United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted April 24, 2007 Decided June 26, 2007
No. 05-1419
OHNGO GAUDADEH DEVIA,
PETITIONER
v.
NUCLEAR REGULATORY COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
PRIVATE FUEL STORAGE, L.L.C. AND
SKULL VALLEY BAND OF GOSHUTE INDIANS,
INTERVENORS
Consolidated with
05-1420, 06-1087
On Petitions for Review of Orders and a License of the
Nuclear Regulatory Commission
Paul C. EchoHawk was on the briefs for petitioner Ohngo
Gaudadeh Devia.
Roy T. Englert, Jr. was on the briefs for petitioner State of
Utah.
2
Catherine Cortez Masto, Attorney General, Marta A.
Adams, Senior Deputy Attorney General, and Martin G. Malsch,
Joseph R. Egan, and Charles J. Fitzpatrick were on the brief for
amicus curiae State of Nevada in support of petitioners.
James C. Kilbourne, Michael T. Gray, and Lisa E. Jones,
Attorneys, U.S. Department of Justice, and Karen D. Cyr,
General Counsel, John F. Cordes, Jr., Solicitor, E. Leo Slaggie,
Deputy Solicitor, and Grace H. Kim, Attorney, U.S. Nuclear
Regulatory Commission, were on the brief for federal
respondents.
Anne W. Cottingham and Michael A. Bauser were on the
brief for amicus curiae Nuclear Energy Institute, Inc. in support
of respondents.
Tim Vollmann, Jay E. Silberg, Paul A. Gaukler were on the
brief for intervenors Private Fuel Storage, L.L.C. and Skull
Valley Band of Goshute Indians.
Before: ROGERS, TATEL, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Petitioners challenge a decision
by the Nuclear Regulatory Commission to grant a license
permitting the construction and operation of a spent nuclear fuel
storage facility in Utah, on land belonging to the Skull Valley
Band of Goshute Indians. After the Commission approved the
license, the Interior Department’s Bureau of Land Management
and Bureau of Indian Affairs denied applications for rights-of-
way and a lease, respectively. Because it is speculative whether
3
the project will ever be able to proceed, we find the petitioners’
challenge unripe and direct that the case be held in abeyance.1
I
In 1997, Private Fuel Storage, L.L.C. (PFS), a consortium
of eight nuclear utilities, applied to the Nuclear Regulatory
Commission (NRC) for a license to build and operate an
Independent Spent Fuel Storage Installation (ISFSI). The
proposed ISFSI would store spent nuclear fuel in steel and
concrete casks on land in Utah belonging to the Skull Valley
Band of Goshute Indians. The facility would be built on an 820-
acre site, about 3.5 miles from the Band’s village, pursuant to a
lease between the Band and PFS. While most ISFSIs are located
at the reactors where the spent nuclear fuel is generated, PFS’s
proposed ISFSI would be the first large, away from point-of-
generation repository to be licensed by the NRC.
In addition to applying to the NRC for a license, PFS sought
two other regulatory approvals. First, it applied to the Bureau of
Indian Affairs (BIA) for approval of the Skull Valley Band’s
lease of the 820-acre site to PFS. Second, it applied to the
Bureau of Land Management (BLM) for a right-of-way to
transport the spent nuclear fuel from the main Union Pacific rail
line to the ISFSI. PFS proposed two right-of-way options. Its
preferred option was to build a new, 32-mile rail spur from the
main line that would run along the base of the Cedar Mountains
to the ISFSI. PFS’s alternative option was to build an
intermodal transfer facility, at which spent nuclear fuel would be
1
These petitions for review were considered on the record from
the Nuclear Regulatory Commission and on the briefs filed by the
parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
4
transferred from railcars to heavy-haul vehicles and then
transported to the ISFSI via Skull Valley Road, a two-lane
public road.
On September 9, 2005, following a lengthy administrative
proceeding in which the petitioners participated, the NRC issued
a memorandum and order authorizing its staff to issue a license
to PFS to build and operate the ISFSI. On February 21, 2006,
after denying Utah’s motion to reopen the record, NRC granted
the license. The license, which is specific to the site designated
in the proposed lease, permits PFS to store up to 40,000 metric
tons of spent nuclear fuel at the facility. Its term is twenty years,
with an option to renew for another twenty.
Petitioner Ohngo Gaudadeh Devia (OGD) -- an association
consisting primarily of members of the Skull Valley Band
opposed to construction of a nuclear waste facility on the
reservation -- timely petitioned for review of the NRC’s decision
in this court. So, too, did the State of Utah. PFS and the Skull
Valley Band intervened on the side of the NRC.
Subsequent to the filing of the petitions for review, the
BLM and the BIA denied the applications that PFS had filed
with each agency. The BLM disapproved both of PFS’s
requested rights-of-way: the preferred rail route, and the
alternative intermodal transfer facility route. The Bureau
rejected the rail line request on the ground that the National
Defense Authorization Act for Fiscal Year 2006, Pub. L. No.
109-163, 119 Stat. 3136 (2006), which had been signed into law
after publication of the project’s final environmental impact
statement, “clearly required” denial. BLM, Record of Decision
at 10 (Sept. 7, 2006). Section 384 of the Act designated certain
lands, including those described in PFS’s right-of-way
application, as wilderness and added them to the National
Wilderness Preservation System. See National Defense
5
Authorization Act § 384, 119 Stat. at 3217-18; BLM, Record of
Decision at 8. “[O]peration of a rail line,” the BLM said,
“would be inconsistent with the purpose for which the BLM
manages the Cedar Mountain Wilderness Area.” BLM, Record
of Decision at 10. The BLM also rejected the alternative option,
on the ground that the intermodal transfer facility was “contrary
to the public interest.” Id. In the BLM’s view, “too many
questions remain unanswered” regarding the potential risk and
impact of transporting spent nuclear fuel along Skull Valley
Road. Id.; see id. at 10-15.
For its part, the BIA rejected the Skull Valley Band’s lease
of reservation land to PFS for the construction and operation of
the ISFSI. Although the local BIA superintendent had
conditionally approved the lease in May 1997, the Bureau
declared itself unconstrained by the superintendent’s conditional
approval. The Bureau based its disapproval on a variety of
concerns, including the adequacy of the environmental impact
analysis, the relationship of the use of leased lands to
neighboring lands, the lack of specialized resources with which
to monitor the tenant’s activities and enforce the lease, and the
inability to ascertain when spent nuclear fuel might leave the
land. See BIA, Record of Decision at 18-29 (Sept. 7, 2006).
The parties advised us of these post-petition developments
in their briefs on the merits. We requested supplemental
briefing regarding the impact of these developments on
justiciability, and we now conclude that the petitions are not ripe
for review and should be held in abeyance.
II
The Supreme Court has noted that “[r]ipeness is a
justiciability doctrine” that is “‘drawn both from Article III
limitations on judicial power and from prudential reasons for
6
refusing to exercise jurisdiction.’” National Park Hospitality
Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807-08 (2003)
(quoting Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 n.18
(1993)). Even in a case “raising only prudential concerns, the
question of ripeness may be considered on a court’s own
motion.” Id. at 808. We do so here.
“In testing whether the facts of a particular case meet th[e]
standard of ripeness, we have often applied a two-part analysis,
evaluating ‘[1] the fitness of the issues for judicial decision and
[2] the hardship to the parties of withholding court
consideration.’” National Treasury Employees Union v. United
States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967)). The “basic
rationale is to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect
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., 387 U.S. at 148-
49. But as we have also explained, the “usually unspoken
element of the rationale” is this: “If we do not decide [the claim]
now, we may never need to. Not only does this rationale protect
the expenditure of judicial resources, but it comports with our
theoretical role as the governmental branch of last resort.
Article III courts should not make decisions unless they have
to.” National Treasury Employees Union, 101 F.3d at 1431
(citation omitted); see McInnis-Misenor v. Maine Medical Ctr.,
319 F.3d 63, 70 (1st Cir. 2003) (Boudin, J.) (noting that, “[i]n
the fitness inquiry, . . . prudential concerns focus[] on the policy
of judicial restraint from unnecessary decisions”).
7
A
“Among other things, the fitness of an issue for judicial
decision depends on whether it is ‘purely legal, whether
consideration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.’”
Atlantic States Legal Found., Inc. v. EPA, 325 F.3d 281, 284
(D.C. Cir. 2003) (quoting Clean Air Implementation Project v.
EPA, 150 F.3d 1200, 1204 (D.C. Cir. 1998)). But when an
agency decision may never have “its effects felt in a concrete
way by the challenging parties,” Abbott Labs., 387 U.S. at 148-
49, the prospect of entangling ourselves in a challenge to such
a decision is an element of the fitness determination as well. See
Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162-63 (1967)
(holding that, even though a regulation was “the agency’s
considered and formalized determination,” and the issue
“present[ed] a purely legal question,” the lawfulness of the
action authorized by the regulation was not fit for judicial
resolution, because (inter alia) it was uncertain “whether or
when” the authority would be used). As the First Circuit has put
it:
Even though the legal issues may be clear, a case may
still not be fit for review: [T]he question of fitness
does not pivot solely on whether a court is capable of
resolving a claim intelligently, but also involves an
assessment of whether it is appropriate for the court to
undertake the task. Federal courts cannot -- and should
not -- spend their scarce resources on what amounts to
shadow boxing. Thus, if a plaintiff’s claim, though
predominantly legal in character, depends on future
events that may never come to pass, or that may not
occur in the form forecasted, then the claim is unripe.
8
McInnis-Misenor, 319 F.3d at 72 (internal quotation marks
omitted); see W.R. Grace & Co. v. EPA, 959 F.2d 360, 366 (1st
Cir. 1992) (“[P]remature review not only can involve judges in
deciding issues in a context not sufficiently concrete to allow for
focus and intelligent analysis, but it also can involve them in
deciding issues unnecessarily, wasting time and effort.” (internal
quotation marks omitted)). Hence, a “claim is not ripe for
adjudication if it rests upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’” Texas
v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v.
Union Carbide Agric. Prods. Co., 471 U.S. 568, 580-81 (1985));
see Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d
361, 367 (3d Cir. 1986) (“‘Agency action may be found not ripe
for review because the need will not arise until some action is
taken by third parties who are not involved in the review
proceeding.’” (quoting 13A CHARLES A. WRIGHT, ARTHUR R.
MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 3532.6 (1984))).
Resolution of the petitioners’ challenge to the licensing of
the storage facility at issue here has all the earmarks of a
decision that “we may never need to” make. National Treasury
Employees Union, 101 F.3d at 1431. The denials of approval by
the BLM and BIA appear to block the activity -- construction
and operation of the facility -- that petitioners OGD and Utah
contend will concretely affect them. The intervenors -- PFS and
the Skull Valley Band -- say that they are “planning to
challenge” the BLM and BIA denials in court. Intervenors’
Supp. Br. 4. But they have not filed a challenge yet, and they
claim to have six years in which to do so. See id. (citing 28
U.S.C. § 2401(a)). Of course, even if the intervenors do seek
review, the ultimate result “may not occur as [they]
anticipate[].” Texas, 523 U.S. at 300 (internal quotation
omitted). As the NRC concedes, “it is certainly possible that
reversals of the BIA and BLM decisions ‘may not occur at all.’”
9
NRC Supp. Br. 5 (quoting Worth v. Jackson, 451 F.3d 854, 861
(D.C. Cir. 2006) (quoting Texas, 523 U.S. at 300)).
The intervenors also insist that “reversal of [the BLM]
decision is not required for the project to go forward.”
Intervenors’ Supp. Reply Br. 3 n.5. “That decision,” they argue,
“only concerned two transportation options, and . . . NRC
regulations governing the transportation of spent nuclear fuel
would not preclude PFS from accomplishing an intermodal
transfer at locations for which no Bureau of Land Management
. . . approval would be required.” Id. Even if that is true, PFS
has not proposed any such option, nor even described one in its
briefs. The BLM rejected the only options that PFS did propose,
both of which require BLM approval. In the absence of an
actual proposal from PFS for an alternative intermodal transfer
location, it is impossible to know whether or what kind of
administrative approval would be required. Such a speculative
possibility cannot render the instant petitions ripe for
adjudication.
In any event, even if PFS were to find a way to accomplish
an intermodal transfer that does not require BLM approval, the
BIA’s disapproval of the lease would still block construction
and operation of the facility. The license granted by the NRC is
site-specific, authorizing storage only at the location designated
in the proposed lease and rejected by the BIA. See License for
Independent Storage of Spent Nuclear Fuel ¶ 10 (J.A. 1992).
Indeed, even the intervenors concede that PFS cannot construct
or operate the facility without BIA approval -- or judicial
reversal of its disapproval. Intervenors’ Supp. Br. 7. The
chances of either result, at least at this point, are simply
unknown. Put another way, we “find it too speculative whether”
the validity of the NRC license is a problem that “will ever need
solving.” Texas, 523 U.S. at 302.
10
In sum, the institutional interests in deferring review here
are high. Those include avoiding, until the impact on the parties
is more certain, the expenditure of judicial resources on a
complex, fact-intensive case with a joint appendix of over 4000
pages. But they also include avoiding the issuance of what
could effectively become an advisory opinion: if the BIA’s
decision is upheld on review (or review is not sought), any
opinion regarding the validity of the NRC’s site-specific license
could well be moot.
Neither petitioners Utah and OGD, nor respondent NRC,
disputes that we have discretion to defer review as a prudential
matter. Nor do they object to our holding the case in abeyance
-- as compared to dismissing the petitions -- pending PFS’s
securing the administrative approval (by judicial reversal of
disapproval or otherwise) required for it to construct and operate
the storage facility. That is what we did under analogous
circumstances in Town of Stratford v. FAA, 285 F.3d 84 (D.C.
Cir. 2002), reh’g denied, 292 F.3d 251 (D.C. Cir. 2002). In that
case, the town petitioned for review of a Federal Aviation
Administration (FAA) plan to renovate runways at a local
airport. Id. at 86. When the case was argued, we learned that
part of the property necessary to implement the FAA’s plan was
under the Army’s control and that the Army had not yet decided
to give up the land. See Town of Stratford, 292 F.3d at 252.
Because “considerations of prudential ripeness suggested that
we withhold our decision and opinion unless and until the Army
finally decided to release its portion of the property to be used
for the airport improvement,” we held the case in abeyance
pending “such an occurrence.” Id.; see id. (noting that “our
ripeness concern was a prudential one -- we did not wish to
devote judicial resources when it might not be necessary”).2
2
See also Blumenthal v. FERC, Nos. 03-1066, 03-1075, 2003 WL
21803316, at *1 (D.C. Cir. July 31, 2003) (holding a challenge to
11
Like the FAA’s airport plan, progress on PFS’s spent fuel
storage facility awaits uncertain approvals from other agencies,
including the agency (BIA) that effectively controls the relevant
property. Indeed, this case presents a stronger warrant for
abeyance, as those agencies have already denied the necessary
approvals.
B
In deciding whether to find this case prudentially unripe and
to hold it in abeyance, we must also consider “‘the hardship to
the parties of withholding court consideration.’” National
Treasury Employees Union, 101 F.3d at 1431 (quoting Abbott
Labs., 387 U.S. at 149). Neither petitioner suggests that it
would suffer any hardship were we to hold its petition in
abeyance. Nor does the respondent, the NRC. However, PFS
and the Skull Valley Band, which intervened on the side of the
NRC, assert that they would suffer hardship from such a
disposition. Although courts have described this factor as
hardship to “the parties,” and intervenors have party status, they
cite no case in which a court actually considered the hardship to
FERC’s approval of a pipeline in abeyance, pending the resolution of
an administrative challenge to Connecticut’s rejection of a required
certification); cf. Atlantic States Legal Found., Inc., 325 F.3d at 284-
85 (finding unfit for judicial decision a challenge to EPA regulations
allowing utilities to accumulate hazardous waste because, before the
regulations could have any effect, a state agency would have to adopt
them, and “[n]o one can say with certainty that” the agency would);
Friends of Marolt Park v. Dep’t of Transp., 382 F.3d 1088, 1094 (10th
Cir. 2004) (holding that a challenge to the Department of
Transportation’s authorization of a construction project was unripe,
because “before the project [could] go forward further action by local
voters [was] required”); Suburban Trails, 800 F.2d at 365-67 (finding
a challenge to a state agency’s action unripe for review, because it was
effectively subject to veto by a federal agency).
12
a respondent (or an intervenor-respondent) of deferring a
decision on a challenger’s petition. Cf. National Park
Hospitality Ass’n, 538 U.S. at 808 (noting that the ripeness
doctrine is designed in part to defer decision until an
administrative decision’s “‘effects [are] felt in a concrete way by
the challenging parties’” (emphasis added) (quoting Abbott
Labs., 387 U.S. at 148-49)); Toilet Goods Ass’n, 387 U.S. at 164
(describing the hardship factor as relating to “the degree and
nature of the regulation’s present effect on those seeking relief”
(emphasis added)).
In any event, we find the intervenors’ claim of hardship
insubstantial. They are “‘not required to engage in, or to refrain
from, any conduct’” during the time the case is held in
abeyance. Atlantic States Legal Found., Inc., 325 F.3d at 285
(quoting Texas, 523 U.S. at 301). To the contrary, because the
NRC granted the license, and because a decision to hold the
petitions in abeyance would not invalidate it, each intervenor
would remain “free to conduct its business as it sees fit.”
National Park Hospitality Ass’n, 538 U.S. at 810. Nonetheless,
PFS and the Band contend that, if we do not review the case
now, they will suffer hardship because “[u]nresolved judicial
challenges, such as the pending challenge to the NRC license,
necessarily increase the uncertainty as to the viability of the PFS
project and make it more difficult to market the project.”
Intervenors’ Supp. Reply Br. 3. But any uncertainty left by our
decision to defer the challenge to the NRC’s approval is surely
dwarfed by the uncertainty brought about by the BIA and BLM
disapprovals. And yet we cannot help but notice that the latter
uncertainty has still not moved the intervenors to seek review of
those disapprovals.
Moreover, the gravamen of the intervenors’ argument
“appears to be that mere uncertainty as to the validity of a legal
rul[ing] constitutes a hardship for purposes of the ripeness
13
analysis.” National Park Hospitality Ass’n, 538 U.S. at 811. As
the Supreme Court said of such an argument in National Park:
“We are not persuaded. If we were to follow [that] logic, courts
would soon be overwhelmed with requests for what essentially
would be advisory opinions because most business transactions
could be priced more accurately if even a small portion of
existing legal uncertainties were resolved.” Id. Accordingly, we
find that the intervenors here have “failed to demonstrate that
deferring judicial review will result in real hardship.” Id.
“In order to outweigh institutional interests in the deferral
of review, the hardship to those affected by the agency’s action
must be immediate and significant.” Action Alliance of Senior
Citizens of Greater Philadelphia v. Heckler, 789 F.2d 931, 940
(D.C. Cir. 1986); see NRDC v. Thomas, 845 F.2d 1088, 1093
(D.C. Cir. 1988). The hardship asserted by the intervenors is
neither.
III
For the foregoing reasons, we find the petitions for review
unripe, and will hold this case in abeyance in accordance with
the terms set forth in the accompanying order.
So ordered.