Petition for Writ of Certiorari — Kelsey Cascadia Rose Juliana, et al., Petitioners v. United States, et al.

Supreme Court briefDec 9, 2024

Ask Donna

What actually matters in this document.

Text

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — Order of the United States

Court of Appeals for the Ninth Circuit,

May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — Judgment of the United States

District Court for the District of Oregon, Eugene

Division, May 1, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

APPENDIX C — Supplemental Order of the

United States District Court for the District of

Oregon, Eugene Division, April 19, 2024 . . . . . . . . . 7a

APPENDIX D — Opinion and Order of the

United States District Court for the District of

Oregon, Eugene Division, December 29, 2023 . . . . 25a

APPENDIX E — Opinion and Order of the

United States District Court for the District of

Oregon, Eugene Division, June 1, 2023 . . . . . . . . . . 79a

APPENDIX F — Opinion of the United States

Cour t of Appeals for the Ninth Circuit,

January 17, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101a

APPENDIX G — Order of the United States

Cour t of Appeals for the Ninth Circuit,

December 26, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . 165a

APPENDIX H — Order of the United States

District Court for the District of Oregon,

Eugene Division, November 21, 2018 . . . . . . . . . . 174a

ii

Table of Appendices

Page

APPENDIX I — Opinion of the Supreme Court of

the United States, November 2, 2018 . . . . . . . . . . 181a

APPENDIX J — Opinion and Order of the

United States District Court for the District of

Oregon, Eugene Division, October 15, 2018 . . . . . . . 185a

APPENDIX K — Opinion of the Supreme Court

of the United States, July 30, 2018 . . . . . . . . . . . . . 269a

APPENDIX L — Order of the United States

Court of Appeals for the Ninth Circuit,

July 12, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270a

1a

Appendix AA

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

------------------No. 24-684

D.C. No. 6:15-cv-1517

District of Oregon, Portland

In re: UNITED STATES OF AMERICA.

UNITED STATES OF AMERICA, et al.,

Petitioners,

v.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON, EUGENE,

Respondent,

STATE OF ALABAMA,

Defendant,

XIUHTEZCATL TONATIUH M., through his

Guardian Tamara Roske-Martinez, et al.,

Real Parties in Interest,

THE NATIONAL ASSOCIATION OF

MANUFACTURERS, et al.,

Intervenors,

ENVIRONMENTAL JUSTICE CLINIC –

UNIVERSITY OF MIAMI SCHOOL OF LAW, et al.,

Amici Curiae.

-------------------

2a

Appendix A

Filed:

May 1, 2024

------------------ORDER

------------------Before: BENNETT, R. NELSON, and MILLER, Circuit

Judges.

In the underlying case, twenty-one plaintiffs (the

Juliana plaintiffs) claim that—by failing to adequately

respond to the threat of climate change—the government

has violated a putative “right to a stable climate system

that can sustain human life.” Juliana v. United States,

No. 6:15-CV-01517-AA, 2023 WL 9023339, at *1 (D. Or.

Dec. 29, 2023). In a prior appeal, we held that the Juliana

plaintiffs lack Article III standing to bring such a claim.

Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir.

2020). We remanded with instructions to dismiss on

that basis. Id. The district court nevertheless allowed

amendment, and the government again moved to dismiss.

The district court denied that motion, and the government

petitioned for mandamus seeking to enforce our earlier

mandate. We have jurisdiction to consider the petition.

See 28 U.S.C. § 1651. We grant it.

1. “[M]andamus is an extraordinary remedy . . .

reserved for extraordinary situations.” Gulfstream

Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289

(1988). “[M]andamus is the appropriate remedy” when

3a

Appendix A

“sought on the ground that the district court failed to

follow the appellate court’s mandate.” Vizcaino v. U.S.

Dist. Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir.

1999); see also United States v. U.S. Dist. Ct. for S. Dist. of

N.Y., 334 U.S. 258, 263 (1948). We review a district court’s

compliance with the mandate de novo. Pit River Tribe v.

U.S. Forest Serv., 615 F.3d 1069, 1080 (9th Cir. 2010).

2. The petition accuses the district court of failing

to execute our mandate on remand. District courts

must “act on the mandate of an appellate court, without

variance or examination, only execution.” United States

v. Garcia-Beltran, 443 F.3d 1126, 1130 (9th Cir. 2006).

“[T]he only step” that a district court can take is “to obey

the mandate.” Rogers v. Consol. Rock Prods. Co., 114 F.2d

108, 111 (9th Cir. 1940). A district court must “implement

both the letter and the spirit of the mandate, taking

into account the [prior] opinion and the circumstances it

embraces.” Pit River Tribe, 615 F.3d at 1079 (emphasis

added) (cleaned up).

3. In the prior appeal, we held that declaratory relief

was “not substantially likely to mitigate the plaintiffs’

asserted concrete injuries.” Juliana, 947 F.3d at 1170. To

the contrary, it would do nothing “absent further court

action,” which we held was unavailable. Id. We then clearly

explained that Article III courts could not “step into the[]

shoes” of the political branches to provide the relief the

Juliana plaintiffs sought. Id. at 1175. Because neither

the request for declaratory relief nor the request for

injunctive relief was justiciable, we “remand[ed] th[e] case

4a

Appendix A

to the district court with instructions to dismiss for lack

of Article III standing.” Id. Our mandate was to dismiss.

4. The district court gave two reasons for allowing

amendment. First, it concluded that amendment was not

expressly precluded. Second, it held that intervening

authority compelled a different result. We reject each.

The first reason fails because we “remand[ed] . . . with

instructions to dismiss for lack of Article III standing.”

Id. Neither the mandate’s letter nor its spirit left room

for amendment. See Pit River Tribe, 615 F.3d at 1079.

The second reason the district court identified was

that, in its view, there was an intervening change in the

law. District courts are not bound by a mandate when

a subsequently decided case changes the law. In re

Molasky, 843 F.3d 1179, 1184 n.5 (9th Cir. 2016). The

case the court identified was Uzuegbunam v. Preczewski,

which “ask[ed] whether an award of nominal damages

by itself can redress a past injury.” 141 S. Ct. 792, 796

(2021). Thus, Uzuegbunam was a damages case which says

nothing about the redressability of declaratory judgments.

Damages are a form of retrospective relief. Buckhannon

Bd. & Care Home v. W. Va. Dep’t of Health & Human

Res., 532 U.S. 598, 608–09 (2001). Declaratory relief is

prospective. The Juliana plaintiffs do not seek damages

but seek only prospective relief. Nothing in Uzuegbunam

changed the law with respect to prospective relief.

5a

Appendix A

We held that the Juliana plaintiffs lack standing to

bring their claims and told the district court to dismiss.

Uzuegbunam did not change that. The district court is

instructed to dismiss the case forthwith for lack of Article

III standing, without leave to amend.

PETITION GRANTED.

6a

Appendix BB

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

------------------Civ. No. 6:15-cv-01517-AA

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

------------------Filed:

May 1, 2024

------------------JUDGMENT

------------------AIKEN, District Judge:

For the reasons set forth in the Court’s accompanying

Order, this case is DISMISSED.

It is so ORDERED and DATED this 1st day of May

2024.

/s/ Ann Aiken

Ann Aiken

United States District Judge

7a

Appendix CC

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

------------------Civ. No. 6:15-cv-01517-AA

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

------------------Filed:

April 19, 2024

------------------SUPPLEMENTAL ORDER

ADDRESSING PETITION FOR WRIT

OF MANDAMUS

------------------AIKEN, District Judge:

This supplemental order is issued in response to the

invitation of the United States Court of Appeals for the

Ninth Circuit to address defendants’ Petition for Writ

of Mandamus (“Pet.”), ECF No. 581-1, which is pending

before the appellate court, Case No. 24-684.

8a

Appendix C

INTRODUCTION

The young plaintiffs here have compiled an abundance

of factual evidence to support their claim that the

government has known about the dangers posed by

fossil fuel production, and, despite that knowledge, chose

to promote production and consumption of coal, oil, and

gas at increasing levels over decades. The evidence, as

the Ninth Circuit stated, “leaves little basis for denying

that climate change is occurring at an increasingly rapid

pace . . . and stems from fossil fuel combustion.” Juliana

v. United States, 947 F.3d 1159, 1166 (9th Cir. 2020).

A case about climate change, to be sure, raises legal

issues of first impression, but the matters the district court

has addressed time and again throughout the pendency

of this case are the bread-and-butter of daily trial court

work: injury, causation, and redressability under Article

III; justiciability; viability of claims under Federal Rules of

Procedure 12(b); standards for injunctive and declaratory

relief—foundational inquiries necessary to proceed to

any factfinding phase reaching the heart of plaintiffs’

novel claims. Plaintiffs note in their response that this

is defendants’ seventh petition for writ of mandamus.

Defendants’ petition challenges the district court’s order

granting leave to amend and denying a motion to dismiss

on the pleadings, assigning error to this Court’s rulings

as one would through the usual appellate process.

As the Ninth Circuit has stated, “[t]here is enduring

value in the orderly administration of litigation by the trial

courts, free of needless appellate interference. In turn,

9a

Appendix C

appellate review is aided by a developed record and full

consideration of issues by the trial courts. If appellate

review could be invoked whenever a district court denied

a motion to dismiss, we would be quickly overwhelmed

with such requests, and the resolution of cases would

be unnecessarily delayed.” In re United States, 884

F.3d 830, 837 (9th Cir. 2018). This Court appreciates its

responsibility in the constitutional scheme to develop a

record, consider the facts, and faithfully interpret the

law. Fulfilling this role will aid the appellate court in its

review in the normal course of appeal, the proper vehicle

for its analysis of defendants’ assignments of error.

BACKGROUND

A factual background relevant to the parties’

arguments on defendants’ now-pending petition for writ

of mandamus is set forth in the district court’s Order on

defendants’ motion to dismiss, ECF No. 565 (December

29, 2023). Otherwise, it has been briefed extensively by

the parties. In their petition, defendants assert that this

Court violated the Ninth Circuit’s mandate in its 2020

decision. This Court highlights portions of the procedural

history it finds helpful to recall.

I.

2020 Appellate Court Decision

The Ninth Circuit did not reach the merits of

plaintiffs’ claims because it found that plaintiffs lacked

standing. In the appellate court’s 2020 decision, writing

for the majority, Judge Hurwitz, joined by Judge Murguia,

began with the basics: “To have standing under Article

10a

Appendix C

III, a plaintiff must have (1) a concrete and particularized

injury that (2) is caused by . . . challenged conduct and

(3) is likely redressable by a favorable judicial decision.”

Juliana, 947 F.3d at 1168. (9th Cir. 2020).

Agreeing with the district court, Judge Hurwitz found

that “[a]t least some plaintiffs” had claimed “particularized

injuries,” since climate change threatened to harm certain

plaintiffs in “concrete and personal” ways if left unchecked.

Id. And, that some plaintiffs had also established causation

because there was “at least a genuine factual dispute

as to whether” U.S. climate policy was a “substantial

factor” in exacerbating plaintiffs’ climate change-related

injuries. Id. at 1169. Thus, plaintiffs’ standing turned on

redressability: “whether the plaintiffs’ claimed injuries

[were] redressable by an Article III court.” Id.

Plaintiffs claimed defendants had violated their

constitutional right to a climate system capable of

sustaining life, and to redress that violation, sought

injunctive relief, including an order directing defendants

to “prepare and implement an enforceable national

remedial plan to phase out fossil fuel emissions and draw

down excess atmospheric CO2 to stabilize the climate

system.” First. Am. Compl. at 94 ¶¶ 2, 6, 7.

“Reluctantly,” the panel found such relief “beyond

[the district court’s] constitutional power.” Juliana, 947

F.3d at 1165. For injunctive relief, the Ninth Circuit was

“skeptical,” but assumed without deciding that plaintiffs

might show that their injuries could be redressed by an

order in their favor. Id. at 1171. That said, the appellate

11a

Appendix C

court based its ruling on the second redressability

prong, stating that an injunction was “beyond the power

of an Article III court to order, design, supervise, or

implement.” Id. The appellate court explained that Article

III courts cannot order injunctive relief unless constrained

by more “limited and precise” legal standards, discernable

in the Constitution, and that plaintiffs must make their

case to the political branches. Id. at 1175.

As for plaintiffs’ request for declaratory relief, the

Ninth Circuit determined that a declaration would be

“unlikely by itself to remediate [plaintiffs’] alleged

injuries.” Juliana 947 F.3d at 1170. Accordingly, the Ninth

Circuit “reverse[d] the certified orders of the district court

and remand[ed]” the case “with instructions to dismiss

for lack of Article III standing.” Id. at 1175.

II. 2023 District Court Orders

After the Ninth Circuit ordered the district court

to dismiss the case, plaintiffs moved to file a second

amended complaint. ECF No. 462. On June 1, 2023, this

Court granted plaintiffs’ motion to amend their complaint.

Order on Second Am. Compl., ECF No. 540 (June 1, 2023).

Plaintiffs had notified the Court of an intervening case

from the United States Supreme Court, Uzuegbunam

v. Preczewski, ___U.S.___, 141 S. Ct. 792 (2021) which

held that, for purposes of Article III standing, nominal

damages—a form of declaratory relief—provide the

necessary redress for a completed violation of a legal right.

Id. at 798, 802. That, with this Court’s understanding

that the Ninth Circuit had not expressly foreclosed the

12a

Appendix C

possibility of amendment, led the Court to grant plaintiffs’

motion to amend. This Court explained:

“Absent a mandate which explicitly directs

to the contrary, a district court upon remand

can permit the plaintiff to file additional

pleadings . . . .” San Francisco Herring Ass’n

v. Dep’t of the Interior, 946 F.3d 564, 574 (9th

Cir. 2019) (quoting Nguyen, 792 F.2d at 1502;

see also Sierra Club v. Penfold, 857 F.2d 1307,

1312 (9th Cir. 1988). When mandate in the prior

appeal did not expressly address the possibility

of amendment and did not indicate a clear intent

to deny amendment seeking to raise new issues

not decided by the prior appeal, that prior

opinion did not purport “to shut the courthouse

doors.” San Francisco Herring Ass’n, 946 F.3d

at 574 (citing Nguyen, 792 F.2d at 1503).

...

“Here, this Court does not take lightly its

responsibility under the rule of mandate.

Rather, it considers plaintiffs’ new factual

allegations under the Declaratory Judgment

Act, and amended request for relief in light

of intervening recent precedent, to be a new

issue that, while discussed, was not decided by

the Ninth Circuit in the interlocutory appeal.

Nor did the mandate expressly state that

plaintiffs could not amend to replead their

case—particularly where the opinion found a

13a

Appendix C

narrow deficiency with plaintiffs’ pleadings on

redressability. This Court therefore does not

interpret the Ninth Circuit’s instructions as

mandating it “to shut the courthouse doors”

on plaintiffs’ case where they present newly

amended allegations. San Francisco Herring

Ass’n, 946 F.3d at 574.

ECF No. 540 at 10-11.

Defendants quickly moved to dismiss plaintiffs’ second

amended complaint, ECF No. 547, and this Court denied

defendants’ motion. Order on Mot. to Dismiss, ECF No.

565 (December 29, 2023). Defendant had again asserted

that the district court had violated the rule of mandate

and this Court again explained its due regard for the rule:

Because it is jurisdictional error to contravene

a rule of mandate, the Court duly reconsiders

the mandate of the Ninth Circuit and does not

take the matter lightly. “A district court that

has received the mandate of an appellate court

cannot vary or examine that mandate for any

purpose other than executing it.” Hall v. City

of Los Angeles, 697 F.3d 1059, 1067 (9th Cir.

2012). “Violation of the rule of mandate is a

jurisdictional error.” Id. at 1067.

“But while the mandate of an appellate court

forecloses the lower court from reconsidering

matters determined in the appellate court,

it leaves to the district court any issue not

14a

Appendix C

expressly or impliedly disposed of on appeal.”

S.F. Herring Ass’n v. Dep’t of the Interior, 946

F.3d 564, 574 (9th Cir. 2019) (quoting Nguyen

v. United States, 792 F.2d 1500, 1502 (9th

Cir. 1986)). In determining which matters fall

within the compass of a mandate, “[d]istrict

courts must implement both the letter and the

spirit of the mandate, taking into account the

appellate court’s opinion and the circumstances

it embraces.” Vizcaino v. U.S. Dist. Ct. for W.

Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)

(as amended) (quoting Delgrosso v. Spang & Co.,

903 F.2d 234, 240 (3d Cir. 1990)).

“Absent a mandate which explicitly directs

to the contrary, a district court upon remand

can permit the plaintiff to file additional

pleadings . . . ” S.F. Herring, 946 F.3d at 574

(quoting Nguyen, 792 F.2d at 1502); see also

Sierra Club v. Penfold, 857 F.2d 1307, 1312

(9th Cir. 1988). When the mandate in the

prior appeal does not expressly address the

possibility of amendment and does not indicate

a clear intent to deny amendment seeking to

raise new issues not decided, that mandate does

not purport “to shut the courthouse doors.” S.F.

Herring, 946 F.3d at 574.

In S.F. Herring, the Ninth Circuit discussed

its mandate in a prior appeal, which vacated

the district court’s order entering summary

judgment in the defendants’ favor and directed

15a

Appendix C

the district court to dismiss the complaint.

See S.F. Her r ing Ass’n v. U.S. Dep’t of

Interior, 683 F. App’x 579, 581 (9th Cir. 2017)

(vacating judgment and remanding case with

instructions to dismiss for lack of subject

matter jurisdiction). On remand, the district

court allowed the plaintiff to file a second

amended complaint.

In the later appeal, the Ninth Circuit determined

that the district court correctly found that the

earlier mandate to dismiss did not prevent

the plaintiff from seeking leave to re-plead.

S.F. Herring, 946 F.3d at 574. The appellate

court reasoned that in instructing the district

court to dismiss, the mandate was silent on

whether dismissal should be with or without

leave to amend, and the mandate therefore did

not preclude the district court from allowing

plaintiff to file amended pleadings. Id. at 572574.

When this Court granted plaintiffs’ motion

for leave to amend, it “consider[ed] plaintiffs’

new factual allegations under the Declaratory

Judgment Act and plaintiffs’ amended request

for relief, in light of inter vening recent

precedent, to be a new issue that, while

discussed, was not decided by the Ninth Circuit

in the interlocutory appeal.” Juliana v. United

States, No. 6:15 -CV- 01517-A A, 2023 WL

3750334, at *5 (D. Or. June 1, 2023).

16a

Appendix C

The Court once again finds that the Ninth

Circuit’s mandate did not address whether

amendment, if permitted, would cure the

deficiency it identified in plaintiffs’ complaint.

The Ninth Circuit also did not instruct the Court

to dismiss without leave to amend. Accordingly,

its mandate to dismiss did not foreclose that

opportunity, and the Court, on reconsideration,

finds that in permitting plaintiffs to proceed

with their second amended complaint, the rule

of mandate is not contravened. S.F. Herring,

946 F.3d at 574; see also Creech v. Tewalt, 84

F.4th 777, 783 (9th Cir. 2023) (where appellate

court remanded and stated that plaintiff should

have leave to amend, district court did not

violate rule of mandate by dismissing without

leave to amend, because appellate court did not

expressly foreclose that option).

ECF No. 565 at 19-20.

On February 2, 2023, defendants filed notice with the

district court of their petition for writ of mandamus in

the Ninth Circuit. Pet., ECF No. 585, 585-1. Defendants

contend that the Ninth Circuit should issue a writ of

mandamus to this Court, directing it to dismiss this case

for lack of jurisdiction and without leave to amend. The

Ninth Circuit invited the district court to address the

petition.

17a

Appendix C

LEGAL STANDARD

“The writ of mandamus is a drastic and extraordinary

remedy reserved for really extraordinary causes.”

In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011)

(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947))

(internal quotation marks omitted). “[O]nly exceptional

circumstances amounting to a judicial usurpation of power

or a clear abuse of discretion will justify the invocation of

this extraordinary remedy.” Cheney v. U.S. Dist. Ct., 542

U.S. 367 (2004) (internal quotation marks and citations

omitted).

In considering whether to grant a writ of mandamus,

appellate courts are guided by the five factors identified

in Bauman v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977):

(1) whether the petitioner has no other means, such as

a direct appeal, to obtain the desired relief; (2) whether

the petitioner will be damaged or prejudiced in any

way not correctable on appeal; (3) whether the district

court’s order is clearly erroneous as a matter of law; (4)

whether the district court’s order is an oft repeated error

or manifests a persistent disregard of the federal rules;

and (5) whether the district court’s order raises new and

important problems or issues of first impression. Perry

v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010)

(citing Bauman, 557 F.2d at 654-55). “All factors are

not relevant in every case and the factors may point in

different directions in any one case.” Christensen v. U.S.

Dist. Ct., 844 F.2d 694, 697 (9th Cir. 1988).

18a

Appendix C

DISCUSSION

Defendants maintain that mandamus is warranted

because (1) the district court violated the Ninth Circuit’s

mandate which required dismissal and foreclosed

amendment; (2) the district court erred in finding that

plaintiffs have Article III standing; and (3) the district

court erred in finding that plaintiffs had stated plausible

claims for relief under due process clause and public trust

doctrine.

I.

Standing & Merits

This Court has addressed the merits of the parties’

arguments on Article III standing and the viability of

plaintiffs’ due process and public trust claims, and as

before, “stands by its prior rulings on jurisdictional and

merits issues, as well as its belief that this case would

be best served by further factual development at trial.”

Juliana v. United States, No. 6:15-CV-01517-AA, 2018

WL 6303774, at *3 (D. Or. Nov. 21, 2018); see also ECF

No. 565 at 21-34 (discussing redressability for purposes

of Article III standing), id. at 35-36 (discussing the

political question doctrine and justiciability), id. at 3644 (discussing plaintiffs’ due process claim), id. at 46-48

(discussing plaintiffs’ public trust claim and incorporating

analysis from prior orders).

As in their motion to dismiss, defendants maintain that

the relief plaintiffs seek is “sweeping” and “unprecedented”

and that plaintiffs must make their demands to the

political branches. See Pet. For Writ of Mandamus (“Pet.”)

19a

Appendix C

at 1, Doc. 585-1. In any case over which trial courts have

jurisdiction, where the plaintiffs have stated a legal claim,

it is the proper and peculiar province of the courts to

impartially find facts, faithfully interpret and apply the

law, and render reasoned judgment. See The Federalist

No. 78 (Alexander Hamilton).

As this Court stated in its 2023 Order denying

defendants’ motion to dismiss, “[t]he judiciary is capable

and duty-bound to provide redress for the irreparable

harm government fossil fuel promotion has caused.”

ECF No. 565 at 6. This Court draws from that 49-page

Order to answer why the remedies plaintiffs seek are not

“sweeping” or “unprecedented.” In its Order, this Court

explained why plaintiffs’ proposed remedy is one typical

for a district court to fashion and over which it can provide

jurisdictional oversight while the parties implement the

plans, practices, and policies they together devise. Id.

at 31-34. As to the merits of plaintiffs constitutional and

public trust doctrine claims, the assignments of errors

defendants raise in their petition are better suited to an

appeal in the regular course.

II. Propriety of Writ of Mandamus

This Court maintains, as do plaintiffs and amici,

that the issues defendants raise on mandamus are better

addressed through the ordinary course of litigation.

The first Bauman factor is whether the petitioner will

“ha[ve] no other means . . . to obtain the desired relief.”

Perry, 591 F.3d at 1156. This factor ensures that a writ

20a

Appendix C

of mandamus will not “be used as a substitute for appeal

even though hardship may result from delay and perhaps

unnecessary trial.” Schlagenhauf v. Holder, 379 U.S. 104,

110 (1964) (internal citation omitted).

Defendants argue that a writ of mandamus is the

only means to ensure that the district court complies with

the Ninth Circuit’s 2020 decision holding that plaintiffs’

claims are beyond the judicial power to redress. Pet. at

29. That said, the Court has explained that its Orders duly

regarded and complied with the Ninth Circuit’s decision

and found plaintiffs’ amended complaint demonstrated

redress was within the district court’s constitutional

authority. ECF No. 540 at 14-18; ECF No. 565 at 28-34.

Further, challenges to standing “may be raised by a

party, or by a court on its own initiative, at any stage in

the litigation, even after trial and the entry of judgment.”

Wood v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir.

2012) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506

(2006)). Therefore, defendants’ argument that it has no

other means to raise a challenge based on redressability—

an element of standing—does not succeed.

The second Bauman factor is whether the petitioner

“will be damaged or prejudiced in any way not correctable

on appeal.” Perry, 591 F.3d at 1156. To satisfy this factor,

the defendants “must demonstrate some burden . . . other

than the mere cost and delay that are the regrettable,

yet normal, features of our imperfect legal system.”

DeGeorge v. U.S. Dist. Ct., 219 F.3d 930, 935 (9th Cir. 2000)

(alteration in original) (quoting Calderon v. U.S. Dist.

Ct., 163 F.3d 530, 535 (9th Cir. 1998) (en banc)). Prejudice

21a

Appendix C

serious enough to warrant mandamus relief “includes

situations in which one’s ‘claim will obviously be moot by

the time an appeal is possible,’ or in which one ‘will not

have the ability to appeal.’” Id. (quoting Calderon, 163

F.3d at 535).

Defendants argue that holding a trial on the plaintiffs’

claims threatens the separation of powers and flouts the

Ninth Circuit’s mandate. To the extent that defendants

are asserting that executive branch officials and agencies

in general should not be burdened by an unmeritorious

lawsuit, “Congress has not exempted the government from

the normal rules of appellate procedure, which anticipate

that sometimes defendants will incur burdens of litigating

cases that lack merit but still must wait for the normal

appeals process to contest rulings against them.” In re

United States, 884 F.3d 830, 836 (9th Cir. 2018).

“The first two criteria articulated in Bauman are

designed to [ensure] that mandamus, rather than some

other form of relief, is the appropriate remedy.” In

re Cement Antitrust Litig. (MDL No. 296), 688 F.2d

1297, 1301 (9th Cir. 1982), aff’d sub nom. Arizona v.

U.S. Dist. Ct., 459 U.S. 1191 (1983) (mem.). This Court’s

determination that the mandate did not foreclose dismissal

is a legal conclusion, along with the district court’s

determinations on the plausibility of plaintiffs’ claims

under Federal Rules of Civil Procedure 12(b)(1) and (6),

and those determinations, if in error, are correctable

through the ordinary course of litigation. In this Court’s

view, defendants have not satisfied the second Bauman

factor.

22a

Appendix C

The third Bauman factor is whether the district

court’s order “is clearly erroneous as a matter of law.”

Perry, 591 F.3d at 1156. Appellate review of that factor

“is significantly deferential and . . . is not met unless the

reviewing court is left with a definite and firm conviction

that a mistake has been committed.” In re Bundy, 840 F.3d

1034, 1041 (9th Cir. 2016) (quoting In re United States, 791

F.3d 945, 955 (9th Cir. 2015)). “The absence of controlling

precedent weighs strongly against a finding of clear error

[for mandamus purposes].” In re Van Dusen, 654 F.3d 838,

845 (9th Cir. 2011).

Here, this Court provided authority from the Ninth

Circuit in support of its determination that it had not

violated the rule of mandate. See ECF No. 540 at 10-11,

ECF No. 565 19-20. The Court also thoroughly analyzed

plaintiffs’ claims on the merits, as described above (p.

9). Defendants do not put forth any other controlling

Ninth Circuit authority on any of the theories asserted

by plaintiffs. Defendants argue that the theories are

unprecedented. Thus, the lack of controlling precedent

here weighs strongly against a finding of clear error. Id.

The fourth Bauman factor is whether the district

court’s order is “an oft repeated error or manifests a

persistent disregard of the federal rules.” Perry, 591 F.3d

at 1156. This Court finds no oft-repeated error here, and

defendants do not contend that the district court violated

any federal rule. The defendants do not satisfy the fourth

factor.

The final factor is whether the district court’s order

“raises new and important problems or issues of first

23a

Appendix C

impression.” Perry, 591 F.3d at 1156. The Ninth Circuit

has relied on this factor when there is a “novel and

important question” that “may repeatedly evade review.”

Id. at 1159; see also In re Cement Antitrust Litig., 688 F.2d

at 1304–05 (“[A]n important question of first impression

will evade review unless it is considered under our

supervisory mandamus authority. Moreover, that question

may continue to evade review in other cases as well.”).

As this Court has found, the legal theories asserted

raise issues of first impression—i.e., existence of federal

public trust doctrine and whether the right to a climate

that can sustain human life is fundamental under the

Constitution. The merits of those claims are suitable for

appeal after final judgment. Whether a district court may

grant leave to amend a complaint after a reviewing court

orders dismissal is not a matter of first impression, as

discussed in this Court’s prior orders. See ECF No. 540 at

9-11; ECF No. 565 at 18-21. Accordingly, this Court’s order

granting amendment and denying a motion to dismiss on

the pleadings does not present the possibility that those

issues will evade appellate review. In this Court’s view,

defendants have not satisfied the fifth Bauman factor.

Under the test, a writ of mandamus is not necessary.

III. Staying Litigation

Defendants also ask the Ninth Circuit to stay litigation

while deciding their petition for writ of mandamus.

Defendants have moved to stay litigation several times

and have filed multiple petitions for writ of mandamus.

ECF Nos. 177, 308, 365, 390, 420, 585. In this iteration,

24a

Appendix C

defendants maintain that the case must be stayed because

there is a substantial likelihood that the Ninth Circuit will

grant their petition. Pet. at 5-6. Defendants have not met

their burden to show the petition for writ of mandamus is

warranted or likely to be granted. The Court has analyzed

the appropriate factors and finds that a stay should not

be granted.

CONCLUSION

This Court has great regard for the judicial process.

It has deliberately considered all motions the parties

brought, and its decisions are accessible for appellate

scrutiny in the due course of litigation. Trial courts across

the country address complex cases involving similar

jurisdictional, evidentiary, and legal questions as those

presented here without resorting to interlocutory appeal

or petitioning for a writ of mandamus. As Justice Stewart

noted, “the proper place for the trial is in the trial court,

not here.” Baker v. Carr, 369 U.S. 186, 266 (1962) (Stewart,

J., concurring.) Defendants therefore have other means,

such as a direct appeal, to obtain the desired relief. This

Court recommends denying defendants’ petition for writ

of mandamus.

SUPPLEMENTAL ORDER DATED this 19th day of

April 2024.

/s/ Ann Aiken

Ann Aiken

United States District Judge

25a

Appendix DD

APPENDIX

2023 WL 9023339

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON, EUGENE DIVISION

------------------Civ. No. 6:15-cv-01517-AA

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA, et al.,

Defendants.

------------------Signed:

December 29, 2023

-------------------

OPINION AND ORDER

------------------AIKEN, District Judge:

In 2015, twenty-one plaintiffs—a group of young

people, including “future generations”—brought this

civil rights action against the federal government,

alleging injury from the devastation of climate change

and contending that the Constitution guarantees the

26a

Appendix D

right to a stable climate system that can sustain human

life. Through the years of litigating this case, plaintiffs

maintain that their government, by subsidizing fossil fuel

extraction and consumption, is responsible for destroying

the climate system on which all life, liberty, and property

depends, violating plaintiffs’ fundamental rights under the

Due Process Clause of the Constitution and the historical

public trust doctrine. On June 1, 2023, the Court granted

plaintiffs’ motion to file a second amended complaint.

Now before the Court is defendants’ motion to dismiss

the second amended complaint. ECF No. 547. For the

reasons explained, the Court DENIES defendants’

motion to dismiss, ECF No. 547; DENIES defendants’

motion for an order certifying its prior order, ECF No.

540, for interlocutory appeal, ECF No. 551; and DENIES

defendants’ motion to stay litigation, ECF No. 552.

The Court GRANTS plaintiffs’ motion to set a pretrial

conference, ECF No. 543.

INTRODUCTION

The parties do not disagree that the climate crisis

threatens our ability to survive on planet Earth. This

catastrophe is the great emergency of our time and

compels urgent action.1 As this lawsuit demonstrates,

1. See David Wallace-Wells, The Uninhabitable Earth: Life

After Warming (2019); Andrew Freedman & Jason Samenow,

Humidity and Heat Extremes Are on the Verge of Exceeding

Limits of Human Survivability, Study Finds, Washington Post

(May 8, 2020) (reporting study warning that highly populated

regions of the world will be rendered uninhabitable sooner than

27a

Appendix D

young people—too young to vote and effect change

through the political process—are exercising the

institutional procedure available to plead with their

government to change course. While facts remain to be

proved, lawsuits like this highlight young people’s despair

with the drawn-out pace of the unhurried, inchmeal,

bureaucratic response to our most dire emergency. Top

elected officials have declared that the climate emergency

spells out “code red for humanity.” 2 Burning fossil fuels

changes the climate more than any other human activity. 3

The government does not deny that it has promoted

fossil fuel combustion through subsidies; tax exemptions;

permits for fossil fuel development projects; leases on

federal lands and offshore areas; permits for imports and

exports; and permits for energy facilities.4 Despite many

previously thought for parts of the year); Nafeez Ahmed, New

Report Suggests ‘High Likelihood of Human Civilization Coming

to an End’ Starting in 2050, VICE (June 3, 2019).

2. President Joseph Biden, Remarks on “Actions to Tackle

the Climate Crisis” at Brayton Point Power Station, Somerset,

Massachusetts (July 20, 2022), https://www.whitehouse.gov/

brief ing-room /speeches-remarks/2022 /07/20/remarks-bypresident-biden-on-actions-to-tackle-the-climate-crisis/ [https://

perma.cc/LU2U-CTFM].

3. Environmental Protection Agency, Sec. Environmental

Topics, Climate Change, Causes of Climate Change, (last updated

April 25, 2023), https://www.epa.gov/climatechange-science/

causes-climate-change [https://perma.cc/UGU4-B6EF].

4. Juliana v. United States, 947 F.3d 1159, 1167 (9th Cir.

2020) (“The government affirmatively promotes fossil fuel use

in a host of ways, including beneficial tax provisions, permits for

imports and exports, subsidies for domestic and overseas projects,

and leases for fuel extraction on federal land.”).

28a

Appendix D

climate change suits around the country, in 2023, the

United States witnessed record-breaking levels of oil and

gas production. 5 And recent calculations conservatively

estimate that the United States provides the oil and

gas industry $20,000,000,000.00 annually in an array of

subsidies.6

Defendants maintain that, because tackling the climate

crisis is complex, and no single remedy may entirely

redress plaintiffs’ harms caused by climate change, the

judiciary is constrained by the Constitution from offering

any redress at all. See defs.’ mot. to dismiss (“Mot.”) at

11-13. Defendants contend that the issue of climate change

is political in its nature, and that redress of plaintiffs’

alleged injuries must be sought from Congress. Id. at 28.

That unnecessarily narrow view overlooks one clear and

constitutional path to shielding future generations from

impacts of the onslaught of environmental disaster: that

5. Energy Poverty Prevention and Accountability Act

of 2023: Hearing on H.R.6474 and H.R.6481 before the H. Nat.

Resources Subcomm. on Energy and Min. Resources, 118th

Cong. (statement of J. Mijin Cha, Assistant Professor, Univ. of

Cal.) (citing Oliver Milman, “US Oil and Gas Production Set to

Break Record in 2023 despite UN Climate Goals,” The Guardian,

November 27, 2023, sec. Environment, https://www.theguardian.

com/environment/2023/nov/27/us-oil-gas-record-fossil-fuelscop28-united-nations [https://perma.cc/VJ4C-KZGH]).

6. Id. (Statement of J. Mijin Cha) (citing Environmental

and Energy Study Institute, Fact Sheet, “Proposals to Reduce

Fossil Fuel Subsidies (2021),” (July 23, 2021)) https://www.eesi.

org/papers/view/fact-sheet-proposals-to-reduce-fossil-fuelsubsidies-2021 [https://perma.cc/SD8B-7P6B].

29a

Appendix D

it is the responsibility of the judiciary to declare the law

that the government may not deprive the People of their

Constitutional guarantee of the God-given right to life.

U.S. Const. art III; U.S. Const. amend. V; Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 170 (1803).

Plaintiffs’ allegations are that collective resolve at

every level and in every branch of government is critical

to reducing fossil fuel emissions and vital to combating

climate change. That curbing climate change requires

an all-hands-on-deck approach does not oust the Court

from its province or discharge it of its duty under the

Constitution to say what the law is. Marbury 5 U.S. at

170.7 Combatting climate change may require all to act in

accord, but that does not mean that the courts must “throw

up [our] hands” in defeat. See Juliana v. United States,

947 F.3d 1159, 1175 (9th Cir. 2020) (Staton, J., dissenting).

The legislative and executive branches of government

wield constitutional powers entrusted to those branches

by the People through the democratic process. See U.S.

Const. art. I and art. II. So too, as part of a coequal branch

of government, the Court cannot shrink from its role to

decide on the rights of the individuals duly presenting

their case and controversy. Marbury, 5 U.S. at 170. Indeed,

courts at home and abroad are capably grappling with

7. See also Edith M. Lederer, UN Chief: World Must Prevent

Runaway Climate Change by 2020, Associated Press News (Sept.

10, 2018) (describing massive decarbonization effort necessary to

avoid climate “tipping points.”), https://apnews.com/article/floodsunited-nations-antonio-guterres-us-news-climate-71ab1abf44c14

605bf2dda29d6b5ebcc [https://perma.cc/84E6-D24C].

30a

Appendix D

climate change lawsuits seeking redress against both

government and private actors on a range of legal theories,

many novel. 8 In Montana, Judge Kathy Seeley presided

over the first climate change trial in the United States,

piercing through expert testimony and scientific evidence

to provide factual findings and conclusions of law, ruling

that the state’s failure to consider climate change when

approving fossil fuel projects was unconstitutional. See

Held v. Montana, Findings of Fact, Conclusions of Law,

and Order, Civil Action CDV-2020-307 (Mont. First Jud.

D. Ct. Lewis and Clark County, Aug. 14, 2023).

The judiciary is capable and duty-bound to provide

redress for the irreparable harm government fossil fuel

promotion has caused. Legal scholar and professor Mary

Christina Wood contends that the all-encompassing

breadth of ongoing “irreparable harm” sets the climate

emergency apart from any other crisis, in terms of the

human interests at stake.9 As Professor Wood eloquently

states: “Because no crisis is as ominous, imminent, and

far reaching, the climate emergency must be considered

8. The Sabin Center for Climate Change Law of Columbia

University has assembled for public access the “Climate Change

Litigation Database” containing summaries and court dockets for

climate change lawsuits brought in the United States and abroad.

Climate Change Litigation Databases, Colum. L. Sch.: Sabin Ctr.

For Climate Change L., https://climatecasechart.com/ [https://

perma.cc/B89Z-YN4M].

9. Mary C. Wood, “On the Eve of Destruction”: Courts

Confronting the Climate Emergency, 97 Ind. L.J. 239, 249 (2022)

(hereinafter “Wood, Eve of Destruction”).

31a

Appendix D

sui generis,” that is, “in a class of its own.”10 The legal

approach must “rise to the emergency rather than

repeat a failed past paradigm.” 11 In the context of

Australian youth’s challenge to government approval of

a coal mine, Justice Bromberg wrote that failure to curb

climate change is “what might fairly be described as the

greatest inter-generational injustice ever inflicted by one

generation of humans upon the next.”12

10. Id.

11. Id.

12. Sharma v. Minister for the Env’t [2021] FCA 560 1, 90 (27

May 2021) (Austl.). The court stated:

“It is difficult to characterise in a single phrase the

devastation that the plausible evidence presented

in this proceeding forecasts for the Children. As

Australian adults know their country, Australia will

be lost and the World as we know it gone as well.

The physical environment will be harsher, far more

extreme and devastatingly brutal when angry. As for

the human experience—quality of life, opportunities

to partake in nature’s treasures, the capacity to grow

and prosper—all will be greatly diminished. Lives

will be cut short. Trauma will be far more common

and good health harder to hold and maintain. None of

this will be the fault of nature itself. It will largely be

inflicted by the inaction of this generation of adults, in

what might fairly be described as the greatest intergenerational injustice ever inflicted by one generation

of humans upon the next.”

Id.

32a

Appendix D

Some may balk at the Court’s approach as errant or

unmeasured,13 but more likely than not, future generations

may look back to this hour and say that the judiciary

failed to measure up at all. In any case over which trial

courts have jurisdiction, where the plaintiffs have stated

a legal claim, it is the proper and peculiar province of the

courts to impartially find facts, faithfully interpret and

apply the law, and render reasoned judgment.14 Such is

the case here.

BACKGROUND

I.

Plaintiffs’ Lawsuit

In 2015, plaintiffs filed this civil rights lawsuit

that journalists later coined “The Biggest Case on

the Planet.”15 At the start of this case, the twenty-one

13. Juliana v. United States, 947 F.3d 1159, 1174 (9th Cir.

2020) (“Not every problem posing a threat—even a clear and

present danger—to the American Experiment can be solved by

federal judges. As Judge Cardozo once aptly warned, a judicial

commission does not confer the power of ‘a knight errant, roaming

at will in pursuit of his own ideal of beauty or of goodness’; rather,

we are bound ‘to exercise a discretion informed by tradition,

methodized by analogy, disciplined by system.’ ”) (quoting

Benjamin N. Cardozo, The Nature of the Judicial Process 141

(1921)).

14. See The Federalist No. 78 (Alexander Hamilton).

15. Laura Parker, “Biggest Case on the Planet” Pits Kids

v. Climate Change, Nat’l Geographic (Nov. 9, 2018), https://www.

nationalgeographic.com/science/article/kids-sue-us-governmentclimate-change [https://perma.cc/2J7J-74C2].

33a

Appendix D

plaintiffs were between the ages of eight and nineteen.

They brought suit along with “future generations”

through their guardian, Dr. James Hansen. Plaintiffs

named as defendants all federal agencies that plaintiffs

alleged were responsible for the U.S. energy policy,

including the Department of Agriculture, Department

of Transportation, Environmental Protection Agency,

Department of Interior, the State Department, Council

on Environmental Quality, Department of Defense, and

Department of Commerce. Compl., ECF No. 1; First Am.

Compl. (“FAC”), ECF No. 7.

Plaintiffs compiled an abundance of factual evidence

to support their claim that the government has known

about the dangers posed by fossil fuel production, and,

despite that knowledge, chose to promote production

and consumption of coal, oil, and gas at increasing levels

over decades. The record is extensive. The evidence, as

the Ninth Circuit stated, “leaves little basis for denying

that climate change is occurring at an increasingly rapid

pace ... and stems from fossil fuel combustion.” Juliana,

947 F.3d at 1166.

From the beginning, plaintiffs alleged that, as

early as the year 1899, scientists understood that CO2

concentration in the atmosphere caused heat retention,

global heating, and climate change. FAC ¶ 131. Plaintiffs

stated that for over fifty years, the United States of

America has known that CO2 pollution from burning

fossil fuels was causing global warming and dangerous

climate change, and that continuing to burn fossil fuels

would destabilize the climate system on which present and

34a

Appendix D

future generations of our nation depend for survival. Id.

¶¶ 132-35. Recounting over a dozen signpost junctures,

plaintiffs provide letters, memoranda, and reports to the

political branches from scientific experts and government

agencies cautioning about the danger of carbon pollution

and warning that a lack of action would be felt for decades.

Id. ¶¶ 136-50.

Defendants moved to dismiss the complaint under

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for

lack of standing; failure to state a cognizable constitutional

claim; and failure to state a claim on a public trust

theory. ECF No. 27. The Court denied that motion in

November 2016. See Nov. 10, 2016 Op. & Order, ECF No.

83. Defendants also moved for judgment on the pleadings

and summary judgment. ECF Nos. 195, 207. For the most

part, the Court denied those motions.

When the Court denied defendants’ motions to certify

its dispositive orders for interlocutory appeal, defendants

petitioned the Supreme Court for a writ of mandamus,

ECF No. 390-1, and to stay proceedings, ECF No. 391-1,

both which were denied. Defendants asked the district

court to reconsider certifying its orders for interlocutory

appeal, and, that time, the Ninth Circuit invited the

district court to do so. See Nov. 21, 2018 Order, ECF Nos.

444, 445. Defendants then sought permission to appeal,

which the Ninth Circuit granted. Filed Ord., Juliana v.

United States, No. 18-36082 (9th Cir. Dec. 26, 2018).

On January 17, 2020, a divided panel of the Ninth

Circuit issued a decision reversing the district court’s

35a

Appendix D

certified orders and remanding the case with instructions

to dismiss for lack of Article III standing. Juliana, 947

F.3d at 1175. Writing for the majority, Judge Hurwitz,

joined by Judge Murguia, began with the basics: “To

have standing under Article III, a plaintiff must have (1)

a concrete and particularized injury that (2) is caused by

... challenged conduct and (3) is likely redressable by a

favorable judicial decision.” Id. at 1168.

Agreeing with the district court, Judge Hurwitz

found that “[a]t least some plaintiffs” had claimed

“particularized injuries,” since climate change threatened

to harm certain plaintiffs in “concrete and personal” ways

if left unchecked. Id. The appellate court described the

dire circumstances faced by one plaintiff who had had

to evacuate his coastal home because of climate change.

Id. And some plaintiffs had also established causation

because there was “at least a genuine factual dispute

as to whether” U.S. climate policy was a “substantial

factor” in exacerbating plaintiffs’ climate change-related

injuries. Id. at 1169. Thus, plaintiffs’ standing turned on

redressability: “whether the plaintiffs’ claimed injuries

[were] redressable by an Article III court.” Id.

Plaintiffs claimed defendants had violated their

constitutional right to a climate system capable of

sustaining life, and to redress that violation, sought

injunctive relief, including an order directing defendants

to “prepare and implement an enforceable national

remedial plan to phase out fossil fuel emissions and draw

down excess atmospheric CO2 to stabilize the climate

system.” FAC at 94 ¶¶ 2, 6, 7.

36a

Appendix D

“Reluctantly,” the panel found such relief “beyond [the

district court’s] constitutional power.” Juliana, 947 F.3d

at 1165. To establish redressability, the appellate court

explained, plaintiffs must have identified relief that was

both “(1) substantially likely to redress their injuries” and

“(2) within the district court’s power to award.” Id. at 1170.

On the first prong, the panel found that plaintiffs’ own

experts had stated that only a comprehensive, governmentled plan to reduce U.S. greenhouse gas emissions could

mitigate “the global consequences of climate change” and

thereby bring plaintiffs’ total redress. Id. Turning to the

second prong, the panel found that supervising such a

plan “would necessarily require” judges to make “a host

of complex policy decisions.” Id. at 1171.

Plaintiffs told the appellate court that even partial

relief would suffice to redress their injuries, and that

the district court “need not itself make policy decisions,”

because if plaintiffs’ request for a remedial plan were

granted, the political branches “could decide what policies”

would be best to “draw down excess atmospheric CO2 .”

Id. at 1172. But the panel determined that, “even under

such a scenario,” the district court would need to pass

judgment on the sufficiency of the government’s response

to the order. In the Ninth Circuit’s view, a district court

could not engage in passing judgment on the sufficiency

of the government’s response to a court order, because it

“necessarily would entail a broad range of policymaking.”

Id.

The panel continued: “[A] constitutional directive

or legal standard[ ] must guide the court’s exercise of

37a

Appendix D

equitable power,” and, on the other hand, “limited and

precise” legal rules simply could not resolve the range

of policy-related questions plaintiffs’ claims raised. Id.

at 1173. The appellate court determined that no remedy

subject to limited and precise definition could redress

plaintiffs’ injuries and therefore issuing such relief was

not within the district court’s power. Id.

Judge Josephine L. Staton dissented. “Plaintiffs bring

suit,” she lamented, “to enforce the most basic structural

principle embedded in our system of ordered liberty: that

the Constitution does not condone the Nation’s willful

destruction.” Id. at 1175. In Judge Staton’s view, the

district court had the power to award plaintiffs’ relief

unless plaintiffs’ claims ran afoul of the political question

doctrine. See id. at 1184-85. Since plaintiffs’ claims did not

pose political questions, she continued, they should have

proceeded. Id. at 1185-86. “[O]ur history is no stranger

to widespread, programmatic changes ... ushered in by

the judiciary[ ],” Judge Staton concluded, and the “slow

churn” of institutional-reform litigation “should not

dissuade us here.” Id. at 1188-89. At end of the day, the

narrower understanding prevailed: that Article III courts

cannot order injunctive relief unless constrained by more

“limited and precise” legal standards, discernable in the

Constitution, and that plaintiffs must make their case

to the political branches. Id. at 1175. The Ninth Circuit

“reverse[d] the certified orders of the district court and

remand[ed]” the case “with instructions to dismiss for

lack of Article III standing.” Id.

Plaintiffs moved to file an amended complaint,

removing from their prayer for relief the injunction that

38a

Appendix D

the Ninth Circuit had found objectionable. ECF No.

462. The Court granted it because (1) the Ninth Circuit

did not foreclose the possibility of amendment when it

mandated dismissal; (2) plaintiffs had notified the Court of

a Supreme Court case providing a new and more expansive

interpretation of declaratory judgments; and (3) plaintiffs’

proposed complaint narrowed the scope of the injunctive

relief it had initially requested. See Juliana v. United

States, No. 6:15-CV-01517-AA, 2023 WL 3750334 (D. Or.

June 1, 2023).

II. Plaintiffs File a Second Amended Complaint

In plaintiffs’ second amended complaint, they

maintain earlier factual allegations, contending that

defendants implemented no recommendation provided to

them via scientific reports warning of catastrophic climate

change. Second Am. Compl. (“SAC”) ¶ 153. Plaintiffs

contend that, if defendants had not disregarded the

evidence, “CO2 emissions today would be reduced by 35%

from 1987 levels.” Id. Instead, since 1991, plaintiffs state

that defendants have allowed CO2 emissions from fossil

fuel combustion to increase. Id. Plaintiffs provide tables

setting forth data from government sources showing that

fossil fuel production, fossil fuel energy consumption,

and fossil fuel emissions have climbed substantially since

1965, and that by 2011, fossil fuel combustion in the U.S.

accounted for 94% of CO2 emissions. Id. ¶¶ 155-58. By

2012, data plaintiffs provide shows that the U.S. was the

largest producer of natural gas, and the second largest

producer of coal and energy production. Id. ¶ 160. By

2014, according to the United States Energy Information

39a

Appendix D

Administration, the U.S. had become the largest producer

of total petroleum in the world. Id. ¶ 161.

Plaintiffs assert that defendants knew the harmful

effect of their actions would significantly endanger many,

like plaintiffs, with damage persisting for millennia.

Id. ¶¶ 1, 161. Despite that knowledge, plaintiffs allege

defendants continued their policies and practices of

promoting the exploitation of fossil fuels and that

defendants acted with deliberate indifference to the peril

they knowingly created. Id.

Plaintiffs’ inventory cataloguing the regulatory

permits, export permits, and approvals for leasing,

drilling, and mining on public lands is substantial. The

accounting of exploitation for fossil fuel extraction, coal

tracts, and oil and gas leases is staggering. Id. ¶¶ 16470. Plaintiffs comprehensively inventory the affirmative

governmental promotion of fossil fuel combustion over

decades. Id. ¶¶ 171-78.

Plaintiffs also include allegations drawing from

scientific evidence documenting the tangible impacts of

climate change. Evidence describes rising sea levels,

severe droughts, hurricanes, wildfires, extreme heat, flash

flooding, unprecedented ocean acidification, and rapid

depletion of sea ice. Id. ¶¶ 213-41. Such events alter our

air quality, water availability, water quality, crop yields,

animal agriculture, and housing security. Id. Plaintiffs’

allegations about what the future holds if climate change

is unabated are harrowing. Id. ¶¶ 242-55.

40a

Appendix D

As the legal basis for their claims, plaintiffs maintain

that defendants have violated the Due Process Clause and

Equal Protection Clause of the Fifth Amendment; the

“unenumerated rights preserved for the people by the

Ninth Amendment”; and the public trust doctrine. FAC

at 84, 88, 91, 92; SAC at 133, 137, 140, 141 (bringing same

claims for relief).

Plaintiffs seek declaratory relief under the Declaratory

Judgment Act, 28 U.S.C. § 2201. SAC ¶ 14. Requested

relief includes a declaration that the United States national

energy system that creates the harmful conditions

described above has violated and continues to violate the

Fifth Amendment of the U.S. Constitution and plaintiffs’

constitutional rights to substantive due process and equal

protection of the law. Id. at 143 ¶ 1. Further, plaintiffs seek

a declaration that defendants violated public trust rights

and a declaration that the Energy Policy Act, Section 201

is unconstitutional. Id. at 143 ¶¶ 2-3.16 Plaintiffs request

injunctive relief only if necessary and “as appropriate.”

Id. at 143 ¶ 4.

III. The Government Files a Motion to Dismiss

Defendants move to dismiss under Federal Rule

of Civil Procedure 12(b)(1) and 12(b)(6), asserting that

plaintiffs lack standing; that plaintiffs cannot bring claims

16. As noted earlier, plaintiffs had initially sought injunctive

relief, including an order directing defendants to “prepare and

implement an enforceable national remedial plan to phase out

fossil fuel emissions and draw down excess atmospheric CO2 to

stabilize the climate system.” FAC at 94 ¶¶ 2, 6, 7.

41a

Appendix D

in the absence of a statutory right of action; that plaintiffs

ask the Court to exercise authority that exceeds the scope

of its power under Article III of the Constitution; and that

all of plaintiffs’ claims fail on the merits. Defendants also

assert that, if the Court denies their motion, it should

again certify its decision for interlocutory appeal.

LEGAL STANDARDS

I.

Motion to Dismiss – Federal Rule of Civil Procedure

12(b)(1)

A court reviews a motion to dismiss a complaint for

lack of Article III standing under Rule 12(b)(1). Naruto

v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018) (quoting

Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011)).

If the jurisdictional attack is facial, courts determine

whether the allegations contained in the complaint are

sufficient on their face to invoke federal jurisdiction,

accepting all material allegations in the complaint as

true and construing them in favor of the party asserting

jurisdiction. See Warth v. Seldin, 422 U.S. 490, 501 (1975).

Once a party has moved to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), the party invoking

federal jurisdiction bears the burden of establishing the

elements of standing. Lujan v. Defs. of Wildlife, 504 U.S.

555, 561 (1992). “[A] party must establish an Article III

case or controversy before [a court can] exert subject

matter jurisdiction.” Matter of E. Coast Foods, Inc., 66

F.4th 1214, 1218 (9th Cir. 2023). To satisfy the “irreducible

constitutional minimum” of Article III standing, a plaintiff

must establish (1) an injury in fact (2) that is fairly

42a

Appendix D

traceable to the challenged conduct and show that a court

can provide (3) a remedy likely to redress that injury.

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).

II. Motion to Dismiss – Federal Rule of Civil Procedure

12(b)(6)

To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to

state a “claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007). A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged. Id. at 556. The plausibility standard

is not akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted

unlawfully. Id. The tenet that a court must accept as true

all allegations contained in a complaint is inapplicable

to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice. Id. (citing Twombly, 550 U.S. at 555). “Where the

well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint

has alleged—but it has not show[n]—that the pleader is

entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R.

Civ. P. 8(a)(2)).

DISCUSSION

Over the eight years litigating this case, plaintiffs have

presented evidence spanning over 50 years describing

43a

Appendix D

defendants’ contribution to climate change through

both inaction and affirmative promotion of fossil fuel

use. The Court recalls plaintiffs’ evidence included a

letter by a top aide to President Nixon’s domestic policy

adviser emphasizing the effect of rising sea levels in

1969: “Goodbye New York. Goodbye Washington, for

that matter.”17 In 1986, a Senate subcommittee observed

that “there is a very real possibility that man—through

ignorance or indifference, or both—is irreversibly altering

the ability of our atmosphere to perform basic life support

functions for the planet.”18 Those are but two documents

out of hundreds highlighting the lengthy nature of

government knowledge of the dangers of fossil fuel

combustion. By and large, defendants have not disputed

the factual premises of plaintiffs’ claims. Juliana, 947

F.3d at 1167 (so stating). However, plaintiffs have not

legally established that evidence. In reviewing defendants’

motion to dismiss, the Court notes that, though it has

held evidentiary hearings and painstakingly reviewed

thousands of pages of declarations and exhibits, today, its

task is solely to decide whether plaintiffs have standing

to bring suit and state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(1), (6).

17. Memorandum from Daniel P. Moynihan, Assistant to the

President for Domestic Pol’y, to John Ehrlichman, Assistant to

the President for Domestic Affs. (Sept. 17, 1969), [https://perma.

cc/G92P-AKLJ].

18. Ozone Depletion, the Greenhouse Effect, and Climate

Change: Hearing Before the Subcomm. on Env’t Pollution of

the Comm. on Env’t & Pub. Works, 99th Cong. 2 (1986) (opening

statement of Sen. John H. Chafee, Chairman, Subcomm. on Env’t

Pollution).

44a

Appendix D

As an initial matter, defendants assert that the

Court must consider whether the rule of mandate, as

a jurisdictional rule, requires the Court to dismiss the

second amended complaint. Mot. at 10. Next, defendants

maintain that plaintiffs have failed to bring a justiciable

case and that the Court must dismiss plaintiffs’ claims

under Rule 12(b)(1) for lack of subject matter jurisdiction.

Id. at 10-16. Finally, defendants urge the Court to find

that plaintiffs’ claims fail on the merits and that plaintiffs

should have brought this action under the Administrative

Procedure Act (“APA”) but failed to do so. Id. at 32.

I.

Mandate of the Court of Appeals for the Ninth

Circuit

Defendants state that the Ninth Circuit was clear

when it remanded the case to the Court with instructions

to dismiss. Id. at 11. Defendants argue that, when the

scope of the remand is clear, a district court cannot vary or

examine the mandate of an appellate court “for any other

purpose than execution.” Id. at 10 (citing In re Sanford

Fork & Tool Co., 160 U.S. 247, 255 (1895)). Defendants

contend that, rather than examine whether plaintiffs’

amended pleadings establish redressability to satisfy the

requirement of standing, the Court should reconsider the

Ninth Circuit’s mandate and dismiss the second amended

complaint. Id. at 11. Because it is jurisdictional error to

contravene a rule of mandate, the Court duly reconsiders

the mandate of the Ninth Circuit and does not take the

matter lightly.

“A district court that has received the mandate of an

appellate court cannot vary or examine that mandate for

45a

Appendix D

any purpose other than executing it.” Hall v. City of Los

Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “Violation of

the rule of mandate is a jurisdictional error.” Id. at 1067.

“But while the mandate of an appellate court forecloses

the lower court from reconsidering matters determined

in the appellate court, it leaves to the district court any

issue not expressly or impliedly disposed of on appeal.”

S.F. Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564,

574 (9th Cir. 2019) (quoting Nguyen v. United States, 792

F.2d 1500, 1502 (9th Cir. 1986)). In determining which

matters fall within the compass of a mandate, “[d]istrict

courts must implement both the letter and the spirit of the

mandate, taking into account the appellate court’s opinion

and the circumstances it embraces.” Vizcaino v. U.S. Dist.

Ct. for W. Dist. of Wash., 173 F.3d 713, 719 (9th Cir. 1999)

(as amended) (quoting Delgrosso v. Spang & Co., 903 F.2d

234, 240 (3d Cir. 1990)).

“Absent a mandate which explicitly directs to the

contrary, a district court upon remand can permit the

plaintiff to file additional pleadings ...” S.F. Herring, 946

F.3d at 574 (quoting Nguyen, 792 F.2d at 1502); see also

Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir. 1988).

When the mandate in the prior appeal does not expressly

address the possibility of amendment and does not indicate

a clear intent to deny amendment seeking to raise new

issues not decided, that mandate does not purport “to

shut the courthouse doors.” S.F. Herring, 946 F.3d at 574.

In S.F. Herring, the Ninth Circuit discussed its

mandate in a prior appeal, which vacated the district court’s

order entering summary judgment in the defendants’ favor

46a

Appendix D

and directed the district court to dismiss the complaint.

See S.F. Herring Ass’n v. U.S. Dep’t of Interior, 683 F.

App’x 579, 581 (9th Cir. 2017) (vacating judgment and

remanding case with instructions to dismiss for lack of

subject matter jurisdiction). On remand, the district court

allowed the plaintiff to file a second amended complaint.

In the later appeal, the Ninth Circuit determined that the

district court correctly found that the earlier mandate to

dismiss did not prevent the plaintiff from seeking leave

to re-plead. S.F. Herring, 946 F.3d at 574. The appellate

court reasoned that in instructing the district court to

dismiss, the mandate was silent on whether dismissal

should be with or without leave to amend, and the mandate

therefore did not preclude the district court from allowing

plaintiff to file amended pleadings. Id. at 572-574.

When this Court granted plaintiffs’ motion for leave to

amend, it “consider[ed] plaintiffs’ new factual allegations

under the Declaratory Judgment Act and plaintiffs’

amended request for relief, in light of intervening recent

precedent, to be a new issue that, while discussed, was

not decided by the Ninth Circuit in the interlocutory

appeal.” Juliana v. United States, No. 6:15-CV-01517-AA,

2023 WL 3750334, at *5 (D. Or. June 1, 2023). The Court

once again finds that the Ninth Circuit’s mandate did not

address whether amendment, if permitted, would cure the

deficiency it identified in plaintiffs’ complaint.

The Ninth Circuit also did not instruct the Court

to dismiss without leave to amend. Accordingly, its

mandate to dismiss did not foreclose that opportunity,

and the Court, on reconsideration, finds that in permitting

47a

Appendix D

plaintiffs to proceed with their second amended complaint,

the rule of mandate is not contravened. S.F. Herring, 946

F.3d at 574; see also Creech v. Tewalt, 84 F.4th 777, 783 (9th

Cir. 2023) (where appellate court remanded and stated

that plaintiff should have leave to amend, district court

did not violate rule of mandate by dismissing without

leave to amend, because appellate court did not expressly

foreclose that option).

II. Standing

The Ninth Circuit determined that plaintiffs had

established an injury in fact, traceable to defendants—the

first two elements of constitutional standing. Juliana 947

F.3d at 1168-70. For completeness in its standing analysis,

this Court adopts the Ninth Circuit’s determination.

Defendants reserve the right to “oppose” the Ninth

Circuit’s ruling. Mot. at 12.

Defendants contend that plaintiffs have not satisfied

the third element of standing, because they failed to

demonstrate that their injuries are “redressable” and

that they are entitled to injunctive or declaratory relief.

Defendants maintain that plaintiffs’ requested relief fails,

because plaintiffs cannot show that the relief they seek

is (1) substantially likely to redress their injuries or (2)

within the Court’s power to award. Id. at 4-5, 12; see also

Spokeo, 578 U.S. at 338.

A plaintiff must support each element of the standing

test “with the manner and degree of evidence required at

the successive stages of the litigation.” Lujan, 504 U.S. at

48a

Appendix D

561 (1992). Accordingly, at the motion-to-dismiss stage,

“general allegations” suffice to establish standing because

those allegations are presumed to “embrace those specific

facts that are necessary to support the claim.” Id. A

plaintiff need not show a favorable decision is “certain” to

redress his injury but must show a substantial likelihood

it will do so. Washington Env’t Council v. Bellon, 732

F.3d 1131, 1146 (9th Cir. 2013). The injury need not be

completely redressable; it is sufficient that the injury be

partially redressed. Meese v. Keene, 481 U.S. 465, 476

(1987) (“enjoining the application of the words political

propaganda to the films would at least partially redress

the reputational injury of which appellee complains.”).

As for plaintiffs’ request for declaratory relief, the

Ninth Circuit determined that a declaration would be

“unlikely by itself to remediate [plaintiffs’] alleged

injuries.” Juliana 947 F.3d at 1170. For injunctive relief,

the Ninth Circuit was “skeptical,” but assumed without

deciding that plaintiffs might be able to show that their

injuries could be redressed by an order in their favor. Id. at

1171. That said, the appellate court based its ruling on the

second redressability prong, stating that an injunction was

“beyond the power of an Article III court to order, design,

supervise, or implement.” Id. Plaintiffs’ second amended

complaint scales down the requested injunctive relief,

seeking “an injunction restraining [d]efendants from

carrying out policies, practices, and affirmative actions

that render the national energy system unconstitutional

in a manner that harms [p]laintiffs,” and only “if deemed

necessary, just and proper.” SAC at 143 ¶ 4.

49a

Appendix D

Accordingly, for plaintiffs’ claim for both injunctive

relief and declaratory relief, the Court will evaluate

whether each form of relief is (1) substantially likely to

redress their injuries and (2) within the Court’s power to

award. Spokeo, 578 U.S. at 338.

A.

Injunctive Relief

1.

Substantial Likelihood of Redress

Defendants assert that an order enjoining defendants’

fossil fuel activities will not stop catastrophic climate

change or even partially ameliorate plaintiffs’ injuries,

and therefore, any such injunction is not substantially

likely to redress plaintiffs’ injuries and satisfy standing.

Mot. at 12.

Whether a court order will halt all climate change

by restraining defendants from carrying out fossil fuel

activities is the wrong inquiry for at least two reasons.

First, redressability does not require certainty, it requires

only a substantial likelihood that the Court could provide

meaningful relief. Spokeo, 578 U.S. at 338. Second, the

possibility that some other individual or entity might

cause the same injury does not defeat standing—the

question is whether the injury caused by the defendant

can be redressed.

Defendants have not disputed plaintiffs’ factual

allegations that they produce a quarter of all emissions

on Earth. Juliana, 947 F.3d at 169. Based on plaintiffs’

alleged facts, an order to defendants to refrain from

50a

Appendix D

certain fossil fuel activities which are causing plaintiffs’

injuries would redress those injuries. On the spectrum of

likely to unlikely, a favorable court order is much closer to

likely, i.e., substantially likely, to redress plaintiffs’ harm.

“Substantially likely” is a legal characterization,

not an evidence based, scientific number. Quantifying a

threshold datapoint at which plaintiffs’ harm would be

remedied would involve rigorous, disciplined fact-finding,

and inevitably would raise a host of questions: What part

of plaintiffs’ injuries stem from causes beyond defendants’

control? Even if emissions increase elsewhere, will the

extent of plaintiffs’ injuries be less if they obtain the relief

they seek in this lawsuit? When would we reach this “point

of no return” that plaintiffs’ evidence describes, and do

defendants have it within their power to avert reaching

it, even without cooperation from third parties? All these

questions are inextricably bound up in an evidentiary

inquiry, and none of them can be answered at the motionto-dismiss stage. At this junction, the Court finds that

plaintiffs have shown that a favorable decision from this

Court would be substantially likely to redress plaintiffs’

injuries. Defendants’ motion to dismiss is denied as to

this issue.

2.

The Court’s Power to Provide Redress

Defendants assert that the Ninth Circuit determined

that the injunction plaintiffs sought in their first amended

complaint would “necessarily require a host of complex

policy decisions entrusted ... to the wisdom and discretion

of the executive and legislative branches,” Juliana, 947

51a

Appendix D

F.3d at 1171, decisions “which must be made by the

People’s elected representatives.” Id. at 1172. Defendants

maintain that, even with amendment, plaintiffs’ requested

injunctive relief is unavailable, because it would “enjoin

the executive branch from exercising discretionary

authority” granted to it by statute, and would enjoin

Congress from exercising power expressly granted to it

by the Constitution. Mot. at 13 (citing the Property Clause,

U.S. Const. art. IV, § 3, cl. 2). In defendants’ view, the

requested injunction remains beyond a district court’s

power to award. Id.

While crafting and implementing injunctions in cases

involving longstanding agency shortcomings may require

rigorous, adversarial fact-finding to penetrate questions

of science, there is nothing exceptional about a federal

court issuing injunctions against federal agencies. See

e.g., Nw. Env’t Def. Ctr. v. United States Army Corps of

Engineers, No. 3:18-CV-00437-HZ, 2021 WL 3924046 (D.

Or. Sept. 1, 2021) (injunction requiring U.S. Army Corps

of Engineers to implement drawdown, spill, and specific

fish management actions at its facilities; establishing an

expert panel to craft implementation plans; and requiring

status reports from agency).

Other federal district courts have similarly ordered

agency action, and appellate courts have affirmed that

granting this type of injunctive relief falls within the

“broad equitable powers” of district courts. Cobell VI, 240

F.3d 1081, 1108 (D.C. Cir. 2001); Gautreaux v. Romney,

457 F.2d 124, 132 (7th Cir. 1972). Courts may also

issue injunctions even when “ordering what is in effect

52a

Appendix D

nationwide relief.” Bresgal v. Brock, 843 F.2d 1163, 1171

(9th Cir. 1987).

Without any explicit statutory command to the

contrary, no court has held that these powers categorically

fail on separation-of-powers grounds. See Samuel

Buckberry Joyce, Climate Injunctions: The Power of

Courts to Award Structural Relief Against Federal

Agencies, 42 Stan. Env’tl. L.J. 241, 268-281, May 2023

(compiling cases featuring structural injunctions against

the federal government).

Familiar instances of large-scale institutional

litigation in modern American history include cases

that ordered busing to desegregate schools;19 the treaty

rights cases that assured a fair share of fish for American

Indian treaty fishers;20 cases instituting prison condition

reform;21 and cases relating to land use and low-income

housing. 22 Legal scholars have cited those cases and

explained that injunctions in those cases “aimed to break

down, scrutinize, and reform institutional dynamics and

19. See, e.g., Brown v. Bd. of Educ. of Topeka, 347 U.S. 483

(1954); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

1 (1971); Milliken v. Bradley, 418 U.S. 717 (1974); Green v. Cnty.

Sch. Bd. of New Kent Cnty., 391 U.S. 430 (1968).

20. See, e.g., United States v. Washington, 520 F.2d 676 (9th

Cir. 1975); Washington v. Washington State Com. Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979).

21. See, e.g., Brown v. Plata, 563 U.S. 493 (2011); Hudson v.

McMillian, 503 U.S. 1 (1992); Hutto v. Finney, 437 U.S. 678 (1978).

22. See Hills v. Gautreaux, 425 U.S. 284, 298 (1976).

53a

Appendix D

practices that caused the government to repeatedly violate

fundamental rights of citizens to bring about enduring

constitutional and civil rights compliance.” 23

In their first amended complaint, plaintiffs’ requested

remedy was an injunction requiring the government not

only to “cease permitting, authorizing, and subsidizing”

fossil fuel use, but also to “prepare a remedial plan subject

to judicial approval to draw down harmful emissions.”

Juliana, 947 F.3d at 1170.

When it determined that plaintiffs’ requested relief

was beyond the power of an Article III court to order, the

Ninth Circuit did not offer any explicit guidance on how

to distinguish other structural injunction cases, where

the district court has power to order specific, injunctive

relief, from this case, where the relief necessary to redress

plaintiffs’ injuries is held to be too broad.

Plaintiffs have scaled back the specific directives they

at first sought in the injunction in their first amended

complaint. At this point in the litigation, where the facts

alleged are accepted as true, the Court can only identify

one distinction between the injunction plaintiffs’ request

and the injunctions issued in the structural reform cases

described above. In other reform cases, those plaintiffs’

obtained injunctions against a single agency for a discreet

violation of law. In this case, plaintiffs seek relief on

constitutional grounds and historical trust principles

against a host of governmental defendants.

23. Wood, Eve of Destruction, at 262.

54a

Appendix D

The Court appreciates that, under existing precedent,

an injunction of the scope plaintiffs first requested, and the

“scaled down” request plaintiffs make now, against every

named defendant in this suit, would be more expansive

than any case of which the Court is aware.

On the other hand, requiring plaintiffs to bring

piecemeal statutory actions against individual agencies

perpetuates a status quo unlikely to bring about the allout course correction necessary to avoid the impending

crisis. Requiring plaintiffs to file individual suits premised

on discreet agency shortcomings may be a viable path

to achieving protections for the environment. However,

a court order directing the agencies to work together,

outside their silos to oversee resolution of a complex,

multiagency problem may prove especially constructive

where a practical solution has eluded the entire government

for decades.

Such an order has not proven to be necessary—and is

perhaps premature—at this point in the case. Plaintiffs’

amended request for injunction, though narrower, still

treads on ground over which Ninth Circuit cautioned the

Court not to step. If the reform plaintiffs seek is to prod

a negotiated change of behavior, it is unnecessary to seek

injunctive relief at this point to do so. Defendants’ motion

to dismiss plaintiffs’ claim for injunctive relief is granted.

B. Declaratory Relief

Plaintiffs’ second amended complaint seeks a

declaration that “the national energy system” violates

55a

Appendix D

the Constitution and the public trust doctrine. SAC at

143, ¶¶ 1-3. Defendants contend that plaintiffs’ claim for

declaratory relief must be dismissed, asserting that the

declaration is not materially distinct from the declaration

plaintiffs sought in their first amended complaint. And

defendants argue that plaintiffs cannot satisfy the

two prongs for redressability, because an “unbounded

declaration” alone will not redress plaintiffs’ injuries,

and declaring an “energy system” unconstitutional

would “functionally declare unconstitutional unspecified

laws, regulations, and policies,” and such a declaration is

therefore not within the power of a federal court. Mot.

at 14.

1.

Substantial Likelihood of Redress

Under the Declaratory Judgment Act, 28 U.S.C.

§§ 2201, et seq., courts can grant declaratory relief in

the first instance and later consider if further relief is

warranted. “In a case of actual controversy within its

jurisdiction, [ ] any court of the United States, upon the

filing of an appropriate pleading, may declare the rights

and other legal relations of any interested party seeking

such declaration, whether or not further relief is or could

be sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be reviewable

as such.” 28 U.S.C. § 2201. “Further necessary or proper

relief based on a declaratory judgment or decree may be

granted, after reasonable notice and hearing, against any

adverse party whose rights have been determined by such

judgment.” 28 U.S.C. § 2202.

56a

Appendix D

The Supreme Court has long recognized that

declaratory judgment actions can provide redressability,

even where relief obtained is a declaratory judgment

alone. See generally Franklin v. Massachusetts, 505 U.S.

788, 803 (1992) and Utah v. Evans, 536 U.S. 452 (2002).

In Franklin and Evans, states objected to the technique

used by the Census Bureau to count people and those

states sued government officials.

In Franklin v. Massachusetts, the Supreme Court

stated that “[f]or purposes of establishing standing,”

it did not need to decide whether injunctive relief was

appropriate where “the injury alleged is likely to be

redressed by declaratory relief,” and the court could

“assume it is substantially likely that the President and

other executive and congressional officials would abide by

an authoritative interpretation of the census statute and

constitutional provision by the District Court.” 505 U.S.

at 803. In Utah v. Evans, the Supreme Court referenced

Franklin, explaining that, in terms of its “standing”

precedent, declaratory relief affects a change in legal

status, and the practical consequence of that change would

“amount to a significant increase in the likelihood that the

plaintiff would obtain relief that directly redresses the

injury suffered.” 536 U.S. 452 (2002).

Other cases recognize the role of declaratory

relief in resolving Constitutional cases. See, e.g.,

Evers v. Dwyer, 358 U.S. 202, 202-04 (1958) (ongoing

governmental enforcement of segregation laws created

actual controversy for declaratory judgment); Powell v.

McCormack, 395 U.S. 486, 499 (1969) (“A court may grant

57a

Appendix D

declaratory relief even though it chooses not to issue an

injunction or mandamus.”).

Finally, the Supreme Court held that, for the purpose

of Article III standing, nominal damages—a form of

declaratory relief—provide the necessary redress for

a completed violation of a legal right, even where the

underlying unlawful conduct had ceased. Uzuegbunam,

592 U.S. 279, ––––, 141 S. Ct. 792, 802. Uzuegbunam

illustrates that when a plaintiff shows a completed

violation of a legal right, as plaintiffs have shown here,

standing survives, even when relief is nominal, trivial,

or partial. As Justice Thomas stated, in the context of

nominal damages, “True, a single dollar often cannot

provide full redress, but the ability to effectuate a partial

remedy satisfies the redressability requirement. 592 U.S.

at ––––, 141 S. Ct. at 801 (quoting Church of Scientology

of Cal. v. United States, 506 U.S. 9, 13 (1992)).

To satisfy redressability under Article III, plaintiffs

need not allege that a declaration alone would solve

their every ill. To plead a justiciable case, a court

need only evaluate “whether the facts alleged, under

all the circumstances, show that there is a substantial

controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant

the issuance of a declaratory judgment.” MedImmune,

Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting

Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

(1941)).

There is nothing in § 2201 preventing a court from

granting declaratory relief even if it is the only relief

58a

Appendix D

awarded. Section 2201 provides that declaratory relief

may be granted “whether or not further relief is or could

be sought.” Id. Under the statute, the relief plaintiffs

seek fits like a glove where plaintiffs’ request declaratory

relief independently of other forms of relief, such as an

injunction. See Steffel v. Thompson, 415 U.S. 452, 475,

(1974) (stating in a different context that “regardless

of whether injunctive relief may be appropriate, federal

declaratory relief is not precluded.”). A declaration that

defendants are violating plaintiffs’ constitutional rights

may be enough to bring about relief by changed conduct.

2.

The Court’s Power to Provide Redress

A s expressed in Marbur y v. Madison: “It is

emphatically the province and duty of the judicial

department to say what the law is.” 5 U.S. at 177. Over

the course of American history, courts have corrected

longstanding, systemic wrongs of political branches that

encroach on the fundamental rights of citizens.

The judiciary has the unique and singular duty to

both declare constitutional rights and prevent political

acts that would curb or violate those rights. Id. at 167. It

is a foundational doctrine that when government conduct

harms American citizens, the judiciary is constitutionally

required to perform its independent role and determine

whether the challenged conduct, not exclusively committed

to any branch by the Constitution, is unconstitutional. Id.

at 176-78.

The Act gives “federal courts competence to make a

declaration of rights.” Pub. Affairs Associates v. Rickover,

59a

Appendix D

369 U.S. 111, 112 (1962). The Supreme Court has found it

“consistent with the statute ... to vest district courts with

discretion in the first instance, because facts bearing on

the usefulness of the declaratory judgment remedy, and

the fitness of the case for resolution, are peculiarly within

their grasp.” MedImmune, 549 U.S. at 136.

A declaratory judgment need not be “unbound”

as defendants assert but may precisely describe and

quantify the government’s obligations. For example, in

the landmark treaty fishing cases, courts declared the

tribes right to take up to 50 percent of the harvestable

quantities of fish. United States v. Washington, 520 F.2d

676, 687 (9th Cir. 1975).

Declaratory judgments are thus firmly sited within

the core competences of the courts in a way that structural

injunctions are not. Declaratory judgments ask courts

to declare actions lawful or unlawful, applying legal

standards to a set of facts. Unlike structural injunctions,

which envision an on-going dialogue between the court

and the parties, the declaratory relief model facilitates

a dialogue between the parties. Following a court’s

declaration of rights, which serves as the baseline below

which a defendant may not fall, the various stakeholders

are left to handle the details. 24

24. See generally Emily Chiang, Reviving the Declaratory

Judgment: A New Path to Structural Reform, 63 Buff. L. Rev.

549 (May 2015) (discussing models of structural reform and

encouraging public interest lawyers to consider declaratory relief

as an effective and uniquely suited tool for structural reform in

the modern age).

60a

Appendix D

From the beginning, the Court has envisioned that the

government defendants would be interested in collectively

developing a remedial plan of their own making—not of the

Court’s making—containing measures that they decide

are appropriate to bring the agencies into constitutional

compliance.

Following a declaratory judgment outlining the

constitutional benchmark, a fact-finding stage often

requires scientific analysis (a proficiency in which

defendants are well-equipped) along with production of

data defendants most likely already possess. To avoid

complex remedial issues from clouding the foundational

task of defining plaintiffs’ basic rights and defendants’

consequent obligations, the Court would bifurcate the case

into a “liability” stage and a “remedy” stage.

The liability stage may allow the Court to specify legal

obligations in a declaratory judgment, while the remedy

stage demands a more innovative judicial role to supervise

the parties in crafting a plan. During the remedy stage,

the Court could invoke the usual standards of deference to

the agency, while the case remains open under its ongoing

jurisdiction so that parties can challenge aspects of the

remedy implementation without bringing a new lawsuit.

One model of supervision involves the appointment

of a special master to handle complex factual issues,

make determinations on recurring issues, and make

recommendations to the court. Consent decrees are used

in many contexts of long-lasting government violations.

Professor Wood points out one notable example in the

61a

Appendix D

environmental context that arose from a treaty fishing

case, United States v. Oregon, handled by Judge Belloni,

U.S. District Court of Oregon. 25 The litigation “culminated

in a consent decree” and the Columbia River Fish

Management Plan (“CRFMP”) became “a model of judicial

administration that gained nationwide acclaim.” 26

The CRFMP established a system of co-management

between nine sovereigns (states, tribes, and the federal

government) managing treaty fisheries in the Columbia

River Basin. See United States v. Oregon, 699 F. Supp.

at 1469 (describing and approving Columbia River Fish

Management Plan). The CRFMP set forth detailed

management criteria for each fishery, established technical

and policy committees, and created a dispute resolution

process that involved the court only as a last resort.

Professor Wood argues that by “allowing the sovereign

parties to identify points of agreement and work out the

details of a remedy using their own administrative and

scientific expertise, the consent decree process can create

an enduring remedy structure to fit complex institutional

and biological circumstances.” 27

Defendants have not shown that plaintiffs’ claim for

declaratory relief falls outside the scope of the Court’s

authority, where “facts bearing on the usefulness of

25. Wood, Eve of Destruction, at 264 (citing United States

v. Oregon, 699 F. Supp. 1456, 1469 (D. Or. 1988) (describing and

approving the CRFMP)).

26. Id.

27. Id.

62a

Appendix D

the declaratory judgment remedy, and the fitness of the

case for resolution, are peculiarly within [its] grasp.”

MedImmune, 549 U.S. at 136. Accordingly, defendants’

motion to dismiss is denied as to this issue.

III. Political Question Doctrine

Defendants maintain that plaintiffs’ claims present

political questions over which the Court lacks jurisdiction.

Mot. at 12-19. In defendants’ view, plaintiffs ask the

Court to “review and assess the entirety of Congress’s

and the Executive Branch’s programs and regulatory

decisions relating to climate change and then to pass

on the comprehensive constitutionality of all of those

policies, programs, and inaction in the aggregate.” Id.

at 17. Defendants assert that no federal court “has ever

purported to use the judicial [p]ower to perform such a

sweeping policy review.” Id.

Defendants appear to misunderstand the function of

the Court acting within its prescribed authority to declare

what the law is—it is not the Court which will perform “a

sweeping policy review,” it is defendants.

There is no need for the Court to step outside its

prescribed role to decide this case. At its heart, this

lawsuit asks the Court to determine whether defendants

have violated plaintiffs’ constitutional rights. That question

is squarely within the purview of the judiciary. See INS v.

Chadha, 462 U.S. 919, 941 (1983) (the judiciary is bound

to determine whether the political branches have “chosen

a constitutionally permissible means of implementing

63a

Appendix D

[their] power”); Jewel v. Nat’l Sec. Agency, 673 F.3d 902,

912 (9th Cir. 2011) (although lawsuit challenging federal

agencies’ surveillance practices “strikes at the heart of a

major public policy controversy,” claims were justiciable

because they were “straightforward claims of statutory

and constitutional rights, not political questions.”).

The Court previously analyzed whether plaintiffs’

claims presented a political question under Baker v. Carr,

369 U.S. 186 (1962) and adopts that analysis here. See

Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42

(D. Or. 2016) rev’d and remanded on other grounds, 947

F.3d 1159 (9th Cir. 2020). The Ninth Circuit explicitly

stated that it did not find that plaintiffs had presented a

political question. Juliana, 947 F.3d at 1174 n.9 (“Contrary

to the dissent, we do not find this to be a political question,

although that doctrine’s factors often overlap with

redressability concerns”).

Here the Constitution entrusts defendants with

the power to oversee departments and agencies in the

executive branch in their administration of the broad

range of laws committed to their implementation. Mot. at

18. Speculation about the remedial stage does not support

dismissal. Baker, 369 U.S. at 198 (“Beyond noting that we

have no cause at this stage to doubt the District Court will

be able to fashion relief if violations of constitutional rights

are found, it is improper now to consider what remedy

would be most appropriate if appellants prevail at trial.”).

Because the Court finds that under Baker, the political

question doctrine does not impede plaintiffs’ claims,

defendants’ motion to dismiss is denied on this issue.

64a

Appendix D

IV. First Claim for Relief – Due Process Clause of the

Fifth Amendment

Plaintiffs allege that the Due Process Clause of

the Fifth Amendment recognizes and preserves the

fundamental right of citizens to be free from government

actions that harm “life, liberty, and property.” SAC

¶ 278. Plaintiffs maintain that these “inherent and

inalienable rights” reflect the basic societal contract of

the Constitution to protect citizens and “posterity”—

future generations—from government infringement upon

basic freedoms and basic rights. Id. Plaintiffs state that

defendants’ affirmative aggregate acts have been and are

infringing on plaintiffs’ liberties, by knowingly creating

a destabilized climate system that is causing irreversible

harm.

Defendants challenge plaintiffs’ due process claims

on two grounds. First, they assert any challenge to

defendants’ affirmative actions (i.e., leasing land, issuing

permits) cannot proceed because plaintiffs have failed

to identify infringement of a fundamental right or

discrimination against a suspect class of persons.

Second, they argue plaintiffs cannot challenge

defendants’ inaction (i.e., failure to prevent third parties

from emitting CO 2 at dangerous levels). Defendants

maintain that the Constitution “does not impose an

affirmative duty to protect individuals, and plaintiffs have

failed to allege a cognizable claim under the “state-created

danger” exception to that rule. Mot. at 21.

65a

Appendix D

Defendants state that the Supreme Court has

repeatedly instructed courts considering novel due

process claims to “exercise the utmost care whenever

... asked to break new ground in this field, ... lest the

liberty protected by the Due Process Clause be subtly

transformed” into judicial policy preferences. Id. at 1920 (quoting Washington v. Glucksberg, 521 U.S. 702, 720

(1997)). Defendants maintain that plaintiffs’ request to

recognize an implied fundamental right to a stable climate

system, SAC ¶ 304, “contradicts that directive, because

such a purported right is without basis in the Nation’s

history or tradition.” Mot. at 20.

A.

Affirmative Government Action and Due

Process

The Due Process Clause of the Fifth Amendment

to the United States Constitution bars the federal

government from depriving a person of “life, liberty, or

property” without due process of law. U.S. Const. amend.

V.

When a plaintiff challenges affirmative government

action under the Due Process Clause, the threshold

inquiry is the applicable level of judicial scrutiny. Witt v.

Dep’t of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008).

The default level of scrutiny is rational basis, which

requires a reviewing court to uphold the challenged

governmental action so long as it “implements a rational

means of achieving a legitimate governmental end[.]”

Kim v. United States, 121 F.3d 1269, 1273 (9th Cir.

1997) (quotation marks omitted). When the government

66a

Appendix D

infringes on a “fundamental right,” however, a reviewing

court applies strict scrutiny. Witt, 527 F.3d at 817.

Substantive due process “forbids the government to

infringe certain fundamental liberty interests at all, no

matter what process is provided, unless the infringement

is narrowly tailored to serve a compelling state interest.”

Reno v. Flores, 507 U.S. 292, 302, (1993).

It appears undisputed by plaintiffs, and in any event

is clear to this Court, that defendants’ affirmative actions

would survive rational basis review. Resolution of this

part of the motion to dismiss therefore hinges on whether

plaintiffs have alleged infringement of a fundamental

right.

Fundamental liberty rights include both rights

enumerated elsewhere in the Constitution and rights and

liberties which are either (1) “deeply rooted in this Nation’s

history and tradition” or (2) “fundamental to our scheme

of ordered liberty[.]” McDonald v. City of Chicago, 561

U.S. 742, 767 (2010) (internal citations, quotations, and

emphasis omitted). Seemingly “new” fundamental rights

are not out of bounds. When the Supreme Court broke

new legal ground by recognizing a constitutional right to

same-sex marriage, Justice Kennedy wrote that

The nature of injustice is that we may not

always see it in our own times. The generations

that wrote and ratified the Bill of Rights ... did

not presume to know the extent of freedom

in all its dimensions, and so they entrusted to

future generations a charter protecting the

67a

Appendix D

right of all persons to enjoy liberty as we learn

its meaning. When new insight reveals discord

between the Constitutions central protections

and a received legal stricture, a claim to liberty

must be addressed.

Obergefell v. Hodges, 576 U.S. 644, 664 (2015). Thus,

“[t]he identification and protection of fundamental rights

is an enduring part of the judicial duty to interpret the

Constitution ... [that] has not been reduced to any formula.”

Id. at 663-64 (citation and quotation marks omitted). In

determining whether a right is fundamental, courts must

exercise “reasoned judgment,” keeping in mind that

“[h]istory and tradition guide and discipline this inquiry

but do not set its outer boundaries.” Id. at 664. The

genius of the Constitution is that its text allows “future

generations [to] protect ... the right of all persons to enjoy

liberty as we learn its meaning.” Id.

Exercising “reasoned judgment,” id., the Court finds

that the right to a climate system that can sustain human

life is fundamental to a free and ordered society.

Defendants contend plaintiffs are asserting a right to

be free from pollution or climate change, and that courts

have consistently rejected attempts to define such rights

as fundamental. Mot. at 20. Defendants mischaracterize

the right plaintiffs assert. Plaintiffs do not object to the

government’s role in producing any pollution or in causing

any climate change; they assert the government has caused

pollution and climate change on a catastrophic level, and

that if the government’s actions continue unchecked, they

68a

Appendix D

will permanently and irreversibly damage plaintiffs’

property, their economic livelihood, their recreational

opportunities, their health, and ultimately their (and their

children’s) ability to live.

In this opinion, this Court simply holds that where

a complaint alleges governmental action is affirmatively

and substantially damaging the climate system in a way

that will cause human deaths, shorten human lifespans,

damage property, threaten human food sources, and

dramatically alter the planets ecosystem, it states a claim

for a due process violation. To hold otherwise would be

to say that the Constitution affords no protection against

a government’s knowing decision to poison the air its

citizens breathe or the water its citizens drink.

How can the judiciary uphold the Constitution’s

guarantee that the government shall not deprive its

citizens of life without due process, while also upholding

government “actions that could leave [future generations]

a world with an environment on the brink of ruin and no

mechanism to assert their rights.” Aji P. v. State, 198

Wash. 2d 1025, 497 P.3d 350, 351 (2021) (Gonzalez, C.J.)

(dissenting). We cannot vow to uphold the Constitution’s

protection of a God-given right to life, and at the same

time, exercise “judicial restraint” by telling plaintiffs

that “life” cannot possibly include the right to be free

from knowing government destruction of their ability

to breathe, to drink, or to live. “It cannot be presumed

that any clause in the [C]onstitution is intended to be

without effect.” Marbury, 5 U.S. at 174. Plaintiffs have

adequately alleged infringement of a fundamental right

and defendants’ motion to dismiss is denied on this issue.

69a

Appendix D

B. Government Inaction Under the Due Process

Clause

Plaintiffs allege that “[a]cting with full appreciation

of the consequences of their acts, defendants knowingly

caused, and continue to cause, dangerous interference

with our atmosphere and climate system.” SAC ¶ 280.

They allege this danger stems, “in substantial part, [from]

[d]efendants’ historic and continuing permitting, authorizing,

and subsidizing of fossil fuel extraction, production,

transportation, and utilization.” Id. ¶ 279. Plaintiffs allege

defendants acted “with full appreciation” of the consequences

of their acts. Id. ¶¶ 278–79. Plaintiffs challenge defendants’

failure to limit third-party CO2 emissions under the danger

creation exception stated in DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189 (1989).

The Due Process Clause imposes no duty on the

government to protect persons from harm inflicted by

third parties that would violate due process if inflicted by

the government. Id. at 196; accord Patel v. Kent Sch. Dist.,

648 F.3d 965, 971 (9th Cir. 2011). As a general matter:

[The Due Process Clause] is phrased as a

limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety

and security. It forbids the State itself to deprive

individuals of life, liberty, or property without

“due process of law,” but its language cannot

fairly be extended to impose an affirmative

obligation on the State to ensure that those

interests do not come to harm through other

means.

70a

Appendix D

DeShaney, 489 U.S. at 194-95. The Ninth Circuit

recognizes two narrow exceptions to the no-duty-toprotect rule from DeShaney: (1) the “special-relationship”

exception, which applies to individuals involuntarily

placed in state custody; and (2) the state-created danger

exception. Murguia v. Langdon, 61 F.4th 1096, 1106 (9th

Cir. 2023).

In the Ninth Circuit, a plaintiff challenging government

inaction on a danger creation theory must first show the

“state actor create[d] or expose[d] an individual to a

danger which he or she would not have otherwise faced.”

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th

Cir. 2006). The state action must place the plaintiff “in

a worse position than that in which he would have been

had the state not acted at all.” Pauluk v. Savage, 836 F.3d

1117, 1125 (9th Cir. 2016) (quotation marks omitted and

alterations normalized).

Second, the plaintiff must show the “state actor ...

recognize[d]” the unreasonable risks to the plaintiff and

“actually intend[ed] to expose the plaintiff to such risks

without regard to the consequences to the plaintiff.”

Campbell v. Wash. Dep’t of Soc. & Health Servs., 671

F.3d 837, 846 (9th Cir. 2011) (brackets and quotation

marks omitted). The defendant must have acted with

“[d]eliberate indifference,” which “requires a culpable

mental state more than gross negligence.” Pauluk, 836

F.3d at 1125 (quotation marks omitted).

Defendants assert that applying the DeShaney

exception to the circumstances of this case would cause

71a

Appendix D

the exception to swallow the rule, arguing that “[e]very

instance” in which the Ninth Circuit has “permitted a

state-created danger theory to proceed has [also] involved

an act by a government official that created an obvious,

immediate, and particularized danger to a specific person

known to that official.” Mot. at 22; Pauluk, 836 F.3d at

1129-30 (Murguia, J., concurring in part and dissenting

in part) (internal quotation marks omitted). Defendants

assert that plaintiffs fail to identify immediate harm to

their personal security or bodily integrity and identify no

government actions or actors that put them in danger—

only general degradation of the climate, without the

immediate, direct, physical, and personal harms at issue

in the above referenced cases. Mot. at 20.

Plaintiffs’ allegations include “[harm to] plaintiffs’

dignity, including their capacity to provide for their basic

human needs, safely raise families, practice their religious

and spiritual beliefs, maintain their bodily integrity, and

lead lives with access to clean air, water, shelter, and food.”

SAC ¶ 283. In the face of these risks, plaintiffs allege

defendants “have had longstanding, actual knowledge of

the serious risks of harm and have failed to take necessary

steps to address and ameliorate the known, serious risk

to which they have exposed [p]laintiffs.” Id. ¶ 285.

Accepting the allegations of the complaint as true,

plaintiffs have adequately alleged a danger creation claim.

Defendants’ arguments do not reflect that DeShaney

imposes rigorous proof requirements. A plaintiff asserting

a danger-creation due process claim must show (1) the

government’s acts created the danger to the plaintiff; (2)

72a

Appendix D

the government knew its acts caused that danger; and (3)

the government with deliberate indifference failed to act

to prevent the alleged harm. These stringent standards

are sufficient safeguards against the flood of litigation

concerns raised by defendants.

At the motion-to-dismiss stage, the Court accepts the

factual allegations in the complaint as true. Plaintiffs have

alleged that defendants helped create the current climate

crisis, that defendants acted with full knowledge of the

consequences of their actions, and that defendants have

failed to correct or mitigate the harms they helped create

in deliberate indifference to the injuries caused by climate

change. Plaintiffs may therefore proceed with their

substantive due process challenge to defendants’ failure

to adequately regulate CO2 emissions and defendants’

motion to dismiss is denied as to this issue.

V. Second Claim for Relief: Equal Protection Under

the Fifth Amendment

Plaintiffs allege that both unborn members of “future

generations” and minor children who cannot vote are a

suspect classification. SAC ¶¶ 290-301. Plaintiffs state

that, for purposes of this action, they should be treated as

protected classes because many harmful effects caused

by the acts of defendants will occur again. Id. ¶ 297.

Plaintiffs maintain that the Court should determine they

must be treated as protected classes, and federal laws and

actions that disproportionately discriminate against and

endanger them must be invalidated. Id.

73a

Appendix D

Defendants assert that “[n]one of the government

actions that [p]laintiffs complain of classify or affect

youth or posterity any differently than they affect other

persons.” Mot. at 29. While plaintiffs’ allegations are to

the contrary, asserting that future generations will be

decidedly more effected by climate change, defendants

assert that their actions furthering fossil fuel combustion

survive rational basis review, because plaintiffs cannot

allege that there is no conceivable set of facts that could

provide a rational basis for defendants’ actions. Id.

Both the Supreme Court and the Ninth Circuit

have held that age is not a suspect class. City of Dallas

v. Stanglin, 490 U.S. 19, 25 (1989); United States v.

Flores-Villar, 536 F.3d 990, 998 (9th Cir. 2008). Stanglin

and Flores-Villar both applied rational basis review to

governmental action that discriminated against teenagers

of a similar age to plaintiffs here. In both cases, that

discrimination was found to be permissible if it had a

rational basis.

Even if plaintiffs’ suspect-class argument were not

foreclosed by precedent, the Court would not be persuaded

to break new ground in this area. See Cunningham v.

Beavers, 858 F.2d 269, 273 (5th Cir. 1988) (“No cases

have ever held, and we decline to hold, that children are

a suspect class.”).

Accordingly, defendants’ motion to dismiss plaintiffs’

equal protection claim based on plaintiffs’ constituting a

suspect class is granted.

74a

Appendix D

VI. Third Claim for Relief: Unenumerated Rights

Under the Ninth Amendment

Plaintiffs’ third claim for relief, which is pleaded

as a freestanding claim under the Ninth Amendment,

alleges that the Nation’s founders intended that the

federal government would have both the authority and the

responsibility to be a steward of our country’s essential

natural resources. SAC ¶ 303. This stewardship, plaintiffs

assert, is clear from the delegation of powers to manage

lands and the conveyed authority to address major

challenges facing our nation. Id. Plaintiffs allege that

among the “implicit liberties protected from government

intrusion by the Ninth Amendment” is the right to

be “sustained by our country’s vital natural systems,

including our climate system.” Id.

Defendants assert that the Ninth Amendment has

never been recognized as independently securing any

constitutional right, and that this claim must be dismissed.

Mot. at 21; Strandberg v. City of Helena, 791 F.2d 744, 748

(9th Cir. 1986).

Defendants are correct. Plaintiffs’ Ninth Amendment

claim is not viable. Id. Defendants’ motion to dismiss

plaintiffs’ third claim for relief is granted.

VII. Fourth Claim for Relief: Rights Under Public

Trust Doctrine

Plaintiffs’ public trust claim arises from the particular

application of the public trust doctrine to essential natural

75a

Appendix D

resources. The complaint alleges that the overarching

public trust resource is our country’s life-sustaining

climate system, which encompasses our atmosphere,

waters, oceans, and biosphere. SAC ¶ 308. Plaintiffs

assert that defendants must take affirmative steps to

protect those trust resources. Id. As sovereign trustees,

plaintiffs contend that defendants have a duty to refrain

from “substantial impairment” of these essential natural

resources. Id. ¶ 309. The affirmative aggregate acts of

defendants, in plaintiffs’ view, in fossil fuel production and

consumption have “unconstitutionally caused, and continue

to cause, substantial impairment to the essential public

trust resources.” Id.

Plaintiffs allege that defendants have failed in their

duty of care to safeguard plaintiffs’ interest as the present

and future beneficiaries of the public trust, and that such

an abdication of duty abrogates the ability of succeeding

members of the Executive Branch and Congress to provide

for the survival and welfare of our citizens and to promote

the endurance of our nation. Id.

Defendants assert that plaintiffs’ fourth claim for

relief, asserting public trust claims, should be dismissed

for two independent reasons. Mot. at 24. First, any

public trust doctrine is a creature of state law that

applies narrowly and exclusively to particular types of

state-owned property not at issue here. Id.; U.S. Const.

art. IV, § 3, cl. 2 (“The Congress shall have Power to

dispose of and make all needful Rules and Regulations

respecting the Territory or other Property belonging

to the United States.”). Defendants contend there is no

76a

Appendix D

basis for plaintiffs’ public trust claim against the federal

government under federal law. Second, the “climate

system” or atmosphere is not within any conceivable

federal public trust. Id.

The Court has expended innumerable hours in

research and analysis of plaintiffs’ public trust claim and,

in prior orders, determined that plaintiffs have alleged

violations of the public trust doctrine in connection with

the territorial sea. See Juliana v. United States, 217 F.

Supp. 3d 1224, 1255 (D. Or. 2016), rev’d and remanded

on other grounds, 947 F.3d 1159 (9th Cir. 2020). Because

the Ninth Circuit did not reach the merits of plaintiffs’

claims, the Court incorporates its analysis and legal

conclusions, as stated in Juliana, 217 F. Supp at 1255-61

(finding that plaintiffs’ alleged injuries relate to the effects

of ocean acidification and rising ocean temperatures, thus

pleadings adequately alleged harm to public trust assets;

the public trust doctrine applies to the federal government;

the federal government, like the states, holds public assets,

including the territorial seas, in trust for the people;

environmental statutes have not displaced the venerable

public trust doctrine; and plaintiffs’ claims rest “directly

on the Due Process Clause of the Fifth Amendment and

are enforceable against the federal government.”).

Accordingly, the Court finds that plaintiffs have

stated a claim under a purported public trust doctrine.

Defendants’ motion to dismiss plaintiffs’ fourth claim for

relief is denied.

77a

Appendix D

VIII. Action Under Administrative Procedure Act

Defendants argue that plaintiffs needed to bring their

claims under the Administrative Procedure Act (“APA”)

and failed to do so. Mot. at 32.

The Court finds that the APA does not govern

plaintiffs’ claims, and that, as a result, plaintiffs’ failure to

state a claim under the APA is not a ground for dismissing

this action. The Ninth Circuit found that “[w]hatever

the merits of the plaintiffs’ claims, they may proceed

independently of the review procedures mandated by the

APA.” Juliana, 947 F.3d at 1167-68. Defendants’ motion to

dismiss is denied as to this issue. Defendants reserve their

right to disagree with the Ninth Circuit’s determination

on this point but concede that the Ninth Circuit’s decision

governs, and respectfully preserve their arguments on

the applicability of the APA for potential further review.

CONCLUSION

Other courts across the United States have noted

that “[w]ith each year, the impacts of climate change

amplify and the chances to mitigate dwindle.” Matter of

Hawai‘i Elec. Light Co., Inc., 152 Haw. 352, 359 (2023). The

judicial branch of government can no longer “abdicat[e]

responsibility to apply the rule of law.” Id. at 365 (Wilson,

J., concurring). For the reasons explained, Defendants’

motion to dismiss the second amended complaint, ECF

No. 547, is GRANTED in part and DENIED in part.

The Court also DENIES defendants’ request to certify

for interlocutory review this opinion and order; DENIES

78a

Appendix D

defendants’ motion for an order certifying its prior order,

ECF No. 540, for interlocutory appeal, ECF No. 551;

and DENIES defendants’ motion to stay litigation, ECF

No. 552. The Court GRANTS plaintiffs’ motion to set

a pretrial conference, ECF No. 543, and ORDERS the

parties to confer and contact the Court to schedule a

telephonic status conference to discuss next steps in this

case.

It is so ORDERED on this day, December 29, 2023.

79a

Appendix EE

APPENDIX

2023 WL 3750334

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF OREGON, EUGENE DIVISION

------------------Civ. No. 6:15-cv-01517-AA

KELSEY CASCADIA ROSE JULIANA, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

------------------Signed:

June 1, 2023

------------------OPINION AND ORDER

------------------AIKEN, District Judge:

In this civil rights action, plaintiffs—a group of young

people between the ages of eight and nineteen when

this lawsuit was filed and “future generations” through

their guardian Dr. James Hansen—allege injury from

the devastation of climate change and contend that the

Constitution guarantees the right to a stable climate

system capable of sustaining human life. Plaintiffs

80a

Appendix E

maintain that federal defendants have continued to

permit, authorize, and subsidize fossil fuel extraction and

consumption, despite knowledge that those actions cause

catastrophic global warming. This case returns to this

Court on remand from the Ninth Circuit Court of Appeals,

where plaintiffs demonstrated their “injury in fact” was

“fairly traceable” to federal defendants’ actions—two

of three requirements necessary to establish standing

under Article III. However, the Ninth Circuit reversed

with instructions to dismiss plaintiffs’ case, holding that

plaintiffs failed to demonstrate “redressability”—the

third, final requirement to establish Article III standing.

The Ninth Circuit determined that plaintiffs did not

“surmount the remaining hurdle” to prove that the relief

they seek is within the power of an Article III court to

provide. Juliana v. United States, 947 F.3d 1159, 1171 (9th

Cir. 2020). After that court’s decision, plaintiffs moved to

amend, notifying this Court of an intervening change in

controlling law, Uzuegbunam v. Preczewski, — U.S. —,

141 S. Ct. 792, 209 L.Ed.2d 94 (2021), asserting abrogation

of the Ninth Circuit’s ruling on redressability. Now,

plaintiffs contend that permitting amendment will allow

plaintiffs to clear the hurdle the Ninth Circuit identified,

so that the case may proceed to a decision on the merits.

For the reasons explained, this Court grants plaintiffs’

motion for leave to file a second amended complaint. (Doc.

462).

BACKGROUND

In August 2015, plaintiffs brought this action asserting

that the federal government has known for decades that

81a

Appendix E

carbon dioxide pollution was causing catastrophic climate

change and that large-scale emission reduction was

necessary to protect plaintiffs’ constitutional right to a

climate system capable of sustaining human life. (Doc. 7

at 51). As the Ninth Circuit recognized, plaintiffs provided

compelling evidence, largely undisputed by federal

defendants, that “leaves little basis for denying that

climate change is occurring at an increasingly rapid pace.”

Juliana, 947 F.3d at 1166. The substantial evidentiary

record supports that since the dawn of the Industrial

Age, atmospheric carbon dioxide has “skyrocketed to

levels not seen for almost three million years,” with an

astonishingly rapid increase in the last forty years. Id.

at 1166. The Ninth Circuit summarized what plaintiffs’

expert evidence establishes: that this unprecedented rise

stems from fossil fuel combustion and will “wreak havoc

on the Earth’s climate if unchecked.” Id. The problem is

approaching “the point of no return,” the court stated,

finding that the record conclusively demonstrated that

the federal government has long understood the risks of

fossil fuel use. See id. (cataloguing, as early as 1965, urgent

warnings and reports from government officials imploring

swift nationwide action to reduce carbon emissions before

it was too late).

In their first amended complaint, filed in the District

Court for the District of Oregon, plaintiffs alleged

violations of their substantive rights under the Due

Process Clause of the Fifth Amendment; the Fifth

Amendment right to equal protection of the law; the

Ninth Amendment; and the public trust doctrine. (Doc.

7). Plaintiffs also sought several forms of declaratory

82a

Appendix E

relief and an injunction ordering federal defendants to

implement a plan to “phase out fossil fuel emissions and

draw down excess atmospheric [carbon dioxide].” Id. at

94-95.

Federal defendants moved to dismiss for lack of

standing, failure to state a cognizable constitutional claim,

and failure to state a claim on a public trust theory. (Doc.

27). Adopting the findings and recommendation of Federal

Magistrate Judge Thomas Coffin, this Court denied

federal defendants’ motion, concluding that plaintiffs

had standing to sue, raised justiciable questions, and had

stated a claim for infringement of a Fifth Amendment due

process right:

In this opinion, this Court simply holds that

where a complaint alleges governmental action

is affirmatively and substantially damaging

the climate system in a way that will cause

human deaths, shorten human lifespans, result

in widespread damage to property, threaten

human food sources, and dramatically alter

the planet’s ecosystem, it states a claim for

a due process violation[.] To hold otherwise

would be to say that the Constitution affords

no protection against a government’s knowing

decision to poison the air its citizens breathe

or the water its citizens drink. Plaintiffs

have adequately alleged infringement of a

fundamental right.

Juliana v. United States, 217 F. Supp. 3d 1224, 1250 (D. Or.

2016), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).

83a

Appendix E

At that stage of litigation, this Court also determined

that plaintiffs had stated a viable due process claim arising

from federal defendants’ failure to regulate third-party

emissions and had stated a public trust claim grounded in

the Fifth and the Ninth Amendments. Id. at 1252, 1259.

Federal defendants moved to certify to the Ninth

Circuit for interlocutory appeal 1 this Court’s order

denying federal defendants’ motion to dismiss. Doc.

120. This Court denied the motion to certify. (Doc. 172).

Federal defendants petitioned the Ninth Circuit for

Writ of Mandamus, contending that this Court’s opinion

and order denying their motion to dismiss was based

on clear error. (Doc. 177). The Ninth Circuit denied the

petition, concluding mandamus relief was unwarranted

at that stage of litigation, when plaintiffs’ claims could

be “narrowed” in further proceedings. See In re United

States, 884 F.3d 830, 833 (9th Cir. 2018).

Federal defendants then filed several motions so

aimed at narrowing plaintiffs’ claims, including motions

for judgment on the pleadings, doc. 195; a protective order

barring discovery, doc. 196; and for summary judgment,

doc. 207. This Court denied defendants’ motion for a

protective order. (Doc. 212). But this Court granted in

1. A request for permissive interlocutory appeal is governed

by 28 U.S.C. § 1292(b), which permits a district court to certify

an interlocutory order for immediate appeal if the court is of the

opinion that such order: (1) involves a controlling question of law;

(2) as to which there is substantial ground for difference of opinion;

and (3) that an immediate appeal from the order may materially

advance the ultimate termination of the litigation.

84a

Appendix E

part and denied in part federal defendants’ motions for

judgment on the pleadings and for summary judgment,

dismissing plaintiffs’ Ninth Amendment claim, dismissing

the President as a defendant, and narrowing plaintiffs’

equal protection claim to a fundamental rights theory.

Juliana v. United States, 339 F. Supp. 3d 1062 1103 (D. Or.

2018), rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020).

Federal defendants unsuccessfully petitioned for

mandamus in the Ninth Circuit and twice sought, and

were twice denied, a stay of proceedings by the United

States Supreme Court. Ultimately, the Ninth Circuit, on

November 8, 2018, issued an order inviting this Court

to certify for interlocutory review its orders on federal

defendants’ dispositive motions. United States v. U.S.

Dist. Court for the Dist. of Or., No. 18-73014. Shortly

thereafter, the Ninth Circuit granted federal defendants’

petition to appeal.

On interlocutory appeal of this Court’s certified

orders denying federal defendants’ motions for dismissal,

judgment on the pleadings, and summary judgment, the

Ninth Circuit agreed with this Court’s determination

that plaintiffs had presented adequate evidence at the

pre-trial stage to show particularized, concrete injuries to

legally protected interests. That court recounted evidence

that one plaintiff was “forced to leave her home because

of water scarcity, separating her from relatives on the

Navajo Reservation[,]” and another “had to evacuate

his coastal home multiple times because of flooding.”

Id. at 1168. The Ninth Circuit also determined that this

Court correctly found plaintiffs had presented sufficient

85a

Appendix E

evidence that their alleged injuries are fairly traceable to

federal defendants’ conduct, citing among its findings that

plaintiffs’ injuries “are caused by carbon emissions from

fossil fuel production, extraction, and transportation” and

that federal subsidies “have increased those emissions,”

with about 25% of fossil fuels extracted in the United

States “coming from federal waters and lands,” an activity

requiring federal government authorization. Id. at 1169.

The court held, however reluctantly, that plaintiffs failed

to show their alleged injuries were substantially likely to

be redressed by any order from an Article III court and

that plaintiffs therefore lacked standing to bring suit. Id.

at 1171.

In so holding, the court stated, “There is much to

recommend the adoption of a comprehensive scheme to

decrease fossil fuel emissions and combat climate change,

both as a policy matter in general and a matter of national

survival in particular,” however, such was “beyond the

power of an Article III court to order, design, supervise,

or implement.” Id. at 1171. Ultimately, based on its

redressability holding alone, the Ninth Circuit reversed

the certified orders of this Court and remanded the

case with instructions to dismiss for lack of Article III

standing. Id. at 1175.

After the Ninth Circuit issued its interlocutory

opinion, plaintiffs notified this Court of what they

identified as an intervening case in the United States

Supreme Court which held that the award of nominal

damages was “a form of declaratory relief in a legal

system with no general declaratory judgment act” and

86a

Appendix E

that a “request for nominal damages alone satisfies the

redressability element of standing where a plaintiff ’s

claim is based on a completed violation of a legal right.”

Uzuegbunam, 141 S. Ct. at 798, 802. Writing for the

majority, Justice Thomas explained that, even where a

single dollar cannot provide full redress, the ability “to

effectuate a partial remedy” satisfies the redressability

requirement. Id. at 801 (quoting Church of Scientology

of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121

L.Ed.2d 313 (1992)) (emphasis added).

Plaintiffs contend that the Supreme Court’s holding

constitutes—as Chief Justice Roberts noted in his

dissent—an “expansion of the judicial power” under

Article III. Uzuegbunam, 141 S. Ct. at 806 (Roberts, C.

J. dissenting). According to plaintiffs, the Ninth Circuit

was skeptical, but did not decide whether declaratory

relief alone would satisfy redressability, where such relief

only partially redresses injury. Plaintiffs assert that

they should be granted leave to amend to replead factual

allegations demonstrating that relief under the under the

Declaratory Judgment Act, 28 U.S.C. § 2201, is sufficient to

allege redressability, even where a declaration effectuates

a partial remedy, as stated in Uzuegbunam, which the

Ninth Circuit did not have the chance to consider.

LEGAL STANDARD

Federal Rule of Civil Procedure Rule 15 allows a

party to amend its pleading “with the opposing party’s

written consent or the court’s leave.” The rule instructs

that “[t]he court should freely give leave when justice

87a

Appendix E

so requires.” Fed. R. Civ. P. 15(a)(2). Trial courts have

discretion in deciding whether to grant leave to amend, but

“[i]n exercising this discretion, a court must be guided by

the underlying purpose of Rule 15 to facilitate decision on

the merits, rather than on the pleadings or technicalities.”

United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)

(citing Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2

L.Ed.2d 80 (1957)). The judicial policy of Rule 15 favoring

amendments should be applied with “extreme liberality.”

Id. (citing Rosenberg Brothers & Co. v. Arnold, 283 F.2d

406 (9th Cir. 1960)) (per curiam). Leave to amend should be

granted freely “even if a plaintiff ’s claims have previously

been dismissed.” Hampton v. Steen, No. 2:12-CV-00470AA, 2017 WL 11573592, at *2 (D. Or. Nov. 13, 2017) (citing

Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th

Cir. 2002)).

Courts consider four factors when determining

whether leave to amend should be granted: 1) prejudice to

the opposing party; 2) bad faith; 3) futility of amendment;

and 4) undue delay. Foman v. Davis, 371 U.S. 178, 182, 83

S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Eminence Cap.,

LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

Not all factors are equal and only when prejudice or bad

faith is shown should leave to amend be denied. Howey

v. United States, 481 F.2d 1187, 1190-91 (9th Cir. 1973).

Leave to amend should not be denied based only on delay,

id., particularly when that delay is not caused by the party

seeking amendment.

A court may deny leave to amend if the proposed

amendment is futile or would be subject to dismissal.

88a

Appendix E

Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002,

1008 (9th Cir. 2011). An amendment is “futile” if the

complaint could not be saved by amendment. United States

v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011).

The court must determine whether the deficiencies in the

pleadings “can be cured with additional allegations that

are consistent with the challenged pleading and that do

not contradict the allegations in the original complaint.”

Id. (quotation marks omitted). A party should be allowed

to test his claim on the merits rather than on a motion to

amend unless it appears beyond doubt that the proposed

amended pleading would be subject to dismissal. Roth v.

Garcia Marquez, 942 F.2d 617, 629 (9th Cir. 1991).

DISCUSSION

I.

Ninth Circuit Mandate Permits Court to Consider

Motion to Amend

In its interlocutory opinion, the Ninth Circuit

remanded the case to this Court with instructions to

dismiss. Plaintiffs maintain that the Ninth Circuit did

not state in its instructions whether dismissal was with or

without leave to amend, and therefore, this Court should

freely grant leave to do so. Federal defendants assert that

this Court must dismiss according to the rule of mandate

and because any amendment would be futile. 2

2. There is no material dispute between the parties whether

plaintiffs’ amendments are in bad faith, prejudicial to defendants,

or unduly delayed. Having considered those factors, this Court

finds that none bar plaintiffs’ request to amend.

89a

Appendix E

Under the “rule of mandate,” a lower court is

unquestionably obligated to “execute the terms of a

mandate.” United States v. Kellington, 217 F.3d 1084,

1092 (9th Cir. 2000). Compliance with the rule of mandate

“preserv[es] the hierarchical structure of the court

system,” Thrasher, 483 F.3d at 982, and thus constitutes

a basic feature of the rule of law in an appellate scheme.

But while “the mandate of an appellate court forecloses

the lower court from reconsidering matters determined

in the appellate court, it ‘leaves to the district court any

issue not expressly or impliedly disposed of on appeal.’”

Nguyen v. United States, 792 F.2d 1500, 1502 (9th Cir.

1986) (quoting Stevens v. F/V Bonnie Doon, 731 F.2d 1433,

1435 (9th Cir. 1984)).

“Absent a mandate which explicitly directs to the

contrary, a district court upon remand can permit the

plaintiff to file additional pleadings. . . . ” San Francisco

Herring Ass’n v. Dep’t of the Interior, 946 F.3d 564, 574

(9th Cir. 2019) (quoting Nguyen, 792 F.2d at 1502; see

also Sierra Club v. Penfold, 857 F.2d 1307, 1312 (9th Cir.

1988)). When mandate in the prior appeal did not expressly

address the possibility of amendment and did not indicate

a clear intent to deny amendment seeking to raise new

issues not decided by the prior appeal, that prior opinion

did not purport “to shut the courthouse doors.” San

Francisco Herring Ass’n, 946 F.3d at 574 (citing Nguyen,

792 F.2d at 1503).

In San Francisco Herring Ass’n, the Ninth Circuit

discussed its issuance of a mandate in a prior appeal,

which vacated the district court’s order entering summary

90a

Appendix E

judgment in the defendants’ favor and directed the

district court to dismiss the complaint. See San Francisco

Herring Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579,

581 (9th Cir. 2017) (vacating judgment and remanding

case with instructions to dismiss for lack of subject matter

jurisdiction). On remand, the district court allowed the

plaintiff to seek leave to file a second amended complaint.

The Ninth Circuit determined the district court correctly

found that the mandate to dismiss did not prevent the

plaintiff from seeking leave to re-plead. San Francisco

Herring Ass’n, 946 F.3d 574. The court reasoned that in

instructing to dismiss, it had been silent on whether the

dismissal should be with or without leave to amend and

did not preclude the plaintiff from filing new allegations.

Id. at 572-574.

Here, this Court does not take lightly its responsibility

under the rule of mandate. Rather, it considers plaintiffs’

new factual allegations under the Declaratory Judgment

Act, and amended request for relief in light of intervening

recent precedent, to be a new issue that, while discussed,

was not decided by the Ninth Circuit in the interlocutory

appeal. Nor did the mandate expressly state that plaintiffs

could not amend to replead their case—particularly where

the opinion found a narrow deficiency with plaintiffs’

pleadings on redressability. This Court therefore does not

interpret the Ninth Circuit’s instructions as mandating it

“to shut the courthouse doors” on plaintiffs’ case where

they present newly amended allegations. San Francisco

Herring Ass’n, 946 F.3d at 574.

91a

Appendix E

II. Amendment is Not Futile

A.

The Interlocutory Opinion

The Ninth Circuit recited the established rule that,

to demonstrate Article III redressability, plaintiffs must

show that the relief they seek is both (1) substantially

likely to redress their injuries; and (2) within the district

court’s power to award. Juliana, 947 F.3d at 1170. Redress

need not be guaranteed, but it must be more than “merely

speculative.” Id. (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Here, applying the above rule, the Ninth Circuit

stated that a declaration alone is not relief “substantially

likely to mitigate [plaintiffs’] asserted concrete injuries.”

Juliana, 947 F.3d at 1170. The court considered whether

partial redress suffices to prove the first redressability

prong, concluding that it likely does not, because even if

plaintiffs obtained the sought relief and federal defendants

ceased promoting fossil fuel, such would only ameliorate,

rather than “solve global climate change.” Id. at 1171.

Even so, the court did not decide that plaintiffs had

failed to prove the first prong of redressability: the

court stated, “[w]e are therefore skeptical that the first

redressability prong is satisfied. But even assuming that

it is, [plaintiffs] do not surmount the remaining hurdle—

establishing that the specific relief they seek is within the

power of an Article III court.” Juliana, 947 F.3d at 1171.

(emphasis added).

92a

Appendix E

In addressing whether plaintiffs had proved the

second prong, the court identified the “specific relief ”

plaintiffs sought was an injunction requiring federal

defendants not only to cease permitting, authorizing, and

subsidizing fossil fuel, but also to prepare a plan, subject

to judicial monitoring, to draw down harmful emissions.

That specific relief, the court determined, was not within

the power of an Article III court to award. Id. The court

explained that for the district court to “order, design,

supervise, or implement” plaintiffs’ requested remedial

plan, any effective plan would require a “host of complex

policy decisions” entrusted under constitutional separation

of powers to the executive and legislative branches. Id.

In essence, the court found plaintiffs’ injuries beyond

redress because, in its view, plaintiffs’ requested relief

requires the district court to evaluate “competing policy

considerations” and supervise implementation over many

years. Id. at 1171-73

Summarizing what the court did—and did not—

identify as the legal defects in plaintiffs’ case, the court

did not decide whether plaintiffs’ requested declaratory

relief failed or satisfied the redressability requirement

for standing, and did not consider that issue under

Uzuegbunam or the Declaratory Judgment Act. Rather,

the court resolved that plaintiffs failed to demonstrate

redressability on grounds that plaintiffs’ requested

remedial and injunctive relief was beyond the power of

an Article III court to provide. The court was also silent

on whether dismissal was to be with or without leave to

amend.

93a

Appendix E

B. Plaintiffs’ Proposed Amendments

Plaintiffs assert that their proposed amendments

cure the defects the Ninth Circuit identified and that

they should be given opportunity to amend. Plaintiffs

explain that the amended allegations demonstrate that

relief under the Declaratory Judgment Act alone would be

substantially likely to provide partial redress of asserted

and ongoing concrete injuries, and that partial redress is

sufficient, even if further relief is later found unavailable.

Plaintiffs also amended their factual allegations

directly linking how a declaratory judgment alone will

redress of plaintiffs’ individual ongoing injuries. (See doc.

514-2 ¶¶ 19-A, 22-A, 30-A, 34-A, 39-A, 43-A, 46-A, 49-A,

52-A, 56-A, 59-A, 62-A, 64-A, 67-A, 70-A, 72-A, 76-A, 80A, 85-A, 88-A, 90-A.). Plaintiffs assert that declaratory

relief is within a court’s Article III power to provide.

Plaintiffs also omitted the “specific relief ” the Ninth

Circuit majority found to be outside Article III authority

to award. Among other deletions, plaintiffs eliminated

their requests for this Court to order federal defendants to

prepare and implement a remedial plan and prepare a list

of U.S. CO2 emissions. Plaintiffs also omitted their request

for this Court to monitor and enforce the remedial plan.

Plaintiffs’ Second Amended Complaint thus requests

this Court to: (1) declare that the United States’ national

energy system violates and continues to violate the Fifth

Amendment of the U.S. Constitution and Plaintiffs’

constitutional rights to substantive due process and equal

protection of the law; (2) enter a judgment declaring the

94a

Appendix E

United States’ national energy system has violated and

continues to violate the public trust doctrine; and (3) enter

a judgment declaring that § 201 of the Energy Policy Act

has violated and continues to violate the Fifth Amendment

of the U.S. Constitution and plaintiffs’ constitutional rights

to substantive due process and equal protection of the law.

While declaratory relief was part of plaintiffs’

prayer in the operative complaint, plaintiffs did not cite

Uzuegbunam—recent authority affirming that partial

declaratory relief satisfies redressability for purposes of

Article III standing. Plaintiffs contend that they should

be granted leave to amend based on the Supreme Court’s

holding that a request for nominal damages alone (a form

of declaratory relief ) satisfies the redressability element

necessary for Article III standing, where the plaintiff ’s

claim is based on a completed violation of a legal right, and

the plaintiff establishes the first two elements of standing.

Uzuegbunam, 141 S. Ct. at 801-02.

C.

Plaintiffs’ A mended Pleadings Satisf y

Redressability

This Court adamantly agrees with the Ninth Circuit

that its ability to provide redress is animated by two

inquiries, one of efficacy and one of power. Juliana, 947

F.3d at 1169. Plaintiffs’ proposed amendments allege that

a declaration under the Declaratory Judgment Act is

substantially likely to remediate their ongoing injuries,

and that such relief is within this Court’s power to award.

95a

Appendix E

1.

Declaratory Relief Alone is Substantially

Likely to Redress Injury

The court can grant declaratory relief in the first

instance and later consider further necessary or proper

relief, if warranted, under the Declaratory Judgment Act.

28 U.S.C. §§ 2201, et seq. “In a case of actual controversy

within its jurisdiction, [ ] any court of the United States,

upon the filing of an appropriate pleading, may declare

the rights and other legal relations of any interested party

seeking such declaration, whether or not further relief is

or could be sought. Any such declaration shall have the

force and effect of a final judgment or decree and shall be

reviewable as such.” 28 U.S.C. § 2201. “Further necessary

or proper relief based on a declaratory judgment or

decree may be granted, after reasonable notice and

hearing, against any adverse party whose rights have

been determined by such judgment.” 28 U.S.C. § 2202.

The Supreme Court has long recognized that

declaratory judgment actions can provide redressability,

even where relief obtained is a declaratory judgment

alone. Well-known cases involve the census, Franklin

v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120

L.Ed.2d 636 (1992), and Utah v. Evans, 536 U.S. 452, 122

S.Ct. 2191, 153 L.Ed.2d 453 (2002).

In each of the census cases, a state objected to the way

the Census Bureau counted people and sued government

officials. In Franklin v. Massachusetts, the Supreme

Court stated, “For purposes of establishing standing,” it

did not need to decide whether injunctive relief against

96a

Appendix E

was appropriate where “the injury alleged is likely to

be redressed by declaratory relief ” and the court could

“assume it is substantially likely that the President and

other executive and congressional officials would abide by

an authoritative interpretation of the census statute and

constitutional provision by the District Court.” 505 U.S.

at 803, 112 S.Ct. 2767.

In Utah v. Evans, the Supreme Court referenced

Franklin, explaining that, in terms of its “standing”

precedent, declaratory relief affects a change in legal

status, and the practical consequence of that change would

“amount to a significant increase in the likelihood that

the plaintiff would obtain relief that directly redresses

the injury suffered.” 536 U.S. 452, 122 S.Ct. 2191, 153

L.Ed.2d 453 (2002).

Similarly, the Supreme Court has determined that

a plaintiff had standing to sue the Nuclear Regulatory

Commission for a declaration that the Price-Anderson Act,

which limited the liability of nuclear power companies,

was unconstitutional. Duke Power Co. v. Carolina Envtl.

Study Grp., Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d

595 (1978).

Other cases recognized the role of declaratory relief

in resolving constitutional cases. See, e.g., Evers v. Dwyer,

358 U.S. 202, 202-04, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958)

(ongoing governmental enforcement of segregation laws

created actual controversy for declaratory judgment);

Powell v. McCormack, 395 U.S. 486, 499, 89 S.Ct. 1944,

23 L.Ed.2d 491 (1969) (“A court may grant declaratory

97a

Appendix E

relief even though it chooses not to issue an injunction or

mandamus.”).

Finally, the Supreme Court held that, for the purpose

of Article III standing, nominal damages—a form of

declaratory relief—provide the necessary redress for

a completed violation of a legal right, even where the

underlying unlawful conduct had ceased. Uzuegbunam, —

U.S. —, 141 S. Ct. 792, 802, 209 L.Ed.2d 94. Uzuegbunam

illustrates that when a plaintiff shows a completed

violation of a legal right, as plaintiffs have shown here,

standing survives, even when relief is nominal or trivial.

Here, this Court notes that, in its determination

of standing, the Ninth Circuit was “skeptical” that

declaratory relief alone would remediate plaintiffs’

injuries, Juliana, 947 F.3d at 1171. The court noted that

even if all plaintiffs’ requests for relief were granted

against federal defendants, such would not solve the

problem of climate change entirely. But for redressability

under Article III standing, plaintiffs need not allege that

a declaration alone would solve their every ill. To plead

a justiciable case, a court need only evaluate “whether

the facts alleged, under all the circumstances, show that

there is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and reality

to warrant the issuance of a declaratory judgment.”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127,

127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (quoting Md. Cas.

Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510,

85 L.Ed. 826 (1941)). There is nothing in § 2201 preventing

a court from granting declaratory relief even if it is the

only relief awarded.

98a

Appendix E

In light of that determination, by pleading a claim

under § 2201, plaintiffs establish that the text of the

statute itself resolves the uncertainty posed by the Ninth

Circuit, given that plaintiffs have established an active

case and controversy showing injury and causation.

Section 2201 also provides that declaratory relief may

be granted “whether or not further relief is or could be

sought.” Id. Under the statute, the relief plaintiffs seek

fits like a glove, where plaintiffs request consideration

of declaratory relief independently of other forms of

relief, such as an injunction. See Steffel v. Thompson,

415 U.S. 452, 475, 94 S.Ct. 1209, 39 L.Ed.2d 505, (1974)

(stating in a different context that “regardless of whether

injunctive relief may be appropriate, federal declaratory

relief is not precluded.”). This Court finds that plaintiffs’

proposed amendments are not futile: a declaration that

federal defendants’ energy policies violate plaintiffs’

constitutional rights would itself be significant relief.

2.

Redress is Within Power of Article III

Courts

It is a foundational doctrine that when government

conduct catastrophically harms American citizens, the

judiciary is constitutionally required to perform its

independent role and determine whether the challenged

conduct, not exclusively committed to any branch by the

Constitution, is unconstitutional. Marbury v. Madison, 5

U.S. (1 Cranch) 137, 176-78, 2 L.Ed. 60 (1803). The judicial

role in cases like this is to apply constitutional law, declare

rights, and declare the government’s responsibilities. No

other branch of government can perform this function

99a

Appendix E

because the “judicial Power” is exclusively in the hands

of Article III courts. U.S. Const. Art. III, § 1. The issue

before this Court now is not to determine what relief,

specifically, is in its power to provide. This Court need

only decide whether plaintiffs’ amendments—alleging that

declaratory relief is within an Article III court’s power

to award—“would be subject to dismissal.” Carrico, 656

F.3d 1002.

The Declaratory Judgment Act authorizes this

Court’s determination in its embrace of both constitutional

and prudential concerns where the text is “deliberately

cast in terms of permissive, rather than mandatory,

authority.” Pub. Serv. Comm’n of Utah v. Wycoff Co., 344

U.S. 237, 250, 73 S.Ct. 236, 97 L.Ed. 291 (1952) (J. Reed,

concurring). The Act gives “federal courts competence to

make a declaration of rights.” Pub. Affairs Associates v.

Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 7 L.Ed.2d 604

(1962). The Supreme Court has found it “consistent with

the statute . . . to vest district courts with discretion in the

first instance, because facts bearing on the usefulness of

the declaratory judgment remedy, and the fitness of the

case for resolution, are peculiarly within their grasp.”

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136,

127 S.Ct. 764, 166 L.Ed.2d 604 (2007).

Here, plaintiffs seek declaratory relief that “the United

States’ national energy system that creates the harmful

conditions described herein has violated and continues to

violate the Fifth Amendment of the U.S. Constitution and

Plaintiffs’ constitutional rights to substantive due process

and equal protection of the law.” (Doc. 514-1 ¶ 1). This relief

100a

Appendix E

is squarely within the constitutional and statutory power

of Article III courts to grant. Such relief would at least

partially, and perhaps wholly, redress plaintiffs’ ongoing

injuries caused by federal defendants’ ongoing policies and

practices. Last, but not least, the declaration that plaintiffs

seek would by itself guide the independent actions of the

other branches of our government and cures the standing

deficiencies identified by the Ninth Circuit. This Court

finds that the complaint can be saved by amendment. See

Corinthian Colleges, 655 F.3d at 995.

CONCLUSION

For the reasons stated above, plaintiffs’ Motion to File

a Second Amended Complaint, doc. 462, is GRANTED.

101a

Appendix FF

APPENDIX

947 F.3d 1159

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

------------------No. 18-36082

K elsey Cascadia Rose Juliana; Xiuhtezcatl Tonatiuh

M., through his Guardian Tamara Roske-Martinez;

A lexander Loznak; Jacob Lebel; Zealand B., through

his Guardian Kimberly Pash-Bell; Avery M., through

her Guardian Holly McRae; Sahara V., through her

Guardian Toa Aguilar; K iran Isaac Oommen; Tia M arie

Hatton; Isaac V., through his Guardian Pamela Vergun;

Miko V., through her Guardian Pamel Vergun; Hazel

V., through her Guardian Margo Van Ummerson; Sophie

K., through her Guardian Dr. James Hansen; Jaime B.,

through her Guardian Jamescita Peshlakai; Journey

Z., through his Guardian Erika Schneider; Victoria B.,

through her Guardian Daisy Calderon; Nathaniel B.,

through his Guardian Sharon Baring; A ji P., through

his Guardian Helaina Piper; Levi D., through his

Guardian Leigh-Ann Draheim; Jayden F., through her

Guardian Cherri Foytlin; Nicholas V., through his

Guardian Marie Venner; Earth Guardians, a nonprofit

organization; Future Generations, through their

Guardian Dr. James Hansen,

Plaintiffs-Appellees,

v.

102a

Appendix F

United States Of A merica; M ary B. Neumayr, in her

capacity as Chairman of Council on Environmental

Quality; Mick Mulvaney, in his official capacity as

Director of the Office of Management and the Budget;

K elvin K. Droegemeir, in his official capacity as

Director of the Office of Science and Technology Policy;

Dan Brouillette, in his official capacity as Secretary

of Energy; U.S. Department of the Interior; David

L. Bernhardt, in his official capacity as Secretary

of Interior; U.S. Department of Transportation;

Elaine L. Chao, in her official capacity as Secretary

of Transportation; United States Department of

Agriculture; Sonny Perdue, in his official capacity as

Secretary of Agriculture; United States Department

of Commerce; Wilbur Ross, in his official capacity as

Secretary of Commerce; United States Department

of Defense; M ark T. Esper, in his official capacity as

Secretary of Defense; United States Department of

State; Michael R. Pompeo, in his official capacity as

Secretary of State; A ndrew Wheeler, in his official

capacity as Administrator of the EPA; Office of the

President of the United States; U.S. Environmental

Protection Agency; U.S. Department of Energy;

Donald J. Trump, in his official capacity as President of

the United States,

Defendants-Appellants.

------------------Filed:

January 17, 2020

-------------------

103a

Appendix F

OPINION

------------------Appeal from the United States District Court for the

District of Oregon, Ann L. Aiken, District Judge,

Presiding, D.C. No. 6:15-cv-01517-AA.

------------------Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit

Judges, and Josephine L. Staton,* District Judge.

Dissent by Judge Staton

HURWITZ, Circuit Judge:

In the mid-1960s, a popular song warned that we were

“on the eve of destruction.”1 The plaintiffs in this case

have presented compelling evidence that climate change

has brought that eve nearer. A substantial evidentiary

record documents that the federal government has long

promoted fossil fuel use despite knowing that it can cause

catastrophic climate change, and that failure to change

existing policy may hasten an environmental apocalypse.

The plaintiffs claim that the government has violated

their constitutional rights, including a claimed right under

* The Honorable Josephine L. Staton, United States District

Judge for the Central District of California, sitting by designation.

1. Barry McGuire, Eve of Destruction, on Eve of Destruction

(Dunhill Records, 1965).

104a

Appendix F

the Due Process Clause of the Fifth Amendment to a

“climate system capable of sustaining human life.” The

central issue before us is whether, even assuming such a

broad constitutional right exists, an Article III court can

provide the plaintiffs the redress they seek—an order

requiring the government to develop a plan to “phase out

fossil fuel emissions and draw down excess atmospheric

CO2.” Reluctantly, we conclude that such relief is beyond

our constitutional power. Rather, the plaintiffs’ impressive

case for redress must be presented to the political

branches of government.

I.

The plaintiffs are twenty-one young citizens, an

environmental organization, and a “representative of

future generations.” Their original complaint named as

defendants the President, the United States, and federal

agencies (collectively, “the government”). The operative

complaint accuses the government of continuing to

“permit, authorize, and subsidize” fossil fuel use despite

long being aware of its risks, thereby causing various

climate-change related injuries to the plaintiffs. Some

plaintiffs claim psychological harm, others impairment

to recreational interests, others exacerbated medical

conditions, and others damage to property. The complaint

asserts violations of: (1) the plaintiffs’ substantive rights

under the Due Process Clause of the Fifth Amendment;

(2) the plaintiffs’ rights under the Fifth Amendment to

equal protection of the law; (3) the plaintiffs’ rights under

the Ninth Amendment; and (4) the public trust doctrine.

The plaintiffs seek declaratory relief and an injunction

105a

Appendix F

ordering the government to implement a plan to “phase out

fossil fuel emissions and draw down excess atmospheric

[carbon dioxide].” 2

The district court denied the government’s motion

to dismiss, concluding that the plaintiffs had standing to

sue, raised justiciable questions, and stated a claim for

infringement of a Fifth Amendment due process right to

a “climate system capable of sustaining human life.” The

court defined that right as one to be free from catastrophic

climate change that “will cause human deaths, shorten

human lifespans, result in widespread damage to property,

threaten human food sources, and dramatically alter the

planet’s ecosystem.” The court also concluded that the

plaintiffs had stated a viable “danger-creation due process

claim” arising from the government’s failure to regulate

third-party emissions. Finally, the court held that the

plaintiffs had stated a public trust claim grounded in the

Fifth and the Ninth Amendments.

The government unsuccessfully sought a writ of

mandamus. In re United States, 884 F.3d 830, 837-38

(9th Cir. 2018). Shortly thereafter, the Supreme Court

denied the government’s motion for a stay of proceedings.

2. The plaintiffs also assert that section 201 of the Energy Policy

Act of 1992, Pub. L. No. 102-486, § 201, 106 Stat. 2776, 2866 (codified

at 15 U.S.C. § 717b(c)), which requires expedited authorization for

certain natural gas imports and exports “without modification or

delay,” is unconstitutional on its face and as applied. The plaintiffs

also challenge DOE/FE Order No. 3041, which authorizes exports

of liquefied natural gas from the proposed Jordan Cove terminal in

Coos Bay, Oregon.

106a

Appendix F

United States v. U.S. Dist. Court for Dist. of Or., 139 S.

Ct. 1, 201 L. Ed. 2d 1112 (2018). Although finding the stay

request “premature,” the Court noted that the “breadth of

respondents’ claims is striking . . . and the justiciability of

those claims presents substantial grounds for difference

of opinion.” Id.

The government then moved for summary judgment

and judgment on the pleadings. The district court granted

summary judgment on the Ninth Amendment claim,

dismissed the President as a defendant, and dismissed the

equal protection claim in part. 3 But the court otherwise

denied the government’s motions, again holding that

the plaintiffs had standing to sue and finding that they

had presented sufficient evidence to survive summary

judgment. The court also rejected the government’s

argument that the plaintiffs’ exclusive remedy was under

the Administrative Procedure Act (“APA”), 5 U.S.C. § 702

et seq.

The district court initially declined the government’s

request to certify those orders for interlocutory appeal.

But, while considering a second mandamus petition from

the government, we invited the district court to revisit

certification, noting the Supreme Court’s justiciability

concerns. United States v. U.S. Dist. Court for the Dist. of

Or., No. 18-73014, Dkt. 3; see In re United States, 139 S. Ct.

452, 453, 202 L. Ed. 2d 344 (2018) (reiterating justiciability

concerns in denying a subsequent stay application from the

3. The court found that age is not a suspect class, but allowed

the equal protection claim to proceed on a fundamental rights theory.

107a

Appendix F

government). The district court then reluctantly certified

the orders denying the motions for interlocutory appeal

under 28 U.S.C. § 1292(b) and stayed the proceedings,

while “stand[ing] by its prior rulings . . . as well as its

belief that this case would be better served by further

factual development at trial.” Juliana v. United States,

No. 6:15-cv-01517-AA, 2018 WL 6303774, at *3 (D. Or.

Nov. 21, 2018). We granted the government’s petition for

permission to appeal.

II.

The plaintiffs have compiled an extensive record,

which at this stage in the litigation we take in the light

most favorable to their claims. See Plumhoff v. Rickard,

572 U.S. 765, 768, 134 S. Ct. 2012, 188 L. Ed. 2d 1056

(2014). The record leaves little basis for denying that

climate change is occurring at an increasingly rapid pace.

It documents that since the dawn of the Industrial Age,

atmospheric carbon dioxide has skyrocketed to levels

not seen for almost three million years. For hund

This text is long and has been trimmed here. Open the source document for the complete record.

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition for Writ of Certiorari — Kelsey Cascadia Rose Juliana, et al., Petitioners v. United States, et al. | Frix