Oregon Manufacturers and Commerce v. Oregon Occupational Safety and Health Division

"IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

‘MEDFORD DIVISION

OREGON MANUFACTURERS AND

COMMERCE, an Oregon non-profit .

association, ASSOCIATED OREGON

LOGGERS, INC.,, an Oregon non-profit

Association, and OREGON FOREST &

INDUSTRIES COUNCIL, an Oregon nonprofit

association, .

Case No, 1:22-cv-00875-CL

Plaintiffs,

v.

OPINION AND ORDER

OREGON OCCUPATIONAL SAFETY

AND HEALTH DIVISION, a division of the

Oregon Department of Consumer and Business

Services, RENEE STAPLETON, in her

official capacity as acting administrator for the

Oregon Occupational Safety and Health

Division, OREGON DEPARTMENT OF

CONSUMER AND BUSINESS SERVICES,

an Agency of the State of Oregon, and- .

ANDREW STOLFI, in his official capacity as

the Director of the Oregon Department of

Consumer and Business Services, :

Defendants.

CLARKE, Magistrate Judge

Plaintiffs are non-profit organizations whose members represent the industries of

manufacturing, commerce, logging, and forestry in the State of Oregon. They bring this cause of

action against the defendants, the Oregon Department of Consumer and Business Services

Pace ] OPINION AND ORDER

(“DCBS”), the Oregon Occupational Safety and Health Division (““OR-OSHA”), which is a

division of DCBS, and Renee Stapleton and Andrew Stolfi, who are the directors of those two

agencies. Plaintiffs challenge the validity of recent Oregon Administrative Rules (“OAR”) 437-

002-1081 and 437-003-9791, which seek to provide worker protections from wildfire smoke, and

OAR 437-002-0156 and 437-004-1131, which seek to provide workers with heat illness

prevention tools.

Full consent to magistrate jurisdiction was entered on December 6, 2022. The case

comes before the Court on a motion to dismiss for sovereign immunity and failure to state a

claim. An oral argument hearing was held on December 6, 2022. For the reasons below, the

motion to dismiss (#20) is GRANTED. This case is dismissed with prejudice, and judgment

shall be entered for the defendants:

BACKGROUND

Defendant OR-OSHA adopted administrative rules to protect Oregon workers from □

exposure to excessive ambient heat temperatures and hazardous levels of wildfire smoke while at

work, See OAR 437-002-0156 and 437-004-1131 (the “heat rules”), OAR 437-002-1081! and

OAR 437-004-9791 (the “smoke rules”) (collectively, “the heat and smoke rules”). The heat and

smoke rules arise from Executive Order 20-04 (“EO-20-04”), issued on March 10, 2020, in

which Governor Kate Brown directed certain state agencies to address and mitigate the impacts

of climate change in various ways. Dkt. 1-1 (“Compl., Ex. 1”) at 1, 4; Dkt. 1-2 (‘Compl., Ex, 2”)

at 1, 4-5. As relevant here, EO-20-04 directed OR-OSHA to work with the Oregon Health

Authority (“OHA”) “to jointly develop a proposal for standards to protect employees from

Throughout the Complaint, Plaintiffs cite to “OAR 437-002-1080” when referencing the smoke |

rules. The Court recognizes this as a typographical error. The Court assumes that Plaintiffs

meant to type “OAR 437-002-1081,” and the Court will address the merits of the substantive

arguments without regard to the error.

Dage 7 — OPINION AND ORDER

workplace exposures to excessive heat and wildfire smoke.” Compl., Ex. 1 at 1, 4; see also

Compl., Ex, 2 at 1, 4-5. .

a. The Heat Rules

OR-OSHA initiated the rulemaking process for the heat rules in March 2021 in

collaboration with OHA, a rulemaking advisory committee, and stakeholders representing labor

and business interests. Compl., Ex. 1 at 1. In June of 2021, because of the “unprecedented heat

event” at the time, and with the formal rulemaking process underway, OR-OSHA adopted a

temporary version of the heat rules. /d. at 1-2. On May 9, 2022, OR-OSHA adopted the final □□□□

rules, with an effective date of June 15, 2022. Compl. 4] 29-30; Compl., Ex. 1 at 4.7 In adopting

the rules, OR-OSHA sought to address the problem that “both employers and workers may not

clearly understand expectations of what must be done to prevent work-related heat illness.”

Compl., Ex. 1 at 1. Indeed, “[t]he deadly heat wave of June 2021, which contributed to multiple

workplace hospitalizations and fatalities, underscored the need for such rules to protect workers

against the serious risk of work-related heat illness,” Id. .

The heat rules apply “whenever an employee performs work activities, whether in indoor

or outdoor environments, where the heat index (apparent temperature) equals or exceeds 80

degrees Fahrenheit.” Compl. 33; Compl., Ex. 1 at 8 (OAR 437-002-0156(1)); id. at 31 (OAR

437-004-1131(1)). The rules provide limited exemptions for certain workplaces and/or types of

work. Compl., Ex. 1 at 8 (OAR 437-002-0156(1)(a) & (b)); id. at 31 (OAR 437-004-1131(1)¢a)

& (b)). The heat rules include several provisions that address worker exposure to high ambient

heat temperatures, including drinking water and shade requirements, high-heat practices,

? OR-OSHA adopted two sets of heat rules: OAR 437-002-0156 and OAR 437-004-1131. Compl. 931;

also e.g, Compl., Ex. | at 1. As Plaintiffs allege, and the defendants agree, the text of the two sets of

heat rules ts “identical in relevant manner for purposes of [Plaintiffs”] complaint.” See Compl. 31. OAR

437-002-0156 “applies to general industry,” and OAR 437-004-1131 “applies to places of employment

subject to the rules for agriculture,” Jd.

Pace 3 OPINION AND ORDER

emergency medical plans, acclimatization plans, heat illness prevention plans, supervisor and

employee training, and training documentation. See Compl., Ex. 1 at 9-12 (OAR 437-002-

0156@G)-(10)), 31-34 (OAR 437-004-1131(3)-(10)).

Plaintiffs’ due process challenge against the heat rules relates to the provision requiring

employers to develop and implement a written “acclimatization plan.” Compl. 37; see also

Compl, Ex. 1 at 11 (OAR 437-002-0156(7)); id. at 33 (OAR 437-004-1131(7)).

“[A]|eclimatization” is the “temporary adaptation of the body to work in the heat that occurs

gradually when a person is exposed to it.” Compl., Ex. 1 at 9 (OAR 437-002-0156(2)(a)); id. at

31 (OAR 437-004-1131(2)(a)). The relevant portion of the heat rules provides:

(7) <Acclimatization plan. Develop and implement an

acclimatization plan and procedures in writing. Employers must

_ choose between two options, either (a) or (b) as described below,

and implement the chosen plan.

(a) Employer-designed acclimatization plan option: Employers

who develop their own acclimatization plan must integrate and

implement the following factors into their program:

(A) Acclimated and unacclimated workers;

(B) The effects of clothing and personal protective

equipment on adding to the heat burden of workers;

(C) The personal and environmental risk factors that put

workers at a higher risk of heat-related illness;

- (D) Re-acclimatizing workers as necessary, either due to

changes in the weather or a worker spending more than seven days

away from the job; and

(E) The use and maintenance of auxiliary cooling systems

such as water-cooled garments, air-cooled garments, cooling vests,

and wetted overgarments.

(b) [National Institute for Occupational Safety and Health

- (“NIOSH”)] acclimatization plan option: Employers that choose -

not to develop their own acclimatization plan must follow the

acclimatization plan developed by the Centers for Disease Control

and Prevention and NIOSH; see section 4, Appendix A: Mandatory

Information for Heat IlIness Prevention.

Compl., Ex. I at 11 (OAR 437-002-0156(7)); id. at 33 (OAR 437-004-113 1(7)).

Pace 4 — OPINION AND ORDER

Thus, the acclimatization plan provision of the heat rules provides employers with the

option to design their own plan, integrating the factors enumerated in the rules, or adopt a plan -

drafted by NIOSH. See Compl., Ex. 1 at 11 (OAR 437-002-0156(7)); id. at 33 (OAR 437-004-

1131(7)). A full copy of the NIOSH plan is attached to the Complaint and appended to the heat

rules. Compl., Ex. | at 18-19, 40-41. The NIOSH plan requires that employers allow employees

to acclimatize over a period of 7 to 14 days, with the duration of work in the hot environment

gradually increasing during that time period. /d. at 18, 40. “For new workers, the schedule should

be no more than 20% of the usual duration of the work in the hot environment on day 1 and ano

more than 20% increase on each additional day.” /d. at 18, 40. The NIOSH plan goes on to

provide that, “[fJor workers who have had previous experience with the job, the acclimatization

regimen should be no more than 50% of the usual duration of work in the hot environment on

day 1, 60% on day 2, 80% on day 3 and 100% on day 4.” /d. at 18, 40.

b. The Smoke Rules

OR-OSHA began the rulemaking process for the smoke rules in March of 2021 in

collaboration with OHA, a rulemaking advisory committee, and stakeholders. Compl, Ex. 2 at 1-

2. In August 2021, OR-OSHA adopted a temporary version of the smoke rules “[d]ue to the

immediate risk of worker exposure to wildfire smoke during the later portion of Oregon’s 2021

wildfire season...” /d, at 2. On May 10, 2022, OR-OSHA adopted the final smoke rules, with

an effective date of July 1, 2022. Compl. {fj 18-19; see also Compl., Ex. 2 at 4° OR-OSHA

adopted the rules “to address worker exposure to unhealthy and hazardous levels of the primary

air contaminant of concern in wildfire smoke, fine particulate matter (PM2.5).” Compl., Ex. 2 at

3 OR-OSHA adopted two sets of smoke rules: OAR 437-004-9791 and OAR 437-002- 1081. Compl. □

18; see also, e.g., Compl., Ex. 2 at 1. As Plaintiffs allege, and defendants agree, the two sets of smoke

rules are “identical in relevant manner for purposes of [Plaintiffs’] complaint.” See Compl. 7 20. OAR

437-002-1081 applies “to general industry,” and OAR 437-004-9791 applies “to places of employment

subject to the rules for agriculture.” /d.

Pace 5 — OPTNION AND ORDER

4, In adopting the final smoke rules, OR-OSHA remarked that Oregon’s air quality in 2020 was

the worst on record, and a report by the Oregon Department of Environmental Quality

commented that wildfires are expected to become more frequent. /d.

The smoke rules apply when workers “are or will be exposed to wildfire smoke where the

ambient air concentration for fine particulate matter (PM2.5) is at or above 35.5 u g/m3 (Air

Quality Index [(“AQI’)] value of 101 for PM2.5).” Compl. § 22; see also Compl., Ex. 2 at 8

(OAR 437-002-1081(1)); id. at 17 (OAR 437-004-9791(1)). The rules also define the AQI as an

“indicator,” developed by the U.S. Environmental Protection Agency (“EPA”), “of overall air

quality ... based on the five criteria pollutants regulated under the Clean Air Act.” Compl. § 25;

Compl., Ex. 2 at 9 (OAR 437-002-1081 (2)(a)); id. at 17 (OAR 437-004-979 1(2)(a)). The rules

provide limited exemptions for certain workplaces and/or types of work. Compl., Ex. 2 at 8-9

(OAR 437-002-1081 (1)(a)); id. at 17 (OAR 437-004-9791(1)(a)). The smoke rules include:

requirements relating to exposure assessments, training and documentation, two-way

communication with employees, and implementation of exposure control (e.g., use of respirators

under certain conditions).

As relevant to Plaintiffs’ claim that the smoke rules are unconstitutionally vague, the

rules require employers to “[m]onitor employee exposure to wildfire smoke when employees are,

or are likely to be, exposed to an ambient air concentration for PM2.5 at or above 35.5 y g/m3

-(AQI 101).” Compl., Ex. 2 at 9 (OAR 437-002-1081(3)); id. at 18 (OAR 437-004-9791(3)). The □

monitoring “must be performed at the start of each shift” and as needed to comply with

provisions of the smoke rules. Compl., Ex. 2 at 9 (OAR 437-002-1081(3)); id. at 18 (OAR 437-

004-979 1(3)). The rules provide that employers can comply with the requirements to monitor air

quality for PM2.5 levels “by using one or more of the following methods”:

Baga f& _fiIiPINICW) ABT ORKERR

(a) Check the current average and forecasted AQI value for PM2.5

from the Oregon Department of Environmental Quality, U.S. EPA

AirNow or Interagency Wildland Fire Air Quality Response

‘ Program websites, or equivalent source;

(b) Check notifications of air quality. advisories due to wildfire

smoke issued by the Oregon Department of Environmental Quality

or local government health agencies;

(c) Directly measure workplace ambient air concentration for

PM2.5 in accordance with the testing device manufacturer’s user

instructions; or

(d) If the employer determines and can demonstrate that none of

the methods in subsections (3)(a) through (3)(c) of this standard

are available for their work location, the employer can then use the

5-3-1 Visibility Index provided in Appendix B, Table 1 of this

standard to estimate the current air concentration for PM2.5, and

equivalent AQI value, during daylight hours.

Compl., Ex, 2 at 9 (OAR 437-002-1081(3)); id. at 18 (OAR 437-004-9791(3)); see also Compl.

q 27.

LEGAL STANDARD

Under Rule 12(b)(1), a defendant may move to dismiss a case for “lack of subject-matter

jurisdiction.” Fed. R. Civ. P. 12(b)(1). “The party asserting federal subject matter jurisdiction

bears the burden of proving its existence.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d

1115, 1122 (9th Cir. 2010) (citation omitted). A defendant may raise the issue of sovereign

immunity through a motion to dismiss under Rule 12(b)(1). See Sato v. Orange Cnty. Dep't of

Educ., 861 F.3d 923, 927 n.2 (9th Cir. 2017) (“A sovereign immunity defense is ‘quasi-

jurisdictional’ in nature and may be raised in either a Rule 12(b)(1) or 12(b)(6) motion.”). When

a defendant correctly identifies a jurisdictional defect, “the court must dismiss the action.” Fed.

R, Civ, P. 12(h)(3). Ninth Circuit law requires that the Court decide the sovereign immunity

- issues as a threshold question before reaching.the merits of the case. Coal. To Defend Affirmative

Action v. Brown, 674 F.3d 1128; 1133 (9th Cir. 2012).

Page 7—-OPINION AND ORDER

On a motion to dismiss for failure to state a claim under 12(b)(6), courts presume the

truth of allegations in the complaint, and construe them in the light most favorable to-the

nonmoving party. Fed. R. Civ. P. 12(b)(6); Sun Savings & Loan Ass’n v. Dierdorff, 825 F.2d

187, 191 (9th Cir. 1987). However, the complaint “must contain sufficient factual matter, □

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks and citation omitted). A claim is plausible on its face

only if it contains “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Jd. .

When ruling on a motion to dismiss under Rule 12(b)(6), a court may “consider certain’

materials,” including “documents attached to the complaint . . . without converting the motion to

dismiss into’a motion for summary judgment.” United States y. Ritchie, 342° F.3d 903, 907-08

(9th Cir. 2003); see also Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001), overruled on

other grounds by Galbraith v. Cnty. Of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002)

(same); Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (“Ifa complaint is

accompanied by attached documents, the court is not limited by the allegations contained in the

complaint. . .. These documents are part of the complaint and may be considered in determining

whether the plaintiff can prove any set of facts in support of the claim.” (citation omitted),

DISCUSSION

Plaintiff's Complaint is organized into two major claims, one addressing the smoke rules

and one addressing the heat rules, with two counts plead under each claim. The first count of

each claim alleges that the rules violate the Plaintiffs’ federal Due Process rights under the

United State Constitution. The second count of each claim alleges that the defendants exceeded

their statutory authority under Oregon law by adopting the rules.

Pace 8 — OPINION AND ORDER

The defendants move to dismiss all claims and all counts. They assert that sovereign

immunity bars all the claims against the state agencies, as well as the state law counts against the

individual state officials. Sovereign immunity does not apply to federal Due Process claims

against individual state officials, but the defendants move to dismiss those as well for failure to

state a claim under FRCP 12(b)(6). For the reasons below, the defendants’ motion is granted,

and all of the claims are dismissed with prejudice.

L All claims asserted against the state agencies, DCBS and OR-OSHA, are barred

by sovereign immunity.

Under the doctrine of sovereign immunity, a nonconsenting state and its agencies or

departments are immune from suit in federal court, regardless of the relief sought. Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Although a state may waive its

sovereign immunity by consenting to suit in federal court, the waiver must “be unequivocally

expressed,” Jd. at 99. .

Plaintiffs have sued DCBS, a state agency, and OR-OSHA, a division of that state

agency. Compl. Jj 4 & 6. Oregon has not consented to suit in federal court, and Plaintiffs make

no contrary allegation in the Complaint. See Delong Corp. v. Or. State Highway Comm'n, 343

F.2d 911, 912 (9th Cir. 1965) (holding “that Oregon has not consented to be sued in federal court

or otherwise waived its immunity under the Eleventh Amendment”); Todd v. Oregon, 2014 WL

1217964, at *4 (D. Or. Mar. 19, 2014) (concluding that the State had not waived sovereign

immunity for federal constitutional claims).

Plaintiffs urge the Court to re-evaluate the generally accepted concept that OR-OSHA, as

a division of a state agency, is a state agency itself. Plaintiffs contend that “Oregon OSHA

essentially stands in the shoes of Federal OSHA in the State of Oregon,” and that “DCBS and

0 APTNION ANT ORDER

Oregon OSHA, as well as their Administrators, are, in effect, agents of federal OSHA.”

Plaintiffs cite to three “facts” to support this assertion:

(1) This state entity [OR-OSHA] only has jurisdiction and

regulatory authority to regulate which is derivative, meaning its

jurisdiction and regulatory authority only arises through a

delegation of power from a federal law;

(2) Federal funding makes up a significant portion of Oregon

OSHA’s budget; and

(3) This state entity can only act under the supervision of and at the

leave of a federal agency, meaning Federal OSHA. □

Resp. 4 (#26). Plaintiffs do not submit evidence or material for the Court to take judicial

notice of regarding these purported facts, but they do point to the origins of federal and Oregon

OSHA as relevant to the discussion. The Court will review the history of the agency briefly.

The Occupational Safety and Health Act of 1970 requires the Secretary of Labor to

promulgate occupational safety or health standards, generally applied to all non-state employers.

29 U.S.C. §§ 652(6), 653, 655(a). The Secretary of Labor is charged with enforcement of those

standards by issuing citations or initiating judicial enforcement proceedings. 29 U.S.C. §§ 658,

662. In enacting the Occupational Safety and Health Act of 1970, Congress provided a

_ mechanism for cooperative federalism—it allows state governments to create plans for state

enforcement of any occupational safety or health issue with respect to which the Secretary of

Labor has promulgated a standard under the 29 U.S.C. § 655. 29 U.S.C. § 667(b). Ifa state elects

to do so, it is required to submit a state plan, setting forth standards and enforcement policies to

be approved by the Secretary of Labor for enforcement by the state. Jd. Among other things, the

Secretary of Labor must confirm that the state’s proposed standards “‘are or will be at least as

effective in providing safe and healthful employment and places of employment as the

standards” promulgated by the Secretary of Labor pursuant to 29 U.S.C. § 655. 29 U.S.C. §

667(c). After the Secretary of Labor approves a state plan and confirms the efficacy of the state’s

Pase 19 OPTNION AND ORDER .

execution of the plan, the standards promulgated under 29 U.S.C. § 655 are no longer applicable □

in that state and Secretary of Labor no longer has the authority to commence enforcement actions

within that state. 29 U.S.C. § 667(e); 29 C.F.R. § 1902.42(c). In essence, section 667 allows for a

form of reverse preemption by the state after the plan is finally approved. See United States v.

Gibson Wine Co., 2017 WL 1064658, at *5 (E.D. Cal. Mar. 20, 2017). □

Oregon is one of many states who have received the Secretary’s approval under the OSH

Act for its own state plan. the Oregon State Plan was submitted and initially approved in 1972.

29 CER. § 1952,2(a); 70 Fed. Reg. 24947-01 (May 12, 2005). In 1973, Oregon enacted itsown

occupational safety and health legislation, the Oregon Safe Employment Act (OSEA). See ORS

654.001 et seq. In 1975, the federal government transferred jurisdiction over Oregon’s workplace

safety laws to OR-OSHA and suspended federal jurisdiction. 70 Fed. Reg. 24947-01 (May 12,

2005); see also George v. Myers, 169 Or. App. 472, 482-83 (2000) (citing 29 CER. § 1952.107;

40 Fed. Reg. 18428) (“The state’s law—OSEA and its regulations —became the operative

worker safety provisions, completely displacing [federal] OSHA.”),

The Oregon State Plan received its final approval on May 12, 2005. 29 C_F.R. § 1952.2;

70 Fed. Reg. 24947-01 (May 12, 2005). As the result of the approval, “Federal OSHA’s

standards and enforcement authority no longer apply and Federal concurrent jurisdiction is

relinquished with respect to-occupational safety and health issues covered by the Oregon plan.”

70 Fed. Reg. 24947-01 (May 12, 2005).4

While the Oregon State Plan and standards must comply with certain minimum federal

standards in order to maintain its approval, Oregon is free to regulate in areas where there is no

- 4 Since OSEA’s enactment, the Oregon Legislature has added to and modified the statute several times.

See ORS 654.001 et seq. (noting amendments). And as Plaintiffs’ brief notes, OR-OSHA derives the vast

majority of its funding from the Oregon Legislature, not the federal government. PIf. Resp. at 6

(acknowledging that less than 25 percent of OR-OSHA’s annual funding comes from the federal

government).

Page 1] —OPINION AND ORDER

federal counterpart. 29 U.S.C. § 667(a). In this case, OR-OSHA promulgated the heat and smoke

rules at issue pursuant to an executive order from Oregon’s Governor Kate Brown, not as the

result of any federal directive. See Compl., Ex. 1 at 1, 4 (ECF No. 1-1); Compl., Ex. 2 at 1, 4-5

(ECF No. 1-2). Moreover, even where there is a federal counterpart, Oregon is free to

promulgate different and more stringent standards than federal standards on the same issue, and

indeed, has done so numerous times. 29 U.S.C, § 667(c)(2). □ □

Based on all of the above, the Court can find no reason to adopt the Plaintiffs contention □

that OR-OSHA, a state agency, should be considered to be “acting in the shoes” of the federal

government. Or, even if it were, the Court can see no reason why such cooperative federalism

should result in the state agency losing its sovereign immunity, and the Plaintiffs have admitted

they have no law or case law to rely on for this proposition.

Conversely, other courts have found that organizations in similar circumstances have

been specifically found not to be a “federal instrumentality.” See Kuntz v. Lamar Corp, 385 F.3d

1177, 1184 (9th Cir. 2004) (finding that a cooperative was not a federal instrumentality because

ihe Federal Government did not exercise control over the detailed physical performance and day

to day operations of the entity, and holding that neither federal regulation, nor federal funding...

is sufficient to make an entity a federal agency). See also Atascadero State Hosp. v. Scanlon, 473

U.S. 234, 247 (1985) 473 U.S. at 246-47 (the “mere receipt of federal funds” and participation in

“programs funded under [a federal] statute” by a state “falls far short of manifesting a clear intent

to condition participation in the programs funded under the Act on a State’s consent to waive its

constitutional immunity”); Edelman v. Jordan, 415 U.S. 651, 673 (1974) (the “mere fact that a

State participates in a program through which the F ederal Government provides assistance for

the operation by the Staté of a system of public aid is not sufficient to establish consent on the

Pase 12 —OPINION AND ORDER

part of the State to be sued in the federal courts”); Sossamon, 563 U.S. at 293 (“We conclude that

States, in accepting federal funding, do not consent to waive their sovereign immunity to private

suits for money damages under RLUIPA because no statute expressly and unequivocally

includes such a waiver.”). Moreover, even if it could be said that OR-OSHA stands in the shoes

of federal OSHA, Plaintiffs do not address whether federal sovereign immunity would apply to

these allegedly “federal” agents and agencies.

For all of the reasons above, the Court finds that OR-OSHA is a state agency, and the

State of Oregon has not formally waived sovereign immunity for the DCBS or OR-OSHA.

Therefore, these entities are immune to suit in federal court. The Ninth Circuit has concluded

Eleventh Amendment immunity is a “threshold issue” and a court “may not bypass the issue

in favor of deciding the case on the merits.” Cardenas v. Anzai, 311 F.3d 929, 934 n, 2 (9th Cir.

2002); see also Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 144-45

(1993) (citation omitted) (Eleventh Amendment immunity is immunity from suit rather than a

mere defense to liability). Therefore, Plaintiff's claims against DCBS and OR-OSHA are

dismissed with prejudice. ,

Il. The state law claims against the individual defendants are barred by sovereign

_, immunity.

Plaintiffs assert claims against Defendant Stapleton in her official capacity as the Acting □

Administrator of OR-OSHA and against Defendant Stolfi in his official capacity as Director of

DCBS. Plaintiffs seek injunctive relief barring Defendants Stapleton and Stolfi from enforcing

the Oregon Administrative Rules at issue, Compl. ¥ 78.

Sovereign immunity extends to state officers who act on behalf of the state, NRDC v.

Calif, Dept. of Transp., 96 F.3d 420, 422 (9th Cir. 1996). Sovereign immunity and the Eleventh

Amendment bar suits against state officials when the state is the real party in interest? Pennhurst

Page 13 —OPINION AND ORDER

465 U.S. at 101-02. “The general rule is that relief sought nominally against an officer is in fact

against the sovereign if the decree would operate against the latter.” /d. at 101 (quoting Hawaii v.

Gordon, 373 U.S. 57, 58 (1963)). Suits against state officials are suits against the state where the

relief sought would “interfere with the public administration, or if the effect of the judgment

would be to restrain the Government from acting... .” /d. at 101 n. 11 (quoting Dugan v. Rank,

372 U.S. 609, 620 (1963) Cinternal citations omitted)).

Ex parte Young, 209 U.S. 123 (1908), provides a limited exception to the general rule

barring official capacity suits against state officials: “a suit challenging the constitutionality of a

state official's action is not one against the State.” Pennhurst, 465 U.S. at 102, Under this

exception, a state official may be sued in federal court in her official capacity if the relief sought

is “prospective injunctive relief to prevent a continuing violation of federal law.” Green v.

Mansour, 474 U.S. 64, 68 (1985). This exception is premised on the proposition that federal

court authority to enjoin a “continuing violation of federal law [is] necessary to vindicate the

federal interest in assuring the supremacy of that law.” /d. However, the Ex parte Young

exception is “inapplicable in a suit against state officials on the basis of state law.” Pennhurst,

465 U.S. at 106; see also Hale v. Arizona, 967 F.2d 1356, 1369 (9th Cir. 1992), on reh’g, 993

F.2d 1387 (9th Cir. 1993) (“the Eleventh Amendment deprives federal courts of jurisdiction to

order state actors to comply with state law”). This is because “[a] federal court’s grant of relief

against state officials on the basis of state law . . . does not vindicate the supreme authority of

federal law.” Pennhurst, 465 U.S. at 106. As the Supreme Court acknowledged in Pennhurst, “it

is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs

state officials on how to conform their conduct to state law. Such a result conflicts directly with

‘the principles of federalism that underlie the Eleventh Amendment.” Jd. The Court further held

Pace 14 OPINION AND ORDER □

that “neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh

Amendment.” /d. at 121; see also Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1133-

34 (9th Cir..2006) (holding that “28 U.S.C. § 1367 does not abrogate state sovereign immunity

for supplemental state law claims”). .

Here, Plaintiffs state law claims (Count 2 of the First and Second Claims for Relief),

against Defendant Stapleton and Defendant Stolfi, assert that enactment of the heat and smoke

rules exceeded the authority granted by Oregon state statute. Compl. ff] 46 & 65 (alleging that

OR-OSHA “derives its authority to adopt regulations from the Oregon Safe Employment Act

(‘OSEA’) set forth in ORS Chapter 654 et seq.”); Jf 50 & 69 (alleging that OSEA does not

provide authority to regulate “general societal hazards”). These are Oregon state law claims.

brought against State officials acting in their official capacity, which are in fact claims against

the State and State agencies. Therefore, these claims are barred by sovereign immunity, and no

Ex Parte Young exception applies. These claims are dismissed with prejudice.

OI. The federal Due Process claims against the individual defendants are dismissed

for failure to state claim because Plaintiff has not and cannot allege that the

rules are vague in all circumstances.

The federal Due Process claims against the individual defendants are not barred by

sovereign immunity, but they are nevertheless dismissed for failure to state a claim because

Plaintiff cannot allege tliat the rules are vague in all circumstances. .

Count One of Plaintiffs’ First Claim asserts a violation of Constitutional Due Process. It

claims that the smoke rules “fail to provide employers... with a means to determine if wildfire

smoke particulates are contained within the PM2.5 contaminates at a particular work site, thus

making the rules applicable to that work site.” Compl. 40. This claim also asserts that the smoke

rules provide inconsistent requirements as to metrics for measuring the PM2.5 levels and that the

OPINION AND ORDER

metrics will be predictably imprecise for a particular worksite, rendering the rules subject to

arbitrary and capricious enforcement. Compl. 41-42. Plaintiffs claim that the smoke rules “are

so vague that they do not provide employers... with fair notice of what conduct is required or

proscribed;” thus the smoke rules are violative of due process.

Count One of Plaintiffs’ Second Claim also asserts a violation of Constitutional Due

Process. It claims that the heat rules “fail to provide employers with a means to determine when

the acclimatization plan is required to be triggered on a particular work site, how long such plans

must be implemented if the weather changes, or what time of employer-specific plan would be

considered not in compliance.” Compl. 59. As with the smoke rules, Plaintiffs assert that the heat

are so vague that they do not provide employers with fair notice of what conduct is required

or proscribed; thus, they are violative of due. process. Compl. 62, Because Plaintiff has not, and -

cannot, allege that the smoke rules or the heat rules are vague in all circumstances, both of these

claims are dismissed with prejudice.

The United States Supreme Court has long held that vague laws are not permissible:

Vague laws offend several important values. First, because we

assume that man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of ordinary

intelligence-a reasonable opportunity to know what is prohibited,

so that he may act accordingly. Vague laws may trap the innocent

by not providing fair warning. Second, if arbitrary and

discriminatory enforcement is to be prevented, laws must provide

explicit standards for those who apply them.

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). However, “the degree of vagueness

that the Constitution tolerates—as well as the relative importance of fair notice and fair

enforcement —depends in part on the nature of the enactment.” Vill. of Hoffman Ests, v. Flipside,

Hoffman Ests., Ine., 455 U.S. 489, 498 (1982). Business regulations, particularly those that

involve only civil penalties (such as those here), are subject to a less strict vagueness test. Jd.; see

Pace 16 -—-OPINION AND ORDER:

_ also OAR 437-001-0135 through OAR 437-001-0203 (rules detailing OR-OSHA’s civil

penalties). This is so in part because a business enterprise has “the ability to clarify the meaning

of the regulation by its own inquiry, or by resort to an administiative process,” Vill. of Hoffman

Estates, 455 U.S. at 498.

To defeat a facial vagueness challenge, the rule at issue is only required to “give the □

person of ordinary intelligence a reasonable opportunity to know what is prohibited. . ..” Jd.

(quoting Grayned, 408 U.S. at 108-09). Moreover, if the rule implicates no constitutionally

protected conduct, a facial vagueness challenge should be upheld “only if the enactment is

impermissibly vague in all of its applications.” Vill. of Hoffman Estates, 455 U.S. at 498

_ Citing Johnson v. United States, Plaintiff urges this Court to find that this standard has □

been overturned by more recent Supreme Court case law. However, while Johnson did indeed

reject the principle that a challenged statute must be vague in all circumstances, that case very

clearly applied to criminal law circumstances, as indicated by the Court’s language in describing

the vagueness standard it was applying:

The Fifth Amendment provides that “[n]o person shall ... be

deprived of life, liberty, or property, without due process of law.”

Our cases establish that the Government violates this guarantee by

taking away someone's life, liberty, or property under a criminal

law so vague that it fails to give ordinary people fair notice of the

conduct it punishes, or so standardless that it invites arbitrary

enforcement. Kolender v. Lawson, 461 U.S. 352, 357-358, 103

S.Ct. 1855, 75 L.Ed.2d 903 (1983). The prohibition of vagueness

in criminal statutes “is a well-recognized requirement, consonant

. alike with ordinary notions of fair play and the settled rules of

law,” and a statute that flouts it “violates the first essential of due

process.” Connally v. General Constr. Co., 269 U.S. 385, 391, 46

S.Ct. 126, 70 L.Ed. 322 (1926). These principles apply not only

to statutes defining elements of crimes, but also to statutes

fixing sentences. United States v. Batchelder, 442 U.S. 114, 123,

99 S.Ct. 2198, 60 L.Ed.2d 755 (1979),

‘Johnson, 576 U.S. 59, 595-95 (emphasis added).

Page 17 -OPINION AND ORDER

Plaintiffs also point to Guerrero v. Whitaker, contending that in that case the Ninth

Circuit recognized Johmson’s reversal of the “vague in all circumstances” standard. But

Guerrero, along with Dimaya, applied Johnson to immigration removal statutes, which are at

least quasi-criminal in nature. See Guerrero v. Whitaker, 908 F.3d 541, 544 (9th Cir. 2018);

Sessions v. Dimaya, 200 L. Ed, 2d 249, 138 S. Ct. 1204, 1209 (2018). The Supreme Court has

held that removal and deportation is “a particularly severe penalty,” potentially “of greater

concern to a convicted alien than any potential jail sentence.” Dimaya, 138 S. Ct. at 1213

(internal quotation marks and citations omitted). Finally, the Ninth Circuit has continued to

apply the “vague in all circumstances standard” post-Johnson. See Monarch Content Memt. LLC

v. Arizona Dep't of Gaming, 971 F.3d 1021, 1030 (9th Cir. 2020) (“If a law ‘implicates no

constitutionally protected conduct,’ a facial vagueness challenge under the Due Process Clause

of the Fourteenth Amendment can succeed only if the law ‘is impermissibly vague in all of its

applications...’”).

Here, the smoke and heat rules do not implicate constitutionally protected conduct. They

create metrics by which a business or employer must evaluate whether the ambient heat or

smoke in the air creates an unsafe working environment for employees — a heat index of 80

degrees Fahrenheit or above, and a high PM2.5, as indicated by an AQI value of 101 or above ~

and then the employer must mitigate the dangers of that working environment by providing

breaks, heat acclimation over time, and other protections. The rules thus implicate economic and

business conduct, which is not constitutionally protected.

Next, the heat and smoke rules contain no penalty provisions; however, criminal penalties

may be available under ORS 654.991(1) in extremely limited circumstances where a willful

violation results in a fatality. ORS 654.991(1) (“any employer who willfully violates [certain

Page 18 -OPINION AND ORDER

OR-OSHA regulations], and that violation is found to have caused or materially contributed to

the death of any employee, shall, upon conviction, be punished by a fine of not more than

$10,000 or by imprisonment for not more than six months, or by both.”). A violation is “willful

if it is committed knowingly by an employer or supervisory employee who, having a free will or

choice, intentionally or knowingly disobeys or recklessly disregards the requirements of a

regulation, rule, standard or order.” ORS 654.991(1). Similarly, OAR 437-001-0165 and OAR

437-001-0175, the only two OR-OSHA regulations that allow for penalties up to $135,653, ,

require violations to be willful or repeated. See OAR 437- 001-0165 (addressing “repeat

violation”); OAR 43 7-001-0175 (addressing “willful or egregious” violation). Therefore, while

the OR-OSHA penalties can include criminal and high monetary penalties, these only apply in

very limited circumstances. The heat and smoke rules regulate economic activity and are not

criminal or quasi-criminal in nature. Therefore, in order to state a facial vagueness challenge,

Plaintiffs must allege that the smoke and heat rules are vague in all circumstances, _

Plaintiffs do not allege that the heat and smoke rules are vague in all circumstances. Nor

could this be feasibly alleged. While there may be days and times when the smoke in the air is

less detectable to the average person’s senses, the smoke rules give a variety of ways in which

the employer may reasonably determine whether the PM2.5 is high enough to enact the

protections. Similarly, while there may be challenges in rolling out the acclimatization protocols

day by day, as temperatures rise and drop, Plaintiffs can clearly determine whether the ambient

heat is over 80 degrees Fahrenheit. Employers are given a specific acclimatization protocol they

can enact which will satisfy the rules, and they are also given the flexibility to enact their own

protocol within certain parameters. The fact that there are alternative methods of measuring and

determining whether the rules’ thresholds for protections have been met do not make the rules

‘Page 19 - OPINION AND ORDER

inconsistent or vague in all circumstances, Because curing the deficiencies of these claims is not

feasible — the Court has already.determined that it cannot be plausibly alleged that the smoke and

heat rules are vague in all circumstances — the two remaining state law claims are dismissed with

prejudice.

ORDER

For all of these reasons, the Defendants’ motion to dismiss (#20) is GRANTED.

Judgment shall be entered on behalf of the Defendants,

It is so ORDERED and DATED this ZO) _ day of December,

ABKD: CLARKE

Uxitéd States Magistrate Judge

Pase 20 — OPINION AND ORDER