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State v. United States

United States District Court, D. Nevada

April 30, 2019

UNITED STATES; et al., Defendants.




         Since the Court's last order (“PI Pending Appeal Order”) which resolved Plaintiff State of Nevada's motion to enjoin DOE from shipping any plutonium to the Nevada National Security Site (“NNSS”) until its appeal of this Court's order denying its request for preliminary injunctive relief (“PI Order”) is resolved (“PI Appeal Motion”), the parties have filed several motions. These motions are: (1) South Carolina's motion for clarification ((“Motion for Clarification”) (ECF Nos. 87, 90 (errata)); (2) South Carolina's renewed motion to transfer (ECF No. 88); (3) the Government's[1] motion for protective order (“Motion for Protective Order”) (ECF No. 92); (4) the Government's motion to dismiss (“MTD”) (ECF No. 93); (5) Nevada's emergency motion to stay briefing on the MTD (ECF No. 97); (6) Nevada's counter motion for leave to conduct discovery (ECF No. 108); and (7) Nevada's counter motion requiring the Government to file administrative records (ECF No. 109).[2] It is apparent from the pending motions that a stay pending appeal is warranted. Thus, for the reasons discussed herein, the Court will sua sponte impose a stay.


         Nevada filed this lawsuit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq, to challenge the Government's proposed action to transport from Savannah River Site (“SRS”) in South Carolina one metric ton of defense-grade plutonium for staging at NNSS and/or the Pantex Plant in Carson County, Texas (“Pantex”) before shipment to Los Alamos National Laboratory (“LANL”) in Los Alamos, New Mexico (“Proposed Action”)[3] without a supplemental environmental impact statement (“EIS”). (ECF No. 1; ECF No. 27-3 (DOE/NNSA's Supplement Analysis) at 9, 23.) The Government evaluated safety and security issues relating to the Proposed Action in a DOE/NNSA Supplemental Analysis (“SA”), which relied upon prior EISs concerning these matters. (See ECF No. 62 (discussing the SA).) The additional background facts are recited in the Court's order (“PI Order) denying Nevada's motion for preliminary injunction (“PI Motion”) and will not be fully recounted here. (ECF No. 62 at 2-3.)

         As relevant to the pending motions, the crux of Nevada's claim is that the prior EISs and thus the SA are inadequate for evaluating the current risks to Nevada and the Government needs to perform a supplemental EIS to comply with the National Environmental Protection Act of 1969 (“NEPA”), 42 U.S.C. 432 et seq. and other applicable regulations. (ECF No. 1 at 5, 9, 14-15; ECF No. 34 at 12-13.) The Complaint particularly asserts claims for: (1) violation of NEPA; (2) violation of implementing regulations of the Council of Environmental Quality, 40 CFR § 1502.9(c)(1); and (3) violation of DOE's NEPA regulations, 10 CFR § 1021.314(a). (ECF No. 1 at 4, 17-18.) Nevada requests declaratory and injunctive relief, including a “declaration and order that the Defendants' actions violate NEPA, and CEQ and DOE implementing regulations” and an “order setting aside and vacating the SA.” (Id. at 18.)

         Nevada's PI Motion sought to enjoin any shipment of plutonium from SRS to NNSS until its claims are decided on the merits. (ECF Nos. 2, 62.) The Court subsequently issued the PI Order (ECF No. 62) denying the PI Motion because Nevada failed to show a likelihood of irreparable harm in the absence of preliminary relief and a balance of the equities tip in its favor (id. at 5-16.)

         In the meantime, after completion of briefing on the PI Motion and before the issuance of the PI Order, the Government submitted a Notice of New Information (“Notice”) with a sworn declaration providing that shipment of one-half metric ton of plutonium to Nevada under the Proposed Action had been completed prior to November 2018-the month in which Nevada filed this lawsuit. (ECF Nos. 56, 56-1.) In response to the Court's minute order for status report, the Government affirmed that no more plutonium will be shipped to NNSS as part of the Proposed Action. (ECF No. 58 at 2.) The Government informed that all other shipments of plutonium under the Proposed Action “are going elsewhere.” (Id.) The Government also reaffirmed this information per declaration of Bruce M. Diamond, General Counsel for the NNSA, in response to the PI Appeal Motion. (ECF No. 74-1.) Based on such representation, the Court denied the latter motion. (ECF No. 77 at 3-5.)

         In the same order, the Court also denied South Carolina's motion to transfer venue as moot-but without prejudice, finding that the motion “is inextricably related to the matter that is now on appeal [and thus] this Court lacks jurisdiction to decide that motion[.]” (Id. at 5.) South Carolina construes the Court's ruling as “effectively end[ing] the case as moot pending an opinion from the Ninth Circuit” and on this basis sought clarification in response to Nevada's proposed discovery plan. (ECF No. 87 at 2-4.) However, the Court did not find that this case has “effectively ended.”


         The parties' filings since the Court issued the PI Pending Appeal Order crystalize the parties' dispute relating to the status of this case in general and to the scope of discovery in particular-whether Nevada is entitled to extra-record discovery. Nevada contends that its appeal of the PI Order is interlocutory and the Court “retains jurisdiction over the merits despite the appeal” which entitles it to proceed with discovery. (ECF No. 95 at 4.) Nevada further argues that it is entitled to discovery beyond the administrative record. (Id. at 9.) As noted, South Carolina insists that the case “effectively ended [] as moot” in light of the Court's denial of its motion to transfer and no discovery should be had (ECF No. 87 at 2-4), but any discovery should be limited to the administrative record (ECF No. 89 at 2-3). The Government does not appear to agree with South Carolina as to the status of case or with Nevada as to the scope of discovery. This is evident in the Government's filing of its MTD and of its Motion for Protective Order. In the latter filing, the Government argues that discovery should be limited to the administrative record and extra-record discovery should not be permitted absent a ruling by this Court after full briefing on any motion to conduct discovery.[4] (ECF No. 92 at 6.)

         While Nevada takes the position that the Court “retains jurisdiction over the merits, ” Nevada filed an emergency motion to stay briefing on the Government's MTD until the Ninth Circuit resolves its appeal.[5] (ECF No. 97 at 4-6.) Nevada insists that because the Government raises the same defenses in response to the appeal and in its MTD-standing and mootness-the Court lacks jurisdiction to resolve the MTD. (Id.) But Nevada cannot have it both ways-if the case should proceed on the merits to allow Nevada to engage in discovery-then the Government should be permitted to assert threshold challenges to preclude resolution on the merits. Regardless, the Court will stay this case because the resolution of the MTD may materially affect Nevada's appeal and because a stay would conserve judicial economy and would not be prejudicial.

         A. Effect of Nevada's Interlocutory Appeal

         "The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co.,459 U.S. 56, 58 (1982). Thus, an appeal suspends the power of the court below to proceed further in a case, except to take such steps as will assist the appellate court in its determination. Hovey v. McDonald,109 U.S. 150, 157 (1883); see Stein v. Wood,127 F.3d 1187, 1189 (9th Cir. 1997) ("[T]the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal."). While "[t]he district court retains jurisdiction during the pendency of an appeal to act to preserve the ...

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