DEFS.’ RESP. TO PLS.’ NOTICE OF

SUPPLEMENTAL AUTHORITY

1

TODD KIM

Assistant Attorney General 

United States Department of Justice

Environment & Natural Resources Division

SEAN C. DUFFY (NY Bar No. 4103131) 

FRANK J. SINGER (CA Bar No. 227459) 

Trial Attorneys 

Natural Resources Section 

150 M Street NE 

Washington, DC 20002 

Telephone: (202) 305-0445 

Facsimile: (202) 305-0506 

sean.c.duffy@usdoj.gov

Attorneys for Defendants 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KELSEY CASCADIA ROSE JULIANA, et al., 

 Plaintiffs, 

v. 

UNITED STATES OF AMERICA, et al., 

 Defendants. 

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

DEFENDANTS’ RESPONSE TO 

PLAINTIFFS’ NOTICE OF 

SUPPLEMENTAL AUTHORITY

(ECF No. 521)

Plaintiffs have filed a notice of supplemental authority in which they discuss the Supreme 

Court’s recent decision Mississippi v. Tennessee, --- S. Ct. ---- , 2021 WL 5434188 (Nov. 22, 

2021). Pls.’ Notice of Suppl. Auth., ECF No. 521 (“Pls.’ Notice”). Plaintiffs contend 

Mississippi stands for the “broad principle” that “the remedy sought can be amended to cure a 

jurisdictional deficiency.” Pls.’ Notice 4. This contention relates to how Plaintiffs have argued 

that despite the Ninth Circuit’s mandate they can cure the jurisdictional flaw in their operative 

complaint by requesting a declaratory judgment. See ECF No. 462 at 15-16. 

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In fact, Mississippi says nothing at all about relief available under Federal Rule of Civil 

Procedure 15, or the interplay between a federal district court and an appellate court when the 

latter has mandated dismissal. Mississippi was an action brought under the Supreme Court’s

original jurisdiction. The state brought tort claims alleging that groundwater pumping in 

Tennessee had wrongfully taken groundwater held by Mississippi in trust for its residents. 

Mississippi, 2021 WL 5434188, at *4. A special master appointed by the Supreme Court 

recommended dismissal of Mississippi’s complaint because the groundwater was an interstate 

resource subject to allocation by equitable apportionment, and Mississippi had not sought (and in 

fact had expressly disclaimed) an equitable apportionment remedy.1

 The special master, 

however, recommended that Mississippi be granted leave to amend the complaint to seek 

equitable apportionment. Mississippi, 2021 WL 5434188, at *4 On review, the Supreme Court 

adopted the special master’s recommendation to dismiss Mississippi’s complaint, but not the 

recommendation that Mississippi be granted leave to amend, because Mississippi “neither sought 

leave to amend nor tendered a proposed complaint seeking equitable apportionment.” Id. at *5, 

7. The Court then went on to note the additional pleading and evidentiary requirements that 

would apply if Mississippi were to request leave to amend. Id. 

Mississippi is in no way analogous to this case. First, Mississippi was an original action 

and thus could not have established any “broad principle” bearing on district court practice under 

Fed. R. Civ. P. 15 or this Court’s compliance with the Ninth Circuit’s mandate. Indeed, the 

Federal Rules of Civil Procedure do not govern original actions as a general matter. See S. Ct. R. 

 1 Under the “equitable apportionment” doctrine, the Supreme Court allocates rights to a disputed 

interstate resource among the interested States based on factors other than territorial boundaries. 

See Kansas v. Colorado, 206 U.S. 46, 97-98 (1907)). 

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17.2; see also Nebraska v. Wyoming, 515 U.S. 1, 8 (1995) (noting that standards under Fed. R. 

Civ. P. 15 do not apply to original actions). 

Second, while Plaintiffs make much of the fact that the Supreme Court “left open” the 

option for Mississippi to seek leave to file an amended complaint, Pls.’ Notice 3, the Ninth 

Circuit did not give Plaintiffs that same option here. The Ninth Circuit’s mandate instead directs 

this Court to dismiss.

Third, Mississippi is distinguishable because an amended pleading for an equitable 

apportionment, in that dispute, would involve a different theory of injury and recovery from that 

presented in the original complaint. By contrast, Plaintiffs’ proposed amended complaint in this 

case seeks relief that was already included, and rejected, as part of their operative complaint. 

Compare Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020) (noting that Plaintiffs 

sought “a declaration that the government is violating the Constitution”) with ECF No. 462 

Attachment 1 (proposed Second Amended Complaint), Prayer for Relief, ¶¶ 1-3 (seeking a 

declaration that the United States is violating Plaintiffs’ alleged Constitutional rights). 

Finally, in Juliana, the Ninth Circuit made clear that the jurisdictional deficiency it 

identified cannot be cured by an amendment. It determined that no plausible injunction capable 

of remedying the claims would be within the powers of a district court. See Juliana, 947 F.3d at 

1171 (concluding that any conceivable remedy to Plaintiffs’ claims would necessarily put the 

court in the position of passing on a “host of complex policy decisions entrusted . . . to the 

wisdom and discretion of the executive and legislative branches”). And it determined that a 

declaratory judgment would not redress Plaintiffs’ alleged injuries, even taking into account the 

psychological benefits Plaintiffs contend they would derive from such relief. See id. at 1170 

(holding that “a declaration that the government is violating the Constitution . . . is not 

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substantially likely to mitigate the plaintiffs’ asserted concrete injuries”). Nothing in Mississippi

detracts from the conclusion that Plaintiffs cannot amend their complaint to reassert avenues for 

relief that the Ninth Circuit has already rejected. 

Dated: December 7, 2021 TODD KIM

Assistant Attorney General 

United States Department of Justice

Environment & Natural Resources Division

/s/ Sean C. Duffy

SEAN C. DUFFY (NY Bar No. 4103131)

FRANK J. SINGER (CA Bar No. 227459)

Natural Resources Section

150 M Street, NE

Washington, DC 20002

Tel: (202) 305-0445 

Fax: (202) 305-0506

E-mail: sean.c.duffy@usdoj.gov 

Attorneys for Defendants

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