ELR Citation: ELR 20747
No(s). 3-91-783 (D. Minn. Dec 23, 1991)

The court holds that the Hazardous Materials Transportation Act (HMTA) and the Atomic Energy Act (AEA) preempt an Indian tribe's ordinance that would regulate a nuclear power plant operator's efforts to transport various radioactive materials to the plant. A Minnesota power company operates the plant, which is located adjacent to the reservation of the Indian tribe. The only land access to the plant is by rail and a county road, both of which cross the reservation. The tribal community passed the Nuclear Radiation Control Ordinance to regulate the power company's efforts to transport radioactive materials necessary for the facility's operation and to control the company's proposed construction of a waste management facility. Plaintiff power company appealed the Department of the Interior's (DOI's) decision that the ordinance complied with the tribal community's constitution and bylaws, which temporarily suspended the effect of DOI's decision pending appeal. Subsequently, the tribal community formally resolved to enforce the ordinance anyway, and DOI responded to plaintiff that it lacked authority to enjoin the tribe from enforcing the ordinance. The power company subsequently obtained a temporary restraining order and now seeks to enjoin the tribal community from enforcing the ordinance.

The court first holds that plaintiff has exhausted its administrative remedies. Although the HMTA expressly authorizes review by DOI in cases such as this, and there is no evidence that plaintiff filed an application with DOI pursuant to the HMTA, plaintiff is entitled to seek an injunction. The court next holds that plaintiff has shown the necessary criteria for issuing a preliminary injunction. First, the court finds that enforcement of the ordinance poses a real and substantial threat that the plaintiff will suffer irreparable harm. Under the terms of the ordinance, the plaintiff must apply 180 days in advance of any shipment of radioactive material for a transportation license. Under the ordinance, radioactive material is broadly defined, and has already delayed plaintiff from shipping composite samples of radioactive water for outside testing, which is critical to determining the radioactive content of water discharged into the Mississippi River. Moreover, the tribal community's willingness to cooperate and not enforce the ordinance in strict adherence to its terms does not eliminate the potential injury to plaintiff if the ordinance is enforced.

The court next finds that the irreparable harm to be suffered by the plaintiff in the absence of an injunction outweighs the harm to the tribal community from enjoining the ordinance. Although placing unlawful restrictions on the sovereignty and authority of the tribal community could result in cognizable injury, the tribal community's ordinance is likely preempted by the HMTA and the AEA. The court next finds that maintaining the safe operation of the power plant and the health and safety of the tribal community is best served by issuing an injunction. Finally, the court finds that because the HMTA and the AEA likely preempt significant portions, if not all, of the tribal community's ordinance, plaintiff has shown a likelihood of success on the merits sufficient to issue a preliminary injunction. The HMTA expressly preempts any requirement of an Indian tribe that is not substantively identical to any provision of or regulation promulgated under the Act. The tribal community's ordinance defines "radioactive material" broader than the definition in the HMTA. In addition, the ordinance's 180-day permit application requirement for each shipment and $1,000 application fee are substantially greater regulatory burdens than under the HMTA.

Counsel for Plaintiff
Michael J. Ahern, Michael J. Bradley
Moss & Barnett
90 S. 7th St., 4800 Norwest Ctr., Minneapolis MN 55402
(612) 347-0300

Counsel for Defendants
Kurt V. BlueDog, William J. Hardacker
Bluedog Law Office
5001 W. 80th, Bloomington, MN 55437
(612) 893-1813

Lonnie F. Bryan, Ass't U.S. Attorney
234 U.S. Courthouse, 110 S. 4th St., Minneapolis MN 55401
(612) 332-8961