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Supreme Court Searches for Path through Byzantine Federal Land Laws

  • Jonathan Wood
  • Federal lands are governed by a complex thicket of laws built up over more than a century, often with too little thought to how the different generations fit together. The Supreme Court confronted that problem last week, when it considered whether federal permits for the Atlantic Coast Pipeline are void because the pipeline would pass several hundred feet below the Appalachian Trail.

    The challengers argue that only Congress can approve a pipeline right-of-way because the trail is the equivalent of a national park. Because Atlantic Coast’s permit was from the Forest Service, they argue, it is invalid. From there, things get complicated quickly.

    The trail isn’t a national park. But the Secretary of Interior has delegated the trail’s management to the National Park Service. So the challengers argue that the trail is “lands in the National Park System”—which, they further argue, means it has to be treated as if a national park. They claim this is the inevitable (if non-obvious) conclusion of reconciling five statutes enacted over a 70-year period.

    A majority of the Justices appeared troubled with this argument because there is no indication that Congress ever actually intended national trails to have this effect. Justice Alito went so far as to characterize it as a “gotcha” argument:

    JUSTICE ALITO: There may be all sorts of very good environmental reasons why this pipeline shouldn’t be built. And those, I take it, are involved in the other issues in the case, but do you have more than a “gotcha” argument? Do you — I mean, and sometimes they work, that if you fit these statutes together, this is what they say, and you can’t get out of it, but do you really have an argument that this is what Congress intended when it adopted the statutes on which you rely?

    Other Justices were concerned about conflating the administration of a trail with the land underlying it, observing that many trails cross state and private lands.

    CHIEF JUSTICE ROBERTS: [I]f I give somebody an easement to walk across my backyard to get somewhere, I — I don’t think that I’m giving up the land. It’s still my land. . .

    JUSTICE GORSUCH: Is downtown Selma an in-holding on the Park Service in your theory of the case?

    JUSTICE BREYER: I mean, maybe it’s not Selma. Maybe it’s Hanover, New Hampshire, exactly the same question.

    JUSTICE GORSUCH: Or Kansas City. You choose.

    JUSTICE BREYER: Kansas City. Is there like a barrier across — I mean, that’s what’s a little bit tough on your side. The statutes, you know, it’s like ping pong, you know, they have this, you have that. . .

    Justice Breyer, in particular, seemed concerned about the consequences of treating trails like national parks. Although parks can be quite large, they also tend to be compact. Consequently, infrastructure can be routed around them. But trails are laid out differently, snaking across the country in thousand-plus mile lines. If they can’t be crossed without congressional approval, they would operate like vast walls, Balkanizing the country.

    Congress could produce that result, if it so desired. But it seems unlikely, given the huge economic and political consequences. At a minimum, Congress would likely say something if it intended to create that result. The result would not be an unnoticed and unexpected implication of obscure provisions adopted decades apart.

    Moreover, the argument would have equally surprising results in the opposite direction, a point Justice Gorsuch (the only westerner on the Court) seized on:

    JUSTICE GORSUCH: Congress, when it — when it set out who’s going to administer these trails, said that the Park Service gets to administer the ones in the east, where the Forest Service owns the land, and the Forest Service gets to administer the ones in the west, where the Park Service owns the land. It was kind of a — you can understand it if it’s easements, again, you can understand that. Everybody’s getting a little bit of something in each other’s territory. But if the land goes with the — the assignment of the management authority for the trail, then you have the circumstance that a lot of western national parks, Sequoia, Yosemite, others, there are now ribbons throughout those national parks that belong to the Forest Service and that would be at least open to pipeline development. So while you might thwart a pipeline here, you — it’s not a costless — it’s not a zero-sum gain. You’re going to invite pipelines elsewhere. Now, you might tell me nobody is seeking a pipeline there, but that’s not a very good answer, is it? So on what account, I guess I’m asking, would a rational Congress have opened up western national parks to development like this?

    Anyone who has been involved in a federal land issue can empathize with the Court’s struggles. “Gotcha” arguments are surprisingly common in federal land disputes. Many conflicts over regulation of in-holdings (private land surrounded by public land) and public access take precisely this form. As does recent conflict over the President’s reduction of national monuments (which, as one argument goes, Congress disallowed in an obscure piece of legislative history interpreting a provision that doesn’t speak to the President’s power at all).

    Congress could speak more clearly (and it should!). But courts could also reduce the conflict that arises in this way by not rewarding it. If they treated federal land regulation as more of a property issue than a federal regulation issue, courts could avoid thornier issues. Courts don’t construe obscure deed restrictions as laying traps for property owners, by giving them broad and unanticipated effect. Perhaps Courts should interpret Congress’ federal land statutes the same way—give them the effect intended but be extremely skeptical of claims that long extant restrictions have broad and novel effects.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

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