CLI-05-19, 7-28-22 DC Circuit Order Dismissing Petitions for Review as Moot But Denying Request for Vacatur of NRC Decisions (DC Cir.)(Case No. 05-1419, 05-1420, 06-1087)
| ML22214A111 | |
| Person / Time | |
|---|---|
| Issue date: | 07/28/2022 |
| From: | NRC/OGC |
| To: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 05-1419, 05-1420, 06-1087, 1956793, NRC-CLI-05-19 | |
| Download: ML22214A111 (2) | |
Text
USCA Case #05-1419 Document #1956793 Filed: 07/28/2022 Page 1 of 2 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 05-1419 September Term, 2021 NRC-CLI-05-19 Filed On: July 28, 2022 Ohngo Gaudadeh Devia, Petitioner v.
U.S. Nuclear Regulatory Commission and United States of America, Respondents Private Fuel Storage, L.L.C. and Skull Valley Band of Goshute Indians, Intervenors Consolidated with 05-1420, 06-1087 BEFORE: Rogers, Millett, and Wilkins, Circuit Judges ORDER Upon consideration of the motion to vacate, the responses thereto, and the reply, it is ORDERED that these consolidated cases be dismissed as moot and the motion to vacate be denied. These cases, which involve challenges to a license issued by the Nuclear Regulatory Commission (NRC) for the construction and operation of a facility to store nuclear waste on land leased from the Skull Valley Band of Goshute Indians (the Band), have been held in abeyance since 2007. See Devia v. NRC, 492 F.3d 421, 424-28 (D.C. Cir. 2007). Petitioner the State of Utah now moves pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950), and A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324 (1961), for vacatur of certain of the underlying agency decisions on the ground that these cases have become moot pending review.
The Band, which initially intervened on behalf of the NRC to defend the issuance of the license, now supports Utahs motion. According to the Band, it no longer favors the
USCA Case #05-1419 Document #1956793 Filed: 07/28/2022 Page 2 of 2 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 05-1419 September Term, 2021 project and will not renew the expired lease or agree to any new lease for the land on which the storage facility is licensed to be built.
We agree with the Band that its decision that it will no longer lease the land on which the facility is licensed to be built renders these cases moot, and the cases are therefore dismissed on that ground. See, e.g., Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (observing that a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome (internal quotation marks omitted)). However, we decline to vacate the underlying agency decisions. The Bands voluntary action resulted in these cases becoming moot, and vacatur generally is not warranted in such situations. See N. Cal.
Power Agency v. NRC, 393 F.3d 223, 225 (D.C. Cir. 2004) (observing that vacatur would usually not be ordered where the party seeking relief from the judgment below caused the mootness by voluntary action). And Utah has not shown that its challenge to the issuance of the NRC license was ever ripe for review. See Munsingwear, 340 U.S. at 41 (observing that vacatur is intended to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences (emphasis added)).
Under these circumstances, Utah and the Band have not shown that vacatur is warranted. See U.S. Bancorp Mortg. Co. v. Bonner Mall Pship, 513 U.S. 18, 25 (1994)
(observing that vacatur is an equitable remedy, not an automatic right).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam Page 2