Devia v. Nuclear Regulatory Com'n

Decision Date26 June 2007
Docket NumberNo. 06-1087.,No. 05-1420.,No. 05-1419.,05-1419.,05-1420.,06-1087.
Citation492 F.3d 421
PartiesOhngo Gaudadeh DEVIA, Petitioner v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents Private Fuel Storage, L.L.C. and Skull Valley Band of Goshute Indians, Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Paul C. EchoHawk was on the briefs for petitioner Ohngo Gaudadeh Devia.

Roy T. Englert, Jr. was on the briefs for petitioner State of Utah.

Catherine Cortez Masto, Attorney General, Marta A. Adams, Senior Deputy Attorney General, and Martin G. Malsch, Joseph R. Egan, and Charles J. Fitzpatrick were on the brief for amicus curiae State of Nevada in support of petitioners.

James C. Kilbourne, Michael T. Gray, and Lisa E. Jones, Attorneys, U.S. Department of Justice, and Karen D. Cyr, General Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie, Deputy Solicitor, and Grace H. Kim, Attorney, U.S. Nuclear Regulatory Commission, were on the brief for federal respondents.

Anne W. Cottingham and Michael A. Bauser were on the brief for amicus curiae Nuclear Energy Institute, Inc. in support of respondents.

Tim Vollmann, Jay E. Silberg, Paul A. Gaukler were on the brief for intervenors Private Fuel Storage, L.L.C. and Skull Valley Band of Goshute Indians.

Before: ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

Petitioners challenge a decision by the Nuclear Regulatory Commission to grant a license permitting the construction and operation of a spent nuclear fuel storage facility in Utah, on land belonging to the Skull Valley Band of Goshute Indians. After the Commission approved the license, the Interior Department's Bureau of Land Management and Bureau of Indian Affairs denied applications for rights-of-way and a lease, respectively. Because it is speculative whether the project will ever be able to proceed, we find the petitioners' challenge unripe and direct that the case be held in abeyance.1

I

In 1997, Private Fuel Storage, L.L.C. (PFS), a consortium of eight nuclear utilities, applied to the Nuclear Regulatory Commission (NRC) for a license to build and operate an Independent Spent Fuel Storage Installation (ISFSI). The proposed ISFSI would store spent nuclear fuel in steel and concrete casks on land in Utah belonging to the Skull Valley Band of Goshute Indians. The facility would be built on an 820-acre site, about 3.5 miles from the Band's village, pursuant to a lease between the Band and PFS. While most ISFSIs are located at the reactors where the spent nuclear fuel is generated, PFS's proposed ISFSI would be the first large, away from point-of-generation repository to be licensed by the NRC.

In addition to applying to the NRC for a license, PFS sought two other regulatory approvals. First, it applied to the Bureau of Indian Affairs (BIA) for approval of the Skull Valley Band's lease of the 820-acre site to PFS. Second, it applied to the Bureau of Land Management (BLM) for a right-of-way to transport the spent nuclear fuel from the main Union Pacific rail line to the ISFSI. PFS proposed two right-of-way options. Its preferred option was to build a new, 32-mile rail spur from the main line that would run along the base of the Cedar Mountains to the ISFSI. PFS's alternative option was to build an intermodal transfer facility, at which spent nuclear fuel would be transferred from railcars to heavy-haul vehicles and then transported to the ISFSI via Skull Valley Road, a two-lane public road.

On September 9, 2005, following a lengthy administrative proceeding in which the petitioners participated, the NRC issued a memorandum and order authorizing its staff to issue a license to PFS to build and operate the ISFSI. On February 21, 2006, after denying Utah's motion to reopen the record, NRC granted the license. The license, which is specific to the site designated in the proposed lease, permits PFS to store up to 40,000 metric tons of spent nuclear fuel at the facility. Its term is twenty years, with an option to renew for another twenty.

Petitioner Ohngo Gaudadeh Devia (OGD) — an association consisting primarily of members of the Skull Valley Band opposed to construction of a nuclear waste facility on the reservation — timely petitioned for review of the NRC's decision in this court. So, too, did the State of Utah. PFS and the Skull Valley Band intervened on the side of the NRC.

Subsequent to the filing of the petitions for review, the BLM and the BIA denied the applications that PFS had filed with each agency. The BLM disapproved both of PFS's requested rights-of-way: the preferred rail route, and the alternative intermodal transfer facility route. The Bureau rejected the rail line request on the ground that the National Defense Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, 119 Stat. 3136 (2006), which had been signed into law after publication of the project's final environmental impact statement, "clearly required" denial. BLM, Record of Decision at 10 (Sept. 7, 2006). Section 384 of the Act designated certain lands, including those described in PFS's right-of-way application, as wilderness and added them to the National Wilderness Preservation System. See National Defense Authorization Act § 384, 119 Stat. at 3217-18; BLM, Record of Decision at 8. "[O]peration of a rail line," the BLM said, "would be inconsistent with the purpose for which the BLM manages the Cedar Mountain Wilderness Area." BLM, Record of Decision at 10. The BLM also rejected the alternative option, on the ground that the intermodal transfer facility was "contrary to the public interest." Id. In the BLM's view, "too many questions remain unanswered" regarding the potential risk and impact of transporting spent nuclear fuel along Skull Valley Road. Id.; see id. at 10-15.

For its part, the BIA rejected the Skull Valley Band's lease of reservation land to PFS for the construction and operation of the ISFSI. Although the local BIA superintendent had conditionally approved the lease in May 1997, the Bureau declared itself unconstrained by the superintendent's conditional approval. The Bureau based its disapproval on a variety of concerns, including the adequacy of the environmental impact analysis, the relationship of the use of leased lands to neighboring lands, the lack of specialized resources with which to monitor the tenant's activities and enforce the lease, and the inability to ascertain when spent nuclear fuel might leave the land. See BIA, Record of Decision at 18-29 (Sept. 7, 2006).

The parties advised us of these post-petition developments in their briefs on the merits. We requested supplemental briefing regarding the impact of these developments on justiciability, and we now conclude that the petitions are not ripe for review and should be held in abeyance.

II

The Supreme Court has noted that "[r]ipeness is a justiciability doctrine" that is "`drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.'" National Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (quoting Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993)). Even in a case "raising only prudential concerns, the question of ripeness may be considered on a court's own motion." Id. at 808, 123 S.Ct. 2026. We do so here.

"In testing whether the facts of a particular case meet th[e] standard of ripeness, we have often applied a two-part analysis, evaluating `[1] the fit ness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.'" National Treasury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). The "basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507. But as we have also explained, the "usually unspoken element of the rationale" is this: "If we do not decide [the claim] now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort. Article III courts should not make decisions unless they have to." National Treasury Employees Union, 101 F.3d at 1431 (citation omitted); see McInnis-Misenor v. Maine Medical Ctr., 319 F.3d 63, 70 (1st Cir.2003) (Boudin, J.) (noting that, "[i]n the fitness inquiry, ... prudential concerns focus[ ] on the policy of judicial restraint from unnecessary decisions").

A

"Among other things, the fitness of an issue for judicial decision depends on whether it is `purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency's action is sufficiently final.'" Atlantic States Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C.Cir.2003) (quoting Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1204 (D.C.Cir.1998)). But when an agency decision may never have "its effects felt in a concrete way by the challenging parties," Abbott Labs., 387 U.S. at 148-49, 87 S.Ct. 1507, the prospect of entangling ourselves in a challenge to such a decision is an element of the fitness determination as well. See Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162-63, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967) (holding that, even though a regulation was "the agency's considered and formalized...

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