Amicus Curiae Brief — Alaska v. United States

No. 92-1885

In The aetna.

SLore .

Supreme Court of the United States |

October Term, 1993 | 7 :

e | JUR 24 1993

STATE OF ALASKA, cepaaias ie

GFtivE OF ink GERK

Petittoner,

UNITED STATES OF AMERICA; NATIONAL PARK

SERVICE; MANUEL R. LUJAN, in his official

capacity as Secretary of the Interior, NATIONAL

PARKS AND CONSERVATION ASSOCIATION; ALASKA

CENTER FOR THE ENVIRONMENT; SIERRA CLUB;

THE WILDERNESS SOCIETY,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

AMICUS BRIEF OF STATES OF CALIFORNIA,

IDAHO, MONTANA, NORTH DAKOTA AND

WYOMING IN SUPPORT OF PETITIONER

*

DanigEL E. LUNGREN

Attorney General of the State of California

Roperick E. WALSTON

Chief Assistant Attorney General

*JAN S. STEVENS

Assistant Attorney General

Office of the Attorney General

1515 K Street, Suite 511

P. O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 327-7853

Counsel for Amicus State of California

*Counsel of Record

(Additional Counsel Listed On Inside Cover)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 p

OR CALL COLLECT (402) 342-283 WV

Larry EcoHawk

Attorney General of Idaho

JosePpH P. MAZUREK

Attorney General of Montana

Heipi HeitKampe

Attorney General of North Dakota

JosePpH B. MEYER

Attorney General of Wyoming

Mary GuTHRIE

Senior Assistant Attorney General

QUESTIONS PRESENTED

Whether states are precluded from representing their

residents in parens patriae actions against federal

agencies.

Whether the rule of Massachusetts v. Mellon applies

only to parens patriae actions seeking the invalidation

of federal statutes or, more broadly, to actions involv-

ing unlawful federal agency action as well.

Whether acts of Congress conferring standing on enti-

ties adversely affected or aggrieved by federal actions

have displaced the court-made rule denying states

parens patriae standing.

il

TABLE OF CONTENTS

Page

SR ROTEEIE: GAN? ARUN icnccs scene ccceaceccaseeseus 1

SUMMARY OF ARGUMENT. ............200000008- 2

I.

II.

THE STATES, AS SOVEREIGNS IN THE FED-

ERAL SYSTEM, SHOULD BE EMPOWERED TO

REPRESENT THEIR RESIDENTS IN PARENS

PATRIAE AGAINST FEDERAL AGENCIES AS

WELL AS AGAINST OTHER STATES AND PRI-

VATE AND PUBLIC ENTITLES ...............

A.

ae

Tenth Amendment Principles of Federalism

Require that Concrete Issues Affecting Resi-

dents of a State be Justiciable in Parens

Patriae Actions Brought by States.........

Where parens patriae standing has been

established, it should be available equally

against federal agencies as well as other

ENDS ob eh aces d cede dens henscdesepenesores

1. Massachusetts v. Mellon does not compel

the denial of parens patriae standing to

states in cases where other standing

requirements have been met...........

2. The denial of standing for states to rep-

resent their residents in otherwise justi-

ciable controversies lacks rational basis

and is inconsistent with our federal sys-

Te ey ee eee rere TTC TT Pre ee

The Mellon/Snapp doctrine has been

CIT I 6 6.56.55 i sees seisdenncssns

THE 1923 MELLON CASE DOES NOT, BY ITS

TERMS, APPLY TO CHALLENGES OF THE

UNLAWFUL ACTIONS OF FEDERAL AGEN-

CE Shae 0skhn es J eaa vine eu bepee eR Ces betes

8

iii

TABLE OF CONTENTS - Continued

Page

Ill. THE DECISION BELOW DEPRIVES STATES OF

STANDING UNDER FEDERAL STATUTES

CLEARLY MEANT TO PROVIDE IT.......... 12

CAIOL EARIIAIES 9 oc ccecuuienbeeeves chads eke ¢eemeene 13

iv

TABLE OF AUTHORITIES

Page

CASES:

Carey v. Klutznick, 637 F.2d 834 (2d Cir. 1980)...... 10

Commonwealth of Pennsylvania v. Kleppe, 533

eee cs GM TOPO ove ea vavaesccavess 6, 10, 12

Georgia v. Pennsylvania Railroad, 324 U.S. 439

ER ret ey Pann pan ene PSP yee ee Pa 7

Georgia v. Tennessee Copper Co., 206 U.S. 230

(1907); see Snapp v. Puerto Rico, 458 U.S. 592

NE Gis Sncseucby wank oa ee Re ea A eRe Cee 1, 4

Government of Guam v. Federal Maritime Com-

mission, 329 F.2d 251 (D.C. Cir. 1964), cert.

NE, Se WI. BE CEO on oc cdc tcesscescees 13

Iowa v. Block, 771 F.2d 347 (8th Cir. 1985)........ 9, 12

Kansas v. Colorado, 185 U.S. 125 (1902).............. 4

Lujan v. Defenders of Wildlife, 505 U.S. __, 112

I so a5 Ng oy Cicue acne cress eae aK aus 11

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

SN EE ac o'cs sas odeck sta kea bh euNes es 9, 10, 11

Massachusetts v. Mellon, 262 U.S. 447 (1923) .3, 5, 6, 12

Missouri v. Holland, 252 U.S. 416 (1920)........ a

Missouri v. Illinois, 180 U.S. 208 (1901) ........... a io

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

cost. Genied, 111 S.Ct. ZISE (IDPT) 2. ncn cccccccass 8

New York v. New Jersey, 256 U.S. 296 (1921)......... 4

New York v. United States, 505 U.S. __, 112 S.Ct.

eee eer ry ree passim

Pennsylvania v. West Virginia, 262 U.S. 553 (1923)..... 4

EEE EE Eee

Vv

TABLE OF AUTHORITIES - Continued

People v. Federal Power Commission, 296 F.2d 348

(D.C. Cir. 1961), rev’d on other grounds, Cali-

fornia v. Federal Power Commission, 369 U.S.

Se SU ets Pe eee ae eerie ere

Snapp v. Puerto Rico, 458 U.S. 492 (1982).......

South Dakota v. Dole, 483 U.S. 203 (1987).......

State of Florida v. Weinberger, 492 F.2d 488 (5th

eee er errr re eee ee

State of Wisconsin v. Federal Power Commission,

205 F.2d 706 (D.C. Cir. 1953), aff'd, Phillips

Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954),

reh. denied, 348 U.S. 851 (1954) ..............

Texas v. White, 7 Wall. 700 (1869), quoted in New

York v. United States, 505 U.S. __, 112 S.Ct.

I eet ae ceed sae eat olan

Washington Utilities & Transportation Commis-

sion v. FCC, 513 F.2d 1142 (9th Cir. 1975).....

STATUTES:

Administrative Procedure Act, 5 U.S.C.A. § 702

eg VER EUR aaron argent eee een Leon, le

MISCELLANEOUS:

Comment, “The Original Jurisdiction of the

United States Supreme Court,” 11 Stan. L.Rev.

i i Lee ee Mr Pera eye oe nn:

Page

INTEREST OF AMICI

The doctrine of parens patriae is an ancient and well-

established one. Nearly 90 years ago, this Court affirmed

the principle that the states have an interest independent

of proprietary title in “all the earth and air” within their

domain, and that they had standing, in their quasi-sover-

eign capacity, to bring actions to protect the physical and

economic health and well being of their residents. Georgia

v. Tennessee Copper Co., 206 U.S. 230, 237 (1907); see Snapp

v. Puerto Rico, 458 U.S. 592, 607 (1982).

The states’ interest in defending their residents

against federal actions that threaten to impinge upon their

general interests is no less than their interest in suits

brought against other states or private entities. Indeed, in

light of the pervasive nature of federal regulation and its

impact on the economies and environment of the states,

such an interest may be much greater. Nevertheless, the

opinion below denies states that standing.

This Court has properly observed that the states are

not “mere political subdivisions of the United States,”

and that “the preservation of the States, and the mainte-

nance of their governments, are as much within the

design and care of the Constitution as the preservation of

the Union and the maintenance of the National govern-

ment.” Texas v. White, 7 Wall. 700, 725 (1869), quoted in

New York v. United States, 505 U.S. __, 112 S.Ct. 2408, 2421

? Cf. New York v. United States, 505 U.S. __, 112 S.Ct. 2408,

2418 (1992): “The Federal Government undertakes activities

today that would have been unimaginable to the Framers .. . ”

(1992). If that “residuary and inviolable sovereignty”? left

to the states is to be maintained, they must be able to

assert the interests of their residents against federal agen-

cies in federal courts.

SUMMARY OF ARGUMENT

The doctrine of parens patriae is the established means

by which the states may represent the interests of all their

citizens in actions involving their common interests.

Under it, states have sued other states and private enti-

ties. Yet, under the holding below, while the American

Tobacco Association may represent its members in an

action against the Food and Drug Administration, a sov-

ereign state may not similarily represent its citizens. And

while the Bureau of Reclamation may be held judicially

accountable to the members of the American Farm

Bureau Federation, the citizens of a sovereign state may

not be represented by that state in a challenge to the

Bureau's policies, no matter how reprehensible.

The restrictive standing rule applied below raises

serious Tenth Amendment problems, because it contra-

venes this Court’s direction that federal impositions upon

the states be measured in terms of “[T]he extent to which

such ... laws would impede a state government's respon-

sibility to represent and be accountable to the citizens of

2 The Federalist No. 39, p. 245 (C. Rossiter ed. 1961), quoted

in New York v. United States, 505 U.S. __, 112 S.Ct. 2408, 2418

(1992).

the State.” New York v. United States, 505 U.S. __, 112

S.Ct. 2408, 2429 (1992).

The court-made standing rule laid out in Massa-

chusetts v. Mellon, 262 U.S. 447 (1923) was an alternative

holding in a 70 year-old decision. It was inconsistent with

earlier decisions of this Court when it came down in 1923.

Missouri v. Holland, 252 U.S. 416, 431 (1920). It is overdue

for reconsideration in light of the vastly increased scope

of federal actions impacting the states and their residents.

The rule denying states standing in parens patriae

against federal agencies has been unevenly applied. It is

inconsistent with the law of standing as this Court has

developed it, and contravenes Congressional directives

respecting the reviewability of agency actions.

I

THE STATES, AS SOVEREIGNS IN THE FEDERAL

SYSTEM, SHOULD BE EMPOWERED TO REPRESENT

THEIR RESIDENTS IN PARENS PATRIAE AGAINST

FEDERAL AGENCIES AS WELL AS AGAINST OTHER

STATES AND PRIVATE AND PUBLIC ENTITIES

A. Tenth Amendment Principles of Federalism

Require that Concrete Issues Affecting Residents of

a State be Justiciable in Parens Patriae Actions

Brought by States.

The parens patriae doctrine, based as it is on a state’s

interest in “the well-being of its populace,” Snapp v.

Puerto Rico, 458 U.S. 492, 602, (1982), has been charac-

terized in terms of the states’ “quasi-sovereign” interest.

Its use has long been recognized in actions such as public

nuisance, Missouri v. Illinois, 180 U.S. 208 (1901), water

diversions, Kansas v. Colorado, 185 U.S. 125 (1902), and

water pollution, New York v. New Jersey, 256 U.S. 296

(1921), as well as cases where the economic welfare of the

state is involved. Pennsylvania v. West Virginia, 262 U.S.

553 (1923).

Parens patriae has often been identified with state

sovereignty. As Justice Holmes wrote:

“[T]he State has an interest independent of and

behind the titles of its citizens, in all the earth

and air within its domain. It has the last word as

to whether its mountains shall be stripped of

their forests and its inhabitants shall breathe

pure air . . . When the States by their union

made the forcible abatement of outside nui-

sances impossible to each, they did not thereby

agree to submit to whatever might be done.

They did not renounce the possibility of making

reasonable demands on the grounds of their still

remaining quasi-sovereign interests.” Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237 (1907).

This Court has held that Tenth Amendment analysis

requires evaluation of “the strength of federal interests in

light of the degree to which such laws would prevent the

State from functioning as a sovereign...” New York v.

United States, supra, 505 U.S. ___, 112 S.Ct. at 2429. The

denial of standing below forecloses the possibility of such

evaluation.

B. Where parens patriae standing has been estab-

lished, it should be available equally against fed-

eral agencies as well as other parties.

The opinion in Snapp v. Puerto Rico, 458 U.S. 592, 607

(1982) is the principal basis for the decision below deny-

ing states standing to bring parens patriae actions against

federal agencies. In Snapp, this Court held that in order to

assert a quasi-sovereign interest and thus parens patriae

standing the state must be (1) vindicating an interest in

the physical and economic health and well-being of its

residents in general; or (2) asserting its quasi sovereign

interest in “not being discriminatorily denied its rightful

status within the federal system.”

Thus in Snapp the Court held that the state has a

parens patriae interest in securing for its residents certain

benefits afforded by federal law (in that case labor laws

providing opportunities for domestic employment). How-

ever, in a footnote citing Massachusetts v. Mellon, 262 U.S.

447 (1923), the Court observed: “A State does not have

standing as parens patriae to bring an action against the

Federal Government.” Snapp, supra, 458 U.S. at 610, n. 16.

This dictum has come back to haunt the states in a

number of appellate decisions. It is the reason they must

turn to this Court in this case.

1. Massachusetts v. Mellon does not compel the

denial of parens patriae standing to states in

cases where other standing requirements have

been met.

Massachusetts v. Mellon, supra, on which the Snapp

opinion relies, is the most oft-cited case respecting

limitations on State parens patriae standing. It dealt with

the efforts of Massachusetts to invalidate federal grant-

in-aid legislation designed to further maternal and child

health. The Court rejected the state’s contention that the

program improperly invaded its concerns in violation of

the Tenth Amendment. The program was a voluntary

one, and imposed no improper mandate on states. Cf.

New York v. United States, supra; South Dakota v. Dole, 483

U.S. 203, 206 (1987).

But the Court added, as a separate and independent

ground, that states lacked parens patriae standing to repre-

sent the interests of the residents against the federal

government:

“While the State, under some circumstances,

may sue in (parens patriae) capacity for the pro-

tection of its citizens (citation), 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.”

Massachusetts v. Mellon, supra, 262 U.S. at 485-586.

Since then, one appellate court has accurately stated

that it is “debatable” whether this Court meant to bar all

parens patriae suits against the Federal government. Com-

monwealth of Pennsylvania v. Kleppe, 533 F.2d 668, 677 (D.C.

Cir. 1976). Another held that Mellon did not apply to

cases in which a state challenged the validity of federal

action. Washington Utilities & Transportation Com‘n v. FCC,

513 F.2d 1142 (9th Cir. 1975).

The Snapp court relied on the Mellon language, how-

ever, in its dictum barring state standing against federal

a

agencies, and the Ninth Circuit in turn relied on Snapp in

reversing its earlier position in Washington Utilities &

Transportation Commission v. FCC, supra, and denying

Alaska standing in the case now before this Court.

However Justice Brennan, concurring in Snapp, urged

a broader and more respectful approach toward State

parens patriae standing:

“At the very least, the prerogative of a State to

bring suits in federal court should be commen-

surate with the ability of private organizations.

A private organization may bring suit to vindi-

cate its own concrete interest in performing

those activities for which it was formed

. . . More significantly, a State is no ordinary

litigator. As a sovereign entity, a State is entitled

to assess its needs, and decide which concerns

of its citizens warrant its protection and inter-

vention. I know of nothing - except the Consti-

tution or overriding federal law - that might

lead a federal court to superimpose its judgment

for that of a State with respect to the substan-

tiality or legitimacy of a State’s assertion of sov-

ereign interest.” Id. at 611-612.

In Washington Utilities & Transportation Com’n v. FCC, the

court pointed out that the Mellon rule applied only where

a state sought “to litigate a ‘question of distribution of

powers between the State and the national government’

(citation) and ‘protect her citizens from the operation of

federal statutes.’” 513 F.2d at 1153, quoting Georgia v.

Pennsylvania Railroad, 324 U.S. 439, 445 (1945). In an

action challenging the validity of federal action, the court

aptly observed, none of the considerations justifying

restrictions on state parens patriae standing are involved:

a

there is no question of original jurisdiction, and the hus-

banding of this Court’s limited resources. There is no

threat of circumvention of the Eleventh Amendment. See

Comment, “The Original Jurisdiction of the United States

Supreme Court,” 11 Stan. L.Rev. 665, 674 (1959). Since no

damages are sought, there is no risk of duplicating recov-

eries, and there is no “risk that absent persons will be

barred from a remedy otherwise available.” Washington

Utilities & Transportation Com’n v. F.C.C., supra, 513 F.2d at

1152-1153.

Only because of the footnoted dictum in Snapp did

the Ninth Circuit feel compelled to abandon its previous

reasoned position and hold that standing was precluded.

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

denied, 111 S.Ct. 2052 (1991).

2. The denial of standing for states to represent

their residents in otherwise justiciable contro-

versies lacks rational basis and is inconsistent

with our federal system.

Although this Court has time and again affirmed the

interests of states in bringing parens patriae actions against

other states, local governments and private entities on

behalf of their citizens, states’ standing in that capacity to

challenge the actions of federal agencies has been sum-

marily found lacking in a number of recent lower court

decisions. This rule, based on a dictum in Snapp v. Puerto

Rico, supra, 458 U.S. at 610, n. 16 and this Court’s alterna-

tive holding in Massachusetts v. Mellon, supra, has no

bright i. ©. Standing has been expressly or tacitly recog-

nized ii »aany cases in which the Mellon holding might

have beer applied. E.g., Missouri v. Holland, 252 U.S. 416

et

(1920) (State parens patriae claims asserted against U.S.)3;

Washington Utilities & Transporation Com’n v. FCC, supra,

513 F.2d at 1152, n. 13 and cases cited therein.

C. The Mellon/Snapp doctrine has been unevenly

applied.

When federal actions affecting the vital economic

interests of states have been involved, the standing of

states to challenge those actions has been analyzed both

in terms of standing of states per se, and of states as

parens patriae. Denial of parens patriae standing would

require states to rely on their standing as states, or upon

federal statutes conferring parens patriae standing on

them. Cf. Maryland People’s Counsel v. FERC, supra, 760

F.2d 318, 321-322 (D.C.Cir. 1985). This would severely

handicap states’ ability to represent the interests of their

residents, and lead to increasing efforts by private inter-

ests to seek judicial review of public issues better raised

by states.

The distinction between standing of states as states

and their standing in parens patriae leads to irrational

results. For example, the courts have characterized the

unlawful withdrawal of federal assistance resulting in

unemployment and decreased state tax revenues as a

“generalized grievance,” not cognizable for purposes of

standing. Iowa v. Block, 771 F.2d 347, 353 (8th Cir. 1985);

3 Missouri v Holland was characterized in Mellon as a case

involving an asserted “invasion. .. . of the quasi-sovereign right

of the State to regulate the taking of wild game within its

borders.” Id, 262 U.S. at 482.

10

Commonwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C.

Cir.), cert. den., 429 U.S. 977 (1976). On the other hand, 2

state clearly could bring a parens patriae action for this

purpose. Maryland People’s Counsel v. FERC, supra, 760

F.2d at 321.

Thus the law of state standing is fragmented into a

crazy quilt of cases falling into a series of categories

depending on the nature of the grievance asserted: 1) a

state may have sufficient standing as a state to bring an

action; 2) the state may have been expressly authorized

by Congress to sue, cf. Maryland People’s Counsel v. FERC,

supra, 760 F.2d at 321-322; 3) what is actually a parens

patriae case may have gone unchallenged and tacitly rec-

ognized. E.g., New York v. United States, 331 U.S. 284

(1947); State of Florida v. Weinberger, 492 F.2d 488, 493-94

(Sth Cir. 1974); or 4) the Court has expressly permitted a

parens patriae action against a federal agency, Carey v.

Klutznick, 637 F.2d 834, 838 (2d Cir. 1980); Washington

Utilities and Transportation Commission v. FCC, 513 F.2d

1142, 1145-46 (9th Cir. 1975), cert. den., 422 U.S. 836

(1975).

The court-made restriction on parens patriae standing

has been unevenly applied at best. It is inconsistent with

the rules of standing adopted by Congress in many speci-

fic instances, and with this Court’s standards of justi-

ciability. It makes little sense to hold today that while a

trade association or political party may have standing to

represent the interests of its members, a sovereign state

cannot vindicate those same interests on behalf of its

residents.

leneenesamnemmaianaiaieainaaicadaitaiaiaaaiiaibaneneatiel

11

II

THE 1923 MELLON CASE DOES NOT, BY ITS TERMS,

APPLY TO CHALLENGES TO THE UNLAWFUL

ACTIONS OF FEDERAL AGENCIES.

As the Ninth Circuit Court observed before it felt

compelled to rule otherwise by Snapp’s dictum, Massa-

chusetts v. Mellon dealt with a state’s effort to invalidate a

federal maternal and child health grant-in-aid law on

behalf of its citizens. There, this Court held that inasmuch

as the rights of residents as United States citizens were

involved, the federal, rather than state government, was

the proper parens patriae.

The underlying rationale of Mellon is that the doc-

trine will not lie to exclude state citizens from the opera-

tion of federal laws, or to redefine the relationship of

state citizens with the federal government. Where, as

here, the state relies on the federal statute and seeks to

carry out Congress’ will, the protection of that federal

law should extend to the residents of states as well as to

any other body of individuals.

Recognition of the parens patriae standing of states

against federal agencies would in no way impinge upon

traditional standards of justiciability. The Mellon rule is

based on what this Court has characterized as the “pru-

dential,” rather than the “core component” of standing.

Lujan v. Defenders of Wildlife, 505 U.S. __, 112 S.Ct. 2130

(1992). Only those actions involving concrete interests

would lie. Maryland People’s Counsel v. FERC, 760 F.2d 318,

321-322 (D.C. Cir. 1985). |

12

The rationale behind the broad, albeit oft-unobserved

Mellon theory is difficult to follow. It has been charac-

terized as consideration for the “general supervisory

aspect of federal law and to the basic interests of federal-

ism,” reduced most basically to “the avoidance of state

interference with the exercise of federal process.” lowa v.

Block, supra, 771 F.2d at 355, quoting Commonwealth of

Pennsylvania v. Kleppe, supra, 533 F.2d at 677-78. Thus, the

Iowa court concluded, to permit that State to proceed as

parens patriae against the Secretary of Agriculture seeking

implementation of federal disaster programs would

“intrude on the sovereignty of the federal government

and ignore important considerations of our federalist sys-

tem.” Iowa v. Block, supra, 771 F.2d at 355. Ignored in this

analysis is consideration of the role of states in the federal

system. As this Court has observed, parens patriae is the

means by which a state protects its interest “that the

benefits of the federal system are not denied to its general

population.” Snapp v. Puerto Rico, 458 U.S. at 608.

III

THE DECISION BELOW DEPRIVES STATES OF

STANDING UNDER FEDERAL STATUTES CLEARLY

MEANT TO PROVIDE IT

Alaska’s claim for relief was based in part on the

federal Administrative Procedure Act, which provides

that “[A] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is entitled

to judicial review thereof.” 5 U.S.C.A. § 702 (1977). This

provision has often been applied to permit actions which

appear to be parens patriae in nature, brought as the result

EEE eee

13

of federal agency decisions. E.g., Government of Guam v.

Federal Maritime Commission, 329 F.2d 251, 252-253 (D.C.

Cir. 1964), cert. denied, 385 U.S. 1002 (1965); People v.

Federal Power Commission, 296 F.2d 348 (D.C. Cir. 1961),

rev'd on other grounds, California v. Federal Power Commis-

sion, 369 U.S. 482 (1962). See also, State of Wisconsin v.

Federal Power Commission, 205 F.2d 706 (D.C. Cir. 1953),

aff'd, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672

(1954), reh. denied, 348 U.S. 851 (1954). Thus the holding

below has the novel effect of thwarting the intent of

Congress by court-made rule.

*

CONCLUSION

Under the law as construed below, a state may

defend the interests of its residents in “all of the earth

and air within its domain” against injuries threatened by

other states, by public entities, and by corporations, asso-

ciations and individuals, but it lacks the power to seek

judicial vindication of similar wrongs wrought by federal

agencies.

The proper working of our federal system requires

that the states, having surrendered “diplomatic powers

and the right to make war” to the federal government,4

must have a remedy in federal court to protect their

quasi-sovereign interests. After all, if a federal statute, to

withstand Tenth Amendment challenge, must leave to the

residents of a state “the ultimate decision as to whether

or not the State will comply,” New York v. United States,

112 S.Ct. at 2424, there is no valid reason to make this

4 Missouri v. Illinois, 180 U.S. 208, 241 (1901).

NN EEE

14

doctrine available against all the world except an agency

whose organic law happens to come from the District of

Columbia rather than Delaware.

Respectfully Submitted,

DaniEt E. LUNGREN

Attorney General of the State of

California

Roperick E. WALSTON

Chief Assistant Attorney General

*JAN S. STEVENS

Assistant Attorney General

Counsel for Amicus State of California

Larry EcoHAwK

Attorney General of Idaho

JosepH P. MAzUREK

Attorney General of Montana

Heip1 HeItKAmMP

Attorney General of North Dakota

JoserpH B. MEYER

Attorney General of Wyoming

Mary GuTHRIE

Senior Assistant Attorney General

*Counsel of Record