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.


NEXT: SCOTUS grants a "Motion for reconsideration of order denying leave to proceed in forma pauperis filed by petitioner"

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  1. “Generally, when a person acquires an easement over his own land, the easement merges into the land, and the person has fee simple.”

    Merger of easement estate into a fee simple interest is a question of intent of the parties. I doubt that the Park Service and Forest Service created a trail easement which would immediately cease to exist.

    You have to first read the easement document. Does not look like anyone on the Court did!

    Unsurprising, the few S/C real property cases that exist are historically awful because literally no one ever has any experience in the area.

    1. Construction noise will affect Appalachian Trail use 24 hours a day. See App. 79–80. Atlantic’s machinery (including the artificial lights required to work all night) will dim the stars visible from the Trail.

      Looking for pathetic issues to shut down progress is the sign of an empire in decline, more concerned about lording over its own people than in keeping the trade routes open.

      This is like something a corrupt local official in a comedy would say, when blocking business and waiting for an envelope to be slipped into his palm. Which is the way of over half the world.

      1. The Appalachian Trail ends at Baxter State Park and one of the big problems there is that those hiking the trail refuse to use the restroom facilities that the State of Maine has provided — instead defecating throughout the woods.

        This is a real problem when families with children attempt to use the park — which they (Maine Taxpayers) and not the hikers are paying for in the first place. So I don’t have a whole lot of sympathy for what is, at most, a brief dimming of starlight on 1/2,200th of the trail. A healthy hiker can travel 4 miles per hour, that’s at most 15 minutes you get to see/hear the construction. Wow…

        1. Having hiked the length of the AT (the tenth anniversary of my start in Maine is a week away), I offer these expert opinions :

          (1) I doubt seriously there’s a problem of capricious defecation in Maine or elsewhere. The “restroom facilities that the State of Maine has provided” are usually privies and can be a bit grungy, but it still beats dropping into a squat with a fistful of toilet paper, particularly in the pouring rain (which happened multiple times). Plus, I once had the experience of doing my business a bit too close to the trail and then realizing a young woman hiker must have witnessed the act, though she was much too gracious to mention it. In short, I think your Maine Deification Scandal is full of …….

          (2) I was a verrryyyy slow hiker, so maybe it’s not my place to say, but your 4 miles an hour number seems a bit high. That would translate into plus-30 mile distances in a typical day of hiker business, which probably isn’t the average (though many people do those numbers).

          1. Having followed Ed’s commenting oeuvre, I doubt seriously everything he says.

            1. I’m not even sure if the Appalachian Trail ends in Maine any more.

    2. I’m not sure I see the relevance. If there is in fact an easement, it would still leave the land under the ownership of the Forest Service, for the reasons explained by Justice Thomas. And if the easement “immediately cease[d] to exist”, then obviously the land would remain owned by the Forest Service.

      (A larger question might be why the Forest Service and Park Service are different entities at all, and why they are housed in different agencies.)

    3. Merger isn’t a question of intent of parties, nor the terms of a document. At least not in my state. There are not parties, there is only one party. It happens when you come to own both the dominant and servient estates.

      I doubt this is relevant here anyway.

  2. What’s not being mentioned here is that the Appalachian Trail is a 2,200 mile North/South line from Maine to Georgia which must be crossed in any commerce of goods or persons between the Atlantic coastline and interior of the country.

    What the econazis have done is attempted to take what was intended as a recreational trail and use it as a barrier to human progress. They fought I-93 crossing it in Franconia_Notch, NH and even now only one side of the divided highway has been built (which defeats the safety aspects of a divided highway).

    What they wanted to do here was prevent a gas pipeline crossing some 600(?) feet under the trail, something that no one would ever know was there, and not because it would damage the trail but because they didn’t want people to be able to use the gas.

    These are the same type of people who lie down in front of coal trains or block 8-lane highways during rush hour. See: Someone like Clarence Thomas can see through them and that, I have no doubt, was part of his decision.

  3. The key question is whether the Department of Interior and/or the Forest Service can discriminate against mice in favor of elephants. But perhaps we can interpret the word “mouse” to include “elephant” and render the whole point moot.

    1. As to “elephants”, there is an article in today’s Federalist arguing that the LBGT community actually *lost* yesterday because “[b]y linking the rights of gay and transgender people to sex, the left has bound itself to whatever definition ‘sex’ takes on.”


      It’s an interesting argument because if “sex” becomes meaningless, then you can’t discriminate on the basis of it.

  4. Under Texas law, an easement acquired by the fee owner merges into the fee. How that principle applies between federal agencies, I have no idea.

    As I recall from my days at the DOJ in the late ’70s, principles such as this would be controlled by federal common law. But to determine federal common law, you look to the law of the state where the problem arose, which always struck me as strange. The 70’s were a long time ago, both in terms of taxing my memory and in terms of evolving case law.

    1. I suppose Texas law isn’t quite that open and shut. When developing their own properties, cities for example may impose utility easements on that property even for municipally owned utilities.

    2. When someone acquires an easement over their own land what they are doing is reabsorbing the property right back into the parcel.

      But take the case of a property owner splitting a piece of land into 2 parcels, and granting an easement from one parcel to another. The fact that the two parcels have the sa!e owner makes no difference, the easement goes with the parcel, it would defeat the whole purpose of splitting the parcel and granting the easement if “the easement merges into the land, and the person has fee simple.”

      The question as Thomas said was whether Congress granted a right of way or ownership, not a question of whether one right can confer ownership.

      1. There is no purpose to begin with for a property owner to split a piece of land into 2 parcels and grant an easement over one of them, unless he is conveying one of the parcels to someone else.

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