Opposition Brief — Nebraska v. Central Interstate Low-Level Radioactive Waste Commission

No. 01-87

In The

Supreme Court of the United States

+ —

STATE OF NEBRASKA,

Petitioner,

CENTRAL INTERSTATE LOW-LEVEL

RADIOACTIVE WASTE COMMISSION,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

e —

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

*ALAN E. PETERSON, Esq.

SHAWN D. RENNER, Esa.

Cine, Wittiams, WriGHT,

JOHNSON & OLDbFaATHER, L.L.P.

1900 U.S. Bank Building

233 South 13th Street

Lincoln, Nebraska 68508

(402) 474-6900

Counsel for Respondent

*Counsel of Record

—

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

pe OS Be Be er rrr Pre rrr ee i

Bet GE PATER hone sc nakaenciadeeests ii

AP MeS GOP BES CADE soa cc ccc ccesasssaenens 1

Progress of the Case and the Sovereign Immunity

Ee Fee tL OF EEE Tre epee ee TTS ee ree 1

The Mandatory Duty of Respondent to Enforce the

S| SEO ET See Tee eT EET Te CPP EEL EET COT Ee 3

The Wrongdoing Alleged in Respondent’s Com-

Oe ET EO EOL Pe Serer ne td eer ere Terre 4

Respondent’s Prayer for Relief..................... 7

REASONS FOR DENYING THE WRIT............. 8

The Petition seeks an advisory opinion in that the

lower courts have so far only overruled a

Fed.R.Civ.P. Rule 12(b)(6) motion to cismiss, Peti-

tioner does not contest at least an Ex parte Young

type remedy, and neither ultimate liability nor the

remedy have been determined................... 9

The Eighth Circuit decision does not raise the ques-

tion presented by the petition, because Petitioner’s

strained characterization of the Compact to pro-

vide only prospective relief is an argument, not a

factual premise, and the courts below have reason-

ably construed the contract remedy otherwise, to

encompass enforcement of duties and obligations,

including those arising from breach of the Com-

Se TE ee ey ere Tore err eT 12

ii

TABLE OF CONTENTS - Continued

Page

Petitioner’s waiver of sovereign immunity was

found and affirmed on grounds consistent with

Supreme Court and other federal court authority,

because the waiver recognized within the Compact

is “stated by the most express language or by such

overwhelming implications from the text as leave

no room for any other reasonable construction”

and Petitioner has suggested no other reasonable

COMBIPUCTIOR 6.65 ic sk isc cndaksa en ecaneeeebeeteese 14

CONLALAISIAAN «4a ¢iccuesneweaauue neuen eubeeanen 23

iii

TABLE OF AUTHORITIES

Page

Cases

Andrus ex rel. Andrus v. State of Ark., 197 F.3d 953,

EE Ts ack dccpascaneetsewsrsdndenstece 11

Atascadero State Hospital v. Scanlon, 473 U.S. 234

BRS ee rer ere rer et Pr err rer ere er 17, 18

College Savings Bank v. Florida Prepaid Post Second-

ary Educ. Exp. Bd., 527 U.S. 666 (1999)......... 15, 19

Edelman v. Jordan, 415 U.S. 651 (1974)............... 14

Ex parte Young, 209 U.S. 123 (1908).......... 1, 9, 3, ii

Hess v. Port Authority Trans-Hudson Corp., 513 U.S.

ES HAdaSs aN eds anS haa eh opeecbucansees 18, 20

Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978)...... 11

Mitchell v. Forsyth, 472 U.S. 511 (1985) ............. 10

Petty v. Tennessee-Missouri Bridge Comm’‘n, 359 U.S.

BE CE habe ed cecensedpavcnas 15, 16, 17, 18, 19, 20

Port Authority Trans-Hudson v. Feeney, 495 U.S. 299

Sebi 5 vines asd eaeeu Oye senekes 15, 17, 18, 19, 20

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

ee Sie Be CRDUED 6 oes a cease nnankdnnenenae 10

Texas v. New Mexico, 482 U.S. 124 (1987) ......... 15, 19

STATUTES

A PE Awe cls inte ne hvkseaeavinn Kavdeew as 3, 6

Appalachian States Low-Level Radioactive Waste

Compact, 42 U.S.C. § 2021d, 102 Stat. 471......... 22

iv

TABLE OF AUTHORITIES - Continued

Central Midwest Interstate Low-Level Radioactive

Waste Compact, 42 U.S.C. § 2021d, 99 Stat. 1842

N.S ac bos 426 55s KS ESS 55d ohana keen eaee a

Central Midwest Interstate Low-Level Radioactive

Waste Compact, 42 U.S.C. § 2021d, 108 Stat.

DT cekewia ds hicaee dese ied eee keaeneeines

PS MND 5 055 b a hded Savas adhe cekanaeews

Pe Es NE wk dreds eeenckdeueeeweeoanwan Pr

Midwest Interstate Low-Level Radioactive Waste

Compact, 42 U.S.C. § 2021d, 99 Stat. 1842 (Sec.

i Pr errr: frre er yr Per ery Per Tere

Northeast Interstate Low-Level Radioactive Waste

Management Compact (now Atlantic Compact)

42 U.S.C. § 2021d, 99 Stat. 1842 (Sec. 227) .....

Northwest Interstate Compact on Low-Level

Radioactive Waste Management, 42 U.S.C.

§ 2021d, 99 Stat. 1842 (Sec. 221) ...........00-.

Omnibus Low-Level Radioactive Waste Interstate

Compact Consent Act, Pub.L. 99-240, title II,

sec. 222, 99 Stat. 1842, 1859 (1986).............

Rocky Mountain Low-Level Radioactive Waste

Compact, 42 U.S.C. § 2021d, 99 Stat. 1842 (Sec.

pT eee er ree re ree ee Pere errr

Southeast Interstate Low-Level Radioactive Waste

Management Compact, 42 U.S.C. § 2021d, 99

es ee es SE 5 hed KR Kbh odo annunnes eines

Southwestern Low-Level Radioactive Waste Dis-

posal Compact, 42 U.S.C. § 2021d, 102 Stat. 4773 ....

Texas Low-Level Waste Disposal Compact, 42

ik a ee Se eee rrr rer ee

Page

STATEMENT OF THE CASE >

Petitioner Nebraska in its Statement of the Case por-

trays the legal background with its own slant. Respon-

dent Central Interstate Low-Level Radioactive Waste

Commission (“Commission”) will update and correct

Petitioner’s recitation of the case, to the extent there is a

material difference.

Progress of the Case and the Sovereign Immunity Issue

The United States District Court for the District of

Nebraska and the United States Court of Appeals for the

Eighth Circuit each twice carefully analyzed and rejected

Nebraska’s Eleventh Amendment sovereign immunity

defense, this last time in the context of rulings on Peti-

tioner’s Fed.R.Civ.P. 12(b)(1) and (6) motions. The Eighth

Circuit concluded that Petitioner waived this defense

entirely so far as Respondent’s claims are concerned, and

separately found that Ex parte Young, 209 U.S. 123 (1908),

type relief is available under these circumstances for vio-

lations of federal law committed by Petitioner and its

officials. Petitioner inferentially or expressly concedes

such relief is available even against the State itself, due to

the “partial” waiver it acknowledges, but wrongly con-

tends that no continuing federal law violations are

pleaded, and that no such relief is requested. Pet., pp. 3,

14, 16, 17, 22, 23. The Respondent’s complaint belies that

contention. Respondent contends that the case must go

forward to trial. In essence, Nebraska’s petition amounts

to a request for this Court’s interlocutory advice to the

trial court on remedy availability.

The mandate of the Eighth Circuit was not stayed,

and issued to the United States District Court on May 1,

2001, following denial of a petition for rehearing. As the

Petitioner notes, p. 17, fn. 15, the Respondent’s Complaint

has recently been amended. Specifically, three state offi-

cers were added in their official capacities as defendants,

additional specifics about the pretextual nature of the

licensing decision were pleaded and the prayer was

slightly modified. The amendment does not affect the

issues now proffered by Petitioner to this Court. This

certiorari petition is interlocutory and the case has moved

forward substantially since its original filing. Discovery

by both Petitioner and Respondent has proceeded, the

case having been filed in December, 1998, with trial set

for June, 2002. The preliminary injunctive relief granted

to Respondent was affirmed April 12, 2000 by the Eighth

Circuit, App. 48a-7la. That order halted, pending final

judgment, Nebraska’s ongoing effort (a) to continue char-

ging Plaintiffs for “licensing” costs including all costs for

defense of this action and (b) to reinforce its executory

license denial through an administrative contested case

proceeding wherein the State officials immediately

declared that any evidence of unlawful political influence

would be excluded from consideration. The decision by

the Eighth Circuit reviewing the preliminary injunction

expressly endorsed the trial court’s finding of a high

likelihood of the Commission’s success on the merits of

its bad faith claim, a prerequisite for preliminary injunc-

tive relief:

...[T]here is sufficient evidence in the record to

support the district court’s factual findings and

its conclusion that the Commission has shown a

likelihood of success on the merits. This

includes evidence of interference in the licens-

ing process by Nebraska’s executive branch,

delay and excessive expenditures fostered by

the state, and the denial of the second license

application on an apparent pretext.

App. 67a.

The Mandatory Duty of Respondent to Enforce the

Compact

The gist of the Commission’s Complaint against

Nebraska is that the State has materially breached and

continues materially to breach several of its duties and

obligations under the Central Interstate Low-Level

Radioactive Waste Compact (“Central Interstate Com-

pact”), a law which it and four partner states each passed

individually and to which Congress consented in 1986

pursuant to the Constitution’s Compact clause, Article I,

Section 10. Omnibus Low-Level Radioactive Waste Inter-

state Compact Consent Act, Pub.L. 99-240, title II, sec.

222, 99 Stat. 1842, 1859 (1986), codified at 42 U.S.C.

§ 2021d, note. The Central Interstate Compact, quite

unlike any of the other low-level radioactive waste com-

pacts (see fn. 1, infra, p. 21) prescribes for its Commission

not only a “sue and be sued” clause, not only an exten-

sive list of duties and obligations of the member states

and Commission, but a specific mandate that the Com-

mission “shall . . . require all party states . . . to perform

their duties and obligations arising under this com-

pact...” by a lawsuit in any court with jurisdiction over

“any matter arising under or relating to the terms of the

Compact.” Art. IV(e) and IV(m)(8). Thus, it specifies the

Commission as enforcing plaintiff, the signatory state in

breach as defendant, the venue, the jurisdiction, and the

purpose of such a suit.

The Wrongdoing Alleged in Respondent’s Complaint

Distilling Respondent's claims, its Complaint partic-

ularizes some eight years of Petitioner’s past and con-

tinuing bad-faith processing of a license application and

its 1998 bad-faith denial on pretextual grounds of the

license for the five-state region’s proposed low-level

radioactive waste disposal facility near the Village of

Butte, Nebraska. It claims a further administrative pro-

ceeding available to Respondent and its site applicant, a

“contested case” hearing before the licensing agency, was

also being tainted by continuing bad faith. The Complaint

alleges that such actions were in reality founded not on

the stated pretext of technical concerns, but rather on

unlawful political pressure and interference flowing from

Nebraska’s then-chief executive, Governor E. Benjamin

Nelson, his operatives and his controlled appointees. The

contentions, in short, allege that Nebraska’s performance

of its member state and host state obligations under the

Compact have been and continue to be in bad faith. The

Commission sued, as is its statutory duty, to enforce the

Compact against Petitioner and to force Petitioner to

redeem its breaches of trust under its partnership con-

tract with Kansas, Oklahoma, Louisiana, and Arkansas.

Nebraska’s Rule 12(b) motion, the denial of which

Nebraska challenges here, contended that its nonperfor-

mance, even if in total bad faith as alleged in detail by the

Commission, was all completed in the past and thus is

immunized by the Eleventh Amendment from federal

judicial scrutiny, notwithstanding the express and con-

gressionally approved Commission enforcement powers

spelled out in this Compact.

The complaint, which is in the Petitioner’s Eighth

Circuit Appendix (hereinafter cited as “8th Cir. App.”),

alleges in substance:

e That the Central Interstate Compact created

contractual rights and duties of the five

| states with respect to each other, and also

created the governing body which adminis-

ters the Compact law, the Central Interstate

Low-Level Radioactive Waste Commission.

The relationship between the member states,

being in the nature of a governmental part-

| nership or joint venture, is based on the

necessity of trustworthiness and good faith

in dealings affecting all members. It involves

a fiduciary relationship of each state to each

other and to the Commission. 8th Cir. App.-

at 54-55.

e Repeated and continuing actions against the

combined interest of the Commission; refusal

to cooperate; breach of Nebraska’s fiduciary

responsibility particularly, including misus-

ing and failing to account for money received

directly or indirectly from the Commission;

failure and refusal to provide, as the Com-

pact requires expressly, necessary informa-

tion to the Commission; passing of unlawful

regulations and acting to delay, obstruct,

oppose and defeat the central waste manage-

ment purposes of the Compact and the Com-

mission. 8th Cir. App. at 57.

Misuse of federal “rebate funds” received

under 42 U.S.C. § 2021le(d) by the Commis-

sion and provided by the Commission to

Nebraska for purposes unauthorized by law,

including paying various outside counsel to

bring numerous meritless and/or frivolous

claims against the Commission, mostly in the

same federal courts it now wishes to avoid.

8th Cir. App. at 58.

Encouragement and financing of litigation

by site opponents against the Commission

and US Ecology, including litigation on

issues already finally adjudicated against

Nebraska's position in cases it brought previ-

ously against the Commission. 8th Cir. App.

at 58.

Governor Nelson’s public and private dis-

paragement of the site chosen by the Com-

mission’s contractor with the intent and

effect of exerting improper political influence

on the administrative officials reviewing the

license application. 8th Cir. App. at 58-59.

Petitioner refused to set schedules or budgets

for the review process even after being law-

fully instructed to do so by the Commission,

with the result that the license review was

delayed and made far more expensive than

necessary. The Commission alleges that this

practice “appear[s] to have been an inten-

tional strategy of the State of Nebraska since

early 1991 to inhibit, frustrate, and defeat the

attempts to license a site in this first host

state.” 8th Cir. App. at 60.

Repeatedly Petitioner refused to account for

funds received from or through the Commis-

sion. 8th Cir. App. at 60.

e Petitioner influenced the license decision-

makers to deny the license application on

political, as opposed to technical, grounds.

8th Cir. App. at 60-61.

e Petitioner continued these bad-faith actions

by means of the “contested case” administra-

tive review mechanism to assure that no dis-

posal facility will be licensed in Nebraska.

8th Cir. App. at 61.

e Petitioner rendered the $90+ million spent to

date on the project “of no benefit or value.”

8th Cir. App. at 62.

e It continued to deprive the Commission, the

generators of low-level radioactive waste,

and the Compact member states of the use of

: the disposal facility in the first host state

contemplated by the Compact and federal

law. 8th Cir. App. at 62.

Respondent’s Prayer for Relief

Notwithstanding that Fed.R.Civ.P. 54(c) makes clear

that the court is to award all relief to which a prevailing

party is entitled, irrespective of the demand in the plead-

ings, Petitioner’s refrain that “no prospective relief is

requested” must be countered here. The Commission

requested several forms of reparative and also forward-

looking relief in this case, and the prayer is certainly not

accurately summarized by Petitioner. Pet., p. 6. The

Respondent’s claim as filed seeks (1) a declaratory judg-

ment that Petitioner, by undue influence affecting the

licensing, breached its duty under the Compact effi-

ciently, effectively, honestly, and without unreasonable

delay to process the license application, and that the

denial decision was tainted by unlawful political influ-

ence; (2) an accounting as to all funds received by Peti-

tioner from the Commission, whether directly or through |

the developer; (3) damages for the Commission’s costs

incurred which were all wasted, due to lack of good faith

and breach of fiduciary duty, reasonably certain conse-

quential damages, and those additional damages which

may be disclosed by the accounting; (4) a declaratory

judgment with regard to any rights of other parties vis-

a-vis the plaintiff Commission; (5) a just and equitable

remedy as to the license, with a suggestion of a comple-

tion of the licensing through “an appointed Master, or

through a scientifically qualified, appointed entity or

group representing either all of the five Compact states

equally, or in the alternative none of them, or through

another impartial appropriate governmental agency, all at

defendant Nebraska’s costs, since it subverted its own

current licensing process” (Nebraska is not necessarily

excluded from participation in that requested remedy);

(6) costs, attorneys fees and applicable interest; and (7)

“all other relief as is deemed just and equitable under the

facts proved.” The prayer certainly seeks both retrospec-

tive, repair-oriented relief and prospective enforcement

of Nebraska’s duties and obligations, despite Petitioner’s

much repeated but still wrong mantra that the claimed

relief is all “retrospective.”

¢

REASONS FOR DENYING THE WRIT

First, the petition for certiorari prematurely seeks

interlocutory, advisory review of Eleventh Amendment

issues even though Petitioner has no expectation of

immunity from the entire suit. Second, the Petitioner’s

Question allegedly Presented is, in fact, not. Third, the

decision below is fully consistent with the law of this

Court and lower federal courts on waiver of sovereign

immunity to suits in federal court.

I

THE PETITION SEEKS AN ADVISORY OPINION IN

THAT THE LOWER COURTS HAVE SO FAR ONLY

OVERRULED A FED.R.CIV.P. RULE 12(b)(6) MOTION

TO DISMISS, PETITIONER DOES NOT CONTEST AT

LEAST AN EX PARTE YOUNG TYPE REMEDY, AND

NEITHER ULTIMATE LIABILITY NOR THE REMEDY

HAVE BEEN DETERMINED.

Petitioner has failed adequately to justify why the

Court should exercise its discretionary jurisdiction and

grant certiorari to review Petitioner’s interlocutory sover-

eign immunity claim at this juncture, as it is not ripe for

review under the circumstances. This case is not ready for

further interlocutory review, irrespective of any decision

on Nebraska’s complete waiver of immunity, because

Nebraska has conceded, at least, that the Compact’s very

language entitles the Commission to proceed and seek

relief against it of a type similar to that provided pur-

suant to the recognized exception set forth in Ex parte

Young. Petitioner did not even seek review of that clear

holding when it lost the preliminary injunction appeal in

April, 2000. While its admissions in the petition are occa-

sionally equivocal, it is fair to read them as a whole to

agree that the Commission can proceed to seek “prospec-

tive relief” from Nebraska’s breach of compact obliga-

tions and duties. See Pet., pp. 3, 14, 16, 17, and especially

10

22 (“A State’s consent to be subject to prospective relief

of the sort embraced under the Ex parte Young excep-

Rear ereay |

Petitioner repeatedly characterizes its own sovereign

immunity concession in the Compact as being a partial

waiver and one which is sensitive to the particular type

of relief which might be sought or granted in a bad-faith

case against it brought by the Commission. It acknowl-

edges the Compact permits suits forcing it to comply in

the future with duties and obligations. Yet this suit, filed

in 1998, progressing toward trial in June 2002, is several

months away from any final liability determination, let

alone any judicial selection of appropriate remedies

under the facts proved, the prayer for relief, and

Fed.R.Civ.P. 54(c). Thus, in essence, before a complete

record can refine all the permutations of the issues, Peti-

tioner seeks this Court’s advance advice on potential

remedy issues. This situation is quite distinct from Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S.

139 (1993). That case, allowing interlocutory appeal of a

district court denial of sovereign immunity, stressed the

reasoning that if a state has Eleventh Amendment immu-

nity, that immunity is from suit itself, and not just lia-

bility, and from any insult to its sovereignty of having to

submit to discovery. Id. at 143-49, citing Mitchell v. For-

syth, 472 U.S. 511 (1985). The case was remanded for the

court of appeals to consider the merits of the sovereign

immunity issue, even though there was no final judg-

ment. Nebraska, by contrast, has had its interlocutory

appellate review twice on its Eleventh Amendment argu-

ments. Here, Nebraska itself has claimed its waiver of

| ialetaladl

a

11

immunity is partial, essentially acknowledging exposure

to federal prospective relief even under its own strained

parsing of the consent language in the Compact. So Peti-

tioner lost on waiver, yes, but it is also exposed, alter-

natively, to uncontested Ex parte Young type remedies.

Nebraska tries to dodge this problem by asserting, inex-

plicably, that the suit as pleaded never asks for any

prospective relief, just retrospective, so the available rem-

edy is again thwarted. Pet., 15 and 16. But in fact, the

equitable relief sought in the Complaint certainly

includes “prospectively” requiring Nebraska to account

in the sense of providing full information about money it

obtained from the Commission. It and the motion for an

injunction seek cessation of bad faith in ongoing

license proceedings. The prayer also expressly suggests

Nebraska’s possible performance of a shared role, though

not an exclusive one, in the future licensing decision as

one alternative to complete the licensing work. Addi-

tional equitable remedies with regard to the State’s

administrative appeal proceedings and its efforts to seek

more money from Respondent are quite likely. Even had

Respondent not clearly specified several varieties of pro-

spective relief, it would still be deemed to have included

it in the final “catch-all” prayer for legal and equitable

relief. Andrus ex rel. Andrus v. State of Ark., 197 F.3d 953,

955 (8th Cir. 1999); and “requesting incorrect relief is not

grounds for dismissal.” Id., Rule 54(c), Holt Civic Club v.

Tuscaloosa, 439 U.S. 60 (1978).

Thus, in any event, as Petitioner concedes, it is bereft

of “suit immunity,” even if its “straw man” Question

Presented were answered as it hopes. Under these cir-

cumstances, this case does not now warrant exercise of

12

this Court’s discretion to grant certiorari. The case is

indeed important, with undeniable implications as to the

future of the interstate compact as a constitutional device

for regional approaches to solving the nation’s problems.

But after the lower courts resolve and refine the many

issues of fact and law, this Court will likely have full

opportunity to consider reviewing it on a complete

record.

II

THE EIGHTH CIRCUIT DECISION DOES NOT RAISE

THE QUESTION PRESENTED BY THE PETITION,

BECAUSE PETITIONER’S STRAINED CHARACTER-

IZATION OF THE COMPACT TO PROVIDE ONLY

PROSPECTIVE RELIEF IS AN ARGUMENT, NOT A

FACTUAL PREMISE, AND THE COURTS BELOW

HAVE REASONABLY CONSTRUED THE CONTRACT

REMEDY OTHERWISE, TO ENCOMPASS ENFORCE-

MENT OF DUTIES AND OBLIGATIONS, INCLUDING

THOSE ARISING FROM BREACH OF THE COMPACT

BY NEBRASKA.

Petitioner’s proposed “Question Presented” is not in

fact presented by the decision below nor by the record.

Fairly read, the two successive opinions of the Eighth

Circuit completely reject Petitioner’s strained characteriz-

ation of the Compact language which Petitioner alone

interprets as limiting the Commission’s statutory enforce-

ment authority to “only prospective relief.”

The waiver provisions relied on by the trial and

appellate courts below, App. 29a and 19a respectively,

included, among several others, the mandate in

Article IV(m)(8) that the Respondent Commission

13

“shall... [rlequire party states . . . to perform their duties

and obligations arising under this Compact by an appro-

priate action in any forum designated in Section (e) of

Article IV.” Further, both courts relied on the specific

grant found in Article IV(e) which empowers the Com-

mission to “initiate ... any proceedings . . . before any

court of law . . . that has jurisdiction over any matter

arising under or relating to the terms or the provisions of

this compact.” Article IV(m)(9) further extends the broad

mandate by providing that the Commission “shall

. . . take such action as may be necessary to perform its

duties and functions as provided in this compact.” Only

Petitioner reads those combined, broad imperatives as

foreclosing court relief in the form of any reparation for

previously breached compact/contract duties and obliga-

tions. Petitioner, having (allegedly) cost the Commission

and its constituent states’ citizens millions of dollars,

apparently wants “cease and desist” to be the sole rem-

edy, if even that. Petitioner’s construction, in view of the

five sovereign state constituency of the Compact, the

language of the instrument as a whole, and the extremely

broad enforcement functions allocated to the Commis-

sion, makes no sense. It would have been an incredible

concession by the five party states and Congress to the

effect that all temporarily concealed past damage by bad-

faith acts of member states automatically will be deemed

excused, and that only future actions by a member state

can be judicially controlled. Petitioner’s self-serving con-

struction is an unauthorized grammatical bootstrapping

of its immunity claims.

The lower courts’ rejection of this forced construction

is based on a sound and reasonable construction of the

14

Compact’s allocation of rights and duties. Petitioner’s

implication in its Question Presented that the “prospec-

tive relief” limitation somehow is factually established

ignores the reasonable understanding and interpretations

adopted below. The question Petitioner presents is a false

issue.

a

Ill

PETITIONER’S WAIVER OF SOVEREIGN IMMUNITY

WAS FOUND AND AFFIRMED ON GROUNDS CON-

SISTENT WITH SUPREME COURT AND OTHER FED-

ERAL COURT AUTHORITY, BECAUSE THE WAIVER

RECOGNIZED WITHIN THE COMPACT IS “STATED

BY THE MOST EXPRESS LANGUAGE OR BY SUCH

OVERWHELMING IMPLICATIONS FROM THE TEXT

AS LEAVE NO ROOM FOR ANY OTHER REASON-

ABLE CONSTRUCTION” AND PETITIONER HAS

SUGGESTED NO OTHER REASONABLE CONSTRUC-

TION.

The Eighth Circuit’s recognition of Petitioner’s”

waiver of its immunity defense against a federal court

Commission action to enforce Compact obligations con-

flicts in no way with case authority from this Court or the

other federal courts referenced by Petitioner. Indeed, the

Eighth Circuit’s twice-repeated analyses and opinions set

forth, adopted, and applied the standard that Eleventh

Amendment sovereign immunity waivers must be “stated

by the most express language or by such overwhelming

implications from the text as leave no room for any other

reasonable construction.” (In the 12(b) decision, App. 13a,

citing Edelman v. Jordan, 415 U.S. 651, 673 (1974), and in

the preliminary injunction opinion, 61a-64a.) Petitioner

15

has yet to offer Respondent, its sister states, or any court,

including this one in its petition for certiorari, any reason-

able alternative explanation of the enforcement mandates

or any alternative mechanism by which a party state

could be required to keep its federally approved, contrac-

tual promises made to its four sister states. For example,

Petitioner does not posit the idea that a parish court in

partner state Louisiana should or could be utilized by the

Commission to sue Nebraska for its Compact breaches.

One can imagine the outraged reaction if Respondent had

tried that. Petitioner does not even admit that its own

state courts could be used. Petitioner would leave the

Commission essentially stripped of enforcement power,

contrary to the obvious intent of the signers and Con-

gress in approving the binding nature and internal

“police power” as the plan of this particular Compact.

The case law regarding compact sovereign immunity

issues is found primarily in five United States Supreme

Court cases. These include especially Petty v. Tennessee-

Missouri Bridge Comm'n, 359 U.S. 275 (1959); Port Author-

ity Trans-Hudson v. Feeney, 495 U.S. 299 (1990); Hess v. Port

Authority Trans-Hudson Corp., 513 U.S. 30 (1994); and a

distinguishing reference in a non-compact case, College

Savings Bank v. Florida Prepaid Post Secondary Educ. Exp.

Bd., 527 U.S. 666 (1999). Additionally, the issue of limiting

compact remedies is discussed in an original jurisdiction

compact case between two states, Texas v. New Mexico, 482

U.S. 124 (1987). Nothing in these five authorities conflicts

at all with the finding of an express as well as an ines-

capably implied waiver of immunity from this federal

court action by the Commission.

16

In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.

275 (1959), the Court held that the party states to an

interstate compact had waived their Eleventh Amend-

ment immunity for suits against an interstate agency

created to administer the compact. Employing language

which directly rebuts Nebraska’s reliance on the “general

waiver” cases, the Court said:

The construction of a compact sanctioned by

Congress under Art. 1, § 10, cl. 3 of the Constitu-

tion presents a federal question. Delaware River

Joint Toll Bridge Com. v. Colburn, supra. More-

over, the meaning of a compact is a question on

which this Court has the final say. West Virginia

ex rel. Dyer v. Sims, 341 U.S. 22, 28. The rule is

no different when the contention is that a State

has, by compact, waived its immunity from suit.

Of course, when the alleged basis of waiver of the

Eleventh Amendment's immunity is a state statute,

the question to be answered is whether the State has

intended to waive its immunity. Chandler v. Dix,

194 U.S. 590, supra. But where the waiver is, as

here, claimed to arise from a compact between several

States, the Court is called on to interpret not uni-

lateral state action but the terms of a consensual

agreement, the meaning of which, because made by

different States acting under the Constitution and

with congressional approval, is a question of federal

law. Delaware River Joint Toll Bridge Com. v.

Colburn, 310 U.S. 419, supra. In making that

interpretation we must treat the compact as a

living interstate agreement which performs high

functions in our federalism, including the opera-

tion of vast interstate enterprises.

Id. at 278-79 (emphasis added).

17

In deciding that the party states had waived any

immunity the compact agency may have derived from

them, the Petty Court looked not only at the language and

purpose of the Compact, but also at the conditions Con-

gress had imposed in exchange for its grant of consent to

the Compact under Art. I, § 10, cl. 3 of the federal

Constitution. Id. at 280-81.

Thirty years later, in Port Authority Trans-Hudson

Corp. v. Feeney, 495 U.S. 299 (1990), the Court employed a

similar analytical methodology. In Feeney, employees of

an interstate compact agency sued the agency over inju-

ries suffered during their employment. This Supreme

Court again decided that the compact states had waived

any sovereign immunity the agency may have had when

they enacted the compact. While the Court found that the

| consent to suit provision of the compact alone may not

have sufficed to evince an intent to allow suit in federal

court under Atascadero State Hospital v. Scanlon, 473 U.S.

234 (1985), the court observed that a venue provision

contained in the compact resolved any ambiguity on the

point, and held that the compact provisions, read

together, waived the agency’s immunity. Feeney, at 306-07.

According to the Court:

Other textual evidence of consent to suit in fed-

eral courts may resolve that ambiguity and suf-

ficiently clearly establish the scope of the State’s

more general consent to suit. In such circum-

stances, the Court must give effect to that

clearly indicated consent to suit in federal court.

That is particularly so where, as in this case, the construc-

tion of the compact advanced by the party advocating

immunity renders meaningless critical provisions of the

18

compact enacted in mutual reliance by the several states.

Id. at 308.

Finally, in Hess v. Port Authority Trans-Hudson Corp.,

513 U.S. 30 (1994), the Court resolved the issue it had

reserved in both Petty and Feeney, and held that that

interstate compact agency did not possess Eleventh

Amendment immunity. In explaining that conclusion, the

Court focused on the combined federal and state interests

at play when an interstate compact is created.

Suit in federal court is not an affront to the

dignity of a Compact Clause entity, for the fed-

eral court, in relation to such an enterprise, is

hardly the instrument of a distant, disconnected

sovereign; rather, the federal court is ordained

by one of the entity’s founders. Nor is the integ-

rity of the compacting States compromised

when the Compact Clause entity is sued in fed-

eral court. As part of the federal plan prescribed

by the Constitution, the States agreed to the

power sharing, coordination, and unified action

that typify Compact Clause creations. Again, the

federal tribunal cannot be regarded as alien in

this cooperative, trigovernmental arrangement.

This is all the more apparent here, where the

very claims in suit — the FELA claims of Hess

and Walsh - arise under federal law. See supra,

at 397.

Id. at 41-42.

Petty, Feeney, and Hess each address the immunity of

an interstate compact agency, not that of a party state

member of an interstate compact which is sued by the

interstate compact agency pursuant to authority dele-

gated by the compact. Nevertheless, these cases show

A AEP A he eh

19

that this Court considers a broader range of factors when

deciding Eleventh Amendment immunity issues in the

context of such a “trigovernrmental arrangement,” as

opposed to a state’s unilateral or “general” waiver of its

immunity.

Among the recent series of waiver cases, College Sav-

ings Bank v. Florida Prepaid Post-Secondary Educ. Bd., 527

U.S. 666, 686-87 (1999), particularly recognized the dis-

tinct line of cases including Petty, supra, where the states

obtain, without any preexisting right to it, congressional

consent to bind themselves contractually, including

mutual sovereign immunity waivers. So, in such cases as

Petty and Feeney, as well as this case at bar, the whole

context and the interstate mutual concession of sover-

eignty is considered in determining whether waiver is

either an inescapable implication or sufficiently express.

The language in such a compact is carefully reviewed, as

well as the enacting language of Congress and any refer-

ences to court enforcement.

In the original jurisdiction case of Texas v. New Mex-

ico, 482 U.S. 124, 128 (1987), the same attempt as Peti-

tioner claims here to limit relief to “prospective only”

was dispatched thoroughly:

New Mexico also excepts to the proposed rem-

edy for the short deliveries in past years. We

find no merit in its submission that we may

order only prospective relief, that is, requiring

future performance of compact obligations with-

out a remedy for past breaches. If that were the

case, New Mexico’s defaults could never be

remedied. This was not our approach when the

case was here in 1983. We then affirmed our

20

authority to hear and decide Texas’ claim and

remanded the case to the Master for a deter-

mination of the shortfall. As we said then, a

compact when approved by Congress becomes a

law of the United States, 462 U.S. at 564, but “[a]

Compact is, after all, a contract.” Petty v. Ten-

nessee-Missouri Bridge Comm’n, 359 U.S. 275,

285 (1959) (Frankfurter, J., dissenting). It

remains a legal document that must be con-

strued and applied in accordance with its terms.

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28

(1951); 462 U.S. at 564. There is nothing in the

nature of compacts generally or of this Compact

in particular that counsels against rectifying a

failure to perform in the past as well as ordering

future performance called for by the Compact.

Petitioner also cites a few other circuit court cases

where no compact was involved and a mere reference to

“any court of competent jurisdiction” was found insuffi-

cient for federal court waiver. Pet., pp. 20-21. But here,

the court designation is far more detailed, and includes

use of the federal question jurisdictional phrasing “any

court of law, or any federal... agency . . . that has

jurisdiction over any matter arising under or relating to the

terms and provisions of this compact.” Art. IV(e)

(emphasis added). Offering such non-compact authorities

as Petitioner does with a claim that the Eighth Circuit

Court of Appeals shows “utter disrespect” for or “under-

mines” sovereign immunity is enthusiastic hyperbole.

The decision on waiver here is directly in line with

Feeney, Petty, Hess and the recognized line of cases calling

for intense scrutiny of all express and necessarily implied

waiver indications in an interstate mutual partnership

setting.

PRR WE BALI we BERLE Late bore %

21

Petitioner’s repeated and overreaching suggestion

that the Eighth Circuit and trial court found the waiver

here merely “because Nebraska joined a compact” seems

a desperate exaggeration. Pet. pp. 14-15, 23-24. The deci-

sion below, on the contrary, is based on Nebraska having

joined one particular compact which includes a manda-

tory, express enforcement mechanism approved by Con-

gress telling the Compact’s administrative body to sue a

breaching state to enforce all compact duties and obliga-

tions, and further that such actions are to be initiated in

any court having jurisdiction over any matter “arising

under or relating to the terms or the provisions of this

Compact.” That is hardly a holding that “joining any

compact” waives sovereign immunity.

In this same vein, Petitioner misleadingly seeks to

expand the impact of the immunity waiver decision

below by citing to other compacts, particularly the other

radioactive waste compacts, Pet. p. 11, n. 10, which it

amazingly claims are “identical in all relevant respects.”

A simple review of the language in those compacts

reveals not even one with comparable provisions. None

of them so patently says the administrative commission

must or even can sue a member state.!

1 There are ten, not nine as Petitioner says, other LLRW

compacts, none of which has comparable enforcement specifics.

These are: Northwest Interstate Compact on Low-Level Radioactive

Waste Management, 42 U.S.C. § 2021d, 99 Stat. 1842 (Sec. 221) (no

waiver provisions); Southeast Interstate Low-Level Radioactive

Waste Management Compact, 42 U.S.C. § 2021d, 99 Stat. 1842 (Sec.

223) (Commission may appear in courts in behalf of party state

or states, nothing about suing signatory states); Central Midwest

Interstate Low-Level Radioactive Waste Compact, 42 U.S.C. § 2021d,

22

The truth is that only this Compact comprised of

Nebraska, Arkansas, Oklahoma, Kansas, and Louisiana

includes anything like the express enforcement provision

that its “Commission shall . . . require all party states

... to perform their duties and obligations arising under

this compact by an appropriate action in. . . any court of

law ... that has jurisdiction over any matter arising

under or relating to the terms and provisions of the

Compact.” The Respondent’s five states, with Congress’

approval, uniquely wrote in that unmistakable require-

ment for enforcement against recalcitrant member states.

99 Stat. 1842 (Sec. 224) (may appear in court, nothing about

suing member states, except states themselves may sue each

other); Midwest Interstate Low-Level Radioactive Waste Compact,

42 U.S.C. § 2021d, 99 Stat. 1842 (Sec. 225) (Commission may

appear in court, nothing about suing member states); Rocky

Mountain Low-Level Radioactive Waste Compact, 42 U.S.C.

§ 2021d, 99 Stat. 1842 (Sec. 226) (power to sue, but nothing about

suing member states); Northeast Interstate Low-Level Radioactive

Waste Management Compact, 42 U.S.C. § 2021d, 99 Stat. 1842 (Sec.

227) (power to mediate internal disputes, appear in court, may

bring suits in U.S. District Court for D.C., no reference to suing

member states; now called Atlantic Compact after South Carolina

joined in 2000); Southwestern Low-Level Radioactive Waste

Disposal Compact, 42 U.S.C. § 2021d, 102 Stat. 4773 (Commission

may sue and be sued, no reference to suing member states);

Central Midwest Interstate Low-Level Radioactive Waste Compact,

42 U.S.C. § 2021d, 108 Stat. 4607 (may appear in court, mediate

internal disputes, no mention of suing member states);

Appalachian States Low-Level Radioactive Waste Compact, 42 U.S.C.

§ 2021d, 102 Stat. 471 (Commission may sue and be sued, but

party states are to enforce compact, not commission); and Texas

Low-Level Waste Disposal Compact, 42 U.S.C. § 2021d, 112 Stat.

1542 (Commission may sue and be sued, arbitration between

states is described, no provision for Commission to sue a

member state).

raced

23

Similarly, examination of the non low-level waste

compacts cited in footnote 22 of the petition reveals that

the states and federal government have chosen and

expressed a wide variety of mechanisms for resolving

disputes among compact members and for enforcing the

terms of their compacts. Contrary to Petitioner’s conclu-

sion, this proves only what Respondent has said all

along: determination of whether a compact party state

has waived its immunity can only be made by careful

reference to the particular language the party states chose

(and Congress approved) when they entered into the

compact/contract. That care was exercised by the trial

court and twice in the appellate reviews of this case.

+

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that this Honorable Court deny the petition for

certiorari.

Respectfully submitted,

*ALAN E. PETERSON, Esq.

SHAWN D. RENNER, Esa.

Cunge, WILLIAMS, WRIGHT,

JOHNSON & OLDFATHER, L.L.P.

1900 U.S. Bank Building

233 South 13th Street

Lincoln, Nebraska 68508

(402) 474-6900

Counsel for Respondent

*Counsel of Record