No. 18-1587

In the Supreme Court of the United States
ATLANTIC COAST PIPELINE, LLC,

Petitioner,
v.
COWPASTURE RIVER PRESERVATION
ASSOCIATION, et al.,

Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF WEST
VIRGINIA AND 15 OTHER STATES
IN SUPPORT OF PETITIONER
PATRICK MORRISEY

Attorney General

OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021

LINDSAY S. SEE

Solicitor General
Counsel of Record

THOMAS T. LAMPMAN

Assistant Solicitor
General

Counsel for Amicus Curiae State of West Virginia
[additional counsel listed at end]

 QUESTION PRESENTED
Whether the Mineral Leasing Act and National
Trails System Act give the U.S. Forest Service
authority to grant rights-of-way through national
forest lands traversed by the Appalachian National
Scenic Trail.

 ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
INTERESTS OF AMICI CURIAE AND
SUMMARY OF ARGUMENT ..............................1
REASONS FOR GRANTING THE PETITION .........4
I.

The Decision Below Is Wrong ...............................4
A. The Decision Below Misreads The
Mineral Leasing Act And Other
Operative Statutes .........................................5
B. The Decision Below Undermines The
Mineral Leasing Act’s Goal To Balance
Conservation With Energy Development ......9

II. Review Is Needed To Stem The Far-Reaching
Consequences Of The Decision Below ................ 15
A. Shuttering Construction On The Atlantic
Coast Pipeline Harms States On Both
Ends Of Its Route ......................................... 16
B. The Decision Below Could Severely
Constrain Energy Development
Nationwide.................................................... 19
C. The Decision Below Undermines
Important Interests Beyond Pipeline
Development ................................................. 23
CONCLUSION .......................................................... 27

 iii
TABLE OF AUTHORITIES
Page(s)
Cases

BFP v. Resolution Trust Corporation,
511 U.S. 531 (1994)................................................ 26

Bond v. United States,
572 U.S. 844 (2014)................................................ 26

DePierre v. United States,
564 U.S. 70 (2011)....................................................8

Dep’t of Interior v. Klamath Water Users
Protective Ass’n,
532 U.S. 1 (2001).................................................... 23

In re Trans Alaska Pipeline Rate Cases,
436 U.S. 631 (1978)................................................ 25

Jefferson Cty. Pharm. Ass’n, Inc. v. Abbott Labs.,
460 U.S. 150 (1983)................................................ 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
138 S. Ct. 617 (2018)................................................9

Ragsdale v. Wolverine World Wide, Inc.,
535 U.S. 81 (2002).................................................. 15

Wilderness Society v. Morton,
479 F.2d 842 (D.C. Cir. 1973) ................................ 11

Youngdahl v. Rainfair, Inc.,
355 U.S. 131 (1957)................................................ 19
Statutes
16 U.S.C. § 1241 ..........................................................8
16 U.S.C. § 521 ........................................................ 5, 7
16 U.S.C. § 551……………………………………………7

 iv
TABLE OF AUTHORITIES

(continued)

Page(s)
16 U.S.C. § 1244 .......................................... 5, 8, 14, 25
16 U.S.C. § 1246 .............................................. 2, 7, 8, 9
16 U.S.C. § 1609…………………….………………….5, 7
30 U.S.C. § 185 .................. 1, 3, 5, 6, 10, 12, 20, 26, 27
43 U.S.C. § 1761 ........................................................ 24
54 U.S.C. § 100102 ......................................................6
54 U.S.C. § 100501………………….…………………….6
54 U.S.C. § 101102…………………………..;…….…….7
Regulations
81 Fed. Reg. 71,041 ................................................. 19
Other Authorities
119 Cong. Rec. 6131 (1973)………………..………....11
119 Cong. Rec. 27,678 (1973)…………...…………….13
119 Cong. Rec. 27,679 (1973)……………..……...13, 14
119 Cong. Rec. 36,611 (1973)………………...……….14
H. Rep. 93-414 .......................................................... 13
H.R. 9130 .................................................................. 12
H.R. Rep. 93-617 ................................................ 12, 14
Pub. L. No. 66-146.............................................. 10, 13
Pub. L. No. 90-543......................................................8
Pub. L. No. 90-543 .....................................................1

 v
TABLE OF AUTHORITIES

(continued)

Page(s)
Nat’l

Parks

National

Conservation

Scenic

Trail:

Appalachian
Special Report

Ass’n,

A

1……………………………………………….…….……19
S. 1081 ...................................................................... 11
S. Rep. 93-207 .................................................... 11, 12
Bureau of Labor Statistics, Local Area
Unemployment Statistics (July 19, 2019)…..……...17
U.S.

U.S. Dep’t Energy, Env. Sci. Div., Electricity

Transmission, Pipelines, and National Trails: An
Analysis Of Current And Potential Intersections On
Federal Lands In The Eastern United States, Alaska,
And Hawaii 40 (2016)………………..…………....24, 25
U.S. Dep’t of Interior, Nat’l Parks Service, Reference
Manual 45: National Trails System 200-01 (Jan.
2019)………………………………………………...20, 21
U.S. Energy Information Admin., Heat Content of
Natural Gas Consumed (June 28, 2019)………..…..18
U.S. Energy Information Admin., Natural Gas
Prices: Residential Price (June 28, 2019).…………..18
U.S. Energy Information Admin., U.S. Electric

System Is Made Up Of Interconnections And
Balancing Authorities (July 20, 2016)………....……24

 vi
TABLE OF AUTHORITIES

(continued)

Page(s)
U.S. Energy Information Admin., Virginia: State

Profile and Energy Estimates, Consumption by
Source (Aug. 18, 2018)…………………………………18

U.S. Fed. Energy Reg. Comm’n, Atlantic Coast

Pipeline and Supply Header Project: Final
Environmental Impact Statement (vol. I) 4-507 (July

2017)…………………………………….…..………..….17
U.S. Nat’l Park Service, National Trails System 50th
Anniversary Map (2018)………………..……...…19, 22

 1
INTERESTS OF AMICI CURIAE 1
AND SUMMARY OF ARGUMENT
Through the National Trails System, Congress
crafted a “national system of recreational and scenic
trails” crossing over some of the most beautiful and
historic lands in our country—federal, state, and
private. National Trails System Act, Pub. L. No. 90543 § 2(a), 82 Stat. 919, 919 (1968) (“Trails Act”). The
first of these trails, the Appalachian National Scenic
Trail (“Appalachian Trail” or the “Trail”), is
administered by the Secretary of the Interior through
the National Park Service (“NPS”), in concert with
other federal agencies. Id. at § 5(a)(1), (3), 82 Stat.
920. The Trail crosses lands owned by numerous
public and private entities through a system of
negotiated “rights-of-way.” Id. Nothing in the Trails
Act, however, suggests that Congress intended to
reach into the underlying ownership rights or
management structure of the lands themselves.
The decision below does precisely that. The
Fourth Circuit started with the Mineral Leasing Act,
which was designed to facilitate crucial energyinfrastructure development by giving agencies with
“jurisdiction” over federal lands authority to grant
rights-of-way for pipeline construction. 30 U.S.C.
§ 185(a), (b)(3). It then zeroed in on a narrow
exception—this power does not extend to “lands in the
National Park System,” id. § 185(b)(1)—to transform
1

Pursuant to Supreme Court Rule 37.2(a), amici have timely
notified counsel of record of their intent to file an amicus brief in
support of Petitioner.

 2
the roughly 1,000 miles of federal land along the
Appalachian Trail (if not the entire Trail) into a nearimpenetrable barrier to energy development. The
court reasoned that the Trail is “land[] in the National
Park System” because NPS administers the trail,
even though the U.S. Forest Service manages the land
it crosses. But this novel approach is divorced from
the Mineral Leasing Act’s text and ignores the
statutory context in which it operates—including
Congress’s emphatic statement that “[n]othing” in the
Trails 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).

Amici curiae—the States of West Virginia,
Alabama, Alaska, Georgia, Idaho, Kansas, Louisiana,
Montana, Nebraska, North Dakota, Ohio, Oklahoma,
South Dakota, Texas, Utah, and Wyoming—have
strong interests in preserving the Mineral Leasing
Act’s balance between robust energy development and
responsible management of public lands.
States are invested on both sides of this scale.
Many States’ economies depend on exporting oil and
natural gas reserves to surrounding States, and the
country’s overall economy is built on the bedrock of a
resilient and well-supplied national electrical grid.
Amici also have strong interests in protecting the
National Park System, and respect Congress’s
decision to bar pipeline development in the nation’s
parks. Indeed, amici States are proud of the roughly
60,386,000 acres of Park System lands in their

 3
borders, such as the area surrounding West Virginia’s
New River Gorge National River near the proposed
Atlantic Coast Pipeline (“ACP”) route. Amici also care
about holding federal agencies to their statutory duty
to ensure proper review of proposed rights-of-way on
federal lands not part of the National Park System, so
that these lands will be maintained for our citizens
consistent “with [their] purposes.”
30 U.S.C.
§ 185(b)(1).

Amici thus have deep concerns with the decision
below, which destroyed the balance Congress baked
into the Mineral Leasing Act and cut off thousands of
miles of federal land from development. And the need
for review is especially pressing because the decision
does not simply question the Forest Service’s
judgment or ask for a redo: It makes it impossible for
any federal agency to grant an easement under the
Mineral Leasing Act crossing the Appalachian Trail.
In other words, absent review one 1/10 mile crossing
on a 600-mile pipeline route—a route that crosses 21
miles of national forests where rights-of-way
indisputably can be granted, Pet. App-73—may stop
the entire enterprise, as well as others to come.
The amici States support granting the Petition for
the following two reasons:

First, the decision below is wrong.

It is
irreconcilable with the text of the Mineral Leasing
Act, the National Parks Service Organic Act (“Parks
Service Act”), and the Trails Act. It also undermines
the Mineral Leasing Act’s purposes, particularly the
balance
between
energy
development
and

 4
conservation that Congress struck anew during the
Act’s amendment process.

Second,

the decision’s consequences are
dangerous and far-reaching. The decision cripples
new infrastructure for transporting energy from
resource-rich States on one side of the Appalachian
Trail to energy-importing States on the other. Fear
that the court’s approach may expand beyond the
Fourth Circuit—wherever else a pipeline crosses the
11,000 miles of NPS-administered trails on federal
land—also threatens a chilling effect on investment
and disruption to the national power grid. The Court
should weigh in now to ensure that billions of State
dollars and hundreds of miles of energy infrastructure
do not become mere sunk costs. Beyond the pipeline
context, the Fourth Circuit’s logic could also
undermine other rights-of-way regimes, unsettle
protections for national parks traversed by trails
different agencies administer, and inject uncertainty
into the property rights of the many state, local, and
private entities that grant the rights-of-way our
national trails need to exist.
REASONS FOR GRANTING THE PETITION
I.

The Decision Below Is Wrong.

Literally and figuratively, this case sits at the
intersection of the National Trails and National
Forest Systems. The full complement of statutes at
play reveals a simple answer to the almost riddle-like
quality of the question presented: Where a park trail
crosses a forest, does the land below remain part of
the forest or transform into a park? Taken together,

 5
the statutes’ most natural readings confirm that
Forest Service lands remain forests even when
crossed by a trail another agency administers. The
decision below, by contrast, misconstrues the
statutory text and turns Congress’s purposes in
enacting the Mineral Leasing Act on their head.
Certiorari review is needed to repudiate the
overreaching decision below and restore stability to
this critically important area of federal law.
A. The Decision Below Misreads The Mineral
Leasing Act And Other Operative Statutes.
The Mineral Leasing Act provides that
“appropriate agency head[s]” may grant “[r]ights-ofway 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). The
only caveat potentially relevant here is if the land is
“in the National Park System.” Id. § 185(b)(1). When
determining whether this exception applied, the court
below purportedly focused on “the land, not the
agency” in question. Pet. App-59. Yet the court did
not account for the full breadth of statutes describing
“the land”—which is located within the George
Washington National Forest and “reserved, held, and
administered as national forest lands.” 16 U.S.C.
§ 521 (emphasis added). Instead, it elevated the
land’s surface use as a footpath, id. § 1244(a)(1), over
statutes that expressly preserve the Forest Service’s
jurisdiction over the lands that path crosses, e.g., id.
§ 1609(a).

 6
This approach is wrong. Lands the Forest Service
administers are part of the Forest System, not the
Park System, even when another agency administers
a trail on the forest floor. The Fourth Circuit’s
contrary holding falls apart when viewed against the
Mineral Leasing Act, the Parks Service Act, and the
Trails Act—which all confirm that administration of a
national trail does not sub silentio confer authority
over the hundreds of miles of land beneath.
Mineral Leasing Act. This Act’s otherwise broad
grant of authority to allow pipeline rights-of-way
across federal lands does not extend to “lands in the
National Park System.”
30 U.S.C. § 185(b)(1).
Emphasizing land, as opposed to mere features or
uses of the land, like a trail, is deliberate. As
discussed further in the Petition and below, this
choice of language reflects Congress’s desire to bar
energy development in a limited category of protected
areas—like the national parks—but not to create
hundreds or thousands of miles long barriers blocking
States from each other for purposes of energy
transmission. See infra Part I.B.
Parks Service Act. The focus on land as a whole—
and not its surface use—becomes more apparent in
the Parks Service Act. The Mineral Leasing Act does
not define “lands in the National Park System,” but
this statute does: The Park System includes “areas of
land and water described in section 100501,” 54
U.S.C. § 100102(2), or “any area of land and water
administered by the [Interior] Secretary, acting
through the Director [of NPS],” id. § 100501. The
“area[s] of land and water” in the George Washington

 7
National Forest are forest lands, e.g., 16 U.S.C.
§§ 521, 1609(a), administered by the Secretary of
Agriculture, id. §§ 529, 551. NPS administers the
Appalachian Trail as a feature in the forest, cf. id.
§ 1246(a)(1)(A), but it does not administer the “land
and water” underneath. Indeed, the Parks Service
Act is clear that a portion of geography is not
necessarily land “in” the Park System even if it is
considered a park “unit”: Congress gave the Interior
Secretary authority to “consolidate Federal land
ownership within the existing boundaries of any
system unit.” 54 U.S.C. § 101102(a)(1) (emphasis
added). This provision would be unnecessary if
denoting an area a unit of the national park system
automatically removed any other entity’s jurisdiction
over that land.
Trails Act. The Trails Act is Congress’s clearest
statement that administration of the Appalachian
Trail (like other trails) does not confer jurisdiction
over the land it crosses. The Trails Act “shall not 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). This means that the entity that
managed land before creation of a national trail
manages the land afterward, as well. Similarly, the
same section distinguishes between the “Secretary
charged with the overall administration of a trail”
and the agency responsible for “federally
administered lands.” Id. (emphases added). This
distinction is no “marginal semantic divergence”; it is

 8
a straightforward application of “the usual rule that
when the legislature uses certain language in one part
of the statute and different language in another,” it
intended “different meanings.” DePierre v. United
States, 564 U.S. 70, 83 (2011) (quotations omitted).
The land-trail distinction also makes sense
because the Appalachian Trail was created as “a
right-of-way,” not a full land transfer. 16 U.S.C.
§ 1244(a)(1).
It “include[s] lands” only “[w]here
practicable,” and subject to specified agreements. Id.
The same is true of all national trails, which are
developed as “rights-of-way” crossing over “Federal
lands under the jurisdiction of another Federal
agency”—or, for that matter, state, local, or private
lands. Id. § 1246(a)(2) (emphasis added); see also
National Trails System Act, Pub. L. No. 90-543 § 7, 82
Stat. 919, 922 (1968); 16 U.S.C. § 1241(a) (enacting 16
U.S.C. § 1246).
Congress’s recognition that trails frequently cross
lands other federal agencies manage is consistent
with viewing a trail as a right-of-way: When the
Trails Act was enacted (as today), a “right-of-way” was
understood to be a “servitude” upon “the estate of
another.” Black’s Law Dictionary 1489 (4th ed. 1968)
(emphasis added). Indeed, the right-of-way the ACP
seeks is an interest in the use of federal land, not a
transfer of ownership. And if administrating a trail
were tantamount to authority over the entire tract of
land, Congress’s direction to obtain rights-of-way
would be redundant, because it would have already
given the administering agency authority to use the
land as it deems fit. “Absent clear evidence that

 9
Congress intended [such] surplusage,” the Court
rejects interpretations that render part of a statute
“meaningless.” Nat’l Ass’n of Mfrs. v. Dep’t of Def.,
138 S. Ct. 617, 632 (2018).
The Fourth Circuit’s mistaken view of what it
means to “administer” a trail would also make
meaningless the Trail Act’s multiple provisions that
require cooperating with States and other non-federal
landowners.
The Interior Secretary must, for
example, “consult with the heads of all other affected
State and Federal agencies” when making decisions
affecting a trail. 16 U.S.C. § 1246(a)(1)(A). The Trails
Act also recognizes the need 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.” Id. § 1246(h)(1). In these cases, the Secretary
may enter into “cooperative agreements” with the
States (as well as local and private landowners) for
maintaining relevant portions of a trail. Id.
In short, the Fourth Circuit’s myopic focus missed
seeing the forest for the trail. Correcting to account
for all relevant statutes makes clear that power to
administer a national trail does not alter the legal
status of the land it crosses.
B. The Decision Below Undermines The Mineral
Leasing Act’s Goal To Balance Conservation
With Energy Development.
The statutory analysis discussed above confirms
the profound error in the decision below—particularly
because a statute’s “plain language . . . is controlling

 10
unless a different legislative intent is apparent from
the purpose and history of the Act.” Jefferson Cty.
Pharm. Ass’n, Inc. v. Abbott Labs., 460 U.S. 150, 157
(1983). And far from suggesting a different result, the
Mineral Leasing Act’s legislative history underscores
the need for review.
This statute weighs two
interests: Encouraging ongoing development of our
nation’s energy resources, and protecting federal
lands. The Fourth Circuit’s interpretation supplants
this balance with an inflexible, 1,000-mile barrier to
energy development for States on both sides of the
Appalachian Trail. This outcome is far afield of
Congress’s intended goal.
The Mineral Leasing Act was enacted in 1920,
nearly five decades before the National Trails
System’s creation. Pub. L. No. 66-146, 41 Stat. 437
(1920) (enacting 30 U.S.C. § 185). As originally
crafted, the Act created a system for natural-resource
extraction on federal lands that did not include
several categories of federal lands, including “national
parks.” Id. § 1, 41 Stat. 437-38. The Act did, however,
authorize pipeline construction across “public lands,”
including “the ground occupied by [] said pipe line and
twenty-five feet on each side.” Id. § 28, 41 Stat. 449.
And it expressly included “forest lands” when
describing the “public lands” available for pipeline
construction. Id. Congress thus designed the statute
to promote energy development across most federal
lands. In the exempted federal lands—and only those
lands—Congress determined that conservation goals
outweighed the need for infrastructure development.

 11
The Act was amended 53 years later in response
to a narrow interpretation of its pipeline provision in
Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir.
1973). The D.C. Circuit held that the 25-foot limit
applied not only to easements for completed pipelines,
but to the rights-of-way necessary for construction as
well. Id. at 876-78. Yet because construction requires
a wingspan greater than 25 feet, the decision stripped
federal agencies of the ability to grant meaningful
easements for pipeline construction on any federal
land. See S. Rep. 93-207, at 11. Congress quickly
amended the Act to authorize the right-of-way at issue
in Morton and to correct this concern going forward.
Id. at 11-12 (“S. 1081 . . . would resolve the major
uncertainties which now exist and would vest . . .
appropriate Federal agencies with the authority to
grant rights-of-way for the purposes provided in the
Act.”).
Congress also took the opportunity to revisit the
balance between pipeline construction and protection
for federal lands. The 1973 amendment process was
dynamic and reflected multiple compromises, but the
end result was “a broad[] approach” to “rights-of-way
for oil and gas pipelines, waterlines, electrical
transmission lines, communication facilities, roads,
and other necessary public transportation facilities
across public and Federal lands.” 119 Cong. Rec. 6131
(1973) (statement of Senator Jackson upon
introduction of S. 1081) (emphasis added). The
Fourth Circuit’s narrow read of the resulting text
cannot be squared with Congress’s goals, and would

 12
replace one judicial interpretation unduly restricting
infrastructure development with another.
Two features of the amendment process highlight
that Congress did not intend to halt pipeline
construction on national forest lands:

First, the provision giving any agency with
jurisdiction over federal lands authority to grant
pipeline rights-of-ways, 30 U.S.C. § 185(a), (b)(3),
dates to this amendment. Before Morton over 700
pipelines had been built on rights-of-way granted by
the Forest Service, whereas the Mineral Leasing Act
expressly vested only the Secretary of the Interior
with this power. S. Rep. 93-207, at 16. The Senate’s
bill expanded this authority to include any “agency
head” with jurisdiction over the land in question. Id.
at 30-31. The House in turn agreed with this
approach, allowing any “appropriate agency head” to
grant rights-of-way over federal land. H.R. Rep. 93617, at 2 (Oct. 31, 1973). This important clarification
indicates that Congress was concerned with making
rights-of-way easier to obtain, not harder.

Second, the crux of the congressional debates was
how many federal lands to exempt from the general
policy favoring rights-of-way.
The Senate bill
proposed expanding the exemption from “national
parks” to “lands in the National Park System,” the
“National Wildlife Refuge System,” and the “National
Wilderness Preservation System,” among others. S.
Rep. 93-207, at 29. The House’s original language
would have simply allowed larger rights-of-way for
pipeline construction. H.R. 9130 § 1, as introduced by
Rep. Melcher, 93rd Cong. (June 29, 1973). It would

 13
not have expressly exempted any federal lands from
this provision, even lands in the National Park
System. See H. Rep. 93-414, at 9-10 (1973). This
approach raised concerns in committee and during
floor debates, however, leading to a proposed
amendment adopting much of the Senate’s language,
while clarifying that exempting the National Park
System and the other land categories would not
override preexisting statutes that “specifically
authorize [a] right-of-way or permit” in those areas.
119 Cong. Rec. 27,678 (Aug. 2, 1973) (amendment
offered by Rep. Dingell).
This language, too, was controversial. Some
members saw “no evidence the amendment [wa]s
necessary,” because in their view “the lands that are
[subject to the Mineral Leasing Act]”—“public lands,
including forest lands,” Pub. L. No. 66-146 § 28, 41
Stat. 449—already excluded national parks. 119
Cong. Rec. 27,679 (statement of Rep. Melcher).
Others believed the amendment was vital to avoid
“sanctif[ying] raids on the public domain” by
“authoriz[ing] a pipeline, camp ground, [or] tank
storage facility” in “Yosemite, Yellowstone, [or] any
national park.” Id. at 27,678-79 (statements of Reps.
Dingell and Seiberling). Some of the members who
agreed the existing statute already barred rights-ofway in national parks viewed the proposal as
broadening the exemption. Id. (statement of Rep.
Bingham). And still others were opposed to what they
saw as “an absolute prohibition” on pipelines in
exempted areas, wherever the line fell between

 14
exempted and non-exempted lands.
(statement of Rep. Meeds).

Id. at 27,679

The conference report ultimately provided a
workable compromise. Noting that it was “not
completely clear” which specific lands were already
covered by the Act, the conference committee adopted
the Senate’s approach of exempting specific categories
of land from the definition of “federal lands.” H.R.
Rep. 93-617, at 21 (Oct. 31, 1973). It did not, however,
exempt as many categories as the Senate bill: It
eliminated the exemptions for lands in the National
Wildlife Refuge System and National Wilderness
Preservation System, id., thus addressing members’
concerns about restricting pipeline development too
far. And to address the opposite concern about
altering the character of federal lands, the
compromise language made clear that rights-of-way
across federal reserved lands are not automatic, but
may be granted only where not “inconsistent with the
purposes of the reservation.” Id. at 21-22; see also id.
at 2.
This renewed focus on the purposes for which
different federal lands are reserved is important. The
amendment’s reminder that rights-of-way must be
consistent with those purposes satisfied House
members who championed additional protections for
federal lands. See 119 Cong. Rec. 36,611 (statement
of Rep. Dingell). And more importantly, the nation’s
“Scenic Trails”—which by that time included the
Appalachian Trail, 16 U.S.C. § 1244(a)(1)—were
specifically understood to be part of the new category
of federal “reservations,” rather than “lands in the

 15
National Park system.” 199 Cong. Rec. 36,611
(statement of Rep. Dingell). Congress ultimately
adopted this compromise approach, and it remains in
effect today.
The amendment process highlights Congress’s
twin goals of protecting federal lands and facilitating
energy development. For purposes of the Mineral
Leasing Act, Congress gave ironclad protection to
“lands in the National Park System” on the one hand,
but declined to wall off other federal lands on the
other. For those other lands—even the “Scenic
Trails”—Congress generally allowed pipelines and
development of energy resources unless a right-of-way
would be in tension with a specific land’s purposes.
“Courts . . . must respect and give effect to”
legislative compromises like these “between groups
with marked but divergent interests.” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 93-94 (2002).
The Fourth Circuit ignored the deliberate choices
Congress made.
Indeed, by blocking pipeline
construction over a Scenic Trail that spans thousands
of miles of national forest land—whether the
construction is limited to 25 feet or not—it makes the
problem that sparked the 1973 amendment process
worse than before Congress took it up in the first
place. The Court should grant review to correct these
serious errors below.
II. Review Is Needed To Stem The Far-Reaching
Consequences Of The Decision Below.
The Court should also intervene because the
effects of the Fourth Circuit’s decision are severe. The

 16
court below did not conclude the Forest Service was
the wrong agency to grant a right-of-way crossing the
Appalachian Trail, but that under the Mineral
Leasing Act no federal agency possesses that power.
The court thus erected a roadblock to energyinfrastructure development at least 1,000 miles long.
The disruption and potential ultimate defeat of the
ACP that barrier creates has already hurt the energy
markets and economies of many amici States. The
decision also calls into question the status of other
pipelines running under the Appalachian Trail, and
will very likely chill development in and outside the
Fourth Circuit as well—wherever the wide-ranging
National Trail System intersects a proposed pipeline’s
path. Finally, the decision below threatens rights-ofway for telecommunications transmissions and other
forms of electricity, creates new challenges and
inefficiencies for managing federal lands, and fosters
uncertainty over the status of the many state, local,
and private lands that the Appalachian Trail—and
others—traverse.
A. Shuttering Construction On The Atlantic
Coast Pipeline Harms States On Both Ends Of
Its Route.
As a major construction project and long-term
vehicle for the sale of natural gas, the ACP offers
important financial benefits to the States along its
route. The Federal Energy Regulatory Commission
(“FERC”) projected significant gains during the
pipeline’s construction for “employment, local goods
and service providers, and state governments in the

 17
form of sales tax revenues.”2 During six years of
construction, for example, FERC estimated that the
pipeline would generate over $2.7 billion in economic
activity.3
Had the project continued without
interruption, construction was projected to yield $25
million in income and corporate tax revenue through
2019.4 Operation of the pipeline and an associated
“Supply Header” project was also estimated to
produce a further $216 million in property tax
revenues between 2018 and 2025.5 Moreover, pipeline
construction represents over 17,000 jobs in the
affected States6—jobs that are critical for many of
those States’ citizens.7
The pipeline also promises significant benefits to
consumers. When finished, it will be capable of
shipping 1.5 billion cubic feet of natural gas per day to
customers in North Carolina, Virginia, and West
Virginia. Final EIS at 1-3. This gas would be able to
2

U.S. Fed. Energy Reg. Comm’n, Atlantic Coast Pipeline and
Supply Header Project: Final Environmental Impact Statement
(vol. I) 4-507 (July 2017) (“Final EIS”), available at
https://www.ferc.gov/industries/gas/enviro/eis/2017/07-21-17FEIS/volume-I.pdf.
3

Id.

4

Id.

5

Id. at 4-509.

6

Id. at 4-507.

7 See U.S. Bureau of

Labor Statistics, Local Area Unemployment
Statistics (July 19, 2019), available at https://www.bls.gov/
web/laus/laumstrk.htm (showing that West Virginia, North
Carolina, and Pennsylvania have higher unemployment rates
than most other States; West Virginia’s is 6th highest).

 18
produce over 1.5 trillion British thermal-units of
energy every day,8 enough to satisfy over 90% of the
demand for natural gas energy in the entire
Commonwealth of Virginia.9 And because the vast
majority of this gas will be sold to utilities and used to
produce electricity for commercial and residential
consumers,10 the pipeline represents a potential
savings of $377 million in energy costs every year, see
Final EIS at 4-508. For States facing steadily rising
costs for residential electricity, a new supply of lowercost and locally sourced energy cannot come soon
enough. Residents of North Carolina and Virginia, for
instance, have been historically underserved in this
area, with residential natural gas prices currently
20%-50% higher than the national average.11

8

On average, each cubic foot of natural gas produces 1,037
British thermal units of heat energy when burned. U.S. Energy
Information Admin., Heat Content of Natural Gas Consumed
(June 28, 2019), available at https://www.eia.gov/dnav/ng/ng_
cons_heat_a_EPG0_VGTH_btucf_a.htm.
9

In 2017, Virginia consumed over 596 trillion British thermal
units of energy from natural gas. U.S. Energy Information
Admin., Virginia: State Profile and Energy Estimates,
Consumption by Source (Aug. 18, 2018), available at
https://www.eia.gov/state/?sid=VA#tabs-1.
10

Id.

11

U.S. Energy Information Admin., Natural Gas Prices:
Residential Price (June 28, 2019), available at https://www.eia.
gov/dnav/ng/ng_pri_sum_a_EPG0_PRS_DMcf_m.htm.

 19
B. The Decision Below Could Severely Constrain
Energy Development Nationwide.
The consequences of the decision below expand far
beyond threatening the ACP itself. Left standing, it
will almost certainly block similar proposals across
the region, and the specter of other courts following
the Fourth Circuit’s lead could chill energyinfrastructure investment more broadly.
The
“sweeping” nature of the decision below warrants
review. See Youngdahl v. Rainfair, Inc., 355 U.S. 131,
137 (1957).
To start, it is no surprise that other pipelines
serving the region are facing similar roadblocks. The
in-process Mountain Valley Pipeline, for instance,
also crosses the Appalachian Trail on Forest Service
land, see 81 Fed. Reg. 71,041, 71,042 (Oct. 14, 2016),
leaving its status uncertain after the decision below.
There is every reason to think future development will
be stymied too. The Appalachian Trail stretches from
Maine to Georgia, and over 1,000 miles—almost half
its length—cross federal lands.12 And these federal
lands are highly concentrated around state lines,
which makes it extremely impractical to re-route
around them: The Trail, for example, spans almost all
of West Virginia’s eastern border.13 Geography thus

12

See Nat’l Parks Conservation Ass’n, Appalachian National
Scenic Trail: A Special Report 1, available at https://www.nps.
gov/appa/learn/management/upload/AT-report-web.pdf.
13

See U.S. Nat’l Parks Srvc., Appalachian Trail Map (last
accessed July 29, 2019), https://nps.maps.arcgis.com/apps/

 20
makes the decision below an effective work-stoppage
order for current and future pipelines in this entire
region. After all, the decision is not about taking a
hard look at the Forest Service’s judgment that a
right-of-way is not “inconsistent with the purposes” of
the Appalachian Trail and forest lands. 30 U.S.C.
§ 185(b)(1). By deeming the Appalachian Trail “lands
in the National Park System” when it crosses national
forests, the court held that no federal agency may
authorize a right-of-way under the Mineral Leasing
Act, no matter how thorough its review.
Nor is the damage limited to the Fourth Circuit.
Properly interpreted, the Mineral Leasing Act’s
category of “lands in the National Park System,” 30
U.S.C. § 185(b)(1), encompasses a national trail only
where it crosses NPS-administered land. See supra
Part I. Current estimates from NPS indicate this
category includes over 1,300 miles of trails.14 Laid
end-to-end, such a barrier would reach from Houston,
Texas, to Harrisburg, Pennsylvania—a significant
distance showing that the exemption has teeth. If,
however, that category is (improperly) defined to
include all NPS-administered trails regardless of
which federal agency manages the underlying land, it
would include an overwhelming majority of NPSwebappviewer/index.html?id=6298c848ba2a490588b7f6d25453e
4e0.
14

U.S. Dep’t of Interior, Nat’l Parks Service, Reference Manual
45: National Trails System 200-01 (Jan. 2019) (“Reference
Manual 45”), available at https://www.nps.gov/subjects/
nationaltrailssystem/upload/Reference-Manual-45-NationalTrails-System-Final-Draft-2019.pdf.

 21
administered trails: over 11,409 miles.15 If that
distance were a straight line—the miles the decision
below transforms into an impassable barrier to energy
development—it would easily stretch the entire
length of the Western Hemisphere, from Anchorage,
Alaska, to Rio Gallegos, Argentina.
Of course, national trails do not run as the crow
flies, which means the damage from the Fourth
Circuit’s interpretation would not be limited to one
coast or region. NPS administers trails over a
winding network of paths that is so convoluted the
agency has not fully measured it yet; the estimates
above include less than two-thirds of the total
National Trail System.16 What is plain, however, is
that national trails crisscross the entire country. The
California Historic Trail, for instance, bisects Nevada
at two points and reaches up the west coast of Oregon,
and it runs almost entirely on federal land. Similarly,
the Old Spanish Historic National Trail cuts a wide
arc across all of Utah, and again lies almost wholly on
federal land. Both trails are administered by NPS.
Reference Manual 45, at 200-01.
The map below illustrates the potential reach of
the Fourth Circuit’s decision. At least 23 of the 30
national trails depicted are administered by NPS, see
Reference Manual 45, at 200-01, and the shaded areas
show how extensively trails cross federal lands:

15

Id.

16

Id.

 22

U.S. Nat’l Park Service, National Trails System 50th
Anniversary Map (2018), available at https://www.
nps.gov/subjects/nationaltrailssystem/upload/Nation
al-Trails-50th-Map-02-09-18.pdf.

 23
The Mineral Leasing Act should not be used to
clog the arteries of the nation’s power grid with over
11,000 miles of newly discovered barriers. Although
courts outside the Fourth Circuit are not bound by the
decision below, investors will likely think twice before
undertaking years of groundwork, environmental
studies, and other costly pre-construction measures
that could be undone by a similar holding. This Court
should intervene to avoid stalling much-needed
infrastructure development nationwide.
C. The Decision Below Undermines Important
Interests Beyond Pipeline Development.
Review is also warranted because the decision
below will disrupt more than pipelines. The decision’s
“significant impact on the relationship between”
States, landowners, and federal agencies warrants
this Court’s review. Dep’t of Interior v. Klamath
Water Users Protective Ass’n, 532 U.S. 1, 7 (2001).

First, the logic of the Fourth Circuit’s decision
would
leave
NPS
responsible
for
crucial
infrastructure functions that it lacks statutory
authority to fulfill. The decision below made a
categorical distinction between trails that are “subject
to laws applicable to the National Forest System” and
those—like the Appalachian Trail—that are
administered by NPS. Pet. App-61. Linking a law’s
applicability to the agency that administers a trail,
however, has consequences beyond the Mineral
Leasing Act.
For example, the Secretary of
Agriculture—and not NPS—may grant rights-of-way
over “lands within the National Forest System” for

 24
“transmission[] and distribution of electric energy,”
and “transmission or reception of radio, television,
telephone, telegraph, and other electronic signals, and
other means of communication.”
43 U.S.C.
§ 1761(a)(4), (5). Yet if land ceases to be part of the
National Forest System when crossed by the
Appalachian Trail for purposes of the Mineral Leasing
Act, the same is likely true under 43 U.S.C. § 1761 as
well.
The Fourth Circuit’s “lands as trails” approach
could thus disable any federal agency from being able
to authorize power lines and telecommunications
infrastructure across the Appalachian Trail, as well
as other trails that cross forest land. It is highly
unlikely Congress intended to create a National Trail
System-sized obstacle course for the “nearly 160,000
miles of high-voltage power lines, and millions of lowvoltage power lines”17 that make up the nation’s
power grid. Yet left to stand, the decision below could
call into question the legality of—by a conservative
estimate, looking at high-voltage lines only in just 39
States—over 101 existing intersections, as well as
every intersection that will be needed in the future.18

17

U.S. Energy Information Admin., U.S. Electric System Is
Made Up Of Interconnections And Balancing Authorities (July
20, 2016), available at https://www.eia.gov/todayinenergy/
detail.php?id=27152.
18

U.S. Dep’t Energy, Env. Sci. Div., Electricity Transmission,
Pipelines, and National Trails: An Analysis Of Current And
Potential Intersections On Federal Lands In The Eastern United

 25

Second, the decision below could undermine
protections for Park System lands that are traversed
by national trails NPS does not administer. The
Fourth Circuit thought it would “def[y] logic” to “give
the Forest Service more authority than NPS on
National Park System Land,” Pet. App-60, but the
court’s reasoning requires exactly that when applied
to Forest Service-administered trails. Just as (under
the decision below), tying administration of a trail to
management of the land it crosses creates a 1,000mile sliver of Park Service land in the George
Washington National Forest, the opposite could occur
for trails the Forest Service administers when they
cross national parks.
Take for instance the Continental Divide National
Trail running through Yosemite National Park, which
the Forest Service administers.
16 U.S.C.
§ 1244(a)(5). To say that laws applicable to the Forest
Service control the land beneath this trail could
effectively limit NPS’s authority over miles of land
that is indisputably part of the National Park System.
At a minimum, this approach would introduce
jurisdictional questions and new inefficiencies as
competing agencies manage the same lands. The
Fourth Circuit should have rejected an interpretation
that would “lead to absurd results . . . or would thwart
the obvious purpose of the statute.” In re Trans
Alaska Pipeline Rate Cases, 436 U.S. 631, 643 (1978)
(alteration in original; quotations omitted).
States,

Alaska, And Hawaii 40 (2016), available
https://publications.anl.gov/anlpubs/2016/11/131478.pdf.

at

 26

Finally,

the decision below raises serious
questions about the sovereignty and ownership
interests of States and other non-federal entities that
own land the national trails cross, including their
ability to issue rights-of-way for pipeline development
on their own lands. The Mineral Leasing Act speaks
only to “lands owned by the federal government,” 30
U.S.C. § 185(b)(1), but the decision below may sweep
broader: It purports to subordinate “other affected
State and Federal agencies [that] manage trail
components under their jurisdiction” to NPS’s
jurisdiction. Pet. App-60 (first emphasis added,
quotation omitted).
After all, if authority to
administer a trail is truly enough to transfer the
underlying land into the Park System, then the
decision could be read to apply not just to forest lands,
but to the more than 8,200 miles of national trails that
fall on state land as well. Reference Manual 45, at
200-01. It goes without saying that neither the Trails
Act nor the Parks Service Act contains the “clear
statement” that would have been necessary for
Congress to “radically readjust the balance of state
and national authority” in this way—especially
without any notice, negotiation, or compensation.
Bond v. United States, 572 U.S. 844, 858 (2014)
(quoting BFP v. Resolution Trust Corporation, 511
U.S. 531, 544 (1994)).
Likewise, the decision below could call into
question the over 50 rights-of-way that already exist
across segments of the Appalachian Trail. The court
concluded that the Mineral Leasing Act does not allow
pipeline easements over the Trail in the national

 27
forests because the Trail is “land[] in the National
Park System.” 30 U.S.C. § 185(b)(1). There is no
limiting principle in the decision to keep the same
result from applying where the underlying land owner
is not the Forest System, but a State, a local entity, or
a private landowner. In any of these scenarios, the
Trails Act and Mineral Leasing Act’s prohibition on
rights-of-way within Park System land could be
controlling. The Court should not allow this result,
nor the serious disruption to our nation’s energy grid
that challenges to the legality of existing rights-ofway could unleash.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
PATRICK MORRISEY

Attorney General

OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021

LINDSAY S. SEE

Solicitor General
Counsel of Record

THOMAS T. LAMPMAN

Assistant Solicitor
General

Counsel for Amicus Curiae State of West Virginia
July 29, 2019

 28

Additional Counsel
STEVE MARSHALL
Attorney General
State of Alabama

WAYNE STENEHJEM
Attorney General
State of North Dakota

KEVIN G. CLARKSON
Attorney General
State of Alaska

DAVE YOST
Attorney General
State of Ohio

CHRISTOPHER M. CARR
Attorney General
State of Georgia

MIKE HUNTER
Attorney General
State of Oklahoma

LAWRENCE G. WASDEN
Attorney General
State of Idaho

JASON R. RAVNSBORG
Attorney General
State of South Dakota

DEREK SCHMIDT
Attorney General
State of Kansas
JEFF MARTIN LANDRY
Attorney General
State of Louisiana
TIM FOX
Attorney General
State of Montana
DOUG PETERSON
Attorney General
State of Nebraska

KEN PAXTON
Attorney General
State of Texas
SEAN REYES
Attorney General
State of Utah
BRIDGET HILL
Attorney General
State of Wyoming