Recent Compact Litigation and Legislation Rick Masters, Special Counsel – NLCA

Administrative Procedures and Rulemaking New York vs. Atlantic States Marine Fisheries Commn, 609 F.3d 524, 531(2 nd Cir. 2010) holding that a compact created agency is not subject to the federal Administrative Procedures Act simply because it is sanctioned by Congress. Commonwealth of PA Board of Probation and Parole et al vs Interstate Commn for Adult Offender Supervision, (Dist. DC 2004), appeal dismissed Commonwealth of Pennsylvania Board of Probation and Parole v. Interstate Commission for Adult Offender Supervision, 2005 U.S. App. LEXIS 3151 (D.C. Cir. 2005) upheld rules which substantially conformed to principles of the federal A.P.A. Friends of the Columbia Gorge v. Columbia River Gorge Commission, 213 P.3d 1164 (OR 2009), held that while state courts are required to apply federal law in interpreting the compact as an instrument to which Congress has given consent, in the absence of specific procedural rules, the state court applies state administrative law in reviewing commission actions.

Choice of Law and Forum Issues KMOV-TV vs. Bi-State Development Agency of Missouri-Illinois Metropolitan District, 625 F. Supp. 2d 808 (ED Mo. 2008) held that the interpretation of an interstate compact is a matter of federal law. Stanton v. Graham, et al., (2008 WL (W.D. Wis. 2008). held that congressional consent to an interstate compact may change the venue in which compact disputes are ultimately litigated. Friends of the Columbia Gorge v. Columbia River Gorge Commission, 213 P.3d 1164 (OR, 2009) held that while state courts are required to apply federal law in interpreting the compact as an instrument to which Congress has given consent, in the absence of specific procedural rules, the state court applies state administrative law in reviewing commission actions.

Authority to Bind the State to a Compact Florida House of Representatives vs. Crist, 999 So.2d 601 (FL 2008) held that the Governor does not have the authority to bind the state to an interstate compact or act in contravention to state law, under a federal statute authorizing states to negotiate gaming compacts with Indian tribes. The Supreme Court of Florida held that the Legislature's exclusive power encompasses questions of fundamental policy and the articulation of reasonably definite standards to be used in implementing those policies. Therefore the Governors execution of the compact on behalf of the State violated the separation of powers clause of the state constitution.

Civil Rights Liability under 42 U.S.C. §1983 Doe v. Pennsylvania Board of Probation and Parole, 513 F.3d 95 (3 rd Cir. 2008) held that the compact did not create a federally enforceable right under 42 U.S.C. §1983 for those subject to its provisions (parolees and probationers). Relying on Cannon v. University of Chicago, 441 U.S. 677 (1979), Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga University v. Doe, 536 U.S. 273 (2002), the Court determined that the Compact does not confer any private right of action upon either a probationer or parolee based upon a failure to comply with its provisions and that absent a clear and unambiguous intent by Congress to create a federal cause of action, 42 U.S.C. § 1983 is not available to redress violations of the compact.(We hold that Doe does not have a private right of action under Section 1983 to enforce the provisions of the Interstate Compact because one cannot be inferred from its terms.) Id. at 105.

Conflict of Compact with Subsequent State Laws Mitskovski v. Buffalo and Fort Erie Public Bridge Authority, 689 F. Supp. 483 (W.D.N.Y. 2010) held that an interstate compact cannot be … given final meaning by an organ of one of the contracting states. Member states may not take unilateral actions, such as the adoption of conflicting legislation or the issuance of executive orders or court rules that violate the terms of a compact. Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 938 N.E.2d 483 (IL 2010) held that [O]ne party to an interstate compact may not enact legislation that would impose burdens upon the compact absent the concurrence of the other signatory states. KMOV-TV vs. Bi-State Development Agency of Missouri-Illinois Metropolitan District, 625 F. Supp. 2d 808 (ED Mo. 2008) held that one party state may not unilaterally legislate regarding additional powers under an interstate compact without the concurrence (i.e. legislative approval) of the other member states.

Congressional Consent Energy Solutions, LLC v. State of Utah, et al., 625 F.3d 1261, 1272 (10 th Cir. 2010) held that congressional consent can be implied after the fact when actions by the states and federal government indicate that Congress has granted its consent even in the absence of a specific legislative act or, as is more common, consent can be explicitly given after the fact by enacting legislation that specifically recognizes and consents to the compact. Where required, the nature of the compact changes significantly once congressional consent is granted. It no longer stands solely as an agreement between the states but is transformed into the law of the United States under the law of the union doctrine. See, Cuyler v. Adams, 449 U.S. 433, 440 (1981). Therefore, congressional consent transforms the States agreement into federal law under the compact clause.

Friends of the Columbia Gorge v. Columbia River Gorge Commission, 213 P.3d 1164 (OR 2009), holding that while state courts are required to apply federal law in interpreting a compact to which Congress has consented, in the absence of specific procedural rules, the state court applies state administrative law. Intermountain Municipal Gas Agency v. F.E.R.C., 326 F.3d 1281 (D.C. Cir. 2003), holding that Utah and Arizona could not by interstate agreement create a mutual governing entity to escape the regulatory authority given to the Federal Energy Regulatory Commission by the federal Natural Gas Act. Congressional Consent Cont.

Compacts are Statutorily Enforceable Contracts Alabama v. North Carolina, 560 U.S. __, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (June 1, 2010). Obligations imposed by an interstate commission are enforceable on the states and such commissions may be empowered to determine when a state has breached its obligations and if so authorized by the compact, may impose sanctions on a non-complying state. An interstate compact commission composed of the member states may be a party to a lawsuit on behalf of the member states under the original jurisdiction of the U.S. Supreme Court if such claims are wholly derivative of the claims that could be asserted by the party states. Id. When construing the provisions of a compact, a court, in giving full effect to the intent of the parties, may consult sources that might differ from those normally reviewed when an ordinary federal statute is at issue, including traditional canons of construction and the Restatement (Second) of Contracts. Id. at

Compacts are Statutorily Enforceable Contracts cont. M.F. v. State of New York, __ F.3 rd __, 2011 W.L , 2 nd Cir. (NY) 2011 held that a compact is like a contract and is a legal document that must be construed and applied in accordance with its terms. Doe v. Pennsylvania Board of Probation & Parole 513 F.3d 95 (3 rd Cir. 2008), Id at pp At the federal level, enforcement of compacts is controlled by the Contract Clause of the Federal Constitution and, to a lesser extent, by the Supremacy Clause, depending on the substantive nature of the compact and its impact on the basic principles of federalism. Interstate compacts are formal agreements between states and hence are contracts subject to principles of contract law. Doe, supra. at p. 105, see also footnote 7 quoting Buenger & Masters, The Interstate Compact on Adult Offender Supervision: Using Old Tools to Solve New Problems, 9 Roger Williams U. L. Rev. 71 (2003).

Eleventh Amendment Immunity and Sovereign Immunity Alabama v. North Carolina, supra, held that 11 th Amendment does not bar an interstate compact commission from bringing claims against a member state for alleged violation or breach of a compact provision as the commission was created by the compact, its claims are wholly derivative of the member states claims, and the compact specifically authorizes the commission to act or appear on behalf of any party state or states as an intervenor or party in interest before any court of law. In re Fort Totten Metrorail Cases, __F.Supp.__, 2011 WL (D.D.C. 2011) WMATA holding that where actions of a compact agency involve the commission of any torts resulting from its quintessentially governmental conduct, such as the operation of a police force, or that require the exercise of discretion under certain circumstances, constitute governmental conduct and sovereign immunity is not waived when performing such activities.

Enforcement of Compacts and Regulations Scott v. Virginia, 676 S.E.2d 343, 346 (Va. App. 2009) held that obligations imposed by a duly authorized interstate commission are enforceable on the states. The Interstate Commission for Supervision of Adult Offenders, the Commission or ICAOS was established by the Compact and has promulgated rules governing the transfer of supervision from a sending state to a receiving state as well as the return to or retaking by a sending state. The ICAOS Rules are binding in the compacting states and thus have the force and effect of law in Virginia and Ohio. Id. at 346. State v. DeJesus, 953 A.2d 45 (Conn. 2008) The rules of the Commission are applicable on the states by the terms of the Compact. Rules adopted by the Commission have the force and effect of statutory law and all courts and executive agencies must take all necessary actions to enforce their application.

Duration of Compacts Virginia v. Maryland, 540 U.S. 56 (2003) held that an interstate compact negotiated in 1785, predating the Constitution of the United States was still in force and the Supreme Court will resolve disputes arising under the agreement exercising its original jurisdiction invoked by the parties.

Judicial Interpretation of Compact Language Alabama v. North Carolina, 560 U.S. __, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (June 1, 2010) held that when construing the provisions of a compact the Court, in giving full effect to the intent of the parties, may consult sources that might differ from those normally reviewed when an ordinary federal statute is at issue, including traditional canons of construction and the Restatement (Second) of Contracts. Id. at Doe v. Pennsylvania Board of Probation & Parole, supra. held that absent a federal statute making state statutory or decisional law applicable, the controlling law is federal law and, absent federal statutory guidance, the governing rule of the decision would be fashioned by the federal court in the mode of the common law. When interpreting an interstate compact, we must address disputes under the compact just as if we were addressing a federal statute or a federal contract. Id. at p. 106.

Standing and Indispensable or Interested Parties Alabama v. North Carolina, supra, held that a compact commission is not precluded from being an interested party to a suit between states and the presence of a compact commission as an interested party is not fatal to invoking the Supreme Courts original jurisdiction so long as the suit unequivocally involves states suing states in their sovereign capacity. American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002) applying F.R.C.P. 19 to answer whether the Arizona tribes with gaming compacts entered pursuant to A.R.S. Section 5-601(A) are indispensable parties. This case also stands for the proposition that questions related to standing in disputes involving an interstate compact with congressional consent, will be answered under federal law and will be based upon an analysis of which stakeholders are parties with standing to benefit from the procedural requirements of such an interstate compact.

State or Federal Status of an Interstate Compact Entity Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 938 N.E.2d 483 (IL 2010) held that interstate compact entities are supra state and sub federal in nature. The U.S. Constitution provides mechanisms to address matters that are clearly beyond the realm of individual states authority but which, due to their nature, may not be within the immediate purview of the federal government or easily resolved through a purely federal response. quoting C. Broun, M. Buenger, M. McCabe, & R. Masters, The Evolving Use and the Changing Role of Interstate Compacts: A Practitioners Guide, n Mitskovski v. Buffalo and Fort Erie Public Bridge Authority, 689 F. Supp. 483 (W.D.N.Y. 2010) held that the construction of an interstate or international compact approved by Congress under the Compact Clause of the Constitution, U.S. Const. art. I, § 10, cl. 3, presents a federal question.U.S. Const. art. I, § 10, cl. 3 Friends of the Columbia Gorge v. Columbia River Gorge Commission, 213 P.3d 1164 (OR, 2009)

Tort Liability of Compact Administrators Hansen v. Scott, 645 N.W.2d 223 (N.D. 2002) cert denied, 537 U.S (2003) Plaintiffs brought an action in connection with the murder of their parents by a parolee who had been transferred to North Dakota for parole supervision by Texas officials. The plaintiffs alleged that the employees of the Texas compact office which was responsible for administering the interstate compact for the supervision of this offender failed to notify North Dakota officials about his long criminal history and dangerous propensities and sought to hold the Texas employees liable on their wrongful death, survivorship, and 42 U.S.C. Section 1983 claims. The Supreme Court of North Dakota held the tort claim justified the exercise of personal jurisdiction over the Texas employees because of their affirmative action of requesting North Dakota to supervise a Texas parolee constituted activity in which they purposefully availed themselves of the privilege of sending the parolee to North Dakota and thus could have reasonably anticipated being brought into court in North Dakota to defend these claims and the exercise of personal jurisdiction comports with due process.

Interstate Compact Legislation States 105 compacts currently active in state legislatures105 compacts currently active in state legislatures 16 compact bills enacted in states already in compact bills enacted in states already in compact bills enacted in 2005 (most since 1969)49 compact bills enacted in 2005 (most since 1969)Federal 30 bills currently being considered in 109 th Congress30 bills currently being considered in 109 th Congress

Interstate Compact – State Legislative Enactment Trends, 1955 to 2005

Notable Interstate Compacts Under Consideration Interstate Insurance Product Regulation CompactInterstate Insurance Product Regulation Compact National Crime Prevention and Privacy CompactNational Crime Prevention and Privacy Compact Interstate Compact for JuvenilesInterstate Compact for Juveniles Electoral College Interstate CompactElectoral College Interstate Compact Wildlife Violator CompactWildlife Violator Compact Midwest Interstate Passenger Rail CompactMidwest Interstate Passenger Rail Compact Interstate Pest Control CompactInterstate Pest Control Compact Great Lakes – St. Lawrence River Basin Water Resources CompactGreat Lakes – St. Lawrence River Basin Water Resources Compact

Resources State Activity Federal Activity Compacts Database