State of Hawaii v. Trump

Filing 122

MOTION for Leave to File AMICUS CURIAE BRIEF OF THE LAW PROFESSORS Claire Loebs Davis appearing for Amicus Amicus Curiae Law Professors (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Davis, Claire)

OF COUNSEL:
DAVIS LEVIN LIVINGSTON
MARK S. DAVIS
1442-0
MICHAEL K. LIVINGSTON 4161-0
MATTHEW C. WINTER
8464-0
851 Fort Street, Suite 400
Honolulu, Hawaii 96813
Tel: [phone] Fax: [phone]
Email: [e-mail]
LANE POWELL PC
CLAIRE LOEBS DAVIS
[Pro Hac Vice]
JESSICA N. WALDER
TAYLOR WASHBURN
AARON SCHAER
1420 Fifth Avenue, Suite 4200
Seattle, WA 98111
Tel: [phone] Fax: [phone]
Email: [e-mail]
Attorneys for Amicus Curiae Law Professors
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAII AND ISMAIL
ELSHIKH,
Plaintiffs,
vs.
DONALD J. TRUMP, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE UNITED
STATES; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF HOMELAND SECURITY;
REX TILLERSON, IN HIS OFFICIAL
CAPACITY AS SECRETARY OF STATE; AND
THE UNITED STATES OF
AMERICA,
Defendants.

CIV. NO. 17-00050 DKW-KSC
MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF OF
THE LAW PROFESSORS ;
EXHIBIT A; AND CERTIFICATE
OF SERVICE

MOTION FOR LEAVE TO FILE
AMICUS BRIEF OF THE LAW PROFESSORS
I.

INTRODUCTION

Non-party law professors, Todd Aagaard, Robin Kundis Craig, Brigham
Daniels, Lincoln L. Davies, Noah Hall, Alexandra B. Klass, David Owen,
Zygmunt J. B. Plater, Alexander T. Skibine, Lisa Grow Sun, Joseph P. Tomain,
and Amy J. Wildermuth, (“the Law Professors”) hereby move for leave to file an
amicus curiae brief, and for the Court to consider the Law Professors’ attached
brief on the issue of state standing. See Exhibit A. Plaintiffs have consented to the
filing of this brief, while Defendants have indicated that they take no position.
The Law Professors respectfully request that the Court consider this brief
because the Law Professors are scholars on the issue of state standing and hope the
Court may benefit from their analysis on this issue. The Law Professors maintain a
neutral position on the underlying merits of the case, and are not filing this brief in
support of either party. The Law Professors rather seek to offer guidance to the
Court to help resolve the issue of state standing consistent with current law.
II.

INTEREST OF THE LAW PROFESSORS

The Law Professors are scholars who have spent considerable time studying
the question of state standing. As such, the Law Professors have a strong interest in

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ensuring that the Court’s decision on standing is consistent with this complicated,
evolving body of law.
The Law Professors are professors at law schools across the country who
research, teach, and write on constitutional law, federal courts and administrative
law. The Law Professors are all particularly interested in questions of state
standing, and continue to research, read, and follow this area of the law.
• Todd Aagaard is the Vice Dean of the Villanova University Charles
Widger School of Law. His teaching and research focuses on
administrative law, property law, energy law, and environmental law.
• Robin Kundis Craig is the William H. Leary Professor of Law at the S.J.
Quinney College of Law at the University of Utah. She researches the
law and policy of “all things water,” including water rights, water
pollution, and ocean and coastal issues, as well as climate change
adaptation and the intersection of constitutional and environmental law.
• Brigham Daniels is a Professor of Law at Brigham Young University. He
writes and teaches on a variety of topics in environmental law, property
law, natural resources law, and administrative law.

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• Lincoln L. Davies is the Associate Dean for Academic Affairs, the Hugh
B. Brown Professor of Law, and a Presidential Scholar at the University
of Utah. His research focuses on administrative law, including standing
issues, and on energy and environmental regulation.
• Noah Hall is a Professor of Law at Wayne State University and
Scholarship Director of the Great Lakes Environmental Law Center. His
research focuses on federalism, state sovereignty, and interstate
environmental disputes.
• Alexandra B. Klass is a Professor of Law at the University of Minnesota.
She teaches and writes in the areas of energy law, environmental law,
natural resources law, tort law, property law, and administrative law.
• David Owen is a Professor of Law at the University of CaliforniaHastings. Professor Owen teaches courses in environmental, natural
resources, water, and administrative law, and he researches in these same
areas.
• Zygmunt J. B. Plater is a Professor of Law at Boston College Law
School, teaching and researching in the areas of environmental, property,
land use, and administrative agency law.
• Alexander T. Skibine is a Professor of Law at the S.J. Quinney College
of Law at the University of Utah. Professor Skibine has published many
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articles in the area of federal Indian law and he is frequently invited to
speak on federal Indian law issues at venues around the country. He
teaches administrative law, constitutional law, torts, and federal Indian
law.
• Lisa Grow Sun is an Associate Professor at the J. Reuben Clark Law
School at Brigham Young University. She teaches constitutional law,
torts, and disaster law, and her research focuses on disaster law.
• Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler
Professor of Law at University of Cincinnati College of Law. A highly
respected professor and scholar, his teaching and research interests focus
in the areas of energy law, land use, regulatory policy, and contracts.
• Amy J. Wildermuth is the Associate Vice President for Faculty, Chief
Sustainability Officer, and a Professor of Law at the University of Utah.
She teaches and writes on civil procedure, administrative law, and U.S.
Supreme Court practice.
III.

ARGUMENT IN SUPPORT OF LEAVE TO FILE

There is no rule, local rule, or statute prescribing the procedure for leave to
file an amicus brief in this Court. However, it is widely recognized that district
courts have “broad discretion” to appoint amici curiae. Hoptowit v. Ray, 682 F.2d
1237, 1258 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515
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U.S. 472 (1985); Skokomish Indian Tribe v. Goldmark, No. C13-5071JLR, 2013
WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013). As such, “[d]istrict courts may
consider amicus briefs from non-parties concerning legal issues that have potential
ramifications beyond the parties directly involved or if the amicus has unique
information or perspective that can help the court beyond the help that the lawyers
for the parties are able to provide. Skokomish Indian Tribe, 2013 5720053 at *1
(internal citations omitted). “Historically, amicus curiae is an impartial individual
who suggests the interpretation and status of the law, gives information concerning
it, and advises the Court in order that justice may be done, rather than to advocate a
point of view so that a cause may be won by one party or another.” Cmty. Ass'n for
Restoration of Env't (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975
(E.D. Wash. 1999) (internal citations omitted). Thus, an amicus brief is “designed
to supplement and assist in cases of general public interest, supplement the efforts
of counsel, and draw the court's attention to law that might otherwise escape
consideration.” Id.
The Law Professors seek leave to file the accompanying memorandum to
offer their unique perspective on the underlying standing issue. The Law
Professors have previously been granted leave to file amicus briefs on this issue
before the Ninth Circuit and the Western District of Washington. See State of
Washington v. Trump, 9th Cir. No. 17-35105, Dkt. 135; State of Washington v.
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Trump, W.D. Wash. No. 2:17-cv-00141, Dkt. 51. The Professors believe that their
analysis on this issue will provide the Court valuable insight on this question. For
example, Professor Wildermuth was counsel of record for several states appearing
as amici curiae in Massachusetts v. United States Environmental Protection
Agency 1 on the issue of state standing and has published law review articles on this
question. See Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA
Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007); Kathryn A. Watts &
Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other
Than Global Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV.
COLLOQUY 1 (2007); Brief of the States of Arizona, Iowa, Maryland, Minnesota,
and Wisconsin, as Amici Curiae in Support of Petitioners, Massachusetts v. United
States Environmental Protection Agency, 549 U.S. 497 (2007) (No. 05-1120), 2006
WL 2563380.
There are no rules governing the timeline for submission for amici curiae in
district court. Skokomish Indian Tribe, 2013 WL 5720053, at *2. The Federal
Rules of Appellate Procedure provide some guidance on timing, but those rules
would not apply here in light of the expedited briefing schedule. As such, the Law
Professors have endeavored to provide the Court their brief as quickly as possible,
and in advance of the March 15, 2017 hearing on the State of Hawaii’s TRO.
1

Massachusetts v. EPA is one of the seminal cases on the question of state
standing.
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III.

CONCLUSION

For the foregoing reasons, the Court should grant this motion and should
consider the Law Professor’s brief regarding state standing.
DATED: Honolulu, Hawaiʿi, March 11, 2017.

/S/ CLAIRE LOEBS DAVIS
MARK S. DAVIS
MICHAEL K. LIVINGSTON
MATTHEW C. WINTER
LANE POWELL LLC
CLAIRE LOEBS DAVIS
Attorneys for
Amicus Curiae Law Professors

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