By Jonathan Thrope
Minard Run Oil Co. v. United States Forest Service (Minard Run II) presents a traditional story with a unique cast of characters. The common law has long established that within a single parcel of property, the surface and the minerals can be separately owned. Where property has been so divided into a “split estate,” the law presumes that the mineral estate is dominant; unless the deed severing the property provides otherwise, an implied easement burdens the surface estate, permitting the mineral owner to use the surface as may be reasonably necessary to access the minerals. Minard Run II provides a twist on this common split estate arrangement — it asks what happens when a private party owns the minerals of a split estate and the federal government owns the surface. Specifically, in Minard Run II, private mineral owners sought access to oil and gas through surface owned by the federal government and included in a national forest. The case explores the extent to which the U.S. Forest Service, as the land management agency with jurisdiction over the surface, could regulate this surface access. Minard Run II ultimately holds, perhaps surprisingly, that the Forest Service had no regulatory authority beyond what a private surface owner would have in an analogous situation. This constraining outcome, however, was not the result of a flawed opinion, but instead an unexpectedly restrictive statute.
This less common split estate arrangement is prone to litigation. To date, there have been cases involving the Forest Service, the NPS, and the FWS disputing federal regulation of private mineral rights. This Comment will focus on the latest in this series of controversies. In Minard Run II, the U.S. Court of Appeals for the Third Circuit affirmed a preliminary injunction granted to private mineral rights owners in the Allegheny National Forest (“ANF”) that barred the Forest Service from continuing a moratorium on new oil and gas development within the ANF. The Forest Service had intended to continue the moratorium until it completed a forest-wide Environmental Impact Statement (“EIS”) for the ANF. The court rejected the applicability of NEPA, consequently holding that private mineral rights owners do not need Forest Service authorization before disturbing the ANF surface, provided they supply the Forest Service with sufficient notice of their surface use plans. This Comment will describe the factual background of the case, discuss the Court of Appeals’ opinion, and assess Minard Run II in the broader context of split estates involving the federal government as surface owner.
Cite as: Jonathan Thrope, Comment, Minard Run Oil Co. v. United States Forest Service, 36 Harv. Envtl. L. Rev. 567 (2012).