ML22131A335
| ML22131A335 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 05/09/2022 |
| From: | James Adler, Bassett F, Long M, Patterson J Patterson Earnhart Real Bird & Wilson, LLP, Skull Valley Band of Goshute Indians of Utah |
| To: | Andrew Averbach NRC/OGC, US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 05-1419, 05-1420, 06-1087, 1946056 | |
| Download: ML22131A335 (8) | |
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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT OHNGO GAUDADEH DEVIA, and the STATE OF UTAH, Petitioners,
- v.
UNITED STATES NUCLEAR REGULATORY COMMISSION and the UNITED STATES OF
- AMERICA, Respondents, PRIVATE FUEL STORAGE, L.L.C.
and SKULL VALLEY BAND OF GOSHUTE INDIANS, Intervenors.
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No. 05-1419, consolidated with Nos. 05-1420, 06-1087 RESPONSE TO STATE OF UTAHS MOTION TO VACATE FINAL AGENCY ACTION AS MOOT Intervenor Skull Valley Band of Goshute Indians (Skull Valley Band or Band), a federally recognized Indian Tribe,1 respectfully submits its Response to State of Utahs Motion to Vacate Final Agency Action as Moot, Document
- 1940727.
INTRODUCTION Intervenor Private Fuel Storage, LLC (PFS) is a consortium of utility 1 84 Fed. Reg. 1200, 1203 (February 1, 2019).
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2 companies that historically pursued the licensing and building of an Independent Spent Fuel Storage Installation (ISFSI) on the Skull Valley Bands Reservation.
Although PFS was successful in obtaining the license (License) to construct the ISFSI granted by Respondent United States Nuclear Regulatory Commission, other regulatory approvalsincluding of the underlying land lease and certain rights-of-waywere stalled or otherwise not obtained.
On December 27, 1996, the Band and PFS entered into a business lease agreement for the construction and operation of the ISFSI, and later amended and restated the lease on May 20, 1997 (May 1997 Lease). In 2002, the Band and PFS signed an agreement (January 2002 Extension Agreement) under which the parties agreed to continue the terms of their relationship under the May 1997 Lease, as subsequently amended,2 until, at the latest, January 2, 2008.3 In the decades since the ISFSI projects catalyzation, the composition of the Bands leadership and law-making arm (Executive Committee)and the Executive Committees position of support for the ISFSI projecthave changed. PFS pursuit of the Skull Valley Reservation as a target location for the ISFSI has historically created a high level of disruption and conflict within the Band, without 2 The January 2002 Extension Agreement indicates that the May 1997 Lease was subsequently amended by a certain Second Amended and Restated Business Lease, which was executed as of January 2, 2002.
3 January 2002 Extension Agreement, § 2 b.
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3 imparting any significant benefit or developmental progress. As a result, the Executive Committee has exercised its sovereign decision-making authority to revoke any prior consent it may have granted with respect to the construction of the ISFSI on the Bands Reservation, and hereby memorializes its present lack of consent to pursue any type of business relationship with PFS going forward.
On April 25, 2022, the Executive Committee met with two representatives of PFS managing partner, Xcel Energy (PFS Representatives). At this meeting, the PFS Representatives proposed to revive PFS business relationship with the Skull Valley Band. In response, the Executive Committee made clear that it had no desire to pursue the ISFSI project and declined to participate in any current or future business relationship with PFS.
Following this meeting, one of the PFS Representatives in attendance informed the Bands legal counsel via e-mail that PFS intends to send [the letter attached to the e-mail] to the [Nuclear Regulatory Commission] informing the agency that, based on our meeting of April 25th, PFS will no longer pursue the project and [will] ask[] the NRC to terminate our license.4 Contrarily, the other of the two PFS Representatives reached out to the Band to state the exact opposite:
that it would pursue the License, and that it wished to continue negotiations with 4 E-mail correspondence from Peter Glass, Assistant General Counsel to Xcel Energy, to Michelle Long, attorney of record at Patterson, Earnhart, Real Bird &
Wilson LLP, dated Thursday, April 28, 2022 at 4:23 p.m.
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4 the Executive Committee regarding a potential project going forward. In light of this double-speak, the Band believes that PFS is acting in bad faith. This perception only solidifies the Bands resolve against any revived or future relationship with PFS.
Petitioner State of Utahs Motion asserts that Petitioners challenge to Respondent United States Nuclear Regulatory Commissions granting of the License is moot since the regulatory approvals necessary for the License to have any practical effect are themselves abandoned. Because any previous consent that may have been granted by the Skull Valley Band necessary to achieve the underlying regulatory approvals is not now binding on the Bands present leadership, and because the Bands leadership does not now consent to such regulatory approvals, such regulatory approvals cannot now be revived or obtained.
For this additional reason, the Skull Valley Band agrees that Petitioners challenge to the final agency action below is moot.
LEGAL ARGUMENT I.
The Band is not Bound by the Consent of its Prior Executive Committees.
The centuries-old concept5 of legislative entrenchment holds that one legislature may not bind the legislative authority of its successors.6 As sovereigns 5 United States v. Winstar Corp., 518 U.S. 839, 872 (1996).
6 Id.
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5 under the United States Constitution, federally recognized Indian Tribes possess the right to govern themselves, including, with few exceptions, the same powers that federal and state governments have to regulate their internal affairs.7 It follows from these well-established principles that the decisions made by the Bands prior Executive Committee that may have supported the ISFSI project, the License or the underlying regulatory approvals do not bind the Bands current leadership. The Bands Executive Committee is free toand now doesrevoke its consent for the ISFSI project.
II.
The Bands Consent is Required to Pursue the Underlying Regulatory Approvals and to Ultimately Build the ISFSI.
Under the January 2002 Extension Agreement, the Band agreed to continue the terms of its relationship with PFS under the May 1997 Lease, as subsequently amended, until, at the latest, January 2, 2008. Because that date has long since lapsed, the Band has no present obligation to continue its relationship with PFS, and the lease, as amended, is not live. Accordingly, the Band would need to voluntarily enter a new, revived lease with PFS in order for there to be any lease to be regulatorily approved. This, the Band is unwilling to do. Indeed, the Band is 7 See Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (classifying Tribes as domestic dependent nations whose relation to the United States resembles that of a ward to his guardian); Worcester v. Georgia, 31 U.S. 515, 559 (1832) (explaining that the guardian-ward relationship did not abolish preexisting tribal power of make the Tribes dependent on federal law for their powers of self-government).
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6 presently unwilling to pursue or agree to any business arrangement that will lead to the building of the ISFSI on its Reservation, whether such arrangement proceeds by lease or otherwise.
With limited exceptions, federally recognized Indian Tribes have the right to exclude persons from tribal territory.8 Further, Indian Nations have extensive powers over their property and deal with tribally owned property in a proprietary capacity.9 It follows from these well-established principles that the Band, as a federally recognized Indian Tribe, has the power to exclude PFS from, and to disallow the construction of the ISFSI on, its Reservation.
III. Because the Regulatory Approvals are Required for the ISFSI Project to Proceed, Petitioners Challenge to the Final Agency Action Granting the License is Moot.
Federal courts may only adjudicate actual, ongoing controversies that are within the jurisdiction of the court.10 Accordingly, [i]f events outrun the controversy such that the court can grant no meaningful relief, the claim must be dismissed as moot.11 8 See Worcester v. Georgia, 31 U.S. 515, 561 (1832) (stating that persons were allowed to enter Cherokee land only with the assent of the Cherokees themselves.).
9 Cohens Handbook of Federal Indian Law, § 4.01[2][c] (2012).
10 NTCH, Inc. v. Fed. Commc'ns Comm'n, 841 F.3d 497, 504 (D.C. Cir. 2016)
(internal citations omitted).
11 Id. (internal citations omitted).
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7 The original controversy in this case stemmed from Petitioners opposition to the underlying agency action that granted the License. The License, in turn, is attached to the Skull Valley Band ISFSI project, and may not be transferred to another site, location, or Tribe. Without the Bands current consent to construct the ISFSI on its Reservation, the License is rendered inoperable, and the controversy from which this case stems is therefore moot.
Respectfully submitted this 9th day of May, 2022.
PATTERSON EARNHART REAL BIRD
& WILSON LLP By:
/s/ Frances C. Bassett Frances C. Bassett (D.C. Circuit Bar # 50135)
Jeremy J. Patterson (D.C. Circuit Bar # 62584)
Michelle E. Long (Admission Pending)
(CO State Bar # 55439) 1900 Plaza Drive Louisville, Colorado 80027 Telephone: (303) 926-5292 Facsimile: (303) 926-5293 Email: fbassett@nativelawgroup.com Email: jpatterson@nativelawgroup.com Email: mlong@nativelawgroup.com Counsel for the Skull Valley Band of Goshute Indians of Utah USCA Case #05-1419 Document #1946056 Filed: 05/09/2022 Page 7 of 8
8 CERTIFICATE OF SERVICE I hereby certify that on this 9th day of May, 2022, I caused the foregoing Response to Petitioner State of Utahs Motion to Vacate Final Agency Action as Moot to be filed with the Clerk of Court for the United States Court of Appeals for the Federal Circuit using the CM/ECF System, with service to all parties through that system.
May 9, 2022
/s/ Frances C. Bassett Frances C. Bassett Counsel for the Skull Valley Band of Goshute Indians of Utah CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 27(D)
I certify that this filing complies with the requirements of Fed. R. App. P.
27(d)(1)(E) because it has been prepared in 14-point Times New Roman, a proportionally spaced font.
I further certify that this filing complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because it contains 1,287 words, excluding the parts of the filing exempted under Fed. R. App. P. 32(f), according to the count of Microsoft Word.
May 9, 2022
/s/ Frances C. Bassett Frances C. Bassett Counsel for the Skull Valley Band of Goshute Indians of Utah USCA Case #05-1419 Document #1946056 Filed: 05/09/2022 Page 8 of 8