issue in this case is whether the trails that convert all federal state and private lands traversed by the appalachian trail into lands in ministry by the park service it is not the acts simply charge the secretary of the interior with overall administration it repeatedly distinguishes between the agency administering the trail and the land management agencies administering the land the park service does coordinates or agencies and organizations responsible for their own segments of the trail and infor certain trail ride responsibilities but the land managing agencies all to make ultimately take care of the trail on their lands if a tree falls on forest lands over the trail it's the forest service that's responsible for you don't call the nine parks service employees at harper's ferry and ask them to come out and fix the tree respondents theories inconsistent with the act and would dramatically change the national trail system response for instance argue that the trail is land and it's administered by the park service so their position and maintain portions of such trails and this is scenic trails located outside the boundaries of federally administrated areas if their right there is no thing nothing outside but the trail outside the federal ministry areas because the trail is a federally administered area their reading cannot be right second it would also dramatically increase the tree to dramatically change the trail system by transferring vast amounts of land into the national park service which the park system park system which the park process straight through numerous bridges over rivers including the bridge over the hudson near west point over six hundred roads one hundred interstates and other highways and it til this case no one has ever thought that such a well lands and waters under the trail this case in any event and right is going bad we consideration of the environmental consequences going back on the forest management act and then national moot because the decision might be that under that legislation environmental legislation this crossing over into the tra necessary at the end of the day but the court already considered that the search stage the reason that this is an important issue is because if the trail cannot be right or we cannot cross six hundred feet under the train and coming in and out not i think what we're saying is that the trail is administered by the park service it's not lands in the national park system one of the main issues in this case is whether in stating that the secretary of the interior shall primarily administer the trails of the appalachian trail as a footpath whether that delegation which congress then said concerns the overall administration of the trial whether that  administer the lands over which the trial passes and our answer is that is not the case and it's inconsistent not only with the texas statute but the way that the statute has been implemented as well as the way that the appalachian trail has existed even before the consists of certain areas of land and water so how is the trail not and if it's in the national park system which would what part of the reply i'm trying to i don't remember it's certainly not land it's administered within the meaning of that when it's a difficult distinction to wrap one's head around mr yang you know i would understand if you said to me the trail traverses the forest everybody would understand what that meant there's some broader forest in the trail cuts a path through it but you are saying that the trail is distinct from the trail i mean from the  that is the trail i don't know really quite how to say it i said that nobody makes this distinction in real life i don't know when i walk on the trail when you bike on the trail when you backpack on the trail you're backpacking and biking and walking on land aren't you you certainly sometimes walking on land you're also walking on things like bridges you're also walking on for instance trails include waterways so congress recently enacted expanded the lewis and clark trail to include the ohio river of the ohio river from pittsburgh to the mississippi then the missouri up to st louis and all the way due to the west coast from there no one thinks that those waters are all in the national park service and that's because the trail trevenna versus the lands or waters and when you move a your great writers and and the briefs are are strange to read because you can't ever just say what you mean which is that the trail is piece of land so you find yourself wrapped up in these strange locations about the trail traversing land it's like you're imagining some thing that cut goes on top of it somehow i don't believe so this is the trails that need to be read in the context of all the stacks it's to deal with we ended  ministration this is a large area of the law those trails there's two statutes make very clear when congress wants to shift administrative responsibility over land so for instance the rivers act and act at the very same let me ask you a question mr yen because you said and this would be very meaningful to me you said you would call the forest service if there if it if a tree fell over the path i guess when i looked at these regulations what strikes me about them is that  on the appalachian trail it seems to me that the national park service it would be different on the pacific trail which is a weirdness of its own but but in the on the appalachian trail it's the national park service that regulates uses along the trail vehicles on the trail development and maintenance of the trail and other words it's the national park service that basically does land use regulation and the land is the provide for certain things trail markers if you're looking at see it's congress for bid cars on trails when you're looking at regulatory authority that's under on i they are that requires the concurrence of the heads of any other federal agencies administering the lands and in fact the way this is been implemented is the end the park service has enacted a regulation thirty six c of our seven dollars that applies only on park service administered land i'll just give you a example and you can tell me what you make of it because it would seem to me to cover the case where the tree falls on the trail it says this is one thousand two hundred and forty six dollars h one the secretary charged with the administration which here is the secretary of interior shall provide for the development and maintenance of these trails and it says shall provide for not do it the way we did that's provided for is the way it's always been provided for which is through a memorandum of agreement with the land that two agencies can't simultaneous administration and even possibly management responsibilities was taken with the n r d c's amicus brief and the mineral leasing act has an entire provisions of voted to when are two agencies responsible to administer a piece of land let me finish my question and assuming permission to grant a right of way for pipes because doesn't a trailer super see any other permission answer is no the needs to be more clarity congress acts clearly when it does  it it has but why can't two agencies have simultaneous co existed responsibility your time is expired but i'll allow you to very briefly respond there's three types of instances where that happens t separate trails parcels administered separately a right of way goes through it that's one there's another instance where leon's withdrawn from the public lands and provided for a military use that is in some ways dual but it's not in the relevant sense because  clement mr chief justice and may it please the court respondents effort to convert all of the land traversed by a park service administered trail into lands in the national park service fails for reasons of text context and consequences st as a matter of text multiple provisions of the trails act draw a distinction between the trail and the land it traverses and makes clear that administrative authority is granted only over the former and leaves the latter jurisdiction over the lands and selves undisturbed moreover the trails act itself makes clear that the trail can be moved it makes sense for a trailer trail route to move every time  doesn't make sense for the status of lands to change every time the route moves that context powerfully reinforces this key distinction if you want to see a model of a statute that transfers land between federal agencies and makes the land subject to the organic act you need look no further than the rivers act passed the same day by the same congress the reason though when it did that in the river sacked it did exactly what you'd expect it to do when it transfers land talked about the with of the land transferred the acreage involved and then left no doubt that if the land was transferred to the park service it became subject to the organic act and then of course there at the end tenable consequences of respondents tradition the position thousands of acres of parkland gets transferred to the forest service and these one thousand mile trails get converted into barriers to pipeline development here is the pipeline i'm trying to not dot not the two dimensions but in three i mean think of the trail but i couldn't get out of the briefs i mean there's a true it's going grocery just going along the ridge they don't want to put the pipeline in the trailer they want to put it somewhere in the ground well how for are from the with the trail is up here how far below is the pipeline supposed to go six hundred feet six hundred feet or so and where does it enter does it enter on or on you know there's an easement or something right views and so forth does it enter the ground within the area that is within that easement or before and it comes out after it enters and exits on private land not on forest service land i mean you know the problem with braces are two dimensional but i mean the way to understand this is there's a red line up here on the top of the ridge is the appalachian trail and the blue ridge parkway and then the pipeline route goes under both six hundred feet below the trail and probably eight hundred feet below the parkway is the parkways a little bit higher and here is before you get to the area that is after the area which is reserved to the trail or the views exactly which is why both the park service and the forest service who care very much about the experience on both the trail and the parkway could conclude that this particular pipeline given how far below all of the action it was crossing did not disturb the experience of the trail a pipeline i had the same thought as justice prior but maybe there's something wrong with this simple way of looking at the case when i think of a trail i think of something that is on top of the earth and when i think of a pipeline it's six hundred feet below the surface it doesn't seem like a trail so instead of having to draw this distinction between the trail and the land why can't we just say that the trail is on the surface and something that happens six hundred feet below the surface is not the trail you could do that justice alito and i suppose my clients be perfectly happy to win this case on that ground i do think though that there is a critical difference between administrative authority over that trail up there and administrate of authority over the lands and it may be a little bit hard to square with your st reading it one thousand two hundred and forty six h one but it is the case that when a tree falls in the national forests in georgia or in new hampshire the nine or ten federal employees who are the entire total of the park unit in that ministers the trail from harpers ferry west virginia do not get on a plane and fly up to new hampshire in georgia and deal with it is that the forests are what is the practical difference between viewing the case and those two ways surface six hundred feet below trail land what is the difference between those so for pipelines i suppose because most of them are going to go pretty far under i think you could draw that distinction i think though as a practical matter you would still have differences we'll give you just one very practical example in the national forest up in new hampshire one of because national forests are for multiple uses unlike the park services which are supposed to be conserved in unimpaired so part forest land can be used for multiple purposes one of the purposes that is allowed in new hampshire is to tap the maple trees to get sap out of the trees the sap lines run across the surface of the trail and they do that with the permission of the forest service so that's something that you know i think if you were to construe all of the sudden that the surface is in its lands in the national park service that would all the sudden the end of the service juristic i think that isn't quite the question i mean we don't have to decide every issue you know in the park service and if the people who make the sap want to challenge it or somebody fine the question was what harm would we do if we just restrict this to the question that answers  your view you'd win you'd said but it would have to do with pipelines and it would have to do with things you cannot see from the trail and it would have to do with things that are well below the ground and on those which is before you see that's i think the point why decide cases in this court that have all kinds of implications which we can't quite see like that when if somebody wants to challenge the park service coming and removing a tree let them so justice pryor i i'm not going to spend too much time disagreeing with you because there is a reason we brief the case the way we brief it so wanted to explain that reason why there is a superficial peel i am not reading the briefs and looking at the statute didn't think generally speaking if you grant a right of way which is one way of thinking about the trail it doesn't affect subsurface rights so that actually does support this way of thinking about it but here's why we briefed it in the more straightforward way that you do have to maintain the difference between the trail and the lands and that is because the argument on the other side is not limited to the appalachian trail it's not even limited to federal lands it says that all of the lands because the park service administer it's the whole trail and it's not just the appalachian trail there's about two dozen trails that the park service administers and they not only go over bridges in roads some of them are downtown i mean the park service administers the selma to montgomery national historical trail now if that trail is a glance in the park service because we just can't get our head around the idea the trails are different from land then parts of downtown selma downtown montgomery are planned to the national park service the oregon national historical trail also administered by the park service starts in downtown kansas city ends up in downtown portland oregon i don't think downtown kansas city or portland oregon are lands in the national park could if if we go back to justice of leaders idea which was also the way i thought about it that that was the way to cut this but then i started looking around in the the mineral wondered whether you can win under that approach so here's the argument that you can't win under the surface subsurface approach is that is that the mineral leasing act gives the authority to do rights of way including pipelines to the to the purse to the secretary it has it's talk about the surface it says where the surface of or the federal lands involved in a proposed right of way is under the jurisdiction of one federal agency the agency head is authorized to grant the right of way so that suggests under the m l a that the right of way the sub stratum is given to the person with control over the surface is that not true so if i were going to warm to the topic of trying to win this case in the alternative ground what i would tell you about that is i would say that's not how i actually read the provisions together that's that's sort of a subsidiary provision that says how you deal with pipeline rights of way when you have two agencies with jurisdiction over the surface and it uses that formulation but when it's really trying to figure out what's the right agency it asks which agency head has jurisdiction over the lands and i think that that it doesn't say surface in that provision and i think that's the critical provisions but with one more word about sort of the theory we've actually articulated i do think if you look at all of these trails you'll see why congress picked a different term and i think it's important to note it's not like we don't have a term in the statute for the trails they are components in the national trail system and that's what congress called them that and they called them that on the same day they passed the rivers act where they actually talked about transferring jurisdiction they talked about acreage there's a separate section of the rivers act section one thousand two hundred and eighty that talks about the interaction of the rivers act and the mineral leasing act all of that was necessary because congress knew what it was doing and it was transferring the land and making new lands in the national park system subject to the organic act it set it in a verb it was doing no such thing in the trails act congress isn't crazy they were creating tens of thousands of miles of trails most of which would be administered by the park service they were under no delusion that they were like quadrupling i don't know probably forty times increasing the size of the lands in the national park system if you look at those two maps at the back of our reply brief you can see the difference in the implications of the theories it's very modest to look at the nd map which shows you sort of what i would have called before i got involved in this case the true national park system easy enough to steer a pipeline around that if you look at the national trail system it would be a huge barrier to pipeline development and if you're ever going to apply the elephants in the mousehole type approach to a statute this is one where it really calls out especially if you think about the trails that it's got those wonderful quaint pretty missions that are getting into the details of whether the park service or the forest service or the private landowners are the ones that should blaze the trail a statute that addresses those kind of details in that kind of specificity should not be interpreted to have these transformative effects some selenski oh and don't forget i mean i know you said it's well you know there's that pacific crest trail there's also the continental divide trail there's also the pacific northwest trail who are all in ginsberg with all respect what i do with that line is i keep reading because it says no one doubts that the trail is in the park system to the extent that the park system administers the trail and to that extent it is in the national park system there are nine or ten rangers sitting in harpers ferry west virginia and they have park service uniforms so it and there probably are statements off handed statements in documents by the park service that says yet the trail the entire trail is in the park service but that doesn't make all of the lands traversed by the trail lands in the national park service pursuant to the organic act that they are the statute creates all sorts of anomalies all of the other lands in the national park service are subject to regulation by the secretary of interior the way you would expect it to without having to get any assent from another agency in the statute says that arc system consists of labs and ministered by the park service doesn't mean and ministered in full administered exclusively by the park service or administered in any sense by the park service i think if it has to mean one of those things it probably means administered in full but what i think it really really means is that lands and i think that i mean although it you know i don't really think it's as metaphysical as you think i mean the philosophers at the park service and the forest service haven't had any problem with this for fifty years have dealt with the reality that the trail is in an administrative sense under the park service but on a day to day basis the land stay where they are that park really i mean let me ask you that before your time runs out is the office of the park service i assume the park service has an office here in washington yes it is that part of the park is that part of the park system i don't think it's an area of land administered by the park service but it's administered by the parks are no  in the national park system in some sense it is yeah but i don't think they have to maintain that building in its unimpaired national state natural state which just goes to show not everything that's in the park system in some loose sense is subject to the restrictions of the organic act which in which specifically says the rights of ways are to be granted by the secretary of the interior in this case for anything right through ways of palm over under a cross or along any components of the appalachian trail so under kemp's as justice kagan pointed out he mineral leasing act itself talks about who has jurisdiction over the surface obviously the pipeline is going to go under those lines but it's the one who administers the surface of the lanes and we know that the park service administer these wins because congress made that very clear in the three area of lenient where water whether it's a historic building whether it's a monument whether it's parkway or whether it's a trail is if it's administered it counts as an area of land which the court in sturgeon case pointed out it's up to congress to decide how broadly to use the term land in a state action and finally the mineral leasing act makes it absolutely clear that  that it's someone a separation in other words before traversing over the land and the recognition that the land itself belongs to somebody else well we're not saying if there is let's say with an easement for the trail over private land seems to be a debate and some metaphysical level about whether you can have a trail with you can have land under it or interest in land that are different i just doesn't strike me as that unusual a concept that there are property rights that definitions of right of way one is going abstract right of passage over somebody else's land and the other refers to the strip of land itself over which passages maintain the trails act repeatedly used the nd definition when it says you're going to acquire rights away is four of the trail your ten years condemnation proceedings to acquire land for the trail and most importantly of all what it says you can grant secretary of the park service can create a right of way over the trail so even using the st definition as right of passage over land it's indicating that the trail itself is only when the prop when the trail crosses private land what property rights do you think the park service house with risp back to those private well i wouldn't say that they have property rights put it as with any in the  holding of the national park system or the forest service which have lots of in holdings of private land there are still certain regulations that can be established for those well i don't think that answers my question do they have any what actually is the case here suppose there were a regulation that said there should be no snowmobiling on the trail where would that regulation come from it would be in thirty six year far which is the park s asking answering to justice kagan it runs through cities the trail it runs through downtown so what i think we were told the downtown somewhere else can the does the park a question the court left open in the sturgeon case for in holdings how much if it's part of the park service is part of the forest service how much can you regulate private in holdings and i think there's severe limitations on that but the thing that i worry me the most is just what i was asked so you have to do is take the same question ok you got it yep ok what's the answer ok so the answer is they can't go into downtown hanover and say we're the federal government and we're going to control how you use the sidewalks and sarah but they are going to not only sidewalks what happened is this is a national state park and under the ground are some native american remains you know and they would like to have access to those it isn't going to affect the trail and so forth the no want to ask anybody they just want to do it all right so so what unless there is another federal law that applies to no use but it's regulations to not extend to the trail where it goes over as far as the statute is concerned can they do we get a park service that doesn't like x they don't want to do it and they do it i mean it's underground it would depend on ridiculous in their liking go what it is is it's more like an easement if you see it more like an easement more like an easement or covering the surface then of course if it goes across private land or it goes across a state park or goes across a city then the state of the city or the whatever it is has a right to use their land as they wish if it's part going down into the earth a one thousand feet or to the center of the earth i don't know where these things go but if that's the case maybe they can do it but only if the park service agrees that  i think that's right i mean i think that these men it's very easy to understand how this would work but if it's property actually belongs to the park services in the park service system then i think just as far as an interesting point and happy i'm struggling with understanding how what the answer this question is congress when it when it set out who is going to administer these trails said that the park service gets to administer the ones in the east where the forest service owns the land in the forest service gets to administer the ones in the west where the park service owns the land it's kind of and you can understand it if it's easements again you can understand that everybody's getting to a little bit of something and each other's territory but if the land goes with the assignment of the management authority for the trail then you have the circumstance that a lot of western national parks sequoia samedi others there are now ribbons throughout those national parks that belong to the forest service and that would be at least open to pipeline development so while you might for a pipeline here you it's not a costless it's not a zero s game you're going to invite pipelines elsewhere now you might tell me nobody's seeking a pipeline there but that's not a very good answer is so on one account i guess i'm asking would a rational congress have opened up western national parks to develop like this well st of all i don't think that is happened your honor because you are going to say that if the district the pacific crest trail it runs through certain portions there are as you point out national parks they could not build a pipeline across those because you can't go under the national park service land even if the trail is it ministered by the force where runs across forest service limbs where it runs across state local or private plans then they the mineral using at will allow the pipeline right now they raise the hypothetical couldn't the the forest service dig up the entire trail and sneak a pipeline through there i would suggest know both as a legal matter and of course as a practical man they couldn't there's a legal manner they couldn't because they can only allow uses that are consistent with we're going to give some to the forest service we can give some to the park service and they're going to be the administrator of those trails the overall administrator every statute that assigns jurisdiction overland to a federal to it enormous consequences and congress did not use language in this act like it did in the rivers act passed on the same day and the argument goes you would expect to see clear language like that to generate the significant consequences for your position you know i would suggest to congress use exactly language like that in the rivers act rejected to be a little more specific because it put the the wild and scenic rivers along with their adjacent lands to correctly into the park service and so it had to specify that it was talking about land as well as the water but it used the same term administered by that you find in the trails that you find in the weeks that you find in the blue ridge parkway back in every instance where congress signs jurisdiction over land uses that term and to be clear the forest service really reason why the secretary of the interior had to delegate this to the park service it did not have to it was assumed by congress that it would do so because throughout the trails act it talks when it's you ply the rules of political to soft congress really wanted to bring about the result that you think the statutes command why would it leave that option why wouldn't it require that it be administered by the park service rather than too and i'm a true report out there could the secretary of the interior reassigned these lands from the park service to the fish and wildlife service and at this point i don't allow pipelines at this point i don't think so some scenic rivers have been delegated to the fishing one and why isn't that a strike against your interpretation because if congress had wanted to ensure that these trails were left undisturbed it could have simply made that blue ridge parkway the appalachian trail and the wild and scenic rivers but it kept those separate and apart in its listing said these are miscellaneous areas these are recreation areas these are national parks and then congress came along and the general of forty exactly said no no no everything you would minister is a unit of the park service so as a consequence two years later when the when the park service published its new list it listed the wild and scenic rivers the blue ridge parkway and the appalachian trail all as units of the park system on a par national park is this right that you think but think of yosemite or i think that belongs to the federal government and i think it belongs to the federal government down to the center of the earth i mean i don't know how far you go down when you have property it really does erect impermeable barrier to any pipeline from the area where the natural gas to those resources are located and to the area east of it where there's more of a need for them and absolutely incorrect and i'm sorry but the there's fifty five dollars pipelines currently running under the appalachian trail nineteen of those are on federal land pursu granted before the trails the rest of them or of state and local ingham's with one yes maybe a degree not entirely incorrect but that seems to suggest if it is not the appalachian trail land that runs through leasing act only applies to federal money and it only exams land in the national park service from the definition of federal and state local and private lands  local private lands are all affected forest service lands through which the trails run are unaffected the only thing affected is where there happens to be a trail is the trail plus its protective cork which it's one thousand feet wide and they say that's two hundred and fifty thousand acres in the national park system those acres are included in their calculation of the eighty nine million d as far as but it worries me because what you answered the chief justice and the others is will congress has an act that takes care of that it exempts the private people but i think we're here concerned not with congress's statute so much of course we are but but you see if you are saying it goes down to the center of the earth then there are all kinds of things some other congress might do this land belongs to the federal government down to the center of the earth and actually what's worrying me is something with that consequence perhaps congress would have done more to make clear but am i right on my consequence that you  know you're not because of the statute or because of something else because the mineral leasing act applies only to federal lands and the park service does not comport to regulate private  state local you know holdings so that's not going to happen mr coe to think it's possible that these trails are jointly administered that there's some kind of joint jurisdiction over them and if that's what is going on here what would be the effect of that on this question well st of all if that were what's going on the court would have to reverse because under one hundred and eighty five dollars c two of the mineral reasoning act it says that it something along the following lines you have the weeks act and that the trails act comes along and it does not completely repeal the weeks act it just layers on to the weeks act jurisdiction in the secretary delegated to the park service that goes along with the weak sat there and then assumes that is two agencies will figure out a sensible distribution of regulatory and other authority and if that's the case and that's what refers to the secretary ministering the trail so that means the secretary of the interior and only the secretary of the interior can grant the rights way in question here so i don't know that you fully satisfy the parade of horribles that have been put forth i think in my own judgment the most serious one is the view that if everything the park department the ministers the entire trail that that means that it can stop pipelines or other things across the country the two hundred thousand or whatever miles that this is and and i don't know that you can actually articulate it concisely a response to why the parade of horribles is not likely i can't think it's enough to say they haven't done it i can give you a very concrete example in the past fifty years since the trails act was passed there has not been a single new pipeline right of way through federal lands under the appalachian trail there been a number one state local and private lands and the same would apply to other trails now they're pre paid knowledge would seem cool that the blue ridge parkway is land in  constitutes wm but a trail does not or why while the scenic river would constitute lands in a trail not congress even provided ways in which you could move the trail under certain provisions pike wiring new land on which to run the trail it did the same thing with the blue ridge parkway why would congress allow pipeline under the blue ridge parkway but not under the trail when those twenty one dollars parallel to each look for in the parkway is the park service regulations governing the parkway would you look for it for the national for the appalachian trail is the park service regulations governing the trail specifically cover the kinds of rights who weighs in pipelines etc they can pass over what if jeff statutes allow it to go under the parkway is there any reason why congress would say well you can go this far but you can't go another one thousand feet in some spots and go on the trail because they wanted to keep the appalachian trail insofar as it's on federal land where the most beautiful parts of the appalachian trail are through the national forest through the through the park system congress to a bright line well i mean that gets to the fundamental question i have about your argument there may be all sorts of very good environmental reasons why this pipeline should be built and those i take it are involved in the other issues in the case but do you have more than a gotcha argument do you i mean them and sometimes they work but if you fit these statutes together this is what they say and you can't get out of it but you really have an argument that this is what congress intended when it adopted the statutes on what you will lie and i think we do we know for example that they have the general authority does not apply the strikes close to home the potomac heritage scenic trail runs straight through alexandria council suggests that such regulation of lands in the national park system is limited to purposes of the trail i would not feel comfortable as a municipal officer given that is the case and moreover that threatens the co operative management system whereby you municipalities have allowed the trail for fifty years and it going back going back to the one thousand nine hundred and twenty s and thirty's to cross their land without necessarily having to easements for the trail to land as a pop property right going down to the earth that is a very odd fit for this trail that runs across the surface and that can change locations three congress in section  problem which is read that the mission management and administration have two different meanings says we transfer management when i get the point but the problem is the problem the st sentence outside there is no such thing under response theory because the right of way and the trail is federally administered like the overall administration that position of the agencies for fifty years that overall administration is spelled out in the act it's a continuous route you select the right of way and then you relocate it that's in a two in b or uniform marker you're a backstop for state local governments acquiring the required right of way thank you council making this your case is submitted but before council leave i'd like to invite mr command to return to the lect mr command our records indicate that this was your th oral argument before the court that is a rare milestone i recognize one of the other members of the exclusive club mr nadler at counsel table  throughout your career mr clement you have consistently advocated positions on behalf of the united states and private clients in an exemplary manner on behalf of the court i extend to you our appreciation for your advocacy before the court and dedicated service as an officer of this court we look forward to hearing from you many more times beginning i gather next week as an amicus appointed by this court thank you very much thank you counsel cases submitted