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Bear in the Woods: Environmental Law Blog

Wednesday, April 24, 2013

Local Right to Zone Gas Development Hangs in the Balance

In March 2012, seven municipalities, the Delaware Riverkeeper and a local health professional filed suit to declare portions of Act 13, Pennsylvania's oil and gas law, unconstitutional. The Commonwealth Court struck down the portion of the law that sought to preclude local municipalities from adopting zoning ordinances that applied to oil and gas operations. An appeal of that decision is before the Pennsylvania Supreme Court.

The Supremes have been operating since last May with six justices - three Dems and three Repubs. On May 1, the seat of convicted Justice Joan Orie Melvin will become open and Governor Corbett will be able to appoint a successor to fulfill her term with the concurrence of 2/3 of the Senate.  Since the Senate is split 27 (R) - 23 (D), Corbett will need 7 Dems to vote for confirmation of his nominee. Whoever is confirmed could be the deciding vote in the Act 13 litigation.

Senator Daylin Leach, Dem Chair of the Senate Judiciary Committee, sent a letter to Corbett appealing for a bi-partisan approach to the opening.  He offered five names of sitting Republican judges that would be acceptable. Here they are:

Judge Cheryl Allen, the only African American in the group, currently serves on Pennsylvania's Superior Court (an appellate court that largely handles criminal matters). She has a BS from Penn State and law degree from Pitt (presumably she would recuse herself from any case arising out of revival of the Pitt/Penn State football rivalry). She was a public school teacher right out of college and eventually got appointed to the Allegheny County Common Pleas Court, where she spent 12 years in the Juvenile Division working with children and families before election to the Superior Court. Judge Allen ran for the Republican nomination to the Supreme Court in 2009 but, coincidentally, she lost that race to none other than Joan Orie Melvin. 

Judge Correale Stevens, is the President Judge of Superior Court - where Judge Allen sits. He received a BA from Penn State (go Lions - that's two in a row), and JD from Dickinson. He hails from Hazelton in Luzerne County, where he was a city solicitor, state representative, district attorney and, eventually, a Common Pleas Court judge. Judge Stevens apparently enjoys outdoor challenges, as he lists graduation from the Outward Bound Adventure program on his official biography. He also has a bit of a sense of humor - when someone tried to break into his Hazleton Office, he quipped “Why would someone want to break into a court office? I don’t know unless he wants to read how long he’s going to be in jail." Not only that, he actually has his own television show where he is interviewed by a guy named Sam Lesante - apparently a Northeast Pennsylvania fixture reminiscent of the great Joe Franklin. 

Judge Kathrynann Durham is from Delaware County and another nominee with experience on Common Pleas Court. Durham got her BA at Widener and JD from Delaware Law. She spent seventeen years in the State House representing the 160th District before being nominated to the Court by Gov. Tom Ridge. Like Allen, Durham spent time teaching in public school after college. She does not appear to have practiced law outside of her court experience. When nominated in 2001, Durham credited her mother, Catherine T. Walrath, a widow who raised five children while operating a flower shop in Parkside. "She had a reputation for being able to get things done. . . . She never turned anyone away," 

Judge Thomas Branca is another Common Pleas Court Judge - this time from Montgomery County. He got his BA from Ursinus College, and JD from Pitt. Before being elevated to the bench and unlike any of the other four, Branca worked on the public defender side of the aisle from '73-'76, and served as chief public defender for Montgomery County from 2000-02. Between stints as a PD, Judge Branca worked in private practice doing civil and criminal trials. It's not believed that the Judge is related to Ralph Branca, the former Dodger's pitcher who gave up the "shot heard round the world" to Bobby Thompson in the bottom of the ninth to hand the New York Giants the 1951 National League Pennant. 

Judge Carmen Minora rounds out Sen. Leach's list, the third Common Pleas Court Judge who hails from Lackawanna County.  Judge Minora got his BS from the University of Scranton, and is the only Duquesne University Law School grad amongst the five. In 2010, US Senators Casey and Specter submitted Minora and two others to the White House to fill vacancies on US District Court for the Middle District of Pennsylvania, but he was not eventually nominated for that position. Several years earlier, Sen. Specter asked George W. Bush to consider Minora for a position on the D.C. Circuit Court, but there was no opening at the time and he was not eventually nominated for that position either. Judge Minora was reportedly a lifelong friend of Senator Specter.

Monday, April 08, 2013

Whose lands are public lands?

“This land is your land” (Woodrow Wilson Guthrie, American Singer-Songwriter)

"We have been criticized by one or two organizations that portray themselves as representing everybody that has an interest in this. They're not local. That's why we're here today to meet with the people who do have a local, direct interest into this tract of land." (Richard Allan, DCNR Secretary)

"We learned a little bit, but did not have an opportunity for input. It wasn't set up for input," Dan Alters, President of the Lycoming County Audubon Society.

It is troubling when the Secretary of the DCNR, who is constitutionally obligated to conserve Pennsylvania’s state forests for all the citizens of the Commonwealth – present and future - indicates that only persons that live near our state parks and forests have enough of an interest in those lands to be granted an audience with the agency that will decide its fate.

As reported by the Sun-Gazette, the DCNR held a closed-door meeting last week with a hand-selected group of concerned citizens on how the agency intends to proceed to manage the “Clarence Moore” tracts of land in the Loyalsock State Forest.
It apparently is news to the Secretary that:
  • Pennsylvanians travel hundreds of miles to enjoy their public outdoor recreation areas;
  • Those that do not or cannot travel to our parks and forests still have an interest in those lands and a right to know how their government is managing them;
  • The Pennsylvania Constitution requires that he manage the Loyalsock State Forest for the enjoyment of current Pennsylvanians, but also for future generations Pennsylvanians not yet born; and
  • Conserving Pennsylvania’s iconic wild areas is not just an abstract idea - it is the greatest living reminder that conservation itself is a core Pennsylvanian and American value.
Indeed, America’s sportsmen - one such interested group - have consistently made clear that our conservation heritage is a priority issue on par with gun rights in this country.

Secretary Allan’s attempt to divide Pennsylvania’s conservationists by narrowly defining who participates in this important decision is ill conceived.  Secretary Allan should understand that the interest in this public resource reaches far beyond those that  live near the Loyalsock State Forest.

It was President Ulysses S. Grant that created our first Natonal Park by protecting one of America’s great living treasures - Yellowstone National Park.  Query whether any of us would now have the chance to think about loading our children into the car and taking that iconic summer trip out west if President Grant had thought about public resources the way that Secretary Allan apparently does.