United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
case concerns the shipment and/or storage of weapons-grade
plutonium allegedly in violation of, inter alia, the
guidelines of the National Environmental Protection Act of
1969, 42 U.S.C. § 432 et seq.
(“NEPA”). Before the Court is Plaintiff the State
of Nevada's (“Nevada”) motion for leave to
file an amended complaint in light of revelations after the
initial complaint in this case (“Motion for
Leave”). (ECF No. 126.) The Court will grant the Motion
for Leave in part and deny it in part, as explained below.
brought this action originally challenging the federal
government's (“Government”) plan to ship one
metric ton of weapons-grade plutonium from the Savannah River
Site (“SRS”) in South Carolina to the Nevada
National Security Site (“NNSS”) (“Proposed
Action”). (ECF Nos. 1, 2.) On November 30, 2018, Nevada
filed a motion for preliminary injunction (“PI
Motion”) seeking to prevent the Government, through its
Department of Energy (“DOE”) from shipping the
plutonium to NNSS before a ruling on the merits of its case.
(ECF No. 2.) The Court held an evidentiary hearing on the PI
Motion on January 17, 2019. (E.g., ECF No.
the Court issued its ruling on the PI Motion, the Government
submitted a Notice of New Information 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.) The Government also
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.) Later the same day, the Court denied
Nevada's PI Motion on its merits (“PI
Order”). (ECF No. 62.) Nevada filed on interlocutory
appeal of the PI Order on February 4, 2019. (ECF No. 65.)
subsequently file a motion for preliminary injunction pending
appeal (“PI Appeal Motion”). (ECF No. 69.) The
Court denied the PI Appeal Motion as moot based on the
Government's information and representation that no
further shipments would be made to NNSS. (ECF No. 77.) The
Court also later entered an order staying this case pending
the Ninth Circuit Court of Appeals' decision on
Nevada's interlocutory appeal. (ECF No. 112.) On appeal,
the Ninth Circuit denied Nevada's request for preliminary
injunction as moot because Nevada's injunction sought
only to halt shipments that were already completed-not
also to have such plutonium removed from NNSS. (ECF No. 115
then filed the Motion for Leave seeking to amend its
complaint. (ECF Nos. 126, 126-1.) The proposed Amended
Complaint (“AC”) asserts six
“claims.” (ECF No. 126-1.) The first four
“claims” seek declaratory judgment that the
Government violated 42 U.S.C. § 4332(C), 40 CFR
§§ 1501.4(b) and 1508.9, as well as 10 CFR §
1021.314. (Id.) The AC otherwise seeks to: (1)
request the remedy of an order/injunction to remove the
one-half metric ton of plutonium that unbeknownst to Nevada
had been shipped to NNSS and now stored there; and (2) to add
two new claims for nuisance-one based on the federal common
law and the other under the Price-Anderson Act, 42 U.S.C.
§ 2210(n)(2). (Id.) The Government filed a
response opposing the Motion for Leave (ECF No. 131) and
Nevada replied (ECF No. 132).
the time for amendment as a matter of course has expired, a
party may amend its complaint only by leave of the court or
by the adverse party's written consent. Fed.R.Civ.P.
15(a)(2). The court has discretion to grant leave and should
freely do so “when justice so requires.” Id.;
see also Allen v. City of Beverly Hills, 911 F.2d 367,
373 (9th Cir. 1990); Chodos v. West Pub. Co., 292
F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with
“extreme liberality”). Nonetheless, courts may
deny leave to amend if it will cause: (1) undue delay; (2)
undue prejudice to the opposing party; (3) the request is
made in bad faith; (4) the party has repeatedly failed to
cure deficiencies; or (5) the amendment would be
futile. Leadsinger, Inc. v. BMG Music
Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
proposed amendment is futile if no set of facts can be proved
under the amendment that would constitute a valid claim or
defense. Farina v. Compuware Corp., 256 F.Supp.2d
1033, 1061 (9th Cir. 2003) (quoting Miller v.
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
The standard of review is akin to that undertaken by a court
in determining the sufficiency of a pleading challenged in a
Rule 12(b)(6) motion to dismiss. Id. (quoting
Miller, 845 F.2d at 214). Under this standard, a
district court must accept as true all well pleaded factual
allegations in the complaint; however, legal conclusions are
not entitled to the assumption of truth. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). When the claims in a
complaint have not crossed the line from conceivable to
plausible, plaintiff's complaint must be dismissed.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
Court begins its analysis from the premise that leave to
amend shall be freely given and with liberality. Within this
framework, the Court considers the Government's
contention that (1) Nevada should not be permitted to amend
its complaint to seek removal of the plutonium from NNSS and
(2) the additional claims for nuisance under the federal
common law and the Price-Anderson Act would be futile. (ECF
No. 131.) The Court addresses each of the
Government's arguments in turn.
Amendment to Seek Removal of ...