USA. v. Morros
| Decision Date | 15 October 2001 |
| Docket Number | No. 00-17330,PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEES,00-17330 |
| Citation | 268 F.3d 695 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,v. PETER MORROS, DEFENDANT, AND STATE OF NEVADA; R. MICHAEL TURNIPSEED; NEVADA AGENCY FOR NUCLEAR PROJECTS, |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Cruden, Acting Assistant Attorney General; Steven G. Bartell, David C. Shilton, and Jared A. Goldstein, Attorneys, Department of Justice, for plaintiff-appellant United States.
Frankie Sue Del Papa, Attorney General; Paul G. Taggart, Deputy Attorney General, for defendants-appellees Director of Nevada Department of Conservation Resources and the Nevada State Engineer.
Frankie Sue Del Papa, Attorney General; Marta A. Adams, Senior Deputy Attorney General, for defendant-appellee Nevada Agency for Nuclear Projects.
Appeal from the United States District Court for the District of Nevada; Roger L. Hunt, District Judge, Presiding. D.C. No. CV-00-268-RLH
Before: Hug, Jr. and T.G. Nelson, Circuit Judges, and Shadur,* District Judge.
Opinion by Judge T.G. Nelson; Dissent by Judge Hug
The United States appeals the district court's decision to abstain from deciding whether the Nevada State Engineer's denial of the United States' water permit applications is preempted by federal law. We hold that abstention was improper and remand for adjudication on the merits.
Congress passed the Nuclear Waste Policy Act ("NWPA" or "the Act") 1 in 1982 in order to "establish a schedule for the siting, construction, and operation"2 of a national nuclear waste repository. Although the Act originally contemplated that the Secretary of Energy would recommend to the President three potential sites for site characterization,3 Congress amended it in 1987 to designate Yucca Mountain, Nevada, as the sole site characterization location.4 Since that time, substantial amounts of money and effort have been expended to evaluate Yucca Mountain's suitability and to prepare it for use as a repository in the event that the President and Congress ultimately designate it for that purpose.
The Yucca Mountain site characterization activities require water. Realizing that the current water permits expire in April 2002 and that obtaining new permits would take time, the Department of Energy ("DOE") filed five permit applications with Nevada's State Engineer in 1997. These five applications, which differ only in their points of diversion, attest that DOE's uses of the water will include, but are not limited to, road construction, facility construction, drilling, dust suppression, tunnel and pad construction, testing, culinary, domestic and other related site uses.
Several parties protested the DOE's permit applications. In November 1999, the State Engineer conducted an administrative hearing to consider these protests. At that hearing, an EPA witness testified that, if Congress ultimately designated Yucca Mountain as a nuclear waste repository, the requested water would be used to construct and operate such a facility in addition to the purposes listed on the applications.
The EPA witness's testimony featured prominently in the State Engineer's decision to deny the DOE's permit applications. Nevada law allows the State Engineer to deny a permit application for only three reasons: (1) there is no unappropriated water at the proposed source; (2) the proposed use conflicts with existing rights; or (3) the proposed use threatens to prove detrimental to the public interest.5 Because the parties stipulated that sufficient water was available and no one claimed to have conflicting rights, the State Engineer focused his inquiry on the third reason, the potential threat to the public interest.6 Citing the EPA witness's testimony, the State Engineer concluded that the requested water was not for site characterization.7 Rather, he explained, "[t]he applicant is requesting the use of water for actual use in the receiving, transfer, and processes for the storage of high-level nuclear waste in Nevada."8
This determination greatly simplified the State Engineer's task. The purposes the State Engineer ascribed to the DOE's permit applications directly conflicted with Nevada law. The State Engineer noted that, by enacting Nevada Revised Statute 459.910, which makes it "unlawful for any person or governmental entity to store high-level radioactive waste in Nevada,"9 the Nevada legislature "has already determined that the use applied for . . . threatens to prove detrimental to the public interest."10 Significantly, the State Engineer expressly disavowed any obligation to conduct his own public interest assessment.11 He denied the DOE's applications, stating that "since NRS § 459.910 prohibits the operation of a high-level nuclear waste repository to be sited in Nevada, the use of water in conjunction with said facility threatens to prove detrimental to the public interest."12
On March 2, 2000, the United States filed a complaint for declaratory and injunctive relief in the United States District Court for the District of Nevada. The complaint alleged that Nevada Revised Statute 459.910, as applied by the State Engineer, stands as an obstacle to the accomplishment of the purposes of the NWPA and is therefore preempted under the Supremacy Clause. The next day, the United States filed a protective notice of appeal from the State Engineer's decision in state court and then moved to stay that action pending resolution of the federal case. At the time of oral argument in this case, the state court had not ruled on the United States' motion and no substantive briefing or other proceedings had occurred in Nevada court.
In September 2000, the federal district court dismissed the United States' complaint.13 The court held that, the United States' pleadings notwithstanding, the court lacked jurisdiction under 28 U.S.C. § 1331.14 The court found that it had jurisdiction under 28 U.S.C. § 1345,15 but opted to abstain based on the Pullman,16 Burford,17 and Colorado River18 doctrines.19 The United States appeals the district court's abstention-based dismissal.
In its complaint, the United States sought both declaratory and injunctive relief, including: (1) a declaration that, under the Supremacy Clause, the NWPA preempts Nevada Revised Statute 459.910 and the State Engineer's ruling that relied upon it; (2) an order enjoining the State Engineer to evaluate the United States' permit applications without relying on Section 459.910 and enjoining all defendants from "unlawfully interfering with DOE's performance of its obligations under NWPA;" and (3) a declaration that the State Engineer's ruling was arbitrary and capricious. These pleadings suffice to confer federal question jurisdiction.20 The district court erred in arriving at the contrary conclusion.
As the Supreme Court explained in Bell v. Hood,21 the plaintiff controls the complaint, and the complaint controls whether a suit "arises under" federal law for the purposes of 28 U.S.C. § 1331.22 "Where the complaint . . . seek[s] recovery directly under the Constitution or laws of the United States, the federal court . . . must entertain the suit."23
More recently, the Supreme Court explained that
the district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another, unless the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.24
The United States plainly sought "recovery directly under the Constitution or the laws of the United States." 25 The gravamen of its complaint was that the State Engineer's ruling contravened the NWPA and thus violated the Supremacy Clause.
If the NWPA is interpreted to contemplate, either explicitly or implicitly, that only the Federal Government shall be entitled to determine whether siting a nuclear waste repository at Yucca Mountain is in the public interest, then the United States will prevail. If NWPA is not so interpreted, or if it is interpreted to allow state participation over and above the "notice of disapproval process" explicitly provided for in 42 U.S.C. § 10136,26 then the United States will lose.
Despite the fact that interpretation of the NWPA will control the outcome of this suit, the district court was not convinced that the United States' action arose under federal law. At defendants' urging, the court held that the Supremacy Clause was not an essential element of the relief the United States seeks. The court arrived at this conclusion by delving into the merits of the action, and, in particular, into the substance of the State Engineer's decision. It held that the United States' constitutional claim that the NWPA preempts Nevada Revised Statute 459.910 was improvidently asserted because the State Engineer's denial of the Government's permit applications was not predicated on a straightforward application of Nevada's state law. According to the court, the State Engineer 27 Based on this determination, the court held that the viability of the conclusions drawn from the passage of the statute, rather than the constitutionality of the statute itself, was what was really at issue. 28 This, in turn, led to the court's conclusion that, because the United States' action was "nothing more than a request for judicial review of the State Engineer's Ruling 4848," it "really`arises under' Nevada water law and procedures."29 In...
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Case summaries.
...amended by 282 F.3d 1055 (9th Cir. 2002), petition for cert. filed (June 6, 2002) (No. 01-1800), supra Part I.F. United States v. Morros, 268 F.3d 695 (9th Cir. 2001), infra Part Hydroelectric Power Friends of the Cowlitz v. FERC, 253 F.3d 1161 (9th Cir. 2001), amended by 282 F.3d 609 (9th ......