In a recent U.S. Supreme Court decision, United States Forest Service v. Cowpasture River Preservation Ass’n, Nos. 18-1584 and 18-1587 (June 15, 2020), Associate Justice Clarence Thomas, writing for the Court, cited Restatement of the Law, Property § 450.

These consolidated cases stemmed from Atlantic Coast Pipeline, LLC’s (Atlantic) application to construct and operate a natural-gas pipeline extending from West Virginia to North Carolina, through land within the George Washington National Forest, which crossed paths with the Appalachian National Scenic Trail. The U.S. Forest Service issued Atlantic special-use permits to construct the portions of the pipeline that would pass through lands within the Forest Service’s jurisdiction and “granted a right-of-way that would allow Atlantic to place a 0.1-mile segment of pipe approximately 600 feet below the Appalachian Trail in the George Washington National Forest.” The Respondents—Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia—filed a petition for review, arguing, inter alia, that the issuance of the special-use permit for the right-of-way under the Appalachian Trail violated various federal laws, including the Mineral Leasing Act (Leasing Act), 30 U.S.C. § 181 et. seq., and Atlantic intervened in the suit. Vacating the special-use permit, the U.S. Court of Appeals for the Fourth Circuit held that “the Leasing Act did not empower the Forest Service to grant the pipeline right-of-way beneath the Trail,” because, when the Secretary of the Interior delegated its duty regarding the Trail’s administration to the National Park Service, the Trail became part of the National Park System and therefore “was beyond the authority of ‘the Secretary of the Interior or appropriate agency head’ to grant pipeline rights-of-way under the Leasing Act.”

The U.S. Supreme Court reversed the Fourth Circuit’s judgment, holding “that the Department of the Interior’s decision to assign responsibility over the Appalachian Trail to the National Park Service did not transform the land over which the Trail passes into land within the National Park System.” The “lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be ‘Federal lands’ under the Leasing Act,” under which the Forest Service has authority to grant pipeline rights-of-way. The Court explained that the Forest Service entered into “right-of-way” agreements, pursuant to the National Trails System Act, 16 U.S.C. § 1241 et. seq., with the Department of Interior, and, by delegation, the National Park Service, for the portion of the Appalachian Trail route within national forests, and that “[t]hese ‘right-of-way’ agreements did not convert ‘Federal lands’ into ‘lands’ within the ‘National Park System.”’ Citing Restatement of the Law, Property § 450, the Court defined a right-of-way easement “as granting a nonowner a limited privilege to ‘use the lands of another,’” and reasoned that “it was, and is, elementary that the grantor of the easement retains ownership over ‘the land itself.’” The Court concluded that, through the right-of-way agreements, the Forest Service granted the National Park Service an easement across the Appalachian Trail land, not jurisdiction over the land; thus, “the lands that the Trail crosses are still ‘Federal lands,’ . . . and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail.”

Read the full opinion here.

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Megan Dingley

The American Law Institute

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