Pa. Envtl. Def. Found. v. Commonwealth

285 A.3d 702

PENNSYLVANIA ENVIRONMENTAL DEFENSE FOUNDATION, Petitioner

v.COMMONWEALTH of Pennsylvania; The Pennsylvania House of Representatives and Bryan Dean Cutler, in his Official Capacity as its Speaker; The Pennsylvania Senate and Jake Corman, in his Official Capacity as the Senate President Pro Tempore; and Tom Wolf, in his Official Capacity as Governor of Pennsylvania, Respondents

No. 447 M.D. 2021

Commonwealth Court of Pennsylvania.

Argued September 12, 2022

Decided November 8, 2022

John E. Childe, Dauphin, for Petitioner.

Karl S. Myers, Philadelphia, for Respondent Pennsylvania House of Representatives and Pennsylvania Senate.

Warren E. Kampf, West Chester, for Respondents Bryan Cutler, in his official capacity as the Speaker of the Pennsylvania House of Representatives and Jake Corman, in his official capacity as the President Pro Tempore of the Pennsylvania Senate.

Joshua B. Ebersole, Assistant Counsel, Harrisburg, for Respondent Tom Wolf, in his official capacity as Governor of Pennsylvania.

Jeffrey Mozdziock, Deputy Attorney General, Philadelphia, for Respondent Commonwealth of Pennsylvania.

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY SENIOR JUDGE LEAVITT

Before the Court are the preliminary objections of the Commonwealth of Pennsylvania, the Governor of Pennsylvania, Tom Wolf, the Pennsylvania House of Representatives and the Pennsylvania Senate (General Assembly), and House Speaker Bryan Cutler and Senate President Pro Tempore Jake Corman (Legislative Leadership) (collectively, Respondents) that were filed in response to the petition for review of the Pennsylvania Environmental Defense Foundation (Foundation). The petition for review seeks a declaratory judgment that the Snowmobile and All-Terrain Vehicle Law¹ and Section 1720-E(a) and (b) of The Fiscal Code² violate the Environmental Rights Amendment of the Pennsylvania Constitution. PA. CONST. art. I, § 27.³ Respondents, in separate responsive pleadings, assert, inter alia , that the petition fails to state a claim upon which relief can be granted. We sustain the demurrers.

Petition for Review

The Foundation is a non-profit organization incorporated under the laws of Pennsylvania for the purpose of protecting and preserving the environmental interests of its members in Pennsylvania. Members of the Foundation have filed affidavits in support of the petition for review.

The petition for review identified the named Respondents as trustees of a trust established by the Environmental Rights Amendment to the Pennsylvania Constitution. State forests and state parks constitute the corpus of this trust. The state forest in northcentral Pennsylvania, approximately 1.4 million acres, is "one of the most extensive intact forest ecosystems in the eastern United States."⁴ Petition for Review (Petition) at 27, ¶61.

In 1971, the General Assembly enacted the Snowmobile Law⁵ to require snowmobiles to be titled and registered and to authorize registered snowmobiles to use trails in state forests developed for that purpose. In 1985, the Snowmobile and All-Terrain Vehicle Law, 75 Pa. C.S. §§ 7701 - 7753, added all-terrain vehicles (ATVs) to the titling and registration regime and authorized their use on designated trails in state forests and state parks. Some ATV trails were placed on the preexisting illegal trails. Petition at 8, ¶20.

In 1995, the Department of Environmental Resources was reorganized into two agencies. The General Assembly created the Department of Conservation and Natural Resources (Department or DCNR) to conserve state forests and state parks and manage their use. In that regard, the Department is required to deposit all revenue generated by the ATV program into restricted accounts and to use those accounts for such ATV-related purposes as "registration and certificate of title activities, training, education, enforcement activities, construction and maintenance of snowmobile and ATV trails and acquisition of equipment, supplies and interests in land[.]" Petition at 7, ¶17 (quoting 75 Pa. C.S. § 7706(a)(2) ).

On March 16, 2000, in response to the increased demand for more ATV trails, the Secretary of Conservation and Natural Resources directed the development of a five-year plan for their use in state forests. Petition at 9, ¶22. The Department's survey found that approximately 222 miles of ATV trails had been approved for use in state forests, but over 2,500 miles of illegal trails had been created by ATV users. Petition at 10, ¶24. In response, the Department adopted enforcement policies in 2001 and 2003 to restrain ATV use in state forests. Under pressure, however, the Department agreed to consider "strategic connector" trails in state forests "in part to support local economic interest." Petition at 10, 12, ¶¶25-26, 29. By 2015, the authorized ATV trails in the state forest had increased to 265 miles. The Department's 2015 policy reiterated that except for "limited development of connectors, as deemed appropriate by the Department[,]" the ATV trail system should not be further expanded. Petition at 13, ¶33. That policy also stated that the Department "does not consider state forest roads to be an option for connectors between trails systems" due to visitor safety concerns. Petition at 14, ¶34 (emphasis in original omitted).

One connector considered was a new ATV trail through the Sproul State Forest District to connect the existing Bloody Skillet ATV Trail in northern Centre County and the Whiskey Springs ATV Trail in western Clinton County. Petition at 14, ¶35. The Department retained the Larson Design Group to evaluate the feasibility of such a connection, but it was "unable to identify a connector ATV route that would not impact on sensitive State Forest resources[.]" Petition at 15, ¶37.

In 2018, shortly before the Larson Design Group completed its study, the General Assembly amended The Fiscal Code to add Section 1720-E(a). It states as follows:

(a) Appropriations.--The following shall apply to appropriations for the Department of Conservation and Natural Resources:

(1) The department shall, in consultation with the Department of Transportation, develop, open and maintain an ATV trail connecting the Whiskey Springs ATV trail to the Blood Skillet ATV trail by utilizing existing State roads and State forest roads by April 1, 2020.

(2) The department shall, in consultation with the Department of Transportation, implement the full Northcentral Pennsylvania ATV initiative and create a network of ATV trails connecting Clinton County to the New York State border by utilizing existing State roads and State forest roads by April 1, 2024.

72 P.S. § 1720-E(a) (emphasis added).

On May 10, 2019, the Secretary of Conservation and Natural Resources advised the Governor that the Department could not meet the April 1, 2020, deadline in Section 1720-E(a) because it lacked the necessary funding and had concerns for "user safety, environmental consequences, user satisfaction and legality, among others." Petition at 17, ¶41. In response, on August 14, 2019, Senator Joe Scarnati, then President Pro Tempore of the Senate, met with an ATV association as well as representatives of the Department and the Department of Transportation (PennDOT). The senator informed them that his office planned to discuss with the Governor why the Department and PennDOT "were not complying with the Governor's directive to change their policies" to implement the law authorizing the use of state roads to connect ATV trails. Petition at 17-18, ¶42.

On November 18, 2020, the Department issued a policy that stated, inter alia , that the Department is "working to ensure that registered ATV owners receive sufficient benefits for their registration funds while balancing the protection of our natural resources and the needs of all recreational uses on state lands." Petition at 18, ¶43 (emphasis in original omitted). The policy recognized the growing popularity of ATVs, which impacted "the core functions that state forest lands were acquired to address" including "protection of clean water, clean air, wildlife habitat, scenic beauty, rare and significant ecosystems, and wild plants." Id. The policy stated that the Department did not "consider state forest roads to be a viable option for ATV connectors or trail systems mainly because they may not be conducive for ATV riding." Id.

On November 23, 2020, the General Assembly amended The Fiscal Code to add Section 1720-E(b), which states, in pertinent part, as follows:

(b) Regional ATV pilot program for department lands.--

(1) The department shall establish a regional pilot program for ATV use on department lands.

(2) As part of the pilot program, by December 31, 2020, the department shall:

(i) evaluate department forest districts, including Elk, Moshannon, Sproul, Susquehannock and Tioga, for roads and trails to serve as potential regional connectors and to provide local access or serve as a trail complex for ATV use; and

(ii) perform an assessment regarding charging fees for access to the department ATV pilot area.

* * * *

(5) The department shall provide access to the department ATV pilot area for the 2021 summer ATV riding season from the Friday before Memorial Day through the last full weekend in September, in addition to an extended season to be determined by the department based on local conditions.

72 P.S. § 1720-E(b)(1)-(2), (5).

To comply with Section 1720-E(b) of The Fiscal Code, the Department developed the 2021 ATV Regional Connector Trail Pilot (2021 ATV Pilot) on 59 miles of ATV trails (45.4 miles of existing trails and 13.6 miles of new trails). The 2021 ATV Pilot "reflects plans for an initial phase of a potential larger project, plans for which will be submitted later. In future years the trail network may be expanded. Any expansions of the system will be covered by subsequent SFERs."⁶ Petition at 20, ¶46 (citing Exhibit N) (emphasis in original omitted). In...