Appendix — Nevada v. Jamison

Supreme Court brief1991

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DOG ok os. je H FEB 11 1991

“OFRRE OF THE OUcAK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF NEVADA,

Petitioner,

CY JAMISON, Director of the Bureau of Land Manage-

ment, Department of Interior; BILLY R. TEMPLETON,

Nevada State Director, Bureau of Land Management,

Department of Interior,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

PETITIONER’S APPENDIX

FRANKIE SUE DEL PAPA

Attorney General of Nevada

HARRY W. SWAINSTON*

Deputy Attorney General

Capitol Complex

1802 N. Carson St., Suite 252

Carson City, Nevada 89710

(702) 687-5866

Attorneys for Petitioners

*Counsel of Record

TABLE OF CONTENTS

Page

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Weawewe 84 4 eS Ue eT Fe hes le el 1

DISTRICT COURT'S CORRECTED ORDER

708 F. SUPP. 289 (D.NEV. 1989) 11

BLM ORDER OF JANUARY 6, 1988 .. . 54

ee g SON» a a a oe a a a a a 58

CONSTITUTIONAL PROVISIONS .... . 81

PROPERTY CLAUSE, Art. IV, § 3,

a oe er eee 81

FEDERAL ENCLAVE CLAUSE, Art. I,

ee ee: eS ee ee cee 82

NATIONAL ENVIRONMENTAL

POLICY ACT

SECTION 102(2)(C),

42 U.S.C. § 4332(2)(C) . 82

NUCLEAR WASTE POLICY ACT

42 U.S.C. §§ 10101,

@C 80@. © 26 © © © & @ » 86

FEDERAL LAND POLICY &

MANAGEMENT ACT

SECTION 204, 43 U.S.C.

§ 1714(a)(b)(c)(d) .. . 151

FEDERAL REGULATIONS

10 C.FsRs GO.2 2. 6 © 8 & 6 HO 161

20 C.F.R. 60.221) 2. 21 6 8 2 © 161

NEVADA STATUTES AND RESOLUTIONS

NEVADA REVISED STATUTE

NRS 328.065

NRS 328.500(2)

NRS 459.910 .

RESOLUTIONS

ASSEMBLY JOINT

RESOLUTION NO. 4.

ASSEMBLY JOINT

RESOLUTION NO. 6.

167

169

RECEIVED

NOV 19 1990

FOR PUBLICATION _cizicis ssi: sexsi ene

Dee. AG

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF NEVADA,

Plaintiff-Appellant,

i No. 89-15272

ROBERT F. BurForD, Director of a

Bureau of Land Management, q “LU. NO.

Department of Interior; EDwARD CV-88-0203-PMP

F. SPANG, Nevada State Director, OPINION

Bureau of Land Management,

Department of Interior,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Philip M. Pro, District Judge, Presiding

Argued and Submitted

August 16, 1990—San Francisco, California

Filed November 14, 1990

Before: J. Clifford Wallace, Arthur L. Alarcon and

Charles Wiggins, Circuit Judges.

Opinion by Judge Wallace

SUMMARY

Constitutional Law/Jurisdiction

Affirming a district court dismissal of an action for lack of

standing, the court of appeals held that Nevada failed to show

14020 STATE OF NEVADA v. BURFORD

how a grant of a right-of-way by the Bureau of Land Manage-

ment to the Department of Energy to conduct site character-

ization studies at Yucca Mountain for the repository of

nuclear waste caused it injury in fact to challenge that action.

Under the Waste Act, the Department of Energy obtained

a right-of-way over public land near Yucca Mountain in the

State of Nevada from the Bureau of Land Management to

evaluate the suitability of a site for the location of a repository

for nuclear waste. The right-of-way granted prohibited the

disposal of any hazardous materials on the land, and stated

that it did not convey any rights for the construction or initial

operation of a nuclear waste repository. The district court dis-

missed Nevada’s action to challenge the grant of the right-of-

way for lack of standing. The district court also concluded

that Nevada’s constitutional claims were without merit.

[1] The “case or controversy” limitation in article III of the

Constitution requires that federal courts visit the threshold

question of standing in every federal case. To clear this juris-

dictional hurdle, a complaining party must demonstrate an

injury in fact. [2] Nevada’s complaint was silent as to how the

alleged violations resulted in injury to Nevada. The federal

government owned the land in question. In addition, Nevada

did not allege in its complaint that it uses the land surround-

ing Yucca Mountain for any purpose. Even assuming that the

right-of-way grant violates the Land Act, the Environmental

Act, and the Constitution, Nevada failed to show how those

violations resulted in injury to that state. Nevada’s asserted

right to have the federal government act in accordance with

law was not sufficient, standing alone, to confer jurisdiction

on a federal court. [3] Nevada’s claim of standing on the basis

of its sovereign interest failed. Clearly, the right-of-way deci-

sion did not strip Nevada of its right to participate in the site

characterization process or to object to the selection of Yucca

Mountain as a repository. [4] Nevada's asserted proprietary

interest as a basis for standing also failed. Even assuming that

the site characterization process would disturp the land,

STATE OF NEVADA v. BURFORD 14021

Nevada failed to show that it would suffer on account of that

disturbance. [5] Nevada could also not seek standing in its

parens patriae capacity to advance the interests of its citizens.

The Supreme Court has stated clearly that a state does not

have standing as parens patriae to bring an action against the

federal government. [6] Because Nevada failed to allege suffi-

cient facts to demonstrate standing, the district court prop-

erly dismissed its action. The court did not reach the question

of whether the district court was correct in dismissing Neva-

da’s claims on the merits.

COUNSEL

Harry W. Swainston, Deputy Attorney General, Carson City,

Nevada, for the plaintiff-appellant.

George W. Vancleve, United States Department of Justice,

Washington, D.C., for the defendant-appellee.

OPINION

WALLACE, Circuit Judge:

Nevada appeals from the dismissal of its complaint against

the Bureau of Land Management (Bureau), in which Nevada

alleges that the Bureau improperly granted a right-of-way to

the Department of Energy (Department) to conduct site char-

acterization studies at Yucca Mountain, Nevada. The district

court concluded that Nevada lacked standing to pursue this

action, and dismissed the complaint. The district court exer-

cised jurisdiction pursuant to 28 U.S.C. § 1331. Our court has

no jurisdiction to review a dismissed complaint; a judgment

is not final until the underlying action is dismissed. Where the

district court has inadvertently neglected to dismiss the

action but it is clear it intended its order to terminate the

14022 STATE OF NEVADA v. BURFORD

action, we treat the action as dismissed. Ki/kenny v. Arco

Marine Inc., 800 F.2d 853, 855-56 (9th Cir. 1986), cert.

denied, 480 U.S. 934 (1987). Here it is clear that the ruling by

the district court was meant to be dispositive of the action.

Therefore, we have jurisdiction over this timely appeal under

28 U.S.C. § 1291. We affirm.

In February of 1983, Nevada was notified that certain pub-

lic lands near Yucca Mountain were under consideration as

a national repository for the disposal of nuclear waste. Four

years later, Congress decided to concentrate waste repository

development efforts on the Yucca Mountain site. Accord-

ingly, Congress amended the Nuclear Waste Policy Act

(Waste Act), 42 U.S.C. §§ 10101-10270, to require that site

characterization activities proceed solely at Yucca Mountain.

Id. § 10133(a). Site characterization consists of extensive test-

ing conducted bythe Department in order to evaluate the

suitability of a site for the location of a repository. /d.

§ 10101(21).

In order to aid the Department in its site characterization

activities, the Waste Act provides,

[t]o the extent that the taking of any action related to

the site characterization ofa site. . . requires a certif-

icate, right-of-way, permit, lease, or other authoriza-

tion from a Federal agency or officer, such agency or

officer shall issue or grant any such authorization at

the earliest practicable date, to the extent permitted

by the applicable provisions of law administered by

such agency or officer.

42 U.S.C. § 10140(1) (emphasis added). Pursuant to this sec-

tion, the Department applied to the Bureau in November

1987 for a mght-of-way over public land near Yucca Moun-

tain. This land is administered by the Bureau under the Fed-

Lee ———osE

STATE OF NEVADA v. BURFORD 14023

eral Land Policy and Management Act of 1976 (Land Act), 43

U.S.C. §§ 1701-1784 which directs the Bureau to manage the

land in a way “that will best meet the present and future needs

of the American people.” /d. § 1702(c). On January 6, 1988,

the Bureau granted to the Department a 13 year right-of-way

over 51,632 public acres near Yucca Mountain, and autho-

rized the Department to undertake necessary site character-

ization activities on that land in accordance with the

Department’s Plan of Development.

Under this plan, the Department intends to excavate sev-

eral exploratory shafts and conduct a variety of scientific

tests. The Department has stated that site characterization

activities should not interfere with any current or planned

activities on the lands within the right-of-way. It promises “to

return lands disturbed by site characterization to a stable eco-

logical state with a form and productivity similar to the pre-

disturbance state.” Moreover, the right-of-way granted by the

Bureau prohibits the disposal of any hazardous materials on

the land, and states that it “does not convey any rights for the

construction or initial operation of a nuclear waste

repository.”

Nevada filed an action in the district court challenging the

grant of this right-of-way. Nevada alleged that the grant vio-

lated requirements in both the Land Act and the National

Environmental Policy Act (Environmental Act). In addition,

it claimed that the Bureau’s actions violated Nevada’s consti-

tutional right, including that the nght-of-way rendered mean-

ingless Nevada’s political right to object to its selection as a

waste repository site. The district court determined that

Nevada lacked standing to pursue the action, and concluded

that the constitutional claims were without merit.

We review de novo the district court’s legal conclusion that

Nevada lacks standing. Bruce v. United States, 759 F.2d 755,

14024 STATE OF NEVADA v. BURFORD

758 (9th Cir. 1985), cert. denied, 479 U.S. 987 (1986). More-

over, for purposes of this review, we must construe the com-

plaint in favor of Nevada, and accept as true all of Nevada’s

material allegations. Warth v. Seldin, 422 U.S. 490, 501

(1975).

[1] The “case or controversy” limitation in article III of the

Constitution requires that federal courts visit the “threshold

question” of standing in every federal case. Jd. at 498. In

order to clear this jurisdictional hurdle, a complaining party

must demonstrate an injury in fact. Valley Forge Christian

College v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 473 (1982) (Valley Forge). The

Supreme Court has held that this constitutional injury

requirement embraces three related elements: (1) an actual or

threatened injury, (2) which is fairiy traceable to the defen-

dant’s allegedly unlawful conduct, and (3) which is likely to

be redressed by the relief requested. See Allen v. Wright, 468

U.S. 737, 751 (1984) (Allen); Valley Forge, 454 U.S. at 472;

Alaska Fish & Wildlife Federation v. Dunkle, 829 F.2d 933,

937 (9th Cir. 1987), cert. denied, 485 U.S. 988 (1988).

To satisfy the first of these requirements, Nevada must

show that it “has been or will in fact be perceptibly harmed

by” the decision of the Bureau to grant the right-of-way.

United States v. Students Challenging Regulaiury Agency Pro-

cedures (SCRAP), 412 U.S. 669, 688 (1973). Thus, Nevada

must demonstrate that it has suffered or will in fact suffer

“concrete and immediate” injury on account of the right-of-

way grant. Rapid Transit Advocates, Inc. v. Southern Califor-

nia Rapid Transit District, 752 F.2d 373, 378 (9th Cir. 1985).

This it has failed to do.

Nevada’s complaint contains allegations that the Bureau’s

decision to issue the right-of-way violated several constitu-

tional and statutory provisions. For example, Nevada con-

tends that the Bureau violated requirements of the Land Act

by issuing the right-of-way because in order to permit the

STATE OF NEVADA Vv. BURFORD 14025

Department to occupy the land surrounding Yucca Moun-

tain, the Bureau was required to use the withdrawal proce-

dure specified in 43 U.S.C. § 1714. Nevada further argues

that the environmental assessment accepted by the Bureau in

connection with the right-of-way grant is insufficient to sat-

isfy the requirements imposed by the Environmental Act. In

addition, Nevada contends that issuance of the nght-of-way

violates many constitutional provisions, including the tenth

amendment.

[2] However, the complaint is silent as to how these alleged

violations have resulted in injury to Nevada. “[A]n asserted

right to have the Government act in accordance with law is

not sufficient, standing alone, to confer jurisdiction on a fed-

eral court.” Allen, 468 U.S. at 754; see also Diamond vy.

Charles, 476 U.S. 54, 62 (1986) (“The presence of a disagree-

ment, however sharp and acrimonious it may be, is insuffi-

cient by itself to meet Art. III’s requirements.”). The federal

government, not Nevada, owns the land in question. More-

over, Nevada did not allege in its complaint that it uses the

land surrounding Yucca Mountain for any purpose. Even

assuming that the right-of-way grant violates the Land Act,

the Environmental Act, and the Constitution, Nevada fails to

show how those violations result in injury to Nevada. We

agree with the district court that Nevada’s claims merely

“constitute a generalized grievance that the [Bureau] is not

acting in a way in which [Nevada] maintains is in

accordance” with federal laws. Nevada v. Burford, 708 F.

Supp. 289, 295 (D. Nev. 1989) (Burford). This is insufficient

to demonstrate standing. See Allen, 468 U.S. at 754; Valley

Forge, 454 U.S. at 482-83; Schlesinger v. Reservists Commit-

tee to Stop the War, 418 U.S. 208, 223 n.13 (1974).

[3] In addition to contending that the right-of-way grant

violated several federal statutes and the Constitution,

Nevada asserts that its political mght to object to its selection

as the host for a nuclear waste repository has been rendered

meaningless by the Bureau’s action. It is clear that a state may

14026 STATE OF NEVADA v. BURFORD

demonstrate standing by asserting an injury to a sovereign

interest. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458

U.S. 592, 601 (1982) (Snapp). What constitutes a state’s sov-

ereign interest is not free from doubt. /d. But in this appeal.

we need not analyze its nature or parameters. Nevada argues

that one of its sovereign interests — the right to object in the

political arena to the selection of Yucca Mountain as a waste

repository — has been infringed. Assuming such an identifi-

able sovereign interest, Nevada’s argument ignores the fact

that the decision of whether to construct the repository at

Yucca Mountain is many years and numerous procedural

hurdles away. For example, if the Department determines

that Yucca Mountain is an appropriate site after site charac-

terization 1s completed, the Department must hold public

hearings near the site to receive comments regarding its suit-

ability. 42 U.S.C. § 10134(a). Following this, the Department

must make a recommendation to the President whether to

construct the repository, who in turn must decide whether to

recommend the site to Congress. Jd. Within 60 days of the

President’s recommendation to Congress, the state in which

the recommended site is located may file a notice of disap-

proval with Congress. Jd. § 10136(b)(2). If such a notice is

tiled, the site selection is disapproved unless Congress passes

a resolution as required by the Waste Act within 90 days. /d.

§ 10135(c). We deal here only with the decision by the Bureau

to grant a mght-of-way, the only “direct consequence [of

which] is that the site characterization process will proceed to

the next step in accordance with the [Waste Act].” Burford,

708 F. Supp. at 297. Any claim by Nevada that site character-

ization will inevitably lead to the designation of Yucca Moun-

tain as a repository site is mere speculation, and “unadorned

speculation will not suffice to invoke the federal judicial

power.” Simon v. Eastern Kentucky Welfare Rights Organiza-

tion, 426 U.S. 26, 44 (1976). Clearly, the right-of-way deci-

sion has not stripped Nevada of its right to participate in the

site characterization process or of its right to object to the

selection of Yucca Mountain as a repository. Thus, because

STATE OF NEVADA v. BURFORD 14027

Nevada has failed to show how it has been injured in this

respect, its claim of standing based on its asserted sovereign

interest fails.

[4] In its complaint, Nevada also alleges that the site char-

acterization process will disturb the surface and subsurface of

the land in the affected area, and will interfere with other pos-

sible uses of the land. A state may, of course, have standing to

redress injuries to its proprietary interests, such as the inter-

ests arising from property ownership. Snapp, 458 U.S. at 602-

03. As we have discussed above, however, Nevada does not

own the affected property, nor has it alleged that it uses the

property for any purpose. Thus, even assuming that the site

characterization process will disturb the land, Nevada has

failed to show that it will suffer on account of that distur-

bance. Proprietary standing is therefore not available to

Nevada.

[5] Finally, Nevada alleges that it has standing in its parens

patriae capacity to advance the interests of its citizens. The

Supreme Court has held that a state has a “quasi-sovereign

interest in the health and well-being — both physical and eco-

nomic — of its residents in general,” and can therefore sue to

protect these interests through a parens patriae action. Id. at

607. In this case, Nevada alleges that the selection of Yucca

Mountain as the site for a national waste repository will have

a devastating effect on the state’s vital tourist industry.

Although the Supreme Court has endorsed parens patriae

Suits in general, it has also stated that “[a] State does not have

standing as parens patriae to bring an action against the Fed-

eral Government.” /d. at 610 n.16 (stating that with respect

to the citizens’ rights in relation to the federal government, “‘it

is the United States, and not the State, which represents them

as parens patriae”). Our earlier case of Washington Utilities &

Transportation Commission v. FCC, 513 F.2d 1142, 1153

(9th Cir.), cert. denied, 423 U.S. 836 (1975), must, of course,

give way to the Supreme Court’s clear statement in Snapp.

14028 STATE OF NEVADA v. BURFORD

[6] Because Nevada has failed to allege sufficient facts to

demonstrate standing, we affirm the district court’s dismissal

of the action. We therefore do not reach the question of

whether the district court was correct in dismissing Nevada’s

claims on the merits.

AFFIRMED.

DISTRICT COURT'S CORRECTED ORDER

708 F. SUPP. 289 (D.NEV. 1989)

The STATE OF NEVADA, Plaintiff,

Vv.

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.

Jan. 27, 1989.

As Corrected March 9, 1989.

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 fora

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, 4§ 1.1-1.18, at 1-8)' The second

‘The BLM focuses on the gravamen of Nevada's

claims by summarizing the allegations contained

in the Complaint as follows:

BLM’s issuance of a right-of-way is

contrary to FLPMA and the order classifying

management of the public lands under the

Classification and Multiple Use Act of 1964

because it authorizes the Department of

Energy to undertake activities inconsistent

with valid, existing uses and that

extensively disrupt the surface and

subsurface;

To the extent the right-of-way authorizes

the Department of Energy to undertake

activities inconsistent with valid,

existing uses, it in fact classifies anew

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 RCWR 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.

or withdraws the public lands without

observance to the procedure and substance

of FLPMA; and

BLM‘s finding that the right-of-way

authorizes activities that do not pose a

Significant impact on the environment is

unreasonable because the environmental

assessment supporting it relies upon a

document of the Department of Energy that

fails to satisfy the National Environmental

Policy Act, 42 U.S.C. § 4321.

(Citing Complaint, #1, 47 1.12-1.14 at 6-8)

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 woulc "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. $67, 79 L.Ba.2a 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 aileged 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 Somnth 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.* The BLM administers the lands in

“The NWPA entrusts the Secretary of Energy

with the responsibility of identifying a site

Suitable for study as a potential repository for

the storage of radioactive waste and spent

nuclear fuel. 42 U.S.C. § 10101, in passim. The

statute first requires the Secretary to issue

guidelines for selecting possible sites in

various geologic media, 42 U.S.C. § 10132(a)

(1982). Second, the Secretary is to use those

guidelines to nominate at least five sites that

warrant intensive study, statutorily termed as

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.

“site characterization.” 42 U.S.C. § 10132(b)

(1982). An environmental assessment must

accompany each of the nominations, which must

"include a detailed statement of the basis for

such recomuendation and of the probable impacts

of the site characterization activities planned

for such site, and a discussion of alternative

activities relating to site characterization that

may be undertaken to avoid such impacts." 42

U.S.C. § 10132(b)(1)(E) (1982). After nominating

at least five sites, the Secretary must recommend

three for site characterization to the President.

42 U.S.C. § 10132(b)(1)(B) (1982). If the

President approves that recommendation, the

Secretary is to begin site characterization at

each locale. See generally 42 U.S.C. § 10133

(1982).

In 1986, the Secretary announced the

nomination of five sites as suitable for site

characterization. See 51 Fed.Reg. 19783-19784

(June 2, 1986). On the same day, the Secretary

announced that he had recommended three of the

sites, one in Deaf Smith County, Texas, one at

yucca Mountain, Nevada, and one on the Hanford

Reservation in Washington, for site

characterization, and that the President had

approved that recommendation. In 1987, Congress

amended the NWPA to the extent that site

characterization was to proceed only at one site,

Yucca Mountain, Nevada. (See discussion, infra.)

Upon completion of site characterization,

the Secretary must recommend to the President a

Single site for development as a repository. 42

U.S.C. § 10134(a)(1) (1982). Finally, the

President shall submit that recommendation to

Congress, triggering an elaborate procedure which

will determine whether that site can in fact be

developed as a repository. 42 U.S.C. §§ 10134-

10137 (1982).

§ 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, specificaily, Yucca Mountain.

Pub.L. 100-203, Title V, § 5011(e)-(g)

‘Multiple use is described as "making the

most judicious use of the land for some or all of

the public lands," and, where appropriate,

allowing individuals to “use some land for less

than all of the resources." 43 U.S.C. § 1702(c)

(1976).

(1987); 42 U.S.C. § 10133(a)-(c) (West

Supp. 1988) .*

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 ....

: 2 @

Any authorization issued or granted

pursuant to .. . this section shall

include such terms and conditions as

“The Amendments explicitly state that if the

Secretary determines during the site

characterization work that Yucca Mountain is

unsuitable for development as a repository, he

shall terminate those activities and, within six

months, provide recommendations on further action

to Congress. Pub.L. 100-203, Title V, §

5011(g)(3) (1987); 42 U.S.C. § 10133(c)(3)(A)-(F)

(West. Supp. 1988).

may be required by law, and may

include terms and conditions

permitted by law. 42 U.S.C § 10140

(1982) (emphasis added) .°

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, represerted 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

°The BLM’s Motion to Dismiss contains a

concise discussion of its authority to allow the

TOE to occupy and use public lands adjacent to

Yucca Mountain for purposes of conducting site

characterization. (#15, at 7-11) See also 43

U.S.C. § 1767 ("Rights of way for Federal

departments and agencies"), cross referenced with

43 U.S.C. § 1732 ("Management of use, occupancy,

and development of public lands").

Department of Interior Board of Land

Appeals.°®

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,

*The BLM incorporated DOE’s environmental

assessment, required under the NWPA. Nevada has

claimed that the environmental assessment dves

not address the full range of issues required by

the NWPA, and this contention is presently at

issue before the Ninth Circuit Court of Appeals.

Nevada v. Herrington, Case No. 86-7309.

Accordinglv, this court need not consider the

adequacy of the environmental assessment.

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 &.Ct. 1361, 31 L.Ea.2a

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 xine 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, 496, 95 S.Ct. 2197, 2205, 45 L.Ba.e2e

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.2a 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 be traced to the challenged

action" and (3) “is likely to be

redressed by a favorable decision."

Valley Forge Christian College v.

Americans United for Separation of Church

and State, 454 U.S. at 472, 102 S.Ct at

758 (quoting Gladstone, Realtors v.

Village of Bellwood, 441 U.S. 91, 929

S.Ct. 1601, 60 L.Ed.2d 66 (1979), and

Simon v. Eastern Kentucky Welfare Rights

fags, Sa20 wems 20, 2o, 41, 96 S.Ct. 1917,

1924, 1925-26, 48 L.Ed.2d 450 (1976),

respectively). See also Allen v. Wright,

466 U.S. 737, 751, 104 &.Ct. 3315, 3324,

82 L.Ed.2d 556 (1984).

The first of these elements, that a

party "has been or will in fact be

perceptibly harmed by the challenged

agency action," see United States v.

SCRAP, 412 U.S. at 688, 93 S.Ct. at 2416,

ys the core of standing. National

Wildlife Federation v. Hodel, 839 F.2d

694, 704 (D.C.Cir. 1988). The requisite

injury, however, cannot be to merely

"abstract" interests. See Diamond v.

Charles, 476 U.S. 54, 106 S.Ct. 1697, 90

L.Ed.2d 48 (1986); Simon, 426 U.S. at 40,

96 S.Ct. at 1925; Sierra Club, 405 U.S.

at 739-740, 92 $.Ct. at 1366-69.

The second element is causation:

the injury alleged must be "fairly

traceable" to the challenged action. The

Supreme Court has indicated that

indirectness of causation is not

necessarily a barrier to standing. See

Duke Power Co. v. Carolina Envtl. Study

Group, 438 U.S. 59, 98 S.Ct. 2620, 57

L.Ed.2d 595 (1978) (environmental group

had standing to challenge limitation on

utility liability in event of nuclear

accident); see also Japan Whaling Ass’n

v. American Cetacean Soc’y, 478 U.S. 221,

106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)

(whale watching group had standing to

challenge failure of Secretary of

Commerce to cite Japan for violations of

international limitations on harvesting

of whales).

The third and final element of

standing analysis is redressability.

Differentiating "(t]he 'fairly traceable'

and 'redressability' components of the

constitutional standing inquiry," the

Supreme Court observed that the causality

inquiry "examines the causal connection

between the [defendant's--here, the

BLM's} assertedly unlawful conduct and

the alleged injury" while the

redressability inquiry "examines the

causal connection between the alleged

injury and the judicial relief

requested." Allen v. Wright, 468 U.S. at

752, 104 &.Ce. @© 3326 Msaee Te thie

case, the "redressability" requirement

therefore demands that Nevada demonstrate

that there is a "substantial likelihood"

that the relief requested would preclude

the BLM from issuing at some future date,

the ROWR to the DOE, in accordance with

NWPA and the FLPMA. Duke Power Co. v.

Carolina Envtl. Study Group, 438 U.S. at

75 n.20, 9B S.CE. OS £2634 Ni 2ds

In addition, the courts have imposed

standing limitations beyond those

required by the Constitution. These

prudential limitations arise from a_

concern that the courts not "be called

upon to decide abstract questions of wide

public significance even though other

governmental institutions may be more

competent to address the questions and

even though judicial intervention may be

unnecessary to protect individual

rights." Warth v. Seldin, 422 U.S. at

500, 95 &.Ct. at 2206.

Hence, the courts have held that

when the alleged harm is a "generalized"

or "abstract" grievance shared by a large

class of citizens, jurisdiction will not

be exercised. Western Mining Council v.

Watt, 643 F.2d 618, 623 (9th Cir. 1981),

citing Warth v. Seldin, 422 U.S. at 499,

95 S.Ct. at 2205; Schlesinger v.

Reservists Committee to Stop the War, 418

U.sG. 208, 94 S.Ct. 2925, 41 L.Ed.2da 706

(1974); United States v. Richardson, 418

U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678

(1974); Ex Parte Levitt, 302 U.S. 633, 58

See. ad, 82 Bd. 693 (1937).

NEVADA FAILS TO DEMONSTRATE

ACTUAL INJURY

The case or controversy requirement

of Article III, which limits the

jurisdiction of the federal courts, also

applies to actions under the Declaratory

Judgments Act, 28 U.S.C. § 2201. Western

Min. Council v. Watt, 643 F.2d at 623;

Stewart v. M.M. & P. Pension Plan, 608

F.2d 776, 782 (9th Cir. 1979).

Accordingly, the requirements for

standing and justiciability apply to an

action, such as Nevada's, for declaratory

judgment. Thus, "the question in each

case is whether the facts alleged, under

all the circumstances, show that there is

a substantial controversy, between

parties having adverse legal interests,

of sufficient immediacy and reality to

warrant the issuance of a declaratory

judgment." Western Min. Council v. Watt,

643 F.2d at 624, quoting Maryland

Casualty Co. v. Pacific Coal & Oil Co.,

312 U.S. 270, 273, 413 S60. $26, 322, 65

L.Ed. 826 (1941).

{1} To satisfy the first element of

the standing requirement, Nevada must

allege some threatened or actual injury

resulting from the BLM's granting of the

ROWR to the DOE. Nevada's Complaint

contains no averments that the State uses

the public lands adjacent to Yucca

Mountain for any purpose. Instead,

Nevada contends that the BLM's grant of

the ROWR to the DOE contravenes FLPMA.

In effect, Nevada's first, third, and

fourth causes of action constitute a

generalized grievance that the BLM is not

acting in a way in wnich the State

maintains is in accordance with the FLPMA

and the Constitution.

[2] In more specific terms,

’This particular allegation does not, as a

matter of law, confer standing upon Nevada. In

Allen v. Wright, 468 U.S. at 754, 104 S.Ct. at

3326, the Supreme Court maintained:

This Court has repeatedly held that an

asserted right to have the Government act

in accordance with law is not sufficient,

standing alone, to confer jurisdiction on a

federal court .... "f{A]ssertion of a

right to a particular kind of Government

conduct, which the Government has violated

by acting differently, cannot alone satisfy

the requirements of Art. III without

draining those requirements of meaning."

(Citations omitted).

Nevada's Complaint includes an allegation

that site characterization can disturb

the surface and subsurface of the public

lands in the affected area, and with

other uses. (#1, 91.14, at 7-8).

Inasmuch as the area to be affected by

the site characterization is public land

administered by the BLM, Nevada has not

indicated any proprietary or sovereign

interests in such public lands.

Beyond this, in the most generalized

terms, Nevada contends in its Opposition

to the BLM's Motion to Dismiss (though

not in its Complaint) that grave

consequences shall befall the State and

its citizens if, at the culmination of

the NWPA process, Yucca Mountain is

indeed utilized as a repository.®

The Court does not discount or

“Cited as "specific examples of direct injury

to Nevada’s sovereign and quasi-sovereign

interests," Nevada discusses the polarization of

the population and political infrastructure, and

the potentially negative influence a repository

would have on the state’s image as a tourist

destination. (#19 at 26-27)

minimize the concerns expressed by

Nevada, but recognizes as well that the

NWPA process is not complete and no final

determination has yet been made as to

the utilization of Yucca Mountain as a

repository. Nevada's allegations of

potential harm are, however, at this time

insufficient to establish that the State

of Nevada has or will subject to actual

injury due to the BLM's action permitting

the DOE to proceed with site

characterization studies at Yucca

Mountain.”

*The BLM’s Reply Memorandum cogently responds

to Nevada’s "specific examples" as follows:

Each [example of "direct injury"] lacks any

referent [sic] in the Complaint . as

The first example also apparently presumes

that Nevada’s sovereign and quasi-sovereian

interests encompass political unanimity

among its citizens and institutions. The

absence of authority for the proposition is

telling. The second example depends upon

the existence of a repository. But BLM’s

decision only authorizes DOE to occupy, use

and develop the public lands to study their

characteristics for a site. If and when a

repositcry may be built is numerous

decisions away, all to be made by agencies

and institutions other than the BLM. The

harm averred, thus, lacks any causality to

the [BLM] decision in question.

(#21, at 25-26, n.5) (emphasis added).

Indeed, the Supreme Court has held

that "when the asserted harm is a

‘generalized grievance' shared in

substantially equal measure by all ora

large class of citizens, that harm alone

normally does not warrant exercise of

jurisdiction." Warth v. Seldin, 422 U.S.

at 499, 95 S.Ct. at 2205. Similarly, in

the context of a state taxpayer challenge

to federal statutes in Flast v. Cohen,

392 U.S. 83, 106, 88 S.Ct. 1942, 1956, 20

L.Ed.2d 947 (1968), the Supreme Court

noted that standing requirements exist so

that courts will not be asked to

adjudicate "generalized grievances about

the conduct of government or the

allocation of power in the Federal

System."

[3] Nevada further alleges that its

interests have been sacrificed at the

alter of political expediencey by the

elected representatives of her sister

states, inasmuch that if the nuclear

waste repository is eventually

established at Yucca Mountain, the

citizens of Nevada will be ata

disproportionate risk of accident. That

a particular federal law, the NWPA is

this case, affects Nevada more

Significantly than her sister stats (some

of which might not be affected at all),

is insufficient to sustain standing.

Allegations of a federal statute's

disproportionate impact has been

considered before in this circuit in the

context of standing requirements. [In

Western Min. Council v. Watt, 643 F.2d

618 (9th Cir. 1981), supra various

plaintiffs sought a declaratory judgment

rendering all or part of the FLPMA

unconstitutional. The plaintiffs argued

that since some states contain less

public land than does California, the

FLPMA injured them as California

taxpayers because it restricted

California's tax base, causing an

increase in the amount of taxes which

plaintiffs had to pay. Id. at 630.

The Ninth Circuit panel affirmed the

district court's dismissal for failure to

state a claim upon which relief could be

granted, on the grounds that the

plaintiffs lacked standing:

The increase in state taxes

allegedly suffered by plaintiffs is

at best a highly generalized injury.

A great many federal statutes

potentially affect the level of

state taxes. Here, plaintiffs'

interest in the effect of the

retention and reimbursement policies

{regarding the administration of

public lands pursuant to FLPMA] on

state taxes is shared in somewhat

differing degrees by the taxpayers

of all states which contain public

lanas. We hold that this interest

is insufficient to give plaintiffs

standing to challenge the

constitutionality of [the FLPM]. We

do not sit to pass judgment on

congressional declarations of policy

which affect plaintiffs cnly in an

attenuated and generalized way.

Plaintiffs must look to the

legislative branch for redress of

such generalized grievances. Id. at

632 (emphasi:s added).

In conclusion, even assuming

arguendo, that the BLM 's action is

violative of the FLPMA and/or the NWPA,

Nevada has nonetheless failed to

demonstrate "actual injury" that is

"fairly traceable" to the challenged

conduct and "likely to be redressed by

the requested relief." The only direct

consequence flowing from the complained

BLM action is that the site

characterization process will proceed to

the next step in accordance with the

NWPA.'? Any potential risks which may be

created by the eventual establishment of

a nuclear waste repository at Yucca

Mountain will be justiciable, if at all,

following the completion of all

The site characterization at Yucca Mountain

must proceed according to the procedural scheme

established by the NWPA, which provide for the

State of Nevada opportunities to monitor the

process, provide input, make recommendations,

receive financial assistance, and appeal. 42

U.S.C. §§ 10134-10137. In sum, numerous steps

mandated by the NWPA prior to the establishment

of a repository at Yucca Mountain have yet to

commence.

preliminary studies conducted and all

procedural steps undertaken, pursuant to

the NWPA.

NEVADA'S PARTICIPATION RIGHTS

UNDER THE NWPA INSUFFICIENT

TO CONFER STANDING TO CHAL-

LENGE BLM ACTION

[4] Nevada asserts that its

oversight role under the NWPA confers

standing to insist that the BLM perform

its duties according to the applicable

statutes. Nevada's Complaint does not

allege a violation of the NWPA. Rather,

Nevada asserts that the BLM's grant of

the ROWR to the DOE violated the FILPMA,

which in turn, prejudices Nevada's

oversight role as provided for in the

NWPA. This contention is without merit.

This Court is cognizant of Nevada ex

rel. Loux v. Herrington, 777 F.2d 529

(9th Cir. 1985) ("Nevada I"), which held

that Nevada had standing to contest DOE's

decision to deny funding for Nevada's

expenditures on studies designed to

evaluate whether Yucca Mountain should be

used aS a repository, and declared

unlawful DOE's guidelines on site

characterization phase grants. The

decision is not, however, inconsistent

with the BLM's contention that Nevada

lacks standing to seek declaratory relief

in this action.

In Nevada I, DOE denied funding for

Nevada's proposed site characterization

studies for fiscal year 1985, relying on

internal guidelines authorized by the

NWPA. The Ninth Circuit panel

appropriately noted that the NWPA

authorized funding for state studies as

soon as the state had been notified that

it hosts a potential site. Nevada I, 777

F.2@ See) @£ 333, Citing 42 U.S.C.

§ 10121(b). The denial of such federal

funds therefore had a "direct and

a”

immediate" effect on Nevada's testing

activities, "discouraging the state from

embarking on the lengthy and detailed

independent site studies that would allow

it to fully evaluate DOE's conclusions."

Id., at 535. The court concluded that

the denial of funds created a dilemma not

contemplated by the NWPA:

The state must therefore choose now

between "disadvantageous compliance

and rising sanctions,"--either to

restrict its testing to those forms

which would be funded under the

Guidelines even though its

evaluation of DOE's studies would

thereby be impaired, or to perform

such testing at its own expense.

Resolution of the Guidelines now

will foster, rather than impede,

effective administration of the Fund

by DOE since DOE's decision to fund

the states' ongoing budget requests

will necessarily be controlled by

the challenged Guidelines.

Id., (citations omitted).

No such “Hobson's choice" confronts

Nevada in this case. The BLM's action at

issue here is simply a step in the site

characterization process authorized by

the NWPA. The BLM grant of the ROWR to

the DOE does not preclude Nevada from

conducting any activity authorized by the

NWPA. If the BLM's action precluded

Nevada from participating in the site

characterization process, Nevada might

well have standing to argue deprivation

of its statutory rights. However, the

BLM's grant of the ROWR to the DOE does

not have any effect that even remotely

prejudices Nevada's right to conduct its

own site studies. As such, the BLM's

action cannot be construed as prejudicing

Nevada's statutory participation rights

in the repository siting process.

Indeed, in Nevada v. Herrington, 827

F.2d 1394 (9th Cir. 1987) ("Nevada II"),

which cogently summarizes the potential

host state's "cooperative and concurrence

role" in the repository siting process

pursuant to the NWPA, Id. at 1397, the

Ninth Circuit denied several states'

(including Nevada's) petition for review

of the DOE's decision that states could

not use grant monies from the Nuclear

Waste Fund to finance their participation

in judicial review proceedings pursuant

to the NWPA:

The states contend that the Janguage

of section 10136 ["Participation of

States"] itself mandates funding for

judicial review because on its face

it authorizes funding of "review" of

[DOE's] activities under the [NWPA].

When we look to the context of the

word "review," however, we find the

more plausible construction of the

word is that it is limited to a

state's independent evaluation of

Siting activities and does not

encompass a court’s review. Section

10136(c)(1)(B) sets forth an

exhaustive list of activities for

which a state may use grant funds.

The express language of this section

provides that ["the Secretary shall

make grants to the State of Nevada

and any affected unit of iocal

government for the purpose of

enabling such State or affected unit

of local government]--(i) to review

activities taken under [this part

(of the NWPA) with respect to the

Yucca Mountain site."] Our

interpretation of this provision as

limited to state review rather than

federal court review is consistent

with the other enumerated activities

specified in the section; activities

involving [Nevada's] information

gathering, evaluation, and

dissemination to its residents. As

we stated in Nevada I, the NWPA's

state participation provisions

authorized "independent oversight

and peer review" by states. Neither

the language of section 10136 nor

its legislative history makes any

reference to judicial review.

The states also contend that funding

for judicial review is mandated by

section 10137(c)(11). That section

provides that the consulation and

cooperation agreement must specify

procedures for resolving a state's

objections "through negotiation,

arbitration, or other appropriate

mechanisms." Petitioners argue that

"other appropriate mechanisms"

include judicial review. This

contention also fails.

: @

This is not to say that the states

have no access to the courts.

Congress provided for judicial

review in section 10139 of the

[NWPA] and the states are free to

challenge DOE's actions pursuant to

this provision.

Id. at 1399, 1400 (footnote,

citation omitted) (emphasis

added) ."'

Nevada's Complaint contains no

allegations that the BLM acted to deny

‘fhe Nuclear Waste Policy Act Amendments of

1987, replaced, inter alia, the general reference

“each State in which a candidate site for a

repository is approved" with "the State of Nevada

and any affected unit of local government. This

change reflects the Congressional intent to focus

on the Yucca Mountain site. This court sees

nothing in the Amendments which would indicate a

change in the Ninth Circuit’s rationale in Nevada

ql.

Nevada any funds authorized by the NWPA.

Morever, Nevada I and Nevada II clearly

indicate that the "cooperative and

concurrence role" in the site

characterization program codified in the

NWPA does not permit Nevada, as the

potential host state of the repository,

to stop the site characterization

process. Rather, the terms of the NWPA

indicate that Congress intended a

parallel system of state and federal

monitoring and planning, which could

culminate in the establishment of a

repository at Yucca Mountain.

In sum, if the BLM's action

precluded Nevada from participating in

the site characterization process, Nevada

might well have standing to argue

deprivation of its statutory rights. The

“While the allegations that Miflin and

Associates are being unlawfully denied access to

Yucca Mountain do implicate a possible violation

of Nevada’s statutory participation rights

codified a’ 42 U.S.C. §§ 10131, 10136, and 10137,

Nevada’s second cause of action is not yet ripe.

(See discussion below.)

BLM's grant of the ROWR to DOE does not,

however, prejudice Nevada s right to

conduct its own site studies. As such,

the BLM cannot be construed as acting to

obstruct Nevada's statutory participation

rights in the repository siting process.

RIGHT-OF-WAY APPLICATION OF

MIFLIN & ASSOCIATES IS

NOT RIPE

[5] Nevada's second cause of action

seeks an order compelling the BLM to

grant a right-of-way permit to Miflin &

Associates, the private firm retained by

Nevada to conduct analysis of Yucca

Mountain as a repository. Miflin's

application for a right-of-way across the

public lands adjacent to Yucca Mountain

is dated September 30, 1987. Miflin

subsequently acknowledged by letter dated

April 25, 1988, that its application was

deficient, as pointed out by the BLM in

previous correspondence. The BLM is

currently considering Miflin's corrected

application.

There has been no final

administrative action on the part of the

BLM. The correspondence through which

the BLM notified Miflin of the

deficiencies in its application, even if

classified as interlocutory procedural

rulings, is not reviewable. Premature

review could lead this Court to

unnecessarily entangle itself "in

abstract disagreements over

administrative policies" or unnecessaril'

interfere with agency decision-making

before the "decision has been formalized

and its effects felt in a concrete way b'

the challenging parties." Maine v.

Herrington, 790 F.2d 8, 9 (1st Cir.

1986), quoting Abbott Laboratories v.

Gardner, 387 U.S. 136, 148-49, 87 S.Ct.

1507, 1515, 18 L.Ed.2d 681 (1967).

Any order by this Court concerning

the processing of Miflin's application

for right-of-way would interfere with, if

not preempt, the BLM's decision-making

process. See State of Cal. Dept. of

Educ. v. Bennett, 833 F.2d 827, 833 (9th

Cir. 1987). Therefore, the Court finds

that Nevada's second cause of action is

not ripe for judicial review.

NO VIOLATION OF NEVADA'S

CONSTITUTIONAL RIGHTS

{6} Nevada's third and fourth

causes of action assert that the BLM's

grant of the ROWR to the DOE, in the face

of Nevada's stated disapproval, violates

the equal footing doctrine, infringes

upon the State's sovereignty, and thereby

infringes on Nevada's rights reserved

under the Tenth Amendment. Nevada fails,

however, to state a claim upon which

relief can be granted.

The Property Clause provides that

"Congress shall have Power to dispose of

and make all needful Rules and

Regulations respecting the Territory or

other Property belonging to the United

States." U.S. Const., Art. IV, § 3, cl.

2. The Supreme Court has "repeatedly

observed" that "'[(t]he power over the

public land thus entrusted to Congress i

without limitations.'" Kleppe v. New

Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285

2291, 49 L.Ed.2d 34 (1976), quoting

United States v. San Francisco, 310 U.S.

16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 105¢

(1940).

This does not mean, however, that

the Property Clause exempts, public lands

from all state regulation. As the Court

in Kleppe explained:

Absent consent or cession a State

undoubtedly retains jurisdiction

over federal lands within its

territory, but Congress equally

surely retains the power to enact

legislation respecting those lands

pursuant to the Property Clause.

And when Congress so acts, the

federal legislation necessarily

overrides conflicting state laws

under the Supremacy Clause.

426 U.S. at 943, 96 S.Ct. at 2293

(citations omitted)

(emphasis added).

Inasmuch as the BLM is authorized,

indeed required, pursuant to the NWPA, to

facilitate the site characterization of

Yucca Mountain, it is likewise

authorized, in accordance with the FLPMA,

to grant a permit to the DOE, a sister

federal agency with access for such

Congressionally mandated purposes.

Consequently, Nevada's approval is not,

as a matter of law, necessary."

As a final matter, Nevada asserts

that the NWPA Amendments of 1987, which

designate Yucca Mountain as the only site

to be studied by the DOE, arose out of a

3Nevada’'s claim that the BLM’s decision

"seriously diminish[es]" its "equal footing and

Tenth Amendment rights" is likewise without

merit. (Complaint, #i 4 3.2 at 10-11). The

BLM’s Motion to Dismiss discusses this adequately

(#15 at 59-66), and this Court only emphasizes

Nevada’s Statehood Act of 1864, in which the then

territory of Nevada declared to "forever disclaim

all right and title to the unappropriated public

lands lying within said territory." 13 Stat. 30

(1864).

political conspiracy between the BLM, th

DOE and Congress designed to isolate

Nevada and render it the unwilling host

of the repository. Consequently, Nevada

argues, the BLM's grant of a ROWR to DOE

is the fruit of the conspiracy, thereby

enabling Nevada to assert a claim for

relief based on deprivation of the equal

footing doctrine and the Tenth Amendment

Nevertheless, it is well establishe

that the Tenth Amendment limits on

Congress!' authority to regulate state

activities are "structural, not

substantive--i.e., that States must find

their protection from congressional

regulation through the national politica

process, not through judicially defined

spheres of unregulable state activity."

South Carolina v. Baker, y.8. P

108 S.Ct. 1355, 1360, 99 L.Ed.2d 592

(1988), citing Garcia v. San Antonio

Metropolitan Transit Authority, 469 U.S.

528, 537-554, 105 &.Ct. 1005, 1010-1019,

83 L.Ed.2d 1016 (1985).

In South Carolina v. Baker, the

state contended that the political

process failed because Congress enacted a

provision to the Internal Revenue Code

which adversely affected state and local

government bonds. In rejecting this

argument, the Supreme Court stated:

Although Garcia left open the

possibility that some extraordinary

defects in the national political

process might render congressional

regulation of state activities

invalid under the Tenth Amendment,

the Court in Garcia had no occasion

to identify or define the defects

that might lead to such

invalidation. Nor do we attempt any

definitive articulation here. It

suffices to observe that South

Carolina has not even alleged that

it was deprived of any right to

participate in the national

political process or that it was

Singled out in a way that left it

politically isolated and powerless

. [NJothing in Garcia or the

Tenth Amendment authorizes courts to

second-guess the substantive basis

for congressional legislation.

Where, as here, the national

political process did not operate in

a defective manner, the Tenth

Amendment is not implicated. 108

S.Ct. 1355 at 1360-61 (emphasis

added).

[7] In this case, Nevada asserts

that it was singled out by a political

conspiracy "“render[{ing] Nevada, a

politically weak state, defenseless to

the interests of the other 49 states

-" (#1, 93.2, at 10). Nevada

offers as proof of this alleged

conspiracy the fact that no member of its

congressional delegation was present at

certain committee meetings at which the

NWPA Amendments of 1987 were promulgated.

There is no indication, however, that

Nevada lawmakers were inappropriately

denied the opportunity to contribute

input or otherwise participate.

Consequently, this court cannot conclude

that the promulgation of national

legislation affecting one state in a

particular manner is sufficient to

establish an "extraordinary defect in the

national political process," sufficient

to implicate a violation of the

Constitution."

CONCLUSION

This court must concur with the

BLM's summation of its Motion to Dismiss,

which boils down Nevada's Complaint to

its essence:

[n]judicial opinion exists holding

that the Congress' power to decide

-when, where, how and whom may use

the public lands is so coterminous

with a state's sovereignty that the

federal government's needful

regulation must, as a matter of

constitutional law, depend upon a

state's consent. Consequently,

Nevada may not abrogate its binding

agreement [Statehood Act] forever

disclaiming any right to interfere

with Congress' needful regulation of

the public lands. Neither under the

equal footing doctrine with the

other states, nor otherwise, does

Nevada have any right reserved to it

that requires the BLM to obtain the

state's consent before allowing the

i4Moreover, Nevada’s challenge under the

Tenth Amendment is directed solely at the NWPA

Amendments of 1987, which designate Yucca

Mountain as the sole study site. Consequently,

this court is without jurisdiction, since

Congress vested original and exclusive

jurisdiction over such matters arising under the

NWPA with the courts of appeal. 42 U.S.C. §

10139(a)(1)(C) (1982); General Elec. Uranium v.

U.S. Dept. of Energy, 764 F.2d 896, 901-02 (D.C.

Circ. 1965). ~

4 i

Department of Energy to occupy and

use public lands for a purposes

Congress itself mandates. BLM's

Motion to Dismiss (#15 at 66).

IT IS THEREFORE ORDERED THAT the

State of Nevada's Complaint (#1) is

DISMISSED.

BLM ORDER OF JANUARY 6, 1988

Certified Mail

Return Receipt Requested

oe ae oe a

State of Nevada :

Office of the : Right-of-Way

Attorney General 4

Capitol Complex : .

Carson City, NV 89710:

OBJECTIONS DISMISSED

RIGHT-OF-WAY GRANTED

By right-of-way reservation pursuant to

Section 507 of the Federal Land Policy

and Management Act of 1976 (90 Stat.

2781, 43 U.S.C. 1767), the Bureau of Land

Management (BLM) has authorized to the

Department of Energy (DOE) the use of

public lands in Bullfrog county for site

characterization studies. The

reservation to DOE was granted on this

date. A copy of the reservation document

is enclosed.

The State of Nevada is hereby notified of

this action because it has objected to

the issuance of a right-of-way in lieu of

a withdrawal of the lands for the

project. The objection is dismissed and

the right-of-way has been granted.

The issuance of this right-of-way grant

constitutes a final decision by the BLM

in this matter. You have the right of

appeal to the Board of Land Appeals,

Office of the Secretary in accordance

with the regulations in 43 CFR Part

4.400. If an appeal is taken the notice

of appeal must be filed in the Nevada

State Office of BLM (not the Office of

the Board) within thirty (30) days of

receipt of the decision appealed from, so

that the case file can be transmitted to

the Board. The notice may contain a

statement of reasons for the appeal but

if not, such a statement must be filed

with the Board (Address: Board of Land

Appeals, Office of the Secretary,

Department of the Interior, 4015 Wilson

Boulevard, Arlington, Virginia 22203)

within thirty (30) days after the notice

was filed. Additionally, the appellant

must serve a copy of the notice of appeal

and of any reasons, written arguments, or

briefs on the Regional Solicitor, Pacific

Southwest Region (Address: U.S. Dept. of

the Interior, 2800 Cottage Way, Room E-

2753, Sacramento, CA 95825) and each

adverse party named in the decision

appealed from, in the manner prescribed

in Sec. 4.401(c), not later than fifteen

(15) days after filing the document. To

avoid summary dismissal of the appeal,

there must be strict compliance with the

regulations. The appellant has the

burden of proof by positive and

_substantial evidence wherein the decision

appealed from is in error.

Edward F. Spang

State Director, Nevada

2 Enclosures

1. Copy of Reservation

2. Appeal Information Form 1842-1

cc: State of Nevada,

Nuclear Waste Project

(w/fenclosure) Certified Mail

bcc: Director (321), Room 3643,

MIB (w/enclosure)

DM, Las Vegas (w/enclosure)

DOE, Waste Management

Project Office,

Nevada Operations Office

JMOFFITT;DMR;12/22/87

COMPLAINT

BRIAN MCKAY, ATTORNEY GENERAL

STATE OF NEVADA

Harry W. Swainston, Deputy Attorney

General

Capitol Complex

1802 N. Carson St., Suite 252

Carson City, NV 89710

(702) 885-5866

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

e® & *®

THE STATE OF NEVADA Civ. No.

Plaintiff,

COMPLAINT FOR

- MANDAMUS,

Vv. INJUNCTIVE AND

DECLARATORY

RELIEF AND FOR

JUDICIAL REVIEW

]

ROBERT F. BURFORD, }

Director, ]

Bureau of Land ]

Management, ]

Department of ]

Interior, ]

EDWARD F. SPANG, }

Nevada State ]

Director, Bureau of ]

Land Management, ]

Department of ]

Interior, ]

]

Defendants.

—

Plaintiff alleges:

FIRST CAUSE OF ACTION

1.1 The jurisdiction of this Court

arises under 28 U.S.C. § 1331, 28 U.S.C.

§ 1361, 28 U.S.C. §§ 2201-2202, and

5 U.S.C. §§ 702-706, as hereinafter sare

fully appears.

28 U.S.C. § 1331 provides that the

District Courts shall have original

jurisdiction of all civil actions arising

under the Constitution, laws or treaties

of the United States.

28 U.S.C. § 1361 provides that the

District Courts shall have original

jurisdiction of any action in the nature

of mandamus to compel an officer or

employee of the United States to perform

a duty owed to the Plaintiff.

28 U.S.C. § 2201 provides that ina

case of actual controversy within its

jurisdiction any Court of the United

States, upon the filing of an appropriate

pleading, may declare the rights and

other legal relations of any interested

party seeking such declaration.

5 U.S.C. § 702 provides that a

person suffering legal wrong because of

agency action is entitled to judicial

review thereof and an action seeking

specific relief may not be dismissed nor

relief be denied on the ground that it is

against the United States or that the

United States is an indispensable party.

5 U.S.C. § 706 provides that the

reviewing court shall interpret and

decide the relevant question of law and

compel agency action unlawfully withheld

Or unreasonably delayed and hold unlawful

and set aside agency action under certain

listed circumstances of unlawfulness.

1.2 This action arises under federal

common law; the equal-footing doctrine;

Article I, § 8, cl. 17 of the

Constitution; Article IV, § 3 of the

Constitution; the Fifth and Tenth

Amendments to the Constitution, the

Federal Land Policy And Management Act of

1976 (FLPMA), 43 U.S.C. § 1701, et seq.;

the National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. §§ 4321, et seg.;

the Classification and Multiple Use Act

of 1964, 43 U.S.C. § 1411-15 (now

expired); the Mining Law of 1872, as

amended 30 U.S.C. § 21, et seg.; the

Minerais Leasing Act of 1920, 30 U.S.C.

§§ 49, 50, 181 et segq.; the Mining and

Mineral Policy Act of 1970, 30 U.S.C.

§ 2la; the Geothermal Steam Act, 30

U.S.C. §§ 1001-1025; the Nuclear Waste

Policy Act of 1982 (NWPA), 42 U.S.C.

§ 10101, et seg., as amended by the

Nuclear Waste Policy Act Amendments Act

of 1987, Title V, Pub. L. 100-203; anda

the Atomic Energy Act of 1954, 42 U.S.C.

§§ 2011, et seg.

1.3 Plaintiff State of Nevada brings

this action in its sovereign capacity,

its proprietary capacity and as parens

patriae of its citizens.

1.4 Plaintiff State of Nevada is a

sovereign State of the United States. Or

February 2, 1983, the Governor and

Legislature of the State of Nevada were

notified pursuant to Section 116(a) of

the Nuclear Waste Policy Act of 1982

(NWPA), 42 U.S.C. § 10136, that a

repository for the disposal and storage

of high-level radioactive waste and spent

nuclear fuel may be located in a tuff

medium at Yucca Mountain in southeastern

Nevada. On December 21, 1987 the

Congress enacted the Omnibus Budget

Reconciliation Act of 1987, Pub. L. 100-

203. Title V of the Act contains the

Nuclear Waste Policy Amendments Act of

1987 (NWPAA). In the 1987 amendments

Congress selected the Yucca Mountain site

as the only site to be characterized for

possible development as a repository

Site. Congress, however, did not

withdraw, segregate or set aside the

Yucca Mountain site from the public

lands. General provisions of law were,

therefore, to remain applicable for this

purpose.

1.5 The Plaintiff State of Nevada, has

oversight and monitoring responsibility

for the Department of Energy's program to

characterize the site and, if

subsequently selected, for the

construction of a high-level nuclear

waste repository at Yucca Mountain,

Nevada. The State's oversight role

extends to agency action by the BLM

insofar as it affects site

characterization.

1.6 Defendant Rcbert F. Burford is the

duly appointed, qualified and acting

Director of the Bureau of Land

Management, Department of Interior.

Defendant Edward F. Spang is the Nevada

State Director of the Bureau of Land

Management, Department of Interior.

Section 120 of the NWPA, 42 U.S.C.

§ 10140, requires Defendants Burford and

Spang to expedite the issuance of

appropriate authorizations for land use

in connection with the characterization

of Yucca Mountain "to the extent

permitted by the applicable provisions of

law administered by such agency or

officer."

1.7 Officials of the Department of

Energy, on or about November 23, 1987,

filed an Application For Transportation

And Utility Systems And Facilities On

Federal Lands (Form 299) with the Nevada

Bureau of Land Management Office seeking

a right-of-way reservation to perform

Site characterization studies at the

Yucca Mountain site.

1.8 On January 6, 1988, Defendant Edward

F. Spang granted the Department of

Energy's application for a right-of-way

reservation (ROWR) pursuant to presumed

authority in Section 507 of FLPMA despite

the Nevada Attorney General's vigorous

opposition to an approval of a ROWR and

his contention that a withdrawal

established pursuant to the substantive

and procedural provisions of FLPMA is the

only appropriate land use instrument to

establish an appropriate land status in

advance of site characterization. The

Attorney General further contended in

written memoranda that the withdrawal

must be established with Congressional

approval and the Nevada Legislature's

consent as required by Article I, § 8,

cl. 17. He argued that a withdrawal with

these legislative approvals was the only

instrument under the circumstances and

the law by which Defendants could

authorize land use for the proposed site

characterization activities.

1.9 On February 5, 1988, the State of

‘

Nevada and its Nuclear Waste Project

Office, represented by the Nevada

Attorney General, timely filed a Notice

of Appeal of Defendant Spang's decision

with Spang's office, thereby initiating

an appeal before the Department of

Interior Board of Land Appeals. The

State of Nevada has determined that

resort to the Board of Appeals process

would be futile because the 18-month to

24-month backlog of cases before the

administrative tribunal would render a

favorable decision too late to be an

effective remedy. Furthermore, the legal

question of whether a right-of-way

reservation is an appropriate authorizing

instrument has been decided by the Bureau

adverse to the State's position and it is

unlikely that a change in the agency's

interpretation of law will be provided by

the Board of Land Appeals. The legal

question, in the final analysis, is for

the federal courts to make.

1.10 A case or controversy now exists

between the State of Nevada and the

Defendant officials of the BLM involving

their issuance of the ROWR to the

Department of Energy.

1.11 A case with overlapping issues is

pending in the Ninth Circuit Court of

Appeals against the Secretary of Energy

styled Stace of Nevada, et al. v. John

Herrington, Secretary of the United

States Department of Energy, Case No. 86-

7308, alleging his failure to seek a

withdrawal and, contemporaneously, the

Nevada Legislature's conse it as required

by the NWPA, the Nuclear Regulatory

Commission regulations in 10 C.F.R.

S GOvies Ore Brescie I, § 8, cl. 17.

1.12 The primary litigable issue in the

present complaint which does not overlap

ee hl

the issues in Nevada, et al. v.

Herrington, supra, involves the validity

of an ROWR as the authorizing instrument

for DOE Site characterization activities.

The State contends that the Defendants'

aperovel of the ROWR is not authorized by

FLPMA or any other lawful authority

including any of the lawfully established

administrative regulations which concern

the granting of ROWR's in 43 C.F.R.

§ 2800. Furthermore, the Defendants'

approval of the ROWR constitutes either

an unlawful defacto reclassification of

public land in violation of FLPMA or an

unlawful defacto withdrawal of public

land, also in violation of FLPMA.

Defendant Burford is presently enjoined

from altering land use classifications

inconsistent with classifications

existing on January 1, 1981 without

compliance with the procedural and

substantive requirements of FLPMA. See

National Wildlife Federation v. Robert R.

Burford, U.S.D.C. District of Columbia,

Civil Action No. 85-2238, affirmed, 8235

F.2d 305 (DC Cir. 1987). Defendant

Burford is also prohibited from

maintaining defacto withdrawals. See

e.g., Mountain State Legal Foundation v.

Andrus, 499 F. Supp. 383 (D. Wyo. 1980).

1.13 The 51,789 acres included within the

BLM manayed public land portion of the

ROWR are presently classified pursuant to

the ‘Classification and Multiple Use Act

of 1964, 43 U.S.C. §§ 1411-18, and the

regulations in 43 C.F.R. 2410 and 2411,

for multiple-use management. See Notice

of Classification of Public Lands, Serial

Number N-1574 dated February 27, 1970

attached hereto as Exhibit "A." Numerous

mining claims have been filed consistent

with this classification, some of which

are on tke top of Yucca Mountain on sites

which the Secretary of Energy proposes to

use for site characterization purposes.

Other mining claims may also be

anticipated. As the lands are within a

known geothermal resource area,

geothermal exploration and leasing .

activity may be anticipated. Site

characterization activities as planned by

the DOE are inconsistent with the current

classifications.

“1.14 An ROWR is a legally defective

instrument for authorizing site

characterization. Site characterization

is an extensive investigative process

involving mining operations and surface

and subsurface exploration iwelving

geological, hydrological, geophysical,

geochemical, paleoclimatic, and

meteorological studies which physically

put people and equipment a thousand to

two thousand feet below the surface of

the geologic formation to evaluate the

Site to determine its potential

capability for meeting the requirements

for a repository. Two exploratory

shafts, 12 feet in diameter, whose walls

will be encased with concrete two feet

thick, 1100 and 1480 feet deep, are part

of site characterization. These shafts,

connecting drifts and the breakout rooms

will become a part of the repository if

it is eventually authorized and

constructed. Site characterization will

extend over a period of several years and

will cost in excess of one billion

dollars. Section 507 of FLPMA did not

authorize a right-of-way permit for the

extensive disruption to the surface and

subsurface and interference with multiple

use necessarily included in the site

characterization process.

1.15 The ROWR authorization to the

Department of Energy is defective for the

additional reason that it does not

legally describe all of the lands which

the Department of Energy will need for

characterization purposes. Sections 10,

11, 14, 415, 22, 23, 26, 27 end 36 of

Township 12S, Range 49E, Mount Diablo

Meridian, unsurveyed, were omitted.

1.16 The adoption by Defendants of the

Department of Energy's Environmental

Assessment (DOE/RW 0073) which was

required by the NWPA in connection with

the Secretary of Energy's recommendation

of the Yucca Mountain site to the

President on May 28, 1986 for site

characterization is unlawful as it does

not satisfy the BLM's NEPA

responsibility. The DOE's environmental

assessment addresses only items i-vi of

Section 112(b)(1)(D) of NWPA, 42 U.S.C.

§ 10132, and need not and does not

otherwise comply with NEPA. The

nomination environmental assessment is

presently being contested in Nevada, et

al. v. Herrington, Case No. 86-7309,

before the Ninth Circuit Court of

Appeals. The State contends in that

action that the environmental assessment

is null and void.

1.17 Section 112(b)(1)(D), 42 U.S.C.

§ 10132, of the NWPA requires that an

environmental assessment evaluate whether

the Yucca Mountain site is suitable for

development as a repository under each

guideline in 10 C.F.R. Part 960 that does

not require site characterization as a

prerequisite for application of such

guideline. The State contends that the

guideline in 10 C.F.R. 960.5-2-2 relating

to site ownership and control requires a

determination in advance of

characterization that the DOE can obtain

"in accordance with the requirements of

10 C.F.R. 60.121, ownership, surface and

subsurface rights, and control of access

that are required » « eo™ —Tie

determination that leaves the actual

withdrawal and acquisition of State

Legislative consent to a point in time

after site characterization arbitrarily

jeopardizes the expenditure of billions

of dollars of the ratepayers'

contributions to the Nuclear Waste Fund

created by Section 302(c) of the NWPA. A

further pre-site characterization

requirement of 10 C.F.R. 60.121 relates

to the acquisition of water rights for

Site characterization. Without a land

withdrawal there is no assurance that the

water necessary for site characterization

may be obtained.

1.18 Plaintiff is entitled to an order in

the nature of a Writ of Mandamus to

compel Defendant officials to rescind the

January 6, 1988 ROWR awarded to the

Department of Energy for site

characterization purposes.

SECOND CAUSE OF ACTION

2.1 Plaintiff incorporates herein by

reference the allegations of Paragraphs

1.1 through 1.18 of its First Cause of

Action.

2.2 While an ROWR is decidedly an

improper authorization for the Department

of Energy's activities, it is appropriate

under FLMPA to authorize the limited

activities of a private enterprise.

Defendant Spang has arbitrarily and

unlawfully refused to grant the State of

Nevada's contractor, Mifflin a

Associates, access to the Yucca Mountain

Site for purposes of geologic and

hydrologic testing in connection with the

State's oversight role. Copies of the

application filed by Mifflin and

Associates with the BLM is attached

hereto as Exhibit "B."

2.3 Plaintiff is entitled to an order in

the nature of a Writ of Mandamus to

compel Defendant officials to grant the

State of Nevada's contractor, Mifflin and

Associates, a right-of-way permit to

permit access for site characterization

studies as a part of the State's

oversight and monitoring function.

THIRD CAUSE OF ACTION

3.2 Plaintiff incorporates herein by

reference the allegations of Paragraphs

1.1. through 1.18 of its First Cause of

Action and Paragraphs 2.2 and 2.3 of its

Second Cause of Action.

3.2 The acts of Defendants raise

constitutional issues of the highest

order involving the land-holding function

of the United States. The Defendants

have conspired with the Department of

Energy Officials to create a fait

accompli in which the State of Nevada's

political right to object to its |

selection as the host for a repository

for the nation's spent nuclear fuel rods

is rendered meaningless. The object of

their conspiracy is to render Nevada, a

ate

politically weak State, defenseless to

the interests of the other 49 states in

solving a purely commercial problem at

the expense of Nevada which has played no

part in creating the problem. Unless the

Defendants are permanently restrained and

enjoined, Nevada's equal footing and

Tenth Amendment rights will be seriously

diminished to the detriment of Nevada and

the Union of States.

FOURTH CAUSE OF ACTION

4.1 Plaintiff incorporates herein by

reference the allegations of Paragraphs

1.1 through 1.18 of the First Cause of

Action, Paragraphs 2.2 and 2.3 of the

Second Cause of Action, and Paragraph 3.2

of the Third Cause of Action.

4.2 Plaintiff desires a judicial

determination of her rights and duties

and those of Defendants and a declaration

as to whether Defendant officials may

authorize, maintain and administer an

ROWR in favor oi the Department of Energy

for site characterization of Yucca

Mountain.

4.3 Plaintiff State of Nevada is

entitled to a decree which declares that

the action of the Defendants is null and

void for the reasons that the nature and

degree of infringement upon an

unconsenting state's sovereignty and

equal footing under the circumstances of

this case and particularly upon Nevada's

sovereignty and equal footing is not

authorized by any power exercisable under

the Constitution.

PRAYERK FOR RELIEF

WHEREFORE, with respect to

Plaintiff's First Cause of Action,

Plaintiff prays for relief as follows:

a. For an order requiring

Defendant officials to rescind the

January 6, 1988 ROWR granted to the

Department of Energy.

—

With respect to Plaintiff's Second

Cause of Action, Plaintiff prays for

relief as follows:

2 For an order directing

Defendant officials to grant Mifflin and

Associates ROW permit.

With respect to Plaintiff's Third

Cause of Action, Plaintiff prays for

relief as follows:

3. For an order enjoining

Defendant officials from conspiring with

Department of Energy officials to permit

access and public land usage which entail

an unlawful infringement upon Nevada's

constitutional and political rights to

ee on an equal footing with

member states of the Union.

With respect to Plaintiff's Fourth

Cause of Action, Plaintiff prays for

relief as follows:

4. For a declaration of the rights

and duties of the parties with respect to

federal land-holding and land usage

relative to the authorization of public

land usage for site characterization

activities by the Department of Energy

based upon the facts and circumstances of

this case, for a declaration of the

constitutionality of the FLPMA, NWPA, and

NWPAA to the extent these statutes are

relied upon for the land use

authorization and for a declaration that

the January 6, 1988 ROWR is null and

void.

With respect to all causes of

action, Plaintiff prays for relief as

follows:

4.5} For costs of suit herein;

and

5.[6] For such other and further

relief as to the Court appears equitable

and proper.

Respectfully submitted this 24th day

of March, 1988.

OF COUNSEL: BRIAN MCKAY

ATTORNEY GENERAL

Malachy R. Murphy BY: Js/

James H. Davenport Harry W. Swainston

Special Deputy Deputy

Attorneys General Attorney General

DURYEA, MURPHY,

DAVENPORT & VAN WINKLE

Evergreen Plaza Bldg.

711 Capital Way

Olympia, WA 98501 Attorneys for

Plaintiff

(206) 754-6001 STATE OF NEVADA

CONSTITUTIONAL PROVISIONS

PROPERTY CLAUSE, Art. IV, § 3, cl. 2.

The Congress shall have Power to dispose

of and make all needful Rules and

Regulations respecting the Territory or

other Property belonging to the United

States; and nothing in this Constitution

shall be so construed as to Prejudice any

Claims of the United States, or of any

particular State.

FEDERAL ENCLAVE CLAUSE, Art. I, § 8,

C2. if.

To exercise exclusive Legislation in ail

Cases whatsoever, over such District (not

exceeding ten Miles square) as may, by

Cession of particular States, and the

acceptance of Congress, become the Seat

of the Government of the United States,

and to exercise like Authority over all

Places purchased by the Consent of the

Legislature of the State in which the

Same shall be, for the Erection of Forts,

Magazines, Arsenals, dock-Yards, and

other needful Buildings;

NATIONAL ENVIRONMENTAL POLICY ACT

Section 102(2)(C), 42 U.S.C. §4332(2) (C)

Cooperation of agencies; reports

availability of information;

recommendations; international and

national coordination of efforts

The Congress authorizes and directs

that, to the fullest extent possible:

(1) the policies, regulations, and public

laws of the United States shall be

interpreted and administered in

accordance with the policies set forth in

this chapter, and (2) all agencies of the

Federal Government shall--

(A) utilize a systematic,

interdisciplinary approach which will

insure the integrated use of the natural

and social sciences and the environmental

design arts in planning and in

decisonmaking which may have an impact on

man's environment;

(B) identify and develop methods and

procedures, in consultation with the

Council on Environmental Quality

established by subchapter II of this

chapter, which will insure that presently

unquantified environmental amenities and

values may be given appropriate

consideration in decisionmaking along

with economic and technical

considerations;

Or report on proposals for legislation

and other major Federal actions

Significently affecting the quality of

the human environment, a detailed

statement by the responsible official on-

(i) the environmental impact of

the proposed action,

(ii) any adverse environmental

effects which cannot be avoided should

the proposal be implemented,

(iii) alternatives to the

proposed action,

(iv) the relationship between

local shcrt-term uses of man's

environment and the maintenance and

enhancement of long-term productivity,

and

(v) any irreversible and

irretrievable commitments of resources

which would be involved in the proposed

action should it be implemented.

Prior to making any detailed statement,

the responsible Federal official shall

consult with and obtain the comments of

any Federal agency which has jurisdiction

by law or special expertise with respect

to any environmental impact involved.

Copies of such statement and the comments

and views of the appropriate Federal,

State, and local agencies, which are

authorized to develop and enforce

environmental standards, shall be made

available to the President, the Te

on Environmental Quality and to the

public as provided by section 552 of

title 5, and shall accompany the proposal

through the existing agency review

processes;

ee ee

NUCLEAR WASTE POLICY ACT”

FINDINGS AND PURPOSE

SEC. 111, 42 USC 10131. FINDINGS. (a) The

Congress finds that--

(1) radioactive waste creates potential

risks and requires safe and

environmentally acceptable methods of

disposal;

(2) a national problem has been created

by the accumulation of (A) spent nuclear

fuel from nuclear reactors; and (B)

radioactive waste from (i) reprocessing

of spent nuclear fuel; (ii) activities

related to medical research, diagnosis,

and treatment; and (iii) other sources;

“The Nuclear Waste Policy Act, as Amended,

is voluminous. Sections of the Act which are

necessary for an understanding of the Petition

For Writ Of Certiordari are reproduced in this

Appendix. Some sections presented were either

amended in 1987 or added to the Nuclear Waste

Policy Act at that time. The amended language

and new provisions are indicated by

underlineation. Language of the 1982 Act which

was deleted is represented by interlineations.

As presented, the 1982 version of the United

States Code is set forth if the amendments are

disregarded. The 1982 version as amended by

Supplement V, 1987 is set forth by the

amendments.

(3) Federal efforts during the past 30

years to devise a permanent solution to

the problems of civilian radioactive

waste disposal have not been adequate;

(4) while the Federal Government has the

responsibility to provide for the

permanent disposal of high-level

radioactive waste and such spent nuclear

fuel as may be disposed of in order to

protect the public health and safety and

the environment, the costs of such

disposal should be the responsibility of

the generators and owners of such waste

and spent fuel;

(5) the generators and owners of high-

level radioactive waste and spent nuclear

fuel have the primary responsibility to

provide for, and the responsibility to

pay the costs of, the interim storage of

such waste and spent fuel until such

waste and spent fuel is accepted by the

Secretary of Energy in accordance with

cai iaaaaiiaiiaaaaet

the provisions of this Act;

(6) State and public participation in the

planning and development of repositories

is essential in order to promote public

confidence in the safety of disposal of

such waste and spent fuel; and

(7) high-level radicactive waste and

spent nuclear fuel have become major

subjects of public concern, and

appropriate precautions must be taken to

ensure that such waste and spent fuel do

not adversely affect the public health

and safety and the environment for this

or future generations.

(b) PURPOSES. The purposes of this

Subtitle are--

(1) to establish a schedule for the

siting, construction, and operation of

repositories that will provide a

reasonable assurance that the public and

the envilonment will be adequately

protected from the hazards posed by high-

level radioactive waste and such spent

nuclear fuel as may be disposed of ina

repository;

(2) to establish the Federal

responsibility, and a definite Federal

policy, for the disposal of such waste

and spent fuel;

(3) to define the relationship between

the Federal Government and the State

governments with respect to the disposal

of such waste and spent fuel; and

(4) to establish a Nuclear Waste Fund,

composed of payments made by the

generators and owners of such waste and

spent fuel, that will ensure that the

costs of carrying out activities relating

to the disposal of such waste and spent

fuel will be borne by the persons

responsible for generating such waste and

spent fuel.

SITE CHARACTERIZATION

SEC. 113, 42 USC 10133. (a)IN GENERAL.

The Secretary shall carry out, in

accordance with the provisions of this

section, appropriate site

characterization activities at the Yucca

Mountain site. beginning—-withthe

eandidate sites that have been _appreved

under seetion 10132 and are _ieeated in

varieus—gesiegqie_-media. The Secretary

shall consider fully the comments

received under subsection (b) (2) and

section 10132(b)(2) and shall, to the

maximum extent practicable and in

consultetion with the Governor of the

State of Nevada State—invetved—_er—the

; — _ =f : 13

tribe—_invetyved, conduct site

characterization activities in a manner

that minimizes any significant adverse

environmental impacts identified in such

comments or in the environmental

assessment submitted under subsection

(b) (1) of this section.

(b) COMMISSION AND STATES. (1) Before

proceeding to sink shafts at the Yucca

Mountain site any—eandidate site, the

Secretary shall submit for such candidate

site to the Commission and to the

Governor or legislature of the State of

Nevada either-the Geverner—and

their review and comment-(A) a general

plan for site characterization activities

to be conducted at such candidate site,

which plan shall include--

(1) a description of such candidate

site;

(11) a description of such site

characterization activities,

including the following: the extent

of planned excavations, plans for

any onsite testing with radioactive

Or nonradioactive material, plans

for any investigation activities

that may affect the capability of

such candidate site to isolate high-

level radioactive waste and spent

nuclear fuel, and plans to control

any adverse, safety-related impacts

from such site characterization

activities;

(iii) plans for the decontamination

and decommissioning of such

canaidate site, and for the

mitigation of any significant

adverse environmental impacts caused

by site characterization activities

if it is determined unsuitable for

application for a construction

authorization for a repository;

(iv) criteria to be used to

determine the suitability of such

candidate site for the location of a

repository, developed pursuant to

section 10132(a) of this title; and

(v) any other information required

by the Commission;

(B) a description of the possible form or

packaging for the high-level radioactive

waste and spent nuclear fuel to be

emplaced in such repository, a

description, to the extent practicable,

of the relationship between such waste

form or packaging and the geologic medium

of such site, and a description of the

activities being conducted by the

Secretary with respect to such possible

waste form or packaging or such

relationship; and

takes into account likely site-specific

requirements.

(2) Before proceeding to sink shafts at

the Yucca Mountain site at—any—eandidate

site, the Secretary shall (A) make

available to the public the site

characterization plan described in

paragraph (1); and (B) hold public

hearings in the vicinity of such

candidate site to inform the residents of

the area in which such candidate site is

located of such plan, and to receive

their comments.

(3) During the conduct of site

characterization activities at the Yucca

Mountain site a-eandidate-site, the

Secretary shall report not less than once

every 6 months to the Commission and to

either the Governor and legislature of

the State of Nevada the State—in whieh

such -eandidate site tecated,—eorthe

tribe where such candidate site 1s

teeated,—as_the—case maybe, on the

nature and extent of such activities and

the information developed from such

activities.

conduct at any—eandidate—-site the Yucca

Mountain site only such site

characterization activities as the

Secretary considers necessary to provide

the data required for evaluation of the

suitability of such eandidate site for an

application to be submitted to the

Commission for a construction

authorization for a repository at such

eandidate site, and for compliance with

the National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.).

(2) In conducting site characterization

activities--

(A) the Secretary may not use any

radioactive material at a candidate site

unless the Commission concurs that such

use is necessary to provide data for the

preparation of the required environmental

reports and an application for a

construction authorization for a

repository at such eandidate site; and

(B) if any radioactive material is used

at a eandidate site--

(i) the Secretary shall use the

minimum quantity necessary to

determine the suitability of such

eandidate site for a repository, but

in no event more than the curie

equivalent of 10 metric tons of

spent nuclear fuel; and

(ii) such radioactive material shall

be fully retrievable.

‘tab 13 - :

eenstruetion_avtherizgatieon fera

repesitery,—the-seeretary—shait take

reasenable—and necessary steps _tereetain

Aen £5

adverse environmental _impaects_eaused by

. , re

(3) If the Secretary at any time

determines the Yucca Mountain site to be

unsuitable for development as a

repository, the Secretary shall--

(A) terminate all site characterization .

activities at such site;

(B) notify the Congress, the Governor and

legislature or Nevada of such termination

and the reasons for such termination;

waste, spent nuclear fuel, or other

radioactive materials at or in such site

as promptly as practicable;

(D) take reasonable and necessary steps

to reclaim the site and to mitigate any

significant adverse environmental impacts

caused by site characterization

activities at such site;

(E) suspend all future benefits payments

under subtitle F with respect to such

site; and

(F) report to Congress not later than 6

months after such determination the -

Secretary's recommendations for further

action to assure the safe, permanent

disposal of spent nuclear fuel and high-

level radioactive waste, including the

need for new legislative authority.

(d) PRELIMINARY ACTIVITIES. Each

activity of the Secretary under this

section that is in compliance with the

provisions of subsection (c) shall be

considered a preliminary decisionmaking

activity. No such activity shall require

the preparation of an environmental

impact statement under section 102(2) (C)

of the National Environmental Policy Act

of 1969 (42 U.S.C. 4332(2)(C), or to

require any environmental review under

Subparagraph (E) or (F) of section 102(2)

of such Act.

SITE APPROVAL AND CONSTRUCTION

AUTHORIZATION

SEC. 114, 42 USC 10134. (a)HEARINGS AND

PRESIDENTIAL RECOMMENDATION. (1) The

Secretary shall hold public hearings in

the vicinity of the Yucca Mountain site

eaeh site under eensideration fer

purposes of informing the residents of

the area in -whieh—-suehsite—_is—_leeated of

such consideration and receiving their

comments regarding the possible

recommendation of such site. If, of upon

completion of such hearings and

completion of site characterization

activities at the Yucca Mountain site net

; ida +4 : Ky Cj

prepesed repesitery,er_fromatlt_efthe

eharecterized sites for thedevetopment

ef—subsequentrepesiteries, under section

10133 of this title, the Secretary

decides to recommend approval of such

Site to the President, the Secretary

shall notify the Governor and legislature

of the State of Nevada tm—whiehR -sueh site

decision. No sooner than the expiration

of the 30-day period following such

notification, the Secretary shall submit

to the President a recommendation that

the President approve such site for the

development of a repository. Any such

recommendation by the Secretary shall be

based on the record of information

developed by the Secretary under section

10133 of this title and this section,

including the information described in

Subparagraph (A) through subparagraph

(G). —itrn-making site +reeonmmendatiens and

—— eer ee a ne }

Fadieactive—-waste. Together with any

recommendation of a site under this

paragraph, the Secretary shall make

available to the public, and submit to

the President, a comprehensive statement

of the basis of such recommendation,

101

including the following:

(A) a description of the proposed

repository, including preliminary

engineering specifications for the

facility;

(B) a description of the waste form or

packaging proposed for use at such

repository, and an explanation of the

relationship between such waste form or

packaging and the geologic medium of such

site;

site characterization activities,

relating to the safety of such site;

(D) a final environmental impact

statement prepared pursuant to subsection

(f) and the National Environment Policy

Act of 1969 (42 U.S.C. 4321 et seq.),

together with comments made concerning

such environmental impact statement by

the Secretary of the Interior, the

Council on Environmental Quality, the

102

Administrator, and the Commission, except

that the Secretary shall not be required

in any such environmental impact

statement to consider the need for a

repository, the alternatives to

geological disposal, or alternative sites

to the Yucca Mountain site; and—imeluding

—rer _s ud , , '

103

alternatives ts aeotegie dispesatt

(E) preliminary comments of the

Commission concerning the extent to which

the at-depth site characterization

analysis and the waste form proposal for

such site seem to be sufficient for

inclusion in any application to be

submitted by the Secretary for licensing

of such site as a repository;

(F) the views and comments of the

Governor and legislature of any State, or

the governing body of any affected Indian

tribe, as determined by the Secretary,

together with the response of the

Secretary to such views;

(G) such other information as the

Secretary considers appropriate; and

‘H) any impact report submitted under

section 10136(c)(2)(B) of this title by

the State of Nevada. the—State—_in whieh

104

(2) (A) If, after recommendation by the

Secretary, the President considers the

Yucca Mountain site qualified for

application for a construction

authorization for a repository, the

President shall submit a recommendation

of such site to Congress.

{234A} Net_tater than Marek 34+, 1587,- the

President shali submit te the Cengress—a

recommencatien ef one site form the three

; rere 4 a or eee

105

(B) The President shall submit with such

recommendation a copy of the statement

for such site prepared by the Secretary

under paragraph (1).

+B}—The—President—may_extend the

106

(3) (A) +4}+44} The President may not

recommend the approval of the Yucca

Mountain site any—site—under—this

subseetion unless the Secretary has

recommended to the President under

paragrapt: (1) approval of such site and

has submitted to the President a

107

statement repert for such site as

required under such paragraph.

(B) No recommendation of a site by the

President under this subsection shall

require the preparation of an

environmental impact statement under

section 102 (2) (C) of the National

Environmental Policy Act of 1969 (42

U.S.C. 4332(2)(C), or to require any

environmental review under subparagraph

(E) or (F) of section 102(2) of such Act.

(b) SUBMISSION OF APPLICATION. If the

President recommends to the Congress the

Yucca Mountain site a—site-fera

¥Fepesitery under subsection (a) of this

section and the site designation is

permitted to take effect under section

10135 of this title, the Secretary shall

submit to the Commission an application

for a construction authorization for a

repository at such site not later than 90

days after the date on which the

108

recommendation of the site designation is

effective under such section and shall

provide to the Governor and legislature

of the State of Nevada in—-whieh—sueh—site

+s toeated, or the qeverning bedy—of the

affected trdian-tribe where sueh site a5

teeated,—as_the—_ease—may—_be, a copy of

such application.

later than 1 year after the date on which

an application for a construction

authorization is submitted under

subsection (b), and annually thereafter

until the date on which such

authorization is granted, the Commission

shall submit a report to the Congress

describing the proceedings undertaken

through the date of such report with

regard to such application, including a

description of--

(1) any major unresolved safety issues,

and the explanation of the Secretary with

109

respect to design and operation plans for

resolving such issues;

(2) any matters of contention regarding

such application; and

(3) any Commission actions regarding the

granting or denial of such authorization.

(ad) COMMISSION ACTION. The Commission

shall consider an application for a

construction authorization for all or

part of a repository in accordance with

the laws applicable to such applications,

except that the Commission shall issue a

final decision approving or disapproving

the issuance of a construction

authorization not later kan the

expiration--

4{2}—the—-expiratien of 3 years after the

date of the submission of such

application, except that the Commission

110

may extend such deadline by not more than

12 months if, not less than 30 days

before such deadline, the Commission

complies with the reporting requirements

established in subsection e(2) (e)(2), of

this section. whiehever—eceurs tater.

The Commission decision approving the

first such application shall prohibit the

emplacement in the first repository of a

quantity of spent fuel containing in

excess of 70,000 metric tons of heavy

metal or a quantity of solidified high-

level raaioactive waste resulting from

the reprocessing of such a quantity of

spent fuel until such time as a second

repository is in operation. In the event

that a monitored retrievable storage

facility, approved pursuant to subtitle C

of this Act, shall be located, or is

planned to be located, within 50 miles of

the first repository, then the Commission

decision approving the first such

111

application shall prohibit the

emplacement of a quantity of spent fuel

containing in excess of 70,000 metric

tons of heavy metal or a quantity of

solidified high-level radioactive waste

resulting from the reprocessing of spent

fuel in both the repository and monitored

retrievable storage facility until such

time as a second repository is in

operation.

(e€) PROJECT DECISION SCHEDULE. (1) The

Secretary shall prepare and update, as

appropriate, in cooperation with all

affected Federal agencies, a project

decision schedule that portrays the

optimum way to attain the operation of

the repository imvetyed, within the time

period specified in this subtitle. Such

schedule shall include a description of

objectives and a sequence of deadlines

for all Federal agencies required to

taken action, including an identification

112

of the activities in which a delay in the

start, or completion, of such activities

will cause a delay in beginning

repository operation.

(2) Any Federal agency that determines

that it cannot comply with any deadline

in the project decision schedule, or

fails to so comply, shall submit to the

Secretary and to the Congress a written

report explaining the reason for its

failure or expected failure to meet such

deadline, the reason why such agency

could not reach an agreement with the

Secretary, the estimated time for

completion of the activity or activities

involved, the associated effect on its

other deadlines in the project decision

schedule, and any recommendations it may

have or actions it intends to take

regarding any improvements in its

operation or organization, or changes to.

its statutory directives or authority, so

113

that it will be able to mitigate the

delay involved. The Secretary, within 30

days after receiving any such report,

shall file with the Congress his response

to such report, including the reasons why

the Secretary could not amend the project

decision schedule to accommodate the

Federal agency involved.

(f£) ENVIRONMENTAL IMPACT STATEMENT. Any

recommendation made by the Secretary

under this section shall be considered a

major Federal action significantly

affecting the quality of the human

environment for purposes of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.). A final

environmental impact statement prepared

by the Secretary under such Act shall

accompany any recommendation to the

President to approve a site for a

repository.

(2) With respect to the requirements

114

imposed by the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et

seq.), compliance with the procedures and

requirements of this Act shall be deemed

adequate consideration of the need for a

repository, the time of the initial

availability of a repository, and all

alternatives to the isolation of high-

level radioactive waste and spent nuclear

fuel in a repository.

(3) For purposes of complying with the

requirements of the National

Environmental Policy Act of 1969 (42

U.S.C. 1321 et seq.) and this section,

the Secretary need not skhai+ consider as

alternate sites to the Yucca Mountain

Site for the first repository to be

developed under this subtitle. 3

115

(4) Any environmental impact statement

116

prepared in connection with a repository

proposed to be constructed by the

Secretary under this part shall, to the

extent practicable, be adopted by the

Commission in connection with the

issuance by the Commission of a

construction authorization and license

for such repository. To the extent such

statement is adopted by the Commission,

such adoption shall be deemed to also

satisfy the responsibilities of the

Commission under the National

Environmental Policy Act of 1969 (42

U.S.C. 4321 et seq.) and no further

consideration shall be required, except

that nothing in this subsection shall

affect any independent responsibilities

of the Commission to protect the public

health and safety under the Atomic Energy

Act of 1954 (42 U.S.C. 2011 et seq.).

(5) Nothing in this Chapter shall be

construed to amend or otherwise detract

117

from the licensing requirements of the

Nuclear Regulatory Commission as

established in title II of the Energy

Reorganization Act of 1974 (42 U.S.C.

5841 et seq.).

(6) In any such statement prepared with

respect to the first repository to be

constructed under this part, thke—need—for

a -repesitory or nongeetegie alternatives

te- the site efsueh repesitery shalt net

be—eoensidered. the Nuclear Regulatory

Commission need not consider the need for

a repository, the time of initial

availability of a repository, alternate

Sites to the Yucca Mountain site, or

nongeologic alternatives to such site.

REVIEW OF REPOSITORY SITE SELECTION

SEC. 115, 42 U.S.C. 10135. (a)"Resolution

of repository siting approval" defined.

For purposes of this section, the term

"resolution of repository siting

approval" means a joint resolution of the

118

Congress, the matter after the resolving

clause of which is as follows: "That

there hereby is approved the site at

for a repository, with respect to

which a notice of disapproval was

Submitted by ...on...." =The first

blank space in such resolution shall be

filled with the name of the geographic

location of the proposed site of the

repository to which such resolution

pertains; the second blank space in such

resolution shall be filled with the

designation of the State Governor and

legislature or Indian tribe governi:g

body submitting the notice of disapproval

to which such resolution pertains; and

the last blank space in such resolution

shall be filled with the date of such

submission.

(b) STATE OR INDIAN TRIBE PETITIONS. The

designation of a site as suitable for

application for a construction

119

authorization for a repository shall be

effective at the end of the 60-day period

beginning on the date that the President

recommends such site to the Congress

under section 10134 of this title, unless

the Governor and legislature of the State

in which such site is located, or the

governing body of an Indian tribe on

whose reservation such site is located,

as the case may be, has submitted to the

Congress a notice of disapproval under

section 10136 or 10138 of this title. If

any such notice of disapproval has been

submitted, the designation of such site

shall not be effective except as provided

under subsection (c) of this section.

If any notice of disapproval of a

repository site designation has been

submitted eo the Congress under section

10136 or 10138 of this title after a

recommendation for approval of such site

120

is made by the President under section

10134 of this title, such site shall be

disapproved unless, during the first

period of $0 calendar days of continuous

session of the Congress after the date of

the receipt by the Congress of such

notice of disapproval, the Congress

passes a resolution of repository siting

approval in accordance with this

subsection approving such site, and such

resolution thereafter becomes law.

(ad) PROCEDURES APPLICABLE TO THE SENATE.

(1) The provisions of this subsection are

enacted by the Congress--

(A) as an exercise of the rulemaking

power of the Senate, and as such they are

deemed a part of the rules of the Senate,

but applicable only with respect to the

procedure to be followed in the Senate in

the case of resolutions of repository

Siting approval, and such provisions

supersede other rules of the Senate only

121

to the extent that they are inconsistent

with such other rules; and .

(B) with full recognition of the

constitutional right of the Senate to

change the rules (so far as relating to

the procedure of the Senate) at any time,

in the same manner and to the same extent

as in the case of any other rule of the

Senate.

(2) (A) Not later than the first day

session following the day on which any

notice of disapproval of a repository

site selection is submitted to the

Congress under section 10136 or 10138 of

this title, a resolution of repository

Siting approval shall be introduced (by

request) in the Senate by the chairman of

the committee to which such notice of

disapproval is referred, or by a Member

or Members of the Senate designated by

such chairman.

(B) Upon introduction, a resolution of

122

repository siting approval shall be

referred to the appropriate committee or

committees of the Senate, by the

President of the Senate, and all such

resolutions with respect to the came

repository site shall be referred to the

same committee or committees. Upon the

expiration of 60 calendar days of

continuous session after the introduction

of the first resolution of repository

siting approval with respect to any site,

each committee to which such resolution

was referred shall make its

recommendations to the Senate.

(3) If any committee to which is referred

.- a resolution of siting approval

introduced under paragraph (2)(A), or, in

the absence of such a resolution, any

other resolution of siting approval

introduced with respect to the site

involved, has not reported such

resolution at the end of 60 days of

123

continuous session of Congress after

introduction of such resolution, such

committee shall be deemed to be

discharged from further consideration of

such resolution, and such resolution

shall be placed on the appropriate

calendar of the Senate.

(4) (A) When each committee to which a

resolution of siting approval has been

referred has reported, or has been deemed

to be discharged from further

consideration of, a resolution described

in paragraph (3), it shall at any time

thereafter be in order (even though a

previous motion to the same effect has

been disagreed to) for any Member of the

Senate to move to proceed to the

consideration of such resolution. Such

motion shall be highly privileged and

Shall not be debatable. Such motion

shall not be subject to amendment, to a

motion to postpone, or to a motion to

124

proceed to the consideration of other

business. A motion to reconsider the

vote by which such motion is agreed to or

disagreed to shall not be in order. If a

motion to proceed to the consideration of

such resolution is agreed to, such

resolution shall remain the unfinished

business of the Senate until disposed of.

(B) Debate on a resolution of siting

approval, and on all debatable motions

and appeals in connection with such

resolution, shall be limited to not more

than 10 hours, which shall be divided

equally between Members favoring and

Members opposing such resolution. A

motion further to limit debate shall be

in order and shall not be debatable.

Such motion shall not be subject to

amendment, to a motion to postpone, or to

a motion to proceed to the consideration

of other business, and a motion to

recommit such resolution shall not be in

La?

order. A motion to reconsider the vote

by which such resolution is agreed to or

disagreed to shall not be in order.

of the debate on a resolution of siting

approval, and a single quorum call at the

conclusion of such debate if requested in

accordance with the rules of the Senate,

the vote on final approval of such

resolution shall occur.

(D) Appeals from the decisions of the

Chair relating to the application of the

rules of the Senate to the procedure

relating to a resolution of siting

approval shall be decided without debate.

(5) If the Senate receives from the House

a resolution of repository siting

approval with respect to any site, then

the following procedure shall apply:

(A) The resolution of.the House with

respect to such site shall not be

referred to a committee.

126

(B) With respect to the resolution of the

Senate with respect to such site--

(1) the procedure with respect to that or

other resolutions of the Senate with

respect to such site shall be the same as

if no resolution from the House with

respect to such site had been received;

but

(ii) on any vote on final passage of a

resolution of the Senate with respect to

such site, a resolution from the House

with respect to such site where the text

is identical shall be automatically

substituted for the resolution of the

Senate.

(e) PROCEDURES APPLICABLE TO THE HOUSE OF

REPRESENTATIVES.

(1) The provisions of this section are

enacted by the Congress--

(A) as an exercise of the rulemaking

power of the House of Representatives,

and as such they are deemed a part of the

ia/

rules of the House, but applicable only

with respect to the procedure to be

followed in the House in the case of

resolutions of repository siting

approval, and such provisions supersede

other rules of the House only to the

extent that they are inconsistent with

such other rules; and

(B) with full recognition of the

constitutional right of the House to

change the rules (so far as relating to

the procedure of the House) at any time,

in the same manner and to the same extent

as in the case of any other rule of the

House.

(2) Resolutions of repository siting

approval shall upon introduction, be

immediately referred by the Speaker of

the House to the appropriate committee or

committees of the House. Any such

resolution received from the Senate shall

be held at the Speaker's table.

128

(3) Upon the expiration of 60 days of

continuous session after the introduction

of the first resolution of repository

siting approval with respect to any site,

each committee to which such resolution

was referred shall be discharged from \

further consideration of such resolution,

and such resolution shall be referred to

the appropriate calendar, unless such

resolution or an identical resolution was

previously reported by each committee to

which it was referred.

(4) It shall be in order for the Speaker

to recognize a Member favoring a

resolution to call up a resolution of

repository siting approval after it has

been on the appropriate calendar for 5

legislative days. When any such

resolution is called up, the House shall

proceed to its immediate consideration

and the Speaker shall recognize the

Member calling up such resolution and a

129

Member opposed to such resolution for 2

hours of debate in the House, to be

equally divided and controlled by such

Members. When such time has expired, the

previous question shall be considered as

ordered on the resolution to adoption

without intervening motion. No amendment

to any such resolution shall be in order,

nor shall it be in order to move to

reconsider the vote by which such

resolution is agreed to or disagreed to.

(5) If the House receives from the Senate

a resolution of repository siting

approval with respect to any site, then

the following procedure shall apply:

(A) The resolution of the Senate with

respect to such site shall not be

referred to a committee.

(B) With respect to the resolution of the

House with respect to such site--

(1) the procedure with respect to that or

other resolutions of the House with

130

respect to such site shall be the same as

if no resolution from the Senate with

respect to such site had been received;

but

(ii) on any vote on final passage of

resolution of the House with respect to

such site, a resolution from the Senate

with respect to such site where the text

is identical shall be automatically

substituted for the resolution of the

House.

(£) COMPUTATION OF DAYS. For purposes of

this section--

(1) continuity of session of Congress is

broken only by an adjournment sine die;

and

(2) the days on which either House is not

in session because of an adjournment of

more than 3 days to a day certain are

excluded in the computation of the 90-day

period referred to in subsection (c) of

this section and the 60-day period

131

referred to in subsections (da) and (e) of

this section.

(qa) INFORMATION PROVIDED TO CONGRESS. In

considering any notice of disapproval

submitted to the Congress under section

10136 or 10138 of this title, the

Congress may obtain any comments of the

Commission with respect to such notice of

disapproval. The provision of such

comments by the Commission shall not be

‘onstrued as binding the Commission with

respect to any licensing or authorization

,.ction concerning the repository

involved.

PARTICIPATION OF STATES

SEC. 116, 42 U.S.C. 10336.

(a)NOTIFICATION OF STATES AND AFFECTED

. TRIBES. The Secretary shall identify the

States with one or more potentially

acceptable sites for a repository within

90 days after January 7, 1983. Within 90

days of such identification, the

Secretary shall notify the Governo:, the

State legislature, and the tribal council]

of any affected Indian tribe in any State

of the potentially acceptable sites

within such State. For the purposes of

this subchapter, the term "potentially

acceptable site" means any site at which,

after geologic studies and field mapping

but before detailed geologic data

gathering, the Department undertakes

preliminary drilling and geophysical

testing for the definition of site

location.

(b) STATE PARTICIPATION IN REPOSITORY

SITING DECISIONS. (1) Unless otherwise

provided by State law, the Governor or

legislature of each State Shall have

authority to submit a notice of

disapproval to the Congress under

paragraph (2). In any case in which

State law provides for submission of any

Such notice of disapproval by any other

person or entity, any reference in this

subtitle to the Governor or legislature

of such State shall be considered to

refer instead to such other person or

entity.

(2) Upon the submission by the President

to the Congress of a recommendation of a

site for a repository, the Governor or

legislature of the State in which such

site is located may disapprove the site

designation and submit to the Congress a

notice of disapproval. Such Governor or .

legislature may submit such notice of

disapproval to the Congress not later

than the 60 days after the date that the

President recommends such site to the

Congress under section 10134 of this

title. A notice of disapproval shall be

considered to be submitted to the

Congress on the date of the transmittal

of such notice of disapproval to the

Speaker of the House and the President

134

pro tempore of the Senate. Such notice

of disapproval shall be accompanied by a

statement of reasons explaining why such

Governor or legislature disapproved the

recommended repository site involved.

(3) The authority of the Governor or

legislature of each State under this

subsecticn shall not be applicable with

respect to any Site located ona

reservation.

Secretary shall make grants to the State

of Nevada and any affected unit of local

government eaehkh—State -netitied udder

subsection _(a}—ef this _seetien for the

purpose of participating in activities

required by this section and section

10137 of this title or authorized by

written agreement entered into pursuant

to subsection 10137(c) of this title.

Any salary or travel expense that would

ordinarily be incurred by such State, or

135

by any political subdivision of such

State, may not be considered eligible for

funding under this paragraph.

(B) The Secretary shall make grants to

the State of Nevada and any affected unit

of local aqovernment eaeh State—_in whiich—a

iid : ;

: a

titie.—Sueh grants _may be made _te-eaeh

sueh_State—ently for purposes of enabling

such State or affected unit of local

government--

(i) to review activities taken under

this subtitle with respect to the

Yucca Mountain seeh site for

purposes of determining any

potential economic, social, public

health and safety, and environmental

impacts of such repository on such

the State or affected unit of local

qovernment and its residents;

(11) to develop a request for impact

assistance under paragraph (2);

(iii) to engage in any monitoring,

testing, or evaluaticn activities

with respect to site

characterization programs with

regard to such site;

(iv) to provide information to its

residents regarding any activities

of such State, the Secretary, or the

Commission with respect to such

Site; and

(v) to request information from, and

make comments and recommendations

to, the Secretary regarding any

activities taken under this subtitle

with respect to such site.

would ordinarily be incurred by the State

of Nevada or any affected unit of local

government svehState,—orby—any

poltitieal—_subdivisioen-—ef—_sueh State, may

not be considered eligible for funding

ey,

under this paragraph.

2) (A)(i) The Secretary shall provide

financial and technical assistance to the

State of Nevada, and any affected unit of

local government any State requesting

such assistance in whieh there—_is—a site

(ii) Such assistance shall be

designed to mitigate the impact on

such State or affected unit of local

government of the development of

such repository and the

characterization of such site.

(i111) Such assistance to such State

or affected unit of local government

shall commence within <6—menths

Commi ssteon_ef—a -eenstrvection

and—_feotiewing upon the initiation of

Site characterization eerstruetion

activities atsuekhsite.

(B) The State of Nevada and any affected

unit of local government may request

assistance under this subsection by

preparing and submitting to the Secretary

a_ report on the economic, social, public

health and safety, and environmental

impacts that are likely to result from

site characterization activities at the

Yucca Mountain site. Such report shall be

submittec to the Secretary after the

Secretary has submitted to the State a

general plan for site characterization

activities under section 10133(b) of this

139

Secretary has submitted such site

characterization plan, the Secretary

shall seek to enter into a binding

agreement with the State of Nevada

setting forth--

(1) the amount of assistance to be

140

provided under this subsection to

such State or affected unit of local

government; and

(ii) the procedures to be followed

in providing such assistance.

(3) (A) In addition to financial

assistance provided under paragraphs (1)

and (2), the Secretary shall atse grant

to eaeh State-—and the State of Nevada and

any affected unit of generai local

government im—whieh—a—_site_fera

46432+e}-ef-#his—ti#tt+e an amount each

fiscal year equal to the amount such

State or affected unit of local

government, respectively, would receive

werethey if authorized to tax site

characterization activities at such site,

and the development and operation of such

repository, as such State ard or affected

unit of local government tax taxes the

ether non-Federal real property and

141

industrial activities occurring within

such State and or affected unit of

generat local government. (B) Such grants

shall continue until such time as all

such activities, development, and

operation are terminated at such site.

(4) (A) A-State The State of Nevada or any

affected unit of local government may not

receive any grant under paragraph (1)

after the expiration of the

l-year period following--

(i) the date on which the Secretary

notifies the Governor and

legislature of the State of Nevada

of the termination of site

characterization activities at the

eandidate site imnveived in such

State;

(ii) the date on which the Yucca

Mountain site im suehState is

disapproved under section 10135 of

this title; or

142

(iii) the date on which the

Commission disapproves an

application for a construction

authorization for a repository at

such site;

whichever occurs first. wriess-—there—is

14 |

: : :

a bia a re

have not been taken.

(B) A-State The State of Nevada or any

affected unit of local government may not

receive any further assistance under

paragraph (2) with respect to a site if

repository construction activities or

Site characterization activities at such

Site are terminated by the Secretary or

if such activities are permanently

enjoined by any court.

beginning on the effective date of any

143

license to receive and possess for a

repository ina State, no Federal funds,

shall be made available to such State or

affected unit of local government under

paragraph (1) or (2), except for--

(i) such funds as may be necessary

to support State activities related

to any other repository located in,

or proposed to be located in, such

State, and for which a license to

receive and possess has not been in

effect for more than 1 year;

(11) such funds as may be necessary

to support State activities pursuant

to agreements or contracts for

impact assistance entered into,

under paragraph (2), by such State

with the Secretary during such 2-

year period; and

(iii) such funds as may be provided

under an aqreement entered into

under title IV of this chapter.

144

(5) Financial assistance authorized in

this subsection shall be made out of

amounts held in the Nuclear Waste Fund

ee ae e5 _s

tittie.

(6) No State, other than the State of

Nevada, may receive financial assistance

under this subsection after the date of

the enactment of the Nuclear Waste Policy

Amendments Act of 1987.

(d) ADDITIONAL NOTIFICATION AND

CONSULTATION. Whenever the Secretary is

required under any provision of this

Chapter to notify or consult with the

governing body of an affected Indian

tribe where a site is located, the

Secretary shall also notify or consult

with, as the case may be, the Governor of

the State in which such reservation is

located.

JUDICIAL REVIEW OF AGENCY ACTIONS

SEC. 119, 42 U.S.C. 10139.

145

(a) JURISDICTION OF UNITED STATES COURTS

OF APPEALS. (1) Except for review in the

Supreme Court of the United States, the

United States courts of appeals shall

have original and exclusive jurisdiction

over any civil action--

(A) for review of any final decision or

action of the Secretary, the President,

or the Commission under this part;

(B) alleging the failure of the

Secretary, the President, or the

Commission to make any decision, or take

any action, required under this part;

any decision made, or action taken, under

any provision of this part;

(D) for review of any environmental

impact statement prepared pursuant to the

National Environmental Policy Act of 1969

(42 U.S.C. 4321 et seq.) with respect to

any action under this part, or as

required under section 10135(c)(1) of

146

this title, or alleging a failure to

prepare such statement with respect to

any such action;

(E) for review of any environmental

assessment prepared under section

10132(b)(1) or 10135(c)(2) of this title;

(F) for review of any research and

development activity under subchapter II

of this chapter.

(2) The venue of any proceeding under

this section shall be in the judicial

circuit in which the petitioner involved

resides or has its principal office, or

in the United States Court of Appeals for

the District of Columbia.

(Cc) DEADLINE FOR COMMENCING ACTION. A

Civil action for judicial review

described under subsection (a)(1) of this

section may be brought not later than the

180th day after the date of the decision

Or action or failure to act involved, as

147

the case may be, except that if a party

shows that he did not know of the

decision or action complained of (or of

the failure to act), and that a

reasonable person acting under the

circumstances wouid not have known, such

party may bring a civil action not later

than the 180th day after the date such

party acquired actual or constructive

knowledge of such decision, action, or

failure to act.

SUBTITLE E--REDIRECTION OF THE

NUCLEAR WASTE PROGRAM

SELECTION OF YUCCA MOUNTAIN SITE

SEC. 160, 42 U.S.C 10372 (a) IN GENERAL.

(1) The Secretary shall provide for an

orderly phase-out of site specific

activities at all candidate sites other

than the Yucca Mountain site.

(2) The Secretary shall terminate all

site specific activities (other than

reclamation activities) at all candidate

148

sites, other than the Yucca Mountain

site, within 90 days after December 22,

1987.

(b) Effective on December 22, 1987, the

State of Nevada shall be eligible to

enter into a benefits agreement with the

Secretary under section 10173 of this

title.

ENVIRONMENTAL IMPACT STATEMENT

SEC. 407. 42 U.S.C. 10247 (a) IN GENERAL.

Issuance of a construction authorization

for a repository or monitored retrievable

storage tacility under section 10245(b)

of this title shall be considered a major

Federal action significantly affecting

the quality of the human environment for

purposes of the National Environmental

Policy Act of 1969 (42 U.S.C. 4321 et

seq.).

(b) PREPARATION. A final environmental

impact statement shall be prepared by the

Secretary under such Act and shall

149

accompany any application to the Nuclear

Regulatory Commission for a construction

authorization.

impact statement shall, to the extent

practicable, be adopted by the Nuclear

Regulatory Commission, in accordance with

section 1506.3 of title 40, Code of

Federal Regulations, in connection with

the issuance by the Nuclear Regulatory

Commission of a construction

authorization and license for such

repository or monitored retrievable

storage facility.

(2) (A) In any such statement prepared

with respect to a repository to be

constructed under this title at the Yucca

Mountain site, the Nuclear Requlatory

Commission need not consider the need for

a repository, the time of initial

availability of a repository, alternate

sites to the Yucca Mountain site, or

150

nongeologic alternatives to such site.

(B) In any sucn statement prepared with

respect to a repository to be constructed

under this title at a site other than the

Yucca Mountain site, the Nuclear

Regulatory Commission need not consider

the need for a repository, the time of

initial availability of a repository, or

nongeologic alternatives to such site but

shall consider the Yucca Mountain site as

an alternate to such site in the

preparation of such statement.

FEDERAL LAND POLICY & MANAGEMENT ACT

SECTION 204, 43 U.S.C. §1714(a) (b) (c) (a)

Withdrawals of lands:

(a) Authorization and limitation;

delegation of authority

On and after the effective date of this

Act the Secretary is authorized to make,

modify, extend, or revoke withdrawals but

only in accordance with the provisions

151

and limitations of this section. The

Secretary may delegate this withdrawal

authority only to individuals in the

Office of the Secretary who have been

appointed by the President, by and with

the advice and consent of the Senate.

(b) Application and procedures

applicable subsequent to submission

of application

(1) Within thirty days of receipt of an

application for withdrawal, and whenever

he proposes a withdrawal on his own

motion, the Secretary shall publish a

notice in the Federal Register stating

that the application has been submitted

for filing or the proposal has been made

and the extent to which the land is to be

segregated while the application is being

considered by the Secretary. Upon

publication of such notice the land shall

be segregated from the operation of the

public land laws to the extent specified

ave

in the notice. The segregative effect of

the application shall terminate upon (a)

rejection of the application by the

Secretary, (b) withdrawal of lands by the

Secretary, or (c) the expiration of two

years from the date of the notice.

(2) The publication provisions of this

subsection are not applicable to

withdrawals under subsection (e) hereof.

applicable to withdrawals aggregating

five thousand acres or more

(1) On and after October 21, 1976, a

withdrawal aggregating five thousand

acres or more may be made (or such a

withdrawal or any other withdrawal

involving in the aggregate five thousand

acres or more which terminates after such

date of approval may be extended) only

for a period of not more than twenty

years by the Secretary on his own motion

Or upon request by a department or agency

aoe

head. The Secretary shall notify both

Houses of Congress of such a withdrawal

no later than its effective date and the

withdrawal shall terminate and become

ineffective at the end of ninety days

(not counting days on which the Senate or

the House of Representatives has

adjourned for more than three consecutive

days) beginning on the day notice of such

withdrawal has been submitted to the

Senate and the House of Representatives,

if the Congress has adopted a concurrent

resolution stating that such House does

not approve the withdrawal. If the

committee to which a resolution has been

referred during the said ninety day

period, has not reported it at the end of

thirty calendar days after its referral,

it shall be in order to either discharge

the committee from further consideration

of such resolution or to discharge the

committee from consideration of any other

154

resolution with respect to the

Presidential recommendation. A motion to

discharge may be made only by an

individual favoring the resolution, shall

be highly privileged (except that it may

not be made after the committee has

reported such a resolution), and debate

thereon shall be limited to not more than

one hour, to be divided equally between

those favoring and those opposing the

resolution. An amendment to the motion

shall not be in order, and it shall not

be in order to move to reconsider the

vote by which the motion was agreed to or

disagreed to. If the motion to discharge

is agreed to or disagreed to, the motion

may not be made with respect to any other

resolution with respect to the same

Presidential recommendation. When the

committee has reprinted, or has been

discharged from further consideration of

a resolution, it shall at any time

thereafter be in order (even though a

previous motion to the same effect has

been disagreed to) to move to proceed to

the consideration of the resolution. The

motion shall be highly privileged and

Shall not be debatable. An amendment to

the motion shall not be in order, and it

shall not be in order to move to

reconsider the vote by which the motion

was agreed to or disagreed to.

(2) With the notices required by

subsection (c)(1) of this section and

within three months after filing the

notice under subsection (e) of this

section, the Secretary shall furnish to

the committees--

(1) a clear explanation of the

proposed use of the land involved which

led to the withdrawal;

(2) an inventory and evaluation of

the current natural resource uses and

values of the site and adjacent public

156

and nonpublic land and how it appears

they will be affected by the proposed

use, including particularly aspects of

use that might cause degradation of the

environment, and also the economic impact

of the change in use on individuals,

local communities, and the Nation;

(3) an identification of present

users of the land involved, and how they

will be affected by the proposed use;

(4) an analysis of the manner in

which existing and potential resource

uses are incompatible with or in conflict

with the proposed use, together with a

statement of the provisions to be made

for continuation or termination of

existing uses, including an economic

analysis of such continuation or

termination;

(5) an analysis of the manner in

which such lands will be used in relation

to the specific requirements for the

157

proposed use;

(6) a statement as to whether any

suitable alternative sites are available

(including cost estimates) for the

proposed use or for uses such a

withdrawal would displace;

(7) a statement of the consultation

which has been or will be had with other

Federal departments and agencies, with

regional, State, and local government

bodies, «nd with other appropriate

individuals and groups;

(8) a statement indicating the

effect of the proposed uses, if any, on

State and local government interests and

the regional economy;

(9) a statement of the expected

length of time needed for the withdrawal;

(10) the time and place of hearings

and of other public involvement

concerning such withdrawal;

(11) the place where the records on

158

the withdrawal can be examined by

interested parties; and

(12) a report prepared by a

qualified mining engineer, engineering

geologist, or geologist which shall

include but not be limited to information

on: general geology, known mineral

deposits, past and present mineral

production, mining claims, mineral

leases, evaluation of future mineral

potential, present and potential market

demands.

(ad) Withdrawals aggregating less than

five thousand acres; procedure

applicable

A withdrawal aggregating less than

five thousand acres may be made under

this subsection by the Secretary on his

own motion or upon request by a

department or an agency head--

(1) for such period of time as he

deems desirable for a resource use; or

159

(2) for a period of not more than

twenty years for any other use, including

but not limited to use for administrative

sites, location of banda ities and other

proprietary purposes; or

(3) for a period of not more than

five years to preserve such tract for a

specific use then under consideration by

the Congress.

SECTION 507, 43 U.S.C. § 1767

Rights-of-way for Federal

departments and agencies

(a) The Secretary concerned may

provide under applicable provisions of

this subchapter for the use of any

department or agency of the United States

a right-of-way over, upon, under or

through the land administered by hin,

subject to such terms and conditions as

he may impose.

(b) venee a right-of-way has been

reserved for the use of any department or

160

agency of the United States, the

Secretary shall take no action to

terminate, or otherwise limit, that use

without the consent of the head of such

department or agency.

FEDERAL REGULATIONS

10 C.F.R. 60.2 DEFINITIONS

"High-level radioactive waste" or "HLW"

means: (1) Irradiated reactor fuel, (2)

liquid wastes resulting from the

operation of the first cycle solvent

extraction system, or equivalent, and the

concentrated wastes from subsequent

extraction cycles, or equivalent, ina

facility for reprocessing irradiated

reactor fuel, and (3) solids into which

such liquid wastes have been converted.

10 C.F.R. 60.121

LAND OWNERSHIP AND CONTROL

Requirements for ownership and control of

161

interests in land.

(a) Ownership of land. (1) Both the

geologic repository operations area and

the controlled area shall be located in

and on lands that are either acquired

lands under the jurisdiction and control

of DOE, or lands permanently withdrawn

and reserved for its use.

(2) These lands shall be held free and

clear of all encumbrances, if

Significant, such as: (i) Rights

arising under the general mining laws;

(ii) easements for right-of-way; and

(iii) ail other rights arising under

lease, rights of entry, deed, patent,

mortgage, appropriation, prescription, or

otherwise.

(b) Additional controls. Appropriate

controls shall be established outside of

the controlled area. DOE shall exercise

any jurisdiction and control over surface

and subsurface estates necessary to

162

prevent adverse human actions that could

Significantly reduce the geologic

repository's ability to achieve

isolation. The rights of DOE may take

the form of appropriate possessory

interests, servitudes, or withdrawals

from location or patent under the general

mining laws.

have obtained such water rights as may be

needed to accomplish the purpose of the

geologic repository operations area.

(2) Water rights are included in the

additional controls to be established

under paragraph (b) of this section.

NEVADA STATUTES AND RESOLUTIONS

NEVADA REVISED STATUTE

NRS 328.065:

Application to state for cession of

jurisdiction, appropriation of water or

consent to use public land or close

163

public road. An officer of any agency or

instrumentality of the United States:

1. May apply to the director of the

legislative counsel bureau pursuant to

NRS 328.065 to 328.135, inclusive, to

obtain a cession of concurrent criminal

jurisdiction or other jurisdiction from

the State of Nevada.

2. Shall apply to the state

engineer pursuant to Title 48 of NRS to

appropriate water on the public lands or

other federal lands of this state. The

state engineer has continuing

jurisdiction over any acquisition by the

United States of the ae of the State

of Nevada, whether by purchase, gift,

condemnation, appropriation pursuant to

the state's water laws or otherwise, and

whether appurtenant to lands acquired by

or retained by the United States.

3. Shall apply to the department of

transportation pursuant to the procedure

164

set forth in NRS 408.537, 408.543 and

408.547 for consent to close a public

road, as defined in NRS 406.191, which is

located on the public lands of this

state.

4. Shall apply to the state land

use planning agency pursuant to the

procedure set forth in NRS 321.736 to

321.739, inclusive, for consent to use

land held solely for proprietary purposes

relating to the retention and management

of the public lands, if that use

interferes with the sovereignty of this

state respecting the land within its

borders.

NRS_328.500(2):

Attorney general may bring, main® .in

or intervene in actions concerning public

lands to protect sovereignty of state.

1. The legislature finds that more

than 87 percent of the land in the State

of Nevada is held by the Federal

165

Government, of which 69 percent is public

land, and the actions of federal agencies

and instrumentalities involving the

public lands and waters appurtenant to

and public roads over those lands

Significantly affect the health, safety,

welfare and happiness of the citizens of

this state and may interfere with the

traditional sovereign functions of the

State of Nevada with respect to those

lands, waters and roads and their uses.

2. Except as provided in subsection

3, the attorney general may:

(a) On his own initiative or at the

request of the governor or any state

agency, bring and maintain any action;

(b) Intervene on behalf of or bring

and maintain an action on the relation

of, any person in any meritorious case,

in any court or before any federal agency

if any action or proposed action by a

166

federal agency or instrumentality with

respect to the public lands or waters

appurtenant to or public roads over those

lands impairs or tends to impair the

sovereignty of the State of Nevada.

NRS 459.910:

Unlawful to store high-level

radioactive waste in state.

1. It is unlawful for any person or

governmental entity to store high-level

radioactive waste in Nevada.

2. As used in this section, unless

the context otherwise requires, "high-

level radioactive waste" has the meaning

ascribed to that term in 10 C.F.R.

§ 60.2.

RESOLUTIONS

ASSEMBLY JOINT RESOLUTION NO. 4.

WHEREAS, Because of the extremely

dangerous nature of high-level nuclear

waste and the persistence of that danger

167

for an extended period, the location of

such waste in a repository in this state

poses a serious hazard to the health and

welfare of Nevadans; and

WHEREAS, The residents of the State of

Nevada are overwhelmingly opposed to

permitting Nevada to become the dumping

ground for nuclear waste generated in

other states and foreign countries; now,

a therefore be it

RESOLVED BY THE ASSEMBLY AND SENATE OF

THE STATE OF NEVADA, JOINTLY, That the

Nevada Legislature expresses its adamant

opposition to the placement of a high-

level nuclear waste repository in the

State of Nevada; and be it further

RESOLVED, That a copy of this resolution

be transmitted forthwith by the Chief

Clerk of the Assembly to the President of

the United States, the Vice President of

the United States as the presiding

officer of the Senate, the Speaker of the

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House of Representatives and to each

member of the Nevada Congressional

Delegation; and be it further

RESOLVED, That this resolution becomes

effective upon passage and approval.

ASSEMBLY JOINT RESOLUTION NO. 6.

WHEREAS, On December 22, 1987, Congress

enacted the Nuclear Waste Policy

Amendments Act of 1987, specifying Yucca

Mountain, Nevada, as the sole location

for evaluation as a suitable site for the

placement of a national repository for

high-level radioactive waste; and

WHEREAS, The Nuclear Waste Policy

Amendments Act of 1987 represents just

one of the many instances of federal

overreaching with regard to the public

land in this state; and

WHEREAS, The Federal Government claims

ownership of approximately 87 percent of

the total land in the State of Neveda,

169

and has targeted that land for certain

undesirable federal programs; and

WHEREAS, The placement of a repository

for high-level radioactive waste in the

State of Nevada poses serious concerns

about the transportation and storage of

such waste and the potential harm to the

environment and health of the residents

and guests of this state; and

WHEREAS, The Nevada economy is dependent

upon tourism and the perception of a safe

environment; and

WHEREAS, The United States has a duty to

protect the economy, environment and

public health of this state, which the

Nevada Legislature is empowered to

protect and preserve; and

WHEREAS, The Federal Government has

refused to assume full liability for any

deleterious effects that could result

from the placement of a repository for

high-level radioactive waste in Nevada;

170

ES —.

and

WHEREAS, Various polls of the people of

this state, including our children in

school, demonstrate an over whelming

opposition to the location of a

repository for high-level radioactive

waste at Yucca Mountain; now, therefore,

be it

RESOLVED BY THE ASSEMBLY AND SENATE OF

THE STATE OF NEVADA, JOINTLY, That the

Federal Government, its agencies and

instrumentalities shall not establish a

repository for high-level radioactive

waste at Yucca Mountain, Nevada, without

the prior consent of the Nevada

Legislature or a cession of jurisdiction

pursuant to chapter 328 of the Nevada

Revised Statutes, which consent and

cession are hereby refused; and be it

further

RESOLVED, That copies of this resolution

be prepared and transmitted forthwith by

Afa

the Chief Clerk of the Assembly to the

President of the United States, the Vice

President of the United States as the

presiding officer of the Senate, the

Speaker of the House of Representatives

and to each member of the Nevada

Congressional Delegation; and be it

further

RESOLVED, That this resolution becomes

effective upon passage and approval.

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