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Notice of Motion and Motion to File an Amicus Curiae Brief (Case No. 3:16-cv-07014-VC)

XAVIER BECERRA

Attorney General of California

SALLY MAGNANI

Senior Assistant Attorney General

SUSAN S. FIERING (SBN 121621)

Supervising Deputy Attorney General

ROSE B. FUA (SBN 119757)

MARY THARIN (SBN 293335)

Deputy Attorneys General

1515 Clay Street, 20th Floor

P.O. Box 70550

Oakland, CA 94612-0550

Telephone: (510) 879-0190

Fax: (510) 622-2270

E-mail: Rose.Fua@doj.ca.gov

Attorneys for the State of California by and through 

Xavier Becerra, Attorney General

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

OAKLAND BULK & OVERSIZED

TERMINAL, LLC,

Plaintiff,

v.

CITY OF OAKLAND, ET AL.,

Defendants.

Case No. 3:16-cv-07014-VC

NOTICE OF MOTION AND MOTION 

OF THE STATE OF CALIFORNIA, BY 

AND THROUGH XAVIER BECERRA, 

ATTORNEY GENERAL, TO FILE AN 

AMICUS CURIAE BRIEF IN SUPPORT 

OF DEFENDANTS

Date: January 10, 2018

 Time: 10:00 a.m.

 Court: No. 4, 17th Floor

 Judge: Honorable Vince Chhabria

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT the State of California, by and through Xavier Becerra, 

Attorney General, hereby moves the Court for leave to file an amicus curiae brief in the abovecaptioned case in support of Defendants. A copy of the proposed amicus brief is attached as an

exhibit to this motion. Defendant City of Oakland has consented to and supports the filing of the 

Case 3:16-cv-07014-VC Document 170 Filed 12/08/17 Page 1 of 3
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Notice of Motion and Motion to File an Amicus Curiae Brief (Case No. 3:16-cv-07014-VC)

amicus brief. Defendant-Intervenors Sierra Club and San Francisco Baykeeper consented to the 

filing of the Amicus Brief. Plaintiff OBOT declined to consent.

District courts have wide discretion to grant leave to participate as amicus curiae. Hoptowit 

v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (abrogated on other grounds by Sandin v. Conner,

515 U.S. 472 (1995)). This discretion is liberally applied when the legal issues in a case “have

potential ramifications beyond the parties directly involved.” NGV Gaming, Ltd. v. Upstream

Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005). The Ninth Circuit has 

described the “classic role” of an amicus to include “assisting in a case of general public interest.” 

Funbus Sys., Inc. v. State of Cal. Pub. Utilities Comm’n., 801 F.2d 1120, 1125 (9th Cir. 1986). 

In the absence of specific rules governing amicus appearances at the district court level,

district courts may look to the rules governing amicus participation in appellate courts. See Ass’n 

of Am. Physicians & Surgeons, Inc. v. Brown, No. 2:16-cv-02441-MCE-EFB, 2017 WL 4351766, 

at *2 (E.D. Cal. Sept. 29, 2017) (granting motion for leave to file as amicus curiae pursuant to 

Fed. R. App. P. 29). In federal appellate courts, states may file amicus curiae briefs as of right. 

Fed. R. App. P. 29 (“a State may file an amicus-curiae brief without the consent of the parties or 

leave of court”).

The State of California has an interest in both the subject matter and legal implications of 

the controversy currently before this Court. This case raises issues of environmental justice. The 

City of Oakland’s Ordinance No. 13385 is a health and safety regulation intended to protect some 

of its most at-risk residents from increased pollution from the handling of coal. The California 

Environmental Protection Agency has designated West Oakland as a disadvantaged community 

based on an analysis of environmental and socioeconomic factors. Oakland Br., Dkt 145, at 14. 

Further, the California Air Resources Board has found that concentrations of air pollution in West 

Oakland are far higher than Bay Area averages. See attached Brief of Amicus Curiae at 4. The 

proposed loading and unloading of coal and petcoke at the Oakland Bulk & Oversized Terminal 

(“OBOT”) threatens to exacerbate the already degraded air quality in this area. Id. 

The State of California also has a number of statutes and initiatives seeking to protect 

environmental justice communities that are subject to excessive levels of pollution. For instance, 

Case 3:16-cv-07014-VC Document 170 Filed 12/08/17 Page 2 of 3
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Notice of Motion and Motion to File an Amicus Curiae Brief (Case No. 3:16-cv-07014-VC)

SB 1000, now codified in Government Code section 65302 requires that each city or county 

include in its general plan an environmental justice element to identify objectives and policies to 

reduce the unique or compounded health risks in disadvantaged communities. Thus, the State 

seeks to weigh in on this matter of public interest because it has the potential to undermine the 

ability of local governments to protect their most vulnerable communities. 

In addition, the State has an interest in offering its perspective on the Constitutional and 

federal preemption issues implicated by the present matter. California has created and 

implemented many environmental policies and initiatives that face frequent challenges on the 

grounds of federal preemption and the dormant Commerce Clause. Thus, California has an 

interest in ensuring that the courts construe the preemption and Commerce Clause doctrines in a 

manner that will protect the general police powers which reserve the protection of health, safety

and the environment to states and municipalities. The State therefore submits the attached brief 

in order to assist the Court in reviewing the Constitutional and federal preemption issues in this 

case in a manner that recognizes the significant State interests at stake. 

Dated: December 8, 2017 Respectfully submitted,

XAVIER BECERRA

Attorney General of California

SALLY MAGNANI

Senior Assistant Attorney General

SUSAN S. FIERING

Supervising Deputy Attorney General

MARY THARIN

Deputy Attorney General

/s/ Rose B. Fua

ROSE B. FUA

Deputy Attorney General

Attorneys for the State of California by and 

through Xavier Becerra, Attorney General

Case 3:16-cv-07014-VC Document 170 Filed 12/08/17 Page 3 of 3