Los Alamos Study Group v. United States Department of Energy ( 2012 )


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  •                                                                     FILED
    United States Court of Appeals
    Tenth Circuit
    August 27, 2012
    PUBLISH              Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    LOS ALAMOS STUDY GROUP,
    Plaintiff - Appellant,
    v.                                             No. 11-2141
    UNITED STATES DEPARTMENT
    OF ENERGY; THE HONORABLE
    STEVEN CHU, in his capacity
    Secretary, Department of Energy;
    NATIONAL NUCLEAR SECURITY
    ADMINISTRATION; THE
    HONORABLE THOMAS PAUL
    D’AGOSTINO, in his capacity as
    Administrator, National Nuclear
    Security Administration,
    Defendants - Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW MEXICO
    (D.C. NO. 1:10-CV-00760-JCH-ACT)
    Thomas M. Hnasko, Hinkle, Hensley, Shanor & Martin, LLP, Santa Fe, New
    Mexico, (Dulcinea Z. Hanuschak, Hinkle, Hensley, Shanor & Martin, LLP, and
    Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, New
    Mexico, with him on the brief), for Plaintiff - Appellant.
    Robert P. Stockman, Environment & Natural Resources Division, United States
    Department of Justice, Washington, DC, (Ignacia S. Moreno, Assistant Attorney
    General, Washington, DC; Andrew A. Smith, John P. Tustin, Environment &
    Natural Resources Division, United States Department of Justice, and Janet
    Masters, Matthew F. Rotman, of counsel, Office of the General Counsel, U.S.
    Department of Energy, with him on the brief), for Defendants - Appellees.
    Before BRISCOE, Chief Judge, McKAY, and HARTZ, Circuit Judges.
    HARTZ, Circuit Judge.
    On August 16, 2010, Plaintiff Los Alamos Study Group filed a complaint
    for declaratory and injunctive relief under the National Environmental Policy Act
    (NEPA), 42 U.S.C. §§ 4321–4347, and the Administrative Procedure Act (APA),
    5 U.S.C. §§ 701–706. Defendants were the National Nuclear Security
    Administration (NNSA), the United States Department of Energy (DOE), NNSA’s
    administrator, and the DOE secretary. The complaint alleged that the design
    proposed for construction of a Chemistry and Metallurgy Research Replacement
    Nuclear Facility (the Nuclear Facility) at the Los Alamos National Laboratory
    (the Laboratory) had changed so much since the original environmental analysis
    in 2003 that a new analysis was required and that all work on the facility should
    be halted until the conclusion of such analysis. The district court dismissed the
    claims on two grounds: (1) that they were prudentially moot because Defendants
    began an environmental analysis after the complaint was filed and committed to
    refraining from all construction on the Nuclear Facility until the analysis was
    complete, and (2) that the case was not yet ripe because there had been no final
    agency action. We agree with the district court on the ripeness issue. We
    therefore need not address prudential mootness.
    -2-
    I.    BACKGROUND
    A.    Regulatory Overview
    NNSA is an agency within the DOE whose responsibilities include
    managing and securing the nation’s nuclear weapons. As part of these
    responsibilities, NNSA administers the Laboratory in Los Alamos, New Mexico.
    The Laboratory supports various activities relating to nuclear weapons, including
    “nuclear materials handling, processing and fabrication; stockpile management;
    materials and manufacturing technologies; nonproliferation programs; and waste
    management activities.” 69 Fed. Reg. 6967, 6968 (Feb. 12, 2004).
    As a federal agency, NNSA must comply with the provisions of NEPA,
    which “declares a broad national commitment to protecting and promoting
    environmental quality.” Robertson v. Methow Valley Citizens Council, 
    490 U.S. 332
    , 348 (1989). NEPA does not require agencies to reach particular substantive
    environmental results. See 
    id. at 350–51. But
    it “requires federal agencies to
    pause before committing resources to a project and consider the likely
    environmental impacts of the preferred course of action as well as reasonable
    alternatives.” Forest Guardians v. U.S. Fish & Wildlife Serv., 
    611 F.3d 692
    , 711
    (10th Cir. 2010) (internal quotation marks omitted). Its dual goals are that the
    agency “consider every significant aspect of the environmental impact of a
    proposed action” and “inform the public that it has indeed considered
    environmental concerns in its decisionmaking process.” Baltimore Gas &
    -3-
    Electric Co. v. Natural Res. Def. Council, Inc., 
    462 U.S. 87
    , 97 (1983) (internal
    quotation marks omitted).
    To further these goals, NEPA requires thorough environmental studies
    before official action:
    [B]efore an agency may take major Federal actions significantly
    affecting the quality of the human environment, an agency must
    prepare an environmental impact statement (EIS) in which the agency
    considers the environmental impacts of the proposed action and
    evaluates alternatives to the proposed action, including the option of
    taking no action. In doing so, the agency must take a hard look at
    information relevant to its decision.
    Forest 
    Guardians, 611 F.3d at 711
    (citations, brackets, and internal quotation
    marks omitted). If, after an EIS has been prepared, “there are substantial changes
    to the proposal or significant new circumstances or information relevant to
    environmental concerns,” then a supplemental EIS (an SEIS) must be prepared.
    10 C.F.R. § 1021.314(a). An SEIS is prepared in the same manner as the original
    EIS, except that the DOE is not required to allow the public to comment on the
    scope of an SEIS. See 
    id. § 1021.311(a), (f);
    id. § 1021.314(d); 40 
    C.F.R.
    § 1501.7 (defining scoping as “an early and open process for determining the
    scope of issues to be addressed and for identifying the significant issues related to
    a proposed action”). If the DOE takes action on a proposal in an EIS or SEIS, it
    must prepare a public record of decision (ROD), see 10 C.F.R. § 1021.315(b); 
    id. § 1021.314(d), which
    states what the decision is, identifies and analyzes the
    -4-
    alternatives considered, and discusses means of avoiding or minimizing
    environmental harm from the selected alternative, see 40 C.F.R. § 1505.2.
    B.    Chemistry and Metallurgy Research Building
    Many of the Laboratory’s activities require facilities equipped to handle
    radioactive materials. The most important of these facilities are located in the
    Chemistry and Metallurgy Research building (the CMR Building) and a separate
    plutonium facility (which is being upgraded in another project). Some of the
    CMR Building’s capabilities are apparently unique, such as its analytical-
    chemistry and materials-characterization functions. In the late 1990s NNSA
    concluded that the CMR Building was “near the end of its useful life,” 69 Fed.
    Reg. 6967, 6968, both because a seismic analysis had revealed that the building
    lacked sufficient structural integrity and because its components were aging.
    NNSA therefore began considering options for how and where to continue the
    functions performed at the CMR Building. An EIS in 2003 analyzed four
    alternatives for the Chemistry and Metallurgy Research Building Replacement
    Project. They varied in what buildings would be constructed and where they
    would be placed. The ultimate choice for the project in the 2004 ROD, see 
    id. at 6967–72, was
    “Alternative 1”: replacing the CMR Building with a new facility at
    Technical Area 55 comprised of two buildings: a “consolidated nuclear material-
    capable, Hazard Category 2 laboratory building” (the Nuclear Facility), and “a
    separate, adjacent administrative office and support functions building,” referred
    -5-
    to as the Radiological Laboratory Utility Office Building (the Office Building).
    75 Fed. Reg. 60745, 60746 (Oct. 1, 2010). The project also involved the
    “construction of a parking areas(s) [sic], tunnels, vault area(s), and other
    infrastructure support needs.” 69 Fed. Reg. 6967, 6968. The 2004 ROD was
    never challenged.
    Over the following years the design changed, primarily to accommodate
    seismic and safety concerns. The changes have increased the scale and estimated
    cost of the proposed construction. For example, the original design for the
    Nuclear Facility called for a building with “a footprint of 300 by 275 feet, with
    one story below ground and one story above ground,” Aplt. App., Vol. 3 at 568;
    but as of August 2010 the proposed building had a footprint of 342 by 304 feet,
    “with three levels below ground and one-and-a-half levels above ground,” 
    id. at 569. The
    estimated cost increased from $745 to $975 million for both the Office
    Building and the Nuclear Facility in 2005 to over $2 billion for just the Nuclear
    Facility in 2009.
    C.     Later Environmental Studies
    By July 30, 2010, these changes (and perhaps communications from
    Plaintiff) had led NNSA to conclude that it should prepare a Supplement Analysis
    to determine whether it needed an SEIS to update the 2003 EIS. See 10 C.F.R.
    § 1021.314(c) (requiring preparation of Supplement Analysis when “it is unclear
    whether or not an EIS supplement is required”). Before completing a Supplement
    -6-
    Analysis, however, NNSA decided to prepare an SEIS. Donald Cook, the Deputy
    Administrator for Defense Programs at NNSA, filed a sworn declaration stating
    that no Nuclear Facility construction would occur during the preparation of the
    SEIS. After two public meetings and a 45-day comment period, NNSA issued a
    Draft SEIS in April 2011. It held three public hearings on the Draft SEIS and
    accepted comments for 45 days. The final SEIS was published in August
    2011—several months after the district court had issued its opinion in this
    case—and the Amended ROD was published in October 2011. Plaintiff is
    challenging the SEIS and the Amended ROD in a different action.
    D.     Ongoing Activity at the Laboratory
    Even as there have been reevaluations of the Nuclear Facility component of
    the project approved by the 2004 ROD, some other authorized actions have
    continued. Construction of the Office Building, for example, is complete.
    Construction of the Nuclear Materials Safeguards and Security Upgrades Project
    Phase II, which provides a security system at Technical Area 55, is ongoing.
    Also, design work for the Nuclear Facility has continued. The district court found
    that the design for the overall project was less than 50% complete, and during the
    SEIS process the design was expected to advance by only about 15%. By October
    2010 approximately $210 million had been spent on design work for the Nuclear
    Facility. The Federal Project Director submitted a sworn declaration that the
    ongoing design process “[would] provide important information for the analysis
    -7-
    in the SEIS needed to understand and address uncertainties associated with the
    construction of the [Nuclear Facility].” Aplt. App., Vol. 3 at 822 (Declaration of
    Herman C. LeDoux at 2, Los Alamos Study Group v. U.S. Dep’t of Energy,
    No. 10-CV-760 JCH/ACT (Dec. 20, 2010)).
    E.    District-Court Proceedings
    Plaintiff filed its complaint in the United States District Court for the
    District of New Mexico on August 16, 2010, soon after being notified that NNSA
    planned to prepare a Supplement Analysis, but before NNSA announced its
    decision to prepare an SEIS. The complaint contains five claims: (1) that
    Defendants are violating NEPA and the APA by failing to prepare an applicable
    EIS for the Nuclear Facility while implementing a proposal that differs
    substantially from any analyzed in the 2003 EIS; (2) that NEPA prohibits
    Defendants from proceeding with the Nuclear Facility before preparing a new EIS
    that considers connected actions and cumulative environmental impacts arising
    from other Laboratory projects; (3) that Defendants are violating NEPA by failing
    to identify mitigation measures and prepare a mitigation action plan for the
    current version of the proposed Nuclear Facility; (4) that Defendants are violating
    NEPA by failing to integrate required environmental analyses into their
    decisionmaking processes for revising plans for the Nuclear Facility; and (5) that
    Defendants are violating NEPA by not providing a notice or comment process for
    public input regarding the Nuclear Facility. In an October 4 motion to dismiss
    -8-
    under Fed. R. Civ. P. 12(b)(1), Defendants stated that they were conducting
    further environmental reviews, and argued that the claims were time-barred,
    would not be ripe until completion of the SEIS and issuance of a ROD, and were
    moot.
    The district court referred the matter to a magistrate judge, who issued
    proposed findings and a recommended disposition on January 6, 2011. After
    reviewing de novo the findings and recommendation and holding two additional
    hearings, the district court issued a May 23 opinion holding that the complaint
    should be dismissed as prudentially moot and unripe. Regarding ripeness, the
    court held that because the SEIS process was ongoing, there was no “final agency
    action” for a court to review. Aplt. App., Vol. 2 at 331 (Mem. Op. & Order at 18,
    Los Alamos Study Group, No. 10-CV-760 JCH/ACT (May 23, 2011) (internal
    quotation marks omitted)). In response to Plaintiff’s contention that Defendants
    were making an irretrievable commitment of resources to the Nuclear Facility
    project, the court said that Defendants had made no decision formally allowing
    detailed design and construction and that Nuclear Facility construction would not
    begin before completion of the SEIS. Although $210 million had been spent on
    the project during the prior six years, the court noted that the money had been for
    “building design and analysis” and that “the expenditure of even large amounts of
    money on design does not indicate that NNSA has made an irreversible and
    irretrievable commitment of resources, because design work is ongoing and
    -9-
    neither a final SEIS nor a final approval for construction has been issued.” 
    Id. (internal quotation marks
    omitted). The court also found that Plaintiff had not
    shown that the result of the environmental analysis had been predetermined.
    Plaintiff appealed. The parties then filed additional motions in this court.
    Defendants filed a motion for summary disposition on November 1, 2011, arguing
    that the issuance of a final SEIS and Amended ROD rendered the case
    constitutionally moot. Plaintiff responded that the case was not moot because the
    NEPA violations were continuing. Then, on March 6, 2012, Plaintiff filed a
    motion to supplement the record, vacate the judgment below, and remand under
    Tenth Circuit Rule 27.2(A)(1) because the DOE/NNSA 2013 budget request
    allegedly contradicted the SEIS. Defendants responded that the motion did not
    comply with Rule 27.2 and that the budget proposal was not a final agency action.
    On appeal Plaintiff argues that the issues are neither prudentially moot nor
    unripe and that the district court erred in resolving factual issues in favor of
    Defendants despite conflicting evidence supporting Plaintiff. Because we agree
    with the district court that the issues presented are not ripe, we do not decide the
    prudential-mootness question.
    II.   ANALYSIS
    A.     Procedural Issues and Standard of Review
    Plaintiff raises two procedural objections to the district court’s disposition
    of Plaintiff’s motion to dismiss. First, it contends that the court should have
    -10-
    converted Defendants’ Rule 12(b)(1) motion to dismiss into a motion for
    summary judgment. Such a conversion would have restricted the court’s
    authority to weigh evidence. Ordinarily, “[w]hen a motion relies on facts outside
    the record, the court may hear the matter on affidavits or may hear it wholly or
    partly on oral testimony or on depositions.” Fed. R. Civ. P. 43(c). In particular,
    when considering a Rule 12(b)(1) motion to dismiss, the court may weigh the
    evidence and make factual findings. See Holt v. United States, 
    46 F.3d 1000
    ,
    1003 (10th Cir. 1995) (“When reviewing a factual attack on subject matter
    jurisdiction, a district court may not presume the truthfulness of the complaint’s
    factual allegations. A court has wide discretion to allow affidavits, other
    documents, and a limited evidentiary hearing to resolve disputed jurisdictional
    facts under Rule 12(b)(1).” (citation omitted)). When ruling on a summary-
    judgment motion, however, the court must view the evidence in the light most
    favorable to the party opposing the motion. See In re Wal-Mart Stores, Inc., 
    395 F.3d 1177
    , 1189 (10th Cir. 2005).
    Plaintiff relies on an exception to the general rule permitting the weighing
    of evidence in Rule 12(b)(1) proceedings. We have held that the district court
    must convert a 12(b)(1) motion into a summary-judgment motion if “resolution of
    the jurisdictional question is intertwined with the merits of the case.” 
    Holt, 46 F.3d at 1003
    . Whether the issues are so intertwined is generally determined by
    whether “subject matter jurisdiction is dependent on the same statute which
    -11-
    provides the substantive claim in the case.” 
    Id. (“Here, resolution of
    the
    jurisdictional issue—i.e., whether the government is immune from suit under [the
    Flood Control Act of 1928]—does not depend on the [Federal Tort Claims Act]
    which provides the substantive claims in the case. Thus, the district court
    properly treated the government’s motion as one brought pursuant to Rule
    12(b)(1).”). Plaintiff contends that this exception applies because “NEPA
    provides the basis for federal question jurisdiction and for the substantive claim.”
    Aplt. Br. at 53.
    We do not address this contention because it was waived below. Plaintiff’s
    brief in response to Defendants’ motion to dismiss contains a one-paragraph
    section entitled “Legal Standard,” which states in part: “The Court has broad
    discretion to freely weigh affidavits and other documents in resolving the
    jurisdictional issue. In the following Response and documenting submittals,
    [P]laintiff has provided significantly more than a preponderance of evidence that
    this Court has subject matter jurisdiction over this litigation.” Aplt. App., Vol. 1
    at 86 (citations omitted). A party cannot ask the district court to do something
    and then complain on appeal that the court complied with the request. See
    ClearOne Commc’ns, Inc. v. Bowers, 
    643 F.3d 735
    , 771 (10th Cir. 2011) (invited-
    error doctrine).
    Plaintiff’s second procedural complaint is that the magistrate judge erred in
    denying leave for discovery on the issues raised by Defendants’ motion to
    -12-
    dismiss. But Plaintiff never sought review by the district court of the magistrate
    judge’s decision, so Plaintiff is not entitled to consideration by this court of the
    denial. See Centennial Archaeology v. AECOM, No. 11-8000, 
    2012 WL 3055942
    ,
    at *9 (10th Cir. July 27, 2012); Niehaus v. Kansas Bar Ass’n, 
    793 F.2d 1159
    ,
    1164–65 (10th Cir. 1986), superseded by statute on other grounds as stated in De
    Vargas v. Mason & Hanger-Silas Mason Co., 
    911 F.2d 1377
    , 1383–84 (10th Cir.
    1990).
    We now turn to the merits of the district court’s decision that the case is
    not ripe for review. We review the decision de novo, see Utah v. U.S. Dep’t of
    Interior, 
    535 F.3d 1184
    , 1191 (10th Cir. 2008), although we review for clear error
    any findings of historical fact, see Gordon v. Norton, 
    322 F.3d 1213
    , 1219 (10th
    Cir. 2003). Plaintiff bears the burden of showing ripeness. See 
    id. B. Ripeness The
    ripeness doctrine prevents courts “from entangling themselves in
    abstract disagreements over administrative policies, and also . . . protect[s] the
    agencies from judicial interference until an administrative decision has been
    formalized and its effects felt in a concrete way by the challenging parties.”
    Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 148–49 (1967), overruled on other
    grounds by Califano v. Sanders, 
    430 U.S. 99
    , 105 (1977). “A claim is not ripe for
    adjudication if it rests upon contingent future events that may not occur as
    -13-
    anticipated, or indeed may not occur at all.” Texas v. United States, 
    523 U.S. 296
    , 300 (1998) (internal quotation marks omitted).
    One set of factors for determining ripeness is set forth in Qwest
    Communications International, Inc. v. FCC, 
    398 F.3d 1222
    , 1231–32 (10th Cir.
    2005): “(1) whether the issues involved are purely legal, (2) whether the
    agency’s action is final, (3) whether the action has or will have an immediate
    impact on the petitioner, and (4) whether resolution of the issue will assist the
    agency in effective enforcement and administration.” 1 Here, the second
    factor—the finality of agency action—is all we need consider, because the
    absence of final agency action is dispositive. See Friends of Marolt Park v. U.S.
    Dep’t of Transp., 
    382 F.3d 1088
    , 1093–94 (10th Cir. 2004) (“[W]hether the issues
    are fit for review depends on whether the plaintiff challenges a final agency
    action.”); Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 
    197 F.3d 448
    ,
    450 (10th Cir. 1999) (citing the APA, 5 U.S.C. § 704, which limits review to final
    agency actions and actions made reviewable by statute).
    An agency’s action is final if it satisfies two requirements: “First, the
    action must mark the consummation of the agency’s decisionmaking process—it
    1
    We have also articulated a three-factor test: “1) whether delayed review would
    cause hardship to the plaintiffs; 2) whether judicial intervention would inappropriately
    interfere with further administrative action; and 3) whether the courts would benefit
    from further factual development of the issues presented.” Sierra Club v. U.S. Dep’t of
    Energy, 
    287 F.3d 1256
    , 1262–63 (10th Cir. 2002). But the two tests “essentially
    include[] all the same considerations.” Coal. for Sustainable Res., Inc. v. U.S. Forest
    Serv., 
    259 F.3d 1244
    , 1250 n.11 (10th Cir. 2001).
    -14-
    must not be of a merely tentative or interlocutory nature. And second, the action
    must be one by which rights or obligations have been determined, or from which
    legal consequences will flow.” Bennett v. Spear, 
    520 U.S. 154
    , 177–78 (1997)
    (citations and internal quotation marks omitted); see Ctr. for Native Ecosystems v.
    Cables, 
    509 F.3d 1310
    , 1329 (10th Cir. 2007) (quoting Bennett). Neither
    requirement is satisfied here. As the district court found, the decisionmaking
    process for building a Nuclear Facility was ongoing: “The [SEIS] process [was]
    still open to public participation and it [was] unclear . . . what form the SEIS and
    associated ROD [would] take.” Aplt. App., Vol. 2 at 329 (Mem. Op. & Order at
    16, Los Alamos Study Group, No. 10-CV-760 JCH/ACT (May 23, 2011)). And
    the agency had made no decision determining any rights or obligations: no
    Nuclear Facility construction was occurring, the project design was less than 50%
    complete, and NNSA was still evaluating sizing, layout, and excavation options.
    See Bennett Hills Grazing Ass’n v. United States, 
    600 F.2d 1308
    , 1309 (9th Cir.
    1979) (judicial review of draft SEIS was not warranted because courts should not
    interfere until agency makes decision).
    Plaintiff argues that its claims are ripe because (1) NEPA requires the
    preparation of an EIS before “irreversible and inretrievable commitments of
    resources to an action that will affect the environment,” Reply Br. at 20 (internal
    quotation marks omitted); (2) Defendants have made such commitments to the
    Nuclear Facility; and (3) once an EIS is required, the court can act because “‘a
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    person with standing who is injured by a failure to comply with the NEPA
    procedure may complain of that failure at the time the failure takes place, for the
    claim can never get any riper,’” 
    id. at 29, quoting
    Ohio Forestry Ass’n, Inc.
    Sierra Club, 
    523 U.S. 726
    , 737 (1998). Plaintiff cites several cases in support.
    Those, and other, cases turn on whether the agency has committed to an action
    that eliminates its ability to prevent later adverse environmental consequences,
    such a binding commitment being final agency action for NEPA purposes. For
    example, in New Mexico ex rel. Richardson v. Bureau of Land Management, 
    565 F.3d 683
    , 718 (10th Cir. 2009), the issuance of a lease without a no-surface-
    occupancy stipulation was an irretrievable commitment because the agency could
    not prevent environmental impacts caused by the lease after its issuance. See also
    Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 
    563 F.3d 466
    , 480
    (D.C. Cir. 2009) (challenge to first stage of multistage lease program was not ripe
    when agency would be conducting additional analyses in later stages that could
    scuttle the program); Wyoming Outdoor Council v. U.S. Forest Serv., 
    165 F.3d 43
    ,
    49–50 (D.C. Cir. 1999) (focusing on whether the agency had given up the
    authority to preclude the relevant activities and concluding that there was no
    irreversible commitment because until leases were issued the Forest Service could
    “undertake additional efforts to comply with its NEPA obligations”); Conner v.
    Burford, 
    848 F.2d 1441
    , 1450 (9th Cir. 1988) (sale of leases required EIS because
    after the sale the government could not preclude “activities [that were] likely, if
    -16-
    not certain, to significantly affect the environment”); Mobil Oil Corp. v. FTC, 
    562 F.2d 170
    , 171–73 (2d Cir. 1977) (even when an agency indicated at the beginning
    of an administrative proceeding what remedies it expected ultimately to request,
    there was no irreversible commitment because the proceeding’s outcome was
    merely speculative).
    Plaintiff, however, has identified no actions that irreversibly lead to
    construction of the Nuclear Facility (and any resulting environmental injury).
    Instead, it identifies only interlocutory actions that have no necessary
    consequences for the facility. 2 We now address in turn the actions relied on by
    Plaintiff.
    1.     Ongoing Construction
    One of Plaintiff’s primary arguments is that ongoing construction at the site
    constitutes an irreversible commitment to build the Nuclear Facility. But the
    district court found that no construction on the Nuclear Facility was occurring
    during the SEIS process and that the construction already completed or underway
    had been approved independently of the Nuclear Facility. Plaintiff has not shown
    how any ongoing construction bound Defendants to build the Nuclear Facility.
    2
    We need not decide whether the present case became ripe upon preparation of
    the SEIS or the issuance of the ROD, because Plaintiff does not argue ripeness on that
    ground. Although we have a duty to determine whether we lack jurisdiction to hear a
    case—a duty that arises because we have no authority to decide a matter when we lack
    jurisdiction—we have no duty to investigate grounds for jurisdiction not raised by a
    party. See Somerlott v. Cherokee Nation Distribs., Inc., No. 10-6157, 
    2012 WL 3055566
    , at *6 (10th Cir. July 27, 2012).
    -17-
    2.     Design Work
    As for design work—another allegedly irreversible commitment to build the
    Nuclear Facility—the district court found that “NNSA is still evaluating the
    aspects of relative sizing and layout of the proposed [Nuclear Facility], and the
    overall project design is less than 50 percent complete.” Aplt. App., Vol. 2 at 320
    (Mem. Op. & Order at 7, Los Alamos Study Group, No. 10-CV-760 JCH/ACT
    (May 23, 2011)). As Plaintiff said in the complaint, Defendants had not even
    made decisions classified as either “‘Critical Decision 2’” or “‘Critical Decision
    3,’” which would “formally allow detailed design and construction, respectively.”
    
    Id., Vol. 1 at
    17 (Compl. for Declaratory J. & Injunctive Relief at 7, Los Alamos
    Study Group, No. 10-CV-760 JCH/ACT (Aug. 16, 2010)). The present level of
    design work does not prevent Defendants from considering alternative designs.
    Cf. New Mexico ex rel. 
    Richardson, 565 F.3d at 718
    (sale of lease without no-
    surface-occupancy stipulation was an irretrievable commitment because the
    agency could not prevent environmental impacts caused by lessee after its
    issuance). No legal consequences flow from the design work thus far and it
    determines no rights or obligations. See 
    Bennett, 520 U.S. at 177–78
    . The Ninth
    Circuit made the same observation when considering an agency’s decision that it
    would “partially fund preliminary design and engineering work”:
    Neither this decision nor the design and engineering work that will
    follow will have any impact upon appellants in and of themselves.
    The threat that such an impact will eventually occur is neither
    -18-
    immediate nor certain. The [agency] has explicitly disavowed any
    advance commitment to approve construction. The design and
    engineering work is still in progress.
    Rapid Transit Advocates, Inc. v. S. Cal. Rapid Transit Dist., 
    752 F.2d 373
    , 378
    (9th Cir. 1985) (dismissing case).
    3.     Administration Support
    Plaintiff next suggests that support for the project by the highest levels of
    the Executive Branch shows that there has been final agency action. But it cites
    no case law that such support makes a decision irreversible. And in any event a
    commitment to a particular Nuclear Facility plan is not demonstrated by the
    evidence it cites: a letter from the Vice President stating the Administration’s
    “unequivocal commitment to recapitalizing and modernizing the nuclear
    enterprise,” Aplt. App., Vol. 6 at 1736; a White House press release stating the
    Administration’s commitment “to requesting the funding needed” to complete the
    full Chemistry and Metallurgy Research Replacement facility, 
    id. at 1737; a
    letter
    from Senator John Kyl questioning the Administration’s commitment; and a
    November 2010 article in the Nuclear Weapons & Materials Monitor that
    discusses political negotiations regarding Senate support for the START treaty in
    return for sufficient long-term funds to “moderniz[e] . . . the nation’s weapons
    complex and arsenal.” 
    Id., Vol. 3 at
    696. General statements about nuclear
    policy create no rights or obligations regarding the Nuclear Facility. Indeed, in a
    March 6, 2012, motion to this court, Plaintiff asserts that the Administration’s
    -19-
    current proposal is to defer construction of the Nuclear Facility for at least five
    years.
    4.    Budget Proposal
    Also in the March 6 motion, Plaintiff argues that February 2012 budget
    materials show that Defendants are considering new alternatives for the Nuclear
    Facility. Plaintiff asks that we supplement the record with these budget materials
    “to dispose of any claims of prudential mootness or ripeness.” Pl.-Appellant’s
    Mot. to Supplement the Record, to Vacate the J. Below, & to Remand Pursuant to
    Tenth Cir. Rule 27.2(A)(1) at 5 (Los Alamos Study Group v. U.S. Dep’t of Energy,
    No. 11-2141 (10th Cir. Mar. 6, 2012)). But a budget request is no more a final
    agency action than an offer is a contract. A request is not a binding legal
    obligation. Indeed, even the appropriation of funds for construction would not
    necessarily create final agency action absent final agency approval. See Rapid
    Transit 
    Advocates, 752 F.2d at 379
    . To the extent that the budget materials have
    any relevance (and the logic of Plaintiff’s argument is far from clear to us), they
    only emphasize that the conception of the Nuclear Facility is everchanging, with
    no definitive decisions having been made.
    5.    Contractor’s Performance-Evaluation Plan
    About the time this suit was filed, the performance-evaluation plan for the
    management and operating contractor, Los Alamos National Security, LLC
    (LANS), included an award term based on LANS taking “[a]ctions necessary to
    -20-
    issue and execute construction contracts.” Aplt. App., Vol. 6 at 1670. Plaintiff
    apparently believes that this term establishes a binding commitment to construct
    the Nuclear Facility. We think that conclusion is a stretch; but the issue is no
    longer before us anyway because the plan was amended to eliminate that
    obligation. Once the term was eliminated, which was before the district court
    dismissed this case, it could no longer be the basis for finding this case ripe. See
    Anderson v. Green, 
    513 U.S. 557
    , 559 (1995) (“[R]ipeness is peculiarly a
    question of timing” and must be judged at the time of review. (internal quotation
    marks omitted)); Hooker Chem. Co. v. EPA, 
    642 F.2d 48
    , 52–53 (3d Cir. 1981)
    (case was not ripe when agency withdrew orders after the plaintiff filed petitions
    for review); 13B Charles A. Wright et al., Federal Practice and Procedure
    § 3532.1, at 390 (3d ed. 2008) (“Many [cases] find that although a dispute was
    once ripe, ripeness has been lost to overtaking events.”).
    6.     2010 Project-Update Presentation
    Plaintiff notes that a June 2010 project-update presentation states that
    LANS should “‘plan for [Nuclear Facility] completion by 2020 with operations in
    2022.’” Aplt. Br. at 57 (quoting Aplt. App., Vol. 6 at 1653). But planning for an
    event and committing to its realization are not the same thing. See Bell v.
    Bonneville Power Admin., 
    340 F.3d 945
    , 950 (9th Cir. 2003) (challenge was not
    ripe when agency had “made only future plans to negotiate and support” but had
    not made the relevant acquisition that might violate the statute). Although
    -21-
    Plaintiff also asserts that the presentation demonstrates that “[c]ontracts for
    interior fixtures have been let,” Aplt. Br. at 57 (citing Aplt. App., Vol. 6 at
    1650–67), the cited pages do not support the assertion.
    Because the district court properly found that Defendants had not yet taken
    any action requiring an environmental study for the Nuclear Facility, we affirm its
    holding that Plaintiff’s claim was not ripe.
    III.   CONCLUSION
    We AFFIRM the district court’s dismissal of Plaintiff’s suit. We DENY all
    pending motions.
    -22-
    

Document Info

Docket Number: 11-2141

Judges: Briscoe, McKay, Hartz

Filed Date: 8/27/2012

Precedential Status: Precedential

Modified Date: 3/2/2024

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