Skull Valley Band of Goshute Indians v. Leavitt

• Decision Date: 30 July 2002
• Docket Number: No. 2:01-CV-270C.,2:01-CV-270C.
• Citation: 215 F.Supp.2d 1232
• Parties: THE SKULL VALLEY BAND OF GOSHUTE INDIANS and Private Fuel Storage, L.L.C., Plaintiffs, v. Michael O. LEAVITT, in his official capacity as Governor of the State of Utah; Mark L. Shurtleff, in his official capacity as Attorney General of the State of Utah; Dianne R. Nielson, in her official capacity as Executive Director of the Utah Department of Environmental Quality; Thomas Warne, in his official capacity as Executive Director of the Utah Department of Transportation; Glen Edward Brown, Stephen M. Bodily, Hal Mendenhall Clyde, Dan R. Eastman, Sheri L. Griffith, James Grey Larkin, and Ted D. Lewis, in their official capacities as Commissioners of the Utah Department of Transportation Defendants.
• Court: U.S. District Court — District of Utah

215 F.Supp.2d 1232

THE SKULL VALLEY BAND OF GOSHUTE INDIANS and Private Fuel Storage, L.L.C., Plaintiffs, v. Michael O. LEAVITT, in his official capacity as Governor of the State of Utah; Mark L. Shurtleff, in his official capacity as Attorney General of the State of Utah; Dianne R. Nielson, in her official capacity as Executive Director of the Utah Department of Environmental Quality; Thomas Warne, in his official capacity as Executive Director of the Utah Department

of Transportation; Glen Edward Brown, Stephen M. Bodily, Hal Mendenhall Clyde, Dan R. Eastman, Sheri L. Griffith, James Grey Larkin, and Ted D. Lewis, in their official capacities as Commissioners of the Utah Department of Transportation Defendants.

No. 2:01-CV-270C.

United States District Court, D. Utah, Central Division.

July 30, 2002.

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James A. Holtkamp, LeBoeuf Lamb Greene & MacRae, LLP, Salt Lake City, Tim Vollmann, Albuquerque, NM, for Skull Valley Band of Goshute Indians.

Val R. Antczak, J. Michael Bailey, Henry D. Owens, Parsons Behle & Latimer, Salt Lake City, UT, Jay E. Silberg, Ernest L. Blake, Jr., Shaw Pittman Potts & Trowbridge, Washington, DC, for Private Fuel Storage.

Carlie Christensen, U.S. Attorney's Office, Maureen E. Rudolph, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for U.S.

James R. Soper, Utah Atty. General's Office, Salt Lake City, UT, Lawrence J. Jensen, Office of Solicitor, Dept. of Interior, Washington, DC, Monte Neil Stewart, Helen A. Frohlich, Utah Atty. General's Office, Salt Lake City, UT, for Michael O. Leavitt, Mark L. Shurtleff.

ORDER

CAMPBELL, District Judge.

This case arises out of Plaintiffs Skull Valley Band of Goshute Indians' ("Skull Valley Band") and Private Fuel Storage, L.L.C.'s ("PFS") agreement to permit PFS to build and operate a spent nuclear fuel ("SNF") storage facility in Utah on the tribal reservation lands of the Skull Valley Band. SNF is a waste product generated by commercial nuclear reactors. Plaintiffs filed an action seeking declaratory and injunctive relief from the operation of several Utah laws. The Defendants are various high-ranking officials in Utah State government, including Michael O. Levitt, the Governor of the State, and Mark L. Shurtless, the State Attorney General.

Plaintiffs' complaint alleges eight claims for relief: (1) Declaratory Judgment — Supremacy Clause, Preemption; (2) Declaratory Judgment — Commerce Clause; (3) Declaratory Judgment — Preeminent Federal Authority over Indian Affairs, Indian Commerce Clause, Treaty Clause, Supremacy Clause; (4) Declaratory Judgment — Federal Indian Law/ Indian Sovereignty Doctrine; (5) Declaratory Judgment — Contract Clause; (6) Declaratory Judgment — Deprivation of Property; (7) Declaratory Judgment — First, Sixth, and Fourteenth Amendments; and (8) Injunction.

Defendants filed an Amended Counterclaim on August 8, 2001, alleging that (1) the Nuclear Regulatory Commission ("NRC") has no authority to license a private, for profit, off-site spent nuclear fuel ("SNF") storage facility; (2) an NRC license will necessarily violate the National Environmental Policy Act ("NEPA") and therefore be invalid; (3) Skull Valley Band has not lawfully approved the lease; (4) the conditional approval of the lease by the Bureau of Indian Affairs ("BIA") occurred in violation of governing laws and rules; and (5) any BIA approval of the lease will be invalid as a breach of the Government's trust obligation.

This matter comes before the court on several motions. Plaintiffs filed a joint motion for summary judgment, a motion to dismiss counterclaims, and a motion to strike Defendants' motion suggesting lack of jurisdiction. Plaintiff Skull Valley Band filed a separate motion for summary judgment. Defendants filed a motion for judgment on the pleadings and a suggestion of lack of jurisdiction under Federal Rule of Civil Procedure 12(h)(3). Defendants treat their motion for judgment on the pleadings and suggestion of lack of jurisdiction as one and the same.

FACTS

The reality of an ever-increasing backlog of SNF in temporary storage has created a national problem. Currently, temporary on-site storage of SNF holds approximately 38,500 metric tons of SNF. But licensed nuclear reactors are expected to generate an additional 70,000 metric tons of SNF, at the least, over their commercial lifetimes.

In 1982, Congress passed the Nuclear Waste Policy Act ("NWPA"). The NWPA requires the Department of Energy to construct a permanent repository for the disposal of SNF. Pursuant to the terms of the NWPA, the Department of Energy entered into a contractual agreement with all utilities that control one or more nuclear reactors to accept the SNF generated by these reactors no later than January 31, 1998. However, the Department of Energy estimates that, at the earliest, it will not have a permanent repository to receive SNF until 2010.

A consortium of utility companies formed PFS as a temporary solution to the storage problem. PFS proposes to build an off-site, private SNF storage facility on a portion of the reservation of the Skull Valley Band in Utah. On May 20, 1997 PFS entered into a lease of tribal reservation lands with the Skull Valley Band to allow the construction of a SNF storage facility. The BIA has conditionally approved the lease. PFS has submitted a license application to the NRC to construct and operate the proposed SNF storage facility. The NRC has yet to rule on PFS' application.

Not surprisingly, the State of Utah objects to PFS's proposal. Governor Leavitt proposed, and the Utah Legislature passed, five pieces of legislation ("Utah laws") directed at blocking Plaintiffs' proposed facility.¹ The Utah laws fall into three categories: (1) Part 3 of Utah's Radiation Control Act ("Part 3"), (2) the Additional Provisions, and (3) the Miscellaneous Provisions.²

ANALYSIS

I. JURISDICTION

In its motion for judgment on the pleadings and its suggestion of lack of jurisdiction under Rule 12(h)(3), Defendants argue that (1) Plaintiffs do not have standing because they do not allege a violation of a legally cognizable interest and (2) Plaintiffs' claims are not ripe because the NRC has yet to grant PFS a license for facility.

A. STANDING

Article III of the Constitution restricts the federal courts to adjudicating actual "cases" or "controversies." U.S. CONST. art. III. The case-or-controversy limitation "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To ensure judicial adherence to the case-or-controversy requirement, the federal courts have adopted a variety of doctrines, of which the "doctrine that requires a litigant to have `standing' to invoke the power of a federal court is perhaps the most important." Id. Accordingly, Article III standing is a jurisdictional prerequisite. Id. at 754.

The party invoking federal jurisdiction has the burden to establish its standing to bring suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In order to invoke federal jurisdiction, a party must demonstrate three things:

(1) injury in fact, by which [is] mean[t] an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which [is] mean[t] that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which [is] mean[t] that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (internal quotations and citations omitted).

Defendants argue that Plaintiffs have not shown an invasion of a legally protected interest, "because PFS has no right to conduct the business of a nuclear waste dump prohibited by Congress, it has in this case no right capable of judicial enforcement." (Dfts.' Reply re Suggestion of Lack of Jurisdiction at 13). Defendants further contend that "the [NWPA] ... prohibits the storage of spent nuclear fuel from commercial nuclear power plants at an away-from-reactor storage facility, except in a Monitored Retrievable Storage facility owned and operated by the federal government pursuant to the NWPA." (Dfts.' Response to Pls.' Joint Mot. for Summary Judgment, App. 1 at 3). This argument is repeated, in various contexts, throughout Defendants' pleadings. The parties and the court have referred to this argument as the "lawfulness issue."

Defendants contend that in order to resolve the question of Plaintiffs' standing to bring this suit, the merits of the lawfulness issue must be resolved. That means, according to Defendants, that this court must decide whether Plaintiffs have a legal right to own and operate an off-site, private SNF facility. However, Plaintiffs are not asserting the right to own an off-site, private SNF facility in this lawsuit. What Plaintiffs claim here is that the Utah laws harm them by (1) hindering their licensing efforts before the NRC and by (2) creating uncertainty as to the utility of proceeding with their licensing efforts before the NRC. Thus, in this lawsuit, Plaintiffs seek to secure their right to proceed before the NRC in their licensing attempt free from state interference. The question of whether Plaintiffs have a right to own and operate a SNF facility will be resolved by the NRC (with the right of appeal to the appropriate Court of Appeals) and not by ...