ML22138A386
| ML22138A386 | |
| Person / Time | |
|---|---|
| Issue date: | 05/16/2022 |
| From: | James Adler, Andrew Averbach, Nakahara C NRC/OGC, State of Utah, Office of the Attorney General |
| To: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| References | |
| 05-1419, 05-1420, 06-1087, 1946860 | |
| Download: ML22138A386 (9) | |
Text
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 1 of 9 No. 05-1419 (Consolidated with Nos. 05-1420, 06-1087)
United States Court of Appeals for the District of Columbia Circuit Ohngo Gaudadeh Devia and State of Utah, Petitioners, v.
Nuclear Regulatory Commission and United States Of America, Respondents, Private Fuel Storage, L.L.C. and Skull Valley Band of Goshute Indians, Intervenors.
On Petitions for Review of Orders and a License of the Nuclear Regulatory Commission Reply in Support of State of Utahs Motion to Vacate Final Agency Action as Moot
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 2 of 9 Neither the Federal Respondents nor the license holder, Private Fuel Storage, L.L.C., give any persuasive reason to keep pretending this long dormant and already half-dead matter might magically revive in the next four years. And, even if there had been any sliver of hope about the ISFSI projects viability, the Skull Valley Band of Goshute Indians Response removed any doubtthe Band wont give PFS another lease to enter their reservation. So PFSs site-specific license to build a nuclear storage facility on the Bands land is useless. That makes the parties dispute about the license moot. This Court should dismiss the petition for lack of jurisdiction and vacate the NRCs order granting the license and related orders or rulings that Petitioners challenge in their merits briefing.
Reply A. The Federal Respondents argue the appeal is not moot because nothing has changed since the Court first abated the matter 12 years ago. Fed. Resp. at 1-5. But thats precisely 1
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 3 of 9 the problemnothing has changed in more than a decade; at least nothing showing PFS could plausibly build and operate the ISFSI before the license expires in 2026. PFS still has no BLM approved right-of-way (or even a pending application for one) or any proposed alternative route. And PFS still has no operative lease with the Skull Valley Band of Goshute Indians to build the project on their land. Devia v. Nuclear Regulatory Commn, 492 F.3d 421, 425-26 (D.C. Cir. 2007) (noting PFS lacked a BLM-approved right-of-way and a BIA-approved lease to build the project on the Skull Valley Bands reservation).
Fifteen years ago, the Court found these same problems made the petitions unripe for judicial review because it was too speculative whether the validity of the NRC license is a problem that will ever need solving. Id. at 426 (internal quotation marks omitted). Its not speculative anymore. PFS has not fixed these issues during the past decade and a half and the Federal Respondents offer no reason to think PFS would or could suddenly fix them in the next four years. The licenses validity 2
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 4 of 9 no longer needs to be resolved. The case has turned from unripe to unquestionably moot.
PFSs response does not help matters. PFS admits it still has not obtained any BLM approval for the right-of-way and would have to renegotiate a lease for the project site with the Skull Valley Band. PFS Resp. at 7 & n.3. But PFS claims it still has time to do both things before the license expires in four years. PFS Resp. at 7. And allegedly favorable market conditions may prod PFS to finally move forward. PFS Resp. at 8-9. But that sort of speculation cannot shield [a] case from a mootness determination. Bunting v. Mellen, 541 U.S. 1019, 1021 (2004).
Speculation falls especially short when, as here, it defies reality. Two weeks before PFS filed its response in this Court, the Skull Valley Bands Executive Committee told PFS representatives that the Band had no desire to pursue the ISFSI project and declined to participate in any current or future business relationship with PFS. Skull Valley Band Resp. at 3.
The NRC license is only good for the site on the Skull Valley 3
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 5 of 9 Bands land. See also Devia, 492 F.3d at 425-26 (noting [t]he license granted by the NRC is site-specific, authorizing storage only at the location designated in the proposed lease [on the Skull Valley Bands land] and rejected by the BIA).
Although PFS knew the Bands stance against executing a future lease, PFS never addressed this critical fact in its response, much less explain how PFS planned to resolve the problem before the license expires. Merely hoping the Band changes its mind one day is not enough to keep this case alive.
Utah agrees with the Band that [w]ithout [its] 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. Skull Valley Band Resp. at 7.
B. Because the license dispute is moot through no fault of Petitioners, the Court should vacate NRCs related orders.
Utah Mot. to Vacate at 7-9; see also Columbian Rope Co. v. West, 142 F.3d 1313, 1318 n.8 (D.C. Cir. 1998) (noting it is the Courts duty to vacate when appeal becomes moot through 4
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 6 of 9 happenstance). Neither PFS nor the Federal Respondents dispute that vacatur is the proper remedy. But the Federal Respondents contest the scope of any vacatur. Fed. Resp. at 5-9.
The State clarifies and confirms that it is not asking the Court to vacate every underlying NRC order or decision. The State merely requests that the Court vacate the NRCs (and its licensing boards) orders or rulings that the Petitioners challenged in their merits briefing, including the order granting PFSs license. Am. Fam. Life Assur. Co. of Columbus v. F.C.C.,
129 F.3d 625, 631 (D.C. Cir. 1997) (Having sought review of the merits of an adverse ruling and having been frustrated by the vagaries of circumstance, petitioner ought not in fairness be forced to acquiesce in the Commission's judgment. (internal quotation marks omitted)); see also Tenn. Gas Pipeline Co. v.
Fed. Power Commn, 606 F.2d 1373, 1375, 1383 (D.C. Cir. 1979)
(vacating the Commission orders under review to the extent they held what petitioner was challenging).
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USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 7 of 9 Respectfully submitted,
/s/ Connie S. Nakahara Melissa Holyoak Utah Solicitor General Connie S. Nakahara Assistant Utah Attorney General Utah Attorney Generals Office 160 East 300 South, 5th floor Salt Lake City, Utah 84114 melissaholyoak@agutah.gov cnakahara@agutah.gov Attorneys for Petitioner State of Utah 6
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 8 of 9 Certificate o f Compliance Pursuant to Fed. R. App. P. 27 and Cir. R. 27, I hereby certify that this reply complies with the type-volume limitation of Fed. R.
App. P. 27(d)(2)(C) because it contains 877 words, excluding the parts exempted by Fed. R. App. P. 32(f) and Cir. R. 32(e)(1). I further certify that this reply complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R.
App. P. 32(a)(6) because it was prepared in 14-point Century Schoolbook font using Microsoft Word.
/s/ Connie S. Nakahara 7
USCA Case #05-1419 Document #1946860 Filed: 05/16/2022 Page 9 of 9 Certificate o f Service I hereby certify, pursuant to Fed. R. App. P. 25(c), that on May 16, 2022, the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, which will send a notification to the attorneys of record in this matter who are registered with the Courts CM/ECF system.
/s/ Connie S. Nakahara 8