County of Boyd v. US Ecology, Inc.

• Decision Date: 21 July 1994
• Docket Number: No. 4:CV93-3435.,4:CV93-3435.
• Citation: 858 F. Supp. 960
• Parties: The COUNTY OF BOYD, a Nebraska Political Subdivision, and the Boyd County Local Monitoring Committee, in behalf of themselves and all others similarly situated, Plaintiffs, v. US ECOLOGY, INC., Defendant.
• Court: U.S. District Court — District of Nebraska

858 F. Supp. 960

The COUNTY OF BOYD, a Nebraska Political Subdivision, and the Boyd County Local Monitoring Committee, in behalf of themselves and all others similarly situated, Plaintiffs, v. US ECOLOGY, INC., Defendant.

No. 4:CV93-3435.

United States District Court, D. Nebraska.

July 21, 1994.

Patricia A. Knapp, Lincoln, NE, for plaintiff Boyd County Local Monitoring Committee.

Shelley Horak, Boyd County Atty., Butte, NE, for plaintiff Boyd County, Neb.

Steven G. Seglin, Lincoln, NE, for defendant US Ecology, Inc.

MEMORANDUM AND ORDER

KOPF, District Judge.

Defendant US Ecology, Inc. (US Ecology) has filed a Motion for Summary Judgment (Filing 12), together with an Index of Evidence Offered in Support of Defendant's Motion for Summary Judgment (Filing 13). The essence of US Ecology's motion is that this case is barred by the doctrine of res judicata. Finding that US Ecology's position is meritorious, I shall grant Defendant's motion for summary judgment in its entirety and enter judgment in favor of Defendant US Ecology and against Plaintiffs, providing that Plaintiffs shall take nothing because application of the doctrine of res judicata bars relitigation of Plaintiffs' claims.

I.

Before turning to the undisputed facts of this case, I note that US Ecology has requested that I take judicial notice of the pleadings, motions, summary judgment evidence and court orders in State of Neb. ex rel. E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Comm'n & US Ecology, Inc., (D.Neb.) (No. 4:CV93-3042), granting motion for summary judgment, reported at 834 F.Supp. 1205 (D.Neb.1993), aff'd, 26 F.3d 77 (1994) hereinafter Nelson I and State of Neb. ex rel. E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Comm'n & US Ecology, Inc., (D.Neb.) (No. 4:CV93-3367) hereinafter Nelson II. Plaintiffs do not object to the court taking judicial notice of the pleadings, motions, summary judgment evidence and court orders in the above-entitled cases. I therefore take judicial notice of the pleadings, motions, summary judgment evidence and court orders in the above-entitled cases pursuant to Federal Rule of Evidence 201(b).

With the foregoing background in mind, I now turn to a discussion of the facts of this case as they relate to US Ecology's motion for summary judgment.

A.

As required by the Local Rules of Practice, US Ecology has set forth a statement of material facts which it believes are uncontroverted. NELR 56.1(a) ("The moving party shall set forth in the brief in support of the motion for summary judgment a separate statement of each material fact as to which the moving party contends there is no genuine issue to be tried and as to each shall identify the specific document or portion thereof or discovery response or deposition testimony (by page and line) which it is claimed establishes the fact."). US Ecology asserts in section II of its Brief in Support of Motion for Summary Judgment that there is no dispute concerning the following facts:

1. On October 8, 1993 the United States District Court for the District of Nebraska rendered the following judgment: State of Nebraska Ex Rel., E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Commission and US Ecology, Inc., 834 F.Supp. 1205 (D.Neb.1993) ("Nelson I"). Def.'s Ex. 1.

2. On December 3, 1993 the United States District Court for the District of Nebraska rendered the following judgment: State of Nebraska Ex Rel., E. Benjamin Nelson, Governor v. Central Interstate Low-Level Radioactive Waste Commission and US Ecology, Inc., No. 4:CV93-3367 (D.Neb. Slip Op. Dec. 3, 1993) ("Nelson II"). Def.'s Ex. 2.

3. In Nelson I the Court entered a separate judgment providing that Plaintiff would take nothing because the action was barred by the applicable limitations period, and by the equitable doctrines of estoppel and laches. Nelson II, Judge Kopf Memorandum dated December 3, 1993 at p. 6. sic.¹ Def.'s Ex. 1.

4. In Nelson II the Court entered a separate judgment providing that Plaintiff would take nothing because the application of the doctrine of res judicata barred relitigation of Plaintiff's claims. Nelson II, Judge Kopf Memorandum dated December 3, 1993 at p. 13. Def.'s Ex. 2.

5. In Nelson I and Nelson II the plaintiffs were the Governor of the State of Nebraska, E. Benjamin Nelson, as parens patriae on behalf of the State of Nebraska and the Citizens of Boyd County. Nelson I, Judge Kopf Memorandum dated October 8, 1993. Def.'s Exs. 1 and 2.

6. In Nelson I and Nelson II the defendants were US Ecology, Inc. and the Central Interstate Low-Level Radioactive Waste Commission. Def.'s Ex. sic 1 and 2.

7. The claims raised in the plaintiffs' petition in this action are based on the same factual predicate and arise out of the same nucleus of operative facts, i.e. complaints about site selection as it relates to the principle of community consent, as advanced in Nelson I and Nelson II. Complaints and summary judgment evidence in Nelson I and Nelson II.

8. Substantially the same evidence as that offered in Nelson I and Nelson II governs the issues of fraud and negligence raised in plaintiffs' petition. Summary judgment evidence in Nelson I and Nelson II.

9. In the present case the plaintiffs, Boyd County, Boyd County Local Monitoring Committee and Citizens of Boyd County, are in privity with the plaintiff, State of Nebraska, ex Rel. E. Benjamin Nelson, Governor, who brought the claims in Nelson I and Nelson II as parens patriae, on behalf of the State of Nebraska and the citizens of Boyd County. Complaints, summary judgment evidence in Nelson I and Nelson II and Def.'s Exs. 1 and 2.

(Def.'s Br.Supp.Mot.Summ.J. 3-5.)

Plaintiffs have not complied with the Local Rules of Practice. Specifically, Plaintiffs have failed to comply with NELR 56.1(b), which requires that:

any party opposing a motion for summary judgment shall set forth in its opposing brief a separate statement of each material fact as to which it is contended there exists a genuine issue to be tried and as to each shall identify the specific document or discovery response or deposition testimony (by page and line) which it is claimed establishes the issue....

Plaintiffs failed to provide me with a separate statement of the disputed material facts and failed to give me any citation to an evidentiary predicate for any assertion of a dispute of material fact. It is clear from their brief, however, that Plaintiffs believe: (1) that the doctrine of res judicata does not apply because the claims asserted in this case were not raised, nor could they have been raised, by the State of Nebraska in Nelson I or Nelson II, and (2) that there is no "privity" between the State of Nebraska in Nelson I and Nelson II and Plaintiffs in this case.

After carefully considering US Ecology's evidentiary submission and the briefs of all parties, I conclude that the uncontroverted material facts set forth by US Ecology in its brief are the material facts for which there is no factual dispute. Based upon Plaintiffs' brief, I conclude that only two legal questions remain for resolution by this court:

1. Were the claims asserted in this case raised, or could they have been raised, by the State of Nebraska in Nelson I or Nelson II?

2. Does privity exist between the plaintiff in Nelson I and Nelson II and Plaintiffs in this case?

B.

Before addressing the legal issues which confront the court, it is appropriate to discuss more fully the prior litigation. It is then helpful to compare the issues raised in the prior litigation with the issues raised in this case.

The effort to locate a regional low-level radioactive waste disposal facility in Nebraska has prompted a good deal of litigation. See, e.g., Concerned Citizens of Neb. v. United States Nuclear Regulatory Comm'n, 970 F.2d 421 (8th Cir.1992) aff'g in relevant part the decision of the United States District Court for the District of Nebraska dismissing a complaint by an unincorporated nonprofit citizens' organization and four of its members seeking to stop development of a regional low-level radioactive waste disposal facility.

Some Nebraskans, including many in Boyd County, Nebraska, and the present governor of the state, oppose construction of the radioactive waste disposal facility near the community of Butte, in Boyd County, Nebraska. This opposition has resulted in numerous federal lawsuits seeking to stop or otherwise impede construction of the facility. These efforts have been largely unsuccessful.

(1)

Nebraska's present governor, E. Benjamin Nelson, filed suit in Nelson I, asserting the interests of the State of Nebraska and the residents of Boyd County. Governor Nelson and the State of Nebraska contended that the Central Interstate Low-Level Radioactive Waste Commission (Commission) and its developer, US Ecology, had failed to obtain "community consent," thereby violating a resolution passed and adopted by the Commission and the Low-Level Radioactive Waste Disposal Act adopted by the State of Nebraska to implement the Central Interstate Low-Level Radioactive Waste Compact (Compact). Governor Nelson and the State of Nebraska sought declaratory and injunctive relief.

The Commission and US Ecology argued that the three elements of constitutionally required standing under Article III of the Constitution were not met in Nelson I. Nelson I, 834 F.Supp. at 1210. The Commission and US Ecology argued that the State of Nebraska and Governor Nelson lacked standing because they had failed to show: (1) injury in fact, (2) causation, or (3) redressability. Id.

I subsequently found that Governor Nelson and the State of Nebraska had parens patriae² standing to bring this action, holding that:

... However, I believe this is one of the unusual cases where parens patriae standing exists. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982).

When the Amended

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