Amicus Curiae Brief — Alaska, Petitioner v. Deb Haaland, Secretary of the Interior, et al.
Supreme Court briefNov 30, 2022
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No. 22-401
In the Supreme Court of the United States
STATE OF ALASKA,
Petitioner,
V.
DEB HAALAND, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE INTERIOR, ET AL.,
Respondents.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF AMICI CURIAE STATE OF
WEST VIRGINIA AND 13 OTHER STATES
IN SUPPORT OF PETITIONER
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Senior Deputy Solicitor
General
SPENCER J. DAVENPORT*
Special Assistant
MAX A. SCHREIBER**
Fellow
Counsel for Amicus Curiae State of West Virginia
[additional counsel listed after signature page]
QUESTION PRESENTED
Does the Department of the Interior have “plenary”
authority to preempt a State’s law and regulate hunting
practices as it sees fit, where Congress passed laws that
expressly sought to preserve the State’s traditional
powers over wildlife and even passed a joint resolution of
disapproval in response to a similar agency effort to
preempt the State’s hunting regulations?
II
TABLE OF CONTENTS
Question Presented .............................................................. I
Introduction And Interests of Amici Curiae .................... 1
Summary of Argument ........................................................ 3
Reasons for Granting the Petition...................................... 4
I.
The Court should grant the Petition to restore
the Congressional Review Act ..................................... 4
II. The Court should grant the Petition to end the
undue deference given to agency preemption
decisions ....................................................................... 12
Conclusion ........................................................................... 22
III
TABLE OF AUTHORITIES
Page(s)
Cases
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) ..................................................... 6
Bell v. Blue Cross & Blue Shield of Okla.,
823 F.3d 1198 (8th Cir. 2016) ....................................... 14
Bond v. United States,
572 U.S. 844 (2014) ....................................................... 15
Cal. Coastal Comm’n v. Granite Rock Co.,
480 U.S. 572 (1987) ....................................................... 21
California v. ARC Am. Corp.,
490 U.S. 93 (1989) ................................................... 14, 20
City of Arlington v. FCC,
569 U.S. 290 (2013) ....................................................... 13
Comm’ns Imp. Exp. S.A. v. Republic of the
Congo,
757 F.3d 321 (D.C. Cir. 2014) ...................................... 14
Defs. of Wildlife v. Andrus,
627 F.2d 1238 (D.C. Cir. 1980) .................................... 19
FEC v. Cruz,
142 S. Ct. 1638 (2022) ................................................... 15
Geier v. Am. Honda Motor Co.,
529 U.S. 861 (2000) ....................................................... 21
IV
TABLE OF AUTHORITIES
(continued)
Page(s)
Gregory v. Ashcroft,
501 U.S. 452 (1991) ................................................. 15, 20
Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564 (1982) ......................................................... 9
Grosso v. Surface Transp. Bd.,
804 F.3d 110 (1st Cir. 2015) ......................................... 14
Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020) ................................................... 11
Helfrich v. Blue Cross & Blue Shield
Ass’n,
804 F.3d 1090 (10th Cir. 2015) ..................................... 14
Hughes v. Oklahoma,
441 U.S. 322 (1979) ....................................................... 16
INS v. Chadha,
462 U.S. 919 (1983) ................................................... 5, 22
Kan. Nat. Res. Coal. v. U.S. Dep’t of
Interior,
971 F.3d 1222 (10th Cir. 2020) ....................................... 9
Kelley v. EPA,
25 F.3d 1088 (D.C. Cir. 1994) ........................................ 6
Kleppe v. New Mexico,
426 U.S. 529 (1976) ....................................................... 16
V
TABLE OF AUTHORITIES
(continued)
Page(s)
Merck Sharp & Dohme Corp. v. Albrecht,
139 S. Ct. 1668 (2019) ..................................................... 1
Montanans for Multiple Use v.
Barbouletos,
568 F.3d 225 (D.C. Cir. 2009) ........................................ 9
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ....................................................... 20
New York v. FERC,
535 U.S. 1 (2002) ........................................................... 13
Pub. Emps. for Env’t Resp. v. Nat’l Park
Serv.,
No. CV 19-3629 (RC), 2022 WL 1657013
(D.D.C. May 24, 2022) .................................................... 7
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) ................................................. 14, 15
Solid Waste Agency of N. Cook Cnty. v.
U.S. Army Corps of Eng’rs,
531 U.S. 159 (2001) ....................................................... 15
State v. Arnariak,
941 P.2d 154 (Alaska 1997) .......................................... 15
Sturgeon v. Frost,
577 U.S. 424 (2016) ....................................................... 22
VI
TABLE OF AUTHORITIES
(continued)
Page(s)
Tennessee v. FCC,
832 F.3d 597 (6th Cir. 2016) ......................................... 14
Tugaw Ranches, LLC v. U.S. Dep’t of the
Interior,
362 F. Supp. 3d 879 (D. Idaho 2019) ....................... 5, 10
United States v. Carlson,
No. 12-305, 2013 WL 5125434
(D. Minn. Sept. 12, 2013) .............................................. 10
United States v. S. Ind. Gas & Electric Co.,
No. IP99–1692, 2002 WL 31427523
(S.D. Ind. Oct. 24, 2002) ......................................... 10, 11
Va. Uranium, Inc. v. Warren,
139 S. Ct. 1894 (2019) ............................................... 3, 13
In re Vehicle Carrier Servs.
Antitrust Litig.,
846 F.3d 71 (3d Cir. 2017) ............................................ 14
Wachovia Bank, N.A. v. Burke,
414 F.3d 305 (2d Cir. 2005) .......................................... 14
Watters v. Wachovia Bank, N.A.,
550 U.S. 1 (2007) ........................................................... 20
Wisconsin v. EPA,
266 F.3d 741 (7th Cir. 2001) ......................................... 16
VII
TABLE OF AUTHORITIES
(continued)
Page(s)
Wyeth v. Levine,
555 U.S. 555 (2009) ..................................... 13, 14, 20, 21
Ysleta Del Sur Pueblo v. Texas,
142 S. Ct. 1929 (2022) ..................................................... 8
Constitutional Provisions
U.S. CONST. art. IV, § 3, cl. 2 ............................................. 21
U.S. CONST. art. VI, cl. 2 .................................................... 13
Statutes
5 U.S.C. § 801 ................................................................ 4, 5, 8
5 U.S.C. § 805 .................................................................. 9, 10
5 U.S.C. § 806 ...................................................................... 11
16 U.S.C. § 668dd................................................................ 19
16 U.S.C. § 3202 ...................................................... 18, 19, 21
16 U.S.C. § 7901 .................................................................. 19
43 U.S.C. § 1732 .................................................................. 19
Regulations
43 C.F.R. § 24.3 ................................................................... 16
50 C.F.R. § 36.39 ................................................................... 9
VIII
TABLE OF AUTHORITIES
(continued)
Page(s)
Effectuating Congressional Nullification
of the Non-Subsistence Take of
Wildlife, and Public Participation and
Closure Procedures, on National
Wildlife Refuges in Alaska Under the
Congressional Review Act,
82 Fed. Reg. 52,009 (Nov. 9, 2017) ................................ 9
Other Authorities
142 CONG. REC. E577
(daily ed. April 19, 1996) ................................................ 6
142 CONG. REC. S3,683 (1996) ............................................. 4
Adam M. Finkel & Jason W. Sullivan,
A Cost-Benefit Interpretation of the
“Substantially Similar” Hurdle in the
Congressional Review Act: Can OSHA
Ever Utter the E-Word (Ergonomics)
Again?, 63 ADMIN. L. REV. 707 (2011) ......................... 5
Alex Reed, Conciliation Obfuscation,
24 N.Y.U. J. LEGIS. & PUB. POL’Y
417 (2022) ......................................................................... 7
Ann M. Lousin, Justice Brennan’s Call to
Arms—What Has Happened Since
1977?, 77 OHIO ST. L.J. 387 (2016) .............................. 17
IX
TABLE OF AUTHORITIES
(continued)
Page(s)
Arthur D. Middleton, et al., The Role of
Private Lands in Conserving
Yellowstone’s Wildlife in the TwentyFirst Century,
22 WYO. L. REV. 237 (2022).......................................... 17
Bethany A. Davis Noll & Richard L.
Revesz, Regulation in Transition,
104 MINN. L. REV. 1 (2019) ........................................ 7, 8
Bridget C.E. Dooling, Into the Void: The
GAO’s Role in the Regulatory State,
70 AM. U. L. REV. 387 (2020) ......................................... 8
CURTIS COPELAND, CONG. RSCH. SERV.,
CONGRESSIONAL REVIEW ACT:
MANY RECENT FINAL RULES WERE
NOT SUBMITTED TO GAO AND
CONGRESS (2014) .......................................................... 12
David S. Rubenstein, Delegating
Supremacy?,
65 VAND. L. REV. 1125 (2012) ...................................... 20
David Zaring, The Federal Deregulation of
Insurance, 97 TEX. L. REV. 125 (2018) ........................ 7
Doug Vincent-Lang, Alaska Must Reject
Feds’ Claim to Control Hunting in
Preserves and Refuges, ALASKA
DISPATCH NEWS (June 26, 2016) ................................ 17
X
TABLE OF AUTHORITIES
(continued)
Page(s)
Eric Dude, The Conflicting Mandate:
Agency Paralysis Through the
Congressional Review Act’s Resubmit
Provision, 30 COLO. NAT. RES.,
ENERGY & ENV’T L. REV. 115 (2019) ............................ 7
Ernest A. Young, Executive Preemption,
102 NW. U. L. REV. 869 (2008) ..................................... 20
Jody Freeman & Matthew C. Stephenson,
The Untapped Potential of the
Congressional Review Act,
59 HARV. J. ON LEGIS. 279 (2022) .................................. 8
Karrigan Börk, Guest Species: Rethinking
Our Approach to Biodiversity in the
Anthropocene,
2018 UTAH L. REV. 169 (2018) ..................................... 16
Lane Kisonak, Fish and Wildlife
Management on Federal Lands: The
Authorities and Responsibilities of
State Fish and Wildlife Agencies,
50 ENV’T L. 935 (2020) .................................................. 18
MAEVE P. CAREY & CHRISTOPHER M.
DAVIS, CONG. RSCH. SERV., R43992,
THE CONGRESSIONAL REVIEW ACT
(CRA): FREQUENTLY ASKED
QUESTIONS (2021) ....................................................... 4, 6
XI
TABLE OF AUTHORITIES
(continued)
Page(s)
Mary Christian Wood, The Tribal Property
Right to Wildlife Capital (Part i):
Applying Principles of Sovereignty to
Protect Imperiled Wildlife
Populations, 37 IDAHO L. REV. 1 (2000) .................... 16
Michael J. Cole, Interpreting the
Congressional Review Act: Why the
Courts Should Assert Judicial Review,
Narrowly Construe “Substantially the
Same,” and Decline to Defer to
Agencies Under Chevron,
70 ADMIN. L. REV. 53 (2018) .......................................... 4
Note, The Mysteries of the Congressional
Review Act,
122 HARV. L. REV. 2162 (2009) ...................................... 5
Paul J. Larkin, Jr., Reawakening the
Congressional Review Act,
41 HARV. J.L. & PUB. POL’Y 187 (2018) ................ 11, 12
Phillip A. Wallach & Nicholas W. Zeppos,
How Powerful is the Congressional
Review Act?,
BROOKINGS INST. (Apr. 4, 2017).................................. 12
XII
TABLE OF AUTHORITIES
(continued)
Page(s)
Robert B. Keiter, Grizzlies, Wolves, and
Law in the Greater Yellowstone
Ecosystem: Wildlife Management
Amidst Jurisdictional Complexity and
Tension, 22 WYO. L. REV. 303 (2022) ......................... 16
Samantha Murray, Transition Critical:
What Can and Should Be Done with
the Congressional Review Act in the
Post-Trump Era?,
48 ECOLOGY L.Q. 513 (2021) .......................................... 6
Stanley Fields, Leaving Wildlife Out of
National Wildlife Refuges: The Irony
of Wyoming v. United States,
34 N.M. L. REV. 2017 (2004) ........................................ 18
Stephen Santulli, Use of the Congressional
Review Act at the Start of the Trump
Administration: A Study of Two
Vetoes,
86 GEO. WASH. L. REV. 1373 (2018) .............................. 6
INTRODUCTION AND INTERESTS
OF AMICI CURIAE*
As creatures of statutes, agencies hold only the powers
that Congress gives. So when Congress speaks, agencies
must listen. And when an agency tries to override a
State’s laws—particularly in an area that the States
traditionally control—the agency needs to act with even
more care. It “literally has no power to act, let alone preempt the validly enacted legislation of a sovereign State,
unless and until Congress confers power upon it.” Merck
Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1679
(2019) (cleaned up).
This case shows what goes wrong when an agency
forgets.
The problems stem from the Alaska National Interest
Lands Conservation Act. Congress passed ANILCA to
protect national interests in wildlife on federal lands in
Alaska while preserving Alaska’s own time-honored
authority over wildlife management throughout its
borders. Pet.9. Combined with other, earlier laws,
ANILCA delegates limited power to manage animals on
federal lands to the Department of the Interior. Pet.6-9.
Interior administers that authority through both the Fish
and Wildlife Service and the National Park Service.
But Interior has read its ANILCA authority too
broadly. As Alaska’s Petition explains, five years ago
Congress was forced to step in through the Congressional
Review Act: It disapproved a Fish and Wildlife regulation
that banned bear-baiting in Alaskan federal wildlife
refuges. Pet.14. The National Park Service got the
Under Supreme Court Rule 37.2(a), amici timely notified counsel
of record of their intent to file this brief.
*
2
message, pulling back on a bear-baiting regulation
covering National Park Preserves. Fish and Wildlife, on
the other hand, has continued to cling to a separate
regulation governing bear-baiting in the Kenai National
Wildlife Refuge. Although Alaska state laws allow that
kind of hunting, Fish and Wildlife won’t give. So in the
nearly two million acres of Alaskan land comprising the
refuge, Interior is enforcing a bear-baiting ban that both
Congress and Alaska have expressly rejected—and the
Ninth Circuit said that was fine.
The Court should grant certiorari to reinvigorate two
important constraints on agency power. First, the
Congressional Review Act and the resolutions that flow
from it have teeth. Yet as the decision below shows, courts
have often found creative ways to avoid giving CRA
resolutions any real effect. And second, a federal agency
deserves little-to-no deference when it purports to
preempt state law, particularly when its regulation
intrudes into a traditional place of state power.
Bureaucratic preferences should not count for much when
co-sovereign interests are at stake.
The Amici States—the States of West Virginia,
Alabama, Arkansas, Indiana, Kentucky, Louisiana,
Montana, New Hampshire, Ohio, Oklahoma, South
Carolina, Texas, Utah, and Wyoming—recognize that
federal regulations sometimes prevail over contrary state
law. But that result should only follow when Congress
clearly intends it, and the circumstances here show
nothing of the sort. The Court should therefore grant the
Petition and reverse. It should remind Interior—all
federal agencies, really—that preemption requires
Congress’s clear will.
3
SUMMARY OF ARGUMENT
I. Too often, courts undercut the Congressional
Review Act. Many have signed off on questionable agency
workarounds despite Congress’s plainly expressed intent
that the agency should not move forward. Here, the Ninth
Circuit indulged Interior by amending the CRA’s text on
the fly. Some courts have gone as far as refusing the
power to review agency actions for consistency with CRA
joint resolutions at all. Either tactic turns the CRA into a
right without a remedy. The Court should grant the
Petition to restore the CRA to its intended purpose:
ensuring all federal agencies remain accountable to the
legislators who enabled them.
II. Likewise, the decision below furthers a concerning
trend of rubber-stamping agencies’ attempts to preempt
state laws. Especially where, as here, a federal agency
purports to preempt a law that falls in an area that States
traditionally control, courts should uncompromisingly
probe that effort. Many times, they don’t. Instead, courts
have applied agency-deference concepts to the exclusion
of other central constitutional ideas, including the
presumption against preemption and the need for a clear
statement when upending the usual federalism balance.
The Ninth Circuit here applied a form of silent deference
that licenses Interior to impose its edict on millions of
acres of Alaskan land with only the lightest respect for
Alaska’s own policies. Because preemption constitutes “a
serious intrusion into state sovereignty,” Va. Uranium,
Inc. v. Warren, 139 S. Ct. 1894, 1904 (2019) (Gorsuch, J.,
concurring), Alaska deserves better. For that matter, all
States do.
Agencies do not have power to trump Congress. Nor
do they have unilateral power to trump States. Interior
thinks it can do both, and the Ninth Circuit was content to
4
agree. The Court should grant the Petition and hold
otherwise.
REASONS FOR GRANTING THE PETITION
I.
The Court should grant the Petition to restore
the Congressional Review Act.
The court below thought that the CRA presents no
obstacle to agency regulation unless the agency issues a
rule “substantively identical” to the one that Congress
disapproved. Pet.App.20. That test rewrites the statute’s
language and produces absurd results. Other courts go a
step further in refusing to hold agencies accountable to the
CRA, concluding that the statute does not allow judicial
review at all. But no matter how courts slice it, the
outcome is wrong: By abdicating their role in enforcing
the CRA, courts encourage agencies to ignore the law.
This Court should intervene.
A. The CRA helps Congress oversee administrative
agencies by allowing it to quickly review agency rules
before they go into effect. See MAEVE P. CAREY &
CHRISTOPHER M. DAVIS, CONG. RSCH. SERV., R43992,
THE CONGRESSIONAL REVIEW ACT (CRA): FREQUENTLY
ASKED QUESTIONS 1 (2021). Under the CRA, agencies
must submit a new rule to Congress for review. 5 U.S.C.
§ 801(a)(1)(A). Congress then generally has 60 days to
decide whether to nullify it through a joint resolution. Id.
§ 801(d). If it does, and the President signs the resolution,
then the rule is invalidated. See id. § 801(a)(3)(B); see also
142 CONG. REC. S3,683 (1996); Michael J. Cole,
Interpreting the Congressional Review Act: Why the
Courts Should Assert Judicial Review, Narrowly
Construe “Substantially the Same,” and Decline to Defer
5
to Agencies Under Chevron, 70 ADMIN. L. REV. 53, 56
(2018).
Without this process, Congress might otherwise face a
“Hobson’s choice.” INS v. Chadha, 462 U.S. 919, 968
(1983) (White, J., dissenting). On the one hand, the
legislature could “refrain from delegating the necessary
authority” that makes the administrative state turn,
“leaving itself with a hopeless task of writing laws with the
requisite specificity to cover endless special circumstances
across the entire policy landscape.” Id. On the other
hand, it could “abdicate its law-making function to the
executive branch and independent agencies.” Id. Neither
option is acceptable. So putting the CRA in place provided
an important “check on administrative agencies’ power to
set policies and essentially legislate without Congressional oversight.” Tugaw Ranches, LLC v. U.S. Dep’t of the
Interior, 362 F. Supp. 3d 879, 886 (D. Idaho 2019). The
CRA even “short circuit[s]” some ordinary congressional
norms—such as the committee process—to smooth
speedy and effective review. Note, The Mysteries of the
Congressional Review Act, 122 HARV. L. REV. 2162, 216768 (2009).
And when Congress disapproves a rule through the
CRA, that action reaches beyond the rule in front of it. An
agency may not issue a new rule that is “substantially the
same” as the one Congress annulled. 5 U.S.C. § 801(b)(2).
This added reach is one of the CRA’s most important
aspects. Without it, the Act would become “merely a
reassertion of authority Congress always had, albeit with
a streamlined process.” Adam M. Finkel & Jason W.
Sullivan, A Cost-Benefit Interpretation of the
“Substantially Similar” Hurdle in the Congressional
Review Act: Can OSHA Ever Utter the E-Word
(Ergonomics) Again?, 63 ADMIN. L. REV. 707, 709 (2011).
6
Trouble is, defining “substantially the same” in the
CRA is difficult. The Act does not define it, and ordinary
meaning provides little guidance, either. See Carey &
Davis, supra, at 19. Agencies can’t tell us what it means
because defining “substantially the same” does not
implicate any agency’s expertise, and leaning on
particular agencies’ judgments could produce “different
meanings depending on the agency involved.” Cole,
supra, at 96-97; see also Kelley v. EPA, 25 F.3d 1088, 1091
(D.C. Cir. 1994) (explaining that one of the benefits of
agency deference is “a greater degree of national
uniformity” in interpreting statutes). Legislative history
is also no help. Such history is a dangerous place to look
for answers under the best of circumstances. Azar v.
Allina Health Servs., 139 S. Ct. 1804, 1814 (2019). And
here that history suggests only that courts should look to
vague factors like the degree of discretion an agency
enjoys in a particular case. See Carey & Davis, supra, at
20; see also, e.g., 142 CONG. REC. E577 (daily ed. Apr. 19,
1996) (statement of Rep. Henry Hyde). But see also, e.g.,
Samantha Murray, Transition Critical: What Can and
Should Be Done with the Congressional Review Act in the
Post-Trump Era?, 48 ECOLOGY L.Q. 513, 535 (2021)
(describing how Senator John McCain declined to vote for
a CRA resolution disapproving of a methane rule because
“he was concerned … the CRA would block the DOI from
issuing any type of methane regulation in the future).
So left with vague-ish statutory language and few tools
to construe it, neither courts nor commentators have been
consistent.
See Stephen Santulli, Use of the
Congressional Review Act at the Start of the Trump
Administration: A Study of Two Vetoes, 86 GEO. WASH.
L. REV. 1373, 1378 (2018).
7
Some think the language is “broader,” encompassing
“a similar result on the same issue of substantive policy.”
Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. CV
19-3629 (RC), 2022 WL 1657013, at *13 (D.D.C. May 24,
2022). Viewed this way, a CRA resolution “salts the earth”
on an issue. David Zaring, The Federal Deregulation of
Insurance, 97 TEX. L. REV. 125, 134 (2018); accord Alex
Reed, Conciliation Obfuscation, 24 N.Y.U. J. LEGIS. &
PUB. POL’Y 417, 452 (2022) (examining a particular CRA
disapproval resolution and concluding that, “while the
[agency] retains the discretion to issue a new rule, it is
effectively precluded from doing so given the expansive
effect of the CRA’s ‘substantially similar’ provision”).
The Ninth Circuit’s decision is an example of the
narrower view. Under that understanding, a disapproved
rule must be “identical” to a non-disapproved rule for the
CRA’s bar to apply. Pet.App.20; see also Finkel &
Sullivan, supra, at 734-37 (describing potential narrower
constructions of “substantially similar”).
No consensus view has emerged. And this definitional
variety does not just hamper courts, it also flummoxes
agencies. They “have no way of knowing where the line
between ‘different, but not substantially different’ and
‘permissibly different’ might lie.” Eric Dude, The
Conflicting Mandate: Agency Paralysis Through the
Congressional Review Act’s Resubmit Provision, 30
COLO. NAT. RES., ENERGY & ENV’T L. REV. 115, 121-22
(2019) (emphasis in original).
B. This is the right time to solve the puzzle. The
decision below deepened the confusion at a time when
congressional disapprovals have become increasingly
more common—the issue will keep rearing up. Before
President Trump took office, Congress had disapproved
only one regulation. See Bethany A. Davis Noll & Richard
8
L. Revesz, Regulation in Transition, 104 MINN. L. REV.
1, 7 (2019).
“In contrast, early in the Trump
administration, fourteen regulations suffered this fate.”
Id. at 8; see also Bridget C.E. Dooling, Into the Void: The
GAO’s Role in the Regulatory State, 70 AM. U. L. REV.
387, 399 (2020) (“CRA disapprovals have sharply
increased.”). And some are pressing for Congress to use
the Act even more. See, e.g., Jody Freeman & Matthew
C. Stephenson, The Untapped Potential of the
Congressional Review Act, 59 HARV. J. ON LEGIS. 279,
326-27 (2022). So the issue is not going away for the lower
courts in future agency cases.
The Court should also take up the Petition because the
Ninth Circuit’s cramped understanding of “substantially
the same,” Pet.App.20, does not work.
Just look at the text. The statute lists two distinct
things that the agency may not do after a joint resolution
of disapproval: “reissue[] [a rule] in substantially the same
form” or issue “a new rule that is substantially the same.”
5 U.S.C. § 801(b)(2). The Ninth Circuit’s approach blends
these two provisions into one; an “identical” rule is a
“reissued” rule in the “same form.” Yet that approach
“defies [the Court’]s usual presumption that differences in
language like this convey differences in meaning.” Ysleta
Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1939 (2022)
(cleaned up).
The Ninth Circuit’s revision flips Congress’s intent in
other ways, too. Finding a lack of “sameness” whenever a
new rule has a more limited geographic reach than the
disapproved action means that agencies can still eat the
elephant through a series of smaller actions that add up to
a substantively equivalent state of affairs. The Ninth
Circuit’s reasoning, for instance, would let Fish and
Wildlife reconstruct the voided Refuges Rule by
9
promulgating separate Kenai-style rules for each of
Alaska’s refuges. The Court tries to avoid “absurd
results” like these. Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564, 575 (1982).
A too-narrow spin on “substantially the same” can also
produce internally inconsistent results.
Here, for
example, the CRA resolution forced Interior to “rever[t]
to the text of the regulations in effect immediately prior to
the effective date of the [invalidated] rule.” Effectuating
Congressional Nullification of the Non-Subsistence Take
of Wildlife, and Public Participation and Closure
Procedures, on National Wildlife Refuges in Alaska
Under the Congressional Review Act, 82 Fed. Reg. 52,009,
52,009 (Nov. 9, 2017). But those prior regulations said that
bear “baiting is authorized in accordance with State
regulations on national wildlife refuges in Alaska.” 85
Fed. Reg. at 52,010. That language conflicts with the same
agency’s Kenai Rule that the Ninth Circuit upheld. See 50
C.F.R. § 36.39(i)(5)(ii).
C. This case is an excellent vehicle to resolve a related
question, too: Even as CRA-related challenges have
become more common, some courts have allowed agencies
to run amuck by concluding that the CRA does not permit
judicial review under any standard. This mistaken view is
at odds with our system of checks and balances. The
Court should take up the Petition to dispel it.
The confusion traces to a snip of CRA text providing
that “[n]o determination, finding, action, or omission
under this chapter shall be subject to judicial review.” 5
U.S.C. § 805. Some courts have read this language to
preclude them from deciding any issue arising under the
CRA.
See, e.g., Montanans for Multiple Use v.
Barbouletos, 568 F.3d 225, 229 (D.C. Cir. 2009); Kan. Nat.
Res. Coal. v. U.S. Dep’t of Interior, 971 F.3d 1222, 1230
10
(10th Cir. 2020); United States v. Carlson, No. 12-305,
2013 WL 5125434 (D. Minn. Sept. 12, 2013). Not all courts
adopt this view—the Ninth Circuit at least assumed that
it could review the CRA question, Pet.App.19-21—but the
division is pronounced. See also Tugaw Ranches, 362 F.
Supp. 3d at 884-85 (surveying cases on either side of the
split).
Like the Ninth Circuit’s “substantially the same”
error, an aggressive reading of the CRA’s limit on judicial
review ignores the Act’s text. United States v. S. Ind. Gas
& Electric Co., No. IP99–1692, 2002 WL 31427523, at *5
(S.D. Ind. Oct. 24, 2002). Section 805 precludes judicial
review of a “determination, finding, action, or omission
under this chapter.” 5 U.S.C. § 805 (emphasis added).
And “[a]gencies do not make findings and determinations
under this chapter”; Congress does. S. Ind. Gas, 2002 WL
31427523, at *5. Reading this provision broadly also
frustrates the CRA’s goal of preventing agencies from
“essentially
legislat[ing]
without
Congressional
oversight.” Id. The better reading, then, is that Section
805 bars “judicial review only of congressional
‘determinations, findings, actions, or omissions’—as
opposed to findings or determinations made by an agency
that a reissued rule is not substantially the same.” Cole,
supra, at 67 (emphasis in original).
Two other sections in the CRA back up the notion that
Congress expected courts to review agencies’ efforts.
Consider again first Section 801(b)(2)’s “substantially the
same” language. Because Congress did not define that
phrase, someone else must. Unless agencies have entirely
free rein, courts are the only ones that make sense: After
all, Congress can strike down new rules for whatever
reason—“substantially the same” or not. Cole, supra, at
68. Second, Section 806(b) says that “[i]f any provision of
11
this chapter or the application of any provision of this
chapter to any person or circumstance, is held invalid, the
application of such provision to other persons or
circumstances, and the remainder of this chapter, shall not
be affected thereby.” 5 U.S.C. § 806(b). This section
shows that Congress expected at least some judicial
review. Otherwise, “it would make little sense to include
a provision addressing the situation in which a court
decided that the text or application of the Act is ‘invalid.’”
Paul J. Larkin, Jr., Reawakening the Congressional
Review Act, 41 HARV. J.L. & PUB. POL’Y 187, 229 (2018).
Finally, common sense confirms that courts can review
agency actions for consistency with the CRA. It would be
illogical for Congress to pass the CRA to curb agency
missteps, but then effectively immunize from judicial
review agencies that might try to sidestep Congress’s
rebuke. That understanding would not just render the
CRA toothless, but would also conflict with the “wellsettled and strong presumption” of “judicial review” over
“executive determinations.” Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1069 (2020) (cleaned up). Keeping judicial
review available is a “necessary condition … of a system of
administrative power which purports to be legitimate, or
legally valid.” LOUIS L. JAFFE, JUDICIAL CONTROL OF
ADMINISTRATIVE ACTION 320 (1965). So under the best
reading of Section 805, Congress precluded judicial review
of its own actions under the statute, not agencies’
compliance (or not) with the consequences of a CRA
resolution. Larkin, supra, at 222.
* * * *
The decision below is part of a troubling push to erase
the CRA. In each of these two ways, courts have allowed
agencies to “evade the [statute’s] strictures.” S. Ind. Gas,
2002 WL 31427523, at *5. And the lower courts’ confusion
12
and failures are particularly troubling because the CRA is
not self-enforcing. Although the CRA requires agencies
to submit a rule to Congress, Congress has no way to
make them do so. Larkin, supra, at 230. The data bears
this out: Between 1999 and 2009, agencies failed to take
even the basic ministerial step of submitting their rules to
Congress in more than 1,000 cases.
See CURTIS
COPELAND, CONG. RSCH. SERV., CONGRESSIONAL
REVIEW ACT: MANY RECENT FINAL RULES WERE NOT
SUBMITTED TO GAO AND CONGRESS 15 (2014). More
recent estimates are worse. See MAJORITY STAFF OF H.R.
COMM. ON OVERSIGHT & GOV’T REFORM, 115TH CONG.,
SHINING LIGHT ON REGULATORY DARK MATTER 10 (2018)
(“[O]f the more than 13,000 guidance documents
identified, agencies sent only 189 to Congress and GAO in
accordance with the CRA.”); Phillip A. Wallach &
Nicholas W. Zeppos, How Powerful is the Congressional
Review Act?, BROOKINGS INST. (Apr. 4, 2017),
http://bit.ly/3u3Bt1D (finding that, as of 2017, agencies
had failed to submit 348 significant rules).
Whatever the exact numbers, agencies seem to have
little concern for the CRA. So courts’ willingness to hold
the line matters. And without guidance from this Court,
things will only get worse. The Court should grant the
Petition, re-affirm that courts can and must review agency
actions for consistency with the CRA, and clarify that
“substantially the same” is a real limit on agency power.
II.
The Court should grant the Petition to end
undue deference to agency preemption efforts.
The decision below also runs into the lower courts’
confusion over the circumstances in which agency
regulations can preempt state laws. Like several other
courts, the Ninth Circuit failed to scrutinize the agency’s
13
purported preemption power. Deference in cases like this
robs the States of their voice and subjects them to an
unaccountable and unconstrained regulatory regime.
This Court should grant review to resolve this important
question, too.
A. Starting on common ground: The Ninth Circuit got
it right when it said that, under “standard principles of
conflict preemption,” “federal hunting regulations” will
“control” over conflicting “Alaska state law.” Pet.App.17.
That “rule of priority” flows right from the Constitution’s
Supremacy Clause. Va. Uranium, 139 S. Ct. at 1901; see
also U.S. CONST. art. VI, cl. 2. Under it, “an agency
regulation with the force of law can pre-empt conflicting
state requirements.” Wyeth v. Levine, 555 U.S. 555, 576
(2009) (emphasis added).
But the Ninth Circuit assumed an important premise—
that Congress gave Interior power to issue preemptive
regulations and thus imbued those regulations with the
“force of law.” Agencies can preempt state law “only when
and if” they act “within the scope of [their] congressionally
delegated authority.” New York v. FERC, 535 U.S. 1, 18
(2002). And this statute-to-regulation matchup is no small
matter, as an agency’s actions are “ultra vires” if
Congress’s approval doesn’t back them. City of Arlington
v. FCC, 569 U.S. 290, 297 (2013).
Here, the Ninth Circuit scarcely even bothered with
that question. Its preemption analysis was so thin that it
evidently rested on unstated deference. But if that’s the
case, the Ninth Circuit cast itself into the briar patch of
agency deference principles: When an agency makes a
preemption call, courts seem lost how to handle it.
The lower courts are at least “unanimous” that
Chevron deference should not apply to an agency’s implied
14
preemption construction. Grosso v. Surface Transp. Bd.,
804 F.3d 110, 116 (1st Cir. 2015); see also Pet.App.10. But
there’s not much certainty beyond that. One circuit
merely requires a “reasonable” preemption explanation
for the regulation to pass muster. See Wachovia Bank,
N.A. v. Burke, 414 F.3d 305, 319 (2d Cir. 2005). Other
circuits weigh “federal interests”—separate from the
relevant statute’s text—before deferring to an agency’s
choice to preempt traditional state fields. See Bell v. Blue
Cross & Blue Shield of Okla., 823 F.3d 1198, 1202-04 (8th
Cir. 2016); Helfrich v. Blue Cross & Blue Shield Ass’n, 804
F.3d 1090, 1105-06. (10th Cir. 2015); In re Vehicle Carrier
Servs. Antitrust Litig., 846 F.3d 71, 84 (3d Cir. 2017). The
Ninth Circuit adds to the mess with its passing-shot,
deference-heavy review that lets the agency’s preemptive
result stand so long as the court finds some plausible
textual hook.
The circuits on the other side of the line get it right,
recognizing a presumption against agency preemption in
areas of traditional state authority. Those courts insist
that only a “clear statement” in the text can overcome that
presumption, no matter what the agency might have to
say. Tennessee v. FCC, 832 F.3d 597, 610-12 (6th Cir.
2016); Comm’ns Imp. Exp. S.A. v. Republic of the Congo,
757 F.3d 321, 326-28, 333 (D.C. Cir. 2014); see also
California v. ARC Am. Corp., 490 U.S. 93, 101 (1989). For
these circuits, when “field[s] which the States have
traditionally occupied” are at risk from agency
rulemaking, Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230 (1947), the statutory text—not the agency’s
argument—is dispositive, Wyeth, 555 U.S. at 583
(Thomas, J., concurring). At most, they apply relatively
weak Skidmore-style deference.
15
This second approach makes sense. When Congress
acts directly, the Court expects a “clear statement” before
construing a statute to shake up the “usual constitutional
balance of federal and state powers.” Bond v. United
States, 572 U.S. 844, 858 (2014) (citations omitted); accord
Rice, 331 U.S. at 230 (explaining that Congress must
express its “clear and manifest purpose” to “supersede[]”
the “historic police powers of the States”). Looking for
that kind of language lets courts be “certain of Congress’
intent” before upsetting the constitutional apple cart.
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (cleaned up);
accord State v. Arnariak, 941 P.2d 154, 158 (Alaska 1997)
(finding that Alaskan law was not preempted where
“Congress ha[d] not manifested in the [federal law] in
clear and definite language a desire to displace the State’s
ability to [regulate] certain activities in state wildlife
sanctuaries”). That rule should apply with double force
when agencies claim delegated power on Congress’s
behalf. What is true for the greater is true for the lesser,
and an “agency’s regulation cannot operate independently
of the statute that authorized it.” FEC v. Cruz, 142 S. Ct.
1638, 1649 (2022) (cleaned up). And if anything, it should
apply triply in circumstances like these, where the agency
purports to preempt state law after Congress said that a
substantially similar regulation went too far.
So where statutes—and the “administrative
interpretation[s]” that spring from them—“alter[] the
federal-state framework by permitting federal
encroachment upon a traditional state power,” Congress
must announce that alteration clearly. Solid Waste
Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 173 (2001). The Court should grant the
Petition to clear the lower courts’ deference-preemption
confusion and say as much.
16
B. Applying similar rules to regulatory and statutory
preemption shows where the lower court went wrong—
and why it matters to set this case right and provide
guidance for those to come.
1. To begin, there should be little question that the
clear-statement rule applies because the Fish and Wildlife
regulations here seized control over a type of hunting, an
area that the States traditionally regulate. States
“[u]nquestionably” have “broad trustee and police powers
over wild animals within their jurisdictions.” Kleppe v.
New Mexico, 426 U.S. 529, 545 (1976). These broad
powers reflect “the legitimate state concerns for
conservation and protection of wild animals.” Hughes v.
Oklahoma, 441 U.S. 322, 336 (1979). The “tradition of
state level management of wildlife was in place by the late
1800s,” and “federal law” has “generally respect[ed]” it
since then. Karrigan Börk, Guest Species: Rethinking
Our Approach to Biodiversity in the Anthropocene, 2018
UTAH L. REV. 169, 195-96 (2018).
The traditional state-federal balance carries over to
most federal lands, too. Even there, Congress has long
“deferred to state oversight on hunting and trapping.”
Robert B. Keiter, Grizzlies, Wolves, and Law in the
Greater Yellowstone Ecosystem: Wildlife Management
Amidst Jurisdictional Complexity and Tension, 22 WYO.
L. REV. 303, 313-14 (2022). As Interior itself explained,
Congress has “reaffirmed the basic responsibility and
authority of the States to manage fish and resident wildlife
on Federal lands.” 43 C.F.R. § 24.3(b). So “hunting” has
“traditionally been the subject of state regulation,” not
pervasive federal action. Wisconsin v. EPA, 266 F.3d 741,
747 (7th Cir. 2001); see also Mary Christina Wood, The
Tribal Property Right to Wildlife Capital (Part i):
Applying Principles of Sovereignty to Protect Imperiled
17
Wildlife Populations, 37 IDAHO L. REV. 1, 76 (2000)
(“[T]he states assume a traditionally prominent role in
regulating wildlife as a result of their reserved police
power under the Tenth Amendment of the Constitution.”).
That’s especially so in Alaska. See, e.g., Doug VincentLang, Alaska Must Reject Feds’ Claim to Control
Hunting in Preserves and Refuges, ALASKA DISPATCH
NEWS (June 26, 2016), https://perma.cc/2F3L-VGYN. But
not just there. While some of the regulations and statutes
in play here are Alaska-specific, the concepts they
implicate are not. Hunting is so important to the States
that at least nineteen of them enshrined a right to hunt in
their constitutions.
See Ann M. Lousin, Justice
Brennan’s Call to Arms—What Has Happened Since
1977?, 77 OHIO ST. L.J. 387, 395 (2016). And the “extensive
power” that States hold “over wild animals” affords them
the right to “establish a variety of wildlife laws and
regulations, such as hunting season timing, bag limits, and
license requirements.” Arthur D. Middleton, et al., The
Role of Private Lands in Conserving Yellowstone’s
Wildlife in the Twenty-First Century, 22 WYO. L. REV.
237, 262 (2022). It even gives them the “latitude” to
endorse “non-traditional hunting practices” like the ones
here. Id. at 265.
States guard their traditional right to manage their
own wildlife because they understand that local
management better accounts for the unique needs of their
ecosystems and communities. Millions of Americans hunt.
They hunt different species, in different places, with
different tools and techniques, and for different reasons.
Because a one-size-fits-all approach does not work, state
control over hunting is important in the wilds of Alaska,
West Virginia, and everywhere in between.
18
Actions like Fish and Wildlife’s, however, push all that
aside. “If the agency’s interpretation … is truly the
situation intended by Congress, then ‘dual sovereignty’ in
the context of wildlife management” is gone. Stanley
Fields, Leaving Wildlife Out of National Wildlife
Refuges: The Irony of Wyoming v. United States, 34 N.M.
L. REV. 217, 237 (2004). Left standing, the decision below
will cast States in the Ninth Circuit—and others that
adopt similar approaches—in a supporting role in what
should be an area of robust state control.
2. This toppling of the traditional balance provides
another reason that the questions presented are
important enough to warrant review. It also confirms that
the Ninth Circuit should have looked for a clear statement
from Congress that it wanted ANILCA to preempt
Alaska’s hunting laws. See Lane Kisonak, Fish and
Wildlife Management on Federal Lands: The Authorities
and Responsibilities of State Fish and Wildlife Agencies,
50 ENV’T L. 935, 948 (2020) (“The tension between the
Supremacy and Property Clauses on one hand, and the
Tenth Amendment on the other, often resolves in favor of
federal law—but only where Congress expresses its clear
and manifest intent for this to occur.”). The Ninth Circuit
never did that work. If it had, it would not have found one.
The best candidate for a clear statement is a provision
of ANILCA that empowers Interior to manage public
lands in Alaska “in accordance with the provisions of this
Act and other applicable State and Federal law.” 16
U.S.C. § 3202(c). Nothing in that vague statement clearly
upends the federal-state dichotomy governing hunting
and wildlife regulation. At best, the text is indefinite. At
worse (for the Ninth Circuit’s approach, anyway), its
reference to state law shows that Congress wanted state
regulation to continue on Alaskan federal lands. As
19
Alaska explains in greater detail, the language
“preserved—rather than displaced—local control over
how hunting will occur in Alaska, while providing [Fish
and Wildlife] with the ability to protect the broad national
interest in wildlife populations.” Pet.27. No clear
statement exists that Congress wanted Fish and Wildlife
to wield “plenary power,” as the Ninth Circuit found.
Pet.App.10.
Other parts of ANILCA and related laws drive the nail
in deeper. See, for example, the provision stressing that
“[n]othing” in the Act was “intended to … diminish the
responsibility and authority of Alaska for management of
fish and wildlife on the public lands.” 16 U.S.C. § 3202(a).
See too the Act’s language stressing that Interior must
manage game species “in a manner that respects States’
management authority over wildlife resources.” Id.
§ 7901(a)(2)(A). Or consider the other federal statutes
that say federal land management should not “diminish[]
the responsibility and authority of the States for
management of fish and resident wildlife.” 43 U.S.C.
§ 1732(b); see also, e.g., 16 U.S.C. § 668dd(m) (providing
that the National Wildlife Refuge System Administration
Act should not “affect[] the authority, jurisdiction, or
responsibility of the several States to manage, control, or
regulate” wildlife within the System, and directing federal
regulations to be “consistent” with state laws). Each of
these provisions undercuts the idea of a pro-preemption
clear statement. Rather, they “self-evidently place[] the
responsibility and authority for state wildlife management
precisely where Congress has traditionally placed it, in
the hands of the states.” Defs. of Wildlife v. Andrus, 627
F.2d 1238, 1249-50 (D.C. Cir. 1980) (cleaned up).
3. Holding that cases like this require clear textual
support will not only bring clarity to an important area of
20
state-federal relations, but will also resolve critical
problems from the Ninth Circuit’s pseudo-Chevron
approach.
First, holding the line against improper preemption
matters is especially important in the regulatory context.
The traditional justifications for deferring to agency
determinations do not apply to preemption questions—
although agencies are thought to have expertise in the
areas they regulate, they have no special knowledge on
federalism concerns. The costs, by contrast, are high.
Federal agency action is “considerably more threatening
to state autonomy than [congressional] legislation.”
Ernest A. Young, Executive Preemption, 102 NW. U. L.
REV. 869, 869 (2008). Agency preemption cuts off States’
ability to govern, strips regulated parties of state
remedies, and destroys the “laboratory” of democracy.
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting); see also David S. Rubenstein,
Delegating Supremacy?, 65 VAND. L. REV. 1125, 1152-55
(2012). Here, for instance, Alaska’s government is closest
to “citizen involvement in democratic processes,” Gregory,
501 U.S. at 458, and the citizens of Alaska decided the
bear-baiting question by plebiscite, Pet.22. Yet though
“administrative agencies are clearly not designed to
represent the interests of States,” Watters v. Wachovia
Bank, N.A., 550 U.S. 1, 41 (2007) (Stevens, J., dissenting),
the Ninth Circuit asked for little proof of delegated power
before letting Fish and Wildlife overturn Alaska’s
decision.
Second, the Ninth Circuit’s rationale turns all the
ordinary understandings of preemption upside down. The
Court has long recognized a “presumption against finding
pre-emption of state law in areas traditionally regulated
by the States.” ARC Am. Corp., 490 U.S. at 101 (emphasis
21
added); see also Wyeth, 555 U.S. at 574-75. That
presumption is “crucial when the pre-emptive effect of an
administrative regulation is at issue,” as it operates as a
“bridge” across the “political accountability gap between
States and administrative agencies.” Geier v. Am. Honda
Motor Co., 529 U.S. 861, 908 (2000) (Stevens, J.,
dissenting). By ignoring that context, the Ninth Circuit’s
approach treats the agency’s preemption finding as
assumedly correct.
The lower court’s fixation on the Property Clause—
using it to give the agency a near-automatic win—does not
justify flipping the presumption.
Pet.App.16-17
(discussing U.S. CONST. art. IV, § 3, cl. 2). The “Clause
itself does not automatically conflict with all state
regulation of federal land.” Cal. Coastal Comm’n v.
Granite Rock Co., 480 U.S. 572, 580 (1987). Instead, even
when the Property Clause is involved preemption requires
specific legislation. Id. And worse still for the lower court,
the case for preemption is “particularly weak” because
Congress “indicated its awareness of the operation of
state law in a field of federal interest, and … nonetheless
[stood] by both concepts.” Wyeth, 555 U.S. at 575.
ANICLA called out Congress’s awareness of state and
local law. See 16 U.S.C. § 3202(b) (management of
Alaskan refuges should be carried out “in accordance
with” “other applicable State … law”). Yet the Ninth
Circuit cited that provision as a reason to think that
Congress intended preemption. See Pet.App.17 (citing 16
U.S.C. § 3202(b)). That result does not follow, and the
Court should say so.
* * * *
The decision below—which does not offer a
“thorough[]” or “persuasive[]” case for preemption,
Wyeth, 555 U.S. at 576-78—threatens more “vital issues of
22
state sovereignty,” Sturgeon v. Frost, 577 U.S. 424, 441
(2016), than brown-bear baiting in Alaska. Yet Congress
cannot step in and save States’ rights routinely, as “the
sheer amount of law … made by agencies” has become
overwhelming. Chadha, 462 U.S. at 985-86 (White, J.,
dissenting). And in a case like this, where Alaska is “the
exception, not the rule,” Sturgeon, 577 U.S. at 440, it
seems more unlikely still that out-of-state legislators will
race to correct the agency’s overreach. Pet.App.10. So
the Court should grant review to place regulatory
preemption back within its appropriate limits.
CONCLUSION
The Court should grant the State of Alaska’s Petition.
23
Respectfully submitted.
PATRICK MORRISEY
Attorney General
OFFICE OF THE
WEST VIRGINIA
ATTORNEY GENERAL
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305
lindsay.s.see@wvago.gov
(304) 558-2021
LINDSAY S. SEE
Solicitor General
Counsel of Record
MICHAEL R. WILLIAMS
Senior Deputy Solicitor
General
SPENCER J. DAVENPORT*
Special Assistant
MAX A. SCHREIBER**
Fellow
*admitted in the District of
Columbia; practicing
under supervision of West
Virginia attorneys
**admitted in Indiana;
practicing under supervision of
West Virginia attorneys
Counsel for Amicus Curiae State of West Virginia
24
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
State of Alabama
JOHN M. O’CONNOR
Attorney General
State of Oklahoma
LESLIE RUTLEDGE
Attorney General
State of Arkansas
ALAN WILSON
Attorney General
State of South Carolina
TODD ROKITA
Attorney General
State of Indiana
KEN PAXTON
Attorney General
State of Texas
DANIEL CAMERON
Attorney General
State of Kentucky
SEAN D. REYES
Attorney General
State of Utah
JEFF LANDRY
Attorney General
State of Louisiana
BRIDGET HILL
Attorney General
State of Wyoming
AUSTIN KNUDSEN
Attorney General
State of Montana
JOHN FORMELLA
Attorney General
State of New Hampshire
DAVE YOST
Attorney General
State of Ohio
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.