The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

SCOTUS Splits 7-2 Over Federal Easement Law

Justices Thomas and Sotomayor disagree about how federal law construes a "right of way"


Outside the muddy waters of the Takings Clause, the Supreme Court seldom decides property disputes. On Monday, the Supreme Court decided a fun case with a funny title: United States Forest Service v. Cowpasture River Preservation Assn. The facts were quite complicated. But at bottom, the case turned on whether "the Forest Service had authority under the Mineral Leasing Act to grant a natural-gas pipeline right-of-way through lands in the George Washington National Forest traversed by the Appalachian Trail."

Justice Thomas has this pithy summary, with a delightful pun at the end:

In sum, read in light of basic property law principles, the plain language of the Trails Act and the agreement between the two agencies did not divest the Forest Service of jurisdiction over the lands that the Trail crosses. It gave the Department of the Interior (and by delegation the National Park Service) an easement for the specified and limited purpose of establishing and administering a Trail, but the land itself remained under the jurisdiction of the Forest Service.To restate this conclusion in the parlance of the LeasingAct, the lands that the Trail crosses are still "Federal lands," 30 U. S. C. §185(a), and the Forest Service may grant a pipeline right-of-way through them—just as it granted a right-of-way for the Trail. Sometimes a complicated regulatory scheme may cause us to miss the forest fort he trees, but at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.

Justice Sotomayor, dissented, joined by Justice Kagan. She responded to the majority:

The Court's analysis of private-law easements is also unconvincing. In the Court's words, a private-law easementis "a limited privilege" granted to "a nonowner" of land. Ante, at 7; see also ibid. (adding that "the grantor of [an] easement retains ownership" over the land and that "easements are not land, they merely burden land that continuesto be owned by another"). But as the Court recognizes, "theFederal Government owns all lands involved here," ante, at 8, so private law is inapposite. Precisely because the Government owns all the lands at issue, it makes little sense to ask whether the Government granted itself an easement over its own land under state-law principles. Between agencies of the Federal Government, federal statutory commands, not private-law analogies, govern.

I am not familiar with this statutory scheme. Generally, when a person acquires an easement over his own land, the easement merges into the land, and the person has fee simple. Is this doctrine relevant? If anyone is knowledgeable, please email me.

One final note about Cowpasture. The majority opinion, which was joined by Chief Justice Roberts and Justice Kavanaugh, offered this citation of Whitman v. American Trucking.

Under our precedents, when Congress wishes to "'alter the fundamental details of a regulatory scheme,'" as respondents contend it did here through delegation, we would expect it to speak with the requisite clarity to place that intent beyond dispute. See Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 15) (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001)). We will not presume that the act of delegation, rather than clear congressional command, worked this vast expansion of the Park Service's jurisdiction and significant curtailment of the Forest Service's express authority to grant pipeline rights-of-way on "lands owned by the UnitedStates." 30 U. S. C. §185(b).

Bostock v. Clayton County, also decided on Monday, rejected the elephants-in-mouseholes argument in Bostock.

The weighty implications of the employers' argument from expectations also reveal why they cannot hide behindthe no-elephants-in-mouseholes canon. That canon recognizes that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions." Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can't deny that today's holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where's the mousehole? Title VII's prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress's key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff 's injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.

Apparently, Elephants can't hide in forests, and never hid in Title VII.