Opposition Brief — Nevada v. Jamison

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Su the Supreme Court of the W

OCTOBER TERM, 1990

STATE OF NEVADA, ET AL., PETITIONERS

Vv.

Cy JAMISON, DIRECTOR, BUREAU OF LAND

MANAGEMENT, DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITiON FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

KENNETH W. STARR

Solicitor General

GEORGE VAN CLEVE

Acting Assistant Attorney General

ANNES. ALMY

JOHN A. BRYSON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

THOMAS L. SANSONETTI

Solicitor

RICHARD J. WOODCOCK

Attorney

Department of the Interior

Washington, D.C. 20240

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the State of Nevada’s complaint suff-

ciently alleged its standing to challenge the grant of

a right-of-way by the Bureau of Land Management

to the Department of Energy pursuant to Section

507 of the Federal Land Policy and Management Act,

43 U.S.C. 1767.

(1)

TABLE OF CONTENTS

Paye

Opinions below J

Jurisdiction J

Statement 2

Argument

Conclusion ; 18

TABLE OF AUTHORITIES

Cases:

Alfred L. Snapp & Son V. Puerto Rico, 458 US.

592 .1982) 8, 9, 10, 12, 13, 16, 17

‘Allen V. Wright, 468 U.S. 737 (1984) &, 9, Li, Iz

Blonder-Tongue Vv. University Foundation, 402

U.S. 313 (1971) 12

Corey V. Klutznick, 637 F.2d 834 (2d Cir. 1980) 14,17

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) +

Conley V. Gibson, 355 U.S. 41 (1957) 14

Data Processing Service Organizations V. Camp,

397 U.S. 150 (1970) 16

Diamond y. Charles, 476 U.S. 54 (1986) 8

Florida vy. Mellon, 273 U.S. 12 (1927) i)

Gladstone Realtors Vv. Village of Bellwood, 441 U.S.

91 (1979) : 16

Havens Realty Corp. Vv. Coleman, 455 U.S. 363

(1982) _.. 14,15

Hodel v. Virginia Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) . | i9

lowa ez rel. Miller v. Block, 771 F.2d 347 (8th

Cir. 1985), cert. denied, 478 U.S. 1012 (1986) 17

Laird y. Tatum, 408 U.S. 1 (1972) ... %

Lujan Vv. National Wildlife Fed’n, 110 S. Ct. 3177

(1990) ..... 16

Maryland People’s Counsel v. FERC, 760 F.2d 318

(D.C. Cir. 1985) 13, 17

Massachusetts v. Mellon, 262 U.S. 447 (1923) 13,17

Minnesota vy. Benson, 274 F.2d 764 (D.C. Cir.

1960) ...... : | Vos 17

(III)

Cases-— Continued: Page

Nevada V. Watkins, 914 F.2d 1545 (9th Cir. 1990),

cert. denied, 111 S. Ct. 1105 (1991) 12

Oklahoma Vv. Athinson Co... 318 U.S. 508 (1941) 1

Pennsylvania V. Kleppe, 5383 F.2d 668 (D.C. Cir),

cert. denied, 429 U.S. 977 (1976) 12. 13, 17

Schlesinger V. Reservists Committee to Stop the

War, 418 U.S. 208 (1974) 8

Necretary of Interior V. California, AGA US. 312

(1984) 11

Nimon V. BRastern Kentucky Welfare Rights On

ganization, 426 U.S. 26 (1976) 1]

l'nited States Vv. SCRAP, 412 U.S. 669 (1973) 14

lnited States Vv. Texvas, 339 U.S. 707 (1950) 1)

Valle d/ Forae ( ‘hristian Colle (ie Y. A nie mcans

l'nited for Separation of ¢ hurvch & State, Ine..,

454 U.S. 464 (1982) 8

Constitution, statutes, and rule:

U.S. Const

| Art. 11] 6,8, 11, 13, 16

Amend. X 5.9.10

Administrative Procedure Act, 5 U.S.C. 551 16, 17

Classification and Multiple Use Act of 1964, 48

U.S.C. 1411 (1976) ys

Fair Housing Act of 1968, 42 U.S.C. 3601 ef seq. 1D

£810, 42 U.S.C. 3610 16

§ 812, 42 U.S.C. 3612 16

Federal Land Policy and Management Act, 43

U.S.C. 1701 et seq. 2,10, 11

43 .C. 1701 note (§ 701(c)) 2-3

S.C. 1701 (a) (7)

45 U.S.C. 1702 (c)

3 U.S.C. 1702 (3)

3 U.S.C. 1714 (a)

43 U.S.C. 1714 (c)

3 U.S.C. 1714 (h)

43 U.S.C. 1732 (b) 5

43 U.S.C. 1761(a) (1)-(7) (§ 501 (a) )

43 U.S.C. 1767(a) (§ 507) .........

WwWwwownmhd se

Statutes and rule Continued: Paye

National Environmental Policy Act of 1969, 42

U.S.C, 4882. ef seq A

Nuclear Waste Poliey Act of 1982, 42 TLS.C. 1O10d

ot seq 2,4, 6-7, 10

1219S. 10132 0b) C1) CF) 5

AP USC. 101388 Ca) A

VTS. 1OI84 (a) OT) ? A

VUES 10184 OD |

VU SE WIA) 4

VUES. 1085 Ob) A

AP VS. 10185 Ce) 4

VUES O86 Ob) 4

1211S. LOMO (ay (ly) 7

VU SO 109A) OL) fe) 7

12S. 101400a) 1) If)

U.S.C. LOCA) (2) 1]

V21I S.C. 1O1A900b) }]

Tavlor Grazing Act, 43 USC. 3)5a ef seq 2

Fed. R. Civ. P.:

Rule 12h) 1) f

Rule 2b) (H) ss

Iu the Sigreme Court of the United States

OCTOBER TERM, 1990

No. 90-1324

STATE OF NEVADA, ET AL., PETITIONERS

Vv.

Cy JAMISON, DIRECTOR, BUREAU OF LAND

MANAGEMENT, DEPARTMENT OF THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 1-10,

is reported at 918 F.2d 854. The opinion of the dis-

trict court, Pet. App. 11-53, is reported at 708 F.

Supp. 289.

JURISDICTION

The judgment of the court of appeals was entered

on November 14, 1990. The petition for a writ of

certiorari was filed on February 11, 1991. The juris-

diction of this Court is invoked pursuant to 28 U.S.C.

1254(1).

(])

STATEMENT

On March 24, 1988, the State of Nevada filed this

action avainst officers of the Bureau of Land Man-

agement challenging the grant of a right-of-way pur-

suant to the Federal Land Policy and Management

Act, 48 U.S.C. 1701 ef seq. This authorization to use

public lands of the United States in) Nevada was

given to the Department of Energy so that it eould

earry out its duty under the Nuclear Waste Poliey

\et of 1982 to conduct site characterization activities

at Yucea Mountain. See 42 U.S.C. 10101 ¢f seq. The

purpose of this program is to assess the suitability of

the site as a repository for high-level nuclear waste.

The district court dismissed the action for failure to

allege standing, and the court of appeals affirmed.

1. Under the Federal Land Poliey and Manage-

ment Act (FLPMA), 43 U.S.C. 1701 ef seq., the

Bureau of Land Management (BLM), enjoys broad

authority to manage the publie lands. The generally

applicable principle is that the land shall be managed

‘on the basis of multiple use,” which is defined as

“making the most judicious use of the land for some

or all of these resources,” including where appropri-

ate, allowing persons “the use of some land for |

than all of the resources.” 43 U.S.C. 1701(a) (7),

’ Prior to the enactment of the Federal Land Policy and

Management Act. the Bureau of Land Management penerally

«VF

administered the public lands on a multiple use basis pursuant

te the superseded Classification and Multiple Use Act of 1964,

43 U.S.C. 1411 (1976), and the Taylor Grazing Act, 43 U.S.C.

15a ¢ «9. Under the authority of the Classification and

BLM surveyed the public land under it

nagement in the western United States, classifying tract

for retent.on under multiple use or for disposal. Under Sec-

tion 7TOl(c) of the Federal Land Policy and Manayement Act,

a4 ‘5 oe 7? o A +

The statute authorizes the Secretary of the In-

terior to “permit Federal departments and agen-

cies to use, occupy, and develop public lands only

through rights-of-way,” withdrawals, and coopera-

%y Yo Py CNC)

tive avreements. 45 U.S.C. 1732¢b). Pursuant to

Section 507, “[t]he Secretary may provide

under applicable provisions Gf this [title] for the

use of any department or agency of the United States

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

land administered by him, subject to such terms and

eonditions as he may impose.” 45 U.S.C. 1767(a).

section 501(a) authorizes rights-of-way for a num-

ber of specifie uses of public lands, as well as “other

systems or facilities which are in the public interest.”

MS USC. 1761 Ca) 1)-07).

The Secretary is also authorized to order with-

drawals with respect to any federal lands. 43 U.S.C,

1714(a). A “withdrawal” means “withholding an

area of the Federal land from settlement, sale, locs-

tion or entry, under some or all of the general land

laws, for the purpose of limiting activities under those

laws in order to maintain other public values in the

area or reserving the area for a particular public

purpose or program.” 435 U.S.C. 1702(j). If the

Secretary orders a withdrawal of a parcel of 5,000

or more acres, he must prepare a report for Congress

that addresses a variety of factors relating to the

withdrawal. 43 U.S.C. 1714(e). In addition, before

withdrawing any tract, the Secretary must afford an

opportunity for the public to be heard. 43 U.S.C,

1714 (¢h).

2. The Department of Energy, which is not a

party to this case, is charged with implementing the

all of these classifications remain in effect until modified under

the procedures of the new statute. 43 U.S.C. 1701 note.

Nuclear Waste Policy Act (NWPA), 42 U.S.C. 10101

et seq. In that statute, Congress has directed the

Department of Energy to conduct a multi-year in-

tensive investigation of the Yucca Mountain site,

located on public lands in the State of Nevada, for

possible use as a repository for high-level nuclear

waste. 42 U.S.C. 10133(a). The Department of En-

ergy plans to excavate an exploratory shaft to the

proposed depth of the repository horizon and conduct

a variety of scientific investigations of the site’s

geologic, hydrologic, and other geotechnical charac-

teristics. This project will take several years. No

radioactive waste, however, will be brought to the site

during site characterization.

Following site characterization, the Secretary of

Energy, if he finds Yucca Mountain to be a suitable

site, may recommend to the President that the site

be developed as a repository. 42 U.S.C. 10134(a) (1).

The Secretary must prepare a comprehensive state-

ment of the basis for such recommendation, together

with an environmental impact statement prepared

pursuant to the National Environmental Policy Act of

1969 (NEPA), 42 U.S.C. 4332 et seg. The State may

then submit a notice of disapproval to Congress,

which can override that disapproval by passage of

a resolution that “becomes law.” 42 U.S.C. 10135(b),

10135(c), 10136(b). If the recommendation to de-

velop the site becomes effective, the Secretary of

Energy must then obtain a license from the Nuclear

Regulatory Commission to construct and operate a

repository. 42 U.S.C. 10134(b) and (d).

3. In order to carry out site characterization on

a portion of this site, the Department of Energy

applied to BLM for a right-of-way to occupy, use, and

undertake site characterization’ activities over some

51,789 acres of public lands near Yucca Mountain.

Pet. App. 64. BLM administers this area under

FLPMA pursuant to a multiple use, retention, classi-

fication order issued under the now expired Classifi-

cation and Multiple Use Act of 1964. Pet. App. 69.

In processing ‘the application, BLM reviewed and

adopted the Department of Energy’s Environmental

Assessment for Yucca Mountain, prepared pursuant

to 42 U.S.C. 10132(b)(1)(E). Pet. App. 72. The

Attorney General of Nevada opposed the issuance of

the right-of-way, but on January 6, 1988, BLM re-

jected these objections and issued the right-of-way.

Id. at 64-65.

4. The first count of the State’s complaint against

BLM charged that the issuance of the right-of-way

violated several statutory provisions. In particular,

the complaint alleged (1) that the right-of-way was

inconsistent with FLPMA’s direction to manage this

land for multiple use because the Department of

Energy is authorized to undertake activities that are

inconsistent with valid, existing uses and that will

extensively disrupt the land; (2) that the issuance

of the right-of-way was a de facto withdrawal issued

in violation of FLPMA; and (3) that BLM had not

faithfully discharged its duties under NEPA. Pet.

App. 66-74. In the second cause of action, the State

sought to compel approval of the application of one

of its contractors for a similar right-of-way. Id. at

74-75.’ In the third and fourth causes of action, the

State alleged that BLM was engaged in a conspiracy

with the Department of Energy to violate the Tenth

Amendment and the rights of Nevada under the

Equal Footing Doctrine, and that there was no con-

* This claim was dismissed as unripe, Pet. App. 45-47, and

no appeal was taken from this disposition.

stitutional basis for the grant of the right-of-way.

Id. at 76-78.

The defendants moved under Federal Rule of Civil

Procedure 12(b)(1) to dismiss the entire action for

lack of jurisdiction because of the failure to estab-

lish standing and, in the alternative, under Rule

12(b) (6) to dismiss the third and fourth causes of

action for failure to state a claim. After considering

briefs from the parties, the district court granted the

motion, dismissing the complaint on January 30,

1989. Pet. App. 11-54.

5. The district court concluded that the State had

not alleged facts in its complaint that establish its

standing. Pet. App. 29-33. The court noted that the

complaint contained no averment of any proprietary

or sovereign interest in the public lands in the vicinity

of the Yucca Mountain site. Jd. at 32. Nor-did the

complaint allege that the State used any of those

lands. Jd. at 31. Consequently, the complaint merely

sought to vindicate the State’s desire to see that the

agency follows the requirements of law, an interest

that is not sufficient to establish standing. Jd. at 34.

The court did note that the State, in response to

the motion to dismiss, contended that it and its citi-

zens would be adversely affected in a variety of ways

if a nuclear waste repository was actually developed

at Yucca Mountain. Pet. App. 32-33. The court

concluded, however, that the final decision on whether

to use this site for a repository was several years

away, and therefore, the potential harm was not of

sufficient immediacy to establish an injury under

Article III. Pet. App. 33, 36-38.

The court also held that standing could not be

based on the State’s rights under the Nuclear Waste

Policy Act to participate in the site selection process

conducted by the Department of Energy. Pet. App.

38-45. The cowrt concluded that nothing that BLM

had done had any effect on the State’s ability to

exercise its rights under the Nuclear Waste Policy

Act. Pet. App. 44-45.’

6. The court of appeals affirmed. The court first

noted that the State’s complaint, while alleging vari-

ous statutory and constitutional violations, completely

omitted any explanation of injury to Nevada. Pet.

App. 7. This failure reduced the complaint to a griev-

ance that BLM was not following the requirements

of law, an insufficient basis to establish standing.

Second, the court rejected as “mere speculation”

the claim that BLM’s grant of a right-of-way im-

pinged on the State’s political and sovereign right to

object to the siting of a repository within the State.

Pet. App. 8. Because the decision to develop Yucca

Mountain as a repository is ““many years and numer-

ous procedural hurdles away,” and none of those

steps is linked to BLM’s actions, the issuance of the

right-of-way inflicted no concrete harm on Nevada’s

sovereign interests. Ibid.

Third, the court concluded that Nevada had not

shown how any of its proprietary interests had been

affected by the grant of the right-of-way. Therefore,

the State alleged no injury in its capacity as a pro-

prietor sufficient to confer standing. Pet. App. 9.

8’The court also ruled, in the alternative, that Nevada’s

third and fourth causes of action failed to state a claim. Pet.

App. 47-53. The court noted that challenges to the constitu-

tionality of the 1987 Amendments to the Nuclear Waste Pol-

icy Act and to the adequacy of the Department of Energy’s

Environmental Assessment are within the exclusive jurisdic-

tion of the appropriate court of appeals, rather than the dis-

trict court. Pet. App. 53 n.14; see 42 U.S.C. 10139(a) (1) (C)

and (E).

Finally, the court rejected the claim of parens

patriae standing. Not only had the State failed to

plead any injury to its quasi-sovereign interests, but

the court of appeals also concluded the State could not

assert such interests against the federal government,

citing Alfred L. Snapp & Son v. Puerto Rico, 458

U.S. 592, 607 n.14 (1982). Pet. App. 9.

ARGUMENT

The court of appeals held that Nevada lacks stand-

ing under Article III because the State’s complaint

fails to allege any concrete injury to the State’s in-

terests as sovereign, as proprietor, or as parens

patriae. That decision, which rests on well-established

standing principles, is correct. Furthermore, it does

not conflict with any decision of this Court or of any

other court of appeals.

To satisfy Article III, a person seeking to invoke

the judicial power must show that he has personally

suffered or is in immediate danger of sustaining a

direct injury as a result of the allegedly illegal con-

duct. Diamond v. Charles, 476 U.S. 54, 62 (1986) ;

Allen v. Wright, 468 U.S. 737, 751 (1984); Valley

Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 472

(1982); Schlesinger v. Reservists Committee to Stop

the War, 418 U.S. 208, 217 (1974) ; Laird v. Tatum,

408 U.S. 1, 12-18 (1972). Here, the State must show

first that it has suffered an “injury in fact” that is

palpable, concrete, and immediate, and not merely ab-

stract, conjectural, or hypothetical. Allen v. Wright,

468 U.S. at 751; see City of Los Angeles v. Lyons,

461 U.S. 95, 101-102 (1983). Second, the State must

establish a sufficient causal link between the asserted

injury and the allegedly illegal conduct of the defend-

ant, BLM. The causation requirement has two ele-

ments: (1) the alleged injury must be fairly trace-

able to the conduct challenged as unlawful, and

(2) the alleged injury must be likely to be redressed

by the requested relief. Allen v. Wright, 468 U.S. at

753.4

Nevada’s complaint alleges that BLM issued the

right-of-way in violation of the requirements of

FLPMA, NEPA, and limitations imposed by the

Tenth Amendment and the Equal Footing Doctrine.

Pet. App. 67-74, 76-78. It further asserts that the

BLM’s action would injure the State in three capaci-

ties: (1) as sovereign, (2) as proprietor, and (3) as

parens patriae. Id. at 61-62.

1. The sovereign interest at stake is Nevada’s

claimed right to veto, for whatever reasons it chooses,

the investigation of public lands for use as a poten-

tial repository for nuclear waste.’ Although the com-

4 The fact that the plaintiff is a State does not permit the

relaxation of any of these requirements for pleading or prov-

ing standing. Florida v. Mellon, 273 U.S. 12, 16-17 (1927).

5 Thus, the complaint refers to ‘““Nevada’s political right to

object to its selection as the host for a repository,” Pet. App.

76, to allegations of violations of ““Nevada’s equal footing and

Tenth Amendment rights,” Pet. App. 77, to an alleged “‘in-

fringement upon an unconsenting state’s sovereignty,” id. at

78, and to the State’s objection that any authorization to use

public land for site characterization requires the “Nevada

Legislature’s consent as required by * * * Article I, Section 8,

Clause T7 [the Federal Enclave Clause].” Jd. at 67.

The State also asserts in its petition, Pet. 24-26, but not

in its complaint, that the actions of BLM injured the economic

and environmental well-being of its citizens. But these are

allegations of injury to the State’s quasi-sovereign interests,

not its sovereign interests. Alfred L. Snapp & Son v. Puerto

plaint implies that the Nuclear Waste Policy Act and

its amendments—under which the Department of

Energy is required to characterize Yucca Mountain

for use as a potential repository and under which the

Department of Energy might develop a repository at

Yucca Mountain, Pet. App. 62-63—are contrary to

the State’s claimed sovereign right to refuse consent

for the project, such harm cannot fairly be traced to

the actions of the defendant in this case. BLM

had nothing to do with the passage of the NWPA

or the 1987 Amendments, and is not responsible.

for the NWPA’s administration. All that BLM has

done is to authorize the Department of Energy to

occupy and use the public lands for the purposes of

site characterization. This action was taken not pur-

suant to any provision of the Nuclear Waste Policy

Act, but in the exercise of BLM’s general responsibili-

ties under a preexisting statute, the Federal Land

Policy and Management Act, 43 U.S.C. 1701 et seq.°

Rico, 458 U.S. at 601-602; see Hodel v. Virginia Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 292 n.83 (1981)

(possible detrimental impact of the economy of a state does

not give rise to a violation of the Tenth Amendment’s guar-

antee of state sovereignty) ; Oklahoma v. Atkinson Co., 313

U.S. 508, 534-585 (1941) (same); United States v. Texas,

339 U.S. 707, 716 (1950) (Equal Footing Doctrine protects

the states’ political rights and sovereignty, not their economic

stature or standing). Quasi-sovereign interests may be as-

serted by the State only in its capacity as parens patriae, and

the sufficiency of the complaint with respect to this basis for

standing is discussed at Point 3, infra.

® The Nuclear Waste Policy Act does contain a provision,

applicable to BLM, that requires other agencies to expedite

the Department of Energy’s applications for permits, but only

“to the extent permitted by the applicable provisions of law

administered by such agency.” 42 U.S.C. 10140(a) (1). The

provision further states that the permit shall “include such

It is true that, if the Department of Energy did

not have the right-of-way granted by BLM, the De-

partment of Energy could not implement the statu-

torily mandated program of site characterization. It

therefore would be unable to complete the process by

which the alleged sovereign injury—imposition of a

repository contrary to the State’s wishes—could pos-

sibly be inflicted. But the fact remains that the ac-

tion of BLM is not the proximate cause of the State’s

alleged injury. As the court of appeals put it, “the

only ‘direct consequence [of the BLM action] is that

the site characterization process will proceed to the

next step in accordance with the [Nuclear Waste

Policy Act].’” Pet. App. 8 (quoting Pet. App. 37

(emphasis added) ). The connection between the al-

leged injury to the State’s sovereignty and the con-

duct of BLM is simply too attenuated to permit the

invocation of the judicial power under Article III.

See Allen v. Wright, 468 U.S. at 753; Secretary of

Interior v. California, 464 U.S. 312, 342-343 (1984) ;

Simon vy. Eastern Kentucky Welfare Rights Organ-

ization, 426 U.S. 26, 38 (1976).

Moreover, as the court of appeals concluded, the in-

fliction of this injury is entirely speculative. The

State’s assumption that a decision has been made to

use Yucca Mountain as a repository site is not

grounded in the facts. BLM’s action does not au-

thorize the use of the property as a repository site.

The only body to speak to that subject has been Con-

gress, when it enacted the 1987 Amendments, and,

terms and conditions as may be required by law, and may

include terms and conditions permitted by law.” 42 U.S.C.

10140({a) (2) and (b). Thus, when BLM processed the De-

partment of Energy’s request for a right-of-way, it acted

solely under its own statute, the Federal Land Policy and

Management Act.

even then, the use of Yucca Mountain as a repository

site is conditioned on several major future contingen-

cies. Any putative injury to the State’s sovereignty

is simply not attributable to the only defendant

named in this case, BLM, and therefore there is no

standing to assert such claims against that agency.

See Allen v. Wright, 468 U.S. at 753.

Finally, Nevada acknowledges, Pet. 17, 38, that

the State has received a full hearing on all of its

claims against the constitutionality of the NWPA,

which form the basis of alleged infringement of sov-

ereignty, in its case brought directly against the De-

partment of Energy, the agency that is implementing

the NWPA. Nevada v. Watkins, 914 F.2d 1545 (9th

Cir. 1990), cert. denied, 111 S. Ct. 1105 (1991). Now

that the judgment in that case has become final, the

State is estopped from litigating those claims again.

Blonder-Tongue v. University Foundation, 402 U.S.

313 (1971). Accordingly, there is no purpose in re-

viewing a determination that the State had not pled

its standing to raise them in an action against BLM.

2. The second capacity in which the State brought

this action is as a proprietor. Pet. App. 62. Al-

though a state may sue tc redress injuries to its pro-

prietary interests, such as the interests that arise

from owning property,’ the complaint in this case is

devoid of any identification of any of the State’s pro-

prietary interests, much less an allegation of how

those interests may have been injured by the action

of BLM. The affected area is owned by the United

States, not Nevada. The court of appeals correctly

noted that “Nevada does not own the affected prop-

7 See Alfred L. Snapp & Son Vv. Puerto Rico, 458 U.S. at 601-

602; Pennsylvania v. Kleppe, 533 F.2d 668, 671 (D.C. Cir.),

cert. denied, 429 U.S. 977 (1976).

erty, nor has it alleged that it uses the property for

any purpose.” Pet. App. 9.

3. The State also alleged that it brought this ac-

tion in its capacity as the parens patriae. Under this

doctrine, a State may have standing to assert “‘quasi-

sovereign” interests,“ which fall into two general

categories: (1) “the health and well-being—both

physical and economic—of its residents in general,”

and (2) inclusion in “the benefits that are to flow

from particivation in the federal system.” Alfred L.

Snapp & Son v. Puerto Rico, 458 U.S. at 607-608.

The latter interest does not concern questions of the

relationship between the States and the Federal gov-

ernment, which would involve the State’s sovereign

interests. Rather, it pertains to a State’s interest in

securing for its citizens the advantages of the fed-

eral system, such as freedom from discrimination in

interstate commerce or securing the benefits created

by a federal statute. /bid.

a. But even when a State may assert such quasi-

sovereign interests, the complaint still must satisfy

the core requirement of Article III: identification of

the nature of the interests it seeks to represent and

factual allegations of a direct and immediate injury

to those interests. Alfred L. Snapp d& Son v. Puerto

Rico, 458 U.S. at 602 (quasi-sovereign interests must

not be ‘‘too vague” because they must “survive the

standing requirement of Article III: a quasi-

sovereign interest must be sufficiently concrete to

create an actual controversy between the State and

the defendant’); see Massachusetts v. Mellon, 262

U.S. 447, 480-482 (1923); Maryland People’s Coun-

sel v. FERC, 760 F.2d 318, 321 (D.C. Cir. 1985) ;

8 See Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. at 602-

609; Pennsylvania v. Kleppe, 533 F.2d at 673-675.

Carey v. Klutznick, 6387 F.2d 834, 838 (2d Cir.

1980).

The court of appeals correctly concluded that the

complaint here is “silent as to how these alleged

[statutory and constitutional] violations have re-

sulted in injury to Nevada.” Pet. App. 7. Therefore,

this basis for standing must fail as well. To make up

for this defect, the State relies on a variety of ma-

terials submitted to the court of appeals that discuss

the threats it perceives to the public health and

safety, to the environment, and to the economy of the

State. Pet. 24-26. Reliance on these materials is not

a satisfactory substitute for a properly pled com-

plaint. These materials are not only outside the com-

plaint, but were never made part of the record in the

district court.

Nor can the liberal standards of notice pleading be

stretched this far to excuse Nevada’s failure prop-

erly to plead the requisite injury. In Conley v. Gib-

son, 855 U.S. 41 (1957), relied on by the State, the

complaint described the plaintiffs’ status as em-

ployees covered by the Railway Labor Act and the de-

fendants’ status as plaintiffs’ bargaining agent, and

further alleged that in the administration of a labor

agreement the union had permitted them to be dis-

charged because of their race in violation of the stat-

ute. 355 U.S. at 42-43. In United States v. SCRAP,

412 U.S. 669 (1973), the complaint described the al-

‘leged injury as the increased adverse environmental

impacts on the air and other natural resources en-

joyed by plaintiffs that were alleged to be caused by

increases in freight rates set by the Interstate Com-

merce Commission. 412 U.S. at 678. Similarly, in

Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982), the complaint alleged the plaintiffs were

“residents of the City of Richmond or Henrico

a gh

County” and were deprived, by defendants’ violation

of the Fair Housing Act, of the “right to the impor-

tant social, professional, business and economic, po-

litical and aesthetic benefits of interracial associa-

tions that arise from living in integrated communi-

ties free from discriminatory housing practices.” 455

U.S. at 376. Nevada’s complaint in this case, in con-

trast, contains nothing that even purports to describe

injury to its quasi-sovereign interests. The most the

State can point to in the complaint is the allegation

that the other states have solved the nuclear waste

problem “at the expense of Nevada.” Pet. 22; Pet.

App. 77 (emphasis added). This reference is simply

toc vague to allege any injury establishing standing.

Even if it were appropriate to accept these extra-

record materials, the allegations do not describe an

actual or threatened injury to the State’s quasi-

sovereign interests that can be traced to the conduct

of the defendant. The State relies on a projection of

harms that flow from the construction and operation

of a repository at Yucca Mountain. The State ignores

the fact, however, that no decision to use Yucca Moun-

tain as a repository site has been made.®

The State also overlooks the fact that BLM has

no role to play in deciding whether to use Yucca

Mountain as a repository site. All those decisions

® Equally unfounded is the State’s suggestion that site char-

acterization by itself causes the harm it fears. The premise

of the allegation of harm is that the presence of massive

quantities of radioactive waste in a repository will have ad-

verse environmental effects and will be feared by the public.

It is completely speculative to conclude that the conduct of

site characterization activities, which do not involve the place-

ment of waste at the site and which have virtually no impacts

off the site itself, will induce the adverse effects imagined by

the State.

will be made by the Department of Energy, the Pres-

ident, the Nuclear Regulatory Commission, and per-

haps the Congress. As a result, the perceived harm

that forms the basis for the State’s allegation is not

attributable to conduct of the sole defendant, the

Bureau of Land Management. The lack of a properly

pled allegation of injury to any quasi-sovereign in-

terest is fatal to the claim of parens patriae stand-

ing.”

b. The court of appeals also concluded that a state

may not bring a parens patriae action against a fed-

eral agency, Pet. App. 9, relying on Alfred L. Snapp

& Son v. Puerto Rico, supra. In that case, this Court

held that ‘‘a State does not have standing as parens

patriae to bring an action against the Federal Gov-

ernment.” 458 U.S. at 607 n.14."° The Court quoted

10 Nevada also claims that it need only meet the Article III

minimum for standing, injury-in-fact, and that the prudential

limitations of the standing doctrine do not apply here. Pet.

36-45, 54-55. This contention hardly helps Nevada since the

court of appeals held that its complaint failed to allege even

the constitutional minimum of injury. The contention is er-

roneous in any event. Nevada’s cause of action for review of

the right-of-way is found in the Administrative Procedure

Act, 5 U.S.C. 551, not the NWPA, and the zone of interests

test is derived directly from the APA. See Lujan v. National

Wildlife Fed’n, 110 S. Ct. 83177, 3186 (1990) ; Data Processing

Service Organizations v. Camp, 397 U.S. 150, 153 (1970).

Nevada relies, Pet. 45, on Gladstone Realtors v. Village of

Bellwood, 441 U.S. 91, 100 (1979), but in that case, the Court

was construing Sections 810 and 812 of the Fair Housing Act

of 1968, 42 U.S.C. 3610 and 3612, not the Administrative Pro-

cedure Act.

11 Contrary to Nevada’s assertion, Pet. 53-54, the four con-

curring Justices did not disagree with this part of the Court’s

opinion. The quotation from Justice Brennan’s concurring

opinion is not a reference to footnote 14, the concurring opin-

ion does not even discuss this issue, and the concurring Jus-

from Massachusetts v. Mellon, 262 U.S. 447 (1923):

“it is no part of [a State’s] duty or power to enforce

[the citizens’] rights in respect of their relations with

the federal government. In that field, it is the United

States, and not the state, which represents them as

parens patriae.” 262 U.S. at 485-486. The judgment

below is consistent with a number of other decisions

denying parens patriae standing to state challenges to

the administration of federal statutes. See Jowa ex

rel. Miller v. Block, 771 F.2d 347, 354-855 (8th Cir.

1985) (challenge under Administrative Procedure

Act to administration of disaster relief legislation),

cert. denied, 478 U.S. 1012 (1986) ; Maryland People’s

Counsel v. FERC, 760 F.2d 318, 320 (D.C. Cir. 1985)

(court denied parens patriae standing, but found stat-

utory standing to challenge orders under Natural

Gas Act); Pennsylvania v. Kleppe, 535 F.2d 668,

677-678 (D.C. Cir.) (challenge under Administra-

tive Procedure Act to administration of disaster re-

lief legislation), cert. denied, 429 U.S. 977 (1976);

Minnesota v. Benson, 274 F.2d 764, 766 (D.C. Cir.

1960) (statutory challenge to a milk marketing

order) .*

In this Court, Nevada claims, Pet. 55-56, that its

challenge falls within a qualification to this bar sup-

posedly preserved in Massachusetts v. Mellon: “We

need not go so far as to say that a State may never

intervene by suit to protect its citizens against any

form of enforcement of unconstitutional acts of Con-

gress.” 262 U.S. at 485. The statute the State is

tices expressly joined the opinion of the Court. 458 U.S. at

611-612.

12 Although the Second Circuit in Carey v. Klutznick, 637

F.2d 834, 838 (1980), found parens patriae standing to chal-

lenge a census count, that case was decided before Snapp.

attacking as unconstitutional, however, is the NWPA;

that law is being implemented by the Department of

Energy, and not BLM. As we have shown, the chal-

lenge to the right-of-way is simply the wrong action

against the wrong defendant for the litigation of this

claim. For this reason, and in view of the complete

failure of the complaint to plead any quasi-sovereign

injury, this case is not an appropriate one in which

to review the parens patriae capacity of a State to

sue the United States.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.