Reply Brief — Western States Petroleum Ass'n v. Sonoma County

IN THE

Supreme Cort of the United States

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.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITIONERS’ REPLY BRIEF

PHILIP K. VERLEGER

(Counsel of Record)

RECEIVED DONNA R. BLACK

HAND DELIVERED BRADLEY R. HOGIN

BAKER & HOSTETLER,

JAN 4 ~ 199] McCUTCHEN BLACK

. 600 Wilshire Boulevard

OFFICE OF THE CLERK Los Angeles, California 90017

| SUPREME COURT, U.S. (213) 624-2400

Counsel for Petitioners

Western States Petroleum

Association and

National Ocean Industries

Association

here ence Er oR IS 2 are + OR ETE ATMS ST

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

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I.

TABLE OF CONTENTS

i TEA AA A TOE AT

II. THE ORDINANCES ARE FINAL LEGISLA-

Ill.

IV.

TIVE ENACTMENTS. NO ADMINISTRA-

TIVE PROCEEDINGS CAN ADDRESS ADE-

QUATELY THE ISSUES RAISED BY THIS

TI» Sxciccscsmevebiinicseneenine saieiicateealibhisitcbinieeasetbiie

THE LOCAL ORDINANCES ARE RIPE FOR

A CONSTITUTIONAL CHALLENGE ..............

RESPONDENTS INCORRECTLY ARGUE

THAT THE CASE IS MOOT ............................

ii

TABLE OF AUTHORITIES

CASES: Page

Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496,

SED Ce GR BD si siciaeiccceeaiti tess 4

Doe v. Maher, 793 F.2d 1470, 1490 (9th Cir. 1986),

aff'd, 494 U.S. 305, 108 S.Ct. 592 (1988) _.......... 4

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

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

GID vacciseonenieslcats SS Re SSD. SDE REY TEPC 6

Lujan v. National Wildlife Federation, USS.

er GPs | RR Re 5

National Solid Wastes Management Association

v. Alabama Department of Environmental Man-

agement, 910 F.2d 713 (11th Cir. 1990) —.......... 7

Sosna v. Iowa, 419 U.S. 398, 95 S.Ct. 553, 42 L.Ed.

| RR RRRR TOTES 6 5 et eran SEC ere 6

Southern Pacific Terminal Co. v. ICC, 219 US.

498, 31 S.Ct. 279, 55 L.Ed. 310 (1911) ................. 6

United States Parole Comm’n v. Geraghty, 445 U.S.

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

RIED scisccscsksscenestscoh Secstnamnaaademeennaediane seetamapeieieealasuadiaaas 6

Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct.

$47, 46 L.Ed. 2d 350 (1976) ................................. 6

Wilson v. Marana Unified School Dist. No. 6, 735

F.2d 1178, 1181 (9th Cir. 1964) ........................... 4

STATUTES

California Public Resources Code

Be I cicenccecoiascacenueecpaeenineeienanaades aes 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-805

WESTERN STATES PETROLEUM ASSOCIATION;

NATIONAL OCEAN INDUSTRIES ASSOCIATION,

Petitioners,

Vs

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 OBtsPpo and CITY OF SANTA CRUZ,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITIONERS’ REPLY BRIEF

I, PRELIMINARY.

There is a fundamental, underlying question presented

in this case: whether states can preclude offshore oil and

gas development by the United States by imposing pro-

cedural burdens to deny access to the land onshore. From

2

the Mexican to the Oregon border, respondents, through

the local ordinances at issue in this case, seek to construct

an unbroken wall to block out offshore oil. One project

belonging to several members of petitioner Western States

Petroleum Association (“WSPA”) has already been de-

feated by the initiative requirement in the San Luis

Obispo County ordinance.

Despite the urgent need for resolution, the primary

thrust of respondents’ argument—just as it was in the

Court of Appeals and the district court—is to avoid a

decision in the case. They argue that the case is not

ripe; that it is premature; that it is moot; and finally

that there is some imaginary administrative remedy.

They assert that the San Luis Obispo County election on

the San Miguel project was a nullity; that it had no

effect on this case; that it is completely “hypothetical”

to assume that other projects may meet a similar fate

under other ordinances. There is nothing hypothetical,

however, about the fact that an election occurred in San

Luis Obispo County; that 56 percent of the population

voted against the San Miguel project; and that the project

as voted on was no longer viable.

There is also nothing hypothetical about the fact that

the effect of the Court of Appeals’ decision is practically

to foreclose challenge of the subject ordinances. That

decision effectively holds that possession of a lease is not

sufficient to enable a company to challenge these ordi-

nances, even if large amounts of money have been spent

on purchase, exploration and development of the lease.

A “proposed development” is necessary but, as in the case

of the San Miguel project, if a project proponent loses an

election and decides to take his project elsewhere, then

even that project no longer qualifies as the basis for a

challenge. Thus, a full-fledged project which is denied

access and is forced to go somewhere else is not enough,

but neither is possession of a lease without a _ project.

And, after the election defeat of the San Miguel project

3

and what that says about other projects being accepted

in the San Luis Obispo area, no rational company would

propose another project there. The result is that the

ordinances will accomplish their objective of closing the

door to San Luis Obispo County and its cities and yet

will never be subject to challenge.’

II. THE ORDINANCES ARE FINAL LEGISLATIVE

ENACTMENTS. NO ADMINISTRATIVE PROCEED-

INGS CAN ADDRESS ADEQUATELY THE ISSUES

RAISED BY THIS LAWSUIT.

Respondents spend a good deal of time arguing that

petitioners’ Writ should be denied because petitioners

failed to exhaust their administrative remedies under

state law, particularly the California Coastal Act. Even

if there was some requirement under the facts of this

case that administrative remedies be exhausted—and we

submit there is not—respondents are less than candid to

suggest that this truly presents a viable alternative for

petitioners in this case. First, the requirement in Cal.

Pub. Res. Code § 30514 for California Coastal Commission

(“Commission”) review of the ordinances before inclu-

sion in the local coastal programs is not enforceable by

WSPA. Accordingly, WSPA members have no adminis-

trative means to force the local governments to submit

any of the local ordinances to review by the Commission.

Second, even if the local ordinances are reviewed and

approved by the Commission, this has no effect on pipe-

lines and other portions of energy projects located out-

side the coastal zone.

'The Court of Appeals held that the ordinances of the City of

San Luis Obispo and the City of Morro Bay were valid. This,

coupled with the election defeat of the San Miguel project, has a

significant negative impact on the ability of WSPA members to

move forward with onshore facilities for projects in any of the

affected areas, inciuding San Luis Obispo County and the cities

of San Luis Obispo and Morro Bay. Aceordingly, it is appropriate

to request a review of both the city and county ordinances at this

time.

4

Third, although the Coastal Act does provide in certain

limited circumstances for appeal of denial of permit ap-

plications by local governments, respondents themselves

admit that these provisions do not cover all of the com-

ponents of energy projects at issue here and they are, of

course, completely irrelevant for ordinances that are not

submitted to the Commission and are simply enforced as

local law. Finally, even if the Commission overrides a

local government and allows siting of a particular facil-

itv, that is in no sense a review of the underlying validity

of the ordinances challenged here. One project may be

allowed to go forward, but the ordinances will still be

in effect to block other projects. Thus, resort to the

remedies claimed by respondents will merely bypass the

issue—unconstitutionality of the ordinances—presented

here.”

“TE ]xhaustion is not required if administrative reme-

dies are inadequate or not efficacious . . . where pursuit of

administrative remedies would be a futile gesture .. .

[wlhere irreparable injury will result unless immediate

judicial review is permitted... .” Aleknagik Natives Ltd.

v. Andrus, 648 F.2d 496, 499 (9th Cir. 1980) (citations

omitted). Where an adequate administrative remedy is

unavailable, a litigant need not exhaust an inadequate

remedy. Doe v. Maher, 793 F.2d 1470, 1490 (9th Cir.

1986), aff'd, 494 U.S. 305, 108 S.Ct. 592 (1988) ; Wilson

v. Marana Unified School Dist. No. 6, 735 F.2d 1178,

1181 (9th Cir. 1984). No adequate remedy for the un-

constitutional ordinances at issue exists outside of this

lawsuit.

* Respondents’ own prior admissions cast doubt on their argu-

ment here. Footnote 11 of respondents’ original brief in support

of their motion to dismiss the complaint, at pp. 9-10, states: “Nor

do all the defendants in this case agree that their ordinances are

subject to Coastal Commission review and override.” Clerk’s Rec-

ord (Document No. 21).

5

Ill. THE LOCAL ORDINANCES ARE RIPE FOR A

CONSTITUTIONAL CHALLENGE.

Respondents argue, as they did in the courts below,

that this case is not ripe. But their position, correctly

understood, is nothing more than a plea for delay. Thus,

respondents attempt to persuade this Court that it is

proper to defer review until WSPA’s members have spent

millions of dollars on purchasing and attempting to de-

velop outer Continental Shelf (“OCS”) leases and service

facilities before they can determine their rights to de-

velop the onshore support facilities needed to make the

projects feasible.* Respondents gain a great deal by this.

For, to the extent that WSPA’s members determine that

they cannot risk such huge sums and decide not to pro-

ceed—the only prudent course given the result on Shell

Oil Company’s San Miguel project—the respondents will

have achieved their goal of stopping oil and gas develop-

ment on the OCS, completely insulated from any judicial

review of their conduct. It cannot be disputed that the

ordinances apply as law today, and all musi alter their

conduct according to their directions.*

*On page 13 of their opposition, respondents assert that the

record in the district court demonstrated that ample sites not

subject to challenged ordinances still exist along the California

coast and that the ordinances were adopted in areas unsuitable for

onshore pretroleum facilities. These assertions are unfounded. The

supplemental declaration of Douglas Henderson filed January 4,

1988 in support of plaintiffs’ motion for partial summary judg-

ment provides detailed testimony that plainly refutes respondents’

sweeping assertions. A copy of Mr. Henderson’s supplemental dec-

laration is provided as Appendix G filed by petitioners in their

Appendix to Petition for Writ of Certiorari. See pages 63A-77A of

Appendix.

4 Respondents rely on the recently decided case of Lujan v.

National Wildlife Federation, —-— U.S. ——, 110 S.Ct. 3177

(1990) to support their position that this case is not ripe. How-

ever, Lujan has nothing to do with land use ordinances like those

at issue here. Further, in Lujan, the Court found against plaintiff

because it had not demonstrated that it was adversely affected by

6

IV. RESPONDENTS INCORRECTLY ARGUE THAT

THE CASE IS MOOT.

Respondents are unable to offer support for the Ninth

Circuit’s holding that the case as to San Luis Obispo

County is moot. They do not dispute the fundamental

proposition that a lawsuit is not moot if the problem is

capable of repetition. 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,

96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Southern Pacific

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

310 (1911). Where a case is brought in a representa-

tive capacity on behalf of a class or group of plaintiffs,

the probability of recurrence is determined by reference

to the entire class.°

It is alleged in the complaint and not denied that there

are outstanding leases in the San Luis Obispo area held

by WSPA’s members and numerous service companies, rep-

resented by the National Ocean Industries Association,

who are deprived of the opportunity to work on those

leases. The complaint further alleges that discoveries

have been made in at least five different units formed out

of those leases and that projects are ongoing. It simply

cannot be true that the case of the northern counties

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

possibility of lease sales while the controversy as to San

the challenged agency action. Here, petitioners have clearly estab-

lished such adversity on the basis of the election defeat of the San

Miguel project and the holding of leases by other WSPA members

in which development is significantly hampered by the ordinances.

5 See Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed. 2d 532

(1974) [The Court concluded the case was not moot, because appel-

lant sought to litigate the constitutionality of a state law require-

ment in a representative capacity]: Franks v. Bowman Transpor-

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

444 (1976) [the Court allowed the representative action even

where the individual representative had been shown to have no

claim}.

7

Luis Obispo is moot even though there are existing leases

currently undergoing develepment.*

Respectfully submitted,

PHILIP K. VERLEGER

(Counsel of Record)

DONNA R. BLACK

BRADLEY R. HOGIN

BAKER & HOSTETLER,

McCCUTCHEN BLACK

600 Wilshire Boulevard

Los Angeles, California 90017

(213) 624-2400

Counsel for Petitioners

Western States Petroleum

Association and

National Ocean Industries

Dated: January 4, 1991 Association

* Respondents say little about the Supremacy Clause and Com-

merce Clause violations alleged here, perhaps because recent case

law supports petitioners’ position. See National Solid Wastes Mea»-

agement Association v. Alabama Department of Environmental

Management, 910 F.2d 713 (11th Cir. 1990), where an Alabama

statute which prevented commercial waste management facilities

from accepting hazardous wastes generated in states other than

Alabama was held violative of the Commerce Clause as a potection-

ist measure. The Court rejected that state’s claim that the statute

was directed toward a iegitimate state concern—assurance of suffi-

cient disposal facilities for the state and minimizing danger to

public health by uncontrolled and untreated hazardous wastes

coming in from other states—and held, instead, that the statute

discriminated among out-of-state waste generators and i posed on

these generators the burden of conserving Alabama’s | emaining

hazardous waste disposal capacity. Jd. at 720. The local ordinances

at issue here are similar protectionist measures which seek to iso-

late coastal communities from the effects of offshore oil development.