No.

In the Supreme Court of the United States
UNITED STATES FOREST SERVICE, ET AL.,
PETITIONERS

v.
COWPASTURE RIVER PRESERVATION ASSOCIATION,
ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEPHEN A. VADEN
General Counsel
Department of Agriculture
Washington, D.C. 20250

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
ERIC GRANT
Deputy Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
JENNY C. ELLICKSON
Assistant to the Solicitor
General
ANDREW C. MERGEN
J. DAVID GUNTER II
AVI KUPFER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

The Appalachian National Scenic Trail (Appalachian
Trail) is more than 2000 miles long, extending from
Maine to Georgia, with approximately 1000 miles of the
Trail crossing through lands within national forests.
The National Trails System Act provides that the Appalachian Trail “shall be administered primarily as a
footpath by the Secretary of the Interior,” 16 U.S.C.
1244(a)(1), and clarifies that “[n]othing contained in [the
Act] shall be deemed to transfer among Federal agencies any management responsibilities established under
any other law for federally administered lands,” 16
U.S.C. 1246(a)(1)(A). Under the Mineral Leasing Act,
30 U.S.C. 181 et seq., the United States Forest Service
(Forest Service) has authority to grant certain rightsof-way through lands in the National Forest System,
but no federal agency has authority under that statute
to grant equivalent rights-of-way through lands in the
National Park System. See 30 U.S.C. 185. The question
presented is:
Whether the Forest Service has authority to grant
rights-of-way under the Mineral Leasing Act through
lands traversed by the Appalachian Trail within national forests.

(I)

 PARTIES TO THE PROCEEDING

Petitioners were respondents in the court of appeals.
They are the United States Forest Service; Bob
Lueckel, in his official capacity as Acting Regional Forester of the Eastern Region of the Forest Service; and
Ken Arney, in his official capacity as Regional Forester
of the Southern Region of the Forest Service. *
The following respondents were petitioners in the
court of appeals: Cowpasture River Preservation Association, Highlanders for Responsible Development,
Shenandoah Valley Battlefields Foundation, Shenandoah Valley Network, Sierra Club, Virginia Wilderness
Committee, and Wild Virginia, Inc.
Respondent Atlantic Coast Pipeline, LLC, was an
intervenor-respondent in the court of appeals.

Bob Lueckel is substituted for his predecessor, Kathleen Atkinson. See Sup. Ct. R. 35.3.
*

(II)

 TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 2
Reasons for granting the petition ............................................. 13
A. The court of appeals’ decision is wrong ....................... 15
1. National forest lands traversed by the
Appalachian Trail remain in the National
Forest System ......................................................... 15
2. The Forest Service has statutory authority to
grant pipeline rights-of-way through national
forest lands traversed by the Appalachian
Trail .......................................................................... 24
B. The question presented warrants this Court’s
review .............................................................................. 25
Conclusion ................................................................................... 31
Appendix A — Court of appeals opinion (Dec. 13, 2018) ...... 1a
Appendix B — U.S. Forest Service special use
permit (exhibits not included)
(Approved Jan. 23, 2018) ........................... 65a
Appendix C — U.S. Forest Service record of decision
(Nov. 17, 2017) .......................................... 102a
Appendix D — Court of appeals order (Feb. 25, 2019) .......241a
Appendix E — Statutory provisions ................................... 243a
TABLE OF AUTHORITIES

Cases:
Bryan v. Itasca Cnty., 426 U.S. 373 (1976) ......................... 24
Ohio Forestry Ass’n v. Sierra Club,
523 U.S. 726 (1998).......................................................... 2, 12
Sierra Club, Inc. v. United States Forest Serv.,
897 F.3d 582 (4th Cir. 2018) ............................................... 27
(III)

 IV
Cases—Continued:

Page

United States v. Coleman, 390 U.S. 599 (1968) .................. 25
United States v. New Mexico, 438 U.S. 696 (1978) ...... 15, 24
Statutes and regulations:
Act of July 15, 1968, Pub. L. No. 90-401, § 5(b),
82 Stat. 356 .......................................................................... 28
Mineral Leasing Act, 30 U.S.C. 185:
30 U.S.C. 185(a) .......................... 8, 10, 11, 15, 24, 25, 251a
30 U.S.C. 185(b) ..................................................... 15, 252a
30 U.S.C. 185(b)(1) ........................... 8, 10, 11, 24, 25, 252a
30 U.S.C. 185(b)(3) .......................................8, 24, 25, 252a
30 U.S.C. 185(c) ............................................................... 25
National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seq. .......................................................... 12
National Forest Management Act of 1976,
16 U.S.C. 1600 et seq. .......................................................... 11
16 U.S.C. 1609(a) ............................................................... 2
National Park System General Authorities Act,
Pub. L. No. 91-383, § 2(a), 84 Stat. 826 ............................. 21
National Trails System Act, 16 U.S.C. 1241 et seq............... 4
16 U.S.C. 1241(b) ......................................................... 4, 15
16 U.S.C. 1244(a) (2012 & Supp. V 2017) .............. 4, 243a
16 U.S.C. 1244(a)(1) ....................................... passim, 243a
16 U.S.C. 1244(d) ................................................... 18, 243a
16 U.S.C. 1244(e) ................................................... 13, 243a
16 U.S.C. 1246(a)(1) ............................................... 16, 246a
16 U.S.C. 1246(a)(1)(A) ..........................6, 13, 16, 22, 246a
16 U.S.C. 1246(a)(2) ..................................4, 5, 13, 17, 247a
16 U.S.C. 1246(b) ................................................... 19, 248a
16 U.S.C. 1246(c) ............................................................... 6
16 U.S.C. 1246(e) ................................................. 17, 18, 27

 V
Statutes and regulations—Continued:

Page

16 U.S.C. 1246(f  )(1) ................................................... 27, 28
16 U.S.C. 1246(f  )(2) ......................................................... 27
16 U.S.C. 1246(h)(1) (2012 & Supp. V 2017) ....... 18, 249a
16 U.S.C. 1246(i) .............................................. 13, 17, 250a
National Trails System Act Amendments of 1983,
Pub. L. No. 98-11, Tit. II, § 207(a)(2), 97 Stat. 45-46 ........ 6
Proclamation of May 16, 1918, 40 Stat. 1779 .................... 2, 3
Wild and Scenic Rivers Act, 16 U.S.C. 1271 et seq.
(2012 & Supp. V 2017) ........................................................ 23
16 U.S.C. 1274(a) (2012 & Supp. V 2017) ...................... 23
16 U.S.C. 1281(c) ............................................................. 23
5 U.S.C. 702 ............................................................................ 10
15 U.S.C. 717r(d)(1) ............................................................... 10
16 U.S.C. 403h-14................................................................... 23
16 U.S.C. 450ff-5 .................................................................... 23
16 U.S.C. 460a-6 ..................................................................... 23
16 U.S.C. 521 .......................................................................... 15
16 U.S.C. 533 .......................................................................... 29
16 U.S.C. 551 ...................................................................... 2, 15
43 U.S.C. 961 (2012 & Supp. V 2017) ................................... 29
43 U.S.C. 1761(a) ................................................................... 29
43 U.S.C. 2632 ........................................................................ 23
54 U.S.C. 100501 .......................................................... 8, 21, 22
54 U.S.C. 100506(c)(1)(B)(i) .................................................. 23
36 C.F.R.:
Section 200.3(b)(2)(i) ............................................. 2, 15, 24
Section 200.3(b)(2)(ii) ............................................ 2, 15, 24

 VI
Miscellaneous:

Page

EQM Midstream Partners, LP, U.S. Secs. & Exch.
Comm’n, Form 8-K (June 17, 2019), https://www.
sec.gov/Archives/edgar/data/1540947/000110465919
035766/a19-11613_18k.htm ................................................ 27
Exec. Order No. 5867 (June 28, 1932) ................................... 3
36 Fed. Reg.:
2676 (Feb. 9, 1971) ............................................................. 5
19,802 (Oct. 9, 1971) ........................................................... 5
82 Fed. Reg. 25,761 (June 5, 2017) ....................................... 26
161 F.E.R.C. 61042 ¶ 282, 2017 WL 4925429
(Oct. 13, 2017) ...................................................................... 28
Forest Serv., U.S. Dep’t of Agric.:
Forest Service Manual (effective June 1, 1990),
www.fs.fed.us/im/directives/fsm/1500/1531.
2-1531.32e.rtf .............................................................. 19
S. Region, George Washington National Forest:
A History (1993), https://www.fs.usda.gov/
Internet/FSE_DOCUMENTS/stelprd3832787.
pdf ................................................................................. 2
Land Areas of the National Forest System
(Nov. 2018), https://www.fs.fed.us/land/staff/
lar/LAR2018/FY2018_LAR_Book.pdf ...................... 2
Nat’l Park Serv., U.S. Dep’t of the Interior:
Appalachian National Scenic Trail: 2015
Business Plan (2015), https://www.nps.gov/
appa/getinvolved/upload/APPA_2015_
Business_Plan_page_version.pdf .............................. 5
Appalachian Trail Project Office, Comprehensive
Plan for the Protection, Management, Development and Use of the Appalachian National
Scenic Trail (1987), https://www.nps.gov/
appa/learn/management/upload/
compplan_web.pdf ................................................. 5, 20

 VII
Miscellaneous—Continued:

Page

Director’s Order No. 45 (May 24, 2013),
https://www.nps.gov/policy/DOrders/
DO_45.pdf ................................................................... 20
Trails for America: Report on the Nationwide
Trail Study (1966), https://www.nps.gov/
noco/learn/management/upload/trails-foramerica-1966.pdf.......................................................... 3
Office of the Assistant Sec’y for Fish & Wildlife &
Parks, U.S. Dep’t of the Interior, Departmental
Manual (Aug. 16, 1977), www.doi.gov/sites/doi.
gov/files/elips/documents/Chapter%20%201
_%20PURPOSE%2C%20POLICY%2C%20
RESPONSIBILITY.doc...................................................... 4
U.S. Dep’t of the Interior, et al.:
Memorandum of Understanding for the Appalachian National Scenic Trail in the Commonwealth of Virginia (2010), http://www.appalachiantrail.org/docs/appendix---g---table/2010mou-for-the-anst-in-virginia.pdf. ............................. 20
The National Trails System Memorandum of
Understanding (2017), https://www.nps.gov/
subjects/nationaltrailssystem/upload/
National_Trails_System_MOU_2017-2027.pdf ...... 29
U.S. Energy Info. Admin:
Natural Gas Consumption by End Use: Volumes Delivered to Residential, https://www.
eia.gov/dnav/ng/ng_cons_sum_a_EPG0_vrs_
mmcf_a.htm (last visited June 25, 2019) ................. 26
Number of Natural Gas Customers: No. of Residential Consumers, https://www.eia.gov/
dnav/ng/ng_cons_num_a_EPG0_VN3_Count_
a.htm (last visited June 25, 2019) ............................. 26

 In the Supreme Court of the United States
No.
UNITED STATES FOREST SERVICE, ET AL.,
PETITIONERS

v.
COWPASTURE RIVER PRESERVATION ASSOCIATION,
ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the federal parties, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit in this case.
OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-64a)
is reported at 911 F.3d 150. The decisions of the United
States Forest Service (Pet. App. 65a-101a, 102a-240a)
are unreported.
JURISDICTION

The judgment of the court of appeals was entered on
December 13, 2018. A petition for rehearing was denied
on February 25, 2019 (Pet. App. 241a-242a). On May 16,
2019, the Chief Justice extended the time within which
to file a petition for a writ of certiorari to and including
(1)

 2
June 25, 2019. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in the
appendix to this petition. Pet. App. 243a-252a.
STATEMENT

1. a. The National Forest System “consists of units
of federally owned forest, range, and related lands
throughout the United States and its territories.”
16 U.S.C. 1609(a). The System is “vast,” including 154
national forests, 20 national grasslands, and other lands
that together occupy approximately 193 million acres of
land in 43 States, Puerto Rico, and the Virgin Islands.
Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 728
(1998); see Forest Serv., U.S. Dep’t of Agric., Land Areas of the National Forest System (Nov. 2018). 1 The
United States Forest Service (Forest Service), an
agency of the United States Department of Agriculture,
“administers and manages the National Forest System
lands,” including “land in the National Forests.”
36 C.F.R. 200.3(b)(2)(i), (ii); cf. 16 U.S.C. 551.
In 1918, President Woodrow Wilson issued a proclamation establishing the Shenandoah National Forest in
Virginia and West Virginia. Proclamation of May 16,
1918, 40 Stat. 1779 (1918 Proclamation); see Forest
Serv., S. Region, U.S. Dep’t of Agric., George Washington National Forest: A History 4, 11 (1993). 2 That
Proclamation states that “all lands” in the relevant area
“which have been or may hereafter be acquired by the
1
https://www.fs.fed.us/land/staff/lar/LAR2018/FY2018_LAR_
Book.pdf.
2
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd
3832787.pdf.

 3
United States * * * shall be permanently reserved and
administered as part of the Shenandoah National Forest.” 1918 Proclamation, 40 Stat. 1779. The Shenandoah National Forest was later renamed the George
Washington National Forest, Exec. Order No. 5867
(June 28, 1932), and it now extends approximately 140
miles along the Appalachian and Blue Ridge Mountains
in Virginia and West Virginia, encompassing more than
one million acres of land. Joint C.A. App. 1774.
b. The Appalachian National Scenic Trail (Appalachian Trail) is “a trail of approximately two thousand
miles extending generally along the Appalachian Mountains from Mount Katahdin, Maine, to Springer Mountain, Georgia.” 16 U.S.C. 1244(a)(1). The Trail
traverses 14 States and crosses through eight national
forests, six national parks, at least one national wildlife
refuge, and more than 60 state forests, game lands, or
park areas. Joint C.A. App. 1778.
Private citizens, working in conjunction with the
Forest Service and other agencies, began clearing and
marking the Appalachian Trail in 1922 and completed it
in 1937. Joint C.A. App. 1778; Nat’l Park Serv., U.S.
Dep’t of the Interior, Trails for America: Report on the
Nationwide Trail Study 32-33 (1966) (Trails for America). 3 As of 1966, 43 percent of the Appalachian Trail’s
total mileage crossed private lands, 23 percent crossed
state lands, and 34 percent crossed federal lands.
Trails for America 42. Of the 682 miles of the Appalachian Trail that crossed federal lands, 507 miles were
within national forests, 172 miles were within national
parks, and three miles were on Tennessee Valley Authority land. Ibid.
https://www.nps.gov/noco/learn/management/upload/trails-foramerica-1966.pdf.
3

 4
In 1968, Congress enacted the National Trails System Act (or Act), 16 U.S.C. 1241 et seq., which “institut[ed] a national system of recreation, scenic and historic trails.” 16 U.S.C. 1241(b). As amended, the Act
establishes 30 national trails and charges either the
Secretary of the Interior or the Secretary of Agriculture with administering each trail. 16 U.S.C. 1244(a)
(2012 & Supp. V 2017). The Appalachian Trail was one
of “the initial components of ” the National Trails System. 16 U.S.C. 1241(b). The National Trails System Act
provides that the Appalachian Trail “shall be administered primarily as a footpath by the Secretary of the Interior, in consultation with the Secretary of Agriculture.” 16 U.S.C. 1244(a)(1). The Secretary of the Interior, in turn, has assigned the National Park Service
(Park Service) “management responsibility” for the Appalachian Trail. Office of the Assistant Sec’y for Fish &
Wildlife & Parks, U.S. Dep’t of the Interior, Departmental Manual Pt. 710, at 1.4(C)(1) (Aug. 16, 1977); 4
see id. at 1.4(C)(3); Pet. App. 55a.
Under the National Trails System Act, the Secretary
of the Interior is responsible for selecting “the right[]of-way” for the Appalachian Trail. 16 U.S.C. 1246(a)(2);
see 16 U.S.C. 1244(a)(1). The Act further provides that,
“[i]nsofar as practicable, the right-of-way for [the Appalachian Trail] shall comprise the trail depicted on”
specified maps and that, “[w]here practicable, such
rights-of-way shall include lands protected for it under
agreements in effect as of October 2, 1968, to which
Federal agencies and States were parties.” 16 U.S.C.
1244(a)(1). When the right-of-way for the Appalachian
www.doi.gov/sites/doi.gov/files/elips/documents/Chapter%20%
201_%20PURPOSE%2C%20POLICY%2C%20RESPONSIBILITY.
doc.
4

 5
Trail runs “across Federal lands under the jurisdiction
of another Federal agency,” however, the Act requires
the Secretary of the Interior to reach “agreement” with
the head of that agency regarding the “location and
width of such right[]-of-way.” 16 U.S.C. 1246(a)(2).
Following the enactment of the National Trails System Act, the Park Service and the Forest Service negotiated an agreement regarding “the width of the rightof-way for approximately 780 miles of Appalachian Trail
route within national forests.” 36 Fed. Reg. 2676 (Feb.
9, 1971); see 36 Fed. Reg. 19,802 (Oct. 9, 1971) (selecting
“the official route of the Appalachian National Scenic
Trail”). In the years that followed, the Forest Service
acquired additional tracts of land within national forests
to protect the Trail. Appalachian Trail Project Office,
Nat’l Park Serv., Comprehensive Plan for the Protection, Management, Development and Use of the Appalachian National Scenic Trail 22 (1987) (Comprehensive Plan). 5 Today, approximately 1000 miles of the Appalachian Trail, nearly half of the Trail’s total length,
pass through eight national forests. Nat’l Park Service,
U.S. Dep’t of the Interior, Appalachian National Scenic Trail: 2015 Business Plan 18. 6 Within the Fourth
Circuit, substantial sections of the Trail cross through
national forests. See id. at 3.
In 1983, Congress amended the National Trails System Act to clarify that “[n]othing contained in [the Act]
shall be deemed to transfer among Federal agencies
any management responsibilities established under any
other law for federally administered lands which are
5
https://www.nps.gov/appa/learn/management/upload/compplan_
web.pdf.
6
https://www.nps.gov/appa/getinvolved/upload/APPA_2015_Business
_Plan_page_version.pdf.

 6
components of the National Trails System.” 16 U.S.C.
1246(a)(1)(A); see National Trails System Act Amendments of 1983, Pub. L. No. 98-11, Tit. II, § 207(a)(2),
97 Stat. 45-46.
Under the general provisions of the National Trails
System Act, the Secretary of the Interior, as the Secretary charged with administering the Appalachian Trail,
is responsible for ensuring that uniform trail markers
are erected and maintained along the Trail. 16 U.S.C.
1246(c). Where the Appalachian Trail crosses “lands
administered by Federal agencies,” the Park Service
maintains the trail markers erected along the Trail.
Ibid. Where the Appalachian Trail crosses “nonFederal lands, in accordance with written cooperative
agreements,” the Secretary of the Interior provides the
trail markers to the relevant “cooperating agencies”
and requires those agencies to erect and maintain them.
Ibid. The Secretary may also provide for “trail interpretation sites” that “present information to the public
about the trail,” and may permit “uses along the trail”
that “will not substantially interfere with the nature and
purposes of the trail.” Ibid.
2. a. In 2017, the Federal Energy Regulatory Commission (FERC) granted respondent Atlantic Coast
Pipeline, LLC (Atlantic) authorization to construct, operate, and maintain a 42-inch-diameter natural gas
pipeline along a 604.5-mile route that runs from Harrison County, West Virginia, to the eastern portions of
Virginia and North Carolina. Pet. App. 2a, 12a; Joint
C.A. App. 690. Upon its completion, the pipeline would
transport up to 1.5 million dekatherms (approximately
1.5 billion cubic feet) of natural gas each day and could
result in a net annual savings of $377 million to naturalgas and electricity consumers in Virginia and North

 7
Carolina. Pet. App. 165a, 207a; Joint C.A. App. 690. Atlantic reports that “the majority of the gas supplied” by
the pipeline would “be used to generate electricity for
industrial, commercial, and residential uses.” Pet. App.
116a.
In approving Atlantic’s proposed pipeline, FERC
found a “market demand” for the project, Joint C.A.
App. 713, and determined that the project “would develop gas infrastructure that will serve to ensure future
domestic energy supplies and enhance the pipeline grid
by connecting sources of natural gas to markets in Virginia and North Carolina,” id. at 714. FERC also found
that the use of existing infrastructure, renewable energy sources, and conservation “do not presently serve
as practical alternatives.” Id. at 715. According to Atlantic, the pipeline would “facilitate cleaner air, increase
the reliability and security of natural gas supplies, and
provide a significant economic boost in West Virginia,
Virginia, and North Carolina.” Id. at 911.
On the 604.5-mile pipeline route approved by FERC,
21 total miles of underground pipeline would cross lands
located within the George Washington and Monongahela National Forests. Pet. App. 2a-3a, 113a-114a. Approximately 0.1 miles of the proposed pipeline would
cross under the Appalachian Trail within the George
Washington National Forest on land acquired and administered by the Forest Service. Id. at 3a, 113a; Joint
C.A. App. 1780, 1787. That segment of the pipeline
would lie more than 600 feet beneath the surface of the
forest land traversed by the Trail. Joint C.A. App. 115.
Atlantic would use a horizontal directional drilling
method to construct and install the pipeline underneath
the Appalachian Trail, with entry and exit points located on private lands approximately 1400 feet and 3400

 8
feet, respectively, from the Appalachian Trail footpath.
Pet. App. 197a. Vegetation and intervening terrain
would conceal those entry and exit points from anyone
using the Appalachian Trail, and the construction of
that section of the pipeline would require neither the removal of vegetation in the National Forest nor a closure
or rerouting of the Appalachian Trail. Id. at 197a-198a.
b. The Mineral Leasing Act authorizes “the Secretary of the Interior or appropriate agency head” to
grant “[r]ights-of-way through any Federal lands” for
“pipeline purposes for the transportation of oil, natural
gas, synthetic liquid or gaseous fuels, or any refined
product produced therefrom.” 30 U.S.C. 185(a). For
purposes of this provision, an “agency head” is “the
head of any Federal department or independent Federal office or agency, other than the Secretary of the
Interior, which has jurisdiction over Federal lands.”
30 U.S.C. 185(b)(3). The Mineral Leasing Act defines
“Federal lands” to mean “all lands owned by the United
States except,” as relevant here, “lands in the National
Park System.” 30 U.S.C. 185(b)(1). Accordingly, no
federal department or agency has authority under that
statute to grant a right-of-way for a pipeline through
land in the National Park System. The National Park
System includes “any area of land and water administered by the Secretary [of the Interior], acting through
the Director [of the Park Service].” 54 U.S.C. 100501.
In its final environmental impact statement on the
pipeline proposal, FERC stated that the Appalachian
Trail “is a unit of the National Park System,” but determined that “the lands acquired and administered by the
[Forest Service] for the [Appalachian Trail] are [National Forest System] lands and subject exclusively to

 9
[Forest System] regulations and management authority.” Joint C.A. App. 1489. FERC therefore concluded
that the pipeline’s “proposed [Appalachian Trail] crossing on [National Forest System] lands” did not require
an authorization from the Park Service. Ibid.
On November 17, 2017, the Forest Service issued a
final record of decision stating that it was authorizing
Atlantic “to use and occupy [National Forest System]
land to construct, operate, maintain, and eventually
decommission” the proposed pipeline along the FERCapproved route through the George Washington and
Monongahela National Forests. Pet. App. 125a; see id.
at 13a, 102a-240a. The Forest Service explained that it
had based its decision on FERC’s final environmental
impact statement, id. at 112a, and had “adopted” that
statement, id. at 118a. The record of decision also memorialized the Forest Service’s determination that it
had authority under the Mineral Leasing Act to grant a
right-of-way for Atlantic’s pipeline through the relevant
sections of the George Washington and Monongahela
National Forests, including through the land traversed
by the Appalachian Trail. Id. at 117a; see id. at 113a.
On January 23, 2018, the Forest Service issued a special
use permit that granted Atlantic that authorization. Id.
at 65a-101a; see id. at 13a.
Among other conditions, the Forest Service required
Atlantic to ensure that “[n]o surface-disturbing activity
would occur on [National Forest System] lands as part
of the [pipeline] crossing under the Appalachian National Scenic Trail.” Pet. App. 141a; see id. at 137a. The
Forest Service also found that the boring operations to
install the pipeline would result in temporary noise,
dust, and “night-sky impacts” that might affect users of
the Appalachian Trail, but that the pipeline project

 10
“would have no long lasting impacts” on the Trail. Id.
at 225a; see also id. at 229a-231a.
3. In 2018, respondents Cowpasture River Preservation Association, Highlanders for Responsible Development, Shenandoah Valley Battlefields Foundation,
Shenandoah Valley Network, Sierra Club, Virginia Wilderness Committee, and Wild Virginia, Inc., filed a petition in the Fourth Circuit for review of the Forest Service’s record of decision and special use permit, pursuant to 5 U.S.C. 702 and 15 U.S.C. 717r(d)(1). Pet. App.
13a; C.A. Joint Pet. for Review. The court of appeals
granted the petition for review, vacated the record of
decision and special use permit, and remanded to the
Forest Service “for further proceedings consistent
with” the court’s opinion. Pet. App. 2a; see id. at 1a-64a.
a. As relevant to this petition for a writ of certiorari,
the court of appeals held that the Forest Service lacked
statutory authority to grant a right-of-way for the section of the proposed pipeline that would lie more than
600 feet beneath the surface of the segment of land in
the George Washington National Forest traversed by
the Appalachian Trail. Pet. App. 55a-59a.
The court of appeals noted that the Mineral Leasing
Act “authorizes the ‘Secretary of the Interior or appropriate agency head’ to grant gas pipeline rights of way
across ‘Federal lands,’ ” i.e., “ ‘all lands owned by the
United States except lands in the National Park System.’ ” Pet. App. 55a (quoting 30 U.S.C. 185(a) and
(b)(1)). The court ruled that the Appalachian Trail “is
land in the National Park System” because the National
Trails System Act tasks the Secretary of the Interior
with administering the Trail, and the Secretary of
the Interior has “delegated that duty to [the Park Ser-

 11
vice].” Ibid. The court also asserted that the government “generally * * * agree[s]” that the Appalachian
Trail is “land in the National Park System,” noting that
the Park Service and FERC had described the Appalachian Trail as a “unit” of the National Park System.
Ibid. (citations omitted). The court rejected the government’s submission that, under the National Trails System Act, the Park Service administers the Appalachian
Trail, while the Forest Service retains authority over
the lands within national forests traversed by the Appalachian Trail. Id. at 56a-57a.
In light of its ruling that the Appalachian Trail is
“land” in the National Park System, the court of appeals
concluded that the Mineral Leasing Act “specifically excludes” the Trail “from the authority of the Secretary
of the Interior ‘or appropriate agency head’ to grant
pipeline rights of way.” Pet. App. 57a (citing 30 U.S.C.
185(a) and (b)(1)); see id. at 55a. The court also concluded that the Chief of the Forest Service is not the
“appropriate agency head” for the Appalachian Trail for
purposes of the Mineral Leasing Act because, in the
court’s view, the National Trails System Act draws a
distinction under which “the Secretary of the Interior
administers the entire [trail],” while the Forest Service
“manage[s] trail components under [its] jurisdiction.”
Id. at 58a; see id. at 58a-59a.
b. The court of appeals made several additional rulings that are not the subject of this certiorari petition.
The court first held that the Forest Service violated the
National Forest Management Act of 1976, 16 U.S.C.
1600 et seq., and Forest Service regulations when it
modified 13 standards contained in the Forest Service’s
forest plans for the George Washington and Mononga-

 12
hela National Forests to accommodate Atlantic’s pipeline project. Pet. App. 14a-28a; see Ohio Forestry
Ass’n, 523 U.S. at 729 (describing forest plans). The
court held that the Forest Service acted arbitrarily and
capriciously in concluding that certain Forest Service
rules did not apply to those modifications. Pet. App.
16a-28a. The court next held that the Forest Service
violated the National Forest Management Act and its
own forest plans by granting the special use permit
without first determining that the pipeline could not be
reasonably accommodated on lands outside the national
forests. Id. at 30a-34a. Accordingly, the court “remand[ed] to the Forest Service for proper application
of ” the relevant Forest Service rules, id. at 28a, and “for
proper analysis of whether the [pipeline] project’s
needs can be reasonably met on non-national forest
lands,” id. at 34a.
In addition, the court of appeals held that the Forest
Service acted arbitrarily and capriciously and in violation of the National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seq. (NEPA), when it adopted FERC’s
analysis of alternative pipeline routes without conducting a further review of alternative routes that avoided
national forests. Pet. App. 36a-42a. The court also concluded that the Forest Service violated NEPA because,
in the court’s view, the Forest Service had “fail[ed] to
take a hard look at the environmental consequences of
the [pipeline] project.” Id. at 43a; see id. at 42a-55a. In
light of those holdings, the court found that the Forest
Service had acted arbitrarily and capriciously in adopting FERC’s environmental-impact analysis and granting the special use permit. Id. at 54a. The court di-

 13
rected the Forest Service to explain certain of its decisions on remand and to perform any needed “supplemental analysis.” Id. at 55a; see id. at 54a-55a. 7
Although the government disagrees with these further rulings by the court of appeals, they, unlike the
court’s ruling concerning the Mineral Leasing Act, can
be resolved by the Forest Service on remand. The government therefore does not seek review of them here.
REASONS FOR GRANTING THE PETITION

The court of appeals erred in holding that national
forest lands underlying the Appalachian Trail are in the
National Park System and thus ineligible for the grant
of a right-of-way for a pipeline under the Mineral Leasing Act. Congress spoke clearly in the National Trails
System Act: the Secretary of the Interior is to “administer[]” the Appalachian Trail “primarily as a footpath,”
16 U.S.C. 1244(a)(1), but that assignment of responsibility for a footpath across the surface of lands does not
“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). Other
provisions of the National Trails System Act confirm
that the “right[]-of-way” for a national trail may run
“across Federal lands under the jurisdiction of another
Federal agency.” 16 U.S.C. 1246(a)(2); see 16 U.S.C.
1244(e) and 1246(i). In light of that plain statutory text,
the Park Service and the Forest Service have long
agreed that the Park Service is responsible for administering the Appalachian Trail as a footpath, while the
The court of appeals denied petitions for rehearing filed by the
government and by Atlantic, which had intervened in the court of
appeals. Pet. App. 241a-242a.
7

 14
Forest Service retains jurisdiction and authority over
the lands within national forests traversed by the footpath.
In holding otherwise, the court of appeals misread
the National Trails System Act, decreeing that long sections of the Appalachian Trail within national forests
rest on lands that are rendered part of the National
Park System as a result of the presence of the Trail on
the surface, and therefore cannot be subject to rightsof-way granted under the Mineral Leasing Act. That
ruling threatens to hamper the development of energy
infrastructure in the eastern United States, including
the construction and operation of the natural gas pipeline at issue in this case. The court’s decision also casts
doubt on the Forest Service’s previously unquestioned
authority to grant permits and other types of land use
authorizations for power lines, communications sites,
water facilities, and roads that cross the Appalachian
Trail within national forests. And the decision upends
the stable, longstanding allocation of responsibilities
between the Park Service and the Forest Service regarding the Appalachian Trail and the national forest
lands it traverses.
Although the court of appeals ordered a remand for
further proceedings in this case, the outcome on remand
of the Mineral Leasing Act issue is already predetermined by the court’s decision. In light of the court’s ruling that the Forest Service lacks statutory authority to
authorize the pipeline’s construction along the FERCapproved route that passes well under the surface of the
land traversed by the Appalachian Trail, the Forest
Service cannot grant Atlantic’s application for a special
use permit through national forests along that specific
route. The Court should grant a writ of certiorari to

 15
correct the court of appeals’ erroneous resolution of the
important question presented in this case.
A. The Court Of Appeals’ Decision Is Wrong

The National Trails System Act establishes the Appalachian Trail as a footpath that crosses the surface of
federal, state, and private lands without altering the legal status of the lands it traverses. Accordingly, where
the Appalachian Trail crosses through a national forest,
the land underlying the Trail remains in the National
Forest System and subject to the jurisdiction, administration, and management of the Forest Service under
its statutory and regulatory authorities, including its
authority under the Mineral Leasing Act. See 36 C.F.R.
200.3(b)(2)(i), (ii); 16 U.S.C. 521 and 551; cf. United
States v. New Mexico, 438 U.S. 696, 709 n.18 (1978) (recognizing that the Department of Agriculture has “jurisdiction of the national forests”). The Forest Service
thus has authority under the Mineral Leasing Act to
grant certain rights-of-way, including rights-of-way for
natural gas pipelines, through lands in national forests
traversed by the Appalachian Trail. See 30 U.S.C.
185(a) and (b). The Fourth Circuit’s holding otherwise
is contrary to the plain text of the National Trails System Act.
1.

National forest lands traversed by the Appalachian
Trail remain in the National Forest System

a. The National Trails System Act, which establishes the Appalachian Trail as an “initial component[]
of ” the National Trails System, 16 U.S.C. 1241(b), provides that the Appalachian Trail “shall be administered
primarily as a footpath by the Secretary of the Interior,
in consultation with the Secretary of Agriculture,”
16 U.S.C. 1244(a)(1). “Insofar as practicable,” the Act

 16
states, “the right-of-way for [the Appalachian Trail]
shall comprise the trail depicted on” certain specified
maps and “shall include lands protected for it under
agreements in effect” at the time of the enactment of
the National Trails System Act, and to which federal
agencies and States were parties. Ibid.
The Act further provides, in Section 1246(a)(1)(A),
that “[n]othing contained in [the Act] 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). The
same provision also requires that the “Secretary
charged with the overall administration of a trail * * *
shall, in administering and managing the trail, consult
with the heads of all other affected State and Federal
agencies.” Ibid.
Section 1246(a)(1)(A) thus recognizes a distinction
between a national trail itself, which one agency will be
charged with “administering and managing,” and any
“federally administered lands which are components of
the National Trails System,” which other agencies with
preexisting jurisdiction will continue to have responsibility for “managing.” 16 U.S.C. 1246(a)(1)(A) (emphasis added). In addition, Section 1246(a)(1) clarifies that
the establishment of a national trail, such as the Appalachian Trail, does not transfer any preexisting landmanagement responsibilities from another agency to
the Secretary who administers the trail. Accordingly,
the National Trails System Act does not grant the Secretary of the Interior jurisdiction over any lands traversed by a national trail in a national forest that would
otherwise be under the jurisdiction of the Department
of Agriculture.

 17
Section 1246(a)(2) reinforces that conclusion. That
section provides that the Secretary charged with administering a trail “shall select the right[]-of-way” for
that trail. 16 U.S.C. 1246(a)(2). Section 1246(a)(2) expressly contemplates, however, that “such rights-ofway” may be “across Federal lands under the jurisdiction of another Federal agency.” Ibid.; see also
16 U.S.C. 1244(a)(1). In that event, Section 1246(a)(2)
requires the Secretary and the head of the agency with
jurisdiction over the lands to reach “agreement” regarding the “location and width of such rights-of-way.”
16 U.S.C. 1246(a)(2). Section 1246(a)(2) therefore confirms that the selection of the “right[]-of-way” for a trail
does not transfer responsibility for the underlying federal lands to the agency charged with administering the
trail. So too does 16 U.S.C. 1246(i). That Section provides that the appropriate Secretary may issue regulations concerning a national trail, but only “with the concurrence of the heads of any other Federal agencies administering lands through which [the] trail passes.”
Ibid. Indeed, if the administration of a national trail encompassed the administration and management of the
lands underlying the trail, the concurrence requirement
in Section 1246(i) would have little or no effect. 8

Similarly, 16 U.S.C. 1244(e) requires the Secretary responsible
for a newly designated national trail to undertake a “full consultation with affected Federal land managing agencies” before submitting a comprehensive plan for a trail to Congress. That provision,
added in 1978, also required the Secretary of the Interior to take
the same steps with respect to the Appalachian Trail by the end of
1981, more than a decade after the National Trails System Act first
established the Appalachian Trail. Ibid. Section 1244(e) therefore
contemplates the continuing jurisdiction of land-management agencies over federal lands through which a national trail will pass.
8

 18
Significantly, moreover, the National Trails System
Act recognizes that national trails, including the Appalachian Trail, might cross lands that the federal government does not even own or manage. For example, the
Act requires the “Secretary charged with the administration of ” a particular national trail to “cooperate
with and encourage the States to operate, develop, and
maintain portions of such trails which are located outside the boundaries of federally administered areas.”
16 U.S.C. 1246(h)(1) (2012 & Supp. V 2017); see ibid.
(authorizing the Secretary to enter into “written cooperative agreements” with States, local governments, or
private landowners “to operate, develop, and maintain
any portion of such a trail either within or outside a federally administered area”). The Act also addresses the
obligations and authorities of the relevant Secretary
“[w]here the lands included in a national scenic or national historic trail right-of-way are outside of the exterior boundaries of federally administered areas.”
16 U.S.C. 1246(e). The Act obviously does not vest the
Secretary of the Interior with authority to administer
the state, local, and private lands underlying those
stretches of a trail, and there is no reason why the result
should be any different where lands traversed by the
trail are under the jurisdiction of another federal
agency.
These statutory provisions, both individually and collectively, demonstrate that the National Trails System
Act did not transfer any lands that the Appalachian
Trail traverses into the National Park System. Additional provisions of the Act still further reinforce that
understanding. See 16 U.S.C. 1244(d) (requiring the
“Secretary charged with the administration of [a] trail”

 19
to establish an advisory council for that trail that includes “the head of each Federal department or independent agency administering lands through which the
trail route passes”); 16 U.S.C. 1246(b) (authorizing “the
Secretary charged with the administration of a national
scenic or national historic trail” to “relocate segments
of [the] trail right-of-way, with the concurrence of the
head of the Federal agency having jurisdiction over the
lands involved”).
b. Consistent with the plain text of the National
Trails System Act, the Park Service and the Forest Service have long agreed that the Forest Service retains
jurisdiction over the lands in national forests underlying the Appalachian Trail.
In 1970, for example, the Park Service and the Forest Service entered into a memorandum of agreement
concerning the Appalachian Trail. See U.S. Dep’t of
Agric., Forest Service Manual 1531.32a, at 9-12 (effective June 1, 1990) (reproducing 1970 memorandum of
agreement). 9 That agreement recognized that “significant portions of the Appalachian National Scenic Trail
traverse lands under the separate administrative jurisdictions of the National Park Service and the Forest
Service.” Id. at 9; see id. at 10. The two agencies agreed
to cooperate in developing uniform regulations for “segments of the Trail located on Federal lands under their
separate jurisdictions, enforcement of which will be carried out by the agency administering the lands through
which the Trail passes.” Id. at 11.
Subsequently, in 1981, the Park Service and the Forest Service jointly approved the comprehensive plan for
the Appalachian Trail. The plan recognized that the
9

www.fs.fed.us/im/directives/fsm/1500/1531.2-1531.32e.rtf.

 20
Park Service has “responsibility for overall Trail administration,” but that “land-managing agencies retain
their authority on lands under their jurisdiction.” Comprehensive Plan 12-13. The plan identified the Forest
Service as one of those agencies. See id. at 14.
Since that time, the Park Service and the Forest Service have continued to proceed on the shared understanding that the Forest Service remains responsible
for administering and managing national forest lands
traversed by the Appalachian Trail. See, e.g., Nat’l
Park Serv., U.S. Dep’t of the Interior, Director’s Order
No. 45 § 3.8, at 6 (May 24, 2013) 10 (recognizing that a
national trail administered by the Park Service may
“cross[] lands administered by other Federal, State, or
local agencies”); U.S. Dep’t of the Interior, et al., Memorandum of Understanding for the Appalachian National Scenic Trail in the Commonwealth of Virginia 6
(2010) 11 (memorializing the Forest Service’s agreement
that it “continue[s] to be responsible for all matters pertaining to the Appalachian National Scenic Trail on national forest system lands”).
The court of appeals was therefore wrong to say that
the government “generally * * * agree[s]” that the Appalachian Trail is “land in the National Park System.”
Pet. App. 55a. The court based that statement on comments that the Park Service provided to FERC during
FERC’s review of the pipeline proposal, which FERC
then incorporated into its environmental impact statement for the pipeline project. Ibid. (citing Joint C.A.
App. 1794, 1849, 3186). Read as a whole, however, those
statements convey the Park Service’s longstanding
https://www.nps.gov/policy/DOrders/DO_45.pdf.
http://www.appalachiantrail.org/docs/appendix---g---table/2010mou-for-the-anst-in-virginia.pdf.
10
11

 21
view that lands traversed by the Appalachian Trail
within national forests remain in the National Forest
System. To be sure, the Park Service described the Appalachian Trail as a “unit[] of the National Park System” that includes “the entire Trail corridor.” Joint
C.A. App. 1849. But the Trail itself is a footpath on the
surface of the land it crosses. The Park Service therefore also recognized that the proposed pipeline route
would cross the Appalachian Trail at a “locat[ion] on
U.S. Forest Service lands,” ibid., and the Park Service
did not dispute the Forest Service’s authority to grant
a right-of-way through those lands, see id. at 1847-1855.
See, e.g., id. at 1854 (referring to “areas of the [Appalachian Trail] owned or managed by other agencies such
as the Forest Service”). The Park Service’s comments
to FERC are thus fully consistent with the federal government’s position here.
c. Despite the plain language of the National Trails
System Act, the Fourth Circuit erroneously declared
that the Appalachian Trail “is land in the National Park
System.” Pet. App. 55a. The court of appeals based
that conclusion on a statute providing that the National
Park System includes “any area of land and water administered by the Secretary [of the Interior],” acting
through the Park Service. Ibid. (quoting 54 U.S.C.
100501) (brackets in original); see also National Park
System General Authorities Act, Pub. L. No. 91-383,
§ 2(a), 84 Stat. 826 (predecessor statute with similar
language). Under that statute, the National Park System includes lands administered by the Park Service
that are traversed by the Appalachian Trail. But that
statute does not apply to the Appalachian Trail itself because, for purposes of the National Trails System Act,

 22
the Appalachian Trail is not an “area of land and water.” 54 U.S.C. 100501 (emphasis added). 12 Rather,
the National Trails System Act establishes the Appalachian Trail as a “footpath” that crosses the surface of
federal, state, and private lands along a “right-of-way.”
16 U.S.C. 1244(a)(1); see pp. 15-19, supra.
Furthermore, even if the Appalachian Trail were an
“area of land” for purposes of 54 U.S.C. 100501, the national forest lands underlying the Trail are not in the
National Park System because the Park Service does
not “administer[]” them. Ibid. Although the National
Trails System Act charges the Secretary of the Interior
with “administer[ing]” the Appalachian Trail itself,
16 U.S.C. 1244(a)(1), that Act also specifies that it does
not “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). And
as explained above, other provisions of the Act confirm
that the Park Service’s responsibility to administer the
Appalachian Trail does not extend to the lands traversed by the Trail. See pp. 16-19, supra. Because the
Forest Service therefore remains the agency responsible for administering and managing the national forest
lands crossed by the Appalachian Trail, those lands do
not constitute an “area of land * * * administered by
the Secretary [of the Interior], acting through [the Park
Service],” that is included in the National Park System
by virtue of 54 U.S.C. 100501.
The Appalachian Trail footpath traverses some lands acquired
by and under the jurisdiction of the National Park Service and some
lands within areas like the Great Smoky Mountains National Park.
The federal parties do not dispute that those areas are “area[s] of
land or water” administered by the National Park Service.
12

 23
The court of appeals also was wrong to conclude that
the national forest lands underlying the Appalachian
Trail became “land in the National Park System” because the National Trails System Act charged the Secretary of the Interior with administering the trail, and
the Secretary in turn “delegated that duty to [the Park
Service].” Pet. App. 55a. Under that reasoning, the
Secretary of the Interior’s internal delegation decision
transferred national forest lands from the National
Forest System to the National Park System, and transferred jurisdiction over them from the Forest Service
to the Park Service. But that construction of the National Trails System Act is contrary to the plain statutory text, see pp. 15-19, supra, and inconsistent with
Congress’s general practice of speaking clearly when it
intends to empower the Secretary of the Interior to acquire jurisdiction over federal lands that were previously under the jurisdiction of another federal agency.
See, e.g., 16 U.S.C. 403h-14; 16 U.S.C. 450ff-5; 16 U.S.C.
460a-6; 43 U.S.C. 2632; 54 U.S.C. 100506(c)(1)(B)(i).
The court of appeals’ reasoning is also difficult to
square with the Wild and Scenic Rivers Act, 16 U.S.C.
1271 et seq. (2012 & Supp. V 2017). That statute, enacted on the same day as the National Trails System
Act, specifically provides that “[a]ny component of the
national wild and scenic rivers system that is administered by the Secretary of the Interior through the National Park Service shall become a part of the national
park system.” 16 U.S.C. 1281(c); see 16 U.S.C. 1274(a)
(2012 & Supp. V 2017) (designating certain “rivers and
the land adjacent thereto” as “components of the national wild and scenic rivers system”). Because the
same Congress enacted both statutes, the Wild and Scenic Rivers Act “is cogent proof that Congress knew well

 24
how to express its intent directly,” Bryan v. Itasca
Cnty., 426 U.S. 373, 390 (1976), when that intent was to
transfer lands to the National Park System.
The National Trails System Act includes no similar
statement of intent. To the contrary, the provision establishing the Appalachian Trail mentions neither the
Park Service nor the National Park System, see
16 U.S.C. 1244(a)(1), and, as noted above, another provision expressly states that the National Trails System
Act does not “transfer among Federal agencies any
management responsibilities established under any
other law for federally administered lands,” 16 U.S.C.
1246(a)(1)(A).
2.

The Forest Service has statutory authority to grant
pipeline rights-of-way through national forest lands
traversed by the Appalachian Trail

The Mineral Leasing Act authorizes “the Secretary
of the Interior or appropriate agency head” to grant
rights-of-way through “Federal lands” for certain pipeline purposes. 30 U.S.C. 185(a). Lands in the National
Forest System qualify as “Federal lands” under this
provision, see 30 U.S.C. 185(b)(1), and the head of
the Forest Service is the “appropriate agency head” to
grant rights-of-way through such lands because the
Forest Service “has jurisdiction over” those lands,
30 U.S.C. 185(b)(3); see 36 C.F.R. 200.3(b)(2)(i), (ii);
New Mexico, 438 U.S. at 709 n.18. Because national forest lands traversed by the Appalachian Trail are in the
National Forest System, not the National Park System,
the Forest Service has authority under the Mineral

 25
Leasing Act to grant pipeline rights-of-way that run
through only those lands. 13
In holding otherwise, the Fourth Circuit relied on its
erroneous determination that the lands traversed by
the Appalachian Trail within national forests are in the
National Park System. See Pet. App. 55a-59a. The
court also concluded that the Forest Service “is not the
‘appropriate agency head’ for the [Appalachian Trail]”
because “the Secretary of the Interior administers the
entire [Trail],” while the Forest Service and other state
and federal agencies merely “manage trail components
under their jurisdiction.” Id. at 58a (emphasis omitted).
But that reasoning shows that even the court of appeals
recognized the Forest Service’s ongoing “jurisdiction”
over national forest lands underlying the Appalachian
Trail. Ibid. The plain text of the Mineral Leasing Act
therefore dictates that the Forest Service is the “appropriate agency head” to grant rights-of-way through
such lands, because the Forest Service is the federal
agency “which has jurisdiction over [those] lands.”
30 U.S.C. 185(a) and (b)(3); see 30 U.S.C. 185(b)(1). The
court of appeals was wrong to hold otherwise.
B. The Question Presented Warrants This Court’s Review

1. Certiorari is warranted “because of the importance of the [court of appeals’] decision to the utilization of the public lands.” United States v. Coleman,
390 U.S. 599, 601 (1968). Within the Fourth Circuit,
long sections of the Appalachian Trail cross through national forests. Under the court of appeals’ decision, all
If a pipeline right-of-way would cross both through lands in the
National Forest System and through other “Federal lands,”
30 U.S.C. 185(b)(1), under the jurisdiction of another federal
agency, the Mineral Leasing Act authorizes the Secretary of the Interior to grant the right-of way. 30 U.S.C. 185(c).
13

 26
federal lands underlying those segments of the Trail are
now in the National Park System, which means that no
federal agency is authorized to grant rights-of-way
through those lands under the Mineral Leasing Act.
That holding threatens significant and immediate adverse consequences for the development and maintenance of the nation’s energy infrastructure in the eastern United States.
The pipeline for which the Forest Service approved
the right-of-way could transport as much as 1.5 billion
cubic feet of natural gas to Virginia and North Carolina
each day. 14 Joint C.A. App. 1464. Without that pipeline,
natural-gas and electricity customers in those States
could end up paying an additional $377 million in energy
costs each year because of decreased access to naturalgas supplies. Pet. App. 165a. The court of appeals’ ruling could also impede the construction of other proposed pipelines that would cross the Appalachian Trail
within national forests. See, e.g., 82 Fed. Reg. 25,761,
25,763 (June 5, 2017) (Forest Service notice regarding a
proposal under the Mineral Leasing Act to grant the
Mountain Valley Pipeline a right-of-way to cross be-

A capacity of 1.5 billion cubic feet of natural gas per day would
enable the pipeline to transport more than 500 billion cubic feet of
natural gas per year, an amount that, for example, exceeds the total
quantity delivered in 2017 directly to more than seven million residential natural-gas consumers in Delaware, the District of Columbia, Maryland, New Jersey, North Carolina, South Carolina, and
Virginia. U.S. Energy Info. Admin., Natural Gas Consumption by
End Use: Volumes Delivered to Residential, https://www.eia.gov/
dnav/ng/ng_cons_sum_a_EPG0_vrs_mmcf_a.htm; U.S. Energy Info.
Admin., Number of Natural Gas Customers: No. of Residential
Consumers, https://www.eia.gov/dnav/ng/ng_cons_num_a_EPG0_
VN3_Count_a.htm.
14

 27
neath the Appalachian Trail within the Jefferson National Forest); Sierra Club, Inc. v. United States Forest
Serv., 897 F.3d 582 (4th Cir. 2018) (vacating federal
agency decisions regarding the Mountain Valley pipeline). 15

As reported in a recent filing with the Securities and Exchange
Commission (SEC), Mountain Valley Pipeline, LLC (MVP), following discussions with the Department of the Interior, recently submitted a “Land Exchange Proposal” to the federal government in
connection with the Mountain Valley Pipeline. EQM Midstream
Partners, LP (EQM), U.S. Secs. & Exch. Comm’n, Form 8-K (June
17, 2019), https://www.sec.gov/Archives/edgar/data/1540947/00011
0465919035766/a19-11613_18k.htm. The MVP proposal would grant
the United States “full ownership” of certain private lands traversed by the Appalachian Trail, including a tract of private land adjacent to the Jefferson National Forest. Id. at 2. The submission
proposes that “the applicable federal agencies” would grant MVP
an easement and right-of-way that would enable the Mountain Valley Pipeline to cross the Appalachian Trail at the location within the
Jefferson National Forest that FERC approved in 2017. Ibid. (The
MVP proposal does not address the Atlantic pipeline at issue in this
case.) The SEC filing explains that the MVP proposal “is subject to
the approval of the respective federal agencies and will be reviewed
by such agencies under land exchange procedures,” and states that
in light of that proposal and “the resolution of a few remaining legal
and regulatory components,” one of MVP’s owners “now expects a
mid-2020 full in-service date for the [Mountain Valley Pipeline] project.” Ibid.
The National Trails System Act includes a provision that authorizes the Secretary of the Interior to “accept title to any non-Federal
property” within a national trail right-of-way and, “in exchange
therefor,” to “convey to the grantor of such property any federally
owned property under his jurisdiction,” provided that certain statutory conditions are met. 16 U.S.C. 1246(f )(1); see 16 U.S.C. 1246(e)
and (f )(2). Section 1246(f )(1) also allows the Secretary of Agriculture to “utilize authorities and procedures available to him in connection with exchanges of national forest lands.” 16 U.S.C.
15

 28
More generally, several infrastructure projects have
been planned, proposed, or approved to increase the capacity to transport natural gas in the geographic region
at issue here. See 161 F.E.R.C. 61042 ¶ 282, 2017 WL
4925429, at *69 (Oct. 13, 2017). Under the court of appeals’ decision, much of the Appalachian Trail’s total
length within the Fourth Circuit now traverses federal
lands, including national forests and national parks,
that are categorically ineligible for pipeline rights-ofway under the Mineral Leasing Act. Accordingly, if
that decision stands, it could thwart the construction of
future natural gas and oil pipelines with proposed crossings under the Appalachian Trail on those lands.
Additional problems would flow from the court of appeals’ holding that national forest lands underlying the
Appalachian Trail are in the National Park System.
The Secretary of Agriculture has statutory authority
under the Federal Land Policy and Management Act to
grant, issue, or renew rights-of-way “over, upon, under,
or through” lands in the National Forest System for
power, telephone, and cable lines; cellular-telephone,
1246(f )(1). The Departments of the Interior and Agriculture, however, have informed this Office that, in their judgment, there are
substantial questions that would have to be resolved to determine
whether Section 1246(f )(1) would authorize the exchange described
in MVP’s proposal. Section 5(b) of the Act of July 15, 1968, Pub. L.
No. 90-401, 82 Stat. 356, contains more general land-exchange authority for the Interior Department, but that Department has informed this Office that there similarly are substantial questions concerning Section 5(b).
Regardless, the government should not be required to undertake
such complex transactions based on an erroneous interpretation of
the National Trails System Act. And even if it could, such a possibility would not address the other problems created by the Fourth
Circuit’s decision, discussed at pp. 28-30, infra.

 29
radio, and television towers; roads, railroads, and canals; water facilities; and “such other necessary transportation or other systems or facilities which are in
the public interest and which require rights-of-way.”
43 U.S.C. 1761(a). Other statutes empower the Secretary of Agriculture and the Forest Service to grant
easements for similar purposes on national forest lands.
See 16 U.S.C. 533; 43 U.S.C. 961 (2012 & Supp. V 2017).
The court of appeals’ ruling casts doubt on the Forest
Service’s authority to issue such authorizations on national forest lands traversed by the Appalachian Trail.
The court of appeals’ ruling, if allowed to stand,
would also disrupt the Forest Service’s administration
and management of national forests in the Fourth Circuit and impose new burdens on the Park Service. For
decades, the Forest Service and the Park Service have
proceeded on the shared understanding that the Forest
Service retains authority and jurisdiction over national
forest lands traversed by the Appalachian Trail. See
pp. 19-21 , supra. And in light of the Forest Service’s
authority over national forest lands, the Park Service
and the Forest Service have agreed that the Forest Service is responsible for developing, protecting, maintaining, and managing the sections of the Appalachian Trail
that traverse national forests. See U.S. Dep’t of the Interior et al., The National Trails System Memorandum
of Understanding 5 (2017). 16 The Park Service, in turn,
oversees the Forest Service’s activities on those segments of the Trail and provides technical support. See
id. at 4.

16
https://www.nps.gov/subjects/nationaltrailssystem/upload/
National_Trails_System_MOU_2017-2027.pdf.

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That division of responsibilities has allowed the Forest Service to administer and manage each national forest traversed by the Appalachian Trail as a coherent
whole, subject to a uniform set of authorities, priorities,
and objectives and a single land-management plan. Under the court of appeals’ decision, however, the Appalachian Trail would rest upon a ribbon of land deemed by
the Fourth Circuit to be part of the National Park System, bisecting national forests within the Fourth Circuit. If the court’s ruling were to stand, questions would
arise whether the Park Service would be required to
manage the narrow slices of national forest land crossed
by the Appalachian Trail’s footpath, while the Forest
Service would retain responsibility for the surrounding
federal lands. Any such division of authority would upset the longstanding division of responsibilities between
the Forest Service and the Park Service and could lead
to confusion and significant administrative difficulties,
especially in circumstances where the statutory objectives, authorities, and missions of the National Park
System and National Forest System diverge.
2. Although the Forest Service can address the
court of appeals’ other concerns on remand, the Forest
Service cannot grant Atlantic a right-of-way for a pipeline through federal lands in national forests traversed
by the Appalachian Trail. The Court therefore should
grant a writ of certiorari to remove that barrier imposed by the court of appeals.

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CONCLUSION

The petition for a writ of certiorari should be
granted.
Respectfully submitted.

STEPHEN A. VADEN
General Counsel
Department of Agriculture

JUNE 2019

NOEL J. FRANCISCO
Solicitor General
ERIC GRANT
Deputy Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
JENNY C. ELLICKSON
Assistant to the Solicitor
General
ANDREW C. MERGEN
J. DAVID GUNTER II
AVI KUPFER
Attorneys