PLAINTIFFS’ MEMORANDUM IN RESPONSE TO INTERVENOR

OBJECTIONS

JULIA A. OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com

WILD EARTH ADVOCATES

1216 Lincoln Street

Eugene, OR 97401

Tel: (415) 786-4825 

DANIEL M. GALPERN (OR Bar 061950)

dan.galpern@gmail.com

LAW OFFICES OF DANIEL M. GALPERN

1641 Oak Street

Eugene, OR 97401

Tel: (541) 968-7164

Attorneys for Plaintiffs

JOSEPH W. COTCHETT 

jcotchett@cpmlegal.com

PHILIP L. GREGORY (pro hac vice) 

pgregory@cpmlegal.com

PAUL N. MCCLOSKEY 

pmccloskey@cpmlegal.com

COTCHETT, PITRE & McCARTHY, LLP

San Francisco Airport Office Center

840 Malcolm Road

Burlingame, CA 94010

Tel: (650) 697-6000

Fax: (650) 697-0577

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA;

XIUHTEZCATL TONATIUH M., through 

his Guardian Tamara Roske-Martinez; et al.

Plaintiffs,

v.

The UNITED STATES OF AMERICA; 

BARACK OBAMA, in his official capacity as 

President of the United States; et al., 

Federal Defendants.

Case No.: 6:15-cv-01517-TC 

PLAINTIFFS’ MEMORANDUM IN 

RESPONSE TO INTERVENOR

OBJECTIONS

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TABLE OF CONTENTS

Page

INTRODUCTION ............................................................................................................ 1

LEGAL ARGUMENT...................................................................................................... 3

I. THE FIRST AMENDED COMPLAINT PROPERLY ALLEGES 

 CLAIMS FOR RELIEF ............................................................................. 3

A. A Claim Under The Public Trust Doctrine May Be Made 

Against Federal Defendants......................................................... 3

B. Plaintiffs Properly Alleged Due Process And Equal 

Protection Claims.......................................................................... 6

CONCLUSION ............................................................................................................... 11

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TABLE OF AUTHORITIES

Page(s)

CASES

Arce v. Douglas, 

793 F.3d 968 (9th Cir. 2015) .......................................................................................... 9

Arlington Heights v. Metro. Hous. Corp., 

429 U.S. 252 (1977).............................................................................................. 8, 9, 10

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989).................................................................................................... 6, 8

Ingraham v. Wright, 

430 U.S. 651 (1977)........................................................................................................ 6

Kennedy v. City of Ridgefield, 

439 F.3d 1055 (9th Cir. 2006) .................................................................................... 6, 7

L.W. v. Grubbs, 

92 F.3d 894 (9th Cir. 1996) ........................................................................................ 7, 8

McGinest v. GTE Serv. Corp., 

360 F.3d 1103 (9th Cir. 2004) ........................................................................................ 9

Obergefell v. Hodges, 

135 S.Ct. 2584 (2015)..................................................................................................... 8

Pac. Shores Props., LLC v. City of Newport Beach, 

730 F.3d 1142 (9th Cir. 2013) ........................................................................................ 9

Penilla v. City of Huntington Park, 

115 F.3d 707 (9th Cir. 1997) .......................................................................................... 7

PPL Montana, LLC v. Montana, 

132 S. Ct. 1215 (2012)................................................................................................ 3, 4

Uhlrig v. Harder, 

64 F.3d 567 (10th Cir.1995), cert. denied, 516 U.S. 1118 (1996).............................. 7, 8

United States v. Mission Rock Co., 

189 U.S. 391 (1903).................................................................................................... 4, 5

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Page(s)

Washington v. Davis, 

426 U.S. 229 (1976).................................................................................................. 8, 10

Wood v. Ostrander, 

879 F.2d 583 (9th Cir. 1989) .......................................................................................... 6

OTHER AUTHORITIES

Charles L. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. Davis L. 

Rev. 269, 315 (1980) ...................................................................................................... 5

Karl S. Coplan, Public Trust Limits on Greenhouse Gas Trading Schemes: A Sustainable 

Middle Ground, 35 Colum. J. Envtl. L. 287, 315 (2010) ............................................... 5

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INTRODUCTION

Plaintiffs originally brought this action against various federal government 

officials and agencies. The First Amended Complaint (“FAC”) asserts Federal 

Defendants have known for decades that carbon dioxide (“CO2”) pollution has been 

causing catastrophic climate change, but despite this knowledge, failed to take necessary 

actions to curtail damaging fossil fuel emissions. The FAC also alleges Federal 

Defendants have taken action or failed to take action resulting in increased carbon 

pollution by promoting fossil fuel extraction, production, consumption, transportation, 

and exportation. Plaintiffs aver a reduction of global CO2 concentrations to no more than 

350 parts per million (“ppm”) by the end of the century is possible and essential to 

protect Plaintiffs’ fundamental rights, but action must be taken immediately to prevent 

further ocean acidification, ocean warming, and climate destabilization. Plaintiffs seek 

immediate implementation of a plan by Federal Defendants to reduce atmospheric CO2

concentrations to no more than 350 ppm by 2100 in order to avoid the most catastrophic 

and irreversible impacts of climate change and ocean acidification.

In their constitutional claims, Plaintiffs assert the actions and omissions of Federal 

Defendants increased CO2 emissions such as to “shock the conscience” and infringe 

Plaintiffs’ rights to life, liberty, and property in violation of the substantive due process 

clause of the Fifth Amendment. FAC ¶¶ 277-289. The FAC also alleges Federal 

Defendants violated Plaintiffs’ equal protection rights under the Fifth Amendment by 

denying them protections afforded to previous generations and by favoring short-term 

economic interests of certain citizens. FAC ¶¶ 290-301. The FAC goes on to allege 

Federal Defendants’ acts and omissions violate Plaintiffs’ unenumerated rights through 

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the Ninth Amendment to a stable climate and an ocean and atmosphere free from 

dangerous levels of CO2. FAC ¶¶ 302-306. Finally, the FAC alleges Federal Defendants 

violated the Public Trust Doctrine by causing public trust resources to become 

substantially impaired and by denying Plaintiffs and future generation’s access to 

essential natural resources. FAC ¶¶ 307-310.

The National Association of Manufacturers (“NAM”),1 the American Fuel & 

Petrochemical Manufacturers (“AFPM”),2 and the American Petroleum Institute (“API”)3

(collectively, “Intervenor Defendants”) successfully moved to intervene in this action. As 

part of their Motion to Intervene, Intervenor Defendants claimed that Federal Defendants 

would not adequately represent the interests of Intervenor Defendants in this litigation.4

(Dkt. 15.) 

 1 In moving to intervene, NAM asserted it represented manufacturers “in every 

industrial sector” across America. (Dkt. 14.) NAM alleged its members include leaders of 

the coal industry, oil industry, natural gas industry, petroleum producers, and 

petrochemical refiners. NAM also alleged its members rely heavily on the availability of 

energy with CO2 as a byproduct.

2 In its Motion to Intervene, AFPM stated its members include “virtually all United 

States refiners and petrochemical manufactures” who rely on conventional energy 

sources to supply their product and whose product itself emits CO2. (Dkt. 14.)

3 As part of the Motion to Intervene, API claimed its members “include over 625 oil 

and natural gas companies representing all facets of the oil and natural gas industry and 

who collectively provide most of the nation’s energy,” emitting CO2. (Dkt. 14.)

4 It is ironic that, at footnote 1 of their Objections to Magistrate’s Findings and 

Recommendations, Intervenor Defendants positively characterize Federal Defendants’ 

“aggressive steps to reduce greenhouse gas emissions and address concerns over climate 

change.” (Dkt. 73.) In their Motion to Intervene, Intervenor Defendants claimed that one 

of the bases supporting their right to intervene was that they “have repeatedly expressed 

concern regarding aspects of [Federal Defendants’] approach to regulating and 

controlling GHG from a wide range of sources and have challenged a number of [Federal 

Defendants’] GHG regulations in court as well as raised concerns on certain GHG 

regulations proposed by [Federal Defendants’] through notice and comment 

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Intervenor Defendants employ the unnecessarily broad brush approach of 

objecting to every aspect of the Findings and Recommendations (“F&Rs”) of Magistrate 

Judge Coffin. This Court should ADOPT Judge Coffin’s F&Rs as its own opinion and 

deny in full the Motions to Dismiss brought by Federal Defendants and Intervenor 

Defendants. Judge Coffin properly finds and recommends Plaintiffs’ claims should 

proceed and Intervenor Defendants’ Motion to Dismiss should be denied. In this brief, 

Plaintiffs will not re-state arguments made in opposition to Intervenor Defendants’ 

Motion to Dismiss, in oral argument, or in response to Federal Defendants’ Objections to 

the Findings and Recommendations. Rather, Plaintiffs will address the new arguments 

made and cases cited by Intervenor Defendants. Finally, given the urgency alleged in the 

FAC, this Court should set a prompt case management conference pursuant to Rule 16.

LEGAL ARGUMENT

I. THE FIRST AMENDED COMPLAINT PROPERLY ALLEGES CLAIMS FOR RELIEF

A. A Claim Under The Public Trust Doctrine May Be Made Against 

Federal Defendants

In opposing the Motions to Dismiss, Plaintiffs addressed the arguments by 

Intervenor Defendants that PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012), 

“held that the public trust doctrine is not a matter of federal law and cannot apply to the 

 

opportunities.” (Dkt. 15.) Thus, it is clear that Intervenor Defendants’ positive 

characterization of Federal Defendants efforts must be “tongue in cheek” and that they 

are objecting to Judge Coffin’s Findings and Recommendations to the extent allowing 

this case to proceed will result in appropriate controls over GHG emissions. Furthermore, 

the efforts to reduce greenhouse gas emissions that Intervenor Defendants point to in 

footnote 1 are wholly inadequate to address the climate crisis. Further, the recentlysigned Paris Agreement features emission reduction pledges that are fully inadequate to 

protect Plaintiffs fundamental right to a viable climate system notwithstanding their nonbinding character. To the extent these efforts pertain to the case, they are facts to be 

presented at trial. 

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federal government.” Intervenor Obj. 3 (Dkt. 73). In his F&Rs, Judge Coffin agreed with 

Plaintiffs and properly distinguished the cases cited by Intervenor Defendants, in 

particular determining: “The question whether the United States has public trust 

obligations for waters over which it alone has sovereignty (e.g., the territorial seas of its 

coastline) was simply not presented to or decided by the Court in PPL Montana, LLC.” 

F&Rs 17. The F&Rs properly determine the FAC “touches upon protected areas 

(territorial ocean waters at a minimum) impacted by the government’s alleged conduct 

and harm to many plaintiffs given the alleged sea level rise, ocean acidification, and 

atmosphere change.” F&Rs, 21. Plaintiffs will not restate their arguments in responding 

to Intervenor Defendants’ persistent misreading of PPL Montana. See Pls’ Opp’n Fed. 

MTD at 19-29 (Dkt. 41).

Intervenor Defendants commence their discussion of the Public Trust Doctrine by 

citing to United States v. Mission Rock Co., 189 U.S. 391, 407 (1903), incorrectly 

asserting this decision regarding “state property rights in lands submerged beneath tidal 

and navigable waterways,” holds that the sole purpose of the Public Trust Doctrine is to 

restrict “a state’s ability in certain circumstances to alienate those resources.” Intervenor 

Obj. 9. That is not the holding of Mission Rock. In fact, the Mission Rock decision 

addressed whether the State of California had title to convey to “submerged land as an 

easement appurtenant” to certain islands. The Mission Rock decision does not broadly 

address whether the Public Trust Doctrine applies to the federal government; but instead 

evaluates state public trust law. United States v. Mission Rock Co., 189 U.S. at 407

(commenting that even transfers of state public trust property to private owners must be 

done “in strict performance of the state’s trust”).

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Further, the F&Rs properly noted that the instant “case is different in that it does 

not at all implicate the equal footing doctrine or public trust obligations of the State of 

Oregon. The public trust doctrine invoked instead is directed against the United States 

and its unique sovereign interests over the territorial ocean waters and atmosphere of the 

nation.” F&Rs, 20. Thus, decisions such as Mission Rock simply do not apply to the 

FAC’s allegations concerning the Public Trust Doctrine. Determining “the government’s 

public trust duties [are] deeply ingrained in this country’s history,” the F&Rs found that, 

“[a]t this stage of the proceedings, the court cannot say that the public trust doctrine does 

not provide at least some substantive due process protections for some plaintiffs within 

the navigable water areas of Oregon.” F&Rs, 23.

Intervenor Defendants’ absolute assertion that Federal Defendants are not subject 

to the Public Trust Doctrine does not even address, much less distinguish, the opinions of 

the Supreme Court and Circuit Courts of Appeal, all recognizing the Public Trust 

Doctrine applies to sovereign entities. The Public Trust Doctrine is an ancient legal 

mandate incorporated into American jurisprudence. The Doctrine establishes a sovereign 

obligation to hold critical natural resources in trust for the benefit of the citizen

beneficiaries. The doctrine is “rooted in the precept that some resources are so central to 

the well-being of the community that they must be protected by distinctive, judge-made 

principles.” Charles L. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 

U.C. Davis L. Rev. 269, 315 (1980). The Public Trust Doctrine is “inherent in the nature 

of sovereignty and are therefore enforceable as limits on federal action.” See Karl S. 

Coplan, Public Trust Limits on Greenhouse Gas Trading Schemes: A Sustainable Middle 

Ground, 35 Colum. J. Envtl. L. 287, 315 (2010). Based on the forgoing analysis, as well 

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as the briefing concerning the Motions to Dismiss, the F&Rs properly apply the Public 

Trust Doctrine to the claims in this case and should be adopted by this Court.

B. Plaintiffs Properly Alleged Due Process And Equal Protection Claims

Intervenor Defendants mistakenly state Plaintiffs “do not challenge any

government action that allegedly infringes on the plaintiffs’ individual rights . . . .” 

Intervenor Obj. 16 (emphasis added). The FAC refers to numerous government actions 

infringing on Plaintiffs’ due process and equal protection rights, see, e.g., FAC ¶¶ 165-

170; 172-174; 181-182; 186-190; the F&Rs properly construe the FAC as asserting the 

claims go to Federal Defendants’ “action/inaction with respect to their obligations 

regarding regulating environmental pollutants,” doing “so in favor of older generations.” 

F & Rs at 15.

Intervenor Defendants fault the FAC for not asserting that Federal Defendants 

“‘created’ climate change.” Intervenor Obj. 17. None of the cases cited by Intervenor 

Defendants require the State to be solely responsible for creating the danger.

“It is well established that the Constitution protects a citizen’s liberty interest in 

her own bodily security.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 

2006) (citing Ingraham v. Wright, 430 U.S. 651, 673–74 (1977); Wood v. Ostrander, 879 

F.2d 583, 589 (9th Cir. 1989)). It is likewise well established that a due process violation 

may occur where “state action affirmatively places the plaintiff in a position of danger, 

that is, where state action creates or exposes an individual to a danger which he or she 

would not have otherwise faced.” Id. (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. 

Servs., 489 U.S. 189, 197, 201 (1989); Wood, 879 F.2d at 589–90) (quotation and 

alteration omitted) (emphasis added). Liability under this theory requires a two-part 

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showing: (1) “that the officer’s actions created or increased the danger facing [plaintiff]”; 

and (2) “the state official acted with deliberate indifference to a known or obvious 

danger.” Kennedy, 411 F.3d at 1142 (emphasis added); see Penilla v. City of Huntington 

Park, 115 F.3d 707, 710 (9th Cir. 1997) (affirming denial of Fed. R. Civ. P. 12(b)(6) 

motion to dismiss where officers “allegedly took affirmative actions that significantly 

increased the risk facing Penilla: they cancelled the 911 call to the paramedics; they 

dragged Penilla from his porch, where he was in public view, into an empty house; they 

then locked the door and left him there alone. And they allegedly did so after they had 

examined him and found him to be in serious medical need.”) (emphasis added).

In the decision primarily relied on by Intervenor Defendants, L.W. v. Grubbs, 92 

F.3d 894, 900 (9th Cir. 1996), the Ninth Circuit adopted the test in the Tenth Circuit 

decision in Uhlrig v. Harder, 64 F.3d 567, 573 (10th Cir.1995), cert. denied, 516 U.S. 

1118 (1996), as presenting “an accurate statement and application” for a due process 

violation under Section 1983. In Uhlrig, the Court listed the elements required by the 

Tenth Circuit to state a Section 1983 claim. A plaintiff must allege:

(1) [Plaintiff] was a member of a limited and specifically definable 

group; (2) Defendants’ conduct put [Plaintiff] and the other members of 

that group at substantial risk of serious, immediate and proximate harm; 

(3) the risk was obvious or known; (4) Defendants acted recklessly in 

conscious disregard of that risk; and (5) such conduct, when viewed in 

total, is conscience shocking.

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L.W. v. Grubbs, 92 F.3d at 898, quoting from Uhlrig, 64 F.3d at 574. There is no 

requirement that the FAC allege Federal Defendants themselves solely created the 

danger. Further, having sufficiently pled the claim in the FAC, Plaintiffs obligation to 

establish the factual elements of the DeShaney exception is a matter reserved for trial.

Intervenor Defendants also assert Plaintiffs have not alleged “affirmative, 

purposeful conduct” by Federal Defendants for purposes of the equal protection claim. 

Intervenor Obj. 18-19. Magistrate Judge Coffin properly found the FAC alleges 

“discrimination against a class of younger individuals with respect to a fundamental right 

protected by substantive due process.” F&Rs 15, n. 8; see FAC ¶¶ 8, 292-93, 297. The 

cases cited by Intervenors and the test they assert only apply to equal protection claims 

involving a suspect class. If the Court adopts Judge Coffin’s recommendation not to 

create a new suspect classification for Posterity (future generations) at this time (F&R 15, 

n.8), Obergefell v. Hodges provides the framework for analysis for Fifth Amendment 

violations of substantive due process and equal protection principles. Obergefell v. 

Hodges, 135 S.Ct. 2584, 2604-05 (2015).

If the Court rejects the recommendation not to give Posterity suspect 

classification, then the tests set forth in Supreme Court cases like Washington v. Davis, 

426 U.S. 229, 242 (1976) and Arlington Heights v. Metro. Hous. Corp., 429 U.S. 252 

(1977), would apply, and Plaintiffs have properly alleged facts to meet those tests. See 

Pls’ Opp’n Intervenors’ MTD at 26-28 (Dkt. 56).

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If a governmental actor engages in discrimination with a discriminatory purpose, 

such conduct violates the Equal Protection Clause. Arlington Heights v. Metro. Hous. 

Corp., 429 U.S. 252, 265–66 (1977) (noting, in the context of a zoning challenge, that 

“[w]hen there is a proof that a discriminatory purpose has been a motivating factor” in a 

government decision, judicial deference to that decision is not justified under the Equal 

Protection Clause). Under Arlington Heights, a plaintiff must simply allege that a 

discriminatory reason more likely than not motivated the defendant and that the 

defendant’s actions adversely affected the plaintiff in some way. Pac. Shores Props., LLC 

v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (quoting McGinest v. GTE 

Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). Plaintiffs do not have to allege “the 

discriminatory purpose was the sole purpose of the challenged action, but only that it was 

a ‘motivating factor.’” Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015) (quoting 

Arlington Heights, 429 U.S. at 266). For purposes of a Motion to Dismiss, this Court 

analyzes whether a discriminatory purpose motivated the defendants by examining, 

among other things, the events leading up to the challenged decision, the historical 

background of the decision, and whether it creates a disparate impact. Id. (citing 

Arlington Heights, 429 U.S. at 266–68, and Pac. Shores Props., 730 F.3d at 1158–59). A 

plaintiff need not establish any particular element in order to prevail. See Pac. Shores 

Props., 730 F.3d at 1156 (for the purpose of summary judgment, “any indication of 

discriminatory motive may suffice to raise a question that can only be resolved by a 

factfinder”).

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For their part, Intervenor Defendants fundamentally misread the type of 

allegations required to sustain a suspect classification equal protection challenge. 

Intervenor Defendants ignore that while evidence of disparate impact is not necessarily 

determinative of bias in the manner in which Federal Defendants have dealt with fossil 

fuel emissions, it is nevertheless relevant and important evidence that at a minimum 

raises an inference of discrimination. See Washington v. Davis, 426 U.S. 229, 242 (1976)

(“Necessarily, an invidious discriminatory purpose may often be inferred from the totality 

of the relevant facts, including the fact, if it is true, that the law bears more heavily on 

one race than another”); Arlington Heights, 429 U.S. at 266 (“The impact of the official 

action . . . may provide an important starting point. Sometimes a clear pattern, 

unexplainable on grounds other than race, emerges from the effect of the state action 

even when the governing legislation appears neutral on its face.”). Whether Plaintiffs’ 

Equal Protection claim under the Fifth Amendment involves a suspect class or a class 

being discriminated against with respect to their fundamental rights, the FAC properly 

asserts an equal protection violation.

As to the due process claims, the F&Rs properly determine the FAC alleges 

Federal Defendants acted to create “a life-threatening situation.” F&Rs 16. This finding is 

supported by numerous allegations in the FAC. See, e.g., ¶¶ 8, 9, 130, 151, 280, 284-85. 

Further, the F&Rs did not err in concluding that the FAC properly asserts an equal 

protection claim given the undisputed allegations of stark disparities in the effects of 

fossil fuel emissions on Plaintiffs, resulting in the complete destruction of the climate

system. This Court should adopt the Findings and Recommendations of Magistrate Judge 

Coffin.

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CONCLUSION

The Motions to Dismiss were thoroughly briefed and argued. Intervenor 

Defendants were given a full opportunity to argue their position. Magistrate Judge Coffin 

issued Findings and Recommendations that are reasoned and follow Supreme Court and 

Ninth Circuit case law. Given the urgency alleged in the FAC, this Court should adopt 

the Findings and Recommendations and set a prompt case management conference 

pursuant to Rule 16.

Respectfully submitted this 16th day of May, 2016, 

s/ Julia A. Olson 

JULIA OLSON (OR Bar 062230) 

JuliaAOlson@gmail.com 

WILD EARTH ADVOCATES 

1216 Lincoln St. 

Eugene, OR 97401 

Tel: (415) 786-4825 

PHILIP L. GREGORY (pro hac vice) 

pgregory@cpmlegal.com 

COTCHETT, PITRE & McCARTHY, LLP 

San Francisco Airport Office Center 

840 Malcolm Road 

Burlingame, CA 94010 

Tel: (650) 697-6000 

Fax: (650) 697-0577 

DANIEL M. GALPERN (OR Bar 061950) 

dan.galpern@gmail.com 

LAW OFFICES OF DANIEL M. GALPERN 

1641 Oak Street 

Eugene, OR 97401 Tel: (541) 968-7164 

Attorneys for Plaintiffs 

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