Amicus Curiae Brief — Lingle v. Chevron USA Inc.

No. 04-163 | eect

DEC 3 - 2004

IN THE

OFFICE OF THE CLERK

Supreme Court of the United

LINDA LINGLE, Governor of the State of Hawaii, and MARK

J. BENNETT, Attorney General of the State of Hawaii,

Petitioners,

v.

CHEVRON USA, INC.,

Respondent.

On Writ oF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE STATES OF NEw YORK, CALIFORNIA, ALASKA, ARIZONA,

CoLorRaADO, CONNECTICUT, DELAWARE, IDAHO, ILLINOIS, Iowa,

KENTUCKY, MAINE, MARYLAND, MASSACHUSETTS, MINNESOTA,

Mississippi, MONTANA, New JERSEY, OKLAHOMA, OREGON,

PENNSYLVANIA, RHODE ISLAND, TENNESSEE, UTAH, VERMONT,

WASHINGTON, AND West VIRGINIA, THE COMMONWEALTHS OF

PueRTO Rico AND THE NORTHERN MARIANA ISLANDS, AND THE

TERRITORIES OF AMERICAN SAMOA, GUAM, AND THE VIRGIN ISLANDS,

AS Amici CuRIAE IN SUPPORT OF PETITIONERS

EvioT Spritzer

Attorney General of the

State of New York

CaITLin J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

Joun J. Sipos

Assistant Attorney General

120 Broadway

New York, NY 10271

(212) 416-8016

* Counsel of Record Attorneys for Amici Curiae

(Additional Counsel Listed on Signature Pages)

QUESTIONS PRESENTED

Whether the Just Compensation Clause authorizes a court

to invalidate state economic legislation on its face and

enjoin enforcement of the law on the basis that the

legislation does not substantially advance a legitimate

State interest, without regard to whether the challenged

law diminishes the economic value or usefulness of any

property.

Whether a court, in determining under the Just

Compensation Clause whether state economic legislation

substantially advances a legitimate state interest, should

apply a deferential standard of review equivalent to that

traditionally applied to economic legislation under the

Due Process and Equal Protection Clauses, or may

instead substitute its judgment for that of the legislature

by determining de novo, by a preponderance of the

evidence at trial, whether the legislation will be effective

in achieving its goals.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................... i

TAREE GE CORTGMNED 0 vccccincccusueunene il

TABLE OF CITED AUTHORITIES ............ iv

INTEREST OF THE AMICI CURIAE ........... l

SUMMARY OF THE ARGUMENT ............. 3

I. The Just Compensation Clause Does

Not Require That Generally-Applicable

Legislation “Substantially Advance” A

Legitimate Government Interest .......... 4

A. The “Substantially Advance” Test Does

Not Belong in Regulatory Takings

Jurisprudence Because the Just

Compensation Clause Presupposes the

Legitimacy of Governmental Action .. 4

B. Means-Ends Scrutiny of the Validity of

Legislation and Regulatory Decisions

Under the Takings Clause is Unnecessary

Because Such Review is Already

Required By the Due Process Clause .. 8

C. The Agins “Substantially Advance”

Formulation Has No Basis in the Just

Compensation Clause, But Simply

Reflects Long-Standing Due Process and

Equal Protection Principles ......... 9

ul

Contents

Page

i!. Even If Regulatory Takings Claims Authorize

Judicial Review of the Reasonableness of

Generally-Applicable Legislation, Such

Review Must Be Deferential ............. 16

Ill. Principles of Federalism Require Deferential

Judicial Review of State Economic and

Goclal Lemietatieh ... ww. ccc ccccccccess 20

cee ceseccoccceccees 23

iv

TABLE OF CITEDAUTHORITIES

CASES vase

Agins v. City of Tiburon,

ee We PE Seeceveuadedavencsabus passim

American Federation of Labor v.

American Sash and Door Co.,

See Gs SEED Sedb ed ccévecdiecdsveses 21

Brunelle v. Town of South Kingstown,

Te 13

City of Monterey v. Del Monte Dunes at

Monterey, Lid.,

PE decédcnsecacees 6, 7, 12, 15, 19

Day-Brite Lighting, Inc. v. Missouri,

ee EE ocGkkndeddcdddicecddeses 22

Dolan v. City of Tigard,

Pes SUED Scicvseccdcocesuaecans passim

Eastern Enterprises v. Apfel,

ee ee ED bene ncdicccudekeebeue< 5, 6, 13

Exxon Corp. v. Governor of Maryland,

Ger es CUED Ddcdnuercensessest 8, 17, 18, 20

Ferguson v. Skrupa,

Pe CED en ccdundccdcanctunede 1,21, 22

Vv

Cited Authorities

Page

First English Evangelical Lutheran Church

of Glendale v. County of Los Angeles,

GOED cedbeddcccacesescsvcees 4-5, 6

Goldblatt v. Town of Hempstead,

Se ED cesecedccguccvacadbases 12

Gorieb v. Fox,

Se ED sé ccdencccacessvacccess 10, 12

Governor of Maryland v. Exxon Corp.,

eee 17

Hawaii Housing Authority v. Midkiff,

CP EEE cncccceveccscsaccucsece 4,19

Keystone Bituminous Coal Ass'n v. DeBenedictis,

SPEED anes ccececcbecescuvesse 18, 19

Lawton v. Steele,

Se, SEED oc cc csudeseusesessucuce 12

Lochner v. New York,

Se, GCE ccceccccccsccecsvccesees 22

L.A. Ray Realty v. Town Council of Cumberland,

698 A.2d 202 (R.1. 1997) ...... 0... cece eens 8

Lutheran Day Care v. Snohomish County,

829 P.2d 746 (Wash. 1992),

cert. denied, 506 U.S. 1079 (1993) ........... y

vi

Cited Authorities

Mission Springs, Inc. y. C;

» ne. v. Cit

954 P.2d 250 (Wash. 1998)”, ‘potens

National Railroad P

assenger C,

v. Boston and Maine Cor —

503 U.S. 407 (1992)

*’

Nectow v. C. ity of Cambri

ridge,

277 U.S. 183 (1928) vi

New State Ice Co. v. Li

0. v. Liebm

285 U.S. 262(1932)

Nollan v. C, alifornia C.

oastal Comm ’

483 U.S. 825 (1987)... ie 13, 14, 15

ineeebacs » 14,15,19

Penn Central Trans ;'

rtat .

438 U.S. 104 (1978) ‘on Co. . New York City,

Pennsylvania Coal Co

.¥ Mah

260 U.S.393(1922)

Pheasant Brid,

&e Corp. v. T

777 A.2d 334 (NJ. 1 of Warren,

cert. denied, 535 U.S. 1077 (2002)

Pitocco v. Harrington,

707 A.2d 692 (R.I. 1998)

vil

Cited Authorities

Raskiewicz v. Town of New Boston,

754 F.2d 38 (ist Cir.),

cert. denied, 474 U.S. 845 (1985) ............

Restigouche, Inc. v. Town of Jupiter,

pe ge fl le 8 eee

Rith Energy, Inc. v. United States,

270 F.3d 1347 (Fed. Cir. 2001) ..............

San Carlos Apache Tribe v. Superior Court,

ee SUES DEED co cccdecdsccentenes

Schad v. Borough of Mount Ephraim,

SEED. eaxccacoudescescesessbues

Simi Investment Co. v. Harris County,

256 F.3d 323, (S5" Cir.),

cert denied, 534 U.S. 1022 (2001) ............

Tahoe-Sierra Preservation Council, Inc.

v. Tahoe Regional Planning Agency,

ieee acdeeeuencenneeteus

Tampa-Hillsborough County Expressway

Authority v. A.GW.S. Corp.,

640 So.2d 54 (Fla. 1994) ..............0005.

Taylor Inv., Ltd. v. Upper Darby Township,

983 F.2d 1285 (3d Cir.),

cert. denied, 510 U.S. 914 (1993) ............

Page

13

13

16

13

15

vill

Cited Authorities

Page

Town of Orangetown v. Magee,

665 N.E.2d 1061 (N.Y. 1996) ................ 8-9

Village of Euclid v. Ambler Realty Co.,

ee es PEE BONS eC SNC hase e de cddes passim

West Coast Hotel Co. v. Parrish,

es ED chbdnedwdetcesécusccueas 1, 22

Western and Southern Life Insurance Co. v.

State Board of Equalization,

Se Gs ED ao cbowvecevituecsoscacs 19

Williamson v. Lee Optical of Oklahoma, Inc.,

PED oo biess cdévucesceeceees 8

Yee v. City of Escondido,

Se a SEED cccecuneheadsossucteuss 15

Zahn v. Board of Public Works for the

City of Los Angeles,

Pe SED bsebetseccecccacuds 10, 11, 12

UNITED STATES CONSTITUTION

Just Compensation Clause, U.S. Const., Amdt. 5 .. passim

ix

Cited Authorities

Page

STATE STATUTES

Ark. Code Ann. (2003)

DEED ce nsveuesscoccesceveseeseescess 20

Cal. Bus. & Prof. Code (2004)

DED covceesdbessstscessscveocsveesnes 20

DUE canesetevsststetesentdcenvestecess 20

Cal. Corp. Code (2004)

DEED ceecvenstessebesecebecesiuses coves 20

REE coeessbadockeveesscaccendeuceedese 20

Conn. Gen. Stat. Ann. (2004)

DERE nvecccesescecccecccsessecesecece 20

DEED covcctetcoedoecactencesocesvecess 20

Del. Code Ann. tit. 6 (2004)

EEE ceceesvosecssecoevesecescesesesses 20

DEED sccesudcvedudesesesscuséeuseéunese 20

Haw. Rev. Stat. Ann. (2003)

DGGE ccc ccccccscccccccccceseces 20

DGG cccccccccvvecccccccccesvevcess 20

x

Cited Authorities

Page

815 Ill. Comp. Stat. Ann. (2004)

DEY S06 cdasnwudhudeece ldauceeucenveans 20

de AANE NOES Che dedckd ds viéawes kos 20

Ind. Code Ann. (2004)

I i es aa Re 20

RO Racial aa late 20

8 Rae Oe Th AN eee 20

lowa Code Ann. (2004)

DE deavinsenkekvecoueal dewenestaen 20

EN Weed eedce cous Ne ee 20

Mich. Comp. Laws Ann. (2004)

DT Scbashavnadeiveusuyeass unger e 20

Minn. Stat. Ann. (2003)

Ds *iceceuscecieeudedso cul 1 cnekicdes 20

Neb. Rev. Stat. (2004)

DT <tintucndeesadedunaacueaneens 20

N.J. Stat. Ann. (2004) |

re Oa os ecco 20

xi

Cited Authorities

Puerto Rico Laws Ann., tit. 10 (2002)

Va. Code Ann. (2004)

ORS | PPPPTTITTeT TTT

Wash. Rev. Code Ann. (2004)

BR IDAGRIGD .cccccccccccccccscvscccevves

Wis. Stat. Ann. (2003)

BD ESGBD 2. ccccccccnccnccccecsccscccsecce

l

INTEREST OF THE AMICI CURIAE

Amici States, Commonwealths, and Territories, through

their legislative and executive branches, routinely engage

in many forms of regulation that affect economic interests.

The challenges posed by new patterns of growth and

development, a rapidly-changing economy, advances in

science and technology, and increased understanding of

public health risks and environmental harms require the states

to respond and, on occasion, to experiment with regulations

that seek to address these challenges. Accordingly, the amici

have an interest how regulatory takings jurisprudence affects

their ability to implement regulatory programs to protect the

health and welfare of their citizens. For at least 70 years, the

legislatures and regulatory agencies of the amici States have

had considerable discretion within the federal system to

fashion responses to various problems, see generally

Ferguson v. Skrupa, 372 U.S. 726, 731 (1963); West Coast

Hotel Co. v. Parrish, 300 U.S. 379 (1937). Amici have a keen

interest in maintaining the deference that courts have

traditionally given the States in making the countless policy

choices of how to meet the economic, social, and health needs

of their citizens.

The Ninth Circuit’s decision threatens to complicate,

perhaps even paralyze, these routine exercises of the States’

police power. The ruling encourages challenges under the

Just Compensation Clause that are premised on the so-called

“means-ends” test mentioned in Agins v. City of Tiburon, 447

U.S. 255, 260 (1980). Agins suggests that land-use regulation

“effects a taking if [it] does not substantially advance

legitimate state interests.” /d. Since announcing that test, the

Court has never used the Agins standard to strike down a

generally-applicable statute or regulation as a regulatory

2

taking violative of the Just Compensation Clause. As this

Court has recently indicated, despite Agins it is far from clear

whether generally-applicable legislation should even be

subject to a means-ends test in order to determine whether a

taking has occurred.

The Ninth Circuit, however, not only employed such a

test but made it an exceedingly stringent one. Its decision

requires a court to enjoin the operation of economic

legislation under the Just Compensation Clause if the court,

after conducting a de novo review of the statute, concludes

that the challenged law will not in fact accomplish the

legislature’s intended goal.

In doing so, the lower court upset the careful balance of

power that our federal system strikes between democratically-

elected state and local regulatory bodies on the one hand and

the judiciary on the other. If allowed to stand, the Ninth

Circuit’s decision will severely constrain the options for a

legislature grappling with urgent and competing policy

concerns. Courts will have to scrutinize not the rationality

of a regulation, but whether the legislative “means” chosen

by the elected members of state government will, in the

court’s own view and as a matter of fact, achieve their “ends.”

The Ninth Circuit’s decision threatens to establish the federal

courts as overseers of state laws, routinely inquiring whether

the state has made the “correct” policy choice to respond to

a particular problem. This scheme would represent a sharp

departure from the distribution of authority in our federal

system.

3

SUMMARY OF THE ARGUMENT

The Agins “substantially advance” test conflicts with the

language and structure of the Just Compensation Clause. That

provision is not a substantive limitation on governmental

process. Rather, by its terms the Just Compensation Clause

presupposes the legitimacy of government action and requires

only that the government provide compensation when it takes

private property.

The Agins test instead needlessly duplicates the means-

ends scrutiny of government action that the substantive

component of the Due Process Clause requires. Indeed, Agins

itself derives entirely from a line of due process and equal

protection decisions.

A majority of this Court has already recognized the

incongruity of lodging a “substantially advance” test within

regulatory takings jurisprudence. Nor does this Court’s

adoption of a means-ends test to measure the validity of

exactions vitiate this recognition. As the Court has noted,

such a test is peculiarly appropriate to evaluating the validity

of exactions, which are individualized ‘and-use decisions

conditioning approval of development wn the dedication or

property to public use. It has no application to government

regulation outside that context.

Even if a “substantially advance” test is appropriate for

challenges to regulatory takings under the Just Compensation

Clause, it requires only deferential rational-basis review.

Post-Agins decisions regularly apply such a standard when

reviewing generally-applicable statutes and regulations

that affect property interests. This deferential standard is

necessary to prevent courts from sitting as superlegislatures

4

and second-guessing the wisdom of the elected branches of

government. Any stricter scrutiny — much less the decisive

factual demonstration of a statute’s effectiveness required by

the courts below — will inhibit the states from developing and

experimenting with policies that address evolving problems.

I. The Just Compensation Clause Does Not Require That

Generally-Applicable Legislation “Substantially

Advance” A Legitimate Government Interest

A. The “Substantially Advance” Test Does Not Belong

in Regulatory Takings Jurisprudence Because the

Just Compensation Clause Presupposes the

Legitimacy of Governmental Action

The Agins “substantially advance” test conflicts with the

key assumption underlying the Just Compensation Clause. While

the Agins test focuses on the potential illegitimacy of

governmental activity, the Just Compensation Clause

presupposes the legitimacy of the government action and

operates simply as a conditional limitation, permitting the

government to take private property as long as it provides

compensation.' First English Evangelical Lutheran Church of

1. The Just Compensation Clause provides “nor shall private

property be taken for public use without just compensation.”

The Agins “substantially advance” test asks whether a governmental

action effects a “taking” by focusing on the extent to which a

regulation fulfills a concededly-valid public purpose. This is distinct

from ttie threshold inquiry under the “public use” component of the

Just Compensation Clause, which asks whether a governmental action

alleged to be a “taking” has a “public purpose” at all. See, e.g., Hawaii

Housing Authority v. Midkiff, 467 U.S. 229, 240-43 (1984); National

Railroad Passenger Corp. v. Boston and Maine Corp., 503 U.S. 407,

422 (1992). Neither the nature of this threshold inquiry nor its

outcome is at issue in the present case.

5

Glendale v. County of Los Angeles, 482 U.S. 304, 314-15

(1987). Stated differently, the Just Compensation Clause

seeks to ensure compensation for a taking of private property,

not to prevent government from adopting irrational regulatory

schemes. It is not a substantive limitation on governmental

power. Just as a government’s physical takings of private

property require that it pay the owner just compensation,

regulatory takings jurisprudence analyzes whether a

regulation imposes restrictions so severe that it is tantamount

to a condemnation or an appropriation. Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 414-15 (1922) (finding a

regulatory taking because a statute that “[made] it

commercially impracticable to mine certain coal [had] very

nearly the same effect for constitutional purposes as

appropriating or destroying it”). While a generally-applicable

regulation that is not rationally related to some legitimate

governmental interest may violate the Due Process Clause,

such irrationality is not the equivalent of a condemnation or

appropriation. It therefore does not violate the Just

Compensation Clause.

The incongruity of lodging a “substantially advance” test

within regulatory takings jurisprudence is confirmed by

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), where

five justices rejected a Just Compensation Clause challenge

to the federal Coal Industry Retiree Health Benefit Act (“Coal

Act”). Justice Kennedy opined that “the takings analysis is

inapplicable” to challenges to the substantive validity of

government regulation. 524 U.S. at 547. Four other Justices

agreed that “the Constitution’s Takings Clause does not apply

to such challenges.” /d. at 554.

Citing Agins, Justice Kennedy recognized that the means-

ends standard “open{s] the door to normative considerations

6

about the wisdom of government decisions” and that “[t]his

sort of analysis is in uneasy tension with our basic

understanding of the Takings Clause, which has not been

understood to be a substantive or absolute limit on the

Governments’s power to act.” 524 U.S. at 545 (Kennedy, J.,

concurring in the judgment and dissenting in part). This

“uneasy tension” results from the fact the Just Compensation

Clause “presupposes what the government intends to do is

otherwise constitutional.” /d. (citing First English, 482 U.S.

at 314-15); accord Mahon, 260 U.S. at 415. Since

“the constitutionality of the Coal Act appear[ed] to turn on

the legitimacy of Congress’ judgment rather than on the

availability of compensation,” Justice Kennedy opined that

“the more appropriate constitutional analysis arises under

general due process principles rather than under the Takings

Clause,” 524 U.S. at 545 (emphasis added), and that

“we should proceed first to general due process principles,

reserving takings analysis for cases where the governmental

action is otherwise permissible.” /d. at 546. Similarly, Justice

Breyer, speaking for the four dissenters, stated that “at the

heart of the [Just Compensation] Clause lies the concern,

not with preventing arbitrary or unfair government action,

but with providing compensation for legitimate government

action that takes ‘private property’ to serve the ‘public’ good.”

524 U.S. at 554 (first emphasis in original, second emphasis

added).

The Court's subsequent decision in City of Monterey v.

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999),

did not vitiate this aspect of Eastern Enterprises. In Del

Monte Dunes the Court upheld a district court’s finding that

a series of adverse zoning determinations by the City of

Monterey constituted a taking. The finding was based on jury

instructions (to which the defendant city had waived any

,

objection) incorporating the “substantially advance”

principle. But five of the Justices either wrote or joined

opinions reserving the question of the validity of the

substantialiy-advance test. See Del Monte Dunes, 526 U.S.

at 732 n.2 (Scalia, J. concurring) (the City “forfeited any

objection to this standard ... , and I express no view as to

its propriety”); id. at 753-54 n.12, n.13 (Souter, J. dissenting,

joined by O’Connor, Breyer, Ginsburg, JJ.) (offering “no

opinion here on whether Agins was correct in assuming that

this prong of liability was property cognizable as flowing

from the Just Compensation Clause of the Fifth Amendment

as distinct from the Due Process Clauses of the Fifth and

Fourteenth Amendments”). Furthermore, the majority

opinion acknowledged that the Court had never explained

the “nature or applicability” of the “substantially advance”

standard outside the physical exaction context and declined

to explain it, given that Monterey waived any objection to

the jury instructions. 526 U.S. at 704.

Thus, a majority of the Court has recognized that

the Agins “substantially advance” formulation is at odds

with the Just Compensation Clause. Accordingly, that

standard should not be incorporated in regulatory takings

jurisprudence, but rather should remain a part of due process

analysis, under which state statutes that lack a rational basis

may be invalidated.

8

B. Means-Ends Scrutiny of the Validity of Legislation

and Regulatory Decisions Under the Takings Clause

is Unnecessary Because Such Review is Already

Required By the Due Process Clause

There is no need to import the Agins “substantially

advance” standard into regulatory takings jurisprudence

because the Due Process Clause provides an independent

check on irrational enactments that serve no government

interest. Under the due process standard, courts may inquire

whether “it might be thought that the particular legislative

measure was a rational way to correct [a particular problem]).”

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,

487-88 (1955); Exxon Corp. v. Governor of Maryland, 437

U.S. 117, 124-25 (1978).

Courts have invalidated statutes and regulatory actions

under a rationality standard in the context of due process

challenges. See, e.g., Nectow v. City of Cambridge, 277 U.S.

183 (1928) (portion of city zoning ordinance invalidated

under the Due Process Clause).’ Indeed, this Court itself has

2. See also Pheasant Bridge Corp. v. Township of Warren, 777

A.2d 334, 343 & n.1 (N.J. 2001), cert. denied, $35 U.S. 1077 (2002);

San Carlos Apache Tribe v. Superior Court, 972 P.2d 179, 189 (Ariz.

1999) (State statute violates substantive due process protection of

Arizona's constitution because it retroactively alters vested property

rights in water); Pitocco v. Harrington, 707 A.2d 692, 696 (R.L. 1998)

(reversing dismissal of substantive due process claim because, if

proven, government official's denial of a building permit for reasons

other than those authorized in the applicable ordinance would be

arbitrary), L.A. Ray Realty v. Town Council of Cumberland, 698 A.2d

202 (R.1. 1997) (Town officials violated substantive due process rights

of developers where they denied the developers’ subdivision

applications without any legal basis and with animus); Jown of

(Cont'd)

9

indicated that a due process standard is appropriate for

evaluating the validity of most generally-applicable zoning

regulations. Dolan v. City of Tigard, 512 U.S. 374, 391 n.8

(1994) (“in evaluating most generally applicable zoning

regulations, the burden rests on party challenging the

regulation to prove that it constitutes an arbitrary regulation

of property rights”). There is no need to distort regulatory

takings law to fit Chevron’s claim, since the “substantially

advance” inquiry already has a natural home in due process

jurisprudence.

C. The Agins “Substantially Advance” Formulation

Has No Basis in the Just Compensation Clause,

But Simply Reflects Long-Standing Due Process

and Equal Protection Principles

The Court’s apparent discomfort with the Agins test may

reflect its recognition that the test has no basis in Takings

Clause jurisprudence. A review of Agins'’s supporting

citations confirms that its “substantially advance” test reflects

nothing more than the traditional standard of review based

on the Due Process and Equal Protection Clauses, as opposed

to the Just Compensation Clause. The formulation is rooted

exclusively in a series of zoning cases decided in the late

(Cont'd)

Orangetown v. Magee, 665 N.E.2d 1061 (N.Y. 1996) (landowners

who were denied substantive due process because the town decision

affecting their property had been made in an arbitrary and capricious

manner and without any rational basis recovered five million dollar

verdict); Zampa-Hillsborough County Expressway Authority v.

A.G.W.S. Corp., 640 So. 2d 54, 57 (Fla. 1994); Lutheran Day Care v.

Snohomish County, 829 P.2d 746, 748, 763 (Wash. 1992) (County

violated substantive due process because it acted arbitrarily and

capriciously in denying a conditional use permit to build a rest home),

cert. denied, 506 U.S. 1079 (1993).

10

1920's, culminating in Nectow v. City of Cambridge, 277

U.S. 183 (1928). Each of the cases concerned the Due Process

or Equal Protection Clauses; each requested equitable relief,

each employed the same deferential standard of review; and

none invoked the Just Compensation Clause or requested

compensation.

The first, Village of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926), concerned a due process and equal

protection claim seeking to enjoin a municipal zoning

ordinance. The Court squarely rejected the due process and

equal protection challenges, using the deferential standard

or review appropriate for such challenges:

[the statute’s] reasons are sufficiently cogent to

preclude us from saying, as it must be said before

an ordinance can be declared unconstitutional, that

such provisions are clearly arbitrary and

unreasonable, having no substantial relation to

the public health, safety, morals, or general

welfare.

272 U.S. at 395 (emphasis added).

That term saw the Court employ the same standard to

sustain two other zoning ordinances. Zahn v. Board of Public

Works for the City of Los Angeles, 274 U.S. 325, 327 (1927),

relying on Euclid and other cases, upheld a statute designating

various zoning districts against a due process and equal

protection challenge. A few days later, Gorieb v. Fox, 274

U.S. 603 (1927), rejected a due process and equal protection

challenge to a zoning ordinance that imposed a building set-

back requirement. Employing the same language and standard

used in Euclid and Zahn, the Court sustained the ordinance

because it was not “clearly arbitrary and unreasonable, having

no substantial relation to the public health safety morals or

general welfare.” 274 U.S. at 610.

The next year in Nectow, the Court applied the same

standard in reviewing an “as-applied” challenge to a general

zoning ordinance. 277 U.S. 183. The complaint alleged that

the ordinance, as applied to the landowner, “deprived him of

his property without due process of law in contravention of

the Fourteenth Amendment.” /d. at 185-86. Using the same

“substantial relation” language employed in Euclid and Zahn,

the Court reaffirmed those holdings and the general validity

of zoning ordinances:

a court should not set aside the determination of

public officers in such a maiter unless it is clear

that their action “has no foundation in reason and

is a mere arbitrary or irrational exercise of power

having no substantial relation to the public health,

the public morals, the public safety or the public

welfare in its proper sense.”

277 US. at 188 (quoting Euclid, 272 U.S. at 395) (emphasis

added). On the basis of factual findings made by a special

master appointed by the trial court, the Court determined

that the particular application of the zoning ordinance to

plaintiff’s property did not promote the health and safety of

the local inhabitants. 277 U.S. at 188-89. For this reason,

the ordinance as approved did “not bear a substantial relation

to the public health, safety, morals, or general welfare,” and

the Court sustained the plaintiff’s due process claim.

277 U.S. at 188.

12

Euclid, Zahn, Gorieb, and Nectow all applied the same

deferential standard to review property owners’ various due

process and equal protection claims. Fifty years later in Agins,

the Court restated the Nectow test, apparent y transplanting

it to the inhospitable soil of the Just Cormpensation Clause _

without acknowledging it was doing so: “The application of

a general zoning law to particular property effects a taking if

the ordinance does not substantially advance legitimate state

interests, see Nectow v. Cambridge, 277 U.S. 183, 188 (1928)

_..” Agins, 447 U.S. at 260.’ Agins thus cannot and should

not be understood to establish a new standard based on the

Just Compensation Clause to evaluate takings challenges to

generally- applicable regulations.

While the Court has referred to the Agins formulation

on several occasions, see Del Monte Dunes, 526 U.S. at 704

(1999) (citing cases), it has never used that standard to strike

down a generally-applicable regulation as a regulatory taking

violative of the Just Compensation Clause. To the contrary,

in Dolan, the Court, relying on Euclid rather than Agins,

agreed that “in evaluating most generally applicable zoning

regulations, the burden properly rests on the party challenging

—

3. While Agins is commonly understood as the source of the

“substantially advance” standard, the Court noted, in dictum, a related

concept two years before in Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978). There, the Court mentioned that “a use

restriction may constitute a taking if not reasonably necessary to the

effectuation of a substantial governmental purpose.” /d. at 127. In support

of this observation, the Court cited Nectow and Goldblatt v. Town of

Hempstead, 369 U.S. 590 (1962). As previously discussed, Nectow isa

due process case. So, too, is the relevant portion of Goldblatt: Penn

Central's reference to a “reasonably necessary” standard is rooted in

Goldblatt'’s discussion of due process principles. See 369 U.S. at 594-

95 (citing Lawton v. Steele, 152 U.S. 133, 137 (1894)).

13

the regulation to prove that it constitutes an arbitrary

regulation of property.” Dolan, 512 U.S. at 391 n.8 (citing

Euclid). As the roots of the Agins test in Euclid and Nectow

reveal, the Court’s reliance on Euclid in Dolan suggests, and

many lower courts agree,‘ challenges based on the asserted

arbitrariness of generally-applicable regulations should be

brought under the Due Process Clause, not the Just

Compensation Clause.

The Nollan and Dolan exaction decisions do not help

Chevron. See Nollan v. California Coastal Comm'n, 483 U.S.

825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).

Individualized exactions ~ land-use decisions conditioning

approval of development on the dedication of property to

public use — represent a special category of claim under the

Just Compensation Clause. Even if means-ends scrutiny

of government decisions were unavailable under any

constitutionai provision, the Court might well want to use it

for exactions, for which it is uniquely appropriate.

4. See, e.g., Rith Energy, Inc. v. United States, 270 F.3d 1347, 1352

(Fed. Cir. 2001) (refusing to consider the appellant's claim that the

government's revocation of a coal-mining permit which was allegedly

“driven by political pressure” constituted a taking); Simi Jnvestment Co.

v. Harris County, 256 F.3d 323 n.3 (5 Cir.) (on petition for rehearing

en banc) (citing Eastern Enterprises and noting that challenges alleging

that government interference with property interests is impermissibly

“illegitimate and arbitrary” arise under the Due Process Clause, not the

Takings Clause), cert. denied, 534 U.S. 1022 (2001); Restigouche, Inc.

v. Town of Jupiter, 59 F.3d 1208, 1211 n.1 (11 Cir. 1995) (“We do not

recognize (“substantially advance” takings claims] as distinct, viable

federal constitutional claims in the zoning context.”); Pheasant Bridge

Corp. v. Township of Warren, 777 A.2d 334, 343 n.1 (N.J. 2001), cert.

denied, 535 U.S. 1077 (2002); Mission Springs, Inc. v. City of Spokane,

954 P.2d 250, 261 (Wash. 1998); Brunelle v. Town of South Kingstown

700 A.2d 1075, 1083 n.5 (R.I. 1997); Tampa-Hillsborough County

Expressway Authority v. A.GW.S. Corp., 640 So.2d 54, 57 (Fla. 1994).

14

This appropriateness derives from the fact that, as this

Court has recognized, exactions are regulatory takings in

form but physical takings in substance. See Nollan, 483 U.S.

at 831-32. Whereas a government is per se liable to property

owners for all its physical takings, it need pay just

compensation for only certain regulatory actions. See, e.g.,

Penn Central Transportation Co. v. New York City, 438 U.S.

104 (1978). Thus, there is a risk that a government will

attempt to leverage an uncompensated physical taking out

of the happenstance of a permit application. On the other

hand, treating all individualized exactions as physical takings

- and requiring payment of just compensation for them hampers

government in its ability to facilitate development of property

while responding to such development with appropriate

conditions that mitigate its effects. See, e.g., Nollan, 483 U.S.

at 836 (“a permit condition that serves the same legitimate

police-power purpose as a refusal to issue the permit” is not

a taking “if the refusal to issue the permit would not constitute

a taking”).

The solution, as Nollan and Dolan make clear, is “some

sort of individualized determination that the required

dedication is related both in nature and extent to the impact

of the proposed development.” Dolan, 512 U.S. at 391.

A nexus requirement between the condition imposed by

an exaction and “the public need or burden [the proposed

development] creates or to which it contributes,” Nollan, 483

U.S. at 838, guarantees that the exaction is responsive rather

than opportunistic. Thus, for example, in Nol/an, an exaction

that required physical access across the applicant’s property

as a condition of a proposed development that would have

hindered only the public’s “visual access” lacked a nexus

with the burden imposed by the development, whereas

“a condition that would have protected the public’s ability

15

to see the beach notwithstanding construction” could have been

constitutional. /d. at 836. Similarly in Dolan, the development

that affected a flood plain would have justified a permit condition

requiring a private buffer area designed to mitigate flooding,

but not a permit condition requiring public access to the buffer

area. 512 U.S. at 392-93. The exaction, as the Court saw it,

lacked “rough proportionality” to the development to which it

purported to respond. /d. at 391. But as the Court has recognized,

Nollan-Dolan means-ends scrutiny does not apply “beyond the

special context of exactions.” City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 702 (1999).5

Proportionality review under the Takings Clause is designed to

detect physical takings disguised as regulatory adjudications.

It is uniquely suited to that purpose. It has no relevance to

“essentially legislative determinations,” Dolan, 512 U.S. at 384-

85; see also Tahoe-Sierra Preservation Council, Inc. v. Tahoe

Regional Planning Agency, 535 U.S. 302, 323 (2002) (it is

“inappropriate to treat cases involving physical takings as

controlling precedents for the evaluation of a claim that there

has been a ‘regulatory taking,’ and vice versa’’).

_—_ _— -——- -—- —

5. Although Yee v. City of Escondido, 503 U.S. 519, 530 (1992),

contains dictum implying that Nollan'’s nexus analysis might apply

to rent control cases, Yee predates the clarification in De/ Monte

Dunes that the Nollan/Dolan standard is confined to exactions.

16

Il. Even If Regulatory Takings Claims Authorize Judicial

Review Of The Reasonableness Of Generally-

Applicable Legislation, Such Review Must Be

Deferential

Even if the Court decides to approve the use of the

“substantially advance” test in regulatory takings challenges,

it should make clear that the test requires only the deferential

“rational basis” review applied in substantive due process

challenges, not the Ninth Circuit’s highly-intrusive de novo

standard. As discussed above, the Agins test derived from

Nectow, which (along with its antecedent, Euclid) employed

a deferential standard of review. Because Agins apparently

meant to apply the Euclid-Nectow standard, albeit in the new

setting of the Just Compensation Clause, the Agins standard

cannot be any more rigorous than the deferential substantive

due process standard of Euclid and Nectow. Under this

standard, only a statute that is “arbitrary” and “unreasonable”

would have “no substantial relation” to the public welfare.

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981),

decided one year after Agins, confirms this understanding

that the Agins standard is deferential. In Schad, the Court

emphasized that Agins, Euclid, and Nectow applied the

identical, highly deferential “rationally related” standard:

Where property interests are adversely affected

by zoning, the courts generally have emphasized

the breadth of municipal power to control land

use and have sustained the regulation if it is

rationally related to legitimate state concerns and

does not deprive the owner of economically viable

use of his property. (citing, inter alia Agins and

17

Euclid] But an ordinance may fail even under that

limited standard of review. [citing, inter alia,

Nectow]

452 U.S. at 68.

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

(1978), which has several similarities to this case, employs

the same approach. Exxon involved a due process challenge

to a Maryland gasoline-station statute that was more intrusive

than Hawaii’s. Rather than merely restricting the rents that

oil companies could charge lessee gas stations, Maryland’s

statute flatly prohibited oil companies from owning retail

gas stations. The prohibition was based on a concern that,

during oil shortages, oil companies would favor their own

stations over independent dealers and thus harm consumers.

Id. at 121. Just as Chevron here presented the testimony of

an economist, Exxon presented the testimony of four

economists that the Maryland statute would reduce

competition and therefore hurt consumers. Governor of

Maryland v. Exxon Corp., 370 A.2d 1102, 1108 (Md. 1977).

In response, this Court deferred to the judgment of the state

legislature. It unanimously held that it was not the judiciary’s

role to evaluate “the economic wisdom of the statute.” Exxon,

437 U.S. at 124-25. The Court determined that as long as the

State had a legitimate purpose, the “ultimate economic

efficacy of the statute” was irrelevant; it was enough that the

State’s purpose in enacting the statute, namely “controlling

the gasoline retail market,” was legitimate. 437 U.S. at 124-

25. “Regardless of the ultimate economic efficacy of the

statute,” the Court had “no hesitancy in concluding that

it bears a reasonable relation to the State’s legitimate purpose

in controlling the gasoline retail market, and we therefore

reject appellants’ due process claim.” /d.

18

The Ninth Circuit showed none of the deference Exxon

requires. While never questioning the legitimacy of the State’s

purpose in enacting its statute, it directed the district court to

engage in predictive fact finding, 224 F.3d at 1039, and then to

determine whether Act 257 “will in fact lead to lower fuel

prices.” /d. at 1041. The district court accordingly analyzed “the

efficacy of maintaining independent lessee-dealers in the context

of Hawaii’s purpose for enacting the Act,” and found, after

hearing and weighing the conflicting evidence presented at trial,

that the challenged statute would not in fact achieve the goal of

lower retail gas prices. 363 F.3d at 856. The Ninth Circuit,

upholding the district court’s conclusion, believed that the Just

Compensation Clause mandates such a microscopic inquiry into

the accuracy of a legislature’s judgments about the efficacy of

the policies it chooses. Nothing this Court has ever said justifies

such intense scrutiny of state regulation under the Just

Compensation Clause. To the extent it has applied a means-

ends test in reviewing regulatory takings challenges, this Court

has used an extremely deferential standard, akin to the “rational

relationship” test under the substantive component of the Due

Process Clause.

Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S.

470 (1987), establishes that the Just Compensation Clause, even

if it entails some review of the presence of a “public purpose”

or the “character of the governmental action,” id. at 485-93,

does not permit heightened scrutiny of a statute’s effectiveness.

Keystone involved a Just Compensation Clause challenge to a

Pennsylvania statute that limited coal-mining activity. Although

the court split sharply on the ultimate merits, it unanimously

adopted a deferential standard of review. The majority upheld

the statute because the Act “plainly [sought] to further” the

substantial “public interest in preventing activities similar to

public nuisances.” /d. at 492. The dissent, though persuaded

19

that there was a compensable taking, noted that “our inquiry

into legislative purpose is not intended as a license to judge the

effectiveness of legislation,” id. at 470 n.3 (Rehnquist, C_J.,

dissenting). Rather, “‘whether in fact the provisions will

accomplish the objectives is not the question: the [constitutional

requirement] is satisfied if ... the ... [State] Legislature

rationally could have believed that the [Act] would promote its

objective.’” /d. (quoting Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 242 (1984) (quoting in turn Western and Southern

Life Insurance Co. v. State Board of Equalization, 451 U.S.

648, 671-72 (1981))).° The majority expressly agreed with this

statement. 480 U.S. at 487 n.16. Thus, none of the Justices

suggested that a more rigorous standard of review might be

appropriate in a Just Compensation Clause challenge to a

generally-applicable state statute.

The Ninth Circuit attempted to locate such a rigorous

requirement in Del Monte Dunes, which in fact stands for

precisely the opposite proposition. There, the Court rejected

the application of the “rough-proportionality” Takings Clause

test — which it had described as requiring “intermediate” scrutiny

~ “beyond the special context of exactions” at issue in Nollan

and Dolan. See Dolan, 512 U.S. at 390. Such heightened

scrutiny, the Court held, was “inapposite” to a challenge “based

not on exesiions but on denial of development.” 526 U.S. at

703. It is presumably even more “inapposite” to a challenge to

generally-applicable regulation of the sort at issue in the present

case.

6. The Ninth Circuit discounted Chief Justice Rehnquist's

statements because, in its view, Keystone involved a physical taking.

363 F.3d at 855; 224 F.3d at 1034. The Ninth Circuit, however, plainly

misread Keystone. See 480 U.S. at 488-89 (“This case, of course,

involves land use regulation, not a physical appropriation of

petitioners’ property.”).

20

Ill. Principles Of Federalism Require Deferential

Judicial Review Of State Economic And Social

Legislation

The historic respect for States under our system of

federalism calls for the rejection of a stringent new standard

of review imposed by the Ninth Circuit. Review under this

new test would not be limited to the varying legislative

attempts, such as that made by Hawaii in Act 257, to address

the control of oil refiners over retail sales of gasoline.

See Exxon, 437 U.S. at 128 (noting numerous statutes and

legislative proposals in this area). Nor would review be

limited to legislative efforts to address related concerns that

franchisors in general can take advantage of franchisees after

the latter have made significant investments into their

properties.’ Rather, a vast array of State enactments — such

as tort reform efforts, health care measures, gaming control

statutes, environmental protection enactments and vehicle

safety laws, to name just a few — would be subject to

de novo reconsideration by federal courts without any

deference to democratically-elected state legislatures. An

enhanced “substantially advance” test along the lines

envisioned by the Ninth Circuit would improperly turn the

7. See, e.g., Ark. Code Ann. § 4-72-204 (2003); Cal. Bus. &

Prof. Code §§ 20020, 20021 (2004); Cal. Corp. Code §§ 31113, 31115

(2004); Conn. Gen. Stat. Ann. §§ 42-133f, 42-1331 (2004); Del. Code

Ann. tit. 6, §§ 2552, 2554 (2004); Haw. Rev. Stat. Ann. § 482E-

6(2)(H),(3) (2003); 815 Ll. Comp. Stat. Ann. 705/19, 705/20 (2004);

Ind. Code Ann. §§ 23-2-2.5-12, 23-2-2.5-14, 23-2-2.7-1 (2004); lowa

Code Ann. §§ 523H.7, 523H.8 (2004); Mich. Comp. Laws Ann.

§ 445.1527 (2004); Minn. Stat. Ann. § 80C.14 (2003); Neb. Rev.

Stat. § 87-404 (2004); N.J. Stat. Ann. § 56:10-5 (2004); P.R. Laws

Ann. tit. 10, §§ 278, 278a (2002); V.I. Code Ann. tit. 12A, § 132

(2004); Va. Code Ann. § 13.1-564 (2004); Wash. Rev. Code Ann.

§§ 19.100.180 (2004); and Wis. Stat. Ann. § 135.03 (2003).

21

federal judiciary into a “superlegislature” (Ferguson v.

Skrupa, 372 U.S. 726, 731 (1963)), or “a super zoning board

or a zoning board of appeals” (Raskiewicz v. Town of New

Boston, 754 F.2d 38, 44 (list Cir.), cert. denied, 474 U.S.

845 (1985)), and thereby undermine the “strong policy

considerations [that] favor local resolution of land-use

disputes,” Zaylor Inv., Ltd. v. Upper Darby Township, 983

F.2d 1285, 1291 (3d Cir.), cert. denied, 510 U.S. 914 (1993).

Allowing federal courts to second-guess state legislatures

under the Ninth Circuit’s exacting standard of review will

also inhibit the States’ ability to develop flexible responses

to the many problems they face. The federal system

encourages states to experiment with a variety of policy

responses to current challenges. See, e.g., American

Federation of Labor v. American Sash and Door Co., 335

U.S. 538, 553 (1949) (Frankfurter, J., concurring); New State

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (“It is one of

the happy incidents of the federal system that a single

courageous State may, if its citizens choose, serve as a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.”) (Brandeis, J.,

dissenting). As the problems they face evolve and grow,

the States must retain the flexibility to develop policies to

address them, even before a state-wide, regional, or national

consensus develops. That is why the States are accorded broad

police powers. Consistent with these police powers, courts

have subjected generally-applicable legislation that does not

involve suspect classifications or fundamental rights to

rationality review under the Equal Protection and Due Process

Clauses. To subject generally-applicable statutes and

regulations to additional, enhanced scrutiny as part of

regulatory takings review will inhibit such experimentation

and delay development of State policy.

22

This Court has repeatedly rejected the type of intrusive

judicial review authorized by the court below. Since the

repudiation of Lochner v. New York, 198 U.S. 45 (1905), some

seventy years ago, it has recognized that state legislatures have

the discretion necessary to craft reasonable solutions to evolving

problems. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

“Under the system of government created by our Constitution,

it is up to legislatures, not courts, to decide on the wisdom and

utility of legislation.” Ferguson, 372 U.S. at 729. This Court

has accordingly held that “state legislatures have constitutional

authority to experiment with new techniques; they are entitled

to their own standard of the public welfare; they may within

extremely broad limits control practices in the business-labor

field.” Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423

(1952). This Court should now confirm that the States, as well

as localities, may continue to do so without being second-

guessed by the courts under the Just Compensation Clause.

For the foregoing reasons, this Court should reverse the

23

CONCLUSION

decision of the Ninth Circuit Court of Appeals.

* Counsel of Record

Respectfully submitted,

Eviot Sprrzer

Attorney General of the

State of New York

CaiTuin J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

Joun J. Sipos

Assistant Attorney General

120 Broadway

New York, New York 10271

(212) 416-8016

Attorneys for Amici Curiae

24

Bitt Lockyer

Attorney General of California

MANUEL MEDEIROS

State Solicitor General

THOMAS GREENE

Chief Assistant Attorney General

J. MATTHEW RODRIQUEZ

Senior Assistant Attorney General

Daniet L. Sitcer

Supervising Deputy Attorney General

300 South Spring Street, Suite 500

Los Angeles, California 90013-1230

Grecc D. REenKEs

Attorney General of Alaska

P.O. Box 110300

Juneau, Alaska 99801

Fitt SUNIA

Attorney General of American Samoa

P.O. Box 7

Pago Pago, American Samoa 96799

Terry GODDARD

Attorney General of Arizona

1275 West Washington

Phoenix, Arizona 85007-2926

KEN SALAZAR

Attorney General of Colorado

1525 Sherman Street, 7" Floor

Denver, Colorado 80203

25

RICHARD BLUMENTHAL

Attorney General of Connecticut

55 Elm Street

P.O. Box 120

Hartford, Connecticut 00106

M. JANE BRADY

Attorney General of Delaware

820 N. French Street

Wilmington, Delaware 19801

Douactas B. MoyLan

Attorney General of the Territory of

Guam

120 W. O’Brien Drive, STE 2-200E

Hagatna, Guam 96910-5174

LAWRENCE G WASDEN

Idaho Attorney General

P.O. Box 83720

Boise, Idaho 83720-0010

Lisa MADIGAN

Attorney General of Illinois

188 West Randolph, #2001

Chicago, Illinois 60601

Tuomas J. MiLLer

Attorney General of lowa

Hoover Building, 2" Floor

Des Moines, lowa 50319

26

Grecory D. StumBo

Attorney General of Kentucky

Capitol Building, Suite 118

700 Capitol Avenue

FRANKFORT, Kentucky 40601-3449

G Steven Rowe

Attorney General of Maine

6 State House Station

Augusta, Maine 04333-0006

J. Joseph Curran, Jr.

Attorney General of Maryland

200 St. Paul Place

Baltimore, Maryland 21202

Tuomas F. REeILLy

Attorney General of Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

Mike Hatcu

Attorney General of Minnesota

102 State Capitol

75 Rev. Dr. Martin Luther King, Jr. Blvd.

St. Paul, Minnesota 55155-1609

Jim Hoop

Attorney General of Mississippi

Post Office Box 220

Jackson, Mississippi 39205

27

Mike McGratH

Attorney General of Montana

Justice Building

215 N. Sanders

P.O. Box 201401

Helena, Montana 59620-1401

Peter C. HARVEY

Attorney General of New Jersey

R.J. Hughes Justice Complex

25 Market Street

P.O. Box 080

Trenton, New Jersey 08625

PAMELA BROWN

Attorney General of the Commonwealth

of the Northern Mariana Islands

Caller Box 10007, Capitol Hill

Saipan, MP 96950

W.A. Drew EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard, Suite 112

Oklahoma City, Oklahoma 73105-4894

Haroy Myers

Attorney General of Oregon

1162 Court St. N.E.

Salem, Oregon 97301

GerALD J. PAPPERT

Attorney General of Pennsylvania

16" Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

28

WILLIAM VAZQUEZ IRIZARRY

Secretary of Justice

Commonwealth of Puerto Rico

P.O. Box 9020192

San Juan, Puerto Rico 00902-0192

PaTRICK LYNCH

Attorney General of Rhode Island

150 South Main Street

Providence, Rhode Island 02903

Pau G SUMMERS

Attorney General of Tennessee

P.O. Box 20207

Nashville, Tennessee 37202-0207

Mark L. SHURTLEFF

Attorney General of Utah

Utah State Capitol Complex

East Office Bldg., Suite 320

Salt Lake City, Utah 84114-2320

Wi iam H. Sorrece

Attorney General of Vermont

Office of the Attorney General

109 State Street

Montpelier, Vermont 05609-1001

Iver A. STRIDIRON

Attorney General of the

U.S. Virgin Islands

34-38 Kronprindsens Gade

GERS Complex, 2™ Floor

St. Thomas, Virgin Islands 00802

29

Curistine O. GREGOIRE

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, Washington 98504-0100

Darret V. McGraw, Jr.

Aitorney General of West Virginia

Office of the Attorney General

State Capitol, Room 26-E

Charleston, West Virginia 25305