[00:00:01] Speaker 01:
The first argued case this morning is number 21-1779, Butte County, Idaho, against the United States.

[00:00:12] Speaker 01:
Mr. Solman.

[00:00:14] Speaker 03:
Thank you, Your Honor.

[00:00:15] Speaker 03:
May it plead to the Court.

[00:00:18] Speaker 03:
This is a case involving the Department of Energy's failure to make a statutorily mandated annual impact assistance payment to Butte County under the Nuclear Waste Policy Act of 1982.

[00:00:31] Speaker 03:
Appellant will show that its claims were timely filed and that this court has jurisdiction and that appellant is entitled to those impact payments because DOD established federal interim storage capacity in Butte County and they operated that capacity.

[00:00:51] Speaker 03:
And this is just the sort of thing for which the NWPA was enacted.

[00:00:58] Speaker 02:
I wonder whether this statute is really going to be mandated.

[00:01:02] Speaker 03:
I'm sorry, Your Honor.

[00:01:03] Speaker 03:
It was a Monday mandating?

[00:01:05] Speaker 02:
Yeah.

[00:01:05] Speaker 02:
And I'll tell you why I wonder that.

[00:01:08] Speaker 02:
Because as I read the statute, it's discretionary with the secretary as to how much to pay out to individual government entities.

[00:01:18] Speaker 02:
Your Honor, there's a maximum amount that can be paid out.

[00:01:22] Speaker 02:
That's correct.

[00:01:24] Speaker 02:
But there's no minimum amount.

[00:01:26] Speaker 02:
There's no minimum.

[00:01:27] Speaker 02:
That's correct.

[00:01:27] Speaker 02:
If there's a situation, there are some cases that suggest that if there's no

[00:01:32] Speaker 02:
of fixed-sum to be collected, then it's not money mandating.

[00:01:40] Speaker 03:
I think that it's money mandating in the sense that it does require some payment.

[00:01:44] Speaker 03:
But could be negligible, right?

[00:01:50] Speaker 03:
That is true, Your Honor.

[00:01:52] Speaker 03:
It could be negligible, but it is money mandating in that the secretary does not have the discretion to pay county zero.

[00:02:02] Speaker 02:
Well, I realize that this is not an issue that's been addressed in the briefs, but are you aware of any case that says the statute is money-mandating when there's an indeterminate amount and no minimum amount to be paid?

[00:02:18] Speaker 03:
An indeterminate amount?

[00:02:20] Speaker 03:
I'm aware of cases where the amount has yet to be determined, but I'm not aware of cases necessarily where the amount could go as low as a dollar

[00:02:32] Speaker 03:
Well, maybe that's true.

[00:02:35] Speaker 03:
That's not true.

[00:02:35] Speaker 03:
I'm thinking about the Pilt statute that was in the Greenlee County case, which Your Honor may be familiar with.

[00:02:43] Speaker 03:
In that case, the amount to be paid was yet to be determined.

[00:02:47] Speaker 03:
It conceivably could have gone down to as low as a dollar, and yet this court took jurisdiction of it.

[00:02:55] Speaker 03:
That case was in 2007, I believe.

[00:02:57] Speaker 03:
And I'm sorry I don't have the citation to it, but I can get that for you if you'd like.

[00:03:01] Speaker 02:
Thank you.

[00:03:06] Speaker 03:
Why does this court have jurisdiction?

[00:03:09] Speaker 03:
This case fits squarely within the paradigm of a continuing claim under Friedman versus the United States, as that case has been adopted or supported by Hattle versus the United States, an en banc decision.

[00:03:26] Speaker 03:
The case turns on a pure question of law.

[00:03:29] Speaker 02:
Could you just back up?

[00:03:31] Speaker 02:
What is your theory?

[00:03:34] Speaker 02:
the government failed to comply with the statute by issuing the kind of contract that would require payments into the fund?

[00:03:45] Speaker 03:
That's really not the heart of the case, Your Honor.

[00:03:47] Speaker 03:
The heart of the case is that they established and operated this capacity consistent with the terms of the statute, and that kicked in the payment obligation of the United States.

[00:04:04] Speaker 02:
I'm not sure that I follow that.

[00:04:06] Speaker 02:
Is the theory that they failed to enter into the kind of contract with the statute required or that this contract should be considered to be the kind of contract?

[00:04:17] Speaker 03:
The contract is almost secondary, Your Honor, in the sense of the United States could have, they didn't necessarily do it here, but they could have formed or established the

[00:04:34] Speaker 03:
capacity and operated without, even without the operation of a contract.

[00:04:41] Speaker 03:
And so the contract is almost, as I said, is almost secondary.

[00:04:45] Speaker 03:
What they had to do, they could have done something like, we're hereby going to take the nuclear, the spent nuclear fuel from TMI2, and we're just going to put it in INL out in Butte County.

[00:04:59] Speaker 03:
And that would have established it and operated it.

[00:05:02] Speaker 03:
And the only authority they would have had to have done it is under the NWTA.

[00:05:07] Speaker 03:
And that would have met the criteria for establishing and operating and triggered the obligation of the United States to make these annual payments.

[00:05:18] Speaker 03:
So the fact that the contract may or may not comply with every nuance of the statute is, as I said, almost secondary.

[00:05:26] Speaker 02:
Well, what's the breach of duty by the United States then?

[00:05:31] Speaker 03:
Failure to comply with the statutory obligation to make the payment.

[00:05:37] Speaker 03:
As I said, that's much as in the case of these PILT cases, such as in Greenlee County.

[00:05:43] Speaker 03:
The statute said the secretary shall make a payment.

[00:05:46] Speaker 03:
They didn't make a payment.

[00:05:48] Speaker 03:
As a matter of fact, it's more parallel than that.

[00:05:51] Speaker 03:
Though that statute says they shall make an annual payment, and they didn't make the annual payment, and yet this court has taken jurisdiction of those cases.

[00:05:59] Speaker 02:
That sounds like contention that this contract falls within the statute, which creates the obligation to make the payment.

[00:06:08] Speaker 03:
Nowhere in the statute does it say that the contract is mandated.

[00:06:12] Speaker 03:
What the statute says is the obligation kicks in

[00:06:17] Speaker 03:
when they establish and operate the capacity to store the nuclear fuel.

[00:06:25] Speaker 03:
And there's no doubt that the nuclear fuel has been transitioned to Butte County in the INL, and it's there as we speak today.

[00:06:37] Speaker 03:
It's been in storage for 20 years, 25 years.

[00:06:43] Speaker 03:
So they have established and operated it, and they've done it consistent with the statute.

[00:06:48] Speaker 03:
So that kicks in the obligation.

[00:07:02] Speaker 03:
As I said, if Your Honor would look at section 101, 56E1,

[00:07:10] Speaker 03:
That's where it says that when the DOE established an operation of any interim storage capacity in Butte County and is authorized under Part B of the Act, that's what triggers the obligation.

[00:07:28] Speaker 03:
As I said, here we have the fact that they have established the interim storage, both through this contract and the fact that it's there.

[00:07:37] Speaker 03:
And they are certainly operating it, because we know it's been stored there for 25 years.

[00:07:43] Speaker 03:
What the government did by storing that... Can I just ask this?

[00:07:48] Speaker 03:
Oh, I'm sorry, your honor.

[00:07:49] Speaker 04:
Can I just ask this question?

[00:07:52] Speaker 04:
Was this facility established before, let's say, was it 1980?

[00:07:58] Speaker 04:
When was Team Three Mile Island?

[00:08:00] Speaker 04:
82, 83?

[00:08:01] Speaker 03:
It was 1979.

[00:08:02] Speaker 03:
1979.

[00:08:03] Speaker 04:
When was this facility established?

[00:08:06] Speaker 03:
INL?

[00:08:07] Speaker 04:
Yes.

[00:08:08] Speaker 03:
Of 1949, I believe.

[00:08:09] Speaker 04:
OK.

[00:08:11] Speaker 04:
So that couldn't have been established, right?

[00:08:15] Speaker 03:
The facility was not established.

[00:08:17] Speaker 04:
So what do you mean by the capacity?

[00:08:19] Speaker 03:
The capacity is basically any available space within the, there were about six of these laboratories across the United States, any space that was available

[00:08:34] Speaker 03:
to store this kind of material at one of these six facilities, and that they would set it aside for this purpose.

[00:08:41] Speaker 03:
So that's the capacity.

[00:08:43] Speaker 04:
So when was this capacity established at the Idaho National Library?

[00:08:48] Speaker 03:
At the earliest, it would have been 1984.

[00:08:51] Speaker 03:
By what act?

[00:08:52] Speaker 03:
Well, probably the contract would have established it, but also the date.

[00:08:58] Speaker 04:
I guess that's what I was getting at.

[00:09:00] Speaker 04:
It feels to me like the establishment of the capacity

[00:09:04] Speaker 04:
may be tied to the at least offering of a contract pursuant to these provisions.

[00:09:11] Speaker 04:
Yes, Your Honor.

[00:09:12] Speaker 04:
So if the contract that DOE offered to and entered into with GPU regarding the reactor two nuclear, spent nuclear fuel, was not pursuant to this act, then there is no capacity established

[00:09:34] Speaker 03:
under this act no i i think that's not correct your honor because the capacity is also reestablished or established once the spending your fuel shows up there that that is not only the establishment of the capacity but they are uh... they're operating that capacity

[00:09:55] Speaker 03:
So I think that in 1986, it was reaffirmed that this is the capacity, and that they were doing it under the only authority that they had in existence, which was the NWPA.

[00:10:09] Speaker 04:
Do we have to agree with you that that was the only authority in existence in order to rule in your favor on either of the motion to dismiss, either the timeliness issue or the cause of action issue?

[00:10:25] Speaker 03:
I'm not positive that you have to agree with it, but I think, Your Honors, it certainly would be better if you did that.

[00:10:32] Speaker 03:
But I think that the key thing is that whether they purported to use the AEA or the NWPA is that they were doing the thing that, in fact, Congress demanded that they do, which was

[00:10:54] Speaker 03:
to provide up to 1,900 metric tons of capacity.

[00:11:01] Speaker 03:
And that's set out in section 101.55A1.

[00:11:07] Speaker 03:
It says, the secretary shall provide.

[00:11:11] Speaker 03:
And that's what they were doing.

[00:11:13] Speaker 03:
They may have used some other mechanism, which we think was improper, but they were doing it

[00:11:20] Speaker 03:
pursuant to accomplish what the statute said.

[00:11:24] Speaker 04:
Unless the establishment, almost the authorization of the capacity or whatever the e-language is, the establishment of the capacity authorized under this act depends on the offering of a contract.

[00:11:39] Speaker 04:
And if the secretary had discretion about whether to enter into that contract at all, let alone

[00:11:50] Speaker 04:
whether or not the secretary had alternative authority, why does that not fall into what we said in Hatter, characterizing Friedman and in particular the Hart decision, distinguishing it, that the original decision being complained about was a matter of discretion, that the agency actually had discretion to consider a bunch of different facts

[00:12:19] Speaker 04:
to decide whether to enter into the contract, doesn't that put this into the heart category, as Hatter said?

[00:12:28] Speaker 04:
That cause of action arose back in 84 or 90.

[00:12:31] Speaker 03:
No, Your Honor.

[00:12:34] Speaker 03:
The Hatter case talks about when the obligation to make the payment occurred, not the preceding,

[00:12:44] Speaker 04:
you know if you look at her what happened is congress passed i might i i might have thought that but for the discussion at the end of haddock characterizing heart as consistent with its ruling and there is ever and and it was very specifically i think paterson's heart was about the discretion in the initial decision not to pay no uh... as if i don't know if you are i believe if you look at her at page nine

[00:13:14] Speaker 03:
797, it says, Congress has not interposed any administrative officer or agency to determine the claimant's eligibility.

[00:13:30] Speaker 04:
Clearly, Congress interposed the Secretary of Energy to determine the

[00:13:37] Speaker 04:
whether to enter into the contract originally.

[00:13:40] Speaker 03:
That may be, but it didn't determine he was not ruling on the eligibility of anyone thereafter.

[00:13:46] Speaker 03:
And I think that's the key test.

[00:13:48] Speaker 04:
I guess the paragraph I'm focusing on in Hatter is the paragraph that begins similarly on page 799, which is entirely about a single decision about whether the eligibility for the survivor benefits

[00:14:06] Speaker 04:
I don't think there were subsequent discretionary agency decisions.

[00:14:12] Speaker 03:
I'm sorry, which paragraph is your honor referring to?

[00:14:14] Speaker 04:
On the 799 on the right hand column, similarly.

[00:14:18] Speaker 04:
Yes, you have columns.

[00:14:19] Speaker 04:
And similarly, the other case on which the government places reliance.

[00:14:24] Speaker 04:
And I think that's actually consistent with Friedman.

[00:14:26] Speaker 04:
I don't think Friedman limits itself to

[00:14:29] Speaker 04:
agency discretion at each of the subsequent payment choices.

[00:14:35] Speaker 03:
No, I don't think it's at the payment point.

[00:14:37] Speaker 03:
I think that there had to have been a determination made by essentially an administrative tribunal, that's what they're really talking about here, before the payment obligation kicks in and the payment is made.

[00:14:53] Speaker 03:
So I think what you have in Hatter was

[00:14:59] Speaker 03:
The determination was made when Congress passed the statute diminishing the payment of the judge's salary.

[00:15:08] Speaker 03:
And that was made years before the claim was made.

[00:15:10] Speaker 03:
And they said that was perfectly fine.

[00:15:12] Speaker 04:
Can I ask you just one question before?

[00:15:14] Speaker 04:
I know your time is up.

[00:15:15] Speaker 03:
My time is up.

[00:15:17] Speaker 04:
Was Butte County aware of the state of Idaho's litigation back in the early 90s?

[00:15:25] Speaker 04:
Wasn't Idaho litigated with the federal government and eventually reached an agreement?

[00:15:30] Speaker 04:
Was Butte County aware of that?

[00:15:32] Speaker 03:
I'm sorry?

[00:15:33] Speaker 04:
Was Butte County aware of that litigation?

[00:15:35] Speaker 03:
It probably was, but it certainly was not a party to it.

[00:15:41] Speaker 01:
Before you sit down, let me ask how, on your theory of the case, as to which statute applies, how are you measuring your injury?

[00:15:51] Speaker 01:
What sort of damages

[00:15:54] Speaker 03:
It would be the damages that the secretary would conclude should have been the amount of the payments that should have been made.

[00:16:06] Speaker 03:
The secretary would have to decide whether we get 10% of the construction costs as provided in the statute or 15% of the estimated fees, whichever is less.

[00:16:21] Speaker 02:
Or some other number.

[00:16:22] Speaker 02:
I'm sorry?

[00:16:23] Speaker 02:
Or some other number.

[00:16:24] Speaker 03:
For some, well, those are the maximums.

[00:16:28] Speaker 03:
Yes, Your Honor.

[00:16:29] Speaker 03:
Yes, you're correct.

[00:16:30] Speaker 04:
Back to 2013.

[00:16:31] Speaker 04:
I'm sorry, Your Honor?

[00:16:33] Speaker 04:
Back to 2013.

[00:16:34] Speaker 03:
Back to 2013.

[00:16:36] Speaker 03:
And you might be curious.

[00:16:39] Speaker 03:
We've calculated it's around $2 million a year.

[00:16:42] Speaker 03:
So it's maximum.

[00:16:47] Speaker 03:
Yeah, we haven't calculated the minimum.

[00:16:51] Speaker 01:
OK, we'll save you rebuttal time.

[00:16:53] Speaker 01:
Let's hear from the government.

[00:16:54] Speaker 03:
Thank you, Your Honor.

[00:16:54] Speaker 03:
I appreciate that.

[00:17:06] Speaker 00:
Mr. Volk.

[00:17:08] Speaker 00:
May it please the Court.

[00:17:10] Speaker 00:
Butte County failed to file its complaint within the six-year statute of limitations, and the Court of Federal Claims correctly dismissed on that basis.

[00:17:19] Speaker 02:
What about the question of whether the statute is money-mandating at all when there's no minimum amount that's required to be paid?

[00:17:29] Speaker 02:
And counsel has admitted that it could be a negligible amount, payable.

[00:17:36] Speaker 02:
Is that a money-mandating statute?

[00:17:39] Speaker 00:
No, it's a difficult question, though, because the statute does say, shall pay.

[00:17:45] Speaker 00:
But it's certainly true.

[00:17:47] Speaker 00:
It doesn't say exactly how much.

[00:17:49] Speaker 00:
There's discretion there.

[00:17:50] Speaker 00:
And so how would it be figured out now how much you get paid?

[00:17:54] Speaker 00:
It's a difficult question, but to answer directly, no.

[00:17:58] Speaker 00:
How can that be mandated?

[00:17:59] Speaker 00:
What is the mandate?

[00:18:00] Speaker 00:
What is the court to say should be paid?

[00:18:05] Speaker 00:
We didn't raise it in our motion to dismiss, because we think there are much clearer reasons

[00:18:09] Speaker 00:
why this complaint could not go forward.

[00:18:12] Speaker 00:
And the first, which the Court of Federal Claims agreed with, of course, was the timeliness.

[00:18:17] Speaker 00:
This has to do with events from the 1980s.

[00:18:19] Speaker 04:
There's nothing that happened in the six years that preceded the... If there had been a clear 101-56 contract, if it said on its face, this is pursuant to 101-55 and 101-56,

[00:18:38] Speaker 04:
and here's the money that you, the utility, have to pay and we're going to put it into a fund and the government just never paid the money.

[00:18:50] Speaker 04:
That would be a clear case in which each annual failure to pay would be actionable, right?

[00:18:57] Speaker 00:
not as a separate cause of action.

[00:18:59] Speaker 00:
Because had there been liability, it's just like the Hart case.

[00:19:02] Speaker 00:
Had these events happened that didn't happen in the 1980s, had they happened, Beatt County could have filed its complaint in the 1980s and said, you owe me this money.

[00:19:13] Speaker 02:
And what Hart... But they can't sue until the statute provides for a yearly determination, does it not, by the secretary as to the amount that should be paid?

[00:19:25] Speaker 02:
So doesn't that suggest that it's a year-by-year obligation?

[00:19:32] Speaker 00:
We don't think so.

[00:19:33] Speaker 00:
We don't see any meaningful distinction between what happened in HART.

[00:19:36] Speaker 00:
Obviously, in HART, the widow who said, I should still be receiving these survivor annuity payments now, all these years later, obviously.

[00:19:45] Speaker 02:
Yeah, but in HART, there was no yearly determination as to the amount of the payments.

[00:19:50] Speaker 00:
Well, I think in effect there was.

[00:19:52] Speaker 00:
Those payments would vary year by year for inflation or whatever.

[00:19:55] Speaker 02:
There's no discretionary determination being made.

[00:19:58] Speaker 02:
It's just a mechanical process of computing.

[00:20:04] Speaker 00:
That may be true.

[00:20:05] Speaker 02:
All the standards were established earlier.

[00:20:10] Speaker 00:
That may be true.

[00:20:10] Speaker 00:
But of course, the discretionary aspect of this doesn't help Butte County.

[00:20:16] Speaker 00:
Because if anything, the discretionary aspect of it, to the extent there is discretion there, which appears there is, that would say that this doesn't fit within the continuing claim paradigm, that there's that discretion.

[00:20:30] Speaker 00:
So it wouldn't fit under even the factors in HADR.

[00:20:35] Speaker 04:
But let me just focus on this way of thinking about it.

[00:20:40] Speaker 04:
So I took the paragraph in HADR describing Hart as saying that

[00:20:47] Speaker 04:
The basis of the challenge was to a, let's just call it for shorthand, discretionary, fact-based judgment call, discretionary decision about the survivor benefits way back when.

[00:21:02] Speaker 04:
And that makes it a case that comes outside the class of cases in which repeated payments are separately actionable.

[00:21:12] Speaker 04:
I'm going to try to avoid the term continuing claims doctrine because that only confuses me as a label.

[00:21:17] Speaker 04:
But the hypothetical I was posing to you is that everybody agrees that, purely hypothetical, you entered a contract, that the contract was under 10156, and the only dispute were annual payments made.

[00:21:39] Speaker 04:
No dispute about what happened in 1984, in March of 1984.

[00:21:46] Speaker 04:
At that point, that's not like Hart, at least as characterized in Hatter, because the wrong alleged is not one that goes back to the original time, let alone to an agency decision.

[00:22:00] Speaker 04:
The wrong alleged is only the failure to make annual payments.

[00:22:06] Speaker 04:
Isn't that the classic case in which each annual failure is separately actionable?

[00:22:13] Speaker 00:
I don't think so, and I think there's potentially a fact in the hypothetical that maybe isn't stated.

[00:22:18] Speaker 00:
In other words, has the government been making annual assistance payments all these years and then stops one year?

[00:22:26] Speaker 00:
No.

[00:22:27] Speaker 00:
Okay, so in that case, I think the result is the same.

[00:22:30] Speaker 00:
If someone comes forward 30 years later and says, and their only reason is, well, I'm still supposed to be receiving payments now, even if it's true that the payments would vary somewhat year to year, that there'd be some

[00:22:44] Speaker 00:
difference in payment.

[00:22:45] Speaker 00:
Maybe it'd be a determination of what the inflation rate is that year.

[00:22:48] Speaker 00:
Whatever the reason is, even if the payments would vary somewhat, if the only claim, the only basis for saying that this is still within the statute of limitations is, and I'm still supposed to be receiving payments all these years later, we think that is within heart and is not a timely claim.

[00:23:08] Speaker 00:
And as far as the distinction with cases like Hatterbury, you have questions of payroll.

[00:23:14] Speaker 00:
Major distinction you have there is that you have an employee working in a pay period, earning hours.

[00:23:20] Speaker 00:
Employee wouldn't be the right word for Hatter with the judges, but you have someone working hours in a pay period, and then getting paid at the end of that pay period.

[00:23:30] Speaker 00:
And that's why you have these repeated transactions.

[00:23:33] Speaker 00:
And so even in Hatter, where they're describing those three factors, the first sentence of that paragraph on page 797 of Hatter

[00:23:44] Speaker 00:
where those three factors or considerations are discussed is, the first was those cases, and these are the ones that Hatter said are continuing claim cases, the first was those cases in which the repeated government action, so you have repeated government action, distinct events.

[00:24:01] Speaker 04:
Don't omit what comes in the parenthetical right after.

[00:24:04] Speaker 04:
Or failure to act.

[00:24:05] Speaker 04:
Or failure to act.

[00:24:06] Speaker 04:
Why isn't that contrary to, I think, the whole point you're making, to get into this category?

[00:24:13] Speaker 04:
You need a series of affirmative acts or in your case payments and you're alleged, I think your point, I understood your point to be the payments are too low, but payments are coming.

[00:24:23] Speaker 04:
Doesn't this or failure to act mean that if the government just never makes any payments at all, there is no action.

[00:24:31] Speaker 04:
There's just nothing is happening that still can come into that category.

[00:24:36] Speaker 00:
No, I agree that omissions can be equal to acts, but to me actually the most important part of that sentence is the last part after the parenthetical where it says, resulted in repeated causes of action.

[00:24:49] Speaker 00:
And so whereas Butte County wants to say, well, all we should look at is those three factors that come next, the reality of this opinion and others in the pay realm is that they're already in a realm where you have repeated causes of action, you have repeated events that can be broken down into separate causes of action.

[00:25:07] Speaker 00:
And so that's when you're in that realm of those pay cases, that's when

[00:25:12] Speaker 00:
It seems reasonable to look at these three factors.

[00:25:15] Speaker 00:
But this is a case where you don't have those separate cause of action.

[00:25:19] Speaker 00:
The liability butte claims, butte county claims from 2013 or 2015, it all goes back.

[00:25:27] Speaker 00:
The reason they're saying the government is liable, it all goes back to what happened or didn't happen in the 1980s.

[00:25:33] Speaker 00:
And that's a fundamental difference between this situation

[00:25:37] Speaker 00:
and those payroll disputes where someone worked a certain number of hours in a pay period, then they got paid and they said they didn't get paid right, and then it happens again and again.

[00:25:46] Speaker 00:
You have separate transactions, you have people working.

[00:25:49] Speaker 00:
I couldn't go and say, next year I'm going to work so many hours for the government, you're not going to pay me right, so I'd like to get paid for that now.

[00:25:56] Speaker 00:
I couldn't do that, of course, but a situation like this, there's no reason why Butte County couldn't have made the same allegations of liability that it was owed money for the same reasons back in the 1980s.

[00:26:09] Speaker 04:
Well, but that depends on, and I think we're now back to this case and the, uh,

[00:26:16] Speaker 04:
path that I was on might be described as a detour into hypotheticals.

[00:26:21] Speaker 04:
What I was doing with asking you about the hypotheticals was considering a situation in which the wrong alleged is not anything old.

[00:26:34] Speaker 04:
The wrong alleged

[00:26:35] Speaker 04:
is a series of continuing new wrongs, namely failure to pay on, by assumption in my hypothetical, an undisputed contract with an obligation to pay.

[00:26:47] Speaker 04:
I think your view is this case is one in which the wrong alleged is ultimately the wrong of not entering into the right contract or at least not assuming the correct obligation back in 84.

[00:27:06] Speaker 00:
That is how we understand Butte County's arguments.

[00:27:10] Speaker 00:
They've made slightly different arguments at different points, but that is the way we understand their argument, is saying that, sure, some of these things maybe didn't comply, or didn't comply, didn't fit the statute exactly, but they should be deemed to, or they should have done it that way.

[00:27:26] Speaker 00:
And so, one, there's a bit of a torque problem.

[00:27:29] Speaker 00:
It's not prominent in the briefs here, but below in the briefs there was arguments, well, the only reason it didn't comply with the statute was

[00:27:36] Speaker 00:
The DOE deliberately or negligently didn't comply with the statute.

[00:27:39] Speaker 00:
That would be a tort claim, which wouldn't be within the Court of Federal Claims jurisdiction to begin with.

[00:27:46] Speaker 00:
But a further problem with this case is that they're making a statutory claim.

[00:27:52] Speaker 00:
The county's making a statutory claim based on a statute where the agency only had authority to trigger it from 1983 to January 1, 1990.

[00:28:02] Speaker 00:
So by 1990,

[00:28:05] Speaker 00:
the necessary prerequisites for money to be paid out underneath this provision.

[00:28:11] Speaker 04:
What's your response to Mr. Saltman's argument that the basis of the claim here is not

[00:28:24] Speaker 04:
The obligation of 10156E is not triggered by entry into a contract, but by establishment of capacity, which as I understand his point, is not dependent on entering into a contract.

[00:28:40] Speaker 00:
We disagree, because if you look at the statutory provision that the county is relying on, so 10156E,

[00:28:48] Speaker 00:
It says that under subparagraph four, payments under this subsection shall be made available solely from the fees determined under subsection A. Well, you go back to 10156A, and the title of that subsection is contracts.

[00:29:04] Speaker 00:
And more broadly, when you look at the statutory design of this program,

[00:29:13] Speaker 04:
I think at least in your opening brief and maybe below, you focus not so much on the entirety of and the heading of 10156A1, but the particular sentence, each contract shall be determined in accordance with the provisions.

[00:29:29] Speaker 04:
Is that the sentence that you were relying on?

[00:29:31] Speaker 04:
There was a word switch.

[00:29:34] Speaker 04:
Yes, determined.

[00:29:36] Speaker 04:
Right.

[00:29:36] Speaker 04:
Determined, which I think you backed off on a little bit, recognizing that that was something of an oversell?

[00:29:45] Speaker 00:
Well, to us, the fees were never determined.

[00:29:49] Speaker 00:
Beat County says that because there was a rate schedule published, that that means the fees were determined.

[00:29:54] Speaker 00:
That's not how we read the statute.

[00:29:55] Speaker 00:
And so to us, determined, collected, it doesn't make a difference because none of it happened here.

[00:30:00] Speaker 00:
Determined, as our reading of the statute is, you enter into a contract and a specific quantity

[00:30:07] Speaker 00:
is then applied against that rate schedule, and you have a determination of fees, and then you have a contract.

[00:30:12] Speaker 00:
But more broadly, as we look at the entirety of this subtitle, the trigger is the contract.

[00:30:20] Speaker 00:
Without the contract, there is no storage capacity created under this particular subtitle.

[00:30:28] Speaker 00:
And you couldn't even have the contract without the Nuclear Regulatory Commission determination, which was never made.

[00:30:33] Speaker 00:
And without the contract, you can't have any fees being paid out, impact assistance payments being made out.

[00:30:40] Speaker 00:
And then the fourth thing that we point to in particular is the purpose.

[00:30:45] Speaker 00:
There's a basic mismatch between the declared purpose of the statute, which was to ensure continued orderly operation of a reactor that maybe wouldn't have adequate storage capacity on site to keep operating.

[00:30:59] Speaker 00:
That's in the first section of the subtitle.

[00:31:01] Speaker 00:
And what Butte County is talking about here at Three Mile Island.

[00:31:05] Speaker 04:
I'm sorry.

[00:31:06] Speaker 04:
This is one of the sentences in A1.

[00:31:08] Speaker 04:
Is that what?

[00:31:10] Speaker 00:
In 101-51, B2 is the purposes of this part.

[00:31:18] Speaker 00:
And then in B2 there, to prevent disruptions in the orderly operation of any civilian nuclear power reactor,

[00:31:26] Speaker 00:
that cannot reasonably provide adequate spent nuclear fuel storage capacity at the site of such reactor when needed.

[00:31:33] Speaker 00:
And that mirrors the findings that are just above it.

[00:31:36] Speaker 04:
Does it matter that, were there two reactors at TMI?

[00:31:41] Speaker 04:
There were.

[00:31:42] Speaker 04:
And that only number two melted down?

[00:31:45] Speaker 04:
Right.

[00:31:46] Speaker 04:
Is there any argument that you've got to get rid of the junk from

[00:31:52] Speaker 04:
TMI reactor two in order for TMI reactor one to continue operating.

[00:31:58] Speaker 04:
Not, not technically operating, but safely operating.

[00:32:01] Speaker 00:
It wasn't operating at the time.

[00:32:03] Speaker 00:
And so Butte County, the other reactor was out of operation.

[00:32:07] Speaker 04:
It was not, you mean even in 1979 at the accident or by 84?

[00:32:12] Speaker 00:
Certainly by 84, I'm not certain of whether it was operating or not operating at the time of the accident.

[00:32:19] Speaker 00:
But Butte County has made that argument, but it just does not fit the language of what this statute says.

[00:32:26] Speaker 00:
The statute is talking about continued orderly operation

[00:32:31] Speaker 00:
Nothing was removed from the other reactor.

[00:32:35] Speaker 00:
This material was removed from a reactor that was never going to operate again.

[00:32:40] Speaker 00:
This isn't a program that Congress had in mind for Three Mile Island.

[00:32:45] Speaker 00:
It wasn't used for Three Mile Island.

[00:32:46] Speaker 04:
Do we have to decide the question whether the secretary had authority outside this act to enter into a contract to essentially take control of the 83

[00:33:01] Speaker 04:
metric tons of spent fuel?

[00:33:03] Speaker 00:
No.

[00:33:04] Speaker 00:
The secretary did, but it's not necessary to decide that because that wouldn't establish the county's case.

[00:33:10] Speaker 00:
The county needs to show affirmatively that the statute it wants a payment based on applies and commands the payment to be made.

[00:33:18] Speaker 00:
Even if the department had acted totally outside of its authority, that wouldn't prove the county's case in that regard.

[00:33:24] Speaker 00:
It needs to affirmatively show under the statute it is relying on.

[00:33:31] Speaker 01:
Any more questions?

[00:33:33] Speaker 01:
No, thanks.

[00:33:35] Speaker 01:
Any more questions?

[00:33:38] Speaker 01:
OK.

[00:33:38] Speaker 01:
Thank you.

[00:33:39] Speaker 01:
Mr. Saltman, you have your rebuttal.

[00:33:53] Speaker 03:
Just briefly, Your Honor, I appreciate you giving me time.

[00:33:57] Speaker 03:
With regard to Judge Toronto's question to me earlier, I would suggest that on page 799 of the Hatter case, we look further down on that paragraph that you cited to me.

[00:34:11] Speaker 03:
You said the because all events necessary paragraph.

[00:34:15] Speaker 03:
A few sentences below it says, is readily apparent that this was a case, talking about Hart, in which Congress

[00:34:23] Speaker 03:
has charged an administrative agency with making a determination whether she qualified for an annuity and how much.

[00:34:34] Speaker 03:
And I think that that goes to my point about they interposed someone to make that eligibility determination, not the determination Your Honor was talking about with regard to the amounts that might have been in question or what authority that they were going to utilize.

[00:34:54] Speaker 03:
So I think that that sentence is a very important explanation by the en banc court about Hart.

[00:35:07] Speaker 03:
A point that I think that the court should know is that the payments, the annual payments here would differ each year because the volume of spent nuclear fuel changes on a year-by-year basis.

[00:35:23] Speaker 03:
So payment in 2013 is not the same as it would necessarily or not necessarily be the same as in 2014.

[00:35:31] Speaker 03:
There would be some additional fuel brought in by the Navy.

[00:35:36] Speaker 03:
I can't say to you that it actually happened in that year, but it has happened in the six-year period that the Navy has added some fuel.

[00:35:46] Speaker 04:
Could you get payments for adverse impacts from the Navy fuel or just the TMI fuel?

[00:35:52] Speaker 03:
I think they all spent nuclear fuel.

[00:35:55] Speaker 03:
But that's a question of quantum.

[00:36:03] Speaker 03:
My colleague here has talked about determined.

[00:36:07] Speaker 03:
Determined was done pursuant to the regulation.

[00:36:11] Speaker 03:
And it was done several times during the period 1984 through 1990.

[00:36:17] Speaker 03:
So I think it's pretty clear what determined means.

[00:36:20] Speaker 03:
It doesn't mean this for a contract matter.

[00:36:23] Speaker 03:
They went through a federal regulatory process.

[00:36:29] Speaker 03:
Last is, you remember asked about PMI-2 and the fact that there were two nuclear reactors.

[00:36:37] Speaker 03:
I would ask the court to look at the regulations that came out immediately after the statute went into effect.

[00:36:50] Speaker 03:
And in it, it said nuclear reactor is exactly the same as nuclear power plant.

[00:36:58] Speaker 03:
So they were talking about there being instances where there were two nuclear reactors, and hence

[00:37:08] Speaker 03:
The removal of the debris from TMI-2.

[00:37:12] Speaker 04:
Did you cite these regulations in your brief?

[00:37:14] Speaker 04:
Or can you just give me the site?

[00:37:17] Speaker 03:
I will give that site to you.

[00:37:17] Speaker 03:
I believe we cited it, but I'll give it to you as well, Your Honor.

[00:37:21] Speaker 03:
It's right in the definitions section.

[00:37:24] Speaker 03:
Thank you.

[00:37:27] Speaker 03:
10 CFR section 53.2.

[00:37:31] Speaker 03:
Thank you.

[00:37:35] Speaker 03:
And hence, you asked a question of my colleague here as to TMI 1.

[00:37:41] Speaker 03:
And was it operating in 1984?

[00:37:43] Speaker 03:
It was shut down when the nuclear accident happened at TMI in 1979.

[00:37:50] Speaker 03:
As you'd expect.

[00:37:51] Speaker 03:
It did not start up again until 1985.

[00:37:54] Speaker 03:
And I think that's in our reply brief, if I'm not mistaken.

[00:37:58] Speaker 03:
Unless there are any further questions?

[00:38:01] Speaker 01:
Anymore questions?

[00:38:03] Speaker 03:
Thank you, Your Honor.

[00:38:04] Speaker 01:
Thank you.

[00:38:04] Speaker 03:
This is perhaps the last time I will appear before you, and I wanted to say to you that it has been a privilege in my career to appear before this court and this panel.

[00:38:16] Speaker 03:
Thank you.

[00:38:18] Speaker 01:
Thank you.

[00:38:18] Speaker 01:
Thanks, counsel.

[00:38:20] Speaker 01:
The case is taken under submission, and the court will stand in recess for about five minutes.