On June 15, 2020, the U.S. Supreme Court decided United States Forest Service v. Cowpasture River Preservation Association. The question presented was whether the Forest Service has the authority to issue a special-use permit allowing Atlantic Coast Pipeline, LLC, to build a pipeline over certain lands crossing the Appalachian Trail. The answer would turn on whether the National Park Service (NPS) controlled the “land” over which the Appalachian Trail crosses. If the NPS does, then Atlantic cannot receive its permit. If it does not, then Atlantic can.
The Supreme Court decided, in a 7-2 opinion authored by Justice Clarence Thomas, that the land under the Appalachian Trail is under the jurisdiction of the Forest Service and therefore the Forest Service has authority to issue the permit to build a pipeline. NPS’s interest in the Trail is only an easement. Justice Thomas grounded the opinion in the plain text of three governing statutes and in ordinary principles of property law.
The three statutes in play were the Mineral Leasing Act, the National Trails System Act, and the Weeks Act of 1911. The Weeks Act created the National Forest System, which includes the land relevant to this case and land under control of the Forest Service. The National Trails System Act created, among other trails, the Appalachian Trail under the National Park System. The Mineral Leasing Act enabled the Secretary of the Interior to grant pipeline rights-of-way through federal lands, but it expressly carves out lands in the National Park System. So, the Court was faced with determining whether the Appalachian Trail is “land” within the National Park System. If it is, then the Forest Service is disabled from granting a right-of-way through the Trail to Atlantic Coast Pipeline.
The majority held that the Appalachian Trail is not “land” but is rather an easement over land and the land itself belongs to the Forest Service. For the majority, the question turned on “the distinction between the lands that the Trail traverses and the Trail itself.” Under ordinary property law principles, the National Park System holds an easement in the Trail but the Forest Service retains ownership over the land itself. The Trail burdens the land, and the National Park System has certain property rights in the Trail, but “the land and the easement are still separate.”
The majority is also concerned with the practical consequences of deciding that the Trail is land in the National Park System because it would “have striking implications for federalism and private property rights” converting hundreds-of-thousands of acres of non-federal land into lands under the National Park System. This presents what Justice Antonin Scalia once identified as a presumption that Congress was not expected to “hide elephants in mouseholes.” The majority expected more express language from Congress if it intended to make such a sizeable delegation of authority and the Court would not delegate the authority by implication. “[B]ut at bottom,” the majority rests its case on “a simple proposition: A trail is a trail, and land is land.”
The dissenting opinion, authored by Justice Sonia Sotomayor and joined by Justice Elena Kagan, would have held that the Trail itself is “land” under the plain meaning of the statutes and therefore the NPS has authority over the land. Also grounding her dissent in textualism, Justice Sotomayor writes: “By statutory definition, the Appalachian Trail is land in the National Park System, and the Mineral Leasing Act does not permit pipeline rights-of-way across it.”
The dissent’s logic proceeds as follows. The National Park Service Organic Act says that National Park System lands include “any area of land” “administered” by the Park Service. The Appalachian Trail is “administered” by the Park Service under the National Trails System Act.). And because the federal government has defined the Trail as a “unit” in the National Park System and because a “unit” is defined by federal law as “land” or “water,” the Appalachian Trail must be land in the National Park System.
Taking on the majority, the dissenters reject an analogy to private property law as inappropriate in a public law case. Moreover, they determined that Congress spoke expressly to a delegation of these lands to the National Park System, and they believe the grant of authority less striking and more routine than does the majority. But in the end, the dissent would rest the case on “the language of three statutes, longstanding agency practice, and common sense.” They would hold that a Trail is land, and therefore land in the National Park System that the Forest Service cannot issue a permit for a pipeline over.
Going forward, this decision and its reasoning will impact the administration of federal and non-federal lands. In this case, the result is that Atlantic Coast Pipeline can finish building its pipeline. It should be noted that on July 5, 2020, Dominion Energy and Duke Energy announced they are cancelling the pipeline, citing “ongoing delays and increasing cost uncertainty.” Even still, the Supreme Court’s ruling will have important implications in future pipeline projects and for any further disputes arising over federal land ownership.
Atlantic was represented by attorney Paul Clement in his 100th argument before the United States Supreme Court and on the day of the argument, he was recognized by Chief Justice Roberts for his milestone achievement. To hear more about this case, check out the Federalist Society’s Courthouse Steps Decision Teleforum featuring Paul Clement and Stephen A. Vaden, General Counsel for the U.S. Department of Agriculture, as they discuss the Court’s decision in more detail.