US Ecology, Inc. v. United States Department of the Interior , 231 F.3d 20 ( 2000 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2000 Decided November 14, 2000
No. 99-5192
US Ecology, Inc., a California Corporation,
Appellant
v.
United States Department of the Interior, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00365)
Karl S. Lytz argued the cause and filed the briefs for
appellant. Laurence H. Levine and Peter L. Winik entered
appearances.
Mark R. Haag, Attorney, United States Department of
Justice, argued the cause for appellees. With him on the
brief were Lois J. Schiffer, Assistant Attorney General, and
David C. Shilton, Attorney.
Eric R. Glitzenstein, Howard Crystal, and Jonathan R.
Lovvorn were on the brief for intervenor/appellees.
Fran M. Layton, Mark A. Fenster, Alan K. Marks, and
Susan L. Nash were on the brief for amicus curiae County of
San Bernardino.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: This case involves a dispute over
the availability of the so-called "Ward Valley Site" for poten-
tial use as a low-level radioactive waste ("LLRW") facility.
Ward Valley is a 1.7 square mile plot of the Mojave Desert
located just off I-40, 25 miles west of the Colorado River
separating Arizona from California. Appellee the Federal
Government owns the site and appellant US Ecology wants to
develop, build, and operate a LLRW facility on the site as a
licensee for the State of California. The Federal Govern-
ment, however, has declined to transfer the land to the State
of California, thus dashing US Ecology's hopes to proceed as
developer and operator of a LLRW facility on the Ward
Valley Site.
In 1987, pursuant to the Southwestern Low-Level Radio-
active Waste Compact, California's Department of Health
Services ("CDHS") identified the Ward Valley Site as the
preferred location for the Compact's first regional LLRW
disposal facility. In 1988, the State of California contracted
with US Ecology, Inc., a private company in the business of
constructing and managing LLRW facilities around the coun-
try, to develop the site. On January 19, 1993, the outgoing
Secretary of the Interior, Manuel Lujan Jr., issued a Record
of Decision announcing his approval of the direct sale of the
Ward Valley Site to the State of California for potential use
as a LLRW facility. The sale and transfer of land never
happened, however. Citing concerns that his predecessor
had not only subverted the administrative process, but also
prematurely issued the Record of Decision in direct violation
of a federal judge's temporary restraining order, incoming
Secretary of the Interior Bruce Babbitt rescinded Secretary
Lujan's Record of Decision on February 18, 1993.
In January 1997, CDHS brought suit in the District Court
challenging Secretary Babbitt's 1993 rescission. US Ecology
filed suit one month later. Because both complaints raised
substantially similar claims, the District Court consolidated
the cases. In March 1999, the District Court granted defen-
dants' motion for summary judgment on all counts. See
California Dep't of Health Servs. v. Babbitt, 46 F. Supp. 2d 13 (D.D.C. 1999). CDHS elected not to appeal the judgment of
the District Court. As a result, only US Ecology is before
this court.
The current posture of the case bars this court from
reaching the merits of the claims that were before the
District Court. This is so because appellant US Ecology, now
on its own, does not have standing to contest the Federal
Government's refusal to transfer the Ward Valley land to the
State of California. Even were we to disagree with the
District Court and find that Secretary Babbitt improperly
rescinded the Record of Decision, appellant's alleged injury
would not be redressable unless and until California accepted
transfer of the disputed land and elected to proceed with the
Ward Valley project. On the record at hand, appellant has
no grounds upon which to claim that California will follow
these courses; indeed, appellant could not make any concrete
assertions on these scores even were the Federal Government
to now propose to transfer the Ward Valley land to the state.
Absent a showing of redressability, US Ecology's appeal must
be dismissed for want of standing. Accordingly, we vacate
the District Court's judgment as to appellant and dismiss this
case for want of jurisdiction.
I. Background
A. Factual Background
In 1987, California entered into the Southwestern Low-
Level Radioactive Waste Compact with Arizona, North Dako-
ta, and South Dakota pursuant to the Low-Level Radioactive
Waste Policy Act Amendments of 1985, 42 U.S.C. ss 2021b-
2021j (1994). The Act makes states accountable for their own
LLRW production and disposal, and authorizes them to form
interstate compacts for the establishment of regional LLRW
disposal facilities. 42 U.S.C. ss 2021c, 2021d. Under the
Southwestern Compact, California is responsible for develop-
ing and operating the group's first such regional facility.
Cal. Health & Safety Code s 115255, art. 4(C)(1) (West
1996). Prior to entering into the Compact, California had
chosen appellant US Ecology as its license-designee to evalu-
ate potential sites, to aid in the land application process, and,
after acquisition of the land, to develop, build, and operate its
LLRW facility. US Ecology worked in conjunction with and
under the oversight of CDHS, the agency charged with
managing disposal of California's low-level radioactive waste.
Beginning in 1987, CDHS, with the help of US Ecology,
filed a series of school land indemnity applications pursuant
to 43 U.S.C. ss 851-852 (1986), seeking to acquire the Ward
Valley Site from the Bureau of Land Management ("BLM").
In July of 1992, California shifted its application strategy and
requested that BLM sell the Ward Valley Site directly to the
state pursuant to the Federal Land Policy and Management
Act ("FLPMA"), 43 U.S.C. ss 1701-1784 (1986), rather than
under the school indemnity provisions. Under FLPMA,
BLM may at its discretion grant an application for direct sale
if it finds the transfer to be in the national interest and
"disposal of such tract will serve important public objectives."
43 U.S.C. ss 1701(a), 1713(a)(3). Upon such a finding, BLM
must publish a Notice of Realty Action, thereby providing
interested parties with notice and 45 days in which to com-
ment on the proposed transfer. See 43 C.F.R. ss 2711.1-
2(a), 2711.3-3 (1998). Only then may BLM proceed with the
sale.
Before an agency takes any action that threatens the
environment, it must also comply with the National Environ-
mental Policy Act ("NEPA"), which requires the agency to
prepare and issue an Environmental Impact Statement as-
sessing any potential environmental impacts of its proposed
action. National Environmental Policy Act of 1969, 42 U.S.C.
s 4332(C) (1994). Under NEPA regulations, the agency
must file with EPA the Final Environmental Impact State-
ment along with public comments received regarding the
proposed statement, which are then published in the Federal
Register. See 40 C.F.R. ss 1506.9-.10 (1998). An agency
must wait at least 30 days following publication before taking
any action based on the Final Environmental Impact State-
ment, after which time NEPA regulations require the agency
to prepare a Record of Decision justifying its ultimate deci-
sion. See 40 C.F.R. ss 1505.2, 1506.10(b).
US Ecology, in conjunction with BLM and CDHS, submit-
ted the required impact statement in September of 1989, and
BLM published the Final Environmental Impact Statement
in May of 1991. Before BLM issued its Record of Decision,
however, California shifted its school indemnity application to
one for direct sale under FLPMA. In response, BLM pub-
lished a notice of intent to prepare a Supplemental Environ-
mental Impact Statement on September 11, 1992, to assess
any further environmental impacts associated with acquisition
under the direct sale provisions. See Notice of Intent to
Prepare Supplemental Environmental Impact Statement, 57
Fed. Reg. 41,771 (1992). After a period for comment, BLM
filed its Final Supplemental Environmental Impact Statement
on December 28, 1992, beginning the 30-day waiting period
set to end on January 27, 1993. At roughly the same time as
it issued its notice of intent to prepare a Supplemental
Environmental Impact Statement, the Department of the
Interior had published a Notice of Realty Action notifying the
public that BLM was considering transfer of the Ward Valley
Site to California pursuant to FLPMA's direct sale provi-
sions. In response, interested parties lodged a multitude of
protests and three filed mining claims related to the site.
On January 7, 1993--only 10 days after filing its Final
Supplemental Environmental Impact Statement with EPA--
Secretary Lujan announced that there had been no need to
supplement the original Final Environmental Impact State-
ment, because, under NEPA, the method of transfer would
not affect the potential environmental harm. He converted
the Supplemental Environmental Impact Statement into a
less formal Environmental Assessment, which does not re-
quire a 30-day post-publication waiting period, and issued a
Finding of No Significant Impact. The Secretary also issued
a memorandum declaring that, upon final disposition of the
three mining claims pending before the Interior Board of
Land Appeals, he intended to dismiss the Notice of Realty
Action protests, publish his Record of Decision approving
direct sale, and issue a land patent transferring title of the
Ward Valley Site to the State of California. The next day,
appellant US Ecology wired $500,000 to a BLM-designated
account as payment for the land.
Not to be outdone, project opponents filed suit in the
United States District Court for the Northern District of
California alleging that the Department of the Interior had
violated the Endangered Species Act by failing to designate
critical habitat for the desert tortoise. The District Court
immediately issued a temporary restraining order mandating
that the Department of the Interior was "[t]hereby tempo-
rarily restrained from transferring any BLM land in the
Ward Valley." Desert Tortoise v. Lujan, No. 93-0114 (N.D.
Cal. Jan. 8, 1993) (order granting temporary restraining
order). Despite the District Court's order, Secretary Lujan
executed the Record of Decision at issue on January 19,
1993--his last day in office. He did not, however, issue a
patent in the land. Upon discovering that Secretary Lujan
had executed the Record of Decision, the District Court
expanded its order to prevent the Department from "execut-
ing any document or taking any other action" to effectuate
transfer of the Ward Valley Site. Desert Tortoise, No.
93-0114 (N.D. Cal. Jan. 19, 1993) (order extending temporary
restraining order). Less than one month later, and in the
midst of three pending lawsuits, incoming Secretary Babbitt
rescinded the Record of Decision. BLM later returned the
$500,000 to US Ecology.
B. Proceedings in the District Court
In early 1997, both CDHS and US Ecology filed separate
complaints against Secretary Babbitt, Deputy Secretary of
the Interior John Garamendi, the Department of the Interior
itself, and the Bureau of Land Management. Because each
party alleged substantially similar claims, the cases were
consolidated on October 27, 1997. On March 31, 1999, the
District Court granted the defendants' motion for summary
judgment on the merits regarding all of the consolidated
claims. See California Dep't of Health Servs., 46 F. Supp. 2d
at 13. By the time of the District Court's decision, Pete
Wilson, whose administration had spear-headed the effort to
obtain the Ward Valley Site, was no longer the Governor of
California. In his stead was Gray Davis, the newly elected
Governor, who as State-Controller had been a named plaintiff
in a pre-rescission suit brought by opponents to undermine
sale of the Ward Valley Site. CDHS officials, acting on
behalf of the State of California, chose not to appeal the
District Court's decision, and this court has dismissed US
Ecology's attempt to itself appeal the judgment against
CDHS. See US Ecology, Inc. v. U.S. Dep't of Interior, No.
99-5192, 1999 WL 1006813, at *1 (D.C. Cir. Oct. 8, 1999) (per
curiam) (order of motions panel dismissing CDHS appeal).
Thus, only US Ecology's appeal of its own suit remains.
A number of noteworthy events have arisen since the
District Court issued its decision. On November 2, 1999,
DOI notified CDHS that it was terminating further consider-
ation of, and denying without prejudice, CDHS's request for
direct sale of the Ward Valley Site. See Processing Termi-
nated: Request for Sale Denied, CACA 30582 (Dep't Interior
Nov. 2, 1999) (unpublished decision of the Department of the
Interior), reprinted in Motion of Appellant US Ecology, Inc.
Pursuant to Federal Rule of Appellate Procedure 10(E)(3)
and Request for Judicial Notice, Exhibit B (Apr. 27, 2000).
DOI cited the fact that CDHS Director Dr. Diana BontA had
not responded to a September 16, 1999 letter in which BLM
Deputy Director Tom Fry proposed termination of CDHS's
still-pending sale request. The letter had given the following
reasons for termination:
the State's decision to forgo an appeal from the adverse
decision in District Court; the formation of the Atkinson
advisory group seeking workable alternatives [to the
Ward Valley facility]; the lack of funds in the State
budget for Ward Valley activities; the apparent lack of
authority of DHS to acquire land; and the substantial
steps, including tritium tests and preparation of an SEIS,
that would be required to proceed with the requested
sale.
Id. at 3. Also, in a related contract action against the United
States, the Court of Federal Claims ruled that Secretary
Lujan's Record of Decision had not created a contract be-
tween CDHS and the United States, and, a fortiori, had not
created any rights in US Ecology as third-party beneficiary.
See US Ecology, Inc. v. United States, No. 97-65L (Fed. Cl.
Mar. 27, 2000) (unpublished opinion). Finally, on May 2,
2000, appellant US Ecology filed suit against the State of
California in California state court alleging breach of contract
for failing to use its best efforts to obtain and develop the
Ward Valley Site. See US Ecology's Complaint, US Ecology,
Inc. v. State of California, No. 747562 (Cal. Super. Ct. filed
May 2, 2000). In addition to damages, US Ecology seeks
from the state court a writ of mandate ordering Governor
Davis and CDHS to take all steps necessary to comply with
California's contract with US Ecology, including requesting
rescission of the November 2, 1999 decision of the Depart-
ment of the Interior. See id. pp 73-81.
II. Analysis
Because plaintiff CDHS unquestionably had standing to
challenge Secretary Babbitt's 1993 rescission, the District
Court had no occasion to consider appellant US Ecology's
standing to do the same. See Environmental Action v.
FERC, 996 F.2d 401, 406 (D.C. Cir. 1993) ("[O]nce one
petitioner has demonstrated standing we may permit the
participation of others."). Article III's jurisdictional mandate
does not disappear on appeal, however, and the "ability to
ride 'piggyback' on the State's undoubted standing exists only
if the State is in fact an appellant before the Court." Dia-
mond v. Charles, 476 U.S. 54, 64 (1986). Thus, as the sole
party now before us on appeal, US Ecology must indepen-
dently demonstrate Article III standing. This it has not
done.
To establish the "irreducible constitutional minimum" for
Article III standing, a party must show that it has suffered
an injury in fact, that there exists a causal link between that
injury and the conduct complained of, and that a favorable
decision on the merits will likely redress the injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "This
triad ... constitutes the core of Article III's case-or-
controversy requirement, and the party invoking federal jur-
isdiction bears the burden of establishing its existence."
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04
(1998). Because a deficiency on any one of the three prongs
suffices to defeat standing, we address only US Ecology's
most obvious failing--its inability to demonstrate that it is
" 'likely,' as opposed to merely 'speculative,' that [its] injury
will be 'redressed by a favorable decision.' " Defenders of
Wildlife, 504 U.S. at 561 (quoting Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)).
Courts have been loath to find standing when redress
depends largely on policy decisions yet to be made by govern-
ment officials. This is so, because the question of "[w]hether
[appellant's] claims of economic injury would be redressed by
a favorable decision [in such a] case depends on the unfet-
tered choices made by independent actors not before the
courts and whose exercise of broad and legitimate discretion
the courts cannot presume either to control or to predict."
Asarco Inc. v. Kadish, 490 U.S. 605, 615 (1989). When
redress depends on the cooperation of a third party, "it
becomes the burden of the [appellant] to adduce facts show-
ing that those choices have been or will be made in such
manner as to produce causation and permit redressability of
injury." Defenders of Wildlife, 504 U.S. at 562.
Appellant has not met this burden, admitting, as it must,
that, even were the Department of the Interior to issue a
patent as US Ecology requests, only the State of California is
capable of accepting title and taking ownership of the land.
Secretary Babbitt's 1993 rescission delayed California's appli-
cation for direct sale under FLPMA; the Department of the
Interior's decision of November 2, 1999, terminated Califor-
nia's application for the Ward Valley Site. Whether and how
to comply with the Low-Level Radioactive Waste Amend-
ments and Southwestern Compact is California's responsibili-
ty alone. Certainly, we do not begrudge appellant its disap-
pointment at having invested--and perhaps lost--time and
money in the Ward Valley project. But, such injury, without
more, is not enough.
Appellant seeks refuge in a few lines of dicta found in this
court's recent opinion in University Medical Center of South-
ern Nevada v. Shalala, 173 F.3d 438 (D.C. Cir. 1999). In that
case, appellant University Medical Center ("UMC") chal-
lenged the Department of Health and Human Services' fail-
ure to retroactively place UMC on a list of eligible hospitals
entitled to pharmaceutical discounts from participating drug
manufacturers. HHS had, by the time of suit, placed UMC
on the list; however, UMC argued that, were HHS to back-
date its listing of UMC to the point in time when UMC
actually had been eligible, UMC could perhaps obtain two
years' worth of retroactive drug discounts. Because the
contract between HHS and the participating drug manufac-
turers did not require the drug manufacturers to provide
such retroactive discounts, we held that UMC's injury was
only speculatively redressable. In so holding, we stated:
If it could be said that UMC was legally entitled to get
the discounts as a result of being placed on the list
effective December 1, 1992, then we might have a differ-
ent situation. That would force us to ask how likely it
was that appellant would succeed in the second suit....
But we do not have to wrestle with this problem because
UMC does not even claim that it has a contingent legal
right against the drug manufacturers.
Id. at 442 (emphasis in original). US Ecology claims that the
instant case presents the "different situation" contemplated in
the foregoing dicta. We are not persuaded.
Even assuming, arguendo, that the hypothetical raised in
University Medical Center poses a circumstance under which
the redressability problem might be avoided, US Ecology can
find no solace in the dicta. The circumstances of this case are
quite different from the University Medical Center hypotheti-
cal, because, on the record before this court, US Ecology
cannot demonstrate any legally enforceable right that Califor-
nia must (1) accept the Ward Valley Site if offered, and (2)
proceed with plans to build a LLRW facility on the land.
Indeed, the record before this court does not even support a
finding that US Ecology would be entitled to develop the
facility were California ultimately to pursue the Ward Valley
Site.
The mere fact that appellant has brought suit in California
state court on many of these issues says nothing about the
underlying merits of those claims nor the remedy to which
US Ecology would be entitled should it prevail. Here, as in
University Medical Center, "[e]ven if appellant had a declara-
tory judgment that the government unlawfully" rescinded its
Record of Decision, US Ecology has not shown "how, or
under what legal theory, it would be entitled to recover
against" the State of California. Id. In short, US Ecology
has failed to demonstrate redressability to support standing.
III. Conclusion
Because appellant lacks standing to pursue this appeal, we
vacate the District Court's judgment as to US Ecology and
dismiss this case for want of jurisdiction.