mineral Rights Act,'' introduced by my colleague from 
Pennsylvania, Representative Glenn Thompson. This legislation addresses 
the U.S. Forest Service's long-standing attempt to usurp regulatory 
jurisdiction over private property rights in Northwestern Pennsylvania 
in the Allegheny National Forest.
    Production of oil and natural gas in the Allegheny region has been 
occurring for over a century. In fact, long before Edwin Drake 
mechanically drilled the first commercial oil well in Titusville, 
Pennsylvania in 1859, Native Americans in the region skimmed crude oil 
from natural seepage and used it for medicinal purposes. While the 
Drake well sparked the first oil boom in the United States, the dawn of 
horizontal drilling, paired with the age-old method of hydraulic 
fracturing, led to the most recent boom in the Marcellus Shale.
    In less than a decade, Pennsylvania has become the second largest 
producer of natural gas in the United States behind Texas--and has 
contributed toward our Nation's renewed status in leading global 
production. Unfortunately, the Commonwealth of Pennsylvania's success 
also put it directly in the crosshairs of environmental activists 
focused on banning American energy production in this region and 
elsewhere.
    All of the land that the Allegheny National Forest sits on was once 
privately owned. When the Federal Government acquired the land to 
establish a new National Forest in 1923, most of the acquisition was of 
surface rights--with most of the subsurface mineral rights remaining in 
private ownership. Today, 93 percent of the subsurface mineral estate 
in the Allegheny National Forest is in private hands, and is regulated 
under state law. For decades the Forest Service worked cooperatively 
with the state and energy producers in accordance with Federal and 
state laws. Yet in 2007, the Forest Service changed the game--
eventually proposing new rules to apply the National Environmental 
Policy Act (NEPA) to private mineral rights.
    Soon after, a sweetheart ``sue and settle'' deal occurred in which 
the Forest Service settled with Sierra Club and other environmental 
groups, agreeing to apply a multitude of new Federal regulations on 
these private mineral rights. As a result of the settlement, the Forest 
Service also enacted an outright ban on future oil and natural gas 
development in the Allegheny until new regulations were finalized.
    Thankfully, Federal courts eventually struck down this regulatory 
over-reach, but not without a very real cost to many families and 
businesses in the Allegheny region. Given the vast regulatory over-
reach we have seen under this Administration, it is clear that need to 
further rein in the Forest Service is very necessary. The way the 
Forest Service sought to trample upon the rights of private property 
owners and state jurisdiction in this instance is a cautionary tale for 
every single parcel of land managed by the Federal Government.
    My colleague's legislation should be a model for eliminating 
statutory language that provides enough leeway for Federal agencies to 
run roughshod over private property rights. This bill will also help 
prevent the Forest Service from manipulating our broken regulatory 
system in the future to prevent the development of affordable energy 
upon which American families and businesses currently rely.
    In his book ``The Prize,'' Daniel Yergin includes a quote from the 
mid-19th century on the virtues of Pennsylvania's newfound oil 
resources: ``It is the light of the age . . . the brightest and yet the 
cheapest in the world; a light fit for Kings and Royalists and not 
unsuitable for Republicans and Democrats.''
    I would say this statement still holds true. The safe and 
responsible development of American energy throughout our Nation enjoys 
support from both Republicans and Democrats, from Pennsylvania, to 
Texas, to the shores of California. These resources will remain a 
fundamentally important energy source for American families, 
manufacturers and businesses far into our future. The current 
regulatory environment is making it increasingly difficult and 
extremely costly to produce this much-needed energy in our Nation. In 
this instance I am glad that the courts were able to prevent such over-
reach from shutting down energy production on the Marcellus. 
Unfortunately, other areas of our country have not been so lucky.
    With that, I look forward to hearing the testimony from our 
witnesses.

                                 ______
                                 

    Mr. Lamborn. I now recognize the Ranking Minority Member 
for a statement.

 STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Dr. Lowenthal. Thank you very much, Mr. Chairman. I have 
some very significant concerns about the legislation before us 
today. I understand the sponsor's interest in trying to protect 
private oil and gas rights, and I certainly respect those 
rights. But I also respect the rights of surface landowners, 
who in this case are the American people. And we certainly 
should not be stripping away those rights just to make it a 
little easier for oil and gas companies.
    Unfortunately, that appears to be all that this bill is 
about. This issue started back in 1979, when the forest rangers 
at the Allegheny National Forest discovered that an oil company 
was building roads and drilling in the Allegheny without having 
provided any notice whatsoever. Worse, they were drilling on 
land that was being managed for hunting, fishing, and wildlife 
habitat. The Forest Service had no opportunity to make sure 
that the forest resources were not damaged unnecessarily in the 
process of drilling.
    The Forest Service also was unable to properly market the 
timber that the oil company cut down to build the roads and the 
well pad. So, the Forest Service sued the company and won. The 
ruling required the oil company to provide information to the 
Forest Service at least 60 days before doing any additional 
drilling.
    Those requirements became standard operating procedure for 
the Forest Service in the 1980s, and were put into law by the 
Energy Policy Act of 1992. It is that language that this bill 
would eliminate.
    This bill is unnecessary, since the courts have been very 
clear that the Forest Service deserves this advance notice. And 
I am concerned that future courts could interpret this 
legislation to indicate that it is the intent of Congress that 
companies do not have to provide any advance notice. Then those 
companies would be allowed to build roads and drill wells 
without telling anyone in charge of protecting the forest.
    This could go far beyond the Allegheny, too, since it could 
set a precedent that would apply to all private minerals 
underneath national forests, nationwide. I do not see why it is 
necessary to take that kind of risk, particularly when recent 
court cases have severely limited the authority of the Forest 
Service in these situations.
    According to the courts, the Forest Service cannot say no 
to companies wanting to drill on their private mineral rights. 
I disagree, but that is not the point we are discussing here 
today. The point is, the oil companies won, so there is no need 
for legislation that supposedly protects their interests. The 
courts have done it for them, and there is no indication that 
the 60-day notice has hindered companies very much, if at all.
    But the courts have also been very clear that the Forest 
Service deserves this advance notice and it deserves the right 
to make sure that our national forests are not being unduly 
harmed by private companies seeking to drill for oil and gas. 
The Forest Service is managing this land on behalf of the 
American people, and the American people have the right to use 
this land for recreation, hunting, fishing, bird watching, and 
more, and have the right to expect they will be able to 
continue to do so with their children and their grandchildren.
    This bill appears to simply blindfold the Forest Service to 
what is happening on their lands, and I think that is the wrong 
direction to go.
    Thank you, Mr. Chair, and I yield back the balance of my 
time.
    [The prepared statement of Mr. Lowenthal follows:]
   Prepared Statement of the Hon. Alan S. Lowenthal, Ranking Member, 
              Subcommittee on Energy and Mineral Resources
    Mr. Chairman, I have some significant concerns about the 
legislation before us today.
    I understand the sponsor's interest in trying to protect private 
oil and gas rights, and I certainly respect those rights. But I also 
respect the rights of surface landowners, who in this case are the 
American people, and we certainly shouldn't start stripping away those 
rights just to make things a little easier for oil and gas companies.
    Unfortunately, that appears to be all that this bill does.
    This issue started back in 1979, when the forest rangers at the 
Allegheny National Forest discovered that an oil company was building 
roads and drilling in the Allegheny without having provided any notice 
whatsoever. Worse, they were drilling on land that was being managed 
for hunting, fishing, and wildlife habitat.
    The Forest Service had no opportunity to make sure that forest 
resources were not damaged unnecessarily in the process of drilling. 
The Forest Service also was unable to properly market the timber that 
the oil company cut down to build the roads and well pad.
    So the Forest Service sued the company and won. The ruling required 
the oil company to provide information to the Forest Service at least 
60 days before doing any additional drilling. Those requirements became 
standard operating procedure for the Forest Service in the early 1980s, 
and were put into law by the Energy Policy Act of 1992. It is that 
language that this bill would eliminate.
    This bill is unnecessary since the courts have been very clear that 
the Forest Service deserves this advance notice. And I am concerned 
that future courts could interpret this legislation to indicate that it 
is the intent of Congress that companies don't have to provide any 
advance notice. And then those companies would be allowed to build 
roads and drill wells without telling anyone in charge of protecting 
the forest.
    This could go far beyond the Allegheny, too, since it could set a 
precedent that would apply to all private minerals underneath National 
Forests nationwide. I don't see why it's necessary to take that kind of 
risk. Particularly when recent court cases have severely limited the 
authority of the Forest Service in these situations.
    According to the courts, the Forest Service can't say no to 
companies wanting to drill on their private mineral rights. I disagree, 
but that's not the point we're discussing today. The point is, the oil 
companies won. So there's no need for legislation that supposedly 
protects their interests--the courts have done it for them. And there's 
been no indication that the 60-day notice has hindered companies very 
much if at all.
    But the courts have also been very clear that the Forest Service 
deserves this advance notice, and it deserves the right to make sure 
that our national forests are not being unduly harmed by private 
companies seeking to drill for oil and gas. Because the Forest Service 
is managing this land on behalf of the American people, and the 
American people have the right to use this land for recreation, 
hunting, fishing, bird watching, and more, and have the right to expect 
that they will be able to continue to do so with their children and 
their grandchildren.
    This bill appears to simply blindfold the Forest Service to what is 
happening on their lands, and I think that's the wrong direction to go. 
I yield back the balance of my time.

                                 ______
                                 

    Mr. Lamborn. Thank you.
    The Chair now recognizes the author of H.R. 3881, 
Representative Thompson, for a brief statement about the bill.

   STATEMENT OF THE HON. GLENN THOMPSON, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Thompson. Thank you, Chairman. Thank you to the Ranking 
Member and my colleagues. Thank you for your attendance this 
afternoon.
    The underlying issue that this Cooperative Management of 
Mineral Rights Act aims to address is central to the management 
of the Allegheny National Forest and the economy of the region. 
But also, this legislation has a profound implication to how we 
manage issues of access, nationally.
    At its fundamental core, this legislation is about private 
property rights, not about oil--private property rights and 
fair access. As we discuss this legislation and the events 
leading up to it, it is critical to keep the history of the 
region in context.
    Since coming to Congress in 2009, I have had the distinct 
privilege to represent both the Allegheny National Forest and 
Pennsylvania's oil region. Because of this area's remarkable 
history, the region was designated as a National Park Service 
Heritage Area, and is frequently referred to as--and I quote--
``The Valley That Changed the World.''
    In 1859, in Titusville, Pennsylvania, Col. Edwin Drake came 
to the area in search of petroleum, intending to corner the 
market for medicinal products. Drake discovered much more than 
a medicinal tonic. Over the following decades the oil industry 
developed, fueling manufacturing, exports, and generations of 
innovation.
    Following the first American oil boom, in 1923 the 
Allegheny National Forest was established in four counties: 
Warren, Forest, Elk, and McKean. Because of the long history of 
oil and timbering within the region, the Federal Government 
chose to only purchase the surface rights within the Allegheny. 
This was done as an agreement between the landowners, the 
municipalities, and the Federal Government, my predecessors, to 
ensure industry could continue to produce privately sourced 
commodities, while the area could simultaneously function as a 
national forest.
    And I have to say, if you have not been to the Allegheny 
National Forest, please come. You will see this works really 
well. There is not a problem, and what the Forest Service chose 
to do in cooperation with some environmental groups with a 
solution in search of a problem that the courts have deemed and 
reinforced as being inappropriate.
    To this day, 93 percent of the mineral rights in the 
Allegheny are owned by the private sector. Unfortunately, the 
national forests are commonly mistaken for national parks. One 
might believe that the Forest Service would have this 
understanding, but I feel that we should be reminded of the 
mission presented by our first chief of the Forest Service, and 
former Pennsylvania Governor, Gifford Pinchot. The mission of 
the Forest Service is one of multiple uses and active 
management. This includes timbering, conservation, research, 
energy production, watershed management, and recreation.
    In short, active management of these lands and responsible 
utilization of their resources is the core function of the 
Forest Service.
    Since 1923, the Forest Service and local interests largely 
operated harmoniously in order to meet the various needs of the 
local communities and the economy, supplementing national 
demand for resources. However, the Forest Service attempted to 
fundamentally change this long-standing relationship as they 
settled out of court to apply the National Environmental Policy 
Act, or NEPA, to the oil and gas leasing process.
    In January 2009, the Forest Service stopped issuing notices 
to proceed, effectively shutting down access to private 
property within the Allegheny. Subsequently, a Federal judge 
overturned the settlement, citing the Forest Service's lack of 
authority to further regulate privately held mineral rights 
within the Allegheny National Forest. With due respect to the 
Ranking Member, you cannot strip away something that the 
government never had.
    Further, the courts found that the Federal Government is 
required to provide ``reasonable access'' to private property.
    Mr. Chairman, the real-life consequences of the Forest 
Service's settlement produced a de facto moratorium on energy 
production in the Allegheny, affecting industry and the 
regional economy. Throughout this period, the Forest Service 
referred to an obscure provision contained in the Energy Policy 
Act of 1992, in order to justify the need for a new Federal 
regulatory process in the Allegheny National Forest.
    For 16 years, the Forest Service did not promulgate a new 
rule, because they simply were not needed. Oil and gas 
extraction had been effectively regulated by the Commonwealth 
of Pennsylvania. In light of the court's decision, which again, 
ruled squarely in favor of the mineral rights owners, the 
private property owners, the existing 1992 statute remains on 
the book.
    To address this matter, I have introduced H.R. 3881, the 
Cooperative Management of Mineral Rights Act. This legislation 
repeals the 1992 language which applies solely to the Allegheny 
National Forest. This would effectively codify the findings of 
the court, which remain consistent with more than 90 years of 
precedent. Property rights are, of course, among the founding 
principles of this great Nation. In fact, I think it is one of 
those that defines us as a Nation. And this is not a new 
concept. Case law shows us that access to private property 
cannot be unreasonably hindered, not even by the Federal 
Government.
    Today the committee will hear from a panel of individuals 
who were party to the case in question. We will hear firsthand 
how the Forest Service's actions caused harm to my 
constituents; how it utilized, foolishly, probably more than $4 
million that could have been used for healthy forest 
management, for multiple uses on the forest; and how it caused 
harm to the rural economy and communities of Northwestern 
Pennsylvania.
    It is my hope that the committee's takeaway will be how 
these actions could have similar effects upon their communities 
if Federal actions were replicated across the country.
    I look forward to the witnesses and look forward to their 
testimony. Thank you, Chairman.
    [The prepared statement of Mr. Thompson follows:]
  Prepared Statement of the Hon. Glenn Thompson, a Representative in 
                Congress from the State of Pennsylvania
    Chairman Lamborn, Ranking Member Lowenthal, and colleagues, thank 
you for your attendance this afternoon. The underlying issue this 
Cooperative Management of Mineral Rights Act aims to address is central 
to the management of the Allegheny National Forest and the economy of 
the region. But also, this legislation has a profound implication to 
how we manage issues of access nationally. At its fundamental core, 
this legislation is about private property rights and fair access.
    As we discuss this legislation and the events leading up to its 
need, it is critical to keep the history of the region in context. 
Since coming to Congress in 2009, I have had the distinct privilege to 
represent both the Allegheny National Forest and Pennsylvania's Oil 
Region. Because of this area's remarkable history, the region was 
designated as a National Park Service Heritage Area and is frequently 
referred to as ``the valley that changed the world.''
    It was 1859 when ``Colonel'' Edwin Drake came to the area in search 
of petroleum, intending to corner the market for medicinal products. In 
Titusville, Pennsylvania, Drake discovered much more than a medicinal 
tonic. Over the following decades the oil industry developed, fueling 
manufacturing, exports, and generations of innovation.
    Following the first American oil boom, in 1923 the Allegheny 
National Forest was established in four counties: Warren, Forest, Elk 
and McKean. Because of the long history of oil and timbering within the 
region, the Federal Government only purchased the surface rights within 
the Allegheny. This was done as an agreement between landowners, 
municipalities, and the Federal Government to ensure industry could 
continue to produce privately sourced commodities, while the area could 
simultaneously function as a national forest.
    To this day, 93 percent of the mineral rights in the Allegheny are 
owned by the private sector. Unfortunately, national forests are 
commonly mistaken for national parks. One might believe that the Forest 
Service would have this understanding, but I feel that we should be 
reminded of the mission presented by the first Chief of the Forest 
Service, and former Pennsylvania Governor, Gifford Pinchot. The mission 
of the Forest Service is one of multiple uses and active management. 
This includes timbering, conservation, research, energy production, 
watershed management and recreation.
    In short, active management of these lands and responsible 
utilization of their resources is the core function of the Forest 
Service.
    Since 1923, the Forest Service and local interests largely operated 
harmoniously in order meet the various needs of the local communities 
and economy, supplementing national demand for resources. However, the 
Forest Service attempted to fundamentally change this long-standing 
relationship, as they settled out of court to apply the National 
Environmental Policy Act, or NEPA, to the oil and gas leasing process.
    In January 2009, the Forest Service stopped issuing ``notices to 
proceed'', effectively shutting down access to private property within 
the Allegheny. Subsequently a Federal judge overturned the settlement, 
citing the Forest Service's lack of authority to further regulate 
privately held mineral rights within the Allegheny. Further, the courts 
found that the Federal Government is required to provide ``reasonable 
access'' to private property.
    Mr. Chairman, the real-life consequences of the Forest Service's 
settlement produced a de-facto moratorium on energy production in the 
Allegheny, affecting industry and the regional economy. Throughout this 
period, the Forest Service referred to an obscure provision contained 
in the Energy Policy Act of 1992, in order to justify the need for a 
new Federal regulatory process in the Allegheny National Forest.
    For 16 years the Forest Service did not promulgate a new rule, 
because they simply were not needed. Oil and gas extraction had been 
effectively regulated by the Commonwealth of Pennsylvania. In light of 
the court's decision, which again, ruled squarely in favor of the 
mineral right owners, the existing 1992 statue remains on the books.
    To address this matter, I introduced H.R. 3881, the Cooperative 
Management of Mineral Rights Act. This legislation repeals the 1992 
language which applies solely to the Allegheny National Forest. This 
would effectively codify the findings of the court, which remain 
consistent with more than 90 years of precedent. Property rights are, 
of course, among the founding principles of this great Nation. This is 
not a new concept; case law shows us that access to private property 
cannot be unreasonably hindered, not even by the Federal Government.
    Today, the committee will hear from a panel of individuals who were 
party to the case in question. We will hear firsthand, how the Forest 
Service's actions caused harm to my constituents, the rural economy, 
and communities of Northwestern Pennsylvania. It is my hope the 
committee will take away how these actions could have similar effects 
upon their communities, if Federal actions were replicated across the 
country.

    I welcome the witnesses and look forward to their testimony.

                                 ______
                                 

    Mr. Lamborn. Thank you. Now I will introduce our witnesses, 
and they are Mr. Mark Cline, President of the Pennsylvania 
Independent Petroleum Producers Association; Mr. Bud 
Shuffstall, National Association of Royalty Owners; Mr. Glenn 
Casamassa, Association Deputy Chief of the National Forest 
System at the U.S. Forest Service; Mr. Jim Furnish, former 
Deputy Chief of the U.S. Forest Service; and Mr. Craig Mayer, 
Secretary of the Pennsylvania Independent Oil & Gas 
Association.
    Let me remind the witnesses that under our Committee Rules 
they must limit their oral statements to 5 minutes, but their 
entire statement will appear in the hearing record.
    When you begin, the lights on the witness table will turn 
green. After 4 minutes, the yellow light will come on. Your 
time will have expired when the red light comes on, and I will 
ask you to complete your statement at that time.
    The Chair now recognizes Mr. Cline to testify.

 STATEMENT OF MARK CLINE, PRESIDENT, PENNSYLVANIA INDEPENDENT 
 PETROLEUM PRODUCERS ASSOCIATION, INC., BRADFORD, PENNSYLVANIA

    Mr. Cline. Chairman and committee members, thank you for 
the invitation to come here today and testify about H.R. 3881. 
My name is Mark Cline, and I am the President of the 
Pennsylvania Independent Petroleum Producers, and a member of 
the Pennsylvania Conventional Oil and Gas Advisory Committee.
    As you are all aware, the National Forest System was 
designed to manage the natural resources, recreation, grazing, 
wildlife, fish, and more. The Allegheny National Forest is 
unique with its vast oil and gas minerals lying beneath it and 
93 percent of those rights belonging to private citizens. There 
were wells already drilled on the property before the Forest 
Service took over.
    At the present time, there are approximately 12,000 oil and 
gas wells in the Allegheny National Forest. The industry 
figures around half of those 12,000 wells were hydraulically 
fracked. A recent study concluded that, despite the long 
history of conventional well development in the region, the 
ANF's streams, trees, and other natural resources have 
prospered. The study states, ``Despite the tens of thousands of 
conventional oil and gas wells in operation in the region, a 
full 72 percent of the 2,126 miles of mapped streams in the ANF 
are rated as high value or exceptional value for water 
quality.''
    The first Chief of the Forest Service, Gifford Pinchot, 
said, and I quote, ``National Forest land is managed to provide 
the greatest amount of good for the greatest amount of people 
in the long run.''
    Now, you are probably thinking that only oil and gas 
operators are the ones benefiting from the use of the minerals 
under the forest. That thought is completely wrong. The story 
from Northwestern Pennsylvania is our Penn Grade Crude Oil, 
which, by the way, is the best lubricating oil in the world, 
played a huge part in both World Wars.
    It was used exclusively in the engines that ran the trucks 
and equipment in the first war. The second war, it played a 
much bigger part as airplanes became so important. They say if 
you would ask an Army/Air Force mechanic from World War II, he 
would tell you they only used oil from Pennsylvania. It helped 
the planes fly more missions without having engine problems. It 
was used by the Army in their trucks and tanks which supported 
the soldiers. The same can be said about the Korea and Vietnam 
Wars. Fifteen to twenty percent of that oil came directly from 
the Allegheny National Forest. I think Gifford Pinchot would 
say that the oil was used for the greatest amount of good for 
the greatest amount of people.
    People still benefit every day from the oil and gas. 
Natural gas is used for heating homes, buildings, hospitals, 
and schools. It is used to generate electricity. It fuels 
vehicles, heats water, bakes food, powers industrial furnaces, 
and even powers air conditioners. Our paraffin-based crude oil 
is turned into over 6,000 different products. Without crude 
oil, this country would come to a complete standstill. From the 
time you wake up in the morning from the sound of your alarm 
clock, take a shower, eat breakfast, and get into your car, you 
have already used over 40 products made from crude oil. So 
don't you ever think or let someone tell you that we are the 
only ones benefiting from the minerals under the ANF.
    The industry has spent vast amounts of money defending our 
rights to produce in the ANF. These rights were given to us 
years ago and have been upheld by the courts. This bill would 
protect those rights. Please vote to approve this bill.
    Thank you for your time and the opportunity to be here 
today.
    [The prepared statement of Mr. Cline follows:]
     Prepared Statement of Mark L. Cline, President, Pennsylvania 
     Independent Petroleum Producers Association, Inc., Bradford, 
                              Pennsylvania
    Chairman and committee members, thank you for the invitation to 
come here today and testify about H.R. 3881. As you are all aware, the 
National Forest system was designed to manage the natural resources, 
recreation, grazing wildlife, fish and more.
    The Allegheny National Forest is unique with its vast oil and gas 
minerals lying beneath it and 93 percent of those rights belonging to 
private citizens. There were wells already drilled on the property 
before the Forest Service took over. At the present time there are 
approximately 12,000 oil and gas wells in the Allegheny National 
Forest. The Industry figures around half of those 12,000 wells were 
Hydraulically Fracked. A recent study concluded that despite the long 
history of conventional well development in the region, the ANF's 
streams, trees and other natural resources have prospered. The study 
states despite the tens of thousands of conventional oil and gas wells 
in operation in the region, a full 72 percent of the 2,126 miles of 
mapped streams in the ANF were rated as high value or exceptional value 
for water quality.
    The first Chief of the Forest Service, Gifford Pinchot said and I 
quote ``National Forest Land is managed to provide the greatest amount 
of good for the greatest amount of people in the long run.'' Now you 
are probably thinking that only the oil and gas operators are the ones 
benefiting from the use of the minerals under the Forest. That thought 
is completely wrong. The story from Northwestern Pennsylvania is our 
Penn Grade Crude oil, which by the way is the best lubricating oil in 
the world, played a huge part in both World Wars. It was used 
exclusively in the engines that ran the trucks and equipment in the 
first war. The second war it played a much bigger part as airplanes 
became so important. They say if you would ask an Army Air Force 
mechanic from World War II, he would tell you they only used oil from 
Pennsylvania. It helped the planes fly more mission without having 
engine problems. It was used by the Army in their trucks and tanks 
which supported the soldiers. The same can be said about the Korea and 
the Vietnam Wars, 15 to 20 percent of that oil came from the Allegheny 
National Forest. I think Gifford Pinchot would say ``that the oil was 
used for the greatest amount of good for the greatest amount of 
people.''
    People still benefit every day from the oil and gas. Natural gas is 
used for heating homes, buildings, hospitals and schools. It is used to 
generate electricity, it fuels vehicles, heats water, bakes food, 
powers industrial furnaces, and even powers air conditioners.
    Our paraffin based crude oil is turned into over 6,000 different 
products. Without crude oil this country would come to a complete 
standstill. From the time you wake up in the morning from the sound of 
your alarm clock, take a shower, eat breakfast and get into your car 
you have already used over 40 products made from crude oil. So don't 
you ever think or let someone tell you we are the only ones benefiting 
from the minerals under the ANF.
    The Industry has spent vast amounts of money defending our rights 
to produce in the ANF. These rights were given to us years ago and have 
been upheld by the Courts. This Bill will protect those rights. Please 
vote to approve this Bill.

    Thank you for your time and the opportunity to be here today.

                                 ______
                                 

    Mr. Lamborn. Thank you.
    The Chair now recognizes Mr. Shuffstall to testify.

 STATEMENT OF DEARALD ``BUD'' SHUFFSTALL, NATIONAL ASSOCIATION 
           OF ROYALTY OWNERS, MEADVILLE, PENNSYLVANIA

    Mr. Shuffstall. Chairman Lamborn, Ranking Member Lowenthal, 
members of the committee, it is an honor to speak with you 
today regarding this important issue. Thank you for the 
invitation. I am Bud Shuffstall. I am from Meadville, 
Pennsylvania. I work for Northwest Bank, which is headquartered 
in Warren, Pennsylvania, which also happens to be the 
headquarters of the Allegheny National Forest.
    Like many of our customers and bank staff, personally I am 
a regular visitor to the ANF, and we value and appreciate it 
deeply. But I am here today as a member of NARO, the National 
Association of Royalty Owners.
    NARO has members in all 50 states and educates and 
advocates for the rights of an estimated 8.5 to 12 million 
citizens who receive royalty income from the production of 
their private property, specifically from production of their 
oil, natural gas, and minerals. The average NARO member is 60 
years old, a widow, and makes less than $500 per month in 
royalty income.
    We are very pleased to address the committee on the issue 
of development of private or severed oil, gas, and mineral 
interests underlying the national forests, as the protection of 
these private property rights in all 50 states is paramount to 
millions of private mineral owners.
    Of all the wells ever drilled in the world, the vast 
majority have been drilled in the United States. Why? Because 
we are a Nation that values the private ownership of oil, gas, 
and minerals. We value and encourage risk in the pursuit of 
profit. The United States is the only former British colony 
that, upon achieving independence, awarded the ownership of the 
minerals to private citizens instead of to the state. This 
uniquely American model was actually suggested by Thomas 
Jefferson. His concept has helped make us a strong Nation and 
today is enabling America's rise to become the world's dominant 
energy producer.
    As noted previously, the ANF does lie in the heart of 
Pennsylvania's oil and gas region. Its headquarters is roughly 
40 miles from the site of Drake's well in Titusville, 
Pennsylvania. Some of the earliest severances of these property 
rights, the oil and gas interests underlying the earth, 
occurred under land that was to become the Allegheny National 
Forest, or very near to it.
    As previously noted, the ANF was created pursuant to the 
Weeks Act of 1911. In 1923, the Federal Government purchased 
only the surface estate, even though the Weeks Act authorized 
the acquisition of subsurface rights, including mineral rights. 
The Federal Government chose not to acquire those rights, as 
they were at the time too valuable and presumably cost-
prohibitive to acquire. In doing so, the Federal Government 
took title to the surface only, and subject to the rights of 
all prior exceptions and reservations of subsurface oil and gas 
rights.
    In many cases, those oil and gas rights underlying the ANF 
had long been severed before the creation of the ANF. It is a 
well established point of law in all jurisdictions of the 
United States, including Pennsylvania, that the private 
property rights of the subsurface estate are dominant over the 
rights of the surface estate. The law's recognition of the 
subsurface interest as dominant has been found to be essential, 
lest it be subrogated to any other property rights, thereby 
risking its devaluation.
    Absent a taking by the government of those subsurface 
property rights, this legal principle precludes the Federal 
Government, as surface estate owner of the ANF, from 
interfering with the development of private subsurface rights.
    Subject to state and Federal law, of course, the subsurface 
rights owners have the legal authority, therefore, to develop 
their private oil and gas reserves. It is this group that NARO 
represents. NARO members have a dominant legal authority to 
access and develop their private subsurface interests. The 
Forest Service may not unreasonably restrict access to that 
estate in a way that makes the development thereof uneconomic 
or unprofitable.
    The government must be held to a reasonable set of 
regulatory management controls that does not unduly burden 
those private oil, gas, or mineral owners. For example, an 
excessive fee structure for access onto, or across, Federal 
lands will negatively affect the value of the subsurface estate 
and the economic viability of that estate.
    Finally, the third tenet that should be addressed here is 
that the government may not unreasonably restrict oil and gas 
development to the point of requiring a ``no net impact'' from 
an environmental standpoint as it seeks to mitigate surface 
impacts. The government may not improperly elevate 
environmental concerns over other appropriate considerations, 
or seek to create a set of regulations that restricts or 
eliminates all environmental impacts on the subject lands.
    Any environmental analysis must also include the economic 
impacts to the orderly development of oil and gas within the 
forest. This includes a socioeconomic analysis that details the 
negative impacts any restrictions will have on state and 
private subsurface development and the impacts to local and 
state economies and taxes.
    In conclusion, we wish to emphasize that the government 
must recognize the rights of the subsurface interests and their 
dominance of those rights over the surface interests.
    Thank you for your time.
    [The prepared statement of Mr. Shuffstall follows:]
   Prepared Statement of Dearald ``Bud'' W. Shuffstall, II, National 
         Association of Royalty Owners, Meadville, Pennsylvania
    Chairman Lamborn, Ranking Member Lowenthal, members of the 
committee, it's an honor to speak with you today regarding this 
important issue. Thank you for the invitation.
    I am Bud Shuffstall from Meadville, Pennsylvania. I work for 
Northwest Bank, headquartered in the same city as the Allegheny 
National Forest's headquarters (Warren, PA). Like many of our customers 
and bank staff, I am a regular visitor to the Allegheny National Forest 
and value and appreciate it deeply.
    I speak today as a member of the National Association of Royalty 
Owners (NARO). NARO has members in all 50 states and educates and 
advocates for the rights of an estimated 8.5 to 12 million citizens who 
receive royalty income from the production of their private property--
specifically from production of their oil, natural gas and minerals.
    The average NARO member is 60 years old, a widow and makes less 
than $500 per month in royalty income. About 70 percent of the mineral 
estate in the lower 48 states is owned by individual citizens. In 2012, 
Montana State University conducted a study that estimated roughly 77 
percent of oil and 81 percent of natural gas produced onshore was 
produced on private property. NARO is pleased to address this committee 
on the issue of development of private (severed) oil, gas and mineral 
interests that underlie the Allegheny National Forest, as the 
protection of our private property rights in all 50 states is paramount 
to millions of private mineral owners.
    Of all the wells ever drilled around the world, the vast majority 
have been drilled in the United States--a Nation that values private 
ownership of oil, gas and minerals and that also encourages both risk 
and the pursuit of profit. The United States is the only former colony 
that, upon achieving independence, awarded the ownership of minerals to 
private citizens instead of to the state. This uniquely American model 
was suggested by Thomas Jefferson. His concept has helped make us a 
strong Nation and it today is enabling America's rise to become the 
world's dominant energy producer.
    The Allegheny National Forest lies in the heart of Pennsylvania's 
oil and gas region. It is only 40 miles (64 km) from the site of the 
first commercial oil well in the United States at Titusville, 
Pennsylvania. Indeed, some of the earliest severances of subsurface oil 
and gas rights occurred in the late 1850s and early 1860s near or upon 
land that would eventually become part of the Allegheny National 
Forest.
    The Allegheny National Forest was created pursuant to the 
provisions of the Weeks Act of 1911. In 1923 the Federal Government 
purchased only the surface estate in what was to become the Allegheny 
National Forest (the subsurface rights being too valuable and cost 
prohibitive to acquire at the time). In doing so the Federal Government 
took title to the surface only, and subject to the rights of all prior 
exceptions and reservations of subsurface oil and gas rights. In many 
cases the oil and gas rights underlying the property had been long 
severed from the surface before the creation of the Allegheny National 
Forest.
    It is a well-established point of law in all jurisdictions of the 
United States, including Pennsylvania, that the rights of the 
subsurface estate are dominant over the rights of the surface estate. 
The law's recognition of the subsurface estate as dominant has been 
found to be essential, lest it be subrogated to any other property 
rights thereby risking its devaluation. Absent a taking by the 
government of subsurface property rights, this legal principle 
precludes the Federal Government as surface estate owner of the 
Allegheny National Forest from interfering with the development of 
those subsurface property rights still owned by others.
    Existing Forest Service regulations recognize this fact and 
maintain that Service operations should not be ``applied so as to 
contravene or nullify rights vested in holders of mineral interests on 
refuge lands.'' 50 C.F.R. Sec. 29.32. The Service's manual states that 
it must ``[p]rovide for the exercise of non-Federal oil and gas rights 
while protecting [USFWS] resources to the maximum extent possible.'' 
612 FWS Manual 2.4.B.
    Subject to state and Federal law, the subsurface rights owners have 
the legal authority to develop oil and gas reserves. It is this group 
of people that NARO represents. Just as the Forest Service has the 
authority to manage the public surface estate, NARO members have a 
dominant legal authority to access and develop their private subsurface 
estate. Also, the Forest Service may not unreasonably restrict access 
to the subsurface estate in a way that makes the development thereof 
uneconomic or unprofitable.
    Courts have held that Federal agencies cannot impose stipulations 
or conditions of approval (COAs) that violate this tenet. See Utah v. 
Andrus, 486 F. Supp. 995, 1011 (D. Utah 1979); see also Conner v. 
Burford, 848 F.2d 1441, 1449-50 (9th Cir. 1988). Concurrent with 
courts' decisions discussing the dominance of the subsurface estate is 
a requirement that a holder of oil, gas or mineral rights adhere to the 
accommodation doctrine, which provides that a mineral owner or lessee 
may ``use as much of the surface as reasonably necessary to extract and 
produce the minerals'' as long as that use is reasonable. Merriman v. 
XTO Energy, Inc., 407 S.W.3d 244, 248-49 (Tex. 2013).
    Therefore, the government must be held to a reasonable set of 
regulatory management controls that does not unduly burden private oil, 
gas or mineral owners. For example, an excessive fee structure for 
access onto, or across, federally owned lands will negatively affect 
the value of the subsurface estate and the economic viability of 
development of that estate. The government must not develop regulatory 
management tools and fees that provide a regulatory avenue to develop 
in theory but which creates an economic firewall to development in 
reality.
    It is important to note that expenses incurred in the development 
of oil, gas and minerals come in many forms. A monetary fee charged by 
the surface estate owner would be another such expense. All of the 
other costs incurred by the oil and gas developer as a result of 
requirements by the surface estate owner also should be taken into 
consideration when calculating a fair and reasonable fee structure. 
These other costs could include the cost and time of preparation of 
Environmental Impact Statements and reports unique to the Federal 
surface estate, rights-of-way fees for pipelines and roads, and lease 
maintenance and operational drilling and service costs associated with 
lengthy application processes.
    The third basic tenet which NARO feel should be considered in this 
process is that the government may not unreasonably restrict oil and 
gas development to the point of requiring a ``no net impact'' on the 
environment as it seeks to mitigate surface impacts.
    The National Environmental Policy Act (NEPA) ``does not require 
agencies to elevate environmental concerns over other appropriate 
considerations.'' Citizens' Comm. to Save Our Canyons v. U.S. Forest 
Serv., 297 F.3d 1012, 1022 (10th Cir. 2002). Instead, NEPA is a 
procedural statute and does not mandate particular results. Robertson 
v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). As 
explained by the Interior Board of Land Appeals (IBLA), ``NEPA does not 
bar actions which affect the environment, even adversely. Rather, the 
process assures that decisionmakers are fully apprised of likely 
effects of alternative courses of action so that selection of an action 
represents a fully informed decision.'' Biodiversity Conservation 
Alliance, 174 IBLA 1, 13-14 (2008) (citing the Vermont Yankee U.S. 
Supreme Court case).
    As the IBLA observed in Oregon Natural Resources Council, NEPA does 
not direct that Federal agencies prohibit action even where 
environmental degradation is inevitable. 116 IBLA 355, 361 n.6 (1980). 
NEPA only mandates a full consideration of the environmental impact of 
a proposed action before undertaking it. Nat'l Wildlife Federation, 169 
IBLA 146, 164 (2006).
    The government may not improperly elevate environmental concerns 
over other appropriate considerations or seek to create a set of 
regulations that restricts all environmental impacts on the subject 
lands. Any environmental NEPA analysis must also include the economic 
impacts to the orderly development of oil and gas within the forest. 
This includes a socioeconomic analysis that details the negative 
impacts any restrictions will have on state and private subsurface 
development and the impacts to local and state economies and taxes.

    In conclusion, NARO wishes to emphasize that the government must:

     recognize the rights of the subsurface estates, and that 
            such rights are dominant over the rights of the surface 
            estate;

     allow economic and profitable access to, and development 
            of, the subsurface estate;

     balance environmental concerns with the economic 
            development of oil, gas and minerals; and

     avoid the costly taking that inevitably results from 
            activists utilizing the agencies of the Federal Government 
            to prevent or deny the development of our private mineral 
            property without the ``just compensation'' that the U.S. 
            Constitution guarantees.

    Thank you for the opportunity to present the collective views of 
millions of private property oil, gas and mineral owners. If we may 
provide any additional information or be of service or assistance to 
the committee please let us know.

                                 ______
                                 

    Mr. Lamborn. Thank you.
    The Chair now recognizes Mr. Casamassa to testify.

    STATEMENT OF GLENN CASAMASSA, ASSOCIATION DEPUTY CHIEF, 
NATIONAL FOREST SYSTEM, U.S. FOREST SERVICE, U.S. DEPARTMENT OF 
                  AGRICULTURE, WASHINGTON, DC

    Mr. Casamassa. Mr. Chairman, Ranking Member Lowenthal, and 
members of the subcommittee, thank you for the opportunity to 
present the views of the U.S. Department of Agriculture 
regarding H.R. 3881, the Cooperative Management of Mineral 
Rights Act of 2015.
    H.R. 3881 would repeal subsection (o) of section 17 of the 
Mineral Leasing Act, and Section 2508 of the Energy Policy Act 
of 1992. These provisions apply only to Federal lands within 
the Allegheny National Forest, for which the United States does 
not own the subsurface rights to oil and gas. These provisions 
provide general terms and conditions that must be followed 
before commencing surface-disturbing activities to develop oil 
and gas deposits.
    The USDA believes the terms and conditions of the Mineral 
Leasing Act and the Energy Policy Act allow national forests to 
prudently manage surface resources, while ensuring the 
subsurface owners do not have unreasonable requirements to 
access their privately held mineral rights. We would like to 
continue to work with the sponsor to address issues of concern. 
However, we cannot support H.R. 3881.
    This concludes my remarks. I would be happy to answer any 
questions. Thank you for the opportunity to testify.
    [The prepared statement of Mr. Casamassa follows:]
Prepared Statement of Glenn Casamassa, Associate Deputy Chief, National 
   Forest System, U.S. Forest Service, U.S. Department of Agriculture
    Mr. Chairman and members of the subcommittee, thank you for the 
opportunity to present the views of the U.S. Department of Agriculture 
(USDA) regarding H.R. 3881, the Cooperative Management of Mineral 
Rights Act of 2015.
    H.R. 3881 would repeal subsection (o) of section 17 of the Mineral 
Leasing Act (30 U.S.C. 226) and section 2508 of the Energy Policy Act 
of 1992 (P.L. 102-486; 106 Stat. 3108). These provisions apply only to 
Federal lands within the Allegheny National Forest for which the United 
States does not own the subsurface rights to oil and gas. These 
provisions provide general terms and conditions that must be followed 
before commencing surface-disturbing activities to develop oil and gas 
deposits.
    The USDA believes the terms and conditions in the Mineral Leasing 
Act and in the Energy Policy Act allow national forests to prudently 
manage surface resources, while ensuring that subsurface owners do not 
have unreasonable requirements to access their privately held mineral 
rights. We would like to continue to work with the sponsor to address 
issues of concern, however we cannot support H.R. 3881.

    This concludes my remarks. I would be happy to answer any 
questions. Thank you for the opportunity to testify.

                                 ______
                                 

    Mr. Lamborn. Thank you.
    The Chair now recognizes Mr. Furnish to testify.

  STATEMENT OF JIM FURNISH, FORMER DEPUTY CHIEF, U.S. FOREST 
                    SERVICE, WASHINGTON, DC

    Mr. Furnish. Good afternoon. I would like to just summarize 
where I am coming from on this. My view on this bill is that, 
although it is well intentioned, I view it as a misapplied fix.
    I would note that the spark that ignited much of what is in 
contention here today was in 2007 during the George W. Bush 
administration lapsed over into the Obama administration, and 
was ultimately settled by the courts, which is their job.
    To me, there is irony in the title of this bill, 
``Cooperative Management of Mineral Rights,'' when 
``cooperate'' is defined as to work or act together, which is 
precisely what the energy industry and the Forest Service have 
been doing for decades. The past cooperation, which was a 
result of both litigation and enacted statute, provides 60 days 
notice to the land holder by the proponent in exercising their 
private mineral rights. And this process has served the public 
interest well by both allowing industry access to their private 
estate energy resources laying beneath public lands, while 
providing the Forest Service a brief but reasonable amount of 
time to discharge its stewardship responsibilities on behalf of 
the public.
    You, no doubt, are aware that I firmly believe the 60-day 
notice requirement should remain in place. I am well aware that 
a few years ago the Forest Service did place a ban--excuse me, 
a hold, not a ban, it was a hold on processing drilling 
proposals in the belief, based on their legal counsel, that 
NEPA necessitated review and analysis. This went through the 
courts and the courts found otherwise. The Forest Service has 
been behaving in compliance with that outcome since.
    I would also like to note that it is necessary to work 
through occasional obstacles where important values and 
interests are at stake on both sides. I think the emergence of 
the fracking industry--and it was noted that about half the 
wells on the Allegheny have been subjected to fracking, much 
was unknown during the early part of the 21st century, much 
more is known now.
    But in light of the questions surrounding this technology, 
the vast amounts of fluids used in drilling, as well as 
discharge from drilling, the important considerations of world-
renowned black cherry resource, road access, water quality, 
recreation pursuits, all these things, there was a balancing of 
interest that the Forest Service was seeking to provide in the 
belief that they needed to approve of these, that this was ``a 
Federal action.'' The courts found that this was not a Federal 
action, it was a private action. So the Forest Service has 
waived the imposition of NEPA.
    Now they are actively cooperating within the 60 days to 
provide notices to proceed. Industry is, likewise, exercising 
their right to drill in a cooperative relationship with the 
landowner. I think this comes down to this question that I pose 
to you legislators: If drilling activities like cutting trees, 
disposing of well affluents, and building access roads and 
drill pads were occurring on private lands with no notice to 
the owners, do you think these private citizens might be upset? 
Might they come to you for help?
    In your role as an elected official, would you demand that 
industry had no responsibility to provide notice, no 
responsibility to minimize drilling consequences, and no 
responsibility to address landowner concerns as to disposing of 
affluents, trees, road locations, drill pads, sites, all these 
kinds of things?
    Public land, though managed by the Forest Service, is 
really no different, because it belongs to private citizens, 
including you, who have every reason to demand that the Forest 
Service do its very best to care for this land as a public 
trust. You now have in place a law that fosters effective 
cooperation so that industry and private citizens alike get a 
fair shake.
    For the life of me, I cannot understand why you wish to 
rescind that law and short-change the interests of your citizen 
constituents. Thank you.
    [The prepared statement of Mr. Furnish follows:]
   Prepared Statement of James R. Furnish, Deputy Chief, USDA Forest 
                             Service (Ret.)
    My name is Jim Furnish, and I am a consulting forester residing in 
Rockville, MD. I retired in 2002 from my position as Deputy Chief for 
National Forest Systems, USDA.
    I appear today to offer my views on H.R. 3881, which intends to 
rescind statutory provisions of P.L. 102-468 (Oct. 24, 1992) that 
require companies proposing drilling operations on Allegheny National 
Forest to give 60-day advance notice to the Forest Service, including 
such information as the specific location and dimensions of their 
proposed activity.
    There is irony in the title of H.R. 3881--``Cooperative Management 
of Mineral Rights''--when cooperate is defined as ``to work or act 
together''; which is precisely what the energy industry and Forest 
Service have been doing for decades. The past cooperation--resulting 
from litigation and enacted statute to provide 60 days notice--has 
served the public interest well by allowing industry access to their 
private estate energy resources laying beneath public lands, while 
providing the Forest Service a brief but reasonable amount of time to 
discharge its stewardship responsibilities for public resources.
    I firmly believe the 60-day notice requirement should remain in 
place. I am aware that a few years ago the FS placed a hold on 
processing drilling proposals in the belief that NEPA necessitated 
review and analysis. Courts found otherwise. It was also extremely 
difficult to process timely the hundreds of proposals during the energy 
activity boom a few years ago. But NEPA was found not to apply to these 
industrial actions, and the pace of development has once again slowed. 
It is necessary to work through occasional obstacles where important 
values and interests are at stake on both sides.
    The FS is now actively cooperating within the 60 days provided to 
issue Notices to Proceed. Industry is exercising their right to drill 
in a cooperative relationship with the landowner.
    I pose this question to you legislators: if drilling activities 
like cutting trees, building access roads and drill pads were occurring 
on private lands with no notice to the owners, do you think these 
private citizens might be upset? Might they come to you for help? In 
your role as an elected official, would you demand that industry had no 
responsibility to provide notice, had no responsibility to minimize 
drilling consequences, and had no responsibility to address landowner 
concerns as to disposing of trees or road locations?
    Public land, though managed by the FS, is really no different--
because it belongs to private citizens, including you, who have every 
reason to demand that the FS do its best to care for the land. You now 
have in place a law that fosters effective cooperation so that industry 
and private citizens alike get a fair shake. For the life of me, I 
cannot understand why you wish to rescind that law and shortchange the 
interests of your citizen constituents.

                                 ______
                                 

    Mr. Lamborn. All right.
    The Chair now recognizes Mr. Mayer to testify.

 STATEMENT OF CRAIG MAYER, SECRETARY, PENNSYLVANIA INDEPENDENT 
          OIL & GAS ASSOCIATION, WARREN, PENNSYLVANIA

    Mr. Mayer. Thank you very much, Chairman Lamborn, 
Representative Thompson, and members of the committee. Thank 
you for inviting me to testify today. My testimony is being 
presented on behalf of the Pennsylvania Independent Oil and Gas 
Association of Pennsylvania.
    Under the Weeks Act of 1911, sovereign states had first to 
consent to, by way of statutes, the acquisition of any lands 
whatsoever before any lands could be acquired for the purposes 
of national forest growing. Under Section 9 of the Weeks Act, 
before the United States could even purchase any surface lands 
that had been severed from oil and gas estates before the time 
the United States purchased itself, these are known as 
outstanding estates, it had to be found or certified that such 
estates, from their very nature, would in no manner interfere 
with the use of the land for the purposes of the Act. For 
reserved estates, those reserved at the time of the purchase 
from the seller himself or herself, the rules that were 
incorporated had to be expressed in and made a part of the 
deeds in order to be applied or effective.
    Before proceeding further with my testimony, I did want to 
point out one point, which I think is important and helpful for 
the committee to know. One of the final acts in the events that 
would unfold in the 8 years of litigation and conflict between 
Northwest Pennsylvania's oil and gas producers and the Forest 
Service--pointedly, it was the Department of Justice in April 
2014 awarding the Pennsylvania Independent Oil and Gas 
Association a half-a-million dollars, $530,000 exactly, in its 
legal fees and expenses in the Central Minard Run case, 
pursuant to a claim filed by the Equal Access to Justice Act. 
The Act authorizes the recovery of legal fees for an aggrieved 
party when the government is unable to show that its position 
in the litigation was substantially justified.
    Beginning in 2006, the Forest Service departed from its 
decades-long cooperative relationship with private mineral 
owners and set upon a course of action designed to effectively 
seize control of the 483,000 acres of private mineral estates 
underlying the ANF. They went from a posture of cooperation--I 
was there--to a posture of coercion.
    Included in its efforts was a 2009 sweetheart settlement 
agreement with environmental activists that was set aside by 
the Federal courts, the establishment--and I am not making this 
up--of an oil and gas strike team by the regional forester, and 
various administrative actions and rulemakings crafted to 
essentially strangle oil and gas development activity on the 
private estates in the ANF. Most of these initiatives were 
ultimately abandoned or suspended, as a result of PIOGA 
engaging with the Forest Service on these matters, as well as 
other parties. And in due course, fortunately, the Federal 
courts intervened to prevent the Forest Service from realizing 
its aims.
    Getting to the precise questions today, I think that it is 
very important to the law in question that the language in 30 
U.S.C. 226(o) about not construing what is there having 
anything to do with an effect on state authority is important. 
The language defers to state authority and sovereignty, just as 
the language in Section 9 of the Weeks Act does, and just as a 
requirement in the Weeks Act itself, that the sovereign states 
must consent to any acquisitions before they could occur at 
all.
    In this regard, in 2008, the Pennsylvania General Assembly 
unanimously adopted resolutions reconfirming that the 
acquisition of the ANF under the Weeks Act did not and does not 
confer power on the United States to manage or regulate mineral 
estates that were in existence but were never purchased or 
condemned by the United States at the time of the acquisition. 
And the General Assembly also resolved that the imposition of 
any rules that would purport to manage or regulate reserved or 
outstanding estates, unless expressed in the deeds, would 
exceed the consent of the Commonwealth.
    This principle of not recognizing or consenting to Federal 
jurisdiction over property rights that the Federal Government 
never acquired when it purchased the ANF was carried forward by 
the PA legislature 4 years later when it passed Act 13 of 2013, 
which is a comprehensive overhaul of the oil and gas 
regulations that is now in effect that covers every aspect of 
oil and gas development on the ANF and elsewhere in 
Pennsylvania. That provision reaffirmed that it was 
Pennsylvania laws and statutes that would apply to the reserved 
and outstanding estates in the ANF, and only those statutes.
    Also in the Minard Run four decisions--there were five 
decisions in the history of that name in cases--Judge 
McLaughlin dismissed on the merits the argument that the Forest 
Service possessed broad regulatory authority as a result of 
Pennsylvania's 1911 consent statute, which authorized the 
acquisition to begin with. In so doing, he noted that the 
Pennsylvania Act contains no language authorizing the Federal 
Government to pass regulatory laws concerning unacquired 
mineral estates.
    In closing, the Federal court rulings in the Minard Run 
line of cases, as well as action by the Pennsylvania 
legislature, have really resulted in subsection (o) becoming 
moot and superfluous. There is some confusion here with respect 
to what is, in fact, in effect as the law. There is no question 
that notice is absolutely required, has been required, and is 
continually given by any oil and gas producer since the 1980 
decision in what was called Minard Run I. The repeal of this 
statute would in no fashion diminish the requirement for 
notice.
    Mr. Lamborn. Mr. Mayer, we are going to have to ask you to 
finish.
    Mr. Mayer. Thank you.
    [The prepared statement of Mr. Mayer follows:]
  Prepared Statement of Craig L. Mayer, Esq., Secretary, Pennsylvania 
        Independent Oil & Gas Association, Warren, Pennsylvania
    Since 2008 I have served as Secretary of the Pennsylvania 
Independent Oil & Gas Association (``PIOGA'') and Chairman of PIOGA's 
Allegheny National Forest (ANF) Committee. PIOGA is a nonprofit trade 
association headquartered in Wexford, Pennsylvania just north of 
Pittsburgh. It is comprised of over 700 members, including oil and 
natural gas producers engaged in development and production from both 
conventional and unconventional formations in Pennsylvania, as well as 
drilling contractors, service companies, manufacturers, distributors, 
professional firms and consultants, pipelines, end users and royalty 
owners with interests in the success of Pennsylvania's oil and natural 
gas industry. Many of our members own subsurface acreage and are 
involved in exploration and production activities on private oil and 
gas estates within the Allegheny National Forest. I am offering 
testimony today in support of H.R. 3881 on behalf of our association.
    By way of background, from 2004 until 2014, I was a Vice-President 
and General Counsel for Pennsylvania General Energy Company L.L.C. 
(``PGE''), which is headquartered in Warren, Pennsylvania. Since 2014, 
in a part-time capacity, I have been PGE's Vice-President for 
Government Relations. I am a retired U.S. Marine Corps officer having 
served on active duty from 1968 to 1992. I obtained a Juris Doctor 
degree from Duquesne University Law School in 1974 and am a 1968 
graduate of the Pennsylvania State University.
    The ANF encompasses approximately 513,000 acres which cover major 
parts of four counties in Northwestern Pennsylvania, i.e., Elk, Forest, 
Warren, and McKean Counties. Notably, 93 percent of the ANF lands or 
about 483,000 acres are underlain by private severed oil and gas 
mineral estates. When the ANF surface lands were acquired by the 
Federal Government in the 1920s and 1930s, the Forest Service purposely 
did not acquire the private oil and gas estates. In fact, under Section 
9 of the 1911 Weeks Act, 16 U.S.C. Sec. 518, before the United States 
could even purchase surface lands that had been severed from oil and 
gas estates before the time of the United States purchase, both the 
Secretary of Agriculture and the National Forest Reservation Commission 
had to find that such estates ``from their nature'' would ``in no 
manner interfere'' with the use of the land for the purposes of the 
Act. The Forest Service viewed oil and gas production as not in 
conflict with forestry management purposes, and that view continued 
until 2006.
    The ANF region is the birthplace of the oil and gas industry in 
Pennsylvania, the United States, and the world. The first oil well in 
the world, the Drake Well, was drilled in 1859, about 15 miles from the 
current southwestern ANF boundary. Oil and gas production has occurred 
in this region for well over a century, including on the ANF lands. It 
is a vital part of the culture of the communities in the region and our 
economic base. For example, PIOGA estimates that annually 25 to 35 
percent of the oil produced in Pennsylvania comes from estates within 
the ANF. There are approximately 60 producers and, at least, an equal 
number of direct supporting businesses who rely on natural resource 
development within the ANF. Only a handful of the producers are large 
companies with the vast majority being composed of individuals, 
families, and small companies. Traditionally, the U.S. Forest Service 
respected multiple use of the ANF and cooperated with oil and gas 
producers. This all changed beginning in 2006 and particularly so in 
early 2009.
    Beginning in 2006 the U.S. Forest Service departed from its 
decades-long cooperative relationship with private mineral owners and 
set upon a course of action designed to effectively seize control of 
the 483,000 acres of private mineral estates that they owned. Included 
in its various efforts was a 2009 ``sweetheart'' settlement agreement 
with environmental activists that was set-aside by the Federal courts 
as well as various administrative actions and rulemakings crafted to 
strangle oil and gas development activity on private estates underlying 
the ANF and other national forest lands. PIOGA engaged the Forest 
Service on these and other fronts. In due course the Federal Courts 
intervened to stop the Forest Service from realizing its aims.
    The story of Northwest Pennsylvania's oil and gas industry 9-year 
engagement with the Forest Service is told in the attached 77 page 
article that was presented at the Proceedings of the Thirty Sixth 
Annual Energy and Mineral Law Institute of the Energy and Mineral Law 
Foundation in June 2015. It chronicles key events and provides, in my 
considered opinion, more than ample reason for supporting and adopting 
H.R. 3881. Federal court rulings in the Minard Run line of cases as 
well as actions by the Pennsylvania legislature which result in a 
barring of any Federal regulation by way of subsection (o) are 
discussed in the attached article at pages 271 and 272. In short, these 
actions have rendered subsection (o) of section 17 of the Mineral 
Leasing Act (30 U.S.C. 226) moot and superfluous. Moreover, its 
prescribed terms are already implemented by way of the Minard Run 
judicial decisions and the common law.
    On behalf of PIOGA I thank the members of the committee here today 
for your interest and help on these issues which are of vital 
importance to Northwestern Pennsylvania, and many other regions of our 
Nation.

                                 *****

The following document was submitted as a supplement to Mr. Mayer's 
testimony. This document is part of the hearing record and is being 
retained in the Committee's official files:

    --  A Study in the Abuse of Power: The United States Forest 
            Service's Illegal Efforts to Seize Control of Mineral 
            Estates Underlying the Allegheny National Forest, 36 Energy 
            & Min. L. Inst. 244 (2015)

                                 ______
                                 

    Mr. Lamborn. All right, thank you. We will go on with our 
questions now.
    I thank the panel for their testimony, I thank you all for 
being here. Reminding the Members that Committee Rule 3(d) 
imposes a 5-minute limit on questions, the Chair will now 
recognize Members for any questions they may wish to ask the 
witnesses. I will begin with myself, then the Ranking Member, 
and so on.
    This first question will be for Mr. Mayer and Mr. Cline. 
Our Nation's shale gas revolution changed the world while 
lowering prices here at home.
    [Chart]
    Mr. Lamborn. As you can see on the chart on the screen, it 
has allowed American families, manufacturers, and other 
businesses to enjoy low energy prices and to flourish. A report 
issued by the Congressional Budget Office in December 2014 
pointed out that if shale gas did not exist, the price of 
natural gas would be about 70 percent higher than currently 
projected by 2040, and that shale gas development has boosted 
our gross domestic product--that increase has been so large 
that if it came from a separate country, it would now be the 
world's third-largest natural gas supplier.
    However, there are some even here in Congress who would 
campaign, and who are campaigning for President, who want to 
stop this production dead in its tracks. What if they did stop 
this production, and what would have happened to the shale gas 
revolution if the policies that we are talking about on the 
part of the Forest Service had been used by other agencies 
around the country before the shale gas revolution even took 
place?
    Once again, Mr. Mayer or Mr. Cline?
    Mr. Mayer. Let me just respond by saying that this 
provision did not figure centrally in the litigation until 
about 2008, when it was cited in a rulemaking initiative as one 
of the basics for a comprehensive rulemaking wherein the Forest 
Service was going to apply a whole series of rules to the non-
Federal mineral estates, private estates throughout the 
country, to include the ANF.
    So, it was not just limited to the ANF, it was cited as 
authority to expand it beyond the ANF.
    Mr. Lamborn. Mr. Cline?
    Mr. Cline. If they put a ban on fracking, I read a study 
the other day that in 5 years we would go through 45 percent of 
our reserves. And if this would have happened back in the 
1980s, and the shale gas would have never taken off, we would 
not have a whole lot of gas in this country right now, and the 
price would be sky high.
    Mr. Lamborn. OK, thank you. Now I have a question for Mr. 
Shuffstall and Mr. Cline.
    It is important to point out that sometimes even the mere 
threat of Federal regulation has very serious impacts on state 
and local economies, can be a powerful market force, and 
sometimes will even have impacts on a national or global scale. 
One example is President Obama's Clean Power Plan that the 
Supreme Court has put on hold. Implementation has been halted. 
Yet even if the courts strike it down, the very serious impacts 
of the rule are lasting, especially for the thousands of 
Americans who will be out of a job due to several coal 
companies having been driven into bankruptcy.
    So my question is this: Even though private mineral rights 
owners won in court in this particular instance, how did the 
proposed regulations by the U.S. Forest Service impact your 
friends and neighbors and local economy, and would you say that 
there are even still some lasting consequences?
    Mr. Shuffstall. Certainly, there have been. There has been 
a chilling effect. If you are familiar with Bradford, there is 
a refinery there that depends on a particular kind of crude oil 
that is only produced in the region. You do not just refine any 
crude oil at a particular refinery, it requires a certain 
grade. This is Pennsylvania Grade Crude Oil, and the entire 
local economy is dependent to a certain degree on the 
production of Pennsylvania Grade Crude, much of which comes 
from the ANF and other areas of the region.
    And the idea of the uncertainty for the last 10, 15 years 
of whether or not that would continue has had a definite 
chilling effect on the local economy. And it is not just 
limited to Bradford. I would say the entire oil-producing 
region of Northwest Pennsylvania.
    Mr. Lamborn. Thank you. Mr. Cline?
    Mr. Cline. Yes, I would agree with what he says. The 
uncertainty of Federal regulations, along with what we are 
going through with the state, it makes everybody cautious about 
doing anything, going ahead in the future. It makes you wonder 
whether we are going to be in business much longer if we have 
any more regulations.
    They are killing the business, and it has had a great 
effect around Bradford. Anywhere in Northwestern Pennsylvania--
out of the 26,000 people that are employed directly by 
conventional oil and gas, I would say there are probably only 
about 6,000 of them working right now. Everybody is laid off or 
companies are going bankrupt.
    Mr. Lamborn. OK, thank you. The Chair now recognizes the 
Ranking Member for any questions he might have.
    Dr. Lowenthal. Thank you, Mr. Chair. You know, I am trying 
to get my arms around--as I mentioned in my statement--the need 
for the bill. And let me follow my thinking.
    In the 1980s, the Forest Service sued a mineral owner for 
converting or constructing roads without at least alerting the 
Forest Service. The district court agreed that, at that time, 
this company had to provide the Forest Service with additional 
information, and things were moving along at that time. Then, 
through 1992 we had amendments to the Mineral Leasing Act, and 
that the U.S. Forest Service would issue a notice to proceed, 
that they received this and they needed at least a 60-day 
notice for this before proceeding.
    Then came an attorney for the Forest Service in 2007 who 
said that maybe this notice to proceed was a major Federal 
action, although the Forest Service didn't do anything about 
that, whether that would trigger anything. Environmental groups 
then sued and there was an agreement that was made between the 
Forest Service and that--potentially that there might have to 
be some kind of environmental NEPA review, or some kind of 
review.
    The courts, in 2011, found in favor of the oil companies, 
that the notice to proceed is not a major Federal action, it is 
not a permit, and that the Forest Service has no discretion to 
prohibit access to mineral rights. But it also said in that 
that it reaffirmed that the Forest Service is entitled to 
advance notice from mineral rights owners before operation. So 
that is what the court said--Federal action is not needed, 
except that there still needs to be this 60-day notice to go 
forward. So, given that, instead of this bill just getting rid 
of the parts that they find in that 1992 Mineral Leasing Act as 
onerous, they threw out the 60-day notice also.
    My question is, why not just keep the 60-day--why not a 
statement that just says it limits the Forest Service's 
authority to just the 60-day notice? Why, since the courts have 
said that is not only permissible, but that it should be there, 
it reaffirmed the Forest Service, why are we going through this 
thing to eliminate the entire section? Why not just say nothing 
in this--the Forest Service is limited to just having that 60-
day notice, that has to be there?
    That would get us off this question about intent and 
anything else that is going on, that potentially new 
regulations could come up, and so forth. The courts have 
decided that, but they also have reaffirmed the need.
    Don't you think that this is an over-reach--I am asking all 
the members of the panel--by also throwing out the 60-day 
notice?
    Mr. Mayer. Sir, the 60-day notice is not being thrown out 
by any----
    Dr. Lowenthal. Tell me where it is not being thrown out.
    Mr. Mayer. The 60-day notice was established by the Federal 
District Court in 1980 and is in full force and effect today, 
and has been in full force and effect since the date of that 
ruling. The only thing the 1992 Act did was simply put that 
into the statute itself. The 1992 Act is, if you will, the 
vestigial organ that needs to----
    Dr. Lowenthal. But by limiting this and throwing out that 
statement, couldn't it be perceived that it was the intent of 
the Congress to eliminate the 60-day notice, too?
    Mr. Mayer. Not at all. The Federal district decision 
remains in full force and effect. It was an interpretation of 
Pennsylvania law, and it applies completely on the Allegheny 
National Forest and the state of Pennsylvania----
    Dr. Lowenthal. This wouldn't be an attempt of Congress to 
overturn that decision?
    Mr. Mayer. Absolutely not, sir. Absolutely not. And I am 
100 percent assured of that statement. Absolutely not.
    Dr. Lowenthal. I wonder what others think.
    Mr. Furnish. I guess I would ask him if he is an attorney.
    Mr. Mayer. I am.
    Mr. Furnish. Is he a legislator? Because I interpret this 
H.R. 3881 very differently.
    Dr. Lowenthal. And how do you interpret it?
    Mr. Furnish. Well, I interpret it to rescind the 1992 Act, 
which provided for 60-day notice.
    Dr. Lowenthal. That is what I----
    Mr. Furnish. It was codified in law. Now it is being 
rescinded from law.
    Dr. Lowenthal. I am just not sure why we are going down 
this route when, in fact, everyone agrees that the 60-day 
notice is appropriate, why we are even entertaining that.
    Mr. Shuffstall. If I may, there are two issues: one, 
private property rights, and the rights of the Federal 
Government as an owner of the surface vis a vis the owner of 
the subsurface. And a 60-day accommodation rule is a very good 
rule, and it is one that the industry tends to follow when it 
is engaged not only with the Federal Government, but also 
private citizens, many of whom are friends, neighbors, 
relatives, and customers of the bank.
    The second question, though, is the action of the Federal 
Government as a regulatory action that impinges or infringes on 
private property rights to the point where it could be 
considered a taking. And to me, that is the fundamental 
difference. Do you require legislation for a communication 
regarding relative accommodation of property rights, surface 
versus subsurface, or do you engage in regulation? And at what 
point does that regulation become a taking?
    Dr. Lowenthal. But----
    Mr. Mayer. Could I just add briefly? The----
    Mr. Lamborn. No, I am afraid the time is up.
    Mr. Mayer. OK.
    Mr. Lamborn. The Chair now recognizes the sponsor of the 
bill, the Representative from Pennsylvania, Mr. Thompson.
    Mr. Thompson. Thank you, and thank you to the Ranking 
Member for his questions, too. That is appreciated, because I 
think it is important to flush that out. You heard from an 
attorney. How about you hear it from a law maker, the author?
    If I wanted to specifically go after that 60 days, I would 
have referenced specifically that 1980 court order in terms of 
60 days. I think the 60 days is within the confines of the 
whole reasonable access process, in terms of that interaction 
between the subsurface right owners and the surface owners.
    So my questions--I want to talk about--well, there are just 
so many things to talk about here, so let me be selective.
    Mr. Cline, can you estimate how much money it costs to sue 
the Federal Government to litigate this issue in the courts and 
prove that the families and businesses of Northwestern 
Pennsylvania were on the right side of the law?
    Mr. Cline. I don't know the exact figure, just what Mr. 
Mayer threw out, about $4 million.
    Mr. Thompson. Would you agree that is the ballpark?
    Mr. Mayer. That would be my estimate, having been involved 
in tracking many of the expenses, that about $4 million--there 
were 7 cases, ultimately, that were filed in----
    Mr. Thompson. Mr. Casamassa, thank you for your service 
with the Forest Service. I am a fan of the Forest Service. We 
work together, as Chair of the Conservation and Forestry 
Subcommittee for the Committee on Agriculture.
    How much did defending this regulatory over-reach by the 
Forest Service in all those cases that were just referenced 
cost the American taxpayer in staff time and additional 
budgetary needs, the Equal Access to Justice--I think there was 
a payment that was promised to the environmental groups--I 
don't know if that ever occurred--on the industry side. Do you 
know what the total bill of that was? If it was $4 million for 
the plaintiffs, what was it for the defendants, the American 
taxpayers?
    Mr. Casamassa. Congressman, I don't necessarily have those 
figures to determine the total cost associated with the 
litigation.
    Mr. Thompson. If you could work and get that number for me 
specifically, but I have to wonder--I mean reasonable minds 
would say if for one party it was about $4 million, I have to 
think for the other party it was about $4 million. And we have 
a few more attorneys we use when it is the government, with the 
Justice Department and those assets and resources.
    So my question--let's just say it is $4 million. Let's be 
fair and say it was $3 million. When it comes to--we spend a 
lot of time talking about wildfires, and how we prevent 
wildfires, and how do we make forests more healthy. What could 
we do on the issue of wildfires with an additional $3 million 
on a particular forest?
    Mr. Casamassa. Well, I certainly think, depending on where 
you are, there could be----
    Mr. Thompson. You can do a lot of restorative work, right?
    Mr. Casamassa. I mean activity----
    Mr. Thompson. The understory and----
    Mr. Casamassa. Yes.
    Mr. Thompson. I was just in Washington State with one of 
the members of my subcommittee that serves on this committee as 
well. And they lost a half-a-million acres. Not all that was 
Federal; some was state and some was private. But to continue 
to appeal this in the past--and I am looking in the past, 
retroactively. That is why this legislation is important, 
because we are actually just trying to codify what the courts 
have found.
    So, my follow-up question to you, Mr. Casamassa, is in 
light of the recent court decisions supporting private 
property, subsurface mineral owners, can you assure this 
committee that the Forest Service will not promulgate any new 
rules regulating privately held mineral rights or agree to any 
new settlements similar to the 2009 agreement in the ANF, or 
engage in--co-join with another--some environmental groups 
that, once again, spend millions of taxpayer dollars for 
something that has already been repeatedly codified by the 
courts.
    Mr. Casamassa. Well, Congressman, the Forest Service has no 
intention to move forward with anything like that in our 
regulatory agenda, when it comes to codifying or proposing any 
rules.
    Mr. Thompson. So, the Forest Service position--not on this 
piece of legislation, I will get back to that--but on what we 
are talking about, the Forest Service position on what has been 
codified by the courts, the Forest Service is in complete 
agreement with what the courts have determined?
    Mr. Casamassa. We presently manage the subsurface rights of 
individuals and companies on the Allegheny as it relates to the 
court ruling, the existing policy, and the 1992----
    Mr. Thompson. So what you are saying, representing the 
Forest Service today, being the official spokesperson, so you 
are saying that what has been codified--the Forest Service is 
in agreement with what the courts have codified----
    Mr. Casamassa. That is how we----
    Mr. Thompson [continuing]. I am sorry, I used the word 
``codified,'' wrong process. What the courts have ruled.
    Mr. Casamassa. Presently, that is how we are managing the 
subsurface activity on the Allegheny.
    Mr. Thompson. If the Forest Service is in agreement with 
what the courts have found, why is the Forest Service opposing 
just providing clarity, so that the agency does not find 
itself--that has economic or political motivations or whatever 
are being sucked into a future lawsuit?
    Why wouldn't the Forest Service--you tell me you actually 
agree with the intent of what this legislation does, but I 
don't understand why you are opposing the bill today.
    Mr. Casamassa. Well, again, I go back to, based on the 
existing framework of the court ruling, our policy, as well as 
the 1992 Energy Policy Act, that is the frame by which we are 
managing the subsurface----
    Mr. Thompson. That you have never actually really used. It 
was, like, 16 years to get promulgated regulations on that. So 
this is not something that you have actually used. The whole 
60-day notice thing, which I think is reasonable, actually 
predates the 1992 Act back to 1980.
    Sorry, Mr. Chairman.
    Mr. Lamborn. OK. This is a good discussion. We will now 
turn to Representative Hice for any questions he may have.
    Dr. Hice. Thank you, Mr. Chairman, and I appreciate each of 
you for joining us today.
    Mr. Mayer and Mr. Cline, the Forest Service manual states 
that Secretary's rules and regulations do not apply to the 
administration of outstanding rights. So, with that being said, 
it appears to me, at least, that the Forest Service attempt to 
apply NEPA to private mineral rights in the Allegheny National 
Forest is not only a violation of state and Federal law, but 
even a violation of their own policy. Would you agree with 
that?
    Mr. Cline. Yes, I would agree with that.
    Mr. Mayer. Mr. Hice, that was, I think, one of the reasons 
the Department of Justice awarded PIOGA the funds under the 
Equal Access to Justice Act. And commentators on the case have 
noticed that very fact, that the policies and positions of the 
Forest Service taken on the Allegheny in the case beginning 
back in 2006 departed from their very own policies and rules, 
which was even more surprising, certainly to us, when that 
occurred.
    Dr. Hice. So, is it your opinion that the Forest Service 
staff was aware of this when drafting the regulations that led 
to the ban on oil and gas leasing in the Allegheny?
    Mr. Mayer. Based upon my experience, I am certain they were 
aware of what the various policy statements were. They were 
reminded continually by us in the oil and gas industry in 
different venues and in different forums. And then, as 
Congressman Lowenthal mentioned, there was a legal opinion that 
came into play back in 2007----
    Dr. Hice. Let me keep going with this thought, and I 
appreciate your answer.
    Mr. Cline, do you have anything to add?
    Mr. Cline. Just that being a private business owner--most 
of us know that any time a government agency or a state 
agency--they are always trying to over-reach their authority 
any way that they can do something to force it on you.
    Dr. Hice. So, do you believe that employees at the Forest 
Service purposely ignored their operating manual?
    Mr. Cline. Yes.
    Dr. Hice. OK. Mr. Mayer?
    Mr. Mayer. I would say they took great liberties with their 
interpretation.
    Dr. Hice. Is this, in both of your opinions, a rogue 
behavior of a single occurrence, or is this symptomatic of a 
larger problem?
    Mr. Mayer. In my view, I would have a hard time describing 
it as rogue, simply because it went from the Allegheny through 
the regional office and into the Washington office, in terms of 
the policies that were being pursued with respect to the 
Allegheny in this particular litigation.
    Dr. Hice. OK. Mr. Cline?
    Mr. Mayer. I find that unusual, but nonetheless----
    Mr. Cline. I agree with what he says.
    Dr. Hice. All right. So, this is symptomatic of a larger 
problem, right?
    Mr. Casamassa, your response?
    Mr. Casamassa. Certainly, presently in the regulatory 
framework that we work right now, if there is the potential for 
some kind of regulation or proposed regulation, those go out 
for public comment and notification. All of that, the content 
of those comments, are then brought back to the agency. We then 
distill that down to the significant points, maybe take a look 
at that, and then actually frame out a final regulation.
    It is done in a very transparent way right now, and----
    Dr. Hice. All right. Let me interrupt you, if I can, 
because I have a couple other questions for you. But you are 
not answering the issue of ignoring your own policy, and that 
is what is at stake here.
    Let me ask you this. Roughly how much money has all the 
litigation tied to regulating private mineral estate in 
Allegheny cost the American taxpayer since 2007?
    Mr. Casamassa. Congressman, that is the question that the 
Congressman from Pennsylvania had asked me, Congressman 
Thompson. At this juncture, I don't have those figures, but I 
would certainly be willing to go back and roll that up and 
provide it to the Subcommittee Chair.
    Dr. Hice. OK. I would appreciate that greatly.
    Chairman, I see my time is running out, but I thank you, 
and I yield back.
    Mr. Lamborn. OK. Thank you. I want to thank the witnesses 
for their valuable testimony and the Members for their 
questions.
    The members of the committee may have some additional 
questions for the witnesses, and I guess a couple have already 
been asked during the course of questions. I would ask that you 
respond to those in writing.
    Under Committee Rule 4(h), the hearing record will be held 
open for 10 business days for these responses. If there is no 
further business, without objection the committee stands 
adjourned.

    [Whereupon, at 3:20 p.m., the subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

                                                     April 29, 2016

House Committee on Natural Resources,
Subcommittee on Energy and Mineral Resources,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Subcommittee Members:

    The undersigned organizations oppose H.R. 3881, the ill-conceived 
and misleadingly titled ``Cooperative Management of Mineral Rights Act 
of 2015.'' If passed, H.R. 3881 would strip the Department of 
Agriculture of important rulemaking authority and make it easier for 
oil and gas companies to drill in the Allegheny National Forest, 
Pennsylvania's only national forest. In fact, H.R. 3881 would make it 
so that certain mineral owners could start drilling in the Allegheny 
National Forest without even notifying the federal landowner, the U.S. 
Forest Service. Such a result would threaten vast areas of the 
Allegheny National Forest that are important for protecting watersheds, 
wildlife habitat, and public recreation.
    Specifically, H.R. 3881 would amend the Mineral Leasing Act to 
repeal 30 U.S.C. Sec. 226(o). This statute requires the owners of 
``outstanding'' mineral rights in the Allegheny National Forest to 
provide the Forest Service with at least 60 days' notice before 
engaging in any earth-disturbing activities related to oil and gas 
drilling.\1\ This notice must include, at a minimum: (1) a designated 
field representative; (2) a map showing the location and dimensions of 
proposed well sites, roads and pipelines; (3) a plan of operations 
setting forth a schedule for construction and drilling; (4) a plan to 
control erosion and sedimentation; and (5) proof of mineral 
ownership.\2\
---------------------------------------------------------------------------
    \1\ See 30 U.S.C. Sec. 226(o)(2).
    \2\ Id. Sec. 226(o)(3).
---------------------------------------------------------------------------
    These common-sense provisions, which are in no manner burdensome on 
the oil and gas industry, grew out of the U.S. District Court's opinion 
in United States v. Minard Run Oil Company.\3\ In that case, the Forest 
Service sued Minard Run Oil Company after the company cut trees in the 
Allegheny National Forest to construct roads, pipelines and well sites 
``without notice and without cooperative planning'' with the Forest 
Service.\4\ The court noted that Minard Run's actions caused 
``devastation'' and ``irreparable damage to the surface of the land 
occupied by the Allegheny National Forest.'' \5\
---------------------------------------------------------------------------
    \3\ 1980 U.S. Dist. LEXIS 9570 (W.D. Pa. 1980) (``Minard Run I'').
    \4\ See Minard Run I, 1980 U.S. Dist. LEXIS 9570, at *9, *16.
    \5\ Id. at *1, *16.
---------------------------------------------------------------------------
    The court stated that ``a mineral operator cannot presume to be 
capable of adjudging without reasonable advance notice to the surface 
owner and therefore, unilaterally, that his operations will not 
unnecessarily impair the use of the surface.'' \6\ The court 
specifically highlighted the need for oil and gas companies to provide 
advance notice when the surface owner holds the lands in trust for the 
American people:
---------------------------------------------------------------------------
    \6\ Id. at *20.

        The public has a substantial interest in reasonable advance 
        notice being afforded for the reason that no natural resources 
        of value to the public should be compromised unnecessarily in 
        the process of obtaining another natural resource. The public 
        has an added interest here, given that the natural resources 
        owned by [the Forest Service] are held specifically in trust 
        for the public . . . The public has an interest in preservation 
        of the Allegheny National Forest as a part of preservation of 
        environmental resources and our abundant forest areas and so 
        the public benefit is to this extent involved in the rights of 
        the [Forest Service] considering the use to which the land has 
        been put . . . The interest of the public lies in the 
        preservation of valuable natural resources on the surface of 
        lands from unnecessary impairment in the course of development 
        of a mineral resource.\7\
---------------------------------------------------------------------------
    \7\ Id. at *11, *16, *20 (emphasis added).

    Eliminating the notice requirements in 30 U.S.C. Sec. 226(o), as 
H.R. 3881 would do, will not promote ``cooperative management of 
mineral rights'' in the Allegheny National Forest. Rather, it will 
trample federal safeguards for managing public natural resources that 
have been in place for nearly forty years. This will only embolden oil 
and gas companies to be less cooperative, as they were before the 
court's opinion in Minard Run I.
    To advance H.R. 3881, its proponents have severely mischaracterized 
recent litigation regarding the Forest Service's authority to regulate 
the exercise of private mineral rights in the Allegheny National 
Forest.\8\ In that litigation, the U.S. District Court for the Western 
District of Pennsylvania enjoined the Forest Service from requiring 
preparation of an environmental analysis under the National 
Environmental Policy Act before mineral owners could exercise their 
mineral rights because, according to the court, ``the Forest Service 
does not possess the regulatory authority that it asserts relative to 
the processing of oil and gas drilling proposals.'' \9\ The proponents 
of H.R. 3881 erroneously claim that ``[t]hroughout this litigation, the 
sole authority claimed by the Forest Service and environmental groups 
for promulgation of regulations to exercise regulatory authority over 
private mineral estate[s] was . . . 30 U.S.C. Sec. 226(o).'' \10\ In 
doing so, the proponents of H.R. 3881 imply that the most recent Minard 
Run litigation nullified 30 U.S.C. Sec. 226(o), which they refer to as 
an ``antiquated statute.'' \11\ This is emphatically untrue.
---------------------------------------------------------------------------
    \8\ See e.g., Subcommittee on Energy and Mineral Resources, Hearing 
Memorandum, pp. 3-4 (Apr. 18, 2016) (``Hearing Memo''), available at 
http://naturalresources.house.gov/uploadedfiles/hearing_memo_-
_leg_hrg_on_hr_3881_04.l9.16.pdf.
    \9\ Minard Run Oil Co. v. U.S. Forest Service, 2009 WL 4937785, *31 
(W.D. Pa. 2009) (``Minard Run II''), aff'd 670 F.3d 236 (3rd Cir. 2011) 
(``Minard Run III'').
    \10\ Hearing Memo, pp. 3-4 (emphasis added).
    \11\ Id. at 4.
---------------------------------------------------------------------------
    Indeed, the District Court's 2009 preliminary injunction opinion 
was limited to interpreting whether the Forest Service's authority 
under an entirely different statute, the Organic Act (16 U.S.C. 
Sec. 551), applied to the exercise of private mineral rights in the 
Allegheny National Forest.\12\ While the court stated that the Forest 
Service lacked authority to regulate under 16 U.S.C. Sec. 551, the 
court nevertheless affirmed the applicability of ``the procedures set 
forth in [Minard Run I] and 30 U.S.C. Sec. 226(o).'' \13\ The Third 
Circuit affirmed this holding.\14\
---------------------------------------------------------------------------
    \12\ See Minard Run II, 2009 WL 4937785, *28-*31.
    \13\ Id. at *34 (emphasis added). Note: the undersigned 
organizations disagree with both the District Court and Third Circuit 
opinions regarding the Forest Service's purported lack of authority to 
regulate the exercise of private mineral rights pursuant to 16 U.S.C. 
Sec. 551.
    \14\ See Minard Run III, 670 F.3d at 244, 254 (citing 30 U.S.C. 
Sec. 226(o) and stating the Forest Service ``is entitled to notice from 
owners of these mineral rights prior to surface disturbance[.]'' 
(emphasis added))
---------------------------------------------------------------------------
    During the merits stage of the Minard Run litigation, the District 
Court reiterated the applicability and importance of the notice 
provisions contained in Minard Run I and codifIed in 30 U.S.C. 
Sec. 226(o):

        As has been recognized by all parties, my previous opinion 
        reaffirmed what I referred to as the ``Minard Run [I] 
        approach,'' which included a 60-day notice requirement derived 
        from the holding in the prior Minard Run [I] case. However, my 
        order did not, and was not intended to, grant the drillers 
        carte blanche to enter the ANF and commence drilling operations 
        on the 61st day if unable to reach an accommodation with the 
        Forest Service . . . Depending upon the unique circumstances of 
        any given case, a period of time longer than 60 days may be 
        entirely appropriate and necessary in order for the dominant 
        and servient estateholders to engage in a meaningful and 
        cooperative accommodative effort.\15\
---------------------------------------------------------------------------
    \15\ Minard Run Oil Co. v. U.S. Forest Service, 894 F.Supp.2d 642, 
647 (W.D. Pa. 2012) (``Minard Run IV'') (emphasis added).

    Contrary to the proponents of H.R. 3881, both the District Court 
and the Third Circuit unequivocally affirmed the applicability of 30 
U.S.C. Sec. 226(o). Thus, this statute is not ``antiquated''--rather, 
it is an important part of the Forest Service's statutory authority to 
protect the Allegheny National Forest from ``unnecessary impairment in 
the course of development of a mineral resource.'' \16\
---------------------------------------------------------------------------
    \16\ Minard Run I, 1980 U.S. Dist. LEXIS 9570, *20.
---------------------------------------------------------------------------
    Finally, it is important to note that the ramifications of 
repealing 30 U.S.C. Sec. 226(o) would likely be felt far beyond the 
boundaries of the Allegheny National Forest. For example, the Forest 
Service Manual (``FSM'') incorporates provisions quite similar to 30 
U.S.C. Sec. 226(o).\17\ These provisions apply to the administration of 
outstanding mineral rights in all national forests, not just the 
Allegheny. Therefore, repealing 30 U.S.C. Sec. 226(o) would likely be 
just the opening salvo of a broader push by industry to curtail 
regulation of oil and gas drilling on National Forest System lands 
throughout the nation.
---------------------------------------------------------------------------
    \17\ See FSM 2832.
---------------------------------------------------------------------------
    We urge members of the Subcommittee to vote ``no'' on H.R. 3881.

            Sincerely,

        Ryan Talbott, Executive 
        Director                      Joe Lovett, Executive Director
        Allegheny Defense Project     Appalachian Mountain Advocates

        Tierra R. Curry, Senior 
        Scientist                     Denise Boggs Executive Director
        Center for Biological 
        Diversity                     Conservation Congress

        Gary Macfarlane, Ecosys. 
        Def. Dir.                     Tabitha Tripp, Co-President
        Friends of the Clearwater     Heartwood

        Amy Mall, Senior Policy 
        Analyst                       Janet Keating, Executive Director
        Natural Resources Defense 
        Council                       Ohio Valley Environmental 
                                      Coalition

        Jenny Lisak, Co-Director      Lori Andresen, President
        Pennsylvania Alliance for 
        Clean Water and Air           Save Our Sky Blue Waters

        Laurie Barr, Co-Founder       Lena Moffitt, Director
        Save Our Streams PA Inc.      Beyond Dirty Fuels, Sierra Club

        Thomas Au, Conservation 
        Chair                         Misty Boos, Director
        Sierra Club Pennsylvania 
        Chapter                       Wild Virginia

                                 [all]
```