# Opposition Brief — Nevada v. Watkins > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3297%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1118 ## Text cas Supreme Court, U.> FILE b FEB 12 199 OFFICE OF THE Cic. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1990 DISTRIBUTED FEB Le 1991 No. 90-992 STATE OF NEVADA ET AL., PETITIONERS JAMES D. WATKINS, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OPPOSITION OF THE FEDERAL RESPONDENTS TO MOTION TO DEFER CONSIDERATION The Solicitor General, on behalf of the Secretary of Energy and the Department of Energy, hereby opposes the Motion to Defer Consideration filed by the petitioners in this case. Petitioners, the State of Nevada and various officials and representatives of the State, seek review of a decision of the United States Court of Appeals for the Ninth Circuit that rejected their constitutional and statutory challenges to the implementation of the Nuclear Waste Policy Act, 43 U.S.C. 10101 et seq. Pet. App. 1-37. In that statute, congress has directed the Department of Energy to characterize a site in Nevada known as Yucca Mountain as a potential location for a permanent underground nuclear waste -2- repository. 43 U.S.C. 10133{(a). Petitioners seek to defer consideration of their petition for a writ of certiorari in this case until disposition of another petition, not yet filed, in a separate case brought by the State against the Bureau of Land Management, an agency of the Department of the Interior. That agency granted a right-of-way pursuant to the Federal Land Policy and Management Act, 43 U.S.C. 1761, which permits the Department of Energy to use public lands in the vicinity of Yucca Mountain for the site characterization program. The district court dismissed the State's complaint challenging the right-of-way for lack of standing, and the court of appeals affirmed. 918 F.2d 854 (1990) (copy attached). The Department of Energy is not a party to the latter case. Although in each case the State is attempting to prevent the carrying out of site characterization activities, in this Court each case presents distinctly different issues. In the present case, No. 90-992, the State presents several direct challenges to the constitutionality of the Nuclear Waste Policy Act, as well as to the Department of Energy's implementation of the statute, all of which the court of appeals rejected on their merits. Pet. App. 13-37. In its complaint against the Bureau of Land Management, the State included some of these same claims, but the court of appeals decided only that the complaint had failed to allege any basis for satisfying the standing requirements of Article III. 918 F.2d at 855-858. There are no common questions, and thus nothing about the - 3- relationship petween the two cases that would warrant deferring disposition of the petition in No. 90-992. Moreover, delay in the consideration of No. 90-992 will result in continued frustration of the Congressional mandate to characterize the Yucca Mountain site. In order to carry out this program, the Department of Energy must obtain permits from State agencies exercising delegated authority under the Clean Air Act, 42 U.S.C. 7401 et seq., and the Safe Drinking Water Act, 42 U.S.C. 300f et seg., as well as a permit to appropriate water for the project. The State's motion fails to mention the fact that the State has rejected the Department of Energy's permit applications solely because of the effect of three state legislative enactments purporting to make site characterization activities illegal under state law. Pet. App. 9-11. As a result, the United States filed suit more than a year ago in the United States District Court for the District of Nevada seeking an injunction requiring the State to process the applications. United States v. State of Nevada, No. CV-S-90-065~-HDM. The United States argues that these state laws have been preempted by the Nuclear Waste Policy Act. This contention was subsequently sustained in the court of appeals decision under review in No. 90-992, which originated in the court of appeals as a separate proceeding. In response to the repeated request of the State, the district court in United States v. State of Nevada, supra, first stayed proceedings pending the court of appeals decision, and now has stayed disposition of the United States' motion for summary — judgment pending the disposition of the petition for a writ of certiorari filed in No. 90-992 (Orders dated May 23, 1990, and December 14, 1990, copies attached). Any further delay in the disposition of the petition is significantly prejudicial to the ability of the Department of Energy to carry out the will of Congress. CONCLUSION For the reasons stated above, the motion to defer consideration should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General FEBRUARY 1991 854 the crime.” Runco, 873 F.2d at 1232. Thus, there was sufficient evidence to sup- port Hadley’s conviction on count eight. Vv {12} Finally, Hadley contends that the district court erred by imposing a sentence not in accordance with the Sentencing Guidelines for his conviction on count sev- en. The district court did not apply the Sentencing Guidelines in imposing a 30- year sentence on that conviction. The court did follow the Sentencing Guidelines when it sentenced Hadley to nine years in prison on counts eight and nine. Hadley’s contention is without merit. We have held that the Sentencing Guide- lines do not apply to conduct that occurred before November 1, 1987. United States v. Gray, 876 F.2d 1411, 1418 (9th Cir.1989), cert. denied, — U.S. ——, 110 S.Ct. 2168, 109 L.Ed.2d 497 (1990). There is no dis- pute that the conduct underlying the count seven conviction occurred in October 1987, prior to the effective date of the Sentenc- ing Guidelines. Thus, the district court did not err when it declined to apply the guide lines to count seven. AFFIRMED. —— STATE OF NEVADA, Plaintiff-Appellant, v. Robert F. BURFORD, Director of Bureau of Land Management, Department of Interior; Edw F. Spang, Nevada State Director, Bureau of Land Management, D ment of Interior, Defendants—Appéllees. No. 89-15272. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 16, 1990. Decided Nov. 14, 1990. State of Nevada brought action chal- lenging Bureau of Land Management's - 918 FEDERAL REPORTER, 24 SERIES grant of right-of-way to Department of En- ergy to conduct site characterization study of proposed nuclear waste repository. The United States District Court for the Dis- trict of Nevada, Philip M. Pro, J., dismissed action, 708 F.Supp. 289, and State ppealed. The Court of Appeals, Wallace, Circuit Judge, held that Nevada failed to show that it would suffer concrete and immedi- ate injury as result of grant of right-of- way, and did not have standing to chal- lenge grant. " Affirmed. 1. Federal Courts €557 Where district court has inadvertently neglected to dismiss action but it is clear it intended its order to terminate action, Court of Appeals - treats action as dis- missed. 2. Federal Courts 4-555 Order which dismissed complaint but which did not dismiss underlying action was appealable, where it was clear that ruling by district court was meant to be dispositive of action. 28 U.S.C.A. §§ 1291, 1331 . 3. Federal Civil Procedure 103.1 Federal Courts €-12 - - “Case or controversy” limitation in ar- ticle III of the Constitution requires that federal courts visit threshold question of standing in every federal case; in order to clear this jurisdictional] hurdle, complaining party must demonstrate injury in fact. U.S.C.A. Cons} Art. 3, § 1 et seq. 4. Health and Environment ¢25.15(4) State of Nevada failed to show that it would suffer concrete and immediate injury as result of Bureau of Land Management's grant of right-of-way to Department of En- ergy to conduct site characterization study of proposed nuclear waste repository, and did not have standing to challenge grant; land was owned by federal government, and State did not allege that it used site for STATE OF NEV. v. BURFORD eae a Cte an 918 F.2d 854 (9h Cir. 1990) any purpose. Nuclear Waste Policy Act of, 1982, § 2 et seq., as amended, 42 U.S.C.A. § 10101 et seq.; Federal Land Policy and Management Act of 1976, § 102 et seq., 48 U.S.C.A. § 1701 et seq.; National Environ- mental Policy Act of 1969, § 2 et seq., 42 US.C.A. § 4821 et seq.; U.S.C.A. Const.” Art. 3, § 1 et seq. 855 JI In February of 1983, Nevada was noti- fied that certain public lands near Yucca Mountain were under consideration as a national repository for the disposal of nu- clear waste. Four years later, Congress decided to concentrate waste repository de- velopment efforts on:the Yucca Mountain — _ site. Accordingly, Congress amended the 3 Harry W. Swainston, Deputy Atty. Gen., Carson City, Nev., for plaintiff-appellant. George W. Vancleve, US. Dept. of Jus- tice, Washington, D.C., for defendants-ap- pellees. Appeal from the United States District Court for the District of Nevada. Before WALLACE, ALARCON and WIGGINS, Circuit Judges. WALLACE, Circuit Judge: . {1,2} Nevada appeals from the dismis- sal of its complaint against the Bureau of Land Management (Bureau), in which Ne- vada alleges that the Bureau improperly granted a right-of-way to the Department of Energy (Department) to conduct site characterization studies at Yucca Moun- tain, Nevada. The district court concluded that Nevada lacked standing to pursue this action, and dismissed the complaint. The district court exercised jurisdiction pursu- ant to 28 U.S.C. § 1331. Our court has no jurisdiction to review a dismissed com- plaint; 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 in- tended its order to terminate the action, we treat the action as dismissed. Kilkenny v. Arco Marine: Inc., 800 F.2d 853, 855-56 (9thn Cir.1986), cert. denied, 480 U.S. 934, 107 S.Ct. 1575, 94 L.Ed.2d 766 (1987). Here it is clear that the ruling by the district court was meant to be dispositive of the action. Therefore, we have jurisdic- tion over this timely appeal under 28 U.S.C. § 1291. We affirm. Nuclear Waste Policy Act (Waste Act), 42 US.C. §§ 19101-10270, to require that site characterization activities proceed solely at Yucca Mountain. Jd § 10133(a). Site characterization consists of extensive test- ing conducted by the Department in order to evaluate the suitability of a site for the location of a repository. Jd § 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 of a site ... requires a certificate, 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 earli- est practicable date, to the extent permit- ted by the applicable provisions of law administered by such agency or officer. 42 U.S.C. § 101401) (emphasis added). Pursuant to this section, the Department applied to the Bureau in November 1987 for a right-of-way over public land near Yucca Mountain. This land is administered by the Bureau under the Federal 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.” Jd § 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 authorized the Department to undertake necessary site character- ization activities on that land in accordance with the Department’s Plan of Develop- ment. Under this plan, the Department intends to excavate several exploratory shafts and conduct a variety of scientific tests. The 856 Department has stated that site character ization 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 charac- terization to a stable ecological state with a form and productivity similar to the predis- turbance state.” Moreover, the -rightof- 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 violat- ed requirements in both the Land Act and the National Environmental Policy Act (En- vironmental Act). In addition, it claimed that the Bureau’s actions violated Nevada’s constitutional right, including that © ‘the right-of-way rendered meaningless Neva- da’s political right to object to its selectiqn as a waste repository site. The district court determined that Nevada lacked standing to pursue the action, and conclud- ed that the constitutional claims were with- out merit. 4 II We review de novo the district court’s legal conclusion that Nevada lacks stand- ing. Bruce v. United States, 159 F.2d 755, 758 (9th Cir.1985). Moreover, 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 DS. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). {3] .The “case or cqntroversy” limitation in article III of the Constitution requires that federal courts visit the “threshold question” of standing in every federal case. Id. at 498, 95 S.Ct. at 2205. In order to clear this jurisdictional hurdle, a complain- ing party must demonstrate an injury in fact. Valley Forge Christian College v. Americans ‘"vited for Separation of. Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) (Valley Forge). The Supreme Court has held that this constitutional injury require- 918 FEDERAL REPORTER, 2d. SERIES ment “embraces three related elements: ay" an actual or threatened injury, (2) which is* fairly traceable to the defendant's allegedly’ 3 unlawful conduct, and (8) which is likely ta be redressed.by the relief requested. | See, P Allen v. Wright, 468 U.S. 787, 751, 104! S.Ct. 8815, $324, 82 L.Ed.2d 556 (1984), (ai len); Valley Forge, 454 US: ‘at 472, 102? S.Ct. at 758; Alaska Fish & Wildlife Fed\4 eration v. Dunkle, 829 F.2d 988, 987 (9th -* Cir.1987), cert. denied, 485 U.S. 988, 108 / S.Ct. 1290, 99,.L.Ed.2d 501_.(1988), ae: i [4] To satisfy the first of these require ‘ ments, Nevada must show that it “has : — 2 8 STATE OF NEVADA, ET AL., U.S. ATTORNEY, LAS VEGAS, ee nn MINUTES OF THE COURT DATE: May 23, 1990 PRESENT: _ HOWARD D. McKIBBEN U.S. District Judge Deputy Clerk: Cliff Chamblee Reporter: Lesley Clarkson Counsel for Plaintiff(s) Karen Eabert Counsel for Defendant(s) Brian McKay and Harry Swainston COURT CONVENES AT 11:30 A.M. & CONCLUDES AT 12:10 P.M. MMSIXRE XORRERXENXRNAMRERRX PROCEEDINGS: HEARING MOTION OF DEFENDANTS FOR STAY OF PROCEEDINGS (#6): Hearing is held on the motion of dGefendants for stay of proceedings, or in the alternative, to dismiss. Arguments made. IT IS ORDERED that the motion for stay of proceedings filed on behalf of defendents (#8) is GRANTED, and this action is stayed pending final resolution of the action presently pending in the Ninth Circuit Court of Appeals, case number 90-70004. Court directs counsel in this action to file pleadings regarding any action taken by the Ninth Circuit Court of Appeals. A formal order from this Court will subsequently be filed. CAROL C. sa CLERK SOG . Ke 44: Seer icon (/ (Deputy Clerk 9 tardtuk + OE W-5-2-2-79 eee oe, a_er ee ZAaRSES ele 8 a8 ye lisSw sanmaecs -- ~~ = 2 | ~ “awe - AMERICA, | é ey yy tw” ° ’ plaintifé, ‘ve vs. . et L_ Aken STATE OF NEVADA, ET AL.» ) CIVIL-S=_90-65-HDM (RJJ) Defendants. ) ) MINUTES OF THE COURT ) ) DATE: December 14, 1990 PRESENT: HOWARD D. MCKIBBEN 0,8. District Judge Deputy Clerk: Cliff Chamblee Reporter: Oma Rose-Recordec Counsel for Plaintiff (s) Karen L. Egbect Counsel for Defendant (8) Haccy Swainston, Deputy Attorney General couRT CONVENES AT 10: 6 A.A. 7a. MEAT ORD DROP NCOCRANEERS TELEPHONE CON FILED ON BEHALF OF PENDING U.S. SUPREME COURT DECISION, PROCEEDINGS: HEARING MOTION Heacing held and acg IT IS ORDERED plaintiff to congideced filed be filed no latec filed by Januacy 25, 1991. aftec all oppositions foc summacy judgment, The stay in this than the issues ce Fa bunt, Garemen that the stay in thi file a meticn for sum as of this date; than Januacy 15, and ceplies ace 1991, action shall cemain in effect foc all puc foc summacy judgment. FERENCE CALL s action is lit macy judgment, any opposition DEFENDANT TO MAINTAIN STAY ETC. (#22) uments made telephonically. ted only for the which will be by defendants shall and any final ceply shall be filed with cespect to the motion this mattec shall stand submitted. poses othec CAROL C. FITZGERALD, CLERK --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3297%3A3. Public record. Not legal advice.