Courthouse Steps Preview: United States Forest Service v. Cowpasture River Preservation Association

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On February 24, 2020 the Supreme Court will hear argument in two consolidated cases, U.S. Forest Service v. Cow Pasture River Assn. and Atlantic Coast Pipeline Assn. v. Cow Pasture River Assn., in which the Fourth Circuit invalidated the permit for construction of a multi-billion-dollar natural gas pipeline that crosses the Appalachian Trail on Forest Service land in Virginia. The issue is which, if any, federal agency can authorize construction that impacts the Trail, which crosses private, state and federal land from Georgia to Maine and operates under a host of statutes, regulations and private agreements. The case is a textbook study in legislative interpretation, congressional intent and private-public cooperative agreements. 

Our presenters will be two of the lawyers who filed amicus briefs for parties directly impacted by the case. Keith Bradley, counsel for the Appalachian Trail Conservancy, is a partner with the Squire Patton Boggs firm in Denver and former counsel with the Department of Energy, where he was lead lawyer on implementation of the Iran nuclear deal. Tom Jensen is a partner with Perkins, Coie in Washington, D.C. He formerly served as the majority counsel to the U.S. Senate Committee on Energy and Natural Resources and was the associate director for natural resources on the White House Council on Environmental Quality. Roger Marzulla, partner at Marzulla Law in Washington, D.C. and former head of the U.S. Justice Department’s Environment and Natural Resources Division, will moderate.


Keith Bradley, Partner, Squire Patton Boggs (Denver)

Thomas C. Jensen, Partner, Perkins Coie LLP

Moderator: Roger J. Marzulla, Partner, Marzulla Law, LLC



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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Environmental Law & Property Rights Practice Group, was recorded on Friday, February 21, 2020, during a live teleforum conference call held exclusively for Federalist Society members.      


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's is a "Courthouse Steps Preview Discussion on the United States Forest Service v. Cowpasture River Preservation Association."  My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the experts on today's call.


      Today we are very fortunate to have with us a wonderful panel to discuss this topic, and our Moderator today is Roger J. Marzulla, who is a Partner at Marzulla Law.


Thank you very much for sharing with us today. Roger, the floor is yours.


Roger J. Marzulla:  Well, good day, and welcome to this teleforum on the consolidated cases of United States Forest Service v. Cowpasture River Association, as well as Atlantic Coast Pipeline v. Cowpasture River Association.  


      The argument is to take place on Monday, at the Supreme Court, and it poses some very interesting issues arising from the decision of the Fourth Circuit that has stopped in its tracks not one but actually two ongoing natural gas pipeline constructions. The issue before the Court arises in part as a result of a historical development, of interest to those of us in the environmental field, that the United States Forest Service is an agency of the United States Department of Agriculture, whereas the United States Park Service is an agency of the Department of Interior.


      The specific issue is whether a permit to cross the Appalachian Trail on land that is administered by the Forest Service—remember that's Department of Agriculture—is in fact valid or whether, because the Appalachian Trail is in significant measure administered by the United States Park Service—remember that's located in the Interior Department—whether the permit should instead have been issued, as the Fourth Circuit held, by the Secretary of Interior's designee from the Park Service as opposed to the Forest Service.


      So in short, the issue before the Court is whether the Fourth Circuit's invalidation of a Forest Service permit to cross the Appalachian Trail in the construction of the Atlantic Coast Pipeline, one of the two multi-billion dollar gas pipelines that are being constructed to bring natural gas out of West Virginia, is in fact valid or not.


      We are honored to have two highly renowned lawyers to discuss the issue, both of whom have filed briefs. Tom Jensen is an attorney with the Perkins Coie Law Firm in Washington D.C. Tom represents Mountain Valley Pipeline, the second pipeline which was not party to the case but in fact stands in the same position as Atlantic Coast, to whit the completion of that pipeline is being held up until the Supreme Court decides the issue.


      Keith is an attorney with the Squire Sanders Firm in Denver, Colorado. Keith Bradley has formerly, as has Tom Jensen, been an important counsel within the United States Department of Energy. Both of them have great familiarity with the applicable statutes. Keith represents the Appalachian Trail Conservancy, the organization that has the most important, most direct interest, so to speak, in the administration of the Trail itself which runs from Georgia to Maine.


      So without further ado, I'd like to turn the microphone over to Tom Jensen. Tom, tell us what the arguments are going to be for overturning the Fourth Circuit's decision.


Thomas C. Jensen:  Thank you, Roger. Thank you all in the audience. These are my comments alone and not speaking on behalf of Mountain Valley Pipeline here. There's an adjective and a noun that really define what will be in front of the Court on Monday morning. The adjective is messy. The noun is turf.


      And the Court is going to have to unscramble a mess that the Fourth Circuit created by conflating three different laws, one of which is more than a century old. The others are roughly a half century old, none of which has any case law interpreting the statute and certainly, no situation which the three statutes have been interpreted together. They're intersectioned -- interpreted.


      So there's what appears in many respects to be a blank slate where the text of the three laws has yet to be graced by any jurisprudence or any real legal thought in any of the type of writing and thinking that we normally find around older public lands laws, especially public lands laws that are fundamental to the way major areas of the Eastern United States are managed and energy supplies serving the United States to which energy supplies are transported.


      The three laws that the Fourth Circuit conflated are the Weeks Act, an early 20th century law that authorized the Secretary of Agriculture to acquire, cut over, burned over, uprooted private lands in the Eastern United States to create what are now the national forests of the East.


      In our case, in the case of the Cowpasture decision, it's the forest now known as the George Washington and Jefferson National Forest. It's had other names over time, and there are eight different national forest units that are crossed by the Appalachian Trail.


      That brings us to our second statute, which is the National Trail System Act passed by Congress in 1968 amidst a flurry of law making on recreation in the environment. This was the era in which the Land and Water Conservation Fund was authorized. The first national recreation areas and national seashores were authorized. And the National Trails System Act was Congress's effort to both acknowledge existing long-distance trails and stimulate federal agencies, particularly  U.S.D.A—the Department of Agriculture—and the Forest Service, and the Park Service, through the Interior Department to expand existing trails, protect them overtime, and create new trails.


      Today, you'll recognize the nomenclature. You've got national scenic trails, national historic trails, recreational trails. They all exist under the authority of the National Trails System Act. Five years after the Trail System Act was passed, Congress amended a 1920s-era law called the Mineral Leasing Act. And the Mineral Leasing Act was amended primarily to authorize a trans-Alaska pipeline, which had been held up.


      But at the same time, Congress, with very little debate and almost no legislative history, issued or included a provision in the amendment of the Mineral Leasing Act that authorized issuance of rights of way over federal land by the Secretary of the Interior or the Secretary of Agriculture, depending on the lands involved and the number of types different land involved, with the exception of rights of way through, for our purposes, lands in the national park system.


      The Fourth Circuit issued an opinion in December of 2018 that found that the National Trails System Act, by placing the Department of the Interior in charge of administering the Appalachian Trail, that Congress had sub silentio by implication, transferred the jurisdiction, the management jurisdiction, of the land traversed by the Trail from the Secretary of Agriculture, who'd acquired under the Weeks Act, to the Parks Service. And because it was Park land or land in the Park System, it was excluded from the Secretary of Agriculture's authority to issue a right of way for pipelines.


      There are two pipelines, as Roger noted, that are trying to cross the Appalachian Trail, each that have received a right of way under the Mineral Leasing Act, and each pipeline is now dependent for its completion, largely kind of for their completion, on resolution of the Cowpasture case, approximately $12 billion worth of investment divided between the two projects.


      The Atlantic Coast Pipeline -- I do not represent Atlantic Coast. Atlantic Coast is, I believe, roughly five percent built. The Mountain Valley Pipeline is roughly between 90 and 95 percent built. And in the case of Mountain Valley, the only serious impediment completion of the project is resolution of the decision in the Cowpasture case and reversal of that decision.


      The Court has been advised by the respondents in this case, the environmental groups that prevailed at the Fourth Circuit, that the correct interpretation -- that the Fourth Circuit correctly interpreted Congress's intent to move out of U.S.D.A. jurisdiction those lands that are crossed by the trail that are owned by the federal government.


The environmental groups have tried to make the argument, not very successfully in my view, that the private lands and state-owned lands that are also crossed on the trail and often crossed by the trail or the trail is held on those lands through easements acquired by the Park Service for the trail. The environmental groups have said that no, no, no, that those lands are not in the Park System. It's just the lands in the forest, the eight different forests crossed by the Trail.


The Atlantic Coast Pipeline and the Solicitor General have advised the Court that the Fourth Circuit's interpretation would apply to, or would likely apply to, all of the land irrespective of ownership crossed by the trail.


You will hear in the trade press and probably at argument, the United States and Atlantic Coast both asserting that the roughly 2200-mile extent of the Appalachian Trial is now a de facto barrier to completion of any natural gas pipeline.


When I earlier said that there was a noun and adjective to look for, the law is messy. The law, because there's no history of interpretation, because nobody's looked at these three laws in relation to each other before, and because there is an undercurrent here of disagreement over how to protect the Trail properly. There's a general acceptance the Trail's important and that the Trail suffers impacts from crossings by pipelines and other infrastructure.


Every party in front of the Court is at [inaudible 12:24] to argue that their position does not create a risk to the Trail, but fundamentally, the disagreement is between the Interior Department and the Agriculture Department about which agency can manage land appropriately to reflect contemporary public values.


This is a fight that goes back to the very beginning of the Forest System and the establishment of the Park System in the early 20th century, when most national parks came into existence by being carved out of land under the jurisdiction of the Forest Service. The two agencies have a century long history of contention over turf, over jurisdiction, and underlying the United States' position is a fierce determination by the Department of Agriculture not to give up an inch of their land to those people at the Park Service.


I think what you'll probably want to keep your eye on most closely during argument is how the parties demonstrate that not only is their interpretation of the text correct, but their desired result will disadvantage the Trail itself. It will be an interesting morning.


Roger, I think that's a good point to hand it off to Keith to disagree with me.


Roger J. Marzulla:  Well, I don't think anybody's going to disagree with your final statement, Tom, that it will be an interesting morning on Monday when the Supreme Court hears this case.


      Keith Bradley, what is the position of the Appalachian Trail Conservancy? Who are they? And how would they like to see this case come out?



Keith Bradley:  So thank you for putting this together. Let me begin by saying I think partly I've been assigned to talk about the positions of the respondents in this case. My clients does not fully share the position of the respondents and neither do I -- nor do I really speak for the Appalachian Trail Conservancy here, but I can tell you a lot about what the respondents have to say, obviously tell you about what the ATC has to say.


      One of the critical things to understand about the Appalachian Trail in particular, and some of the other national trails as well, is these are features that were developed privately. The Appalachian Trail was built beginning in the 1920s by a private non-profit initiative with close government involvement, but it was led by volunteers and the private sector. It was federalized through the National Trail Systems Act in 1968, but it has always been a patchwork of land owned by different federal agencies, different state agencies, private sector owners.


      I think at the time of the Trails Act, something like 40 percent of the Trail's length was through federally owned land, so only 40 percent. Over the succeeding decade, the federal government has bought more of that land, and probably about 80 percent of that land right now runs over federal land but still, not nearly all of it.


      And what arose under the Trails Act is a complex management system in which the Park Service holds the ring, but there are not that many people at the Park Service that are involved with this. I wouldn't venture to guess, but it's around the order of 5, 10 people in the Park Service office that's dedicated to the Appalachian Trail who are responsible for this 2200-mile long trail and 240,000 federal acres that are associated with it.


      As a practical matter, what happens is the Appalachian Trail Conservancy, which is the leading non-profit responsible for the Trail, does a lot of the management. A lot of the work on the ground is done by thousands and thousands of volunteers, all of which are under agreement with the Park Service and the Forest Service and a couple of other federal agencies whose land the Trail also crosses.


      The Trail also involves more than just a strip of land of which you might walk. You could imagine if somebody were to build 10-foot high sound barriers on either side of that footpath, you could still walk on it, but it would not be a very enjoyable experience. To preserve the Trail, it is very important to preserve the experience of the Trail. So that means the views, the wildlife, the tress, the everything else, the experience of what it is. It is not for all 2200 miles. It should not be a trail that just walks through suburbs. And so it's important to preserve the surroundings of it for development which both the Park Service and the Forest Service have long been sensitive to.


      Part of the reason that there are 240,000 acres or so of federal acres involved in the Trail is precisely that, to preserve land that it doesn't go over but that is close to it in some way where development over there would affect the experience of hikers on the Trail itself. The Trail has moved around over the years. It gets moved for any manner of different reasons. The most significant was probably a shift after the building of the Blueridge Parkway. About 200 miles or so of trail had to get moved a significant distance. But other pieces of it moved around over time as well, so it is not fixed where it is.


      The position of the respondents in this case -- and I want to pause here, by the way and just note, as Tom was saying, this case is a bit of a mess. One of the features of that mess is that the argument where -- that is before the Supreme Court arose really in a reply brief in the Fourth Circuit in which the respondents here argued that some particular -- the Forest Service had made some argument about how it needed -- did need to think about this thing in [inaudible 17:46] or didn't need to think about it. And they said oh, well, in rebuttal to that, of course, you would've needed to think about this because of this.


      And there's this authorities issue in the first place. A very strange way for an issue to come up that really, if this issue were correct, ought to have blocked being in consideration of this lease from the beginning. but here we are. And the respondent's position is it has a very simple appeal to it is this. The Mineral Leasing Act says you cannot grant a lease for a pipeline across lands in the National Park System.


      Is the Appalachian Trail's land in the National Park System? Well, the Organic Act for the National Park Service says that the National Park System consists of areas of land and water administered by the National Park Service. Is it an area? Is it land? Is it administered by? Well, the Trails Act says that the Appalachian Trail shall be administered by the Secretary of the Interior, but the Park Service, shall be administered by the Park Service, primarily as a foot path.


      So TBD, it is land, and the respondents say look, it's a foot path. It's land. What else is it? It is a bunch of rights of way, easements are real property interest. Sounds like land. They have bought a bunch of land to be next to the Trail and associated with it. What more could you want to say that it is land administered by the National Park Service? And sure, some of it is owned by the Forest Service, but there are other national parks that include lands owned by other parts of the federal government or not owned by the federal government at all.


      Significant chunks of Marquee National Parks are not purely owned by the Park Service. Grand Teton National Park, for example, is not fully owned by the Park Service. There are also urban national parks, or units in the National Park System, that are entirely private or are entirely owned by local government. So there's nothing new or strange about the notion that there is some Forest Service land that we're going to say is lands within the National Service Park System.


      And meanwhile, it is quite sensible that Congress would have wanted to prohibit the crossing of pipelines on this national treasure, at least on the federally administered land. And the respondent also says this is not a 2200-mile long firewall against pipelines because pipelines can cross on state and private land. In which case, yes, that would be part of the National Park System, but you would not need a federal easement in the first place because the federal government doesn’t own the land.


      Remains to be seen how the Court will treat that idea, but their position does not convert the entirety of the 2200-mile long trail as just blocks that you can't cross with a pipeline, It just means you can't do it on federally owned land, which, as I said, is about 80 percent of the length right now crosses federal land.


      So the argument is that Congress understood all of this. In the late ‘60s, there was a lot of movement in environmental legislation, including the Trails Act and including certain important overhauls to the Park Service's Organic Act. And Congress knew exactly what it was doing when it amended the Mineral Leasing Act to refer to land in the National Park System.


      There is no inconsistency in saying that they chose to do that while leaving the underlying hand in the hands of the Forest Service. So with that, I will pause, and let's see if anybody has any questions.


Thomas C. Jensen:  I think it's important to add one additional layer here. One observation and layer of information, the observation is that Keith's client and mine both win if the Fourth Circuit is overturned. You don't often find a pipeline company -- I should say my client as far as Atlantic Coast and the Forest Service all win with ATC because the management system that has worked in fact, not in theory but in fact, for more than -- for a century now, a century next year, has treated the Trail where it crosses Forest Service land as not a transfer of jurisdiction to the Park Service and has allowed each agency involved to continue to exercise all of the attributes of agency land management jurisdiction.


      And to this point, in the history of the Appalachian Trail until December, a year and a half ago, it had never been in doubt whether the Trail in the forest was on Forest land. The Trail crosses national park land. It is surely -- everyone can see it's national park land. It's inside Shenandoah and Great Smokey Mountain and Mount Katahdin. Those are parks. Everyone knows it, even Harpers Ferry.


But the Trail also crosses land owned by the Smithsonian Institution, the Tennessee Valley Authority, Fish and Wildlife Service. And if the Trails Act worked a land jurisdiction transfer, it worked it everywhere because it didn't say anything. There's no transfer language in the Trails Act.


      The environmental community's thesis that they conveniently tried to trim down actually applies to all of the acreage along the way. The complexity here of the land ownership is likely to be confusing to some on the Court because as Keith notes, 80 percent of the Trail is in federal ownership. The majority of that is Forest Service land or what was before Cowpasture Forest Service land. But then there's at least two flavors of Park Service land.


There's land that the Park Service has acquired in fee for the Trail. There is foot paths on other national park land, such as Shenandoah. And then on private and to some degree on state land, there are easements. There's a lot of commonality among the easements, but each easement is its own instrument and each easement has potentially some differing details.


It is a complicated patchwork that has been managed by the agencies and the Appalachian Trail Conservancy with a great deal of tolerance for ambiguity. That's the best way to put it. They've made it work. That system, in approach and collaboration, is what's really at issue when the Court convenes on Monday.


Roger J. Marzulla:  I was going to ask you a question, Keith, and I think you might already be primed to respond to that. But it seems to me that having listened to the two of you, the question in my mind is what is the future of private-public cooperation in the administration of something like the Appalachian Trail?


We have lots of other trails. We have the Rails-to-Trails Program across this country, Pacific Crest Trail, the kind of sister on the west coast. Are these operations, which are primarily run by private entities and volunteers, doomed? And are we to have no such trails unless they're administered by people on the federal payroll?


Keith Bradley:  I hope not. And I will say that the Appalachian Trail management structure was a model when the Trails Act was passed. Everybody regarded it as a good thing, and part of the idea was to put in place a structure to help copy it for other trails. And I think it has continued to be that. Some of the other national trails would love to be as well-developed in these ways as the Appalachian Trail is.


      I don't think that the case is necessarily going to tear that apart. I think that if the Fourth Circuit's decision is affirmed, I would like to think that -- so first off, when you say briefs really come to grips with what the full implications of it would be, one feature of that is great, so you can't have a pipeline easement on any federal land related to the trail. But what are the other consequences of saying that the entirety of the federal land is, regarding the trail, is National Park Service land?


The briefs don’t really grapple with that. Nobody has really gone to look at the rest of the U.S. code to see what other consequences it might have, but I'll give you just one flavor. As Tom mentioned, there's [inaudible 26:10] authority land. The Trial crosses a couple of dams, and there are authorities in the Park Service's Organic Act that describe how they are allowed to provide easements for water conduits and things like that.


      Before we do anything with those dams, do we need to assess the viability of those plans against the Park Service's statutory mandates and authorities? I would like to think that changes to the dams would respect the values of the trail, but that's far short of what would be at stake if you needed a full Park Service authorization for that kind of thing.


      The ramifications like that, I mean, I won't even guess how large they are there because nobody has really thought that through yet. The one thing that I think will not, I hope, be at risk is the volunteer involvement. To be blunt, the Appalachian Trail will not survive if it has to be done entirely by federal employees. There is not the money, there is not the staff. It is hundreds of thousands of hours, or more, of volunteer work that goes into maintaining the Trail. And there's no sign the federal government is about to -- wants to step up and pay for that or really could mobilize an employee force or contractor force in the time required to do that.


      But I don't think that the case necessarily produces that result. It will be much more complicated if the Park Service gets put in as everything has to go through the Park Service because they don't really -- they're not setup to do that for the entirety of the trail because they've not acquired that role. But I think it should still be possible to maintain a volunteer model for running these trails. It took a couple decades after the Trails Act to really get to where we are and maybe it'll take another couple decades again.


Roger J. Marzulla:  Tom, I have a question for you. You began by giving us a lesson in particles of speech: nouns and adjectives. And I think that raises the question of the role of textualism, textualism as given by Justice Scalia. Justice Kagan has commented that we're all textualists now.


What is the Supreme Court to do with a statutory muddle such as you and Keith, I think, have both described in which, shall we say, Congress perhaps was not as careful with the language it used and maybe didn't even had a real clear idea in mind as to who might be granting these rights of way to cross the Appalachian Trail. How does the doctrine of textual interpretation, textualism, impact how should the Court apply those principles in deciding this case?  


Thomas C. Jensen:  I don't think there is an honest way to unravel the case with confidence relying entirely on the text. Can't rely on the text to demonstrate that Keith is right and that I'm right, and we have the better side of the textual argument. But it's still would leave -- if that's all one looks at, one would be confused wondering how did we get here? Why is this like this?


      I believe strongly -- and our brief is all about the context for the text. I'll give you the best example, I think, it doesn't go right to the center of the target, but it's instructive. As I noted, the Mineral Leasing Act amendments came a little less than five years after passing the Trails Act. The law makers who championed the Mineral Leasing Act amendments were exactly the same members of the Senate and the House who championed the Trails Act. Concrete examples: Senator Henry Jackson, Chairman of the Senate Energy and Natural Resources Committee, it was Interior [inaudible 30:12] and Energy and Natural Resources.


He championed the Trails Act, and five years later, he fought to amend the Mineral Leasing Act. And the odds that Scoop Jackson thought when he was or intended when he was pushing to amend the Mineral Leasing Act that the Trail he helped federalize five years earlier would be an absolute barrier to pipelines is absurd. There's no way, there's no discussion in the legislative history of the Mineral Leasing Act anywhere, any of the trails, including particularly the Appalachian Trail, being the kind of land, the kind of federal ownership, the kind of jurisdiction that would stop issuance of a pipeline right of way.


      These were the same individuals, the same lawmakers, on the one hand approved the Trail and the other hand passed legislation to promote federal rights of way for gas and petroleum pipelines. And the odds that Congress would erect a 2200-mile long or let's say, let's call it a thousand-mile-long or even a hundred-mile-long, barrier by implication is -- it's just absurd.


And there are enough justices who will recognize that, I hope that I'll win some of my bets about the margin of success. The number of justices who agree with our view, but this is one of those moments where textualist analysis is enough to get you over the 50 percent mark, but I think the real answer lies in the broader context: what Congress was trying to do by creating forest, by promoting the system of trails, and by promoting pipeline rights of way in most places except national parks.


Roger J. Marzulla:  I would be interested in hearing from both you, Keith, first perhaps, and then Tom second. Is this really just a bureaucratic tug of war between two government agencies? And if so, why should we care?


Keith Bradley:  I'm not quite as sure that it is a tug of war between two government agencies in the sense that I'm not convinced that the Park Service wants the role that the respondents want to push it into here. The more they think about it, probably the less they really want it. It is a tug of war between people who want the pipeline stopped and people who want it to go forward.


      And I think the history of the case reveals that. The fact that if this were truly the agencies fighting with each other, this would not have come up at the very last minute in the Fourth Circuit briefing. This is an attempt to use whatever tools are available to stop this pipeline. And to be honest, the Fourth Circuit sent the thing back or remanded the decision on other grounds. This just happens to be the one that has broad consequences for other things.


      Why should we care? I don't know that this case has broad implications for the structure of federal government or how to read statutes. It is such a mess that I suspect that the Court's decision will not teach us much about how to read a statute, but it does have a great deal of implication for the development of infrastructure on the eastern seaboard, which is obviously a pretty important effector.


Roger J. Marzulla:  Tom, please.


Thomas C. Jensen:  First, on the implications, to be clear, if the Fourth Circuit opinion is upheld by the Supreme Court, the pipeline industry in particular can expect to have the precedent and this interpretation of the Trails Act used everywhere a pipeline crosses any one of the -- oh, I can't remember the mileage, but it's tens of thousands of miles of trail, national trails of various types around the country. And --


Keith Bradley:  Yeah. It definitely is not just the Eastern seaboard, you're right. The proximity of administered trails elsewhere, I can't remember what they all are. Very important.


Thomas C. Jensen:  Now, the Park Service administered trails as well that actually crossed through national parks, and that’s one of the absurd, clearly unintended results of the environmental communities' victory at Fourth Circuit is that if you apply the logic of the Fourth Circuit, then the Pacific Crest Trail, which is administered by the Secretary of Agriculture, the Forest Service, it traverses, I think it's 12 national park units, some very famous, like Rainier and Yosemite and Sequoia and Columbia Gorge and others. If you extend the theory to the Pacific Crest Trail, then there are strips of land in those parks that are under the jurisdiction of and now the land of that National Forest System.


      Your question about whether it's really a turf battle, it mirrors the turf battles as they define the relationship between the parks in the forests since the beginning, since Gifford Pinchot and Stephen Mather and others who were contending for America's coolest pieces of geography, but it's an accidental fight.


      This is a fight that, in fact, the Secretary of Agriculture and the Secretary of Interior formally renounced in what's called the Treaty of the Potomac in 1963, a signed agreement between the two secretaries, handed to the President, President Kennedy, where each secretary promised never again to try to raid the jurisdiction of the other secretary's land portfolio, a remarkable document. Two secretaries promising to behave in writing in a letter to the President. Really, quite something, Stewart Udall and Orville Freeman.


      So it mirrors that conflict, but it was an accident. It reminds me of the time my very old fat cat was lying in the sun below a window in our house when a pigeon flew into the window, killed itself, and fell on the cat. And I saw this happened because I was sitting in the garden. And I think Park Services, my old cat, suddenly has a dead pigeon land in its lap and think oh my god, my dreams have come true. The Park Service doesn’t want to have jurisdiction over the whole trail.


      There are a lot of park advocates who think that’s a good outcome. Some filed an amicus brief: the former superintendent of the Appalachian Trail filed an amicus brief along with former director of the Park Service, claiming that it's a park. It's a real rebuke to and disavowal of the cooperative relationship that the Park Service has had with the Forest Service over the years, but it mirrors this old fight over turf.


Roger J. Marzulla:  I'd like to give each of you a minute to sum up and give us any last thoughts. Keith, do you want to comment on the fat cats at the Park Service?


Keith Bradley:  I think that Tom is exactly right. The Park Service itself, they were not deeply vocal opposing this. They have not stood up at some various points to say no, this is absolutely right. Not that it'd be easy for them to do so, it's part of the government. But you see this coming from the former superintendent and the former Park Service officials. It's easy for them to say. The people who are in the Park Service, I think, get that this would be an unmanageable responsibility for them to take on if they were to truly treat the Appalachian Trail as a 2000-mile long park.


Roger J. Marzulla:  Tom, final words?  


Thomas C. Jensen:  There are no fat cats at the Park Service, just to be clear. It was an unfortunate suggestion on my part. I think the most interesting aspect of the argument Monday will be seeing how many of the justices feel comfortable discussing public lands law rather than the pure textualist approach. For justices who don't have expertise in public lands law, this will be more of a struggle than it will be for the others. For example, Justice Gorsuch, from his background and circuit, won't have any trouble seeing through what these laws meant, what Congress intended irrespective of what they say. But some of the other justices with less exposure to those types of cases may really struggle, as the Fourth Circuit did.


      What we're seeing here, in large part, is a circuit that doesn't have a deep well of expertise in public lands law. They're going to have a lot more soon.


Roger J. Marzulla:  Keith Bradley and Tom Jensen, I think this has been a fascinating discussion. I think the oral argument on Monday at the Supreme Court will be a lesson for all of us. Perhaps we can get you gentlemen to come back and revisit this after the Supreme Court has decided the case and explained to us what they really did and whether Tom, Keith, or someone else has won the pool that has been taken up as to how the Supreme Court's going to come out.


Wesley Hodges:  Thank you so much, Keith and Tom, for the delightful conversation. On behalf of The Federalist Society, I'd like to thank everyone for the benefit of their valuable time and expertise. We welcome all of your feedback by email at [email protected]. Thank you all for joining us for this call. We are now adjourned.


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