Central Interstate v. State of Nebraska

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-3747
___________

Entergy Arkansas, Inc., an Arkansas *
corporation; Entergy Gulf States, Inc., *
a Texas corporation; Entergy Louisiana, *
Inc., a Louisiana corporation; Wolf *
Creek Nuclear Operating Corporation, *
a Delaware corporation; *
*
Plaintiffs-Appellees, *
*
Central Interstate Low-Level *
Radioactive Waste Commission; *
*
Plaintiff-Appellee, *
* Appeal from the United
U.S. Ecology, Inc., a California * States District Court for
corporation; * the District of Nebraska.
*
Intervenor Plaintiff-Appellee, *
*
v. *
*
State of Nebraska; Nebraska *
Department of Environmental Quality; *
Nebraska Department of Health and *
Human Services Regulation & *
Licensure; The Governor, of the *
State of Nebraska; The Director, of the *
Nebraska Department of Environmental *
Quality; The Director, of the Nebraska *
Department of Health and Human *
Services Regulation and Licensure, *
*
Defendants-Appellants. *
 ___________

Submitted: June 12, 2003
Filed: February 18, 2004
___________

Before BOWMAN, MURPHY, and BYE, Circuit Judges.
___________

MURPHY, Circuit Judge.

The State of Nebraska and two of its departments (Nebraska)1 appeal from a
final judgment involving the attempt to develop a radioactive waste disposal facility
under the Central Interstate Low-Level Radioactive Waste Compact (the Compact).
The Compact was created and entered into by five member states and was also
enacted into law by Congress. The Compact members agreed to build a disposal
facility in one of the member states, and they also agreed to create a commission to
carry out their program, the Central Interstate Low-Level Radioactive Waste
Commission (the Commission). Nebraska was selected as the site for the facility, and
the Commission is a plaintiff in this case.

This action was originally brought against Nebraska and the Commission by
utility companies from the five Compact states: Entergy Arkansas, Entergy Gulf
States, Entergy Louisiana, Wolf Creek Nuclear Operating Corporation, and the
Omaha Public Power District. The Commission brought crossclaims against U.S.

1
The defendants named in the Commission's complaint were the State of
Nebraska, the Governor of the State of Nebraska in his official capacity, the
Director of the Nebraska Department of Environmental Quality in his official
capacity, and the Director of the Nebraska Department of Health and Human
Services Regulation & Licensure in his official capacity.

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Ecology, Inc. and Nebraska, and the district court2 granted its motion to realign itself
as a plaintiff. After years of litigation and a number of appeals to this court, the case
was tried to the district court for two months. The court later issued extensive
findings and conclusions and ruled in favor of the Commission. It found that
Nebraska had not carried out its obligations under the Compact in good faith and that
the Commission was entitled to recover over $97 million for funds and work
expended in the thwarted attempt to construct the radioactive waste disposal facility.

Nebraska argues on appeal that the district court erred in denying it a jury trial,
in its findings of bad faith, in awarding monetary relief and interest, and in several
other points, some of which were decided against it on earlier appeals. See Entergy,
Arkansas, Inc. v. Nebraska, 241 F.3d 979, 987–88 (8th Cir. 2001) [Entergy II]
(affirming district court holding that waiver of sovereign immunity extended to suit
for monetary relief); Entergy Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.
2000) [Entergy I] (Nebraska waived its sovereign immunity by entering into the
Compact). After carefully studying the voluminous record, we affirm.

I.

A.
We have already addressed the Compact and related issues in a series of earlier
appeals in this case, and those decisions provide additional background to that which
follows.3 In 1980 Congress enacted the Low-Level Radioactive Waste Policy Act,

2
The Honorable Richard G. Kopf, Chief Judge, United States District Court
for the District of Nebraska.
3
See Entergy II, 241 F.3d 979 (8th Cir. 2001); Entergy I, 210 F.3d 887 (8th
Cir. 2000); Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n,
207 F.3d 1021 (8th Cir. 2000) (Nebraska did not have veto power over low level
radioactive waste export permits); Nebraska v. Central Interstate Low-Level
Radioactive Waste Comm'n, 187 F.3d 982 (8th Cir. 1999) (Commission has power
under the Compact to impose a deadline for state licensing determination); County

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Pub. L. No. 96-573, 94 Stat. 3347 (1980), in order to "promote the development of
regional low-level radioactive waste disposal facilities" by the various states.
Concerned Citizens of Neb. v. United States Nuclear Regulatory Comm'n, 970 F.2d
421, 422 (8th Cir. 1992). Pursuant to the Act, Nebraska, Arkansas, Kansas,
Louisiana, and Oklahoma entered into the Compact to establish and operate one or
more facilities to process low level radioactive waste (LLRW) generated in the
member states. Art. III(a).4 Congress consented to the Compact and enacted it as
original legislation, as did each of the five states. See Omnibus Low-Level
Radioactive Waste Interstate Compact Consent Act, Pub. L. No. 99-240, § 222, 99
Stat. 1859, 1863 (1986) (reprinting the Compact); Entergy II, 241 F.3d at 982.

The Compact established the Commission as its governing body and created
a framework for it to select an applicant to develop disposal facilities in the member
states. Art. V. Each member state is represented on the Commission by one
representative and is entitled to a single vote. Art. IV(a), (b). No action of the
Commission is binding unless a majority of the member states casts its votes in the
affirmative. Id. Each state was to have an opportunity to volunteer to host a regional
facility. Art. V(a). If no state volunteered or if no volunteer state's proposal were
acceptable, then the Commission would publicly seek proposals from applicants to
develop and operate one or more regional facilities as necessary. Art. V(b).

of Boyd v. US Ecology, Inc., 48 F.3d 359 (8th Cir. 1995) (rejecting Nebraska's
claim that community consent had not been properly obtained); Nebraska v.
Central Interstate Low-Level Radioactive Waste Comm'n, 26 F.3d 77 (8th Cir.
1994) (rejecting challenge to site selection process); Burton v. Central Interstate
Low-Level Radioactive Waste Comm'n, 23 F.3d 208 (8th Cir. 1994) (ratepayers
and electors for Nebraska power districts lacked standing to challenge
Commission actions); Concerned Citizens of Neb. v. United States Nuclear
Regulatory Comm'n, 970 F.2d 421 (8th Cir. 1992) (no fundamental right to be free
from nonnatural radiation); See also Thomas O. Kelly, Note, Nebraska's $160
Million Liability?—Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d. 979 (8th Cir.
2001), 80 Neb. L. Rev. 574 (2001).
4
References to the Compact are cited by article number.

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 Proposals were to be considered on the basis of the following criteria: (1) the
applicant's ability to obtain necessary licenses from applicable governmental
authorities; (2) the economic efficiency of the proposed facility; (3) whether the
applicant had sufficient financial resources to fund and maintain the facility; (4) the
accessibility of the proposed facility to all the party states; and (5) any other criteria
the Commission might deem necessary to ensure the health, safety, and welfare of the
citizens of the region and party states. Art. V(c). The Compact provided that an
applicant selected by the Commission to construct a radioactive waste disposal
facility would have to obtain required licenses from the appropriate state licensing
agencies (or the United States Nuclear Regulatory Commission in some
circumstances). Art. V(e)(2).

The Compact also created specific rights and obligations in each of the member
states. A state selected as the site for a disposal facility must "process all applications
for permits and licenses required for the development and operation of any regional
facility or facilities within a reasonable period from the time that a completed
application is submitted." Art. V(e)(2). To the extent authorized by Federal and host
State law, the host state must regulate and license any regional facility within its
borders and ensure the extended care of such facility. Art. III(b). Each state has "the
right to rely on the good faith performance of each other party state," Art. III(f), and
the Commission "shall . . . [r]equire all party states . . . to perform their duties and
obligations arising under this compact." Art. IV(m)(8). A party state which is found
to have arbitrarily or capriciously denied or delayed the issuance of a license . . . or
which otherwise fails to live up to its obligations under the Compact may have its
membership revoked by a two thirds vote of member states. Art. V(g), VII(e). A
state may withdraw from the Compact at any time by enacting a statute announcing
its withdrawal, but the withdrawal will not be effective until five years after notice
is served on the other member states, unless they unanimously agree to allow
immediate withdrawal. Art. VII(d). Withdrawal or revocation does not affect any
liability incurred by a party state before its membership effectively expires. Art.
VII(d), (e).

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 Since no state volunteered to host the LLRW disposal facility, the Commission
invited development proposals from outside applicants. In February 1987, U.S.
Ecology, Inc. (USE) submitted a proposal to site, license, develop, construct, and
operate a facility, and in December of that year the Commission selected Nebraska
to host the first disposal facility. After a number of Nebraska localities requested that
the facility be built in their community, the Commission selected Boyd County as the
most promising location. The Commission then entered into a formal contract with
USE in January 1988 to develop a facility in Boyd County. USE agreed to prepare
and file the necessary license applications with the state and federal governments and
to construct and maintain the facility if its applications were successful.

Nebraska officials showed hostility to the idea of an LLRW facility in their
state almost from the beginning. After the state was chosen over its negative vote to
be the first host, Governor Kay Orr stated publicly that Nebraska was not happy to
be the site for a disposal facility, but that it would honor its commitments under the
Compact. See Entergy II, 241 F.3d at 983. During her campaign for reelection, the
waste facility became an issue and Orr was attacked by candidate Ben Nelson "for
doing far too little to protect the interests and respond to the concerns" of local
residents. Entergy Arkansas, Inc., 226 F. Supp. 2d at 1061 (internal quotation marks
omitted). Nelson promised that if he were elected governor, "it is not likely that there
will be a nuclear dump in . . . Nebraska." Id. Nelson won the election and entered
into office in January 1991, and the district court found that the new administration
soon began to work actively to prevent construction of the LLRW facility.

Although the licensing process had been initiated, it dragged on for over eight
years. In 1990 USE submitted its initial license application to the Low-Level
Radioactive Waste Program (LLRW Program). This program was operated by the
Nebraska Department of Environmental Quality (DEQ) and the Department of Health
and Human Services and Licensure (DOH), and these agencies required USE to
answer some 700 questions before they would even undertake a review of the
application. The process was made more difficult when Randolph Wood, the

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governor's appointee to lead the DEQ, stopped exchanging information with USE and
refused to accept its responses to any questions until all 700 answers were submitted
together. The review process was further complicated by Nebraska's failure to budget
for it. The Nebraska Auditor of Public Accounts found in July 1992 that DEQ had
not adopted a budget to control the cost of the review process or a timetable to
complete the work. The auditor recommended that DEQ do so, but Wood did not
follow the recommendation.

After USE submitted answers to all the agency questions, DEQ issued a Notice
of Intent to Deny the license in January 1993. The reasons given by DEQ for denial
were that the site had wetlands and drainage problems. USE then initiated a
contested case administrative proceeding under state law to challenge DEQ's
decision. That proceeding was settled, and USE withdrew its administrative case and
amended its licensing application. The review process then continued with more
questions and technical review of the amended application.

The reinstituted review suffered a serious setback in 1995, when Nebraska told
its contractors doing technical review to cut back their work by twenty five percent
because of a dispute with the Commission over federal rebate funds.5 Even after
Nebraska settled this dispute and promised to accelerate its review, the amount of
work done on the review continued to decline. After responding to four rounds of
questions from Nebraska's many consultants, USE advised Nebraska that its
application was finally complete on July 11, 1995. Nebraska responded two weeks

5
Nebraska sued the Commission for access to federal funds which had been
disbursed to the Commission "for eventual payment to the host state." Entergy
Arkansas, Inc., 226 F. Supp. 2d at 1075. The Commission counterclaimed,
arguing that Nebraska had failed to demonstrate that rebate funds previously
distributed to the state had been used appropriately. Id. The action was settled
when the Commission agreed to pay Nebraska a portion of the rebate funds it
sought and Nebraska agreed to provide an accounting. Id. The rebate fund
payments are distinct from funds reimbursed to Nebraska by USE to cover the
state's expenditures in reviewing the license application.

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later, stating that it would accept no further materials related to the application unless
specifically requested by its reviewers.

DEQ and DOH initially stated that their review of the completed application
would take approximately one year to complete, but DEQ later notified USE that the
review would take substantially longer. It reported that two technical documents
being prepared for the state would not be finished until October 1997, more than two
years after the submission of USE's completed application. Because of concern over
this delay, the Commission imposed a deadline of January 14, 1997 for Nebraska to
complete its review of USE's application. Nebraska sued to have the deadline
withdrawn, but we held on appeal that the Compact gave the Commission power to
set the deadline. Nebraska, 187 F.3d at 986.

The January deadline imposed by the Commission passed without a final
determination by Nebraska, but many months later in October 1997 the state released
two key reports. One was the Draft Safety Evaluation Report (DSER) which found
that "the facility met site suitability requirements." Entergy II, 241 F.3d at 984. The
DSER concluded that

the LLRW Program [has] determined that the data and information
presented in U.S. Ecology's license application are acceptable. . . . [and
that] US Ecology has provided documentation that reasonably
demonstrates that [it] can obtain the necessary funds to cover the
estimated costs of conducting licensed activities over the planned
operating life of the facility, including the cost of construction and
disposal.

Entergy Arkansas, Inc., 226 F. Supp. 2d at 1079 (internal quotation marks omitted).
The other was Nebraska's Independent Performance Assessment (IPA). The IPA
reported that even assuming the underlying soil was entirely saturated with water, the
long term performance of the structures after closure would easily satisfy regulatory
criteria regarding radioactive exposure for humans. Despite these favorable
assessments, the review process did not draw to a close.

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 Nebraska finally denied USE's amended license application in December 1998,
more than eight years after USE's initial application was submitted. The state did not
rely upon the favorable findings reached in 1997 by the DSER and the IPA. Instead,
the reasons given for denial were "that there was insufficient depth of the water table
at the site, that under the applicable regulations [DEQ] could not consider engineered
improvements to the site, and that USE had not shown financial ability to build and
run the facility." Entergy II, 241 F.3d at 984. The district court found after hearing
all the evidence that these reasons were pretextual and that the license had actually
been denied without regard to the technical merits of the application, but rather to
fulfill the governor's campaign promise to block development of the site. After its
application was denied, USE filed another contested case petition under Nebraska law
on January 15, 1999; this second administrative proceeding was enjoined by the
district court on the Commission's motion (affirmed in Entergy I, 210 F.3d at 890).
In August of the same year, the State of Nebraska announced its intention to withdraw
from the Compact, Neb. Rev. Stat. § 71-3522 (effective Aug. 28, 1999), but its
withdrawal will not become effective until August 28, 2004. Any obligations
incurred under the Compact prior to that date will still need to be fulfilled.
See Art.VII(d).

It is undisputed that the Nebraska licensing process became very expensive.
Not only did the process extend for nearly a decade, but the technological issues
involved in the development of an LLRW disposal facility are extraordinarily
complex. To deal with all of the technical and regulatory issues involved, both the
state and USE had to hire many outside consultants—including sophisticated
engineering groups, scientific advisors, and law firms—and to retain them for much
of the process. The state also constructed a scientific laboratory near the proposed
site in order to conduct testing to evaluate the suitability of the site and the
application. In fact, the state was spending so much that the Nebraska Auditor of
Public Accounts recommended that it control costs by revising its agreement with its
primary contractor, HDR Engineering, Inc. The technical complexity of the process
and the demands placed on USE's application are reflected in the length of its final

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submission. (The original application was approximately 4000 pages, but grew to
30,000 pages after four rounds of questions from some 100 state consultants.)

The district court found that by the time the license was finally denied, over
$88 million had been spent directly on the application process. See Entergy
Arkansas, Inc. v. Nebraska, 226 F. Supp. 2d 1047, 1101 (D. Neb. 2002). Under
Nebraska law the applicant for an LLRW license is responsible for all costs of the
licensing process, including the costs incurred by the state. This meant that USE was
held responsible for whatever Nebraska chose to spend on the process, as well as for
its own expenditures in meeting the requirements set by the state. In return for USE's
undertaking to obtain a license and develop the radioactive waste disposal site and
for extending up to $6.26 million in work, the Commission agreed to advance it the
costs. The Commission was thus accountable for nearly the entire cost of the LLRW
licensing process, including the state's expenditures, while Nebraska controlled the
length and requirements of the process.

The Commission did not have resources to cover the high costs of the
application process. In order to carry out the decision of the member states to
construct an LLRW facility in Nebraska, it entered into an agreement with a group
of LLRW generators in the five Compact states. These included Entergy Arkansas,
Inc., Entergy Gulf States, Inc., Entergy Louisiana, Inc., and Wolf Creek Nuclear
Operating Corp. (the Generators). Since the Generators produce radioactive waste
through their generation of electricity, they could be expected to benefit from the
construction of a waste disposal facility.

The Generators' agreement with the Commission (and subsequent amendments
to it) provided that they would prepay for disposal services they expected to receive
in the future. By these prepayments, they advanced funds to the Commission which
it used to meet its commitment to USE. In this way the licensing expenses of all the
parties were paid by the Commission, using assets it had received in the form of
prepayments collected from the Generators and work performed by USE.

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 B.

This action was initiated by the Generators after they had advanced over $88
million during the long and futile licensing process, and USE intervened as a plaintiff.
Plaintiffs alleged that Nebraska had violated the good faith provision of the Compact,
as well as their constitutionally protected rights to procedural and substantive due
process, by deliberately delaying review of the license for eight years and by
intending that the process end in denial of the application. See Entergy II, 241 F.3d
at 984–85. USE alleged in addition that the Nebraska defendants had engaged in
tortious interference and conspiracy. The Commission was also named as a defendant
in the action, but the district court realigned it as a plaintiff after it filed a crossclaim
against Nebraska.

The Commission sought declaratory and injunctive relief against Nebraska,
removal of the state from the licensing process and substitution of a neutral third
party so that a waste facility could be built, an accounting of all funds turned over to
the state, damages, and attorney fees. The damages sought in its amended complaint
included "all lost value of costs incurred and money therefore paid out by the
Commission" because of Nebraska's bad faith and delaying tactics. USE and the
Generators also sought legal and injunctive relief and asserted crossclaims against the
Commission for breach of contract and for a constructive trust on any funds it
recovered from Nebraska.

A number of motions were filed by the parties. The Commission and the
Generators moved for a preliminary injunction to enjoin the ongoing second
contested case proceeding in Nebraska, and that motion was granted. See Entergy,
Arkansas, Inc. v. Nebraska, 46 F. Supp. 2d 977, 992, 996 (D. Neb. 1999). Nebraska
made two motions to dismiss, arguing that the district court lacked subject matter
jurisdiction and that the plaintiffs had failed to state claims upon which relief could
be granted. The district court denied all but one part of Nebraska's motions. It ruled
that in respect to the claims of the Generators and USE, the Eleventh Amendment
protected the state and its officers in their official capacity against anything other than

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declaratory and injunctive relief. See Entergy, Arkansas, Inc. v. Nebraska, 68 F.
Supp. 2d 1093, 1103–04 (D. Neb. 1999); Entergy, Arkansas, Inc. v. Nebraska, 68 F.
Supp. 2d 1104, 1110 (D. Neb. 1999).

Nebraska appealed from the preliminary injunction, arguing that "the district
court lacked jurisdiction over it, that the Commission had failed to make the
necessary showing for [an] . . . injunction, and that the injunction violated the Anti-
Injunction Act." Entergy I, 210 F.3d at 895–96. We affirmed after concluding that
there was jurisdiction because Nebraska had waived its sovereign immunity from suit
in federal court by entering into the Compact. See id. at 897. We also decided that
the plaintiffs had made a sufficient showing for preliminary injunctive relief and that
it was not barred by the Anti-Injunction Act.

Nebraska also appealed the denial of its motions to dismiss on the grounds of
Eleventh Amendment immunity. Entergy II, 241 F.3d at 986. We ruled that
Nebraska had waived its sovereign immunity to an action brought by the Commission
by "entering into a compact in which the party states delegated to the Commission
their authority to sue for breach and required the Commission to enforce contractual
obligations." Id. at 988. We affirmed the district court's determination that the state's
waiver of immunity extended to the Commission's claim for damages and its denial
of Nebraska's motion to dismiss the Commission's claims.

As to the claims asserted under the Compact by USE and the Generators, we
reversed, holding that the good faith provision of the Compact did not create an
enforceable federal right for these parties. Their claims based on the Compact should
therefore have been dismissed. Their due process claims were remanded for further
analysis and then dismissed on remand. See Entergy Arkansas, Inc. v. Nebraska, 161
F. Supp. 2d 1001, 1002 (D. Neb. 2001).

Our decision in Entergy II allowed the Commission's suit against Nebraska to
proceed. Before trial the Commission moved to strike Nebraska's jury demand. The
district court granted the motion after concluding that the state had no Seventh

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Amendment right to a jury trial in the circumstances of this case. See Entergy
Arkansas, Inc. v. Nebraska, 186 F. Supp. 2d 1036, 1041 (D. Neb. 2002). There
followed an eight week bench trial, after which the court issued findings and
conclusions in favor of the Commission in a lengthy memorandum and order. See
Entergy Arkansas, Inc., 226 F. Supp. 2d at 1047–1174. The detailed findings of the
district court relevant to bad faith alone took up almost 40 printed pages. See id. at
1102–40.

The district court found that Nebraska had breached its duty of good faith
under the Compact. Its subsidiary findings included the following:

(1) Governor Nelson, either directly or through his subordinates,
influenced the process in order to fulfill a campaign promise which
required that the license be denied without regard to the technical
merits; (2) [the state] administration did not work diligently to ensure
that the application was considered fairly and reasonably; and (3) DEQ
and DOH did not act fairly or reasonably.

Id. at 1143.

The district court also found that all the funds expended in the licensing
process and the work credits obtained from USE were assets of the Commission. It
had acquired them in consideration for agreements allowing USE to develop the
waste site and the Generators to receive future radioactive waste disposal services,
and the Commission drew on them to fund the licensing process. The district court
found that the entire value of the funds and credits had been lost as a direct result of
Nebraska's bad faith.

Based on these findings, the district court granted declaratory relief but
concluded that the equitable relief originally requested by the Commission could no
longer be granted. The Commission had sought sweeping injunctive relief against

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Nebraska including completion of the licensing process under court supervision,6 but
the court found that a "long-standing lack of professionalism and independence" in
the state departments gave it "no confidence that the staff . . . could be restored to an
objective state of mind by a mere court order." Id. at 1160. The court also found that
"many of the key consultants . . . [had] been put in the position of having to defend
Nebraska" and that it was not realistic to "suggest that [they] could fairly be expected
to drop their defensive duties and resume the role of independent consultants." Id.
The court also found that Nebraska's withdrawal from the Compact could limit the
future enforcement of injunctive relief and that establishment of any new oversight
entity should not be attempted by judicial action. For these reasons and because
granting "[n]o affirmative equitable relief is better than problematic equitable relief,"
injunctive relief was deemed impractical.7 Id.

The district court instead fashioned monetary relief, declaring that the
Commission was entitled to recover damages for the entire principal value of the
expended funds and for the work performed by and credited to USE. In addition to
the over $88 million spent on the application process, it found the Commission was
entitled to recover $3 million in community improvement funds it had paid to
Nebraska towns in the vicinity of the proposed waste facility because the value of
these funds was entirely lost due to Nebraska's bad faith.8 The district court also

6
The Commission's request that the court "create a just and equitable
remedy, including injunction and mandamus as required" also suggested that this
might require removing the application process from Nebraska's control and
substituting an "appropriate means of completing the licensing," such as through a
special master, some "scientifically qualified" group, or an impartial governmental
agency, "all at defendant Nebraska's cost."
7
The district court also denied the Commission's request for an accounting
of the federal rebate funds paid out to Nebraska and rejected crossclaims by the
Generators for breach of contract and for a constructive trust. Id. at 1141, 1162.
No appeal was taken from these rulings.
8
Such payments were required under Commission Rule 9 which was
adopted by the Commission at its December 8, 1987 meeting at the request of

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found that the entire value of the "sweat equity" from USE had been lost as a result
of Nebraska's noncompliance, and the Commission could therefore recover
approximately $6.26 million for work credited to it. The amount the district court
found owing to the Commission thus totaled over $97 million, to which it added
prejudgment interest of approximately $53 million, as well as postjudgment interest.
Judgment was entered in favor of the Commission against Nebraska for a total of
$151,408,240.37.

On appeal, Nebraska raises a number of issues. First, it contends that the
district court erred by striking its jury demand, arguing that the Commission's suit is
like a contract action tried to a jury at common law. It asserts that the court erred by
not applying an arbitrary and capricious standard in its consideration of Nebraska's
obligations under the Compact and that the only remedy available for the Commission
was injunctive relief. Nebraska further contends that the Commission suffered no
losses itself but is only seeking to recover for others and that the district court
overstated the amount of the losses. Finally, the state attacks the award of interest,
arguing that it retained its sovereign immunity as to an award of interest, that there
was no legal basis for an award of prejudgment interest, and that the amount was
miscalculated. The Commission counters that Nebraska was not entitled to a jury trial
in a case such as this, that the district court's findings were well supported by the
evidence and the law, that the damages awarded were appropriate and accurately
reflected the actual costs caused by Nebraska's bad faith, and that interest was
properly granted to make it whole.

Nebraska Governor Kay Orr. The funds had been advanced to the Commission by
the nonhost states.

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 II.

A.

Nebraska first argues that the district court erred by striking its jury trial
demand. Whether a party is "entitled to a jury trial under the Seventh Amendment is
a question of law" which we review de novo. Kampa v. White Consol. Indus., 115
F.3d 585, 586 (8th Cir. 1997).

The Seventh Amendment guarantees that "[i]n Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved." U.S. Const. amend. VII. Over the years, the Supreme Court has
consistently explained that the "'right of trial by jury thus preserved is the right which
existed under the English common law when the amendment was adopted.'"
Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996) (quoting Balt. &
Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935)). Since the common law at
the time of the amendment provided for "a jury trial . . . in suits brought in the English
law courts," Tull v. United States, 481 U.S. 412, 417 (1987) (emphasis in original),
the Seventh Amendment guarantee extends to any cause of action "'that either was
tried at law at the time of the founding or is at least analogous to one that was.'" City
of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708 (1999)
(quoting Markman, 517 U.S. at 376).

Deciding whether an action fits the historical test employed by the Supreme
Court involves two inquiries. See Feltner v. Columbia Pictures Television, Inc., 523
U.S. 340, 348 (1998); see also Charles W. Wolfram, The Constitutional History of the
Seventh Amendment, 57 Minn. L. Rev. 639, 639-42 (1973) (describing development
of historical test). First, the action in question should be compared "to 18th-century
actions brought in the courts of England prior to the merger of the courts of law and
equity" to determine whether it is more analogous to an action that would have been
tried in a court of law or in equity. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33,
42 (1989). Second, the remedy sought should be examined to "determine whether it

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is legal or equitable in nature." Id. See also Chauffeurs, Teamsters & Helpers, Local
No. 391 v. Terry, 494 U.S. 558, 564 (1990) (plurality opinion) (discussing two part
test).

Nebraska urges that the best Eighteenth Century analog to the present case is
a simple contract action which would have been tried to a jury at common law. The
Commission argues that this analogy does not fit in this case which involves an
agreement among sovereign states enacted into law by Congress.

This action arises out of the Compact which is a congressionally sanctioned
interstate compact specifically authorized under the United States Constitution. The
Compact Clause permits states with "the Consent of Congress . . . [to] enter into an[]
Agreement or Compact with another State." U.S. Const. art. I, § 10, cl. 3. The
impetus for the Compact grew out of an act of Congress in 1980, the Low-Level
Radioactive Waste Policy Act, Pub. L. No. 96-573, 94 Stat. 3347 (1980). The states
of Nebraska, Arkansas, Kansas, Louisiana, and Oklahoma entered into the Compact
after the statute was passed in order "to cooperate in the protection of the health,
safety and welfare of their citizens and the environment" by providing for the
"management of low-level radioactive wastes." Art. I. The Compact went into effect
in 1986 after it was approved by Congress. See Omnibus Low-Level Radioactive
Waste Compact Consent Act, Pub. L. No. 99-240, § 222, 99 Stat. 1859, 1863 (1986).

Although the Supreme Court has acknowledged that an interstate compact is
like a contract to the extent that it is "a legal document that must be construed and
applied in accordance with its terms," Texas v. New Mexico, 482 U.S. 124, 128
(1987), the Court has also recognized the unique features and functions of such a
compact. An interstate compact is one "of two methods under our Constitution of
settling controversies between States," Petty v. Tennessee-Missouri Bridge Comm'n,
359 U.S. 275, 279 n.5 (1959), and it "performs high functions in our federalism," id.

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at 279.9 See also Felix Frankfurter & James M. Landis, The Compact Clause of the
Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685, 691-95 (1925)
(discussing history of Compact Clause). An interstate compact represents a political
compromise between "constituent elements of the Union," as opposed to a
commercial transaction. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 40
(1994). Such an agreement is made to "address interests and problems that do not
coincide nicely either with the national boundaries or with State lines—interests that
may be badly served or not served at all by the ordinary channels of National or State
political action." Id. (internal quotation marks omitted).

While a common law contract directly affects only the rights and obligations
of the individual parties to it, an interstate compact may directly impact the
population, the economy, and the physical environment in the whole of the compact
area. A suit alleging that a state has breached an obligation owed to its sister states
under a congressionally approved interstate compact also raises delicate questions
bearing upon the relationship among separate sovereign polities with respect to
matters of both regional and national import.

The source of the Commission's right to sue for breach of the Compact differs
from a right created by a contract. The Commission's right to bring this action arises
not from state common law, but from federal law since congressional approval was
required to make the Compact law. See U.S. Const. art. I, § 10, cl. 3. The terms of
the Compact became federal law when it was approved by Congress. See Entergy I,
210 F.3d at 897 ("The rights that the Commission seeks to enforce are federal rights
. . . ."). It was Congress, through its approval of the Compact, which established a
regulatory scheme to govern the mutual rights and obligations of the party states.
Within this framework the Commission is to "hear and negotiate disputes which may
arise between the party states regarding this Compact." Art. IV(m)(3).

9
Invocation of the Supreme Court's original jurisdiction is the other means
of interstate dispute resolution explicitly mentioned in the Constitution. See U.S.
Const. art. III, § 2, cl. 2; Petty, 359 U.S. at 279 n.5.

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 By means of the Compact, the member states "delegate[d] authority to the
Commission to initiate" proceedings to enforce their compact obligations. Entergy
II, 241 F.3d at 987–88 (citing Art. IV(e), (m)(8)). Indeed, the Compact commands
that the "Commission shall . . . require all party states . . . to perform their duties and
obligations arising under this compact." Art. IV(m)(8). The Commission was given
the power to carry out that responsibility when the five states agreed to give it
authority to enforce the Compact by "initiat[ing] any proceedings . . . before any court
of law, or any Federal, state or local agency, board or Commission that has
jurisdiction." Art. IV(e). When the Commission acts as the enforcement agency
created by the Compact, its rights arise from the federal statutory scheme adopted by
Congress through its approval of the Compact, rather than from the common law of
contract.

Nebraska argues that since the claims here are brought by the Commission, this
is not an action between sovereign states and a jury trial is therefore appropriate.
While at common law a sovereign likely had a right to a jury in a contract action with
a private party, see Standard Oil Co. of Cal. v. Arizona, 738 F.2d 1021, 1028 (9th Cir.
1984), the Commission cannot be equated with a private litigant. Even though the
Commission cannot itself be termed sovereign, see Hess, 513 U.S. at 52, it is a
creation of the Compact and represents the sovereign states which made it. Its role
within the congressionally approved framework created by the Compact differentiates
it from a private litigant enforcing individual rights or obligations. Through the
Compact, the member states have "delegate[d] authority to the Commission to
initiate" proceedings to enforce their compact obligations, Entergy II, 241 F.3d at
987–88 (citing Art. IV(e), (m)(8)), and they have commanded the Commission to
enforce performance by the party states, Art. IV(m)(8). The member states control
the actions of the Commission, and it is made up of one voting member from each
state and may only take action upon a majority vote of the total membership. See Art.
IV(a).

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 The Commission is acting here within its delegated enforcement role and with
the sanction of a majority vote of the state representatives. This action is brought in
the interests of the nonhost member states to give effect to the political agreements
embodied in their Compact. In order to deal with the growing problem of radioactive
waste and its potential threat to both human health and the environment, the
sovereign states of Kansas, Oklahoma, Arkansas, and Louisiana entered into this
Compact with Nebraska. By entering into the Compact all five sovereign states
recognized that cooperation was necessary for "the protection of the health, safety and
welfare of their citizens and the environment." Art. I. Through joint action the states
hoped "to limit the number of facilities needed to effectively and efficiently manage
low-level radioactive wastes and to encourage the reduction of the generation thereof;
and to distribute the costs, benefits and obligations among the party states." Art. I.
They agreed that all five states have the right to expect good faith performance by
each of the member states, Art. III(f), and they created the Commission as the entity
to enforce their interests in performance of its terms.

The Commission urges that the closest Eighteenth Century analogy to this
action may be seen in disputes between the colonies. Resolution of such disputes was
within the province of the king, who normally referred them to a royal commission
in the first instance. See Frankfurter & Landis, supra, at 693. An appeal from a royal
commission's decision could be taken to the king in council, id. at 692 n.29, 693, but
was "usually delegated to the Privy Council," id. at 692 n.29. See also Virginia v.
West Virginia, 246 U.S. 565, 597 (1918) ("[D]ifferences between the colonies were
taken to the Privy Council for settlement."). A dispute between the colonies was thus
not decided by a court and could not be considered a "common-law cause[] of action
ordinarily decided in English law courts," Granfinanciera, 492 U.S. at 42; cf.
Markman, 517 U.S. at 381 (specific patent issue was not for a jury even in an action
at law, for "patent litigation had remained within the jurisdiction of the Privy Council
until 1752 and hence without the option of a jury trial").

The colonial jurisdiction once exercised by the Privy Council has been viewed
as akin to the Supreme Court's original jurisdiction over controversies between the

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states. See Virginia, 246 U.S. at 598–99; Frankfurter & Landis, supra, at 694. Even
where monetary relief is sought in original actions between the states, issues of fact
are resolved by a special master rather than a jury. See, e.g., Kansas v. Colorado, 533
U.S. 1, 4–5 (2001); Richard H. Fallon, Jr. et al., Hart & Wechsler's The Federal
Courts and the Federal System 273 (5th ed. 2003). Our research has uncovered no
original action between sovereigns in which a jury has been empaneled. Cf. United
States v. Barnett, 330 F.2d 369, 429 n.85/11 (5th Cir. 1963) (opinion of Gewin, J.)
(describing the three known instances of trial by jury in the Supreme Court).

Nebraska's contract analogy might have more force if English common law
juries had been permitted to determine whether sovereigns had satisfied the rights and
obligations owed one another, but they were not. A search for a precise common law
analogy to our case would seek a multistate dispute in which a jury composed of
citizens and taxpayers of one of the states was asked to decide issues in which the
jurors had a direct interest. There is no indication that the Framers had such a sense
of the common law.10

Upon close examination of the Compact itself and the parties and interests
which created it, we cannot conclude that "the nature of the issues involved [in this

10
In discussing the importance of submitting actions between the states to
federal jurisdiction, Alexander Hamilton explained that "[n]o man ought to be a
judge in his own cause, or in any cause in respect to which he has the least interest
or bias." The Federalist No. 80, at 478 (Alexander Hamilton) (Clinton Rossiter ed.
1961). And in explaining the reasonableness of excluding juries from admiralty
prize cases, which often raised issues touching upon the relations of sovereign
states, see 2 George L. Haskins & Herbert A. Johnson, History of the Supreme
Court of the United States 437–38 (Paul A. Freund ed., 1981), Hamilton cited both
the possibility that a jury would be unable "to pay sufficient regard to those
considerations of public policy which ought to guide their enquiries" and the
"danger that the rights of other nations might be infringed by their decisions." The
Federalist No. 83, supra, at 504 (Hamilton).

-21-
case]," Terry, 494 U.S. at 564 (plurality opinion), is similar to an Eighteenth Century
common law contract action. The Compact directly affects the interests of five
individual sovereign states and their citizens. It represents a collective effort of these
states to create facilities for the disposal of radioactive waste so that it does not
endanger their population or environment. In seeking to hold Nebraska to its
obligations under the Compact, the Commission acts pursuant to the power delegated
to it by the member states to enforce their mutual agreements. While contract
principles may inform the interpretation of an interstate compact and the remedies
available thereunder, see Texas, 482 U.S. at 128, this action is not like a contract
action at common law as heard in the English law courts of the late Eighteenth
Century. It is better understood by considering the nature of the interstate Compact
and the analogies advanced by the Commission. Cf. Terry, 494 U.S. at 568 (plurality
opinion) ("The nature of an action is in large part controlled by the nature of the
underlying relationship between the parties.").

The second inquiry in the Seventh Amendment historical test requires
examination of "the remedy sought and . . . whether it is legal or equitable in nature."
Granfinanciera, 492 U.S. at 42. The Commission originally sought sweeping
equitable and declaratory relief designed to obtain a fair process and completion of
the license application review, as well as damages for the "lost value" of what it had
already paid out. The district court decided after hearing the evidence, however, that
injunctive relief was no longer practical and instead granted the Commission's
interrelated request for money damages to compensate for the funds lost in the failed
licensing process.

Nebraska argues that the historical test must be decided in its favor because
damages are "'the traditional form of relief offered in the courts of law,'" Terry, 494
U.S. at 570 (quoting Curtis v. Loether, 415 U.S. 189, 196 (1974)). It points out that
"the relief sought is '[m]ore important' than finding a precisely analogous common-
law cause of action," citing Tull, 481 U.S. at 421.

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 Nebraska overlooks the fact that the historical test looks to the remedy which
was "sought" by the plaintiff, see Granfinanciera, 492 U.S. at 42, and that the major
relief sought by the Commission was equitable in nature. Although its prayer for
relief also requested damages, that request was intertwined with the other relief
requested. The compensatory damages sought were for "all lost value of costs
incurred and money therefore paid out by the Commission" in the futile licensing
process.11 If the interrelated request for injunctive relief had been granted at an early
stage of the application process, the lost value would have been relatively low. By
the end of trial when the district court decided injunctive relief was no longer
practical, many years of Nebraska's bad faith tactics had caused the lost value to grow
astronomically.

The district court found that the injunctive relief originally sought would have
better protected the interests represented by the Commission than its award of
compensatory damages for the failed licensing process. One reason was because
traditional damages compensate established loss, and the court found that the loss in
value to the Commission from Nebraska's failure to perform in good faith "is
unknown and incapable of measurement to any reasonable degree of certainty."
Entergy Arkansas, Inc., 226 F. Supp. 2d at 1151. Although damages could not "serve
as a complete or adequate substitute for Nebraska's breach," id. at 1160, the process
had become so badly tainted that it could never be made to operate fairly so the court
settled on providing only monetary and declaratory relief. Id. at 1160–61.

The decision on whether a jury trial is required must necessarily be made
before trial on the then existing record. In reviewing the district court's decision to
try this case without a jury, we must focus on the record as it existed before trial and
on the remedies sought by the Commission, rather than the remedy fashioned after

11
The Commission had also sought "reasonably certain consequential
damages" for any further losses continuing into the future, including the cost of
finishing the licensing process and developing either the Boyd County site or the
next disposal site. The district court did not award any such damages.

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trial. See Granfinanciera, 492 U.S. at 42 (court must examine "remedy sought")
(emphasis added); Tull, 481 U.S. at 421 (examining "relief sought") (emphasis
added). The Commission originally requested a sweeping injunction asking for
restructuring of the licensing process for the low level radioactive waste disposal
facility under the supervision of the court or another entity of the court's choosing.
The Commission also sought declaratory relief, an accounting, and compensation for
its expenditures and losses incurred during the licensing process as a result of
Nebraska's bad faith. Entergy Arkansas, Inc., 226 F. Supp. 2d at 1150. The request
for damages was intertwined with the request for injunctive relief in that the
Commission's prayer for relief asked for compensatory damages for losses already
incurred in the absence of an injunction. Such damages are appropriately awarded
by a court of equity when a party has not performed within the time required. See
Restatement (Second) of Contracts, § 358 cmt. c (1981).

The relief ultimately awarded by the district court cannot fairly be classified
as legal in nature. The Restatement (Second) of Contracts explains that "[a] claimant
who sues for specific performance or an injunction and who is denied that relief, may
be awarded damages or restitution in the same proceeding." Id. The Supreme Court
"has not . . . held that 'any award of monetary relief must necessarily be "legal"
relief.'" Terry, 494 U.S. at 570 (quoting Curtis, 415 U.S. at 196) (emphasis in
original). A "monetary award 'incidental to or intertwined with injunctive relief' may
be equitable." Id. at 571 (quoting Tull, 481 U.S. at 424). Damages awarded for
losses not fully cured by equitable relief are "exactly the type of monetary relief that
courts, and the [Restatement(Second) of Contracts], envision as equitable relief; they
are incidental to the grant of equitable relief, yet are necessary to afford complete
relief." Golden v. Hersey, 73 F.3d 648, 661 (6th Cir. 1996).

Although the second part of the historical test may in some circumstances
outweigh the first in significance, see Tull, 481 U.S. at 421,12 we believe that in this

12
Unlike the present case, the damages sought in Tull were clearly legal in
nature and substantially outweighed the nature of the injunctive relief sought. Tull

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case both parts of the test lead to the conclusion that the district court did not err in
striking Nebraska's jury demand. An action between sovereigns, as this case is in
substance, directly affecting the rights and interests of each of the five party states is
far in nature from a typical action at law in the English courts of the late Eighteenth
Century.13 As the Supreme Court noted in Tull, a court in equity may grant monetary
relief incidental to or intertwined with injunctive relief, 481 U.S. at 424, and the
second part of the test focuses on the relief which was sought by the plaintiff. Id. at
421. Here the Commission sought intertwined equitable and monetary relief.

In sum, we conclude that the district court did not err by striking Nebraska's
jury demand. The Commission's action is not analogous to one tried at law in the
English courts of the Eighteenth Century. It involves a dispute growing out of an
interstate compact, sanctioned by the Constitution and Congress, and entered into by
five sovereign states. It is unlike disputes tried to a jury in the Eighteenth Century.
The chief remedy sought by the Commission was sweeping injunctive relief to move
the application process forward and construct a radioactive waste disposal facility in
Nebraska. It was only after the district court had heard all of the evidence that the
extent of Nebraska's bad faith was established and a suitable remedy had to be
fashioned. When the court found injunctive relief no longer practical, it turned to the
Commission's interrelated request for compensatory damages to provide an
appropriate remedy. We conclude that the district court did not commit legal error
or abuse its discretion in fashioning this monetary relief and that it did not violate the
Seventh Amendment by striking Nebraska's demand for a jury trial in the
circumstances of this case.

involved a $22 million civil penalty under the Clean Water Act; such a punitive
remedy would have been available only in a court of law. Here, the court's grant
of money damages was not disproportionate to the nature of the powerful
injunction sought by the Commission.
13
It is also interesting to note that the Supreme Court has awarded monetary
damages without a jury in original actions between states arising from interstate
compacts. See, e.g., Kansas, 533 U.S. at 4-5.

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 B.

Nebraska also argues that the district court erred by finding that it breached its
good faith obligation under the Compact. Whether Nebraska failed to act in good
faith is a question of fact, which we review for clear error. See In re Armstrong, 285
F.3d 1092, 1096 (8th Cir. 2002). Conclusions of law are reviewed de novo. Walker
v. Maschner, 270 F.3d 573, 576 (8th Cir. 2001).

Because this case arises under federal law and there is no federal common law
on the meaning of good faith under an interstate compact, the district court turned to
the Restatement (Second) of Contracts for guidance. Neither side has directly
challenged the district court's consideration of the Restatement, and we believe that
it is an appropriate reference. See Texas, 482 U.S. at 129 (citing the Restatement in
interstate compact case).

The Restatement defines good faith in this way:

honesty in fact in the conduct or transaction concerned. . . . Good faith
performance . . . of a contract emphasizes faithfulness to an agreed
common purpose and consistency with the justified expectations of the
other party; it excludes a variety of types of conduct characterized as
involving "bad faith" because they violate community standards of
decency, fairness or reasonableness.

Restatement (Second) of Contracts § 205 cmt. a (internal quotation marks omitted).
It discusses bad faith by giving examples:

[B]ad faith may be overt or may consist of inaction . . . . A complete
catalogue of types of bad faith is impossible, but the following types are
among those which have been recognized in judicial decisions: evasion
of the spirit of the bargain, lack of diligence and slacking off, willful
rendering of imperfect performance, abuse of a power to specify terms,
and interference with or failure to cooperate in the other party's
performance.

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Id. § 205 cmt. d.

Nebraska takes the position that the district court should have used an arbitrary
and capricious standard of review. To support its contention, Nebraska cites Art.
V(g) of the Compact, which provides that the membership of a state in the Compact
may be revoked if it is found to have "arbitrarily and capriciously denied or delayed
the issuance of a license." It does not follow that the standard for revocation of
membership should control other issues under the Compact, for "nothing in the
Compact states that [Art. V(g)] . . . is the exclusive enforcement mechanism."
Entergy I, 210 F.3d at 897. Indeed, the Compact elsewhere provides that "each party
state has the right to rely on the good faith performance of each other party state,"
Art. III(f), and that the Commission "may initiate any proceedings . . . relating to the
terms or provisions of [the] Compact," Art. IV(e). The district court properly focused
on whether Nebraska had carried out its Compact obligations in good faith during the
licensing process, rather than on conducting a traditional agency review.

Nebraska also argues that giving full effect to the requirement of good faith
would impose nonnegotiated limits on its licensing discretion, citing United States
v. Basin Elec. Power Co., 248 F.3d 781, 796 (8th Cir. 2001) ("[I]mplied covenant [of
good faith] has nothing to do with the enforcement of terms actually negotiated and
cannot block [the] use of terms that actually appear in the contract.") (internal
quotation marks omitted and alteration in original) and Taylor Equip., Inc. v. John
Deere Co., 98 F.3d 1028, 1031–33 (8th Cir. 1996) (similar). These cases are not on
point, for there is no issue here of an implied promise of good faith modifying or
limiting an otherwise discretionary term in the Compact. Rather, the Commission
seeks to enforce the good faith covenant within the Compact, an explicit provision
which it was given the authority to enforce and which is separately enforceable. See
Entergy I, 210 F.3d at 897. To limit bad faith to arbitrary and capricious behavior
would undermine the structure of the multistate agreement. We thus agree with the
district court that the question before it was whether a preponderance of the evidence

-27-
proved that the State of Nebraska failed to act in good faith in respect to its
obligations under the Compact.

The voluminous record supports the district court's factual findings of bad
faith. The district court dedicated almost 40 pages of its published opinion to these
findings and to cataloguing the evidence of Nebraska's bad faith. See Entergy
Arkansas, Inc., 226 F. Supp. 2d at 1102–40. The district court found that the license
was denied for political reasons without regard to the technical merits of the
application.

Nebraska had denied the license application in December 1998, giving as
reasons "that there was insufficient depth of the water table at the site . . . and that
USE had not shown financial ability to build and run the facility." Entergy II, 241
F.3d at 984. The district court found that these reasons were simply pretext, and the
evidence supports its finding. Nebraska's final decision was completely at odds with
the findings and conclusions in the technical reports it had prepared. Both the IPA
and the DSER had concluded that groundwater did not pose a problem that would
prevent licensing.

The IPA, a report commissioned by the state, was based on a study conducted
by Richard Arnold, a Ph.D. in mechanical engineering. Dr. Arnold used very
sophisticated computer and mathematical models to determine whether over a 10,000
year period the facility might expose the public to radiation in excess of regulatory
limits. His study employed very conservative assumptions, assuming for example
that the land under the concrete base of the facility would be "completely saturated
as a result of a high water table." He concluded that the "maximally exposed member
of the public will be subject to a Total Combined Total Effective Dose Equivalent of
5.0 mrem." Since the regulatory limit was 25 mrem, the IPA showed that the facility
was well within regulatory performance criteria for radiation exposure.

The DSER had also reached favorable conclusions. The DSER was prepared
by over 100 technical consultants employed by Nebraska. They had been asked to

-28-
provide the "technical review of the license application" in order "to determine if the
facility meets applicable State laws and regulations, and if the facility's design,
physical features, and safety systems are technically acceptable." Among the analyses
underlying the DSER was a special computer study conducted by Dr. Stewart Taylor,
a Ph.D. in hydrology from Princeton University. The DSER concluded that "the data,
analysis, and information presented in [USE's] license application are acceptable"
with respect to "the [facility's] location, natural and demographic features, geologic
features, surface and groundwater conditions, and preoperational environmental
monitoring." The district court found that the DSER had actually rejected all of the
hydrologic grounds upon which Nebraska later relied to deny the license, and
Nebraska has not argued that this finding was erroneous.

In spite of these reports and the strong scientific evidence on which they were
based, Nebraska adopted a completely contrary position on the effect of groundwater
at the site. Nebraska argues there is scientific evidence to support this reversal. It
points to a study conducted after the completion of the DSER and IPA by its review
manager for site characteristics, Dr. Marvin Carlson. He concluded that groundwater
could pose a problem at the site, and the district court examined whether Nebraska's
decision to rely on Carlson's conclusion in the face of the strong scientific evidence
to the contrary was made in good faith.

The district court found that Carlson's study was not as scientifically persuasive
as the earlier research, and the record supports this determination. Carlson himself
was a geologist, not a hyrdrologist, and there was evidence that he had not consulted
with any of the hydrologists on Nebraska's review team. His report was based only
on visual inspection of hydrographs, rather than on any quantitative or statistical
analysis. Nebraska counters that Carlson's study incorporated data unavailable to the
earlier studies, but the Commission's experts provided evidence that these data were
not statistically different from those in the earlier studies. That evidence was not
disputed at trial by Nebraska's experts. Also undermining the reliability of Carlson's
study was the fact that on June 27, 1998, just one month before he concluded that

-29-
groundwater posed a problem, he had submitted an evaluation directly to the contrary
in which he indicated that it did not.

Randolph Wood, head of DEQ, testified at trial that his decision to deviate
from the DSER and IPA on groundwater issues was based on a simple cross section
drawing which showed the building plans and elevations of the land and groundwater
at the site. The district court questioned why Wood would rely on such an elementary
analysis after Nebraska had required USE to pay for much more complex and
sophisticated studies, such as those relied on by the DSER and IPA. It is also of note
that Nebraska has not relied on that cross section drawing in its argument that the
district court erred in finding that the decision denying USE's application was not
made in good faith.

Not only is Nebraska's failure to adopt the conclusions of its own consultants
in the DSER and IPA strong evidence of bad faith, there was evidence that the
groundwater issue was raised to support a political decision made by Wood in July
1998 or earlier to deny the license.14 For example, a July 18, 1998 email from one of
Nebraska's engineering consultants to other consultants stated that DEQ employees
were "trying to figure out how to spin responses, evaluations, and the [final decision
documents] . . . so that they would support [Wood's] no go decision. Their
conclusion was that first they must compose the decision document and then find the
technical support or lack thereof for the decisions." (emphasis added). Barry
Butterfield, the environmental review manager, told Wood in a meeting on July 24
that the denial decision was inconsistent with the IPA and was "technically

14
Documents had been prepared by the state as early as 1992 which
appeared to anticipate a disposition based on political concerns rather than the
technical merits of the license application. One memorandum recommended that
the governor order Wood to deny the license on site suitability grounds even if he
thought it was suitable since an appeal of his decision would be "strictly an
administrative appeal on the record. . . . [so the] [w]orse case scenario if the court
finds against the state, is that the Court will order the state to finish the license
review."

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unsupportable." Butterfield later testified that Wood had replied, "this decision is not
about health and safety, it's about regulatory interpretation." Based on this and other
evidence in the record, we conclude that the district court did not err in finding that
"the 1998 decision to deny the license ostensibly because of concerns about water
was pretextual, unreasonable, and unfair." Entergy Arkansas, Inc., 226 F. Supp. 2d
at 1138.

The record also supports the district court's finding that the decision to deny
the license based on USE's financial condition was not made in good faith. There was
evidence that Nebraska attempted to manipulate the review of USE's financial
condition so as to support a decision denying the license. The state's regular financial
reviewers15 had all concluded that USE had provided sufficient written financial
assurances, and they had recommended that the state issue the license, conditioned
on USE's acquisition of adequate financing within 120 days. One of the review
managers reported to his superiors that conditional licenses were standard practice in
the construction world and "once you had a license in hand . . . people would be
standing in line to finance it because of the nature of the business, being a Compact
site as well as some form of a monopoly business." In addition, the DSER issued in
October 1997 concluded that USE "has demonstrated that it meets the financial
criteria established by the State of Nebraska."

Despite the favorable conclusions about USE's financial ability reached by the
state's own reviewers and the DSER,16 Wood decided to hire a brokerage and
investment firm for a further review. The firm had been recommended by a friend of
the governor, and Wood substantially limited the scope of its analysis. It was

15
The state reviewers included a CPA, an attorney from the law firm
consulting on the licensing process, and an environmental engineer with an
advanced business degree.
16
Nebraska argues that the DSER was not legally binding on the agency
decisionmakers and that its conclusions were not evidence of bad faith. The issue
is not whether the decisionmakers could reach a decision different from the DSER,
however, but whether they did so in good faith.

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instructed to ignore many common sources of financing, including financing from the
Generators.17 The analysis made no effort to capitalize the facility's anticipated future
income stream, even though USE was guaranteed a 20% rate of return under the
Compact and its contract with the Commission, and even though it would have had
a virtual monopoly for the five state area. The firm's final report asserted that "the
Company still does not appear to have the ability to finance a major project such as
the low-level radioactive waste disposal site . . . without major assistance and/or
guarantees from the largest members of the . . . Compact." Based on this limited
report, Nebraska's final decision document concluded that USE and its parent
company were not financially qualified to build the disposal facility.

After examining such evidence in the record, we conclude that the district court
did not err in finding that "the 1998 decision predicated upon a lack of financial
assurance was pretextual and covered up the real and bad faith reason that drove the
decision."

The district court's finding that the decision to deny the license was based on
political rather than technical considerations was also supported by extensive
evidence stretching back to the very beginning of the Nelson administration that
suggests it was biased against the disposal facility and intended to undermine it.18

17
The financial analyst who prepared the report primarily studied the income
statements and balance sheets of USE's parent company. He testified that his
"focus was not to determine where they could find the money, but instead, if they
had a balance sheet and the operational history to support financing the project."
He did not contact possible third party sources of funding, including banks,
insurance companies, or investors. He also testified that he had understood the
scope of his work to exclude consideration of possible financing by the
Commission or the Generators.
18
The state argues that the district court should not have admitted evidence
of bad faith executive conduct that occurred prior to 1993 because the case was
not filed until 1998 and a five year statute of limitations was applied. Federal law
determines the accrual date of a federal claim, see Union Pac. R.R. Co. v.
Beckham, 138 F.3d 325, 330 (8th Cir. 1998), however, and under federal common

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The governor had campaigned on a pledge to block construction of the disposal
facility, and an inference of bias against the facility may be drawn from his early
hiring decisions for several important positions related to the disposal facility. The
governor hired Kate Allen, a known site opponent, to be his chief LLRW policy
advisor, and a high ranking state official testified that she was "very biased on the
issue [of the disposal facility]." After the governor indicated that it was "important
to get [a] director [without] an agenda who we can trust" to head the DEQ, a friend
recommended Randolph Wood. Wood was hired even though he had informed the
administration that his philosophy was to "make no effort whatsoever to work with
an applicant to work out a way to use a piece of property that would be suitable."
There was also evidence that the governor's office informed Wood of "where the
governor is going on [the disposal facility] and what expectations for [Wood] will
be."

The record shows that the administration began to develop and implement a
plan to undermine the licensing process. Shortly before the governor took office,
Allen prepared an "Action Plan on [Low Level Radioactive Waste]." The first item
in the plan stated that "Upon taking office [the Governor] will order a moratorium on
further development of the facility . . . ." Allen's notes from meetings with the

law "'there is no accrual [of a cause of action] until all facts exist so that the
plaintiff can allege a complete cause of action.'" Gustafson v. Cornelius Co., 724
F.2d 75, 79 n.9 (quoting Butler v. Local Union 823, Int'l Bhd. Teamsters, 514
F.2d 442, 450 (8th Cir. 1975) (per curiam), overruled on other grounds by United
Parcel Serv., Inc. v. Mitchell, 451 U.S. 56 (1981)). Here, the final denial of the
license did not occur until December 1998. There was in any event more than
enough evidence after 1993 to support the court's bad faith finding, and earlier
actions would have been admissible as background.

Since the Commission's claim did not accrue until 1998, Nebraska's
argument that the district court should have applied a two year statute of
limitations need not be discussed, particularly since there was sufficient
supporting evidence within that two year period (including the final denial of the
application).

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governor show him formulating ideas to prevent construction of the facility. Her
notes reflect the governor saying: "[we must] create[] noise & difficulties[;] think we
can win it; expensive"; "[o]ur best bet is to be the under dog who has been taken
advantage of by the bad power companies"'; and "[I] want [USE] to think that [I am]
deranged."

In her position as chief LLRW policy advisor, Allen continued to act as she had
in her former role of outside site opponent. At one point she sent sensitive internal
documents describing the DEQ's legal analysis of the viability of the site to an
attorney representing a group opposing the facility. There was also evidence showing
that Allen tried to influence DEQ and DOH technical staff working on the license
application. Allen attended nonpublic DEQ and DOH meetings and asked questions
of review managers and even offered opinions on technical issues. The review
managers were upset by this interference and complained, and the LLRW Program
manager for DEQ testified at trial that Allen's participation in these meetings was
improper.

The plan to undermine the disposal facility was evidenced by the support and
encouragement the administration gave Allen, even though it knew that her negative
activities could be problematic. In an email to senior administration officials,
including the chief of staff and the governor's legal counsel, Allen acknowledged that
she knew of the possibility of "a 'bad faith' case against Nebraska." She was therefore
"being very careful in what I say." Instead of causing concern, Allen's actions
received support and praise from the administration. Allen's supervisor, for example,
sent her an email stating that he had "a good chat with the Governor." "First and
foremost," the email continued, "you still have the Governor's . . . unequivocal
support. The governor commented that you are bearing the brunt of the Compact's
[sic] disgust with him (and with your ability to 'blow their skirts up.'). . . . Bottom
line: Everybody here still loves ya, kid." Moreover, even though Allen was fired in
late 1992—for becoming a "legal liability" for the governor her notes report—the
evidence shows that members of his administration conferred with her at least 50
times after her firing while she was working as a part time lawyer for site opponents.

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 There was also evidence that a further element of the plan to undermine the
project was to use litigation as a weapon against the Commission.19 Allen's notes
show that the governor told site opponents, "Let's talk about litigation [without]
giving our plan to the other side—We want to keep them off balance." He added,
according to Allen, "[l]itigation, will continue to look at every angle."

Nebraska filed six cases against the Commission during the period 1993 to
1997, losing five and settling the other. Several of these suits were duplicative, and
a similar action brought by Boyd County—represented by counsel for a group of site
opponents (the Local Monitoring Committee or LMC)—caused the district court to
express concern that the state was conducting "hit-and-run guerilla warfare by filing
multiple lawsuits on the same claim in order to frustrate performance of the
Compact."20 County of Boyd v. U.S. Ecology, 858 F. Supp. 960, 974 (D. Neb. 1994).
In affirming the district court, Judge Wollman characterized the case as "just the latest
in a series of actions attempting to block the [facility]." County of Boyd v. U.S.
Ecology, 48 F.3d 359, 360 (8th Cir. 1995). In a later action by Nebraska contending
that the Commission lacked the power to set a deadline, Judge Urbom found that the
state had declined even to attend a meeting to discuss a deadline and had failed to
provide answers to specific questions asked by the Commission about its progress in
processing the license application. See Nebraska v. Central Interstate Low-Level
Radioactive Waste Commission, No. 4:96CV3438 (D. Neb. Oct. 15, 1998). In

19
Nebraska argues that the Noerr-Pennington doctrine prohibits
consideration of lawsuits as evidence of bad faith because they are protected by
the First Amendment, citing Razorback Ready Mix Concrete Co. v. Waever, 761
F.2d 484, 486 (8th Cir. 1985). Nebraska has not cited any authority which would
extend the Noerr-Pennington doctrine from antitrust law to this type of action.
Nebraska also makes several other evidentiary arguments which we have carefully
considered and find without merit or dispositive impact.
20
There was evidence that showed that the administration viewed the LMC
as a useful cover for its own agenda. For example, Kate Allen reminded her
superiors that the "LMC can still be used by the Governor to do things he cannot
do directly."

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affirming the district court, Judge Beam observed that the state's argument was
contrary to the "plain language" of the Compact. Nebraska, 187 F.3d at 987 (8th Cir.
1999). Another suit brought by Nebraska claimed, in spite of clear Compact language
to the contrary, that the state had a right to seat two voting members and one
nonvoting member on the Commission. See Nebraska ex rel. Nelson v. Central
Interstate Low-Level Radioactive Waste Comm'n, 902 F. Supp. 1046 (D. Neb. 1995).
That action was dismissed, and no appeal was taken.

The evidence of Nebraska's continuing efforts to thwart and delay the facility
strongly supports the district court's finding that USE was denied a license without
regard to the technical merits of its application. Indeed, the evidence shows that
Nebraska was prepared to do whatever was necessary to avoid hosting an LLRW
disposal facility—even if that meant ignoring its own consultants and denying the
license on pretextual grounds.

For the reasons discussed and based upon review of the entire record, we
conclude that the district court did not clearly err in finding that Nebraska ultimately
denied the license application for reasons not related to the merits of the application.
Such a denial in the context of Nebraska's commitments in the Compact is the essence
of bad faith, a calculated "evasion of the spirit of the bargain." Restatement (Second)
of Contracts § 205 cmt. d. Throughout the course of the licensing process, Nebraska
exhibited a lack of diligence or cooperative effort and willfully rendered imperfect
performance. See id. We conclude that the district court did not err by finding that
Nebraska breached the duty of good faith imposed by the Compact.21

21
The state argues that the district court failed to accord its decisionmakers a
presumption of both past and future honesty and impartiality as required by
Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Assoc., 426 U.S. 482, 497
(1976); Withrow v. Larkin, 421 U.S. 35, 47 (1975); Gordon v. Hansen, 168 F.3d
1109, 1114 (8th Cir. 1999); and Ikpeazu v. Univ. of Neb., 775 F.2d 250, 254 (8th
Cir. 1985). Even assuming that such a presumption extends beyond the issues of
procedural due process raised in those cases, the record here contains more than
enough evidence of bias to rebut it, even considering the turnover in state

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 C.

Nebraska also challenges the monetary relief awarded by the district court. It
first argues that even if the district court was correct that it acted in bad faith, the
court erred by awarding damages. It contends that the proper remedy for a flawed
administrative decision is a remand to the agency with instructions to correct the flaw.
Whether a particular remedy is available and appropriate is a question of law which
we review de novo. Cummings v. Connell, 316 F.3d 886, 893 (9th Cir. 2003).

The gravamen of the Commission's suit is Nebraska's breach of the duty of
good faith imposed by this interstate Compact, rather than a challenge to a particular
agency action. Nebraska has not shown that any provision of the Compact limits the
remedies for breach to a remand or that our earlier ruling, that the Commission had
the right to sue for damages under the Compact, is wrong.22 Entergy II, 241 F.3d at
988; see also Kansas, 533 U.S. at 7 (awarding monetary relief for violations of
interstate compact). The district court did not err by declining to remand for further
action by the state agencies which administered the licensing process.23

personnel.
22
In an earlier decision we rejected Nebraska's argument that the
Commission may not recover for its losses because it is not a party to the
Compact. See Entergy II, 241 F.3d at 988. The Commission was explicitly
empowered by the Compact to "initiate any proceedings . . . before any court of
law" in order to carry out its delegated duty to enforce the obligations imposed by
the Compact on the party states. Art. IV(e), (m)(8). To prevent the Commission
from seeking such relief would gravely undermine its ability to carry out its
enforcement duties.
23
Nebraska also renews its argument that it did not waive its sovereign
immunity to monetary relief, but that issue was resolved against it earlier in this
case based on its commitments in the Compact. See Entergy II, 241 F.3d at 987
(affirming district court's ruling that waiver of sovereign immunity extended to
suits for money damages).

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 An additional point raised by Nebraska is whether the court properly awarded
monetary relief in lieu of enjoining it to act in good faith. Nebraska argues that the
district court's failure to order the Commission to continue the licensing process is
contrary to "the well-established rule that the government has traditionally been
granted the widest latitude in the dispatch of its own internal affairs," Angela R. ex
rel. Hasselbein v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993). We review a decision
not to impose a particular equitable remedy for an abuse of discretion. See Thorson
v. Gemini, Inc., 205 F.3d 370, 385 (8th Cir. 2000).

The record reveals that the district court considered, but ultimately rejected
injunctive relief. It found that the state agencies had demonstrated an inability to
review the license application fairly and that Nebraska's withdrawal from the
Compact made it unlikely an injunction could be effectively enforced. Earlier, in
affirming the preliminary injunction halting the second contested case proceeding, we
referred to evidence "that Nebraska did not provide, or intend to provide, impartial
consideration of [the license application] . . . . [and that] Nebraska has used its
administrative process wrongfully to delay and deny the license." Entergy I, 210 F.3d
at 899. Because of this record "the deference generally due a state's administrative
proceeding does not apply." Id.; cf. Coit Independence Joint Venture v. L. Ins. Corp.,
489 U.S. 561, 587 (1989) ("Administrative remedies that are inadequate need not be
exhausted."). Nebraska had over ten years before this case was even filed to comply
with the Compact, and it has not shown that its licensing proceedings would be any
fairer now were it given more time. Given the record of Nebraska's bad faith and
antagonism to the disposal facility since the state was chosen as the first site, the
district court did not abuse its discretion by awarding monetary relief when injunctive
relief was no longer feasible.24 See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)

24
The cases cited by Nebraska in support of its argument that comity
requires another opportunity to process the license application differ from the
situation here. Some turn on whether an injunction overreached or excessively
limited the discretion of state officials, rather than on whether monetary relief was
appropriate in lieu of an injunction. See, e.g., Board of Regents of Univ. of Wisc.
v. Southworth, 529 U.S. 217 (2000); Missouri v. Jenkins, 515 U.S. 70, 85–86

-38-
(plurality opinion) ("[E]quitable remedies are a special blend of what is necessary,
what is fair, and what is workable.") (emphasis added).

Nebraska next argues that even if damages were a permissible form of relief,
the Commission suffered no losses on which such a remedy could be based because
it sought to recover for funds received from the Generators and for USE's work. It
asserts that the Commission was at best the mere trustee of assets belonging to others
and that neither it nor the member states suffered any compensable harm.

The record reveals that the funds from the Generators, the credits for USE's
work on the licensing process, and the funds from the nonhost states all became assets
of the Commission. The Commission's accountant testified that the expenditures on
which the district court's monetary relief was based were made with Commission
funds paid from its own accounts. The Commission acquired most of these funds as
part of negotiated exchanges for valuable rights it controlled. It obtained funds from
the Generators in exchange for future disposal services and work from USE in
exchange for allowing it to develop and operate the site. It also collected $3 million
from the other Compact states to distribute as community improvement grants in

(1995); Knox v. Salinas, 193 F.3d 123, 129–30 (2d Cir. 1999); Southworth v.
Grebe, 151 F.3d 717, 734 (7th Cir. 1998), rev'd on other grounds, Schwartz v.
Dolan, 86 F.3d 315, 319 (2d Cir. 1996); Clarke v. Coye, 60 F.3d 600, 604 (9th Cir.
1995); Schuldt v. Mankato Indep. Sch. Dist. No. 77, 937 F.2d 1357, 1360 (8th Cir.
1992).

Others simply illustrate that in some situations it is appropriate to allow
agency proceedings to continue. See Yamaha Motor Corp. U.S.A. v. Stroud, 179
F.3d 598, 602 (8th Cir. 1999); Melendez v. U.S. Dep't of Justice, 926 F.2d 211,
219 (2d Cir. 1991); Jen Hung Ng v. INS, 804 F.2d 534, 539 (9th Cir. 1995). We
do not disagree with this principle, but the facts of this case call for a different
remedy.

In First Nat'l Bank of Albuquerque v. Albright, 208 U.S. 548, 553 (1908),
there were no findings of bias or bad faith, but only a fear that an officer would
"perform [his statutory duty] wrongly."

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Boyd County. Whether any of these other entities seek adjustments in their accounts
in the future is not at issue here.

The issue is whether the district court erred by requiring Nebraska to reimburse
the Commission for the costs of a license application process made futile by the
state's bad faith. At an earlier stage we held that the Commission could seek to
recover for the funds and work expended in pursuit of the license, see Entergy II, 241
F.3d at 988, and the more complete record now before us further supports that
conclusion. The district court did not clearly err in calculating the Commission's
losses.

Finally, Nebraska argues that the district court overstated the Commission's
losses by not reducing its award to account for the residual value of the license
application. The district court specifically found that the entire value of the expended
funds and effort had been wasted, but the state contends that the Commission, USE,
and the Generators received some value from the process. That value is said by
Nebraska to be a completed application. Given that the evidence supports the district
court's finding that the licensing process is irremediably broken and that Nebraska has
suggested no use for the application outside of this review process, the district court
did not clearly err in holding that the Commission received no value from the
licensing process.25

25
Nebraska also argues that the district court did not properly confine its
award to protecting traditional interests, such as expectation or reliance interests.
We note that the Restatement makes clear that "in situations in which a court
grants such relief as justice requires, the relief may not correspond precisely to any
of these interests." Restatement (Second) of Contracts § 344 cmt. a. The
traditional interests "are not inflexible limits on relief." Id. In this case, the
district court concluded that the Commission's expectation interest was
incalculable and therefore sought to protect its reliance interest. By compensating
the Commission for its expenditures, the district court placed it "in as good a
position as [it] would have been in had the [Nebraska site venture] not been
[undertaken]." Id. § 344(b) (describing reliance damages).

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 D.

Nebraska contends that the district court also erred by awarding interest. It
argues that it enjoys sovereign immunity from interest and that only a specific waiver
is effective in respect to interest, citing Library of Cong. v. Shaw, 478 U.S. 310,
314–15 (1986) ("In the absence of express congressional consent to the award of
interest separate from a general waiver of immunity to suit, the United States is
immune from an interest award."). Whether a state has waived its sovereign
immunity is a question of law which we review de novo. See Entergy II, 241 F.3d at
987.

We have previously declined to extend Shaw to a question of state sovereign
immunity. In Jenkins v. Missouri, we noted that Shaw involved a suit against the
federal government and was therefore not controlling "in a case involving eleventh
amendment, rather than federal sovereign immunity." 838 F.2d 260, 265 (8th Cir.
1988) (affirming enhanced award of attorney fees to account for delay in payment).
The Supreme Court later affirmed our court on the Eleventh Amendment issue, and
it also expressly limited Shaw to the issue of federal immunity. The Court saw no
"equivalent rule relating to state immunity that embodies the same ultrastrict rule of
construction for interest awards that has grown up around the federal no-interest
rule." Missouri v. Jenkins, 491 U.S. 274, 281 n.3 (1989); see also Reopell v.
Massachusetts, 936 F.2d 12, 15 (1st Cir. 1991) (noting the Court's limitation of Shaw
in Jenkins); Pegues v. Mississippi State Employment Serv., 899 F.2d 1449, 1454 &
nn.29–30 (5th Cir. 1990) (same). We agree with the First Circuit's conclusion in
Reopell that if a state's sovereign immunity does not bar the underlying monetary
award, it will not bar an award of interest. Reopell, 936 F.2d at 15. Because
Nebraska has waived its immunity from an award of damages, it also has no immunity
from the assessment of interest.

Nebraska also argues that even if it has no constitutional immunity to an
interest award, an award of prejudgment interest was not legally permissible in this
case. Whether a particular remedy is available is a question of law which we review

-41-
de novo. Cummings, 316 F.3d at 893. The state contends that prejudgment interest
may not be awarded since it was not specifically authorized by the Compact.

A district court may award prejudgment interest if "federal law authorizes
[such] awards . . . [in the relevant action]," Monessen Southwestern R.R. Co. v.
Morgan, 486 U.S. 330, 336 (1988), and federal common law clearly permits
prejudgment interest to be awarded as a part of the remedy for breach of an interstate
compact. For example, in Kansas, the Supreme Court awarded Kansas prejudgment
interest over Colorado's objection even though the compact in question was silent on
the issue of remedies. 533 U.S. at 9–12; id. at 24 (O'Connor, J., dissenting) (noting
Compact's silence on remedies).

Nebraska also argues that the district court should have applied a Nebraska
statute that prohibits imposition of prejudgment interest on the state. See Neb. Rev.
Stat. § 45-103.04. This argument overlooks the rule that "whether interest is to be
allowed . . . is a question of federal law where the cause of action arises from a
federal statute." Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1330 (8th Cir. 1995);
see also Morgan, 486 U.S. at 335 ("Pennsylvania courts erred in treating the
availability of prejudgment interest in FELA actions as a matter of state law rather
than federal law."). While it is true that the Supreme Court considered state law in
Board of Comm'rs of Jackson County v. United States, 308 U.S. 343 (1939), a case
about whether interest was due an Indian taxed in violation of federal law, the Court
specifically held that state law did not control the issue. See id. at 350-51 ("[T]he
federal courts [are not] restricted to the remedies available in state courts in enforcing
such federal rights."). The Court nevertheless "absorbed" the state law on interest as
the governing federal rule in deference to "considerations of fairness." Id. at 351-52.
Nebraska has not shown that fairness considerations require application of its interest
statute in the circumstances of this case, however. We conclude that the district court
did not err by not applying the state prejudgment interest statute. Cf. Kansas, 533
U.S. at 9–12 (awarding prejudgment interest without reference to state law).

Nebraska also takes issue with the amount of prejudgment interest awarded by

-42-
the district court. Interest was awarded on Commission payments starting in 1987,
but Nebraska argues that it should only have been calculated from the point at which
the Commission's claim accrued for statute of limitations purposes, which the district
court held to be 1998. A decision granting prejudgment interest is reviewed for abuse
of discretion. Frazier v. Iowa Beef Processors, Inc., 200 F.3d 1190, 1194 (8th Cir.
2000).

Nebraska cites cases such as West Virginia v. United States, 479 U.S. 305, 311
n.2 (1987),26 which have calculated prejudgment interest from the date of claim
accrual "for the loss of use of money," and contends that this is the rule that should
be followed here. Other decisions have considered "the equities" to set the starting
date. See, e.g., Kansas, 533 U.S. at 14; NYSA-ILA Med. & Clinical Servs. Fund v.
Salco Trucking Corp., No. 90 Civ. 5949, 1995 WL 404863, at *1-2 (S.D.N.Y. July
6, 1995) (claim accrual date "has no bearing on setting the appropriate date of accrual
of pre-judgment interest"). It makes sense to us that courts have not agreed on a
bright line rule because the "essential rationale for awarding prejudgment interest is
to ensure that an injured party is fully compensated." Milwaukee v. Cement Div.,
Nat'l Gypsum Corp., 515 U.S. 189, 195 & n.7 (1995).

Since the goal of prejudgment interest is full compensation, the approach used
in West Virginia to fashion an award is not appropriate here because the
circumstances are very different. In West Virginia, the United States sued the state
to collect a contractual debt, 479 U.S. at 306, and it was awarded a judgment for the
full amount of the debt, plus prejudgment interest as of the date it had billed the state,
rather than the date it had performed the services. Id. at 307, 313, aff'g United States
v. West Virginia, 765 F.2d 1028, 1030 (4th Cir. 1985) (establishing accrual date of
prejudgment interest). This award put the United States in the same position it would

26
Nebraska also cites Reyes-Mata v. IBP, Inc., 299 F.3d 504 (5th Cir. 2002),
and Castrignano v. E.R. Squibb & Sons, Inc., 900 F.2d 455 (1st Cir. 1990), in
support of its position, but those cases are not on point since they arose under state
law and involved state prejudgment interest statutes.

-43-
have been in if West Virginia had fulfilled its obligations, see Restatement (Second)
of Contracts § 347 (describing expectation interest), for it received the amount the
state had contracted to pay, plus compensation for the loss of the use of its money
during the time it was wrongfully withheld. Awarding prejudgment interest dating
back to the first performance by the United States would have overcompensated it
because West Virginia's debt was not due until the date of billing. In other words, the
United States' expectation interest was only to be paid on the contract date.

Here, the Commission made periodic payments in furtherance of the licensing
process beginning in 1987, and the evidence supports the district court's finding that
the entire value of these funds was wasted by Nebraska's breach. Full compensation
requires not just an award of the principal value of the funds, but also compensation
for the Commission's loss of their use. The court tried to put the Commission in the
position it would have been in had Nebraska not been selected to host the radioactive
waste disposal facility, for the Commission would never have given up the funds or
work credits in question without relying on Nebraska's performance. Full protection
of the Commission's reliance interest requires that it be compensated for the entire
period that it was without the use of its funds. See id. § 344(b) ("[Reliance interest]
is [the promissee's] interest in being reimbursed for loss caused by reliance on the
contract by being put in as good a position as he would have been in had the contract
not been made."). Awarding prejudgment interest from the date the Commission
made payments in reliance on Nebraska's performance achieves the goal of full
compensation. We conclude that the district court did not abuse its discretion in its
award.

III.

After lengthy proceedings in the district court and multiple appeals before
different panels of this court, the issues have been fully presented. We have carefully
examined the extensive record and the arguments of the parties, and for the reasons
cited we conclude that the district court did not err in striking Nebraska's demand for
a jury trial, in finding that Nebraska breached its good faith obligation under the

-44-
Compact, in exercising its discretion in fashioning monetary relief instead of an
injunction, in its awards of damages and interest, or in any other respect relevant to
this appeal. The judgment of the district court is therefore affirmed.

______________________________

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