US ECOLOGY v. STATE OF NEV., DEPT. OF HUMAN RES., CV-R-82-357-ECR.

Citation557 F. Supp. 464
Decision Date22 February 1983
Docket NumberNo. CV-R-82-357-ECR.,CV-R-82-357-ECR.
PartiesU.S. ECOLOGY, INC., a California corporation, Plaintiff, v. The STATE OF NEVADA, DEPARTMENT OF HUMAN RESOURCES, an agency within the meaning of Chapter 233B, Nevada Revised Statutes; State Board of Health, an agency within the meaning of Chapter 233B, Nevada Revised Statutes; and Brian McKay, Attorney General of Nevada, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

Vargas & Bartlett, Reno, Nev. and Latham & Watkins, Los Angeles, Cal., for plaintiff.

D. Brian McKay, Atty. Gen. of Nev., Carson City, Nev., for all defendants except State Bd. of Health.

Leonard I. Gang, Las Vegas, Nev., for defendant State Bd. of Health.

ORDER

EDWARD C. REED, Jr., District Judge.

The defendants have made a written motion to dismiss on the ground that the issues the plaintiff seeks to raise in this forum are not ripe for review. It is contended that the existence of a case or controversy won't be determinable until a Nevada State Court has acted in a pending case among the same parties. In the alternative, the defendants' motion asks for entry of an abstention order which would stay any further proceedings in this federal court until the State Court has acted. During the hearing on the motion, which was held January 11, 1983, the defendants also argued that only the State Attorney General was properly before the Court as a defendant, in that the action against the two governmental agency defendants is barred by the Eleventh Amendment. The same affirmative defense was raised in the defendants' answer to the plaintiff's complaint.

The Eleventh Amendment defense amounts to a jurisdictional bar, therefore it may be considered at any time. Jackson v. Hayakawa, 682 F.2d 1344, n. 5 (9th Cir. 1982). Under the Amendment, a state may not be sued as a party defendant without its consent. Washoe Tribe of Nevada & Cal. v. Greenley, 674 F.2d 816, 818 (9th Cir.1982). Nevada has explicitly refused to waive its immunity to suit in federal court. NRS 41.031(3); O'Connor v. State of Nevada, 686 F.2d 749, 750 (9th Cir.1982). Not only is the State immune from such suits, but so also are its agencies. Ibid; Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978). It does not matter what type of relief is sought. Harris v. Arizona Bd. of Regents, 528 F.Supp. 987, 995 (D.Ariz.1981).

Nevertheless, suits for declaratory and injunctive relief (such as the instant action) against state officers in their official capacities are not barred by the Amendment. Ibid.; Jackson v. Hayakawa, supra at 1350. The result is that a state and its agencies are free to carry out its functions without being subjected to suit; however, the same immunity is not extended to state officers who carry out their official duties in violation of the U.S. Constitution. V.O. Motors v. California St. Bd. of Equalization, 691 F.2d 871, 872 (9th Cir. 1982); Washoe Tribe of Nevada & Cal. v. Greenley, supra at 818. The state officer named as a defendant must have an obligation to enforce the state law of which the plaintiff complains. N.A.A.C.P. v. State of Cal., 511 F.Supp. 1244, 1255 (E.D.Cal.1981). The Attorney General of Nevada is charged with the duty of enforcing the State's laws controlling radiation hazards. NRS 459.270.

The plaintiff argues that the State of Nevada has surrendered its immunity by seeking and obtaining permission to operate in a sphere of authority subject to the power of the federal government. Such a loss of immunity has been judicially recognized. See Parden v. Terminal Ry. Co., 377 U.S. 184, 196, 84 S.Ct. 1207, 1215, 12 L.Ed.2d 233 (1964); Chesapeake Bay Bridge and Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003-4 (4th Cir.1968); State of Oregon v. Tug Go-Getter, 299 F.Supp. 269, 273 (D.Ore.1969), rev'd and mod. on oth. gds. 468 F.2d 1270 (9th Cir.1972). These cases all appear to have involved activities of the state in what may be categorized as profit-making proprietary functions, as contrasted with nonprofit sovereign functions. Immunity is not lost when the activity is of a nonprofit nature. Riggle v. State of Cal., 577 F.2d 579, n. 5 (9th Cir.1978); Employees v. Missouri Public Health Dept., 411 U.S. 279, 284, 93 S.Ct. 1614, 1617-18, 36 L.Ed.2d 251 (1973); Williamson Towing Co. v. State of Ill., 534 F.2d 758, n. 3 (7th Cir.1976).

Nevada's control of radiation hazards within the State is a nonprofit sovereign function. Although it involves a sphere of authority subject to Congressional regulation, it does not cause a surrender of Eleventh Amendment immunity. Therefore, this action must be dismissed as against The State of Nevada, Department of Human Resources and State Board of Health. Nevertheless, the Court will consider any motion made by the plaintiff to add appropriate State officers as party defendants.

The issue of whether the doctrine of abstention is applicable calls for a brief statement of the history and status of the litigation between the parties. The plaintiff has been operating a low-level radioactive waste disposal site near Beatty, Nevada, for more than twenty years. Originally it was licensed by the Atomic Energy Commission. In 1972, however, the State of Nevada entered into an agreement with the Commission whereunder the State assumed authority for the control of radiation hazards within the State. Since that time the State has inspected the plaintiff's operations and licensed it to continue operating the disposal site.

In 1980 the State denied the plaintiff's application for renewal of its license. The ground given for denial was the need to protect the health and safety of the citizens of Nevada from an uncontrollable system of improper packaging and transportation of the radioactive waste into Nevada. No defects in the disposal site itself nor the plaintiff's operation of it were cited.

The plaintiff pursued an administrative appeal to the State Board of Health. After a hearing and the taking of evidence, the Board voted five to one to reverse the denial of the plaintiff's application. The Board, in December 1980, directed the State Department of Human Resources to issue the license. That Department, however, petitioned a Nevada District Court to review the Board of Health's decision. The Court, in April 1982, reversed the Board's decision, primarily on the ground that its Findings of Fact and Conclusions of Law were legally inadequate to permit proper judicial review because of failure to articulate the underlying facts supporting the decision. The Court remanded the case to the Board of Health to review the record, without the need for a new hearing, and render a new decision.

By then the Board of Health had four new members. It reconsidered the record of the 1980 proceedings before the Board. On August 27, 1982, it voted five to two to reverse its earlier decision, and sustained the denial of the plaintiff's application for license renewal. Two months later, the Board adopted Findings of Fact and Conclusions of Law that supported the denial on the grounds of improper packaging and handling of the radioactive waste and failure of transporters of the waste to comply with federal regulations, all of which it was concluded increased the risk to the safety and health of Nevadans. On October 29, 1982, the plaintiff petitioned a Nevada District Court to review the Board's new decision. That case is still pending. On November 1, 1982, the complaint was filed herein, alleging essentially that the State's conduct was unconstitutional as applied to the plaintiff because it violated the Supremacy and Commerce clauses of the U.S. Constitution.

The disposal site has remained open continuously, originally by reason of the provisions of State law and now by stipulation of the parties that it may remain open for fifteen days after the State Court rules on the plaintiff's motion to stay the closure of the Beatty disposal site.

The plaintiff has represented to the Court that it has not raised the federal constitutional issues in the State Court action, and does not intend to litigate those issues there. According to the plaintiff, the issues in the State action are the...

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