ENVIRONMENT

United States Forest Service v. Cowpasture River Preservation Association

Issues

Does the Appalachian Trail constitute National Park land, such that only Congress may grant a pipeline right-of-way underneath it?

These two consolidated cases ask the U.S. Supreme Court to determine whether the Mineral Leasing Act authorizes the United States Forest Service to grant a right-of-way under the national trail system. The U.S. Court of Appeals for the Fourth Circuit held that the Forest Service lacks authority to grant a right-of-way for a natural gas pipeline under the Appalachian Trail, which is administered by the National Park Service. The Forest Service and Atlantic Coast Pipeline, the respective Petitioners in each case, contend that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way under any trail that crosses through national forest land owned by the Forest Service. The Respondents, Cowpasture River Preservation Association et al., counter that the Appalachian Trail is National Park land and, accordingly, only Congress—not the Forest Service—may grant a right-of-way. The Court’s decision in these cases will influence future pipeline development, environmental preservation, and the economies of communities along the Appalachian Trail.

Questions as Framed for the Court by the Parties

Whether the United States Forest Service has the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests.

 

On September 18, 2015, Atlantic Coast Pipeline, LLC (“Atlantic”) applied to the Federal Energy Regulatory Commission (“FERC”) to own, operate, and construct the Atlantic Coast Pipeline (“ACP” or “the pipeline”). Cowpasture River Preservation Ass’n et al. v. U.S.

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Washington v. United States

Issues

Do treaties between the State of Washington and Native American Tribes require Washington to protect the salmon population from land development; and, if so, must Washington pay to undo the development when the development was ordered by the United States and undoing it may not increase the salmon population?

In this case, the Supreme Court will decide whether treaties between the State of Washington (“Washington” or “the state”) and Native American tribes (“the Tribes”) guaranteeing the Tribes the right to fish in certain areas of the state require Washington to protect salmon against despoliation from land development. The present case arises out of a series of barrier culverts—tunnels that allow water to pass underneath roads but prevent fish from passing—that Washington constructed, some pursuant to federal specifications. The culverts prevent salmon from returning, thus inhibiting the Tribes’ ability to fish. Washington argues that the treaties were not created to address such environmental concerns. Moreover, Washington argues that it is not fair for it to be forced to replace the culverts, because the culverts were part of a federally-initiated roadbuilding program, and their design was suggested by the United States. Further, Washington argues that replacing the barrier culverts would not increase the salmon population. The United States and the Tribes disagree, asserting that the parties to the treaties intended to protect the salmon population against man-made despoliation. The United States and the Tribes also assert that no one forced Washington to create the culverts using the design that blocks salmon re-entry and that replacing those culverts would benefit the salmon population. At stake are the future of the salmon populations near the Tribes and potential limitations on state powers to make regulatory decisions.

Questions as Framed for the Court by the Parties

(1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

In the mid-eighteenth century, Native American Tribes of the Pacific Northwest entered into a series of treaties whereby they relinquished territory but were guaranteed a right to off-reservation fishing. United States v. Washington, No. 13-35474, at 11–12 (9th Cir. 2017). Every treaty contained a “fishing clause,” which guaranteed “the right of taking fish, at all usual and accustomed grounds and stations . . .

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