Abraham

The United States Department of Energy (DOE) appeals the district court’s grant of summary judgment to the Natural Resources Defense Council, Confederated Tribes and Bands of the Yakama Nation, Snake River Alliance, and Shoshone-Bannock Tribes (collectively NRDC) in their action to obtain a declaration that DOE Order 435.1 is at least partially invalid. As we noted when the dispute was first before us in an attempt to obtain direct appellate review of the Order, “[tjhis case involves ... Order 435.1, together with its Manual and Implementation Guide, which provide (among other things) a process for determining whether certain radioactive waste streams are ‘waste incidental to reprocessing’ that are not considered ‘high-level waste.’ ” Natural Res. Def. Council, Inc. v. Abraham, 244 F.3d 742, 742 (9th Cir.2001) (NRDC I).

We then determined that we did not have direct appellate jurisdiction, and transferred the petition, together with all issues of standing, ripeness and, of course, the merits, to the district' court. Id. at 747-48 . The district court determined that the case was ripe and decided the merits against DOE. We do not agree with the ripeness determination and,…