Thumbnail Image

By: Hayley S. Murray 

In a recent Supreme Court decision, United States Forest Service v. Cowpasture River Preservation Association, the Court was faced with the interaction of several federal laws governing certain agencies’ authority to grant use of public lands.

In 2017, Atlantic Coast Pipeline, LLC obtained authorization from the Federal Energy Regulatory Commision (FERC) to construct a 604-mile pipeline extending from West Virginia to North Carolina. As part of that authorization, the U.S. Forest Service (the “Forest Service”) issued a special-use permit and granted a right-of-way to Atlantic that authorized the construction of the pipeline across the Appalachian Trail at points within the George Washington National Forest and Monogahela National Forest.

Under the Weeks Act, the George Washington National Forest and Monogahela National Forest are part of the National Forest System and under the jurisdiction of the Forest Service.Additionally, the Mineral Leasing Act gives the U.S. Forest Service the authority to grant rights-of-way for “Federal lands” over which it has jurisdiction. The term “Federal lands,” however, excludes lands in the National Park System.  Under the National Trails System Act, the Appalachian Trail falls within the National Park System and is under the jurisdiction of the National Park Service.   As such, numerous environmental groups questioned the Forest Service’s authority to grant a right-of-way across portions of the Appalachian Trail, which was seemingly part of the National Park System that was excluded from the Forest Service’s jurisdiction.

In Cowpasture River Preservation Association v. United States Forest Service, Cowpasture River Preservation Association (“Cowpasture”) and others petitioned the Fourth Circuit to vacate the permit granted by the Forest Service in connection with the Atlantic Coast Pipeline on the grounds that the Forest Service lacked the authority to issue such permit. The Fourth Circuit vacated the Forest Service’s special use permit, holding that the Mineral Leasing Act did not empower the Forest Service to grant the right-of-way beneath the Appalachian Trail. The court determined that the Appalachian Trail is a “unit” of the National Park System.  Because the Mineral Leasing Act “specifically excludes” lands situated in the National Park System, the Forest Service did not have the authority under the Mineral Leasing Act to grant a right-of-way beneath the Appalachian Trail.

On appeal, the Supreme Court was faced with determining whether the Forest Service had the authority under the Mineral Leasing Act to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. In a 7-2 decision, the Court held that the Forest Service did have such authority. The Court’s opinion centers on the interaction of the Weeks Act, the National Trails System Act, and the Mineral Leasing Act, all as discussed above.  Specifically, the Court focused its analysis on basic property principles and the plain language of the National Trails System Act. The Court noted that pursuant to the National Trails System Act, “the Forest Service entered into a right-of-way agreement with the National Park Service ‘for [the] approximately 780 miles of Appalachian Trial route within national forests,’ including the George Washington National Forest.” The Court reasoned that a right-of-way is a type of easement and basic property law principles establish that “easements are not land, they merely burden land that continues to be owned by another.” Accordingly, the Court concluded that the land remained part of a national forest under the Forest Service’s jurisdiction and the Forest Service was acting within its rights under the Mineral Leasing Act to grant a right-of-way over Federal lands for the Atlantic Coast Pipeline.