Petition for Writ of Certiorari — Western States Petroleum Ass'n v. Sonoma County

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IN THE

Siyreme Court of the United

OCTOBER TERM, 1990

WESTERN STATES PETROLEUM ASSOCIATION ;

NATIONAL OCEAN INDUSTRIES ASSOCIATION,

. Petitioners,

SONOMA COUNTY, SAN MATEO COUNTY,

MONTEREY COUNTY, SAN LUIS OBISPO COUNTY,

COUNTY OF SANTA CRUZ, CITY AND COUNTY OF

SAN FRANCISCO,

CITY OF MONTEREY, CITY OF Morro Bay,

CiTy OF SAN LuIS OBISPO and CITY OF SANTA CRUZ,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

PHILIP K. VERLEGER

(Counsel of Record)

DONNA R. BLACK

BRADLEY R. HOGIN

BAKER & HOSTETLER,

McCUTCHEN BLACK

600 Wilshire Boulevard

Los Angeles, California 90017

(218) 624-2400

Counsel for Petitioners

Western States Petroleum

Association and

National Ocean Industries

Association

SELLA TIES! RS EEO, SEEM E TET GIT ETRE ELE ETE TLE DOLE CLITA LEAL GAL SAGER BIC

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

rpm QUESTIONS PRESENTED

1. May a state (and, a fortiori, a city or county) for-

bid the use of land within its borders te process oil and

gas produced in the federal outer Continentai Shelf

(“OCS”) and forbid the use of land or activities within

its borders to support production of oil and gas from the

OCS, unless such use or activities are approved by a

referendum?

2. Does a lawsuit challenging such ordinances become

moot when the first such project loses a referendum, and

its owners then seek to support their leases from an

adjoining county, and (a) there are other leases being

developed in the vicinity of the first project but at less

advanced stages, (b) this suit is brought by a trade as-

sociation, whose members hold some 50 federal leases

offshore of cities and counties having such ordinances,

which require onshore facilities to support exploration

and development activities, and (c) the suit is joined by

a trade association representing support contractors who

will lose work if development does not go forward?

3. Is such a lawsuit ripe?

(i)

PARTIES

The parties to this case in the Court of Appeals were

the two plaintiffs, the Western Oil and Gas Association,

now known as the Western States Petroleum Association,

and the National Ocean Industries Association; the ten

defendants, Sonoma County, San Mateo County, Monte-

rey County, San Luis Obispo County, County of Santa

Cruz, City and County of San Francisco, City of Monte-

rey, City of Morro Bay, City of San Luis Obispo and

City of Santa Cruz; and the three intervenor-defendants,

the State of California acting by and through the Cali-

fornia Coastal Commission and the California State Lands

Commission, Natural Resources Defense Council and The

League for Coastal Protection. The companies holding

membership in petitioners Western States Petroleum As-

sociation and National Ocean Industries Association are

listed in App. L.

TABLE OF CONTENTS

Page

ih et By 2 ty | | cr i

I lnsaenteclanne ii

I a nnlinewnoitebnininnaaba 1

I ss sneumhennlinisonnans 2

I I as sacs cetmnnenmessmenecncence 2

STATEMENT OF THE CASE .......0...0..00000000.00000 oe

i eaneatone iaclcadatmaanian’ 7

B. Proceedings Below ......................... Tee ROC

REASONS FOR GRANTING THE WRIT .................... 13

I. THE NATIONAL INTEREST URGENTLY

DEMANDS A PROMPT RESOLUTION OF

po SIRE EO 13

II. THE EFFECT OF THE COURT CF AP-

PEALS’ DECISION IS PRACTICABLY TO

FORECLOSE CHALLENGE OF THE SUB-

Ee IRIN acne snsnsicsesnecenssnsancannssivnnnnsnes 15

III. THE ORDINANCES ARE VOID ON THEIR

FACE UNDER THE SUPREMACY AND

COMMERCE CLAUSES ...................0....0-2:.-00--- 18

IV. THE COURT OF APPEALS IS PLAINLY IN

ERROR WITH RESPECT TO MOOTNESS...... 19

V. THE COURT OF APPEALS’ DECISION IS

EQUALLY INCONSISTENT WITH THE

LAW APPLICABLE TO RIPENESS ............... 22

ee dale tisnninishicesniamnniantdeanntnecnenpiacinenhimanmenen 26

(iii)

TABLE OF AUTHORITIES

CASES: Page

Abbott Laboratories v. Gardner, 387 U.S. 136, 87

S.Ct. 1507, 18 L.Ed. 2d 681 (1967) _................... 23

American Petroleum Institute v. Knecht, 456

F.Supp. 889 (C.D. Cal.), aff’d 609 F.2d 1306

RISERS NS 0 NIE Tie: PE UO 22

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,

104 S.Ct. 2694, 81 L.Ed. 2d 580 (1984) .............. 18

Fidelity Fed. Savings & Loan Ass’n v. De La

Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed. 2d

PEREIRA Rs ice AP: SUK Se ee ee 18

Franks v. Bowman Transportation Co., Inc., 424

U.S. 747, 96 S.Ct. 1251, 47 L.Ed. 2d 444 (1976)... 21, 22

Hicklin v. Orbeck, 487 U.S. 518, 98 S.Ct. 2482, 57

a, Me I MII csalesips sniveisnicencisbibcheliniianindnaiensiabiniiiens 18

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85

lame cnbliniacinn 18

Hunt v. Washington State Apple Advertising

Comm., 482 U.S. 338, 97 S.Ct. 2434, 53 L.Ed. 2d

BE SII chasis hpccpidhtnincenipccendeasieitemihidnhinadaialanibasaiesascnincs 22

Lawrence County v. Lead-Deadwood School Dis-

trict, 469 U.S. 256, 105 S.Ct. 695, 83 L.Ed. 2d

SIRT SIS EE ee 0 oe 18

Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct.

2114, 68 L.Ed. 2d 576 (1981) ..........................--.-- 18

Natural Resources Defense Council v. Hodel, 865

fe OB, le een 8

Pacific Gas & Electric Co. v. State Energy Re-

sources Conservation & Dev. Comm’n, 461 U.S.

190, 108 S.Ct. 1718, 75 L.Ed. 2d 752 (1983) ........ 24, 25

Pennsylvania v. West Virginia, 262 U.S. 553, 43

S.Ct. 658, 67 L.Ed. 1117 (1928) ........................... 18

Secretary of the Interior v. California, 464 U.S.

312, 104 S.Ct. 656, 78 L.Ed. 2d 496 (1984) ........ 8

Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.

I nn lena dlaimstianennaein 21, 22

Southern Pacific Terminal Co. v. ICC, 219 U.S.

498, 31 S.Ct. 279, 55 L.Ed. 310 (1911) -............. 21

State of California v. Kleppe, 604 F.2d 1187 (9th

RE - E vecircecinnsteesecsnhsatesnnnbaselasiosichibhisannabistennppenntionitiebinsiasaiest 8

TABLE OF AUTHORITIES—Continued

Page

United States Parole Comm’n v. Geraghty, 445

U.S. 388, 100 S.Ct. 1202, 63 L.Ed. 2d 479

CATE UIT sisinioue dion cecaleaniadiiabcliinanacts tai idiehdaiineancatiealtcrdgkicaigtie 21

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45

en au UI I cee neti ee) 22

Weinstein v. Bradford, 423 U.S. 147, 95 S.Ct. 2394,

7% % | 4: . eCCenieese conan 21

West v. Kansas Natural Gas Co., 221 U.S. 229, 31

S.Ct. 664, 55 L.Ed. 716 (1911) iasphchsiadassiamaindiddainions 18

STATUTES :

I a crennieainee OS OR ts Fee 2

_ ER SRE et eee ce BORER east 2

ESAT SNR are ee Me RN NaS! 2, 3, 14, 26

HERE SR mR Re RMA e aide 14

I init nnctiimdicealbisnganedetaomsammalnaianin ae 3, 4, 14

4. EE aes PEON, 2 14

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A ar, ge ee Me

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-

WESTERN STATES PETROLEUM ASSOCIATION ;

NATIONAL OCEAN INDUSTRIES ASSOCIATION,

- Petitioners,

SONOMA COUNTY, SAN MATEO COUNTY,

MONTEREY COUNTY, SAN Luis OBISPO COUNTY,

COUNTY OF SANTA CRUZ, CITY AND COUNTY OF

SAN FRANCISCO,

CITY OF MONTEREY, CITY OF Morro Bay,

CITY @F SAN LUIS OBISPO and CITY OF SANTA CRUZ,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

The Western States Petroleum Association and the

Nationa! Ocean Industries Association hereby petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

905 F.2d 1287 (9th Cir. 1990) (App. B). The opinion

issued prior te rehearing is found at App. A. The dis-

trict court’s memoranda of decision (Apps. C and D}

are not reported.

JURISDICTION

The judgment of the Court of Appeals was entered

on June 11, 1990. A timely petition for rehearing was

denied on August 23, 1990, with an accompanying

amendment of the opinion. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

The Outer Continental Shelf Lands Act (“OCSLA”),

43 U.S.C. § 1331 et seq., in pertinent part provides:

“It is hereby declared to be the policy of the United

States that—

(1) the subsoil and seabed of the outer Continental

Shelf appertain to the United States and are subject

to its jurisdiction, control, and power of disposition

as provided in this Act;

* * ~ *

(3) the outer Continental Shelf is a vital national

resource reserve held by the Federal Government

for the public, which should be made available for

expeditious and orderly development, subject to en-

vironmental safeguards, in a manner which is con-

sistent with the maintenance of competition and other

national needs;

(4) since exploration, development, and production

of the minerals of the outer Continental Shelf will

have significant impacts on coastal and non-coastal

areas of the coastal States, and on other affected

States, and, in recognition of the national interest in

the effective management of the marine, coastal, and

human environment—

* * * *

local governments, are entitled to an opportunity to

narticipate, to the extent consistent with the national

interest, in the policy and planning decisions made by

the Federal Government relating to exploration for,

and development and production of, minerals of the

outer Continental Shelf;

(5) the rights and responsibilities of all States, and,

where appropriate, local governments, to preserve

and protect their marine, human, and coastal environ-

ments through such means as regulation of land, air,

and water uses, of safety, and of related development

and activity should be considered and recognized;

43 U.S.C. § 1332.

“(a) .... Any Governor of any affected State or

the executive of any affected local government in

such State may submit recommendations to the Sec-

retary regarding the size, timing, or location of a

proposed lease sale or with respect to a proposed

development and production plan. Prior to submit-

ting recommendations to the Secretary, the executive

of any affected local government in any affected State

must forward his recommendations to the Governor

of such State.

= * * os

(ec) ... . The Secretary shall accept recommenda-

tions of the Governor and may accept recommenda-

tions of the executive of any affected local govern-

ment if he determines, after having provided the

opportunity for consultation, that they provide for

a reasonable balance between the national interest

and the well-being of the citizens of the affected

State. For purposes of this subsection, a determina:

tion of the national interest shall be based on the

desirability of obtaining oil and gas supplies in a

balanced manner and on the findings, purposes, and

policies of this Act. The Secretary shall communi:

cate to the Governor, in writing, the reasons for his

determination to accept or reject such Governor’s

recommendations, or to implement any alternative

means identified in consultation with the Governor

to provide for a reasonable balance between the na-

tional interest and the well-being of the citizens of

the affected State.

(d) ... The Secretary’s determination that recom-

mendations provide, or do not provide, for a reason-

able balance between the national interest and the

well-being of the citizens of the affected State shall

be final and shall not, alone, be a basis for invalida-

tion of a proposed lease sale or a proposed develop-

ment and production plan in any suit or judicial

review pursuant to section 23 of this Act, unless

found to be arbitrary or capricious.”

43 U.S.C. § 1345.

Section 1 of the ordinance of the County of San Luis

Obispo provides in part:

“No permit, entitlement, lease, or other authoriza-

tion of any kind within the County of San Luis

Obispo which would authorize or allow the develop-

ment, construction, installation, or expansion of any

onshore support facility for offshore oil and gas ac-

tivity shall be final unless such authorization is ap-

proved by a majority of the votes cast by a vote of

the people of the County of San Luis Obispo in a

general or special election. For the purpose of this

ordinance, the term ‘onshore support facility’ means

any land use, installation, or activity required to

support the exploration, development, production,

storage, processing, transportation, or related activi-

ties of offshore energy resources.”

Section 17.72.030 of the ordinance of the City of Morro

Bay provides in part:

“There shall be no construction, reconstruction, op-

eration or maintenance of any commercial or indus-

trial facility within the City, including but not limited

to business or personnel offices, oil or gas storage

facilities, pipe, drilling materials, or equipment re-

pair or storage facilities, or any other aid or sup-

port, which operates directly or indirectly in support

of any offshore oil or gas exploration, development,

drilling, pumping or production; nor shall there be

any construction, reconstruction, operation or mainte-

nance of any pipeline within the City for the trans-

mission of any oil or natural gas taken or removed

from any offshore oil or gas drilling or pumping

operations.”

Section 17.92.020 of the ordinance of the City of San

Luis Obispo provides in part:

“No onshore support facility for offshore oil or

gas development shall be allowed or permitted within

the City of San Luis Obispo until such time that the

City Council proposes the inclusion of such uses in

an appropriate zone district or districts, and such

proposal has been approved by a vote of the people

of the City of San Luis Obispo. For the purpose of

this ordinance, the term ‘onshore support facility’

means any activity or land use required to support

directly the exploration, development, production,

storage, processing, transportation, or related aspects

of offshore energy resources extraction.”

STATEMENT OF THE CASE

This is a case which challenges ordinances intended to

prevent the development of federal offshore oil and gas

leases by denying lessees the right to bring the oil and

gas onshore. The immediate problem is that the district

court and the Court of Appeals have used concepts of

Article III ripeness and mootness to close the door to

any reasonably possible challenge, thus effectively vali-

dating the ordinances.

Petitioner Western States Petroleum Association

(“WSPA”) is a trade association including in its mem-

bership substantially all of the companies engaged in oil

and gas exploration and production on the outer Con-

tinental Shelf (“OCS”) offshore of California. Peti-

tioner National Ocean Industries Association (‘“NOIA’’)

is a trade association representing substantially all of the

companies and individuals who provide drilling, provi-

sioning and other essential services to offshore opera-

tions. This action, brought by the two trade associations

(collectively referred to herein as ‘““WSPA”’), challenges

an ordinance of the County of San Luis Obispo which

provides that no permit may be issued for any land use

which supports offshore oil exploration, development or

production unless the permit in question is approved by

a referendura of the citizens of the County. The City

of San Luis Obispo and the City of Morro Bay, relevant

here because of their role as logistical support bases for

operations offshore San Luis Obispo County, have adopted

similar ordinances.

WSPA’s member companies are the owners of upwards

of 50 oil and gas leases offshore San Luis Obispo County

and have paid approximately $2.4 billion for these leases.

App. H at 85a. Several of these companies own what is

known as the San Miguel project, operated by a subsid-

iary of Shell Oil Company (‘Shell’), located on lease

OCS-P 0409. After all applicable permits were obtained

but before a referendum was held on the San Miguel

project, as required by the San Luis Obispo ordinance,

the district court ruled (a) that the case was not ripe,

resting its decision at least in part on the fact that no

project had thus far lost an election, and (b) that the

ordinance was valid. App. C at 46a-50a. Shortly follow-

ing that decision, an election was held and the project

was defeated. App. F at 6la-62a. WSPA filed a motion

to reconsider and for leave to file a second amended com-

plaint alleging loss of the election which was denied on

the ground the election made no difference. App. D at

54a.

On appeal, the Ninth Circuit remanded the San Luis

Obispo portion of the case to the district court for fur-

ther findings, reciting that the record suggested that the

San Miguel project is now being serviced from Santa

Barbara and therefore that the case might be moot. The

Court of Appeals’ decision thus necessarily decided that

the pendency of the leases held both for this project and

for other projects in San Luis Obispo was not enough:

it was necessary that there be a current “proposed de-

velopment” pending in San Luis Obispo County before

that County’s ordinance could be challenged.

That decision creates a critical need for review by

this Court. The principles adopted, which form the basis

for the direction to the district court to make additional

findings, would establish criteria which necessarily com-

pletely defeat any prospect of challenging these ordi-

nances. Ownership of affected leases even with ongoing

development is passed over as a ground for standing or

ripeness. A current project to come ashore is needed,

but is only a basis for challenging an ordinance after

an election is held. Once defeated, the current project

will not suffice if some other solution is subsequently

pursued. The result is that there is no window of oppor-

tunity to sue. Such a holding would defeat the long-

established policy of the United States which mandates

development of the OCS.

Oil is of no use to anyone if it cannot be brought

ashore. If the holders of leases have to spend the amounts

required to explore them, knowing all the time that they

have to win a referendum (an impro! ble event) before

they can possibly do anything with the oil they are

searching for, the question arises: why search? An

enormous obstacle to the development of the federal leases

is thus placed in their path. Assuming, after lessees

have gone through the permitting process, lost an elec:

tion, and then been forced to look around for some other

alternative, that they are at that point also precluded

from challenging the ordinance, then such an ordinance

becomes unchallengeable. Given the adoption by Congress

of policies requiring the development of such leases, this

is a plain, significant and most destructive assault on

federal power.

A. Background

It is surely no news that while on the one hand, fed-

eral statutes speak in no uncertain terms of the import-

ance of the development of the OCS, there is an almost

universal desire that such development take place some-

where else. The result is an inevitable conflict between

federal authorities and oil companies on the one hand,

and local jurisdictions who do not want such development

on the other hand. Such conflicts have had a long ju-

dicial history in both this Court and the Court of Ap-

peals: a few of the cases are Secretary of the Interior

v. California, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed. 2d

496 (1984) ; Natural Resources Defense Council v. Hodel,

865 F.2d 288 (D.C. Cir. 1988); and State of California

v. Kleppe, 604 F.2d 1187 (9th Cir. 1979).

This case arises out of the adoption, in the late 1980’s,

of similar ordinances in every California county along

the coast except for Santa Barbara, Ventura, Los An-

geles and parts of Orange County. These ordinances fall

into two categories. They either (a) forbid outright the

bringing of oil produced offshore onto the land, or (b)

require that permits for facilities te bring such oil ashore

be subjected to a referendum. Texts of the ordinances

appear in App. J at pages 110a through 188a.

The purpose of these ordinances has been announced

by their proponents in very straight-forward terms. Hos-

tility to offshore development is the theme: the basic

text is that while the federal government may control the

water, the states and local governments control the land.

For example, the Santa Cruz County ordinance provides

that:

“The citizens of Santa Cruz County have no legal

way directly to control offshore oil and gas explora-

tion or deve'opment, since oil and gas developments

which occur offshore are under the jurisdiction of the

federal government. The citizens of Santa Cruz

County do, however, have the legal ability to make

significant decisions about onshore facilities which

support offshore oil and gas exploration and develop-

ment.”

App. J at 161a.

In the words of a principal advocate of these ordi-

nances: “There will be nowhere they [oil producers]

can come ashore. It [the ordinance] sends that message

loud and clear.” ER 35 at Ex. C (“ER” refers to the

record excerpts on appeal). “Strong opposition to any

oil or gas drilling” is the stated purpose of the Monterey

ordinance (App. J. at 168a); the Sonoma County ordi-

nance expresses “strong current opposition . . . to pro-

posed offshore oil developments.” App. J at llla. There

has been a wave of such ordinances adopted, which prob-

ably has not yet reached its peak.

Of these various ordinances, only three—in San Luis

Obispo County, the City of San Luis Obispo and the

City of Morro Bay—directly affect current lessees of the

United States. It is those leases and those ordinances

which give rise to the issues here. However, the other

ordinances are important, too. What is involved is an

attempt to wall off oil produced from federal leases from

the Mexican to the Oregon border: this is nothing less

than a threat of nullification of an Act of Congress along

almost the entire coastline.

B. Proceedings Below

The case was decided in the district court on defend-

ants’ motion to dismiss plaintiffs’ first amended com-

plaint and on plaintiffs’ motion for summary judgment.

The district court granted the motion to dismiss the

complaint and denied the summary judgment motion.

App. C at 46a-50a. The first amended complaint alleged

the representative status of WOGA, now WSPA, and

NOIA. Defendants in the case as filed were (a) the

cities and counties with ordinances forbidding outright

the presence of support facilities onshore for offshore

operations, including the City and County of San Diego

and the City of Oceanside, and (b) the cities and coun-

ties which require that every permit for construction or

use of any facility for onshore support of any offshore

facility be approved by voters in a referendum, including

Sonoma County, San Mateo County, Monterey County,

San Luis Obispo County, Santa Cruz County, City and

County of San Francisco, City of Monterey, City of

Morro Bay, City of San Luis Obispo and City of Santa

Cruz.

As to San Luis Obispo County (and the City of Morro

Bay and City of San Luis Obispo), it was alleged that

WSPA members are the owners of upwards of 50 leases

offshore of that County and have expended more than

$2.4 billion for purchase of the leases. App. H at Sda.

It was alleged that onshore pipelines, treatment facilities

and logistic bases in the defendant areas are essential

for production of oil and gas from these leases. App. I

at 93a-94a; 96a-97a.

It was also alleged that a group of WSPA members

operate what is known as the San Miguel project; that a

platform had been built at a cost of $160 million for

production from the lease; and that necessary permits

had been applied for from the County of San Luis Obispo

for the project. Jd. at 97a. It was further alleged, under

the County’s ordinance requiring a vote, that the project

was to be submitted to an election and that the result

was a threatened loss of the entire investment and a cer-

tain delay of at least a year at a cost of approximately

$14 million. Jd. at 97a. It was further alleged that

there are following behind at least five additional proj-

ects on which discoveries have been made off San Luis

Obispo County in other groups of leases. Jd.

As to the other counties, it was alleged that federal

offshore lease sales were pending at which plaintiffs’

members had the right to bid and that substantial

amounts had been invested in preparing for these sales.

Id. at 97a-98a. It was further alleged that since oil that

cannot be brought ashore is without value, the effect of

the ordinances was to destroy or impair the right to bid.

Id.

Violations of the Supremacy Clause, the Commerce

Clause, the Due Process Clause and the Equal Protection

Clause were pleaded. Id. at 99a-109a. The first amended

complaint was accompanied by a motion for summary

judgment seeking a determination that the ordinances

were invalid, which was supported by declarations mak-

ing essentially the same statements as the complaint, al-

beit in greater detail. It was opposed by declarations

from defendants addressing possible problems from the

presence of onshore facilities; asserting that there are

places in California where such facilities could be built;

and further asserting that it is possible to operate off-

shore without coming onshore by producing into a float-

ing storage and treatment system. ER 62. There was

no response, however, to the allegation in the complaint

that because of local and state opposition, use of such a

system is generally precluded. There was also no re-

sponse to plaintiffs’ assertion that natural gas is a sig-

nificant part of the offshore production and must come

directly onshore. App. H at 84a. The United States

lodged an amicus brief supporting plaintiffs. Leave to

file the United States’ brief was denied because of the

late date of the filing. ER 91.

The district court denied plaintiffs’ motion for sum-

mary judgment and granted defendants’ motion to dis-

miss except as to the City and County of San Diego and

the City of Oceanside.’ As to all other counties, the dis-

trict court concluded (a) that the ordinances were valid,

and (b) in the alternative, that the controversy was not

1 These cities and San Diego County have ordinances absolutely

prohibiting the construction of any facilities and the importation

of any petroleum produced from within 100 miles of their borders

on the OCS. The district court ruled that whether or not those

ordinances were valid was dependent on whether there was any less

drastic method of accomplishing their objectives. The case as to

these ordinances was severed pursuant to Fed. R. Civ. Pro. 42(b)

and is not involved in this appeal. It has been stayed pending a

decision in this case.

ripe because no one had thus far lost an election and be-

cause, even then, losers could pursue other possible rem-

edies, principally review of an adverse municipal deci-

sion by the California Coastal Commission.

Before the judgment was final, the group of WSPA

companies with applications pending before the County

of San Luis Obispo lost the election on its project and

was therefore denied permits. Plaintiffs thereafter filed

a motion for leave to file a second amended and supple-

mental complaint setting forth that loss and a motion to

reconsider the prior decision. ER 101. Under date of

September 6, 1988, the district court denied both motions

and issued a final judgment. App. D. A Notice of Ap-

peal was filed under date of October 28, 1988. ER 119.

After the case was on appeal, the President issued an

order suspending the previously scheduled lease sales

offshore of California, which order was followed by an

Act of Congress declaring a moratorium on all such sales

which was recently renewed. This left San Luis Obispo

County (and the cities of San Luis Obispo and Morro

Bay within that County) as the only involved area with

active leases off the coast. Since, as to the other counties

(all north of San Luis Obispo), the economic harm to

plaintiffs’ members consisted of deprivation of the right

to bid at lawfully scheduled federal sales, plaintiffs/

appellants moved to dismiss as moot the appeals as to all

cities and counties other than San Luis Obispo, the City

of San Luis Obispo and the City of Morro Bay. On this

issue, the Court of Appeals ruled that the actions were

not moot, because of the possibility of a recurrence of the

controversy, but that in view of the fact that there were

no lease sales pending, the actions were plainly not ripe

as to the northern counties and on that ground affirmed

the district court. App. A at 7a-8a. On petition for

rehearing (denied), it vacated the judgment on the mer-

its as to those counties. App. B at 18a. For purposes

of this petition, we do not challenge that ruling.

As to the County of San Luis Obispo, the Court of

Appeals expressed a belief that there was material in the

record which suggested that the San Miguel project pro-

ponents had abandoned the effort to come ashore in San

Luis Obispo County and were “servicing the leases” from

Santa Barbara County to the south. It sent the case back

to the district court for findings on that subject, as de-

terminative of mootness. By so ruling, the court decided

that those who hold leases from the United States off-

shore of San Luis Obispo County do not have a ripe con-

troversy if they have not yet reached the stage of an

actual project submitted to the County (otherwise the

status of the San Miguel project could not moot the

case). Accordingly, the judgment was affirmed without

comment as to the cities of San Luis Obispo and Morro

Bay, where there are no permit applications pending. In

addition, the Court of Appeals’ decision says, in effect,

that the proponents of a project actually submitted and

lost in such an election wil! be mooted out, either if they

simply stop, or if they try to pursue some other solution

while continuing with their lawsuit.

REASONS FOR GRANTING THE WRIT

I. THE NATIONAL INTEREST URGENTLY DE-

MANDS A PROMPT RESOLUTION OF THIS

CONTROVERSY

Estimates of the amount of oil to be found in and to

be produced from the OCS off California vary widely.

The Department of Energy’s estimate of four billion bar-

rels in reserves (1.e., enough to produce close to a mil-

lion barrels a day for 10 to 15 years) is pleaded in the

complaint. App. I at 93a. A declaration supporting the

complaint estimated that potential reserves may be as

high as ten billion barrels. ER 12 at 6. Until explora-

tion is complete, all estimates are, at best, enlightened

guesses. But there is no doubt reserves are substantial.

Whatever the numbers may be, Congress has stated in

the plainest of terms that the national policy requires

the development of these resources. The OCSLA thus

recites:

“Tt is hereby declared to be the policy of the United

States that—

(3) the outer Continental Shelf is a vital national

resource reserve held by the Federal Government for

the public, which should be made available for ex-

peditious and orderly development, subject to environ-

mental safeguards, in a manner which is consistent

with the maintenance of competition and other na-

tional needs... .”

43 U.S.C. § 1332.

The national interest in this lawsuit was articulated

in the amicus brief filed by the United States in the Court

of Appeals, at p. 3.

“The United States has a significant interest in the

development of the OCS. In addition to reducing our

nation’s dependence on foreign sources of oil (see 43

U.S.C. 1801(3) and 1802(1)), OCS oil and gas re-

sources off California have provided substantial bene-

fits to the treasuries of both the United States and

California.”

The OCSLA recognizes the importance not only of de-

velopment but of simultaneous protecticn of the environ-

ment and provides an elaborate mechanism for accom-

plishing this. 48 U.S.C. §§ 1346, 1351. Likewise, the

OCSLA provides for a reconciliation of local interests,

which tend to oppose development, to the national inter-

est. In this regard, the Act requires submission of the

federal plans to the Governor of the affected state and

provides a mechanism for adjusting differences of opin-

ion between the Secretary of Interior and the State. /d.

at § 1345. Only after that process is fully pursued is a

particular lease sale permitted. But the Secretary of the

Interior is most specifically authorized and directed to

conduct such sales. Jd. at § 1334.

If one has any doubts as to the significance of that

policy, one need only read the daily newspapers. This

Court is well aware that Iraq’s invasion of Kuwait and

the responsive boycott of Iraqi and Kuwaiti oil by the en-

tire world community have cut several million barrels a

day out of the world’s oil supply. The result is that

crude oil prices in the world markets have jumped by

100%. Actual deficits in supply giving rise to lines in

service stations and unfilled heating oil demands have

thus far narrowly been averted. If the crisis goes far-

ther and embraces Saudi Arabia, however, what has

happened so far will be a comparative picnic.

This is not the first such crisis and it will not be the

last. The United States went through a similar set of

problems in the early 1970’s with the Arab oil boycott,

again with the overthrow of the Shah of Iran and again

as a result of the war between Iran and Iraq. Without

further belaboring the point, we submit that the federal

government has had every reason to show the concern

over “expeditious and orderly development” of the OCS

so plainly expressed in the OCSLA. This in turn means

there is every reason, in the national interest, to urge

the earliest possible resolution of the validity of local

ordinances that say to the federal government, issue

leases off our shores if you wish, but your act will be

futile because your lessees will not be able to bring the

oil ashore.

II. THE EFFECT OF THE COURT OF APPEALS’ DE-

CISION IS PRACTICABLY TO FORECLOSE CHAL-

LENGE OF THE SUBJECT ORDINANCES

The decision below effectively decides that possession

of a lease is not sufficient to enable a company to chal-

lenge these ordinances, even if enormous amounts have

been spent on purchase, exploration and development of

the lease. Before one has the right to challenge San

Luis Obispo’s ordinance, for example, one must have a

specific “proposed development” in the County.

Despite the showing made in the district court (with-

out challenge) that WSPA members hold many active

lease offshore of San Luis Obispo County, the Court of

Appeals discussed only the San Miguel project. It ob-

served that Shell had lost the election and that the elec-

tion had been “nullified” by the County for reasons that

“were not clear.” The court then referred to a mention

in the record which suggested that Shell had therefore

shifted its attentions to Santa Barbara County and sent

the case back to the district court for further detail on

that subject, saying that the record “suggests that the

controversy including Shell’s lease may be moot.” App.

B at 18a. It also observed that there was “no other de-

velopment proposed.” App. B at 18a. It affirmed the dis-

missal without separate comment as to the City of Morro

Bay and the City of San Luis Obispo.

By so doing, the court decided that the holders of the

other leases off San Luis Obispo, despite their invest-

ments and despite the fact that this was the place they

had chosen to come ashore, could not challenge the ordi-

nance. On petition for rehearing, WSPA_ expressly

pointed out, even though the Court of Appeals in its ini-

tial opinion had observed that there were “no leases”’ off-

shore of the northern counties and therefore no ripe con-

troversy (see App. A at 7a), that there unquestionably

were active leases off San Luis Obispo County. There

was no direct response to this in the amended opinion is-

sued on rehearing. Despite this, the decision clearly

stands for the proposition that leases are not enough:

there must be a “development”? which has reached the

permit application stage. Were that not the ruling, the

case could not have been affirmed as unripe as to the

cities of San Luis Obispo and Morro Bay, and with re-

spect to all leases offshore of the County except the lease

involved in the San Miguel project.

The problem with this analysis is that, after Shell’s

experience, it is clear that there is no rational prospect

of winning an election in San Luis Obispo County. In-

deed, given the popular convictions expressed in the or-

dinances themselves, there is probably no prospect of

winning such an election in any of these cities or coun-

ties. That being so, no rational management is going

to pursue a project to come ashore there. The companies,

inevitably, will make their judgments as to the economic

feasibility of development on the basis of coming ashore

in Santa Barbara County or somewhere further south.

While getting approval in those areas has its own par-

ticular difficulties, and those difficulties coupled with the

distances between the project and the support base may

make such projects uneconomic, there is at least no out-

right prohibition and no requirement of a referendum on

every permit. But the result is that the ordinances will

accomplish their objective of closing the door to San Luis

Obispo County and its cities and yet never be subject

to challenge.

The case of the San Miguel project adds to the out-

rageousness of the result. The only purpose expressed

for sending the case back to the district court for find-

ings on the state of the project with respect to Santa

Barbara County is to find out if the case would be

“moot.” But, we submit, what else is a company to do

having gone down to defeat in San Luis Obispo County?

For whether or not the election was “nullified” as the

Court of Appeals says hardly matters: the election suffi-

ciently demonstrated the popular will. Further efforts

in San Luis would plainly be a waste of time and would

cost a great deal of money. And why indeed should the

companies be precluded from “servicing” a lease from an

adjacent county, pending a determination of the validity

of the ordinance which kept them out of San Luis Obispo

in the first place? The effect of the ruling is to prevent

a challenge permanently. The loser of the election wi:

be mooted out: others will never reach the stage of ap-

plying because they cannot win. This is a result totally

contrary to the rulings of this Court.

III. THE ORDINANCES ARE VOID ON THEIR FACE

UNDER THE SUPREMACY AND COMMERCE

CLAUSES

It is well-established that a state or county may not

throw up a wall designed to keep out oil produced on the

OCS. Fundamental barriers exist to any such set of or-

dinances both under the Supremacy Clause and the Com-

merce Clause. Under the Supremacy Clause, a state or

local ordinance which has the effect of frustrating a

federal policy is plainly invalid. Hines v. Davidowitz,

312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941);

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 698,

104 S.Ct. 2694, 81 L.Ed. 2d 580 (1984); Lawrence

County v. Lead-Deadwood School District, 469 U.S. 256,

260, 105 S.Ct. 695, 83 L.Ed. 2d 635 (1985); Fidelity

Fed. Savings & Loan Ass’n v. De La Cuesta, 458 US.

141, 156, 102 S.Ct. 3014, 73 L.Ed. 2d 664 (1982).

Equally applicable is the rule which denies to the

states the power to wall out interstate commerce. Hick-

lin v. Orbeck, 487 U.S. 518, 521-34, 98 S.Ct. 2482, 57

L.Ed. 2d 397 (1978); Pen -j.vania v. West Virginia,

262 U.S. 5538, 595-600, 45 S.Ct. 658, 67 L.Ed. 1117

(1923); West v. Kansas Natural Gas Co., 221 U.S. 229,

260, 31 S.Ct. 564, 55 L.Ed. 716 (1911). There can be

no doubt that transportation of oil from the OCS into

the states is interstate commerce.” Maryland v. Louisi-

ana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed. 2d 576

(1981).

We recognize that, rather than decide the merits, the

Court of Appeals vacated the district court’s judgment

2 Defendants attempted to evade this issue by urging that state

production from within the three mile limit offshore is also em-

braced. However, there have been no state leases offered in Cali-

fornia for thirty years. There are no new state projects and there

will be none under California legislative and administrative poli-

cies. The only application of the ordinances is to interstate com-

merce.

on the merits, dismissing all aspects of the case other

than the “Shell lease” as unripe. By so doing, the Court .

of Appeals eliminated the possibility that the district

court opinion would be res judicata except possibly (de-

pending on future action) as to the “Shell lease.” But

that action leaves the district court opinion as the only

judicial expression on the topic and it will therefore be

the only authority to which anyone seeking to develop

offshore can refer. By effectively preventing any chal-

lenge to the ordinances at any practicable time, the

Court of Appeals has permanently preserved the result

of the district court decision. Under’the circumstances,

we respectfully urge that this Court grant certiorari to

resolve both the merits and the issue of mootness/

ripeness.

IV. THE COURT OF APPEALS IS PLAINLY IN ERROR

WITH RESPECT TO MOOTNESS

The Court of Appeals sent the case back to the district

court for further factual development relevant to moot-

ness. It said:

“Offshore of San Luis Obispo, Shell Oil Company, a

member of appellant WOGA, has obtained an OCS

lease which it originally proposed to develop and

service with onshore facilities in San Luis Obispo

County. At one point, Shell applied for a permit

under the San Luis Obispo ordinance which appears

to have been denied by a popular vote. The election

was nullified by the County, however, for reasons that

the record does not make clear. The record suggests

that Shell has abandoned the San Luis Obispo proj-

ect, that no other development has been proposed,

that a new vote was never held, and that the offshore

San Luis Obispo lease is now being serviced from

onshore facilities in Santa Barbara County. Al-

though the record suggests that the controversy in-

volving Shell’s lease may be moot, we cannot be cer-

tain because the relevant facts are not adequately

developed in the record before us. Accordingly, we

remand the question of mootness with respect to

Shell’s lease offshore San Luis Obispo County.”

App. B at 18a.

The difficulty with all this is that the findings requested

have little to do with mootness. The showing here in-

dubitably establishes such injury. The Court of Appeals

itself recognized, in dealing with the northern counties,

that likelihood of recurrence is the criterion for moot-

ness and found that the lawsuit as to the other counties

was not moot, because of the possibility of the recurrence

of the same controversy. It said:

“We agree with appellees that actions are not moot

when the issues they concern are likely to recur.

Our court has consistently held that when a contro-

versy is an on-going one, the case has not become

moot. In Gary H. v. Hegstrom, 831 F.2d 1430, 1431

(9th Cir. 1987), we held that a case had not become

moot because, despite growing accord between the

parties, continuing controversy remained. Earlier,

we held in Seay v. McDonnell Douglas Corp., 533

F.2d 1126, 1130 (9th Cir. 1976), that a defendant’s

voluntary cessation of wrongdoing did not render the

case moot because it provided no assurance that the

alleged wrongdoing would not recur. Both these cases

support the more general proposition that when the

possibility of controversy remains, the case is not yet

moot. The Third Circuit has explicitly held that ‘an

appeal will not be deemed moot if there is a reason-

able likelihood that the parties will contest the same

issues in a subsequent proceeding.’ Hooker Chem.

Co. v. EPA, 642 F.2d 48, 52 (3d Cir. 1981) (citing

Klein v. Califano, 586 F.2d 250, 255-56 (3d Cir.

1978) (en banc)). We agree with the position of

the Third Circuit and hold that because appellants

concede that contested issues could arise again, con-

troversy still smolders. The case, therefore, cannot be

moot.”

App. B at 15a-16a.

There are no leases offshore of the other counties. The

possibility of recurrence exists as to those counties be-

cause plans to offer such leases have been approved and

stand to be implemented someday, even though those

plans are currently stalled by the leasing moratoria. It

simply cannot be true that the case of the northern coun-

ties (where there are no leases) is not moot because of

the possibility of lease sales while the controversy as to

San Luis Obispo is moot even though there are existing

leases currently undergoing development.

To start with, it is fundamental, as this Court itself

has observed, that a lawsuit is not moot if the problem

is capable of repetition and a decision on mootness would

defeat review. United States Parole Comm’n v. Geraghty,

445 U.S. 388, 398-400, 100 S.Ct. 1202, 63 L.Ed. 2d 479

(1980); Weinstein v. Bradford, 423 U.S. 147, 149, 95

S.Ct. 2394, 44 L.Ed. 2d 664 (1975); Southern Pacific

Terminal Co, v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed.

310 (1911). And, where a case is brought in a represen-

tative capacity on behalf of a class or group of plain-

tiffs, the probability of recurrence is determined by ref-

erence to the entire class. Thus, in Sosna v. Iowa, 419

U.S. 393, 95 S.Ct. 558, 42 L.Ed. 2d 532 (1974), this

Court had before it a class action challenging Iowa’s

residency laws for divorce. By the time the case reached

the Supreme Court, the plaintiff had been in Iowa long

enough to meet the residency requirement. This Court

concluded the case was not moot, because appellant

“sought to litigate the constitutionality of the durational

residency requirement in a representative capacity.” Id.

at 399. In Franks v. Bowman Transportation Co., Inc.,

424 U.S. 747, 752-57, 96 S.Ct. 1251, 47 L.Ed. 2d 444

(1976), this Court went farther and allowed the repre-

sentative action even where the individual representa-

tive himself had been shown to have no claim.

This is a representative action brought on behalf of

the industry as a whole. WSPA and NOIA sue by virtue

of the right of an association to bring suit if its members

suffer or are threatened with injury. See Hunt v. Wash-

ington State Apple Advertising Comm., 432 U.S. 333, 97

S.Ct. 2434, 58 L.Ed. 2d 383 (1977); Warth v. Seldin,

422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed. 2d 343 (1975) ;

American Petroleum Institute v. Knecht, 456 F.Supp.

889 (C.D. Cal.), affd 609 F.2d 1306 (9th Cir. 1978).

It is alleged in the complaint and not denied that there

are outstanding leases held by WSPA’s members and

numerous service companies who are deprived of the op-

portunity to work on those leases, represented by NOIA.

The complaint further alleges that discoveries have been

made in at least five different units formed of those

leases and that projects are ongoing. App. I at 97a.

On the motion for summary judgment, the Henderson

Declaration identified another project, the Lion Rock

Unit, which was in progress. App. H at 86a. It was set

forth that the elimination of local onshore facilities is

effectively a prohibition of offshore operations. Jd. Such

facilities are needed, not only for processing of produced

oil, but as logistical support, e.g., helicopter and boat

bases for exploration activities which take place before

development. Jd. at 87a. Under Sosna v. lowa, supra,

and Franks v. Bowman Transportation Company, supra,

the concept of mootness has no application in this case.

V. THE COURT OF APPEALS’ DECISION IS

EQUALLY INCONSISTENT WITH THE LAW AP-

PLICABLE TO RIPENESS

While the Court of Appeals spoke of “mootness,” it

seems to us more likely that what it probably had in

mind was concepts of ripeness. The statement that there

are “no other developments” has little to do with moot-

ness, but suggests that the appellate court was of the

view that except for the Shell project, the case is not ripe.

Indeed, that is the only possible ground for affirming the

lower court ruling as to the City of San Luis Obispo and

the City of Morro Bay.

The classic decision of this Court on the subject of

ripeness is Abbott Laboratories v. Gardner, 387 U.S. 136,

87 S.Ct. 1507, 18 L.Ed. 2d 681 (1967). Abbott Labora-

tories dealt with a situation in which the Food and Drug

Administration wrote a letter to companies throughout

that industry threatening criminal prosecution if the

companies proceeded in a certain way. The Court held

that was sufficient to establish a ripe controversy, based

on the criteria established in that case of the fitness of

the issues for judicial consideration and the hardship to

the parties of avoiding judicial review. 387 U.S. at 148-

49. WSPA believes that both of the criteria in Abbott

Laboratories are plainly satisfied as to San Luis Obispo

County and the cities of San Luis Obispo and Morro Bay

within the County.

First, an issue of law—the validity of an ordinance—

is presented. That alone goes a long way toward estab-

lishing ripeness. Second, there is genuine hardship. The

ordinances require that companies who wish to install

facilities after completing all of the normal complex and

burdensome permit requirements must submit the permit

finally obtained to a referendum and go forward only if

they win. The determination of the final issuance of a

permit on that basis is at best a dice game and at worst

a certain loser. Particularly with Shell’s experience in

mind, every applicant will recognize that whatever luck

he has working through the City or County Planning

Department and the Board of Supervisors or City Coun-

cil thereafter (a process which by itself takes years and

requires millions in engineering costs), it is singularly

unlikely that he will survive the final challenge in the

electorate. At best, he knows that the result is highly

uncertain. He also knows that the result will depend on

the degree of local hostility to offshore development it-

self and not on the merits or demerits of the onshore

portion of the project. What he will have before him is

in effect a referendum on the validity of Congress’ policy

for developing the OCS. That is what happened to Shell,

this is doubtless what will happen the next time. If an

applicant cannot challenge such an ordinance before he

embarks on that course, he is unlikely ever to embark on

it at all.*

This is thus a case directly on point with this Court’s

decision in Pacific Gas & Electric Co. v. State Energy

Resources Conservation & Dev. Comm’n, 461 U.S. 190,

103 S.Ct. 1718, 75 L.Ed. 2d 752 (1983) (“PG&E”). In

that case, this Court had before it two sections of the

California Public Resources Code dealing with nuclear

energy. The first section provided that before additional

nuclear power plants were built, the State Energy Com-

mission had to determine, on a case by case basis, whether

there would be adequate capacity at the new plants for

short-term storage of spent fuel rods. The second sec-

tion declared a general moratorium on the certification

of new plants until a finding had been made that an ap-

propriate technology or means for the disposal of high-

level nuclear waste had been developed. Both were chal-

lenged under federal policies providing for nuclear reg-

ulation and under federal statutes favoring nuclear de-

velopment. This Court found that the controversy was

ripe as to the prohibition (moratorium) against construc-

tion of nuclear power plants until a permanent reposi-

tory was established. The Court specifically found that

postponing review would “work substantial hardship” on

the plaintiff utilities. That particular hardship is ex-

actly what he have here. The Court stressed that:

“As the Court of Appeals cogently reasoned, for the

utilities to proceed in hopes that, when the time

3 It is notable in that connection that Shell had nearly completed

the permit process when the ordinance requiring the referendum

was adopted.

for certification came, either the required findings

would be made or the law would be struck down,

requires the expenditure of millions of dollars over

a number of years, without any certainty of recovery

if certification were denied. The construction of new

nuclear facilities requires considerable advance plan-

ning—on the order of 12 to 14 years. Thus, as in the

Rail Reorganization Act Cases, 419 U.S. 102, 144

(1974), ‘decisions to be made now or in the short

future may be affected’ by whether we act. ‘One

does not have to await the consummation of threat-

ened injury to obtain preventive relief. If the in-

jury is certainly impeding that is enough.’ /d. at

143, quoting Pennsylvania v. West Virginia, 262

U.S. 553, 593 (1923). To require the industry to

proceed without knowing whether the moratorium

is valid would impose a palpable and considerable

hardship on the utilities... .”

461 U.S. at 201-202.

Like the public utilities in the PG&E case, WSPA

members must spend considerable time and expense—

measured in terms of many years and millions of dollars

—in developing leases to the point where permits for on-

shore facilities can be presented to the electorate for ap-

proval. This is an expense which is totally wasted if the

election is lost. There has been only one election so far,

and it was lost. This uncertainty is enough to render the

issue ripe for review under the Abbott Laboratories and

PG&E decisions.*

4 The District of Columbia Court of Appeals has held that where

a matter clearly satisfies the Abbott Laboratories “fitness” test,

lack of hardship “. . . cannot tip the balance against judicial re-

view,” and the court consequently “need not consider” whether the

claimant would suffer any hardship from postponing review. Air

Transport Ass’n of America v. Dept. of Transportation, 900 F.2d

369, 374 (D.C. Cir. 1990) ; Consolidated Rail Corp. v. United States,

896 F.2d 574, 577 (D.C. Cir. 1990). The Court of Appeals decision

In contrast, the Court in PG&E found the short-term

storage capacity determination issue to be unripe. The

Court reasoned that “there is little likelihood that indus-

try behavior would be uniquely affected by whatever

uncertainty surrounds the interim storage provisions.”’

461 U.S. at 203. There was no reason to believe that

permits for reasonable storage would be denied and none

had been. To the contrary, total uncertainty—or a nega-

tive certainty—will continue to surround the San Luis

Obispo leases. Moreover, the simple holding of the refer-

endum, since it is almost inevitably a referendum over

voter satisfaction with or hostility to federal policies for

the development of the OCS, amounts to a practical

transfer of jurisdiction over such development on the

OCS from the United States to the local electorate. Such

jurisdiction is plainly reserved to the United States. 43

U.S.C. § 1332.

CONCLUSION

WSPA submits that the ordinances challenged here are

unconstitutional on their face. The ordinances are in-

tended to prevent implementation of the federal policy

for expeditious and orderly development of the OCS.

They build a wall against a particular kind of interstate

commerce. Because of the seriousness and national im-

portance of this issue, we respectfully urge that this

Court grant certiorari on the entire case as addressed by

the district court. If, however, the Court should grant

certiorari on the issues of ripeness and mootness only

(the issues covered by the Court of Appeals), then we

would respectfully ask this Court to consider whether

this is not one of those rare cases in which it is appro-

here is in conflict with that view and thus this Court should grant

review in order to resolve the conflict.

priate to grant certiorari and remand summarily with

directions to consider the merits.

Respectfully submitted,