California Dept. of Health Services v. Babbitt
| Decision Date | 31 March 1999 |
| Docket Number | No. Civ.A. 97-365(EGS).,No. Civ.A. 97-218(EGS).,Civ.A. 97-218(EGS).,Civ.A. 97-365(EGS). |
| Citation | 46 F.Supp.2d 13 |
| Parties | CALIFORNIA DEPARTMENT OF HEALTH SERVICES, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants, and Committee to Bridge the Gap, Intervenor-Defendants. U.S. Ecology, Plaintiff, v. Bruce Babbitt, et al., Defendants, and Committee to Bridge the Gap, Intervenor-Defendants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Cynthia Larson, Orrick, Herrington & Sutcliffe LLP, Sacramento, CA, Karl Lytz, Latham & Watkins, San Francisco, CA, Peter Winick, Latham & Watkins, Washington, D.C., Laurence H. Levine, Latham & Watkins, Chicago, IL, for plaintiffs.
Ann D. Navarro, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for defendants.
Eric R. Glitzenstein, Meyer & Glitzenstein, Washington, D.C., for intervenors.
Stephen L. Kowalewski, Sacramento, CA, for amicus Southwestern LLRW Comm'n.
Lilia Lopez, Assistant Attorney General, Olympia, WA, for amicus Northwest Interstate Compact on LLRW Management.
Laurie J. Loveland, Solicitor General, Office of Attorney General, Bismark, ND, for amicus State of North Dakota.
John Louis Longstreth, Preston Gates Ellis & Rouvelas Meeds LLP, Washington D.C., for amicus Gray Davis and for intervenor-applicants Fort Mojave Tribe.
Valerie Stanley, Rockville, MD, for amici Ruth Galanter, Jackie Goldberg.
James B. Dougherty, Washington, DC, for amicus Sheila James Kuelh.
Alvin J. Lorman, Mintz Levin, Cohn, Ferris, Glovsky & Popeo, Washington, D.C., for amicus American College of Nuclear Physicians and for amicus Society of Nuclear Medicine.
James Curtiss, Winston & Strawn, Washington, D.C., for Amicus Health Physics Society.
David P. Sheldon, Eugene R. Fidell, Feldesman, Tucker, Leifer, Fidell & Bank LLP, Washington, D.C., for amicus County of San Bernadino.
Fran M. Layton, Shute, Mihaly & Weinberger, San Francisco, CA, for amicus County of San Bernadino.
Louise Renne, City Attorney, Alison Stewart, Deputy City Attorney, San Francisco, CA, for amicus City of San Francisco.
James B. Slaughter, Beveridge & Diamond, PC, Washington, DC, for amicus California Radioactive Materials Management Forum.
James Kawahara, Preston Gates Ellis & Rouvelas Meeds LLP, Los Angeles, CA, for intervenor-applicants Fort Mojave Tribe.
In the waning hours of the Bush Administration, outgoing Secretary of the Interior Manuel Lujan Jr. ("Lujan") issued a Record of Decision ("ROD") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq. announcing his decision to approve the direct sale of 1,000 acres of federal land under the Federal Land and Policy Management Act ("FLPMA"), 43 U.S.C. §§ 1713, 1719(b), to the State of California for potential use as a low-level radioactive waste ("LLRW") facility. Earlier that day, January 19, 1993, a United States District Judge in the Northern District of California had orally extended a Temporary Restraining Order further enjoining Secretary Lujan from, inter alia, taking any action in connection with the transfer of this land. Secretary Lujan's 11th-hour decision was his final step in a protracted administrative process regarding this highly controversial issue.
Weeks before making his land-transfer decision, Secretary Lujan had notified some of the multitude of interested parties that the transfer could not be accomplished before the change in Administrations. Then two weeks before the end of the Bush Administration, and two days after receiving a request from then-Governor Pete Wilson ("Wilson") of California to complete the land transfer, Secretary Lujan abruptly changed position, and took certain actions in an attempt to complete the transfer. A month after Secretary Lujan issued his ROD, President Clinton's Secretary of the Interior, Bruce Babbitt, ("Babbitt") rescinded it.
Plaintiffs California Department of Health Services and its Director, Kimberly Belshé (collectively, "CDHS") and U.S. Ecology, Inc., bring this action against Secretary Babbitt, the Department of the Interior ("DOI"), the Bureau of Land Management ("BLM"), and John Garamendi, Deputy Secretary of the Interior. Relying on the Mandamus Act, 28 U.S.C. § 1361, plaintiffs ask this Court to compel defendants to convey the land, located in the Ward Valley of California, to be used as a nuclear dump. Plaintiffs also allege that Secretary Babbitt violated the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"), when he rescinded Secretary Lujan's ROD.
Intervenor-Defendants, Committee to Bridge the Gap, the Bay Nuclear Waste Coalition, Ward Young, and Ernest Goitein, oppose the sale of the Ward Valley land alleging that the government has not complied with certain environmental statutes.
Defendants and intervenor-defendants have moved for summary judgment on all of plaintiffs' claims. Plaintiffs CDHS and U.S. Ecology seek partial summary judgment on their claim that they are entitled to mandamus relief. U.S. Ecology also seeks summary judgment on its claim that Secretary Babbitt's actions in rescinding Secretary Lujan's ROD was arbitrary and capricious. The Court has considered the parties submissions as well as the briefs filed by numerous groups as amicus curiae,1 and for the following reasons, the Court will grant defendants' motion for summary judgment, grant the intervenor's motion for summary judgment, and deny plaintiffs' motions for partial summary judgment.
In 1987, California, Arizona, North Dakota and South Dakota entered into the Southwestern Low-Level Radioactive Waste Disposal Compact, to establish a regional disposal site for LLRW, pursuant to the Low-Level Radioactive Waste Policy Act Amendments of 1985, 42 U.S.C. §§ 2021(b)-(j) (1994).2 Under California law, the CDHS is the agency responsible for managing the disposal of LLRW, consistent with the Interstate Compact. U.S. Ecology, Inc. was chosen as the license-designee to develop the LLRW facility under CDHS's oversight and was granted the license for the facility in September 1993. U.S. Ecology is therefore responsible for building and operating the facility, and for collecting fees from the eventual users of the facility.
California, as the initial host state under the compact, proposed to use the 1,000-acre parcel in the State's Ward Valley as the site of the LLRW facility. This parcel is presently owned by the federal government, and managed by BLM. To acquire this land, the California State Lands Commission ("SLC") submitted to BLM a series of school land indemnity applications beginning in 1987, under 43 U.S.C. § 851, seeking to acquire the Ward Valley site.3 Based on this application, BLM and CDHS issued a joint Environmental Impact Statement/Environmental Impact Report ("EIS/EIR") in April 1991 assessing the environmental impacts of, and alternatives to, using the proposed Ward Valley site as a LLRW facility, as required under NEPA and California law.4 This 500-page report concluded that the Ward Valley site was the preferred location for the facility, and that locating the facility there would result in no significant adverse environmental impacts. Under California law, CDHS is required to certify the adequacy of the final EIR. Even though the EIS/EIR had been issued, BLM did not issue an ROD based upon the EIS/EIR because CDHS did not certify the adequacy of the EIR.
Then in July 1991, SLC requested that BLM suspend processing its pending indemnity selection application. One year later, on July 13, 1992, CDHS requested that BLM sell the Ward Valley site directly to the State, pursuant to FLPMA, rather than through indemnity selection. But on September 17, 1992, SLC filed a revised indemnity selection application for the land, initiating a new two-year segregation period. In response to CHDS's request that the land be sold under FLPMA rather than through the indemnity selection process, BLM took two actions: On September 21, 1992, BLM published a Notice of Realty Action ("NORA"), initiating the 45-day comment period regarding the direct sale under 43 C.F.R. § 2711.1-2. BLM received approximately 200 comments opposing the direct sale. In addition, BLM published a notice of intent to commission a Supplemental EIS ("SEIS") to study whether adverse environmental consequences would result from transferring the Ward Valley site by direct sale rather than indemnity selection. On November 12, 1992, the draft SEIS was made public for comment, and the comment period remained open until December 28, 1992. Two days after the close of the public comment period on the draft SEIS, BLM issued a final SEIS finding that the change in method of sale, from indemnity selection to direct sale, would have no adverse environmental consequences.
The next day, on December 31, 1992, CDHS asked BLM to delay completion of the NEPA process, by postponing the release of the final SEIS, to enable CDHS to provide a more comprehensive response to the public comments on the draft SEIS. See Defs.' Ex. 25 (). Nevertheless, on that same day, BLM filed its final version of the SEIS, pursuant to 40 C.F.R. § 1506.9, triggering the 30 day comment period required by 40 C.F.R. § 1506.10(b).
As late as December 1992, Secretary Lujan and BLM continued to advise the public that DOI would not be able to issue a patent for the land to the State of California prior to the end of the Bush Administration. In a December 1992 letter to the Governor of North Dakota, Secretary Lujan wrote:
[W]ithin the time remaining in this Administration and with our commitment to carrying out all legal and required steps, including National Environmental Policy Act compliance, I am sorry to inform you that we will not be able to issue [a] patent to the State of California.
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