2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2011

Minard Run Oil Company v. US Forest Ser

Precedential or Non-Precedential: Precedential

Docket No. 10-1265

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 10-1265 and 10-2332

MINARD RUN OIL COMPANY; PENNSYLVANIA 

INDEPENDENT OIL AND GAS ASSOCIATION; 

ALLEGHENY FOREST ALLIANCE;

COUNTY OF WARREN, PENNSYLVANIA,

v.

UNITED STATES FOREST SERVICE, an agency of the

U.S. Department of Agriculture; TOM TIDWELL, in his 

official capacity as Chief of the U.S. Forest Service;

KENT P. CONNAUGHTON, in his official capacity

as regional Forester for the U.S. Forest Service, Eastern 

Region; LEANNE M. MARTEN, in her official capacity as

Forest Supervisor for the Allegheny National Forest;

ATTORNEY GENERAL OF THE UNITED STATES OF 

AMERICA; FOREST SERVICE EMPLOYEES FOR 

ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE 

PROJECT; SIERRA CLUB

Forest Service Employees for Environmental Ethics,

Allegheny Defense Project, Sierra Club,

Appellants.
2

(Pursuant to Fed. R. App. P. 43 (c)(2))

(Amended Pursuant to the Clerk's Order of June 18, 2010)

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 1-09-cv-00125)

District Judge: Honorable Sean J. McLaughlin

Argued on January 27, 2011

 

Before: FUENTES, CHAGARES and ROTH, Circuit Judges

(Opinion filed: September 20, 2011)

Brian J. Sonfield, Esquire

Assistant General Counsel

United States Department of Agriculture

Washington, DC 20250

Ignacia S. Moreno, Esquire

Assistant Attorney General

Aaron P. Avila, Esquire

Ruth Ann Storey, Esquire

United States Department of Justice

Environment & Natural Resources Division

P.O. Box 663

Washington, DC 20044
3

Lane N. McFadden, Esquire

Robert P. Stockman, Esquire (Argued)

United States Department of Justice

Environment & Natural Resources Division

P.O. Box 23795, L‟Enfant Plaza Station

Washington, DC 20026

Counsel for Federal Appellants

Timothy M. Bechtold, Esquire

Bechtold Law Firm

317 East Spruce Street

P. O. Box 7051

Missoula, MT 59807

Marianne Dugan, Esquire (Argued)

259 E. 5th Ave., Ste 200-D

Eugene, OR 97401

Counsel for Environmental Appellants

R. Timothy McCrum, Esquire (Argued)

J. Michael Klise, Esquire

Daniel W. Wolff, Esquire

Crowell & Moring LLP

1001 Pennsylvania Ave, N.W.

Washington, DC 20004-2595

Matthew L. Wolford, Esquire

638 West Sixth Street

Erie, PA 16507
4

Steven J. Lechner, Esquire

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, CO 80227

Counsel for Appellees

___________

O P I N I O N

___________

 

ROTH, Circuit Judge:

I. Introduction

This appeal concerns a dispute between the U.S. Forest 

Service (the Service) and owners of mineral rights in the 

Allegheny National Forest (ANF). Although the Service 

manages the surface of the ANF for the United States, 

mineral rights in most of the ANF are privately owned. 

Mineral rights owners are entitled to reasonable use of the 

surface to drill for oil or gas and from 1980 until recently the 

Service and mineral owners had managed drilling in the ANF 

through a cooperative process. Mineral rights owners would 

provide 60 days advance notice to the Service of their drilling 

plans and the Service would issue owners a Notice to Proceed

(NTP), which acknowledged receipt of notice and 

memorialized any agreements between the Service and the 
5

mineral owner about the drilling operations. However, as a 

result of a settlement agreement with environmental groups, 

the Service dramatically changed its policy and decided to 

postpone the issuance of NTPs until a multi-year, forest-wide

Environmental Impact Study (EIS) under the National 

Environmental Policy Act (NEPA) is completed. 

Mineral owners and related businesses affected by this 

new policy sought to enjoin the Service from implementing 

the policy, which would halt new drilling in the ANF. After 

holding a hearing and carefully considering the evidence, the 

District Court issued a preliminary injunction against the 

Service, prohibiting it from making the completion of the

forest-wide EIS a condition for issuing NTPs and requiring it 

to return to its prior, cooperative process for issuing NTPs. 

The Service, the Attorney General, and several environmental 

organizations appeal the preliminary injunction, contending

that the District Court lacked jurisdiction and erred in issuing 

a preliminary injunction. For the reasons that follow, we 

affirm in all respects the District Court‟s thorough, wellreasoned opinion.

II. Background

In the 19th century, all the land now comprising the 

ANF was privately owned. In 1891, Congress authorized the 

President to designate federal lands as forest reservations in 

order to preserve valuable timber resources and ensure 

protection of watersheds. Act of March 3, 1891 § 24, 26 Stat. 

1095, 1103, codified at 16 U.S.C. § 471 (repealed) (the 1891 

Act). In 1897, Congress passed the Organic Act authorizing

the Secretary of Agriculture to regulate “occupancy and use” 

of forest reservations designated under the 1891 Act. 30 Stat.
6

11, 34, codified at 16 U.S.C. § 475. These Acts, however, did 

not authorize the purchase of land to establish federal forest 

reservations – they were limited to land already owned by the 

federal government or acquired for other purposes. After 

considerable controversy and a decade of campaigning, see

S. REP. NO. 60-459, at 13 (1908) (describing history of forest 

preservation bills), Congress passed the Weeks Act in 1911. 

Pub. L. No. 61-435, 36 Stat. 961. The Act set aside funds for 

purchase of private land by the Secretary of Agriculture to 

serve as forest reservations under the Organic Act. Id. §§ 4-8, 

36 Stat. at 962. Before purchasing land in a State, the Act 

required the Secretary to obtain the State‟s consent. Id. § 7, 

36 Stat. at 962. In the decades following the Act, the 

Secretary purchased large tracts of forest land, and in 1923, 

President Coolidge designated the lands acquired in

Pennsylvania as the Allegheny National Forest. 43 Stat. 

1925.

A. Mineral Rights in the Allegheny National Forest

Coal mining was common in the Allegheny Plateau 

and oil had been discovered in the area in 1859. To acquire 

as much land as possible with limited funds, the Secretary of 

Agriculture purchased large tracts of surface estate in the 

ANF while leaving valuable mineral rights in private hands. 

As a result, over 93% of the mineral estates in the ANF are 

privately owned. The mineral rights in the ANF are of two 

kinds: reserved rights and outstanding rights. 

Reserved rights are those reserved by the fee owner in 

the deed conveying surface ownership to the United States. 

The Weeks Act authorized the Secretary to acquire surface 

estates with a reservation of rights to the grantor and provided 
7

that the exercise of reserved rights would be subject to the 

“rules and regulations” promulgated by the Secretary and 

included in the instrument of conveyance. 16 U.S.C. § 518. 

Reserved rights are usually referred to by the year of 

promulgation of the regulations in effect at the time of federal 

acquisition, i.e., 1911, 1937, 1947, or 1963 reserved rights. 

About 48% of the mineral rights in the ANF are reserved 

rights and the vast majority of these are 1911 rights. (J.A. 

157, 254-55.) The 1911 regulations were quite minimal, and 

generally required mineral rights owners to use no more of 

the surface than reasonably necessary, pay for any timber cut 

down when clearing space for wells, take appropriate 

measures to prevent fire, and remove all facilities or refuse 

when drilling operations cease.1 The 1911 regulations did not 

 

1

These regulations essentially required mineral rights 

owners to do the following:

(1) Furnish proof of mineral rights ownership upon 

demand by the Service,

(2) Use only so much of the surface as is necessary for 

mining operations,

(3) Take all reasonable and usual precautions in making 

tunnels and shafts to support surface land, subject to 

inspection by the Service or other federal officials,

(4) Pay (at locally prevailing rates) for timber cut,

destroyed, or damaged in mining operations,

(5) Remove all buildings, camps, or equipment within six 

months after completion or abandonment of mining 

operations,

(6) Dispose of destructible refuse interfering with forest 

administration within six months after completion or 

abandonment of mining operations, and
8

require mineral rights owners to obtain a permit from the 

Service in order to exercise their mineral rights. 

Outstanding rights are those that were severed from 

the surface estate prior to its conveyance to the United States. 

The Weeks Act was amended in 1913 to permit acquisition of 

severed surface estates with outstanding mineral rights, 

provided that the National Forest Reservation Commission 

concluded that these rights would not hinder administration of 

the forest reservation. 37 Stat. 828, 855 (1913). Until 

recently, the Service maintained that its regulations did not 

apply to outstanding mineral rights.2 Rather, because 

outstanding mineral rights were reserved prior to conveyance 

to the United States, these rights are governed by the terms of 

the earlier conveyance severing the mineral rights and

Pennsylvania property law. See United States v. Minard Run 

Oil Co., No. 90-12, 1980 U.S. Dist. LEXIS 9570, at *14-15

(W.D. Pa. Dec. 16, 1980) (Minard Run I). 

 

(7) Use “due diligence” to avoid or suppress fires in the 

area.

Minard Run Oil Co. v. U.S. Forest Service, No. 09-125, 2009 

WL 4937785, at *3-4 (W.D. Pa. Dec. 15, 2009) (Minard Run 

II).

2

For example, the Forest Service Manual (FSM) states 

that “[t]he Secretary's rules and regulations do not apply to 

the administration of outstanding mineral rights.” FSM § 

2830.1 The Service‟s 1984 ANF Handbook similarly states 

that outstanding mineral rights “are not subject to any of the 

Secretary of Agriculture‟s rules and regulations.” ANF 

Handbook, ch. 2, p.11 (1984) (emphasis in original).
9

Under Pennsylvania law, the mineral estate is the 

dominant estate and entails the right to use of as much surface 

land as reasonably necessary to extract minerals. Belden & 

Blake Corp. v. DCNR, 969 A.2d 528, 532 (Pa. 2009). 

Although the mineral owner must show “due regard” to the 

rights of the surface owner, the mineral owner need not obtain 

consent or approval before entering land to mine for minerals. 

Id. at 533; see also Minard Run I, 1980 U.S. Dist. LEXIS 

9570, at *13 (mineral rights owner has an “unquestioned 

right” to enter the property, subject to “minor restrictions 

which . . . should not seriously hamper the extraction of oil 

and gas”). Minard Run I concluded that “due regard” to the 

Service as surface owner required owners of outstanding 

mineral rights to provide information regarding drilling plans 

to the Service “no less than 60 days in advance” of 

commencing drilling operations. Id. at *22.

The Service‟s 1984 ANF Handbook incorporated the 

Minard Run I framework into its “standard operating 

procedures” for outstanding mineral rights in the ANF. 

Congress codified the notice provisions of Minard Run I in 

the Energy Policy Act of 1992, Pub. L. No. 102-486 § 2508, 

106 Stat. 2776, 3108, codified at 30 U.S.C. § 226(o). Until 

the change in policy that is the subject of this litigation, the

Service and mineral rights owners in the ANF had relied on 

the Minard Run I framework and taken a cooperative 

approach to oil and gas drilling in the ANF. Under this 

framework, mineral rights owners who planned to conduct 

drilling operations would provide the Service with the 

required notice and the two parties would then negotiate the 

details of drilling operations, such as the location of wells or 

access roads, so as to prevent any unnecessary surface use. 

At the end of this process, the Service would issue a Notice to 
10

Proceed (NTP) to the mineral rights owner, which 

acknowledged receipt of notice from the mineral rights owner 

and memorialized any agreements between the parties

regarding drilling operations.

3

 

B. The Service’s Policy Regarding NEPA and Split

Estates

The National Environmental Policy Act of 1969, Pub. 

L. No. 91-190, 83 Stat. 852 (NEPA) requires federal agencies 

to file an environmental impact study (EIS) before taking any 

“major federal actions significantly affecting the quality of 

the human environment.” 42 U.S.C. § 4332(C). The Service

completed EISs in 1986 and 2007 in connection with 

adoption of a Forest Plan for the ANF, which governs the 

Service‟s management of the forest. The Service did not 

suspend the issuance of NTPs during these EISs. The Service 

also occasionally conducted an Environmental Assessment 

(EA) – a summary environmental analysis less demanding 

than an EIS – when issuing certain NTPs. Although only 

limited information on these EAs is available, they appear to 

have been completed quite promptly and within the 60-day 

Minard Run I framework. However, until recently, the 

Service took the position that issuance of an NTP to a mineral 

rights owner was not a “major federal action” requiring 

environmental analysis under NEPA because the Service‟s 

 

3Drilling in the ANF is regulated by the Pennsylvania 

Department of Environmental Protection (DEP) and subject 

to a permit process, see 25 Pa. Stat. §§ 77.51, 78.1, 86.11. A 

permit is usually obtained before applying for an NTP. As an 

affected landowner, the Service has the right to participate in 

the permit process and challenge the terms of a permit. 
11

rights as surface owner were so limited. (J.A. 182-83 

(testimony before Congress), 185-86 (legal opinion provided 

to Congress).) When interacting with mineral rights owners 

in the ANF, the Service viewed itself as a resource 

management agency negotiating use of jointly owned land, 

not as a regulatory agency issuing permits. 

C. Changes in Forest Service Policy

Several changes in the Service‟s policy led to this 

litigation. On May 24, 2007, an attorney in the Service‟s 

Office of General Counsel authored a memorandum

concluding that the issuance of an NTP is a “major federal 

action” subject to NEPA. The memo relied heavily on 

Duncan Energy Co. v. U.S. Forest Service, 109 F.3d 497 (8th 

Cir. 1997) (Duncan I), and adopted a broader interpretation of 

the Service‟s authority over 1911 reserved rights than was

adopted in Minard Run I, which the memorandum cited only 

once and did not discuss. However, there was no immediate 

change in the Service‟s policy in response to this 

memorandum. 

On November 20, 2008, the Forest Service Employees 

for Environmental Ethics (FSEEE) and the Sierra Club filed 

suit against the Service seeking a declaration that its practice 

of issuing NTPs without conducting an appropriate 

environmental analysis under NEPA was contrary to law and 

also seeking an injunction against issuance of further NTPs 

without proper NEPA analysis. See FSEEE v. U.S. Forest

Service, No. 08-323, 2009 WL 1324154 (W.D. Pa. May 12, 

2009). On January 16, 2009, while the action was still 

pending, the Service ceased processing and issuing NTPs, 

explaining that this was being done “[i]n light of pending 
12

litigation” and that the Service intended to file a Notice of 

Intent to prepare an EIS the following month. On April 9, 

2009, the parties to the FSEEE litigation entered into a 

Settlement Agreement purporting to resolve all claims. The 

Settlement Agreement provided that, with the exception of 54 

grandfathered NTP applications, 

[the Service] agrees that it shall undertake 

appropriate NEPA analysis prior to issuing 

Notices to Proceed, or any other instrument 

authorizing access to and surface occupancy of 

the Forest for oil and gas projects on split 

estates including both reserved and outstanding 

mineral interests. Appropriate NEPA analysis 

shall consist of the use of a categorical 

exclusion or the preparation of an 

Environmental Assessment or an 

Environmental Impact Assessment.

The Pennsylvania Independent Oil and Gas Association 

(PIOGA) and the Allegheny Forest Alliance (AFA), both 

appellees in this action, were not included in the settlement 

negotiations but sought to intervene in the case once they 

learned that the case might settle. Although PIOGA and AFA

were permitted to intervene in the FSEEE action, the district 

court declined to consider their objections to the settlement 

and approved voluntary dismissal of the case. FSEEE, 2009 

WL 1324154, at *4.

On April 10, 2009, ANF Forest Supervisor Leanne 

Marten issued a statement (the Marten Statement) explaining 

that, because of the Settlement Agreement, “[a]ll . . . pending 

oil and gas proposals, and all future proposals, will be 
13

processed after the appropriate level of environmental 

analysis has been conducted under the NEPA.” Marten 

announced that the Service would be “initiating a forest-wide 

site specific environmental analysis for proposals that were 

not included in the settlement and any other proposals for 

activity anticipated between now and 2013,” and that this 

process was estimated to take until at least mid-April 2010. 

Aside from the 54 NTP applications identified in the 

Settlement Agreement, no new drilling in the ANF would be 

authorized until the forest-wide EIS was complete. 

As these policy changes were taking place, the Service 

took the position that mineral rights owners were required to 

obtain an NTP prior to making any changes to land in the 

ANF. For example, in a 2008 letter, the Service advised a 

mineral rights owner that “entry upon, and removal of, timber 

from National Forest System lands requires the express prior 

written approval of the Forest Service” and that “[f]ailure to 

do so is a violation of both federal and state law and federal 

regulation.” The Service directed the recipient‟s “considered 

attention” to several statutes imposing criminal penalties for 

failure to abide by Service regulations. Since the Settlement 

Agreement and the Marten Statement, the Service has warned 

mineral rights owners and their contractors on several 

occasions that new drilling operations without an NTP are not 

permitted and may result in criminal penalties. Although the 

Service does not appear to have formally adopted a rule to 

this effect, it has acknowledged that new drilling without an 

NTP may result in a civil enforcement action or criminal 

penalties.
14

D. Litigation

On June 1, 2009, PIOGA, AFA, Minard Run Oil 

Company, and the County of Warren brought suit against the 

Service and three of its officers, the Attorney General, 

FSEEE, the Sierra Club, and the Allegheny Defense Fund. 

The plaintiffs‟ complaint alleged that, as a result of the 

Settlement Agreement, the Service had imposed a de facto

drilling ban in the ANF until a forest-wide EIS is completed

and that this ban exceeded the authority of the Service and 

was contrary to NEPA and the Administrative Procedure Act 

(APA). Additionally, plaintiffs allege that because the 

Service‟s estimated completion date for its forest-wide EIS –

April 2010 – is unrealistic, the EIS will probably not be 

completed for several years. As a result, mineral rights 

owners will be prevented from exercising their property rights

during this period, resulting in damage to the owners, related 

businesses, and the local community. 

At a hearing on the preliminary injunction motion,

plaintiffs presented the testimony of several business owners, 

who testified that, as a result of the Service‟s ban on new 

drilling, they were prevented from drilling new wells, causing

significant losses to their businesses and harm to the 

community. Plaintiffs also presented testimony from several 

former Forest Rangers who had worked in the ANF, who

described the Service‟s historical practices regarding NTPs 

and EISs and estimated that the EIS would probably require 

at least several years to complete. 

The Service presented the testimony of ANF Forest 

Supervisor Leanne Marten and Forest Ranger Richard 

Scardina. These witnesses claimed that, starting in 2007, 
15

there was a significant increase in the number of NTP 

applications. They explained that a forest-wide EIS is 

necessary before approving any new NTPs, because the 

Service‟s prior policy of individualized assessment of NTP 

applications has hindered forest management, resulting in 

duplicative roads or development facilities for adjoining 

pieces of land, and unnecessary clearing of the forest. The 

environmental defendants presented the testimony of two 

members of local environmental organizations who claimed 

that the natural beauty of the ANF had been impaired by oil 

and gas drilling. Plaintiffs disputed much of this testimony 

and presented rebuttal witnesses. 

The District Court granted plaintiffs‟ motion for a 

preliminary injunction. The court found as follows: The 

Settlement Agreement and the Marten Statement represented 

“a fundamental „sea change‟” in the Service‟s policy;

therefore, they constituted final agency action subject to 

review under the APA. Minard Run Oil Co. v. U.S. Forest 

Service, No. 09-125, 2009 WL 4937785, at *22 (W.D. Pa. 

Dec. 15, 2009) (Minard Run II). The effect of this policy was 

a “drilling ban,” which precluded new drilling in the ANF 

(with the exception of the 54 grandfathered NTP applications) 

until the Service completed a forest-wide EIS. Id. at *14-15. 

The Service had instituted the drilling ban without following 

the APA‟s notice and comment procedures, and the ban was 

not justified under NEPA because the issuing of an NTP was 

not a major federal action. The preparation of the EIS would 

likely last several years, resulting in irreparable harm to the

plaintiffs, and the balance of the equities and the public

interest favored an injunction. Id. at *32-33. 
16

The District Court then enjoined the Service “from 

requiring the preparation of a NEPA document as a 

precondition to the exercise of private oil and gas rights in the 

ANF,” and required the Service to return to the 60-day 

cooperative framework for processing NTPs that had been in 

place prior to the FSEEE Settlement. Id. The preliminary 

injunction was entered on December 15, 2009. The District 

Court denied appellants‟ motion for reconsideration on March 

9, 2010, and this appeal followed. 

II. Jurisdiction

We have appellate jurisdiction under 28 U.S.C. § 

1292(a)(1). The Service argued that the District Court lacked 

jurisdiction because there is no final agency action subject to 

review.

4

 Because final agency action is a jurisdictional issue, 

 

4

The environmental appellants also claim that 

appellees lack standing to challenge the Settlement 

Agreement because it did not cause them any harm and 

suspending its application would not redress any injury 

allegedly suffered by appellees. See Freeman v. Corzine, 629 

F.3d 146, 153 (3d Cir. 2010) (constitutional standing requires 

(1) injury in fact, (2) causation, and (3) redressability). We 

disagree. As the District Court found, the Marten Statement 

is the direct result of the Settlement Agreement – its first 

sentence describes the terms of the Agreement. Even if the 

environmental appellants are correct that the Agreement does 

not require the multi-year EIS that the Service has chosen to 

implement prior to issuing NTPs, the Agreement nevertheless 

establishes – in violation of appellees‟ notice and comment 

rights – a new substantive rule on the issuance of NTPs that 

could delay issuance of NTPs to appellees. This suffices for 
17

TSG Inc. v. EPA, 538 F.3d 264, 267 (3d Cir. 2008), we

review de novo the District Court‟s finding of final agency 

action, Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 63 

(3d Cir. 2008). The APA provides for judicial review of

“final agency action,” 5 U.S.C. § 702, which is present when 

two conditions are met:

First, the action must mark the “consummation” 

of the agency‟s decisionmaking process – it 

must not be of a merely tentative or 

interlocutory nature. And second, the action 

must be one by which “rights or obligations 

have been determined,” or from which “legal 

consequences will flow.”

TSG Inc., 538 F.3d at 267 (quoting Bennett v. Spear, 520 U.S. 

154, 178 (1997)). We conclude that the Marten Statement 

constitutes final agency action.

First, the Marten Statement represents the 

consummation of the Service‟s decisionmaking process on 

the specific question of whether to issue NTPs while the 

Service is conducting a lengthy EIS. The Service argues that 

this decision is “interlocutory,” TSG Inc., 538 F.3d at 267, or

a “preliminary, procedural, or intermediate agency action,” 5 

U.S.C. § 704, which will not be final until the EIS is complete 

and NTPs are issued. We agree with the Service that the 

completion of the EIS or issuance of an NTP would constitute 

final agency action, but that does not mean that any 

 

standing purposes. See Massachusetts v. EPA, 549 U.S. 497, 

518 (2007); Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 

n.8 (1992).
18

determinations made by the Service prior to these actions are 

not final. An agency determination of a particular issue that 

will not be reconsidered in subsequent agency proceedings 

may represent the consummation of the agency‟s 

decisionmaking process on that issue. Compare Fairbanks 

North Star Borough v. U.S. Army Corps of Engineers, 543 

F.3d 586, 591 -592 (9th Cir. 2008) (finding of Clean Water 

Act jurisdiction was consummation of decisionmaking 

process on jurisdiction because subsequent regulatory 

proceedings would not revisit this determination) with In re 

Sac & Fox Tribe of Miss. in Iowa/Meskwaki Casino Litig., 

340 F.3d 749, 756 (8th Cir. 2003) (temporary closure order 

not final because order was preliminary and subject to further 

administrative review).5 The Service does not claim that it 

will revisit the propriety of imposing a moratorium on new 

drilling in the ANF during the forest-wide EIS, and by the 

time the EIS is completed, the propriety of the moratorium 

will be moot. Accordingly, the Marten Statement represents 

the consummation of the Service‟s decisionmaking process 

with respect to the moratorium on new drilling.

 

5

The Service points out that the Ninth Circuit 

ultimately found no final agency action in Fairbanks. 543 

F.3d at 593-94. However, this holding rested on the second 

Bennett factor – whether agency action has concrete legal 

consequences. Id. The jurisdictional finding at issue in 

Fairbanks did not affect rights and obligations because “[i]t 

does not itself command Fairbanks to do or forbear from 

anything; as a bare statement of the agency‟s opinion, it can 

be neither the subject of „immediate compliance‟ nor of 

defiance.” Id. As we explain below, this is not true of the 

moratorium on new drilling imposed by the Marten 

Statement.
19

Second, the Service‟s moratorium on new drilling has 

significant legal consequences for mineral rights owners: 

they must stop all new drilling or face criminal penalties. See 

Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967) (finding 

final agency action “where a regulation requires an immediate 

and significant change in the plaintiffs‟ conduct of their 

affairs with serious penalties attached to noncompliance”). 

The Service contends that its moratorium on new drilling is 

analogous to a merely procedural or jurisdictional 

determination that has the incidental effect of delaying 

agency proceedings. We disagree. As the District Court 

found, the moratorium represents a “sea change” in the 

Service‟s policy regarding mineral rights that directly 

prohibits mineral rights owners from engaging in new 

drilling, under threat of criminal penalties. Minard Run II, 

2009 WL 4937785, at *22. The burden imposed by the 

moratorium goes far beyond “the expense and annoyance of 

litigation [that] is part of the social burden of living under 

government.” FTC v. Standard Oil Co., 449 U.S. 232, 238, 

244 (1980) (filing of complaint commencing agency 

enforcement action was not final agency action); see also 

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 47 

(1938) (agency decision to hold hearing is not reviewable); 

Univ. of Med. and Dentistry of N.J. v. Corrigan, 347 F.3d 57, 

69 (3d Cir. 2003) (initiation of audit not final agency action); 

Mobil Exploration & Producing U.S., Inc. v. DOI, 180 F.3d 

1192, 1200-01 (10th Cir. 1999) (letter requesting information 

not final agency action). Nor is this a case in which an 

agency‟s procedural determinations have the incidental effect 

of delaying the acquisition of a concededly necessary 

regulatory decision. See, e.g., Aluminum Co. of Am. v. United 

States, 790 F.2d 938, 941 (D.C. Cir. 1986) (ICC assertion of 
20

original jurisdiction that would require more “costly and 

time-consuming proceedings” than alternative review method 

was not final agency action). Rather, the purpose of the 

Service‟s change in policy is to suspend new drilling and its 

authority to do so is precisely what is at issue here.

Finally, we note that final agency action “is to be given 

a pragmatic definition.” Exxon Corp. v. FTC, 588 F.2d 895, 

901-02 (3d Cir. 1978). We have identified a number of 

pragmatic considerations relevant to whether agency action is 

final:

(1) whether the decision represents the agency‟s 

definitive position on the question; (2) whether 

the decision has the status of law with the 

expectation of immediate compliance; (3) 

whether the decision has immediate impact on 

the day-to-day operations of the party seeking 

review; (4) whether the decision involves a pure 

question of law that does not require further 

factual development; and (5) whether 

immediate judicial review would speed 

enforcement of the relevant act.

Corrigan, 347 F.3d at 69 n.7. Each of these considerations 

favors a finding of finality here. The Marten Statement 

represents the Service‟s final position on the need for a 

drilling moratorium, which will not be revisited in subsequent 

proceedings. It is evident that the Service expects mineral 

owners to refrain from new drilling during the moratorium 

and has threatened criminal enforcement against mineral 

owners who proceed with drilling without an NTP. The 

moratorium on new drilling directly affects the daily 
21

operations of mineral owners and related businesses and has

already caused them significant losses. Whether the Service‟s 

moratorium is required by NEPA and consistent with the 

APA are pure questions of law that require no further factual 

development. Finally, our review of the claims presented 

here will facilitate a prompt and efficient resolution of

questions regarding the scope of the Service‟s authority over 

private mineral rights in the ANF and its obligations under 

NEPA.6 We therefore conclude that the Service‟s 

moratorium on new drilling in the ANF, as reflected in the

Settlement Agreement and the Marten Statement, constitutes 

final agency action.7 Accordingly, the District Court had 

 

6 We note that a number of mineral owners have 

brought individual challenges to NTPs recently issued by the 

Service, which raise many of the same issues presented in this 

case. See Duhring Resource Co. v. U.S. Forest Serv., No. 07-

314 (W.D. Pa.); Catalyst Energy, Inc. v. U.S. Forest Serv., 

No. 09-70 (W.D. Pa.); Seneca Res. Corp. v. U.S. Forest Serv., 

No. 09-154 (W.D. Pa.). In each of these cases, a mineral 

rights owner contends that the Service has violated its

property rights and constitutional rights by prohibiting oil and 

gas development without an NTP, delaying the issuance of 

his NTP beyond 60 days, and imposing unreasonable 

conditions in the NTP. Because these cases challenge NTPs 

already issued, there is little question that there is final agency 

action in each of these cases. However, we believe that the 

issues presented both in those cases and in this appeal are 

better resolved comprehensively in this appeal rather than 

addressing them piecemeal in a series of cases.

7

Strictly speaking, the Marten Statement is final 

agency action, and the Settlement Agreement is an
22

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

decision.

III. The Preliminary Injunction

To obtain a preliminary injunction, a plaintiff must 

show: “(1) a likelihood of success on the merits; (2) that it 

will suffer irreparable harm if the injunction is denied; (3) 

that granting preliminary relief will not result in even greater 

harm to the nonmoving party; and (4) that the public interest 

favors such relief.” Kos Pharm. v. Andrx Corp., 369 F.3d 

700, 708 (3d Cir. 2004). In reviewing a preliminary 

injunction, we “exercise plenary review over the district 

court‟s conclusions of law and its application of law to the 

facts, but review its findings of fact for clear error.” Id. We 

review the court‟s ultimate decision to issue an injunction for 

abuse of discretion. See Nken v. Holder, 129 S. Ct. 1749, 

1761 (2009); Novartis Consumer Health, Inc. v. Johnson & 

Johnson-Merck Consumer Pharmaceuticals Co., 290 F.3d 

578, 595 (3d Cir. 2002).

A. Likelihood of Success on the Merits

The District Court found that appellees were likely to 

prevail on the merits of two claims: (1) issuance of an NTP is 

not a major federal action for which prior NEPA analysis is 

required, and (2) the Settlement Agreement and the Marten 

Statement are substantive rules that were not preceded by 

notice and comment procedures as required by the APA. We 

consider each in turn.

 

“intermediate agency action” which is “subject to review on 

the review of the final agency action.” 5 U.S.C. § 704.
23

1. Whether Issuance of an NTP Must be 

Preceded by NEPA Analysis

The merits of appellees‟ first claim turns on whether

the issuance of an NTP is a “major federal action[] 

significantly affecting the quality of the human environment,” 

which under NEPA must be preceded by an appropriate 

environmental analysis. 42 U.S.C. § 4332(C). We have 

identified three types of agency action that typically 

constitute “major federal action”: “first, where the agency 

itself undertook a project; second, where the agency 

supported a project by contract, grant, loan, or other financial 

assistance; and third, where the agency enabled the project by 

lease, license, permit, or other entitlement for use.” N.J. 

Dept. of Envt’l. Prot. and Energy v. Long Island Power Auth., 

30 F.3d 403, 417 (3d Cir. 1994). But “[f]ederal approval of a 

private party‟s project, where that approval is not required for 

the project to go forward, does not constitute a major federal 

action.” Id.; see also Sierra Club v. Penfold, 857 F.2d 1307, 

1310 (9th Cir. 1988). Accordingly, the dispositive question is 

whether mineral owners are required to obtain the approval of 

the Service, in the form of an NTP, before drilling in the 

ANF. We conclude that such approval is not necessary.

The Service points out that Congress has broad 

authority under the Property Clause of the Constitution to 

regulate land owned by the federal government as well as use 

of private land that affects federal land. See Kleppe v. New 

Mexico, 426 U.S. 529, 540 (1976). Congress has also 
24

authorized the Service to regulate use of national forests.8 

The Organic Act authorizes the Service “to make such rules 

and regulations . . . as will insure the objects of [forest]

reservations, namely, to regulate their occupancy and use and 

to preserve the forests thereon from destruction.” 16 U.S.C. §

551. “Special use regulations” promulgated under the Act 

provide that “all uses of National Forest System land . . . are 

designated „special uses‟ and must be approved by an 

authorized officer.” 36 C.F.R. § 251.50(a). The Service

argues that drilling by mineral owners in the ANF is a 

“special use” subject to its approval. See Duncan Energy v. 

U.S. Forest Service, 50 F.3d 584, 589 (8th Cir. 1995) 

(Duncan I) (special use regulations apply to mineral owners‟ 

access to land purchased under the Bankhead-Jones Farm 

Tenant Act).

We disagree. As a preliminary matter, we note that the 

Service‟s regulatory authority over Weeks Act land is not as 

straightforward as it claims. The Organic Act‟s grant of 

regulatory authority applies to “the public forests and national 

forests which may have been set aside or which may be 

hereafter set aside under section 471 of this title.” 16 U.S.C. 

§ 551. Section 471 (now repealed) authorized the President 

to designate already owned federal lands as national forests, 

but did not authorize the purchase of private land, including 

land with reserved or outstanding rights. 16 U.S.C. 471, 

repealed by Pub. L. 94–579, title VII, § 704(a), 90 Stat. 2792

(1976). When the Organic Act was passed, the regulation of 

 

8

The statutes authorize regulation by the Secretary of 

Agriculture, who has delegated much of his statutory 

authority over the national forests to the Chief of the Forest 

Service. See 7 C.F.R. § 2.60.
25

“occupancy and use” did not contemplate the regulation of 

access by a cotenant. 

The Weeks Act was the first law to authorize federal 

acquisition of private land for forest preservation. It provides

that land acquired under the Act “shall be permanently 

reserved, held, and administered as national forest lands 

under the provisions of section 471 of this title,” 16 U.S.C. § 

521. This provision “arguably requires treating such land as 

if it had been reserved under section 471” and could therefore

be subject to the Service‟s regulatory authority under the 

Organic Act. United States v. Srnsky, 271 F.3d 595, 601 (4th 

Cir. 2001). However, even if Congress meant by this 

language to subject Weeks Act land to the Service‟s 

regulatory authority under the Act, it intended to authorize the 

Service to regulate the exercise of reserved or outstanding

rights by a joint owner of Weeks Act land.

Indeed, section 9 of the Weeks Act suggests that this 

was not Congress‟s intent. Section 9 governs the acquisition 

of forest land, and provides:

Such acquisition by the United States shall in 

no case be defeated because of located or 

defined rights of way, easements, and 

reservations, which, from their nature will, in 

the opinion of the Secretary of Agriculture, in 

no manner interfere with the use of the lands so 

encumbered, for the purposes of this Act. Such 

rights of way, easements, and reservations 

retained by the owner from whom the United 

States receives title, shall be subject to the rules 

and regulations prescribed by the Secretary of 
26

Agriculture for their occupation, use, operation, 

protection, and administration, and such rules 

and regulations shall be expressed in and made 

part of the written instrument conveying title to 

the lands to the United States; and the use, 

occupation, and operation of such rights of way, 

easements, and reservations shall be under, 

subject to, and in obedience with the rules and 

regulations so expressed.

16 U.S.C. § 518 (emphasis added). Thus, under section 9, 

reserved rights – “rights of way, easements, and reservations 

retained by the owner from whom the United States receives 

title” – are subject to the regulations “expressed in and made 

part of the written instrument conveying title to the lands to 

the United States.” Id. 

The Service points out that nothing in this provision

provides that reserved mineral rights are subject only to 

regulations in the instrument of conveyance – it is possible 

that reserved rights are subject to the Service regulations 

contained in the written instrument of conveyance and to 

other regulations not contained in the instrument. There are 

two problems with this interpretation. First, it renders the 

provision superfluous: Congress would not have mandated 

the inclusion of regulations in deeds with reserved rights if 

those rights were subject to all generally applicable Service

regulations – the general regulatory authority granted under 

the Organic Act would have been sufficient. See Massie v. 

U.S. Dept. of Housing and Urban Dev., 620 F.3d 340, 352 

(3d Cir. 2010) (“a core tenet of statutory interpretation [is] 

that no provision shall be superfluous, void, or insignificant”)

(internal quotation marks omitted); In re Philadelphia 
27

Newspapers, LLC, 599 F.3d 298, 307 (3d Cir. 2010) (warning 

against “applying a general provision when doing so would 

undermine limitations created by a more specific provision”). 

Second, as the Fourth Circuit noted in Srnsky, the 

regulatory authority claimed by the Service “has no logical 

stopping point” and would therefore raise difficult 

constitutional questions. 271 F.3d at 604. For example, on 

the Service‟s view, it would have the authority to require any 

holder of reserved rights of any kind – even an easement or 

right of way – to obtain a permit prior to exercising their 

rights. This would effectively “wipe the National Forest 

System clean of any and all easements, implied or express” 

and dramatically reduce the value of reserved mineral and 

timber rights. Id. We do not believe that this is what 

Congress intended, and, like the Fourth Circuit, we are 

reluctant to construe the Weeks Act “„in a manner that could 

in turn call upon the Court to resolve difficult and sensitive 

questions arising out of the guarantees of the takings clause.‟” 

Id. (quoting United States v. Security Indus. Bank, 459 U.S. 

70, 82 (1982)). The better reading of the Weeks Act is that it 

“require[s] that any rules or regulations that the Secretary 

wishes to apply to easements reserved by the grantor must be 

„expressed in and made part of‟ the instrument of 

conveyance.” Srnsky, 271 F.3d at 602.

These considerations apply with even greater force to 

outstanding rights. Although the Weeks Act contains no 

limiting language regarding the regulations applicable to 

outstanding rights, this is because outstanding rights are 

created prior to conveyance to the United States and there is 

no opportunity to limit these rights by inserting regulations 

into the instrument defining these rights. Moreover, the 
28

language of the Weeks Act indicates that Congress expected 

the United States to be bound by the terms of outstanding 

rights – purchase of land with outstanding rights is permitted 

only where such rights “from their nature will, in the opinion 

of the Secretary of Agriculture, in no manner interfere with 

the use of the lands so encumbered, for the purposes of this

Act.” 16 U.S.C. § 518. This limitation only makes sense if 

the Service is bound by the terms of outstanding rights and 

cannot simply invoke its regulatory authority to override any 

private use of outstanding rights that it considers inconsistent 

with the purposes of the Weeks Act. Additionally, as with 

reserved rights, we are reluctant to construe the Weeks Act in 

a manner raising difficult constitutional takings questions 

absent a clear indication of congressional intent.9

As the District Court recognized, Duncan Energy Co. 

v. U.S. Forest Service, 50 F.3d 584 (8th Cir. 1997) (Duncan I) 

does not support the Service‟s broad claim of regulatory 

 

9

The Service‟s construction of the Weeks Act and the 

Organic Act as conferring regulatory authority over 

outstanding rights is not entitled to deference. This 

interpretation was adopted in a 2007 General Counsel opinion 

(J.A. 380-83 & n.5), not in a formal adjudicatory or 

rulemaking proceeding, and thus is not entitled to Chevron

deference. See De Leon-Ochoa v. U.S. Att’y Gen., 622 F.3d 

341, 348-49 (3d Cir. 2010) (citing United States v. Mead 

Corp., 533 U.S. 218 (2001)). Even Skidmore deference is 

unwarranted here, because the Service‟s current interpretation 

is an unexplained departure from its longstanding view that 

its regulations do not apply to outstanding mineral rights. See 

Wyeth v. Levine, 129 S. Ct. 1187, 1201 (2009).
29

authority.10 In Ducan I, the Eighth Circuit held that a private 

mineral rights owner seeking to drill in a national forest 

acquired under the Bankhead-Jones Farm Tenant Act, 50 Stat. 

525 (1937) (BJFTA), codified as amended at 7 U.S.C. §

1010, et seq., was required to obtain authorization from the 

Service before beginning mining operations. 50 F.3d at 589-

91. The court acknowledged that the mineral rights owner 

had a right under state law to reasonable use of the surface 

estate and thus the Service did not have “veto authority” over 

mineral rights owners‟ surface use. Id. at 589. But the

Service‟s “special use regulations” governed surface use by 

mineral rights owners and empowered it to determine whether 

an owner‟s proposed surface use was reasonable. Id. at 590-

91. To respect the rights of the mineral owner, the Service 

was required to process requests for surface use within a 

reasonable time – generally 60 days. Id.; see also Duncan 

Energy Co. v. U.S. Forest Serv., 109 F.3d 497, 499 (8th Cir. 

1997) (Duncan II) (clarifying that an inflexible 60-day limit 

was not required). The court found that this rule was

 

10 The Fifth Circuit‟s recent decision in DunnMcCampbell Royalty Interest, Inc. v. National Park Service, 

630 F.3d 431 (5th Cir. 2011), is also inapposite. That case 

considered land acquired under the Enabling Act of 1962, 16 

U.S.C. §§ 459d-459d-7, not under the Weeks Act, and the 

question presented by the case was whether a Texas statute 

consenting to federal acquisition of the land protected both 

reserved and outstanding rights. Id. at 433. The Fifth Circuit 

found that the plain language of the consent statute extended 

only to reserved rights, but not outstanding rights. Id. at 436-

37. Because the language of the Texas statute is different 

from the relevant provision of the Weeks Act, this case is not 

relevant.
30

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

92. 

Duncan I is inapposite for several reasons. First, the 

land at issue in Duncan I was not acquired under the Weeks 

Act, but under BJFTA, which does not contain the limiting 

language of the Weeks Act discussed above. Compare Pub. 

L. No. 75-210, 32(a), 50 Stat. 522, 525-26 (1937) with 16 

U.S.C. 518. Second, Duncan I found that the authority 

asserted by the Service was consistent with the rights of 

mineral owners under North Dakota property law. Here, by 

contrast, Pennsylvania law is flatly inconsistent with the 

authority asserted by the Service. In a case very similar to 

this one, the Pennsylvania Supreme Court rejected a claim by 

the Pennsylvania Department of Conservation of Natural 

Resources that, as surface owner, it could “impose conditions 

restraining those exercising their rights to the subsurface.” 

Belden & Blake Corp., 969 A.2d at 532. The Court explicitly 

held that a surface owner has no right to determine what 

constitutes reasonable use in the first instance, and a mineral 

rights owner is under no obligation to obtain the surface 

owner‟s approval prior to accessing the surface to extract 

mineral rights. Id. Third, the Service‟s multi-year 

moratorium on new drilling could not be justified even under 

the Eighth Circuit‟s rulings in Duncan I and Duncan II. In

Duncan II, the Eighth Circuit held that the Service must be 

accorded some flexibility in issuing permits and could not be

held to a strict, 60-day limit. 109 F.3d at 501. But the 

indefinite suspension of NTPs for several years goes far 

beyond the type of delay contemplated in Duncan II. See 109 

F.3d at 500 n.1 (mineral rights owner‟s applications for 

surface access were processed in 61, 74, and 90 days and that 
31

owner had improperly taken unilateral action when 

application had not been processed for 100 days).

11

In sum, the Service does not have the broad authority it 

claims over private mineral rights owners‟ access to surface 

lands. Its special use regulations do not apply to outstanding 

rights and the limited regulatory scheme applicable to the vast 

majority of reserved rights in the ANF does not impose a 

permit requirement.12 Although the Service is entitled to 

 

11 Because we find that the Service does not have the 

regulatory authority it claims under the Organic Act and 

Weeks Act, we need not consider the Service‟s arguments 

that federal common law would govern the United States‟ 

property rights or that federal law preempted state property 

law. See Duncan I, 50 F.3d at 591. In any case, the Service 

waived these arguments when it conceded before the District 

Court that Pennsylvania law was not preempted and argued 

that its new drilling moratorium was consistent with 

Pennsylvania law. (J.A. 647-48, 1393-95); Minard Run II, 

2009 WL 4937785, at *13.

12 The vast majority of the reserved mineral rights in 

the ANF are 1911 rights, which the District Court found do 

not impose a permit requirement or empower the Service to 

unilaterally determine what constitutes reasonable surface 

use. Minard Run II, 2009 WL 4937785, at *3. The Service

claims that some versions of the 1911 regulations require its

approval of the location of access roads and buildings. 

(Appellant‟s Br. 44 (citing J.A. 384-86, 449, 454, 2421-28).) 

However, the Service‟s 1984 ANF Handbook states that 1911 

rights do not impose a permit requirement (J.A. 255), and 

appellees‟ expert opined without contradiction that the sevensection version of the 1911 regulations considered by the 
32

notice from owners of these mineral rights prior to surface 

access, and may request and negotiate accommodation of its 

state-law right to due regard, its approval is not required for 

surface access. An NTP is an acknowledgment that 

memorializes any agreements between the Service and a 

mineral rights owner, but it is not a permit. Accordingly, on 

the record before it, the District Court properly concluded that

issuance of an NTP is not a “major federal action” under 

NEPA and an EIS need not be completed prior to issuing an 

NTP. See Sierra Club v. Penfold, 857 F.2d 1307, 1310 (9th 

Cir. 1988); Long Island Power Auth., 30 F.3d at 417. The

court therefore correctly determined that appellees were likely 

to succeed on their claim that NEPA does not require the 

Service to conduct an environmental analysis prior to issuing 

an NTP.

2. Whether the APA Requires Notice and 

Comment Prior to Implementation of the Service’s 

Policy on Issuance of NTPs

The APA requires an agency to provide public notice 

and an opportunity to comment before promulgating a 

legislative or substantive rule. See 5 U.S.C. 553(b)-(c); 

 

District Court, which does not require Service approval of 

roads or locations, was the “standard version.” (J.A. 160.) 

The only deed included in the record by either party also 

contains this version of the rules. (J.A. 276.) The court 

therefore did not commit clear error in finding that 1911 

rights “typically” incorporated the standard version of the 

1911 regulations, and that these regulations did not impose a 

permit requirement. Minard Run II, 2009 WL 4937785, at 

*3.
33

Lincoln v. Vigil, 508 U.S. 182, 196 (1993); Chao v. 

Rothermel, 327 F.3d 223, 227 (3d Cir. 2003). Both the 

Settlement Agreement and the Marten Statement are “rules” 

within the meaning of the APA, because they are “agency 

statement[s] of general . . . applicability and future effect 

designed to implement, interpret, or prescribe law or policy.” 

5 U.S.C. § 551(4). The Service argues that both the 

Settlement Agreement and the Marten Statement are not 

substantive rules, but rather “rules of agency organization, 

procedure, or practice” excepted from the APA‟s notice and 

comment requirement.13 See 5 U.S.C. § 553(b). We 

disagree. 

As we have explained:

Legislative rules are subject to the notice and 

comment requirements of the APA because they 

work substantive changes in prior regulations,

or create new law, rights, or duties. . . . 

Interpretative, or procedural, rules do not 

themselves shift the rights or interests of the 

parties, although they may change the way in 

which the parties present themselves to the 

agency.

 

13 The Service also contends that the decision to 

perform a NEPA analysis is not a “rule” under the APA, but 

this misses point. Appellees do not object to the Service‟s 

conducting a NEPA analysis; they object only to its 

moratorium on issuing NTPs until the NEPA analysis is 

complete.
34

SBC, Inc. v. FCC, 414 F.3d 486, 497-98 (3d Cir. 2005)

(citations and quotation marks omitted). The Settlement 

Agreement and the Marten Statement create new duties for 

mineral rights owners: the purpose and effect of the 

Settlement Agreement and the Marten Statement were to

prevent new drilling by mineral rights owners during the 

course of a multi-year EIS. Additionally, in considering 

whether a rule makes “substantive changes in prior 

regulations” or “create[s] new law, rights, or duties,” we 

consider whether the rule will “have a substantive adverse 

impact on the challenging party.” Chao, 327 F.3d at 227. 

The Service‟s new policy has a “substantive adverse impact” 

on mineral rights owners because it directly interferes with

their property rights to enter ANF lands and drill for oil and 

gas. Accordingly, the District Court properly found that 

appellees were likely to succeed on the merits of their claim 

that the Settlement Agreement and the Marten Statement are 

not merely procedural rules, but substantive rules that must be 

promulgated pursuant to the notice and comment procedures 

of the APA.

B. Irreparable Harm

The District Court found that the Service‟s moratorium 

on new drilling irreparably harmed appellees because it 

infringed their property rights and threatened bankruptcy or 

closure for some businesses. The Service argues that the 

District Court‟s finding that some businesses would suffer 

temporary economic losses and might go bankrupt was 

insufficient to establish irreparable harm. We disagree. As a 

general matter, “a purely economic injury, compensable in 

money, cannot satisfy the irreparable injury requirement,” 

Frank’s GMC Truck Ctr., Inc. v. GMC, 847 F.2d 100, 102 (3d 
35

Cir. 1988), but “an exception exists where the potential 

economic loss is so great as to threaten the existence of the 

movant‟s business.” Vaqueria Tres Monjitas, Inc. v. Irizarry, 

587 F.3d 464, 485 (1st Cir. 2009); see also Doran v. Salem 

Inn, Inc., 422 U.S. 922, 932, (1975) (irreparable injury shown 

where business “would suffer a substantial loss of business 

and perhaps even bankruptcy” absent injunctive relief). Here, 

the District Court carefully considered and ultimately credited

the testimony of several business owners that the new drilling 

moratorium had dramatically affected their business and 

would probably cause them to shut down or go bankrupt if it 

continued. Minard Run II, 2009 WL 4937785, at *15-16

(citing J.A. 971-72, 978-79, 985-88, 1127-36).

Additionally, where “interests involving real property 

are at stake, preliminary injunctive relief can be particularly 

appropriate because of the unique nature of the property 

interest.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 

(10th Cir. 2009).

14

 This is particularly true of the mineral 

 

14 Accord Girl Scouts of Manitou Council, Inc. v. Girl 

Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1090 (7th Cir. 

2008) (“As a general rule, interference with the enjoyment or 

possession of land is considered „irreparable‟ since land is 

viewed as a unique commodity”); East Tenn. Natural Gas Co. 

v. Sage, 361 F.3d 808, 828-29 (4th Cir. 2004) (excluding 

owner from real property constituted irreparable injury); 

Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC 

Mortg. Capital, Inc., 274 F.3d 1085, 1097 (6th Cir. 2001) 

(foreclosure causes irreparable injury because it results in loss 

of “unique real property”); Carpenter Tech. Corp. v. City of 

Bridgeport, 180 F.3d 93, 97 (2d Cir. 1999) (condemnation of 

real property constitutes irreparable harm because condemnee 
36

rights at stake in this case. Under Pennsylvania law, oil and 

gas resources are subject to the “rule of capture,” which 

permits an owner to extract oil and gas even when extraction

depletes a single oil or gas reservoir lying beneath adjoining 

lands. Barnard v. Monongahela Natural Gas Co., 65 A. 801 

(Pa. 1907). The adjoining owner‟s only remedy against such 

drainage is to “go and do likewise.” Id. The Service‟s 

moratorium on new drilling deprives mineral owners in the 

ANF of this remedy and will cause them to lose oil and gas to 

other landowners drilling on private lands adjoining the ANF, 

which are not subject to the moratorium.

15 (J.A. 155-56.) 

Therefore, the moratorium also causes irreparable injury to 

mineral rights owners by depriving them of the unique oil and 

gas extraction opportunities afforded them by their mineral 

rights. See Siegal, 552 F.3d at 1210 (finding irreparable 

injury where interference with property rights caused loss of 

unique opportunities).

C. The Balance of the Equities and the Public 

Interest

Like the District Court, we consider together the final 

two elements of the preliminary injunction framework – the 

 

has no adequate remedy at law); K-Mart Corp. v. Oriental 

Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (“Real estate 

has long been thought unique, and thus, injuries to real estate 

interests frequently come within the ken of the chancellor”).

15Because the ANF is not a single continuous piece of 

land – the forest is dotted with numerous private holdings 

(J.A. 155-56, 2258, 2260) – this concern is not limited to 

mineral rights located on the periphery of the forest.
37

public interest and the balance of the equities. See Nken, 129 

S. Ct. at 1762 (“assessing the harm to the opposing party and 

weighing the public interest . . . merge when the Government 

is the opposing party”). While the Service has an important 

statutory duty to protect and maintain the natural resources of 

the ANF, the District Court was not required to accept at face 

value its claims that a preliminary injunction will prevent it 

from doing so. Rather, the court was within its discretion to 

carefully consider the evidence presented by the parties to 

determine whether appellees had shown that the public 

interest favored an injunction. See id. at 1761; but cf. Winter 

v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 

377 (2008) (noting the need for special deference to 

“„complex, subtle, and professional decisions as to the 

composition, training, equipping, and control of a military 

force,‟ which are „essentially professional military 

judgments‟”).

The District Court noted that the Service had 

successfully completed an EIS in 1986 without imposing a 

moratorium on new drilling or suspending the Minard Run I

framework. Id. at *6 n.2. The Service also conceded that this

framework had adequately protected its interest in preserving 

the environmental resources of the ANF. Id. at *15 (citing 

J.A. 652-53). However, the Service contended – and 

appellees vigorously disputed – that there was a recent 

significant increase in drilling in the ANF justifying a 

different approach to the current EIS. Id. at *14 (citing J.A. 

337-38, 653-54, 1280-81.) The District Court considered the 

conflicting evidence and found that although the number of 

wells had increased recently, “drilling activity in the ANF is 

somewhat cyclic in nature.” Id. at *14. Considered in 

historical context, “the total number of active wells in the
38

ANF immediately preceding the drilling ban was not 

appreciably greater than the number of existing wells in the 

mid-1980s, when the Minard Run [I] framework for 

processing Notices to Proceed was utilized.” Id. The Service 

has not challenged this finding on appeal, and it is amply 

supported by the record. 

Because the Service could not credibly distinguish the 

present circumstances from the preceding decades in which 

the Minard Run I framework was concededly effective in 

protecting the ANF, it was not clear error for the District

Court to conclude that a preliminary injunction reinstating 

that framework would not harm the public interest or the 

interests of the Service in preserving the ANF. By contrast, 

granting the injunction would vindicate the public‟s interests

in aiding the local economy, see Earth Island Institute v. 

Carlton, 626 F.3d 462, 475 (9th Cir. 2010), protecting the

property rights of mineral rights owners, see 16 U.S.C. 518, 

and ensuring public participation in agency rulemaking as 

required by the APA, 5 U.S.C. §§ 552-53. On the record 

before it, the District Court therefore did not err in finding 

that the balance of the equities and the public interest favored 

injunctive relief.

IV. Conclusion

For the reasons set forth above, we affirm the 

preliminary injunction entered by the District Court against 

appellants.