Entergy Arkansas, Inc. v. Nebraska, 4:98CV3411.

• Citation: 161 F.Supp.2d 1001
• Decision Date: 29 August 2001
• Docket Number: No. 4:98CV3411.,4:98CV3411.
• Parties: ENTERGY ARKANSAS, INC., an Arkansas corporation; Entergy Gulf States, Inc., a Texas corporation; Entergy Louisiana, Inc., a Louisiana corporation; Wolf Creek Nuclear Operating Corporation, a Delaware corporation; Omaha Public Power District, a public corporation and political subdivision of the State of Nebraska, Plaintiffs, Central Interstate Low-Level Radioactive Waste Commission, Realigned Plaintiff, US Ecology, Inc., a California corporation, Intervening Plaintiff, v. State of NEBRASKA, et al., Defendants.
• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska

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161 F.Supp.2d 1001 ENTERGY ARKANSAS, INC., an Arkansas corporation; Entergy Gulf States, Inc., a Texas corporation; Entergy Louisiana, Inc., a Louisiana corporation; Wolf Creek Nuclear Operating Corporation, a Delaware corporation; Omaha Public Power District, a public corporation and political subdivision of the State of Nebraska, Plaintiffs,
Central Interstate Low-Level Radioactive Waste Commission, Realigned Plaintiff,
US Ecology, Inc., a California corporation, Intervening Plaintiff,
v.
State of NEBRASKA, et al., Defendants. No. 4:98CV3411. United States District Court, D. Nebraska. August 29, 2001.

John P. Heil, Thomas E. Johnson, Patrick J. Ickes, Baird, Holm Law Firm, Omaha, NE, Stephen M. Bruckner, Joseph E. Jones, Fraser, Stryker Law Firm, Omaha, NE, for plaintiffs.

Alan E. Peterson, Shawn D. Renner, Cline, Williams Law Firm, Lincoln, NE, Patrick T. O'Brien Butler, Galter Law Firm, Lincoln, NE, for realigned plaintiff.

Steven G. Seglin, Rocky C. Weber, Crosby, Guenzel Law Frim, Lincoln, NE, for intervening plaintiff.

Patrick T. O'Brien, Butler, Galter Law Firm, Lincoln, NE, William Bradford Reynolds, Howrey, Simon Law Frim, Washington, DC, Annette M. Kovar, Neb. Dept. of Environmental Quality, Lincoln,

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NE, John L. Wittenborn, Collier, Shannon Law Firm, Washington, DC, for defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

The Court of Appeals directed me to reconsider whether the Generators and USE possessed "property interests" sufficient to give them a claim for denial of procedural or substantive due process¹ under the Fourteenth Amendment. Entergy Arkansas, Inc. v. Nebraska, 241 F.3d 979, 990-92 (8th Cir.2001), petition for cert. filed, 70 U.S.L.W. 3076 (U.S. July 16, 2001) (No. 01-87). This issue was raised in various motions to dismiss filed by the defendants both before and after the remand order of the Court of Appeals.² In addition, the defendants have again sought to dismiss the Commission's suit. As before, I presume detailed knowledge of this very complex case.

The Commission

I will deny the motions asserted against the Commission. The arguments advanced by the defendants have been disposed of earlier either by this court or the Court of Appeals. To the extent that the defendants assert a variation of those earlier arguments, they are without merit.

On a related matter, I see no good reason to stay consideration of the motions or this case while the defendants request relief from the Supreme Court regarding the Commission's suit. In this regard, I note that the Court of Appeals did not stay the issuance of the mandate. (Filing 224 (mandate filed May 1, 2001).)

The Generators, USE and "Property Interests"

I will grant the motions to the extent they seek to dismiss the procedural and substantive due process claims of the Generators and USE which are asserted under the Fourteenth Amendment to the Constitution. I find and conclude that the Generators and USE have not alleged the deprivation of a "property interest" within the meaning of the Fourteenth Amendment.³

The Fourteenth Amendment protects us from the government taking our property⁴ without procedural or substantive due process of law. Compare Stauch v. City of Columbia Heights, 212 F.3d 425, 429 (8th Cir.2000) (owners possessed protected property interest in the renewal of their rental license because renewal was required when three nondiscretionary conditions were satisfied) with Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir.1995) (no property interest in renewal of bingo license when the city had unfettered discretion to withhold issuance of the license). See also Littlefield v. City of Afton, 785 F.2d 596, 601 (8th Cir.1986) (discussing when an applicant's interest in a license which is denied rises to a constitutionally protected property interest), overruled on other grounds, Chesterfield Dev. Corp. v. City of

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Chesterfield, 963 F.2d 1102, 1104 n. 2 (8th Cir.1992).

The Generators and USE claim that they have a property interest in the nuclear waste disposal license itself and the money spent in an attempt to obtain the license. Broadly speaking, the issue is whether the defendants denied the Generators and USE procedural and substantive due process when, after accepting tens of millions of dollars from them to process the license application, they (taking the complaint as true) denied the license for crude political purposes.

As directed by the Court of Appeals, I have considered "the procedures and requirements listed in the N.A.C. [Nebraska Administrative Code]" regarding the issuance of nuclear waste disposal licenses, "the requirement that the licensing process costs be paid by USE (and the ultimately the Generators)," the "very large payments already made in reliance on Nebraska's procedures," "the administrative scheme set up by the Compact which was enacted into state law," and "state law" more generally, Entergy Arkansas, 241 F.3d at 991, to determine whether the Generators and USE have a "property interest" in the license and the money spent to obtain one. At the same time, I also recognize that the Court of Appeals has decided that the Compact itself does not allow the Generators or USE to sue the defendants for breach of the Compact's "good faith" obligation. Id. at 990.

Next, I realize that "[p]roperty interests are not created by the Constitution but rather stem from an independent source such as state law." Stauch, 212 F.3d at 429. Most importantly, I recognize that parties asserting a property interest must have something "more than a unilateral expectation of it." Id. That is, they "must possess a legitimate claim of entitlement to it." Id.

USE and the Generators claim that their "property interest" was created by Nebraska's "substantive standards or criteria that guide an official's discretion." Entergy Arkansas, 241 F.3d at 990-91 (citing Stauch, 212 F.3d at 429). In particular, they assert that (1) Nebraska's regulations require the issuance of a license to USE if certain criteria are satisfied; (2) Nebraska law contemplates that the Generators would finance the USE application; and (3) upon issuance...