United States v. Peter Morros, and State of Nevada R. Michael Turnipseed Nevada Agency for Nuclear Projects

268 F.3d 695 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT v. PETER MORROS, DEFENDANT, AND STATE OF NEVADA; R. MICHAEL TURNIPSEED; NEVADA AGENCY FOR NUCLEAR PROJECTS, DEFENDANTS-APPELLEES No. 00-17330 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 14, 2001 Filed October 15, 2001 [Copyrighted Material Omitted] John Cruden, Acting Assistant Attorney General; Steven G. Bartell, David C. Shilton, and Jared A. Goldstein, Attorneys, Department of Justice, for plaintiff-appellant United States. Frankie Sue Del Papa, Attorney General; Paul G. Taggart, Deputy Attorney General, for defendants-appellees Director of Nevada Department of Conservation Resources and the Nevada State Engineer. Frankie Sue Del Papa, Attorney General; Marta A. Adams, Senior Deputy Attorney General, for defendant-appellee Nevada Agency for Nuclear Projects. Appeal from the United States District Court for the District of Nevada; Roger L. Hunt, District Judge, Presiding. D.C. No. CV-00-268-RLH Before: Hug, Jr. and T.G. Nelson, Circuit Judges, and Shadur, * District Judge. Opinion by Judge T.G. Nelson; Dissent by Judge Hug T.G. Nelson, Circuit Judge: 1 The United States…

Opinion by Judge T.G. NELSON; Dissent by Judge HUG

The United States appeals the district court’s decision to abstain from deciding whether the Nevada State Engineer’s denial of the United States’ water permit applications is preempted by federal law. We hold that abstention was improper and remand for adjudication on the merits.

I

FACTS AND DISTRICT COURT PROCEEDINGS

Congress passed the Nuclear Waste Policy Act (“NWPA” or “the Act”) 1 in 1982 in order to “establish a schedule for the siting, construction, and operation” 2 of a national nuclear waste repository. Although the Act originally contemplated that the Secretary of Energy would recommend to the President three potential sites for site characterization, 3 Congress amended it in 1987 to designate Yucca Mountain, Nevada, as the sole site characterization location. 4 Since that time, substantial amounts of money and effort have been expended to evaluate Yucca Mountain’s suitability and to prepare it for use as a repository in the event that the President and Congress ultimately designate it for that purpose.

The Yucca Mountain site characterization activities require water. Realizing that the current water permits expire…

Dissenting:

I respectfully dissent. The majority opinion concludes that Younger abstention is inappropriate here because that doctrine aims to avoid federal-state conflict and such conflict has been “raging for over ten years” in this case. This broad characterization of Younger overlooks the heart of the doctrine and that the circumstances here fall squarely under the concerns warranting such abstention.

While the majority correctly recognizes that the United States and the state of Nevada have litigated issues involving the Yucca Mountain site for years, this does not render abstention under Younger disingenuous. Younger stresses respect for comity and federalism, not just generally, but specifically in the form of “proper deference to a state’s interest in ongoing proceedings in its own forums, and deference to a state judiciary’s power to consider constitutional claims.” United States v. Ohio, 614 F.2d 101, 104 (6th Cir.1979) (citing Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 , 97 S.Ct. 1898 , 52 L.Ed.2d 513 (1977)). Accordingly, an ongoing controversy here between the federal and state governments does not render Younger inapplicable where a federal court…