Environmental and Natural Resources Law Clinic Negotiates Settlement in Appeal to Protect Threatened Species
Web Editor - Published: February 29, 2012
The Environmental and Natural Resources Law Clinic recently negotiated the settlement of consolidated appeals of a small non-coal mining permit issued by the Pennsylvania Department of Environmental Protection to Catharine Properties, Inc. for a parcel of land in Blair County, Pa.

In the summer of 2010, the Clinic agreed to represent the Juniata Audubon Society, the Center for Biological Diversity, and wildlife advocate Laura Jackson. The appeal centered on the regulatory obligations for the Pennsylvania DEP to ensure that it avoid issuing permits that would impact the continued existence of endangered or threatened species. The small, non-coal mining permit was issued to allow preparatory work and preliminary mining on a small portion of a greater area of land for which Catharine Properties, Inc. is seeking a large permit.

A series of 9 caves known as the Heller Caves are part of the larger parcel of land and home to the eastern small-footed bat, a threatened species, and the rock rubble at the base of the cliffs is a nesting area for the threatened Allegheny woodrat. The Pennsylvania Game Commission, which has regulatory authority over the eastern small-footed bat and Allegheny woodrat populations, raised serious concerns that mining on the larger parcel of land could do harm to the habitat of the bat and rat populations. The Game Commission recommended a 300 foot buffer to the DEP prior to the issuance of the small non-coal permit, but the area outlined in that permit was within the 300 foot buffer called for.

Claire Gargiulo ’11, a Clinic intern on the Harrisburg campus, did a great deal of initial work on the case, gleaning relevant facts from a great number of documents. Picking up on Claire’s initial work, Clinic Student Attorney Brittney Berenato assisted Clinic Director Ken Kristl in completing discovery. That process included preparing for 2 depositions of Game Commission staff, defending the depositions of client staff, and securing the expert report of Dr. Michael Gannon. Brittney also helped prepare a pre-hearing memorandum submitted in advance of the trial before the Environmental Hearing Board scheduled to begin February 27, 2012.

Prior to the trial, however, the parties reached a settlement that will protect the bats, rats, and a third new species unique to the site known as the Heller springtail until a large permit is issued. The settlement also preserves the ability of the clients to raise species protection issues during that permitting process as well.

In the accompanying video, Associate Professor and Clinic Director Ken Kristl discusses the Clinic’s work on the case and the settlement.