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A case we briefed for moot court in class....

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FOR THE APPELLATE MOOT COURT COLLEGIATE CHALLENGE

State of Oregon Petitioner, v. Bob and Betty Belay Respondent.

On Writ of Certiorari to The Supreme Court of The United States Of America

BRIEF FOR THE PETITIONER

Leah Field, [email protected]

QUESTIONS PRESENTED FOR REVIEW 1. Per the Tenth Amendment, does the state of Oregon have the power to pass laws regulating mountaineering safety on federal park land or is this power reserved to the federal government alone? 2. Does the Mountaineering Accountability and Safety Act unduly burden interstate commerce thereby violating the Commerce Clause?

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TABLE OF CONTENTS QUESTIONS PRESENTED .

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES .

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JURISDICTION

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CONSTITUTIONAL PROVISIONS INVOLVED .

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STATEMENT OF THE CASE

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STATEMENT OF THE FACTS

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SUMMARY OF THE ARGUMENT .

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ARGUMENT I.

Addressing Question One

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II.

Addressing Question Two

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CONCLUSION

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TABLE OF AUTHORITIES CASES Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983) p. 1, 3 Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497 (1955) 5 National Labor Relations Board v Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937). Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) United States v. Morrison, 529 U.S. 598 (2000) United States v. Lopez, 514 U.S. 549 (1995) Gibbons v. Ogden, 22 U.S. 1 (1824)

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p. 7-9 p. 1 p. 9 p. 5-6, 8-9 p. 5

OTHER AUTHORITIES U.S. CONST. Art. I, §8 [3] . 9 U.S. CONST. Amend. X .

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STATEMENT OF JURISDICTION The jurisdiction of this Court rests upon 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED The Tenth Amendment to the United State Constitution provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Commerce Clause of the United States Constitutions provides: The United States Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

STATEMENT OF THE CASE In response to high rates of death and injury on Mount Hood, the state of Oregon passed the Mountaineering Accountability and Safety Act in order to protect the lives of climbers and reduce the cost of safety and rescue missions. The Act requires anyone wishing to climb an Oregon peak topping 10,000 feet to carry a locator beacon with them. Bob and Betty Belay, two climbers who wished to climb Mount Hood without a locator beacon, challenged the law in court. The Circuit Court of Multnomah County ruled in favor of the state of Oregon. The Belays then appealed to the Oregon intermediate appellate court. This court reversed the lower court’s decision and ruled in favor of the Belays. The state of Oregon appealed to the Oregon Supreme Court which declined to take of the case. The state subsequently appealed to the United States Supreme Court which granted certiorari. 4

STATEMENT OF THE FACTS In December of 2017, three experienced hikers perished on Mount Hood while climbing during heavy snowstorms. After several days, another dangerous climb led to the death of several hikers who had been separated from their climbing group in white-out conditions. While the separated hikers could not be found in time to save their lives, the rest of their group was located quickly and successfully rescued from the mountain. The rescued group’s use of a locator beacon was a significant factor that helped rescuers to find them before it was too late. Based on the recommendations of a task force on mountaineering safety, Oregon’s governor introduced the Mountaineering Accountability and Safety Act (MASA) to the state legislature. The act would require all hikers climbing Oregon peaks of 10,000 feet or higher to carry locator beacons with them and would penalize infractions with a $500 fine. Although there is a small cost to rent or buy a locator beacon, the bill noted that this cost is small compared to the loss of life and the significant taxpayer expense required to fund the state-operated rescue efforts. The bill passed with overwhelming majorities in both houses of the state legislature. Mount Hood is located within Mount Hood National Forest, which is managed by the US Forest Service. The Forest Service designates which areas are open to activity, issues permits for individuals who wish to climb the mountain, and publishes safety recommendations on its website, including the recommendation that hikers rent a locator beacon. Bob and Betty Belay, a married couple, intended to hike Mount Hood for a Discovery Channel series. The series is based on the Belays’ ethos of climbing without a guide and relying on their knowledge and skills to survive. Carrying a locator beacon would violate the premise of the show, but they would lose money and time if they did not climb Mount Hood as they’d

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planned. The Belays decided to ignore the law and attempted to climb the mountain without locator beacons. They were stopped at the base of the mountain and charged the $500 violation fee. In addition, they lost a total of $20,000 in expected revenue from the show. Consequently, the Belays challenged the law in court to sue for damages.

SUMMARY OF THE ARGUMENT The state of Oregon’s passage of the Mountaineering Accountability and Safety Act (MASA) is a constitutional exercise of the state’s police power and does not violate the Commerce Clause of the Constitution. Firstly, the principles of federalism enshrined in the Tenth Amendment and supported by precedent clearly favor the state of Oregon in this case. Oregon has the right to regulate mountaineering safety on Mount Hood under its police powers. Furthermore, federal preemption does not apply to the act because the federal government has not regulated it and has not occupied the field. Secondly, MASA does not violate the Commerce Clause. MASA only impacts intrastate commerce within Oregon and in no way affects interstate commerce. Therefore, the federal government has no constitutional authority to invalidate MASA on the basis of the Commerce Clause.

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ARGUMENT 1. Per the Tenth Amendment, does the state of Oregon have the power to pass laws regulating mountaineering safety on federal park land or is this power reserved to the federal government alone? A. The passage of MASA is a constitutional exercise of Oregon’s Tenth Amendment police powers. The regulation of safety on Mount Hood is well within Oregon’s state police powers as granted by the Tenth Amendment. The Tenth Amendment states plainly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (U.S. Const. amend. X). In other words, the state automatically retains all powers not reserved to the federal government and not prohibited to the states. Under the clear language and principle of the Tenth Amendment, the states have the constitutional right to establish and enforce laws protecting the welfare, safety, and health of their citizens. The Mountaineering Accountability and Safety Act is a clear example of such a law intended to protect citizens’ safety. B. MASA is not preempted by federal law because the federal government has not regulated in this area. According to Supreme Court precedent established in Pennsylvania v. Nelson, 350 U.S. 497 (1956) and affirmed in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission 461 U.S. 190 (1983) and Crosby v. National Foreign Trade Council 530 US 363 (2000), there are only two conditions under which state law is preempted by federal law: first, when explicit federal law exists which preempts state law, and second, when the federal government has occupied the field in a specific area of law. In this case, there is neither

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explicit federal law preempting state law nor has the federal government occupied the field. Therefore, MASA is not preempted by federal law. The first condition of federal preemption is unmet here because no federal law or regulation on safety in national parks exists. In order to prevent the tyrannical consolidation of power in the federal government, the framers designed our government to be one of limited and enumerated powers. They built these principles into the design of our government in order to prevent the federal government from arbitrarily claiming any power it wants. As a result, the powers of the federal government must derive from one of two places: the constitution or federal law.

The respondents claim that there is already existing federal law on safety in national

parks that preempts MASA. They cite the congressional law that established the national parks as the source of federal preemption in this case, arguing that the establishment of the national parks inherently implies the federal government’s intention to retain regulatory authority in the national parks. However, this is an assumption that contradicts both Supreme Court precedent and the principles of federalism.

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establishment of the national parks does not inherently imply the federal government’s intent to retain all regulatory authority over the National Parks. To base federal power upon pure inference and implication flies in the face of every check and limitation that the founding fathers built into our government in order to limit federal power. If the federal government intends to regulate a policy area, it must demonstrate its intent to do so through explicit legislation. Otherwise, the Tenth Amendment and historical precedent dictate that policy areas unregulated by the federal government remain under the regulatory authority of the states. Indeed, precedent shows that in the absence of express federal regulation, it must be assumed that the federal government intended to leave regulatory authority to the states. As stated in the majority opinion of Pacific

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Gas & Electric Co.: “It is almost inconceivable that Congress would have left a regulatory vacuum; the only reasonable inference is that Congress intended the States to continue to make these judgments.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190 (1983). By this own court’s precedent, it would be unreasonable to agree with the respondent’s proposition. If Congress has not regulated in an area, the only logical inference is that Congress intended to leave this area to state regulation. It would be a gross overstep of this court’s constitutional authority to assume the will of Congress and create federal legislation where none exists. C. MASA is not preempted by federal law because the federal government has not occupied the field. The second condition of federal preemption stipulates that, in the absence of explicit federal legislation, state law can still be preempted when the federal government has occupied the field in a specific area of law. This condition is also unmet in this case because the federal government has not occupied the field of safety in national parks. In his majority opinion for Pennsylvania v. Nelson, Chief Justice Earl Warren set out a three-pronged standard to determine when the federal government has sufficiently demonstrated its occupation of a field. Pennsylvania v. Nelson, 350 U.S. 497 (1956). None of the three conditions laid out in Warren’s standard are met by the federal government in this case. The federal government has in no way occupied the field of safety regulation in National Parks.

Chief Justice Warren’s first condition states that

the federal government has occupied the field when federal statutes "touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same 3

subject." Id., at 504. While the government may have an interest in safety in national parks, it is clear that it does not have an interest so dominant that it precludes the enforcement of state laws on the subject. The federal government has already demonstrated its willingness for the state of Oregon to enforce state laws on safety in national parks by allowing Oregon to operate all safety and rescue operations in the Mount Hood National Forest. The fact that the federal government has not regulated in this issue area combined with the fact that the state of Oregon conducts all safety operations in the park clearly demonstrates the federal government’s belief that it can best accomplish its interest in safety by giving the state of Oregon concurrent power. Through the system of concurrent powers, the federal government and state government can work together to achieve their mutual goals and interests. Chief Justice Warren’s second condition states that the federal government has occupied the field when state law conflicts with or frustrates federal law. Id., at 505. MASA clearly does not frustrate any federal laws. The sole federal law cited by the Belays in their argument is the law establishing the national parks. The only explicit purpose of this law is to create and maintain the national parks, two goals which are clearly not frustrated by MASA. In fact, it is much more likely that MASA assists the federal government in accomplishing these goals, as it helps facilitate the maintenance of the national parks.

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and final condition states that the federal government has occupied the field when "[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Id., at 502. The respondents argue that the establishment of the national parks and a list of online recommendations are tantamount to a pervasive scheme of federal regulation. However, supreme court precedent has shown that such a weak scheme is

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insufficient to prove federal occupation of a field. A list of online recommendations is not even a true federal regulation, and it certainly does not constitute a pervasive scheme. In Pennsylvania v. Nelson, it took no less than three federal laws and an explicit directive from the FBI director to convince the court that the scheme of federal regulation was pervasive in that case. Id., at 507. The so-called regulations in this case do not even approach such a level of pervasiveness. Furthermore, as mentioned previously, Congress has already left room for state supplementation by allowing Oregon to operate safety and rescue missions, invalidating the argument that “Congress left no room for the States to supplement” this issue area. Id., at 502. In summary, none of the three conditions of federal preemption are met. Therefore, the federal government has not occupied the field here and federal preemption does not apply to MASA. 2. Does the Mountaineering Accountability and Safety Act unduly burden interstate commerce thereby violating the Commerce Clause? The Commerce Clause reads: The United States Congress shall have the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (U.S. Const. art. I, § 8 [3]). This clause grants Congress the power to regulate interstate commerce. Since Gibbons v. Ogden 22 U.S. 1 (1824), the Supreme Court has held interstate commerce to mean commercial intercourse that occurs across state lines. This stands in contrast to intrastate commerce, which is commercial intercourse that occurs entirely within a single state and that does not extend to or affect other states. In United States v. Lopez 514 U.S. 549 (1995), the Supreme Court set out three clear categories of commerce that can be permissibly regulated by the federal government under the 5

Commerce Clause. First, “Congress may regulate the use of the channels of interstate commerce." United States v. Lopez, 514 U.S. 549 (1995). Second, Congress may “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Id., at 558. In other words, the Commerce Clause authorizes Congressional regulation over both interstate and intrastate activities where interstate and intrastate aspects of commerce are so intertwined as to be inseparable. Lastly, “Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i. e., those activities that substantially affect interstate commerce." Id., at 558-559. Oregon’s Mountaineering Accountability and Safety Act does not fall under the purview of federal Commerce Clause regulation because the economic activity regulated by MASA does not fall into any of these three categories. A. MASA’s regulation on locator beacons does not constitute interstate commerce. The first category of Commerce Clause powers is unmet in this case because MASA has no effect upon channels of interstate commerce. MASA regulates an activity that is purely intrastate commerce. As per the definition of interstate commerce, the action of purchasing or renting a locator beacon does not in any way cross state lines. It is an economic transaction that begins and ends within Oregon’s borders, making it an intrastate activity. Furthermore, MASA does not violate the dormant Commerce Clause. The principle of the dormant Commerce Clause declares that states may not 6

discriminate against interstate commerce by unfairly hindering the commerce of other states. MASA clearly does not violate this principle because it in no way impedes the commercial activities of other states, nor does it discriminate against the commerce of other states in any way. The regulation applies exclusively to mountains that are located entirely within the state of Oregon. All it requires is that any hiker climbing Oregon mountains higher than 10,000 feet carry a locator beacon with the them. It does not require only out-of-state hikers to purchase a locator beacon. It does not require hikers to purchase any specific type of locator beacon that is made by Oregon manufacturers. The law does not engage in any form of commercial discrimination. The law therefore does not violate the dormant Commerce Clause. B. MASA’s regulation on locator beacons is not essential for th...