County of Esmeralda, State of Nev. v. U.S. Dept. of Energy
| Decision Date | 20 February 1991 |
| Docket Number | 89-70162,Nos. 89-70142,s. 89-70142 |
| Citation | 925 F.2d 1216 |
| Parties | , 21 Envtl. L. Rep. 20,697 COUNTY OF ESMERALDA, STATE OF NEVADA, Petitioner, v. U.S. DEPARTMENT OF ENERGY, Respondent. COUNTY OF INYO, STATE OF CALIFORNIA, Petitioner, v. U.S. DEPARTMENT OF ENERGY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jed Courtney, Esmeralda County Dist. Atty., Goldfield, Nev., and Gregory L. James, County Counsel, County of Inyo, Paul N. Bruce, Asst. County Counsel, County of Inyo, Independence, Cal., for petitioners.
Vicki L. Plaut and Angus E. Crane, Atty., Dept. of Justice, Washington, D.C., for respondent.
Appeal from a Decision of the United States Department of Energy.
Before WALLACE, Chief Judge, ALARCON and WIGGINS, Circuit Judges.
Esmeralda County, Nevada, and Inyo County, California, petition this court to vacate as arbitrary and capricious the Department of Energy's denial of their request to designate them units of local government affected by the Yucca Mountain High Level Nuclear Waste Repository Project. We grant the counties' petitions and vacate the Secretary's decisions not to designate the counties affected units.
The Nuclear Waste Policy Act requires the Department of Energy to site, construct, and operate repositories for high level radioactive waste. 42 U.S.C. Sec. 10131(b)(1). As amended in 1987, the Act provides that Yucca Mountain is the sole area to be evaluated as a potential site for the first waste dump. 42 U.S.C. Sec. 10172. In association with the Department's site evaluation, the Secretary of Energy must provide funds for participating in evaluation activities to affected units of local government, 42 U.S.C. Sec. 10136(c), as well the unit of local government with jurisdiction over the site of a repository or a monitored retrievable storage facility. Such term may, at the discretion of the Secretary, include units of local government that are contiguous with such unit.
as involve them in the evaluation process to a significant extent, see, e.g., 42 U.S.C. Sec. 10173(a)(3); 42 U.S.C. Sec. 10173b(a)(2). The Act defines an "affected unit of local government" as:
42 U.S.C. Sec. 10101(31). The unit of local government with jurisdiction over Yucca Mountain is Nye County, Nevada. In April 1988, the Secretary designated Clark County, Nevada, a county contiguous to Nye County, as an affected unit of local government, in response to a request by the County. In June 1988, the Secretary similarly designated Lincoln County, also contiguous to Nye County, as an affected unit of local government. In August and October 1988, respectively, the Secretary denied the requests of Esmeralda and Inyo counties, both contiguous to Nye County, to be designated as affected units of local government. Both counties requested reconsideration. The Secretary denied Esmeralda County's reconsideration request and Esmeralda County timely petitioned this court for review. After 120 days of inaction by the Secretary on its reconsideration request, Inyo County also petitioned this court for review. The Secretary had yet to respond to Inyo County's reconsideration request when this case was submitted.
42 U.S.C. Sec. 10139(a)(1)(A) grants this court original jurisdiction to review only final decisions of the Secretary. At the time of this appeal, Inyo County had a motion for reconsideration pending before the Secretary. This renders the Secretary's refusal to grant affected unit status non-final. See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284-85, 107 S.Ct. 2360, 2369-70, 96 L.Ed.2d 222 (1987) ().
We have previously held that finality problems may be cured while an appeal is pending. In Anderson v. Allstate Ins. Co., 630 F.2d 677 (9th Cir.1980), we gained jurisdiction over an appeal when a district judge dismissed remaining defendants from an action. The appealed orders were not initially final, because some of the plaintiffs' claims remained. Id. at 680. However, during the course of the appeal, the judge dismissed the entire action. We considered this development sufficient to validate the appeal, reasoning that "[t]here is no danger of piecemeal appeal ... nothing else remains in the federal courts." Id. at 681.
This case is similar to Anderson. On August 17, 1990, Inyo County notified us that it had withdrawn its motion for reconsideration. This subsequent event renders the Secretary's decision final, and "validate[s] [Inyo County's] prematurely filed appeal." Id. at 681. Because the Secretary's decision is now final, we have jurisdiction over Inyo County's claims under 42 U.S.C. Sec. 10139(a)(1)(A).
Under the Administrative Procedure Act, an agency action is unreviewable when a statute commits the action to the agency's discretion, and "the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Such a determination is statute specific, see Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 2052, 100 L.Ed.2d 632 (1988), and relates to the language of the statute and whether the general purposes of the statute would be endangered by judicial review, see id. 108 S.Ct. at 2052-53.
The Secretary correctly points out that the Nuclear Waste Policy Act does not identify specific factors for him to use in determining whether to grant contiguous counties affected unit status. The Act states merely that the decision to designate contiguous counties as affected units is "at the discretion of the Secretary." 42 U.S.C. Sec. 10101(31). And the statement in the legislative However, another section of the Nuclear Waste Policy Act specifically precludes judicial review of decisions of the Secretary taken under that section, see 42 U.S.C. Sec. 10173(f), while the subtitle of the Act relevant to this case contains no such provision. Indeed, the subtitle of the Act relevant to this case expressly provides for judicial review of "any final decision or action of the Secretary," 42 U.S.C. Sec. 10139(a)(1)(A) (emphasis added), or the alleged "failure of the Secretary ... to make any decision, or take any action, required under this subtitle," 42 U.S.C. Sec. 10139(a)(1)(B) (emphasis added).
history that the Secretary "has the flexibility to designate a contiguous unit of local government as 'affected' when the Secretary feels that to do so will promote equity and further the process of facility citing and development," S.Rep. No. 152, 100th Cong., 1st Sess., 11-12 (1987) (emphasis added), supports his position. See Webster, 108 S.Ct. at 2052 ().
Furthermore, it is difficult to see how the purposes of the Act will be endangered by judicial review of the type of action at issue here. National security is not a concern here, cf. Webster, 108 S.Ct. at 2052, neither is prosecutorial discretion, cf. Chaney, 470 U.S. at 831, 105 S.Ct. at 1655. And a judicially manageable standard by which to review the Secretary's action readily presents itself: Did the Secretary meaningfully consider the possibility and extent of the suggested impacts of repository operations at Yucca Mountain upon the counties at issue and make a reasoned decision based upon such consideration? We therefore hold that judicial review of the Secretary's actions is appropriate in this context.
We will set aside the Secretary's decisions only if they were arbitrary, capricious or otherwise not in accordance with law. Delaney v. E.P.A., 898 F.2d 687, 689 (9th Cir.1990). We will not set aside an agency's construction of a statute it is implementing unless that construction conflicts with clear congressional intent or is unreasonable. Id.
The counties first contend that 42 U.S.C. Sec. 10101(31) allows the Secretary only to designate all or none of the units of local government contiguous to Nye County as affected by the Yucca Mountain Project. We reject this contention. This statute is ambiguous as to whether the Secretary may include some contiguous areas but not others. But the relevant legislative history states that section 10101(31) is meant to give the Secretary "the flexibility to designate a contiguous unit of local government as 'affected' when [he] feels that to do so will promote equity...." S.Rep. No. 152, at 11-12 (emphasis added). This reference to "contiguous unit" in the singular, as well as the discussion of flexibility and equities, points toward individualized designations, not the all or nothing scheme that the counties advocate. Furthermore, even if the legislative history were silent, the Secretary's interpretation is surely a reasonable one, which is all that is necessary for it to be valid.
The counties also argue that the Secretary's refusal to designate them as affected units of local government is arbitrary and capricious because it disregards his alleged past policy of so designating contiguous counties simply on the basis of their location next to Nye County. Even if we were to accept the counties' dubious characterization of the Secretary's past actions, we reject the argument. The Secretary has promulgated no formal rule or even a policy statement on this issue. Absent such a rule or policy statement, we are in no position to compare the Secretary's actions with respect to Esmeralda and Inyo counties to the Secretary's actions with respect to Lincoln and Clark counties--actions which are not before this court. Inyo
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