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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.

Team No. 14 34

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.

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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.

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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.

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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