Nelson v. CENT. INTERSTATE LOW-LEVEL RADIOACTIVE

• Decision Date: 23 October 1995
• Docket Number: No. 4:CV95-3053.,4:CV95-3053.
• Citation: 902 F. Supp. 1046
• Parties: STATE OF NEBRASKA, ex rel. Benjamin NELSON, Governor, Plaintiff, v. CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Defendant.
• Court: U.S. District Court — District of Nebraska

902 F. Supp. 1046

STATE OF NEBRASKA, ex rel. Benjamin NELSON, Governor, Plaintiff, v. CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Defendant.

No. 4:CV95-3053.

United States District Court, D. Nebraska.

October 23, 1995.

Don Stenberg, Attorney General, Linda L. Willard, Assistant Attorney General, Lincoln, NE, William M. Lamson, Jr., Special Assistant Attorney General, Kennedy, Holland, DeLacy & Svoboda, Omaha, NE, for Plaintiff.

Shawn D. Renner & Alan E. Peterson, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, NE, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND RELATED MEMORANDUM AND ORDER

KOPF, District Judge.

This case involves the Central Interstate Low-Level Radioactive Waste Commission (Commission) and broadly puts at issue whether the member states of a congressionally approved compact have agreed to change the number of representatives on the Commission. The State of Nebraska seeks a declaration that the State of Kansas breached a binding agreement with the other member states when the Kansas Legislature failed to approve legislation that would have immediately granted Nebraska additional representation on the Commission. Because of this alleged breach, Nebraska argues that the Commission improperly failed to seat Nebraska's additional representatives. After a brief bench trial, I find and conclude that the Commission properly refused to seat Nebraska's additional representatives.¹

Pursuant to Federal Rule of Civil Procedure 52(a), I now set forth my findings of fact and conclusions of law that have informed my decision to enter judgment for the Commission.

I. Findings of Fact and Conclusions of Law²

1. Plaintiff, the State of Nebraska, is a state of the United States of America. E. Benjamin Nelson is the duly elected and acting Governor of the State of Nebraska.

2. Defendant, the Central Interstate Low-Level Radioactive Waste Commission (the "Commission"), was established pursuant to the Central Interstate Low-Level Radioactive Waste Compact (the "Compact"). See State ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 834 F.Supp. 1205, 1207-08 (D.Neb.1993) (describing enactment of the Compact and the formation of the Commission), aff'd, 26 F.3d 77 (8th Cir.1994), cert. denied, ___ U.S. ____, 115 S.Ct. 483, 130 L.Ed.2d 395 (1994). The Compact is reprinted in the Revised Statutes of the State of Nebraska. (Vol. 2A, Appendix BB, at 937-946 (Reissue 1989)). Member states of the Compact are Arkansas, Kansas, Louisiana, Oklahoma, and Nebraska. The Compact was formed pursuant to federal law and was consented to by Congress. Id. Under the Compact, the Commission is a legal entity separate and distinct from the party states. Compact Art. IV(k)(2). The Commission has the right to sue and be sued. Id. Art. IV(e) & (k)(2).

A. The United States District Court for the District of Nebraska has the authority pursuant to the Compact to review decisions of the Commission when suit is brought by any party state aggrieved by a final decision of the Commission. Id. Art. IV(l).

B. Because this case involves a challenge to the refusal of the Commission to seat additional representatives to the Commission; because the State of Nebraska, a party state to the Compact, is aggrieved by that decision; and because a construction of the Compact is inextricably interwoven with any resolution of Nebraska's claims, this court has federal-question jurisdiction to hear this suit pursuant to 28 U.S.C. § 1331. State ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 834 F.Supp. at 1210. See also County of Boyd v. US Ecology, Inc., 48 F.3d 359, 361 (8th Cir.1995), cert. denied, ___ U.S. ____, 116 S.Ct. 65, ___ L.Ed.2d ____ (1995).

3. This case deals with Nebraska's alleged entitlement to representation on the Commission in excess of the number explicitly provided for in the Compact.

A. Article IV(a) of the Compact states in relevant part:

The commission shall consist of one voting member from each party state to be appointed according to the laws of each state. The appointing authority of each party state shall notify the commission in writing of the identity of its member and any alternates.

B. There is no evidence and there is no claim by Nebraska that the Compact has ever been formally amended to grant Nebraska more than one voting member on the Commission. That is, Nebraska concedes there is no such written amendment signed by all member states, no such written amendment signed by the Commission, and no such written amendment consented to by Congress. Nebraska further concedes that not all of the member states have enacted legislation which would implement such an amendment at this time.

C. Nebraska and the Commission agree that "Representatives of each of the member states of the Compact agreed in principle to request passage of amendments to the Compact, and legislation was introduced in each of the member states' legislatures to implement such amendments." (Filing 23, Pretrial Conference Order, Statement of Uncontroverted Facts, at 3 ¶ D(D).) Save for its own "representative" (a person in the Governor's policy office), Nebraska did not call any of these "representatives" to testify. What, if anything, these other "representatives" agreed to beyond the agreement "in principle to request passage of amendments to the Compact" is unknown.

4. The Legislature of the State of Arkansas passed legislation which provided that the Commission shall consist of one voting member for each party state, except that each host state shall have two at-large voting members and one non-voting member from the county in which the facility is located. (Id. at 3 ¶ E.)

5. The Legislature of the State of Louisiana passed a statute in 1991 which provided that the Commission shall consist of one voting member from each party state, except that each host state shall have two at-large voting members and one non-voting member from the county in which the facility is located. (Id. at 3 ¶ F.)

6. The Legislature of the State of Oklahoma passed a statute in 1992 which provided that the Commission shall consist of one voting member from each party state, except that each host state shall have two at-large voting members and one non-voting member from the county in which the facility is located. (Id. at 4 ¶ G.)

7. The Legislature of the State of Nebraska passed a statute in 1991 which provided that the Commission shall consist of one voting member from each party state, except that each host state shall have two at-large voting members and one non-voting member from the county in which the facility is located. (Id. at 4 ¶ H.)

8. The Legislature of the State of Kansas passed a statute in 1993 which provided that the Commission shall consist of one voting member from each party state, except that each host state shall have two at-large voting members. This statute was passed with the proviso that it would not take effect until the appropriate authority of the State of Nebraska issues a license or permit for the operation of the facility. (Id. at 4 ¶ I.)

9. As of the date of the trial in this case, no license had been issued for construction of a low-level radioactive waste storage facility within the Compact area.

10. The State of Nebraska was selected as the host state of the Compact on December 15, 1987. (Id. at 4 ¶ K.)

11. On December 6, 1994, E. Benjamin Nelson, Governor of the host state, Nebraska, announced that he had appointed Dr. Greg Hayden as a second voting member and Craig Zeisler as a non-voting member of the Commission pursuant to Neb.Rev.Stat. § 81-1599.02 (1994). (Id. at 5 ¶ M.)

12. On December 8, 1994, the Commission met at the Airport Marriott Hotel in Kansas City, Missouri. At said meeting, a letter was received from E. Benjamin Nelson, Governor of the State of Nebraska, informing the Commission of his selection for the second voting member from the host state and selection of the non-voting member from the county in which the facility is to be located. (Id. at 5 ¶ N.)

13. At the December 8, 1994, meeting, the Commission passed the following resolution:

That the Commission not seat Dr. Greg Hayden and Craig Zeisler as Nebraska voting and non-voting members of the Commission because their seating would be violative of Section 222 of Article IV(a) of the Central Interstate Low-Level Radioactive Waste Compact consented to by Congress and that the Commission hold a meeting in the host state to hear the dispute which concerns the effective date of the Compact amendment which has arisen between the party states regarding this Compact.

(Id. at 5-6 ¶ O.)

14. Congress specifically granted its consent to "each and every part and article" of the Compact. Omnibus Low-Level Radioactive Waste Interstate Compact Consent Act, Pub.L. No. 99-240, Tit. II in pt., 99 Stat. 1859, Sec. 222 (codified at 42 U.S.C. § 2021d, Note).

15. For many purposes, Congress's consent to the Compact transformed the Compact into a law of the United States. State ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 834 F.Supp. at 1210. See also County of Boyd v. US Ecology, Inc., 48 F.3d at 361.

16. The Compact itself nullifies state laws which are inconsistent with the Compact. Compact, Art. VI(b) ("No party state shall pass or enforce any law or regulation which is inconsistent with this compact.").

17. As a "law of the United States," the Compact preempts inconsistent state laws which conflict with it pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2. Cf. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-52, 83 S.Ct. 1210, 1216-22, 10 L.Ed.2d 248 (1963).

18. One member state in a compact cannot unilaterally nullify provisions of the compact or give final meaning to a compact. State ex rel. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 834 F.Supp. at 1208.

19. Except as otherwise explicitly provided for in a...