Opposition Brief — Alaska v. United States

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No. 92-1885 i A

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In the Supreme Court of the Cited States —

OCTOBER TERM, 1993

STATE OF ALASKA, PETITIONER

Uv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

DREw S. Days, III

Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

J. CAROL WILLIAMS

PETER A. APPEL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

Mian,

| BEST AVAILABLE

QUESTION PRESENTED

Whether a State has standing as parens patriae to sue

the federal government under the Alaska National

Interest Lands Conservation Act, 16 U.S.C. 3120.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alaska v. United States Dep't of Transportation, 868

ORE AS |) rrr 11

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,

ME UMD scnsssaneusssscacssnesacenscvescanceaceosessacccssees. 5, 6, 7, 9

Amoco Production Co. v. Village of Gambell, 480 U.S. 531

tac latir cass actnsdcaes sopsensasacuvsteaaceesassonaacscces,, 3

Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ...... 10

Florida v. Mellon, 273 U.S. 12 (1927) -oeccccccccccccccceceeceeeees. 7

Hagans v. Lavine, 415 U.S. 528 (1974) cecccccccccccccccececceeee. 8-9

Towa ex rel. Miller vy. Block, 771 F.2d 347 (8th Cir.

1985), cert. denied, 478 U.S. 1012 (1986) ....................... 9-10

Maryland People’s Counsel v. FERC, 760 F.2d 318 (D.C.

eS SERIE Re 8, 10

Massachusetts v. Mellon, 262 U.S. 447 (1928) .......cccc0.-. 6, 7, 8, 9

Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990), cert.

denied, 111 S. Ct. 2052 (1992) oo... cscecceccescccessessesescees 6, 9

New York v. United States, 65 F. Supp. 856 (N.D.N.Y.

1946), aff’d, 331 U.S. 284 (1947) ooo cccccccccccccccecccceeee. 8

New York v. United States, 331 U.S. 284 SED cactcnvianani, 8

Pennhurst State School & Hosp. v. Halderman, 465 U.S.

ak nda ckksscudecauanasasesiaisesicseareceenancsess 8

Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672.

Recta doa lscsncnsdpnasnnandescaevasvncccesossceesesss:

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ......... 7

(IIT)

Cases—Continued:

United States Dep’t of the Interior v. FERC, 952 F.2d

Ee Ce Sees Re tan vecacun ccc nesasaciicensenvctis teeneetaeneascacnsens

Washington Utilities & Transportation Comm’n v. FCC,

513 F.2d 1142 (9th Cir.), cert. denied, 423 U.S. 836

CSU sicssiaaccaivgeu pcan cucu aie catia iabdpakaalnnasaecienakakatadin

Wisniewski v. United States, 353 U.S. 901 (1957) ............

Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th

RA. 7 EPID ciaterauecsis Vosuadhensca aba camiarsdcscxsepecendseonemraniuaantn cons

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 702 .......0000..0...

Alaska National Interest Lands Conservation Act, Pub. L.

No. 96-487, 94 Stat. 2371 (16 U.S.C. 3101 et seq.) ..........

De ea I Wecatecchckevhaunksarscdsuuinctedysectsacsbianis

Ba ee ers ele np tren escnnsescconnbesnucanenesss

§ 1303(a)(1), 16 U.S.C. 3193(a)(1) ........ cee eeeeeeeeeeee

§ 1303(a)(2), 16 U.S.C. 3193(a)(2) ............ eee eeeeeeeees

§ 1303(aX3), 16-U.S.C. SISS(aNS) ...............cc0.ccccesceeee

§ 1303(a)(4), 16 U.S.C. 3193(a)(4) ..............ccesccseeeeeeees

Oe Rr ara, UE eta i RU iidaenieertanand

Oe RE ee TE No ean ekcsaccurcncechchy nncobadteuculicicebkcquaeininssonictnns

National Environmental Policy Act, 42 U.S.C. 4331 et

I rai arian S ts catlan uaa sage duncessl kadcaeds ean thinsianh banoaneteone

36 C.F.R. (1986):

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I OED sadsinniohiaisene sees nenaneianictannsennievnies

NE ce PIED cctanscenccanerosnanincasntirentinnssanisenienioners

Miscellaneous:

Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79 ..

12 J. Moore, H. Bendix & B. Ringle, Moore’s Federal

PORES TE OG. TUE ccissitecscinsccedectin iss eceseeenes

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Miscellaneous—Continued: Page

National Park System Units in Alaska:

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S. Rep. No. 418, 96th Cong., Ist Sess. (1979) wo...

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Jn the Supreme Court of the Anited States

OCTOBER TERM, 1993

No. 92-1885

STATE OF ALASKA, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-5a)

is unpublished, but the judgment is noted at 981 F.2d

1259 (Table). The opinion of the district court (Pet.

-App. 8a-48a) is unpublished.

JURISDICTION

The judgment of the court of appeals (Pet. App. 6a-

7a) was entered on December 7, 1992. A petition for

rehearing was denied on February 25, 1993. Pet. App.

44a-45a. The petition for a writ of certiorari was filed

on May 26, 1993. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. In 1980, Congress enacted the Alaska National

Interest Lands Conservation Act (ANILCA), Pub. L.

No. 96-487, 94 Stat. 2371 (codified at 16 U.S.C. 3101 et

seq.), to add substantial tracts of land to the national

park system in Alaska. In so doing, Congress took

cognizance of the fact that many Alaska residents

occupied cabins and other sites on the land covered by

the Act without any legal interest in the occupied

land. See S. Rep. No. 413, 96th Cong., Ist Sess. 304

(1979). Because Alaska residents in many instances

had lived on those lands for many years unaware of

the legal requirements of the public land laws,

Congress sought to establish a permitting system

that would allow a continuation of that life style

where it did not present a real danger to the

resources that the Act sets aside. bid.

To implement that goal, ANILCA established a

tiered system for the treatment of persons who

occupied cabins on the national park system lands

created or added by the Act. Specifically, the Act

made available three types of permits for continued

occupancy. First, the occupants of cabins existing

before December 18, 1973, could apply for five-year

renewable, nontransferable permits. 16 U.S.C. 3193

(a)(1). Second, persons who began to occupy or use

cabins between December 18, 1973, and December 1,

1978, were eligible for nonrenewable, nontransferable

one-year occupancy permits. 16 U.S.C.\3193(a)(2).

Third, the Secretary of the Interior was given

authority to issue permits “under such conditions as

he may prescribe for the temporary use, occupancy,

construction and maintenance of new cabins or other

structures if he determines that the use is necessary

to reasonably accommodate subsistence uses or is

otherwise authorized by law.” 16 U.S.C. 3193(a)(4).’

In enacting ANILCA, Congress also adopted proce-

dural protections for subsistence users of public

lands. Section 810(a) of ANILCA, 16 U.S.C. 3120(a),

provides:

In determining whether to withdraw, reserve,

lease, or otherwise permit the use, occupancy, or

disposition of public lands under any provision of

law authorizing such actions, the head of the

Federal agency having primary jurisdiction over

such lands or his designee shall evaluate the

effect of such use, occupancy, or disposition on

subsistence uses and needs, the availability of

other lands for the purposes sought to be achieved,

and other alternatives which would reduce or

eliminate the use, occupancy, or disposition of

public lands needed for subsistence purposes.

If one of the actions enumerated in Section 810(a)

“would significantly restrict subsistence uses,” the

pertinent federal agency may not proceed until it

determines, after notice and a hearing, that the

restriction on subsistence uses is necessary; that the

action will use “the minimal amount of public lands

necessary” to achieve its purposes; and that “rea-

sonable steps” will be taken to minimize the impact on

“subsistence uses and resources.” Ibid.; see Amoco

Production Co. v. Village of Gambell, 480 U.S. 531,

544 (1987).

' Cabins and other structures not under such a permit may

be used only for official government business. 16 U.S.C.

3193(a)(3).

2. This case arises from the issuance by the

National Park Service (NPS) of regulations govern-

ing the use of cabins and other structures on national

park system lands in Alaska. On April 3, 1984, the

NPS issued a notice of proposed rulemaking on that

subject. National Park System Units in Alaska, 49

Fed. Reg. 18,160. After considering 269 written com-

ments and holding three public hearings, the NPS

issued a final rule concerning the use of cabins. See

National Park System Units in Alaska, 51 Fed. Reg.

33,474 (1986). That rule, which is codified at 36 C.F.R.

13.17, establishes procedures for granting cabin use

and occupancy permits on national park system

lands.” In adopting the final rule, the NPS prepared

an environmental assessment, as required by the

National Environmental Policy Act, 42 U.S.C. 4331 et

seq., and prepared an evaluation of the effects of the

rulemaking on subsistence uses, as required by

Section 810 of ANILCA, 16 U.S.C. 3120. 51 Fed. Reg.

at 33,484. NPS concluded that the proposed action

would not result in a significant restriction of subsis-

tence uses. Pet. App. 22a.

3. Petitioner State of Alaska brought this action

against the United States, the NPS, and the

Secretary of the Interior challenging the regulations

issued by the NPS on the ground that the NPS did

not adequately perform the subsistence analysis

under Section 810.° Citing this Court’s decision in

* The rule required, inter alia, that a permittee occupy the

cabin “a substantial portion of the time” (86 C.F.R. 13.17(e)(2))

—which is defined as four continuous months and six months

total in each year after 1986. 36 C.F.R. 13.17(c).

* Various environmental groups also intervened to challenge

the NPS’s regulations. See Pet. App. 9a n.1, 12a.

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.

Barez, 458 U.S. 592 (1982), the government moved to

dismiss on jurisdictional grounds, arguing that

petitioner lacked standing to bring the action as

parens patriae against the federal government. The

district court denied that motion, reasoning that the

alleged injury to the health and welfare of petitioner’s

citizens gave it standing to sue as parens patriae.

See Pet. App. 12a-14a.

On the merits, the district court rejected certain

procedural objections made by petitioner to the NPS’s

adoption of and refusal to reconsider the pertinent

regulations. See Pet. App. 17a-2la. The court also

found that the NPS had complied with statutory

requirements of Section 810. See Pet. App. 21a-25a.

The court first rejected petitioner’s contention that

the NPS had improperly conducted a Section 810

analysis without a meaningful opportunity for public

comment; because Section 810 requires public com-

ment only where, unlike here, the agency finds a

significant restriction on subsistence uses, it con-

cluded that no public comment was required in this

‘ase. Pet. App. 23a-24a. The court similarly rejected

petitioner’s claim that the NPS had relied on outdated

information in making its Section 810 evaluation,

pointing out that petitioner “ha[d] not shown how

more up-to-date information * * * would support a

significantly different evaluation outcome.” Pet. App.

20a.!

4. In an unpublished opinion, the court of appeals

remanded the case for dismissal of petitioner’s suit on

standing grounds. Pet. App. la-5a. The court

* The district court also invalidated two regulations not at

issue here. Pet. App. 30a-36a.

reasoned that Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez, supra, made clear that a State

does not have standing as parens patriae to bring

suit against the federal government. Pet. App. 38a.

Although ves Noone of appeals acknowledged that

parens patriae standing would at one time have been

available under Ninth Circuit precedent, the court

explained that it had since construed this Court’s

subsequent decision in Snapp to require a different

result. Pet. App. 3a (citing Nevada v. Burford, 918

F.2d 854, 858 (9th Cir. 1990), cert. denied, 111 S. Ct.

2052 (1991)). Finally, the court of appeals rejected

petitioner’s contention that the judicial review

provisions of the Administrative Procedure Act

(APA), 5 U.S.C. 702, and ANILCA implicitly granted

petitioner standing.’ Pet. App. 4a.

ARGUMENT

Petitioner argues that the court of appeals erred in

rejecting petitioner’s standing as parens patriae to

sue the federal government. Pet. 11-21. That con-

tention is inconsistent with this Court’s cases and

with the uniform decisions of every court of appeals to

have considered the issue since this Court’s decision

in Snapp. Further review of the unpublished decision

below therefore is unwarranted.

1. In Massachusetts v. Mellon, 262 U.S. 447, 485

(1923), this Court rejected the principie that “a State,

as parens patriae, may institute judicial proceedings

to protect citizens of the United States from the

5 The court also dismissed the interyenors’ claims because

they had not demonstrated standing to sue. Pet. App. 4a-5a.

The intervenors have not sought further review.

operation of the statutes thereof.” As the Court

there explained:

While the State, under some circumstances, may

sue in that capacity for the protection of its

citizens, it is no part of its duty or power to

enforce their rights in respect of their relations

with the Federal Government. In that field it is

the United States, and not the State, which

represents them as parens patriae, when such

representation becomes appropriate; and to the

former, and not to the latter, they must look for

such protective measures as flow from that

status.

Id. at 485-486 (citation omitted). The Court has

consistently reaffirmed that principle in subsequent

cases. See Snapp, 458 U.S. at 610 n.16 (“A State does

not have standing as parens patriae to bring an

action against the Federal Government.”); South

Carolina v. Katzenbach, 383 U.S. 301, 324 (1966);

Florida v. Mellon, 273 U.S. 12, 18 (1927); see also 12

J. Moore, H. Bendix & B. Ringle, Moore’s Federal

Practice J 350.02[3], at 3-20 (2d ed. 1993) (“a state has

no standing to sue as parens patriae to protect

citizens of the United States from the operation of a

federal statute because it is the United State[s]

which stands as parens patriae in such a case and not

an individual state”).®

® As one commentator has explained, the doctrine that

States lack standing to sue the United States as parens patriae

reflects

the principle that the federal government is a sovereign

coexisting in the same territory with the states and acting,

not through them, like some international organization, but

directly upon the citizenry, which is its own as well as

Petitioner argues (Pet. 13-14) that the principle of

Massachusetts v. Mellon was undercut by this

Court’s decisions in New York v. United States, 331

U.S. 284 (1947), and Phillips Petroleum Co. v.

Wisconsin, 347 U.S. 672 (1954). To be sure, in New

York v. United States, this Court reached the merits

in a case in which the district court had permitted

States to challenge an ICC order as parens patriae.

See New York v. United States, 65 F. Supp. 856, 872

(N.D.N.Y. 1946). But there was an alternative ground

for standing in that case (7bid.), and in affirming the

trial court’s decision (which had sustained the ICC

order), this Court did not address the issue of

standing. Nor did this Court address standing in

Phillips Petroleum,’ which affirmed a court of

appeals’ decision that reversed an order of the FPC

and that likewise did not address the standing issue.

“(When questions of jurisdiction have been passed on

in prior decisions sub silentio, this Court has never

considered itself bound when a subsequent case

finally brings the jurisdictional issue before [it].”

Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 119 (1984) (quoting Hagans v. Lavine, 415

theirs. The states are built into the political structure of

the federation, and play their part in the formation of its

institutions. But they are not to contest, as if between one

sovereign and another in some quasi-international forum,

the actions of the national institutions. For the national

government is fully in privity with the people it governs,

and needs, and should brook, no intermediaries.

Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 89.

7 In any case, as we discuss below, in the context of energy

regulation, Congress has expressly authorized States to sue

federal agencies. See, e.g., Maryland People’s Counsel v.

FERC, 760 F.2d 318, 322 (D.C. Cir. 1985) (discussing cases).

U.S. 528, 533 n.5 (1974)). Hence, the dispositions of

New York and Phillips Petroleum are not binding

precedent on the jurisdictional issue presented here.

And as this Court’s subsequent decision in Snapp

confirms (see 458 U.S. at 610 n.16), those cases did not

silently overrule Massachusetts v. Mellon.” See also

cases cited at page 7, supra.

2. Although some court of appeals decisions prior

to Snapp nevertheless permitted parens patriae

suits against the federal government (see, ¢.g., Wash-

ington Utilities & Transportation Comm'n v. FCC,

513 F.2d 1142, 1153 (9th Cir.), cert. denied, 423 U.S.

836 (1975)), court of appeals decisions since Snapp

have uniformly recognized that States do not have

standing as parens patriae to sue the United States.

See, e.g., Wyoming ex rel. Sullivan v. Lujan, 969

F.2d 877, 882-883 (10th Cir. 1992); Nevada v. Burford,

918 F.2d 854 (9th Cir. 1990), cert. denied, 111 S. Ct.

2052 (1991); Jowa ex rel. Miller v. Block, 771 F.2d 347,

354-355 (8th Cir. 1985), cert. denied, 478 U.S. 1012

8 Petitioner argues (Pet. 12) that Snapp in fact undercuts

the holding of Mellon. It relies on the Court’s observation that

a State may have an interest as parens patriae in seeing that

“its residents are not excluded from the benefits that are to

flow from participation in the federal system.” Snapp, 458

U.S. at 608. But that observation cannot be understood to

overrule the well-settled authority of Mellon and its progeny;

the Court in Snapp was careful to emphasize that the Com-

monwealth’s lawsuit was seeking “to secure the federally

created interests of its residents against private defendants.”

458 U.S. at 610 n.16 (emphasis added). In addition, the Court

explicitly reaffirmed the principle that a State “does not have

standing as parens patriae to bring an action against the

Federal Government.” Jbid. (citing Mellon, 262 U.S. at 485-

486). Accordingly, petitioner’s contention concerning Snapp is

unfounded.

(1986); Maryland People’s Counsel v. FERC, 760 F.2d

318, 320 (D.C. Cir. 1985) (Sealia, J.); ef. Chiles v.

Thornburgh, 865 F.2d 1197, 1208-1209 (11th Cir. 1989)

(denying standing to governor). Thus, contrary to

petitioner’s argument (Pet. 19), Snapp has abated

rather than sown confusion in the lower courts.

Petitioner cites (Pet. 19-20) United States Dep’t of

the Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992),

for the proposition that the courts of appeals are cur-

rently divided over the meaning of Snapp. To be sure,

the court in the Department of the Interior decision

noted that certain “state agencies hald] parens

patriae standing” to challenge FERC licensing

orders on the ground that FERC had insufficiently

considered the environmental impacts. 952 F.2d at 544

n.4. For several reasons, however, that observation,

which the court made in passing, does not create a

conflict warranting review of the unpublished deci-

sion in this case. First, although the D.C. Circuit

found parens patriae standing in Department of the

Interior, it also concluded that two environmental

groups making “identical substantive challenges” had

associational standing (ibid.); hence, the court’s

statement regarding parens patriae standing was

unnecessary to its disposition of the case. Second,

Department of the Interior arose under a statute ex-

plicitly authorizing States aggrieved by a FERC or-

der to challenge the order. See 16 U.S.C. 825l(a) and

(b). No similar authorization appears in ANILCA.’

* The D.C. Circuit has indicated that the limitation on

parens patriae standing is prudential and can be altered by

Congress. See Maryland People’s Counsel, 760 F.2d at 321-322.

Although the unpublished decision here implicitly rejects that

view (see Pet. App. 4a), this case is not an appropriate vehicle

for addressing the issue. ANILCA contains no provision pur-

Third, to the extent that Department of the Interior

is inconsistent with the D.C. Circuit’s earlier deci-

sion in Maryland People’s Counsel, that is a matter

for the D.C. Circuit itself to resolve. See Wis-

niewski v. United States, 353 U.S. 901, 902 (1957)."°

Further review is therefore unwarranted."

porting to authorize States to sue as parens patriae. Petitioner

does not cite, and we are unaware of, any court of appeals

decision holding that ANILCA provides for such standing.

10 Petitioner errs in relying (Pet. 20) on Alaska v. United

States Dep't of Transportation, 868 F.2d 441 (D.C. Cir. 1989).

There, the court noted that the “precise contours of parens

patriae standing * * * are somewhat unclear,” but found it

unnecessary to “delve into the issue” because “the States’

sovereign interest in law enforcement is sufficient to support

standing.” Jd. at 443 n.1. In addition, the court emphasized

that the Federal Aviation Act expressly authorized a “body

politic” or a “representative thereof” to challenge an order of

the kind at issue in that case. See id. at 444. Thus, the decision

in the Department of Transportation case is not in conflict

with the decision here.

11 Petitioner contends (Pet. 13) that the waiver of sovereign

immunity in the Administrative Procedure Act, 5 U.S.C. 702,

makes it anomalous to retain the doctrine that States cannot

bring parens patriae suits against the United States. We are

unaware of any general doctrine that a waiver of sovereign

immunity also dispenses with standing requirements in suits

against the United States, and petitioner cites no evidence that

5 U.S.C. 702 in particular was intended to have that effect.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III