Opposition Brief — United States, Petitioner v. Washington, et al.

Supreme Court briefNov 15, 2021

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No. 21-404

In the Supreme Court of the United States

UNITED STATES OF AMERICA,

PETITIONER,

STATE OF WASHINGTON; JAY ROBERT INSLEE, IN HIS

OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

WASHINGTON; JOEL SACKS, IN HIS OFFICIAL CAPACITY AS

DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF

LABOR AND INDUSTRIES; AND THE WASHINGTON STATE

DEPARTMENT OF LABOR AND INDUSTRIES,

RESPONDENTS.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

1125 Washington Street SE

Counsel of Record

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

ANASTASIA R. SANDSTROM

Senior Counsel

QUESTION PRESENTED

40 U.S.C. § 3172(a) allows States to regulate

workers’ compensation on federal land “in the same

way and to the same extent as if the premises were

under the exclusive jurisdiction of the State[.]” For

decades, courts have interpreted this text to mean

that States can regulate workers’ compensation on

federal land as if the land belonged to the State. On

State land, States can apply different laws, rules, and

premiums to different employers based on the dangers

of their work and their history of employee injuries.

Such rules apply to employers on State land even if

they contract with the federal government.

Washington State has long tailored its workers’

compensation laws to the dangers faced by particular

employees, including by adopting statutes specifically

to protect firefighters and others facing special

hazards. In 2018, Washington enacted a similar

statute tailored to the special dangers faced by private

employees at the Hanford nuclear site. Hanford is a

uniquely dangerous workplace, filled with radioactive

and toxic chemicals, and private contractors operating

there have routinely failed to provide employees with

protective equipment and to monitor their exposures

to toxic substances.

The question presented is:

Does 40 U.S.C. § 3172 authorize Washington to

apply a workers’ compensation law tailored to the

unique hazards faced by private employees at the

Hanford nuclear reservation in the same way that

Washington can address hazards of particular jobsites

and employers on State land?

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

The Hanford Nuclear Cleanup Site

Poses Special Dangers to Workers .................. 3

Washington’s Industrial Insurance

System Is Tailored to Address the

Risks of Specific Industries and

Employers, Such as Risks at Hanford ............ 6

Through Statutes and Contracts, the

Federal Government Has Authorized

Washington to Cover Hanford

Workers Under Its Workers’

Compensation System ................................... 12

Workers’ Compensation Claim Numbers

and Costs at Hanford Have Been Modest

Under Washington’s Law .............................. 14

The District Court and Ninth Circuit

Ruled That Congress Waived Immunity ..... 16

REASONS TO DENY REVIEW............................... 18

The Decision Below Creates No

Conflict with Decisions of this Court

or Lower Courts ............................................. 19

The Decision Below Properly

Interprets Federal Law ................................. 24

iii

The Decision Below Will Have No Impact

Beyond this Case and Will Not

Interfere with Federal Prerogatives ............. 32

CONCLUSION ......................................................... 35

TABLE OF AUTHORITIES

Cases

Capetola v. Barclay White Co.

139 F.2d 556 (3d Cir. 1943) ................. 13, 17, 23, 28

City of Frederick v. Shankle

367 Md. 5, 785 A.2d 749 (2001) ...............................9

Cohens v. Virginia

19 U.S. (6 Wheat.) 264 (1821)................................20

Cyr v. Dep’t of Lab. & Indus.

47 Wash. 2d 92, 286 P.2d 1038 (1955) ....................9

Dawson v. Steager

139 S. Ct. 698 (2019) ..............................................21

Dennis v. Dep’t of Lab. & Indus.

109 Wash. 2d 467, 745 P.2d 1295 (1987) ................8

Fares v. Barr

942 F.3d 1172 (9th Cir. 2019) ................................30

Goodyear Atomic Corp. v. Miller

486 U.S. 174 (1988) .......................... 2, 17-21, 24, 33

Harry v. Buse Timber & Sales, Inc.

166 Wash. 2d 1, 201 P.3d 1011 (2009) ....................7

Linnell v. City of St. Louis Park

305 N.W.2d 599 (Minn. 1981)..................................9

McCulloch v. Maryland

17 U.S. (4 Wheat.) 316 (1819)................................22

Mountain Timber Co. v. Washington

243 U.S. 219 (1917) ............................. 6-7, 26-27, 29

Murray v. Joe Gerrick & Co.

291 U.S. 315 (1934) ................................................12

North Dakota v. United States

495 U.S. 423 (1990) .................................... 21-22, 33

Peak v. Small Bus. Admin.

660 F.2d 375 (8th Cir. 1981) ................ 13, 17, 23, 27

Roelofs v. United States

501 F.2d 87 (5th Cir. 1974) ....................................23

Silkwood v. Kerr-McGee Corp.

464 U.S. 238 (1984) ................................................33

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) .......................................... 29-30

South Carolina v. Baker

485 U.S. 505 (1988) ................................................22

Sperbeck v. Dep’t of Indus., Lab. & Human Rels.

46 Wis. 2d 282, 174 N.W.2d 546 (1970) ..................9

Travelers Ins. Co. v. Cardillo

141 F.2d 362 (D.C. Cir. 1944) .............. 13, 17, 23, 28

Travis v. Reno

163 F.3d 1000 (7th Cir. 1998) ................................22

United States v. County of Fresno

429 U.S. 452 (1977) ................................................22

United States v. Lewis County, Wash.

175 F.3d 671 (9th Cir. 1999) ............................ 23-24

United States v. New Mexico

455 U.S. 720 (1982) ................................................22

Washington v. United States

460 U.S. 536 (1983) ................................................22

Rules

Rule 10(c) ...................................................................35

Statutes

16 U.S.C. § 835c-1(b) .................................................31

40 U.S.C. § 3172 ............................... 1, 3, 16-28, 31-33

Former 40 U.S.C. § 290

(recodified as 40 U.S.C. § 3172 ) ..........................12

40 U.S.C. § 3172(a) .............................. 1, 18, 24, 29-31

42 U.S.C. § 6961(a) ....................................................30

42 U.S.C. § 7384 to 7385s-6 ......................................14

Clean Air Act, 42 U.S.C. §§ 7401 to 7515 .................30

§ 7418(a) ...............................................................30

Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA)

42 U.S.C. §§ 9601 to 9675 ....................................31

§ 9620(a)(4) .....................................................17, 31

49 U.S.C. § 5126(a) ....................................................31

1911 Wash. Sess. Laws 345 (ch. 74, § 1).....................6

1937 Wash. Sess. Laws 1031 (ch. 212) .......................8

1937 Wash. Sess. Laws 525 (ch. 147, § 1).................13

1987 Wash. Sess. Laws 2401 (ch. 515, § 2).................9

2018 Wash. Sess. Laws 226 (ch. 9, § 1) ..............11, 14

2018 Wash. Sess. Laws 1573 (ch. 264) .....................10

2021 Wash. Sess. Laws 1944 (ch. 251) .....................10

2021 Wash. Sess. Laws 1955 (ch. 252) .....................10

vii

Wash. Rev. Code § 51.04.010 ....................................10

Wash. Rev. Code § 51.04.130 ....................................13

Wash. Rev. Code § 51.08.140 ................................8, 10

Wash. Rev. Code § 51.12.060 ....................................13

Wash. Rev. Code § 51.16.035(1) .............................. 6-7

Wash. Rev. Code § 51.32.050 ....................................12

Wash. Rev. Code § 51.32.060-.095 ............................12

Wash. Rev. Code § 51.32.185 ......................................9

Wash. Rev. Code § 51.32.185(1)(a)............................10

Wash. Rev. Code § 51.32.187(2)(a)............................11

2018 Wash. Sess. Laws 226 (ch. 9, § 1) .........11, 14

Substitute H.B. 1723, 65th Leg.,

Reg. Sess. (Wash. 2018) ............... 10-11, 15-17, 20,

24-25, 28-29, 32-34

Wash. Rev. Code § 51.36.010 ....................................12

Wash. Rev. Code § 51.52.050(2)(a)..............................9

Ariz. Rev. Stat. § 23-901.01.........................................9

Cal. Lab. Code § 3212 ..................................................9

Colo. Rev. Stat. § 8-41-209 ..........................................9

Fla. Stat. § 112.18 .......................................................9

820 Ill. Comp. Stat. § 305/6 .........................................9

Ohio Rev. Code § 742.38 ..............................................9

Or. Rev. Stat. § 656.802 ..............................................9

53 Pa. Cons. Stat. § 637 ..............................................9

Va. Code § 65.2-402 .....................................................9

viii

Regulations

20 C.F.R. § 30.625-.627 .............................................15

Wash. Admin. Code § 296-17-31011 .......................6, 7

Wash. Admin. Code § 296-17-850 ...............................8

Wash. Admin. Code § 296-17-855 ...............................8

Wash. Admin. Code §§ 296-17A-0101 to -7400 ..........7

§ 296-17A-0101-02 ...................................................7

§ 296-17A-2103 ..................................................7, 26

§ 296-17A-7308-03 ...................................................7

§ 296-17A-7400 ........................................................8

Other Authorities

S. Rep. No. 2294, 74th Cong., 2d Sess. (1936) .... 12-13

4 Arthur Larson et al.,

Larson’s Workers’ Compensation Law (2021) .........9

Merriam-Webster.com, https://www.merriamwebster.com/dictionary/ .......................................28

Associated Press,

Washington state to boost workers’ comp

rates for Amazon (Dec. 2, 2020),

https://apnews.com/article/workerscompensation-washington-017a509e

68d9427839c5e49b0096fb3e ....................................8

Dep’t of Labor, Total Benefits Paid by Facility,

Cumulative EEOICPA Compensation and

Medical Paid—Hanford (June 30, 2020),

https://www.dol.gov/owcp/energy/regs/

compliance/charts/hanford.htm ..........................14

Hanford–Department of Energy (DOE) Data

(Nov. 2021), https://lni.wa.gov/insurance/

_docs/Hanford-DOE%20Data.pdf ....................15, 34

Letter from Doug S. Shoop, Manager, Dep’t

of Energy (Richland WA), to David R. Einan,

Manager, EPA (Richland WA) & Alexandra K.

Smith, Nuclear Waste Program Manager,

Dep’t of Ecology (Richland WA) (Jan. 31, 2019),

https://www.hanford.gov/files.cfm/2019_

Hanford_Lifecycle_Report_w-Transmit

tal_Letter.pdf

(contains attachment: 2019 Hanford

Lifecycle Scope, Schedule and Cost Report .....14, 35

Susannah Frame,

Contamination events force project shut

down at Hanford nuclear site, KING-TV

(May 16, 2019 8:26 PM),

https://www.king5.com/article/news/

investigations/contamination-eventsforce-project-shut-down-at-hanfordnuclear-site/281-31e25448-4b844a42-a068-ad8be72b1b92 ..................................5, 27

U.S. Dep’t of Energy, Savannah River

Nat’l Lab’y, Hanford Tank Vapor Assessment

Report (Oct. 30, 2014), https://srnl.doe.gov/

documents/Hanford_TVAT_Report_201410-30-FINAL.pdf .....................................................5

INTRODUCTION

The petition for certiorari in this case seeks

nothing more than factbound error correction where

there is no error. The decision below creates no

conflict with decisions of this Court or other courts,

correctly interprets federal law, will have no impact

beyond this case, and will impose negligible costs on

the United States. The Court should deny certiorari.

The Hanford nuclear reservation is a uniquely

dangerous workplace, teeming with radioactive and

chemical hazards. Private companies are cleaning up

the site, under contracts with the federal government.

Those companies have routinely failed to protect their

employees from hazards or even track employee

exposures to hazardous substances. For that reason,

their employees often fall ill and are unable to prove

the cause of their illnesses. Washington responded by

amending its workers’ compensation laws to help

workers at Hanford get benefits, just as the State has

done for firefighters, police, and healthcare workers.

The district court and court of appeals upheld

Washington’s law. Under 40 U.S.C. § 3172(a), States

can impose workers’ compensation rules on federal

land “in the same way and to the same extent as if the

premises were under the exclusive jurisdiction of the

State[.]” It is undisputed that for areas “under the

exclusive jurisdiction of the State,” the State can

adopt different rules for different employers and

workplaces based on the dangers of their work or their

safety records, as the State has done here. The court

of appeals therefore concluded, after carefully

reviewing § 3172’s text and this Court’s precedent,

that § 3172 waived immunity as to Washington’s law.

Unhappy with this outcome, the federal

government asks this Court to reverse, but its petition

meets none of this Court’s criteria for granting cert.

The petition asserts no disagreement among

lower courts about how to interpret § 3172, and there

is none. Rather, for decades federal courts of appeals

have uniformly interpreted the waiver broadly.

The petition claims a conflict with Goodyear

Atomic Corp. v. Miller, 486 U.S. 174 (1988), but it

bases that claim entirely on a single, inapposite

sentence ripped out of context. In reality, that decision

emphasized that § 3172 “places no express limitation

on the type of workers’ compensation scheme that is

authorized,” id. at 183, and it did not involve (much

less prohibit) a law like this one, which addresses

unique hazards at a federal worksite.

Unable to show a conflict, the petition focuses

on arguing that the lower court misinterpreted § 3172,

but that is both incorrect and no basis for certiorari.

As the appeals court held, the federal government’s

reading of § 3172 ignores key language: States may

regulate on federal land “as if the premises were

under the exclusive jurisdiction of the State[.]”

(Emphasis added.) Other waivers of federal immunity

use narrower language to specify that States can only

impose rules on federal land that apply elsewhere.

The lower courts gave effect to this language

difference; the petition does not. There is no question

that on non-federal land, Washington can adopt

special rules or laws for employers based on their

unique hazards and safety records, and it can do so

even if those employers contract with the federal

government (as many do, like Boeing or Amazon).

Section 3172 gives the State the same authority to

adopt rules tailored to the special hazards and safety

records of employers on federal land, as the State has

done here.

Finally, the petition urges the Court to grant

review because of the alleged implications of the lower

court’s opinion, but the decision will have no impact

beyond this case. Hanford is a uniquely dangerous

worksite and employers there have particularly bad

safety records; the petition offers no evidence of a

similar location or of any other law like this one. The

petition’s claims of financial harm are also overblown.

Since the law took effect, workers’ compensation

claims at Hanford have actually declined, and there

has been no meaningful increase in costs to the federal

government. Moreover, unlike in most immunity

cases, the federal government has not argued that

Washington’s law interferes with any federal objective

or is otherwise preempted. In short, the only harm

alleged here is financial, and even that is minimal.

Because this case meets none of the Court’s

criteria for certiorari, the Court should deny review.

STATEMENT OF THE CASE

The Hanford Nuclear Cleanup Site Poses

Special Dangers to Workers

The Hanford nuclear production complex was

used for decades to manufacture plutonium.

CA9.SER.454. It has stopped production, but the

federal government continues to dispose of radioactive

waste there, and it contracts with private companies

to clean up the site. CA9.ER.109; CA9.SER.454.

Cleanup of the site, in the words of the Department of

Energy (DOE), is “unprecedented in scale and

complexity,” exposing workers to many hazardous

chemicals and radioactive substances. CA9.ER.106;

CA9.SER.245-47, 253-61, 393-400.

Employees at Hanford work amid a unique mix

of toxic and radioactive substances present nowhere

else in Washington. The scale of the waste and

dangers at Hanford is massive: 18 tank farms that

contain 177 underground tanks storing 53 million

gallons of radioactive and toxic-chemical substances,

with around 67 tanks that have leaked some content

into the ground. CA9.SER.241-42, 396-98. The tank

farm waste contains multiple hazardous substances

that severely damage human health. CA9.SER.241,

244-47, 250-53, 334-35, 448-52. For example, as the

federal government recognizes, even small doses of

ionizing radiation (which permeates Hanford’s mixed

waste) can cause cancer. CA9.SER.281-82, 449-52.

Hanford’s hazards extend beyond workers who

work directly with hazardous materials. Scientists

have found that office workers at Hanford are at

increased risk of exposure to dangerous substances,

with an increased risk of disease. CA9.SER.187-89,

253-54; see CA9.SER.448-52. Releases at Hanford

have caused highly dangerous radioactive materials

to contaminate workers, drifting outside the direct

cleanup areas and polluting clothing and cars. See,

e.g., CA9.SER.187-89.1

DOE admitted in a 2014 report that the work

conditions are hazardous: “The ongoing emission of

tank vapors, which contain a mixture of toxic

chemicals, is inconsistent with the provision of a safe

and healthful workplace free from recognized

hazards.” See U.S. Dep’t of Energy, Savannah River

Nat’l Lab’y, Hanford Tank Vapor Assessment Report

15 (Oct. 30, 2014), https://srnl.doe.gov/documents/

Hanford_TVAT_Report_2014-10-30-FINAL.pdf, at

CA9.SER.298. The problem has continued since the

2014 report, with continued emissions of dangerous

vapors at the tank farms. CA9.SER.243-44, 256-58;

see also CA9.SER.180-81, 183-84, 186-87, 251-55,

398-404; Frame supra note 1.

Despite knowing of these dangers, private

contractors operating at Hanford have not protected

their employees. Contractors have not consistently

supplied their workers with personal protective

equipment to protect against harmful exposures.

CA9.SER.254, 344. And neither the contractors nor

DOE have consistently monitored conditions to allow

medical professionals to know about particular

workers’ exposures to hazards. CA9.SER.183, 300-01,

311, 400-04, 448-49. Because of these failures,

workers often have a difficult time identifying specific

1 See also Susannah Frame, Contamination events force

project shut down at Hanford nuclear site, KING-TV (May 16,

2019 8:26 PM), https://www.king5.com/article/news/investi

gations/contamination-events-force-project-shut-down-at-hanf

ord-nuclear-site/281-31e25448-4b84-4a42-a068-ad8be72b1b92.

incidents at work that caused their diseases or

conditions. CA9.SER.356, 402-03, 448-49. And with no

documentation of exposures, fairly compensating

Hanford workers for injuries and diseases presents

challenges not present at most Washington worksites.

CA9.SER.356, 403, 448-49.

Hanford is thus a uniquely dangerous place to

work. As summarized by the medical director of

Washington’s Department of Labor and Industries

(L&I), the combination of exposure to hazardous

substances and the lack of careful monitoring

“presents a unique set of medical challenges not found

elsewhere in Washington.” CA9.SER.448-49.

Washington’s

Industrial

Insurance

System Is Tailored to Address the Risks of

Specific Industries and Employers, Such

as Risks at Hanford

As one of the first States to enact workers’

compensation laws, Washington adopted its

industrial insurance system in 1911 to provide “sure

and certain relief ” to its workers. 1911 Wash. Sess.

Laws 345 (ch. 74, § 1). From the beginning,

Washington has treated employers differently based

on the specific hazards their workers face. Mountain

Timber Co. v. Washington, 243 U.S. 219, 241-44,

246 (1917); 1911 Wash. Sess. Laws 345-46; see also

Wash. Rev. Code § 51.16.035(1); Wash. Admin. Code

§ 296-17-31011.2 A core policy of Washington’s

2 The last publication of the Revised Code of Washington

was in 2020. The last publication of the Washington

Administrative Code was in 2021.

Industrial Insurance Act “is to allocate the cost of

workplace injuries to the industry that produces

them, thereby motivating employers to make

workplaces safer.” Harry v. Buse Timber & Sales, Inc.,

166 Wash. 2d 1, 19, 201 P.3d 1011 (2009).

In 1917, this Court upheld L&I’s system of

distinguishing employers based on the unique work

conditions and risks they create. See Mountain

Timber Co., 243 U.S. at 243-46.

Under this system, L&I classifies “all

occupations or industries in accordance with their

degree of hazard and fix[es] therefor basic rates of

premium[s.]” Wash. Rev. Code § 51.16.035(1); accord

Wash. Admin. Code § 296-17-31011. L&I regulations

recognize hundreds of categories of occupations and

industries, from “excavation work” to “pet grooming,”

each subject to its own rate. See generally Wash.

Admin. Code §§ 296-17A-0101 to -7400; -0101-02

(excavation work); -7308-03 (pet grooming). Though

the categories are typically phrased in terms of types

of work, rather than by naming specific companies

doing that work, many of the categories apply to only

a single business or a handful of businesses because

there are only a few businesses in Washington

operating in that industry. For example,

Wash. Admin. Code § 296-17A-2103 covers fulfillment

standards for distribution of goods for an on-line

business. This classification currently applies

only to Amazon.3 See also, e.g., Wash. Admin. Code

§ 296-17A-7400 (applying only to state employees at

“[m]ental health or acute care hospitals without a

fully implemented safe patient handling program”).

As in most States, Washington’s system

differentiates not only between industries, but also

within industries. If an employer’s workers suffer

more injuries than most other employers in the same

industry, L&I charges that employer more. Wash.

Admin. Code §§ 296-17-850, -855. Thus, an employer

in the same industry as another but with a worse

safety record may pay a rate several times higher than

its competitors.

Because workers can be harmed through

chronic occupational exposure as well as through

workplace injuries, Washington began covering

occupational diseases in 1937 to ensure that an

employer’s workers’ compensation responsibilities

match the harm its employment causes. 1937 Wash.

Sess. Laws 1031 (ch. 212). An occupational disease is

a disease or condition that arises proximately and

naturally out of the distinctive conditions of

employment. Wash. Rev. Code § 51.08.140; Dennis v.

Dep’t of Lab. & Indus., 109 Wash. 2d 467, 481-82, 745

P.2d 1295 (1987).

While this system has generally achieved the

State’s goals of fairly compensating workers and

allocating the cost of workplace illnesses and injuries

3 Associated Press, Washington state to boost workers’

comp rates for Amazon (Dec. 2, 2020), https://apnews.com/

article/workers-compensation-washington-017a509e68d9427839

c5e49b0096fb3e.

to the employers who cause them, it has proven

inadequate in one key respect. Because Washington’s

workers’ compensation system normally places the

burden of proof on the worker to demonstrate that a

workplace incident caused their illness, the system

does not function properly when workers in a certain

category routinely fall ill but for some reason are

unable to document what exposures or incidents led

to their illness. See Cyr v. Dep’t of Lab. & Indus., 47

Wash. 2d 92, 96, 286 P.2d 1038 (1955) (worker

generally has burden to show entitlement to benefits);

Wash. Rev. Code § 51.52.050(2)(a). Like many other

States, Washington has responded to this problem by

adopting a series of presumptions that switch the

normal burden of proof, so that if workers in certain

categories get sick with certain illnesses tied to their

work, the burden is on their employer to prove that

the illness is not work related.4

In 1987, Washington adopted such a

presumption for firefighters. 1987 Wash. Sess. Laws

2401 (ch. 515, § 2); see also Wash. Rev. Code

§ 51.32.185. Specifically, the legislature recognized

that firefighters are often exposed to a range of toxic

fumes, chemicals, and substances in the course of

4 Presumption laws like this are common nationwide.

See, e.g., City of Frederick v. Shankle, 367 Md. 5, 785 A.2d 749

(2001); Linnell v. City of St. Louis Park, 305 N.W.2d 599 (Minn.

1981); Sperbeck v. Dep’t of Indus., Lab. & Human Rels., 46 Wis.

2d 282, 174 N.W.2d 546 (1970); Ariz. Rev. Stat. § 23-901.01; Cal.

Lab. Code § 3212; Colo. Rev. Stat. § 8-41-209; Fla. Stat. § 112.18;

820 Ill. Comp. Stat. § 305/6; Ohio Rev. Code § 742.38; Or. Rev.

Stat. § 656.802; 53 Pa. Cons. Stat. § 637; Va. Code § 65.2-402;

4 Arthur Larson et al., Larson’s Workers’ Compensation Law

§ 52.07[2] (2021).

their work, but usually cannot document exactly what

they were exposed to or in what quantities.

CA9.SER.348, 361. For that reason, it was often

difficult for firefighters to access workers’

compensation benefits under a system in which they

bore the burden of proving that their illness was

caused by their work. The legislature therefore

adopted

firefighter

occupational

disease

presumption under which certain respiratory

conditions, heart problems, infectious diseases, and

cancers are presumed to arise naturally and

proximately out of employment as a firefighter.

Wash. Rev. Code § 51.08.140; Wash. Rev. Code

§ 51.32.185(1)(a). This shifts the burden to the

employer—virtually always the State or local

governments in the case of firefighters—to show that

a hazardous exposure at work did not cause the

worker’s disease. And it furthers the State’s goal of

ensuring “sure and certain relief ” for workers who

have been harmed through their employment.

Wash. Rev. Code § 51.04.010.

In 2018, Washington added a similar

presumption for police officers and other first

responders suffering from post-traumatic stress

disorder. 2018 Wash. Sess. Laws 1573 (ch. 264). And

in 2021, Washington created presumptions for frontline workers and health care workers related to

COVID-19. 2021 Wash. Sess. Laws 1944 (ch. 251);

2021 Wash. Sess. Laws 1955 (ch. 252).

Most relevant here, in 2018 Washington

enacted House Bill 1723, creating a similar

presumption for “Hanford site workers.” In light of the

many dangers discussed above of working at the

Hanford site, the difficulty workers have had in

proving which exposures to which chemicals made

them sick, and the consistently poor safety record of

employers operating at Hanford, the legislature

responded, just as it has for firefighters, police

officers, and frontline health workers, by creating a

rebuttable presumption that certain diseases and

conditions of Hanford site workers are occupational

diseases. Wash. Rev. Code § 51.32.187(2)(a)

(Substitute H.B. 1723, 65th Leg., Reg. Sess. (Wash.

2018); 2018 Wash. Sess. Laws 226 (ch. 9, § 1)).

The presumption does not apply to all

employers in the greater Hanford reservation, but

rather focuses on the most dangerous areas and the

employers with the worst safety records. For example,

the United States points out that the presumption law

does not apply to parts of the reservation where

certain companies operate, Pet. 4, but it omits that

these facilities (US Ecology and Perma-Fix

Northwest) do not handle the type of high-level

radioactive waste present at the part of Hanford

covered by the law, so they do not expose workers to

the same risks. See CA9.SER.183-84, 187 (“Workers

at the Hanford site thus have much higher potential

for harmful exposures than workers at Perma-Fix

Northwest and US Ecology.”), 225-26, 262, 347-48,

456. Similarly, the United States points out that the

law does not apply to State employees who

occasionally enter the Hanford site to conduct brief

inspections, but there is no evidence that any such

worker has ever been sickened by an exposure at

Hanford or that their employers have failed to provide

them with protective gear or take other safety

measures, as the covered employers have failed to do.

Finally, while the special-hazard presumption

law shifts the burden of proof, it does not provide

greater benefits to Hanford workers than to workers

incurring occupational diseases at other places of

employment. Wash. Rev. Code §§ 51.32.050, .060-.095;

Wash. Rev. Code § 51.36.010.

Through Statutes and Contracts, the

Federal Government Has Authorized

Washington to Cover Hanford Workers

Under Its Workers’ Compensation System

Faced with the unique hazards and issues of

exposure documentation at Hanford, the Washington

Legislature turned to a 1936 federal law to respond.

Following a rash of worker injuries on the

Golden Gate Bridge Project in San Francisco,

Congress authorized States to apply their workers’

compensation laws to contractors working on projects

on federal lands. Former 40 U.S.C. § 2905;

CA9.SER.366. The change came after this Court held

that a State workers’ compensation statute did not

apply to a federal facility. Murray v. Joe Gerrick &

Co., 291 U.S. 315, 318-19 (1934).

Congress enacted the 1936 law to provide “more

adequate protection” to workers on federal projects

and property “wherever situated.” S. Rep. No. 2294, at

1, 74th Cong., 2d Sess. (1936). It “fill[ed] a conspicuous

5 This statute was once codified at 40 U.S.C. § 290. It was

recodified as 40 U.S.C. § 3172 in 2002 with minimal changes. The

last publication of § 3172 and all other federal codes in this brief

was 2018.

gap” by allowing States to adopt workers’

compensation laws applicable to federal property.

S. Rep. No. 2294, at 1. The law freed state workers’

compensation laws “from any restraint by reason of

the exclusive federal jurisdiction.” Peak v. Small Bus.

Admin., 660 F.2d 375, 376 n.1 (8th Cir. 1981); accord

Capetola v. Barclay White Co., 139 F.2d 556, 559 (3d

Cir. 1943); Travelers Ins. Co. v. Cardillo, 141 F.2d 362,

363 (D.C. Cir. 1944).

Washington has long exercised its authority

under this law to protect workers at federal facilities.

In 1937, employees of federal contractors gained

industrial insurance. 1937 Wash. Sess. Laws 525

(ch. 147, § 1) (Wash. Rev. Code § 51.12.060). Ever

since, private employees working on federal projects

in Washington, such as employees of contractors at

Hanford, have received industrial insurance benefits.

Additionally, while many major employers in

Washington, like Boeing, Microsoft, and Amazon,

have contracts with the federal government, their

employees are covered by State workers’

compensation laws regardless of whether they work

on federal contracts.

Although the duty to provide industrial

insurance coverage normally falls on employers,

rather than on an entity that hires those employers to

carry out a contract, for decades DOE has agreed to

pay for some contractors’ obligations at Hanford

under an agreement between L&I and DOE.

CA9.SER.368-69, 373; Wash. Rev. Code § 51.04.130.

L&I and DOE entered into the current memorandum

of understanding (MOU) in June 2018—after the

challenged special-hazard presumption law became

effective. CA9.SER.375; 2018 Wash. Sess. Laws 226

(ch. 9, § 1). In the MOU, DOE agrees to follow

Washington law without reservation. CA9.SER.373.

Workers’ Compensation Claim Numbers

and Costs at Hanford Have Been Modest

Under Washington’s Law

The total cost of cleaning up the Hanford

nuclear site is staggering. The federal government

estimates that the cleanup will cost between $323

billion and $677 billion, with annual costs of between

$3 billion and $15 billion for at least the next half

century.6

Since the early 2000’s, the federal government

has operated a compensation program for federal

employees and some contractors who become ill after

working at certain nuclear sites, including Hanford.

See Energy Employees Occupational Illness

Compensation Program Act (EEOICPA), 42 U.S.C.

§ 7384 to 7385s-6. Under that program, the federal

government “has paid out more than $1.75 billion to

Hanford workers as of June 2020,” roughly $100

million annually. Pet. App. 19a & n.9 (citing United

States Dep’t of Labor, Total Benefits Paid by Facility,

Cumulative EEOICPA Compensation and Medical

6 Letter from Doug S. Shoop, Manager, Dep’t of Energy

(Richland WA), to David R. Einan, Manager, EPA (Richland WA)

& Alexandra K. Smith, Nuclear Waste Program Manager, Dep’t

of Ecology (Richland WA) (Jan. 31, 2019), https://www.han

ford.gov/files.cfm/2019_Hanford_Lifecycle_Report_w-Transmit

tal_Letter.pdf (contains attachment: 2019 Hanford Lifecycle

Scope, Schedule and Cost Report, at pages ES-2 to ES-3).

Paid—Hanford (June 30, 2020), https://www.dol.gov/

owcp/energy/regs/compliance/charts/hanford.htm).

Payments that workers receive under State workers’

compensation laws are deducted from any recovery

under EEOICPA. See 20 C.F.R. § 30.625-.627.

Given the total cleanup cost at Hanford and the

amount the federal government spends on federal

compensation programs, the cost of State workers’

compensation at Hanford has been and remains

modest. In the decade before enactment of H.B. 1723,

private contractor employees at Hanford submitted an

average of 300-350 State workers’ compensation

claims annually. CA9.ER.133. DOE paid roughly $115

million in State workers’ compensation benefits

during that time, averaging roughly $11 million

annually. CA9.ER.133. DOE provided no estimate at

the district court about how H.B. 1723 had affected its

costs. But since H.B. 1723’s enactment, the number of

workers’ compensation claims filed by employees at

Hanford has actually declined, and the total cost of

claims has barely budged. Wash. Dep’t of Lab. &

Indus., Hanford–Department of Energy (DOE) Data

(Nov.

2021),

https://lni.wa.gov/insurance/_docs/

Hanford-DOE%20Data.pdf. The petition expresses

particular concern about a possible flood of retroactive

claims, but the record reflects that in the first year

after the legislature adopted H.B. 1723, DOE received

less than 100 claims invoking the statutory

presumption. CA9.SER.370; CA9.ER.134. The pace of

claims invoking the presumption has only declined

since then, with a total of 259 claims filed in over three

years. Hanford–DOE Data.

The United States says that H.B. 1723’s

legislative history reflects that Washington would

have “no further financial obligation under this

bill.” Pet. 7-8. But this refers to an earlier version of

H.B. 1723. In the final version of the bill, the

Washington legislature changed the bill to give

the State Fund—the central fund applicable to all

employers who are not self-insured—responsibility for

claims that were not covered by the MOU with DOE.

CA9.SER.355-56.

The District Court and Ninth Circuit

Ruled That Congress Waived Immunity

After the United States sued Washington, the

district court ruled for Washington on cross-motions

for summary judgment. CA9.ER.6. It held that “[t]he

plain language” of § 3172 “allow[s] the state to

regulate federal lands within its geographical

boundaries with all the tools that could be brought to

bear on non-federally owned land.” CA9.ER.7. The

federal government had conceded in its briefing that

§ 3172 “authorizes the State to regulate on federal

land as it permissibly may do so under state law[.]”

EWDC.ECF.33, at 3. And at oral argument, the

United States stipulated that if the federal

government was not involved and the Hanford site

was on state land, Washington could adopt and apply

its special-hazard presumption. CA9.ER.22, 32.

The Court of Appeals unanimously affirmed, in

an opinion by Judge Milan Smith. The court began by

examining the statute’s language, Pet. App. 10a,

concluding that “[t]he plain text of § 3172 does not

purport to limit the workers’ compensation laws for

which it waives intergovernmental immunity to only

those that are ‘generally applicable.’ ” Pet. App. 12a.

In interpreting the statutory language, the panel cited

Goodyear Atomic, which addressed the waiver statute

and held that it “place[d] no express limitation” on

permissible workers’ compensation laws. Goodyear

Atomic, 486 U.S. at 183. The Court also cited many

court of appeals opinions reading the same waiver

broadly to mean that “§ 3172 removes federal

jurisdiction as a barrier to a state’s authority over

workers’ compensation laws for all who are located in

the state.” Pet. App. 17a (citing Peak, 660 F.2d at 376

n.1; Capetola, 139 F.2d at 559; Travelers Ins. Co.,

141 F.2d at 363).

The court also compared § 3172’s language to

the language of other waivers of intergovernmental

immunity and found it materially broader. While

other waivers specify that States cannot apply a

more stringent rule on federal land than applies

on State land, § 3172 contains no such limitation.

Pet. App. 15a (contrasting § 3172 with the waiver

in the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42

U.S.C. § 9620(a)(4)).

The court emphasized that the United States

conceded in oral argument and at the district court

that “Washington could enforce a version of H.B. 1723

that did not involve the Federal Government and

where the Hanford site were a state project.” Pet. App.

73a. Because it “could” apply the presumption to a

project under the State’s exclusive jurisdiction, it

could apply this presumption in the same way and to

the same extent on federal land. Pet. App. 73a,

80a-81a.

The court also emphasized that while some of

the federal government’s arguments hinted at

preemption concerns, the government had not

actually made a preemption argument, so “the United

States has waived that argument[.]” Pet. App. 19a.

The United States unsuccessfully moved for

rehearing en banc. Pet. App. 22a-23a. Judge Smith

concurred in the denial of rehearing en banc, noting

that “a state may enact a workers’ compensation

scheme for federally-owned property as long as it

could enact the same scheme ‘in the same way and to

the same extent’ if the property were under the

jurisdiction of the state.” Pet. App. 25a (quoting 40

U.S.C. § 3172(a)). Judge Smith also critiqued the few

judges dissenting from denial of rehearing for their

“extensive use of hyperbole” and for “speak[ing] of this

rather straight-forward statutory construction case in

apocalyptic terms.” Pet. App. 23a.

REASONS TO DENY REVIEW

This case meets none of the Court’s criteria for

granting certiorari. The petition makes no effort to

show a conflict with any lower court decision, and it

misreads this Court’s decision in Goodyear Atomic to

allege a conflict. That case emphasized that § 3172

places “no express limitation” on permissible workers’

compensation laws, 486 U.S. at 183, and it simply did

not address a law like this one, which deals with

unique hazards at a federal worksite. Contrary to the

petition’s argument, Goodyear Atomic does not limit

§ 3172’s waiver of immunity to state laws that treat

all employers alike. In reality, virtually all workers’

compensation laws distinguish between employers in

a variety of ways, and as the Ninth Circuit correctly

held, § 3172 permits a State to adopt and apply a

workers’ compensation rule on federal land if the

State could adopt and apply the law on land within

the State’s jurisdiction.

The petition also shows no important federal

question warranting review. The federal government

has not even alleged that the special-hazard

presumption law has interfered with Hanford cleanup

operations or impaired any federal function. At most,

the United States alleges a modest financial impact

on one unique project. With no proof that there are

far-reaching effects from the lower court’s decision,

this Court should deny review.

The Decision Below Creates No Conflict

with Decisions of this Court or Lower

Courts

The United States alleges no circuit split

warranting review. Instead, it points to this Court’s

decision in Goodyear Atomic, arguing that the lower

court’s decision conflicts with this Court’s “binding

construction of the relevant statutory language” in

that case. Pet. 12. That is incorrect.

Goodyear Atomic involved an Ohio workers’

compensation law under which an injured employee

received an extra award if their employer caused their

injury by violating state safety regulations. Goodyear

Atomic, 486 U.S. at 176-77. The federal government

argued that Ohio’s special award law was not a

“typical [no fault] workers’ compensation act,” and

thus could not apply to federal land under the waiver

statute. Id. at 183. This Court disagreed, holding that

whether Ohio’s law was “typical” made no difference

because § 3172 “place[d] no express limitation on the

type of workers’ compensation scheme that is

authorized.” Goodyear Atomic, 486 U.S. at 176-77. In

the context of Ohio’s law, which applied to all

facilities, the Court noted that the waiver “compels

the same workers’ compensation award for an

employee injured at a federally owned facility as the

employee would receive if working for a wholly private

facility.” Id. at 183-84.

Based entirely and misguidedly on this

sentence, the petition argues that Goodyear Atomic

forbids State laws, like this one, that address hazards

unique to federal facilities. Pet. 19, 24, 26, 28. But the

decision does no such thing, as the lower court here

correctly explained. Pet. App. 10a-13a.

The Goodyear Atomic Court had no reason to

decide whether the waiver statute forbids State

workers’ compensation laws tailored to special

hazards at a federal worksite, because no such law

was before the Court. See, e.g., Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 399-400 (1821) (explaining that

only “[t]he question actually before the Court [was]

investigated with care, and considered in its full

extent”). As the court of appeals explained: “the Court

considered there a state workers’ compensation law

that did not concern a particular employer, or a

particular site located in the state, like H.B. 1723

does[,]” and it “did not purport to impose the

limitation on the statute that the United States seeks

to impose here[.]” Pet. App. 13a. The petition’s

interpretation would mean that no matter how

uniquely dangerous a federal facility might be, a State

could only enforce its workers’ compensation laws that

apply elsewhere. Pet. 18. But Goodyear Atomic has no

such holding. Pet. App. 11a-12a; see also Pet. App. 12a

(“The plain text of § 3172 does not purport to limit the

workers’ compensation laws for which it waives

intergovernmental immunity to only those that are

‘generally applicable.’ ”).

Moreover, the crux of Goodyear Atomic is that

States have expansive authority to apply workers’

compensation laws to federal land under the broad

waiver Congress adopted. The Court emphasized

that “workers’ compensation laws provide[ ] a wide

variety of compensation schemes that do not fit

neatly within appellant’s view of the ‘typical’

scheme.” Goodyear Atomic, 486 U.S. at 184. The

waiver statute “places no express limitation on the

type of workers’ compensation scheme that is

authorized.” Id. at 183. The court of appeals

appropriately applied this holding, saying “[w]e

cannot properly construe § 3172 in a way that would

conflict with that understanding[.]” Pet. App. 13a.

In short, the petition’s alleged conflict relies on

ripping a single sentence out of context as supposedly

controlling on a topic the opinion never addressed.

There is no conflict with Goodyear Atomic.

Nor is there a conflict with any other decision

of the Court. The United States cites several cases

about the nature of intergovernmental immunity.

Pet. 13-15, 18, 29-30 (citing Dawson v. Steager, 139

S. Ct. 698, 702 (2019); North Dakota v. United

States, 495 U.S. 423, 435 (1990) (plurality opinion);

South Carolina v. Baker, 485 U.S. 505, 523 (1988);

Washington v. United States, 460 U.S. 536, 546 (1983);

United States v. County of Fresno, 429 U.S. 452,

458 (1977); McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316 (1819)); Travis v. Reno, 163 F.3d 1000,

1002 (7th Cir. 1998). But these cases recognize

Congressional authority over intergovernmental

immunity, and none of them precludes Congress from

adopting a waiver statute like this one. The nondiscrimination discussion in cases like North Dakota

relates to laws where a waiver was not present. North

Dakota, 495 U.S. at 437-38.

Indeed, this Court’s decisions recognize that

the intergovernmental immunity doctrine is not

absolute. The Court has “more recently adopted a

functional approach to claims of governmental

immunity” to accommodate the “full range of each

sovereign’s legislative authority[.]” North Dakota,

495 U.S. at 435, 436-39. In fact, the “limits on the

immunity doctrine are, for present purposes, as

significant as the rule itself.” United States v. New

Mexico, 455 U.S. 720, 734 (1982).

The lower court’s decision is also consistent

with decisions of other federal appellate courts, which

for decades have interpreted § 3172 more broadly than

the petition does. The petition claims that § 3172 only

allows application of State laws on federal land that

apply identically on State land, but federal courts of

appeals have understood § 3172’s effect very

differently. They have routinely held that § 3172

makes it as though any federal land in the state is not

federal land at all. For example, in 1943, just a few

years after the waiver was enacted, the Third Circuit

held that “[t]he situation created by [§ 3172] was no

different, so far as the operation of Pennsylvania’s

compensation law is concerned, than it would have

been had Pennsylvania never ceded jurisdiction of the

Navy Yard site to the federal government.” Capetola,

139 F.2d at 559. A year later, the D.C. Circuit held

that “[t]he effect of the Act is, therefore, to restore the

status quo ante,” i.e., to “revest State jurisdiction”

over federal land. Travelers Ins. Co., 141 F.2d at 363.

More recently, the Eighth and Fifth Circuits held that

the effect of § 3172 is that “state workmen’s

compensation laws, as applied to private employers

working on federal land, are freed from any restraint

by reason of the exclusive federal jurisdiction.” Peak,

660 F.2d at 376 n.1 (emphasis added) (citing Roelofs

v. United States, 501 F.2d 87, 90-91 (5th Cir. 1974)).

This understanding of § 3172 is entirely consistent

with the lower court’s holding here that “§ 3172

removes federal jurisdiction as a barrier to a state’s

authority over workers’ compensation laws for all who

are located in the state.” Pet. App. 17a.

Other cases confirm that when Congress

broadly waives immunity, States may adopt laws that

treat the federal government differently than other

actors. For example, in United States v. Lewis County,

Wash., 175 F.3d 671 (9th Cir. 1999), the court upheld

a State tax that “undeniably” treated farmland held

by the federal government differently than similar

farmland held by the State, finding this permissible

because intergovernmental immunity had been

waived. Id. at 675-76. The petition seeks to

distinguish Lewis County because in that case the

State law also applied to private parties, which

provided a “political check against excessive

taxation.” Pet. 26 (quoting Lewis County, Wash.,

175 F.3d at 676). But the law here involves similar

political checks because it applies to very large

employers based in Washington, who are fully able to

participate in the political process and did lobby

against the bill. CA9.SER.356. The only reason these

costs are passed on to the federal government is

because of the government’s choices about how to

contract. If the federal government structured its

contracts differently to require private employers to

pay workers’ compensation claims, it could reduce its

costs and encourage contractors to take greater safety

precautions. Poor federal contracting choices do not

make State laws unconstitutional.

In short, the lower court’s opinion is entirely

consistent with Goodyear Atomic and the decisions of

other federal courts. It is the petition that seeks a

change in how courts have interpreted § 3172.

The Decision Below Properly Interprets

Federal Law

The petition’s primary argument for granting

certiorari is that the court of appeals “erred in

construing” § 3172 “to authorize the application of

HB 1723,” Pet. 12; this claim is not only inaccurate,

but also a paradigmatic request for factbound error

correction. Nothing about the lower court’s reading of

the interplay between § 3172 and Washington’s law

warrants this Court’s review.

Under 40 U.S.C. § 3172(a), a State “may apply

the [workers’ compensation] laws to all land and

premises” owned by the Federal Government “in the

same way and to the same extent as if the premises

were under the exclusive jurisdiction of a State[.]” The

court of appeals carefully analyzed the meaning of

this text, Pet. App. 10a-18a, and agreed with other

courts of appeals that this language “removes federal

jurisdiction as a barrier to a state’s authority over

workers’ compensation laws[.]” Pet. App. 17a; supra

at 22-23. In other words, § 3172 “authorizes the States

to apply workers’ compensations laws to federal land

located in the state without limitation” and thus

allows Washington’s application of H.B. 1723 to

address Hanford’s unique dangers. Pet. App. 14a-15a.

To avoid the plain meaning of the language

Congress used in § 3172, the petition offers several

arguments to narrow its scope. But all involve

ignoring language in § 3172, adding language to it, or

otherwise contorting the statute’s text.

First, the petition contends that “[t]he most

natural way” to read § 3172 is that “if a state workers’

compensation law applies equally to all private

employees, that law could be applied to federal

contract workers at the federal facility.” Pet. 18. But

as the court of appeals explained, “[t]he plain text of

§ 3172 does not purport to limit the workers’

compensation

laws

for

which

waives

intergovernmental immunity to only those that are

‘generally applicable.’ ” Pet. App. 12a. On land under

the State’s exclusive jurisdiction, States routinely

apply different rules to different employers and

worksites. See supra at 6-10. And § 3172 gives States

authority to regulate on federal land “in the same way

and to the same extent as if the premises were under

the exclusive jurisdiction of the State.”

In fact, the petition almost immediately refutes

its own argument, conceding that “if a State has a

special workers’ compensation provision for

employees who perform particularly hazardous

duties, that provision could be applied to federal

contract workers who perform those duties at the

federal facility.” Pet. 18 (citation omitted). So, for

example,

Washington

could

adopt

workers’

compensation laws or regulations that applied only to

employers handling high-level radioactive waste.

Cf. Wash. Admin. Code § 296-17A-2103 (risk category

for “fulfillment” center applied only to Amazon). Such

laws or regulations would apply only to federal

contractors at Hanford, yet the United States

concedes they would be allowed under § 3172. Pet. 18.

The petition thus contradicts its own claim that § 3172

forbids laws that apply “uniquely” to federal

contractors. Pet. 19. By the same token, the federal

government cannot possibly dispute that States can

draw distinctions based on employers’ safety records

(as this has long been a pervasive feature of workers’

compensation laws), even if it means that federal

contractors with poor safety records pay a higher rate

than others in their industry. See supra at 8;

Mountain Timber Co., 243 U.S. at 243-46.

Given the petition’s legal concessions, its only

real argument is the factbound quibble that, in

application, H.B. 1723’s provisions don’t track

hazardous duties or employers. That is incorrect. The

petition fixates on the legislature’s decision not to

cover employees at US Ecology and Perma-Fix

Northwest, Pet. 16, but these companies do not handle

the type of high-level radioactive waste present at

Hanford. CA9.SER.183-84, 187 (“Workers at the

Hanford site thus have much higher potential for

harmful exposures than workers at Perma-Fix

Northwest and US Ecology.”), 225-26, 262, 281-82,

347-48, 449-52, 456. The petition questions the

legislature’s decision to cover office workers at the

Hanford site, but there is strong evidence that such

workers are at risk because of their proximity to

radioactive waste. See, e.g., CA9.SER.187-89, 253-54,

448-52; Frame supra note 2. And the petition critiques

H.B. 1723 for not applying to State inspectors who

occasionally visit Hanford, but it offers no evidence

that any such inspector has ever fallen ill or faced

difficulties in accessing protective equipment or

documenting exposures like those faced by private

employees at Hanford. States possess broad authority

on land within their exclusive jurisdiction to make

these types of distinctions, see, e.g., Mountain Timber

Co., 243 U.S. at 243-46 (holding State may address

specific workplace hazards in workers’ compensation

laws), and § 3172 extends that same authority to

federal lands.

Second, the petition argues that the legislative

history of § 3172 suggests that it forbids State

laws that address hazards unique to federal land.

Pet. 20-21. But nothing in the snippets it cites address

that question. In reality, Congress’s manifest purpose

was to free state workers’ compensation laws “from

any restraint by reason of the exclusive federal

jurisdiction.” Peak, 660 F.2d at 376 n.1. Just a few

years after the law was enacted, several federal

appellate courts interpreted its intent as treating

federal land as though it were simply State property.

See Capetola, 139 F.2d at 559; Travelers Ins. Co.,

141 F.2d at 363. Congress has never contradicted that

understanding.

Third, the petition claims that in evaluating a

State’s authority to regulate on land within its

exclusive jurisdiction, § 3172 only allows a comparison

with “laws that the State has actually adopted,” not

laws that it could adopt. Pet. 22-23. Thus, the petition

claims, whether Washington could adopt a specialhazard presumption law on State land is irrelevant;

all that matters is whether the State actually has such

a law. Pet. 11, 15, 23. As the court of appeals pointed

out, this reading ignores the statute’s use of the words

“as if.” Pet. App. 16a. “As if ” means: “as it would be if

// It was as if he had lost his last friend.”

https://www.merriam-webster.com/dictionary/as%

20if. When § 3172(a) says that States can regulate

federal land “in the same way and to the same extent

as if the premises were under the exclusive

jurisdiction of the State,” the proper comparison is the

State’s full authority to regulate premises under its

exclusive jurisdiction, not what laws it had previously

enacted. If “the premises”—here, Hanford—were

under the State’s exclusive jurisdiction, the State

could apply presumptions and distinctions based on

work hazards and employer safety records, just as the

State has done on its own land in other contexts, as

the federal government has repeatedly conceded.

CA9.ER.21-22, 32. That is precisely what § 3172

allows and what H.B. 1723 does.

Finally, the petition incorrectly contends that

even if the appropriate comparison is to laws the State

could enact on its own land, H.B. 1723 is not such a

law. Pet. 24-25. The petition’s argument seems to be

that on State land, the State could not adopt a

different rule for an employer that contracts with the

federal government than it could for other employers.

But that is simply incorrect; a federal contract is not

a magic wand allowing employers to escape workers’

compensation laws. For example, many Washington

employers—from Boeing, to Microsoft, to Amazon—

contract with the federal government. If one of these

companies had a particularly dangerous worksite or

poor safety record on land “under the exclusive

jurisdiction of the State,” 40 U.S.C. § 3172(a), the

State would unquestionably have the power to adopt

a law or regulation specifying that certain injuries or

illnesses at the site were presumptively work-related.

See Mountain Timber Co., 243 U.S. 219. Under § 3172,

if the company then leased space on federal property

and moved the worksite there, the State could still

“apply the law[ ] . . . in the same way and to the same

extent as if the premises were under the exclusive

jurisdiction of the State[.]” Nothing in § 3172 would

require that the law apply to other employers.

The flaws in the petition’s textual argument are

confirmed by comparing § 3172’s language to other

federal waiver statutes. While many waiver statutes

expressly preclude States from applying stricter

rules on federal land than apply elsewhere, Congress

chose not to include such limitations in § 3172.

When Congress uses different language in statutes

addressing related topics, courts presume a difference

in meaning. See, e.g., Sosa v. Alvarez-Machain,

542 U.S. 692, 711 n.9 (2004) (“Congress knew how to

specify ‘act or omission’ when it wanted to”); Fares v.

Barr, 942 F.3d 1172, 1175 (9th Cir. 2019).

Specifically, many federal statutes waiving

intergovernmental immunity give States authority to

regulate federal land “in the same manner and to the

same extent” that they regulate others, but they omit

§ 3172(a)’s language “as if the premises were under

the exclusive jurisdiction of the State[.]” For example,

the Resource Conservation and Recovery Act,

42 U.S.C. §§ 6901 to 6992k, allows States to enforce

their hazardous waste management plans on federal

agencies only if a State regulates the agency “in the

same manner, and to the same extent, as any person

is subject to such requirements[.]” 42 U.S.C. § 6961(a).

Similarly, the Clean Air Act, 42 U.S.C. §§ 7401 to

7515, provides that a federal facility “shall be subject

to, and comply with, all Federal, State, interstate, and

local requirements . . . respecting the control and

abatement of air pollution in the same manner, and to

the same extent as any nongovernmental entity.”

42 U.S.C. § 7418(a). Both statutes require that federal

facilities be treated the same as any other facility. But

§ 3172 is different—it does not require the State to

treat facilities identically, but rather gives the State

regulatory authority “in the same way and to the same

extent as if the premises were under the exclusive

jurisdiction of a State[.]” 40 U.S.C. § 3172(a). The

comparator is thus not how the State regulates other

facilities, but how the State could regulate the federal

facility “if the premises were under the exclusive

jurisdiction of [the] State[.]” 40 U.S.C. § 3172(a).

Ironically, the petition cites two similar

statutes as reasons why it is vital for this Court to

grant review, saying that the court of appeals’

interpretation here could have broad application.

Pet. 31-32. But the statutes the petition cites use

materially narrower language than § 3172, thus

reinforcing the lower court’s rationale and weakening

the petition’s. Specifically, 49 U.S.C. § 5126(a)

provides that “person[s] under contract with” the

federal government to transport hazardous materials

are subject to state regulation “in the same way and

to the same extent that any person” is regulated, and

16 U.S.C. § 835c-1(b) authorizes state taxation of

lands acquired by the United States as part of the

Columbia Basin Project “in the same manner and to

the same extent as privately owned lands of like

character.” Both statutes thus require a comparison of

how others are actually regulated; they do not give

States authority to regulate “as if the premises were

under the exclusive jurisdiction of the State[.]”

40 U.S.C. § 3172(a).

Similarly, the Comprehensive Environmental

Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. §§ 9601 to 9675, provides that

the authority it grants States to pass laws “shall not

apply to the extent a State law would apply any

standard or requirement to [federal] facilities which is

more stringent than the standards and requirements

applicable to facilities which are not” federal.

42 U.S.C. § 9620(a)(4). This forbids States from

imposing more stringent laws on federal land than on

other land for CERCLA clean up. But Congress did

not use such language for workers’ compensation

coverage.

These examples highlight that when Congress

wants to waive intergovernmental immunity but

prohibit more stringent regulation on federal land, it

knows how to do so. Congress chose not to impose such

limitations in § 3172, and the court of appeals

properly gave effect to that legislative decision.

In sum, the court of appeals gave effect to all

the text in § 3172 and correctly held that it allows

application of H.B. 1723 at Hanford. Nothing in that

accurate, case-specific determination warrants this

Court’s review.

The Decision Below Will Have No Impact

Beyond this Case and Will Not Interfere

with Federal Prerogatives

In contending that this case is sufficiently

important to warrant this Court’s time, the petition

offers two deeply flawed arguments. Neither justifies

this Court’s review.

First, the petition claims that the decision

below strikes an “astonishing” and “unprecedented”

blow to intergovernmental immunity, Pet. 29,

characterizing “this rather straight-forward statutory

construction case in apocalyptic terms.” Pet. App. 23a.

But intergovernmental immunity cases are decided on

their own statutes and facts, and the narrow decision

here will have no impact beyond deciding that § 3172

allows application of H.B. 1723 at Hanford.

Section 3172, of course, waives immunity only

as to workers’ compensation laws, and as detailed

above, waivers of intergovernmental immunity on

other topics use more limited language. The decision

below thus will have no impact on intergovernmental

immunity more generally.

Even within the narrow realm of workers’

compensation laws, it is undisputed that Hanford

is a unique project—in DOE’s own words,

“unprecedented,” CA9.ER.106—with unique hazards

to workers. There is no reason to assume that

upholding Washington’s authority to provide specific

rules for a uniquely hazardous worksite will generate

a wave of similar laws. The petition cites no similar

law anywhere. If other States enact similar laws, and

if lower courts reach divergent results about how

§ 3172 applies to those laws, this Court could of course

address this question then.

Moreover, the federal government has made no

argument that Washington’s law frustrates federal

objectives or impairs federal functions. Although the

federal government often argues preemption in

intergovernmental immunity cases, as in Goodyear

Atomic, 486 U.S. at 177-78, and North Dakota,

495 U.S. at 430, it has made no such argument here.

Pet. App. 19a. Presumably, this is because the

government concluded that it could not show that

H.B. 1723 would interfere with federal objectives. On

the contrary, by incentivizing contractors to create a

safer work environment, H.B. 1723 furthers federal

safety objectives. See Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 257 (1984) (holding state law

authorizing punitive damages was not preempted by

the federal remedial scheme for the operation of

nuclear power plants as both sought to ensure the

health and safety of the public); CA9.ER.140

(representing that DOE’s “top priority in conducting

its cleanup operations at Hanford is ensuring the

health and safety of its federal and contractor

workforce”).

The petition’s second argument for review is

the unsupported claim that H.B. 1723 will “drastically

increase[ ]” Hanford’s costs. Pet. 15, 7; see also Pet. 12,

30-31. But even this alleged financial harm is illusory.

There is currently no evidence that H.B. 1723

will measurably impact the federal government’s

workers’ compensation costs. The United States

conceded in the lower courts that the costs were

indeterminate. CA9.ER.134 (admitting that “[c]laim

costs are particularly difficult to calculate”);

CA9.ER.133 (“Estimating costs associated with

HB 1723 claims is extremely difficult . . . .”). And since

adoption of H.B. 1723, the number of workers’

compensation claims filed annually at Hanford has

actually declined, and the federal government’s

payouts in state workers compensation claims have

barely changed. Hanford–DOE Data, figs. 2 & 3.7

While the petition expresses grave concern about

untold thousands of past workers potentially filing

claims, Pet. 30, the State received fewer than 100

claims invoking the presumption in the year after the

legislature adopted H.B. 1723, CA9.SER.370,

CA9.ER.134, and the pace of claims invoking the

presumption has only declined since then, with a total

of 259 claims filed in over three years. Hanford–DOE

Data.

Even if H.B. 1723 marginally increases the

federal government’s workers’ compensation costs,

any increase would be negligible in context. The

federal government will spend between $3 billion and

$15 billion annually for at least the next fifty years

7 See supra page 15.

cleaning up Hanford. Pet. 12; Lifecycle Report at page

P-1 supra note 6. And even before H.B. 1723, the

federal government was spending over $110 million

annually on state and federal workers’ compensation

for Hanford workers. Supra at 14-15. Thus, even

accepting the petition’s unsupported claim that the

decision below “is likely to cost the United States tens

of millions of dollars annually,” Pet. 12, that would be

far less than what the federal government already

spends on workers’ compensation at Hanford, and less

than one percent of annual Hanford cleanup costs.

A possible one percent increase in the cost of a single

project does not create an “important federal

question.” Rule 10(c).

CONCLUSION

The petition for a writ of certiorari should be

denied.

RESPECTFULLY SUBMITTED.