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Nebraska v. Central Interstate Low-Level Radioactive Waste Comm'n

ELR Citation: 24 ELR 20434
Nos. No. 4:CV93-3042, 834 F. Supp. 1205/(D. Neb., 10/08/1993)

The court holds that a challenge by the state of Nebraska to the siting of a regional low-level radioactive waste storage facility in Boyd County, Nebraska, is barred by a regional compact's time limits on suits and the doctrines of estoppel and laches. Ruling on a motion for summary judgment by the compact commission and the site operator, the court first holds that there are no issues of material fact. The court next holds that it has federal question jurisdiction under 28 U.S.C. §1331. The U.S. Supreme Court held in Cuyler v. Adams, 449 U.S. 433 (1981), that because congressional consent transforms an interstate compact within the Compact Clause of the U.S. Constitution into a law of the United States, the construction of an interstate agreement sanctioned by Congress under the Compact Clause presents a federal question. In this case, construction of the regional compact's provisions is inextricably interwoven with any resolution of the state's claims. The court holds that the state has parens patriae standing, because it is alleging that residents of Boyd County and the state, as a member of the compact, will be forced to accept low-level radioactive waste to the detriment of the health and welfare of residents of the county and the sovereignty of the state, and that such a threat is real and present.

Turning to the defendants substantive arguments, the court holds that the action is barred by the compact's 60-day limitations period. The court finds that the commission made a final siting decision, because its chairman, the representative from Nebraska, wrote each member of the Nebraska legislature that selection of the Boyd County site was final. Also, in February 1990, almost three years before the state commenced suit, the site operator gave the state written notice that the site selection was final. The court holds that this notice caused the 60-day limitation period to begin to run. The court further holds that the decision was final, because the commission's ruling was definitive, the ruling has legal force, and timely review of the siting decision would have furthered the interests of the compact members. The court rejects the state's argument that the commission failed to give notice of a decision on community consent, because there is no legal basis for concluding that the commission was required to separately and independently decide that community consent had been obtained. Furthermore, the Nebraska governor, who originated the concept of community consent, found that community consent existed. The court holds that the limitations period is fair, because the governor was served with an extensive legal memorandum setting forth the compact commission's position.

The court holds that the state's action is estopped, because the governor of Nebraska made specific and repeated public statements that community consent had been obtained, the defendants did not have access to the "truth" that it had not been obtained, and the defendants have suffered harm by relying to their detriment on the governor's statements and representations. The court holds that the state's action is also barred by the doctrine of laches, because the state's delay of almost three years in bringing suit was unreasonable and inexcusable.

Counsel for Plaintiff
Linda Willard, Ass't Attorney General
Attorney General's Office
2115 State Capitol
P.O. Box 98920, Lincoln NE 68509
(402) 471-2682

Counsel for Defendants
Alan E. Peterson
Cline, Williams, Wright, Johnson & Oldfather
1900 Firstier Bank Bldg., Lincoln NE 68508
(402) 474-6900