State of Nev. v. Burford

• Decision Date: 09 March 1989
• Docket Number: No. CV-S-88-203-PMP (RJJ).,CV-S-88-203-PMP (RJJ).
• Citation: 708 F. Supp. 289
• Parties: The STATE OF NEVADA, Plaintiff, v. Robert F. BURFORD, Director, Bureau of Land Management, Department of the Interior, Edward F. Spang, Nevada State Director, Bureau of Land Management, Department of the Interior, Defendants.
• Court: U.S. District Court — District of Nevada

708 F. Supp. 289

The STATE OF NEVADA, Plaintiff, v. Robert F. BURFORD, Director, Bureau of Land Management, Department of the Interior, Edward F. Spang, Nevada State Director, Bureau of Land Management, Department of the Interior, Defendants.

No. CV-S-88-203-PMP (RJJ).

United States District Court, D. Nevada.

January 27, 1989.

As Corrected March 9, 1989.

COPYRIGHT MATERIAL OMITTED

Harry W. Swainston, Deputy Atty. Gen., Carson City, Nev., for plaintiff.

Allan D. Brock, U.S. Dept. of Justice, Land and Natural Resources Div., Gen. Litigation Section, Washington, D.C., for defendants.

ORDER DISMISSING COMPLAINT

PRO, District Judge.

The State of Nevada filed a "Complaint for Mandamus, Injunctive and Declaratory Relief and for Judicial Review" (# 1) on March 25, 1988, in which it seeks to overturn the Bureau of Land Management's ("BLM") decision to issue a right-of-way reservation ("ROWR") which authorizes the Department of Energy ("DOE") to occupy, use and develop public lands near Yucca Mountain, in southwestern Nevada. Pursuant to the ROWR, DOE plans to study Yucca Mountain's characteristics as a possible site for a repository of high-level radioactive waste and spent nuclear fuel.

Nevada's Complaint alleges four causes of action. The first cause of action is a collection of claims, all of which seek this Court to rescind the BLM's issuance of the ROWR to the DOE. (# 1, ¶¶ 1.1-1.18, at 1-8)¹ The second cause of action claims that the BLM arbitrarily and unlawfully refuses to grant Miflin and Associates, a private enterprise under contract with Nevada, a right-of-way for access to study Yucca Mountain's characteristics as a possible site for the repository. The third cause of action claims that the BLM's issuance of the ROWR to the DOE unconstitutionally infringes on Nevada's equal footing and other rights reserved to the States by the Tenth Amendment. Finally, the fourth cause of action claims that no power exercisable under the Constitution authorizes the BLM's grant of the ROWR to the DOE.

Nevada seeks (1) an order directing the BLM to rescind the ROWR granted to the DOE; (2) and order directing the BLM to grant a right-of-way permit to Miflin & Associates; (3) declaratory judgment to enjoin the BLM from permitting DOE access to Yucca Mountain that would "entail unlawful infringement upon Nevada's constitutional and political rights"; and (4) declaratory judgment as to the constitutionality of those federal statutes upon which the BLM relied in granting the ROWR to the DOE.

On June 2, 1988, the BLM filed a Motion to Dismiss (# 15), for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Specifically, the BLM asserts that Nevada lacks standing to raise the first, third, and fourth causes of action, and that the second cause of action is not yet ripe for judicial review. In addition, the BLM asserts that Nevada's third and fourth causes of action fail to state a claim upon which this Court can grant relief. Fed.R.Civ.P. 12(b)(6).

The State of Nevada filed an Opposition (# 19) to the BLM's Motion to Dismiss on July 15, 1988, to which the BLM filed a Reply (# 21) on August 15, 1988.

For the reasons discussed herein, this Court accepts the BLM's assertions, and therefore dismisses the State of Nevada's Complaint.

PLEADING REQUIREMENTS

For purposes of the BLM's Motion to Dismiss, the factual allegations of the Nevada's Complaint must be presumed as true, and this court must draw all reasonable inferences in favor of Nevada, the non-moving party. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). This court does not, however, necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981), cert. den. 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981).The liberal reading accorded complaints on 12(b)(6) motions is, moreover, subject to the requirement that the facts demonstrating standing must be clearly alleged in the complaint. Id. ("We cannot construe the complaint so liberally as to extend our jurisdiction beyond its constitutional limits."), citing Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 237 n. 7 (9th Cir.1980), cert. denied, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed. 2d 502 (1980).

In addition, this court may take judicial notice of facts outside the pleadings such as matters of public record, without converting BLM's Motion to Dismiss to one for summary judgment. Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986).

BACKGROUND

In February 1983, pursuant to the Nuclear Waste Policy Act of 1982 ("NWPA"), 42 U.S.C. § 10101 (1982), Nevada was notified that certain public lands near Yucca Mountain were under consideration as a repository for the disposal and storage of high-level radioactive waste and spent nuclear fuel.² The BLM administers the lands in question under the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1701 ("FLMPA"). FLMPA directs that management of public lands shall be "on the basis of multiple use." 43 U.S.C. § 1701(a)(7) (1976).³

On November 23, 1987, the DOE filed an application with the BLM for a right-of-way reservation ("ROWR") in order to perform site characterization studies at the Yucca Mountain site. The application also sought a ROWR over federally-owned land adjacent to the public lands, within the Nellis Air Force Range.

On December 21, 1987, Congress enacted the Nuclear Waste Policy Act Amendments of 1987, Pub.L. No. 100-203, Title V, § 5002 (1987) (codified at 42 U.S.C. § 10101 (West Supp.1988)). Pursuant to the 1987 Amendments, the Secretary of Energy is directed to undertake site characterization at only one locale, specifically, Yucca Mountain. Pub.L. 100-203, Title V, § 5011(e)-(g) (1987); 42 U.S.C. § 10133(a)-(c) (West Supp.1988).⁴

The 1987 Amendments do not, however, alter the one provision contained in the NWPA which regulates the role of the BLM insofar as granting access to Yucca Mountain for site characterization. Namely, section 120(a)(1), which provides in pertinent part:

To the extent that the taking of any action related to the site characterization of a site ... under this part requires a certificate, right-of-way, permit, lease, or other authorization from a Federal agency or officer, such agency or officer shall issue or grant such authorization at the earliest practicable date, to the extent permitted by the applicable provisions of law administered by such agency or officer....

. . . . .

Any authorization issued or granted pursuant to ... this section shall include such terms and conditions as may be required by law, and may include terms and conditions permitted by law.

42 U.S.C. § 10140 (1982) (emphasis added).⁵

The BLM granted the ROWR to the DOE on January 6, 1988. The decision authorizes the DOE to undertake activities related to site characterization on 51,789 acres near Yucca Mountain. The ROWR extends only to the acreage which the BLM manages under FLPMA, it does not authorize DOE to undertake activities on the Nellis Air Force Range. On February 5, 1988, the State of Nevada, represented by the Nevada Attorney General, timely filed a Notice of Appeal, thereby initiating administrative review of the BLM's decision granting the ROWR by the Department of Interior Board of Land Appeals.⁶

Following Nevada's filing of this action, the Interior Board of Land Appeals granted Nevada's motion to stay the administrative proceedings pending the outcome of this action on August 3, 1988.

On September 30, 1987, Miflin and Associates, a private enterprise under contract with Nevada to independently assess Yucca Mountain's characteristics as a repository, applied to the BLM for access to the Yucca Mountain site for geologic and hydrologic testing in connection with Nevada's oversight role. Nevada seeks a Writ of Mandamus to compel the BLM to grant Miflin and Associates, as Nevada's contractor, a right-of-way to permit access for site characterization studies as part of Nevada's oversight and monitoring functions. In its Motion to Dismiss, the BLM states that it is currently considering Mifling and Associates' updated and corrected application.

STANDING DOCTRINE OVERVIEW

The BLM challenges the standing of Nevada to maintain this action. Standing is highly case-specific, and turns on the precise allegations of the party seeking relief. Compare Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (denying standing to an environmental organization challenging development of a ski resort in a national forest because it failed to identify "specific injury" to members) with United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (finding pleadings alleged facts which, if true, would establish standing by environmental group to challenge Interstate Commerce Commission's allowance of rail freight increase which identified members whose recreational and aesthetic interests would be allegedly injured because rate increase would lead to heightened use of raw, instead of recycled, scrap metal).

Standing involves both limitations imposed by the "case or controversy" requirement of Article III of the Constitution and "prudential limits on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The standing doctrine limits the jurisdiction of federal courts to parties who demonstrate "injury in fact." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982).

The Supreme Court has the "injury in fact" requirement as embracing three separate, yet necessarily intertwined elements: The party invoking the court's authority must demonstrate (1) "some actual or threatened injury" that (2) "fairly can...