US Ecology, Inc. v. US Dept. of Interior

• Citation: 231 F.3d 20
• Decision Date: 14 November 2000
• Docket Number: No. 99-5192.,99-5192.
• Parties: US ECOLOGY, INC., a California Corporation, Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

231 F.3d 20

US ECOLOGY, INC., a California Corporation, Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Appellees.

No. 99-5192.

United States Court of Appeals, District of Columbia Circuit.

Argued September 5, 2000.

Decided November 14, 2000.

Karl S. Lytz argued the cause and filed the briefs for appellant. Laurence H. Levine and Peter L. Winik entered appearances.

Mark R. Haag, Attorney, United States Department of Justice, argued the cause for appellees. With him on the brief were Lois J. Schiffer, Assistant Attorney General, and David C. Shilton, Attorney.

Eric R. Glitzenstein, Howard Crystal, and Jonathan R. Lovvorn were on the brief for intervenor/appellees.

Fran M. Layton, Mark A. Fenster, Alan K. Marks, and Susan L. Nash were on the brief for amicus curiae County of San Bernardino.

Before: EDWARDS, Chief Judge, GINSBURG and TATEL, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

This case involves a dispute over the availability of the so-called "Ward Valley Site" for potential use as a low-level radioactive waste ("LLRW") facility. Ward Valley is a 1.7 square mile plot of the Mojave Desert located just off I-40, 25 miles west of the Colorado River separating Arizona from California. Appellee the Federal Government owns the site and appellant US Ecology wants to develop, build, and operate a LLRW facility on the site as a licensee for the State of California. The Federal Government, however, has declined to transfer the land to the State of California, thus dashing US Ecology's hopes to proceed as developer and operator of a LLRW facility on the Ward Valley Site.

In 1987, pursuant to the Southwestern Low-Level Radioactive Waste Compact, California's Department of Health Services ("CDHS") identified the Ward Valley Site as the preferred location for the Compact's first regional LLRW disposal facility. In 1988, the State of California contracted with US Ecology, Inc., a private company in the business of constructing and managing LLRW facilities around the country, to develop the site. On January 19, 1993, the outgoing Secretary of the Interior, Manuel Lujan Jr., issued a Record of Decision announcing his approval of the direct sale of the Ward Valley Site to the State of California for potential use as a LLRW facility. The sale and transfer of land never happened, however. Citing concerns that his predecessor had not only subverted the administrative process, but also prematurely issued the Record of Decision in direct violation of a federal judge's temporary restraining order, incoming Secretary of the Interior Bruce Babbitt rescinded Secretary Lujan's Record of Decision on February 18, 1993.

In January 1997, CDHS brought suit in the District Court challenging Secretary Babbitt's 1993 rescission. US Ecology filed suit one month later. Because both complaints raised substantially similar claims, the District Court consolidated the cases. In March 1999, the District Court granted defendants' motion for summary judgment on all counts. See California Dep't of Health Servs. v. Babbitt, 46 F.Supp.2d 13 (D.D.C.1999). CDHS elected not to appeal the judgment of the District Court. As a result, only US Ecology is before this court.

The current posture of the case bars this court from reaching the merits of the claims that were before the District Court. This is so because appellant US Ecology, now on its own, does not have standing to contest the Federal Government's refusal to transfer the Ward Valley land to the State of California. Even were we to disagree with the District Court and find that Secretary Babbitt improperly rescinded the Record of Decision, appellant's alleged injury would not be redressable unless and until California accepted transfer of the disputed land and elected to proceed with the Ward Valley project. On the record at hand, appellant has no grounds upon which to claim that California will follow these courses; indeed, appellant could not make any concrete assertions on these scores even were the Federal Government to now propose to transfer the Ward Valley land to the state. Absent a showing of redressability, US Ecology's appeal must be dismissed for want of standing. Accordingly, we vacate the District Court's judgment as to appellant and dismiss this case for want of jurisdiction.

I. BACKGROUND

A. Factual Background

In 1987, California entered into the Southwestern Low-Level Radioactive Waste Compact with Arizona, North Dakota, and South Dakota pursuant to the Low-Level Radioactive Waste Policy Act Amendments of 1985, 42 U.S.C. §§ 2021b-2021j (1994). The Act makes states accountable for their own LLRW production and disposal, and authorizes them to form interstate compacts for the establishment of regional LLRW disposal facilities. 42 U.S.C. §§ 2021c, 2021d. Under the Southwestern Compact, California is responsible for developing and operating the group's first such regional facility. CAL. HEALTH & SAFETY CODE § 115255, art. 4(C)(1) (West 1996). Prior to entering into the Compact, California had chosen appellant US Ecology as its license-designee to evaluate potential sites, to aid in the land application process, and, after acquisition of the land, to develop, build, and operate its LLRW facility. US Ecology worked in conjunction with and under the oversight of CDHS, the agency charged with managing disposal of California's low-level radioactive waste.

Beginning in 1987, CDHS, with the help of US Ecology, filed a series of school land indemnity applications pursuant to 43 U.S.C. §§ 851-852 (1986), seeking to acquire the Ward Valley Site from the Bureau of Land Management ("BLM"). In July of 1992, California shifted its application strategy and requested that BLM sell the Ward Valley Site directly to the state pursuant to the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1784 (1986), rather than under the school indemnity provisions. Under FLPMA, BLM may at its discretion grant an application for direct sale if it finds the transfer to be in the national interest and "disposal of such tract will serve important public objectives." 43 U.S.C. §§ 1701(a), 1713(a)(3). Upon such a finding, BLM must publish a Notice of Realty Action, thereby providing interested parties with notice and 45 days in which to comment on the proposed transfer. See 43 C.F.R. §§ 2711.1-2(a), 2711.3-3 (1998). Only then may BLM proceed with the sale.

Before an agency takes any action that threatens the environment, it must also comply with the National Environmental Policy Act ("NEPA"), which requires the agency to prepare and issue an Environmental Impact Statement assessing any potential environmental impacts of its proposed action. National Environmental Policy Act of 1969, 42 U.S.C. § 4332(C) (1994). Under NEPA regulations, the agency must file with EPA the Final Environmental Impact Statement along with public comments received regarding the proposed statement, which are then published in the Federal Register. See 40 C.F.R. §§ 1506.9-.10 (1998). An agency must wait at least 30 days following publication before taking any action based on the Final Environmental Impact Statement, after which time NEPA regulations require the agency to prepare a Record of Decision justifying its ultimate decision. See 40 C.F.R. §§ 1505.2, 1506.10(b).

US Ecology, in conjunction with BLM and CDHS, submitted the required impact statement in September of 1989, and BLM published the Final Environmental Impact Statement in May of 1991. Before BLM issued its Record of Decision, however, California shifted its school indemnity application to one for direct sale under FLPMA. In response, BLM published a notice of intent to prepare a Supplemental Environmental Impact Statement on September 11, 1992, to assess any further environmental impacts associated with acquisition under the direct sale provisions. See Notice of Intent to Prepare Supplemental Environmental Impact Statement, 57 Fed.Reg. 41,771 (1992). After a period for comment, BLM filed its Final Supplemental Environmental Impact Statement on December 28, 1992, beginning the 30-day waiting period set to end on January 27, 1993. At roughly the same time as it issued its notice of intent to prepare a Supplemental Environmental Impact Statement, the Department of the Interior had published a Notice of Realty Action notifying the public that BLM was considering transfer of the Ward Valley Site to California pursuant to FLPMA's direct sale provisions. In response, interested parties lodged a multitude of protests and three filed mining claims related to the site.

On January 7, 1993 — only 10 days after filing its Final Supplemental Environmental Impact Statement with EPA — Secretary Lujan announced that there had been no need to supplement the original Final Environmental Impact Statement, because, under NEPA, the method of transfer would not affect the potential environmental harm. He converted the Supplemental Environmental Impact Statement into a less formal Environmental Assessment, which does not require a 30-day post-publication waiting period, and issued a Finding of No Significant Impact. The Secretary also issued a memorandum declaring that, upon final disposition of the three mining claims pending before the Interior Board of Land Appeals, he intended to dismiss the Notice of Realty Action protests, publish his Record of Decision approving direct sale, and issue a land patent transferring title of the Ward Valley Site to the State of California. The next day, appellant US Ecology wired $500,000 to a BLM-designated account as payment for the land.

Not to be outdone, project opponents filed suit in the United States District Court for the Northern District of California alleging that the Department of the Interior had violated the Endangered Species Act by failing to designate critical habitat for the desert tortoise. The District Court immediately issued a temporary...