A court recently rejected the government’s request to throw out a lawsuit brought by a company which held the rights to below-ground oil and gas resources on the Allegheny National Forest. The company filed a claim for damages against the US Forest Service based on the agency allegedly interfering with its rights to access and remove the oil and gas from underneath the national forest. The court noted that the federal government had waived its right to immunity from such claims if a private person would be liable under state law for doing the same thing. Because the court held that state law recognized the type of claim being brought, the court held that the lawsuit could proceed.
The court noted that at the turn of the 19th century, the land now comprising the Allegheny National Forest was privately owned. When the federal government purchased the land to create the national forest, it deliberately only purchased the surface estate, leaving the subsurface estate in private hands. Under Pennsylvania law, the subsurface estate is the dominant estate which means the owner has a right, with reasonable restrictions, to go on the surface of the land in order to conduct any extraction of the resources. And under the state law, improperly interfering with that right can be illegal. Thus, the court allowed the company to proceed with its claim for lost profits due to the alleged deliberate efforts by the US Forest Service to prevent it from drilling in the national forest.