United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

      Argued September 5, 2000   Decided November 14, 2000 

                           No. 99-5192

           US Ecology, Inc., a California Corporation, 
                            Appellant

                                v.

        United States Department of the Interior, et al., 
                            Appellees

          Appeal from the United States District Court 
                  for the District of Columbia 
                         (No. 97cv00365)

     Karl S. Lytz argued the cause and filed the briefs for 
appellant.  Laurence H. Levine and Peter L. Winik entered 
appearances.

     Mark R. Haag, Attorney, United States Department of 
Justice, argued the cause for appellees.  With him on the 
brief were Lois J. Schiffer, Assistant Attorney General, and 
David C. Shilton, Attorney.

     Eric R. Glitzenstein, Howard Crystal, and Jonathan R. 
Lovvorn were on the brief for intervenor/appellees.

     Fran M. Layton, Mark A. Fenster, Alan K. Marks, and 
Susan L. Nash were on the brief for amicus curiae County of 
San Bernardino.

     Before:  Edwards, Chief Judge, Ginsburg and Tatel, 
Circuit Judges.

     Opinion for the Court filed by Chief Judge Edwards.

     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 restraining order, incoming 

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 court.

     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 want of jurisdiction.

                                   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 California's low-level radioactive waste.

     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 
sale.

     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 1969, 42 U.S.C. 

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 to the site.

     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 payment for the land.

     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 
$500,000 to US Ecology. 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 of its own suit remains.

     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, 43 (1976)).

     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 562.

     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 stated:

     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.