Public Service Company of Colorado v. Shoshone-Bannock Tribes Kelsey Edmo, Sr. Captain J. Weisbacher, Acting Chief of Tribal Police

dissenting:

Public Service Company of Colorado (“PSC”) originally came to federal court complaining of the Shoshone-Bannock Tribes’ (the “Tribes”) total ban on transportation across reservation land of spent nuclear fuel. In my view, PSC’s suit has become moot because the Tribes have completely eliminated the total ban complained of by PSC. Moreover, the facts of this case do not fit within any of the exceptions to the mootness doctrine. • I therefore respectfully dissent.

In October of 1991, the Tribes’ police halted a PSC shipment of spent nuclear fuel waste at the reservation border. The police were acting under a tribal resolution that placed a total ban on such shipments. PSC’s complaint challenged the validity of this tribal ban on nuclear shipments across the reservation.

During the pendency of this appeal, the Tribes, through legislation, replaced the total ban on transportation of nuclear waste with a moderate and comprehensive scheme to merely regulate such transportation. The amended regulations allow transportation of nuclear waste across reservation lands, so long as the transporters obtain a permit from the Tribes, notify the Tribes of impending shipments, and do…

Opinion by Judge SCHROEDER; Dissent by Judge PREGERSON.

The Public Service Company of Colorado (“PSC”) sued the Shoshone-Bannock Tribes and certain individual tribal officers, alleging that the Tribes’ attempts to regulate PSC’s shipments of spent nuclear fuel across the Shoshone-Bannock reservation were preempted by the Hazardous Materials Transportation Act, 49 U.S.C.App. §§ 1801 et seq. (West 1976 & Supp.1994) (“HMTA”). The district court held that the suit was barred by the Tribes’ sovereign immunity and PSC appeals. We reverse on the merits of the sovereign immunity claim, after first considering the Tribes’ contention that the controversy is moot.

I. Background

In the 1980s, PSC shipped spent nuclear fuel from its Fort St. Vrain Nuclear Power Plant in Plattville, Colorado to the Department of Energy’s Idaho Chemical Processing Plant pursuant to the terms of a contract between PSC and the Department of Energy. En route, these shipments crossed over *1205 the Fort Hall Indian Reservation, owned by the Shoshone-Bannock Tribes. In October of 1991, acting pursuant to 1991 tribal resolution ENVR-91-0050, Shoshone-Bannock police halted a PSC shipment at the reservation border.…

30 F.3d 1203 39 ERC 1211 , 24 Envtl. L. Rep. 21 ,286 PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff-Appellant, v. SHOSHONE-BANNOCK TRIBES; Kelsey Edmo, Sr.; Captain J. Weisbacher, Acting Chief of Tribal Police, Defendants-Appellees. No. 92-35206. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 5, 1993. Decided July 27, 1994. David W. Kerber, Kerber & Sasz, P.C., and Salie B. O'Malley, Salie B. O'Malley & Associates, P.C., Denver, CO, for plaintiff-appellant. Jeanette Wolfley, Shoshone-Bannock Tribes, Fort Hall, ID, for defendants-appellees. David C. Shilton, U.S. Dept. of Justice, Washington, DC, for amicus curiae. Appeal from the United States District Court for the District of Idaho. Before: GOODWIN, SCHROEDER and PREGERSON, Circuit Judges. Opinion by Judge SCHROEDER; Dissent by Judge PREGERSON. SCHROEDER, Circuit Judge: 1 The Public Service Company of Colorado ("PSC") sued the Shoshone-Bannock Tribes and certain individual tribal officers, alleging that the Tribes' attempts to regulate PSC's shipments of spent nuclear fuel across the Shoshone-Bannock reservation were preempted by the Hazardous Materials Transportation Act, 49 U.S.C.App. Secs.…