Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 1 of 26 PageID 195
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`STATE OF FLORIDA,
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`Plaintiff,
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`v.
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`XAVIER BECERRA, Secretary of
`Health and Human Services, in his
`official capacity; HEALTH AND
`HUMAN SERVICES; ROCHELLE
`WALENSKY, Director of Centers for
`Disease Control and Prevention, in
`her official capacity; CENTERS FOR
`DISEASE CONTROL AND
`PREVENTION; UNITED STATES
`OF AMERICA,
`
`Defendants.
`___________________________________
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`Case No.: 8:21-CV-839-SDM-AAS
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`STATE OF ALASKA’S MOTION TO INTERVENE
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`The State of Alaska moves to intervene in support of plaintiff, the State
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`of Florida, as of right pursuant to Federal Rule of Civil Procedure 24(a)(2) or,
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`alternatively, in permissive intervention pursuant to Federal Rule of Civil
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`Procedure 24(b). This litigation concerns the legality of an order issued by the
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`Center for Disease Control and Prevention (“CDC”) that prohibits cruise
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`ships from operating in waters of the United States until November 1, 2021,
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`or until the vessel’s operator can satisfy both overly burdensome and yet to be
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`determined requirements set by the CDC. The order directly affects the
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`1
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 2 of 26 PageID 196
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`economic health of Alaska, its small port communities, and its citizens.
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`Moreover, Alaska has a substantial interest in the subject matter of this
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`action because the CDC has exceeded its statutory authority by asserting a
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`general police power over Alaska and its local communities. See Nat’l Fed’n of
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`Indep. Bus. v. Sebelius, 567 U.S. 519, 536 (2012) (“The independent power of
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`the State also serves as a check on the power of the Federal Government: ‘By
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`denying any one government complete jurisdiction over all the concerns of
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`public life, federalism protects the liberty of the individual from arbitrary
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`power.’” (quoting Bond v. United States, 564 U.S. 211, 222, (2011)); Skyworks,
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`Ltd. v. Ctr. For Disease Control and Prevention, ---F. Supp. 3d---, 2021 WL
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`911720, at *10 (N.D. Ohio March 10, 2021) (concluding that the CDC’s
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`current interpretation of its statutory authority is “tantamount to creating a
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`general federal police power”).
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`BACKGROUND
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`I.
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`The CDC issued a No Sail Order at the start of the pandemic.
`In March 2020, the CDC issued the first of a series of No Sail Orders
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`shutting down the cruise industry in the United States. 60 Fed. Reg. 16628.
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`The order applied to passenger vessels with a capacity of 250 or more
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`individuals operating in waters subject to the jurisdiction of the United
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`States with an itinerary anticipating an overnight stay for passengers or
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`crew. Id. The CDC renewed the No Sail Order in separate orders issued on
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`2
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`April 9, July 16, and September 30, 2020. See 85 Fed. Reg. 21004, 85 Fed.
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`Reg. 44085, 85 Fed. Reg. 62732.
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`The No Sail Orders prohibited cruise ship operators from disembarking
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`or reembarking crew members except as directed by the United States Coast
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`Guard; prevented operators from embarking any new passengers or crew
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`except as approved; directed cruise ship operators to observe health
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`precautions as directed by the CDC; and directed operators to comply with all
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`CDC recommendations and guidance relating to the passengers, crew, ship,
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`or any article or thing on board the ship. 85 Fed. Reg. at 62737. As a
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`condition of returning to sailing, the No Sail Orders required cruise ship
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`operators to develop and implement a “robust plan to prevent, mitigate, and
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`respond to the spread of COVID-19 among crew onboard cruise ships.” Id.
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`The orders further required operators to make this plan available to the CDC
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`and address elements to adequately prevent, mitigate, and respond to the
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`spread of COVID-19 among crew and minimize, to the greatest extent
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`possible, any impact on government operations or the U.S. healthcare system.
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`Id.
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`As a result of the pandemic, Alaska’s 2020 cruise season was canceled.1
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`1
`See Alaska’s Last Remaining Big-Ship Cruises of 2020 Have Been Canceled,
`July 6, 2020, available at https://www.adn.com/business-
`economy/2020/07/06/alaskas-last-remaining-big-ship-cruises-of-2020-have-been-
`canceled/.
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`
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`3
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`

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`II. The CDC’s Conditional Sail Order threatens Alaska’s 2021
`cruise season.
`As of April 29, 2020, seven cruise ship operators—approximately 95%
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`of cruise ships subject to the No Sail Orders—had submitted the necessary
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`response plan. 85 Fed. Reg. at 62734. As of September 6, all five cruise ship
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`operators with ships remaining in U.S. waters had submitted response plans
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`that were “complete, accurate, and acknowledged.” Id.
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`On October 31, 2020, the CDC issued a “Conditional Sail Order” that
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`promised a “phased resumption of cruise ship passenger operations.” 85 Fed.
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`Reg. 70153. The initial phase consisted of testing and additional safeguards
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`for crew members while the CDC ensures operators build the laboratory
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`capacity needed to test future passengers. Id. Subsequent phases would
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`include simulated voyages, certification for ships that meet specific
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`requirements, and a phased return to passenger voyages. Id.
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`On April 2, 2021, the CDC issued technical guidance for phase 2a of its
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`phased approach.2 Among other requirements, this phase requires operators
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`to create “planning materials for agreements that port authorities and local
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`health authorities must approve to ensure cruise lines have the necessary
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`infrastructure in place to manage an outbreak of COVID-19 on their ships to
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`include healthcare capacity and housing to isolate infected people and
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`https://www.cdc.gov/media/releases/2021/s0402-conditional-sail-orders.html
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`4
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`2
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`quarantine those who are exposed.”3 This plan, in addition to a host of other
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`requirements, requires operators to obtain “medical care agreements” that
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`include contractual arrangements to provide for emergency medical transport
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`of critically ill persons and contractual arrangements with shoreside medical
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`facilities to ensure that travelers receive appropriate clinical evaluation.4 In
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`these agreements, the cruise ship operator “must document that its
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`contractual shoreside medical facilities or healthcare systems either
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`singularly or collectively have enough medical capacity in the judgment of the
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`local health authorities to care for travelers if an unanticipated outbreak of
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`COVID-19 occurs on board its ships.”5
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`Along with the medical care agreements and other related
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`requirements, cruise ship operators must enter housing agreements with
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`shoreside facilities to allow for isolation of and quarantine of persons with
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`suspected or confirmed COVID-19. The housing agreement provision includes
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`another host of requirements, including an obligation by the cruise ship
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`operator to “document that it has made contractual arrangements . . . in
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`sufficient quantities as determined by the local health authorities to meet the
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`housing needs of travelers until they meet CDC criteria to discontinue
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`
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`Id.
`https://www.cdc.gov/quarantine/cruise/instructions-local-agreements.html
`Id.
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`5
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`3
`4
`5
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`isolation.”6 In addition to the housing requirements, the CDC also directs the
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`parties to the agreement—which includes the cruise ship operator, the U.S.
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`port authority, and all health departments exercising jurisdiction over the
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`port—to jointly consider the potential needs of travelers under quarantine
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`and isolation. These needs include the availability and frequency of testing;
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`availability of mental health services; pharmacy delivery and other essential
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`services; available of security; a check-in process, including delivery of
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`luggage; procedures to ensure daily monitoring of travelers in quarantine;
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`procedures to minimize contact between travelers in quarantine and support
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`staff; and post-isolation and post-quarantine procedures to allow travelers to
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`safely return home.7
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`
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`The CDC has yet to issue technical guidance for Phase 2b—simulated
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`voyages—or any of the other remaining phases.8 Based on the Conditional
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`Sailing Order, it will be at least a 90-day process for a cruise ship operator to
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`complete a simulated voyage and possibly obtain a conditional sailing
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`certificate. Alaska’s cruise season is limited, extending from mid-May to early
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`October each year. Unless the CDC’s overly burdensome and opaque
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`requirements are altered or lifted soon, it will be impossible for large-scale
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`
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`Id.
`Id.
`https://www.cdc.gov/media/releases/2021/s0402-conditional-sail-orders.html
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`6
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`6
`7
`8
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`cruising to resume in the United States in time for any part of Alaska’s
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`season. And, given the CDC’s current pace for issuing its technical guidance
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`and the lead times necessary to arrange and market cruises, the CDC’s action
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`may jeopardize the 2022 cruise season as well.
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`III. The loss of another cruise season will have a catastrophic
`impact to Alaska and its economy.
`The No Sail Orders have had an unsustainable impact on Alaska’s
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`economy. As stated in an Interim Report issued by the Federal Maritime
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`Commission in October 2020:
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`In the case of Alaska, there exists an outsized economic impact
`from the cessation of cruise activity. While the symptoms are the
`same as in other parts of the United States, the impact is much
`greater because of Alaska’s distance and economic reliance on the
`tourism industry and, at the micro level, the almost total reliance
`of some small towns (and native Alaskans) on the income
`generated by cruise tourism.
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`
`[Ex. 1, at 4]
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`The State of Alaska directly lost an estimated $90.3 million in tourism
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`revenues in 2020 and stands to lose even more if the cruise industry remains
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`shut down for the 2021 cruise season. [Ex. 2, at 5] This revenue stems
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`directly from the cruise industry and comes in the form of state taxes, fishing
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`and hunting licenses, state park fees, passenger related revenues, and
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`environmental compliance fees. [Id.]
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`7
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 8 of 26 PageID 202
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`Alaska’s port and cruise line related communities lost 22,297 jobs in
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`2020 equating to over $305.7 million in lost wages. These lost wages and lost
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`jobs impact Alaska by depleting the state’s Unemployment Reserve Trust. In
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`February 2020, the balance of this trust was $492.9 million; in March 2021,
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`the balance of the trust was $265.8 million. [Ex. 2, at 7] Of this $227 million
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`loss, $29.8 million is directly attributed to the cruise industry. [Id.]
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`The total amount of direct loss to the State of Alaska resulting from the
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`cancellation of the 2020 season was well in excess of one billion dollars, but
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`the impact to Alaska’s communities was even greater. [Id. at 2] The cruise
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`industry and the visitors it serves account for $3.0 billion of the state’s
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`economy. [Id.] The loss of the 2020 season had a particularly negative impact
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`in Southeast Alaska, where the economies of many communities are entirely
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`dependent upon tourism. [Id. at 1] For example, it is estimated that the city
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`of Skagway lost over $13 million in revenue generated from the cruise
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`industry last year alone; this is more than 100% of Skagway’s operating
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`budget. [Id. at 3–4] According to Skagway’s mayor, the cancellation of the
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`2021 cruise season
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`will mean 2 ½ years with no economy. Somewhere around $330 million
`in lost revenue for local businesses. People are already moving away.
`Population is down to around 800 from 1,100 last summer. Businesses
`will fail. A lot of them. We lost professionals in all sectors. The
`municipality will run out of reserves by next August, even with the
`stimulus funding.
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`8
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`[Id. at 4]9
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`These impacts, although they may not appear as dramatic as Florida’s
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`lost revenues, are uniquely significant to Alaska’s small communities and
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`they are not limited to Skagway. For example, it is estimated that only 26%
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`of businesses in Ketchikan, another small community in Southeast Alaska,
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`will survive a delayed restart to the tourism industry. [Id.]
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`While it is more dramatically felt in Alaska’s port and cruise line
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`communities, the effects of the CDC’s orders extend throughout Alaska.
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`Based on a report released in September 2020, it is estimated that over
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`160,000 cruise passengers would have visited interior Alaska last summer—
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`an area that includes places like Denali National Park and Fairbanks. [Id.]
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`These visitors would have stayed, on average, approximately two nights in
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`either Denali or Fairbanks, providing demand for seasonal hotels that often
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`cater to cruise passengers. As a result of the shutdown of the cruise industry,
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`many of these seasonal hotels did not open at all in 2020, and many will
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`suffer the same fate in 2021 if the CDC’s Conditional Sail Order remains in
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`place.
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`According to the 2016 Alaska Visitor Statistics Report, 96% of visitors to
`9
`Skagway traveled by cruise ship. [Ex. 1, at 22]
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`9
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`
`
`ARGUMENT
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`“It would be a colossal understatement to say that the COVID-19
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`pandemic has had far-reaching effects. It has changed everything from the
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`way that friends and families interact to the way that businesses and schools
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`operate to the way that courts hear and decide cases.” Swain v. Junior, 961
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`F.3d 1276, 1280 (11th Cir. 2020). But to some industries—and the
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`communities dependent on those industries—the impacts have been far more
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`catastrophic.10 Rather than building on the progress health officials have
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`made since the start of this pandemic to allow the cruise industry to operate
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`under reasonable restrictions within its statutory authority, the CDC’s order
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`leaves this industry ground to a halt. The federal agency’s promise of a
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`“phased approach to resuming passenger operations” is meaningless to
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`Alaska because the CDC’s current phases are arbitrary and overly
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`burdensome and the CDC has not even fully defined what each of the phases
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`will require, leaving the cruise industry unable to determine whether it is
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`even possible to meet these guidelines during Alaska’s 2021 cruise season.
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`See 85 Fed. Reg. 70153. Because Alaska has a significant stake in the
`
`
`Ceylan Yeginsu, Why U.S. Cruises Are Still Stuck in Port, N.Y. Times (March
`10
`19, 2021) (available at http://www.nytimes.com/2021/03/19/travel/coronavirus-
`cruises.html (reporting that the cruise industry has been “ravaged,” with
`“companies reporting billions of dollars in losses, causing some of them to downsize
`their fleets and sell ships for scrap”)).
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`10
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 11 of 26 PageID 205
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`outcome of this litigation, and because the CDC order impacts Alaska
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`differently than Florida, Alaska should be allowed to intervene under Federal
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`Rule of Civil Procedure 24.
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`I.
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`
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`Alaska should be permitted to intervene as of right under Rule
`24(a)(2).
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`Alaska satisfies the requirements for intervention as of right under
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`Rule 24(a)(2). A party is entitled to intervene as a matter of right if the
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`motion to intervene is timely, the movant shows an interest in the subject
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`matter of the suit, the movant’s “ability to protect that interest may be
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`impaired by the disposition of the suit,” and “existing parties in the suit
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`cannot adequately protect that interest.” Georgia v. U.S. Army Corps of
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`Engr’s, 302 F.3d 1242, 1250 (11th Cir. 2002) (discussing Fed. R. Civ. P.
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`24(a)(2)). Courts are to construe Rule 24 liberally, with any doubts resolved
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`in favor of the proposed intervenor. Fed. Sav. & Loan Ins. Corp. v. Falls
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`Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir. 1993).
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`A. Alaska’s motion to intervene is timely and will not unduly
`disrupt the litigation or prejudice the existing parties.
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`Alaska’s request to join this litigation is timely. In determining
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`
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`whether a motion to intervene is timely, courts consider:
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`(1) The length of time during which the proposed intervenor
`knew or reasonably should have known of the interest in the case
`before moving to intervene; (2) the extent of prejudice to the
`existing parties as a result of the proposed intervenor’s failure to
`move for intervention as soon as it knew or reasonably should
`11
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`have known of its interest; (3) the extent of prejudice to the
`proposed intervenor if the motion is denied; and (4) the existence
`of unusual circumstances militating either for or against a
`determination that their motion was timely.
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`Georgia, 302 F.3d at 1259 (citing Chiles v. Thornbrugh, 865 F.2d 1197, 1213
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`(11th Cir. 1989).
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`
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`All four of these factors weigh in favor of the State of Alaska’s request.
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`Alaska files this motion to intervene just over a week after Florida filed its
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`complaint. None of the existing parties will suffer any prejudice if Alaska is
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`allowed to intervene as the federal defendants will be able to respond to
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`Alaska’s complaint at the same time it responds to Florida’s, and Alaska will
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`be able to participate in any preliminary motions, scheduling proceedings,
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`discovery (if needed), or dispositive motions practice.
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`
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`On the other hand, if the court denies intervention, Alaska will surely
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`suffer prejudice. In considering prejudice to the proposed intervenor, the
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`court must consider the “extent to which a final judgment in the case may
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`bind the movant even though he is not adequately represented by an existing
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`party.” United States v. Jefferson County, 720 F.2d 1511, 1517 (11th Cir.
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`1983). Here, Florida seeks review of a nationwide order that imposes
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`restrictions on Alaska’s cruise industry just as it does Florida’s cruise
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`industry. Although the restrictions are the same, the two states are affected
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`differently. Florida’s cruise industry runs year round; Alaska’s season is
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`12
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`limited due to weather. Florida may have the infrastructure to satisfy some,
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`if not all, of the CDC’s various requirements. Alaska’s small port
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`communities may not be able to comply with the CDC’s requirements for
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`medical care and housing agreements, among other things. In short, this
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`litigation will directly impact Alaska’s interests, and Alaska’s interests
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`sufficiently differ from Florida’s such that it would be prejudiced if not
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`allowed to intervene. See id. (stating that a party is prejudiced even if he has
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`an identical interest with a party, if he has a “sufficiently greater stake than
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`the party that the party’s representation may be inadequate to protect the
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`movant’s interest”).
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`Lastly, no unusual circumstances counsel against intervention.
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`Because Alaska has interests unique to only it, and because Alaska’s motion
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`is timely, all of the four factors under the timeliness inquiry weigh in favor of
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`its request to intervene.
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`B. Alaska has important, legally protected interests in this
`action.
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`Intervening parties must show that their “interest in the subject
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`
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`matter of the litigation is direct, substantial and legally protectable.”
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`Georgia, 302 F.3d at 1249; Fed. R. Civ. P. 24(a)(2). “In deciding whether a
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`party has a protectable interest, . . . courts must be ‘flexible’ and must ‘focus[]
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`13
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`on the particular facts and circumstances’ of the case.” Huff v. Comm’r of
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`IRS, 743 F.3d 790, 796 (11th Cir. 2014) (quoting Chiles, 865 F.2d at 1214)).
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`Although the Eleventh Circuit has held that an economic interest alone
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`is insufficient to warrant intervention, those cases are inapposite here
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`because Alaska has a sufficient legal interest to establish Article III standing
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`to pursue its own claim under the Administrative Procedures Act. See United
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`States v. South Fla. Water Mgmt Dist., 922 F.2d 704, 710 (11th Cir. 1991)
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`(“By requiring that the applicant’s interest be . . . ‘legally protectable,’ it is
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`plain that something more than an economic interest is necessary.” (quoting
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`New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464
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`(5th Cir. 1984) (en banc)); see also Fund For Animals, Inc. v. Norton, 322 F.3d
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`728, 735 (D.C. Cir. 2003) (stating that a court’s conclusion that proposed
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`intervenor has constitutional standing is alone sufficient to establish the
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`movant has “an interest relating to the property or transaction which is the
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`subject of the action.” (quoting Fed. R. Civ. P. 24(a)(2)).
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`Article III standing consists of three elements: “the plaintiff must have
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`suffered an injury in fact, the defendant must have caused that injury, and a
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`favorable decision must be likely to redress it.” Trichell v. Midland Credit
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`Mgmg, Inc., 964 F.3d 990, 967 (11th Cir. 2020). In addition to showing a
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`sufficient injury, “a plaintiff’s grievance must arguably fall within the zone of
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`interests protected or regulated by the statutory provision or constitutional
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`14
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`guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997).
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`“Whether a plaintiff’s interest is ‘arguably . . . protected . . . by the statute”
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`within the meaning of the zone-of-interest test is to be determined not by
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`reference to the overall purpose of the Act in question, but by reference to the
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`particular provision upon which the plaintiff relies.” Id. at 175–76. In Bennett
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`v. Spear, the plaintiffs sought to challenge, under the APA, § 7 of the
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`Endangered Species Act, 16 U.S.C. § 1536, which requires that each agency
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`“use its best scientific and commercial data available.” Id. at 176. Although
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`the most obvious reason to require federal agencies to use the “best scientific
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`and commercial data available” is to ensure that federal agencies rely on
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`more than pure speculation when implementing the Endangered Species Act,
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`the Supreme Court also recognized another objective—“to avoid needless
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`economic dislocation produced by agency officials zealously but
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`unintelligently pursuing their environmental objectives.” Id. at 176–77. The
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`same holds true in this case.
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`In their respective complaints, Alaska and Florida both seek to enforce
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`42 U.S.C. § 264, which grants the Secretary of Health and Human Services
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`the power to make and enforce regulations necessary to prevent the
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`introduction, transmission, or spread of communicable diseases, but limits
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`that discretion to measures related to the inspection, fumigation, disinfection,
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`sanitation, pest extermination, destruction of animals or articles found to be
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`15
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 16 of 26 PageID 210
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`so infected or contaminated as to be sources of dangerous infection to human
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`beings. The most obvious reason to require the Secretary to focus his
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`measures on the inspection, fumigation, and disinfection of articles and
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`animals found to be infected or contaminated is to focus on those items that
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`may facilitate the introduction, transmission or spread of communicable
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`diseases. See Skyworks, Ltd. v. Center for Disease Control and Prevention, ---
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`F. Supp. 3d---, 2021 WL 911720, at *9 (N.D. Ohio March 10, 2021) (“Tying
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`these actions to “animals or articles” links the agency’s power to specific,
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`tangible things on which the agency may act.”); see also Tiger Lily, LLC v.
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`U.S. Dep’t of Housing & Urban Dev., --- F.3d ---, 2021 WL 1165170 (6th Cir.
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`2021) (“Plainly, government intrusion on property to sanitize and dispose of
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`infected matter is different in nature from a moratorium on evictions.”). But
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`just as the statute at issue in Bennett had multiple objectives, so does this
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`statute. It directs the agency’s actions to those animals or articles actually
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`“found” to be sources of infection, 42 U.S.C. § 264(a), and necessarily limits
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`the agency’s ability to target “amorphous disease spread” that would result in
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`needless economic dislocation produced by agency officials zealously but
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`unintelligently pursuing the equivalent of a federal police power. See
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`Skyworks, Ltd., 2021 WL 911720, at *10.
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`In Skyworks Ltd. v. Center for Disease Control and Prevention, the
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`district court held that the CDC’s eviction moratorium exceeded its statutory
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 17 of 26 PageID 211
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`authority under 42 U.S.C. § 264(a). 2021 WL 911720, at *10. In doing so, the
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`court noted that the CDC’s broad reading of its statutory authority had “few,
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`if any, limits” and was “tantamount to creating a general federal police
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`power.” Id. The CDC’s action with regard to the cruise ship industry is
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`similarly broad and expansive. Rather than focusing its efforts on specific
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`articles or animals found to be infected and that present an actual risk of
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`transmission to other people, the CDC has set out to regulate every aspect of
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`the cruise ship industry—from directing how and where passengers on cruise
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`ships will get medical care or seek housing to requiring cruise ship operators
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`to develop a program to educate port personnel and travelers about the
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`importance of getting COVID-19 vaccines. See 85 Fed. Reg. 85. By exercising
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`such broad authority over an entire industry, the CDC has exceeded its
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`statutory authority and infringed on the states’ police power, which “also
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`serves as a check on the power of the Federal Government.” See Nat’l Fed’n of
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`Indep. Bus., 567 U.S. at 536.
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`Further, these orders indirectly regulate Alaskan municipalities and
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`the State, and regulate which Alaskan municipalities may accept cruise ships
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`into port. By requiring cruise operators to obtain approval of certain
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`contractual agreements from local port authorities and health authorities
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`according to specific criteria, the CDC equally requires those port authorities
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`and public health authorities to review those agreements according to its
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 18 of 26 PageID 212
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`criteria in order for municipalities to accept the ships into port. And the
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`required terms of those agreements may bar certain Alaskan municipalities
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`from accepting cruise ship traffic, infringing on the sovereignty of Alaska its
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`political subdivisions. Alaska and its political subdivisions have a legally
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`protected interest in regulating commerce within their own ports without
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`ultra vires interference by the CDC. See Tiger Lily, LLC, --- F.3d ----, 2021
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`WL 1165170 (6th Cir. 2021) (“[W]e cannot read the Public Health Service Act
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`to grant the CDC the power to insert itself into the landlord-tenant
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`relationship without some clear, unequivocal textual evidence of Congress's
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`intent to do so. Regulation of the landlord-tenant relationship is historically
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`the province of the states.”).
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`Alaska’s economic interests also justify its standing. In Texas v. United
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`States, the Fifth Circuit found Texas had standing to challenge the Deferred
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`Action for Parents of Americans and Lawful Permanent Residents program
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`as unlawful under the Administrative Procedures Act. 809 F.3d 134, 146,
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`149, 150–55 (2015). In doing so, the court recognized that states are entitled
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`to a “special solicitude” in the standing inquiry, id. at 151 (citing
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`Massachusetts v. EPA, 549 U.S. 497, 526)), and concluded that Texas met the
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`injury in fact requirement “by demonstrating that it would incur significant
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`costs in issuing drivers’ licenses to DAPA beneficiaries.” Like Texas, Alaska
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`is entitled to “special solicitude” when it comes to standing. As a sovereign
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 19 of 26 PageID 213
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`state, Alaska is not a normal litigant for purposes of invoking federal
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`jurisdiction. Id. at 151. Moreover, as in Texas v. United States and
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`Massachusetts v. EPA, this dispute turns on the proper construction of a
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`congressional statute, and, as discussed above, Alaska’s interests are within
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`the zone of interests of the statute at issue. See Texas, 809 F.3d at 151–52.11
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`And, also like Texas, Alaska has shown that continuation of the CDC’s
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`Conditional Sail Order would have a major effect on Alaska’s fisc. See id. at
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`157.
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`Alaska also satisfies the other two elements of standing because it can
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`show that the CDC’s orders have caused its injuries and a favorable decision
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`from this Court would likely redress those injuries. Because Alaska has
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`The zone of interest test “is not meant to be especially demanding and is
`11
`applied in keeping with Congress’s evident intent when enacting the APA to make
`agency action presumptively reviewable. Texas, 809 F.3d at 162 (internal quotation
`marks omitted). In enacting 42 U.S.C. § 264(a), Congress meant to preserve the
`states’ authority to prevent the introduction, transmission, or spread of
`communicable diseases. 42 U.S.C. § 264(e); see also 42 C.F.R. § 70.2 (providing that,
`if the Director of the CDC determines that measures taken by health authorities of
`any State or possession “are insufficient to prevent the spread of any of the
`communicable diseases. . . , he/she may take such measures to prevent such spread
`of the diseases as he/she deems reasonable necessary, including inspection,
`fumigation, disinfection, sanitation, pest extermination, and destruction of animals
`or articles believed to be sources of infection”). Although the CDC has not
`considered Alaska’s action in relation to the Conditional Sail Order, Alaska
`continues to have one of the best vaccination rates in the nation. As of April 2, 2021,
`nearly one-in-three Alaskans (253,240 people) had received their first shot while
`more than one-in-five (177,827) people were fully vaccinated. See
`https://gov.alaska.gov/newsroom/2021/04/02/alaska-continues-to-lead-nation-in-
`vaccination-rates/.
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 20 of 26 PageID 214
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`Article III standing to pursue its own claims under the Administrative
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`Procedures Act, Alaska has a legally protectable interest under Rule 24(a)(2)
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`to intervene in this litigation.
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`C. Alaska’s ability to protect its interest may be impaired
`absent intervention.
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`Alaska must also show that resolution of this action “may as a practical
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`
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`matter impair or impede [its] ability to protect its interest.” Fed. R. Civ. P.
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`24(a)(2). The nature of Alaska’s interest and the effect that the disposition of
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`the lawsuit will have on its ability to protect that interest are “closely
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`related” issues. Chiles, 865 F.2d at 1214. “Where a party seeking to intervene
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`in an action claims an interest in the very property and very transaction that
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`is the subject of the main action, the potential stare decisis effect may supply
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`that practical disadvantage which warrants intervention as of right.” Id.; see
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`also Huff, 743 F.3d at 800 (“‘If an absentee would be substantially affected in
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`a practical sense by the determination made in an action, he should, as a
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`general rule, be entitled to intervene.’” (quoting Cascade Natural Gas Corp. v.
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`El Paso Natural Gas Co., 386 U.S. 129, 134 n.3 (1967))). Here, Alaska and
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`Florida’s interests are so situated that the disposition of this lawsuit will, as
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`a practical matter, have a potentially persuasive stare decisis effect in any
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`separate litigation that Alaska may be compelled to pursue if intervention is
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`Case 8:21-cv-00839-SDM-AAS Document 8 Filed 04/20/21 Page 21 of 26 PageID 215
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`not allowed. This reason alone is sufficient to show that Alaska’s ability to
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`protect its interest may be impaired absent intervention.
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`D. Florida will n