Case 3:18-cv MMD-CBC Document 76 Filed 02/20/19 Page 1 of 11

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1 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 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. ) Special Deputy Attorney General Adams Natural Resources Consulting Services, LLC Buzzys Ranch Road Carson City, Nevada 0 T: () -0 E: adamsnaturalresourcesllc@gmail.com *Martin G. Malsch, Esq. EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC K Street N.W., Suite 00 Washington, D.C. 000 T: (0) -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 REPLY IN SUPPORT OF MOTION FOR INJUNCTION PENDING APPEAL --

2 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 I. INTRODUCTION The Court should enter the State of Nevada s requested injunction pending appeal, particularly in light of Defendants most recent declaration. Nevada seeks merely to maintain the status quo and prevent any further shipments under the Supplement Analysis (SA) pending its appeal to the Ninth Circuit. Defendants have essentially agreed to the injunction, declaring that no plutonium will be shipped to the Nevada National Security Site, or elsewhere in Nevada, from the Pantex Plant, in Carson City, Texas as part of the activity analyzed in the [SA]. (See Diamond Decl. (ECF No. -).) But neither the Court nor the State of Nevada can simply trust Defendants assertions, given their prior lack of candor. Throughout these proceedings, Defendants have continually withheld crucial information from Nevada and from the Court. Despite appearing before the Court for a prolonged evidentiary hearing, Defendants failed to submit the most crucial evidence that they had already shipped half of the plutonium into Nevada. Defendants did this while allegedly engaging in good faith negotiations with Nevada. Then, on January 0, 0, Defendants submitted a declaration revealing that they had completed all shipment of plutonium (approximately ½ metric ton) to Nevada pursuant to [their] efforts to comply with the South Carolina U.S. District Court order. (Diamond Decl. (ECF No. -) (emphasis added).) The Declaration did not address the possibility of other shipments from Pantex that the SA purportedly authorizes. Only when Nevada highlighted Defendants omission and misrepresentation did Defendants finally assert that they would cease all SA-related shipments, not just those related to the South Carolina Order. Entering an injunction pending appeal is the only way to ensure that Defendants fulfill their most recent representations and do not ship more plutonium contemplated by the SA. Without an injunction, Defendants track record demonstrates that they may well change course unilaterally and transport more plutonium without consulting Nevada or informing the Court. If Defendants most recent representations are accurate, they should --

3 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of willingly agree to the injunction. If they do not, Defendants reveal their true motives. The Court should enter an injunction pending appeal prohibiting further shipments of plutonium under the SA. II. ARGUMENT A. Defendants Self-Serving Statement That They Do Not Intend to Ship Additional Plutonium into Nevada Pursuant to the SA Does Not Moot Nevada s Motion for Injunction Pending Appeal. 0 0 This Court should reject South Carolina s argument that Nevada s motion is moot. (See ECF No. ). Voluntary cessation of challenged conduct moots a case only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. LGS Architects, Inc. v. Concordia Homes of Nevada, F.d 0, (th Cir. 00) (quoting Adarand Constructors, Inc. v. Slater, U.S., (000) (emphasis added). Here, given the Defendants past conduct, that is far from clear. As the Ninth Circuit has acknowledged, [t]he reason that the defendant's conduct, in choosing to voluntarily cease some wrongdoing, is unlikely to moot the need for injunctive relief is that the defendant could simply begin the wrongful activity again. F.T.C. v. Affordable Media, F.d, (th Cir. ). Defendants, as the party asserting mootness, bear [t]he heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to recur[.] Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., U.S., 0 (000). This burden falls equally heavily on governmental entities. [W]hen the Government asserts mootness... it still must bear the heavy burden of showing that the challenged conduct cannot reasonably be expected to start up again. Rosebrock v. Mathis, F.d, (th Cir. 0). Defendants cannot moot a preliminary injunction appeal by simply representing to the court that [they] will cease [their] wrongdoing. LGS Architects, F.d at. Defendants fail to meet their burden to prove mootness, as they submit only a bare assertion in support of their claim an assertion that is directly contradicted by their past behavior. A statement, standing alone, cannot suffice to satisfy [this] heavy burden of --

4 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 persuasion. Armster v. U.S. Dist. Court for Cent. Dist. of California, 0 F.d, (th Cir. ) ( The bare assertion by the Justice Department in its mootness motion that the situation will not recur is far from credible ); see also Chinese for Affirmative Action v. Leguennec, 0 F.d 00, 00 (th Cir. ) ( the city's own statement of mootness cannot support an affirmance on that ground ). In addition to being insufficient to prove mootness, Defendants bare assertion that they do not intend to ship any additional plutonium to Nevada under the SA is not credible, given their past behavior. Without the requested injunction, a shipment of additional plutonium into Nevada by Defendants remains likely. Defendants have withheld information from Nevada and the Court regarding plutonium shipments into the State since prior to the initiation of this suit. Despite the guise of good-faith discussions to address Nevada s concerns about the environmental impact of shipping and storing plutonium in the State, Defendants surreptitiously shipped one-half ton of plutonium to the Nevada National Security Site (NNSS). Defendants continued their deceptive conduct throughout the litigation by requesting extensions in exchange for Defendants forbearance from shipping with full knowledge that plutonium had completed shipment to the State. The Court must enforce the status quo with an injunction pending appeal rather than relying on Defendants discredited promises. Defendants new declaration, that it does not plan any additional shipments of plutonium into the State under the SA, does not warrant denying Nevada s requested injunctive relief. Given Defendants deceptive conduct surrounding the shipment of plutonium to NNSS, their bare assertion is undermined by their past misrepresentations. In August of 0, Defendants told a South Carolina federal court that it is impossible for Defendants to remove one metric ton of defense plutonium from South Carolina without violating NEPA [the National Environmental Policy Act] and other laws, and without posing a significant risk to Defendants employees, to the environment, and to national security. (See Defs. Statement Concerning Remedy (ECF No. -).) In contrast, Defendants now assert --

5 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 that these shipments are standard defense practice and not in any way unusual. (See Defs. Response (ECF No. ).) On January 0, 0, Defendants told this Court that they had completed all shipment of plutonium (approximately ½ metric ton) to Nevada pursuant to [their] efforts to comply with the South Carolina U.S. District Court Order. (See Diamond Decl. (ECF No. -).) As Nevada noted in its subsequent Motion for Injunction Pending Appeal, however, the SA plainly contemplates shipments other than those encompassed by the South Carolina order. Now, Defendants self-servingly claim that no plutonium will be shipped to the Nevada National Security Site, or elsewhere in Nevada, from the Pantex Plant, in Carson City, Texas as part of the activity analyzed in the [SA]. (Id.) Diamond s declaration does not provide any explanation as to why the SA contemplated shipment of plutonium between Pantex and NNSS in the first place, and why that option is no longer necessary. Defendants bare assertion that the Department of Energy (DOE) will not ship additional plutonium into the State fails to establish that future shipments would not recur in the future. Nevada s request for an injunction pending appeal is not moot because of the very real possibility that Defendants will again ship plutonium into the State. Only an injunction from the Court can insure that it will not do so during the pendency of Nevada s appeal. Defendants already deceived Nevada by requesting and engaging in good faith discussions while hurriedly completing shipments before Nevada filed suit. Defendants misled this Court by participating in a prolonged evidentiary hearing regarding the proposed shipments of plutonium into Nevada with full knowledge that they had completed the shipments months prior to the hearing. Because of these prior misrepresentations regarding the very same issue at stake here, the Court cannot credit Defendants statement that it will not complete further shipments to Nevada. --

6 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 B. Nevada Has Already Been Harmed by the Unplanned Presence of Plutonium in the State, and the State s Requested Injunction Pending Appeal Seeks to Prevent Harm Likely to Occur During the Appeal. Defendants representation that they regularly dump plutonium unconnected to the SA in the State bolsters Nevada s showing of actual harm. (See Defs. Response (ECF No. ) ). Nevada s current requested injunction relates only to the proposed action in the SA because Nevada was unaware that Defendants were regularly dumping plutonium unconnected to the SA in the State. Nevada is simply requesting that this Court enforce Congress s mandate that DOE must comply with NEPA when removing the South Carolina plutonium. See 0 U.S.C.A. ( [T]he Secretary shall, consistent with the National Environmental Policy Act of and other applicable laws, remove from the State of South Carolina... ) (emphasis added). Contrary to Defendants claim, Nevada does contend that Defendants have failed to comply with NEPA and that Defendants noncompliance harmed the State. (See Defs. Response (ECF No. ) -). Under NEPA, Defendants are required to analyze the shipment of this plutonium. This means identifying the environmental impacts of shipping through Las Vegas, Nevada s largest city and the heart of Nevada s economy. It also means analyzing new information, such as Defendants own expert s finding that many of the 0 containers that DOE proposed to ship showed signs of corrosion. (See Gunter Decl. (ECF No. -) 0.) Additionally, DOE must consider the environmental impacts of indefinitely storing plutonium- within a shipping container. Nevada s lawsuit focuses on the SA s many deficiencies, and requests that the Court enjoin the SA s future proposed shipments until DOE takes a hard look at the environmental impacts involved. C. Nevada Is Irreparably Harmed Absent An Injunction.. Defendants NEPA Violations Constitute Irreparable Harm. When a plaintiff alleges NEPA violations, the harm consists of added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with public comment) of the likely effects of their --

7 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 decision on the environment. Citizens for Better Forestry v. U.S. Dep't of Agric., F.d, (th Cir. 00). By focusing the agency's attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v. Methow Valley Citizens Council, 0 U.S., (). Here, Defendants violation of NEPA requirements did harm Nevada. As the Ninth Circuit has recently noted, the harm flowing from a procedural violation can be irreparable. California v. Azar, F.d, (th Cir. 0) (citing to Cottonwood Envtl. Law Ctr. v.u.s. Forest Serv., F.d 0, 0 (th Cir. 0)). Where a party seeks a preliminary injunction, [a] procedural injury may serve as a basis for a finding of irreparable harm[.] California v. Health & Human Servs., F. Supp. d 0, 0 (N.D. Cal. 0), aff'd in part, vacated on other grounds, remanded sub nom. California v. Azar, F.d (th Cir. 0). This makes sense, because a state s procedural rights are in large part defined by what is at stake: the health of [its] citizens and [its] fiscal interests. Id. Harm via a procedural injury thus strikes at the very heart of a state s interest in protecting its citizens from harm. Defendants argument that Nevada somehow lacks standing to assert a harm must be rejected as irrelevant to the harm asserted here by Nevada. (See Defs. Response (ECF No. ) (citing Wilderness Soc s v. Rey, F.d, 0 (th Cir. 00)). Wilderness Society was based on a pure procedural harm in a vacumn, not as Nevada asserts here a concrete interest that is affected by the deprivation of its procedural rights. See Wilderness Society, F.d at. Nevada asserts that it is harmed by the unplannedfor and secretive shipment, transport, and presence of plutonium in the State. Defendants NEPA violations contributed to this harm. Nevada s claim of procedural harm is thus inextricably tied to the actual harm that resulted from Defendants violations. Here, DOE caused irreparable harm to Nevada, by failing to comply with its obligation to undertake a current Environmental Impact Statement (EIS) and thus --

8 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 violating the requirements of NEPA. Nevada has demonstrated likelihood of irreparable harm through Defendants NEPA violations because the procedural injury in failing to complete a legitimate EIS prior to the shipment of plutonium, as well as subsequent shipment and storage of the plutonium at NNSS, prevents Nevada from protecting its citizens from harm. DOE harmed Nevada by imposing an added risk to its environment and to its people when the DOE chose to take unilateral action without considering and analyzing the likely effects of its decision on the State.. Nevada Has Demonstrated Actual Harm. Here, Nevada submitted testimony detailing actual harm to its citizens and environment. Defendants attempts to rebut this showing are inadequate. (See Defs. Response (ECF No. ) -0). Nevada s Affidavit of Robert Halstead states that DOE/NNSA s proposed action will result in increased radiation doses to Nevada citizens and would, in some circumstances, lead to contamination of the lands and the groundwater of Nevada with radioactive materials. (See Halstead Aff. (ECF No. -).) The Declaration of Henry Gunter states that, as a result of DOE s shipments, additional unnecessary exposure [to significant levels of radiation] would be required of personnel at the alternate storage facility. (See Gunter Decl. (ECF No. -).) Mr. Gunter also stated that he witnessed corrosion within the containers holding the plutonium, and that no place exists today, other than SRS, with the... surveillance program to receive and store any significant amount of this plutonium. (Id. 0.) Defendants argument regarding parens patriae suits does not affect Nevada s preliminary injunction request. (See Defs. Response (ECF No. ) ). Nevada has quasisovereign interest in the health and well-being both physical and economic of its residents in general and may bring suit to protect its residents. State of Nev. v. Burford, F.d, (th Cir. 0) (ruling on a suit involving harm to private owners of land in Nevada). Here, Nevada raises harm to its residents for a completely different purpose than that addressed in Burford. Nevada is establishing harm to meet the irreparable harm prong of the preliminary injunction inquiry, not attempting to bring a parens patriae suit against the U.S. Government. This Court should properly consider harm to Nevada residents in ruling on the irreparable harm prong of Nevada s injunction request. --

9 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of 0 0 Defendants Response attempts to cure the SA s deficiencies by attaching the Declaration of Steven J. Lawrence ( Lawrence ). (See Lawrence Decl. (ECF No. -).) Lawrence is the Field Office Manager at NNSA s Nevada Field Office. (Id..) In his declaration, Lawrence states that an integrated, complex-wide surveillance and monitoring program has been established and implemented. (Id..) The only detail Lawrence provides regarding surveillance procedures is that the canisters are inspected annually for signs of corrosion, leakage, bulging, warping, damage, or discoloration. (Id.) This alleged surveillance program, however, is never discussed in the SA or any referenced EISs. NEPA claims are reviewed under the [Administrative Procedure Act] (APA). Laub v. U.S. Dep't of Interior, F.d 00, 0 (th Cir. 00). In general, a court reviewing agency action under the APA must limit its review to the administrative record. San Luis & Delta-Mendota Water Auth. v. Locke, F.d, (th Cir. 0). Dilatory or ex post facto environmental review cannot cure an initial failure to undertake environmental review. Sierra Forest Legacy v. Sherman, F.d, 0 (th Cir. 0). A post-eis analysis conducted without any input from the public cannot cure deficiencies in an EIS. Great Basin Res. Watch v. Bureau of Land Mgmt., F.d 0, 0 (th Cir. 0) ( The public never had an opportunity to comment on the double check analysis, frustrating NEPA's goal of allowing the public the opportunity to play a role in... the decisionmaking process ). Thus, Lawrence s outside-the-record statement thus does not cure the SA s deficiencies. The SA must stand or fall based on its own analysis and the EISs to which it cites. Much of the information contained in Lawrence s Declaration is entirely absent from the administrative record. For that reason, the Court cannot allow Defendants to supplement the SA in a non-nepa document. Moreover, Defendants Response fails to address the Court s acceptance of Defendants counsel s common sense over Nevada s sworn testimony. The Court s Order stated that the Court is persuaded by the Government s position expressed at the Hearing that the same containers that are safe for shipment, which is a more unsteady --

10 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page 0 of 0 0 activity than storage, also suffices for staging. (See Order (ECF No. ) :0-.) But Defendants offered no evidentiary support for this finding. Instead, Defendants counsel stated: I think it s another area where, if we had the right technical witnesses here, we could make this point to the Court. But as a matter of common sense, transporting material is more dangerous and challenging than storing it. (See Tr. (ECF No. -) :-.) This attorney argument is not evidence. See Carrillo-Gonzalez v. I.N.S., F.d 0, 0 (th Cir. 00) ( [Appellant] forwards this claim solely through the argument of her counsel, which does not constitute evidence ). By failing to respond to this issue, Defendants essentially acknowledge that they have no evidence for this claim and cannot rebut Nevada s position that the Court should have privileged Nevada s evidence over Defendants unsupported statements by counsel in ruling on this issue. D. The Balance of the Equities Favors Nevada. Contrary to Defendants argument, they face no inequity. (See Defs. Response (ECF No. ).) Defendants had many options when faced with the need to comply with the South Carolina order and statutory requirements. Their decision to comply with these obligations by secretly shipping plutonium into Nevada was voluntary. Defendants voluntary decision is not an inequity that somehow outweighs the very real harm to Nevada of unwanted, unplanned-for plutonium being shipped into the State where it remains today. Defendants cannot rely on claimed harm from enjoining all plutonium shipments while Nevada s appeal is pending because Nevada s current requested injunction would enjoin only SA shipments. (Id. ). This Court should reject entirely Defendants claimed inequities related to issues outside of the SA, including all those claiming an interruption in nuclear security work. Id. Defendants do not connect these wide-ranging effects to the limited injunction requested by Nevada in its motion, and this Court may not consider these purported effects in balancing the equities and public interests at stake. -0-

11 Case :-cv-00-mmd-cbc Document Filed 0/0/ Page of III. CONCLUSION For the foregoing reasons, Nevada is entitled to an injunction pending appeal or, in the alternative, an interim injunction while it renews its request for an injunction pending appeal in the Ninth Circuit. DATED this 0th day of February, 0. 0 By: By: By: 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. ) Special Deputy Attorney General EGAN, FITZPATRICK, MALSCH & LAWRENCE, PLLC /s/ Martin G. Malsch MARTIN G. MALSCH Special Deputy Attorney General 0 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 February, 0, I served a true and correct copy of the foregoing PLAINTIFF S REPLY IN SUPPORT OF MOTION FOR INJUNCTION PENDING APPEAL, 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/ Sandra Geyer An Employee of the Office of the Attorney General --