ML24089A009
| ML24089A009 | |
| Person / Time | |
|---|---|
| Site: | HI-STORE |
| Issue date: | 03/27/2024 |
| From: | Cayce L, Jett W US Federal Judiciary, Court of Appeals, 5th Circuit |
| To: | Fasken Land & Minerals, Ltd, NRC/OGC, Permian Basin Land and Royalty Owners |
| References | |
| Case: 23-60377 Document: 95-1 | |
| Download: ML24089A009 (1) | |
Text
United States Court of Appeals for the Fifth Circuit No. 23-60377 Summary Calendar Fasken Land and Minerals, Limited; Permian Basin Land and Royalty Owners, Petitioners, versus Nuclear Regulatory Commission; United States of America, Respondents.
Appeal from the Nuclear Regulatory Commission Agency No. 72-1051 Before Jones, Elrod, and Wilson, Circuit Judges.
Per Curiam:*
In September 2021 the Nuclear Regulatory Commission (NRC) issued a license to Interim Storage Partners, LLC, to establish a facility to store nuclear waste temporarily in Andrews County, Texas. See Texas v.
Nuclear Regul. Commn, 78 F.4th 827, 833-35 (5th Cir. 2023) [hereinafter Texas v. NRC], rehg en banc denied, 2024 WL 1108700 (5th Cir. Mar. 14,
- This opinion is not designated for publication. See 5th Cir. R. 47.5.
United States Court of Appeals Fifth Circuit FILED March 27, 2024 Lyle W. Cayce Clerk Case: 23-60377 Document: 95-1 Page: 1 Date Filed: 03/27/2024
No. 23-60377 2
2024). Texas, Fasken Land and Minerals, Ltd., (Fasken), and Permian Basin Land and Royalty Owners (PBLRO) petitioned this court to set aside that license. Id. at 834-35. In that appeal, a panel of this court first held that Fasken and PBLRO had standing under the Constitution and the Hobbs Act to challenge the NRCs actions. Id. at 835-40. It then held that the NRC lacked statutory authority to issue the license. Id. at 840-44. Accordingly, this court granted the petitions for review and vacated the license. Id. at 844.
The NRC filed a petition for rehearing en banc on October 24, 2023, which this court denied on March 14, 2024. See Texas v. Nuclear Regul. Commn, No. 21-60743, --- F.4th ----, 2024 WL 1108700 (5th Cir. Mar. 14, 2024).
Shortly before the panel issued its opinion in Texas v. NRC, Fasken and PBLRO filed the petition for review at issue in this case. They challenge a different license issued by the NRC in May 2023 to Holtec International to establish a facility to store nuclear waste in Lea County, New Mexico. The parties, correctly, agree that Texas v. NRC involved a materially identical license in a materially identical procedural posture and that absent the
[c]ourt granting rehearing en banc in Texas [v. NRC]..., the panels consideration of this case will be controlled by [Texas v. NRC]. Because this courts holding in Texas v. NRC dictates the outcome here, we GRANT Faskens and PBLROs petition for review and VACATE the Holtec license. The NRCs motion to transfer the petition for review to the United States Court of Appeals for the District of Columbia Circuit is DENIED AS MOOT.
Case: 23-60377 Document: 95-1 Page: 2 Date Filed: 03/27/2024
United States Court of Appeals FIFTH CIRCUIT OFFICE OF THE CLERK LYLE W. CAYCE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE, Suite 115 NEW ORLEANS, LA 70130 March 27, 2024 MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc No. 23-60377 Fasken Land and Minerals v. NRC USDC No. 72-1051 Enclosed is a copy of the courts decision. The court has entered judgment under Fed. R. App. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)
Fed. R. App. P. 39 through 41, and Fed. R. App. P. 35, 39, and 41 govern costs, rehearings, and mandates. Fed. R. App. P. 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the courts opinion or order.
Please read carefully the Internal Operating Procedures (IOPs) following Fed. R. App. P. 40 and Fed. R. App. P. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.
Direct Criminal Appeals. Fed. R. App. P. 41 provides that a motion for a stay of mandate under Fed. R. App. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under Fed. R. App. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.
Case: 23-60377 Document: 95-2 Page: 1 Date Filed: 03/27/2024
The judgment entered provides that respondents pay to petitioners the costs on appeal. A bill of cost form is available on the courts website www.ca5.uscourts.gov.
Sincerely, LYLE W. CAYCE, Clerk By: _______________________
Whitney M. Jett, Deputy Clerk Enclosure(s)
Mr. Andrew Paul Averbach Mr. Benjamin L. Bernell Mr. Paul D. Clement Mr. Merrick Garland, U.S. Attorney General Mr. Justin Heminger Mr. Allan L. Kanner Ms. Annemieke Monique Tennis Case: 23-60377 Document: 95-2 Page: 2 Date Filed: 03/27/2024