Public Service Co. of Colorado v. Batt

• Citation: 67 F.3d 234
• Decision Date: 28 September 1995
• Docket Number: No. 95-35608,95-35608
• Parties: , 26 Envtl. L. Rep. 20,071, 95 Cal. Daily Op. Serv. 7774, 95 Daily Journal D.A.R. 13,335 PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff, and United States of America, Plaintiff-Appellant, v. Phillip E. BATT, in his official capacity as Governor of the State of Idaho; State of Idaho, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 234

67 F.3d 234

41 ERC 2113, 26 Envtl. L. Rep. 20,071,

95 Cal. Daily Op. Serv. 7774,

95 Daily Journal D.A.R. 13,335

PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff and United States of America, Plaintiff-Appellant, v. Phillip E. BATT, in his official capacity as Governor of the State of Idaho; State of Idaho, Defendants-Appellees.

No. 95-35608.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 13, 1995.

Decided Sept. 28, 1995.

John A. Bryson, Assistant Attorney General, United States Department of Justice, Washington, D.C., for plaintiff-appellant.

Jeffery J. Ventrella, Elam & Burke, Boise, Idaho, C. Nicholas Krema, Deputy Attorney General, Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho.

Before EUGENE A. WRIGHT, ALARCON and CANBY, Circuit Judges.

OPINION

CANBY, Circuit Judge:

I.

This case arises from the efforts of the United States, vigorously opposed by the State of Idaho, to ship spent nuclear fuel to the Idaho National Engineering Laboratory for storage. The United States appeals the district court's order "continuing" an earlier injunction that prevents it from making such shipments. The determinative threshold question is whether the original injunction, issued and then modified in 1993, remains in effect of its own force, or whether the recent order of the district court modified or extended ("continued") it when it otherwise would have expired of its own force. We conclude that the 1993 injunction remained in force of its own effect, and that it was not modified or extended by the district court's recent order. The latter order is consequently not appealable as an order "granting, continuing, [or] modifying" an injunction within the meaning of 28 U.S.C. Sec. 1292(a)(1). We therefore dismiss the appeal for lack of appellate jurisdiction.

II.

On June 28, 1993, the district court issued an order requiring the Department of Energy to prepare an Environmental Impact Statement (EIS) regarding the effects on the natural and human environment of "all major federal actions involving the transportation, receipt, processing, and storage of spent nuclear fuel at the Idaho National Engineering Laboratory," and setting forth a reasonable range of alternatives to these actions. Public Service Co. of Colorado v. Andrus, 825 F.Supp. 1483, 1511 (D.Idaho 1993). The order also enjoined the Department from transporting, receiving, processing, and storing spent nuclear fuel at the Laboratory until "the comprehensive environmental impact statement is completed, reviewed, and any challenges to the statement are resolved." Id. Finally, the order provided that the district court would retain jurisdiction over the case for the purpose of hearing and resolving disputes between Idaho and the Department "regarding the adequacy of the final environmental impact statement. Thereafter, upon good cause showing, the injunction shall be dissolved." Id.

Shortly thereafter, the Department sought permission from the State for certain emergency shipments of spent fuel to the Laboratory. In August 1993, the Department and the State of Idaho ¹ entered an agreement that, if the district court would enter their proposed order modifying the court's June 1993 order, the United States would neither appeal the June order nor seek legislation to alter or supersede that order. The proposed order was adopted and entered by the district court on December 22, 1993. ²

The December 1993 order states that

The court's Memorandum Opinion and Order of June 28, 1993, shall remain in full force and effect, subject to the modifications set forth below....

The order then provides deadlines for the Department's preparation of the EIS required by the June 1993 order, including a requirement that, thirty days after publication of the notice of availability of the EIS, the Department issue and publish a "record of decision based upon the final EIS." The December 1993 order then sets forth the fuel shipments that will be permitted in the meantime, and introduces the list with the following crucial clause:

The injunction against any further shipments of any more spent nuclear fuel of any type to the Idaho National Engineering Laboratory ... shall remain in full force and effect unless and until [the Department of Energy] issues a record of decision based upon the EIS required by the Order of June 28, 1993, except as follows: [listing permitted shipments].

On April 28, 1995, the Department issued its final EIS. On May 17, 1995, the State of Idaho filed a motion to reopen the proceedings with the district court. The State maintained that the EIS did not comply with the court's order, and asserted that the State would challenge the EIS' legal and factual sufficiency. The State also noted that "apparently there is a divergence of opinion concerning the continuing force and effect" of the injunction after the record of decision was completed and signed by the Secretary of Energy.

On May 19, 1995, the district court issued an order granting the State's motion. In the order, the court stated that

[a]s to the concerns raised by Idaho regarding whether the [June 28, 1993] injunction ordered by [the district court] will remain in effect, the court finds good cause to continue this injunction until this matter is finally resolved.

The court noted that the district court's original order of June 1993 indicated that the injunction would remain in effect until the EIS was completed, reviewed, and had challenges against it resolved.

On June 1, 1995, the Department issued its record of decision. The next day, the United States filed in the district court a Notice of Compliance with the December 1993 order. In response, the State filed an Objection to Notice of Compliance arguing that the EIS did not comply with the requirements of the court's June 1993 order. The United States then filed an emergency motion to vacate or, in the alternative, to modify the district court's order of May 19, 1995, to permit 12 shipments of Naval spent nuclear fuel to the Laboratory in June. On June 26, 1995, although the district court had not yet ruled on the United States' motion, the United States filed a notice of appeal to this court, seeking review of the district court's May 19, 1995, ruling "continuing" the 1993 injunction.

On June 27, 1995, the district court issued an order denying the United States' motion. The district court explained that it had continued the injunction because it believed that the original injunction's provision for the district court to resolve disputes regarding the EIS before dissolving the injunction was still in effect. In response to the Department's assertion that urgent national security interests required a lifting of the injunction, a point also pressed on this appeal, the district court established an abbreviated discovery schedule. The court required briefing to be completed in the district court by September 1, 1995, and stated that the court would render its decision within 30 days thereafter.

III.

In appealing the May 1995 order, the United States argues that the June 1993 injunction was modified by the December 1993 order so that it would automatically dissolve when the record of decision was issued. If that proposition were correct, then we would have jurisdiction over this appeal under 28 U.S.C. Sec. 1292(a)(1), which provides:

... the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions ...

If, however, the 1993 injunction is still in effect by force of its own terms, then the district court's May 1995 order did not modify or continue it, and we lack jurisdiction over this appeal. See In re Fugazy Exp., Inc., 982 F.2d 769, 777 (2d Cir.1992) (an order "continues" an injunction under Section 1292(a)(1) only when, without such order, the injunction would dissolve by its own terms); Motorola, Inc. v. Computer Displays Internat'l, Inc., 739 F.2d 1149, 1155 (7th Cir.1984) (an order "modifies" an injunction only if it substantially alters the legal relations of the parties provided by the injunction).

There is little doubt that, if the June 1993 order had not been amended in December 1993, the original injunction would still be in effect of its own force. The June 1993 order enjoined the Department from making shipments "until the comprehensive environmental impact statement is completed, reviewed, and any challenges to the statement are resolved." Public Service Co., 825 F.Supp. at 1511. The order reserved the district court's jurisdiction to resolve such challenges, and further provided that "[t]hereafter, upon good cause showing, the injunction shall be dissolved." Id. At the moment, Idaho has challenged the EIS and the district court has not yet resolved that challenge or dissolved the injunction.

The crucial issue, therefore, is whether the December 1993 amending order changed these durational terms of the June 1993 order. We conclude that it did not. ³

The government relies on the provision of the December 1993 order that introduced the list of shipments that would be permitted during the pendency of the injunction. As we have already pointed out, that provision states that the June 1993 "injunction against any further shipments ... shall remain in full force and effect unless and until the [Department] issues a record of decision based upon the EIS required by the Order of June 28, 1993." (Emphasis added). Although the language is superficially susceptible to the interpretation the government gives it--that the injunction ends upon issuance of the record of decision--a contrary interpretation is mandated both by the words of the two 1993 orders and the context in which the disputed language appears. The "EIS required by the Order of June 28,...