The Republic of the Marshall Islands v. The United States of America et al

Filing 50

Notice of Tentative Ruling and Questions. Signed by Judge Jeffrey S. White on 1/14/15. (jjoS, COURT STAFF) (Filed on 1/14/2015)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

THE REPUBLIC OF THE MARSHALL
ISLANDS,

10

No. C 14-01885 JSW

11
v.
For the Northern District of California

United States District Court

Plaintiff,
12
13
14

NOTICE OF TENTATIVE
RULING AND QUESTIONS

THE UNITED STATES OF AMERICA, ET
AL.,
Defendants.
/

15
16

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE

17

NOTICE OF THE FOLLOWING TENTATIVE RULING AND QUESTIONS FOR THE

18

HEARING SCHEDULED ON JANUARY 16, 2015 AT 9:00 A.M.:

19

The Court has reviewed the parties’ papers and, thus, does not wish to hear the parties

20

reargue matters addressed in those pleadings. If the parties intend to rely on authorities not

21

cited in their briefs, they are ORDERED to notify the Court and opposing counsel of these

22

authorities reasonably in advance of the hearing and to make copies available at the hearing. If

23

the parties submit such additional authorities, they are ORDERED to submit the citations to the

24

authorities only, with reference to pin cites and without argument or additional briefing. Cf.

25

N.D. Civil Local Rule 7-3(d). The parties will be given the opportunity at oral argument to

26

explain their reliance on such authority. The Court suggests that associates or of counsel

27

attorneys who are working on this case be permitted to address some or all of the Court’s

28

questions contained herein.
The Court tentatively GRANTS Defendants’ motion to dismiss.

1

The parties shall each have 20 minutes to address the following questions:

2

1.

What specific injury does Plaintiff maintain it would suffer as a result of the alleged
breach of the Treaty on the Non-Proliferation of Nuclear Weapons?

3
If the injury is the speculative possibility of the future use of nuclear weapons, how is
that injury unique to Plaintiff? See Pauling v. McElroy, 278 F.2d 252, 254 (D.C. Cir.
1960) (holding that plaintiffs lacked standing where they sought to enjoin nuclear testing
because the alleged injury was shared with “all mankind” and “in common with people
generally.”); see also Johnson v. Weinberger, 851 F.2d 233, 235 (9th Cir. 1988).

4
5
6

If the injury would result merely from an alleged breach of the Treaty to which Plaintiff
is a signatory, what are Plaintiff’s alleged damages caused by that breach? What is
Plaintiff’s claim for benefit of its bargain where there are other nations whose
participation is essential?

7
8
2.

On what basis does the Plaintiff contest that the Ninth Circuit’s holding in Earth Island
Institute v. Christopher, 6 F.3d 848, 653 (9th Cir. 1993), bars this court from exercising
jurisdiction to direct the Executive to negotiate with foreign powers?

3.

What enforcement mechanism do Defendants contend operates to ensure the signatories’
compliance with the Treaty?

4.

If the Court were to determine that venue is improper in this jurisdiction because the
foreign policy decisions and obligations emanate from the Executive branch in
Washington D.C., must the Court dismiss or transfer without deciding the motion to
dismiss on the substantive legal bases submitted? See 28 U.S.C. § 1406(a) (“[t]he
district court of a district in which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.”)

5.

9

Do the parties or amici have anything further they wish to address?

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
IT IS SO ORDERED.
18
19
Dated: January 14, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28
2