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Nevada v. Burford

Citation: 19 ELR 20944
No. No. CV-S-88-203-PMP (RJJ), 708 F. Supp. 289/29 ERC 1440/(D. Nev., 01/27/1989, 03/09/2089)

The court holds that Nevada lacks standing to challenge the Bureau of Land Management's (BLM's) issuance of a right-of-way authorizing the Department of Energy (DOE) to study the Yucca Mountain area as a potential repository of high-level radioactive waste and spent nuclear fuel. The court holds that Nevada has failed to show any actual or threatened injury resulting from BLM's action. Nevada does not allege that the state uses these lands, but instead contends that BLM's issuance of the right-of-way violates the Federal Land Policy and Management Act (FLPMA), and that grave consequences will befall the state and its citizens if Yucca Mountain is utilized as a repository. These generalized grievances are insufficient to constitute injury-in-fact. That the citizens of Nevada will have a disproportionate risk of accident is also insufficient to sustain standing. Even assuming that BLM's action violates FLPMA or the Nuclear Waste Policy Act (NWPA), any risks created by the establishment of a repository will be justiciable, if at all, after all preliminary studies and procedural steps pursuant to the NWPA are completed. The court holds that Nevada does not have standing based on its rights under the NWPA to participate in the site characterization process, since BLM's action does not prevent Nevada from participating in the process or conducting its own studies. The court holds that Nevada's request for an injunction requiring BLM to grant a right-of-way to a firm retained by Nevada to perform an independent site characterization is not ripe, since BLM has not issued a final administrative decision. The court holds that BLM's issuance of the right-of-way to DOE in the face of Nevada's stated disapproval does not violate the equal footing doctrine or infringe on Nevada's rights under the Tenth Amendment.

Counsel for Plaintiff
Harry W. Swainston, Deputy Attorney General
Heroes Memorial Bldg., Carson City NV 89716
(702) 885-4170

Counsel for Defendants
Allan D. Brock
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2704