for the twelfth circuit c.a. no. 19-02345 · team 6 united states court of appeals for the twelfth...
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Team 6
UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT
C.A. No. 19-02345 Mammoth Pipeline, LLC, Petitioner, -V.- Vandalia Department of Environmental Conservation and West Vandalia Division C.A. No. 19-02345 of Natural Resources, Respondents, Citizens Against Pipelines, Intervenor. State of Franklin, Appellant, Citizens Against Pipelines, D.C. No. 19-0682 Intervenor, -V.- Mammoth Pipeline, LLC, Appellee. Citizens Against Pipelines, Petitioner, -V.- U.S. Department of Agriculture, USDA Docket No. 17-031 Respondent, Mammoth Pipeline, LLC,
Intervenor.
BRIEF OF MAMMOTH PIPELINE, LLC
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TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................................... iii
STATEMENT OF JURISDICTION ............................................................................................1 STATEMENT OF THE ISSUES PRESENTED ..........................................................................1
STATEMENT OF THE CASE ...................................................................................................2 SUMMARY OF THE ARGUMENT...........................................................................................4
ARGUMENT ..............................................................................................................................6 I. MAMMOTH’S WITHDRAWAL AND RESUBMISSION OF ITS SECTION 401
CERTIFICATION REQUEST DID NOT RESTART THE ONE-YEAR WAIVER PERIOD. .............................................................................................................................6 A. The Waiver-and-Resubmission Approach to Section 401 Certification Contravenes the
Plain Language of the Statute and Ignores the Purpose of the Waiver Period. .................6
1. Plain Language ............................................................................................................7 2. Public Policy ............................................................................................................. 11
II. THE CORPS’ PUBLIC NOTICE IS UNDESERVING OF AUER DEFERENCE BECAUSE THE CORPS’ REGULATION UNAMBIGUOUSLY GRANTS STATES AUTHORITY TO DETERMINE WHAT CONSTITUTES A “VALID REQUEST” FOR CERTIFICATION................................................................................................................. 13
A. The Corps’ Regulation is Unambiguous. .................................................................... 14 III. SECTION 7(h) OF THE NGA DELEGATES THE FEDERAL GOVERNMENT’S EMINENT DOMAIN AUTHORITY OVER STATE LAND TO HOLDERS OF CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY. .................................. 18
A. The Twelfth Circuit Does Not Have Jurisdiction to Hear Franklin’s Challenge to FERC’s Order. ................................................................................................................................ 19 B. NGA Section 7(h) Has Historically Been Interpreted to Permit Certificate Holders to Condemn State Lands Without Limit. ................................................................................ 20
C. The Legislative History of the NGA and the FPA Support Mammoth’s Interpretation. .. 22 D. State Sovereign Immunity is Irrelevant in In Rem Condemnation Actions..................... 23
IV. UNDER THE MLA THE SECRETARY OF AGRICULTURE HAS THE AUTHORITY TO GRANT CONSERVATION EASEMENTS AND RIGHTS-OF-WAY ON LAND THAT IS ADJACENT TO TRAILS ADMINISTERED BY THE SECRETARY OF THE INTERIOR. ........................................................................................................................... 26
A. The Conservation Easement Held by the USDA Does Not Confer National Park Status Upon the Land and Does Not Prevent Pipeline Construction. ............................................. 27 B. Under NTSA, both the Secretary of Agriculture and the Secretary of Interior May Grant Easements and Rights-of-Way Along Any Part of the National Trail System ..................... 28
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C. Under the MLA, the Secretary of Agriculture was the “Appropriate Agency Head” to Approve the Right-of-Way for the Mammoth Pipeline Because USDA has Jurisdiction over the Homestead Property. .................................................................................................... 29
CONCLUSION ......................................................................................................................... 30
CERTIFICATE OF SERVICE .................................................................................................. 31
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TABLE OF AUTHORITIES
Cases
AES Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir. 2009) ..................................... passim
Alcoa Power Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir. 2011) ..................................... 11
Ark. La. Gas Co. v. Hall, 453 U.S. 571 (1981)........................................................................... 21
Auer v. Robbins, 519 U.S. 452 (1997) ................................................................................. 13, 14
Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775 (1991) ................................... 25
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)....................................................... 14
Cal. Trout v. Hoopa Valley Tribe; No. 19-257, 2019 U.S. LEXIS 7277 (Dec. 9, 2019) ................7
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) ...................................................... 24
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006) ................................................................... 24
Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ............................................... 9, 13, 15
City of Arlington v. FCC, 569 U.S. 290 (2013) .......................................................................... 14
City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958) ...................................... 19, 21, 22
Cowpasture River Pres. Ass'n v. Forest Serv., 911 F.3d 150 (4th Cir. 2018), cert. granted sub nom., 140 S. Ct. 36 (2019) ............................................................................................... 28, 30
Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) ........................................... passim
Howard W. Heck & Assocs. v. United States, 134 F.3d 1468 (Fed. Cir. 1998) ........................... 15
In re PennEast Pipeline Co., LLC, 938 F.3d 96 (3d Cir. 2019) ...................................... 18, 23, 25
Keating v. FERC, 927 F.2d 616 (D.C. Cir. 1991) .......................................................... 16, 17, 18
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) ............................................................................... 13, 14
Kohl v. United States, 91 U.S. 367 (1875) ................................................................................. 20
Luxton v. N. River Bridge Co, 153 U.S. 574 (1874) ................................................................... 20
Millenium Pipeline Co., L.L.C. v. Seggos, 860 F.3d 696 (D.C. Cir. 2017) ............................ 11, 12
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N.Y. State Dep’t of Envtl. Conservation, 884, F.3d 450 (2d Cir. 2018) ........................... 7, 8, 9, 10
NAACP v. Fed. Power Comm’n, 425 U.S. 662 (1976) ............................................................... 23
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ......................9
No Oilport! v. Carter, 520 F.Supp. 334 (W.D.Wash. 1981) ....................................................... 27
Pauley v. Bethenergy Mines, 501 U.S. 680 (1991) ..................................................................... 15
Shaffer v. Heitner, 433 U.S. 186 (1977) ..................................................................................... 23
Sierra Club v. State Water Control Bd., 898 F.3d 383 (4th Cir. 2018) .........................................7
Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004)............................................ 24
Thatcher v. Tennessee Gas Transmission Co., 180 F.2d 644 (5th Cir. 1950) .............................. 20
United States Dep’t of Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992) ................................... 16
United States v. 6.45 Acres of Land, 409 F.3d 139 (3d Cir. 2005) .............................................. 24
United States v. New Mexico, 438 U.S. 696 (1978) .................................................................... 29
Wash. Dep’t. of Game v. Fed. Power Comm'n, 207 F.2d 391 (9th Cir. 1953) ............................. 22
Statutes
15 U.S.C. § 717f(h) ....................................................................................................... 18, 20, 21
15 U.S.C. § 717r(b) ................................................................................................................... 19
15 U.S.C. § 717r(d)(1) ................................................................................................................ 1 16 U.S.C. § 1244(a) .................................................................................................................. 29
16 U.S.C. § 1246(a)(1)(A) ......................................................................................................... 28
16 U.S.C. § 1248(a) ...................................................................................................... 28, 29, 30
28 U.S.C. § 1291 .........................................................................................................................1
28 U.S.C. § 1331 .........................................................................................................................1
30 U.S.C. § 185(a) .................................................................................................................... 29
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30 U.S.C. § 185(b)(1) .................................................................................................... 26, 27, 29
33 U.S.C. § 1341(a)(1) ........................................................................................................ 6, 7, 8
54 U.S.C. § 100501 ................................................................................................................... 26
Section 7(h)........................................................................................................................ passim
Regulations
23 C.C.R. § 3856(h) .................................................................................................................. 16
33 C.F.R. § 325.2(b)(1)(ii) ................................................................................................. passim
1 FERC ¶ 63,025 (1977)............................................................................................................ 21
102 FERC ¶ 61,054 (2003) ........................................................................................................ 24
129 FERC ¶ 61,245 (2009) ........................................................................................................ 10
160 FERC ¶ 61,065 (2012) ........................................................................................................ 10
162 FERC ¶ 61,014 (2017) ........................................................................................................ 10
51 Fed. Reg. 41,206 (1986) ....................................................................................................... 17
30 T.A.C. § 279.4(b) ................................................................................................................. 16
Constitutional Provisions
U.S. Const. amend. XI............................................................................................................... 27
Other Authorities
Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes . 8, 10
Cooley on Const. Limitations (4th ed.) ...................................................................................... 20
H.R. Rep. 102-474 at 99 (1992)................................................................................................. 22
Natural Gas Symposium: Symposium Before the S. Comm. on Energy & Natural Res., 109th Cong. 41.......................................................................................................................... 11, 26
Reg'l Energy Reliability & Sec.: DOE Auth. to Energize the Cross Sound Cable: Hearing Before
the H. Subcomm. on Energy & Air Quality, 108th Cong. 8 (2004) ......................................... 11
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S. Rep. No. 80-429, at 2-3 (1947) .............................................................................................. 22
The Concise Oxford American Dictionary (11th ed. 2006) ........................................................ 15
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STATEMENT OF JURISDICTION
Pursuant to 15 U.S.C. § 717r(d)(1) of the Natural Gas Act (“NGA”), the United States
Court of Appeals for the Twelfth Circuit has jurisdiction over the denial of Mammoth Pipeline,
LLC’s Section 401 certification requests. The United States District Court for the District of
Columbia had original jurisdiction over Mammoth’s condemnation order pursuant to 28 U.S.C. §
1331, and the Twelfth Circuit has jurisdiction to hear an appeal from the final judgment of the
District Court pursuant to 28 U.S.C. § 1291. On December 1, 2019, Mammoth, Citizens Against
Pipelines (“CAP”), Vandalia Department of Environmental Conservation, West Vandalia
Division of Natural Resources, and the State of Franklin jointly filed a motion to have the actions
consolidated for decision. On December 21, 2019, the Twelfth Circuit granted the motion.
STATEMENT OF THE ISSUES PRESENTED 1. Whether Vandalia waived its Clean Water Act (“CWA”) Section 401 certification
authority when it required Mammoth to withdraw and resubmit its water quality certification
request.
2. Whether the Army Corps of Engineers’ (“Corps”) interpretation of its own regulation,
33 C.F.R. § 325.2(b)(1)(ii), requiring that a state act on a CWA Section 401 certification request
within 60 days of receipt of the request, is deserving of Auer deference.
3. Whether Mammoth is precluded from condemning land in the State of Franklin
because of Franklin’s claim of Eleventh Amendment sovereign immunity.
4. Whether the Secretary of Agriculture had authority to grant Mammoth a right-of-way
across the Homestead Property.
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STATEMENT OF THE CASE The Federal Energy Regulatory Commission (“FERC”) approved the Mammoth Pipeline
Project on September 1, 2017, issuing a certificate to Mammoth, requiring, among other
conditions, that it receive water quality certifications pursuant to Section 401 of the CWA from
the states of Vandalia and West Vandalia. Record at 4. One month later, Mammoth filed its 18-
page certification request, with Vandalia. Id. Nearly one year later, on September 29, 2018,
Vandalia requested Mammoth withdraw and resubmit its request. Id. The next day, Mammoth
withdrew its request, and on November 1, 2018, it resubmitted a 97-page certification request
(not including appendices and maps). Id.
On September 29, 2019, nearly two years after the initial request for certification,
Vandalia again requested that Mammoth withdraw and resubmit its application. Id. Inexplicably,
Vandalia pointed to no new information needed from Mammoth. Id. Mammoth refused to
withdraw its request, and on October 31, 2019, Vandalia formally denied the request, bringing
the project to a halt. Id.
In West Vandalia, things did not improve. Because the work in West Vandalia would
require a Section 404 permit for filling several large wetlands, Mammoth’s Section 401
certification involved the Corps. R. at 5. Mammoth initially submitted its request on January 8,
2018, but because of the issues in Vandalia, made a minor adjustment to its route, which was
received by West Vandalia on July 8, 2018. Id. Mammoth never withdrew its request because
common practice in West Vandalia allowed pipelines to amend their proposed route without
restarting the one-year waiver period. Id. Meanwhile, on September 28, 2018, the Corps and
FERC issued a joint public notice (“Notice”) that, among other things, stated that West Vandalia
did not receive a valid request for certification until July 8, 2018 and that the agency had a year
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from that date to consider Mammoth’s request. R. at 6. On July 7, 2019, one day prior to the
one-year anniversary of Mammoth submitting its modified route, West Vandalia denied
Mammoth’s Section 401 request. R. at 5.
Additionally, after being granted a certificate of public convenience and necessity from
FERC to build a right-of-way, Mammoth attempted to condemn property, consisting of 20,000
non-wildlife refuge acres, belonging to the state of Franklin. R. at 7. Franklin moved to block
Mammoth’s condemnation, claiming that Mammoth’s eminent domain authority violated the
state’s sovereign immunity under the Eleventh Amendment. R. at 12.
Relatedly, Mammoth approached the Homestead Property’s owners, a historical property
neighboring the Shandaliah Trail, and United States Department of Agriculture (“USDA”),
which owns a conservation easement on the property, to discuss obtaining a 75-foot right-of-way
across the USDA’s easement. R. at 9. USDA negotiated this easement to protect the viewshed
of the Shandaliah Trail at the request of Department of Interior’s (“DOI”) National Park Service
(the “Service”), which administers the Shandaliah Trail. Id. However, the right-of-way would
affect the viewshed from the Shandaliah Trail. Id. Despite this, the Secretary of Agriculture
granted the right-of-way. Id.
Procedural History
On September 30, 2019, the District Court granted Mammoth’s application for orders of
condemnation and for preliminary injunctive relief, rejecting Franklin’s Eleventh Amendment
argument. R. at 12. Franklin and CAP then moved for reconsideration of the District Court’s
judgment and moved to stay the orders of condemnation. Id. The District Court denied the
requested relief. R. at 13.
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On December 1, 2019, Mammoth sued Vandalia and West Vandalia in the Twelfth
Circuit Court of Appeals for denial of its Section 401 request, alleging both of their denials were
untimely. R. at 12. CAP intervened, arguing the opposite. Id. That same day, CAP filed suit in
the Twelfth Circuit claiming that the Secretary of the Interior, not the Secretary of Agriculture,
had the authority to grant the easement and right-of-way. Mammoth intervened in that action in
support of USDA. R. at 13. After the District Court rejected Franklin and CAP’s arguments,
both parties appealed the decision to the Twelfth Circuit.
SUMMARY OF THE ARGUMENT Vandalia waived its Section 401 certification authority by denying Mammoth Pipeline’s
certification request more than one-year after its initial application, and Mammoth’s withdrawal
and resubmission does nothing to alter this conclusion. The withdrawal-and-resubmission
approach contradicts the plain language of the CWA, ignores important legislative history
indicating the need to avoid delayed action on requests, and gives states the power to delay
interstate projects indefinitely, a power Congress did not intend. To maximize the intentions of
the legislature and the purpose of Section 401, this Court should adopt the approach taken by the
D.C. Circuit in Hoopa Valley Tribe v. FERC and reject the withdrawal-and-resubmission
approach.
Additionally, West Vandalia waived its Section 401 certification authority by failing to
act on Mammoth’s request within the sixty-day period required by 33 C.F.R. § 325.2(b)(1)(ii) of
the Corps’ regulations. The Corps’ Notice stating that the waiver period began on July 8, 2018,
nearly six months after the initial request, should not be afforded Auer deference because it
directly contradicts the unambiguous language of § 325.2(b)(1)(ii). Pursuant to the Supreme
Court’s recent decision in Kisor v. Wilkie, after applying the traditional tools of statutory
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construction, it is clear that the regulation unambiguously gives the states exclusive right to
determine what constitutes a “valid request” for Section 401 certification. Therefore, the Corps’
Notice is invalid and should not be given Auer deference.
On the question of Mammoth’s ability to condemn state land, the Eleventh Amendment
does not bar certificate holders from condemning state land under Section 7(h) of the NGA.
First, Section 7(h), as originally enacted, permitted certificate holders to condemn state lands
without limitation. The absence of any limiting language in the NGA indicates Congress’ intent
that state lands be condemned for the building of pipelines. Second, Congress amended Section
7(h) to provide that certificate holders could no longer condemn state lands unless there has been
a public hearing. By adding conditions to the condemnation of state land, Congress explicitly
recognized that state land may, in fact, be condemned. Third, condemnation actions are in rem
and therefore outside the scope of the Eleventh Amendment, which only provides sovereign
immunity from suits “in law and equity.”
Furthermore, the Secretary of Agriculture had the authority to approve both the easement
and the right-of-way on the Homestead Property. Under the National Trail System Act
(“NTSA”), the Secretary of Agriculture had the authority to negotiate the Homestead Property
easement because the Secretary of the Interior only has primary authority over the Shandaliah
Trail itself, not lands adjacent to it, and both Secretaries have equal authority to grant easements
and rights-of-way along any trail in the National Park System. Under the Mineral Leasing Act
(“MLA”), the prohibition on pipeline construction on specific kinds of federal land, including the
National Park System, does not extend to the Homestead Property because that property was
never incorporated into the National Park System. Furthermore, the easement on the property is
insufficient to warrant protection. Finally, the Sectary of Agriculture was the appropriate agency
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head to grant the right-of-way for the Mammoth pipeline because USDA holds the easement on
the property, and NTSA grants it jurisdiction over land adjacent to the National Park System.
ARGUMENT I. MAMMOTH’S WITHDRAWAL AND RESUBMISSION OF ITS SECTION 401
CERTIFICATION REQUEST DID NOT RESTART THE ONE-YEAR WAIVER PERIOD.
A. The Waiver-and-Resubmission Approach to Section 401 Certification
Contravenes the Plain Language of the Statute and Ignores the Purpose of the Waiver Period.
To conduct a project or activity that may result in “any discharge” into navigable waters,
an individual or organization must “provide the [Federal] licensing or permitting agency a
certification from the State in which the discharge originates or will originate,” verifying that the
activity will not violate state water quality standards. 33 U.S.C. § 1341(a)(1). If the state fails or
refuses to act on the certification within a reasonable period of time, not to exceed one year
“after receipt of such request, the certification requirements of [Section 401] shall be waived.”
Id. Until this certification has been obtained or waived, the federal agency may not issue a
license or permit, and the project will not move forward. See id.
Despite the clarity with which the statute sets the one-year time limit for action, some
states have adopted the practice, as is relevant here, of drawing out the approval period by
requiring the applicant to withdraw and resubmit his or her application repeatedly, then claiming
that this resets the one-year period. See Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir.
2019), cert. denied, 2019 U.S. LEXIS 7277 (Dec. 9, 2019); AES Sparrows Point LNG v. Wilson,
589 F.3d 721 (4th Cir. 2009). It does not.
As a preliminary matter, asking for withdrawal and resubmission is not an “act” under the
statute. A state receiving a Section 401 certification request has four potential courses of action:
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“it may grant a certificate without imposing any additional conditions; grant it with additional
conditions; deny it; or waive its right to participate in the process.” Sierra Club v. State Water
Control Bd., 898 F.3d 383, 388 (4th Cir. 2018); see also N.Y. State Dep’t of Envtl. Conservation,
884, F.3d 450, 456 (2d Cir. 2018) (holding that if a state deems an application inadequate, it may
deny the application without prejudice). Like the Second Circuit has said in reference to
withdrawal, “[i]f a state deems an application incomplete, it can simply deny the application
without prejudice – which would constitute ‘acting’ on the request[.]” Id.
But the circuit courts disagree as to the validity of the withdrawal-and-resubmission
approach. The D.C. Circuit recently rejected a withdrawal-and-resubmission agreement
allowing Section 401 certification to be delayed nearly thirteen years. See Hoopa Valley Tribe,
913 F.3d at 1099. On the other hand, the Fourth Circuit, in AES Sparrows Point LNG, LLC, v.
Wilson, addressing this question, granted Chevron deference to the Corps’ interpretation of
Section 401 requiring a “valid” request before the beginning of the one-year clock. See AES
Sparrows Point LNG, LLC v. Wilson, 589 F.3d at 729. The Supreme Court has not answered this
specific question, recently denying certiorari for an appeal of Hoopa Valley Tribe. See Cal.
Trout v. Hoopa Valley Tribe; No. 19-257, 2019 U.S. LEXIS 7277 (Dec. 9, 2019).
This Court, however, should reject the withdrawal-and-resubmission approach for two
reasons. First, Section 401 requires only that a “request” for certification be submitted and does
not add qualifying language such as “valid” or “complete.” 33 U.S.C. §1341(a)(1).
Furthermore, Congress enacted the waiver provision of Section 401 for the specific purpose of
avoiding state delay of federal projects. The withdrawal-and-resubmission approach ignores
both of these realities.
1. Plain Language
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The language of Section 401 is clear: “[i]f the State…fails or refuses to act on a request
for certification, within a reasonable period of time (which shall not exceed one year) after
receipt of such request, the certification requirements of [Section 401] shall be waived[.]” 33
U.S.C. 1341(a)(1) (emphasis added). The statute “outlines a bright-line rule regarding the
beginning of review,” namely, that receipt of an application is sufficient to begin the one-year
period, completed or not. N.Y State Dep’t of Envtl. Conservation, 884 F.3d at 455. Requiring a
valid request, as Vandalia did, reads additional language into the statute’s text.
Recently the D.C. Court of Appeals noted, whether a withdrawal-and-resubmission
scheme restarts the one-year period is “an undemanding inquiry” because the text of the statute
lends itself to one conclusion as to its true meaning – that “a full year is the absolute maximum”
before which an agency must act on a certification request or waive its authority under Section
401. Hoopa Valley Tribe, 913 F.3d 1104. This is the case whether a valid or complete request
has been received or not. See N.Y. State Dep’t of Envtl. Conservation, 884 F.3d at 455; U.S.
Environmental Protection Agency, Clean Water Act Section 401 Guidance for Federal Agencies,
States and Authorized Tribes at 3 (June 2019) (noting that the CWA does not use the term
“complete application”).
The Second Circuit recently addressed the issue of whether waiver requires a valid or
complete request; it answered in the negative. Speaking on the issue, the Court stated,
“[T]he timeline for a state's action regarding a request for certification ‘shall not exceed one year’ after ‘receipt of such request.’ It does not specify that this time limit applies only for ‘complete’ applications. If the statute required ‘complete’ applications, states could blur this bright-line rule into a subjective standard, dictating that applications are ‘complete’ only when state agencies decide that they have all the information they need. The state agencies could thus theoretically request supplemental information indefinitely.”
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N.Y. State Dep’t of Envtl. Conservation, 884 F.3d at 455-56. Although, in dicta, that Court stated
that a certifying state agency could “request that the applicant withdraw and resubmit the
application” in order to avoid rendering premature decisions, this does nothing to weaken
Mammoth’s position. When read in the context of the aforementioned statement, the Second
Circuit makes clear that, while a state agency may request withdrawal and resubmission within
the one-year period, it still must act within the one-year period from the initial request so as to
not “request supplemental information indefinitely.” Id. at 456.
The Fourth Circuit disagreed, however, granting deference to the Corps’ interpretation of
Section 401 requiring a “valid” request. See AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d
at 729. However, the Fourth Circuit failed to engage in the rigorous analysis required by
Chevron in reaching that outcome. In fact, the Court’s only statement on the matter is to say “the
statute is ambiguous on the issue” and leave it at that. Id. Nowhere in the opinion will this Court
find exhaustion of the “traditional tools” of construction required by Chevron. Chevron U.S.A.,
Inc. v. NRDC, Inc., 467 U.S. 837, 843 n. 9 (1984) (“If a court, employing traditional tools of
statutory construction, ascertains that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.”). Rather than searching for “whether
Congress has directly spoken to the precise question at issue,” the Fourth Circuit instead accepts
it as a foregone conclusion. Id. at 842.
But the Fourth Circuit’s ruling should be ignored. Under Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., “[o]nly a judicial precedent holding that the statute
unambiguously forecloses the agency's interpretation, and therefore contains no gap for the
agency to fill, displaces a conflicting agency construction.” 545 U.S. 967, 983 (2005). In Hoopa
Valley Tribe, the D.C. Circuit conclusively determined that Section 401 is unambiguous in
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foreclosing the withdrawal-and-resubmission approach. 913 F.3d at 1103 (“Section 401’s text is
clear.”). The D.C. Circuit’s opinion therefore controls agency interpretations of Section 401.
In addition to the rulings of the D.C. and Second Circuits, agency practice supports
Mammoth’s interpretation. Recently, the Trump Administration endorsed this approach. In July
2019, the EPA issued guidance stating that all that is required for the waiver period to begin is
the receipt of “a certification request.” U.S. Environmental Protection Agency, Clean Water Act
Section 401Guidance for Federal Agencies, States and Authorized Tribes at 3 (June 2019). This
guidance is also in line with FERC practice. As FERC has noted, “[s]ince 1987, [FERC] has
consistently determined…that the reasonable period of time for action under [S]ection 401 is one
year after receipt of a request for certification.” 162 FERC ¶ 61,014 (2017) (emphasis added);
see also 160 FERC ¶ 61,065 (2012) (“The Commission found the ‘triggering event to be – as
specified in the statute – the ‘receipt’ of the request for a water quality certification.”) (quoting
129 FERC ¶ 61,245 (2009)).
This position makes sense. Firstly, it preserves the plain language of the statute without
adding qualifications contradictory to the statute’s purpose. Secondly, it provides certainty to all
parties, allowing both the state and the applicant to clearly pinpoint the beginning of the waiver
period without concern for “open-ended certification deadlines.” 162 FERC ¶ 61,014 (2017).
This necessarily diminishes the amount of litigation that will arise in relation to this question.
See N.Y. State Dep’t of Envtl. Conservation, 884 F.3d at 456. In this way, judges and department
heads can avoid diving headlong into the metaphysical mire of determining the precise moment
that a request crosses the threshold of validity or completion. Finally, it places the burden upon
the states to “fashion procedural regulations they deem appropriate or, if necessary, to deny
applications for failure to meet such regulations.” 162 FERC ¶ 61,014 (2017).
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2. Public Policy
In addition to the plain language of Section 401, Congress’ desire to avoid state delay
motivated it to enact the waiver provision.
The one-year time limit provided by the statute ensures that a state may not “indefinitely
delay” acting on a certification request. See Alcoa Power Generating Inc. v. FERC, 643 F.3d
963, 972 (D.C. Cir. 2011). As the D.C. Circuit stated, “[i]n imposing a one-year time limit on
States to ‘act,’ Congress plainly intended to limit the amount of time that a State could delay a
federal licensing proceeding without making a decision on the certification request.” Id. The
drafters of the CWA anticipated state delay and added the one-year waiver period specifically to
guarantee that “sheer inactivity by the State…will not frustrate the Federal application.” H.R.
Rep. 91-940, at 56 (1970), reprinted in 1970 U.S.C.C.A.N. 2741.
Congress reinforced its desire for an expedited permitting process with the EPAct of
2005, when it “amended section 19(d) of the [NGA] . . . to compel action from foot-dragging
agencies.” Millenium Pipeline Co., L.L.C. v. Seggos, 860 F.3d 696, 701 (D.C. Cir. 2017); see
Reg'l Energy Reliability & Sec.: DOE Auth. to Energize the Cross Sound Cable: Hearing Before
the H. Subcomm. on Energy & Air Quality, 108th Cong. 8 (2004) (statement of Rep. Barton)
(discussing an earlier version of the EPAct, and explaining that "the comprehensive energy bill
requires States to make a decision one way or another, and removes the appeal of that decision to
Federal court," which "will help get projects . . . constructed”); Natural Gas Symposium:
Symposium Before the S. Comm. on Energy & Natural Res., 109th Cong. 41 (2005) (statement of
Mark Robinson, Director, Office of Energy Projects, FERC) (observing that, prior to the
enactment of the EPAct, NGA applicants were subject to "a series of sequential administrative
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and State court and Federal court appeals that [could] kill a project with a death by a thousand
cuts just in terms of the time frames associated with going through all those appeal processes").
The facts of Hoopa Valley Tribe perfectly illustrate why this expedited approach is the
correct one. There, the states of California and Oregon entered into an agreement with
Pacificorp to defer the one-year statutory limit for Section 401 approval by Pacificorp annually
withdrawing and resubmitting the certification requests. See Hoopa Valley Tribe, 913 F.3d at
1101. Pacificorp first filed its request to the California Water Resources Control Board and the
Oregon Department of Environmental Quality in 2006. See id. at 1104. By the time the case
reached the D.C. Circuit, nearly thirteen years had passed, and no decision had been filed by the
state certifying agencies. See id. Instead, the agencies engaged in the “foot-dragging” that the
one-year waiver period meant to avoid. Millenium Pipeline Co., 860 F.3d at 701.
Even though the facts of this case do not meet the extreme circumvention of the one-year
period as illustrated by Hoopa Valley Tribe, Vandalia circumvented the one-year period
nonetheless. Here, Mammoth submitted its certification request on October 1, 2017, but it took
nearly two years before Vandalia finally denied the request. R. at 4. Important to note is that
when it resubmitted its application, Mammoth provided a 97-page application, and Vandalia
cited no additional information that it needed to make an informed decision when it asked for
withdrawal for the second time. Id. This request for withdrawal and resubmission, in concert
with not requesting additional information, demonstrates Vandalia’s intent to draw out the
certification process.
For the aforementioned reasons, namely conflict with precedent, Congressional intent,
and sound public policy, this Court should hold that Vandalia waived its certification authority.
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II. THE CORPS’ PUBLIC NOTICE IS UNDESERVING OF AUER DEFERENCE BECAUSE THE CORPS’ REGULATION UNAMBIGUOUSLY GRANTS STATES AUTHORITY TO DETERMINE WHAT CONSTITUTES A “VALID REQUEST” FOR CERTIFICATION.
In 33 C.F.R. § 325.2(b)(1)(ii), the Corps provided regulations regarding the issuance of
Section 401 and Section 404 permits, stating:
“No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt of such a request unless the district engineer determines a shorter or longer period is reasonable for the state to act. In determining whether or not a waiver period has commenced or waiver has occurred, the district engineer will verify that the certifying agency has received a valid request for certification.”
33 C.F.R. § 325.2(b)(1)(ii). The question becomes whether or not this Court should grant the
Corps’ interpretation of this regulation, as contained in the Notice, deference under Auer v.
Robbins. 519 U.S. 452, 462 (1997). Respectfully, it should not. As will be demonstrated, the
Corps’ determination that West Vandalia did not receive a valid Section 401 certification request
until July 8, 2018 conflicts with its regulations and inappropriately strips the state of its
authority. As such, Auer deference should not be granted to the Notice.
Following the Supreme Court’s decision in Kisor v. Wilkie, whether a court should grant
deference under Auer has been described as a five-step analysis.1 A reviewing court should
evaluate each of the following criteria before determining an agency’s interpretation of its
regulation can stand. First, the regulation must be “genuinely ambiguous” after the court has
applied the “traditional tools” of statutory interpretation. Kisor v. Wilkie, 139 S. Ct. 2400, 2415
(2019) (quoting Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 843 n.9 (1984)). Second, if
genuine ambiguity does exist, “the agency’s reading must still fall ‘within the bounds of
1 Christopher J. Walker, What Kisor Means for the Future of Auer Deference: The New Five-Step Kisor Deference Doctrine, YALE J. OF REG.: Notice & Comment (June 26, 2019), https://www.yalejreg.com/nc/what-kisor-means-for-the-future-of-auer-deference-the-new-five-step-kisor-deference-doctrine/.
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reasonable interpretation.’” Id. at 2416 (quoting City of Arlington v. FCC, 569 U.S. 290, 296
(2013)). Third, the agency’s interpretation must be the “agency’s ‘authoritative’ or ‘official
position’” and not an “ad hoc statement not reflecting the agency’s views.” Id. Fourth, the
“agency’s interpretation must in some way implicate the agency’s substantive expertise.” Id. at
2417. Finally, the agency’s interpretation of its regulation must “reflect ‘fair and considered
judgment.’” Id. (quoting Auer, 519 U.S. at 462).
The chief takeaway of Kisor, is that Auer deference should not be granted lightly. See id.
at 2415 (stating that Auer obligates courts to “perform their reviewing and restraining
functions”). Gone are the days when all that deference required of the agency interpretation was
that it not be “plainly erroneous and inconsistent with regulation.” Id. (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). For this Court to grant deference, CAP
bears the heavy burden of overcoming the five steps annotated above. CAP cannot meet this
burden since the regulation is unambiguous and ultimately grants the certifying agency the
authority to determine what constitutes a “valid request.” The Corps inappropriately assumed
this authority when it determined that Mammoth did not submit a valid request until July 8,
2018.
For brevity’s sake, and because of the definiteness in which the ambiguity issue
forecloses any chance of Auer deference, it is the only Kisor step analyzed here.
A. The Corps’ Regulation is Unambiguous. The first question the Court must address in determining whether to grant Auer deference
is whether the regulation is “genuinely ambiguous.” Kisor, 39 S. Ct. at 2414. “[T]he possibility
of deference can arise only if” this ambiguity exists, id. at 2415, and a determination of
ambiguity can only be made after the “traditional tools” of statutory construction have been
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exhausted. Id. (quoting Chevron U.S.A. Inc., 467 U.S. at 843 n.9). In this way, the first step of
Auer review is identical to the first step of Chevron review – a searching review that may only
reach a conclusion of ambiguity after the “legal toolkit is empty, and the interpretive question
still has no single right answer.” Id. (quoting Pauley v. Bethenergy Mines, 501 U.S. 680, 696
(1991)). In accordance with this, we must first look at “the text, structure, history, and purpose”
of § 325.2(b)(1)(ii). Id.
We begin by looking at the language in controversy. It states;
“In determining whether or not a waiver period has commenced or waiver has occurred, the district engineer will verify that the certifying agency has received a valid request for certification.”
33 C.F.R. § 325.2(b)(1)(ii). The agency has erroneously interpreted this language to mean that it
has the authority to determine what constitutes a “valid request for certification.” Id. It has no
such authority.
Rather than giving the Corps the power to determine what constitutes a valid request, the
plain language of the regulation provides that the Corps will “verify” that the agency “has
received a valid request.” 33 C.F.R. § 325.2(b)(1)(ii). Here, the verb “verify” refers, not to the
request itself, but to the receipt of the request. Thus, the regulation places the state’s receipt of
the request as the object of the verification, not the validity of the request itself. As defined, to
verify means “to make sure or demonstrate that something is true, accurate, or justified.” Verify,
The Concise Oxford American Dictionary (11th ed. 2006). It follows then that the Corps’ role in
this process is to “make sure” that the certifying agency has received a valid request. Id. It does
not, however, grant the Corps the authority to make a validity determination itself. See Howard
W. Heck & Assocs. v. United States, 134 F.3d 1468, 1471 n.4 (Fed. Cir. 1998) (“[T]he state and
not the Corps has the responsibility to determine if it has received a valid request.”); but see AES
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Sparrows Point LNG, 589 F.3d at 730 n.3 (concluding that the Corps’ comment regarding state
determination of validity was “inconsistent with the plain language of 33 C.F.R. §
325.2(b)(1)(ii)” though not providing analysis).
The application process itself makes this clear. First, the states determine their own water
quality standards and set conditions that become “terms and conditions of the [federal] license as
a matter of law.” United States Dep’t of Interior v. FERC, 952 F.2d 538, 548 (D.C. Cir. 1992).
A state’s certification application often reflects these priorities and conditions.2 These
application procedures and requirements are provided through state regulation as a reflection of
state water quality concerns. Compare 23 C.C.R. § 3856(h) (2017) (providing California’s
Section 401 request regulations); with 30 T.A.C. § 279.4(b) (1987). In the Section 401
certification process, the state’s determination of what conditions are required to meet state water
quality standards reigns supreme. See Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991)
("Through [the Section 401 certification] requirement, Congress intended that the states would
retain the power to block, for environmental reasons, local water projects that might otherwise
win federal approval.").
A requesting party may apply directly to the state, or the district engineer may submit a
federal application for Section 401 certification through public notice.3 If the federal application
does not contain information sufficient to satisfy the state, the state can request more information
2 Compare Texas Commission on Environmental Quality, Tier II 401 Certification Questionnaire and Alternative Analysis Checklist, June 14, 2004, https://www.tceq.texas.gov/assets/public/permitting/waterquality/forms/20229.pdf (requiring submission of photographs or videocassette of the project) with Colorado Water Quality Control Division, Clean Water Act (CWA) Section 401 Water Quality Certification – Request, https://www.colorado.gov/pacific/sites/default/files/WQ_401_Cert_Request_Form_05-04-17.pdf (requiring the listing of Best Management Practices as a condition of certification). 3 See generally U.S. Army Corps of Engineers, Joint Public Notice of City of Arlington’s § 401 Certification Request, December 19, 2019, https://www.swf.usace.army.mil/Portals/47/docs/regulatory/publicnotices/2020/PN_SWF-2019-00154.pdf?ver=2019-12-19-165159-867.
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from the applicant.4 Important to note is that in both of these scenarios, it is ultimately the state
that determines whether the information received is sufficient, not the Corps. The fact that the
Corps’ application can be insufficient for state certification purposes demonstrates the state’s
supremacy in this process. See Keating, 927 F.2d at 622.
The history of 33 C.F.R. § 325.2(b)(1)(ii) further confirms this interpretation. In
comments released concurrently with the Corps’ 1986 amendments to the regulation, the agency
removed language from the previous regulation requiring that the request for certification “be
made in accordance with the regulations of the certifying agency." 51 Fed. Reg. 41,206 (1986).
Though that may seem to weaken Mammoth’s interpretation, the Corps stated that “[d]eleting
this statement will not delete the requirement that valid requests for certification must be made in
accordance with State laws.” 51 Fed. Reg. 41,206 (1986). In fact, the Corps removed this
statement to avoid the very interpretation adopted in the Notice. See id. As stated, in relevant
part,
“[W]e believe that the state has the responsibility to determine if it has received a valid request. If this statement were retained in the Corps regulation, it would require the Corps to determine if a request has been submitted in accordance with state law. To avoid this problem, we have decided to eliminate this statement.”
Id. The regulation’s purpose is to relieve the Corps from the burdens of confirming each
certification request’s validity. See id. Rather, the states make that determination, and the Corps
simply verifies with the state that such is the case. See 33 C.F.R. § 325.2(b)(1)(ii). Considering
4 See U.S. Army Corps of Engineers, Joint Public Notice of Proposal to Modify and Reissue a Regional General Permit at 3, October 2, 2015, https://www.nws.usace.army.mil/Portals/27/docs/regulatory/publicnotices/2015%20PNs/RGP6%20-%20Joint%20Public%20Notice.pdf (stating that the Washington Department of Ecology, must determine if the Corps activities would comply with Chapters 173-225 of the Washington Administrative Code, which establish implementation procedures of application for certification).
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the hundreds of applications for Section 401 certification that a single Corps district office can
receive each year, this approach is appropriate.
Here, the Corps made a decision that it was not authorized to make when it determined
that Mammoth’s request was invalid until July 8, 2018. West Vandalia state practice, which the
Corps ignored, held that pipelines could amend their proposed route without withdrawing their
application. R. at 5. It consistently holds that amending a Section 401 request does not restart
the one-year period when amendments are minor, as was the case here. Id. By the Corps
deeming the request invalid, it usurped the state’s authority and is acting in contradiction of its
own regulations. Following the Corps’ interpretation as reflected in the Notice, as opposed to
the unambiguous language of § 325.2(b)(1)(ii), gives the district engineer veto authority over
West Vandalia regulations and practice, depriving the state of the supremacy which Section 401
grants. See Keating, 927 F.2d at 622.
As the tools of interpretation clearly demonstrate, the Corps’ regulation is unambiguous.
Therefore, this Court should hold that the Notice is undeserving of Auer deference.
III. SECTION 7(h) OF THE NGA DELEGATES THE FEDERAL GOVERNMENT’S EMINENT DOMAIN AUTHORITY OVER STATE LAND TO HOLDERS OF CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY.
As the question at hand is a question of law, this Court exercises, “plenary review over a
claim of sovereign immunity” and “review[s] de novo the legal conclusions underlying the
grant.” In re PennEast Pipeline Co., LLC, 938 F.3d 96, 103 (3d Cir. 2019).
The NGA authorizes private gas companies to acquire “necessary right[s]-of-way” for
pipelines “by the exercise of the right of eminent domain,” when three conditions are met. 15
U.S.C. § 717f(h). First, the company must have obtained a Certificate of Public Convenience
and Necessity (a “Certificate”) from FERC. Id. Next it must prove it could not “acquire [the
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property] by contract” or reach an agreement with the property holder over the amount to be
paid. Id. Finally, the value of the condemned property must be at least $3,000. Id.
Despite the clarity with which the statute delegates eminent domain authority to holders
of Certificates, CAP and Franklin disagree. Instead, they claim Mammoth has no authority to
condemn land in Franklin, arguing that Congress cannot delegate authority to override a state’s
sovereign immunity.
This argument fails for three reasons. First, the text of Section 7(h) permits certificate
holders to condemn state lands without any limiting language. Second, the legislative history of
the NGA makes clear this was Congress’ intent. Third, condemnation actions are in rem and
therefore outside the scope of the Eleventh Amendment, which provides states with sovereign
immunity only in suits “in law and equity.”
For these reasons, this court should disregard Franklin’s sovereign immunity claims.
A. The Twelfth Circuit Does Not Have Jurisdiction to Hear Franklin’s Challenge to FERC’s Order.
To challenge a FERC order, a state must file in the appropriate United States Court of
Appeals or the D.C. Circuit Court of Appeals “within 60 days after the order of the commission
upon application of rehearing.” 15 U.S.C. § 717r(b). As stated by the Supreme Court, “upon
judicial review of the Commission’s order, all objections to the order, to the license it directs to
be issued, and to the legal competence of the license to execute its terms, must be made in the
Court of Appeals or not at all.” City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336
(1958). Franklin was required to challenge FERC’s order granting approval of the Mammoth
Pipeline Project in either the Twelfth Circuit or the D.C. Circuit within 60 days after FERC’s
order. 15 U.S.C. § 717r(b). It did neither of those things. Instead, Franklin disregarded the
procedural requirements of the NGA, blocking Mammoth from acquiring land necessary for its
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project. Franklin waived its right to challenge the order, and it may not do so now. CAP is
equally barred from challenging the order, as the requirements of Section 717r(b) apply to
citizens and states alike.
Therefore, the Twelfth Circuit should dismiss this challenge.
B. NGA Section 7(h) Has Historically Been Interpreted to Permit Certificate Holders to Condemn State Lands Without Limit.
Section 7(h)’s plain language states that “necessary land or other property” may be
claimed by eminent domain to accommodate pipelines. 15 U.S.C. § 717f(h). This land includes
land owned by the state.
Since the 19th century, the Supreme Court has recognized the Federal Government’s
right to condemn state-owned property in furtherance of its eminent domain power. Kohl v.
United States, 91 U.S. 367, 372 (1875). As the Kohl court recognized in 1875, "[s]o far as the
general government may deem it important to appropriate lands or other property for its own
purpose, and to enable it to perform its functions…[it] may exercise the authority as well within
the States as within the territory under its exclusive jurisdiction.” Id. at 373 (quoting Cooley on
Constitutional Limitations (4th ed.), 526). But it is not necessary that Congress exercise this
power itself; it can also delegate its authority to private institutions. See Luxton v. N. River
Bridge Co, 153 U.S. 574 (1874) (holding that it was constitutional for Congress to delegate
eminent domain authority to a private company to construct a bridge).
Challenges to Section 7(h)’s delegation of eminent domain authority have survived both
judicial review and challenges before FERC. For instance, when addressing a Tenth
Amendment challenge to the newly enacted NGA in Thatcher v. Tennessee Gas Transmission
Co., the Fifth Circuit, noted that “Congress, in furtherance of its power to regulate commerce,
may delegate the power of eminent domain to a corporation.” 180 F.2d 644, 647 (5th Cir. 1950).
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When questioned as to whether this authority applies equally to state land as it does federal,
FERC has answered in the affirmative. See 1 FERC ¶ 63,205 (1977). Before the 2017
Amendment, FERC has stated that “there is nothing in the language ‘owner of property’ to
exclude a state,” and “[t]he language of Section 7(h) indicates a Congressional grant of plenary
eminent domain power to certificate holders.” Id.
The 2017 Amendment to the NGA has now made Section 7(h) “replicate the precise
language from [FPA]” Section 21 exactly, eliminating any doubt that certificate holders can
wield the Federal Government’s eminent domain power over state land. FPA Section 21, which
grants hydroelectric project licensees eminent domain power, is the “model” upon which Section
7(h) is based, id., and courts, including the Supreme Court, consider the two provisions to be
“substantially identical.” See Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981). In fact, they
interpret these provisions “interchangeably.” Id.
The newly amended language of Section 7(h) makes clear that Congress intended for
certificate holders to condemn state lands. Specifically, Section 7(h) now includes procedural
safeguards meant to protect the states when a certificate holder uses the right of eminent domain
“to acquire state lands.” 15 U.S.C. § 717f(h). If “there has been a public hearing held in the
affected community and a finding by the Commission,” the certificate holder may condemn state
land. Id. By imposing safeguards to protect state land, Congress explicitly acknowledged the
ability of a certificate holder to condemn this land.
Although the Supreme Court has not addressed the reach of NGA Section 7(h)’s or FPA
Section 21’s delegation of eminent domain authority to pipelines directly, it has ruled in favor of
private certificate holders who condemn state land . See City of Tacoma, 357 U.S. at 320.
Additionally, the Court declined to hear this very issue when it denied certiorari on the Ninth
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Circuit’s Wash. Dep’t. of Game v. Fed. Power Comm'n, 207 F.2d 391 (9th Cir. 1953) decision,
(affirming the ability of a hydroelectric licensee to condemn state land). In the course of the
Tacoma opinion, the Court rejected Washington’s argument that the City of Tacoma lacked “any
right to take or destroy property of the State.” Id. at 338 (quoting Wash. Dep’t. of Game, 207
F.2d at 396).
C. The Legislative History of the NGA and the FPA Support Mammoth’s Interpretation.
Reports from 1947 show Congress recognized that it was necessary for certificate holders
to take state lands. Congress feared that if states could block pipelines from being built, it would
“defeat the very objectives of the [NGA].” S. Rep. No. 80-429, at 2-3 (1947).
The Senate Report from 1947, deliberating on whether to enact NGA Section 7(h), best
illustrates Congress’ concern. That report describes the necessity of allowing interstate natural
gas pipelines to cross states that receive no benefit from said pipeline. Id. Comparing the NGA
(before the 2017 Amendment) to the eminent domain power of the FPA, it states “[w]hen the
Congress passed the [NGA], it failed to include a similar provision of eminent domain.” Id. at 1.
Only paragraphs later, the Report states;
“the Congress of the United States in carrying out its constitutional authority to regulate interstate commerce, should correct this deficiency and omission in the [NGA] by the passage of [Section 7(h)] which confers the right of eminent domain upon those natural gas companies which have qualified under the [NGA] to carry out and perform the terms of any certificate of public convenience and necessity.”
Id. at 3.
Even more recently, during Congressional deliberations for amending the now identical
FPA Section 21, reports show that Congress recognized that “under current law . . . the license[e]
is granted a Federal power of eminent domain to condemn all non-Federal lands required for the
project . . . [including] lands owned by States.” H.R. Rep. 102-474 at 99 (1992). Furthermore,
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as discussed supra at 12-13, Congress enacted the EPAct of 2005 with the explicit purpose of
expediting the building of natural gas lines and loosening state obstruction.
This history conclusively demonstrates that the purpose of Section 7(h) is to allow
certificate holders to condemn state land without interference. The addition of conditions to the
power, as reflected in the newly amended language of Section 7(h), does nothing to remove
certificate holders’ condemnation authority. As the Supreme Court has noted, the NGA is meant
to, “encourage the orderly development of plentiful supplies of . . . natural gas at reasonable
prices.” NAACP v. Fed. Power Comm’n, 425 U.S. 662, 670 (1976). The Third Circuit, which
disagreed with eminent domain authority over state land, acknowledged the damage its ruling in
PennEast would cause, stating that their decision would “disrupt how the natural gas industry . . .
operates.” In re PennEast Pipeline Co., LLC, 938 F.3d 96 at 113. The Court stated it was “not
insensitive to [the] concern” that “States [having] unconstrained veto power over interstate
pipelines, [will cause] the industry and interstate gas pipelines to grind to a halt.” Id. Upending
nearly eighty years of practice will have serious consequences for the industry, driving oil and
gas development to a halt at a time of booming prosperity.
The history of the NGA shows that Congress meant to avoid this result.
D. State Sovereign Immunity is Irrelevant in In Rem Condemnation Actions.
Mammoth’s suit against Franklin is an in rem condemnation action and thus, sovereign
immunity under the Eleventh Amendment is inapplicable.
The Eleventh Amendment gives states immunity from “any suit in law or equity.” U.S.
Const. amend. XI. However, this immunity does not extend to in rem actions, which do not
qualify as suits in law or equity. See Shaffer v. Heitner, 433 U.S. 186, 199 (1977). Rather, in
rem suits are unique in that their jurisdiction is focused on “the res” (the object) and not “the
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persona” (the property owner). California v. Deep Sea Research, Inc., 523 U.S. 491 (1998).
They do not “implicate the states sovereignty to nearly the same degree as other jurisdictions.”
Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 362 (2006). Here, Mammoth’s condemnation action
was a suit in rem, the jurisdiction being focused on the condemned property and not the property
owner. As such, the condemnation action is “not a taking of rights of persons in the ordinary
sense but an appropriation of the land or property itself.” United States v. 6.45 Acres of Land,
409 F.3d 139, 145-46 (3d Cir. 2005).
The Supreme Court has recognized, in several instances, the inapplicability of the
Eleventh Amendment in in rem suits brought against certain property for which the state is
interested. See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 450 (2004); Deep
Sea Research, Inc., 523 U.S. at 494-95 (1998) (“We conclude that the Eleventh Amendment
does not bar jurisdiction of a federal court over an in rem admiralty action where the res is not
within the State’s possession.”). The situation of a debtor seeking to discharge a debt in
bankruptcy illustrates this point. Such cases are in rem in that they do not involve “monetary
damages or any affirmative relief from [the] State.” Tenn. Student Assistance Corp. v. Hood,
541 U.S. 440, 450 (2004). Likewise, Mammoth is not seeking “monetary damages or any
affirmative relief from the state,” id., but only seeking enforcement of their federally granted
eminent domain power.
Furthermore, in 2003, FERC held that the “NGA does not address ‘any suit in law or
equity’ against a state.” 102 FERC ¶ 61,054 at 123. In that instance, FERC specifically held
that the Supreme Court’s ruling in Seminole Tribe v. Florida, which held that Congress cannot
abrogate state sovereign immunity under the commerce clause, had no application to suits in
rem. See id. In reaching this conclusion, FERC noted the broad sweep of the NGA as a
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“comprehensive scheme of federal regulation.” Id. (quoting Schneidewind v. ANR Pipeline Co.,
485 U.S. 293, 300-01 (1988).
However, the Third Circuit disagreed with FERC’s view. In In re PennEast, the Third
Circuit noted that the NGA was based on the commerce clause and proceeded to argue that the
NGA could not be used to abrogate New Jersey’s sovereign immunity under Seminole Tribe.
See In re PennEast Pipeline Co., LLC, 938 F.3d 96 at 113. But, as PennEast was an in rem
action, New Jersey’s sovereign immunity was never implicated. Therefore, it is irrelevant that
the NGA is a commerce clause statute. As long as the underlying Congressional action is
constitutional, the in rem condemnation action is as well.
The Third Circuit also pointed to the case of Blatchford v. Native Vill. of Noatak & Circle
Vill. to claim that a state may not constitutionally delegate its ability to abrogate sovereign
immunity. In re Penneast, 938 F.3d at 103-04. There are two issues with the Court’s citation of
the Blatchford decision. First, as stated previously, in PennEast, the state’s sovereign immunity
was not implicated since PennEast was an in rem action. Second, the opinion in Blatchford is
limited to the question of whether 28 U.S.C. § 1362, which grants federal district courts
jurisdiction over civil actions by Indian tribes, is constitutional. See Blatchford v. Native Vill. of
Noatak & Circle Vill., 501 U.S. 775 (1991). The Court explicitly does not reach the issue of
delegation. See id. at 785-86. While, in dicta, it did question if sovereign immunity may be
delegated, it chose not to read the delegation power into § 1362. See id. When discussing the
issue, the Court said that it had, “no reason to believe that Congress ever contemplated”
delegating that power. Id.
Accepting the Third Circuit’s approach would do great damage to the NGA in its
entirety, directly in contravention of the purpose that motivated the enactment of Section 7(h).
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Such an approach promises to act as one of the “thousand cuts” Congress and FERC have feared
would be brought by the states to kill federal pipeline actions. Natural Gas Symposium:
Symposium Before the S. Comm. on Energy & Natural Res., 109th Cong. 41 (2005) (statement of
Mark Robinson, Director, Office of Energy Projects, FERC).
For these reasons, we ask that this Court affirm the District Court’s decision in favor of
Mammoth.
IV. UNDER THE MLA THE SECRETARY OF AGRICULTURE HAS THE AUTHORITY TO GRANT CONSERVATION EASEMENTS AND RIGHTS-OF-WAY ON LAND THAT IS ADJACENT TO TRAILS ADMINISTERED BY THE SECRETARY OF THE INTERIOR.
The MLA allows the Federal Government to construct pipelines on “federal land” which
is defined, “as all lands owned by the United States except . . . lands in the National Park
System.” 30 U.S.C. § 185(b)(1). National Park System lands are defined under the Park Services
Organic Act as, “any area of land and water administered by the Secretary [of the Interior]”
through the Service. 54 U.S.C. § 100501. Therefore, the Federal Government may approve the
building of pipelines on federal land that does not fall under the ambit of the Secretary of the
Interior’s National Park authority.
The Homestead Property is not part of the National Park System. The Service did not
incorporate the Homestead Property into the Shandaliah Trail (and by extension the National
Park System) because it found that it was, “unnecessary . . . for the [Homestead Property] to
become part of the Shandaliah Trail.” R at 9. Additionally, the conservation easement held by
the Department of Agriculture gives the Federal Government sufficient interest in the property to
make it “federal land.” R. at 13.
Because the Homestead property is not in the National Park System, and is merely
federal land, the Federal Government may approve the placement of Mammoth Pipeline upon it.
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A. The Conservation Easement Held by the USDA Does Not Confer National Park Status Upon the Land and Does Not Prevent Pipeline Construction.
As a preliminary matter, it is important to note that a conservation easement does not
confer national park status upon the Homestead Property.
A limited easement held by the users of protected land does not prevent pipeline
construction on adjacent properties. See No Oilport! v. Carter, 520 F.Supp. 334, 360
(W.D.Wash. 1981) (holding that Indian tribes could not block the construction of a pipeline in
area protected by a fishing easement because the MLA only prohibits construction over protected
land).
In No Oilport!, a number of Indian tribes argued that their fishing easement over the
Puget Sound, which was adjacent to the tribes’ land, gave them sufficient interest in the water
way for it to be considered protected land under the MLA. See No Oilport!, 520 F. Supp. at 360.
The Court rejected this, “novel argument” because “the Indians' non-exclusionary easement
which allows them access to their usual and accustomed fishing sites does not constitute, ‘lands
held in trust for an Indian or an Indian tribe.’” Id. (citing 30 U.S.C. § 185(b)(1)). According to
the Court, only land “held in fee” would fall under the protection of the MLA. See No Oilport!,
520 F. Supp. at 360.
While the Shandaliah Trail is part of the National Park System, the Homestead Property
is not. R. at 9. The only connection between the Homestead Property and the Shandaliah Trail
is a limited easement protecting the viewshed for hikers. Id. This is an insufficient connection
to justify protection under the MLA. As stated in No Oilport!, an easement, even if held by the
users of protected property, does not extend that protection to unprotected adjacent parcels.
Here, the Homestead Property is an adjacent parcel of land not included within the easement.
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As such, the limited easement over the Homestead Property does not prevent construction
of a pipeline under the MLA.
B. Under NTSA, both the Secretary of Agriculture and the Secretary of Interior May Grant Easements and Rights-of-Way Along Any Part of the National Trail System
The Secretary of Agriculture has shared jurisdiction over the Homestead Property with
the Secretary of Interior and under that authority, may grant easements and rights-of-way.
NTSA states that “[t]he Secretary of Agriculture or the Secretary of Interior . . . may
grant conservation easements and rights-of-way upon, over, under, across, or along any
component of the national trails system.” 16 U.S.C. § 1248(a). When two agencies share
jurisdiction over a section of a National Park System trail, the “Secretary charged with the
overall administration” of the trail is the agency that can grant easements and rights-of-way. 16
U.S.C §1246(a)(1)(A).
Here, the Secretary of Agriculture had the authority to negotiate a conservation easement
over the Homestead Property because the property is not part of the National Park System. R. at
9. In Cowpasture River Pres. Ass'n v. Forest Serv., both USDA and DOI shared jurisdiction
over the same section of land within the Appalachian National Scenic Trail (“ANST”). 911 F.3d
150, 181 (4th Cir. 2018), cert. granted sub nom., 140 S. Ct. 36 (2019). USDA argued it had the
authority to approve pipeline rights-of-way across all Forest Service lands, which fall under
USDA jurisdiction through the Forest Service, including “on Forest Service land traversed by the
[ANST].” Id. This would mean that any section of the National Park System land that also fell
within another jurisdiction would be fully subject to the other agency’s jurisdiction (in this case
the USDA). The Fourth Circuit rejected this argument, holding instead that the Secretary of the
Interior was the sole “applicable administrator” over ANST, and that the USDA merely,
“manages land underlying components of the ANST.” Id. This is because Congress explicitly
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delegated authority to the Secretary of Interior, stating, “the Appalachian Trail shall be
administered primarily . . . by the Secretary of the Interior.” 16 U.S.C. § 1244(a)(1).
Unlike in Cowpasture, in the instant case the land in question is not part of the trail. The
Service stated explicitly that, “it was unnecessary for the [Homestead Property] to become part
of the Shandaliah Trail.” R at 9. Because the Homestead Property is merely along the trail,
rather than a part of it, it does not fall under the jurisdiction of the Service which is, “the agency
in charge of administering the Shandaliah Trail.” Id. Rather, Section 1248 of NTSA clearly
states that easements can be granted, “along any component of the national trail system.” 16
U.S.C. § 1248. As the Homestead Property is outside of the National Park System, it is also
outside of the exclusive jurisdiction of the Service, and both Secretaries have equal authority to
grant easements and administer that land. In the instant case, the Secretary of Agriculture
negotiated the easement and has taken actions to monitor it. It may issue rights-of-way over the
land.
C. Under the MLA, the Secretary of Agriculture was the “Appropriate Agency Head” to Approve the Right-of-Way for the Mammoth Pipeline Because USDA has Jurisdiction over the Homestead Property.
Under the MLA, the Secretary of Agriculture was the “appropriate agency head” to
approve the right-of-way on the Homestead Property because USDA can approve easements and
rights-of-way along trails administered by DOI. The MLA states that the “Secretary of the
Interior or the appropriate agency head” may grant rights-of-way for pipelines across “Federal
Lands.” 30 U.S.C. § 185(a). An agency head is defined as, “head of any Federal department . . .
or agency, which has jurisdiction over Federal lands.” 30 U.S. Code § 185(b); see United States
v. New Mexico, 438 U.S. 696, 709 n.18 (1978). Under § 1244(a) of the National Trail System
Act, Congress assigned DOI and USDA jurisdiction over national trails, with DOI primarily
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administering trails in the East and the USDA primarily controlling the West. See e.g.,
Cowpasture River Pres. Ass'n, 911 F.3d 150 at 181. While Congress normally divides trails by
region, it gives both the “the Secretary of Agriculture or the Secretary of Interior,” the
jurisdiction to, “grant rights-of-way . . . along any component of the national trails system.” 16
U.S.C. § 1248 (emphasis added). This includes trails administered by the other agency.
In Cowpasture, the Fourth Circuit blocked the USDA from approving a pipeline because
Congress had explicitly delegated jurisdiction over the ANST to DOI. But, unlike the ANST,
Congress has made no such delegation over the Homestead Property to either agency. R. at 9.
As the Homestead Property is merely “near the Shandaliah Trail,” neither agency has the kind of
primary authority that DOI had over the Appalachian Trail in Cowpasture. Id. Without clear
assignment of jurisdiction, NTSA allows for either agency to approve both easements and rights-
of-way across “any component of the national trails,” including the Shandaliah Trail. 16 U.S.C.
§ 1248. USDA has exercised that authority by acquiring the easement and through conducting
periodic monitoring checks on the property. By USDA having and exercising its jurisdiction
under NTSA, USDA is the “appropriate agency head” under the MLA to approve the right-of-
way for the pipeline.
For these reasons, we ask that this Court affirm the USDA’s granting of the right-of-way
to Mammoth.
CONCLUSION For the aforementioned reasons, we ask that this Court grant the relief requested by
Mammoth Pipeline, LLC.
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CERTIFICATE OF SERVICE
Pursuant to Official Rule IV, Team Members representing [Team 6] certify that our Team
emailed the brief (PDF version) to the West Virginia University Moot Court Board in accordance
with the Official Rules of the National Energy Moot Court Competition at the West Virginia
University College of Law. The brief was emailed before 1:00 p.m. Eastern time, February 3,
2019.
Respectfully submitted,
Team No. 6