Case 3:18-cv MMD-CBC Document 59 Filed 01/30/19 Page 1 of 5

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1 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 AARON D. FORD Attorney General C. WAYNE HOWLE (Bar No. ) Chief Deputy Attorney General DANIEL P. NUBEL (Bar No. ) Office of the Attorney General 00 North Carson Street Carson City, Nevada 0- T: () - E: whowle@ag.nv.gov dnubel@ag.nv.gov MARTA ADAMS (Bar No. ) Adams Natural Resources Consulting Services, LLC Buzzys Ranch Road Carson City, Nevada 0 T: () - E: adamsnaturalresourcesllc@gmail.com *Martin G. Malsch, Esq. EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC K Street N.W., Suite 0 Washington, D.C. 00 T: () -0 E: mmalsch@nuclearlawyer.com *Charles J. Fitzpatrick, Esq. *John W. Lawrence, Esq. EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC 00 Rialto Boulevard, Building, Suite 0 Austin, Texas T: (0) -00 E: cfitzpatrick@nuclearlawyer.com jlawrence@nuclearlawyer.com *Special Deputy Attorneys General Attorneys for Plaintiff, State of Nevada STATE OF NEVADA, vs. UNITED STATES; et al., IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Plaintiff, Defendants. Case No. :-cv-00-mmd-cbc PLAINTIFF S STATUS REPORT --

2 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 Plaintiff, the State of Nevada, by and through legal counsel, hereby files its Status Report as directed by the Court in its January 0,, Minute Order. This Status Report is based upon all pleadings on file, the exhibits attached thereto, and the arguments and testimony set forth in the January,, Evidentiary Hearing on Plaintiff s Motion for a Preliminary Injunction. On January 0,, the U.S. Defendants submitted a Notice of New Information ( Notice ) which provided a sworn declaration asserting that shipment of one-half metric ton of plutonium to Nevada under the plan proposed in the Supplement Analysis ( SA ) (ECF No. -), has been completed. The Notice claims that the shipment was completed prior to November of, the month in which Nevada filed this lawsuit. The U.S. Defendants title their Notice as new information, yet this information is only new to Plaintiff and this Court. The Notice makes clear that the U.S. Defendants have repeatedly misled Nevada and this Court. When Nevada brought this suit, and at all times until DOE filed its Notice of New Information Nevada believed, based on what it thought were good faith discussions with DOE officials and DOE counsel (Mr. Negri), that () no shipments pursuant to the Supplement Analysis had taken place and that () no shipments would take place until February,, at the earliest. Nevada had engaged in good faith discussions with DOE regarding potential plutonium shipments starting in April of. See the Affidavit of Pam Robinson (ECF No. ) at. On various occasions, the U.S. Defendants even provided written commitments to Nevada that it would forbear from commencing shipments. The first written commitment came when the U.S. Defendants counsel pleaded with Plaintiff for more time to respond to Plaintiff s Motion for Preliminary Injunction, and then used the written commitment as an incentive to get that extension. See the Affidavit of Marta Adams (ECF No. -) at. Next, after the Court s January, Hearing, Plaintiff informed the U.S. Defendants that it would filing a temporary restraining order to prevent DOE from commencing shipments until the Court reached its decision. DOE persuaded Plaintiff not to file its temporary restraining order --

3 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 by providing a written assurance that it would not commence shipping until after January,. The U.S. Defendants provided these false and misleading assurances with knowledge that shipments not only commenced but were also apparently completed. The extent to which DOE misled Nevada in bad faith is made clear in the Declaration of William Harris Walker that was included in DOE s Response to Nevada s Motion for Preliminary Injunction. See the Declaration of William Harris Walker (ECF No. -). In his declaration, Mr. Walker states that in a meeting on October 0,, DOE further detailed its plans for shipping plutonium to the State [of Nevada]. Id. at. Yet, U.S. Defendants now contends that many shipments were already almost certainly completed by that time. See the Declaration of Bruce M. Diamond (ECF No. -) at ( it can be stated that [the shipment] was done before November ). Thus, DOE was being disingenuous in its October 0, call to Nevada to discuss the plan when the shipments had already began. The Court s January 0,, Minute Order directs each party to state whether DOE s new information makes Nevada s Motion for a Preliminary Injunction moot. It does not. The U.S. Defendants declaration and conduct of this case, if anything, demonstrate the imperative need for preliminary injunctive relief. Such relief is needed for at least two reasons, even if a half ton of plutonium already is in the State. First, the ambiguity of the U.S. s statement creates the palpable suspicion that additional material could be sent. Paragraph three of the General Counsel Diamond s statement conflates an original determination regarding a shipment campaign with a change of mind and designation of a separate campaign. Following this, paragraph four of the declaration references a half-ton of plutonium and the completion of all shipment to Nevada pursuant to U.S. efforts to comply with the S.C. District Court s order. On the other hand, the SA states that up to one metric ton of plutonium would be transported from SRS to [Nevada]. See the SA (ECF No. -) at. Nevada has no confidence that another onehalf metric ton of plutonium from SRS might be transported here. --

4 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 Furthermore, there may even be a prospect for shipment of additional tonnage to Nevada. Both statute, 0 U.S.C., and court order require more to be shipped from South Carolina by. In its complaint, Nevada argues that the cumulative impacts from such reasonably foreseeable future shipments should be considered in NEPA documentation. Now, with the U.S. s perfidious conduct clear on the record in this case, there is a fair suspicion that shipment of this material, too, might be impending. Additionally, the SA provides that shipments between Pantex and NNSS may occur if needed in the implementation of this proposed action. See the SA (ECF No. -) at. Therefore, the possibility remains that DOE could subsequently ship additional amounts of plutonium from Pantex to NNSS under this proposal. Thus, DOE may attempt to use Pantex as a pit-stop to complete shipments to NNSS. Such a scenario is not covered by DOE s Notice of New Information and must be precluded by granting Plaintiff s requested injunction. Ultimately, Plaintiff s Motion for Preliminary Injunction is not moot. Even under the Notice of New Information: () It remains possible under the SA that another one-half metric ton of plutonium could be transported to NNSS and; () The SA still proposes to make shipments in between NNSS and Pantex, an issue in no way addressed by the --

5 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of Notice of New Information. The U.S. must respectfully, be compelled to perform the requisite environmental analysis required both by NEPA, and by the very same statute and court order that require shipment out of South Carolina. And it must be enjoined from any further shipments, overt or covert, before the analysis is done DATED this 0th day of January,. 0 AARON D. FORD Attorney General /s/ C. Wayne Howle C. WAYNE HOWLE (Bar No. ) Chief Deputy Attorney General DANIEL P. NUBEL (Bar No. ) Deputy Attorney General /s/ Marta Adams MARTA ADAMS (Bar No. ) EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC /s/ Martin G. Malsch MARTIN G. MALSCH CERTIFICATE OF SERVICE I certify that I am an employee of the State of Nevada, Office of the Attorney General, and that on this 0th day of January,, I served a true and correct copy of the foregoing PLAINTIFF S STATUS REPORT, by U.S. District Court CM/ECF electronic service, which will send notification of such filing to the addresses that are registered for this case: /s/ Dorene A. Wright --