ELR Citation: ELR 20349
No(s). 89-15272 (9th Cir. Nov 14, 1990)

The court holds that Nevada does not have standing to challenge the Bureau of Land Management's issuance of a right-of-way authorizing the Department of Energy to conduct site characterization studies of the Yucca Mountain area as a potential repository for high-level radioactive waste and spent nuclear fuel. The court first holds that Nevada's standing cannot be based on alleged violations of the Federal Land Policy and Management Act, the National Environmental Policy Act, and the U.S. Constitution resulting from the issuance of the right-of-way. Nevada has failed to show how it has been injured by these alleged violations. The federal government, not Nevada, owns the land in question. Nevada did not allege in its complaint that it uses the land surrounding Yucca Mountain for any purpose. The court next holds that Nevada's standing cannot be based on Nevada's asserted sovereign interest. The decision whether to construct the repository at Yucca Mountain is many years and numerous procedural hurdles away. Any claim that site characterization will inevitably lead to the designation of Yucca Mountain as a repository site is mere speculation. The court holds that Nevada's standing cannot be based on a proprietary interest. Nevada does not own the affected property, nor has it alleged that it uses the property for any purpose. Finally, the court holds that Nevada's standing cannot be based on Nevada's parens patriae capacity to advance the interests of its citizens. The U.S. Supreme Court has held that a state does not have standing as parens patriae to bring an action against the federal government.

[The district court's decision is published at 19 ELR 20944.]

Counsel for Plaintiff-Appellant
Harry W. Swainston, Deputy Attorney General
Nuclear Waste Project Office, Capital Complex, Carson City NV 89710
(702) 687-5867

Counsel for Defendant-Appellant
George W. Van Cleve
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000