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States v. United States

United States District Court, D. Nevada

October 21, 2019

UNITED STATES; et al., Defendants.



         I. SUMMARY

         This 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.


         Nevada 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”)[1] 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. 19.)[2]

         Before 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.)

         Nevada 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 at 6.)

         Nevada 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).


         After 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.[4] Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).

         A 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 (2007).


         The 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.

         A. Amendment to Seek Removal of ...

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