Reversing the Fourth Circuit, the Supreme Court on Monday issued its opinion in United States Forest Service v. Cowpasture River Preservation Association, No. 18-1584 (June 15, 2020). In a 7-2 decision, Justice Thomas wrote for the majority that the Appalachian National Scenic Trail’s passage through United States National Forest land is best viewed as a grant of an easement to the National Park Service rather than a transfer of ownership of the underlying land. In doing so, the Court upheld the Forest Service’s right to permit a pipeline to run beneath the Trail under the Mineral Leasing Act (MLA).

As we wrote in 2018 the Fourth Circuit held, inter alia, that the Forest Service lacked statutory authority to grant a pipeline right-of-way to Atlantic Coast Pipeline through the George Washington National Forest and, more particularly, crossing under the Appalachian Trail. Specifically, the plaintiffs argued, and the Fourth Circuit agreed, that because the National Trail Systems Act grants authority over the Appalachian Trail to the Park Service, the Forest Service could not lease land under the Trail to Atlantic Coast Pipeline. As the MLA’s grant of the right to lease Federal land for pipeline purposes expressly excludes land owned by the Park Service, the Fourth Circuit’s decision doomed the pipeline as routed. After the Fourth Circuit denied to rehear the matter en banc, the Forest Service and Atlantic petitioned the Supreme Court for certiorari.

In the opinion, Justice Thomas dispensed with the question before the Court in a very straight-forward manner. He emphasized that the granting of a right-of-way from the Forest Service to the Park Service for purposes of the Trail’s route did not, itself, constitute transfer of the land or of jurisdiction thereover. Likening this transfer to the granting of an easement across private property, which under common law is not considered a transfer of the underlying property rights themselves, Justice Thomas found it common sense that the right-of-way agreement between the federal entities did not convert the land into Park Service property. In short, “the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service.” (Slip op., p.10).

The Court also, briefly, buttressed its decision by citing to the Trails Act for the limited role played by the Park Service in administering the Trail, thereby undercutting arguments that the land was “really” Park Service land. Further, the opinion points to other statutes where Congress explicitly transferred the authority over specified land from one government agency to another. Because Congress had not explicitly done so here, Justice Thomas held that the Court cannot assume that such an action was intended.

The dissent, written by Justice Sotomayor and joined only by Justice Kagan, sharply disagreed, finding that, as the Appalachian Trail is administered by the Park Service, and as such is Park Service land, which is outside of the scope of land upon which mineral leasing rights can be granted. The dissent further distinguished the private-property comparison by emphasizing that all of the lands here belong to the federal government and thus analogizing to two separate property-right holders is inapposite.

This decision is not, however, the end, or beginning, of the story for the construction of the pipeline. The Fourth Circuit had also held that, even assuming the MLA applied, the National Forest Management Act and the National Environmental Policy Act had been violated in granting the special use permit and right-of-way. The Supreme Court’s decision thus returns the case back to the Fourth Circuit and, presumably, the Forest Service, to address these matters. Moreover, it is unclear how broadly this opinion will impact the permitting and construction of oil and gas pipelines more generally. If it does, the effect will be more profoundly felt in the West and Mountain West, where the presence of trails administered by the National Trails System is much more prevalent and a larger percentage of the land is held by the federal government.

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