Opposition Brief — County of Boyd v. US Ecology, Inc.

No. 94-1955

: In The

; Supreme Court of the United States

October Term, 1994

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THE COUNTY OF BOYD, a local Nebraska

litical subdivision, and THE BOYD COUNTY

L MONITORING COMMITTEE, on behalf of

themselves and all others similarly situated,

Petitioners,

vs.

US ECOLOGY, INC.,

Respondent.

¢

On Petition For Writ Of Certiorari

From The United States Court Of Appeals

For The Eighth Circuit

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RESPONDENT'S BRIEF IN OPPOSITION

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Steven G. Secun, #13756*

Mart J. Brocxmar, #20040

Crossy, Guenzet, Davis, KessNer & KugEsTER

Attorneys at Law

Suite 400

134 South 13th Street

Lincoln, Nebraska 68508

Telephone: (402) 434-7300

Attorneys for Respondent

“Counsel of Record

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TABLE OF CONTENTS

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REASONS WHY THE WRIT. SHOULD BE DENIED

1. No “Special And Important Reasons” Warrant-

ing Exercise of the Court’s Certiorari Jurisdic-

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TABLE OF AUTHORITIES

Page

CASEs:

Hickman v. Taylor, 329 U.S. 495 (1947) ............2... 5

Layne & Bowler Corp. v. Western Well Works, 261

UD. Te CONGO «oo cvbiecvnnabuceidare aes eee das 4

McNabb v. United States, 318 U.S. 332 (1943).......... 5

Moses H. Cone Hospital v. Mercury Construction

Covp., GG UG. F GS v6ivedeccibacccghalin sateen 5

NLRB v. Hendricks County Rural Elec. Corp., 454

U.S. TPR GAMBED sfc cic ciwidsesadducckemeenan 4

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955)........ 4

Ross v. Moffitt, 417 U.S. 600 (1974) ...............-45. 4

Sacher v. United States, 343 U.S. 1 (1952).............. 5

Theil v. Southern Pacific Co., 328 U.S. 217 (1945) ...... 5

Thermtron Products v. Hermansdorfer, 423 U.S. 336

CUDPE).. .- a cccaivdencdeddpastuseesdpheetpenseceneues 5

United States v. Johnson, 268 U.S. 220 (1925) .......... 4

No. 94-1955

a

In The

Supreme Court of the United States

October Term, 1994

°

THE COUNTY OF BOYD, a local Nebraska

political subdivision, and THE BOYD COUNTY

LOCAL MONITORING COMMITTEE, on behalf of

themselves and all others similarly situated,

Petitioners,

vs.

US ECOLOGY, INC.,

|

)

|

Respondent.

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On Petition For Writ Of Certiorari

From The United States Court Of Appeals

For The Eighth Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

¢

The respondent, US Ecology, Inc.!, respectfully

requests that the Court deny the petition for a writ of

certiorari, seeking review of the Eighth Circuit’s opinion

in this case.

' The parent corporation of US Ecology, Inc. is American

Ecology, Inc. See, Supreme Court Rule 29.1.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit is reported at 48 F.3d 359 (8th Cir.

1995). The opinion of the district court is reported at 858

F.Supp. 960 (D.Neb. 1994).

STATEMENT OF THE CASE

Petitioners’ statement of the case inaccurately sets

forth some of the facts underlying this action and omits

others.

The district court found that it has diversity jurisdic-

tion to decide this case. Pet. App. at 8. It therefore

declined to decide whether the case could be entertained

under federal question jurisdiction. Id. Conversely, the

Eighth Circuit found that the case presents a federal

question, and therefore declined to decide whether diver-

sity jurisdiction exists. Pet. App. at 4. Contrary to the first

question presented, the courts below correctly decided

that the federal courts have jurisdiction to decide this

case, either under the diversity of citizenship statute, or

federal question statute.

As the district court’s opinion discloses, there are no

material facts in dispute in this case. Pet. App. at 21. The

facts were determined by the district court to be uncon-

troverted. Id. Indeed, the petitioners conceded all of them

to be true, Id., including (a) that the Governor and the

State of Nebraska, acted on behalf of Boyd County and

the Boyd County Local Monitoring Committee in Nelson

I, as parens patriae; (b) the claims raised in the action

are based on the same factual predicate and arise out of

the same nucleus of operative facts as advanced in Nelson

I and Nelson II; (c) essentially the same evidence as that

offered in Nelson I and Nelson II governs the issue of

fraud and negligence; and (d) Boyd County and the Boyd

County Local Monitoring Committee are in privity with

the plai: ‘iffs in Nelson I and Nelson II. Pet. App. at 19-20.

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REAS WHY THE WRIT SHOULD BE DENIED

1. No “Special And Important Reasons” Warranting

Exercise of the Court’s Certiorari Jurisdiction Exist.

As set forth in Supreme Court Rule 10.1, the Court

grants petitions for certiorari “only when there are spe-

cial and important reasons therefor.” No such reasons are

offered by the petition in this case.

Petitioners assert no split in the circuits on any ques-

tion they present because there is none. Supreme Court

Rule 10.1(a). Petitioners do not claim that the Court of

Appeals has decided a federal question in+a way that

conflicts with an applicable decision of the Court.

Supreme Court Rule 10.1(c). This case presents no impor-

tant question of federal law which has not been, but

should be settled by this Court. Id.

In reality, petitioners’ claims boil down to complaints

about the factual and legal determinations made by the

lower courts. They seek to rehash issues which were fully

presented to and decided by the lower courts. The

Supreme Court ordinarily will deny certiorari when

review is sought of a decision from a lower court which

turns solely upon an analysis of the particular facts. See,

e.g., United States v. Johnson, 268 U.S. 220, 227 (1925) (the

Court stated: “[w]Je do not grant a certiorari to review

evidence and discuss specific facts.”); see also NLRB v.

Hendricks County Rural Elec. Corp., 454 U.S. 170, 176 n.8

(1981) (the Court ruled that it improvidently granted a

cross-petition that presented primarily “a question of

fact, which does not merit Court review.”). The Supreme

Court has also stated many times that it is not primarily

concerned with the correction of errors in lower court

decisions. See, e.g., Ross v. Moffitt, 417 U.S. 600, 616-17

(1974) “[t]his Court’s review * * * is discretionary and

depends on numerous factors other than the perceived

correctness of the judgment we are asked to review.” The

grant of certiorari concept of importance has been held

by the Court to focus on the significance of the matter to

the public generally rather than the parties to the case

particularly. Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393 (1923); Rice v. Sioux City Cemetery, 349

U.S. 70, 79 (1955) (the Court also provided that it does not

sit “for the benefit of particular litigants . . . ‘Special and

important reasons’ imply a reach to a problem beyond the

academic or the episodic.” (id. at 74)). Petitioners do not,

nor could they in good faith, claim that the resolution of

the issues they raise are of great consequence to the

public at large; the issues here are important only to

petitioners.

It is clear that petitioners seek a mere correction of

perceived errors by the lower courts when they argue

that their claims are factually and legally different from

the claims presented in Nelson I. Pet. at 5-6. Nevertheless,

petitioners attempt to bolster their petition by claiming

that the lower courts departed from “the accepted and

usual course of judicial proceedings.” Pet. at 7. This refer-

ence is apparently designed to invoke the Court's super-

visory authority over the federal judicial system. See

Supreme Court Rule 10.1(a).

Review of the Court’s decisions shows that it exer-

cises its supervisory authority only when truly important

procedural or substantive issues are involved. For exam-

ple, the administration of criminal justice in federal court

(McNabb v. United States, 318 U.S. 332, 341 (1943)); the

proper establishment of federal jury panels (Theil v.

Southern Pacific Co., 328 U.S. 217, 225 (1945)); the scope of

the federal contempt powers (Sacher v. United States, 343

U.S. 1 (1952)); the construction of the federal rules of civil

and criminal procedure (Hickman v. Taylor, 329 U.S. 495

(1947)); the use of abstention doctrines (Moses H. Cone

Hospital v. Mercury Construction Corp., 460 U.S. 1 (1982));

and the power of a district court to deny removal from a

state court because the district court’s docket was too

heavy (Thermtron Products v. Hermansdorfer, 423 U.S. 336

(1976)) all justify exercise of the Court’s supervisory

authority. However, the supposed “irregularities” peti-

tioners cite, i.e. district court’s reliance on respondent's

notice of removal (Pet. at 8); district court’s recitation of

the opposition of the Governor of Nebraska to construct

the low-level radioactive waste facility (Pet. at 9); the

district court’s reliance on statements made by peti-

tioners’ counsel in a related case (Pet. at 10); and the

district and Eighth Circuit courts’ reliance on the litiga-

tional history of the waste facility (Pet. at 10), are in no

realistic way irregular. But even if they were, they do not

rise to the level of important federal questions custom-

arily considered by the Court when exercising its cer-

tiorari jurisdiction.

Petitioners argue that their fraud allegations are not

the same cause of action as in Nelson I and Nelson II, and

that they are not bound to those decisions because they

were not parties to Nelson I and Nelson II. These are the

same issues raised and decided by the district and Eighth

Circuit courts. Pet. App. at 21-22; Pet. App. at 5. The

district court found that the causes of action were identi-

cal for res judicata purposes.

The issue brought by Governor Nelson and the

State of Nebraska in Nelson I and Nelson II was

whether the Compact Commission and US Ecol-

ogy had “failed to obtain ‘community consent,’

thereby violating a resolution passed and

adopted by the Commission, and violating the

Low-Level Radioactive Waste Disposal Act

adopted by the State of Nebraska to implement

the Compact.” Nelson I, 834 F.Supp. at 1208. The

“inextricably linked” first and second causes of

action in this case, (Filing 1 Ex. A 433), are

based upon US Ecology’s alleged “efforts to site

a low-level radioactive waste facility in a com-

munity without that community’s consent.” (Id.

50.

Pet. App. at 33-34.

The Eighth Circuit Court of Appeals upheld this rul-

ing finding that “[t]he doctrine of claim preclusion pro-

vides that all theories of recovery stemming from one

factual situation must be brought at once, or are forfeited;

the law will not tolerate successive suits by a plaintiff

stemming from the same scenario.” Pet. App. at 5-6.

Similarly, the district court found that there was

“privity” between the petitioners and the Governor of the

State of Nebraska because they “ ‘are so closely related’

to Governor Nelson and the State of Nebraska in Nelson |

and Nelson II and ‘their interests so nearly identical’ that

it ‘is fair to treat them as the same parties for the pur-

poses of determining the preclusive effect’ of Nelson I and

Nelson II on the present action.” Pet. App. at 36. The

reasons given by the district court for this close relation-

ship are as follows:

(1) the plaintiffs in all three actions (the Gover-

nor of the State of Nebraska or political subdivi-

sions thereof) are political entities of the state,

sharing common political bonds;

(2) no private parties appear as named plain-

tiffs in Nelson I, Nelson II or in this case;

(3) the plaintiff in Nelson I and Nelson II speci-

fically asserted the interests of one of the Plain-

tiffs in this case (Boyd County, Nebraska) in

bringing Nelson I and Nelson II; and

(4) lead counsel for Plaintiffs in this case

appeared in an effort to oppose the granting of

the motions for summary judgment in Nelson I,

asserting that the decision in Nelson I would

resolve the issue of “community consent” adver-

sely to one of the Plaintiffs in this case (the Boyd

County Local Monitoring Committee).

Pet. App. at 40-41.

The Eighth Circuit upheld the decision of the district

court stating:

Here, the district court, in its comprehensive,

thorough opinion, held that the interests of the

plaintiffs in the Nelson cases and the County

herein were identical. County of Boyd, 858

F.Supp. at 971-73.

No other conclusion is possible. In the

Nelson cases, the County’s residents were repre-

sented by the state and the governor of

Nebraska; in the present action, they are repre-

sented by the County, which seeks identical

relief. [The County as used by the Eighth Circuit

includes both Boyd County and the Boyd

County Local Monitoring Committee].

Pet. App. at 6.

The claim of irregularity by the district court for

considering counsel’s litigation strategy (Pet. at 9-10) is

not only mischaracterized by petitioners but answered in

great detail in the court’s decision. Pet. App. 37-39. The

district court concluded by stating: “[f]rom Ms. Knapp’s

involvement it is apparent as a matter of fact, that Governor

Nelson, the State of Nebraska and Plaintiffs in this case

were ‘closely related’ at the time of Nelson I.” Pet. App.

39.

Petitioners claim that the recitation of the litigational

history of attempts to stop the construction of the low-

level radioactive waste facility shows prejudice on the

part of the district and Eighth Circuit courts because

petitioners were not parties to the prior litigation and the

case at bar does not seek to stop the construevion of the

facility. Pet. at 6, 10-11. The lower court’s summary of

prior litigation dealing with the same basic subject matter

(Pet. App. at 22; Pet. App. at 2) is in no way unusual.

Courts commonly recite historical facts in related cases

and compare issues which may provide some insight in

analyzing the claims presented to them for decision.

Nothing in that approach deprived the petitioners of any

legal rights; more to the point, nothing in that approach

departs so far from common adjudicative methodology to

warrant this Court’s attention.

Petitioners also complain that the district court’s

reliance on US Ecology’s notice of removal and an exhibit

attached thereto was a departure from the common

understanding of the rules of evidence and constituted a

ruling on the law unsupported by any precedent. Pet. at

7-8. This claim, however, misstates the district court’s

rationale for relying on US Ecology notice of removal and

attached exhibit. The district court fully addressed peti-

tioners’ argument and supported its decision with com-

plete and appropriate references to the facts and the law.

See Pet. App. at 14-15.

Petitioners renewed this complaint before the Eighth

Circuit, which specifically rejected it, apparently relying

on the district court’s analysis. Pet. App. at 4, n.3. Iron-

ically, given their present complaints about “irregu-

larities,” petitioners also attempt to bolster their

jurisdictional argument by raising new issues on appeal

which were never presented to the district court, and by

relying on a document never offered in evidence. Pet.

App. at 4. The Eighth Circuit declined to resolve peti-

tioners’ arguments about diversity jurisdiction however,

finding that “this case is within our subject matter jurisdic-

tion because it presents a federal question.” Id. It offered

clear and persuasive reasons for that conclusion. Id. In

addition, the petition does not quarrel with those reasons,

ania ii

10

nor does it directly challenge the Eighth Circuit's jurisdic-

tional ruling.

CONCLUSION

No special and important reasons warranting exer-

cise of this Court's certiorari jurisdiction exist. Petitioners

present no such “special and important reasons,” but

merely seek a review by this Court of the factual and

legal determinations of the lower courts because of their

dissatisfaction with the adverse decisions. The district

court and Eighth Circuit correctly decided the issues of

res judicata and removal jurisdiction. The claimed depar-

ture from the accepted and usual course of judicial pro-

ceedings is without merit. The petition for a writ of

certiorari should be denied.

Respectfully submitted,

US Ecology, Inc., Respondent,

By: SteveN G. SEGLIN

Marti J. BROCKMEIER

Crossy, GUENZEL, Davis,

KESSNER & KUESTER

134 S. 13th Street, Suite 400

Lincoln, Nebraska 68508

Telephone (402) 434-7300