# Opposition Brief — Nebraska v. Central Interstate Low-Level Radioactive Waste Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2121%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2001 - **Citation:** 534 U.S. 889 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2121%3A2. Public record. Not legal advice.