Hellbender Journal Autumn 2002

It's a mild spring morning. The fisherman has found a perfect spot along Salmon Creek - a popular fishing area in the Allegheny National Forest, Forest County. The woods are calm and peaceful. He listens to the sound of the birds singing and the brook babbling as he fishes the creek.

Two years later, the fisherman returns to Salmon Creek. But things have changed. Pennsylvania General Energy is drilling a new oil and gas well. The noise is disturbing but it's the creek itself that catches his attention. The creek is filled with sediment washing out from the drilling sites. There are no fish to catch in the area.

This is a true story reported by fishermen who have tried to fish Salmon Creek over these past two years. What once was a peaceful place for hikers, fishermen, and hunters to explore is now an oil field fragmenting the once majestic mature-growth forest.

Ryan Talbott was raised in Forest County. Having visited Salmon Creek often throughout his life, it should be no surprise that he is particularly fond of the area. Just a few years ago Ryan was camping out along the banks of Salmon Creek, enjoying the peaceful solitude that only the older forest can provide. But in 2000, as PGE moved into his favorite piece of forest, Ryan saw much of this special place begin to be obliterated. The camping spot he enjoyed just a few years earlier now stood near the "banks" of an oil well pad, not just Salmon Creek.

I understood Ryan's story from the start. Salmon Creek is a special place to me too. My experience does not go back as far, but I have been camping there for the past 7 to 8 years and have come to enjoy its many features. So it was that on Christmas Day 2001, I spent half the day driving home from visiting with family. I was giving up the day after Christmas, where I normally visit my Uncle and Aunt's house where my Dad and his brother's families get together every year. On December 26, 2001, Ryan and I filed an appeal before the Pennsylvania Environmental Hearing Board (EHB) challenging PGE's permits to put in another 50 wells at Salmon Creek.

One week later we filed a special petition for a Temporary Supersedeas which would force a halt to the logging, road building, and drilling associated with the development. The temporary halt would pave the way for a hearing before the Judge and the possibility of a more permanent stop to the construction activities. We didn't have an attorney, just our strong wills, our love for Salmon Creek...and the Pennsylvania Clean Streams Law.

A few days later, we got a call from the offices of the Honorable Bernard Labuskes. A telephone conference was scheduled for a couple days later to discuss the Temporary Supersedeas. Two attorneys represented the Pennsylvania Department of Environmental Protection (DEP) which issued the permits, but they would not take a position on our motion. So, we argued the merits of our case with the two oil company attorneys from Pittsburgh and Warren. The call started out well, but when it was done we weren't sure what to expect. Judge Labuskes told us to expect a decision on the temporary order shortly.

One hour later, Ryan and I watched as the order slowly came through over the fax. "REQUEST GRANTED" it read. We were overjoyed. Construction at Salmon Creek would stop, for now.

The Judge scheduled a hearing for the following Thursday and Friday on our petition for Supersedeas. A Supersedeas would stop logging, construction, and drilling until the case is decided several months later. The next day we got a fax saying that it would be moved up to Tuesday and Wednesday giving us only four days (including the weekend) to prepare. With such short notice and without the funds for attorneys and expert witnesses there was no way we could prepare the case we wanted to prepare. But we felt confident in our case and we moved ahead.

On Tuesday morning at 9am, about twenty people gathered in the Pittsburgh hearing room for the EHB. Among those present were representatives from the DEP, PGE, and the media. There were some ADP supporters and a surprise appearance by Kevin Elliott, Supervisor of the Allegheny National Forest. We hadn't expected Elliott to show up, since federal employees need to get permission from Washington, D.C. in order to testify.

Many things can be said of the hearing. We clearly were novices at playing lawyer. But we held our own. We called a handful of witnesses from the state DEP, but some of our best witnesses turned out to be PGEÕs witnesses. Since Supervisor Elliott was present, we decided to call him as our witness. Elliott testified to many things. Most of all, he testimony revealed that his kndowledge of the Allegheny National Forest was greatly limited, but was giving unqualified support to the oil company all the same.

Just after lunch on Wednesday, we gave our closing statements. The Judge adjourned for fifteen minutes and returned to read his decision from the bench. His first words were that it was a very close decision. I tensed. And we lost. But the Judge went on to explain that he agreed with us on many of the legal facts of our case. It just wasn't enough to rule in our favor at that point. He made it clear that an expert witness would have moved the case in our favor.

And so the case continued. Throughout the spring and summer we conducted Discovery (obtaining records from the oil company and DEP) and briefing on Summary Judgement (Disposition of the case without trial). The oil company fought every move but we prevailed on most of the Discovery issues.

In June, the DEP released their expert report which documented what we already knew; that PGE's oil exploration activities have impaired Salmon Creek and two of its tributaries - Little Salmon Creek and Guiton Run. Immediately PGE tried to have the Court throw out the expert report as inadmissable due to some procedural issues regarding how it was filed. After a round of briefing, which included the startling revelation that PGE attempted to use its channels to the DEP to bury the report before we ever saw it, the Judge finally ruled that the information was far too important and relevant to the case to be thrown out.

In early September the Judge issued his opinion on Summary Judgement. It was a draw in the end. He agreed with our legal arguments. He agreed that laws were likely violated. But he refused to rule on many of the issues through summary judgement and would not issue any kind of relief to prevent the continuing damage. Now, I think the Judge may have been reluctant to do what was necessary and stop the construction. Courts are famously reluctant to act to stop development projects and this case is an excellent example of why, even as environmental laws are being broken, the Courts are a limited resource for resolution of these issues.

With Summary Judgement over, a trial was scheduled to be held in November. Just before the trial the Judge scheduled a visit to the Salmon Creek site with Ryan, myself, the DEP, and PGE for late October. While on the site tour the Judge had us sit down and discuss possible settlement. By this time, over 90% of the construction we had appealed was completed. We had little to lose by settling the case at this point and we jumped on the opportunity.

A settlement was reached and announced in late November. Under the settlement several key agreements were made. If PGE wants to conduct construction activities within 175 feet of the North Country Trail they would have to consult with Ryan and myself. If PGE wants to construct within the Salmon Creek recreation area (Management Area 6.1) they would have to consult with Ryan and myself. PGE would leave a 20-acre old growth patch off-limits including a 200 foot buffer. Finally, PGE and the DEP would pay for a study of dragonflies and damselflies along Salmon Creek next summer.

Now we need your help more than ever. PGE has applied for five new construction permits covering over 50 new oil and gas wells. While the settlement will add some limited protections to Salmon Creek it does not resolve the larger differences over impacts to forest habitats and the ongoing damage to Salmon Creek. We need volunteers willing to go out and document the activity in Salmon Creek. We also need citizen action immediately. Please take the time to write the DEP and demand that the storm-water construction permits for these wells be denied.

Write to:

Bob Gleeson

Re: Salmon Creek NPDES Permits PAS102706, PAS102707, PAS102708, PAS102709, and PAS102710.

Department of Environmental Protection

230 Chestnut Street

Meadville, PA 16335

rgleeson@state.pa.us

For talking points, visit our website at www.alleghenydefense.org. To volunteer, contact our office at (814) 223-4996.

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