Welcome to the website of the law office of Steven D. Rubin.  Mr. Rubin has been licensed to practice law in the State of Florida since 1981. His office  is located at 980 N. Federal Highway, Suite 440, Boca Raton, Florida 33432. He is admitted to practice before all of the State Courts in Florida and is Board Certified by the Florida Bar in Real Estate Law and Condominium and Planned Development Law.

A TRAIL IS A TRAIL AND LAND IS LAND; THEREFORE, THE APPALACHIAN TRAIL IS NOT LAND

The United States Supreme Court recently went back to first year law school class for Real Property 101. The Court was tasked with deciding whether a “right of way easement” is “land”. The case arose when the U.S. government was asked by Coast Pipeline, LLC for permission to install a natural gas pipeline in the George Washington National Forest (“Forest”) in West Virginia, including 0.1 mile of pipe 600 feet under a portion of the Appalachian National Scenic Trail (“Trail”) which is located, in part, in the Forest.

The government granted permission, but a local environmental organization filed suit to stop the issuance of the permit. Under the federal Mineral Leasing Act, pipeline easements are prohibited in National Park System land but are permitted in National Forest land. The parties agreed that if the Trail is “land”, then because it is within the National Park System, the pipeline  permit should not have been issued, but if the Trail is not “land”, then the pipeline is located in Forest land and the issuance of the permit was proper.

The Florida Supreme Court has stated that: “ . . . . an easement is more than a mere personal privilege; it is an interest in land.” See H & F Land v. Panama City-Bay Co Airport, 760 So.2d 1167 (Fla. 1999), citing to Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949). While an easement is not the fee simple interest in land (the whole bundle of sticks), it is one of the sticks in the bundle. However, Justice Thomas, who wrote the majority opinion, relied on non-Florida case and treatise authorities to conclude that “easements are not land, they merely burden the land that continue to be owned by another.” In so ruling, the Court held that the issuance of the pipeline permit was proper because “a trail is a trail, and land is land.” See United States Forest Service v. Cowpasture River Preservation Association, Inc., 28 Fla.L.Weekly Fed. S285 (U.S. June 15, 2020).

The dissent pointed out that the National Park Service has always considered the Trail to be land, and if the Trail is not land, exactly what is the National Park Service maintaining (an imaginary space above the land)? The dissent also stated that private property rights in land are not relevant to the grant of interests in public land owned by the United States, and the Statutory scheme of the National Park System grants jurisdiction to maintain buildings, roads, houses, recreation areas, and monuments located on land not owned by the Park Service. Justice Kagan noted that the Trail is a foot trail worn into the earth, not a trail of water or something other than land.

Has the Supreme Court Opinion changed the law of easements in Florida? The majority could have avoided the issue altogether by ruling that the scope of the National Park Service right of way easement in the Forest land did not extend 600 feet underground and thus the United States Forest Service retained the right to grant another interest in the land (underground easement) to the pipeline company. Can Coast Pipeline now apply for and receive a permit to construct a 15 foot high pipe on top of the Trail, thereby blocking the Trail for hiking? Regardless, in my opinion, this case is a great example of how the personal perspective and judicial philosophy of each Justice make a huge difference in the ultimate outcome of a case.