Amicus Curiae Brief — Atlantic Coast Pipeline, LLC, Petitioner v. Cowpasture River Preservation Association, et al.

Nos. 18-1584, 18-1587

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

In The

Supreme Court of the United States

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

Petitioners,

v.

COWPASTURE RIVER PRESERVATION ASS’N, et al.,

Respondents.

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

Petitioner,

v.

COWPASTURE RIVER PRESERVATION ASS’N, et al.,

Respondents.

-----------------------------------------------------------------On Petitions For Writs Of Certiorari To The United

States Court Of Appeals For The Fourth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE AMERICAN FOREST

RESOURCE COUNCIL, FEDERAL FOREST

RESOURCE COALITION, INTERMOUNTAIN

FORESTRY ASSOCIATION, MONTANA WOOD

PRODUCTS ASSOCIATION, MISSOURI FOREST

PRODUCTS ASSOCIATION, AMERICAN WALNUT

MANUFACTURERS ASSOCIATION, ASSOCIATED

CALIFORNIA LOGGERS, ASSOCIATED LOGGING

CONTRACTORS-IDAHO, ASSOCIATED OREGON

LOGGERS, MONTANA LOGGING ASSOCIATION,

WASHINGTON CONTRACT LOGGERS

ASSOCIATION, GREAT LAKES TIMBER

PROFESSIONALS ASSOCIATION, AND DOUGLAS

TIMBER OPERATORS SUPPORTING PETITIONERS

-----------------------------------------------------------------LAWSON E. FITE

Counsel of Record

SARA GHAFOURI

AMERICAN FOREST

RESOURCE COUNCIL

700 NE Multnomah St.

Suite 320

Portland, OR 97232

(503) 222-9505

lfite@amforest.org

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

The Mineral Leasing Act of 1920, 30 U.S.C.

§ 185(b)(1), permits Federal agencies to grant rightsof-way for energy pipelines, with limited exceptions

including “lands within the National Park System.”

Does the designation of a trail to be administered by

the National Park Service strip the Forest Service of

its authority to issue a right-of-way through the underlying National Forest?

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...........................

1

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

3

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

4

1.

THE FOURTH CIRCUIT FUNDAMENTALLY MISUNDERSTOOD HOW TO

INTERPRET THE LAWS GOVERNING

PUBLIC LANDS ..........................................

4

A. The Distinct History of Public Land Law

Means Statutory Interpretation Must Be

Undertaken With Special Care .............

5

B. The Fourth Circuit Inappropriately Interpreted the Statutes at Issue ............. 11

2. THE DECISION BELOW THREATENS

WORK TO ADDRESS THE NATIONAL

FOREST HEALTH CRISIS ......................... 15

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

19

iii

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Utah,

446 U.S. 500 (1980) ...................................................8

Bennett v. Spear,

520 U.S. 154 (1997) .................................................14

Ctr. for Biological Diversity v. Ilano,

___ F.3d ___, No. 17-16760,

2019 WL 2571434 (9th Cir. June 24, 2019) ............16

Headwaters, Inc. v. Bureau of

Land Mgmt., Medford Dist.,

914 F.2d 1174 (9th Cir. 1990) ....................................9

Herrera v. Wyoming,

587 U.S. ___, 139 S. Ct. 1686 (2019) .........................9

Inhabs. of Montclair Twp. v. Ramsdell,

107 U.S. (17 Otto) 147 (1883) ..................................13

King v. Burwell,

576 U.S. ___, 135 S. Ct. 2480 (2015) .......................10

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) .................................................10

Kleppe v. New Mexico,

426 U.S. 529 (1976) ...................................................6

Lessee of Pollard v. Hagan,

44 U.S. (3 How.) 212 (1845) .......................................6

National Labor Relations Board v.

Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) .....................................................13

iv

TABLE OF AUTHORITIES – Continued

Page

No Oilport! v. Carter,

520 F. Supp. 334 (W.D. Wash. 1981) .......................12

United States v. Atl. Research Corp.,

551 U.S. 128 (2007) .................................................10

United States v. City and County

of San Francisco,

310 U.S. 16 (1940) .....................................................6

United States v. Gratiot,

39 U.S. (14 Pet.) 526 (1840) .......................................6

United States v. Menasche,

348 U.S. 528 (1955) .................................................13

Utility Air Regulatory Group v. E.P.A.,

573 U.S. 302, 134 S. Ct. 2427 (2014) .......................10

Wilderness Soc’y v. Morton,

479 F.2d 842 (D.C. Cir. 1973) ..................................10

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. IV, § 3, cl. 2 ..........................................6

U.S.C.A. Articles of Confederation Historical

Notes (West) ..............................................................6

STATUTES

5 U.S.C. § 500 et seq. .....................................................9

10 U.S.C. § 8721 ............................................................9

Former 16 U.S.C. § 471 (1964) ......................................9

16 U.S.C. § 475 et seq. ...................................................9

v

TABLE OF AUTHORITIES – Continued

Page

16 U.S.C. §§ 528-531 .....................................................9

16 U.S.C. § 533 ............................................................16

16 U.S.C. § 535 ............................................................17

16 U.S.C. § 1131 ............................................................9

16 U.S.C. § 1242 ..........................................................11

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

16 U.S.C. § 1244(a)(1) ................................. 4, 12, 13, 18

16 U.S.C. § 1244(a)(5) .................................................19

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

16 U.S.C. § 1246(i) .......................................................13

16 U.S.C. § 1246(a)(1) .................................................13

16 U.S.C. § 1246(a)(1)(A) .................................. 3, 12, 13

16 U.S.C. § 1246(a)(1)(B) ............................................13

16 U.S.C. § 1246(j) .......................................................13

16 U.S.C. § 1540(g)(1)(A).............................................13

16 U.S.C. § 1601 et seq. .................................................9

16 U.S.C. § 1604(i) .......................................................17

16 U.S.C. § 1609(a) ........................................................9

16 U.S.C. § 1611 ..........................................................17

16 U.S.C. §§ 6591a-6591e ...........................................16

30 U.S.C. § 185(a) .................................................... 5, 14

30 U.S.C. § 185(b)(1) ..................................... 3, 5, 11, 12

30 U.S.C. § 185(b)(3) ...................................................14

vi

TABLE OF AUTHORITIES – Continued

Page

42 U.S.C. § 4332 ............................................................9

Former 43 U.S.C. § 1392 (1970) ....................................8

43 U.S.C. § 2601 ............................................................9

54 U.S.C. §§ 100101-104909 .........................................9

54 U.S.C. § 100101(a) ..................................................17

54 U.S.C. § 100101(b) ..................................................17

54 U.S.C. § 100102(6) ..................................................11

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

54 U.S.C. § 100511 ......................................................17

54 U.S.C. § 100701 ......................................................17

54 U.S.C. § 100706 ......................................................17

54 U.S.C. § 100753 ......................................................17

54 U.S.C. § 100902(a)(3) .............................................17

Omnibus Enabling Act of 1889, 15th Cong., 1st

Sess., ch. 180, 25 Stat. 676 ........................................7

LEGISLATIVE AND EXECUTIVE MATERIALS

Gov. E.G. Brown, Jr., Procl. of a State of Emergency, Oct. 30, 2015 .................................................16

Gov. E.G. Brown, Jr., Exec. Order B-52-18 .................16

Remarks of Interim Chief Vicki Christiansen,

U.S. Forest Service, “Envisioning Healthy Forests for Families and Communities,” Mar. 26,

2018 .........................................................................15

vii

TABLE OF AUTHORITIES – Continued

Page

H.R. Rep. No. 95-1165, 95th Cong., 2d Sess. (May

15, 1978) ..................................................................11

National Park Service, National Historic Trails

& Routes, https://imgis.nps.gov/html/?viewer

=nht (last visited June 7, 2019) ..............................18

Gov. G. Newsom, Procl. of a State of Emergency,

Mar. 22, 2019 ...........................................................16

President Donald J. Trump, Exec. Order No.

13855, Promoting Active Management of America’s Forests, Rangelands, and Other Federal

Lands To Improve Conditions and Reduce

Wildfire Risk, issued Dec. 21, 2018, 84 Fed.

Reg. 45 (Jan. 7, 2019) ..............................................16

OTHER AUTHORITIES

G.C. Coggins et al., Fed. Pub. Land & Res. Law

(5th ed. 2002) .............................................................5

M. Farrand, The Records of the Federal Convention (1911) .................................................................7

The Federalist No. 43 (Earle ed. 1937) ........................7

P.W. Gates, History of Public Land Law Development (1968) ........................................................ 6, 7, 8

R. Keiter & M. McKinney, Public Land and Resources Law in the American West: Time for

Another Comprehensive Review?, 49 Envtl. L.

1 (2019) ......................................................................8

viii

TABLE OF AUTHORITIES – Continued

Page

Public Land Law Review Commission, One Third

of the Nation’s Land: A Report to the President

and to the Congress (1970) ........................................7

3 J. Story, Commentaries on the Constitution

§ 1322 (1833) .............................................................7

1 St. G. Tucker, Blackstone’s Commentaries: With

Notes of Reference to the Constitution and

Laws of the Federal Government of the United

States and of the Commonwealth of Virginia,

App. 283-86 (1803; 1969 reprint) ..............................5

1

INTEREST OF AMICI CURIAE1

Amici curiae are associations that represent forest

products businesses that depend on healthy federal

forests for their livelihoods.

The American Forest Resource Council (AFRC) is

a regional trade association whose purpose is to advocate for sustained-yield timber harvests on public timberlands throughout the West to enhance forest health

and resistance to fire, insects, and disease. AFRC promotes active management to attain productive public

forests, protect the value and integrity of adjoining private forests, and assure community stability. It works

to improve federal and state laws, regulations, policies

and decisions regarding access to and management of

public forest lands and protection of all forest lands.

AFRC represents over 50 forest product businesses

and forest landowners throughout California, Idaho,

Montana, Oregon, and Washington. These businesses

provide tens of thousands of family-wage jobs in rural

communities.

The Federal Forest Resource Coalition, Intermountain Foresty Association, Douglas Timber Operators, Missouri Forest Products Association, American Walnut

1

Counsel of record for all parties received notice at least 10

days prior to the due date of amici curiae’s intention to file this

brief, and all parties have consented in writing to the filing. See

Sup. Ct. R. 37.2(b). No counsel for a party authored this brief in

whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this

brief. No person other than amici curiae, their members, or their

counsel made a monetary contribution to its preparation or submission. See Sup. Ct. R. 37.6.

2

Manufacturers Association, and Montana Wood Products Association are voluntary non-profit trade associations who work to promote long-term management of

National Forests, provide opportunities for open discussion and appropriate interchange of information

concerning all facets of the forest products industry,

and accumulate and disseminate information regarding the forest products industry in order to foster the

best interests of the industry and public. Amici include

the majority of purchasers of commercial timber from

Federally-owned forests throughout the country.

Associated California Loggers, Associated Logging

Contractors-Idaho, Associated Oregon Loggers, Washington Contract Loggers Association, Great Lakes

Timber Professionals Association, and Montana Logging Association work to provide a strong, cohesive

voice before agencies, legislatures, the public, and the

courts on behalf of their members who are engaged in

the business of harvesting and transporting timber

from forest to mill. They also work to enhance safety

and professional standards for their members by offering educational and technical assistance programs.

Many of amici’s members work in or adjacent to

Federal forestlands, and the management of these

lands ultimately dictates not only the viability of their

businesses, but also the economic health of the communities themselves. With much of the National Forest

landscape in poor health, active management is badly

needed throughout the country to reduce the risk of

catastrophic wildfire as well as insect and disease outbreaks. Amici have a strong interest in maintaining

3

the ability of the Forest Service to conduct active management without judicial imposition of undue constraints.

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

SUMMARY OF ARGUMENT

The Fourth Circuit vacated the Forest Service’s

grant of a special use permit enabling a pipeline to

cross under the Appalachian Trail. The court of appeals held that the administration of the trail by the

National Park Service operated as a transfer of jurisdiction. It found the portion of the George Washington

National Forest hosting the trail to be converted to

“lands in the National Park System” where the Mineral Leasing Act (MLA) does not permit rights-of-way

for pipeline projects. Pet. App. 55a, 57a; 30 U.S.C.

§ 185(b)(1). This was despite the admonition in the

National Trails System Act that “[n]othing contained

in this chapter shall be deemed to transfer among

Federal agencies any management responsibilities

established under any other law. . . .” 16 U.S.C.

§ 1246(a)(1)(A).

The Fourth Circuit’s reasoning fundamentally

misapprehended the task before it. Federal lands are

replete with overlapping jurisdictions, agencies, and

statutory mandates, an artifact of the role these lands

played in building the Nation. Public land laws must

be construed with an eye to this context, paying special

attention to the varied types of agency power and

4

authority. The Fourth Circuit elided all of these concerns, facilely equating the Appalachian Trail, a “unit”

of the National Trails System, with “lands” within the

National Park System.

The effect of the ruling below is not limited to this

pipeline, or any pipeline, or this trail. It threatens to

impede the ability of land-management agencies to issue rights-of-way for other purposes. These include

roads to access forest management project areas throughout the 193-million-acre National Forest System. At a

time where forest health is in a state of emergency, and

the need for active management is broadly recognized

to reduce risk of severe fire, the decision below could

have grave consequences. It should not stand.

For these reasons amici respectfully request that

the Court grant the petitions for certiorari submitted

by the Government and by Atlantic Coast Pipeline,

LLC.

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

ARGUMENT

I.

THE FOURTH CIRCUIT FUNDAMENTALLY

MISUNDERSTOOD HOW TO INTERPRET

THE LAWS GOVERNING PUBLIC LANDS.

The National Park Service “primarily” administers the Appalachian Trail, “in consultation” with the

Forest Service. See 16 U.S.C. § 1244(a)(1). The court below found that the trail is therefore a “unit” of the National Park System. Pet. App. 57a. This led the court to

5

conclude that the trail’s footprint constitutes “lands

within the National Park System” wherein pipeline

rights-of-way are prohibited. Id. (citing 30 U.S.C.

§§ 185(a), 185(b)(1)). This holding failed to apply the

careful process of statutory construction that is necessary when considering the complex framework of public land laws, and failed to appreciate the many

different types of authority or jurisdiction that a single

acre may bear. Certiorari is warranted to ensure that

Congressional direction on the public domain is given

the appropriate primacy, a primacy supporting our

Federal system.

A. The Distinct History of Public Land Law

Means Statutory Interpretation Must Be

Undertaken With Special Care.

The Federal Government is by far the largest

landowner in the United States, owning “about 650

million acres, or about 28% of all land in the country.”

G.C. Coggins et al., Fed. Pub. Land & Res. Law 1 (5th

ed. 2002). This includes, for example, about half the

national softwood timber inventory. Id. at 12. Federal

lands were first acquired after the Revolution, at Congress’s suggestion that the States cede their western

land claims “for the common benefit of the union.” 1 St.

G. Tucker, Blackstone’s Commentaries: With Notes of

Reference to the Constitution and Laws of the Federal

Government of the United States and of the Commonwealth of Virginia, App. 283-86 (1803; 1969 reprint).

The ultimate purpose of the first western cession was

to retire the debt incurred to finance the Revolution.

6

Lessee of Pollard v. Hagan, 44 U.S. (3 How.) 212, 224

(1845).

Federal ownership of public lands was one of the

distinctions between the Articles of Confederation and

the Federalism of the Constitution. P.W. Gates, History

of Public Land Law Development 3 (1968). Indeed, the

controversy over western land ownership was a primary reason the Articles of Confederation were not

ratified until 1781. U.S.C.A. Articles of Confederation

Historical Notes (West) (stating Maryland “instructed

her delegates . . . not to agree to the confederation until

matters respecting the western lands should be settled

on principles of equity and sound policy. . . .”).

To that end, the new Constitution vested extremely

broad power in the Legislative Branch to administer

the public territory. The Property Clause provides:

“The Congress shall have power to dispose of and make

all needful rules and regulations respecting the territory or other property belonging to the United States;

and nothing in this Constitution shall be so construed

as to prejudice any claims of the United States, or of

any particular state.” U.S. Const. Art. IV, § 3, cl. 2.

The Court has repeatedly declared Congress’s

Property Clause power to be “without limitation.”

Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); United

States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840).

Therefore, “neither the courts nor the executive agencies, could proceed contrary to an Act of Congress in

this congressional area of national power.” United

States v. City and County of San Francisco, 310 U.S. 16,

29-30 (1940). The expansive interpretation of the

7

Clause gains strength from historical sources of support. See, e.g., 3 J. Story, Commentaries on the Constitution § 1322 (1833) (“The power of congress over the

public territory is clearly exclusive and universal; and

their legislation is subject to no control; but is absolute,

and unlimited.”).

Not only did the new Federal lands strengthen the

new country, but the nationalization of them could

tamp down factional battles. Madison thus found the

Property Clause to establish “a power of very great

importance. . . .” which “was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the

public.” The Federalist No. 43 (Earle ed. (1937) at 28182). Among these jealousies, ultimately rejected by the

Convention, were Gouverneur Morris’s efforts to constrain formation of states from the territory in the

West, fearful that westerners would not be “equally

enlightened, to share in the administration of our common interests.” Gates, supra, at 74 (quoting M. Farrand,

1 The Records of the Federal Convention 583 (1911)).

As the Nation raced west, additional Federal

lands were acquired and many were sold, granted, or

otherwise used to encourage settlement. Public Land

Law Review Commission, One Third of the Nation’s

Land: A Report to the President and to the Congress x,

1-7, 19 (1970). Many of the new states were seeded

with land grants to be held in trust for the benefit of

public education, leading among other things to today’s

“land-grant” universities. See, e.g., Omnibus Enabling

Act of 1889, 15th Cong., 1st Sess., ch. 180, 25 Stat. 676,

§§ 10, 14 (granting lands upon admission to Washington,

8

Montana, and the Dakotas); Gates, supra, at 804-05.

By such “solemn agreement[s],” the Federal Government “agreed to cede some of its land to the State in

exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry.”

Andrus v. Utah, 446 U.S. 500, 507 (1980).

Today, the Federal Government owns over forty

percent of eight states, and more than half of Alaska,

Idaho, Nevada, Utah, and Oregon. Coggins et al. at 10.

But no state east of the Mississippi has more than fifteen percent Federal ownership. Id. Total Federal land

across the states of the Fourth Circuit, for example, is

7.2 percent. Id. Federal public lands have always been

and still are a decidedly Western issue.

Unsurprisingly, the development of the law of public lands has been neither uniform nor smooth. Congress recognized “the public land laws of the United

States have developed over a long period of years

through a series of Acts of Congress which are not

fully correlated with each other. . . .” Former 43 U.S.C.

§ 1392 (1970). The layers of public land law have been

characterized as a “briar patch” containing “a diverse

assortment of old and new laws that have created a

conflicting maze of legal mandates, property rights,

and environmental requirements.” R. Keiter & M. McKinney, Public Land and Resources Law in the American

West: Time for Another Comprehensive Review?, 49 Envtl. L. 1, 30 (2019).

Public land statutes operate in at least three dimensions; they can be area-specific, agency-specific,

or function-specific. As to the former, Congress has

reserved areas of the public domain for particular

9

purposes. These include wilderness areas set aside

for public use and enjoyment, 16 U.S.C. § 1131, or for

Naval petroleum reserves, 10 U.S.C. § 8721. They also

include areas reserved for sustained-yield timber production, 43 U.S.C. § 2601, within a “self-sustaining timber reservoir for the future.” Headwaters, Inc. v.

Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174,

1184 (9th Cir. 1990).

Activities of the National Park Service are guided

by its Organic Act, 54 U.S.C. §§ 100101-104909. The

Forest Service works within three framework statutes:

its Organic Act of 1897, 16 U.S.C. § 475 et seq., the

Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C.

§§ 528-531, and the National Forest Management Act

of 1976, 16 U.S.C. § 1601 et seq. Historically, the Forest

Service Organic Act also delegated to the President the

authority to designate forest reserves, now incorporated into the National Forest System. Former 16

U.S.C. § 471 (1964); see 16 U.S.C. § 1609(a); Herrera v.

Wyoming, 587 U.S. ___, 139 S. Ct. 1686, 1691-93, 1702

(2019) (recounting creation of the Bighorn National

Forest). Both the National Trails System Act and Mineral Leasing Act are function-based statutes which

overlie the public lands. And of course, there are laws

of more general applicability such as the National Environmental Policy Act, 42 U.S.C. § 4332, and Administrative Procedure Act, 5 U.S.C. § 500 et seq.

Traditional rules of statutory construction, particularly when attempting to make sense of an interlocking and multifaceted statutory structure, can quickly

lead a court astray, and did so here. The general rule

10

that courts should strive to reconcile potentially conflicting statutes is of “special significance” in the public

land context. Wilderness Soc’y v. Morton, 479 F.2d 842,

881 (D.C. Cir. 1973). Wilderness Society held the MLA’s

25-foot restriction on special use permit width for

pipeline construction activities did not also constrain

issuance of right-of-way for pipeline pumping stations. Id. at 876 (vacating permit for construction of

Trans-Alaska Pipeline due to non-compliance with

construction width limitation). The court remarked

that “[w]hile the question of a pumping station rightof-way may appear similar to that of construction [permits], close examination reveals the similarity to be

merely superficial.” Id.

The thicket of public land laws is “hardly a model

of neat organization and uniform planning.” Id. This

lack of organization also means that a court will find

“ ‘the presumption of consistent usage readily yields to

context,’ and a statutory term may mean different

things in different places[,]” particularly when a statute “is far from a chef d’oeuvre of legislative draftsmanship.” King v. Burwell, 576 U.S. ___, 135 S. Ct. 2480,

2493 n.3 (2015) (quoting Utility Air Regulatory Group

v. E.P.A., 573 U.S. 302, 134 S. Ct. 2427, 2441-42 (2014)).

Moreover, statutory structure is just as significant as

the words used. King, 135 S. Ct. at 2492. “Statutes

must ‘be read as a whole.’ ” United States v. Atl. Research Corp., 551 U.S. 128, 135 (2007) (quoting King v.

St. Vincent’s Hospital, 502 U.S. 215, 221 (1991)).

11

B. The Fourth Circuit Inappropriately Interpreted the Statutes at Issue.

The Court of Appeals flouted all the above principles, imposing its own superficial understanding upon

a multifaceted statutory scheme. It started with the

MLA’s preclusion of pipeline rights-of-way on “lands in

the National Park System.” 30 U.S.C. § 185(b)(1). Relying on comments the Park Service submitted in the

administrative record, the court found that the Appalachian Trail “is a unit of the National Park System.”

Pet. App. 57a. The court then inferred, without explaining, that a “unit” of the Park System necessarily contains “lands in the National Park System.” Id. The

inference was unwarranted. The Appalachian Trail is

part of the National Trails System. 16 U.S.C. § 1242. In

deliberations on the National Parks and Recreation Act

of 1978, the last major legislation in this arena, accordingly, Congress referred to the separate “National Park

and National Trail Systems,” plural. H.R. Rep. No. 951165, 95th Cong., 2d Sess., at 58 (May 15, 1978) (emphasis added).

Despite the Park Service’s shorthand description,

moreover, the Trail is not in fact a “unit” of the Park

System as that term is defined by statute. Park System

units, as defined by the Organic Act, “include any area

of land and water administered by the Secretary, acting through the Director, for park, monument, historic,

parkway, recreational, or other purposes.” 54 U.S.C.

§ 100501; see 54 U.S.C. § 100102(6). It does not explicitly include trails, which are part of their own system.

See USFS Pet. 21 (“the Trail itself is a footpath on the

surface of the land it crosses”). The court erred by

12

assuming that informal reference to the Trail as part

of the Park System had legal significance.

The Fourth Circuit made other unwarranted inferences. Assuming the trail is a unit of the Park System,

and noting that the Trails Act indicates the Appalachian Trail “shall be administered primarily as a

footpath by the Secretary of the Interior,” 16 U.S.C.

§ 1244(a)(1), the court concluded the Trail is “land” administered by the Park Service. There is superficial

equivalence between managing land and “administering a trail” over land, but not legal equivalence. Such

is the nature of the thicket. Consistency in usage must

yield, and the applicability of the MLA exception must

be given an appropriately narrow reading. Cf. No Oilport! v. Carter, 520 F. Supp. 334, 360 (W.D. Wash. 1981)

(construing the same sentence of 30 U.S.C. § 185(b)(1),

referring to “lands held in trust for an Indian or an Indian tribe,” to be limited to lands held in fee).

The Court of Appeals failed to recognize the separate structure of the Trails Act, which is on equal footing with the Park Service Organic Act. Instead, it

subsumed the Trails Act into the Organic Act. This

violated the Trails Act’s instruction that “[n]othing

contained in this chapter 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.” 16 U.S.C. § 1246(a)(1)(A). Thus,

the Forest Service retains its authorities both under

the MLA and its own foundational statutes.

13

The Fourth Circuit’s opinion in effect renders not

only the Trails System but much of the Trails Act superfluous. It failed to give effect to the section of the

Trails Act which clarifies that trail administration

is not a transfer of general authority or jurisdiction,

16 U.S.C. § 1246(a)(1)(A); the detailed procedure for

transfer of such authority, 16 U.S.C. § 1246(a)(1)(B);

the proviso that designated uses shall not supersede

any other authorized uses, 16 U.S.C. § 1246(j); the Forest’s Service’s explicit role in administering the Appalachian Trail, 16 U.S.C. § 1244(a)(1); and the retention

by the Park Service and Forest Service of all other authorities for the purposes of trail administration, 16

U.S.C. § 1246(i). The Court of Appeals violated a “cardinal principle of statutory construction,” that “to save

and not to destroy.” United States v. Menasche, 348 U.S.

528, 538-39 (1955) (quoting National Labor Relations

Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30

(1937)). It is a court’s duty “to give effect, if possible,

to every clause and word of a statute.” Menasche, 348

U.S. at 538-39 (quoting Inhabs. of Montclair Twp. v.

Ramsdell, 107 U.S. (17 Otto) 147, 152 (1883)). The

Court of Appeals didn’t do so.

The treatment of section 1246(a)(1) of the Trails

Act stands out. Subsection (a)(1)(A)’s limitation on

transfer of underlying management authority is rendered superfluous, and its limitation to subsection

(a)(1)(B), is written out of the statute. This Court rejected a similar statutory reading in Bennett v. Spear,

holding that the Government’s reading of section

10(g)(1)(A) of the Endangered Species Act, 16 U.S.C.

§ 1540(g)(1)(A), was “simply incompatible with the

14

existence of another section” of the same Act. The

Court found the related “provision would be superfluous—and, worse still, its careful limitation to § 1533

would be nullified—” under that reading, and so rejected it. Bennett v. Spear, 520 U.S. 154, 173 (1997). The

decision below is similarly egregious, as it fails to take

account of the statutory scheme, misreads the language of the statute, and nullifies a particular section

and the careful limitations therein.

The Court of Appeals’ remaining errors flow from

its fundamental mistake. It rejected the Government’s

interpretation of the MLA because to do so “would

give the Forest Service more authority than NPS on

National Park System land.” Pet. App. 57a. This is

backwards. The Fourth Circuit’s interpretation unduly

restricts the Forest Service’s own power and duty to

manage Forest Service land, giving more power to the

Park Service.

The court also found the Forest Service did not

contain an “appropriate agency” head within the meaning of MLA section 185(a), defined as “the head of any

Federal department or independent Federal office or

agency . . . which has jurisdiction over Federal lands.”

30 U.S.C. § 185(b)(3) (emphasis added). The court reasoned that the Forest Service was merely “managing”

land underlying the Trail, and lacked “administration”

responsibilities over the Trail. Pet. App. 58a. Again,

this inverts the proper structure. The Forest Service

manages and has jurisdiction over the land overlaid by

the Trail, which is not taken away by the Trails Act.

15

Because the Trails Act does not purport to transfer land from the Forest Service to the Park Service,

the Court of Appeals wrongly found that the Forest

Service lost its general authority under the MLA to issue a right-of-way. The decision reflects a profound

misunderstanding of how land management agencies

are designed to work, of the structure of public land

laws, and of the role of public lands in our Federal system. Certiorari is accordingly appropriate.

2.

THE DECISION BELOW THREATENS WORK

TO ADDRESS THE NATIONAL FOREST

HEALTH CRISIS.

Petitioners describe significant adverse consequences from the decision below along the Eastern

Seaboard, particularly to the development of energy

infrastructure. USFS Pet. 26-27; Atlantic Pet. 31-34.

They also point out the barriers the decision could impose on land management in the East.

Should the decision stand, moreover, and other

courts follow the Fourth Circuit’s misadventure, the

consequences on forest health, rural economies, and

public safety could be severe. The National Forests are

in a state of crisis. As the Chief of the Forest Service

remarked, “The challenges to forest health . . . are

as great as any the Forest Service has faced in our

113-year history.” Remarks of Interim Chief Vicki

Christiansen, U.S. Forest Service, “Envisioning Healthy

Forests for Families and Communities,” Mar. 26, 2018.

These challenges include “growing severity and duration

of wildfires and fire seasons” and a total of 80 million

16

acres at risk and in need of active management. Id.

Due to these growing threats, Congress has enacted

several statutory provisions since 2014 to permit the

Forest Service to expedite forest treatments. 16 U.S.C.

§§ 6591a-6591e. Congress recognized that the current

system has not been keeping up with the pace and

scale of the forest health crisis. Ctr. for Biological Diversity v. Ilano, ___ F.3d ___, No. 17-16760, 2019 WL

2571434, at *4 (9th Cir. June 24, 2019).

Successive Governors of California have declared

emergencies relating to forest mortality and wildfire

risk. Gov. E.G. Brown, Jr., Procl. of a State of Emergency, Oct. 30, 2015; Exec. Order B-52-18 (directing

agencies to “double the statewide rate of forest treatments”); Gov. G. Newsom, Procl. of a State of Emergency, Mar. 22, 2019. Similarly, the President has

directed Federal agencies to use their authorities to increase active management. President Donald J. Trump,

Exec. Order No. 13855, Promoting Active Management

of America’s Forests, Rangelands, and Other Federal

Lands To Improve Conditions and Reduce Wildfire Risk,

issued Dec. 21, 2018, 84 Fed. Reg. 45 (Jan. 7, 2019). “Active management of vegetation is needed to treat . . .

dangerous conditions on Federal lands. . . .” Id.

The Forest Service has ample authority to issue

rights-of-way for road access and to conduct forest

management across the National Forest System. The

National Forest Roads and Trails Act authorizes “permanent or temporary easements for . . . road rights-ofway . . . over national forest lands and other lands

administered by the Forest Service.” 16 U.S.C. § 533.

Further, the Secretary of Agriculture is “authorized to

17

provide for the acquisition, construction, and maintenance of forest development roads within and near the

national forests and other lands administered by the

Forest Service in locations and according to specifications which will permit maximum economy in harvesting timber.” 16 U.S.C. § 535. The Forest Service may

conduct land management activities, including those

that produce commercial timber, consistent with its

governing land use plans. 16 U.S.C. §§ 1604(i), 1611. By

contrast, if National Forest land were considered part

of the Park System, these management authorities are

not available. The Park Service does not have a mandate for multiple use but for resource preservation.

54 U.S.C. §§ 100101(a), 100701, 100706. Accordingly,

the provisions of the Park Service Act regarding roads

and rights-of-way are narrow, 54 U.S.C. §§ 100511,

100902(a)(3), and timber management is severely restricted. 54 U.S.C. § 100753. The Park Service Act’s authorities must be narrowly construed “and shall not be

exercised in derogation of the values and purposes for

which the System units have been established. . . .” 54

U.S.C. § 100101(b).

The decision below also could raise questions

about thousands of existing and potential future rightsof-way, easements, and share-cost agreements across

federal and non-federal lands on these now-numerous

federal designated trails. Most of those thousands of

existing and future agreements are subject to periodic

amendment, renewal, maintenance, or establishment

to serve necessary public and private sector infrastructure and management actions. The disruptive consequences of the decision start with a pipeline but do not

end there. USFS Pet. 28-30; Atlantic Pet. 34-35.

18

There are 30 National Scenic or Historic Trails

designated by the Trails Act. 16 U.S.C. § 1244(a). An

additional 24 trail routes are identified for study. 16

U.S.C. § 1244(c). Of the 30 currently-designated trails,

24 are primarily administered by the Secretary of

the Interior through the Park Service. 16 U.S.C.

§§ 1244(a)(1),(3),(4),(6)-(12),(15)-(26), (28)-(29).

While not all the trails administered through the

Secretary of the Interior pass through National Forest

System lands, most do. Fifteen of these trails stretch

almost 38,000 miles across 32 states, and affect 60 different National Forests, Grasslands, Scenic Areas, and

Management Units. Maps provided by the Park Service show where trails cross National Forest System

Lands. National Park Service, National Historic Trails

& Routes, https://imgis.nps.gov/html/?viewer=nht (last

visited June 7, 2019).

For example, the North County National Scenic

Trail crosses eight different states, and 872 of its 4,600

miles are within National Forest System units, from

Vermont’s Green Mountain National Forest to the

Sheyenne National Grassland in North Dakota. Similarly, the Lewis and Clark National Historic Trail

crosses 13 National Forest System Units in its journey

from Ohio’s Wayne National Forest to the Columbia

River Gorge National Scenic Area in Oregon and

Washington. Transferring these trails to the Park Service would create massive lines of disruption across

the publicly-owned landscape.

On the other side of the coin, multiple national

trails administered by the Forest Service pass through

19

units of the National Park System. For example, the

Continental Divide Trail passes through several

iconic National Parks including Yellowstone. Does the

administration of this trail by the Secretary of Agriculture, 16 U.S.C. § 1244(a)(5), convert Yellowstone into

National Forest land subject to the MLA? Respondents

presumably would argue it does not, but the Fourth

Circuit’s logic leads inexorably to that result.

The Fourth Circuit’s decision threatens significant

disruption to Federal land management and therefore

a great disservice to the public interest. Avoiding these

consequences merits a grant of certiorari.

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

CONCLUSION

For the reasons above, amici respectfully request

that the Court grant the petitions for certiorari.

July 26, 2019

Respectfully submitted,

LAWSON E. FITE

Counsel of Record

SARA GHAFOURI

AMERICAN FOREST

RESOURCE COUNCIL

700 NE Multnomah St.

Suite 320

Portland, OR 97232

(503) 222-9505

lfite@amforest.org