Lost in the excitement of the final days of the Supreme Court term, amid rulings on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. deference, presidential immunity, and Jan. 6, 2021, defendants, was an opinion by Justice Amy Coney Barrett.

“Sorry,” she began when Chief Justice John Roberts called upon her to deliver the 6-3 ruling in Corner Post v. Board of Governors of the Federal Reserve System. “This is not one of the cases you’re waiting to hear.”

Corner Post is a truck stop and convenience store in Watford City (population 6,207) in western North Dakota, near the Badlands and in the heart of the Bakken Formation, one of the nation’s most important sources of oil production. Corner Post was incorporated in 2017 and opened for business in 2018, which included accepting debit cards for purchases for which it pays an “interchange fee” to the bank issuing the card. Earlier, in 2010, Congress delegated to the Federal Reserve Board responsibility for setting “standards for assessing whether the amount of any interchange transaction fee … is reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” In 2011, the Federal Reserve Board published its regulations, but trade associations and individual retailers, noting that the rules permitted costs not allowed by federal law, sued. Their lawsuit was dismissed, but, shortly after opening for business, Corner Post became vexed by the “interchange fees” and joined another lawsuit.

Federal lawyers argued that the time for Corner Post to file its lawsuit, the six-year statute of limitations, began to run in 2011 when the Federal Reserve Board published its regulations and ended in 2017, as Barrett noted, “before Corner Post swiped its first debit card. As a result[,] Corner Post’s suit was therefore too late.”

One basis upon which the court most often grants certiorari is to resolve a split among the federal circuit courts of appeals. Barrett noted that at least six circuits, including the one before which Corner Post appeared, held “the limitations period for ‘facial’ APA challenges begins on the date of final agency action—e.g., when the rule was promulgated—regardless of when the plaintiff was injured.” One lone federal appellate court, however, the 6th Circuit in Cincinnati held the “limitation period begins when the plaintiff is injured by agency action, even if that injury did not occur until many years after the action became final.”

In Herr v. United States Forest Serv., 803 F.3d 809, 820–822 (2015), the appellate court ruled, “When a party first becomes aggrieved by a regulation that exceeds an agency’s statutory authority more than six years after the regulation was promulgated, that party may challenge the regulation without waiting for enforcement proceedings.”)

Barrett concluded, “We granted certiorari to resolve the split.”

Barrett, on behalf of the court, resolved the split by agreeing with the 6th Circuit, holding that “a claim accrues when the plaintiff has the right to assert it in court—and in the case of the APA, that is when the plaintiff is injured by final agency action,” reversed the lower court, and remanded the case for “further proceedings consistent with this opinion.”

How was it that a 10-year-old case involving the U.S. Forest Service rescued a lawsuit involving a North Dakota truck stop?

In the early 1990s, at a property rights gathering, I met Kathy Stupak-Thrall, whose topographical map of Watersmeet, Michigan, (population 1,456) and attached banner, “Help Us Straighten Out Crooked Lake,” intrigued me. It turns out her grandfather had built a cabin among others on a sliver of land just off the highway and on the shores of Crooked Lake. Then, most of the land surrounding the meandering lake was owned privately.

In time, it was acquired by the U.S. Forest Service, which managed the Ottawa National Forest, pursuant to federal law, in accordance with principles of “multiple use and sustained yield.” In 1984, however, Congress designed that land as “wilderness” pursuant to the Wilderness Act of 1964, which provides that, as to such lands, “man himself is a visitor who does not remain.” Gogebic County officials, residents, and visitors who worried the new designation would interfere with their uses of those lands were reassured by Congress and the agency. Their “valid existing rights” were protected by federal statute.

Soon, however, the Forest Service reneged and began to interfere with the right of Stupak-Thrall and her husband, Ben, to boat on the entirety of Crooked Lake, notwithstanding that such littoral rights were assured under Michigan law. On her behalf, I sued. The Forest Service argued that “valid existing rights” did not include her property rights, but only valid existing mining claims. In time, we reached the full U.S. Court of Appeals for the 6th Circuit, where the chief judge asked the federal lawyer representing the Forest Service what water rights she possessed. “Only the right to drink water from the lake,” he replied. Eventually, we prevailed. Ben and Kathy could boat the lake without interference from Forest Service rangers.

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Thirteen years later, David and Pamela Herr, who had visited Crooked Lake regularly for years, bought the cabin they had rented and became Stupak-Thrall’s neighbors. They believed, given her courtroom victory, they shared the same rights as she did and told the Forest Service just that when rangers interfered with their boating activities. No, the agency replied, Stupak-Thrall’s victory was hers alone. Moreover, the agency asserted, it had issued regulations to that effect in 2006 and said the Herrs’ right to sue expired in 2012, a year before the Forest Service began to enforce its regulations against them.

The Michigan federal district court agreed with the agency, but the U.S. Court of Appeals for the 6th Circuit reversed and held that the Herrs could vindicate their rights in court, which they did. In doing so, the 6th Circuit broke with sister circuits to provide the Supreme Court the opportunity to permit a day in court for one of the “ordinary people” of whom Justice Neil Gorsuch wrote in his concurrence in the Chevron deference case, Loper Bright Enterprises v. Raimondo, a truck stop in rural North Dakota.

*Mr. Pendley, a Wyoming attorney and Colorado-based, public-interest lawyer for three decades with victories at the Supreme Court of the United States, served in the Reagan administration and led the Bureau of Land Management for former President Donald Trump.