United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-4263

___________

Entergy, Arkansas, Inc., an Arkansas *

corporation; Entergy Gulf States, Inc., *

a Texas corporation; Entergy Louisiana, *

Inc., a Louisiana corporation; Wolf *

Creek Nuclear Operating Corporation, *

a Delaware corporation; Omaha Public * 

Power District, a public corporation and *

political subdivision of the state of *

Nebraska, *

*

Plaintiffs, *

*

Central Interstate Low-Level *

Radioactive Waste Compact *

Commission, *

*

Plaintiff-Appellee, *

*

US Ecology, Inc., a California *

corporation, *

*

Intervenor, *

* Appeals from the United States

v. * District Court for the District

* of Nebraska.

State of Nebraska, *

*

Defendant-Appellant, *

*

Department of Environmental Quality, *

Nebraska; Randolph Wood, *
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individually and in his official capacity; *

Jay Ringenberg, individually and in his *

official capacity; Nebraska Department * 

of Health and Human Services *

Regulation & Licensure; David P. *

Schor, individually and in his official *

capacity; Cheryl Rogers, individually *

and in her official capacity; John Doe; *

Jane Doe; Doe Companies 1 through *

20, individually and in their official *

capacities, *

* 

Defendants. *

___________

No. 99-4265

___________

Entergy, Arkansas, Inc., an Arkansas *

corporation; Entergy Gulf States, Inc., *

a Texas corporation; Entergy Louisiana, *

Inc., a Louisiana corporation; Wolf *

Creek Nuclear Operating Corporation, *

a Delaware corporation; Omaha Public * 

Power District, a public corporation and *

political subdivision of the state of *

Nebraska, *

*

Plaintiffs-Appellees, *

*

Central Interstate Low-Level *

Radioactive Waste Compact *

Commission, *

*

Plaintiff, *

*

US Ecology, Inc., a California *
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corporation, *

*

Intervenor-Appellee, *

*

v. *

*

State of Nebraska; Department of *

Environmental Quality, Nebraska; *

Randolph Wood, individually and in his *

official capacity; Jay Ringenberg, *

individually and in his official capacity; * 

Nebraska Department of Health and *

Human Services Regulation & *

Licensure; David P. Schor, individually *

and in his official capacity; Cheryl *

Rogers, individually and in her official *

capacity, *

*

Defendants-Appellants, *

*

John Doe; Jane Doe; Doe Companies 1 *

through 20, individually and in their *

official capacities, *

* 

Defendants. *

___________

Submitted: October 16, 2000

Filed: March 8, 2001

___________

Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY,

Circuit Judges.

___________

MURPHY, Circuit Judge.
-4-

This case arises out of the five state Central Interstate Low-Level Radioactive

Waste Compact (the Compact) and was last before the court on Nebraska’s appeal

from a preliminary injunction in favor of the Central Interstate Low-Level Radioactive

Waste Commission (the Commission). See Entergy, Arkansas, Inc. v. Nebraska, 210

F.3d 887 (8th Cir. 2000) (affirming the district court). Now the Nebraska parties bring

two interlocutory appeals from the district court’s denial of motions seeking Eleventh

Amendment and qualified immunity and the dismissal of claims brought by the

Commission, some nuclear waste generators, and US Ecology (USE), an applicant for

a license to build a disposal facility in Nebraska. We affirm in part, reverse in part, and

remand.

I.

The background of the Compact has been described in previous decisions of this

court. See id. at 890-95; Nebraska v. Central Interstate Low-Level Radioactive Waste

Comm’n, 187 F.3d 982 (8th Cir. 1999); Nebraska v. Central Interstate Low-Level

Radioactive Waste Comm’n, 26 F.3d 77 (8th Cir. 1994). Under authority of the LowLevel Radioactive Waste Policy Act of 1980 (the Act) passed by Congress, 42 U.S.C.

§ 2021b et seq. (1994), Nebraska, Arkansas, Kansas, Louisiana and Oklahoma entered

into the Compact. Nebraska, the other four states, and Congress all enacted the

Compact as original legislation. See Neb.Rev.Stat. § 71-3521(1996 Reissue) repealed

by Neb.Rev.Stat. § 71-3522 (effective August 28, 1999) and Omnibus Low-Level

Radioactive Waste Interstate Compact Consent Act, Pub.L. 99-240, tit. II, sec. 222, 99

Stat. 1859, 1863 (1986) (reprinting the Compact which is cited in this opinion by

article). The Compact created a framework for the development of low-level

radioactive waste facilities and established the Commission as the governing body. See

Art. IV. Several provisions address each state’s obligations under the Compact. The

Compact provides that each state has “the right to rely on the good faith performance

of each other party state.” Art. III(f). The state selected to host a disposal facility is
-5-

required “to process all applications for permits and licenses required for the

development and operation of any regional facility or facilities within a reasonable

period from the time that a completed application is submitted.” Art. V(e)(2). The

Commission is authorized to “[r]equire all party states . . . to perform their duties and

obligations arising under this compact.” Art. IV(m)(8).

In December 1987, the Commission chose Nebraska as the first member state

to host a waste disposal facility. The Commission contracted with USE to file a license

application for a disposal facility and then to build and maintain it. Under Nebraska

law USE was required to pay all costs associated with licensing, but pursuant to a

separate agreement the costs were to be reimbursed at a later date by the Commission.

See Neb.Rev.Stat. § 81-1579(2) (1999 Reissue). The Commission entered into

agreements with Entergy, Arkansas, Inc., Entergy Gulf State, Inc., Entergy Louisiana,

Inc., Wolf Creek Nuclear Operating Corp., and Omaha Public Power District (the

Generators) to pass on the cost of the licensing to them. At the time the preliminary

injunction was issued in April of 1999, the licensing process had already cost more than

$80 million. These costs included monies paid by Nebraska for subcontractors and

consultants, direct labor, office and administrative expenses, and other costs associated

with the review of the license application. The Generators paid $74 million of the total

costs to the Commission which turned over the funds to USE. USE itself contributed

the remaining $6 million for preliminary costs connected to the license application,

costs for which it has not been reimbursed.

When Nebraska was chosen to provide the first site, Governor Kay Orr publicly

stated that the state was not happy to be the host for the disposal facility but that it

would honor its commitment under the Compact. In July 1990, USE submitted its

license application to the Low-Level Radioactive Waste Program operated by two

Nebraska state agencies responsible for licensing waste facilities. Those Nebraska

agencies are the Department of Environmental Quality (EQ) and the Department of
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Health and Human Services and Licensure (HHS), both parties in this action. The two

agencies required USE to answer some 700 questions before they would review its

application. E. Benjamin Nelson, a candidate for governor of Nebraska, promised that

if he were elected “it is not likely that there will be a nuclear dump [] in Nebraska.”

Entergy, Arkansas, Inc. v. Nebraska, 46 F.Supp.2d 977, 981 (D.Neb. 1999). Nelson

won election, and Randolph Wood became the director of EQ. From that time the

state no longer exchanged information with USE. In December 1991, EQ stated that

it would not accept any responses to its 700 questions until all of the answers were

completed and submitted together; this added to the delay and the cost. In July 1992,

the Nebraska Auditor of Public Accounts, found that the EQ had not adopted a budget

to control the cost of review or a timetable to complete the work, and it recommended

that the EQ do so, but Wood refused. After USE submitted its answers, EQ issued a

Notice of Intent to Deny the license in January 1993, due to drainage problems and

“wetlands on the site.” Appellee’s App. II, 387. USE responded by opening a

contested case administrative proceeding under Nebraska law to challenge that

decision. It later amended its application and withdrew its pending case after reaching

a settlement with Nebraska. 

After the first contested case was withdrawn, the review process continued with

more questions and technical review of the amended application. During this process,

Nebraska demanded that the Commission turn over to it federal rebate money received

under the Act from the United States Department of Energy (DOE). When the

Commission did not turn over the rebate money, EQ directed the contractors doing the

state’s technical review to cut back their work and billings by twenty-five percent.

Nebraska sued the Commission to recover federal rebate funds, and it received part of

the money after it promised to accelerate review, but the amount of review work

continued to decline after the settlement.

USE’s application to build the disposal facility was deemed complete by
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Nebraska in June 1995, and EQ and HHS then said that their review of the application

would take about one more year to complete. EQ later notified USE that the review

would take longer because two technical documents would not be finished until

October 1997. When EQ issued these two documents, it stated that the facility met

site suitability requirements, but the review continued nevertheless. The Commission

then imposed a deadline of January 14, 1997 for Nebraska to complete its review of

USE’s application, and Nebraska sued to have the deadline voided. This court upheld

the district court ruling that the Commission had the power under the Compact to set

the deadline. See Central Interstate Low-Level Radioactive Waste Comm’n, 187 F.3d

at 987.

USE’s amended license application was finally denied in December 1998 (the

original application had been submitted in July 1990). The reasons stated for the denial

were that there was insufficient depth of the water table at the site, that under the

applicable regulations EQ could not consider engineered improvements to the site, and

that USE had not shown financial ability to build and run the facility. On January 15,

1999, USE appealed the denial by filing another contested case petition with EQ, thus

initiating a second administrative contested case proceeding under Nebraska law. 

After USE opened its second contested case proceeding, the Generators filed this

action and USE intervened, also as a plaintiff. These parties were frustrated by the

delays in the Nebraska process and the soaring costs which had caused them to spend

over $80 million on the licensing proceedings by the time of the preliminary injunction

in April 1999. They alleged that Nebraska, EQ, HHS, and individual state officials

(collectively Nebraska) had violated the good faith provision in the Compact and their

constitutionally protected rights to procedural and substantive due process. They

brought their constitutional claims under 42 U.S.C. § 1983. USE also alleged that the

Nebraska defendants had engaged in tortious interference and conspiracy under state

tort law. The plaintiffs sought damages, injunctive and declaratory relief, removal of
-8-

the state officials from the licensing procedure, an accounting, and attorney fees. They

also asserted equitable subrogation claims against the Commission, but the district

court realigned the Commission as another plaintiff in the case. The Commission

brought crossclaims against the state of Nebraska for violating the Compact, seeking

declaratory and injunctive relief, damages, an accounting, removal of the state from the

licensing process and substitution of a neutral third party, and attorney fees. 

 In support of their claims, the plaintiffs set out detailed factual allegations

alleging that Nebraska and its officials had deliberately delayed review of the license

for eight years and intended that the process end in denial of the application. They

alleged that Nebraska had threatened to begin administrative proceedings anew unless

the first application were amended. After USE amended the application and withdrew

its first contested case, Nebraska nonetheless treated the amended application as a new

one, leading to increased costs and delay. They also alleged that Nebraska breached

a settlement it had reached with them over federal rebate funds. Nebraska had agreed

that in exchange for part of the rebate funds it would accelerate the pace of review and

drop its suit, but after it settled the case and received the funds, it slowed the review

process by reducing the work of outside technicians it employed. They alleged that

Nebraska had delayed and interfered in the review process by refusing to adopt a

reasonable budget or schedule, by making unjustified and incorrect statements

regarding the timing of the review with knowledge that the statements would be relied

upon, by assisting and encouraging opponents of the disposal site to file suits and delay

proceedings, by publicly disparaging the selected site, and by intervening in interstaff

discussions. The plaintiffs also alleged that Nebraska and officials at EQ and HHS had

improperly denied the amended application by relying on data which USE had

furnished with the assurance that Nebraska would not use it in making its decision and

by basing their denial on drainage plans in the original application to which they had

not raised any objection. The plaintiffs further alleged that unauthorized HHS officials

had provided statutory interpretations and participated in the license review. Finally,
-9-

they alleged that the ongoing contested case proceeding in Nebraska was not a forum

that would address their complaints that political influence and bad faith had tainted the

license review process. Nebraska responded by raising its sovereign immunity and

arguing that the claims are barred by qualified immunity and the Eleventh Amendment

and that the allegations do not state a violation of the Compact or of the due process

clause.

While the second contested case was continuing in Nebraska, the parties brought

several motions in this case. The Nebraska parties brought two motions to dismiss,

arguing that the district court lacked subject matter jurisdiction over the case and that

the Commission, the Generators, and USE had failed to state claims upon which relief

could be granted. The Commission and the Generators moved for a preliminary

injunction to enjoin the ongoing second contested case proceeding in Nebraska. 

Before ruling on Nebraska’s motions to dismiss, the district court granted the

Commission’s motion for a preliminary injunction staying USE’s administrative

contested case proceeding. See Entergy, Nebraska, Inc., 46 F.Supp.2d at 996. The

district court held that the Commission would suffer irreparable injury if the proceeding

were not enjoined because of the “stunted procedural” nature of the administrative

proceeding. See id. at 993-94. The court also found that the Commission was likely

to prevail on its claim that Nebraska had acted in bad faith because of Governor

Nelson’s campaign promises to block the nuclear disposal facility, the refusal of state

officials to adopt a budget and review schedule, denial of the 1993 application because

of wetlands on the site after outside counsel had advised that there was no problem in

respect to wetlands, a work slowdown after the rebate fund settlement providing for

accelerated review, and other detailed findings of bad faith. See id. at 994. The court

also held that Nebraska had waived its Eleventh Amendment immunity from the

Commission’s suit for prospective relief. See id. at 995. Based on these findings, the

court issued a preliminary injunction in April 1999. See id. at 996.
-10-

The district court later issued two separate opinions on Nebraska’s motions to

dismiss. In the first, the district court dealt with the Commission’s claims against the

state of Nebraska. See Entergy, Arkansas, Inc. v. Nebraska, 68 F.Supp.2d 1093

(D.Neb. 1999). The court held that Nebraska had waived its Eleventh Amendment

immunity from these claims when it entered into the Compact. See id. at 1100. In

reaching that decision the court considered the specific provisions of the Compact and

the Commission’s status under it as the enforcement agency. See id. at 1095, 1099.

It also analyzed pertinent case law, the role of Congress, and historical legal

relationships. See id. at 1097-99. It concluded that the Eleventh Amendment does not

bar actions by the Commission to enforce the Compact, see id. at 1095-1101, and that

Nebraska had expressly consented to the Commission’s suit for damages in federal

court by agreeing to Article III(f) and Article V(e)(2) of the Compact. See id. at 1100-

3. The court denied Nebraska’s motion to dismiss for failure to state a claim without

discussion. See id. at 1104.

 In the second opinion, the district court dealt with the claims of the Generators

and USE against the state of Nebraska, EQ, HHS, and the individual state officers. See

Entergy, Arkansas, Inc. v. Nebraska, 68 F.Supp.2d 1104, 1107 (D.Neb. 1999). The

court rejected the state officials’ defense of qualified immunity. See id. at 1108. It

observed that the complaints alleged violations of the good faith requirement in the

Compact and that the Compact was clearly established federal law of which a

reasonable state official would have been aware. See id. The court concluded that the

Generators and USE had a right to sue under the Compact, as intended beneficiaries,

to challenge acts which had “delayed, impeded, and prejudiced the license application”

in violation of the Compact’s good faith mandate. Id. The court concluded, however,

that Nebraska and officials in their official capacity had Eleventh Amendment immunity

on the claims of the Generators and USE for anything beyond injunctive and

declaratory relief. See id. at 1110. Nebraska’s motion to dismiss was otherwise

denied. See id. 
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Nebraska filed an interlocutory appeal from decisions in each of the opinions by

the district court. Before its briefing on these matters was complete, we issued our

decision on the appeal from the preliminary injunction. See Entergy, Arkansas, Inc.,

210 F.3d at 901. Based on the nature of the Compact and the language of Article

IV(e), we held “that by entering into the Compact, Nebraska waived its [Eleventh

Amendment] immunity from suit in federal court by the Commission to enforce its

contractual obligations.” Id. at 897. As a result of this waiver, the Commission could

enforce the good faith requirement on Nebraska, but we did not limit the Commission

to only prospective relief. See id. We also found that the Commission’s enforcement

power was not limited to ousting the state from the Compact. See id. In addition to

holding that Nebraska had waived its Eleventh Amendment immunity, we pointed out

that the district court would also have jurisdiction “to enjoin the state officers under Ex

parte Young” and that the Commission had shown ongoing violations of federal law.

Id. at 898. We affirmed the issuance of the preliminary injunction. See id. at 901.

In the meantime briefs were completed on these interlocutory appeals. On its

appeal from the district court’s decision dealing with the Commission’s claims, the

state of Nebraska continues to assert Eleventh Amendment immunity. It also seeks to

include in its interlocutory appeal issues related to the district court’s denial of its

motion to dismiss for failure to state a claim upon which relief can be granted. The

Commission responds that Nebraska waived its sovereign immunity by entering into

the Compact, that this court does not have interlocutory jurisdiction to determine

whether the Commission has stated a claim, but that if the court reaches the issue, a

claim has been stated.

In its appeal from the decision dealing with the claims of the Generators and

USE, Nebraska argues that those claims are barred by the Eleventh Amendment and
1Nebraska claims for the first time on appeal that plaintiff Omaha Public Power

District (OPPD) cannot assert due process claims because OPPD is a political

subdivision of the state. OPPD argues that this is incorrect because it is substantially

independent. We decline to reach this issue not raised in the district court. See United

States v. Nelson, 109 F.3d 1323, 1325 (8th Cir. 1997).

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qualified immunity and that the plaintiffs have failed to state a claim upon which relief

can be granted.1 The Generators and USE respond that qualified immunity is not

available to the officials in their individual capacities because clearly established

federal law was violated, that the Eleventh Amendment does not bar prospective relief

against state officials, and that this court does not have jurisdiction to determine

whether claims were stated, but that they were in any event.

The parties disagree on the extent of the issues properly before the court on these

interlocutory appeals. They agree that rulings on immunity are reviewable de novo.

See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993); Mitchell v. Forsyth, 472 U.S. 511, 527 (1985). They disagree on whether this

court can now consider issues raised by the denial of the motions for failure to state a

claim. Appellate review is generally only available after final judgment, but there are

exceptions, such as the one for immunity issues and another for issues “inextricably

intertwined” with those appealable at the interlocutory stage. Swint v. Chambers

County Comm’n, 514 U.S. 35, 51 (1995), see United States v. Brakke, 813 F.2d 912,

913 (8th Cir. 1987) (denial of a motion to dismiss for failure to state a claim is not a

final appealable order). An issue is “inextricably intertwined” with properly presented

issues “‘only if it is coterminous with, or subsumed in, the claim before the court on

interlocutory appeal--that is, when the appellate resolution of the collateral appeal

necessarily resolves the pendent claims as well.’” Kincade v. City of Blue Springs,

Mo., 64 F.3d 389, 394 (8th Cir. 1995), quoting Moore v. City of Wynnewood, 57 F.3d

924, 930 (10th Cir. 1995).
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II.

Nebraska argues that the district court erred when it denied its motion to dismiss

the Commission’s claims. It says the Commission’s claims are barred by the Eleventh

Amendment because it did not waive its immunity by entering into the Compact. Even

if it did waive its immunity, the waiver was only from suits by party states and the

Commission is not a party to the Compact. Finally, Nebraska contends that the

Commission failed to state a claim upon which relief can be granted under the

Compact. 

Nebraska argues in its briefing that the Commission’s claims are barred by the

Eleventh Amendment, but we have already held “that by entering into the Compact,

Nebraska waived its immunity from suit in federal court by the Commission to enforce

its contractual obligations.” Entergy, Arkansas, Inc., 210 F.3d at 897. “It has long

been recognized that a state may waive its Eleventh Amendment immunity.” See id.

at 896. A waiver of immunity occurs when a state makes a “clear declaration” of its

intention to submit to suit in federal court as evidenced by the language of the text or

an “overwhelming implication from the text as [will] leave no room for any other

reasonable construction.” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (internal

quotation and citation omitted). Although our review of the district court’s decision to

grant an injunction was under an abuse of discretion standard, we reviewed de novo its

legal conclusion that Nebraska had waived its Eleventh Amendment immunity. See

Entergy, Arkansas Inc., 210 F.3d at 897. We carefully considered the Eleventh

Amendment issue before deciding it in the course of the preliminary injunction appeal,

and our holding that Nebraska waived its immunity from claims by the Commission,

including claims for damages, is now the law of the case. See In re Progressive

Farmers Assoc., 829 F.2d 651, 655 (8th Cir. 1987).
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Nebraska argues that the Commission is not a party to the Compact and so it

may only seek future performance, not damages or an accounting for past breaches.

In the Compact which Nebraska entered, the party states chose to delegate authority

to the Commission to initiate “any proceedings. . .before any court of law,” which

includes suits for breach of the Compact. Art. IV(e). The states not only allowed the

Commission to initiate proceedings, but mandated that the Commission “[r]equire all

party states and other persons to perform their duties and obligations arising under this

compact.” Art. IV(m)(8). A Compact between states is “after all a contract. . . . It

remains a legal document that must be construed and applied in accordance with its

terms. . . . There is nothing in the nature of compacts generally. . . that counsels against

rectifying a failure to perform in the past as well as ordering future performance called

for by the Compact.” Texas v. New Mexico, 482 U.S. 124, 128 (1987) (internal

quotations and citations omitted). This court has already held that “revocation or

suspension of a state’s membership is [not] the exclusive enforcement mechanism”

under the Compact. Entergy, Arkansas, Inc., 210 F.3d at 897. By entering into a

compact in which the party states delegated to the Commission their authority to sue

for breach and required the Commission to enforce contractual obligations, Nebraska

waived its Eleventh Amendment immunity from suit by the Commission in federal

court.

Nebraska also seeks to obtain review of the district court’s denial of its motion

to dismiss the Commission’s action for failure to state a claim upon which relief can be

granted. Nebraska argues that the Commission has failed to state a claim because it is

not a party to the Compact and the Compact does not provide for damages, but we

have resolved the underlying issue by holding that the Commission has the right to sue

under the Compact for the relief its seeks. Whether the Commission has stated a claim

is thus intertwined with Nebraska’s Eleventh Amendment argument, and we have

jurisdiction to decide it. See Kincade, 64 F.3d at 394. We hold that since the Compact

could permit the relief sought, the Commission has stated a claim, and the district court
-15-

did not err by denying the motion to dismiss. We affirm the district court’s decision

in respect to the Commission’s claims.

III.

Nebraska also argues that the district court erred when it denied its motion to

dismiss the claims of the Generators and USE. Nebraska argues that qualified

immunity bars the claims under the Compact and the due process clause against the

state officials in their individual capacity. Nebraska also asserts that the claims against

the state and the officials in their official capacity are barred by the Eleventh

Amendment. Nebraska further contends that the appellees failed to state a claim upon

which relief can be granted under the Compact and the due process clause. 

Qualified immunity shields state officials performing discretionary functions from

liability if “their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Nebraska asserts that the Generators and USE have not alleged

violations of federal law because they cannot enforce the good faith provision in the

Compact and they do not have a constitutionally protected property interest and thus

lack due process rights. Nebraska also denies that its actions could amount to due

process violations and claims that the state administrative proceeding on the amended

application can overcome any procedural defects that may have occurred earlier.

Finally, Nebraska argues that its officials acted rationally in denying the application.

The Generators and USE respond by arguing that they can enforce the good faith

provision in the Compact. They also assert that they have alleged violations of their

due process rights. They claim they have a protected property interest created by their

payment of over $80 million in costs by April 1999 with the expectation that the license

application would receive a timely review based on the Nebraska Administrative Code
-16-

(N.A.C.) (a license shall issue if twelve requirements are met.) See N.A.C. tit. 194,

Ch. 3, § 009. Moreover, they contend that the limited nature of the enjoined case

proceeding was such that it could not remedy prior procedural violations. Finally, they

argue that the actions of the state officials were so arbitrary that they violated their

substantive due process rights.

A.

On our de novo review of the district court’s ruling denying qualified immunity

on the claims of the Generators and USE under the Compact, we must examine whether

appellees have alleged the violation of any clearly established federal constitutional or

statutory rights. See Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997). We

have already held that the Compact is federal law, see Entergy, Arkansas, Inc., 210

F.3d at 897, but Nebraska argues that the good faith provision does not provide the

Generators and USE with a clearly established federal statutory right. The Generators

and USE respond that they are intended beneficiaries of the Compact and therefore

entitled to enforce the good faith promise in Article III(f). Three factors are relevant

in determining whether a specific federal statutory provision gives rise to an

enforceable federal statutory right: 1) “Congress must have intended that the provision

in question benefit the plaintiff”; 2) “the right assertedly protected by the statute is not

so ‘vague and amorphous’ that its enforcement would strain judicial competence”; and

3) “the provision giving rise to the asserted right must be couched in mandatory, rather

than precatory, terms.” Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (internal

citations omitted). 

The Generators cite a number of Compact provisions related to them to show

that they are intended beneficiaries of the Compact and able to enforce the good faith

provision. They argue that they are included in the definition of “Generators” because
-17-

they manufacture nuclear waste. See Art. II(f). They also argue that Article III(a),

which requires a party state to accept “all wastes generated within the region,” was

intended to benefit them because they produce waste. Art. III(a). According to the

Generators, Article III(c) and (d) show they are intended beneficiaries because the rates

for a “user shall be fair and reasonable . . .” and they are “users” under the Compact.

Art. III(c). The Generators also point out that Article VI(d) prevents states from

making a generator’s access to a waste facility more costly. See Art. VI(d). They

further argue that the “take title” provision, which requires a violating state to take title

to waste, demonstrates that Congress intended to benefit generators. See 42 U.S.C.

§2021e(d)(2)(C) (2000). The Generators and USE all argue that they are included in

the definition of “person” in Article II(m). See Art. IV(l). USE claims it is an

intended beneficiary because Article V(b) allows the Commission to “seek applicants

for the development and operation of regional facilities” and Article V(c) sets out the

criteria for evaluating applications. Art. V(b) & (c). Finally, USE claims that it is

benefitted by the requirement in Article V(e)(2) that a license issue in a reasonable time

and that the Nebraska administrative process creates a benefit for applicants. See Art.

V(e)(2). Nebraska responds that the Compact was enacted to benefit party states and

the general public, not private entities, see Art. I, and that the language of Article III(f)

is specifically limited to party states and does not refer to generators or applicants. 

See Art. III(f).

The provision the Generators and USE seek to enforce does not provide them

with a federal statutory right. It is true that the Compact refers to entities like them and

that some of its provisions might possibly provide them with an enforceable federal

statutory right or a protected property interest under state law (since the Compact was

also enacted as original legislation by each member state). The Compact provision at

issue here, however, is the one containing the obligation of good faith. Article III(f) of

the Compact gives each member state the right to rely on “the good faith performance

of each other.” Article III(f) states that “[e]ach party state has the right to rely on the
-18-

good faith performance of each other party state.” (emphasis added). This provision

does not name or suggest any other entities possessing such a right. Since we cannot

say that Congress intended this provision to benefit the Generators and USE, we need

not consider the other Blessing factors. 

Article III(f) expressly limits to whom good faith is owed, and the Generators

and USE are not included and would be at most incidental beneficiaries. Since these

parties are unable to establish that Article III(f) provides them with a federal statutory

right, the individual state officials could not have violated any clearly established law

under it and they are entitled to qualified immunity on these claims. Their inability to

enforce the good faith provision also means they have failed to state a claim upon

which relief can be granted in respect to the claims they have asserted under the

Compact. See Kincade, 63 F.3d at 394. We thus reverse the district court’s ruling

denying qualified immunity on these claims and denying the motion to dismiss them.

B.

The Nebraska officials also argue that they are entitled to qualified immunity on

the procedural and substantive due process claims of the Generators and USE. The

Generators and USE alleged that Nebraska has been deliberately delaying the review

process since 1990, leading to their payment of more than $80 million in costs by April

1999 without achieving a license or closure in the process. They alleged that

Nebraska’s tactics have deprived them of due process by threatening to begin review

of the application anew, breaching the first contested case settlement and then the

federal rebate settlement by slowing the review process, making incorrect statements

about the timing of review, encouraging and engaging in numerous lawsuits, not

following their own regulations, interpreting regulations in a way contrary to law, not

providing fair procedures, not judging the license application on its merits, and denial
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of the license application for groundwater problems despite state findings that the site

met suitability requirements. They also claim that key officials were improperly

influenced by political pressure. 

The Nebraska officials contend that they are entitled to qualified immunity from

the procedural due process claims because the appellees do not have a constitutionally

protected property interest, and even if they did, the administrative contested case

proceeding with available judicial review can remove the effect of any past procedural

violations. They also argue that they are entitled to immunity from the substantive due

process claims because they acted rationally. The Generators and USE respond that

they have a constitutionally protected property interest created by the $80 million they

paid over the last eleven years in reliance on the N.A.C. which states that a license

shall issue if twelve requirements are met. See N.A.C. tit. 194, Ch. 3, § 009. In their

view the administrative contested case proceeding and opportunity for judicial review

will not eliminate the effect of the past procedural violations because the administrative

hearing officer has already ruled inadmissible any evidence of political taint in the

licensing history. The Generators and USE assert that state officials have acted so

egregiously with their delay tactics and the continuing intent to deny the application that

they have deprived them of their rights to substantive due process. 

In order to assert a procedural due process violation in this case, the parties

agree that the Generators and USE must first establish a legitimate claim of entitlement

to a property interest created by state law. See Board of Regents of State Coll. v. Roth,

408 U.S. 564, 577 (1972). An entitlement can be established by substantive standards

or criteria that guide an official’s discretion, see Stauch v. City of Columbia Heights,

212 F.3d 425, 429 (8th Cir. 2000), and in this case might possibly be found in the

procedures and requirements listed in the N.A.C. for the issuance of a license, the

requirement that the licensing process costs be paid by USE (and ultimately the

Generators) and the very large payments already made in reliance on Nebraska’s
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procedures, the administrative scheme set up by the Compact which was enacted into

state law, or other state laws. A successful claim must also rest on a denial of

fundamental procedural fairness, see Fuentes v. Shevin, 407 U.S. 67, 80 (1972), such

as lack of fair procedures or impartial officials incapable of judging the license

application on its merits. See Concrete Pipe & Prods. of Cal., Inc. v. Construction

Laborers Pension Trust for S. Cal., 508 U.S. 602, 617-18 (1993); Marshall v. Jerrico,

Inc., 446 U.S. 238, 242 (1980); Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.

Assoc., 426 U.S. 482, 493 (1976). The district court never discussed whether

appellees have a protected property interest or a claim of denial of fundamental

procedural fairness. See Entergy, Arkansas, Inc. 68 F.Supp.2d 1108-10. It also never

discussed qualified immunity in respect to such claims. See id. at 1108.

To assert a substantive due process violation in this case, the parties agree that

the Generators and USE must establish a constitutionally protected property interest

and that state officials used their power in such an arbitrary and oppressive way that

it “shocks the conscience.” See County of Sacramento v. Lewis, 523 U.S. 833, 845-46

(1998). This standard could be met if the officials’ conduct was “intended to injure in

some way unjustifiable by any government interest,” id. at 849; or if their actions were

done with “deliberate indifference” to a party’s protected rights in a situation where

officials had an opportunity to consider various alternatives. See Neal v. St. Louis

County Bd. of Police Comm’rs, 217 F.3d 955, 958 (8th Cir. 2000); see also Whitley

v. Albers, 475 U.S. 312, 320 (1986).

In summarily denying the defense of qualified immunity and the motion to

dismiss the claims of the Generators and USE, the district court only discussed claims

asserted under the Compact. See Entergy, Arkansas, Inc., 68 F.Supp.2d at 1108. It

gave no indication that it had considered their constitutional claims or whether the

officials were entitled to qualified immunity on them. See id. We thus lack jurisdiction
2On remand the district court may have occasion to deal with various other issues

not properly before us at this time, either because they were not resolved by the district

court, see Boatman’s First Nat’l Bank of Kansas City v. Kansas Pub. Employees Ret.

Sys., 57 F.3d 638, 641 (8th Cir. 1995), or because of the interlocutory nature of these

appeals. See Kincade, 63 F.3d at 394. For example, Nebraska argues that the due

process claims of the Generators and USE against the state officials in their official

capacity are barred by the Eleventh Amendment; appellees respond that the Eleventh

Amendment does not prevent a suit against state officials for prospective equitable

relief to prevent violations of federal law. See Ex parte Young, 209 U.S. 123, 159-60

(1908). The district court ruled that the state officials are “generally immune” except

for Ex parte Young relief, but it did not discuss the nature of the due process claims.

See Entergy, Arkansas, Inc., 68 F.Supp.2d at 1110. It also did not make clear the

nature of any holding in respect to the state tort claims.

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over these issues, and remand for the district court to analyze and rule on them.2 See

Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir. 1993).

III.

After a thorough study of the record and the briefs, we affirm in part and reverse

in part. We affirm the district court’s determination that Nebraska waived its Eleventh

Amendment immunity under the Compact and that the Commission has not failed to

state a claim. We reverse the denial of qualified immunity for the state officials on the

claims by the Generators and USE which allege a violation of the good faith provision

in the Compact. We also reverse the denial of Nebraska’s motion to dismiss those

good faith claims for failure to state a claim upon which relief can be granted. We

decline to address issues over which we lack jurisdiction on these interlocutory appeals,

and we remand for further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.