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Look to Property Rights to Solve Federal Land Conflicts

  • Jonathan Wood
  • Great Smoky Mountains along the Appalachian Trail. Photo courtesy of Thomas.

    Since 2000, the growth of fracking for natural gas has fueled a pipeline boom to get the gas to market and, perhaps less obviously, a litigation boom to stop or delay pipeline projects based on environmental, cultural, or property-rights objections. Some of those cases are straight-forward; others are not. Yesterday, the Supreme Court decided United States Forest Service v. Cowpasture River Preservation Associationa pipeline challenge that was anything but straightforward. In the process, the Court may have set an important precedent for the management of federal lands in other contexts.

    Atlantic Coast Pipeline, LLC received a permit from the Forest Service to construct a 604-mile pipeline, 16 miles of which would pass under national forest land. A coalition of local and national organizations sued the company and the agency, arguing that the Forest Service could not authorize the 0.1 miles of pipeline construction under the Appalachian Trail. Because that trail winds continuously from Northern Maine to Northern Georgia, this argument would mean that any pipeline connecting West Virginia and Pennsylvania gas fields to eastern markets would have to make a long, cost-prohibitive detour.

    The challenge for those seeking to block the pipeline is that Congress has never said that pipelines can’t be constructed under trails. Instead, they claim that this conclusion is the surprising implication of the interaction of five laws enacted over 70 years, an argument that Justice Alito criticized during oral argument as a “gotcha” argument.

    By a vote of 7-2, the Supreme Court rejected this gotcha argument, holding that courts should look to general property law principles to interpret the effect of federal land statutes and avoid surprising results. By coincidence, the case was decided the same day as another case in which the Supreme Court seemingly took the opposite tact, interpreting a decades-old federal statute according to its text regardless of Congress’ intent. This tension, if there is any, can be explained by the unique status of Congress’ federal land management authority, which combines both legislative and administrative responsibilities.

    Because Congress’s responsibility for federal lands resembles that of a private landowner, it makes sense to interpret its actions more like those of an owner than traditional legislation. In a post recapping the oral argument, I explained that:

    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.

    The majority’s opinion takes precisely this approach, repeatedly analogizing Congress’s actions to those of a private landowner. To interpret the scope of the National Park Service’s authority over the trail, the Court considered the effect of “a right-of-way between two private landowners.” Likewise, the Court noted that when Congress wishes to impose significant or permanent restrictions on land it does so explicitly, “just as one would expect if a property owner conveyed land in fee simple to another private property owner.” Consequently, the Court concludes, federal land statutes should be “read in light of basic property law principles.”

    What does this mean for “gotcha” arguments involving other federal land statutes, of which there are many? Conflict over the Antiquities Act, for instance, revolves around arguments over how much power Congress has given the President to manage federal lands and whether the President’s discretionary decisions are binding on future Presidents. If you think of these questions as ordinarily legislative questions, they are quite hard. The statute doesn’t say much and Presidents have long interpreted their power aggressively, with only intermittent push-back.

    But if these questions are considered through the lens of property rights, they become somewhat easier. A landowner hiring someone to manage her land is unlikely to give the manager authority to radically reshape his power at the owner’s expense. Nor is she likely to allow him to make decisions that, if the owner were to fire the manager, would nonetheless bind anyone the owner might hire to replace him. Applying this reasoning to the argument that the Antiquities Act permits the President to establish permanent national monuments that later Presidents cannot change suggests a dose of skepticism is in order. Indeed, there’s evidence that were Congress’s wishes for such decisions to be permanent, it insists on making those decisions itself, as in the case of national parks or wilderness areas.

    With so much litigation over federal lands percolating through the federal courts—and more likely on the way—the Court’s decision in Cowpasture River Preservation could have ramifications far beyond the obscure issue of pipelines under national trails. A salutary benefit of the Court’s approach, especially if it is extended to other federal land conflicts, will be to encourage Congress to be more active in managing federal lands and to legislate with greater specificity.

    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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