State of Neb. v. Cen. Low-Level Radioactive Waste

• Decision Date: 10 April 1997
• Docket Number: No. 4:CV96-3438.,4:CV96-3438.
• Citation: 974 F.Supp. 762
• Parties: STATE OF NEBRASKA, Plaintiff, v. CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Defendant.
• Court: U.S. District Court — District of Nebraska

Page 762

974 F.Supp. 762

STATE OF NEBRASKA, Plaintiff, v. CENTRAL INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMMISSION, Defendant.

No. 4:CV96-3438.

United States District Court, D. Nebraska.

April 10, 1997.

William M. Lamson, Jr., Kennedy, Holland Law Firm, Omaha, NE, Donald B. Stenberg, Linda L. Willard, Atty. General's Office, Lincoln, NE, for Plaintiff.

John P. Heil, Thomas E. Johnson, Jon E. Blumenthal, Baird, Holm Law Firm, Omaha, NE, for Intervenors.

Alan E. Peterson, Shawn D. Renner, Cline, Williams Law Firm, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

PIESTER, United States Magistrate Judge.

Pending before the court is a motion by the defendant, a commission governing an interstate waste compact, to strike the State of Nebraska's demand for trial by jury in an ongoing dispute over regulatory authority. (Filing 9.) This case raises an issue of first impression, unaddressed in any reported court decision: whether the parties to an interstate compact are entitled to jury resolution of disputes arising under the compact. For the reasons discussed more fully below, I shall grant the motion to strike.

BACKGROUND

Following passage of the Low-Level Radioactive Waste Policy Act, Pub.L. No. 96-573, 94 Stat. 3347 (1980), Nebraska, Louisiana, Oklahoma, Kansas, and Arkansas formed the Central Interstate Low-Level Radioactive Waste Compact ("the Compact") for the purpose of constructing a shared radioactive waste disposal facility. As required by the Act, the member states obtained the consent of Congress to formation of the Compact. Nelson v. Central Interstate Low-Level Radioactive Waste Comm'n, 902 F.Supp. 1046, 1047 (D.Neb.1995). In addition, they established the Central Interstate Low-Level Radioactive Waste Commission ("the Commission") as its governing body. Concerned Citizens of Neb. v. United States Nuclear Reg. Comm'n, 970 F.2d 421, 423 (8th Cir.1992). Under the terms of the agreement, the Commission is a legal entity separate and distinct from the member states, with the right to sue and be sued. Compact Art. IV(k)(2) (reprinted in the Revised Statutes of the State of Nebraska Annotated, § 71-3521 at vol. 71, pp. 600-09 (Michie 1995)).

After reviewing several potential locations, the Commission selected Boyd County, Nebraska as the site for the facility and then contracted with a private corporation, U.S. Ecology, Inc., to develop and operate it. Concerned Citizens, 970 F.2d at 423. US Ecology's application for a license to operate the facility is currently under review by the Nebraska Department of Environmental Quality and the Nebraska Department of Health, the two state agencies charged under Nebraska state law with regulating the licensing, construction, and operation of all radioactive waste facilities in the state. (Filing 1 at ¶ 8-14.) On September 30, 1996 the Commission passed two resolutions responsible for the present litigation:¹ First, the Commission issued an ultimatum proclaiming that "the State of Nebraska must issue the Draft Environmental Impact Analysis and Draft Safety Evaluation Report and a draft license between December 14, 1996, and January 14, 1997." In effect, the ultimatum prohibits Nebraska state agencies from denying the license application and sets deadlines for issuing such a license, even though no such deadlines exist under Nebraska state law. (Id. at ¶ 16.) Second, the Commission established a single, consolidated period for public hearing and comment, which is contrary to the expansive comment-and-hearing periods established by Nebraska state regulations. (Id. at ¶ 17.)

On November 27, 1996 the State of Nebraska filed in this court a complaint seeking a declaration that the deadlines and restrictions imposed by the Commission violate state and federal law as well as the terms of the Compact. (Filing 1 at ¶ 19.) The complaint also contains a demand for trial by jury. (Id. at p. 10.) The Commission has moved to strike that demand on two grounds: (1) the Commission "possesses sufficient characteristics of sovereignty to bar a jury trial"; and (2) this is not an action for which a jury trial is required by the Seventh Amendment to the Constitution or a statute of the United States. (Defendant's Brief at 1-3.)

DISCUSSION

(1) Commission Sovereignty

The Commission asserts that its self-professed "modicum of sovereignty"-of which it contends the court "need not discern the precise nature or level"-likens it to a state of the union, thus inoculating it from a jury demand. (Defendant's Brief at 3-4). An examination of the history, purpose, and nature of interstate compacts reveals that the Commission is not a "quasi-sovereign" as it claims.

The Compact Clause of the Constitution provides that "No state shall, without the Consent of Congress[,] ... enter into any Agreement or Compact with another State...." U.S. Const., Art. I, § 10, cl. 3. "By vesting in Congress the power to grant or withhold consent, or to condition consent on the States' compliance with specified conditions, the Framers sought to ensure that Congress would maintain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority." Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 706-07, 66 L.Ed.2d 641 (1981) (citing Frankfurter & Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments, 34 Yale L.J. 685, 694-95 (1925)). "Congress does not pass upon a submitted compact in the manner as a court of law deciding a question of constitutionality. Rather, the requirement that Congress approve a compact is to obtain its political judgment" about the compact's potential effect on national interests. United States Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 485, 98 S.Ct. 799, 819, 54 L.Ed.2d 682 (1978) (White, J., dissenting).² Although congressional consent transforms interstate agreements into a federal law and creates federal subject matter jurisdiction over disputes arising thereunder, Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 278, 79 S.Ct. 785, 788, 3 L.Ed.2d 804 (1959), the compact does not create a separate sovereign state, and its powers are in no way equivalent to that of an independent sovereign. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 40-44, 115 S.Ct. 394, 401-02, 130 L.Ed.2d 245 (1994); Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 311, 110 S.Ct. 1868, 1875, 109 L.Ed.2d 264 (1990) (Brennan, J., concurring) (a compact is a multistate "agency"; "it is not one of the United States."); Washington Metro. Area Transit Author. v. One Parcel of Land, 706 F.2d 1312, 1316 (4th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 238, 78 L.Ed.2d 229 (1983) (a compact is not a sovereign). See also Marcella v. Brandy-wine Hosp., 47 F.3d 618, 624 (3d Cir.1995) (organizations are not "federal agencies" for purposes of the Seventh Amendment merely because they are organized by a federal charter or receive federal money).

In a series of cases holding that interstate compacts are presumed not to possess immunity from suit under the Eleventh Amendment, the Supreme Court has made clear that bodies governing administration of interstate compacts are merely "joint agencies" or "discrete entit[ies]" created by agreement of the party states. Hess, 513 U.S. at 51-53, 115 S.Ct. at 406. See also Feeney, supra, at 311-16, 110 S.Ct. at 1875-79; Petty, 359 U.S. at 279, 79 S.Ct. at 788-89. A passage from the Court's opinion in Hess is particularly enlightening:

Because Compact Clause entities owe their existence to state and federal sovereigns acting cooperatively, and not to any "one of the United States," their political accountability is diffuse; they lack the tight tie to the people of one State that an instrument of a single State has:

"An interstate compact, by its very nature, shifts a part of a state's authority to another state or states, or to the agency the several state jointly create to run the compact. Such an agency under the control of special interests or gubernatorial appointed representatives is two or more steps removed from popular control, or even of control by a local government." M. Ridgeway, Interstate Compacts: A Question of Federalism 300 (1971).

In sum, within any single State in our representative democracy, voters may exercise their political will to direct state policy; [multi]state entities created by compact, however, are not subject to the unilateral control of any one of the States that compose the federal system.

Id. at 42, 115 S.Ct. at 401-02.

It therefore follows from the reasoning in Hess that an interstate compact is too remote from voting citizens to be considered a "sovereign" or "quasi-sovereign" in our republican form of government. See id. It exercises only a slice of delegated state authority, and it does so only within a narrowly confined area. Id. at 47-48, 115 S.Ct. at 404. Ultimate control of such entities lies with the states themselves, who "may destroy or reshape any unit [they] create." Id. Any power, immunity, or privilege exercised by Compact Clause entities is derived wholly from the states and may be modified by those states. See id. at 47-53, 115 S.Ct. at 404-06; Feeney, supra, at 312, 110 S.Ct. at 1876.

Here, the Central Interstate Low-Level Radioactive Waste Commission simply administers a regional waste compact-it exercises authority only in a very narrow sphere and only as an amalgamation of the interests of its member states. Concerned Citizens, 970 F.2d at 422-23. Its limited authority, and its dependence on member states of the Compact for that authority, is far too removed from the full power and autonomy of a state in our federal system for it to be considered a "quasi-sovereign." See Hess, supra, 513 U.S. at 47-48, 115 S.Ct. at 404. Therefore, the Commission's argument that it has an amorphous right not to be subjected to trial by jury fails.

The Commission's claim that it is a quasi-sovereign is...