State of Washington, et al., v. Trump., et al

Filing 45

MOTION for Leave to File Amicus Curiae Brief, filed by Amicus Law Professors. (Attachments: # 1 Exhibit A) Noting Date 2/2/2017, (Davis, Claire)

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 1 of 7

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THE HONORABLE JAMES L. ROBART

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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STATE OF WASHINGTON,
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)
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Plaintiff,
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v.
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DONALD TRUMP, in his official capacity )
as President of the United States; U.S.
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DEPARTMENT OF HOMELAND
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SECURITY; JOHN F. KELLY, in his official )
capacity as Secretary of the Department of
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Homeland Security; TOM SHANNON, in his )
official capacity as Acting Secretary of State; )
and the UNITED STATES OF AMERICA, )
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Defendants.
)
)

Case No. 2:17-cv-00141-JLR
LAW PROFESSORS’ MOTION FOR
LEAVE TO FILE AMICUS CURIAE
BRIEF ON THE SUBJECT OF
STATE STANDING
NOTE FOR MOTION DATE:
FEBRUARY 2, 2017

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LAW PROFESSORS’ MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF
Case No. 2:17-cv-00141-JLR

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 2 of 7

I.

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INTRODUCTION

Non-party law professors, Todd Aagaard, Robin Kundis Craig, Lincoln L. Davies, Noah

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Hall, F. Andrew Hessick, Zygmunt J. B. Plater, Alexander T. Skibine, Lisa Grow Sun, Joseph

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P. Tomain, and Amy J. Wildermuth, (“the Law Professors”) hereby move for leave to file an

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amicus curiae brief, and for the Court to consider the Law Professors’ attached brief on the

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issue of state standing. See Exhibit A. The Law Professors respectfully request that the Court

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consider this brief because the Law Professors are scholars on the issue of state standing and

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hope the Court may benefit from their analysis on this issue. The Law Professors maintain a

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neutral position on the underlying merits of the case, and are not filing this brief in support of

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either party. The Law Professors rather seek to offer guidance to the Court to help resolve the

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issue of state standing consistent with current law.

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II.

INTEREST OF THE LAW PROFESSORS

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The Law Professors are scholars who have spent considerable time studying the

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question of state standing. As such, the Law Professors have a strong interest in ensuring that

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the Court’s decision on standing is consistent with this complicated, evolving body of law.

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The Law Professors are professors at law schools across the country who research,

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teach, and write on constitutional law, federal courts and administrative law. The Law

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Professors are all particularly interested in questions of state standing, and continue to research,

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read, and follow this area of the law.

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

Todd Aagaard is the Vice Dean of the Villanova University Charles Widger

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School of Law. His teaching and research focuses on administrative law,

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property law, energy law, and environmental law.

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Robin Kundis Craig is the William H. Leary Professor of Law at the S.J.

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Quinney College of Law at the University of Utah. She researches the law and

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policy of “all things water,” including water rights, water pollution, and ocean

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LAW PROFESSORS’ MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF - 1
Case No. 3:16-CV-05897-BHS

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 3 of 7

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and coastal issues, as well as climate change adaptation and the intersection of

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constitutional and environmental law.

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Lincoln L. Davies is the Associate Dean for Academic Affairs, the Hugh B.

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Brown Professor of Law, and a Presidential Scholar at the University of

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Utah. His research focuses on administrative law, including standing issues, and

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on energy and environmental regulation.

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Noah Hall is a law professor at Wayne State University and Scholarship

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Director of the Great Lakes Environmental Law Center. His research focuses on

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federalism, state sovereignty, and interstate environmental disputes.

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F. Andrew Hessick is a Professor of Law at the University of North Carolina

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School of Law. Professor Hessick’s research interests include federal courts,

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administrative law, remedies, and criminal sentencing.

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Zygmunt J. B. Plater is a Professor of Law at Boston College Law School,

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teaching and researching in the areas of environmental, property, land use, and

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administrative agency law.

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

Alexander T. Skibine is a Professor of Law at the S.J. Quinney College of Law

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at the University of Utah. Professor Skibine has published many articles in the

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area of federal Indian law and he is frequently invited to speak on federal Indian

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law issues at venues around the country. He teaches administrative law,

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constitutional law, torts, and federal Indian law.

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

Lisa Grow Sun is an Associate Professor at the J. Reuben Clark Law School at

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Brigham Young University. She teaches constitutional law, torts, and disaster

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law, and her research focuses on disaster law.

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

Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler Professor

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of Law at University of Cincinnati College of Law. A highly respected professor

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and scholar, his teaching and research interests focus in the areas of energy law,

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land use, regulatory policy, and contracts.

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LAW PROFESSORS’ MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF - 2
Case No. 3:16-CV-05897-BHS

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 4 of 7

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Amy J. Wildermuth is the Associate Vice President for Faculty, Chief

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Sustainability Officer, and a Professor of Law at the University of Utah. She

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teaches and writes on civil procedure, administrative law, and U.S. Supreme

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Court practice.

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III. ARGUMENT IN SUPPORT OF LEAVE TO FILE
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Although participation as amici curiae is typically associated with appeals, district
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courts have “broad discretion” to appoint amici curiae. Skokomish Indian Tribe v. Goldmark,

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No. C13-5071JLR, 2013 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013) (Robart, J.). As such,
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“[d]istrict courts may consider amicus briefs from non-parties concerning legal issues that have

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potential ramifications beyond the parties directly involved or if the amicus has unique
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information or perspective that can help the court beyond the help that the lawyers for the
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parties are able to provide. Id. (internal citations omitted). “Historically, amicus curiae is an

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impartial individual who suggests the interpretation and status of the law, gives information
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concerning it, and advises the Court in order that justice may be done, rather than to advocate a
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point of view so that a cause may be won by one party or another.” Cmty. Ass'n for Restoration

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of Env't (CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999) (internal
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citations omitted). Thus, an amicus brief is “designed to supplement and assist in cases of

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general public interest, supplement the efforts of counsel, and draw the court's attention to law
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that might otherwise escape consideration.” Id.

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The Law Professors seek leave to file the accompanying memorandum to offer their
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unique perspective on the underlying standing issue. The Court has ordered further briefing on
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standing (Dkt. 10), and the Professors believe that their analysis on this issue will provide the
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Court valuable insight on this question. For example, Professor Wildermuth was counsel of
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record for several states appearing as amici curiae in Massachusetts v. United States
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Environmental Protection Agency1 on the issue of state standing and has published law review

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

LAW PROFESSORS’ MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF - 3
Case No. 3:16-CV-05897-BHS

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 5 of 7

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articles on this question. See Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA

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Matters, 27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007),

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http://epubs.utah.edu/index.php/jlrel/article/view/53/46; Kathryn A. Watts & Amy J.

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Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global

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Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1 (2007), available

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at http://www.law.northwestern.edu/lawreview/Colloquy/2007/17/LRColl2007n17Watts.pdf;

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Brief of the States of Arizona, Iowa, Maryland, Minnesota, and Wisconsin, as Amici Curiae in

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Support of Petitioners, Massachusetts v. United States Environmental Protection Agency, 549

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U.S. 497 (2007) (No. 05-1120), 2006 WL 2563380.

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There are no rules governing the timeline for submission for amici curiae in district

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court. Skokomish Indian Tribe, 2013 WL 5720053, at *2. The Federal Rules of Appellate

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Procedure provide some guidance on timing, but those rules would not apply here in light of

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the expedited briefing schedule. As such, the Law Professors have endeavored to provide the

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Court their Memorandum as quickly as possible, and in advance of the February 3, 2017

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hearing on the State of Washington’s TRO.
III.

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CONCLUSION

For the foregoing reasons, the Court should grant this motion and should consider the
Law Professor’s brief regarding state standing.
DATED: February 2, 2017
LANE POWELL PC

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By

s/Claire Loebs Davis
Claire Loebs Davis, WSBA No. 39812
Tiffany Scott Connors, WSBA No. 41740
Jessica N. Walder, WSBA No. 47676
1420 5th Avenue, Suite 4200
Seattle, WA 98111
Telephone: [phone]
Facsimile: 206.223.7107
Attorneys for Proposed Amici Curiae Law
Professors
LAW PROFESSORS’ MOTION
FOR LEAVE TO FILE AMICUS CURIAE BRIEF - 4
Case No. 3:16-CV-05897-BHS

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 6 of 7

CERTIFICATE OF SERVICE

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I hereby certify that on this 2nd day of February 2017, I electronically filed the
foregoing document with the United States District Court ECF system, which will send
notification of such filing to the following:
Robert W. Ferguson
• Via Electronic Court Filing
Marsha J. Chien
Anne E. Egeler
Patricio A. Marquez
Colleen M. Melody
Noah Guzzo Purcell
WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL
1125 Washington Street SE
P.O. Box 40100
Olympia, WA 98504-0100
Attorneys for Plaintiff
Argun Garg
• Via Electronic Court Filing
Michelle R. Bennett
U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington, D.C. 20530
Attorneys for Defendants Donald J. Trump, U.S. Department of Homeland Security,
John F. Kelly, Tom Shannon, and United States of America
Angelo J. Calfo
• Via Electronic Court Filing
Kristin W. Silverman
CALFO EAKES & OSTROVSKY, PLLC
1301 Second Avenue, Suite 2800
Seattle, WA 98101-3808
Attorneys for Amicus Americans United for Church and State
Paul J. Lawrence
• Via Electronic Court Filing
Kymberly K. Evanson
PACIFICA LAW GROUP LLP
1191 Second Avenue, Suite 200
Seattle, WA 98101
Attorneys for American Civil Liberties Union of Washington (ACLU)
Bradley Girard
• Via Electronic Court Filing
Richard B. Katskee
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
1310 L Street NW, Suite 200
Washington, D.C. 20005
Attorneys for Americans United for Separation of Church and State

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CERTIFICATE OF SERVICE
Case No. 2:17-cv-00141-JLR

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]

Case 2:17-cv-00141-JLR Document 45 Filed 02/02/17 Page 7 of 7

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Steve W. Berman
• Via Electronic Court Filing
Andrew M. Volk
HAGENS BERMAN SOBOL SHAPIRO LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Attorneys for Service Employees International Union
Noah Guzzo Purcell
• Via Electronic Court Filing
WASHINGTON STATE OFFICE OF THE ATTORNEY GENERAL
1125 Washington Street SE
P.O. Box 40100
Olympia, WA 98504-0100
Attorneys for State of Minnesota
Jacob Campion
STATE OF MINNESOTA
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
Attorneys for State of Minnesota

• Via Electronic Court Filing

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Signed at Seattle, Washington, this 2nd day of February, 2017.
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s/Patti Lane
Patti Lane

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CERTIFICATE OF SERVICE
Case No. 2:17-cv-00141-JLR

LANE POWELL PC
1420 FIFTH AVENUE, SUITE 4200
P.O. BOX 91302
SEATTLE, WA 98111-9402
206.223.7000 FAX: [phone]