UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


US ECOLOGY, INC.

v.

DOI


99-5192a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: This case involves a dispute over  the
availability of the so-called "Ward Valley Site" for poten- tial use
as a low-level radioactive waste ("LLRW") facility.  Ward Valley is a
1.7 square mile plot of the Mojave Desert  located just off I-40, 25
miles west of the Colorado River  separating Arizona from California.
Appellee the Federal  Government owns the site and appellant US
Ecology wants to  develop, build, and operate a LLRW facility on the
site as a  licensee for the State of California. The Federal Govern-
ment, however, has declined to transfer the land to the State  of
California, thus dashing US Ecology's hopes to proceed as  developer
and operator of a LLRW facility on the Ward  Valley Site.


In 1987, pursuant to the Southwestern Low-Level Radio- active Waste
Compact, California's Department of Health  Services ("CDHS")
identified the Ward Valley Site as the  preferred location for the
Compact's first regional LLRW  disposal facility. In 1988, the State
of California contracted  with US Ecology, Inc., a private company in
the business of  constructing and managing LLRW facilities around the
coun- try, to develop the site. On January 19, 1993, the outgoing 
Secretary of the Interior, Manuel Lujan Jr., issued a Record  of
Decision announcing his approval of the direct sale of the  Ward
Valley Site to the State of California for potential use  as a LLRW
facility. The sale and transfer of land never  happened, however.
Citing concerns that his predecessor  had not only subverted the
administrative process, but also  prematurely issued the Record of
Decision in direct violation  of a federal judge's temporary


Secretary of the Interior Bruce Babbitt rescinded Secretary  Lujan's
Record of Decision on February 18, 1993.


In January 1997, CDHS brought suit in the District Court  challenging
Secretary Babbitt's 1993 rescission. US Ecology  filed suit one month
later. Because both complaints raised  substantially similar claims,
the District Court consolidated  the cases. In March 1999, the
District Court granted defen- dants' motion for summary judgment on
all counts. See  California Dep't of Health Servs. v. Babbitt, 46 F.
Supp. 2d 13  (D.D.C. 1999). CDHS elected not to appeal the judgment of
 the District Court. As a result, only US Ecology is before  this


The current posture of the case bars this court from  reaching the
merits of the claims that were before the  District Court. This is so
because appellant US Ecology, now  on its own, does not have standing
to contest the Federal  Government's refusal to transfer the Ward
Valley land to the  State of California. Even were we to disagree with
the  District Court and find that Secretary Babbitt improperly 
rescinded the Record of Decision, appellant's alleged injury  would
not be redressable unless and until California accepted  transfer of
the disputed land and elected to proceed with the  Ward Valley
project. On the record at hand, appellant has  no grounds upon which
to claim that California will follow  these courses; indeed, appellant
could not make any concrete  assertions on these scores even were the
Federal Government  to now propose to transfer the Ward Valley land to
the state.  Absent a showing of redressability, US Ecology's appeal
must  be dismissed for want of standing. Accordingly, we vacate  the
District Court's judgment as to appellant and dismiss this  case for


I. Background


A. Factual Background


In 1987, California entered into the Southwestern Low- Level
Radioactive Waste Compact with Arizona, North Dako- ta, and South
Dakota pursuant to the Low-Level Radioactive 


Waste Policy Act Amendments of 1985, 42 U.S.C. ss 2021b- 2021j (1994).
The Act makes states accountable for their own  LLRW production and
disposal, and authorizes them to form  interstate compacts for the
establishment of regional LLRW  disposal facilities. 42 U.S.C. ss
2021c, 2021d. Under the  Southwestern Compact, California is
responsible for develop- ing and operating the group's first such
regional facility.  Cal. Health & Safety Code s 115255, art. 4(C)(1)
(West  1996). Prior to entering into the Compact, California had 
chosen appellant US Ecology as its license-designee to evalu- ate
potential sites, to aid in the land application process, and,  after
acquisition of the land, to develop, build, and operate its  LLRW
facility. US Ecology worked in conjunction with and  under the
oversight of CDHS, the agency charged with  managing disposal of


Beginning in 1987, CDHS, with the help of US Ecology,  filed a series
of school land indemnity applications pursuant  to 43 U.S.C. ss
851-852 (1986), seeking to acquire the Ward  Valley Site from the
Bureau of Land Management ("BLM").  In July of 1992, California
shifted its application strategy and  requested that BLM sell the Ward
Valley Site directly to the  state pursuant to the Federal Land Policy
and Management  Act ("FLPMA"), 43 U.S.C. ss 1701-1784 (1986), rather
than  under the school indemnity provisions. Under FLPMA,  BLM may at
its discretion grant an application for direct sale  if it finds the
transfer to be in the national interest and  "disposal of such tract
will serve important public objectives."  43 U.S.C. ss 1701(a),
1713(a)(3). Upon such a finding, BLM  must publish a Notice of Realty
Action, thereby providing  interested parties with notice and 45 days
in which to com- ment on the proposed transfer. See 43 C.F.R. ss
2711.1- 2(a), 2711.3-3 (1998). Only then may BLM proceed with the 


Before an agency takes any action that threatens the  environment, it
must also comply with the National Environ- mental Policy Act
("NEPA"), which requires the agency to  prepare and issue an
Environmental Impact Statement as- sessing any potential environmental
impacts of its proposed  action. National Environmental Policy Act of


s 4332(C) (1994). Under NEPA regulations, the agency  must file with
EPA the Final Environmental Impact State- ment along with public
comments received regarding the  proposed statement, which are then
published in the Federal  Register. See 40 C.F.R. ss 1506.9-.10
(1998). An agency  must wait at least 30 days following publication
before taking  any action based on the Final Environmental Impact
State- ment, after which time NEPA regulations require the agency  to
prepare a Record of Decision justifying its ultimate deci- sion. See
40 C.F.R. ss 1505.2, 1506.10(b).


US Ecology, in conjunction with BLM and CDHS, submit- ted the required
impact statement in September of 1989, and  BLM published the Final
Environmental Impact Statement  in May of 1991. Before BLM issued its
Record of Decision,  however, California shifted its school indemnity
application to  one for direct sale under FLPMA. In response, BLM pub-
lished a notice of intent to prepare a Supplemental Environ- mental
Impact Statement on September 11, 1992, to assess  any further
environmental impacts associated with acquisition  under the direct
sale provisions. See Notice of Intent to  Prepare Supplemental
Environmental Impact Statement, 57  Fed. Reg. 41,771 (1992). After a
period for comment, BLM  filed its Final Supplemental Environmental
Impact Statement  on December 28, 1992, beginning the 30-day waiting
period  set to end on January 27, 1993. At roughly the same time as 
it issued its notice of intent to prepare a Supplemental 
Environmental Impact Statement, the Department of the  Interior had
published a Notice of Realty Action notifying the  public that BLM was
considering transfer of the Ward Valley  Site to California pursuant
to FLPMA's direct sale provi- sions. In response, interested parties
lodged a multitude of  protests and three filed mining claims related


On January 7, 1993--only 10 days after filing its Final  Supplemental
Environmental Impact Statement with EPA-- Secretary Lujan announced
that there had been no need to  supplement the original Final
Environmental Impact State- ment, because, under NEPA, the method of
transfer would  not affect the potential environmental harm. He
converted  the Supplemental Environmental Impact Statement into a 


less formal Environmental Assessment, which does not re- quire a 30-day
post-publication waiting period, and issued a  Finding of No
Significant Impact. The Secretary also issued  a memorandum declaring
that, upon final disposition of the  three mining claims pending
before the Interior Board of  Land Appeals, he intended to dismiss the
Notice of Realty  Action protests, publish his Record of Decision
approving  direct sale, and issue a land patent transferring title of
the  Ward Valley Site to the State of California. The next day, 
appellant US Ecology wired $500,000 to a BLM-designated  account as


Not to be outdone, project opponents filed suit in the  United States
District Court for the Northern District of  California alleging that
the Department of the Interior had  violated the Endangered Species
Act by failing to designate  critical habitat for the desert tortoise.
The District Court  immediately issued a temporary restraining order
mandating  that the Department of the Interior was "[t]hereby tempo-
rarily restrained from transferring any BLM land in the  Ward Valley."
Desert Tortoise v. Lujan, No. 93-0114 (N.D.  Cal. Jan. 8, 1993) (order
granting temporary restraining  order). Despite the District Court's
order, Secretary Lujan  executed the Record of Decision at issue on
January 19,  1993--his last day in office. He did not, however, issue
a  patent in the land. Upon discovering that Secretary Lujan  had
executed the Record of Decision, the District Court  expanded its
order to prevent the Department from "execut- ing any document or
taking any other action" to effectuate  transfer of the Ward Valley
Site. Desert Tortoise, No.  93-0114 (N.D. Cal. Jan. 19, 1993) (order
extending temporary  restraining order). Less than one month later,
and in the  midst of three pending lawsuits, incoming Secretary
Babbitt  rescinded the Record of Decision. BLM later returned the 


B. Proceedings in the District Court


In early 1997, both CDHS and US Ecology filed separate  complaints
against Secretary Babbitt, Deputy Secretary of  the Interior John
Garamendi, the Department of the Interior 


itself, and the Bureau of Land Management. Because each  party alleged
substantially similar claims, the cases were  consolidated on October
27, 1997. On March 31, 1999, the  District Court granted the
defendants' motion for summary  judgment on the merits regarding all
of the consolidated  claims. See California Dep't of Health Servs., 46
F. Supp. 2d  at 13. By the time of the District Court's decision, Pete
 Wilson, whose administration had spear-headed the effort to  obtain
the Ward Valley Site, was no longer the Governor of  California. In
his stead was Gray Davis, the newly elected  Governor, who as
State-Controller had been a named plaintiff  in a pre-rescission suit
brought by opponents to undermine  sale of the Ward Valley Site. CDHS
officials, acting on  behalf of the State of California, chose not to
appeal the  District Court's decision, and this court has dismissed US
 Ecology's attempt to itself appeal the judgment against  CDHS. See US
Ecology, Inc. v. U.S. Dep't of Interior, No.  99-5192, 1999 WL
1006813, at *1 (D.C. Cir. Oct. 8, 1999) (per  curiam) (order of
motions panel dismissing CDHS appeal).  Thus, only US Ecology's appeal


A number of noteworthy events have arisen since the  District Court
issued its decision. On November 2, 1999,  DOI notified CDHS that it
was terminating further consider- ation of, and denying without
prejudice, CDHS's request for  direct sale of the Ward Valley Site.
See Processing Termi- nated: Request for Sale Denied, CACA 30582
(Dep't Interior  Nov. 2, 1999) (unpublished decision of the Department
of the  Interior), reprinted in Motion of Appellant US Ecology, Inc. 
Pursuant to Federal Rule of Appellate Procedure 10(E)(3)  and Request
for Judicial Notice, Exhibit B (Apr. 27, 2000).  DOI cited the fact
that CDHS Director Dr. Diana BontA had  not responded to a September
16, 1999 letter in which BLM  Deputy Director Tom Fry proposed
termination of CDHS's  still-pending sale request. The letter had
given the following  reasons for termination:


the State's decision to forgo an appeal from the adverse  decision in
District Court; the formation of the Atkinson  advisory group seeking
workable alternatives [to the 


Ward Valley facility]; the lack of funds in the State  budget for Ward
Valley activities; the apparent lack of  authority of DHS to acquire
land; and the substantial  steps, including tritium tests and
preparation of an SEIS,  that would be required to proceed with the
requested  sale.


Id. at 3. Also, in a related contract action against the United 
States, the Court of Federal Claims ruled that Secretary  Lujan's
Record of Decision had not created a contract be- tween CDHS and the
United States, and, a fortiori, had not  created any rights in US
Ecology as third-party beneficiary.  See US Ecology, Inc. v. United
States, No. 97-65L (Fed. Cl.  Mar. 27, 2000) (unpublished opinion).
Finally, on May 2,  2000, appellant US Ecology filed suit against the
State of  California in California state court alleging breach of
contract  for failing to use its best efforts to obtain and develop
the  Ward Valley Site. See US Ecology's Complaint, US Ecology,  Inc.
v. State of California, No. 747562 (Cal. Super. Ct. filed  May 2,
2000). In addition to damages, US Ecology seeks  from the state court
a writ of mandate ordering Governor  Davis and CDHS to take all steps
necessary to comply with  California's contract with US Ecology,
including requesting  rescission of the November 2, 1999 decision of
the Depart- ment of the Interior. See id. pp 73-81.


II. Analysis


Because plaintiff CDHS unquestionably had standing to  challenge
Secretary Babbitt's 1993 rescission, the District  Court had no
occasion to consider appellant US Ecology's  standing to do the same.
See Environmental Action v.  FERC, 996 F.2d 401, 406 (D.C. Cir. 1993)
("[O]nce one  petitioner has demonstrated standing we may permit the 
participation of others."). Article III's jurisdictional mandate  does
not disappear on appeal, however, and the "ability to  ride
'piggyback' on the State's undoubted standing exists only  if the
State is in fact an appellant before the Court." Dia- mond v. Charles,
476 U.S. 54, 64 (1986). Thus, as the sole  party now before us on
appeal, US Ecology must indepen-


dently demonstrate Article III standing. This it has not  done.


To establish the "irreducible constitutional minimum" for  Article III
standing, a party must show that it has suffered  an injury in fact,
that there exists a causal link between that  injury and the conduct
complained of, and that a favorable  decision on the merits will
likely redress the injury. Lujan v.  Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). "This  triad ... constitutes the core of Article
III's case-or- controversy requirement, and the party invoking federal
jur- isdiction bears the burden of establishing its existence."  Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04  (1998).
Because a deficiency on any one of the three prongs  suffices to
defeat standing, we address only US Ecology's  most obvious
failing--its inability to demonstrate that it is  " 'likely,' as
opposed to merely 'speculative,' that [its] injury  will be 'redressed
by a favorable decision.' " Defenders of  Wildlife, 504 U.S. at 561
(quoting Simon v. Eastern Ky.  Welfare Rights Org., 426 U.S. 26, 38,


Courts have been loath to find standing when redress  depends largely
on policy decisions yet to be made by govern- ment officials. This is
so, because the question of "[w]hether  [appellant's] claims of
economic injury would be redressed by  a favorable decision [in such
a] case depends on the unfet- tered choices made by independent actors
not before the  courts and whose exercise of broad and legitimate
discretion  the courts cannot presume either to control or to
predict."  Asarco Inc. v. Kadish, 490 U.S. 605, 615 (1989). When 
redress depends on the cooperation of a third party, "it  becomes the
burden of the [appellant] to adduce facts show- ing that those choices
have been or will be made in such  manner as to produce causation and
permit redressability of  injury." Defenders of Wildlife, 504 U.S. at


Appellant has not met this burden, admitting, as it must,  that, even
were the Department of the Interior to issue a  patent as US Ecology
requests, only the State of California is  capable of accepting title
and taking ownership of the land.  Secretary Babbitt's 1993 rescission
delayed California's appli-


cation for direct sale under FLPMA; the Department of the  Interior's
decision of November 2, 1999, terminated Califor- nia's application
for the Ward Valley Site. Whether and how  to comply with the
Low-Level Radioactive Waste Amend- ments and Southwestern Compact is
California's responsibili- ty alone. Certainly, we do not begrudge
appellant its disap- pointment at having invested--and perhaps
lost--time and  money in the Ward Valley project. But, such injury,
without  more, is not enough.


Appellant seeks refuge in a few lines of dicta found in this  court's
recent opinion in University Medical Center of South- ern Nevada v.
Shalala, 173 F.3d 438 (D.C. Cir. 1999). In that  case, appellant
University Medical Center ("UMC") chal- lenged the Department of
Health and Human Services' fail- ure to retroactively place UMC on a
list of eligible hospitals  entitled to pharmaceutical discounts from
participating drug  manufacturers. HHS had, by the time of suit,
placed UMC  on the list; however, UMC argued that, were HHS to back-
date its listing of UMC to the point in time when UMC  actually had
been eligible, UMC could perhaps obtain two  years' worth of
retroactive drug discounts. Because the  contract between HHS and the
participating drug manufac- turers did not require the drug
manufacturers to provide  such retroactive discounts, we held that
UMC's injury was  only speculatively redressable. In so holding, we


If it could be said that UMC was legally entitled to get  the discounts
as a result of being placed on the list  effective December 1, 1992,
then we might have a differ- ent situation. That would force us to ask
how likely it  was that appellant would succeed in the second suit....
 But we do not have to wrestle with this problem because  UMC does not
even claim that it has a contingent legal  right against the drug
manufacturers.


Id. at 442 (emphasis in original). US Ecology claims that the  instant
case presents the "different situation" contemplated in  the foregoing
dicta. We are not persuaded.


Even assuming, arguendo, that the hypothetical raised in  University
Medical Center poses a circumstance under which  the redressability
problem might be avoided, US Ecology can  find no solace in the dicta.
The circumstances of this case are  quite different from the
University Medical Center hypotheti- cal, because, on the record
before this court, US Ecology  cannot demonstrate any legally
enforceable right that Califor- nia must (1) accept the Ward Valley
Site if offered, and (2)  proceed with plans to build a LLRW facility
on the land.  Indeed, the record before this court does not even
support a  finding that US Ecology would be entitled to develop the 
facility were California ultimately to pursue the Ward Valley  Site.


The mere fact that appellant has brought suit in California  state
court on many of these issues says nothing about the  underlying
merits of those claims nor the remedy to which  US Ecology would be
entitled should it prevail. Here, as in  University Medical Center,
"[e]ven if appellant had a declara- tory judgment that the government
unlawfully" rescinded its  Record of Decision, US Ecology has not
shown "how, or  under what legal theory, it would be entitled to
recover  against" the State of California. Id. In short, US Ecology 
has failed to demonstrate redressability to support standing.


III. Conclusion


Because appellant lacks standing to pursue this appeal, we  vacate the
District Court's judgment as to US Ecology and  dismiss this case for
want of jurisdiction.