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Team No. 14 i
C.A. No. 19-02345
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UNITED STATES COURT OF APPEALS FOR THE
TWELFTH CIRCUIT
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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,
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State of Franklin,
Appellant,
-v.-
Mammoth Pipeline LLC D.C. No. 19-0682
Appellee,
Citizens Against Pipelines,
Intervenor.
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Citizens Against Pipelines,
Petitioner,
-v.-
U.S. Department of Agriculture, USDA Docket No. 17-031
Respondent,
Mammoth Pipeline, LLC,
Intervenor.
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BIREF FOR MAMMOTH PIPELINE, LLC
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Team No. 14
i Team No. 14
TABLE OF CONTENTS
TABLE OF CONTENTS…………………………………………………………………………i
TABLE OF AUTHORITIES……………………………………………………………… .....ii-v
JURISDICTIONAL STATEMENT…………………………………………………………..…..1
STATEMENT OF THE ISSUES ………………………………………………………………...2
STATEMENT OF THE CASE………………………………..……………………………..…2-9
SUMMARY OF THE ARGUMENT ……………………………………………………...….9-12
ARGUMENT
I. Vandalia DEC waived its § 401 authority when it asked Mammoth to withdraw and
resubmit its request for water quality certification over a period of time greater than one
year……………………………………………..………………………………..…..…...12
II. The Army Corps of Engineers’ interpretation of its own regulation regarding the amount
of time within which a state must act on a CWA § 401 certification request is not worthy
of Auer deference, and therefore, West Vandalia DNR waived its § 401 certification
authority.…………………………………………………….………………………….. 20
III. The Eleventh Amendment does not preclude Mammoth Pipeline, LLC from sustaining a
condemnation action, pursuant to the Natural Gas Act, to acquire the necessary right-of-
way across property owned by the State of Franklin.………………………………..…..29
IV. The Secretary of Agriculture has the authority to grant Mammoth Pipeline, LLC a right-
of-way across the Homestead Farm. ………………………………………………...…..36
A. The Secretary of Interior is Not the Appropriate Agency Head to Grant the Right
of Way Across the Homestead Farm Because Homestead Farm is Not Part of, and
Does Not Traverse, the National Park
System.…………………………………………………………………………...36
B. The Secretary of Agriculture is the Appropriate Agency Head to Grant the Right-
of-Way Across the Homestead Farm Because USDA Holds the Conservation
Easement on Homestead Farm.……………………………………………..……40
CONCLUSION………………………………………………………………………………......43
CERTIFICATE OF SERVICE………………………………………………………………..…44
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TABLE OF AUTHORITIES
Page(s)
Court Cases:
Ala. Rivers Alliance v. FERC,
325 F.3d 290 (D.C. Cir.2003)........................................................................................................21
Alabama Rivers All. v. F.E.R.C.,
325 F.3d 290 (D.C. Cir. 2003).................................................................................................17, 25
Alcoa Power Generating Inc. v. F.E.R.C.,
643 F.3d 963 (D.C. Cir. 2011).......................................................................................................22
Auer v. Robbins,
519 U.S. 452 (1997)................................................................................................................19, 20
Blatchford v. Native Vill. of Noatak & Circle Vill.,
501 U.S. 775, 779 (1991)…………………………………………….………………….…..29, 33
Bowen v. Georgetown Univ. Hospital,
488 U. S. 204 (1988).....................................................................................................................23
Bowles v. Seminole Rock & Sand Co.,
325 U. S. 410 (1945)......................................................................................................................21
Christensen v. Harris County,
29 U.S. 576 (2000).………………………………...……………..………………………….11, 12
City of Arlington v. FCC,
569 U.S. 290 (2013).................................................................................................................22, 25
Clark v. Barnard,
108 U. S. 436, 447 (1883)………………………………………………………………………30
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666 (1999)................................................................................................................passim
Commodity Futures Trading Comm'n v. Schor,
478 U.S. 833 (1986)…………......................................................................................................30
Constitution Pipeline Co., LLC v. N.Y. State Dep't of Envtl. Conservation,
868 F.3d 87 (2d Cir. 2017).......................................................................................................25, 26
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Cowpasture River Pres. Ass'n v. Forest Serv.,
911 F.3d 150, 154 (4th Cir. 2018)............................................................................................37, 38
Dellmuth v. Muth,
491 U.S. 223(1989) .......................................................................................................................33
Fitzpatrick v. Bitzer,
427 U.S. 445 (1976). ……………………………………………………………………………. 33
Ford Motor Credit Co. v. Milhollin,
444 U.S. 555 (1980).......................................................................................................................22
Great Northern Life Ins. Co. v. Read,
322 U.S. 47 (1944)...................................................................................................................18, 24
Gunter v. Atlantic Coast Line R. Co.,
200 U.S. 273 (1906).......................................................................................................................30
Hill v. Blind Indus. & Servs. of Maryland,
179 F.3d 754 (9th Cir. 1999). ……………………….………………………………….……….30
Hoopa Valley Tribe v. FERC,
913 F.3d 1099, 1101 (D.C. Cir. 2019)...........................................................................................10
In re PennEast Pipeline Co., LLC,
938 F.3d 96, 103 (3d Cir. 2019). ……………………………………………………………28, 34
Kisor v. Wilkie,
139 S. Ct. 2400 (2019)...................................................................................................................25
Lapides v. Bd. of Regents of Univ. Sys. of Georgia,
535 U.S. 613 (2002).......................................................................................................................31
Lowe v. Hamilton Cty. Dep't of Job & Family Servs.,
610 F.3d 321(6th Cir. 2010). ………...………………………………………………………… 12
lden v. Maine,
527 U.S. 706 (1999).......................................................................................................................29
Marbury v. Madison,
5 U.S. 137 (1803)...........................................................................................................................30
Martin v. Occupational Safety and Health Review Commission,
499 U.S. 144 (1991)...........................................................................................................20, 23, 24
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Mead,
533 U. S. 218 (2001)…………………..........................................................................................29
Millennium Pipeline Co., L.L.C. v. Seggos,
860 F.3d 696 (D.C. Cir. 2017).......................................................................................................22
Monaco v. Mississippi,
292 U.S. 313 (1934).................................................................................................................29, 30
N.Y. State Dep't of Envtl. Conservation v. FERC,
884 F.3d 450 (2d Cir.2018)...........................................................................................................16,
17, 25
Paralyzed Veterans of Am. v. D.C. Arena L.P.,
117 F.3d 579, 587 (D.C. Cir. 1997)………………………………………………………….11, 12
Patsy v. Board of Regents of Fla.,
457 U.S. 496 (1982). ……………………….……………………………………………………30
Sabine Pipe Line, LLC v. A Permanent Easement of
4.25 +/- Acres of Land in Orange Cty., Texas,
327 F.R.D. 131, 139 (E.D. Tex. 2017). ………………...………………………………………. 34
Schneidewind v. ANR Pipeline Co.,
485 U.S. 293(1988). .....................................................................................................................15
Seminole Tribe of Fla. v. Fla.,
517 U.S. 44, 59 (1996). …………………………………………………………...……..29, 34, 35
State of Okla. v. Guy F. Atkinson Co.,
313 U.S. 508 (1941) ......................................................................................................................32
Thomas Jefferson Univ. v. Shalala,
512 U.S. 504 (1994).......................................................................................................................17
United States v. State of Montana,
134 F.2d 194 (9th Cir. 1943) ........................................................................................................32
Watt v. Alaska,
451 U.S. 259 (1981) ..................................................................................................................9, 10
Wayne Cty. v. United States,
252 U.S. 574 (1920).......................................................................................................................32
Wisconsin Dep't of Corr. v. Schacht,
524 U.S. 38 (1998). ......................................................................................................................30
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Constitution:
U.S. Const. Article I……...……………………………………………………..………………..35
U.S. Const. amend. V……...……………………………………………………………………..32
U.S. Const. amend. XI…...………………………………………………………………….passim
U.S. Const. amend. XVI……..……………………………………………………………. .passim
Statutes:
15 U.S.C. § 717 ……………………………………………………………………………..….. 35
15 U.S.C. § 717b(d) …………………………………………………………………………24
15 U.S.C. § 717f(c)(1)(A). ………………………………………………………………………24
15 U.S.C. § 717f(h)………………………………………………………………………….passim
15 U.S.C. § 717n(e)…………………………………………………………………….………. 31
15 U.S.C. § 717(c)(1)(B)……………………………………………………………………….. 32
16 U.S.C. § 814………………………………………………………………………………… 34
16 U.S.C. § 1243………………………………………….……………………………………..38
16 U.S.C. § 1244………………………………………………………….……………………..38
16 U.S.C. § 1248(a).……………………………………………………….……………….. 37, 38
30 U.S.C. § 185(a)……………………………………………..………….……………. 36, 39, 41
30 U.S.C. § 185(b)(1) ……………………………………………………………..…………….36
33 U.S.C. § 1341(a)(1)………………………………………………………………………24
33 U.S.C. §1344(a)………………………………………………………………………………24
54 U.S.C. § 100501(2019)………………………………………………………...…..…………36
Regulations:
18 C.F.R. §
4.38…………………….…………………………………………………………………………24
18 C.F.R. § 157.6(d)(1)……………………………………………………………………….… 31
18 C.F.R. § 157.14(A)(6)…………………………………………………………………...……31
18 C.F.R. § 385.214(a)(2)………………………………………………………………………..32
33 C.F.R. § 325.2(b)(1)(ii)……………………………..………………………………………24
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JURISDICTIONAL STATEMENT
This case is the result of the consolidation of three cases; two original actions filed in the
United States Court of Appeals for the Twelfth Circuit and one appeal of a District Court order to
the Twelfth Circuit.
In the first original action, C.A. No. 19-02345, Mammoth Pipeline, LLLC seeks review of
both Vandalia Department of Environmental Conservation’s and West Vandalia Division of
Natural Resources’ respective denials of Mammoth’s request for water quality certification under
section 401 of the Clean Water Act. Vandalia DEC denied Mammoth’s section 401 request on
October 31, 2019, and West Vandalia DNR denied Mammoth’s request on July 7, 2019. Mammoth
timely filed its petition for review on December 1, 2019. This Court has jurisdiction over a state’s
denial of a CWA section 401 water certification request pursuant to section 7 of the NGA.
In the second original action, USDA Docket No. 17-031, Citizens Against Pipelines have
petitioned this Court for review of the U.S. Department of Agriculture’s grant of a right-of-way to
Mammoth Pipeline, LLC.
The final action involved in this consolidated case is the State of Franklin’s appeal of the
September 30, 2019 order of the U.S. District Court of Franklin granting Mammoth’s application
for orders of condemnation and for preliminary injunctive relief. Franklin timely appealed this
decision and on December 1, 2019 this Court partially granted Franklin’s motion to stay.
This Court granted a joint motion for consolidation on December 21, 2019.
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STATEMENT OF THE ISSUES
1) Whether Vandalia DEC waived its CWA § 401 authority when it asked Mammoth
to withdraw and resubmit its request for water quality certification over a period of time greater
than one year.
2) Whether the Army Corps of Engineers’ interpretation of its own regulation
regarding the amount of time within which a state must act on a CWA § 401 certification request
is worthy of Auer deference2 so that West Vandalia DNR did not waive its § 401 certification
authority.
3) Whether Mammoth is precluded from condemning the land in the State of Franklin
because of Franklin’s Eleventh Amendment sovereign immunity.
4) Whether the Secretary of Agriculture had authority to grant Mammoth a right-of-
way across the Homestead Farm.
STATEMENT OF THE CASE
I. STATEMENT OF THE FACTS
In January 2015, the State of Franklin enacted its Clean Energy Act in order to further its
objective of reducing greenhouse gas emissions. Prior to January 2015, the State of Franklin
derived eighty-two percent of its electricity supply from coal. Several of Franklin’s coal-fired
power plants were over forty years old and policymakers began to recognize that such plants would
either require extensive upgrades or would need retire.
Mammoth Pipeline, LLC (“Mammoth”), a natural gas pipeline construction company,
predicted that natural gas would replace Franklin’s existing coal power plants as an alternative
fossil fuel that emits much less carbon dioxide when combusted. Mammoth proposed construction
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of an interstate pipeline to transport natural gas to Franklin, hereinafter known as the Mammoth
Pipeline Project (“the Project”).
The Project involves the construction, operation, and maintenance of three hundred sixty-
two (362) miles of forty-two (42) inch dimeter natural gas pipeline, three compressor stations,
main line valves, pig launchers and receivers, and communication towers to control the pipeline
system. The Project would cost slightly over four billion dollars and with transport capability of
over one billion cubic feet of natural gas per day. Mammoth projects completion of the Project in
2021.
Immediately west of Franklin lies the states of West Vandalia and Vandalia. Both states
house Maximum Shale, a major shale play within the mid-Atlantic region. The Project would
extend from West Vandalia through Vandalia and into Franklin and frack gas from the Maximum
Shale.
In July 2016, Mammoth held two open seasons for two months each, giving potential
customers the opportunity to enter into nonbinding agreements to sign up for a portion of the
pipeline capacity rights that would be available upon completion. Local gas distribution
companies looking to replace the use of heating oil by their customers, as well as natural-gas fired
electric generating stations to be built within Franklin and throughout the Northeast, recognized
the value in signing up for a portion of these capacity rights. When open season closed, Mammoth
had signed agreements for ninety percent of its anticipated capacity.
As required by the Natural Gas Act (“NGA”), Mammoth applied for approval of the
Project with the Federal Regulatory Commission (“FERC”). On September 1, 2017, FERC issued
an certificate of convenience and necessity (“Certificate Order”) approving the Project. The
Certificate Order listed conditions that Mammoth would need to satisfy before starting
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construction of the Project, including acquisition of water quality certifications under § 401 of the
Clean Water Act (“CWA”) from each state through which the pipeline would pass. Franklin
granted the requested §401 certification to Mammoth, but Vandalia and West Vandalia denied
Mammoth’s request.
A. Mammoth’s Request for § 401 Water Quality Certification from Vandalia
Prior to Mammoth’s § 401 request, Vandalia enacted the Climate Leadership and
Community Protection Act, under Governor Antonin Rossi’s governance, with the aim of
greenhouse gas reduction. Governor Rossi elected Bea Greene to serve as his Secretary of
Vandalia Department of Environmental Conservation (“DEC”). Bea Green was a former
Executive Director of Environmental Advocates of Vandalia and assigned to help Governor Rossi
pursue his anti-fossil fuel agenda. Since Bea Greene was confirmed as Secretary, Vandalia DEC
has not issued any § 401 water quality certifications necessary for natural gas pipelines to cross
Vandalia.
Mammoth filed its certification request with DEC on October 1, 2017. The request
detailed the general route of the pipeline, the techniques Mammoth intended to use at stream
crossings, and a general timeline of when Mammoth planned to install portions of the pipeline.
However, on September 28, 2019, Vandalia DEC asked that Mammoth withdraw and resubmit a
new request that provided more detail. Mammoth withdrew its request and resubmitted a new
request which Vandalia DEC received on November 1, 2018. The new request consisted of ninety-
seven pages and provided all of the additional details Vandalia requested, including more details
regarding: the streams that would be crossed; the schedule for crossing such streams; the location
of such crossings; and final surveyed plans for all wetland and stream crossings. Yet, on
September 28, 2019, Vandalia DEC again asked Mammoth to withdraw and resubmit a § 401
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certification application with further information. Because Vandalia failed to clarify the specific
additional information it needed to make their decision, Mammoth refused to withdraw and
resubmit its application. Vandalia DEC denied Mammoth’s application on October 31, 2019.
B. Mammoth’s Request for § 401 Water Quality Certification from West Vandalia
Because a large portion of the Project would require filling several large wetlands in
West Vandalia, both the Army Corps of Engineers (“Army Corps”) and West Vandalia Divisions
of Natural Resources (“West Vandalia DNR”) were involved in the § 401 permitting process. West
Vandalia received Mammoth’s § 401 certification request on January 8, 2018. Because of the
unforeseen issues Mammoth was having in retaining a permit from Vandalia, Mammoth had to
modify its proposed route in West Vandalia, necessitating a minor amendment to its § 401 request.
Because it is common practice for pipelines to simply update their § 401 requests if they modify
their route, instead of withdrawing their original request from January 8, 2018, Mammoth simply
amended it. West Vandalia DNR received the amended request on July 8, 2018.
On September 28, 2018, a public notice jointly issued by the Army Corps and FERC,
announced the availability of a Draft Environmental Impact Statement for the Mammoth Project.
The notice was published in the Federal Registrar on October 8, 2018. The notice named Colonel
Emil Foley, regional program director of the North Atlantic Division, as the official signing off on
behalf of the Army Corps. In the notice, Colonel Foley determined that West Vandalia DNR did
not receive a valid § 401 certification request from Mammoth until July 8, 2018, and therefore the
Army Corps and West Vandalia had one year from that date to consider Mammoth’s certification
request. However, Colonel Foley only held a mid-level position and neither the Chief of Engineers
nor the Commanding General of U.S. Army Corps of Engineers knew that he had made such a
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determination, nor were they consulted about the determination before it was placed in the public
notice. Nevertheless, West Vandalia DNR denied Mammoth’s § 401 request on July 7, 2019.
Aside from obtaining § 401 certificates, Mammoth also must obtain the necessary rights-
of-way in order to begin the Project.
C. Mammoth’s Attempted Condemnation of Land in the State of Franklin
The Mammoth Project would cross several miles of state-owned land within Franklin.
Most of the state-owned land, commonly referred to as Charitable Trust Property (“CT Property”),
was acquired from the Franklin Charitable Trust in the 1990s. The State of Franklin does not allow
the CT Property to be used for public purposes because it is home to several federally listed
threatened or endangered species and is ecologically important. Although the CT Property has not
been established as a wildlife refuge under any State or local law, the State of Franklin refuses to
grant the necessary property rights to allow the Mammoth Pipeline to cross the CT property at its
narrowest width, about three miles in length. Under FERC’s conditional approval of the Project
however, Mammoth has the power of eminent domain to acquire the rights of way necessary to
build their pipeline. The right-of-way necessary for the Mammoth Project is approximately
seventy-five (75) to one hundred (100) feet wide during construction.
D. National Park Land
A portion of the proposed route for the pipeline passes through land near the Shandaliah
Trail. The Shandaliah Trail, and the nearby Shandaliah National Park, are part of the National
Park System and are administered by the National Park Service (“NPS”), a sub-agency of the
Department of the Interior (“DOI”). The proposed pipeline route is near, but would not cross, the
Shandaliah Trail or the Shandaliah National Park. Rather, the Project would cross through land
near the Shandaliah Trail known as the Homestead Farm. The Homestead Farm is a privately-
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owned historic property maintained by the Homestead Preservation Trust (“HPT”). In a report
drafted by the NPS, the NPS determined that it was unnecessary to include Homestead Farm in
the National Park System, but that there should be a conservation easement in place to preserve
the view from the Shandaliah Trail and the Shandaliah National Park. As an expert in conservation
easements, the U.S. Department of Agriculture (“USDA”) negotiated the easement agreement and
terms with HPT for nearly two years. The DOI did not participate in acquisition of the conservation
easement and is not a holder of the conservation easement. As the conservation easement holder,
the USDA holds a vested property interest in Homestead Farm. Under the terms of the conservation
easement, the USDA is obligated to conduct periodic monitoring checks to ensure that Homestead
Farm is not being developed and that HPT is maintaining the farm in compliance with the terms
of the easement.
Mammoth approached the USDA and HPT to secure a seventy-five foot (75) right-of-
way for the portion of the Project that would cross through Homestead Farm land. Although the
right-of-way would be visible from the Shandaliah Trail, the USDA determined that the right-of-
way’s impact on the Shandaliah Trail was acceptable. HPT was also open to allowing the necessary
right-of-way in exchange for an undisclosed amount of compensation. Compensation for HPT
would enable HPT to undertake an extensive farmhouse and building restoration project on
Homestead Farm. Due to lack of opposition, the Secretary of Agriculture granted Mammoth the
right-of-way.
II. PROCEDURAL BACKGROUND
A. Citizens Against Pipelines
Citizens Against Pipelines (“CAP”) is a national environmental and public interest
organization based in Vandalia. It was founded to oppose further fossil fuel development in the
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region, and specifically to stop construction of interstate natural gas pipelines. CAP monitored the
plans for Mammoth Project closely and its alleged effects on CAP’s members. Because of the
commonality between the described issues and parties below, on December 21, 2018, the Twelfth
Circuit granted Mammoth, CAP, Vandalia DEC, West Vandalia DNR, and Franklin’s jointly filed
motion to have the actions consolidated for decision.
B. Mammoth’s Action Regarding Denial of § 401 Permits
On December 1, 2019, Mammoth filed suit in the Twelfth Circuit to challenge both
Vandalia DEC’s and West Vandalia DNR’s denial of its § 401 water quality certification.
Mammoth alleged that both denials were untimely because the one-year statutory period had run
in each case. Citizens Against Pipelines (“CAP”) intervened in the suit to argue that both states’
denials of § 401 certification were timely.
C. Franklin’s Appeal from the District Court Ruling
Mammoth’s District Court Action
Due to the state of Franklin’s refusal to grant Mammoth a right of way over its state-owned
lands, Mammoth filed a condemnation action and an action for preliminary injunctive relief in the
U.S. District Court of Franklin on May 30, 2019. CAP intervened and argued that notwithstanding
the 2017 amendments to the Natural Gas Act, the power to override Franklin’s Eleventh
Amendment sovereign immunity could not be delegated to Mammoth.
On September 30, 2019, the District Court granted Mammoth’s application for orders of
condemnation and for preliminary injunctive relief. Franklin and CAP moved for reconsideration
of the District Court’s denial of sovereign immunity and sought a stay of the District Court’s order
to prevent Mammoth from taking immediate possession of the State’s properties. The District
Court denied the requested relief. On December 1, 2019, the Twelfth Circuit granted Franklin and
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CAP’s appeal in part, preventing construction of the pipeline and expediting the appeal. The
Twelfth Circuit directed the parties to argue the merits of the case regarding Mammoth’s ability to
override Franklin’s Eleventh Amendment sovereign immunity.
D. CAP’S Action Regarding the Shandaliah Trail
On December 1, 2019, CAP filed suit in the Twelfth Circuit challenging the Secretary of
Agriculture’s authority to grant the right-of-way through the Homestead Farm under the Mineral
Leasing Act (“MLA”). CAP alleges that only the Secretary of Interior, as the head of the agency
charged with administering the Shandaliah Trail, has the authority to grant the right-of-way across
the Homestead Farm. Mammoth intervened, arguing that because the USDA held the conservation
easement on the Homestead Farm, the Secretary of Agriculture has the authority to grant the right-
of-way. Mammoth concedes that the presence of a conservation easement is enough to make the
Homestead Farm federal land, but contends that the land is administered by the Secretary of
Agriculture, not the Secretary of Interior.
SUMMARY OF THE ARGUMENT
I. Vandalia DEC waived its § 401 authority when it asked Mammoth to withdraw and
resubmit its request for water quality certification over a period of time greater than one
year.
The statutory one-year period in which Vandalia DEC had to act on Mammoth’s water
quality certification commenced on the date in which Vandalia DEC received Mammoth’s initial
request for water quality certification–October 1, 2017. Simply because Vandalia DEC continued
to allege that Mammoth did not provide them with enough information to make an informed
decision, does not mean that Vandalia DEC could continue to delay their decision indefinitely.
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Furthermore, the withdrawal and resubmission of Mammoth’s water quality certification request
did not trigger a new statutory period of review for Vandalia DEC.
Therefore, pursuant to CWA § 401, because Vandalia DEC failed to proffer their decision
within a one-year time frame, they waived their § 401 authority, and Mammoth is no longer obliged
to obtain a water quality certification from them to begin the pipeline project. To hold otherwise
would be inconsistent with the courts’ precedents, exploit the purpose of § 401, encourage the
usurpation of federal power, and allow Vandalia DEC to impermissibly expand upon the scope of
§ 401 to the detriment of other states and their citizens.
II. The Army Corps of Engineers’ interpretation of its own regulation regarding the amount
of time within which a state must act on a CWA § 401 certification request is not worthy of
Auer deference, and therefore, West Vandalia DNR waived its § 401 certification authority.
The Corps’ interpretation of its own regulation regarding the amount of time within which
a state must act on a CWA § 401 certification request is not worthy of Auer deference because the
regulation is not ambiguous, is unreasonable, is not authoritative, does not express the agency’s
substantive expertise, and was not a fair and considered judgement. Therefore, West Vandalia
DNR waived its § 401 certification authority and the Court should interpret 33 C.F.R.
§ 325.2(b)(1)(ii) according to its plain unambiguous meaning and hold that West Vandalia DNR
waived its § 401 certification authority.
III. The Eleventh Amendment does not preclude Mammoth from bringing a condemnation
action, pursuant to the Natural Gas Act, to acquire the necessary right-of-way across
property owned by the State of Franklin.
The Eleventh Amendment limits the ability of a private individual to drag a State into
federal court. However, State sovereign immunity is not absolute. A State may waive immunity
by voluntarily consenting to federal jurisdiction. College Sav. Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).
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Through the 2017 amendment to section 7(h) of the NGA Congress provided Franklin with
unmistakably clear notice that the State’s conduct regarding granting the rights-of-ways necessary
for interstate pipeline projects could subject Franklin to suit in federal court. Despite this notice
Franklin engaged in conduct consistent with a waiver of immunity. Specifically, Franklin did not
raise the issue in the FERC Certificate Order proceedings, nor did Franklin make any objections
when it granted Mammoth’s application for CWA § 401 water quality certification. Thus, pursuant
to College Savings, Franklin has waived any claim to sovereign immunity in this proceeding.
Alternatively, Congress constitutionally abrogated State sovereign immunity for
condemnation actions brought under the NGA. Through the 2017 amendment to section 7(h) of
the NGA, Congress made its intent to abrogate State immunity “unmistakably clear.” Further, a
FERC Certificate Order establishes a property interest in the licensee. Once vested with this
property interest the licensee is entitled to the protection of the Due Process Clause of the
Fourteenth Amendment. Thus, the Constitution authorizes this particular instance of abrogation
through the Enforcement Clause of the Fourteenth Amendment. Seminole Tribe of Fla. v. Fla.,
517 U.S. 44 (1996).
IV. The Secretary of Agriculture has the Authority to Grant Mammoth a Right-of-Way
Across the Homestead Farm.
Under the MLA § 185(a), the Secretary of Agriculture is the appropriate agency head to
grant Mammoth the right-of-way across the Homestead Farm because the USDA’s conservation
easement with HPT establishes a property interest with the USDA to administer and monitor
Homestead Farm. Also, the Secretary of Interior is not the appropriate agency head to grant the
right-of-way because Homestead Farm is not incorporated into, and does not traverse, any
National Park System land administered by the NPS (a sub-agency of the DOI). Therefore, the
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Secretary of Agriculture is the appropriate authority to grant a gas pipeline right-of-way across
Homestead Farm.
ARGUMENT
I. VANDALIA DEC WAIVED ITS § 401 AUTHROITY WHEN IT ASKED MAMMOTH
TO WITHDRAW AND RESUBMIT ITS REQUEST FOR WATER QUALITY
CERTIFICATION OVER A PERIOD OF TIME GREATER THAN ONE YEAR.
A. Legal Analysis
The Natural Gas Act of 1938 vests FERC with “exclusive jurisdiction” over the interstate
transportation of natural gas. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 301(1988).
Therefore, no company may construct a natural gas pipeline without first obtaining approval by
FERC through a certificate of public convenience and necessity. 15 U.S.C. § 717f(c)(1)(A). FERC
must ensure that the proposed pipeline complies with all applicable federal, state, and local
regulations before it can issue a certificate of public convenience. Millennium Pipeline Co., L.L.C.
v. Seggos, 860 F.3d 696, 698 (D.C. Cir. 2017). See also 15 U.S.C. § 717b(d); 18 C.F.R. § 4.38.
The Clean Water Act, one of the statutes at issue in this case, is one such regulatory regime. See
33 U.S.C. § 1341(a)(1).
When part of a pipeline project is planned to be situated in a State, the Clean Water Act
requires that State to certify that any discharge from the pipeline will comply with the Act's water-
quality requirements. 33 U.S.C. § 1341(a)(1). FERC cannot sign off on the pipeline’s construction
until the State either grants a water-quality certificate or waives the Act's requirements. See id.
Specifically, § 401 of the CWA states, “[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 . . . shall be waived with respect to such Federal
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application.” 33 U.S.C. § 1341(a)(1). In other words, under § 401, if the State fails to act within a
one-year period, the pipeline no longer needs a water-quality certificate to begin construction. Id.
In the case at hand, Vandalia failed to act within a reasonable period of time when they
repeatedly demanded that Mammoth withdraw and resubmit its request for water quality
certification, over a period of time greater than one year. Such a failure to act constituted a waiver
of Vandalia’s § 401 authority.
In N.Y. State Dep't of Envtl. Conservation v. FERC, the 2nd Circuit was tasked with
answering the question of when the one-year statutory review period a State department has to
review an application for § 401 certifications, under the CWA, begins. 884 F.3d 450 (2d Cir.
2018). In N.Y. State Dep't of Envtl. Conservation, the New York State Department of
Environmental Conservation (“NYSDEC”) received Millennium Pipeline Company's water
quality certification request on November 23, 2015, and responded by sending Millennium a notice
of incomplete application and continual requests for supplemental information. Id. at 452.
Millennium complied with NYSDEC’s requests for supplemental information and became
frustrated when the NYSDEC stated that it had “at a minimum, until August 30, 2017 to either
approve or deny the Application.” Id. at 453. Millenium sued NYSDEC, alleging that they failed
to act within the statutory one-year time period and therefore waived their § 401 authority. Id. The
2nd Circuit held that the one-year period commences when the State department receives an initial
request for water quality certification and not when the State department deems an application
“complete.” Id. at 457. The 2nd Circuit stated, “[t]he plain language of Section 401 outlines a
bright-line rule regarding the beginning of review: the timeline for a state's action regarding a
request for certification ‘shall not exceed one year’ after ‘receipt of such request.’” Id. at 455
(citing Alabama Rivers All. v. F.E.R.C., 325 F.3d 290, 296-97 (D.C. Cir. 2003)). The court further
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stated that § 401 does not specify that the one-year 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.” Id. Thus, theoretically, the state agencies
could request supplemental information indefinitely. Id.
In Hoopa Valley Tribe v. FERC, PacifiCorp, an electric power company, sought to alter
dams as part of their hydropower project. 913 F.3d 1099, 1101 (D.C. Cir. 2019). In order to do
so, PacifiCorp had to receive state water certifications under § 401 of the CWA, as part of a pre-
requisite to FERC’s overarching review. Id. At the request of the States, PacifiCorp continually
withdrew and resubmitted the same water quality certification applications, in an attempt to
annually reset the one-year time period for the States to act under the CWA. Id. The D.C. Circuit
invalidated this withdrawal and resubmittal practice, acknowledging that such a practice would go
against the purpose of the waiver provision under § 401 “to prevent a State from indefinitely
delaying a federal licensing proceeding.” Id. The D.C. Circuit court noted FERC’s initial finding
that although PacifiCorp's various resubmissions involved the same Project, each resubmission
was an independent request, subject to a new period of review, and thus the states had not failed
to act. Id. at 1104. The D.C. Court held that such findings by FERC were arbitrary and capricious.
Id.
Similar to N.Y. State Dep't of Envtl. Conservation, the statutory one-year period in which
Vandalia DEC had to act on Mammoth’s water quality certification commenced on the date in
which Vandalia DEC received Mammoth’s initial request for water quality certification–October
1, 2017. Simply because Vandalia DEC continued to allege that Mammoth did not provide them
with enough information to make an informed decision, does not mean that Vandalia DEC could
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continue to delay their decision indefinitely. Under § 401, Vandalia DEC had until one year,
October 1, 2018, to issue their decision on Mammoth’s initial request. Because Vandalia DEC
failed to proffer their decision within a one-year time frame, they waived their § 401 authority,
and Mammoth is no longer obliged to obtain a water quality certification from them to begin the
pipeline project.
Still, opposing counsel argues that each time Vandalia DEC asked Mammoth to withdraw
and resubmit their water quality application, the statutory one-year period was restarted at the
receipt of the resubmitted application, and therefore, Vandalia DEC’s denial, was timely.
However, this case is nearly identical to that of Hoopa Valley. Just like PacificCorp in Hoopa
Valley was asked by the States to withdraw and resubmit their § 401 applications in order to restart
the statutory clock, Mammoth was also asked to withdraw and resubmit their application, in an
attempt to delay FERC’s issuance to Mammoth of a certificate of necessary and public
convenience. Similar to the D.C. court’s holding in Hoopa Valley, the withdrawal and
resubmission of Mammoth’s water quality certification request did not trigger a new statutory
period of review for Vandalia DEC. Therefore, Vandalia DEC waived their § 401 authority by
failing to act within one year of Mammoth’s initial application submission.
CAP will likely argue that the case at hand should not follow the same outcome as Hoopa
Valley because unlike in the case at hand, in Hoopa Valley, the same water quality request was
withdrawn and resubmitted each time. However, such a distinction is minor. While the court in
Hoopa Valley did indicate that they would decline to address the situation where the applicant
withdrew its request and submitted a wholly new one in its place, such an arrangement is far from
the situation the case at hand presents. See Hoopa Valley Tribe, 913 F.3d at 1104. When Vandalia
DEC asked Mammoth to withdraw and resubmit their application, Mammoth did not submit a
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wholly new request. Rather, Mammoth merely provided additional details pertaining to the same
subjects it addressed in its initial application. For example, in its initial application, Mammoth
detailed the general route of the pipeline, the techniques Mammoth intended to use at stream
crossings, and a general timeline of when Mammoth planned to install portions of the pipeline.
Pursuant to Vandalia DEC’s request Mammoth’s resubmittal of its application merely filled in the
details of its initial request by providing specifics on the general route, techniques, and timeline it
planned to use, including the specific: streams that would be crossed, schedule for crossing such
streams, location of the crossing, and surveyed plans for the wetland and stream crossings. In
other words, Mammoth’s resubmission of its application was merely a more detailed version of its
initial application rather than a wholly new request as CAP will likely allege.
CAP will also likely argue that requiring State agencies to act on an initial request within
one year will force it to render premature decisions. Such an argument however is misguided.
Similar to the court’s reasoning in N.Y. State Dep't of Envtl. Conservation, if Vandalia DEC
thought that Mammoth’s application was incomplete, it could have denied the application without
prejudice, within the one year time frame—which, “would constitute ‘acting’ on the
request under the language of Section 401.” See N.Y. State Dep't of Envtl. Conservation, 913 F.3d
at 456. Furthermore, it is not for the courts to resolve CAP’s fears through manipulation of the
plain meaning of the statute. Rather, the separation of powers, devised by the framers of our
Constitution, mandate that such is a task best left to the legislature.
CAP may identify a portion of the court’s opinion in N.Y. State Dep't of Envtl.
Conservation, which suggested, in light of various practical difficulties, that a state could “request
that the applicant withdraw and resubmit the application.” See N.Y. State Dep't of Envtl.
Conservation, 884 F.3d at 455-56 (citing Constitution Pipeline Co., LLC v. N.Y. State Dep't of
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Envtl. Conservation, 868 F.3d 87, 94 (2d Cir. 2017)). However, as noted in Hoopa Valley, “[t]hat
suggestion was not central to the court's holding. The dicta was offered to rebut the state agency's
fears that a one-year review period could result in incomplete applications and premature
decisions.” See Hoopa Valley Tribe, 913 F.3d at 1105. Furthermore, if one was to examine the
Constitution Pipeline opinion, one would realize that the court did not decide the timeliness issue
in regards to the withdrawal and resubmittal practice, but rather dismissed the argument for lack
of jurisdiction. See Constitution Pipeline Co., LLC, 868 F.3d at 94.
B. Policy Analysis
§ 401 of the CWA requires state action within a reasonable period of time, not to exceed
one year. Congress intended § 401 to curb a state's “dalliance or unreasonable delay.” See, e.g.,
115 Cong. Rec. 9264 (1969). Courts have repeatedly recognized that the waiver provision was
created “to prevent a State from indefinitely delaying a federal licensing proceeding.” See Alcoa
Power, 643 F.3d at 972-73; Millennium Pipeline Co. v. Seggos, 860 F.3d 696, 701-02 (D.C. Cir.
2017); and Hoopa Valley Tribe, 913 F.3d at 1105. Moreover, because Congress “recognized that
state agencies could effectively block the construction of natural gas pipelines by indefinitely
delaying action on permit applications . . . [they amended the] Natural Gas Act to ensure that ‘sheer
inactivity by the State’ could not frustrate ‘the Federal application’ process.” Millennium Pipeline
Co., 860 F.3d at 701 (quoting H.R. Rep. 91-940, at 55 (1970) (Conf. Rep.), as reprinted in 1970
U.S.C.C.A.N. 2712, 2741).
Yet, by requiring Mammoth to withdrawal and resubmit their water quality application,
and failing to point to any specific information needed for a final decision, Vandalia DEC has
attempted to exploit the purpose of § 401 and delay the Mammoth pipeline project. Vandalia
DEC’s inability to provide Mammoth with the information they needed to make their final
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certification decision, illustrates Vandalia DEC’s goal to further Governor Rossi’s and Bea
Greene’s anti-fossil fuel agenda, by unreasonably delaying the pipeline project, and using the
intervening time to consider how best to deny the water quality permit in a manner that would
withstand judicial review. This notion is further supported by the fact that since Bea Green has
served as Secretary of Vandalia DEC, Vandalia DEC has not issued any Section 401 certifications
for natural gas pipelines.
Not only do the actions of Vandalia DEC serve to undermine the purpose of the CWA by
unreasonably delaying a federal license proceeding, but by “shelving water quality certifications,
the [Vandalia DEC] usurp[s] FERC's control over whether and when a federal license will issue.”
See Hoopa Valley Tribe, 913 F.3d at 1104. Thus, if allowed, Vandalia DEC’s withdrawal and
resubmission scheme “could be used to indefinitely delay federal licensing proceedings and
undermine FERC's jurisdiction to regulate such matters.” Id. Such an outcome would serve to
circumvent a congressionally granted authority over the construction or extension of a natural gas
pipeline. See 15 U.S.C. § 717f(c)(1)(A).
Still, aside from directly going against the purpose of § 401 and promoting the usurpation
of federal power, another issue will arise if the Court allows Vandalia DEC to use the withdrawal
and resubmission scheme to evade the statutory time requirement. As previously noted, it is clear
that Vandalia DEC has ulterior motives in delaying and ultimately, untimely, denying Mammoth’s
water quality certification. In other words, Vandalia DEC is attempting to improperly expand the
scope of § 401 to unreasonably hold up the pipeline project for concerns not relating to Vandalia’s
water quality. Vandalia DEC’s tactics are illustrative of strategies used to preempt gas pipeline
projects, by causing unnecessary delay that could result in economic burdens too great for pipeline
developers to bear.
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Not requiring state agencies like Vandalia DEC to adhere to the one-year statutory deadline
from the date of the licensee applicant’s initial 401 application, would not only harm the licensee
applicant and the federal government, but also public participants, who have a strong interest in
ensuring timely completion of the federal licensing. These public participants could be other states
like Franklin, and their citizens who desperately need access to natural gas. Without the proper
infrastructure, i.e. natural gas pipelines, the prices of natural gas in areas like Franklin who do not
currently have enough access to it, will be incredibly high. Consequently, the price of electricity
will increase, meaning high operating costs for business and governmental entities that could result
in shutdowns and job losses. Natural gas pipeline infrastructure could help streamline surrounding
economies and would help to create jobs and decrease utility costs. Natural gas pipeline
infrastructures would also help to boost the U.S. economy, by allowing states without access to
natural gas, to get access from states who do, decreasing the need for those states to rely on gas
imports from other countries, and consequentially increasing energy security. Natural gas is
convenient, consistent, and reliable. Unlike alternative sources of energy (i.e. renewables), one
does not have to worry about the disruption of supply with natural gas. Natural gas has been
considered to be a relatively cheap energy source and is less expensive than other fossil fuels.
Natural gas has also been viewed as the bridge necessary to transition states like Franklin from
fossil fuels to sustainable energy. Allowing Vandalia DEC to improperly expand the scope of §
401 to prevent the development of interstate natural gas pipelines, in furtherance of their own
political agenda, effectively allows them to withhold from surrounding states, like Franklin, and
their citizens, all of these benefits of natural gas.
Furthermore, when state certifying authorities such as Vandalia DEC exceed the scope of
review they are entitled to under § 401, they are effectively attempting to address issues
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surrounding natural gas pipeline projects that have been expressly delegated to federal agencies
like FERC. When FERC issues the certificate of public convenience and necessity, FERC has
decided that the interstate natural gas pipeline is in the public’s best interest and will provide for
the public good. State certifying authorities cannot use § 401 as a gatekeeper to natural pipeline
projects simply because they feel otherwise.
To address CAP’s concerns that Vandalia citizens could be impacted by the effects the
pipeline has on their water, it is important to remember that simply because FERC has issued a
certificate of public convenience and necessity, does not mean that individuals who are negatively
impacted by natural gas pipeline projects, cannot have their day in court. Although as a public
utility, interstate natural gas pipelines may get the benefit of the doubt, they are not completely
shielded from members of the public and individuals do have common law rights that they can
exercise when they want to counter such energy projects. See e.g., Burch v. NedPower Mount
Storm, LLC, 220 W. Va. 443 (2007).
In order to remain consistent with the courts’ precedents, uphold the purpose of § 401,
prevent the usurpation of federal power, and prevent Vandalia DEC from impermissibly expanding
upon the scope of § 401 to the detriment of other states and their citizens, this Court should hold
that Vandalia DEC waived its § 401 authority when it asked Mammoth to withdraw and resubmit
its request for water quality certification over a period of time greater than one year.
II. THE ARMY CORPS OF EINGINEERS’ INTERPRETATION OF ITS OWN
REGULATION REGARDING THE AMOUNT OF TIME WITHIN WHICH A STATE
MUST ACT ON A CWA § 401 CERTIFICATION REQUEST IS NOT WORTHY OF AUER
DEFERENCE, AND THEREFORE, WEST VANDALIA DNR WAIVED ITS § 401
CERTIFICATION AUTHORITY.
Mammoth also needed a § 401 water quality certification from West Vandalia, as part of a
pre-requisite to FERC’s issuance of a certificate of convenience and necessity. Because
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construction of the Pipeline will involve the filling of wetlands in West Vandalia, the CWA
requires that Mammoth also obtain clearance from the Corps before beginning construction and
the Corps is in involved in the § 401 permitting process. 33 U.S.C. § 1344(a); see also, 33 U.S.C.
§ 1341(a)(1); 33 C.F.R. § 325.2(b)(1)(ii). Specifically, 33 C.F.R. § 325.2(b)(1)(ii) states:
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. If, however,
special circumstances identified by the district engineer require that action on an
application be taken within a more limited period of time, the district engineer shall
determine a reasonable lesser period of time, advise the certifying agency of the
need for action by a particular date, and that, if certification is not received by that
date, it will be considered that the requirement for certification has been waived.
Similarly, if it appears that circumstances may reasonably require a period of time
longer than sixty days, the district engineer, based on information provided by the
certifying agency, will determine a longer reasonable period of time, not to exceed
one year, at which time a waiver will be deemed to occur.
33 C.F.R. § 325.2(b)(1)(ii).
In the Corps’ public notice for the Mammoth Pipeline Project, the Corps’ included a
statement interpreting 33 C.F.R. § 325.2(b)(1)(ii) in regards to the amount of time within which a
state must act on a CWA § 401 certification request. The second issue in this case asks whether
the Corps’ interpretation of their regulation is worthy of Auer deference. It is not.
In Auer v. Robbins, the Court adopted the view that one should defer to an agency’s
interpretation of its own regulations unless the agency’s position is “plainly erroneous.” 519 U.S.
452, 461. That said, Auer deference is not applicable to all agency interpretations of a regulation.
See Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (“Auer deference is not the answer to every question
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of interpreting an agency’s rules.”). In fact, Auer deference can only arise if a regulation is
genuinely ambiguous. Id. To the extent the regulation is found to be genuinely ambiguous, in
order to receive Auer deference, the agency's reading must still be reasonable. Id. Even if the
regulation is found to be ambiguous and the agency’s interpretation is reasonable, the Court still
must consider “whether the interpretation is authoritative, expertise-based, considered, and fair to
regulated parties,” in order to grant Auer deference. Id. at 2419.
In order to discern whether a regulation is ambiguous, a court must exercise all of the
standard tools of interpretation. Id. at 2415. See also, Bowles v. Seminole Rock & Sand Co., 325
U. S. 410, 414 (1945) (“[A] court must necessarily look to the administrative construction of the
regulation if the meaning of the words used is in doubt.”). In Kisor, the Court stated that the
standard tools used to discern whether a regulation is genuinely ambiguous include an examination
of its text, structure, and history. 139 S. Ct. at 2416. “If uncertainty does not exist, there is no
plausible reason for deference. The regulation then just means what it means—and the court must
give it effect, as the court would any law.” Id. at 2415. In Christensen v. Harris County, after
finding that the regulation was not ambiguous, but rather plainly permissive, the Court held that
Auer deference was not warranted and noted that to “defer to the agency's position would be to
permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.”
529 U.S. 576, 589 (2000).
In order to discern whether an agency’s interpretation of their regulation is reasonable, a
court must decide if the interpretation comes “within the zone of ambiguity the court has identified
after employing all its interpretive tools.” Kisor, 139 S. Ct. at 2416. In other words, the “text,
structure, history, and so forth at least establish the outer bounds of permissible interpretation.”
Id. In Kisor, the Court notes that certain lower courts have been wrong in thinking that agency
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constructions of rules receive greater deference than agency constructions of statutes. Id. The
Kisor Court makes clear that an agency can fail to interpret their regulation reasonably. Id.
In considering whether an agency’s interpretation of their regulation is authoritative, the
court must decide whether the interpretation was actually made by the agency. Id. In other words,
“it must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc statement
not reflecting the agency’s views.” Id. (citing Mead, 533 U. S. 218, 257-59 (2001) (Scalia, J.,
dissenting)). “The interpretation must at the least emanate from [the Secretary or his chief
advisers], using those vehicles, understood to make authoritative policy in the relevant context.”
Id. For example, in Paralyzed Veterans of Am. v. D.C. Arena L.P., the court refused to consider
a speech of a mid-level agency official of an agency as an authoritative departmental position. 117
F.3d 579, 587 (D.C. Cir. 1997).
In considering whether the agency’s interpretation of their regulation expresses the
agency’s substantive expertise, the court should consider the subject matter of the dispute and
decide whether it is distant from the agency’s ordinary duties. Kisor, 139 S. Ct. at 2417. See also,
City of Arlington v. FCC, 569 U.S. 290 (2013). In Kisor, the Court acknowledged that when
deciding who should have interpretative power as between courts and agencies, Congress likely
“intended to invest interpretive power in whichever actor was ‘best position[ed] to develop’
expertise about the given problem.” Id. (citing Martin v. Occupational Safety and Health Review
Commission, 499 U.S. 144, 149 (1991)). Generally, “agencies have a nuanced understanding of
the regulations they administer.” Id. This point is most obvious when a rule is “technical.” Id.
However, basis for deference significantly decreases when the subject matter of the dispute “fall[s]
within the scope of another agency’s authority.” Id. at 2418. In Ala. Rivers Alliance v. FERC,
FERC’s interpretation of the CWA was not entitled to judicial deference because the
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Environmental Protection Agency (EPA), and not FERC, is charged with administering the statute.
325 F.3d 290 (D.C. Cir. 2003).
Finally, when considering whether the agency’s interpretation of their regulation was a fair
and considered judgment, the Court should “decline to defer to a merely convenient litigating
position or post hoc rationalization advanced to defend past agency action against attack.” Kisor,
139 S. Ct. at 2418. See also, Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 213 (1988). A
court may also not defer to a new interpretation that creates “unfair surprise” or a “lack of a fair
warning” to regulated parties. Id. The Court has therefore, only rarely given Auer deference to an
agency construction “conflict[ing] with a prior” one. Thomas Jefferson Univ. v. Shalala, 512 U.S.
504 (1994). For example, in Watt v. Alaska, the Court held that an agency’s recent interpretation
of a statute, that was inconsistent with its prior position, was entitled to considerably less deference.
451 U.S. 259 (1981).
The Corps’ interpretation of its own regulation regarding the amount of time within which
a state must act on a CWA § 401 certification request is not worthy of Auer deference because the
regulation is not ambiguous and is unreasonable. To the extent the Court finds that the regulation
is ambiguous and reasonable, the Corps’ interpretation is not authoritative, does not express the
agency’s substantive expertise, and was not a fair and considered judgement. Therefore, West
Vandalia DNR waived its § 401 certification authority.
An examination of 33 C.F.R. § 325.2(b)(1)(ii)’s text, proves that the regulation is
unambiguous. A plain textual interpretation of the regulation makes clear that if the certifying
state agency fails to act on a certification request within sixty days after receipt, the certification
will be deemed waived. There is no need to further analyze this portion of the regulation. Sixty
days means sixty days. The only way in which the Corps can extend this sixty-day time frame is,
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based on information provided to them by the certifying agency, the secretary engineer determines
a longer period of time is needed before waiver occurs. The phrase, “based on information
provided to them by the certifying agency” is clear. In the case at hand, the record indicates that
the certifying agency, Vandalia DEC, did not provide the Corps with any information. There again
is no ambiguity here. If the state agency does not provide Corps with information, there cannot be
a determination from that district engineer that is based on information provided by the certifying
agency. Furthermore, the phrase “district engineer” is clear. In the case at hand, Colonel Foley, a
regional program director signed off on the public notice as the Corp’s official. Once again, the
term district engineer can only mean the job title–district engineer. A regional program director,
therefore, is not a district engineer. If a regional program director was a district engineer, there
would be no reason for the Corps to distinguish the positions by title. Based upon these very
simplistic textual interpretations, the regulation cannot be anything but unambiguous. Similar to
the Court’s holding in Christensen, because the regulation in the case at hand is not ambiguous,
but rather plainly permissive, this Court should hold that Auer deference is not warranted because
to defer to the Corp's position would be to permit the agency, under the guise of interpreting a
regulation, to create de facto a new regulation. Instead, similar to the Court’s analysis in Kisor,
the Court should find that the regulation means what it means, and give it effect.
CAP will argue that the regulation is ambiguous. CAP will likely allege that what is
required for a request for certification to be valid, is ambiguous. CAP may also allege that there
is ambiguity in determining how much time beyond sixty days, is a reasonable amount of time for
a state to act on a certification request, under the regulation. However, to the extent the court does
find that the regulation is ambiguous, Auer deference is not warranted because the agency’s
interpretation of the regulation is unreasonable. More specifically, Colonel Foley’s interpretative
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statement that West Vandalia DNR had one year from July 8, 2018 to consider Mammoth’s
certification request, is unreasonable. As articulated in Kisor, such an interpretation does not come
“within the zone of ambiguity” identified after employing the interpretive tools above. 139 S. Ct.
at 2416. In other words, the agency’s interpretation does not fall within the aforementioned
analysis of the text and structure of the regulation. As previously mentioned, Colonel Foley was
not the district engineer and he did not consider any information from West Vandalia DNR in
determining to extend the sixty-day time frame, nor did he state any reason for choosing one year
as a longer reasonable period of time.
However, to the extent the Court finds that the regulation is ambiguous and the agency’s
interpretation of the regulation is reasonable, the Court should not give the interpretation Auer
deference because the interpretation is not authoritative, does not express the agency’s substantive
expertise, and was not a fair and considered judgement. Similar to the mid-level agency official
in Paralyzed Veterans, Colonel Foley’s position as a regional program director, was also a mid-
level position, and therefore should not be considered an authoritative position. As required by
the Court in Kisor, the interpretation at issue in this case, could not have emanated from the
Secretary of his (or her) chief advisors because neither the Chief of Engineers nor the Commanding
General of U.S. Army Corps of Engineers was aware that Colonel Foley made such an
interpretation.
CAP may cite Ford Motor Credit Co. v. Milhollin to support its likely argument that not
everything the agency does comes from, or is even in the name of, the Secretary or his chief
advisers. In Ford Motor, the Court deferred to official staff memoranda that were published in the
Federal Register, even though never approved by the agency head. 444 U.S. 555, 566 (1980).
However, the Ford Motor Court’s reasoning for granting deference to the official staff, was
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because Congress had specifically designated them as the primary source for interpretation and
application of the law in question. In the case at hand, there is no evidence indicating that Congress
specifically designated Colonel Foley, or any mid-level regional program director, to interpret the
CWA or any regulations made pursuant thereto.
Futhermore, the Corps’ interpretation of their regulation does not express the agency’s
substantive expertise. As noted in Kisor, agencies have a nuanced understanding of the regulations
they administer and Congress “intended to invest interpretive power in whichever actor was ‘best
position[ed] to develop’ expertise about the given problem.” 139 S. Ct. at 2417. In the case at
hand, it is the Environmental Protection Agency (“EPA”), not the Corps, that is charged by
Congress to administer the CWA and therefore, the basis for Auer deference of the Corps’
interpretation significantly decreases because the subject matter of the dispute in the case at hand
falls within the scope of another agency’s authority. Id. Also, following the logic in Kisor, the
EPA, not the Corps, is in the best position to provide expertise regarding the amount of time within
which a state must act on a § 401 certification. Similar to the court’s holding in Ala. Rivers Alliance
the Corps’ interpretation of a regulation interpreting the CWA should not be entitled to judicial
deference because the EPA is charged with administering the statute. 325 F.3d 290 (D.C. Cir.
2003). More importantly for our present purposes, on June 7, 2019, the EPA administered
guidance to clarify and provide recommendations concerning the implementation of § 401.
Specifically, the EPA states that, “[u]pon receipt of a written request for certification, the timeline
for review begins, and the EPA recommends that states and tribes promptly begin evaluating the
request to ensure timely action.”1 Because the EPA, as the administer of the CWA, has provided
1 Clean Water Act Section 401 Guidance, EPA.GOV, (June 7,
2019),https://www.epa.gov/sites/production/files/201906/documents/cwa_section_401_guidance.pdf.
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an interpretation that is opposite of that provided by the Corps, the Court should be even more
inclined not to provide the Corps’ interpretation Auer deference.
Finally, the Corps’ interpretation of their regulation is not a fair and considered judgment.
It is consistent with the common practice for pipelines to simply update their § 401 requests when
they modify their route, as Mammoth did, instead of withdraw them. Furthermore, it is common
practice for West Vandalia DNR to not treat a minor amended § 401 request like Mammoth’s as
triggering a restart of the one-year statutory clock. The Corps interpretation deeming Mammoth’s
minor amendments to trigger a restart of the statutory clock, is completely inconsistent with the
regulated community’s common practice and would create an unfair surprise and a lack of a fair
warning to regulated parties.
CAP will likely argue that the Corps’ interpretation is a fair and considered judgement
because it is consistent with the Corps’ previously taken position regarding the need for the
certifying state agency to deem the certification request complete before the clock started.
However, as stated directly in the Corps’ regulation, the usual or typical amount of time a certifying
agency has to act after receiving a valid request has traditionally been sixty days. By not acquiring
any information from West Vandalia DNR that could justify determining a reasonable longer
period of time in which they had to review the certification, Corps interpretation is an unfair
surprise to regulated parties. Similar to Watt, its interpretation is inconsistent with its common
practice, and should not be entitled Auer deference.
For the aforementioned reasons, the Corps’ interpretation of its own regulation regarding
the amount of time within which a state must act on a CWA § 401 certification request is not
worthy of Auer deference. Upon finding that the Corps’ interpretation is not worthy of Auer
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deference, the Court should interpret the 33 C.F.R. § 325.2(b)(1)(ii) according to its plain
unambiguous meaning and hold that West Vandalia DNR waived its § 401 certification authority.
III. THE ELEVENTH AMENDMENT DOES NOT PRECLUDE MAMMOTH FROM
SUSTAINING A CONDEMNATION ACTION, PURSUANT TO THE NATURAL GAS
ACT, TO REQUIRE THE NECESSARY RIGHT-OF-WAY ACROSS PROPERTY
OWNED BY THE STATE OF FRANKLIN.
The State of Franklin’s Eleventh Amendment sovereign immunity does not preclude
Mammoth from commencing condemnation proceedings in federal court to acquire the necessary
rights-of-way over property owned by the State of Franklin. 2
The District Court correctly concluded that Franklin’s Eleventh Amendment sovereign
immunity was not applicable to the case at bar. The State of Franklin’s conduct throughout the
proceedings surrounding the Mammoth Pipeline Project constitutes a clear waiver of Franklin’s
claim to Eleventh Amendment sovereign immunity. See, Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).
In the alternative, Congress properly abrogated Franklin’s Eleventh Amendment sovereign
immunity, in accordance with Blatchford v. Native Vill. of Noatak & Circle Vill., 501 U.S. 775,
779 (1991).
The 2017 Amendment to the NGA is Congress’ “clear statement” that it intended to
delegate the power to override a State’s Eleventh Amendment sovereign immunity to those acting
under the Act. Further, the NGA, through a FERC certificate order, creates a property right that is
entitled to the Due Process guarantee of the Fourteenth Amendment. Thus, in order to protect this
property right, Congress has the authority to delegate the power to override Franklin’s sovereign
2 “Whether an action is barred by the Eleventh Amendment is a question of law, and is reviewed de novo. However,
we accept any pertinent factual findings by the district court unless they are clearly erroneous.” In re PennEast
Pipeline Co., LLC, 938 F.3d 96, 103 (3d Cir. 2019), as amended (Sept. 11, 2019), as amended (Sept. 19, 2019)
(Quoting Lowe v. Hamilton Cty. Dep't of Job & Family Servs., 610 F.3d 321, 324 (6th Cir. 2010)).
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immunity pursuant to section five of the fourteenth amendment. Seminole Tribe of Fla. v. Fla.,
517 U.S. 44, 59 (1996).
The Eleventh Amendment embodies the principle of sovereign immunity; however, “the
sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh
Amendment.” lden v. Maine, 527 U.S. 706, 713 (1999). Rather than a plain reading of the Eleventh
Amendment, sovereign immunity issues turn on “postulates which limit and control: even the text
of the Constitution.” Monaco v. Mississippi, 292 U.S. 313, 322 (1934).
Before the formation of the United States, the several states were fully independent
sovereigns and, even after the ratification of the Constitution, the states maintain certain attributes
of sovereignty. Based on this historic context, the guiding postulate is that, absent consent, a state
is immune from suit in federal court, “save where there is a ‘surrender of this immunity in the plan
of the convention.’ The Federalist, No. 81.” Monaco, supra, at 322–323 (footnote omitted).
Consistent with these principles, state sovereign immunity has been characterized as a
“personal privilege” rather than a true restriction of the subject-matter jurisdiction of a federal
court. Clark v. Barnard, 108 U. S. 436, 447 (1883); Hill v. Blind Indus. & Servs. of Maryland, 179
F.3d 754, 760–61 (9th Cir.), opinion amended on denial of reh'g, 201 F.3d 1186 (9th Cir. 1999).
This is necessarily true because subject-matter jurisdiction cannot be waived nor may Congress
alter the subject-matter of the federal courts, outside the confines of Article III. Marbury v.
Madison, 5 U.S. 137, 173-80 (1803); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,
851 (1986) (“[T]he parties by consent cannot confer on federal courts subject-matter jurisdiction
beyond the limitations imposed by Article III, § 2.”).
Yet, a state may voluntarily consent to suits that it ordinarily would be immune from.
Monaco, 292 U.S. at 322. Through its conduct, a state may waive its sovereign immunity. Gunter
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v. Atlantic Coast Line R. Co., 200 U.S. 273, 284 (1906) (“Although a state may not be sued without
its consent, such immunity is a privilege which may be waived. . .”).3
Waiver of Eleventh Amendment sovereign immunity is consistent with the basis of the
States’ immunity:
In large part the rule governing voluntary invocations of federal jurisdiction has
rested upon the problems of inconsistency and unfairness that a contrary rule of law
would create. And that determination reflects a belief that neither those who wrote
the Eleventh Amendment nor the States themselves (insofar as they authorize
litigation in federal courts) would intend to create that unfairness.
Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 622–23 (2002) (citations
omitted).
The Supreme Court has found a waiver of State sovereign immunity in two situations. Coll.
Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675–76 (1999).
When a State voluntarily invokes the jurisdiction of federal courts. Id. (citing Gunter v. Atlantic
Coast Line R. Co., 200 U.S. 273, 284 (1906)). And when a State makes a “clear declaration” that
it will submit to federal jurisdiction. Coll. Sav. Bank., 527 U.S. at 676. (citing Great Northern Life
Ins. Co. v. Read, 322 U.S. 47, 54 (1944)).
A State waives its sovereign immunity by engaging in activity subject to congressional
regulation if: (1) Congress clearly and unambiguously puts the state on notice that the state's
conduct subjects it to federal suits brought by individuals; (2) the state may refuse from
participating in the particular activity without otherwise excluding itself from conduct that is
lawfully within its powers; and (3) the state elects to engage in the conduct after it receives notice
that such conduct subjects it to suit. Coll. Sav. Bank, 527 U.S. at 675–87 (1999).
3 Immunity being a privilege is further supported by the fact that a court is not required to raise issues of sovereign
immunity on its own. Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (Citing Patsy v. Board of
Regents of Fla., 457 U.S. 496, 515, n. 19 (1982)).
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As to the first requirement, the NGA clearly and unambiguously put Franklin on notice
that the state’s conduct subjects it to federal suits brought by individuals. FERC was required to
notify Franklin of FERC’s receipt of Mammoth’s application for certification of public
convenience and necessity. 18 C.F.R. § 157.6(d)(1). This application included the proposed route
of the pipeline. 18 C.F.R. § 157.14(A)(6). Further, the application was submitted after the 2017
amendment to the NGA. The inclusion of state-owned property along the route and the NGA
amendment’s language permitting the condemnation of state land clearly and unambiguously put
Franklin on notice that its conduct could subject it to federal suits brought by individuals.
Specifically, Franklin was put on notice that should it fail to reach an agreement with Mammoth
that Mammoth may seek relief in federal court through section 7(h) of the NGA. 15 U.S.C. §
717f(h).
Before FERC can issue a certificate, it must conduct a public hearing where the agency
acts in a quasi-judicial function. 15 U.S.C. § 717(c)(1)(B). The record is unclear as to whether
Franklin participated in FERC’s Mammoth Pipeline Project proceedings, although Franklin was
permitted to intervene. See, 15 U.S.C. § 717n(e); 18 C.F.R. § 385.214(a)(2). Finally, FERC’s
certificate order for the project was conditioned on CWA section 401 approval from Franklin. The
Franklin Department of Environmental Protection, an instrumentality of the State of Franklin,
approved Mammoth’s application for CWA section 401 water quality certification in April 2019.
Thus, Congress made it unmistakably clear that Franklin’s conduct regarding the Mammoth
Pipeline Project, i.e., refusing to grant the necessary right-of-way, could expose the state to a suit
in federal court brought by Mammoth.
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The second requirement is also met in the present case. Excluding Franklin’s ability to rely
on sovereign immunity in regard to the condemnation of property pursuant to the NGA does not
exclude Franklin from conduct that is lawfully within its powers.
Subject to the requirements of the Fifth Amendment, the Federal Government may
condemn state-owned property. United States v. State of Montana, 134 F.2d 194, 196 (9th Cir.
1943) (citing State of Okla. v. Guy F. Atkinson Co., 313 U.S. 508, 534 (1941)); Wayne Cty. v.
United States, 53 Ct.Cl. 417 (U.S. Ct. Cl. 1918), aff'd. 252 U.S. 574 (1920). FERC’s certificate
order, and the NGA, provide that the pipeline is within the public interest. Further, Congress and
FERC exercise complete regulatory authority over the siting, certification, and construction of
interstate natural gas pipelines. See generally, Schneidewind v. ANR Pipeline Co., 485 U.S. 293,
(1988). Therefore, Franklin does not otherwise possess the lawful power to refuse a right-of-way
that is required for a federal project done for the public benefit.
Clearly then, the NGA and specifically FERC’s certificate proceedings provide States with
the ability to voluntarily intervene and influence the siting of natural gas transmission facilities in
exchange for waiving immunity from suit from a private party. This is akin to the Supreme Court’s
approval of Congress’s ability to issue “gifts” to the States conditioned on the State consenting to
suit in College Savings and South Dakota v. Dole, 483 U.S. 203 (1987).
The third and final requirement was satisfied. At the time the certification was issued, the
agency and the State were both fully aware of the factors highlighted above. Yet, Franklin did not
raise the immunity issue in the FERC proceedings and does not challenge FERC’s Certificate
Order. By then refusing to grant Mammoth the necessary right-of-way, Franklin elected to engage
in the exact conduct that Congress clearly and unambiguously stated could subject Franklin to suit
in federal court.
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Pursuant to College Savings, the State of Franklin has waived its Eleventh Amendment
sovereign immunity. Therefore, the Eleventh Amendment does not preclude Mammoth, acting
under the NGA, from condemning property owned by Franklin.
In the alternative, Congress has properly abrogated the States’ sovereign immunity from
condemnation actions brought in federal court pursuant to the NGA.
The Supreme Court has recognized Congress’ power of abrogation. Blatchford v. Native
Vill. of Noatak & Circle Vill., 501 U.S. 775, 779 (1991) (citing Dellmuth v. Muth, 491 U.S. 223,
109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)); College Sav. Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 670 (1999) (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)).
In order for Congress to do so, Congress must make its intent unmistakably clear. Blatchford, 501
U.S. at 786. Once Congress provides a “clear statement” of its intent to abrogate State sovereign
immunity the next step is to determine whether the Act in question is based on a Constitutional
provision that grants Congress the power of abrogation. Seminole Tribe of Fla. v. Fla., 517 U.S.
44, 59 (1996).
It has been found on numerous occasions that the NGA does not delegate the federal
government’s power to override a state’s sovereign immunity. In re PennEast Pipeline Company,
LLC, 938 F.3d at 99-100; and Sabine Pipe Line, LLC v. A Permanent Easement of 4.25 +/- Acres
of Land in Orange Cty., Texas, 327 F.R.D. 131, 139 (E.D. Tex. 2017). But the issue has not been
examined since the addition of the 2017 Amendment to the NGA.
The 2017 Amendment to the NGA is a “clear statement” that Congress intended to delegate
the Federal Government’s exception to State sovereign immunity to those acting under the Act.
The amendment to the NGA, in relevant part, states:
Provided further, that no licensee may use the right of eminent domain under this
section to acquire any lands or other property that, prior to October 24, 1992, were
Team No. 14 35
owned by a State or political subdivision thereof and were part of or included within
any public park, recreation area or wildlife refuge established under State or local
law on or after October 24, 1992, no licensee may use the right of eminent domain
under this section to acquire such lands or property unless there has been a public
hearing. . .
2017 Amendment to § 7(h) of the NGA [16 U.S.C. § 814]
The language of the 2017 Amendment clearly limits the circumstances under which a
licensee may use the power of eminent domain to acquire state owned property. The necessary
inference then is that a licensee may use the power of eminent domain to acquire state owned
property except for the limited circumstances outlined in the amendment. Congress has clearly
spoken. To hold otherwise would eliminate any operative effect of the 2017 Amendment to the
NGA.
Since Congress has made its intent to abrogate Eleventh Amendment sovereign immunity
“unmistakably clear” the next step is to determine if the NGA’s abrogation of State immunity has
a valid constitutional basis. Currently, the only Constitutional provision recognized by the
Supreme Court as granting Congress the necessary authority is section five of the Fourteenth
Amendment. Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 59 (1996).
The NGA was passed pursuant to Congress’ Article I commerce power. See, 15 U.S.C. §
717. Thus, it may appear that the Court’s holding in Seminole, prohibiting Congress from
abrogating State immunity based on the Interstate Commerce Clause, ends the discussion.
However, the NGA is unique in that it creates a property interest in the holder of a certificate of
public convenience and necessity that is protected by the Due Process Clause of the Fourteenth
Amendment. The Fourteenth Amendment permits Congress to extend the federal power, “to
intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth
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Amendment allowed Congress to abrogate the immunity from suit guaranteed by that
Amendment.” Seminole Tribe of Fla., 517 U.S. at 59 (1996).
In order to exercise the power of eminent domain, the operator of a natural gas transmission
facility must apply for and receive a certificate of public convenience and necessity from FERC.
15 U.S.C. § 717f(h). FERC’s certificate order approves of specific land that is to be used for the
pipeline project. Congress provided the licensee the power of Eminent Domain to ensure that the
property will be obtained.
This is highly characteristic of a protected property interest, “The hallmark of a protected
property interest is the right to exclude others. That is one of the most essential sticks in the bundle
of rights that are commonly characterized as property. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999) (quotations and citations omitted).
Therefore, a licensee operating under the NGA has a vested property right protected by the
Due Process Clause of the Fourteenth Amendment. As such, section five of the Fourteenth
Amendment authorizes Congress’s abrogation of State Immunity for condemnation proceedings
brought by a private individual, operating under the NGA.
IV. THE SECRETARY OF AGRICULTURE HAS THE AUTHORITY TO GRANT
MAMMOTH A RIGHT-OF-WAY ACROSS THE HOMESTEAD FARM.
A. The Secretary of Interior is Not the Appropriate Agency Head to Grant the Right of
Way Across the Homestead Farm Because Homestead Farm is Not Part of, and Does
Not Traverse, the National Park System.
The CAP contends that the Secretary of Interior is the appropriate agency head to grant the
right-of-way across Homestead Farm because the Secretary of Interior administers the Shandaliah
Trail. CAP’s argument has several faults.
Team No. 14 37
The MLA authorizes the “Secretary of the Interior or appropriate agency head” to grant
gas pipeline rights-of-way across “federal lands.” 30 U.S.C. § 185(a) (emphasis added). The MLA
defines “federal lands” as “all lands owned by the United States except lands in the National Park
System.” 30 U.S.C. § 185(b)(1) (emphasis added). Pursuant to the Park Service’s Organic Act,
land in the National Park System includes “any area of land and water administered by the
Secretary [of Interior]” through [NPS]. 54 U.S.C. § 100501.
The MLA specifically excludes federal lands in the National Park System from gas pipeline
construction and denies authority to any agency to permit gas pipelines “across lands in the
National Park System.” 30 U.S.C. § 185(b)(1). Federal lands in the National Park System include,
but are not limited to, National Parks and National Forests.4 The National Trail Systems Act
(“NSTA”), which provides for the administration of national trails, such as the Shandaliah Trail,
authorizes that,
“[t]he Secretary of the Interior or the Secretary of Agriculture as the case may be,
may grant easements and rights-of-way upon, over, under, across, or along any
component of the national trails system in accordance with the laws applicable to
the national park system and the national forest system, respectively: Provided,
[t]hat any conditions contained in such easements and rights-of-way shall be related
to the policy and purposes of this chapter.”
16 U.S.C. § 1248(a).
Even though the Secretary of Interior and Secretary of Agriculture may grant easements
and rights-of-ways in the national trails systems, neither Secretary may grant gas easements or
rights-of-way for national trails within the National Park System.
In this case, the Secretary of Interior may not permit gas pipeline rights-of-way that
traverse the Shandaliah Trail or Shandaliah National Park because both federal lands are in the
4 America’s Public Lands Explained, U.S. DEPARTMENT OF INTERIOR (June 13, 2016),
https://www.doi.gov/blog/americas-public-lands-explained.
Team No. 14 38
National Park System. See id. CAP’s argument that the Secretary of Interior is the appropriate
agency to grant the right-of-way across Homestead Farm because the Secretary of Interior
administers the Shandaliah Trail is an attempt by CAP to extend the statutory protections of
National Park System lands onto Homestead Farm. CAP will likely rely on the recent Fourth
Circuit decision, Cowpasture River Pres. Ass’n v. Forest Serv., to try to distinguish between the
administration and management of federal land to argue that the Secretary of Interior is the
appropriate agency head for Mammoth to seek a gas pipeline right-of-way across Homestead
Farm.
In Cowpasture, the Court was tasked with the question of whether the U.S. Forest Service
(a sub-agency of the USDA) has the authority under the MLA to grant rights-of-way through
National Forest System lands traversed by the Appalachian National Scenic Trail (“ANST”).
Cowpasture River Pres. Ass’n v. Forest Serv., 911 F.3d 150, 154 (4th Cir. 2018). The U.S. Forest
Service issued the right-of-way for Dominion Energy’s Atlantic Coast Pipeline across the George
Washington and Monongahela National Forests which traverse the ANST. Id. at 155. The U.S.
Forest Service relied upon the language of Section 1248 of the NSTA to argue that the MLA does
not prevent the U.S. Forest Service from authorizing pipeline rights-of-way across components of
the ANST on National Forest System lands. Id. at 180. However the Court found that “[t]he
[NTSA] does not distinguish between various levels of administration of the ANST; rather, as NPS
explained to FERC, the [NTSA] is clear that the Secretary of the Interior [who oversees the
NPS] administers the entire ANST, while ‘other affected State and Federal agencies,’ like the
Forest Service, manage trail components under their jurisdiction.” Id. at 180.The Court ruled that
the U.S. Forest Service lacked authority to grant the right-of-way under the MLA because the
ANST is part of the National Park System. Id. at 181.
Team No. 14 39
If CAP relies on the Fourth Court’s decision in Cowpasture to distinguish between the DOI
and USDA’s authority over Homestead Farm, CAP’s argument would fail on three counts. First,
unlike the land at issue in Cowpasture, Homestead Farm is not a component of the Shandaliah
Trail nor land in the National Park System. To establish a national trail, either Congress, the
Secretary of Interior or the Secretary of Agriculture designate a trail as a national trail. 16 U.S.C.
§§ 1243-44. Neither Congress, the Secretary of Agriculture nor the Secretary of Interior designated
the Homestead Farm as part of the Shandaliah Trail. In fact, NPS reviewed the eligibility of
Homestead Farm as part of the Shandaliah Trail or Shandaliah Trail and reached the conclusion to
keep Homestead Farm as separate from both the Shandaliah Trail and Shandaliah National Park.
See NPS Report of Homestead Farm. NPS reported that the inclusion of Homestead Farm as part
of the Shandaliah Park or Shandaliah National Park was unnecessary.
Second, even if the U.S. Forest Service succeeded with its argument in Cowpasture that
the MLA did not prevent the U.S. Forest Service from authorizing pipeline rights-of-way on parts
of National Forest land that traversed the ANST, here, USDA’s land does not traverse DOI land.
The USDA manages Homestead Farm as completely separate from the Shandaliah Trail through
the conservation easement. The proposed pipeline route and right-of-way will purposefully avoid
crossing any land in the National Park System. Homestead Farm’s proximity to the National Park
System’s Shandaliah Trail is not a valid reason for the court to deny the right-of-way.
Finally, nothing in the facts suggests that the DOI actually participated in the securement
or management of the conservation easement on Homestead Farm or possesses administrating
authority over Homestead Farm. The USDA negotiated with HPT for nearly two years to secure
the conservation easement. DOI was not involved in the negotiations with HPT. HPT is not legally
bound to DOI or its sub-agencies to administer and maintain Homestead Farm through the
Team No. 14 40
conservation easement. The DOI has no authority granted under the conservation easement to
intervene with HPT, or any subsequent private landowners, on the easement’s execution.
Ultimately, Homestead is not a part of Shandaliah Trail and the proposed right-of-way
across Homestead Farm does not traverse the Shandaliah Trail or any other National Park System
federal land. Therefore, based on the aforementioned reasons, the Secretary of Interior does not
have jurisdiction over Homestead Farm and is not the appropriate agency head to grant the gas
pipeline right-of-way across Homestead Farm.
B. The Secretary of Agriculture is the Appropriate Agency Head to Grant the Right-of-
Way Across the Homestead Farm Because USDA Holds the Conservation Easement
on Homestead Farm.
As previously mentioned, the MLA authorizes the “Secretary of the Interior or appropriate
agency head” to grant gas pipeline rights-of-way across “federal lands.” 30 U.S.C. § 185(a)
(emphasis added). The Secretary of Agriculture is the appropriate a head to grant the gas pipeline
right-of-way across Homestead Farm because USDA owns Homestead Farm through the
conservation easement. By the terms of USDA’s conservation easement with the HPT, the USDA
holds a real property interest in Homestead Farm, which in turn makes Homestead Farm federal
land. The MLA does not define “appropriate agency head” in terms as to what responsibilities a
federal agency has over a federal land that constitutes as “appropriate” authority to grant a right-
of-way. However, under property law principles, the conservation easement between the USDA
and HPT provides USDA with the non-possessory ownership of Homestead Farm and arguably
with the authority to grant the right-of-way across Homestead Farm.
A conservation easement is an agreement between a private property owner and a
governmental agency or charitable organization which limits the use and development of land
owned by the government or charitable organization and prohibits the private property owner from
Team No. 14 41
either engaging in certain activities and or requiring affirmative conditions of the property for
specific long-term conservation purposes and values. See Conservation Easement, Bouvier Law
Dictionary. Conservation easements convey certain rights to the government agency or charitable
organization to hold, administer, and manage the property. 5
Here, the USDA’s conservation easement with the HPT vests a property interest for the
USDA with the Homestead Farm. The USDA exercises its rights to the property through the
conservation easement. Although Homestead Farm remains in private ownership, the USDA also
owns and maintains the property, periodically monitors the property to ensure compliance with the
easement and enforces the easement against HPT. Homestead Farm may transfer between private
owners overtime, but the conservation values of the easement will be upheld because of the
USDA’s property interest in Homestead Farm remains in perpetuity. Ultimately, the MLA would
not authorize an “appropriate agency head” to grant gas pipeline rights-of-way across “federal
lands” if the Secretary of the Interior were the only agency head that could grant such rights-of-
ways across federal lands. See 30 U.S.C. § 185(a). Thus, the Secretary of Agriculture is the
appropriate agency to grant the gas pipeline right-of-way across Homestead Farm.
CAP will likely also argue that, in the alternative that USDA is in fact the appropriate
agency head to grant the right-of-way, that the USDA nonetheless violated the terms of its
conservation easement by granting the right-of-way to Mammoth. However, the USDA is an
unbiased third party tasked with upholding the conservation easement. The Secretary of
Agriculture would not grant the right-of-way across Homestead Farm if the right-of-way was a
permanent and or absolute infringement on the values of the conservation easement. Also, HPT
did not determine that the right-of-way opposed the conservation values of the easement. The
5 See Preservation Easements, NATIONAL TRUST FOR HISTORIC PRESERVATION,
https://forum.savingplaces.org/learn/fundamentals/preservation-law/easements#holds.
Team No. 14 42
USDA and HPT are not terminating the conservation easement, nor changing the purpose of the
easement by permitting the right-of-way which will provide temporary disruption on the
pastureland and destroy minimal benefits of the conservation easement.
The USDA does not provide direct guidance about utility development on conservation
easement lands obtained by the USDA, but the USDA comments about how utility rights-of-way
may not necessarily conflict with the purposes of conservation easements. The USDA’s expertise
with conservation easements likely refers to the USDA’s Agricultural Conservation Easement
Program (“ACEP”) under the USDA’s Natural Resources Conservation Service (“NRCS”). The
ACEP is the USDA’s premier conservation easement program.6 However, the USDA provides
guidance for the review of utility easements in conservation easement areas. The NRCS has the
discretion as to “whether or not a utility and its associated easement are compatible with the
purposes of the [ACEP], and therefore may be accepted into the easement.” 7 Although the ACEP
is not entirely analogous to the conservation easement on Homestead Farm, NRCS, under the
authority of the USDA, recognizes that management of a utility is not inherently counter to an
agricultural conservation easement and that an USDA agency that holds a conservation easement
has the discretion to determine if the proposed right-of-way conforms to the conservation easement
values.
Therefore, USDA would not terminate or amend its conservation easement with HPT if the
USDA grants the gas pipeline right-of-way across Homestead Farm.
6 See Agricultural Conservation Easement Program, USDA: NATURAL RESOURCES CONSERVATION SERVICE,
https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/easements/acep/ (last accessed Feb. 1, 2020).
7 Easement Enrollment: Providing Clear Title, U.S. DEPARTMENT OF AGRICULTURE (December 2016),
https://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcseprd1308548.pdf.
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CONCLUSION
For the Foregoing reasons Mammoth Pipeline, LLC respectfully request that this Court
rule that:1) Vandalia DEC waived its CWA § 401 authority by subjecting Mammoth to a withdraw
and resubmission process that extended for over a year; 2) The Army Corps of Engineer’s
interpretation of its own regulation is not worthy of deference. Therefore, West Vandalia DNR
waived its CWA § 401 authority by treating Mammoth’s amended application as extending the
one year deadline; 3) the Eleventh Amendment does not bar Mammoth from commencing a
condemnation proceeding in federal court to obtain a right-of-way over property owned by
Franklin; 4) the Secretary of Agriculture had authority to grant Mammoth a right-of-way across
the Homestead Farm.
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Certificate of Service
Pursuant to Official Rule IV, Team Members representing Mammoth Pipeline, LLC 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, 2020.
Respectfully submitted,
Team No. 14