ELR Citation: ELR 20944
No(s). s. 92-1240, -1476 (8th Cir. Apr 14, 1993)

The court holds that the Hazardous Materials Transportation Act (HMTA) preempts an Indian community's tribal ordinance that regulates shipments of nuclear materials across tribal reservation land, and the district court properly granted a nuclear utility company's motion to enjoin the ordinance. The utility company operates a nuclear plant near the Indian community, and the only current ground access to the plant is provided by a railroad line and a county road, both of which cross the reservation. The ordinance imposed significant licensing requirements on transporters and authorized the community's tribal council to issue licenses and to impose $1 million civil fines for willful violations of the ordinance.

The court first holds that the ordinance, on its face, varies substantially from the requirements of the HMTA, and is an obstacle to the execution of the HMTA's goals of avoiding potential risks from unintentional releases of hazardous materials to life, property, and the environment, and the achievement of greater uniformity in regulating the transport of such materials. The HMTA does not require a transportation license for individual shipments of radioactive materials. Further, Nuclear Regulatory Commission regulations under the HMTA only require 10-day written notice of shipment. Moreover, two other federal circuit courts of appeals have found the HMTA to preempt regulatory schemes that were far less intrusive than that imposed by the community's ordinance.

The court holds that the district court properly concluded that the community's sovereign immunity did not preclude enjoining the ordinance or the need to exhaust tribal administrativeremedies. In resolving to enforce the ordinance, the community's tribal council was acting to enforce an ordinance that the community had no authority to enact. By acting beyond the scope of their authority, the council members placed themselves outside of the community's sovereign immunity. Thus, the district court did not err in concluding that it had jurisdiction over the council members, and in denying the community's motion to dismiss. Moreover, the district court had an independent source of jurisdiction under HMTA §112, which expressly subjects Indian tribes to the Act's preemption rules and constitutes an express waiver of tribal sovereignty. The court holds that the district court did not err in not requiring the utility company to exhaust all tribal community remedies before proceeding to federal court, because the only tribal community remedies are those created in the ordinance itself, and those remedies are void by virtue of the ordinance being preempted.

Finally, the court holds that the district court correctly applied the Eighth Circuit's four-factor test for determining when to issue a preliminary injunction. The district court reviewed the evidence and considered the community's arguments as to the delays caused by the ordinance's 180-day notice period and concluded that the delays posed a real threat to the utility's ability to monitor the plant's operations and, in turn, irreparable harm to the utility. The record reveals that the district court's factual conclusions were not clearly erroneous. The court also holds that the district court did not improperly balance the harms by failing to give the community the "necessary presumption of constitutionality," because the district court simply assumed that the community would enforce the ordinance as written and refused to speculate that the community and the utility company might someday enter into negotiations and agree on a less burdensome regulatory scheme. The court holds that the district court's injunction did not strip the community of its sovereign authority to regulate potentially dangerous activities within reservation boundaries. The ordinance is preempted simply because it is not a legitimate exercise of the community's sovereign powers. The community remains free to regulate activities within the reservation for the protection of the health, safety, economic interests, spiritual needs, and aesthetic desires of the community. Finally, the court holds that the previous determination that the ordinance is preempted confirms the district court's determination that the utility was likely to succeed on the merits.

[The district court's opinion is published at 22 ELR 20747.]

Counsel for Plaintiff-Appellee
Timothy Thorton
Briggs & Morgan
80 S. 8th St., Minneapolis MN 55437
(612) 339-0661

Counsel for Defendant-Appellant
William Hardacker
Kurt BlueDog Law Office
5001 W. 80th St., Minneapolis MN 55437
(612) 893-1813

Gibson, J.: (before Magill and Van Sickle,^* JJ.)