Amicus Curiae Brief — United States Forest Service, et al., Petitioners v. Cowpasture River Preservation Association, et al.

Nos. 18-1584 and 18-1587

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In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES FOREST SERVICE, ET AL.,

Petitioners,

v.

COWPASTURE RIVER PRESERVATION

ASSOCIATION, ET AL.,

Respondents.

-----------------------------------------------------------------ATLANTIC COAST PIPELINE, LLC,

Petitioner,

v.

COWPASTURE RIVER PRESERVATION

ASSOCIATION, ET AL.,

Respondents.

-----------------------------------------------------------------On Petitions For Writs Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE

MOUNTAIN VALLEY PIPELINE, LLC

SUPPORTING PETITIONERS

-----------------------------------------------------------------THOMAS C. JENSEN

HOLLAND & HART LLP

975 F St. NW, Ste. 900

Washington, DC 20004

(202) 393-6500

GEORGE P. SIBLEY, III

HUNTON ANDREWS

KURTH LLP

951 E. Byrd St.

Richmond, VA 23219

(804) 788-8200

MURRAY D. FELDMAN

Counsel of Record

ALISON C. HUNTER

HOLLAND & HART LLP

800 W. Main St., Ste. 1750

Boise, ID 83702

(208) 342-5000

mfeldman@hollandhart.com

Counsel for Amicus

Curiae Mountain

July 26, 2019

Valley Pipeline, LLC

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

This case involves the intersection of three federal

public lands laws—the Weeks Act, National Trails System

Act, and Mineral Leasing Act—and Congress’s plenary

Property Clause authority to choose which Executive

Branch department will have jurisdiction over certain

portions of the federal public lands.

The 1911 Weeks Act authorized the federal acquisition of private forest lands in the eastern United

States, to be “permanently reserved, held and administered” by the Secretary of Agriculture “as national

forest lands.” 16 U.S.C. § 521. The 1968 National

Trails System Act (“Trails Act”) designated the Appalachian Trail as a national scenic trail to “be administered primarily as a footpath by the Secretary of the

Interior,” 16 U.S.C. § 1244(a)(1), but did not “transfer

among Federal agencies any management responsibilities established under any other law for federally administered lands” traversed by a designated trail, id.

§ 1246(a)(1)(A). The Mineral Leasing Act (MLA), as

amended in 1973, authorizes the “Secretary of the Interior or appropriate agency head” to grant rights-ofway through any federal lands “for pipeline purposes

for the transportation of oil [and] natural gas.” 30

U.S.C. § 185(a). “Federal lands” means “all lands owned

by the United States except lands in the National Park

System.” Id. § 185(b)(1). The question presented is:

Whether the Forest Service has authority to grant

rights-of-way under the Mineral Leasing Act through

lands traversed by the Appalachian Trail within national forests.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF AUTHORITIES .................................

iv

INTEREST OF AMICUS CURIAE ......................

1

BACKGROUND ...................................................

4

SUMMARY OF ARGUMENT ..............................

9

REASONS WHY THE PETITIONS SHOULD

BE GRANTED .................................................. 10

I.

The Appalachian Trail Segment Crossed

By The ACP Project Is Not “Land In The

National Park System” Under The Mineral Leasing Act ......................................... 12

A. Statutory Background ......................... 13

1. The National Forest System ........... 13

2. The National Park System ............. 15

3. The National Trails System ........... 16

B. When Congress Transfers Administrative Jurisdiction From The Agriculture

Department’s Forest Service And The

Interior Department’s Park Service, It

Does So Explicitly .................................. 18

II. The Circuit Court’s Holding Conflicts With

This Court’s Decisions On Harmonizing Potentially Conflicting Statutes ...................... 22

CONCLUSION .......................................................

25

iii

TABLE OF CONTENTS—Continued

Page

ATTACHMENT A: Federal Power Commission,

Map of Major Natural Gas Pipelines as of

June 30, 1968 ................................................... App. 1

ATTACHMENT B: Contemporary Appalachian

Trail location overlay placed on Federal Power

Commission, Map of Major Natural Gas Pipelines as of June 30, 1968 ................................... App. 2

iv

TABLE OF AUTHORITIES

Page

CASES

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ........23

FCC v. Fox TV Stations, 556 U.S. 502 (2009) .............23

Light v. United States, 220 U.S. 523 (1911) .................9

Morton v. Mancari, 417 U.S. 535 (1974) .....................23

Sierra Club, Inc. v. U.S. Forest Serv., 897 F.3d 582

(4th Cir. 2018)............................................................3

United States v. Grimaud, 220 U.S. 506 (1911) .........14

United States v. New Mexico, 438 U.S. 696 (1978) ...... 14

Whitman v. Am. Trucking Ass’n, 531 U.S. 457

(2001) .......................................................................20

STATUTES AND REGULATIONS

16 U.S.C. § 192b-9 .......................................................19

16 U.S.C. § 403-3 .........................................................20

16 U.S.C. § 403k-1 .......................................................19

16 U.S.C. § 410mm-2...................................................19

16 U.S.C. § 472 ............................................................13

16 U.S.C. § 521 ...................................................... 10, 14

16 U.S.C. § 521a ..........................................................14

16 U.S.C. § 1241(a) ......................................................16

16 U.S.C. § 1242(a) ......................................................16

16 U.S.C. § 1244(a)(1) ............................................. 8, 17

v

TABLE OF AUTHORITIES—Continued

Page

16 U.S.C. § 1244(a)(2), (13), (14), (27), (30).................24

16 U.S.C. § 1244(a)(5) .................................................24

16 U.S.C. § 1246(a)(1)(A) ........................................ 8, 17

16 U.S.C. § 1246(b) ......................................................18

16 U.S.C. § 1246(i) .......................................................18

54 U.S.C. § 100101 ......................................................16

54 U.S.C. § 100102 ......................................................12

54 U.S.C. § 100501 ......................................................12

Act of Jan. 15, 1968, Pub. L. No. 90-544, 82 Stat.

926 (codified at 16 U.S.C. § 90b(a)) .........................19

Act of Mar. 1, 1911, ch. 186, § 9, 36 Stat. 962, § 6

(codified at 16 U.S.C. § 515) ....................................14

Act of Nov. 9, 2000, Pub. L. No. 106-471, 114 Stat.

2057 .........................................................................15

Act of Oct. 30, 1984, Pub. L. No. 98-586, 98 Stat.

3105 .........................................................................22

Forest Transfer Act of 1905, ch. 288, § 1, 33 Stat.

628 (codified as amended at 16 U.S.C. § 472) ......... 13

Forest Reserve Act of 1891, ch. 561, § 24, 26 Stat.

1103 (codified at 16 U.S.C. § 471 (repealed

1976)) .......................................................................13

Multiple-Use Sustained-Yield Act of 1960, 16

U.S.C. §§ 528-531.....................................................14

Nat’l Park Serv. Organic Act of 1916, ch. 408, § 1,

39 Stat. 535 (codified as amended at 54 U.S.C.

§ 100101) .................................................................16

vi

TABLE OF AUTHORITIES—Continued

Page

Organic Administration Act of 1897, ch. 2, § 1,

30 Stat. 34 (codified at 16 U.S.C. § 475) .................13

Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136 ........21

36 C.F.R. § 200.3(b)(2).................................................14

OTHER AUTHORITIES

Appalachian Trail Conservancy, The Appalachian Trail: Celebrating America’s Hiking

Trail (2012) ................................................................6

Bureau of Land Mgmt., Mountain Valley Pipeline

Project Record of Decision (Dec. 20, 2017) ..... passim

Charles F. Wilkinson & H. Michael Anderson,

Land and Resource Planning in the National

Forests, 64 Or. L. Rev. 1 (1985) .......................... 14-15

Cong. Research Serv., R43868, The National

Trails System: A Brief Overview (2015) ..................17

Elmo R. Richardson, The Politics of Conservation:

Crusades and Controversies 1897-1913 (1962) .......16

Exec. Order No. 5867 (June 28, 1932) ........................14

Fed. Energy Regulatory Comm’n, Mountain Valley

Pipeline Project Final Environmental Impact

Statement (2017)................................................... 2, 4

Forest Serv., U.S. Dep’t of Agric., George Washington National Forest: A History (1993) .....................14

Harold K. Steen, The U.S. Forest Service: A History

(1976) .......................................................................14

H.R. Rep. No. 64-700 (1916) .......................................16

vii

TABLE OF AUTHORITIES—Continued

Page

John Ise, Our National Park Policy: A Critical

History (1961) ..........................................................15

Joseph L. Sax, Mountains Without Handrails,

Reflections on the National Parks (1980) ...............15

National Historic Trails, Nat’l Park Serv.,

https://www.nps.gov/subjects/nationaltrails

system/national-historic-trails.htm........................24

Nationwide System of Trails: Hearing on S. 827

Before the Comm. on Interior and Insular

Affairs, 90th Cong. 66 (1967) ................................ 6, 7

Nat’l Park Serv. U.S. Dep’t of the Interior, Trails

for America: Report on the Nationwide Trail

Study (1966) .......................................................... 5, 6

Nat’l Parks Conservation Ass’n, Appalachian

National Scenic Trail: A Special Report (March

2010) .................................................................... 8, 12

Presidential Remarks Upon Signing Four Bills

Relating to Conservation and Outdoor Recreation, 2 Pub. Papers 1000 (Oct. 2, 1968).................19

Proclamation No. 1448, 40 Stat. 1779 No. 1448

(1918) .......................................................................14

Proclamation No. 2165, 1 Fed. Reg. 227 (Apr. 24,

1936) ........................................................................14

Ross W. Gorte, Cong. Research Serv., RL34772,

Proposals to Merge the Forest Service and the

Bureau of Land Management: Issues and Approaches (2008)........................................................21

viii

TABLE OF AUTHORITIES—Continued

Page

Sally K. Fairfax, Federal-State Cooperation in

Outdoor Recreation Policy Formation: The Case

of the Appalachian Trail (1974) (Ph.D. dissertation, Duke University) ................................. passim

Samuel Trask Dana & Sally K. Fairfax, Forest

and Range Policy (McGraw-Hill Series in Forest Resources) (1980) ................................................6

T.H. Watkins, Righteous Pilgrim: The Life and

Times of Harold L. Ickes, 1874-1952 (1990) ...........21

U.S. Gov’t Accountability Off., GAO-09-223, Federal Land Management: Observations on a

Possible Move of the Forest Service into the Department of the Interior (2009) ...............................21

1

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Mountain

Valley Pipeline, LLC (“Mountain Valley”) submits this

brief as Amicus Curiae in support of the Petitioners

United States Forest Service (“Forest Service”), et al.

in No. 18-1584 and Atlantic Coast Pipeline, LLC (“Atlantic Coast”) in No. 18-1587.1

Mountain Valley is developing the Mountain Valley

Pipeline (“MVP” or “Project”), a 303.5-mile natural gas

pipeline from northeastern West Virginia to southern

Virginia. The route crosses the Appalachian National

Scenic Trail (“Appalachian Trail” or “Trail”) along the

West Virginia-Virginia border within the Jefferson National Forest, which the Forest Service administers.2

The federal statutory regime that governs the Atlantic

Coast Pipeline (“Atlantic”) also governs MVP.

MVP would connect areas of natural gas production in the Appalachian Basin with growing markets

in the Northeast, Mid-Atlantic, and Southern United

1

Counsel for all parties in Nos. 18-1584 and 18-1587 have

provided written consent to this filing and were given proper

timely notice of Amicus Curiae’s intent to file a brief under Rule

37.2. Pursuant to this Court’s Rule 37.6, no person or entity other

than Mountain Valley and its counsel authored this brief in whole

or in part, and Mountain Valley has exclusively funded the brief ’s

preparation.

2

Bureau of Land Mgmt., Mountain Valley Pipeline Project

Record of Decision, at v (Dec. 20, 2017) (“MVP ROD”), https://eplanning.

blm.gov/epl-front-office/projects/nepa/75521/130130/158226/BLM_

MVP_Record_of_Decision.pdf.

2

States.3 MVP is designed to meet rising demands for

natural gas and alleviate constraints on natural gas

production and transportation.4 The Federal Energy

Regulatory Commission (FERC), in cooperation with

the Forest Service and other federal agencies, prepared

an environmental impact statement for MVP pursuant

to the National Environmental Policy Act (NEPA), and

issued a Certificate of Convenience and Public Necessity for the Project in October 2017.

FERC’s approval provides Mountain Valley the legal right to construct and operate MVP on a delineated

route and requires Mountain Valley to take steps to

protect public safety and the environment.5 FERC’s

approval specifies that Mountain Valley is to obtain

and comply with the terms of a right-of-way to cross

the Jefferson National Forest, including the portion

traversed by the Appalachian Trail. The same MLA authority that is the subject of the Petitions provides

Mountain Valley its right-of-way to cross the Jefferson

National Forest and the Trail.6

3

See Fed. Energy Regulatory Comm’n, Mountain Valley Pipeline Project Final Environmental Impact Statement ES-2, 1-8, 2-3

(2017) (“MVP FEIS”), https://elibrary.ferc.gov/idmws/file_list.asp?

accession_num=20170623-4000.

4

MVP FEIS 1-8, 1-9; MVP ROD, Attach. B (Plan of Development) 1-5, 1-6, https://eplanning.blm.gov/epl-front-office/projects/nepa/

75521/130388/158585/Attachment_B:_Plan_Of_Development.pdf.

5

MVP ROD 5.

6

MVP’s right-of-way also includes a small area under the jurisdiction of the U.S. Army Corps of Engineers. The Department

of the Interior’s Bureau of Land Management (BLM) issued

MVP’s right-of-way in consultation with the Forest Service

3

Conservation groups did not challenge the statutory authority for MVP’s Trail crossing right-of-way.7

By the time the Fourth Circuit issued the decision that

Petitioners ask to be reviewed, Mountain Valley had

completed roughly 67 percent of the Project, an investment of roughly $3 billion. Mountain Valley had prepared to drill a borehole under the Trail but suspended

its plans after the decision below. The MVP Trail crossing remains unfinished today—a key missing link for

the almost-completed MVP project.

This Court’s decisions on the Petitions will directly

affect Mountain Valley. Petitioners in No. 18-1584 correctly note that any alternatives for federal approval

to cross the Trail are uncertain. Pet. 27, n.15 (No. 181584).8 Every alternative route crosses the Trail. All

because the MLA assigns BLM responsibility to issue rights-ofway involving lands under jurisdiction of two or more federal

agencies. MVP ROD, at v, 1.

7

Conservation groups did challenge MVP’s right-of-way on

other MLA grounds and associated Forest Service forest plan revision and NEPA grounds. See Sierra Club, Inc. v. U.S. Forest

Serv., 897 F.3d 582, 604-05 (4th Cir. 2018). The Fourth Circuit

rejected most of the groups’ arguments but did identify three procedural flaws in the agencies’ actions. The court vacated the BLM

and Forest Service decisions and remanded for proceedings consistent with the court’s decision. Id. at 587, 596, 601-06.

8

Mountain Valley owns land adjacent to the Jefferson National Forest in Virginia that the Trail crosses, which appears to

be the only remaining private parcel where the Trail is not protected from commercial development through a conservation

easement or federal ownership. Both the Forest Service and National Park Service have the authority under their respective jurisdictions to exchange real property interests with Mountain

Valley. Both agencies, pursuant to congressional direction, have

4

alternatives would require Mountain Valley to restart

the federal approvals process, guaranteeing additional

years of delay and uncertainty. All alternative routes

studied in the MVP EIS demonstrated greater degrees

of environmental or safety risk.9 No alternative is

available to Mountain Valley that is not likely to be

challenged before the Fourth Circuit by the same conservation groups that are parties to this action or those

that challenged MVP.

------------------------------------------------------------------

BACKGROUND

1. As approved by the Forest Service and FERC,

MVP would cross under the Trail footpath on the forested ridge marking the Virginia-West Virginia border,

west of Roanoke, Virginia. The Forest Service required

Mountain Valley to construct a 600-foot-long bore

roughly 80 feet beneath the ridgetop and Trail. By

placing the pipeline at this depth, the Forest Service

preserved a football field-length (300-foot) forested

buffer to each side of the Trail. Drilling equipment

would temporarily be placed in pits downslope and not

visible from the Trail. All construction-related impacts,

worked for decades to obtain permanent protection for the entirety of the Trail. However, the uncertainty resulting from the

Fourth Circuit’s decision regarding agency jurisdiction has created a further obstacle to completing a land exchange that would

protect the Trail while providing a right-of-way for MVP.

9

See MVP FEIS § 3.0; MVP ROD 23-27.

5

such as noise, would be temporary, and no construction

would occur on the footpath.10

The Forest Service and BLM were well on their

way to addressing the Fourth Circuit’s remand regarding MVP’s approvals to cross the Jefferson National

Forest when the Fourth Circuit issued the decision below. Mountain Valley was not a party to that proceeding, but the decision had the same practical effect for

MVP as it did for Atlantic—no federal agency could

lawfully issue an MLA right-of-way to either pipeline

to cross the Trail on national forest lands.

2. The Appalachian Trail was conceived by private individuals and hiking clubs in the 1920s as a

footpath from Maine to Georgia.11 With the support of

the Forest Service, the George Washington and Jefferson national forests and six other national forests

along the Appalachians have included segments of the

Trail since its beginning. The National Park Service

(“Park Service”) supported Trail construction in Shenandoah and Great Smoky Mountains national parks.

Groups of private volunteers, including numerous

hiking and outdoor recreation-oriented clubs along the

eastern seaboard, took responsibility for construction

10

MVP ROD 27.

See Nat’l Park Serv., U.S. Dep’t of the Interior, Trails for

America: Report on the Nationwide Trail Study 32-33 (1966) (“Trails

for America”), https://www.nps.gov/noco/learn/management/upload/

trails-for-america-1966.pdf.

11

6

and maintenance of local trail segments.12 The Forest

Service and the Park Service dedicated significant

effort to trail-building under various Depression-era

public works programs.13 By the time the Trail was

completed in 1937, more than 700 miles of the 2,200mile footpath had been constructed on federal lands,

mostly national forests. The majority of the newly completed Appalachian Trail, however, remained on private or state lands.14

The Park Service and the Forest Service were both

proponents of the Trail throughout its construction

and worked cooperatively to ensure maintenance and

protection of the Trail after its completion.15 Despite

the federal land managers’ important roles, most responsibility for trail management remained with the

local trail clubs.16

12

Trails for America, 32-33; see generally Appalachian Trail

Conservancy, The Appalachian Trail: Celebrating America’s

Hiking Trail 15-38 (2012).

13

Sally K. Fairfax, Federal-State Cooperation in Outdoor

Recreation Policy Formation: The Case of the Appalachian Trail

26-27 (1974) (Ph.D. dissertation, Duke University). Sally Fairfax

is a professor of forest policy, emerita, at the University of California, Berkeley, College of Natural Resources, where she was the

Henry J. Vaux Distinguished Professor of Forest Policy. She is the

co-author of what for years was the standard college text on

United States forest and rangelands policy. See Samuel Trask

Dana & Sally K. Fairfax, Forest and Range Policy (McGraw-Hill

Series in Forest Resources) (1980).

14

Fairfax, Federal-State Cooperation, supra note 13, at 27.

15

See id. at 26-27.

16

See Nationwide System of Trails: Hearing on S. 827 Before

the Comm. on Interior and Insular Affairs, 90th Cong. 66 (1967)

7

Demand for outdoor recreation rebounded after

World War II. Close to major eastern cities, the Appalachian Trail drew increasingly heavy use by hikers.

Commercial and residential developments on private

forest and farm lands used by or visible from the Trail

threatened to displace the Trail and damage hikers’

experiences. Throughout the 1950s and 1960s, Trail

advocates sought to win federal support for land acquisition and other related measures to protect and improve the Trail.17 Discord and lack of coordination

among the many different trail clubs, private landowners, and various agencies regarding the footpath revealed the need for a central entity to perform a

unifying, coordinating role, especially with respect to

government acquisition and protection of private

lands.18

3. The hiking advocates’ efforts culminated with

passage of the National Trails System Act in 1968. The

Trails Act designated the Appalachian Trail as one of

the first national scenic trails. The Trails Act sought

to provide a mechanism for coordination among and

(statement of Edward Garvey, Secretary Appalachian Trail Conference).

17

Fairfax, Federal-State Cooperation, supra note 13, at 3132.

18

See, e.g., Nationwide System of Trails Hearing, supra note

16 at 66 (noting that most of the problems on the public land the

Trail crosses “have resulted from lack of coordination among most

agencies”); Fairfax, Federal-State Cooperation, supra note 13, at

31-33 (discussing developments encroaching on the Trail and discord among states, private land owners, trail clubs regarding

management and access to the Trail).

8

additional resources to the numerous parties involved

in maintenance of the Trail, providing that the Trail

“shall be administered primarily as a footpath by the

Secretary of the Interior, in consultation with the

Secretary of Agriculture,” 16 U.S.C. § 1244(a)(1). The

Secretary of the Interior then delegated Trails Act responsibilities to the Park Service. While providing

for inter-agency coordination, the Trails Act states

that it does not “transfer among Federal agencies

any management responsibilities established under

any other law for federally administered lands which

are components of the National Trails System,” id.

§ 1246(a)(1)(A).

4. Today, the Appalachian Trail passes through

14 states, eight national forests (that, together, host

1,015 miles, or 47 percent of the trail); six national

parks; two national wildlife refuges; land owned by

the Smithsonian Institution; and 67 state-owned land

areas.19 Roughly half of the Trail remains on non-federal lands, where all but a small segment is protected

under conservation agreements.

------------------------------------------------------------------

19

Nat’l Parks Conservation Ass’n, Appalachian National Scenic

Trail: A Special Report 1 (March 2010), https://www.nps.gov/

appa/learn/management/upload/AT-report-web.pdf.

9

SUMMARY OF ARGUMENT

The decision below presents a question of exceptional importance for public lands administration and

Congress’s exercise of its plenary Property Clause

power to decide how to manage federal lands and resources. See Light v. United States, 220 U.S. 523, 53637 (1911) (upholding federal government’s authority to

establish forest reserves administered by Secretary of

Agriculture). As this Court stated over a century ago,

“it is not for the courts to say how” the national forests

and the nation’s public lands “shall be administered.

That is for Congress to determine.” Id.

By holding that the Appalachian Trail segment

crossed by Atlantic consists of “lands in the National

Park System,” Pet. App. 55a, 57a (No. 18-1584), the

Fourth Circuit not only misapplied the plain language

of the law, but also usurped Congress’s exclusive constitutional prerogative to allocate among federal departments jurisdiction over federal lands. The Fourth

Circuit erroneously conflated the Trail-related coordination and administrative role that Congress assigned

to the Secretary of the Interior—and which the Secretary later delegated to the Park Service—with the

comprehensive land management and jurisdictional

responsibility Congress assigned to the Secretary of

Agriculture, acting through the Forest Service.

The Fourth Circuit’s decision directly contradicts

the Trails Act’s recognition that the federal agency administering the lands over which a national trail

passes may be different than the agency charged to

10

administer that trail. It also contradicts Congress’s

Weeks Act mandate that the national forest lands

crossed by MVP and Atlantic would be “permanently

reserved, held and administered as national forest,”

not national park, lands. 16 U.S.C. § 521 (emphasis

added).

The Forest Service and Park Service had for over

50 years prior to the circuit court’s decision consistently interpreted the Trails Act to not alter the Forest

Service’s jurisdiction. Congress chose to promote interagency and stakeholder coordination, but did so in a

way that maintained the Department of Agriculture’s

jurisdiction. Congress never designated the strips of

national forest lands used by the Trail as national park

lands. Congress simply assigned to the Interior Secretary the responsibility to acquire lands and coordinate

among the government agencies and trail clubs involved in managing various Trail segments.

------------------------------------------------------------------

REASONS WHY THE

PETITIONS SHOULD BE GRANTED

Rather than applying the plain text of the Trails

Act, which would harmonize it with the Weeks Act, the

Fourth Circuit’s decision found conflict where there is

none. The Fourth Circuit’s opinion usurps Congress’s

plenary Property Clause power and imposes a result

that conflicts with a half-century of agency practice.

See Pet. at 24-25 (No. 18-1587); Pet. at 19-21 (No.

18-1584). The Fourth Circuit’s decision contradicts

11

the plain language of the Weeks Act and Trails Act and

Congress’s consistent record of careful, deliberate systematizing of departmental jurisdiction over public

lands. Congress has been especially deliberate when

deciding how to assign jurisdiction over public forest

lands between national forests and national parks. National forests are managed for utilitarian, “multiple

use” purposes. National parks are managed for preservation.

The Fourth Circuit’s erroneous interpretation, if

not addressed by this Court, will create broad uncertainty over public lands management and impose

significant risks on Atlantic, MVP, and existing and

planned energy infrastructure well beyond the sites,

projects, and parties involved here. The Mineral Leasing Act provides the principal federal authority for

granting oil and gas pipeline rights-of-way on federal

public lands. The Forest Service emphasizes correctly

that the Trail-crossing issue is the only aspect of the

decision below that cannot be addressed by further

agency analysis, factual review, public notice and comment, or clarification. See Pet. 13-14 (No. 18-1584). This

critical point applies equally to MVP. If allowed to

stand, the decision below eliminates federal MLA authority to grant or renew rights-of-way for gas pipelines serving the millions of Americans living along the

eastern seaboard if the pipeline crosses the Trail, a

court-erected barrier from central Maine to north

Georgia.

12

I.

The Appalachian Trail Segment Crossed

By The ACP Project Is Not “Land In The

National Park System” Under The Mineral

Leasing Act.

The Forest Service used its management discretion eight decades ago to approve and assist with construction of the footpath, signs, and shelters on national

forest lands to help create the Appalachian Trail. But

it did not transfer the lands traversed by that footpath

to the Park Service. Neither did the Trails Act.

At times, the Park Service has characterized the

Appalachian Trail as a unit of the National Park System for its internal labeling purposes. See, e.g., Pet.

App. 55a (No. 18-1584). And some segments of the Trail

are on lands inside national parks. But there is no basis in the law for concluding that the entire 2,200-mile

footpath has been transformed into “lands in the National Park System” by a label. See 54 U.S.C. §§ 100102,

100501. The term is a convenient administrative catchall, evident in the fact that Park System “units” often

include areas of non-federal ownership or areas under

other agencies’ jurisdictions. The Trail corridor contains a variety of areas administered by state and federal agencies and local entities.20

The Trail at the locations to be crossed by Atlantic

and MVP is a congressional overlay of a trails system

use and footpath on national forest land, but it does not

change the character or jurisdiction of that land. The

20

Nat’l Parks Conservation Ass’n, Appalachian National

Scenic Trail: A Special Report 3 (March 2010).

13

place remains national forest land. The inter-agency

and stakeholder cooperation for the Trail coordinated

by the Secretary of the Interior is a procedural requirement of the Trails Act, not a reallocation of

land management jurisdiction from the Department of

Agriculture to the Department of the Interior.

A. Statutory Background.

1. The National Forest System.

In 1891, Congress authorized the President to “set

apart and reserve . . . public land bearing forests . . . as

public reservations.” Forest Reserve Act of 1891, ch.

561, § 24, 26 Stat. 1103 (codified at 16 U.S.C. § 471

(repealed 1976)). In the Organic Administration Act

of 1897, Congress provided that “[n]o national forest

shall be established, except to improve and protect the

forest within the boundaries, or for the purpose of

securing favorable conditions of water flows, and to

furnish a continuous supply of timber.” Organic Administration Act of 1897, ch. 2, § 1, 30 Stat. 34 (codified at 16 U.S.C. § 475). In 1905, Congress transferred

jurisdiction over the national forests from the Department of the Interior to the Department of Agriculture.

Forest Transfer Act of 1905, ch. 288, § 1, 33 Stat. 628

(codified as amended at 16 U.S.C. § 472). The Forest

Transfer Act directs that “the Department of Agriculture shall execute . . . all laws affecting public lands

heretofore or hereafter reserved” as forest reserves

under the 1891 Act. 16 U.S.C. § 472. These acts, initially focused on public lands in the western United

14

States, established the foundation of the current national forest system. See 36 C.F.R. § 200.3(b)(2).

The 1911 Weeks Act then authorized the Secretary

of Agriculture to acquire private lands to establish national forests in the eastern United States. Act of Mar.

1, 1911, ch. 186, § 9, 36 Stat. 962, § 6 (codified at 16

U.S.C. § 515).21 Congress also directed that those lands

be “permanently reserved, held, and administered as

national forest lands under the provisions of ” the 1891

Act as supplemented. 16 U.S.C. § 521; see also id.

§ 521a. Both the George Washington and Jefferson national forests were among the first national forests established pursuant to these authorities.22

From the beginning, national forests were to be

managed for “multiple use,” diverse public purposes

including commercial activities such as timber harvest, mining, grazing, and energy development. See,

e.g., United States v. New Mexico, 438 U.S. 696, 706-09

& n.18 (1978); United States v. Grimaud, 220 U.S. 506,

515 (1911); Multiple-Use Sustained-Yield Act of 1960,

16 U.S.C. §§ 528-531; Charles F. Wilkinson & H.

21

See also Harold K. Steen, The U.S. Forest Service: A History 122-29 (1976) (history of the Weeks Act).

22

See Proclamation No. 1448, 40 Stat. 1779 (1918) (establishing the Shenandoah National Forest); Exec. Order No. 5867

(June 28, 1932) (renaming the Shenandoah National Forest the

George Washington National Forest); Proclamation No. 2165, 1

Fed. Reg. 227, 227-29 (Apr. 24, 1936) (establishing the Jefferson

National Forest); see also Forest Serv., U.S. Dep’t of Agric., George

Washington National Forest: A History 11, 15 (1993), https://www.

fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3832787.pdf.

15

Michael Anderson, Land and Resource Planning in the

National Forests, 64 Or. L. Rev. 1, 20-23, 53-60 (1985).

Congress has adjusted the Forest Service’s mission over time, but the mission has always included the

responsibility to use the agency’s wide discretion to

make land and resource decisions that balance among

various, often competing uses. When Congress decides

to require the Forest Service to depart from multipleuse principles in order to exclude forest lands from

commercial uses, Congress does so by specific direction, for instance by designating that certain areas be

managed as national forest wilderness, including various locations that include the Trail footpath,23 none of

which are crossed by Atlantic or MVP.

2. The National Park System.

Congress established the National Park System to

preserve, not develop, federal lands and resources. The

Park Service’s preservation mission is very different

from the Forest Service’s utilitarian mission.24 In 1916,

23

E.g., Act of Nov. 9, 2000, Pub. L. No. 106-471, 114 Stat.

2057 (designating the Priest Wilderness Area in Virginia); Act

of Oct. 30, 1984, Pub. L. No. 98-586, 98 Stat. 3105 (designating

the Thunder Ridge, Mountain Lake, Peters Mountain, Beartown,

Little Wilson Creek, Lewis Fork, Priest Wilderness Areas in

Virginia).

24

See, e.g., Joseph L. Sax, Mountains Without Handrails, Reflections on the National Parks 5-9 (1980) (describing early history

and development of federal national parks policy); see generally

John Ise, Our National Park Policy: A Critical History 185-95

(1961) (history of national park policy during the period preceding

and accompanying completion of the Appalachian Trail); Elmo R.

16

Congress provided that the “fundamental purposes of

the said parks, monuments, and reservations . . . is to

conserve the scenery and the natural and historic objects and the wild life therein and to provide for the

enjoyment of the same . . . unimpaired for the enjoyment of future generations.” Nat’l Park Serv. Organic

Act of 1916, ch. 408, § 1, 39 Stat. 535 (codified as

amended at 54 U.S.C. § 100101).

National park lands are to be preserved and, where

possible, enjoyed. But for the national forests, Congress has long emphasized that “there must always be

. . . as primary objects and purposes the utilitarian use

of land, of water, and of timber, as contributing to the

wealth of all the people.” H.R. Rep. No. 64-700, at 3 (1916).

3. The National Trails System.

The National Trails System Act seeks “to promote

the preservation of, public access to, travel within, and

enjoyment and appreciation of the open-air, outdoor

areas and historic resources of the Nation.” 16 U.S.C.

§ 1241(a). The Trails Act authorized the creation of a

National Trail System comprised of the national historic trails, national recreation trails, and national scenic trails. Id. § 1242(a).

The Trails Act designated the Appalachian Trail

and the Pacific Crest Trail as the nation’s first national

Richardson, The Politics of Conservation: Crusades and Controversies 1897-1913, at 22-46 (1962) (history of formative public policy debates over assignment of departmental authority over

federal forest lands).

17

scenic trails. Id. § 1244(a)(1). The Act delegated responsibility to coordinate administration of the Appalachian Trail to the Secretary of the Interior and gave

the Secretary of Agriculture equivalent responsibility

for the Pacific Crest Trail. Congress did not change the

jurisdictional status of the lands over which the trails

cross. As Professor Fairfax explained, “[i]rrespective of

which Secretary has overall responsibility for a trail

[under the Trails Act], the Secretary of the Interior is

in charge when a trail crosses Park or Bureau of Land

Management lands and the Secretary of Agriculture is

responsible for management when a trail crosses Forest Service land.”25

The Trails Act recognizes that a federal agency

other than the agency charged with the overall administration of a trail may have authority and responsibility for the administration of the lands over

which the trail traverses. The latter retains its authority to administer those lands despite the trail’s presence. The statute is unambiguous: “Nothing . . . shall

be deemed to transfer among Federal agencies any

management responsibilities established under any

other law for federally administered lands which are

components of the National Trails System.” See 16

U.S.C. § 1246(a)(1)(A).

25

Fairfax, Federal-State Cooperation, supra note 13, at 58;

see also Cong. Research Serv., R43868, The National Trails System: A Brief Overview 6-7 (2015).

18

B. When Congress Transfers Administrative

Jurisdiction From The Agriculture Department’s Forest Service And The Interior Department’s Park Service, It Does

So Explicitly.

The structure of the Trails Act consistently reflects

Congress’s intent that federal agency land management jurisdiction be left undisturbed. The “Secretary

charged with the administration of a national scenic

. . . trail may relocate segments of a national scenic . . .

trail right-of-way,” but only “with the concurrence of

the head of the Federal agency having jurisdiction over

the lands involved.” 16 U.S.C. § 1246(b) (emphasis

added). The Secretary “may issue regulations,” but

only “with the concurrence of the heads of any other

Federal agencies administering lands through which a

. . . national scenic . . . trail passes.” Id. § 1246(i) (emphasis added).

Congress elsewhere consistently has been explicit

when it intends to transfer jurisdiction from one federal agency to another. On the same day he signed the

Trails Act, President Johnson signed legislation establishing North Cascades National Park. That contemporaneous legislation expressly transferred the

administrative jurisdiction of lands from the national

forest system to the National Park System:

Federal property within the boundaries of the

park and recreation areas is hereby transferred to the administrative jurisdiction of the

Secretary [of the Interior] for administration

by him as part of the park and recreation

19

areas. The national forest land within such

boundaries is hereby eliminated from the national forests within which it was heretofore

located.

Act of Jan. 15, 1968, Pub. L. No. 90-544, 82 Stat. 926

(codified at 16 U.S.C. § 90b(a)) (emphasis added).26

Similarly, when establishing Great Basin National

Park some years later, Congress specified that “[l]ands

and waters . . . within the boundaries of the park which

were administered by the Forest Service . . . prior to

[the date of enactment of this Act] are hereby transferred to the administrative jurisdiction of the Secretary [of the Interior].” 16 U.S.C. § 410mm-2; see also 16

U.S.C. § 192b-9 (boundary adjustments for Rocky

Mountain National Park).

Two examples from the Appalachian Trail area

further demonstrate that when Congress puts land

into a national park system unit, it says so. See 16

U.S.C. § 403k-1 (“Subject to valid existing rights, all

lands within the boundaries of Great Smoky Mountains National Park . . . hereafter shall be a part of the

26

In President Johnson’s remarks on signing the Trails Act,

he stated that “[o]ur history of wise management of America’s national forests has assisted us in designating the initial elements

of the National Trails System. . . . : the Appalachian Trail and the

Pacific Crest Trail.” Presidential Remarks Upon Signing Four

Bills Relating to Conservation and Outdoor Recreation, 2 Pub.

Papers 1000, 1001 (Oct. 2, 1968). Had the Trails Act involved an

extensive jurisdictional transfer of national forest system land to

the Park Service for the Appalachian Trail, it would have been

unusual for the President to invoke the history of America’s national forest management as an impetus for designating the Trail.

20

national park and shall be subject to all laws, rules,

and regulations applicable to the national park.”); 16

U.S.C. § 403-3 (“Subject to valid existing rights, the

lands and interests in lands which comprise section 1A of the Blue Ridge Parkway . . . are excluded from the

parkway, made a part of the Shenandoah National

Park, and shall be administered in accordance with the

Act of August 25, 1916 (39 Stat. 535; 16 U.S.C. 1-4).”).

Such jurisdictional transfer language is conspicuously absent from the Trails Act. Simply put, had Congress intended to convert the Trail corridor lands into

lands of the National Park System, it would have said

so. Any uncertainty over the significance of the absence

of transfer language should have been put to rest by

the fact that the Trails Act lacks any of the other organizational provisions that might reasonably be expected to accompany a major change in allocation of

executive branch responsibilities across eight national

forests in a fourteen-state region. The Trails Act makes

no mention of budget authority, personnel and property reassignment, transition schedule or process, reassignment of permits or easements. Indeed, the Trails

Act does not mention the Park Service except for the

purpose of maintaining a Trail map. See Whitman v.

Am. Trucking Ass’n, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a

regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in

mouseholes.”).

Three other considerations strongly reinforce the

conclusion that the circuit court erred in interpreting

21

the Trails Act. First, Congress had rejected at least

eight proposals to transfer the national forests to the

Interior Department in the years preceding enactment

of the Trails Act, and it is highly unlikely that it would

have transferred national forest lands sub silentio.27

Second, Congress has given significant consideration

to the question whether the relevant portions of the

George Washington and Jefferson national forests

deserved enhanced protection from commercial development and has chosen not to do so, thus strongly indicating that Congress would not have done indirectly by

implication what it has declined to do directly.28 Third,

27

Ross W. Gorte, Cong. Research Serv., RL34772, Proposals

to Merge the Forest Service and the Bureau of Land Management:

Issues and Approaches CRS-14 (2008) (“Proposals to transfer the

FS to DOI or the BLM to USDA, or to merge the FS and BLM (or

its predecessor), date back to 1911, and have been made under

Presidents Taft, Harding, Hoover, Roosevelt, Truman, Eisenhower, Nixon, Carter, and Clinton. In an attempt to improve administration of the federal lands, President Reagan proposed a

substantial exchange (consolidation) of lands and personnel between the agencies, but even this more limited reorganization

was prevented by Congress.”); U.S. Gov’t Accountability Off.,

GAO-09-223, Federal Land Management: Observations on a Possible Move of the Forest Service into the Department of the Interior

56-61 (2009); see also T.H. Watkins, Righteous Pilgrim: The Life

and Times of Harold L. Ickes, 1874-1952, at 556-61, 584-91 (1990)

(illustrative discussion of political divisions during President

Franklin D. Roosevelt’s administration related to potential transfer of national forest jurisdiction away from the Agriculture Department).

28

Congress has considered the question whether the sections

of the Trail corridor at issue here merit special protection by

the Forest Service. Congress has designated numerous sections of

George Washington and Jefferson national forest lands crossed

by the Appalachian Trail as wilderness under the Wilderness Act

22

numerous major interstate gas pipelines crossed the

lands used for the Trail at the time Congress approved

the Trails Act.29 The interstate pipelines were then, as

today, subject to federal approval under the provisions

of the Natural Gas Act. Had Congress sought to change

the federal approval process for gas pipelines intersecting the path of the Trail, it would have said something, especially if the intended change amounted to a

prohibition of federal rights-of-way.

II.

The Circuit Court’s Holding Conflicts With

This Court’s Decisions On Harmonizing

Potentially Conflicting Statutes.

The Fourth Circuit was faced with reconciling the

Trails Act with the Weeks Act to determine the applicability of the Mineral Leasing Act. The court mischaracterized the Trails Act in a way that presented an

apparent conflict with the Weeks Act, which in turn vitiated the Mineral Leasing Act. The court made no

of 1964, 16 U.S.C. §§ 1131-1136. See, e.g., Act of Oct. 30, 1984,

Pub. L. No. 98-586, 98 Stat. 3105 (designating the Thunder Ridge,

Mountain Lake, Peters Mountain, Beartown, Little Wilson Creek,

Lewis Fork, Priest Wilderness Areas in Virginia). Congress has

never found that the national forest lands proposed to be used for

the Atlantic or MVP below-grade Trail crossings warrant wilderness protection.

29

A 1968 map prepared by the Federal Power Commission,

FERC’s predecessor agency charged with implementation of the

Natural Gas Act, shows multiple major gas pipelines in the area

of the Trail. That map is included as Attachment A. Attachment

B shows the approximate route of the Trail superimposed on the

map by amicus Mountain Valley using contemporary geographic

information system data for the Trail’s current route.

23

effort to interpret the Weeks Act in concert with the

Trails Act. By failing to even try to reconcile and harmonize the statutes, the Fourth Circuit transformed

“from expounder[ ] of what the law is into policymaker[ ] choosing what the law should be.” Epic Sys.

Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018).

When “confronted with two Acts of Congress allegedly touching on the same topic, this Court is not at

‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give effect to both.’ ”

Id. (quoting Morton v. Mancari, 417 U.S. 535, 551

(1974)). The project challengers below bore a “heavy

burden”—that was never met or even considered by

the circuit court—to show that Congress implicitly displaced the controlling national forest-administration

statutes through the 1968 Trails Act. See id.

The circuit court simply presumed that the entire

almost 2,200-mile long Trail corridor is land in the

“National Park System” because the Trail was generically referenced in the record as a “ ‘unit’ of the National Park System.” Pet. App. 55a (No. 18-1584). But

a shorthand labeling reference, useful to agency staff

responding to an internal Interior Department delegation of responsibility to implement the Trails Act, does

not itself transfer administration of all lands within

the Trail corridor to the Park Service, change the

language of the Trails Act, or even modify the Park

Service’s own longstanding administrative interpretation, application, and understanding of the Trails Act

as reflected in the agency’s management documents

and consistent practice. See FCC v. Fox TV Stations,

24

556 U.S. 502, 513-16 (2009); see also Pet. at 24-25 (No.

18-1587); Pet. at 19-21 (No. 18-1584).

The circuit court’s approach results in an implausible reading of the Trails Act. Extending the Fourth

Circuit’s reasoning to other national scenic trails, such

as the Continental Divide Trail, where the Trails Act

assigns to the Secretary of Agriculture the trail-administration role, see 16 U.S.C. § 1244(a)(5), would convert

narrow strips of Yellowstone, Glacier, and Rocky Mountain national parks into national forests without any

congressional action. The same would hold true for the

five other national scenic or historic trails administered by the Forest Service, many of which also traverse national park system lands.30 Numerous other

national scenic and historic trails are administered by

the Park Service. The circuit court’s decision, if applied

and followed nationwide, would elevate all those trails,

42,127 miles in all, to “land in the National Park System.”31

------------------------------------------------------------------

30

Pacific Crest National Scenic Trail, Florida National Scenic Trail, Nez Perce National Historic Trail, Arizona National

Scenic Trail, and Pacific Northwest National Scenic Trail. 16

U.S.C. § 1244(a)(2), (13), (14), (27), (30).

31

National Historic Trails, Nat’l Park Serv., https://www.nps.

gov/subjects/nationaltrailssystem/national-historic-trails.htm (last

visited July 18, 2019). These trails range from the Ice Age National Scenic Trail (1,000 miles) to the North Country National

Scenic Trail (4,200 miles), California National Historic Trail

(5,600 miles), Trail of Tears National Historic Trail (5,045 miles),

and many more. Id.

25

CONCLUSION

The Fourth Circuit’s decision is inconsistent with

the legal framework of the Trails Act, the national forest statutes, and the Mineral Leasing Act. It is inconsistent with the established agency practice of over 50

years recognizing that—as between the Forest Service

and Park Service—each agency administers its own

lands over which the Trail traverses. If there is to be

an alteration of the prior congressional dedication of

the management and jurisdiction of those national forests, that is for Congress—and not the courts—to determine.

Left unaddressed, the circuit court’s decision will

have significant adverse consequences, not only for Atlantic and MVP, but also for future critical infrastructure. Certiorari should be granted to clarify the status

of the national forest system lands traversed by the

Appalachian National Scenic Trail and to remove the

barriers to Trail-crossing authorizations imposed by

the Fourth Circuit.

Respectfully submitted,

MURRAY D. FELDMAN

Counsel of Record

ALISON C. HUNTER

HOLLAND & HART LLP

800 W. Main St., Ste. 1750

Boise, ID 83702

(208) 342-5000

mfeldman@hollandhart.com

26

THOMAS C. JENSEN

HOLLAND & HART LLP

975 F St. NW, Ste. 900

Washington, DC 20004

(202) 393-6500

GEORGE P. SIBLEY, III

HUNTON ANDREWS KURTH LLP

951 E. Byrd St.

Richmond, VA 23219

(804) 788-8200

Counsel for Amicus Curiae

Mountain Valley Pipeline, LLC

July 26, 2019