PA Environmental Defense Foundation v. Com. DCNR, & C. Adams Dunn ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Environmental :
Defense Foundation, :
Petitioner :
: No. 609 M.D. 2019
v. :
: Argued: September 17, 2020
Commonwealth Department of :
Conservation and Natural Resources, :
and Cindy Adams Dunn, in her :
official capacity as Secretary, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 6, 2021
Before this Court in our original jurisdiction are the preliminary objections
filed by the Pennsylvania Department of Conservation and Natural Resources (DCNR)
and Cindy Adams Dunn, Secretary of Conservation and Natural Resources, of DCNR
(Secretary Dunn), (collectively, DCNR), to an amended petition for review in the
nature of a mandamus action seeking declaratory relief filed by the Pennsylvania
Environmental Defense Foundation (Foundation).
I. Background
The Petitioner, the Foundation, is a non-profit organization incorporated
under the laws of Pennsylvania since 1986 for the purposes of protecting and
preserving the environmental interests of its members in Pennsylvania. Five members
of the Foundation have filed affidavits in support of the amended petition for review.
The Respondent DCNR is the “trustee” of the public trust set forth in
Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental
Rights Amendment (ERA).1
The Respondent Secretary Dunn, acting in her official capacity, is the
Secretary of DCNR, appointed by the Governor and approved by a majority of the
members elected to the Senate to serve as the head of DCNR.2 Secretary Dunn has
taken an oath to “support, obey and defend the Constitution of Pennsylvania.” PA.
CONST. art. VI, §3; Section 218 of The Administrative Code of 1929, Act of April 9,
1929, P.L. 177, as amended, 71 P.S. §78.
A. The Environmental Rights Amendment
In 1971, the Commonwealth adopted the ERA. The ERA imposes on
DCNR, as trustee, the duty to “conserve and maintain” Pennsylvania’s public natural
resources “for the benefit of all the people,” including generations yet to come. PA.
CONST. art. I, §27. The ERA defines the people’s rights to the public natural resources
to include “clean air, pure water, and . . . the preservation of the natural, scenic, historic
1
The ERA provides:
The people have a right to clean air, pure water, and the preservation of
the natural, scenic, historic and esthetic values of the environment.
Pennsylvania's public natural resources are the common property of all
the people, including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and maintain them for the
benefit of all the people.
PA. CONST. art. I, §27.
2
Section 301 of the Conservation and Natural Resources Act (CRNA), Act of June 28, 1995,
P.L. 89, as amended, 71 P.S. §1340.301.
2
and esthetic values of the environment.” Id. Pennsylvania’s state parks and forests are
public natural resources for which DCNR has trustee duties under the ERA.
B. The Conservation and Natural Resources Act
The CNRA created DCNR and tasked it with advocating for and
managing the ERA trust assets found in the State Forests and State parks, granting it
the primary mission
to maintain, improve and preserve State parks, to manage
State forest lands to assure their long-term health,
sustainability and economic use, to provide information on
Pennsylvania’s ecological and geological resources and to
administer grant and technical assistance programs that will
benefit rivers conservation, trails and greenways, local
recreation, regional heritage conservation and environmental
education programs across Pennsylvania.
Section 101(b)(1) of the CNRA, 71 P.S. §1340.101(b)(1).
C. The 2016 State Forest Resource Management Plan
Periodically, since 1955, DCNR’s Bureau of Forestry (Bureau) has
prepared forest resource management plans. Prior plans were adopted in 1970, 1985,
2003, and 2007. The most recent state forest resource management plan, and the one
currently in effect and at issue here, is the 2016 State Forest Resource Management
Plan (2016 SFRMP).3 It was the first update to the plan in nine years. (2016 SFRMP,
Letter from State Forester, Dan Devlin.)
The 2016 SFRMP is a 220-page document with a table of contents,
executive summary, appendix, colored photographs, and several introductory chapters,
followed by a series of 12 resource chapters that focus on the variety of resources, uses,
and values of state forest land. The resource chapters are the following:
3
The 2016 SFRMP is attached to the Foundation’s original Petition for Review as Exhibit
“A.”
3
Communications, Timber and Forest Products, Native Wild Plants, Wildlife, Water
Resources, Soils, Geologic Resources, Wildland Fire, Forest Health, Recreation,
Infrastructure, and Cultural Resources. Each resource chapter contains an
informational/educational section, an assessment of forest conditions,
accomplishments, guidelines, tools, resources, and strategies and tactics for addressing
forest threats and future management of Pennsylvania forests. An electronic version
of the 2016 SFRMP can be found online at
http://www.docs.dcnr.pa.gov/cs/groups/public/documents/document/dcnr_20032045.
pdf (last visited on 08/05/2021).
According to State Forester, Dan Devlin, the 2016 SFRMP and the others
before it were developed and relied on to “guide [DCNR’s] management and
communicate [DCNR’s] management principles and goals to the public.” Id. It is
described as
the primary instrument that the [B]ureau uses to plan,
coordinate, and communicate its management of the state
forest system. By relating the broad policies of the
[B]ureau’s strategic plan to focused goals and objectives and
specific operational guidelines, the SFRMP lays the
groundwork for ensuring that the overarching goal of state
forest management - ensuring sustainability - is achieved.
(2016 SFRMP at 24.)
It further states that it is “not a prescriptive manual,” but is intended to
provide the Bureau staff with context, background, goals, and objectives to consider
when making management decisions, and to provide Pennsylvanians with a description
of its management approaches, context, goals, and objectives as an educational
document. Id. at 20.
At issue here are certain statements contained in the 2016 SFRMP, which
the Foundation claims evidences DCNR’s breach of its fiduciary duties under the ERA
4
to protect, conserve, and maintain our State Forest public natural resources. (Amended
Petition for Review (Am. Pet.) ¶2.) The Foundation asks this Court to determine
questions arising from the 2016 SFRMP, and to direct DCNR to amend the 2016
SFRMP and administer State Forest trust assets consistent with its trustee duties, and
our Supreme Court’s 2017 decision in Pennsylvania Environmental Defense
Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (PEDF).
Specifically pertinent to this dispute are several statements made, and/or
positions taken, by DCNR throughout the 2016 SFRMP, relative to DCNR’s
management of the State Forests and its handling of monies resulting from oil and gas
drilling on State Forest land. The Foundation contends that extraction and sale of oil
and gas has caused and continues to cause immediate and long-term degradation to our
State Forests’ trust assets. The Foundation believes that DCNR’s plan for management
of our State Forests must be focused solely on ecosystem rehabilitation and
management, not on the economic value of these resources. The Foundation takes issue
with various statements extracted from the 2016 SFRMP, which it claims demonstrate
that DCNR is currently managing our State Forests in a manner that is inconsistent with
its fiduciary duties as trustee under the ERA and in derogation of PEDF. It also faults
DCNR for its failure to articulate in the 2016 SFRMP how the degradation, diminution,
and depletion of these assets by existing oil and gas development will be remedied.
The Foundation asks us to (1) declare that certain statements made by DCNR in the
2016 SFRMP are contrary to, and in violation of, the ERA and (2) compel DCNR to
amend the 2016 SFRMP so that it comports with DCNR’s responsibilities to manage
our State Forests in a manner consistent with its trustee duties under the ERA.
5
D. PEDF v. Commonwealth
In PEDF, the Foundation, i.e., the Petitioner in this case, commenced a
declaratory judgment action against the Commonwealth, challenging two recent
legislative enactments to The Fiscal Code,4 which directed that royalties, rents, and
bonuses generated from the leasing of State Forest and park lands for oil and gas
exploration and extraction be transferred to the General Fund to pay for government
operations in 2009 and 2010. The Foundation alleged that these legislative enactments
violated the ERA.
In considering the question, the Supreme Court reaffirmed the legal
principles pronounced by a plurality of the Court in Robinson Township v.
Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality), ultimately overruling the three-
part balancing test for determining if an action violates the ERA set forth in Payne v.
Kassab, 312 A.2d 86, 94 (Pa. Cmwlth. 1973) and establishing a new test that requires
courts to adhere to private trust principles when deciding whether the Commonwealth
is in violation of the ERA. PEDF, 161 A.3d at 933 n.26.
The Supreme Court analyzed each of the ERA’s three clauses, explaining
that the first clause is “a prohibitory clause declaring the right of citizens to clean air
and pure water, and . . . the preservation of natural, scenic, historic and esthetic values
of the environment.” Id. at 931. In other words, the first clause prohibits the
Commonwealth from acting in a way that unreasonably impairs citizens’ rights to a
clean environment. Id. The second clause of the ERA confers ownership of the state’s
“public natural resources” upon Pennsylvania’s citizens, including future generations.
Id. The third clause of the ERA establishes a public trust, with the Commonwealth as
4
Act of April 9, 1929, P.L. 343, as amended, 72 P.S. §§1-1805.
6
trustee, the natural resources as the corpus of the trust, and the citizens as the
beneficiaries of the trust. Id. at 932.
The Supreme Court enumerated trust principles and how they are to be
applied. “As a fiduciary, the Commonwealth has a duty to act toward the corpus of the
trust–the public natural resources–with prudence, loyalty, and impartiality.” Id. at 932.
The Court found that two fiduciary duties are imposed on the Commonwealth as a
trustee to prevent public or private harm to trust property: “a duty to prohibit the
degradation, diminution, and depletion” of our public resources and “a duty to act
affirmatively via legislation to protect the environment.” Id. at 911.
The Supreme Court explained that the Commonwealth’s trustee
obligations “create a right in the people to seek to enforce the obligations” and therefore
the public trust provisions of the ERA are “self-executing.” Id. at 974. In other words,
the public trust obligations of the ERA are enforceable regardless of whether there is
legislation providing for such enforcement.5
The Supreme Court went on to find that the minerals under state parks and
forests were “part of the corpus of Pennsylvania’s environmental public trust.” Id. at
936. The Court enforced the duty of the State to protect the environment and serve as
a trustee, rather than as a proprietor, of its “public natural resources.” Id. Although
PEDF did not bar DCNR from leasing state land for the exploration and development
of oil and gas, it required that royalties generated from production be committed to
“furthering the purposes, rights, and protections” of the ERA. Id. at 934-35. To that
end, the Supreme Court ruled that Sections 1602-E and 1603-E of the Fiscal Code6
5
John C. Dernbach et al., Recognition of Environmental Rights for Pennsylvania Citizens:
Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, 70 Rutgers
U.L. Rev. 803, 835 (2018).
6
Added by the Act of October 9, 2009, P.L. 537, 72 P.S. §§1602-E, 1603-E.
7
were facially unconstitutional because they allocated the royalties from the sale of oil
and gas to the General Fund, which was a “non-trust purpose” in violation of the ERA.
Id. at 938-39.7
II. The Foundation’s Amended Petition for Review
With PEDF as its springboard, the Foundation initiated this action on
November 5, 2019, by filing a petition for review in the nature of a complaint for
declaratory and mandamus relief. DCNR filed preliminary objections, and the
Foundation filed its amended petition for review on January 22, 2020.8 It is the
Foundation’s position that, as demonstrated throughout the 2016 SFRMP, DCNR has
been and is continuing to violate its fiduciary duties, under the ERA with respect to its
7
The Supreme Court remanded the matter to the Commonwealth Court to decide whether
bonuses and rental payments deposited into the General Fund to pay for government operations in
2009 and 2010 pursuant to two fiscal enactments were part of the trust corpus. On July 29, 2019, this
Court published its decision on remand holding that bonuses and rental payments were not for the
severance of natural resources but were consideration for the exploration for oil and gas on public
land, and therefore, they were not part of the trust corpus. Therefore, Sections 1604-E and 1605-E of
the Fiscal Code and Section 1912 of the Supplemental General Appropriations Act of 2009 were not
facially unconstitutional. Pennsylvania Environmental Defense Foundation v. Commonwealth, 214
A.3d 748, 751 (Pa. Cmwlth. 2019). On August 12, 2019, the Foundation filed an appeal to the
Pennsylvania Supreme Court, and the Court reversed this Court’s decision. Pennsylvania
Environmental Defense Foundation v. Commonwealth, --- A.3d --- (Pa., No. 64 MAP 2019, filed July
21, 2021).
8
The present action is one of a series of legal actions by the Foundation seeking to enforce
the Supreme Court’s 2017 decision in PEDF. See Pennsylvania Environmental Defense Foundation
v. Commonwealth (Pa. Cmwlth., No. 358 M.D. 2018, filed 5/17/18) (petition for declaratory relief
asking this Court to declare 2017 amendments to Fiscal Code eliminating DCNR’s Oil and Gas Lease
Fund and making and proposing $96 million in money transfers from the Fund unconstitutional);
Pennsylvania Environmental Defense Foundation v. Commonwealth (Pa. Cmwlth., No. 393 M.D.
2019, filed 7/17/19) (petition for declaratory relief asking this Court to block transfers from DCNR’s
Oil and Gas Fund to pay for DCNR’s operating expense in the Fiscal Year 2019-20 budget). That
case was stayed on September 23, 2019, pending this Court’s disposition of the parties’ cross-motions
for summary relief at 358 M.D. 2018.
8
management and administration of our State Forests’ natural resources, and it asks us
to make various declarations to this effect. The Foundation also asks us to compel
DCNR to amend the 2016 SFRMP to ensure that DCNR manages State Forests’ natural
resources consistent with its trustee duties under the ERA.
By way of background, the amended petition for review recounts how in
1995, as part of the newly created DCNR, the Bureau adopted a strategic plan, entitled
Penn’s Woods, Sustaining Our Forests (“Penn’s Woods”), to manage our State Forest
trust assets and to guide the development of future State Forest Resource Management
Plans consistent with its trustee duties to conserve and maintain these trust assets under
the ERA. (Am. Pet. ¶30.) The Foundation avers that from 1995 to 2016, DCNR’s
stated strategic plan was to manage our State Forest trust assets based on the science
of “ecosystem management” consistent with its strategic plan adopted in Penn’s
Woods, and its trustee duties under the ERA. Id. ¶30. With respect to DCNR’s State
Forest minerals policy, Penn’s Woods stated that it “should hold virgin, surface-
minable coal as reserves and should explore and develop other minerals on State Forest
lands to provide long-term good to the citizens of the Commonwealth only when these
activities are consistent with ecosystem management.” Id. ¶33 (citing Penn’s Woods
at 28).
It is the Foundation’s position that DCNR has moved away from utilizing
“ecological” principles to guide its management decisions on State Forest lands in
favor of “economic” principles. Id. ¶34. The Foundation claims that in the 2016
SFRMP, DCNR “changed its paradigm” for administering the State Forest trust assets
to now equate the economic values of oil and gas with the value of the forest ecosystem
itself, including the people’s constitutional right to “clean air, pure water, and the
9
preservation of the natural, scenic, historic and esthetic values of the [forest]
environment.” Id. ¶4.
In Count “A,” the Foundation alleges that DCNR is in violation of its
fiduciary duties as trustee under the ERA, as evidenced by the following sentence on
page 156 of the 2016 SFRMP:
The economic use and sound extraction and utilization of
geologic resources is part of the [B]ureau’s mission in
managing these lands.
(2016 SFRMP at 156) (emphasis added).
According to the Foundation, this particular excerpt evidences that DCNR
has used, and intends to continue to use, funds derived from the extraction and sale of
the State Forests’ oil and natural gas for the Commonwealth’s economic use in funding
general government operations, including DCNR’s own annual operations, in place of
revenue from the General Fund.9 See Am. Pet. ¶¶62-64. The Foundation asserts that
using State Forests’ natural resources for the benefit of the Commonwealth is
unconstitutional under PEDF, which held that funds generated from leasing State lands
should be used solely to conserve and maintain the State’s natural resources, i.e.,
money generated from leasing State lands must remain in the corpus of the trust.
PEDF, 161 A.3d at 938-39. The Foundation asserts that DCNR is “aware of and bound
by the law established by the Supreme Court in PEDF[], but [has] failed to amend the
2016 [SFRMP] to comply with the 2017 mandates of the Supreme Court and continues
[in the 2016 SFRMP] to assert [it has] an unconstitutional mission to sell the oil and
9
Along these same lines, see 2016 SFRMP section titled, “Timber and Forest Products,”
which also states that “timber and other forest products on [S]tate [F]orest lands are managed to
promote and maintain desired landscape conditions and provide sustainable social and economic
benefits to the [C]ommonwealth.” (2016 SFRMP at 8) (emphasis added).
10
gas resources of our State Forest[s] for the economic benefit of the Commonwealth,
including paying for DCNR’s operations costs.” (Am. Pet. ¶92.)
Based on these allegations, the Foundation asks this Court to declare:
• DCNR’s stated “mission” to use the proceeds from
the extraction and sale of coal, oil, natural gas and other
geologic resources of our State Forests for the economic
benefit of itself and the Commonwealth is a violation of its
constitutional trustee duties under the ERA. Id. ¶93(a).
• DCNR and Secretary Dunn have violated their
fiduciary duties of prudence, loyalty and impartiality as
trustees under the ERA by treating our State Forests’
geologic resources as proprietors, and declaring their
mission in the 2016 SFRMP to be the extraction and sale of
public natural resources of our State Forests for economic
use by them and the Commonwealth. Id. ¶93(b).
• The phrase “in the best interest of the Commonwealth”
in section 302(a)(6) of the CNRA, 71 P.S. §1340.302(a)(6),
does not mean that DCNR can lease and sell our public
natural resources for money for the economic use by the
Commonwealth in violation of the ERA. Id. ¶93(c).
• DCNR’s mission as stated in CNRA section 101(b) to
manage our State Forest lands to assure their long-term
health, sustainability and economic use does not require
DCNR to authorize the extraction and sale of the oil and gas
that are a part of the public natural resources of our State
Forests when that activity will degrade, diminish and deplete
our State Forest public natural resources contrary to the
mandates of the ERA. Id. ¶93(d).
• DCNR’s expansion of its mission in administering
the State Forest public trust under the 2016 SFRMP to
include the extraction and sale of oil and gas from our State
Forests for the economic benefit of the Commonwealth
violates the ERA. Id. ¶93(e).
11
• The oil and natural gas resources of our State Forests,
as part of the corpus of the public trust under the ERA, cannot
be used for the economic benefit of the Commonwealth
because such economic use violates the purpose of the trust,
which is to conserve and maintain those resources for the
benefit of the people. Id. ¶93(f).
• Both DCNR and Secretary Dunn have violated the
ERA and their duties thereunder by continuing to use money
from the extraction and sale of oil and natural gas from our
State Forests for purposes other than conserving and
maintaining the public natural resources of our State Forests,
including protecting the clean air, pure water and natural,
scenic, historic and esthetic values of our State Forests. Id.
¶93(g).
• Secretary Dunn has violated her oath to support, obey
and defend the Constitution of Pennsylvania by failing to
abide by the law established by the Supreme Court
concerning the use of ERA trust assets, including the
proceeds from the sale of our State Forests’ oil and gas, and
by failing to require amendment of the 2016 SFRMP to
comply with the Supreme Court mandates; to the contrary,
she has continued to assert that DCNR’s mission in
administering our State Forest trust assets is to sell the oil and
gas trust assets and use the money from this sale for the
unconstitutional purpose of paying for general State
government operations, including paying for DCNR’s
operations costs, rather than implementing projects
necessary to conserve and maintain our State Forests. Id.
¶93(h).
• Both DCNR and Secretary Dunn have violated the
ERA by failing to explain to the trust beneficiaries in their
2016 SFRMP the nature of their fiduciary duties under the
ERA in administering our State Forest trust assets under the
2016 SFRMP, by failing to explain to the beneficiaries how
they have complied with those duties under past plans, and
12
by failing to explain how the actions they will take to comply
with those duties in the future. Id. ¶93(i).
As part of this Count, the Foundation also asks this Court to compel
DCNR to remove from the 2016 SFRMP all statements that indicate its mission is to
manage our State Forests by selling their oil and gas resources for economic use. Id.
¶93(j).
Next, in Count “B,” the Foundation argues that DCNR is in violation of
its fiduciary duties as the trustee under the ERA as evidenced by the following
statement which appears on page 154 of the 2016 SFRMP:
Extraction of geologic resources such as coal, oil, and
natural gas also has long been a keystone to Pennsylvania’s
economy. These resources provide benefits to society
including: domestic energy for heating, fuel, and electrical
generation; material for plastic polymers and manufacturing
and industrial processes; material for infrastructure
construction; and job creation in areas throughout the
Commonwealth. Geologic resources on state forest lands
offer a variety of environmental, social, and economic values
that the [B]ureau considers in ecosystem management.
(2016 SFRMP at 154) (emphasis added).
The Foundation contends that DCNR’s recent ideology, which integrates
economic considerations, is contrary to DCNR’s trustee duties under the ERA. (Am.
Pet. ¶103.) It avers that DCNR’s approach to managing our State Forests as a
“proprietor” of State Forest trust assets distorts the fundamental principles of
ecosystem management that previously guided DCNR’s management of our State
Forests, and it is contrary to the principles established in DCNR’s 1995 strategic plan,
Penn’s Woods, and the ERA. Id. ¶¶95, 98.
Based on these allegations, the Foundation asks this Court to find and
declare the following:
13
• DCNR’s assertion in the 2016 SFRMP, which it
follows to administer our State Forest public trust assets, that
the social and economic values from selling our State
Forests’ oil and gas are on par with the ecological health of
the State Forests violates DCNR’s fiduciary duties as the
trustee of our State Forest under the ERA and the rights of
the beneficiaries thereunder. Id. ¶103(a).
• In its 2016 SFRMP to administer our State Forest trust
assets, DCNR’s assertion that the social and economic
values from selling our State Forests’ oil and gas are
considered in ecosystem management is contrary to the
principles of ecosystem management articulated in DCNR’s
1995 strategic plan, Penn’s Woods, to implement the ERA.
Id. ¶103(b).
• DCNR and Secretary Dunn have violated their
fiduciary duties of prudence, loyalty and impartiality as
trustees of our State Forest trust assets under the ERA and
have violated the beneficiaries’ rights thereunder by
declaring in the 2016 SFRMP for administration of those
trust assets that the social and economic values from selling
our State Forests’ oil and natural gas be considered in
ecological management of the State Forests. Id. ¶103(c).
In this Count, the Foundation also asks this Court to compel DCNR to
remove from the 2016 SFRMP any statements or discussions that consider the social
and economic values of selling our State Forests’ oil and gas in managing the ecological
health of our State Forests. Id. ¶103(d).
In Count “C,” the Foundation next avers that DCNR is in violation of its
fiduciary duties as trustee under the ERA as evidenced by its assertion in the 2016
SFRMP that
[m]anaging geologic resources requires thorough analysis,
strategic planning, and attentive oversight to ensure that the
14
value of geologic resources is balanced with other forest
uses and values.
(2016 SFRMP at 156) (emphasis added).
The Foundation contends that this statement means that DCNR is
allowing the ecological value of our State Forests’ geologic resources to be degraded,
diminished, or depleted in order to support the economic value derived from extracting
the geologic resources. (Am. Pet. ¶105.) The Foundation asserts that the constitutional
rights established under the ERA cannot be balanced with the proprietary economic
benefits from the extraction and sale of State Forests’ oil and natural gas. Such
balancing violates the ERA and the protections of the inalienable rights established
therein. Id. ¶114.
Based on these assertions, the Foundation seeks the following declarations
from this Court:
• In its 2016 SFRMP to administer our State Forest trust
assets, DCNR has violated its fiduciary duties as trustee
under the ERA by asserting that it can “balance” the
purposes of the ERA, i.e., the right to have our public natural
resources conserved and maintained by the Commonwealth
as trustee for the benefit of the people living today and for
future generations, with the alleged proprietary right to
extract and sell our public resources for public use. Id.
¶115(a).
• DCNR is in violation of its fiduciary duties as trustee,
by asserting in the 2016 SFRMP that it can “balance” the
economic value of the extraction and sale of oil and gas on
State Forest land with ecological values of our State Forests.
Id. ¶115(b).
• DCNR’s proprietary attempt to “balance” rights under
the ERA with rights established with other articles of the
Constitution, including Commonwealth’s right to
15
appropriate funds and enact laws, violates Article I Section
25 of the Pennsylvania Constitution. Id. ¶115(c).
• DCNR has no constitutional right under the ERA to
lease our State Forest land and sell our State Forest oil and
natural gas. Id. ¶115(d).
• DCNR cannot “balance” the constitutional rights
established under the ERA with any proprietary activities or
policies involving non-trust purposes of the Commonwealth.
Id. ¶115(e).
• DCNR cannot “balance” the constitutional rights
established under the ERA with any proprietary activities
that would result in the degradation, diminution and
depletion of the public natural resources of our State Forests,
including the oil and natural gas resources that are a part
thereof. Id. ¶115(f).
• DCNR and Secretary Dunn, as trustees, violate both
the ERA and Section 25 of Article I of the Pennsylvania
Constitution by stating in the 2016 SFRMP to administer
our State Forest trust assets that “[m]anaging the [coal, oil,
natural gas and other] geologic resources requires thorough
analysis, strategic planning, and attentive oversight to ensure
that the value of geologic resources is balanced with other
forest uses and values.” Id. ¶115(g).
• Both DCNR and Secretary Dunn have violated the
ERA and their fiduciary duties thereunder by approving the
2016 SFRMP to administer the State Forests’ public trust
assets without evaluating their current compliance with the
ERA’s purposes and without articulating how future
compliance will be achieved, e.g., without evaluating
whether State Forest public natural resources have been
conserved and maintained, without evaluating whether the
clean air, pure water and natural, scenic, historic, and esthetic
values of the State Forests have been protected and
preserved, and without identifying actions that need to be
16
taken to ensure our State Forests’ public natural resources
will be conserved and maintained in the future. Id. ¶115(h).
As part of this Count, the Foundation also asks this Court to compel
DCNR to amend the 2016 SFRMP to remove the unconstitutional proprietary statement
that “[m]anaging the [coal, oil, natural gas, and other] geologic resources requires
thorough analysis, strategic planning, and attentive oversight to ensure that the value
of geologic resources is balanced with other forest uses and values” and related
discussion based on this statement. Id. ¶115(i).
Next, in Count “D,” the Foundation contends that DCNR is in violation
of its fiduciary duties as trustee under the ERA as evidenced by its assertion in the 2016
SFRMP that
[d]evelopment of geologic resources should occur when it
is compatible with landscape goals and functions, avoids
sensitive ecological and socially important areas, and
minimizes adverse impacts.
(2016 SFRMP at 156) (emphasis added).
The Foundation argues that according to this statement, DCNR is acting
in contravention of the ERA because it is “sanctioning” the leasing of State Forest land
for oil and gas extraction and sale without explaining how it will prevent and remedy
the inevitable degradation, diminution and depletion of the State Forests’ public natural
resources. (Am. Pet. ¶¶116-22.)
Based on these allegations, the Foundation asks this Court to declare the
following:
• The conditions established by DCNR in its 2016
SFRMP to administer our State Forest public trust assets and
allow the development of oil, gas and other geologic
resources, i.e., its statement that “[d]evelopment of
geological resources should occur when it is compatible with
landscape goals and functions, avoids sensitive areas, and
minimizes adverse impacts,” are contrary to and in violation
17
of the ERA because they sanction leasing of State Forest land
for oil and gas. Id. ¶123(a).
• Both DCNR and Secretary Dunn have violated the
ERA and their fiduciary duties as trustee thereunder by
stating in the 2016 SFRMP to administer our State Forests’
trust assets that development of the State Forests’ geologic
resources should occur under conditions that will not
conserve and maintain those resources, which are part of the
corpus of the ERA public trust. Id. ¶123(b).
• Both DCNR and Secretary Dunn have violated the
ERA and their duties thereunder by failing to properly
explain in their 2016 SFRMP to administer our State
Forests’ trust assets how any decision to lease State Forest
land for the development of oil, gas or any geologic resources
will be made, what evaluation will be conducted to ensure
compliance with the ERA, and how the trust beneficiaries
will be apprised of this evaluation prior to any decision to
lease our State Forest land for this purpose. Id. ¶123(c).
In Count “E,” the Foundation asserts that DCNR adopted the 2016
SFRMP to administer the State Forests’ trust assets without including any evaluation
of the degradation caused by past and present oil and gas development or any plan to
implement measures to remedy that harm. Id. ¶128. The amended petition for review
asserts that the 2014 and 2018 Shale Gas Monitoring Reports published by DCNR
(attached to the Amended Petition as Exhibits “C” and “D”) establish that the extraction
of oil and natural gas from these leases has caused, is causing, and will continue to
cause, the degradation, depletion, and diminution of our State Forest public natural
resources. The Foundation alleges that DCNR has failed to provide a framework in
the 2016 SFRMP for its forest managers to make management decisions to prevent
and remedy the current and future degradation of the State Forests from the shale gas
development activities. Id. ¶129.
18
Based on these allegations, the Foundation asks this Court to make the
following declarations:
• DCNR has violated its duties as trustee under the ERA
by failing to include in the 2016 SFRMP (1) a
comprehensive strategy for evaluating when the
development of State Forest geologic resources may be
authorized, (2) a comprehensive evaluation of the current
degradation, diminution and depletion of State Forest trust
assets from geologic resource development that must be
remedied; (3) a comprehensive strategy for preventing and
remedying the degradation, diminution and depletion of our
State Forests’ trust assets that has and will continue to occur
as the result of such authorized geologic resource
development, and (4) an analysis of the funding necessary to
implement, all of which are essential to provide a prudent
framework from which DCNR’s forest managers can make
decisions to comply with their constitutional duties under the
ERA. Id. ¶135(a).
• DCNR has violated its duties as trustee under the ERA
by failing to provide stakeholders, the beneficiaries of the
State Forest public trust, with any evaluation in the 2016
SFRMP of DCNR’s current compliance with the ERA or its
strategy for remedying existing and anticipated degradation,
diminution or depletion of our State Forests’ public natural
resources; or any explanation of how DCNR will solicit
timely stakeholder input in specific decisions to authorize
geologic resource development or remedy degradation that
has and continues to occur from development already
authorized by DCNR. Id. ¶135(b).
In this Count, the Foundation also asks this Court to direct DCNR to
amend the 2016 SFRMP to correct these alleged violations. Id. ¶135(c).
In Count “F,” the Foundation asserts that in the 2016 SFRMP, DCNR fails
to provide a specific plan to develop and implement ecosystem management to retain
the natural wild character and maintain the biological integrity of the State Forests. Id.
19
¶139. Based on these allegations, the Foundation asks this Court to declare the
following:
• DCNR has violated its constitutional duties under the
ERA by failing to provide the people of Pennsylvania with
a specific plan to implement ecosystem management in
compliance with its duties to prevent and remedy the existing
and future degradation of our State Forests from the current
and future degradation caused by the extraction and sale of
the oil and natural gas. Id. ¶147(a).
In connection with this Count, the Foundation also asks this Court to
compel DCNR to amend the 2016 SFRMP to (1) provide the people of Pennsylvania,
as well as its own forest managers, with the goals and objectives that DCNR will seek
to achieve to enhance and to sustain our State Forests’ ecosystems consistent with the
policies in Penn’s Woods and to provide them with an evaluation of the cost of the
measures necessary to carry out these goals and objectives; and (2) provide a specific
plan for developing and implementing ecosystem management to provide a framework
for forest managers to make management decisions to ensure that our State Forests and
State Parks are restored and maintained as healthy ecosystems that support the natural
diversity of plants and animals that can thrive in such ecosystems, as envisioned by the
drafters of the ERA and voters who overwhelmingly supported this constitutional
amendment; and provide an evaluation of the costs to carry out this plan and a process
for allocating money from the Oil and Gas Lease Fund to pay those costs. Id. ¶147(b)
and (c).
Lastly, in Count “G,” the Foundation argues that DCNR is in violation of
its fiduciary duties as the trustee under the ERA as evidenced by its assertion in the
2016 SFRMP that
[f]orest products . . . are managed on state forest lands as a
component of ecosystem management and to provide a wide
variety of environmental, social, and economic values.
20
(2016 SFRMP at 84) (emphasis added).
The Foundation contends that this excerpt indicates that DCNR is
presently balancing the social and economic values from the sale of timber products
with other ecological values of the State Forests in making management decisions.
(Am. Pet. ¶150.) It claims that DCNR has failed in the 2016 SFRMP to provide its
forest managers and the trust beneficiaries with a framework for evaluating compliance
with the ERA when authorizing timber harvesting or the removal of other forest
products from the State Forests. In this manner, the Foundation asks us to declare that
DCNR violated its fiduciary duties as trustee under the ERA. Id. ¶156(a)-(c).
III. DCNR’s Preliminary Objections
On February 20, 2020, DCNR filed the following five preliminary
objections10 challenging the legal sufficiency of the amended petition for review:
1. The amended petition for review fails to state a claim for
which relief can be granted because the 2016 SFRMP
does not create a binding norm; any declaration related to
the 2016 SFRMP would not bind or restrict DCNR’s
actions when managing the State forests.
10
The Court’s review of preliminary objections is limited to the pleadings. See Pennsylvania
State Lodge, Fraternal Order of Police v. Department of Conservation & Natural Resources, 909
A.2d 413, 415-16 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007). The Court is “required to
accept as true the well-pled averments set forth in the . . . [petition for review], and all inferences
reasonably deducible therefrom.” Id. “[T]he Court need not accept as true conclusions of law,
unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Id.Because the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of its
suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly
and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse
Electric Corporation, 259 A.2d 443 (Pa. 1969); Botwinick v. Credit Exchange, Inc., 213 A.2d 349(Pa. 1965). If the facts as pleaded state a claim for which relief may be granted under any theory of
law, then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to
be overruled. Packler v. State Employes’ Retirement Board, 368 A.2d 673, 675 (Pa. 1977).
21
2. The amended petition for review fails to raise a
controversy that is ripe for review because the 2016
SFRMP does not prescribe actions DCNR must take
when carrying out the management of the State Forests,
so no harm has or can occur from the 2016 SFRMP.
3. The Foundation lacks standing to bring this action
because the amended petition for review does not allege
any harm that has or will occur as a result of the 2016
SFRMP.
4. The amended petition for review fails to state a claim for
which relief can be granted because the Foundation fails
to establish that DCNR is required by law, namely the
ERA, or any other mandate to develop and maintain any
such plan or the amendments sought by the Foundation.
5. DCNR and Secretary Dunn have immunity from being
directed to amend the 2016 SFRMP.
(DCNR’s Preliminary Objections at 6-7.)
IV. Analysis
A. Failure to State Claim for Declaratory Relief
Pennsylvania is a fact-pleading state; a petition for review must not only
give the respondent notice of what the petitioner’s claim is and the grounds upon which
it rests, but the petition for review must also formulate the issues by summarizing those
facts essential to support the claim. Alpha Tau Omega Fraternity v. University of
Pennsylvania, 464 A.2d 1349, 1352 (Pa. Super. 1983). Petitions for declaratory
judgments are governed by the provisions of the Declaratory Judgments Act, 42
22
Pa.C.S. §§7531-7541. Ronald H. Clark, Inc. v. Township of Hamilton, 562 A.2d 965,
967 (Pa. Cmwlth. 1989). Declaratory judgments are not obtainable as a matter of right.
Id. at 968-69. Thus, the granting of a petition for a declaratory judgment is a matter
lying within the sound discretion of a court of original jurisdiction. Gulnac by Gulnac
v. South Butler County School District, 587 A.2d 699, 701 (Pa. 1991).
In this declaratory judgment action, the Foundation’s requests for judicial
declarations may be separated into two categories: (1) those requests which ask us to
declare that DCNR is in violation of the ERA based on specific declarations and
announcements in the 2016 SFRMP;11 and (2) those requests which ask us to make
certain general pronouncements of the law.
1. Requests Which Ask Us to Declare that DCNR is in Violation of
the ERA Based on Specific Statements in the 2016 SFRMP
With regard to the requested declarations in the first category, the
Foundation is challenging DCNR’s statements in the 2016 SFRMP – as opposed to
specific acts that resulted from the actual implementation of the 2016 SFRMP. In other
words, the Foundation relies exclusively on statements made in the 2016 SFRMP as
11
See Am. Pet. ¶93(a) (“stated mission”), ¶93(b) (“declaring their mission in the 2016 SFRMP
to be”), ¶93(e) (“expansion of its mission”), ¶93(h) (“by failing to require amendment of the 2016
SFRMP . . . [and] continu[ing] to assert that”), ¶93(i) (“failing to explain”), ¶103(a) (“assertion in
the 2016 SFRMP”), ¶103(b) (“[i]n its 2016 SFRMP . . . DCNR’s assertion that”), ¶103(c) (“by
declaring in the 2016 SFRMP [that]”), ¶115(a) (“In its 2016 SFRMP to administer our State Forest
trust assets, DCNR has violated its fiduciary duties as trustee under the ERA by asserting that”),
¶115(b) (“by asserting in the 2016 SFRMP that”), ¶115(g) (“by stating in the 2016 SFRMP”), ¶115(h)
(“by approving the 2016 SFRMP”), ¶123(a) (“conditions established by DCNR in its 2016 SFRMP”),
¶123(b) (“by stating in the 2016 SFRMP”), ¶123(c) (“by failing to properly explain in their 2016
SFRMP”), ¶135(a) (“by failing to include in the 2016 SFRMP”), ¶135(b) (“by failing to provide . . .
any evaluation in the 2016 SFRMP of”), ¶147(a) (“by failing to provide the people of Pennsylvania
with a specific plan”), and ¶156(a)-(c) (“failed in the 2016 SFRMP to provide . . . a framework”).
23
the factual basis for its claim that DCNR is mismanaging the State’s forest assets. This
is problematic for two reasons.
a. The 2016 SFRMP is Not a Binding Norm
First, as DCNR points out, the Foundation fails to establish a legal
requirement or mandate for the relief sought. Although declaratory judgment actions
were designed, in part, to eliminate the substantial expense and uncertainty that results
from piecemeal litigation, Bayada Nurses, Inc. v. Department of Labor and Industry,
8 A.3d 866, 876 (Pa. 2010), “[a] declaratory judgment must not be employed to
determine rights in anticipation of events which may never occur or for consideration
of moot cases or as a medium for the rendition of an advisory opinion which may prove
to be purely academic.” Gulnac, 587 A.2d at 701.
“A general statement of policy is . . . merely an announcement to the
public the policy which the agency hopes to implement in [the] future. . . . A general
statement of policy, like a press release . . . announces the course which the agency
intends to follow.” Home Builders Association of Chester and Delaware Counties v.
Department of Environmental Protection, 828 A.2d 446, 450 (Pa. Cmwlth. 2003),
aff’d, 844 A.2d 1227 (Pa. 2004). “A general statement of policy . . . does not establish
a ‘binding norm’ . . . A policy statement announces the agency’s tentative intentions
for the future.” Id. at 451. This Court, in Home Builders, defined “binding norm” as
follows:
“Binding norm” means that the agency is bound by the
statement until the agency repeals it, and if the statement is
binding on the agency, it is a regulation. Additionally, in
determining whether an agency action is a regulation or a
statement of policy, one must look to the extent to which the
challenged pronouncement leaves the agency free to exercise
discretion to follow or not follow the announced policy in an
individual case.
24
Id.
In Pennsylvania Human Relations Commission v. Norristown Area School
District, 374 A.2d 671 (Pa. 1977), our Supreme Court considered whether a plan to
desegregate schools was a statement of policy without binding effect or whether it
carried the force of law. The Court determined that because the plan provided only
tentative future actions on desegregation, it was therefore a statement of policy with no
binding effect.
A review of the 2016 SFRMP confirms that it is not a binding norm. It
contains no mandatory, restrictive language that is indicative of a regulation. It does
not require or authorize DCNR to take any action with regard to the use of proceeds
from the sale of our State Forests’ oil and gas. It does not require or authorize the use
of money from such sales for the unconstitutional purpose of paying for general State
government operations, including paying for DCNR’s operational costs, and does not
grant any oil or natural gas leases. DCNR does not rely on the 2016 SFRMP as legal
authority to do any of the acts alleged in the amended petition for review. In this way,
this case is very different from PEDF where the Foundation challenged legislative
enactments in the Fiscal Code as unconstitutional under the ERA. Because the 2016
SFRMP is not a regulation or rule that DCNR is required to follow, and DCNR is not
required by any law to adopt a forest resource management plan, any judicial
declaration by this Court that the statements made in the 2016 SFRMP are contrary to
DCNR’s obligations under the ERA would not bind DCNR or restrict its actions when
managing the State Forests.
Moreover, we cannot ignore that the 2016 SFRMP was adopted before
PEDF was decided in 2017. The Foundation concedes in its amended petition for
review that that DCNR “is aware of and bound by the law established by Supreme
Court in PEDF,” but complains that DCNR has yet to “amend the 2016 Plan to comply
25
with the 2017 mandates of Supreme Court.” (Am. Pet. ¶92.) We decline to assume,
as the Foundation asks us to, that DCNR is actively disregarding PEDF and its
obligations under the ERA, merely because it has not yet adopted a new SFRMP after
PEDF was decided. This is an unwarranted inference that we are not obligated to
accept as true. Pennsylvania State Lodge, Fraternal Order of Police v. Department of
Conservation and Natural Resources, 909 A.2d 413, 416 (Pa. Cmwlth. 2006). The
statements in the 2016 SFRMP were made before PEDF was decided and clearly do
not reflect post-PEDF considerations. We recognize the obligations enunciated by the
Supreme Court in PEDF to preserve the corpus of the trust and commend the
Foundation’s efforts to ensure that is accomplished. However, simply because a new
forest plan (which, by all accounts, takes countless hours to create) has not yet been
developed, does not support the conclusion that DCNR is presently managing the State
Forests in violation of the ERA or contrary to PEDF.
b. Ripeness
The second reason why the 2016 SFRMP is insufficient to form a basis
for an ERA claim is controlled by the justiciability doctrine of ripeness.
Although the Declaratory Judgments Act is to be liberally construed, one
limitation on a court’s ability to issue a declaratory judgment is that the issues involved
must be “ripe” for judicial determination, meaning that there must be the presence of
an actual case or controversy. Ruszin v. Department of Labor and Industry, Bureau of
Workers’ Compensation, 675 A.2d 366, 371 (Pa. Cmwlth. 1996). Thus, the
Declaratory Judgments Act requires a petition seeking declaratory relief to state an
actual controversy between the petitioner and the named respondent. Pennsylvania
State Lodge v. Department of Labor and Industry, 692 A.2d 609, 613 (Pa. Cmwlth.
1997), aff’d, 707 A.2d 1129 (Pa. 1998). It is beyond the jurisdiction of our courts,
26
appellate and original, to use the Declaratory Judgments Act to issue advisory opinions
or to determine rights in anticipation of events which may never occur. Pittsburgh
Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659 (Pa. 2005).
Pennsylvania courts have held that ripeness requires there to be a
“concreteness” to government actions, otherwise no justiciable controversy exists for
a court to review. Texas Keystone Incorporated v. Pennsylvania Department of
Conservation and Natural Resources, 851 A.2d 228, 239 (Pa. Cmwlth. 2004)
(“ripeness doctrine insists on a more concrete context, i.e., one involving a final agency
action and a factual record that would allow this Court to properly review [the]
substantive claims”); Ronald H. Clark, 562 A.2d at 968. In Gardner v. Department of
Environmental Resources, 658 A.2d 440 (Pa. Cmwlth. 1995), this Court explained the
ripeness doctrine, as follows:
Ripeness arises out of a judicial concern not to become
involved in abstract disagreements of administrative policies.
Abbott Laboratories v. Gardner, 387 U.S. 136 . . . (1967). It
has been defined as the presence of an actual controversy.
American Council of Life Insurance v. Foster, [] 580 A.2d
448 ([Pa. Cmwlth.] 1990). It insists on a concrete context,
where there is a final agency action so that the courts can
properly exercise their function. The doctrine of ripeness is
described as a legal principle “instructing courts to review
government actions only when the government’s position has
crystallized to the point at which a court can identify a
relatively discrete dispute.” Davis & Pierce, Administrative
Law Treatise, vol. II, § 15.12 (3d edition).
Gardner, 658 A.2d at 444 (emphasis added).
A claim based on speculative, anticipated events is not justiciable. Berger
v. Department of Environmental Resources, 400 A.2d 905, 907 (Pa. Cmwlth. 1979)
(“[A] declaratory judgment is not to be employed for the determination of rights in
27
anticipation of an event which may never occur.”). In Berger, the landowners sought
a pre-decision review of the procedure by which the Department of Environmental
Resources (DER) was evaluating an application for a permit to construct and operate a
sanitary landfill. We sustained DER’s preliminary objection that the petition for review
was premature because DER’s refusal to consider the factors suggested by the
landowners did not constitute an appealable determination.
In Chester Upland School District v. Commonwealth, 495 A.2d 981 (Pa.
Cmwlth. 1985), a school district challenged the constitutionality of an amendment to
the public school code which prohibited some school districts from having residency
requirements for employees. The school district had taken preliminary steps to
discharge certain employees for failure to reside within the district and alleged that
those employees, claiming protection under the amendment, threatened to bring legal
action against the district if they were terminated. However, because the school
district’s petition contained no averments that the employees ever sought to enforce the
amendment, or that such action was imminent or inevitable, we held that a declaratory
judgment was inappropriate.
Similarly, in Woods Schools v. Department of Education, 514 A.2d 686(Pa. Cmwlth. 1986), a private school sought an order for proceedings to disenroll an
exceptional student or, alternatively, to guarantee full payment of that student’s tuition.
However, because there was nothing in the school’s petition from which we could infer
that payment would not be made, we determined that no justiciable controversy existed
because it could not yet be determined whether the school would be fully reimbursed.
We apply the same rationale here to conclude that the amended petition
for review fails to raise a controversy that is ripe for review because the Foundation
has not alleged that DCNR has committed a concrete government act triggering rights
28
or remedies of an affected party that can be reviewed by this Court. Undeniably, the
2016 SFRMP discusses the economic benefits to the Commonwealth of State Forest
products. In the section of the 2016 SFRMP titled “Timber and Forest Products,” the
2016 SFRMP states that “timber and other forest products on [S]tate [F]orest lands are
managed to promote and maintain desired landscape conditions and provide
sustainable social and economic benefits to the [C]ommonwealth.” (2016 SFRMP at
8.) The 2016 SFRMP also explains that
Pennsylvania’s [S]tate [F]orests contain an abundance of
high-quality forest products, an integral part of the materials
base of the [C]ommonwealth’s $19 billion per year forest
products industry, which employs nearly 58,000 people.
Both Pennsylvania’s consumers and the general economy
benefit from this regionally important supply of forest
products, including timber. Timber sales generate significant
revenue for the [C]ommonwealth. From 2008 to 2014,
Pennsylvania received income from timber sales averaging
approximately $22.5 million per year.
Id. at 9.
It further explains that Pennsylvania’s State Forests have been leased for
valuable oil and gas reserves since 1947. Id. at 14. In 2009, shale-gas development
began on State Forest lands. Id. at 12. According to the 2016 SFRMP, subsurface
geologic resources are managed to provide long-term benefits to Commonwealth
citizens while adhering to the principles of ecosystem management. Id. at 13. The
2016 SFRMP reports that
[t]he forest lands also provide economic benefits to the
[C]ommonwealth through leasing for natural gas
development, supplying approximately $100 million in
annual revenues to the [C]ommonwealth from lease
agreements and gas royalties, and additionally contributing
to local communities.
Id. at 20.
29
Contrary to the Foundation’s view, these statements in and of themselves
are simply not actionable. In fact, the Supreme Court in PEDF recounted similar facts.
See PEDF, 161 A.3d at 919-21. Aside from these statements, which basically recount
the state of affairs before PEDF was decided, the Foundation does not cite any
instances where DCNR is, at present, using money from the extraction and sale of State
Forests’ oil and natural gas for purposes other than conserving and maintaining the
public natural resources of our State Forests. Finding a constitutional violation based
on statements in the 2016 SFRMP, without reference to any particular action on the
part of DCNR, would take us into the realm of speculation and conjecture.
Accordingly, because the Foundation has failed to articulate any
imminent injuries occasioned by adoption of the 2016 SFRMP, and has failed to anchor
its amended petition for review on any particular action taken by DCNR, we must
conclude that the matter is not ripe, and no controversy is present that could permit us
to enter a declaratory judgment.12 Our disposition should not be understood to
foreclose the possibility that a claim under the ERA might ripen if DCNR implements
its forest resources plan in a manner which violates the ERA. Should the Foundation
find that a definite course of action or inaction on the part of DCNR is objectionable,
there may be no impediment to judicial review at that time.
2. Requests Which Ask Us to Make Certain General
Pronouncements of Law
Next, the Foundation asks that we make certain general pronouncements
of the law, including:
• The phrase “in the best interest of the Commonwealth” in
section 302(a)(6) of the CNRA, 71 P.S. §1340.302(a)(6),
does not mean that DCNR can lease and sell our public
12
Having concluded that a judicial declaration by this Court would be premature at this
juncture, we need not address DCNR’s preliminary objection raising lack of standing.
30
natural resources for money for the economic use by the
Commonwealth in violation of the ERA. Id. ¶93(c).
• DCNR’s mission as stated in CNRA Section 101(b) to
manage the State Forest lands to assure their long-term
health, sustainability and economic use does not require
DCNR to authorize the extraction and sale of the oil and
gas that is a part of the public natural resources of our
State Forests when that activity will degrade, diminish
and deplete the State Forests’ public natural resources
contrary to the mandates of the ERA. Id. ¶93(d).
• The oil and natural gas resources of our State Forests, as
part of the corpus of the public trust under the ERA,
cannot be used for the economic benefit of the
Commonwealth because such economic use violates the
purpose of the trust, which is to conserve and maintain
those resources for the benefit of the people. Id. ¶93(f).
• DCNR’s proprietary attempt to “balance” rights under
the ERA with rights established with other articles of the
Constitution, including the Commonwealth’s right to
appropriate funds and enact laws, violates Article I
Section 25 of the Pennsylvania Constitution. Id. ¶115(c).
• DCNR has no constitutional right under the ERA to lease
our State Forest land and sell our State Forests’ oil and
natural gas. Id. ¶115(d).[13]
• DCNR cannot “balance” the constitutional rights
established under the ERA with any proprietary activities
or policies involving non-trust purposes of the
Commonwealth. Id. ¶115(e).
13
Contrary to the Foundation’s assertion, PEDF never held that DCNR has no constitutional
right under the ERA to lease our State Forest lands and sell our State Forests’ oil and natural gas.
Rather, it acknowledges the right, but held that “oil and gas leases may not be drafted in ways that
remove assets from the corpus of the trust or otherwise deprive the trust beneficiaries (the people,
including future generations) of the funds necessary to conserve and maintain the public natural
resources.” 161 A.3d at 936.
31
• DCNR cannot “balance” the constitutional rights
established under the ERA with any proprietary activities
that would result in the degradation, diminution and
depletion of the public natural resources of our State
Forests, including the oil and natural gas resources that
are a part thereof. Id. ¶115(f).
The proscription against issuing advisory opinions or decisions in the
abstract restrains the courts of this Commonwealth from addressing claims made,
which at bottom seek merely an academic answer to a hypothetical question rather than
redress of an injury. Spahn v. Zoning Board of Adjustment, 977 A.2d 1132, 1151 (Pa.
2009).
As noted above, we are not satisfied that the Foundation has presented this
Court with a justiciable dispute or controversy within the meaning of the Declaratory
Judgments Act. Any pronouncement by this Court as to the legal validity of the
requested declarations would be in the abstract, and thus, an impermissible advisory
opinion.
B. Failure to State a Claim – Mandamus Claims
Although the Foundation does not identify its claims as such, this Court
concludes, based on the nature of the relief sought, that the Foundation’s amended
petition for review does, indeed, seek mandamus relief because it asks us to direct
DCNR to fulfill its responsibilities as a trustee of the Commonwealth’s natural
resources under the ERA consistent with PEDF. See Am. Pet. ¶¶135(c), 147(b)-(c).
Mandamus is an extraordinary writ. Bronson v. Board of Probation and
Parole, 421 A.2d 1021 (Pa. 1980). It will only be granted to compel performance of a
ministerial duty where the petitioner establishes a clear legal right to relief and a
corresponding duty to act by the respondent. Waters v. Pennsylvania Department of
Corrections, 509 A.2d 430 (Pa. Cmwlth. 1986). Mandamus is not proper to establish
32
legal rights but is only appropriately used to enforce those rights which have already
been established. Id. “Thus, in an action involving an administrative agency’s exercise
of discretion, the court may only direct the agency to perform the discretionary act and
may not direct the agency to exercise its judgment or discretion in a particular way or
direct the retraction or reversal of action already taken.” McGill v. Pennsylvania
Department of Health, Office of Drug & Alcohol Programs, 758 A.2d 268, 270 (Pa.
Cmwlth. 2000).
The Foundation seeks to compel DCNR to amend the 2016 SFRMP in the
ways outlined in the amended petition for review. However, the Foundation does not
have a clear right to such relief. It points to no legislative enactments or regulatory
provisions, and we have found none, that mandate DCNR to develop and maintain a
forest resource management plan in the first place. Because the Foundation seeks to
compel DCNR to do something it is not mandated to do, mandamus will not lie, and
we sustain DCNR’s preliminary objections as to the mandamus claims.
Because we conclude that the Foundation has failed to state cognizable
claims for declaratory or mandamus relief based on the above, we need not reach the
question of sovereign immunity.
V. Conclusion
The Foundation has not demonstrated that its action for declaratory relief
is ripe for judicial review. It has also failed to demonstrate that it is entitled to the
mandamus relief it seeks. Accordingly, we sustain DCNR’s preliminary objections
and dismiss the amended petition for review.
________________________________
PATRICIA A. McCULLOUGH, Judge
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Environmental :
Defense Foundation, :
Petitioner :
: No. 609 M.D. 2019
v. :
:
Commonwealth Department of :
Conservation and Natural Resources, :
and Cindy Adams Dunn, in her :
official capacity as Secretary, :
Respondents :
ORDER
AND NOW, this 6th day of August, 2021, the Preliminary Objections
of the Commonwealth Department of Conservation and Natural Resources (DCNR),
and Cindy Adams Dunn, in her official capacity as Secretary of Conservation and
Natural Resources, of DCNR, to the Amended Petition for Review filed by the
Pennsylvania Environmental Defense Foundation are hereby SUSTAINED. The
Amended Petition for Review is dismissed.
________________________________
PATRICIA A. McCULLOUGH, Judge