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

Supreme Court briefJan 22, 2020

Ask Donna

What actually matters in this document.

Text

Nos. 18-1584 and 18-1587

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------UNITED STATES FOREST SERVICE, et al.,

Petitioners,

COWPASTURE RIVER PRESERVATION

ASSOCIATION, et al.,

Respondents.

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

Petitioner,

COWPASTURE RIVER PRESERVATION

ASSOCIATION, et al.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

-----------------------------------------------------------------BRIEF FOR THE STATES OF VERMONT,

CONNECTICUT, DELAWARE, HAWAI‘I, ILLINOIS,

MARYLAND, MASSACHUSETTS, MINNESOTA,

NEW JERSEY, NEW MEXICO, NEW YORK,

OREGON, RHODE ISLAND, AND THE

DISTRICT OF COLUMBIA AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------THOMAS J. DONOVAN

Attorney General of the State of Vermont

BENJAMIN D. BATTLES

Solicitor General

ELEANOR L.P. SPOTTSWOOD*

RACHEL E. SMITH

Assistant Attorneys General

109 State Street

Montpelier, VT 05609

(802) 828-5500

eleanor.spottswood@vermont.gov

* Counsel of Record

[Additional Counsel Listed On Signature Pages]

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Whether the United States Forest Service has

statutory authority under the Mineral Leasing Act to

grant a gas pipeline right-of-way across the Appalachian National Scenic Trail.

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICI STATES ...............

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

ARGUMENT ........................................................

The Mineral Leasing Act’s jurisdiction is

limited ........................................................

a. The Mineral Leasing Act only applies

to federal lands ....................................

b. Congress intended to protect any federal

land administered by the National Park

System, including the Appalachian

Trail ..................................................... 10

i. Statutes allow the Appalachian

Trail to be in the National Park System .................................................. 11

ii. Agency practice and regulation confirm the Appalachian Trail is one of

only three trails in the National

Park System .................................... 12

Existing Appalachian Trail pipeline

crossings and utility easements will be

unaffected by this case ......................... 20

d. Trails and land administered by other

agencies will be generally unaffected by

the narrow impact of this case .............. 21

II.

Preserving the National Park System benefits amici States ....................................... 29

CONCLUSION..................................................... 37

iii

TABLE OF AUTHORITIES

Page

STATUTES

16 U.S.C. §§ 528-31 .....................................................11

16 U.S.C. § 1244(a) ......................................................18

16 U.S.C. § 1244(a)(1) .................................................12

16 U.S.C. § 1246(a)(1)(A) ............................................24

16 U.S.C. § 1246(a)(1)(B) ...................................... 24, 27

16 U.S.C. § 1246(i)................................................. 12, 24

16 U.S.C. § 1248 ..........................................................23

16 U.S.C. § 1609 ..........................................................22

30 U.S.C. § 185(a) .................................................... 7, 20

30 U.S.C. § 185(b)(1) ................................................. 4, 7

30 U.S.C. § 185(c)(1) ....................................................27

30 U.S.C. § 185(c)(2) ....................................................27

43 U.S.C. § 1701(a) ......................................................11

43 U.S.C. § 1702(c) ......................................................11

43 U.S.C. § 1702(e) ......................................................22

43 U.S.C. § 1761 .................................................... 23, 28

54 U.S.C. § 100101(a) ..................................................10

54 U.S.C. § 100101(b)(2) .............................................10

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

54 U.S.C. § 100501 ......................................................11

54 U.S.C. § 100902 ................................................ 20, 23

TABLE OF AUTHORITIES—Continued

Page

Conn. Gen. Stat. § 16-245a .........................................33

D.C. Code § 34-1432 ....................................................33

Del. Code Ann. tit. 26, § 354 .......................................33

Haw. Rev. Stat. § 269-92 .............................................33

Ill. Comp. Stat. ch. 20 § 3855/1-75(c) ..........................33

Mass. Gen. Laws ch. 21N............................................34

Mass. Gen. Laws ch. 25A, § 11F .................................33

Md. Code Ann., Pub. Util. § 7-703 ..............................33

Minn. Stat. Ann. § 216B.1691 ....................................33

National Trails System Act Amendment, Pub. L.

No. 95-248, § 5, 92 Stat. 159 (1978) ........................17

National Trails System Act, Pub. L. No. 90-543,

§ 10, 82 Stat. 919 (1968)..........................................17

N.J. Stat. Ann. § 48:3-87 .............................................33

N.M. Stat. Ann. § 62-16-4 ...........................................33

Or. Rev. Stat. § 469A.050 ............................................33

Or. Rev. Stat. § 469A.052 ............................................33

Or. Rev. Stat. § 469A.055 ............................................33

Or. Rev. Stat. § 469A.065 ............................................33

R.I. Gen. Laws § 39-26-4 ............................................33

Vt. Stat. Ann. tit. 10, § 6086 .........................................9

Vt. Stat. Ann. tit. 30, § 8005 .......................................33

Vt. Stat. Ann. tit. 30, § 8005(a)(1)(B) .........................33

TABLE OF AUTHORITIES—Continued

Page

ADMINISTRATIVE MATERIALS

Bureau of Labor Statistics, Occupational Outlook Handbook: Fastest Growing Occupations

(Sept. 4, 2019), https://www.bls.gov/ooh/fastestgrowing.htm ............................................................35

Bureau of Land Mgmt., National Scenic and Historic Trails, https://www.blm.gov/programs/

national-conservation-lands/national-scenicand-historic-trails ............................................. 13, 19

Bureau of Land Mgmt., Old Spanish Trail National Historic Trail, https://www.blm.gov/visit/

old-spanish-nht .......................................................13

Catherine C. Thomas et al., U.S. Geological Survey & Nat’l Park Serv., 2018 National Park

Visitor Spending Effects (May 2019), https://

www.nps.gov/nature/customcf/NPS_Data_

Visualization/docs/NPS_2018_Visitor_Spending_Effects.pdf .........................................................30

Haw. State Energy Office, Hawaii Energy Facts

and Figures (June 2018), https://energy.hawaii.

gov/wp-content/uploads/2018/06/HSEO_2018_

EnergyFactsFigures.pdf ..........................................34

Mass. Exec. Off. of Energy and Envtl. Affairs,

GWSA Implementation Progress, https://www.

mass.gov/service-details/gwsa-implementationprogress ...................................................................34

TABLE OF AUTHORITIES—Continued

Page

Memorandum of Agreement between the National Park Service, Department of the Interior,

and the Forest Service, Department of Agriculture, concerning Appalachian National Scenic

Trail (1970) ........................................................ 25, 26

N.Y. Pub. Serv. Comm., Order Adopting a Clean

Energy Standard (Aug. 1, 2016), http://documents.

dps.ny.gov/public/Common/ViewDoc.aspx?Doc

RefId=%7b44C5D5B8-14C3-4F32-8399-F5487D

6D8FE8%7d.............................................................33

N.Y. State Dep’t of Health, A Public Health Review of High Volume Hydraulic Fracturing for

Shale Gas Development (Dec. 2014), https://

www.health.ny.gov/press/reports/docs/high_

volume_hydraulic_fracturing.pdf ...........................32

Nat’l Park Serv., Comprehensive Plan for the Protection, Management, Development and Use of

the Appalachian National Scenic Trail (1987),

https://www.nps.gov/appa/learn/management/

upload/CompPlan_web.pdf .......................................8

Nat’l Park Serv., Listing of Acreage (Summary)

(2016), https://www.nps.gov/subjects/lwcf/upload/

NPS-Acreage-9-30-2019.pdf................................ 7, 12

Nat’l Park Serv., Management Policies (2006),

https://www.nps.gov/policy/MP_2006.pdf ....... passim

Nat’l Park Serv., National Park Service System

Plan: One Hundred Years (2017), http://npshistory.

com/publications/nps-system-plan-2017.pdf ..........19

vii

TABLE OF AUTHORITIES—Continued

Page

Nat’l Park Serv., National Park System: About

Us, https://www.nps.gov/aboutus/national-parksystem.htm ..............................................................19

Nat’l Park Serv., National Trails System 50th

Anniversary Map (2018), https://www.nps.gov/

subjects/nationaltrailssystem/upload/NationalTrails-50th-Map-02-09-18.pdf ................................18

Nat’l Park Serv., News Release: National Park

Visitor Spending Contributed $40 Billion to

U.S. Economy (May 23, 2019), https://www.nps.

gov/orgs/1207/national-park-visitor-spendingcontributed-40-billion-to-u-s-economy.htm ............30

Nat’l Park Serv., Reference Manual 45: National

Trails System (Jan. 2019), https://www.nps.

gov/subjects/nationaltrailssystem/upload/

Reference-Manual-45-National-Trails-SystemFinal-Draft-2019.pdf ...............................................24

Nat’l Park Serv., The National Parks: Shaping the

System (1991), http://npshistory.com/publications/

shaping-the-system-1991.pdf .................................19

Nat’l Parks Conservation Assoc., Appalachian

National Scenic Trail: A Special Report (2010),

https://www.nps.gov/appa/learn/management/

upload/AT-report-web.pdf ................................. 16, 30

NC Clean Energy Technology Center, DSIRE,

Programs, https://programs.dsireusa.org/system/

program?type=38& .................................................33

viii

TABLE OF AUTHORITIES—Continued

Page

Responsibility for Planning and Operation of

Programs and Projects, 34 Fed. Reg. 14,337

(Sept. 12, 1969) ........................................................12

U.S. Dep’t of Energy, Fed. Energy Reg. Comm.,

North American LNG Import Terminals: Existing, https://www.ferc.gov/industries/gas/

indus-act/lng/lng-existing-import.pdf (Dec. 17,

2019) ........................................................................31

U.S. Dep’t of Energy, Valuation of Energy Security for the United States: Report to Congress

(2017) ................................................................. 32, 33

U.S. Dep’t of Interior, 710 Departmental Manual

(1977), https://www.doi.gov/sites/doi.gov/files/elips/

documents/Chapter%20%201_%20PURPOSE%2

C%20POLICY%2C%20RESPONSIBILITY.doc .......13

U.S. Dep’t of Interior et al., National Trails System Memorandum of Understanding (2017),

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

upload/National_Trails_System_MOU_20172027.pdf ............................................................. 24, 25

U.S. Energy Info. Admin., Natural Gas Explained (Sept. 23, 2019), https://www.eia.gov/

energyexplained/natural-gas/natural-gas-andthe-environment.php ..............................................32

U.S. Energy Info. Admin., Pennsylvania State

Profile and Energy Estimates, Pennsylvania

Energy Consumption Estimates 2017, https://

www.eia.gov/state/?sid=PA#tabs-1 .........................32

TABLE OF AUTHORITIES—Continued

Page

U.S. Energy Info. Admin., Renewable Energy Explained, https://www.eia.gov/energyexplained/

renewable-sources/ ..................................................33

U.S. Energy Info. Admin., U.S. Energy Mapping

System, https://www.eia.gov/state/maps.php .........31

U.S. Energy Info. Admin., U.S. Overview: State

Total Energy Rankings, 2017, https://www.eia.gov/

state/ ........................................................................34

U.S. Energy Info. Admin., Vermont State Profile

and Energy Estimates (July 18, 2019), https://

www.eia.gov/state/print.php?sid=VT .....................34

Vt. Agency of Nat. Resources & Dep’t of Envtl.

Conservation, A Report on the Regulation and

Safety of Hydraulic Fracturing for Oil or Natural

Gas Recovery (Feb. 2015), https://legislature.

vermont.gov/assets/Legislative-Reports/ANRREPORT-REGULATION-OF-HF-FOR-OILOR-NATURAL-GAS-RECOVERY-2015.02.12.

FINAL.pdf ...............................................................32

Vt. Dept. of Pub. Serv., Comprehensive Energy

Plan 2016, https://outside.vermont.gov/sov/

webservices/Shared%20Documents/2016CEP_

Final.pdf ..................................................................33

MISCELLANEOUS AUTHORITIES

10 Highest Peaks on the Appalachian Trail, AppalachianTrail.com, https://appalachiantrail.com/

20140619/10-highest-peaks-appalachian-trail/ .......15

TABLE OF AUTHORITIES—Continued

Page

Am. Hiking Society, Hiking Trails in America

(2015), https://americanhiking.org/wp-content/

uploads/2015/05/AHS_RPT_fnl_LOW.pdf ..... 1, 16, 29

Appalachian Mountain Club, Appalachian Trail

FAQs, https://www.outdoors.org/conservation/

trails/appalachian-trail-faq .......................................8

Appalachian Trail Conservancy, Appalachian

Trail Community Program, appalachiantrail.org,

https://appalachiantrail.org/home/conservation/

a-t-community-program ..........................................29

Appalachian Trail Conservancy, Volunteers Donate

More than 200,000 Hours in 2014 to Maintaining the Appalachian Trail (Jan. 8, 2015),

http://appalachiantrail.org/home/community/

news/2015/01/08/volunteers-donate-more-than200-000-hours-in-2014-to-maintaining-theappalachian-trail ....................................................17

Benton MacKaye, An Appalachian Trail: A Project in Regional Planning, 9 J. of the Am. Inst.

of Architects 325 (Oct. 1921) .....................................3

Bill Bryson, A Walk in the Woods: Rediscovering

America on the Appalachian Trail (1998),

adapted for film, A Walk in the Woods (Broad

Green Pictures 2015) ..............................................16

Donation Deed for Right-of-Way Easement between State of Vermont, Grantor and United

States of America, Grantee for Tract 211-04

(Dec. 1, 1997) ...........................................................21

TABLE OF AUTHORITIES—Continued

Page

Donation Deed for Right-of-Way Easement between State of Vermont, Grantor and United

States of America, Grantee for Tract 212-10

(Dec. 1, 1997) ...........................................................21

Douglas A. Becker et al., Is Green Land Cover

Associated with Less Health Care Spending?

Promising Findings from County-Level Medicare Spending in the Continental United

States, Urb. Forestry and Urb. Greening (May

2019), https://doi.org/10.1016/j.ufug.2019.02.012.........2

Energy Futures Initiative & Nat’l Ass’n of State

Energy Officials, U.S. Energy and Employment

Report (2019), https://www.usenergyjobs.org/s/

USEER-2019-US-Energy-Employment-Report.

pdf ............................................................................35

Grant of Easement between Sherburne Corporation, Grantor and United States of America,

Grantee (Sept. 28, 1983) .........................................21

Green Mountain Club, The Long Trail: Long

Trail Overview, greenmountainclub.org, https://

www.greenmountainclub.org/the-long-trail/ ............3

H.R. Rep. No. 90-1631 (1968) ............................... 16, 18

Interesting Facts, appalachiantrail.org, http://www.

appalachiantrail.org/home/community/2000milers .......................................................................15

xii

TABLE OF AUTHORITIES—Continued

Page

Kathleen D. Seal, Value, Meaning and Therapeutic

Notions of the Appalachian Trail (unpublished

Ph.D. dissertation, Texas State Univ.) (Dec. 2014),

https://digital.library.txstate.edu/bitstream/

handle/10877/5455/SEAL-DISSERTATION2014.pdf?sequence=1&isAllowed=y .....................30

Letter from Ed Leary, Lands Adm’r, Vt. Dep’t of

Forest, Parks & Recreation, to Donald Laflam,

Radio Sys. Coordinator, Green Mountain &

Finger Lakes Nat’l Forest (Nov. 2, 1994) ..................9

Listopia: Best Appalachian Trail Books, Goodreads.com, https://www.goodreads.com/list/show/

1208.Best_Appalachian_Trail_Books.....................16

Mathew P. White et al., Spending at Least 120

Minutes a Week in Nature Is Associated with

Good Health and Wellbeing, Sci. Reps. (June

13, 2019), https://www.nature.com/articles/

s41598-019-44097-3.pdf ...................................... 2, 30

Ralf Buckley et al., Economic Value of Protected

Areas Via Visitor Mental Health, Nature

Comm. (Nov. 12, 2019), https://www.nature.com/

articles/s41467-019-12631-6.pdf ......................... 2, 30

Ryan Wiser et al., A Retrospective Analysis of the

Benefits and Impacts of U.S. Renewable Portfolio Standards (Jan. 2016), https://www.nrel.gov/

docs/fy16osti/65005.pdf ...........................................35

The Nature Conservancy, Appalachian Inspiration, nature.org (July/August 2013), https://www.

nature.org/en-us/magazine/magazine-articles/

appalachian-inspiration-1/ ............................... 15, 17

INTERESTS OF THE AMICI STATES1

Amici States benefit greatly from the National

Park System and have an interest in ensuring its

protection to the full extent required by Congress.

The National Park System consists of America’s most

spectacular natural resources, spread across all

States and territories. These irreplaceable wonders

include several long-distance through-hikes, such as

the Appalachian Trail, which traverse many amici

States.2 While long-distance hiking trails present

certain conservation challenges, their preservation is

essential to amici States’ economic, environmental,

cultural, and human health interests. Visitors to

National Park System lands contribute billions of

dollars to amici States’ economies. Two million people visit the Appalachian Trail every year, spending

between $125 and $168 million to do so.3 Recent

studies suggest that National Parks may also be responsible for direct physical and mental health savings to States and state residents, on the order of

billions of dollars.4

Amici States submit this brief pursuant to Supreme Court

Rule 37.4.

Even States that do not contain long-distance trails have

residents that use and value the trails and other natural resources provided by neighboring states.

Am. Hiking Soc’y, Hiking Trails in America 14 (June 2015),

https://americanhiking.org/wp-content/uploads/2015/05/AHS_

RPT_fnl_LOW.pdf.

One study from Australia estimates an annual health

services value of $100 billion U.S. per year from Australia’s

National Parks, and between $4 and 31 trillion per year in

Amici States own land through which the Appalachian Trail and other National Scenic and Historic

Trails pass. States have a strong interest in maintaining sovereignty over state lands, including an interest

in defending states’ power to grant rights-of-way

across any such trails on state-owned lands. As amici

States read the Mineral Leasing Act, that Act applies

only to federal lands. Thus, States retain full power to

grant rights-of-way across the Appalachian Trail and

any other trail on state lands, pursuant to state-level

priorities and regulatory programs. The Appalachian

Trail crosses state-owned land in many areas not dedicated to conservation, such as state roads and bridges,

which could be well suited to host the kind of easement

at issue in this case.

Some amici States contain national forests

through which the Appalachian Trail passes. These

States have a particular interest in protecting the

mental health savings from national parks globally. Ralf Buckley

et al., Economic Value of Protected Areas Via Visitor Mental

Health, Nature Comm. 4-5 (Nov. 12, 2019), https://www.

nature.com/articles/s41467-019-12631-6.pdf; see also Douglas A.

Becker et al., Is Green Land Cover Associated with Less Health

Care Spending? Promising Findings from County-Level Medicare

Spending in the Continental United States, Urb. Forestry & Urb.

Greening (May 2019), https://doi.org/10.1016/j.ufug.2019.02.012

(finding significant inverse correlation between forest or shrub

cover and median Medicare fee-for-service spending); Mathew P.

White et al., Spending at Least 120 Minutes a Week in Nature

Is Associated with Good Health and Wellbeing, Sci. Reps. (June

13, 2019), https://www.nature.com/articles/s41598-019-44097-3.pdf

(finding positive health associations with time spent in nature for

British adults).

integrity of the Trail from pipeline crossings within

national forests. The Appalachian Trail stretches from

Georgia to Maine and takes many months to complete

in its entirety. Within the otherwise densely developed

East Coast region, the Appalachian Trail allows multiple consecutive days—even weeks—of backpacking

through uninterrupted stretches of wilderness. Many

of these long stretches occur where the Trail passes

through national forest.

In Vermont, for example, one of the State’s most

treasured resources is the “Long Trail,” a 272-mile

through-hike that spans the length of Vermont, from

Massachusetts to Canada.5 The Long Trail is the oldest

long-distance hiking trail in the United States and

served as inspiration for the Appalachian Trail. In the

words of Appalachian Trail founder Benton MacKaye:

“What the Green Mountains are to Vermont the Appalachians are to eastern United States. What is suggested, therefore, is a ‘long trail’ over the full length of

the Appalachian skyline . . . .” Benton MacKaye, An

Appalachian Trail: A Project in Regional Planning, 9

J. of the Am. Inst. of Architects 325 (Oct. 1921).6 Today, the Long Trail and the Appalachian Trail are

co-located within southern Vermont, where they run

together through the Green Mountain National Forest.

Green Mountain Club, The Long Trail: Long Trail Overview, greenmountainclub.org, https://www.greenmountainclub.org/

the-long-trail/ (last visited Jan. 6, 2020).

Text of article available at https://www.appalachiantrail.

org/docs/default-document-library/2011/04/16/An%20Appalachian

%20Trail-A%20Project%20in%20Regional%20Planning.pdf.

As this case’s impact will be felt exclusively on those

portions of trails crossing federal land—and land in

national forests in particular—Vermont is doubly concerned about the potential implications for both the

Appalachian Trail and the Long Trail in this part of

the State.

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

SUMMARY OF ARGUMENT

The Mineral Leasing Act is a blanket authorization from Congress to all federal agencies to allow oil

and gas pipeline easements on federal land. Because

the jurisdiction of the Mineral Leasing Act is limited

to federal land, it does not affect the rights of state or

private landowners in any way.

Federal land in the National Park System is expressly exempted from the Act’s broad pipeline authorization.7 Congress defines the National Park System as

land “administered”—not “owned”—by the National

Park Service. The National Park Service administers

only America’s most precious natural resources. While

Congress often designates which areas to include in

the Park System, in the case of National Scenic and

Historic Trails delegated to the Secretary of the Interior, Congress has allowed the Secretary to choose

The National Park System is one of three categories of federal land not covered by the Mineral Leasing Act, which reads:

“ ‘Federal lands’ means all lands owned by the United States except lands in the National Park System, lands held in trust for an

Indian or Indian tribe, and lands on the Outer Continental Shelf.”

30 U.S.C. § 185(b)(1).

which agency will administer each trail—and therefore to choose whether each trail belongs in the Park

System. The Secretary of the Interior assigned administration of the Appalachian Trail to the National Park

Service. The Park Service, in turn, has published criteria for inclusion in the Park System, and designated

the Appalachian Trail as one of only three trails deserving that status. While the Appalachian Trail is administered overall by the Park Service, Congress has

authorized a cooperative management system for National Trails, which naturally often traverse land under various ownership. As a result, different federal,

state, and private entities manage different segments

of the Trail, but all parties recognize that the Park Service has administrative authority over the entire Trail.

Congress could have crafted the Mineral Leasing

Act to say that any federal agency, except for the National Park Service, may grant easements for oil and

gas pipelines across federal land. But Congress chose

instead to say that no federal agency may grant easements for oil and gas pipelines across federal land in

the National Park System. The distinction is important in those limited instances where, as here, other

federal agencies manage segments of the National

Park System.

Reading the Mineral Leasing Act as Congress intended—to protect the nation’s most valuable natural

resources from pipeline crossings on federal land—will

preserve the essential wilderness character of the Trail

without infringing upon the rights of States and private landowners.

Moreover, preserving the National Park System as

Congress intended will provide economic and other

benefits to the amici States. Visitors to the Appalachian Trail and other National Parks contribute billions of dollars to amici States’ economies. The

availability of these unique resources also contributes

to the physical and mental health of amici States’ residents.

This case does not imperil the availability of adequate energy sources or even this particular pipeline

project. The Atlantic Coast Pipeline might still be built

by crossing the Trail on non-federal land, or the project

may fail because of other problems, including those

identified by the Fourth Circuit that are not before this

Court. But even if the Atlantic Coast Pipeline is not

built, States already have other energy options. In fact,

amici States have committed to increasing reliance on

renewable energy sources in the coming decades. Renewable energy creates jobs and economic growth, as

well as health and financial benefits to state residents.

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

ARGUMENT

The Mineral Leasing Act’s jurisdiction is

limited.

Petitioners and their amici argue at length that, if

this Court finds that the U.S. Forest Service does not

have authority to grant this right-of-way for this pipeline across the Appalachian Trail, then the entire Appalachian Trail and many other trails nationwide will

become impenetrable barriers to development. This

catastrophic view of the decision below is incorrect.

a. The Mineral Leasing Act only applies to

federal lands.

By its plain terms, the Mineral Leasing Act only

authorizes federal agencies to grant pipeline rights-ofway through “Federal lands.” 30 U.S.C. § 185(a). And it

defines such lands as “all lands owned by the United

States except lands in the National Park System.”

§ 185(b)(1). The Mineral Leasing Act simply does not

speak to granting pipeline rights-of-way through nonfederal lands. This authority belongs to the states and

other landowners.

The Appalachian Trail includes 57,000 acres of

non-federal lands, including lands held by amici

States.8 And, contrary to the suggestion of Petitioners

and their amici, federal and non-federal lands are interspersed along the Trail, creating a permeable system

through which pipelines might still be constructed. In

fact, most National Park System units contain a mix of

federal and non-federal land.9 The Mineral Leasing Act

does not address pipelines on non-federal land, regardless of whether the land falls within a National Park

System unit.

Nat’l Park Serv., Listing of Acreage (Summary) 1 (2016),

https://www.nps.gov/subjects/lwcf/upload/NPS-Acreage-9-30-2019.

pdf.

Id.

To the extent that the decision below did not discuss the limitation of the Act to federal land only, amici

States urge this Court to do so. This limitation is of

great concern to amici States. The Appalachian Trail

crosses state conservation lands in eleven of the fourteen states through which it passes.10 It additionally

crosses or coincides with hundreds of state and county

roads and bridges,11 many of which provide crucial infrastructure for the Trail as it traverses non-wilderness

areas and crosses major roads and rivers. The Mineral

Leasing Act says nothing about whether non-federal

landowners may grant easements—for pipelines or

otherwise—across the Appalachian Trail on these state

and local roads or other non-federal land.

From a policy perspective, it makes sense that

Congress spoke only to federal lands in the Mineral

Leasing Act. State and local control over state and local

lands will best protect the Trail while serving the

needs of the surrounding communities. The States are

committed to protecting the Trail on non-federal lands

through their own regulatory schemes.12 At the same

The exceptions are West Virginia, Tennessee, and North

Carolina. See Nat’l Park Serv., Comprehensive Plan for the Protection, Management, Development and Use of the Appalachian

National Scenic Trail 10 (1987), https://www.nps.gov/appa/learn/

management/upload/CompPlan_web.pdf.

On average, the Trail crosses a road every four miles. Appalachian Mountain Club, Appalachian Trail FAQs, https://www.

outdoors.org/conservation/trails/appalachian-trail-faq (last visited

Jan. 16, 2020).

For example, in 1994, Vermont denied a request by the

U.S. Forest Service to lease state land to erect a new radio tower

on Bromley Mountain, because of the impact to the Appalachian

time, the presence of the Trail has not hindered development on the roads and bridges over which the Trail

must pass. If and when a State determines that development of a new pipeline would be in its interest, the

State may set the price and conditions for that pipeline

to cross the Trail on its own lands.

Petitioner Atlantic Coast Pipeline emphasizes the

“arduous” process it pursued to obtain “33 separate

regulatory approvals from more than a dozen federal

and state agencies, as well as numerous local approvals.” ACP Br. at 12-13. But that is how the American

system of property ownership works. No entity could

mow a 50-foot wide strip of land over 600 miles to construct a pipeline of combustible gas without reckoning

with every affected property owner along the way. And

amici States’ regulatory programs are not designed to

be arduous; they are doing what they are designed to

do—protect the health, safety, and wellbeing of state

residents.13

Trail. Letter from Ed Leary, Lands Adm’r, Vt. Dep’t of Forest,

Parks & Recreation, to Donald Laflam, Radio Sys. Coordinator,

Green Mountain & Finger Lakes Nat’l Forest (Nov. 2, 1994) (on

file with the Vermont Attorney General’s Office).

For instance, Vermont’s primary statewide land use and

development statute requires consideration of air and water quality, water supplies, transportation, local schools and services, municipal costs, and historic and natural resources, as well as local

land-use plans. Vt. Stat. Ann. tit. 10, § 6086.

b. Congress intended to protect any federal land administered by the National

Park System, including the Appalachian

Trail.

Of all the land owned and administered by the federal government, the National Park System is the most

fiercely preserved. The sole purpose of the National

Park Service has remained unchanged since the Service’s Organic Act was passed in 1916: “to conserve the

scenery, natural and historic objects, and wild life in

the System units and to provide for the enjoyment of

the scenery, natural and historic objects, and wild life

in such manner and by such means as will leave them

unimpaired for the enjoyment of future generations.”

54 U.S.C. § 100101(a). Congress has consistently reaffirmed its intent that the National Park System contain “superlative natural, historic, and recreation

areas in every major region of the United States” and

that “the protection, management, and administration

of the System units shall be conducted in light of the

high public value and integrity of the System and shall

not be exercised in derogation of the values and purposes for which the System units have been established, except as directly and specifically provided by

Congress.” § 100101(b)(2) (language added in 1970 and

1978). In keeping with the National Park Service’s mission of pure conservation for recreation and enjoyment,

lands in the National Park System are restricted to

much narrower uses than other federal lands.14

Other federal lands have multiple uses. For instance,

lands administered by the Bureau of Land Management or the

With this background in mind, Petitioners’ preferred reading of the Mineral Leasing Act is wrong:

Statutory text, agency regulations, and agency practice

make clear that the Trail—a Park unit—counts as

“land in the National Park System” along those segments of the Trail where the Park unit includes federal

land in a national forest.

i. Statutes allow the Appalachian Trail

to be in the National Park System.

Congress defines the National Park System to include “any area of land and water administered by the

Secretary, acting through the [National Park System]

Director, for park, monument, historic, parkway, recreational, or other purposes.” 54 U.S.C. § 100501 (emphasis added). Congress could have defined the System to

include only land acquired by the National Park System, but it did not. Because the definition of the System focuses on what the Secretary administers, rather

than acquires, “land in the National Park System” may

include land that was not originally acquired by the

National Park Service. And in fact, many National

Park System units contain private and/or federal land

that has not been acquired by the National Park

Forest Service are open to more mining, mineral extraction, commercial grazing, and logging than Park Service lands. See, e.g., 43

U.S.C. §§ 1701(a), 1702(c) (establishing multiple uses for land administered by Bureau of Land Management); 16 U.S.C. §§ 528-31

(same for land administered by the Forest Service).

Service.15 And the operative statute defines a National

Park “System unit” simply as one of the areas comprising the National Park System (i.e., administered by the

System Director). § 100102. So the exemption in the

Mineral Leasing Act for “land in the National Park

System” applies to federal land that is administered,

but not originally acquired, by the Park System.

When Congress established the Appalachian

Trail, it provided that the Trail “shall be administered”

by the Secretary of the Interior, using “authorities related to units of the national park system.” 16 U.S.C.

§§ 1244(a)(1), 1246(i). Unsurprisingly, and for reasons

discussed further below, the Secretary of the Interior

delegated administration of the Appalachian Trail to

the National Park Service. See Responsibility for Planning and Operation of Programs and Projects, 34 Fed.

Reg. 14,337 (Sept. 12, 1969) (assigning administration

of Appalachian Trail to Park Service).

ii. Agency practice and regulation confirm the Appalachian Trail is one of

only three trails in the National Park

System.

While Congress often specifies which areas are to

be designated as part of the Park System, in the case

of National Trails assigned to the Secretary of the

For instance, Grand Teton National Park contains about

920 acres of private land and nearly 35,000 acres of federally

owned land that has not been acquired by the National Park Service. See Nat’l Park Serv., supra note 8.

Interior, Congress allows the Secretary to determine

the proper administering agency and method of administration, thereby determining which trails will be

part of the System and which will not.16 As demonstrated by the Park Service’s criteria for inclusion, the

Appalachian Trail deserves its place in the National

Park System.

To determine whether particular land merits Park

System designation, the Secretary of the Interior considers whether it “possess[es] national significant natural or cultural resources,” whether it is both a suitable

and a feasible addition to the system, and whether it

The Secretary of the Interior delegates administration of

its trails either to the National Park Service or to the Bureau of

Land Management—or sometimes to both. See, e.g., Bureau of

Land Mgmt., National Scenic and Historic Trails, https://www.

blm.gov/programs/national-conservation-lands/national-scenic-andhistoric-trails (last visited Jan. 2, 2020) (listing trails for which

the Bureau of Land Management has management responsibilities); Bureau of Land Mgmt., Old Spanish Trail National Historic

Trail, https://www.blm.gov/visit/old-spanish-nht (last visited Jan.

7, 2020) (explaining that “[b]y memorandum from the Secretary

of the Interior, the Old Spanish National Historic Trail is jointly

administered by the BLM and the National Park Service”). When

choosing the agency primarily responsible for administering a

National Trail, the Secretary of the Interior has explained: “Primary consideration for such assignments will be given to the [Department of the Interior] land administering bureau having

jurisdiction over the majority of the land over which . . . trails in

the national system pass.” U.S. Dep’t of Interior, 710 Departmental Manual, ch.1, p.3 (1977) (noting primary administration

of the Appalachian Trail by the Park Service), available at https://

www.doi.gov/sites/doi.gov/files/elips/documents/Chapter%20%201_

%20PURPOSE%2C%20POLICY%2C%20RESPONSIBILITY.doc. As

described above, however, that is not the only consideration for

designation as a full unit of the National Park System.

“require[s] direct [National Park Service] management

instead of protection by other public agencies or the

private sector.” Nat’l Park Serv., Management Policies

(“Management Policies”) § 1.3 (2006).17 As the Secretary explains: “These criteria are designed to ensure

that the national park system includes only the most

outstanding examples of the nation’s natural and cultural resources.” Id. “National significance” considers,

among other things, whether an area is an “outstanding example of a particular type of resource”; “offers

superlative opportunities for public enjoyment or for

scientific study”; and “retains a high degree of integrity

as a . . . relatively unspoiled example of a resource.” Id.

§ 1.3.1. “Suitability” takes into account whether an

area is a “resource type that is not already adequately

represented in the national park system” or comparably protected by other entities. Id. § 1.3.2. “Feasibility”

reflects whether the area is “capable of efficient administration by the Service at a reasonable cost,” as well

as “size,” “boundary configurations,” “current and potential uses of the study area and surrounding lands,”

“public enjoyment potential,” “access,” “current and potential threats to the resources,” “landownership patterns,” “staffing requirements,” and “local planning and

zoning.” Id. § 1.3.3. And finally, “direct NPS management” evaluates whether the National Park Service’s

direct management “is identified as the clearly superior alternative,” or whether there are other entities

better able to manage the resource. Id. § 1.3.4.

Available at https://www.nps.gov/policy/MP_2006.pdf.

Congress made clear that the Trail was “nationally significant” when it designated it as one of the

first two National Scenic Trails in 1968, and it continues to be “an outstanding example” of a long-distance

through-hike today. Id. § 1.3.1 (national significance).

The Trail summits many of the East Coast’s highest

peaks.18 Ecologically, the Appalachian mountain chain

“is home to one of the most biologically diverse temperate forests in the world.”19 “Protection of the Appalachian Trail has left a corridor that allows species to

migrate into more hospitable ecosystems as conditions

change,” a unique and valuable characteristic given

the heavy development along the rest of the East

Coast.20 The number of people completing all 2,000+

miles of the Appalachian Trail has increased every decade, from 3 people in the 1940s to 9,261 people in the

2010s.21 Hikers of all ages have hiked the complete

Trail, including about 750 people in their 60s.22 The

oldest through-hiker was 82.23 Millions more people

hike sections of the Trail every year—as day hikes,

See 10 Highest Peaks on the Appalachian Trail, Appalachian

Trail.com, https://appalachiantrail.com/20140619/10-highest-peaksappalachian-trail/ (last visited Jan. 9, 2020).

The Nature Conservancy, Appalachian Inspiration, nature.

org (July/August 2013), https://www.nature.org/en-us/magazine/

magazine-articles/appalachian-inspiration-1/.

Id.

See Interesting Facts, appalachiantrail.org, http://www.

appalachiantrail.org/home/community/2000-milers (last visited

Jan. 9, 2020).

Id.

weekend overnights, or longer.24 And the Trail has inspired countless works of literature.25

The Trail was also highly “suitable” for inclusion

in the System because there was no similar longdistance hike represented in the System at the time.

Management Policies § 1.3.2 (suitability). The House

Report on the National Trails System Act called the establishment of the Appalachian Trail “a pilot program

. . . designed to determine whether it is feasible to extend to other areas of the Nation the principles which

have already made the Appalachian Trail an outstanding outdoor recreation resource.” H.R. Rep. No. 901631, at 9 (1968).

Next, the Trail was “feasible” as a new System

unit. While trails are inherently long and narrow—and

can be unwieldy to conserve for those reasons—the Appalachian Trail was pre-established by volunteers and

traversed multiple preexisting National and State

Parks and Forests. Id. At the same time, no other entity had the resources to protect the Trail like the National Park Service did, particularly after Congress

Am. Hiking Soc’y, supra note 3; Nat’l Parks Conservation

Assoc., Appalachian National Scenic Trail: A Special Report 1

(2010), https://www.nps.gov/appa/learn/management/upload/ATreport-web.pdf.

See, e.g., Bill Bryson, A Walk in the Woods: Rediscovering

America on the Appalachian Trail (1998), adapted for film, A

Walk in the Woods (Broad Green Pictures 2015). For a list of 70

books about the Appalachian Trail, see Listopia: Best Appalachian Trail Books, Goodreads.com, https://www.goodreads.com/

list/show/1208.Best_Appalachian_Trail_Books (last visited Jan.

9, 2020).

provided significant funding for land acquisition to

preserve and protect the Trail. National Trails System

Act Amendment, Pub. L. No. 95-248, § 5, 92 Stat. 159,

160 (1978) (authorizing $30 million per year for three

years for land acquisition); National Trails System Act,

Pub. L. No. 90-543, § 10, 82 Stat. 919, 926 (1968) (authorizing $5 million for land acquisition for establishment of the Appalachian Trail). In addition, the public

enjoyment potential and accessibility of the Trail were

high, given the proximity of the Trail to the population

centers of the East Coast. These factors continue to

grow every year. Today, “half of the U.S. population,

more than 150 million people, lives within a day’s drive

of the Appalachian Trail, giving it an outsized role in

connecting people to nature.”26 Moreover, the unusual,

volunteer-based management model for many segments of the Appalachian Trail inspires community involvement in all fourteen Trail States. In 2014, a total

of 5,617 volunteers spent 241,936 hours maintaining

the trail.27

Finally, direct National Park Service management was and is the “clearly superior” option for the

Appalachian Trail. Management Policies § 1.3.4 (direct NPS management). After noting the progress

made by the Appalachian Trail Conference—the

The Nature Conservancy, supra note 19.

Appalachian Trail Conservancy, Volunteers Donate More

than 200,000 Hours in 2014 to Maintaining the Appalachian Trail

(Jan. 8, 2015), http://appalachiantrail.org/home/community/news/

2015/01/08/volunteers-donate-more-than-200-000-hours-in-2014to-maintaining-the-appalachian-trail.

volunteer organization that originally established the

Trail—the 1968 House Report went on: “In spite of all

that has been, and is being done to maintain the integrity and values of the Appalachian Trail, its continued

existence is in jeopardy because of scattered instrusions [sic] along the trailway.” H.R. Rep. No. 901631, at 8-9 (1968). Administration by the National

Park Service was necessary to preserve the Trail

across all fourteen states.

In contrast, the vast majority of other National

Trails are not administratively designated by the Park

Service as full units of the Park System. Thus, the map

included on page 27 of the amicus brief authored by

West Virginia is misleading at best.28 Most of the longest trails in the National Trails System are not administered by the Park Service at all. Six are administered

primarily by the Secretary of Agriculture, via the Forest Service.29 Twelve more are divided into segments,

with the Park Service administering some segments

and the Bureau of Land Management others.30 Of the

Map found at: Nat’l Park Serv., National Trails System

50th Anniversary Map (2018), https://www.nps.gov/subjects/national

trailssystem/upload/National-Trails-50th-Map-02-09-18.pdf.

These include the Pacific Crest Trail, the Continental

Divide National Scenic Trail, the Nez Perce National Scenic Trail,

the Pacific Northwest National Scenic Trail, the Arizona National

Scenic Trail, and the Florida National Scenic Trail. 16 U.S.C.

§ 1244(a). Many of these are also jointly managed by the Bureau

of Land Management.

These include the Mormon Pioneer National Historic

Trail, the Lewis and Clark National Historic Trail, the California

National Historic Trail, the Oregon National Historic Trail, the

Pony Express National Historic Trail, the Old Spanish National

remaining twelve, only three are administered by the

Secretary as National Park System units: the Appalachian National Scenic Trail, the Potomac Heritage National Scenic Trail, and the Natchez Trace National

Scenic Trail.31 The Secretary’s designation extends to

those three the strongest protection afforded by Congress. At least in the case of the Mineral Leasing Act,

those three trails are exempted from pipeline crossings

on all federal land.32

Historic Trail, the Juan Batista de Anza National Historic Trail,

the Iditarod National Historic Trail, El Camino Real de Tierra

Adrento National Historic Trail, the Washington-Rochambeau

Revolutionary Route National Historic Trail, the Captain John

Smith Chesapeake National Historic Trail, and the Star-Spangled Banner National Historic Trail. See Bureau of Land Mgmt.,

National Scenic and Historic Trails, https://www.blm.gov/programs/

national-conservation-lands/national-scenic-and-historic-trails

(last visited Jan. 16, 2020). The Bureau’s website also cross-lists

several of the trails assigned by Congress to the Department of

Agriculture and one trail administered as a unit of the National

Park Service (the Potomac Heritage National Scenic Trail).

See Nat’l Park Serv., National Park Service System Plan:

One Hundred Years 136 (Jan. 2017) (listing those three trails, and

no others, as System units), http://npshistory.com/publications/

nps-system-plan-2017.pdf; Nat’l Park Serv., The National Parks:

Shaping the System 76 (1991) (recognizing the three trails as System units), http://npshistory.com/publications/shaping-the-system1991.pdf.

The Park Service has not administratively designated the

remaining trails as units of the National Park System, counting

them instead as “related areas.” See Nat’l Park Serv., National

Park System: About Us, https://www.nps.gov/aboutus/nationalpark-system.htm (last visited Jan. 16, 2020) (scroll down to “Related Areas” and click on “National Trails”). As stated in the Service’s Management Policies, the Service supports “the successful

management of important natural and cultural resources by

c. Existing Appalachian Trail pipeline

crossings and utility easements will be

unaffected by this case.

This case does not jeopardize existing pipeline

crossings or public utility easements across the Appalachian Trail. It does not jeopardize utility easements

because a specific statute—not at issue in this case—

expressly authorizes such easements through National

Parks. See 54 U.S.C. § 100902 (titled “rights of way for

public utilities and power and communication facilities”). By contrast, the Mineral Leasing Act, with its

particular jurisdictional limitations, applies only to

rights-of-way “for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous

fuels, or any refined product produced therefrom . . . .”

30 U.S.C. § 185(a). Just as it is silent regarding nonfederal lands, the Mineral Leasing Act says nothing

about other utility easements, including pipelines for

purposes unrelated to oil, natural gas, synthetic liquids, or gaseous fuels.

other public agencies, private conservation organizations, and

individuals.” Management Policies § 1.3.4. “Unless direct NPS

management of a studied area is identified as the clearly superior

alternative, the Service will recommend that one or more of these

other entities assume a lead management role, and that the area

not receive national park system status.” Id. “In cases where a

study area’s resources meet criteria for national significance but

do not meet other criteria for inclusion in the national park system, the Service may instead recommend an alternative status,

such as ‘affiliated area.’ ” Id.

This case also does not jeopardize existing pipeline

crossings. As described in Respondents’ brief, existing

pipeline crossings were all constructed prior to federal

acquisition of interests in land, or co-located in existing

easements. Resp’ts’ Br. at 8. Therefore, no existing

pipelines appear to cross the Trail under Mineral Leasing Act authority. Moreover, at least in Vermont, easement deeds acquired by the National Park Service for

passage of the Appalachian Trail contain the same

standard limitation: “Subject to existing easements for

public roads and highways, public utilities, railroads

and pipelines.”33

d. Trails and land administered by other

agencies will be generally unaffected by

the narrow impact of this case.

The Mineral Leasing Act has the clear but narrow

effect of foreclosing oil and gas pipelines in National

Park units on federal lands, an effect that must be understood within the context of a statutory backdrop

that allows federal agencies in most cases to permit

These include two easement deeds from the State of Vermont in 1997 and one from a private corporation in 1983. Donation Deed for Right-of-Way Easement between State of Vermont,

Grantor and United States of America, Grantee for Tract 211-04

(Dec. 1, 1997) (on file with the Vermont Attorney General’s Office); Donation Deed for Right-of-Way Easement between State of

Vermont, Grantor and United States of America, Grantee for

Tract 212-10 (Dec. 1, 1997) (on file with the Vermont Attorney

General’s Office); Grant of Easement between Sherburne Corporation, Grantor and United States of America, Grantee (Sept. 28,

1983) (on file with the Vermont Attorney General’s Office).

pipelines on other lands owned by the United States or

otherwise administered or managed by federal agencies. Congress assigns federal land to agencies not

based on acquisition, but on administration, and accordingly writes statutes specific to each agency’s administration. So, too, has Congress assigned National

Trails based on overall trail administration. Congress

also distinguishes between overall trail administration

and trail segment management. In practice, agencies

often work together to manage each trail. Congress

therefore provides for segment-managing agencies to

either apply authority from their own statutes or borrow authority from those statutes that govern the

trail-administrating agency. Managing agencies can

therefore administer trails seamlessly with surrounding lands, including with regard to authorized pipeline

development.

Congress’s scheme for the general administration

of federal lands is not perfectly aligned with which federal agency originally acquired that land. Just like

with the National Park System, Congress defines the

National Forest System and the Bureau of Land Management’s public lands in terms of land those agencies

“administer,” rather than the land they acquired. See

16 U.S.C. § 1609 (definition of the Forest System includes “units of federally owned forest, range, and related lands,” but also includes “other lands, waters, or

interests therein which are administered by the Forest

Service or are designated for administration through

the Forest Service as part of the system” (emphasis

added)). 43 U.S.C. § 1702(e) (jurisdiction of the Bureau

of Land Management over public lands includes “any

land and interest in land owned by the United States

within the several States and administered by the Secretary of the Interior through the Bureau of Land

Management, without regard to how the United States

acquired ownership” (emphasis added)).

Aside from the Mineral Leasing Act, each trailadministering agency has statutory authority to grant

utility easements—for many kinds of utilities, other

than oil and gas pipelines—on land it administers. The

Forest Service and the Bureau of Land Management

have the same utility easement statute, which explicitly exempts pipelines for “oil, natural gas, synthetic

liquid or gaseous fuels, or any refined product therefrom, and for storage and terminal facilities in connection therewith.” 43 U.S.C. § 1761. And, as noted, the

Park System has its own utility easement statute,

which also does not cover oil or gas pipelines. 54 U.S.C.

§ 100902. The national trails system also has an easement provision, which allows the Secretaries of the

Interior and Agriculture to grant easements “in accordance with the laws applicable to the national park system and the national forest system, respectively.” 16

U.S.C. § 1248.

An overall, trail-administering agency administers an entire trail, even though specific trail segments

may be managed by other agencies. The National Scenic Trails Act distinguishes between overall “administration” of a trail and “management” of any segment

of a trail. 16 U.S.C. § 1246(a)(1)(A), (B).34 Congress further provides that different “segments” of a trail may

be managed by different agencies. Id. An agency which

manages only a segment of a trail, but which is not the

overall trail administrator, may enter into a memorandum of agreement with the administering agency allowing the segment-management agency to utilize its

own “laws, rules, and regulations” in managing the

trail. § 1246(a)(1)(B). Otherwise, “authorities related to

units of the national park system or the national forest

system, as the case may be” remain available to the

administering agency. § 1246(i).

In this regard, the Park Service and the Forest

Service have entered into several cooperative agreements and memoranda of understanding for joint trail

management. As explained in the 2017 National Trails

System Memorandum of Understanding, since the National Scenic Trails Act was passed, the Bureau of

Land Management, National Park Service, and U.S.

Forest Service “have become administrators of one or

more National Trails, a special trail-wide role delegated to these agencies by the Secretary of Agriculture

or the Interior.” U.S. Dep’t of Interior et al., National

Trails System Memorandum of Understanding 2

The National Park Service, interpreting the National Scenic Trails Act, defines trail “administration” as “exercising trailwide authorities” and “provid[ing] trailwide coordination and

consistency.” Nat’l Park Serv., Reference Manual 45: National

Trails System 8 (Jan. 2019), https://www.nps.gov/policy/Reference_

Manual_45. The Park Service defines “management” as, e.g.,

“local visitor services, managing visitor use,” and “planning and

development of trail segments or sites.” Id. at 10.

(2017).35 The Memorandum designates these agencies

as “National Trail administering agencies.” Id. The

Memorandum goes on to explain that these agencies,

plus the U.S. Bureau of Reclamation, Fish and Wildlife

Service, and U.S. Army Corps of Engineers, also “serve

as ‘National Trail managing agencies’ that are responsible for many of the sites and segments along” National Trails. Id.

In practice, even though there is one trail administrator, most trails are managed by more than one

agency across various trail segments. Not surprisingly,

the Park Service and the Forest Service reached an

agreement shortly after the National Scenic Trails Act

was passed to “maintain—to the extent that available

funds permit—the portions of the [Appalachian] Trail

which pass through areas under their separate jurisdiction . . . .” Memorandum of Agreement between the

National Park Service, Department of the Interior, and

the Forest Service, Department of Agriculture, concerning Appalachian National Scenic Trail (“1970 MOU”),

at 4 (1970).36 An arrangement by which the Park Service administers the entire trail, but allows the Forest

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

system/upload/National_Trails_System_MOU_2017-2027.pdf.

Available at https://www.nps.gov/appa/getinvolved/upload/

MOA-NPS-USFS-AT-1970.pdf. The two agencies also agreed to

“cooperate in developing uniform regulations,” to “meet from time

to time for a discussion of matters of mutual concern affecting administration, development and use of the Trail,” and to each allow

the other agency “opportunities to review and comment on development plans with a view to harmonizing each others use and development programs for the Trail.” 1970 MOU at 4-6.

Service to manage segments that overlap national forests, is a practical and efficient use of resources.

Petitioners and their amici point to the references

in the 1970 MOU to “segments of the Trail located on

Federal lands under [the agencies’] separate jurisdictions” and similar language to claim that the Trail itself is separate from the land, that the land

underneath the Trail in the National Forest is and has

always been the National Forest, and that therefore it

cannot possibly be land in the National Park System.

1970 MOU at 5; see, e.g., U.S. Br. at 34. This view ignores three key points. First, it ignores the statutory

definitions of each system described above, which depend on “administration,” and Congress’s clear designation of the Secretary of the Interior as the overall

administrator of the Trail. Second, it ignores one essential purpose of the 1970 MOU, which was to clarify

that the Forest Service will manage parts of the Trail

within National Forests even though the Park Service

is the acknowledged “administering agency” for the

Trail. See 1970 MOU at 6.37 And third, it ignores the

plain language of the Mineral Leasing Act, which only

The 1970 MOU acknowledges the special trail-wide role

played by the Park Service. While the agreement mostly entails

similar responsibilities and cooperation from each agency for its

managed segments, the Forest Service must report to the Park

Service “all acquisitions of lands and interests in lands which are

undertaken by the Forest Service for Trail purposes”; the Park

Service must keep records of any such purchases; and the “Park

Service, as administering agency, will be responsible for developing and publishing any needed maps, brochures, press releases,

etc., of a general nature for the entire Trail.” Id. at 2-3, 6.

authorizes a single agency head to grant a right-of-way

permit if “the surface of all of the Federal lands involved . . . is under the jurisdiction of one Federal

agency.” 30 U.S.C. § 185(c)(1) (emphasis added). If,

however, “the surface of the Federal lands involved is

administered . . . by two or more Federal agencies,” the

agencies must coordinate between themselves. § 185(c)(2).

The Mineral Leasing Act itself therefore defines

agency jurisdiction of land based on the surface of

the land—where the Trail runs—not any subsurface

jurisdiction. And it recognizes that “administration” of

federal land can be assigned to multiple agencies, with

potentially competing mandates.

Thus, while the segment of the Appalachian Trail

running through the George Washington National Forest is locally managed by the Forest Service, it also

counts as a unit of the Park System for overall administration. Nothing prevents the Forest Service from

granting non-pipeline utility easements over that portion of the Trail, in consultation with the Park Service—under forest service easement statutes which,

unlike the Mineral Leasing Act, do not have an explicit

exclusion for federal land in the National Park System.38

For the same reasons, a trail administered primarily by

the Forest Service, such as the Continental Divide Trail, that

runs through Park System lands, such as Yosemite National

Park, is perfectly administrable. Either the Forest Service can

manage the trail directly, or the Park Service can manage that

segment under 16 U.S.C. § 1246(a)(1)(B), pursuant to park or forest system authorities. Because the Continental Divide Trail is

indisputably surrounded by land in the National Park System as

Congress could have allowed oil and gas pipeline

easements to be part of 43 U.S.C. § 1761, the easement

statute applicable to the Forest System and Bureau of

Land Management, and could have simply withheld

from the Park Service the authority to grant any pipeline easements. But it did not. Congress structured the

Mineral Leasing Act such that no federal agency may

use it to grant a pipeline easement across Park System

lands. The text of the Act therefore addresses exactly

the question presented here: whether a gas pipeline

may be constructed across (1) federal lands which are

(2) in the National Park System, but (3) managed by a

different federal agency. By exempting the entire National Park System from the pipeline easement statute,

and not just the actions of the National Park Service,

Congress ensured that no other federal agency would

attempt to grant a pipeline easement across Park System lands, even lands for which that agency otherwise

has responsibility. The Mineral Leasing Act thus does

not divest the Forest Service of its ability to grant utility easements across those segments of the Trail that

the Forest Service manages. The Act simply does not

give the Forest Service the power to grant an oil or gas

pipeline easement across the Trail on federal land.

it traverses Yosemite, as a practical matter the Mineral Leasing

Act will not authorize pipelines to cross that segment anyway—

so the issue in this case will not arise.

II.

Preserving the National Park System benefits amici States.

The statutory question before the Court does not

depend on how many billions of dollars are at stake.

Petitioners and their amici suggest, however, that affirming the decision below will have economically devastating consequences.39 That suggestion is misguided

for several reasons.

First, the Appalachian Trail—and National Parks

in general—provide significant economic and health

benefits to state residents. The two million people visiting the Appalachian Trail every year spend between

$125 and $168 million, including $27 million direct

spending in local economies.40 Local economies along

the Appalachian Trail tend to be small, such that hikers’ spending can constitute a much-needed source of

revenue.41 In addition, the forests protected by the Appalachian Trail corridor provide substantial biodiversity and also “anchor[ ] the watersheds that provide

drinking water to more than 10 percent of the nation’s

Atl. Coast Pipeline Br. at 1; Br. of Amici the United Assoc.

of Journeymen and Apprentices of the Plumbing and Pipe Fitting

Indus. et al. at 15-24; Br. of Amici W. Va. et al. at 21-25; Br. of

Amici Rep. Jeff Duncan et al. at 12-15.

See Am. Hiking Society, supra note 3.

See Appalachian Trail Conservancy, Appalachian Trail

Community Program, appalachiantrail.org, https://appalachiantrail.org/home/conservation/a-t-community-program (last visited

Jan. 16, 2020) (listing over 40 small communities along the Trail

that market themselves specifically to Trail hikers).

population.”42 And hikers commonly report mental

health benefits from through-hiking the Trail.43

Shorter hikes and time spent in nature also provide

health benefits.44 As a result of these effects, National

Parks likely save America billions of dollars in mental

health care annually.45 Nationwide, 318 million people

visited National Parks in 2018.46 National Parks visitors directly spent $20.2 billion in 2018, which translates to total economic effects of $40 billion.47 Again,

these economic effects accrue mainly to “park gateway

communities,” many of which are small, often rural

communities, dispersed across America.48

Nat’l Parks Conservation Assoc., supra note 24, at 9. The

Trail corridor, which is “one of the largest units of the National

Park System in the eastern United States,” also includes “some of

the most significant and rare ecosystems remaining along the

East Coast.” Id. at 1.

Kathleen D. Seal, Value, Meaning and Therapeutic Notions of the Appalachian Trail, at 158-68 (Dec. 2014) (unpublished

Ph.D. dissertation, Texas State Univ.), https://digital.library.

txstate.edu/bitstream/handle/10877/5455/SEAL-DISSERTATION2014.pdf ?sequence=1&isAllowed=y.

See White, supra note 4.

See Buckley, supra note 4.

Nat’l Park Serv., News Release: National Park Visitor

Spending Contributed $40 Billion to U.S. Economy (May 23,

2019), https://www.nps.gov/orgs/1207/national-park-visitor-spendingcontributed-40-billion-to-u-s-economy.htm.

Id.; see also generally Catherine C. Thomas et al., U.S. Geological Survey & Nat’l Park Serv., 2018 National Park Visitor

Spending Effects (May 2019), https://www.nps.gov/nature/customcf/

NPS_Data_Visualization/docs/NPS_2018_Visitor_Spending_Effects.

pdf.

Nat’l Park Serv., supra note 46.

Second, there has been no showing that the Atlantic Coast Pipeline cannot or will not be built over an

Appalachian Trail easement on non-federal land. Nor

will a reversal in this case guarantee the pipeline’s

construction. The Fourth Circuit identified a number

of flaws with the permit granted in this case, most of

which are not before this Court and have yet to be resolved. See App. to U.S. Forest Serv. Pet. for Writ of

Cert. 14a-55a.

Finally, as a practical matter, even if the Atlantic

Coast Pipeline is not built, East Coast states have

other sources of energy. Even if affirming the Fourth

Circuit in this case would slightly restrict the East

Coast’s access to natural gas, state economies increasingly have alternatives for energy sources and associated economic growth.

Amici States all rely, to varying degrees, on natural gas pipelines as part of their energy infrastructure.

As noted, many pipelines already cross the Appalachian Trail, including those connecting gas-producing

hydraulic fracturing fields in Pennsylvania and West

Virginia with consumers in Virginia and North Carolina.49 Many East Coast States also import natural gas

by ship, via specially built Liquefied Natural Gas terminals.50

See U.S. Energy Info. Admin., U.S. Energy Mapping System, https://www.eia.gov/state/maps.php (last visited Jan. 16,

2020) (select map layer “Natural Gas Inter/Intrastate Pipeline”).

Georgia, Maryland, and Massachusetts all serve their respective regions with Liquefied Natural Gas import facilities. See

U.S. Dep’t of Energy, Fed. Energy Reg. Comm., North American

Gas is not the only option for fueling state economies and growth, however. In fact, economies with diversified energy sources are more resilient to economic

shocks and other disruptions. U.S. Dep’t of Energy, Valuation of Energy Security for the United States: Report

to Congress 12 (2017).51 Renewable energy sources are

widely acknowledged to be better for the environment

and for human health than fossil fuels, including natural gas.52 Renewable energy is energy from resources

LNG Import Terminals: Existing, https://www.ferc.gov/industries/

gas/indus-act/lng/lng-existing-import.pdf (Dec. 17, 2019).

Available at https://www.energy.gov/sites/prod/files/2017/

01/f34/Valuation%20of%20Energy%20Security%20for%20the%20

United%20States%20%28Full%20Report%29_1.pdf. Even Pennsylvania, the second-largest natural gas producing state after

Texas, consumes more energy from all other sources combined

than from natural gas alone. See U.S. Energy Info. Admin., Pennsylvania State Profile and Energy Estimates, Pennsylvania Energy Consumption Estimates 2017, https://www.eia.gov/state/?sid=

PA#tabs-1 (last visited Jan. 4, 2020).

For instance, natural gas extraction and transmission

causes emissions of methane, a potent greenhouse gas. U.S. Energy Info. Admin., Natural Gas Explained (Sept. 23, 2019), https://

www.eia.gov/energyexplained/natural-gas/natural-gas-and-theenvironment.php. Increases in these emissions associated with

natural gas development have been linked to conditions including

asthma and cancer. N.Y. State Dep’t of Health, A Public Health

Review of High Volume Hydraulic Fracturing for Shale Gas Development 5 (Dec. 2014), https://www.health.ny.gov/press/reports/

docs/high_volume_hydraulic_fracturing.pdf; Vt. Agency of Nat.

Resources & Dep’t of Envtl. Conservation, A Report on the Regulation and Safety of Hydraulic Fracturing for Oil or Natural Gas

Recovery xi, ix (Feb. 2015), https://legislature.vermont.gov/assets/

Legislative-Reports/ANR-REPORT-REGULATION-OF-HF-FOROIL-OR-NATURAL-GAS-RECOVERY-2015.02.12.FINAL.pdf.

that are, unlike fossil fuels, virtually inexhaustible.53

Moreover, “[e]nergy security is improved when electricity can be generated without posing a threat to the environment[.]” U.S. Dep’t of Energy, Valuation of Energy

Security, supra at 15.

For these reasons, the majority of States have

passed ambitious renewable energy and efficiency

goals.54 Each amici State has enacted such a goal.55

For instance, 75% of all Vermont’s annual retail electric sales must be from renewable sources by 2032.

Vt. Stat. Ann. tit. 30, § 8005(a)(1)(B). Likewise, Massachusetts law requires immediate and long-term emission reductions, most notably under its 2008 Global

Sources often considered renewable include hydropower;

geothermal; wind; solar; biomass, wood and wood waste; municipal solid waste; landfill gas and biogas; ethanol; and biodiesel.

U.S. Energy Info. Admin., Renewable Energy Explained, https://

www.eia.gov/energyexplained/renewable-sources/ (last visited Jan.

16, 2020).

See, e.g., NC Clean Energy Technology Center, DSIRE,

Programs, https://programs.dsireusa.org/system/program?type=38&

(last visited Jan. 16, 2020) (listing 49 state and local renewable

portfolio standards passed nationwide).

See, e.g., Conn. Gen. Stat. § 16-245a; Del. Code Ann. tit.

26, § 354; D.C. Code § 34-1432; Haw. Rev. Stat. § 269-92; Ill.

Comp. Stat. ch. 20 § 3855/1-75(c); Md. Code Ann., Pub. Util. § 7703; Mass. Gen. Laws ch. 25A, § 11F; Minn. Stat. Ann. § 216B.1691;

N.J. Stat. Ann. § 48:3-87; N.M. Stat. Ann. § 62-16-4; Or. Rev. Stat.

§§ 469A.050, 469A.052, 469A.055, 469A.065; R.I. Gen. Laws § 3926-4; Vt. Stat. Ann. tit. 30, § 8005; N.Y. Pub. Serv. Comm., Order

Adopting a Clean Energy Standard (Aug. 1, 2016), http://documents.

dps.ny.gov/public/Common/ViewDoc.aspx?DocRefId=%7b44C5D5B814C3-4F32-8399-F5487D6D8FE8%7d; see also Vt. Dept. of Pub.

Serv., Comprehensive Energy Plan 2016, https://outside.vermont.

gov/sov/webservices/Shared%20Documents/2016CEP_Final.pdf.

Warming Solutions Act, which mandates economywide reductions of greenhouse gas emissions of 80%

below 1990 levels by 2050.56

Amici States are already making progress toward

these goals. Vermont’s in-state electricity generation is

already 99.7% from renewable sources.57 Hawai‘i exceeded its renewable portfolio target by 12% in 2017.58

And Rhode Island, New York, Hawai‘i, Connecticut,

Massachusetts, Maryland, and Vermont are among the

ten states that consume the least energy per capita.59

As amici State efforts to develop it have shown,

renewable energy industries provide economic benefits

in the form of jobs, lowered energy costs, and health

benefits from improved environmental quality. Solar

is by far the electric-power-generation sector that

Mass Gen. Laws ch. 21N; see also Mass. Exec. Off. of Energy and Envtl. Affairs, GWSA Implementation Progress, https://

www.mass.gov/service-details/gwsa-implementation-progress (last

visited Jan. 16, 2020).

U.S. Energy Info. Admin., Vermont State Profile and Energy Estimates (July 18, 2019), https://www.eia.gov/state/print.

php?sid=VT.

Haw. State Energy Office, Hawaii Energy Facts and Figures 1 (June 2018), https://energy.hawaii.gov/wp-content/uploads/

2018/06/HSEO_2018_EnergyFactsFigures.pdf.

U.S. Energy Info. Admin., U.S. Overview: State Total Energy Rankings, 2017, https://www.eia.gov/state/ (last visited Jan.

22, 2020).

employs the most people, a total of 242,343—more

than natural gas and coal combined.60 The runner up

is wind, which employs 111,166 people.61 Looking forward, the two occupations with the overall highest predicted growth in the United States between 2018 and

2028 are solar photovoltaic installer and wind turbine

service technician (both of which are expected to grow

over 50% faster than the next-fastest-growing occupation, home health aide).62

Renewable energy also saves consumers money,

health, and time. For example, in just one year, states’

renewable-portfolio standards saved customers an estimated $1.3 billion to $3.7 billion from lower naturalgas prices due to decreased demand for natural gas.63

States’ standards additionally resulted in between

$2.6 billion and $9.9 billion in health benefits for

Americans in one year, just through improved air quality.64 This estimate reflects the prevention of between

320 and 1,100 deaths, 160 to 290 avoided emergency

Energy Futures Initiative & Nat’l Ass’n of State Energy

Officials, U.S. Energy and Employment Report 52 (2019), https://

www.usenergyjobs.org/s/USEER-2019-US-Energy-EmploymentReport.pdf.

Id.

See Bureau of Labor Statistics, Occupational Outlook

Handbook: Fastest Growing Occupations (Sept. 4, 2019), https://www.

bls.gov/ooh/fastest-growing.htm.

Ryan Wiser et al., A Retrospective Analysis of the Benefits

and Impacts of U.S. Renewable Portfolio Standards 44 (Jan.

2016), https://www.nrel.gov/docs/fy16osti/65005.pdf.

Id. at 24.

room visits for asthma, and 195 to 310 hospital admissions for respiratory and cardiovascular symptoms.65

As a result of these and other avoided health problems,

states’ renewable standards saved the national economy 38,000 to 64,000 lost work days altogether.66

This case involves a modest exception to the otherwise broad authority granted by the Mineral Leasing

Act to allow oil and gas pipeline development on federal lands. Namely, the Act exempts lands in the National Park System—including the Appalachian Trail,

where it traverses federal lands. Given that the Act

does not implicate state or private lands; that there are

numerous alternatives to development; and that amici

States have already embraced an energy transition,

Petitioners’ and their amici’s fears of the impact of this

exception are overblown.

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

Id.

Id. at 24 & n.41.

CONCLUSION

The decision below should be affirmed.

January 22, 2020

Respectfully submitted,

THOMAS J. DONOVAN

Attorney General of the

State of Vermont

BENJAMIN D. BATTLES

Solicitor General

ELEANOR L.P. SPOTTSWOOD*

RACHEL E. SMITH

Assistant Attorneys General

109 State Street

Montpelier, VT 05609

(802) 828-5500

eleanor.spottswood@vermont.gov

* Counsel of Record

WILLIAM TONG

Attorney General

STATE OF CONNECTICUT

165 Capitol Ave.

Hartford, CT 06106

BRIAN E. FROSH

Attorney General

STATE OF MARYLAND

200 Saint Paul Place

Baltimore, MD 21202

KATHLEEN JENNINGS

Attorney General

STATE OF DELAWARE

820 N. French Street,

6th Floor

Wilmington, DE 19801

MAURA HEALEY

Attorney General

COMMONWEALTH OF

MASSACHUSETTS

One Ashburton Place

Boston, MA 02108

KARL A. RACINE

Attorney General

DISTRICT OF COLUMBIA

One Judiciary Square

441 4th Street, NW

Washington, DC 20001

KEITH ELLISON

Attorney General

STATE OF MINNESOTA

102 State Capitol

75 Rev. Dr. Martin

Luther King Jr. Blvd.

St. Paul, MN 55155

CLARE E. CONNORS

Attorney General

STATE OF HAWAI‘I

425 Queen Street

Honolulu, HI 96813

KWAME RAOUL

Attorney General

STATE OF ILLINOIS

100 West Randolph St.

Chicago, IL 60601

GURBIR S. GREWAL

Attorney General

STATE OF NEW JERSEY

R.J. Hughes Justice

Complex

P.O. Box 093

Trenton, NJ 08625

HECTOR BALDERAS

Attorney General

STATE OF NEW MEXICO

408 Galisteo St.

Santa Fe, NM 87501

LETITIA JAMES

Attorney General

STATE OF NEW YORK

28 Liberty Street

New York, NY 10005

ELLEN F. ROSENBLUM

Attorney General

STATE OF OREGON

1162 Court Street, NE

Salem, OR 97301

PETER F. NERONHA

Attorney General

STATE OF RHODE ISLAND

150 South Main Street

Providence, RI 02903

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.