# Appendix — Nevada v. Jamison

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 932

## Text

aa | PORERED |
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,
v.

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

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

1

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.

I

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.

10

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

11

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

12

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)

13

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

14

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,

15

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

16

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

17

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).

18

§ 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).

19

(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).

20

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").

21

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.

22

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

23

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).

24

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

22

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

26

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

N
~)

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

28

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

29

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

30

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
7

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).

31

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)

32

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).

33

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

34

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

35

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).

36

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.

37

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

38

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

40

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

41

\

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

42

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.

43

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.)

44

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

45

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

46

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

47

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

48

is

>,

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).

49

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.

50

he

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

51

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

52

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). ~

Oe

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

54

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

55

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,

56

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

ae

i

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

29

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

60

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

61

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

62

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.

63

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

64

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

65

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

66

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

67

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

68

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

69

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

70

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

71

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,

72

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

73

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

74

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

75

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

76

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

77

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.

78

—

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

79

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.

80

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.

81

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

82

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

83

consideration in decisionmaking along

with economic and technical
considerations;

(C) include in every recommendation
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

84

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;

85

ee ee

a

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.

86

(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

87

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-

88

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.

89

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.

90

(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

91

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

92

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
(C) a conceptual repository design that
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

93

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.

94

(c) RESTRICTIONS. (1) The Secretary may

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

95

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.

96

‘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;

(C) remove any high-level radioactive

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

98

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

99

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;

(C) a discussion of data, obtained in
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.

(c) STATUS REPORT ON APPLICATION. Not
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.

(c) CONGRESSIONAL REVIEWS OF PETITIONS.
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.

(C) Immediately following the conclusion
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.

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(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

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a

referred to in subsections

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1696%3A2. Public record. Not legal advice.