Appeals from the United States District Courtfor the District of NevadaPhilip M. Pro, District Judge, PresidingArgued and SubmittedNovember 5, 1997--San Francisco, CaliforniaFiled January 8, 1998Before: Harlington Wood, Jr.,* Pamela Ann Rymer, andA. Wallace Tashima, Circuit Judges.Opinion by Judge Rymer; Concurrence by Judge Tashima
______________________COUNSEL Jonathan Turley and Joan Manley, George Washington Uni-versity, Washington, D.C., for the plaintiffs-appellants.J. Carol Williams, James C. Kilbourne, and Robert L. Karl-quist, Department of Justice, Washington, D.C., for thedefendants-appellees.Kevin D. Doty, Lionel Sawyer & Collins, Las Vegas, Nevada,for amicus KLAS, Inc.
_____________________________OPINION RYMER, Circuit Judge:Former workers at a classified facility operated by theUnited States Air Force1 brought citizen suits under theResource Conservation and Recovery Act of 1976 (RCRA),42 U.S.C. S 6972, against the Air Force (Frost v. Perry) andthe Environmental Protection Agency (Kasza v. Browner),alleging RCRA violations and seeking to compel compliancewith hazardous waste inventory, inspection, and disclosureresponsibilities.2 Finding that the state secrets privilegeinvoked by the Secretary of the Air Force made discovery andtrial impossible, the district court granted summary judgmentin favor of the Air Force in Frost. Frost v. Perry, 161 F.R.D.434 (D. Nev. 1995); Frost v. Perry, 919 F.Supp. 1459 (D.Nev. 1996). It dismissed Kasza as moot, since inventory andinspection activities were carried out after the action wasfiled, and the President exempted the operating location nearGroom Lake from any hazardous waste provision that wouldrequire disclosure of classified information to any unautho-rized person. Kasza v. Browner, 902 F.Supp. 1240 (D. Nev.1995). Although we will remand for further consideration ofattorney's fees and a sealing order, we otherwise affirm.3IHelen Frost, who is the widow of a former worker, and oth-ers (proceeding as Does by order of the district court) whoworked at a classified operating location near Groom Lake,Nevada, brought a citizen suit pursuant to S 7002(a)(1)(A) ofRCRA, 42 U.S.C. S 6972(a)(1)(A). The complaint alleges thatthe Air Force violated RCRA's federal facility reporting andinventory requirements4 and committed a number of otherviolations having to do with the storage, treatment, and dis-posal of hazardous waste at the site. Frost seeks a declarationthat the Air Force failed to perform duties required by RCRA,injunctive relief to restrain the Air Force from incineratingand transporting hazardous wastes in the vicinity of the oper-ating location, civil penalties, and attorney's fees.Once discovery got underway, the Air Force refused to fur-nish almost all of the information requested on the ground thatit was privileged. Dr. Sheila Widnall, the Secretary of theUnited States Air Force and head of the Department of the AirForce, invoked a formal claim of military and state secretsprivilege with respect to the disclosure of certain categories ofnational security information associated with the operatinglocation near Groom Lake, specifically including"[s]ecuritysensitive environmental data." The claim of privilege wassupported by the Secretary's unclassified declaration as wellas a classified declaration, which was submitted for in camerareview by the district court.5 In considering additionalrequests for discovery, the court also reviewed in camera aclassified declaration submitted by Air Force Vice Chief ofStaff General Thomas S. Moorman, Jr. The district courtdetermined that the state secrets privilege was properlyinvoked by Secretary Widnall, and that the privilege, asinvoked, covered information requested by Frost even thoughher need for discovery was compelling.The Air Force moved for summary judgment on the footingthat the privilege effectively barred the presentation of anyevidence tending to confirm or disprove that any hazardouswaste had been generated, stored, or disposed of at the operat-ing location near Groom Lake and that the presence (now orin the past) of hazardous wastes at the operating location con-stituted an essential element of all of Frost's claims for relief.The court concluded that Frost could not establish a primafacie case for any of her claims in light of the national secur-ity constraints explained in the declarations. Summary judg-ment was, accordingly, entered in favor of the Air Force.Meanwhile, Frost sought leave to file an amended com-plaint, but leave was denied as all of the new claims shewished to assert would be futile. Frost timely appealed.The related Kasza action against the Administrator of theEnvironmental Protection Agency, a citizen suit under RCRAS 7002(a)(2), 42 U.S.C. S 6972(a)(2), complains that EPAfailed to carry out its statutory responsibilities to inspect andconduct inventories at the operating location near GroomLake, to notify Nevada and the Air Force that they had notprovided adequate inventories of environmental information,and to make inspection and inventory information available tothe public.6 The complaint seeks a declaration that EPA hasfailed to perform acts and duties required by RCRA, and aninjunction prohibiting it from violating RCRA's mandatoryrequirements. In addition, Kasza asks for costs of litigationpursuant to S 7002(e) of RCRA, 42 U.S.C. S 6972(e).The EPA moved for summary judgment based on twounclassified declarations7 which indicate that from December6, 1994 to March 10, 1995 (after Kasza was filed), EPA per-sonnel conducted a S 3007(c) inspection of the operating loca-tion near Groom Lake; the Air Force had submitted to EPAa final inventory report; and the EPA had completed a finalinspection report that was made available to the appropriate(and appropriately cleared) Nevada state officers. The classi-fied inspection and inventory reports were submitted for incamera review by the district court. The EPA also submitteda Memorandum of Agreement between the Air Force andEPA committing both to future RCRA compliance activitiesfor the operating location.The district court held that any effective relief to whichKasza might otherwise be entitled on her inspection andinventory claims was eliminated by EPA and Air Force'spost-complaint performance of the inventory and inspectionreport of the operating location near Groom Lake. Therefore,the district court dismissed those claims as moot. However,the district court denied the Administrator's motion for sum-mary judgment on Kasza's claim that the EPA violated thepublic disclosure requirements of RCRA by not making theinspection and inventory reports available. The court held thatRCRA itself provides no exception for disclosure of classifiedinformation, but instead permits the President to exemptfederal facilities from compliance with any or all RCRA re-quirements pursuant to S 6001(a). 42 U.S.C.S 6961(a).Accordingly, it ruled that the EPA had to comply withS 3007(c) but gave the Administrator time to obtain a Presi-dential exemption. In response to this ruling, the Administra-tor in fact obtained, and claimed, a Presidential Exemptionfrom any provision that would require disclosure of classifiedinformation to unauthorized persons. As a result, the courtdenied injunctive relief requiring disclosure of the inspectionand inventory reports although it did declare that the Admin-istrator had failed to comply with RCRA's public disclosurerequirements.Kasza timely appealed. The EPA cross-appealed the districtcourt's decision that SS 3007 and 3016 mandate the publicrelease of classified RCRA inventory and inspection reportsunless the President grants an exemption pursuant toS 6001(a).In related appeals, Frost and Kasza challenge the districtcourt's refusal to disqualify the same team of lawyers fromthe Environmental Defense Section of the Environment andNatural Resources Division of the Department of Justice(DOJ) from representing both the Air Force and EPA. Theyalso appeal post-judgment rulings that left the transcript of aJune 20, 1995 hearing regarding classified material underseal, and that allowed the Environmental Crimes Section ofthe DOJ's Environment and Natural Resources Division toseek clarification of the court's "Doe" order without formallyintervening under Rule 24 of the Federal Rules of Civil Proce-dure. Finally, Frost and Kasza each appeal the district court'sfee determination in their actions.IIThe Frost Merits AppealFrost's appeal centers around how cases involving the rela-tionship between enforcement of environmental protectionlaws and the assertion of military or state secrets are decided.She argues that the entire regulatory subject matter of aRCRA enforcement action cannot be a state secret, and shefaults a process that she believes enables agency heads toinvoke and apply the state secrets privilege on a rolling basis,each in turn deferring to the classification decisions of others.She contends that the district court should not have appliedthe state secrets privilege at all because the privilege is pre-empted by RCRA's provision for a Presidential exemptionwhen such exemption is in the paramount interest of theUnited States; but even if the privilege survives preemption,Frost maintains, the claim of privilege in this case was over-broad and could not properly bar all material discovery. In herview, claiming that the existence or nonexistence of hazard-ous waste is a state secret is absurd. Indeed, she submits, thedistrict court should have considered the fact that an inventorywas actually conducted as an admission by the Air Force thathazardous wastes exist at the operating location. And shequestions whether the "mosaic theory" upon which the AirForce relies in refusing to disclose even apparently innocuousinformation (like the name of the operating location orwhether any hazardous wastes exist on the site) is permissible.In the same vein, Frost urges that reversal is requiredbecause the Secretary could not possibly have personallyreviewed all of the information that the Air Force withheldfrom discovery under claim of privilege, something that shecontends is procedurally required to validate the claim. Fur-ther, she suggests that the privilege was used to cover up envi-ronmental crimes at the operating location near Groom Lake.Moreover, Frost maintains that the district court should nothave considered ex parte submissions of classified materialor, at least, should not have done so without providing her aredacted version.The Air Force counters that the state secrets privilege,when properly invoked, is absolute and can alone be the basisfor dismissal of an entire case, including citizen suits broughtunder RCRA. Here, the Secretary of the Air Force invokedthe privilege, based on her personal knowledge, with respectto security sensitive environmental data and other specific cat-egories of information pertaining to the operating locationnear Groom Lake. The district court, having properly consid-ered classified declarations and documents in camera,properly concluded that Frost cannot make out a case on anyof her RCRA claims.A[1] The state secrets privilege is a common law evidentiaryprivilege that allows the government to deny discovery ofmilitary secrets. In United States v. Reynolds,
345 U.S. 1
(1953), the Supreme Court defined the process through whichthe government can claim the state secrets privilege: [T]he principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has con- trol over the matter, after actual personal consider- ation by the officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.Id. at 7-8 (footnotes omitted). The asserted claim of privilegeis accorded the "utmost deference" and the court's review ofthe claim of privilege is narrow: the court must be satisfiedthat under the particular circumstances of the case,"there isa reasonable danger that compulsion of the evidence willexpose military matters which, in the interest of nationalsecurity, should not be divulged." Id. at 10; see also In ReUnited States, 872 F.2d 472, 475-76 (D.C. Cir. 1989).[2] The government may use the state secrets privilege towithhold a broad range of information. Although "wheneverpossible, sensitive information must be disentangled fromnonsensitive information to allow for the release of the latter,"Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983), courtsrecognize the inherent limitations in trying to separate classi-fied and unclassified information: It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construc- tion of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate.Halkin v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1978) (Halkin I).Accordingly, if seemingly innocuous information is part of aclassified mosaic, the state secrets privilege may be invokedto bar its disclosure and the court cannot order the govern-ment to disentangle this information from other classifiedinformation.[3] Once the privilege is properly invoked and the court issatisfied as to the danger of divulging state secrets, the privi-lege is absolute: "[w]here there is a strong showing of neces-sity, the claim of privilege should not be lightly accepted, buteven the most compelling necessity cannot overcome theclaim of privilege if the court is ultimately satisfied that mili-tary secrets are at stake." Id. at 11. The application of the statesecrets privilege can therefore have three effects. First, byinvoking the privilege over particular evidence, the evidenceis completely removed from the case. The plaintiff's case thengoes forward based on evidence not covered by the privilege.Reynolds,
345 U.S. at 11
(noting that despite the govern-ment's use of the state secrets privilege, "it should be possiblefor respondents to adduce the essential facts as to causationwithout resort to material touching upon military secrets");Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir. 1983)(remanding case to determine if plaintiffs can prove primafacie case without privileged information). If, after furtherproceedings, the plaintiff cannot prove the prima facieelements of her claim with nonprivileged evidence, then thecourt may dismiss her claim as it would with any plaintiffwho cannot prove her case.[4] Alternatively, "if the privilege deprives the defendant ofinformation that would otherwise give the defendant a validdefense to the claim, then the court may grant summary judg-ment to the defendant." Bareford v. General Dynamics Corp.,973 F.2d 1138, 1141 (5th Cir. 1992); see also Molerio v. FBI,749 F.2d 815, 825 (D.C. Cir. 1984) (granting summary judg-ment where state secret privilege precluded the governmentfrom using a valid defense).[5] Finally, notwithstanding the plaintiff's ability to pro-duce nonprivileged evidence, if the "very subject matter of theaction" is a state secret, then the court should dismiss theplaintiff's action based solely on the invocation of the statesecrets privilege. Reynolds,
345 U.S. at 11
n.26; see also Tot-ten v. United States,
92 U.S. 105
, 107 (1875) ("[P]ublic policyforbids the maintenance of any suit in a court of justice, thetrial of which would inevitably lead to the disclosure of mat-ters which the law itself regards as confidential, and respect-ing which it will not allow the confidence to be violated.");Weston v. Lockheed Missiles & Space Co., 881 F.2d 814, 816(9th Cir. 1989) (recognizing that state secrets privilege alonecan be the basis of dismissal of a suit). While dismissal of anaction based on the state secrets privilege is harsh, "the resultsare harsh in either direction and the state secrets doctrine findsthe greater public good--ultimately the less harsh remedy--tobe dismissal." Bareford, 973 F.2d at 1144.BWe first address Frost's argument that the Presidentialexemption provided by S 6001 preempts the state secrets priv-ilege as to RCRA regulatory material. Frost submits that inenacting RCRA, Congress codified an absolute privilege --or exemption -- for the President alone to exercise, and thusspoke directly to the question of national security claims. Inthe case of the operating location near Groom Lake, no Presi-dent filed an exemption until 1995 and even then, incom-pletely, unlike, as Kasza points out, President Carter did in1980 when he completely exempted Fort Allen from RCRAand other environmental laws. See Executive Order 12244, 45Fed. Reg. 66,443 (Oct. 7, 1980).[6] Section 6001(a) provides that all federal facilities aresubject to "all Federal, State, interstate, and local require-ments, both substantive and procedural . . . respecting controland abatement of solid waste or hazardous waste disposal andmanagement in the same manner, and to the same extent, asany person subject to such requirements . . . ." 42 U.S.C.S 6961(a). Under S 3016(a), each Federal agency must"compile, publish, and submit" to the EPA an inventory ofagency-owned sites "where hazardous waste is stored, treated,or disposed of or has been disposed of at any time. " 42 U.S.C.S 6937(a). The EPA must also inspect these sites. 42 U.S.C.S 6927(c). Once completed, both reports must be made avail-able to the public. 42 U.S.C. SS 6927(b) and 6937(a). Section6001(a), however, grants the President the power to exemptan executive branch facility from compliance with "such arequirement" of RCRA "if he determines it to be in the para-mount interest of the United States to do so." 8 42 U.S.C.S 6961(a).[7] As the state secrets privilege is an evidentiary privilegerooted in federal common law, In re United States, 872 F.2dat 474, the relevant inquiry in deciding if S 6001 preempts thestate secrets privilege "is whether the statute`[speaks] directlyto [the] question' otherwise answered by federal commonlaw." County of Oneida v. Oneida Indian Nation, 470 U.S.226, 236-37 (1985) (quoting City of Milwaukee v. Illinois, 451U.S. 304, 315 (1981) (Milwaukee II)). However, "[s]tatuteswhich invade the common law . . . are to be read with a pre-sumption favoring the retention of long-established and famil-iar principles, except when a statutory purpose to the contraryis evident." United States v. Texas,
507 U.S. 529, 534
(1993)(quoting Isbrandtsen Co. v. Johnson,
343 U.S. 779
, 783(1952)).[8] As recognized by the district court, the state secretsprivilege and S 6001 have different purposes: one is an evi-dentiary privilege that allows the government to withhold sen-sitive information within the context of litigation; the otherallows the President to exempt a federal facility from compli-ance with RCRA's regulatory regime. Unlike the statutoryprovisions in Milwaukee II where Congress had "occupied thefield through the establishment of a comprehensive regulatoryprogram supervised by an expert administrative agency," 451U.S. at 317, RCRA's exemption does not replace in all casesthe government's use of a well established evidentiary privi-lege to withhold sensitive information implicating statesecrets from discovery in litigation. At times the purposes ofthe privilege and the exemption may overlap, but that doesnot mean that S 6001 "speaks directly" to the existence, orexercise, of the privilege in every RCRA action.[9] Nor does the privilege necessarily parallel the Presi-dent's power to exempt. If a facility has been exempted, forexample, a citizen's suit could question whether the exemp-tion was in the paramount interest of the United States, towhich the exemption itself would not apply but to which thestate secrets privilege might. Likewise, if a facility hasn'tbeen exempted, but the suit could otherwise go forward basedon publicly available inventory and inspection reports and tes-timony, it might still be the case that disclosure of discreteitems of relevant information would affect the national inter-est.[10] The state secrets privilege has long been "well estab-lished in the law of evidence," Reynolds,
345 U.S. at 7
, andwe discern no Congressional intent to replace the govern-ment's evidentiary privilege to withhold sensitive informationin litigation by providing an exemption from RCRA's regula-tion of hazardous waste. Accordingly, we hold that RCRAS 6001 does not preempt the state secrets privilege.CWe next consider Frost's argument that even if the statesecrets privilege is not preempted by S 6001, it was not prop-erly asserted and, even if properly asserted, the Air Force'sinvocation of the privilege was overbroad. Frost specificallycites the district court's adopting a "mosaic theory" in apply-ing the privilege to generic regulatory information, includingthe confirmation or denial of hazardous wastes, and allowingthe Widnall declaration to cover information the Secretaryhad never personally reviewed. The declaration itself, sheargues, does not seek to withhold information regarding thegeneral existence or absence of chemicals or hazardouswastes, just environmental information that constitutes"security sensitive environmental data." Further, she contendsthat the court should not have decided to supplant SecretaryWidnall's declaration with a subordinate's (the Moorman dec-laration). Finally, Frost says she was entitled to an explana-tion as to how the disclosure of information regarding thepresence or absence of hazardous wastes would endanger thenation's security.In her unclassified declaration, the Secretary of the AirForce states: This Declaration is made for the purpose of advising the court of the national security interests in and the security classification of information that may be rel- evant to the above captioned lawsuits [Kasza and Frost]. The statements made herein are based on (a) my personal consideration of the matter; (b) my per- sonal knowledge; and (c) my evaluation of informa- tion made available to me in my official capacity. I have concluded that release of certain information relevant to these lawsuits would necessitate disclo- sure of properly classified information about the Air Force operating location near Groom Lake, Nevada.Secretary Widnall explains that the Air Force employs themosaic theory of classification to protect unclassified infor-mation "if the combination of unclassified items of informa-tion provides an added factor that warrants protection of theinformation taken as a whole," and that the mosaic theory ofclassification applies to some of the information associatedwith the operating location near Groom Lake. Widnall identi-fies ten categories of information concerning the operatinglocation near Groom Lake that are validly classified: (1) pro-gram names; (2) missions; (3) capabilities; (4) military plans,weapons or operations; (5) intelligence sources and methods;(6) scientific or technological matters; (7) certain physicalcharacteristics; (8) budget, finance, and contracting relation-ships; (9) personnel matters; and (10) security sensitive envi-ronmental data. With respect to each, the Secretary asserts aformal claim of the state secrets privilege: It is my judgment, after personal consideration of the matter, that the national security information described in this Declaration and in the classified Declaration, concerning activities at the U.S. Air Force operating location near Groom Lake, Nevada constitutes military and state secrets. As a result, dis- closure of this information in documentary or testi- monial evidence must be barred in the interests of national security of the United States. Pursuant to the authority vested in me as Secretary of the Air Force, I hereby invoke a formal claim of military and state secrets privilege with respect to the disclosure of the national security information listed in paragraph four of this Declaration [the ten categories of infor- mation] and more fully discussed in the classified Declaration, whether through documentary or testi- monial evidence.In her unclassified declaration, Widnall states that she issatisfied that the information described in her classified decla-ration is properly classified and that she has "determined thatthe information described in the classified Declaration, ifreleased to the public, could reasonably be expected to causeexceptionally grave damage to the national security. " Further,she explains, "[i]t is not possible to discuss publicly themajority of information at issue without risking the very harmto the national security that protection of the information isintended to prevent."[11] Here, after actual personal consideration, the personthat Reynolds requires to claim the privilege publicly claimedit. Elaborating the basis for the claim of privilege through incamera submissions is unexceptionable. See, e.g., Black v.United States, 62 F.3d 1115 (8th Cir. 1995), cert. denied, 116S.Ct. 1541 (1996); Zuckerbraun v. General Dynamics Corp.,935 F.2d 544 (2d Cir. 1991); Fitzgerald v. Penthouse Int'l,Ltd., 776 F.2d 1236 (4th Cir. 1985); Molerio, 749 F.2d at 819,822; Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281(4th Cir. 1980) (en banc).[12] Likewise, explaining through a competent official suchas Moorman how the claim of privilege plays out in practiceis consistent with Reynolds's insistence that the decision toobject be made at the highest level. See, e.g., In re UnitedStates, 872 F.2d at 474 (classified declaration of assistantdirector of the FBI's Intelligence Division submitted for incamera review in support of Attorney General's formal invo-cation of state secrets privilege); Molerio, 749 F.2d at 821(suggesting that designee could determine that state secretwas implicated in discovery); Halkin I, 598 F.2d at 9 (privi-lege invoked by Secretary of Defense, supported by in cameratestimony of Deputy Director of NSA). In a case such as this,the Secretary, once she has properly invoked the claim ofprivilege and adequately identified categories of privilegedinformation, cannot reasonably be expected personally toexplain why each item of information arguably responsive toa discovery request affects the national interest. See Bareford,973 F.2d at 1141 (where government does not target docu-ments but objects to a claim that would require disclosure ofsensitive information, agency head need only review "type ofevidence" necessary to support claim). In sum, in camerareview of both classified declarations was an appropriatemeans to resolve the applicability and scope of the statesecrets privilege. No further disclosure or explanation isrequired. See Reynolds,
345 U.S. at 9
; see also Halkin v.Helms (Halkin II), 690 F.2d 977, 992-95 (D.C. Cir. 1982)(rejecting plaintiff's call for greater public showing as unnec-essary and unwise).[13] Based on its review of the classified and unclassifieddeclarations, the district court held that the Air Force satisfiedthe formal requirements necessary to invoke the privilege.After reviewing these same declarations in camera, we agreewith the district court that the Air Force properly invoked, andexplained, the state secrets privilege. We therefore hold thatthe Air Force's invocation of the privilege comports with theprocedural requirements of Reynolds.[14] We also hold that the scope of the privilege assertedby the Air Force was not overbroad. Based on our in camerareview of both General Moorman's and Secretary Widnall'sclassified declarations, we are satisfied that the Air Forceproperly employed the mosaic theory of classification and thestate secrets privilege to withhold information requested inFrost's various discovery requests. We are convinced thatrelease of such information would reasonably endangernational security interests. See, e.g., Black, 62 F.3d at 1119("Our independent in camera ex parte review of the govern-ment's state secrets claim similarly convinces us that it wasnot overbroad."); Halkin I, 598 F.2d at 9 (conclusion that statesecrets claim must be upheld from open affidavits reinforcedby review of in camera materials).[15] Having determined that the Air Force properlyinvoked and used the state secrets privilege in Frost, the dis-closure of any further information or a trial on Frost's claimsrisks significant harm to the national security. As the SupremeCourt recognized over 120 years ago, "public policy forbidsthe maintenance of any suit in a court of justice, the trial ofwhich would inevitably lead to the disclosure of matterswhich the law itself regards as confidential, and respectingwhich it will not allow the confidence to be violated." SeeTotten,
92 U.S. at 107
.[16] Not only does the state secrets privilege bar Frost fromestablishing her prima facie case on any of her eleven claims,but any further proceeding in this matter would jeopardizenational security. No protective procedure can salvage Frost'ssuit. Therefore, as the very subject matter of Frost's action isa state secret, we agree with the district court that her actionmust be dismissed. See Black, 62 F.3d at 1119 ("The informa-tion covered by the privilege is at the core of[the plaintiff's]claims, and we are satisfied that the litigation cannot be tai-lored to accommodate the loss of the privileged informa-tion."); Farnsworth Cannon, Inc., 635 F.2d at 281 ("It is evi-dent that any attempt on the part of the plaintiff to establisha prima facie case would so threaten disclosure of state secretsthat the overriding interest of the United States and the preser-vation of its state secrets precludes any further attempt to pur-sue this litigation.").DAs the very subject matter of Frost's action is a state secret,we need not reach her other arguments regarding invocationof the privilege because no matter how they are resolved,there will be no effect on her ability to proceed. 9 The same istrue of Frost's request for leave to amend to allege violationof the Comprehensive Environmental Response Compensa-tion And Liability Act (CERCLA), 42 U.S.C. S 9603, andadditional violations of RCRA. None could be proved; there-fore each is futile.EThis leaves for resolution only Frost's argument that hermotion to disqualify the Air Force's DOJ lawyers wasimproperly denied. The Environmental Defense Section of theEnvironment and Natural Resources Division of the Depart-ment of Justice assigned the same team of lawyers to defendthe EPA in Kasza and the Air Force in Frost. Frost argues thatthe district court erred when it ruled that any conflict of inter-est of government counsel is a matter left entirely to theAttorney General.10 Instead, in her view, DOJ lawyers were inthe position of sharing confidential information that mayincriminate one client (the Air Force) during an active investi-gation by the other client (the EPA), and therefore shouldhave been disqualified.[17] We have difficulty seeing how Frost has standing tocomplain about a possible conflict of interest arising out ofcommon representation of defendants in different civilactions, having nothing to do with her own representation."As a general rule, courts do not disqualify an attorney on thegrounds of conflict of interest unless the former client movesfor disqualification." United States v. Rogers, 9 F.3d 1025,1031 (2d Cir. 1993) (quoting In Re Yarn Processing PatentValidity Litig., 530 F.2d 83, 88 (5th Cir. 1976)). The govern-ment, however, does not press the point. Regardless, evenassuming that Frost does have standing, we see no basis fordisqualification. Frost was not a former or current client of theDOJ attorneys whom she wished to disqualify, and she pres-ented nothing more than a conclusory charge of institutional"conflict of interest." Given the absence of any facts indicat-ing that she herself was affected (and, of course, absent anysuggestion from the Air Force, or EPA, or their counsel thatcommon representation in separate actions was somehowadverse), there was no need for an evidentiary hearing. Underthose circumstances, Nevada Supreme Court Rule 157, 11 uponwhich Frost relies, is not implicated. Accordingly, the districtcourt did not abuse its discretion, Paul E. Iacono StructuralEng'r, Inc. v. Humphrey, 722 F.2d 435, 438 (9th Cir. 1983)(indicating standard of review), and there is no reason toremand.IIIThe Kasza Merits Appeal Kasza focuses on her continuing disagreement aboutwhether the location that she calls "Area 51" is the operatinglocation near Groom Lake. Further, she faults EPA's piggy-backing on the Secretary of the Air Force's invocation of thestate secrets privilege in discovery, and the district court'spermitting EPA to rely on privileged information in the inven-tory and inspection reports but denying her access to thematerial in any form. In addition, she challenges the validityand scope of the Presidential exemption that in her viewdefers to the classification decisions of others. Kasza alsocontends that her request for declaratory relief (if not injunc-tive relief) is not moot, and that the court should have orderedEPA to conduct remedial inspections for prior years. Finally,she submits that the DOJ attorneys representing the Adminis-trator in this case were conflicted because they also repre-sented Perry in Frost.A[18] We disagree with Kasza's view that a genuine issue offact exists as to the real identity of the location that wasinvolved in the inspection and inventory. Although a viabledispute may linger over the name of the operating locationnear Groom Lake, no genuine dispute exists as to the placethat was the subject of the inventory and inspection. As Breenand Laws state in their declarations, the inspection and inven-tory occurred at the "United States Air Force operating loca-tion near the Groom Dry Lake Bed in Nevada that is thesubject of this lawsuit."[19] Kasza likewise questions the veracity of the govern-ment's denial that the facility in dispute was ever called "Area51," and maintains that she should not have been precludedfrom challenging the credibility of the government's represen-tations. While being denied the tools normally available fortesting credibility is understandably frustrating, this is not anormal case. Suffice it to say that the district court could sat-isfy itself of the credibility of the public declarations in thecourse of its in camera review of classified materials, and socan we. Having done so, we conclude that summary judgmentwas not improvidently entered on account of there being anytriable issues of fact.12B[20] Kasza argues that the district court erred as a matterof law in ruling that federal courts do not have jurisdiction togrant declaratory judgment or injunctive relief for past RCRAviolations. The district court interpreted RCRA's provisionfor citizen suits as providing only for prospective relief (notfor past violations), under the Supreme Court's opinion inGwaltney of Smithfield v. Chesapeake Bay Foundation, 484U.S. 49 (1987). Gwaltney involved S 501 of the Clean WaterAct, and Kasza contends that its language, statutory structureand legislative history differ from RCRA's. We do not needto go so far, however, because in our view Kasza's requestsfor declaratory as well as injunctive relief, whether past orprospective, are moot.[21] A case is moot when the controversy isn't live anylonger. Public Utils. Comm'n v. FERC, 100 F.3d 1451, 1458(9th Cir. 1996). Kasza argues that the district court's moot-ness ruling as to current or on-going violations was in errorbecause the inspection and inventory were conducted for onlyone year, 1994, which is not determinative as to 1995 or pro-spective relief for 1996 and beyond. However, the EPAshowed through the Breen and Laws declarations that aS 3007 inspection had occurred; that the Air Force had com-pleted a S 3016 hazardous waste inventory and is "adequatelyproviding information to the EPA respecting the operatinglocation near Groom Lake;" and that the state of Nevada isalso "adequately providing inventory information respectingthe location near Groom Lake." These declarations were sup-ported by the in camera submission of the classified inventoryand inspection reports. We agree with the district court that,based on these declarations and the Memorandum of Agree-ment between EPA and the Air Force with respect to futureinventories and inspections, Kasza's request for an orderrequiring the Administrator to comply with her non-discretionary duties under SS 3007(a), 3016(a), 3016(b) and3012(a) is moot.[22] We see no difference between injunctive relief anddeclaratory relief in this case. In "determining whether arequest for declaratory relief ha[s] become moot, . . . basi-cally, `the question in each case is whether the facts alleged,under all the circumstances, show that there is a substantialcontroversy, between parties having adverse legal interests, ofsufficient immediacy and reality to warrant the issuance of adeclaratory judgment.' " FERC, 100 F.3d at 1458 (quotingMaryland Cas. Co. v. Pacific Coal & Oil Co.,
312 U.S. 270
,273 (1941)). Here, the controversy is EPA's compliance withRCRA's mandatory duties. Non-compliance stopped with thepost-complaint inspection and inventory, and the record doesnot suggest that non-complying conduct is likely to recur. Forthis reason, nothing is left for effective relief. The case isover.Kasza nevertheless wants a declaration that the EPA has tocomply with RCRA to make the point loud and clear; and shewants a declaration that EPA has failed in the past to complywith RCRA so that it can be ordered to create inspectionreports for preceding years. For reasons we have alreadyexplained (and the district court found in connection withKasza's request for attorney's fees), the fact that EPA hasundertaken to perform inspections at the operating locationnear Groom Lake (as a result of this lawsuit) shows that it hasgotten the point. Nothing remains of sufficient "immediacy"or "reality" about prior years to warrant either a declaratoryjudgment, or an order requiring "remedial" inspections. SeeWeinberger v. Romero-Barcelo,
456 U.S. 305, 311
-13 (1982)("[A] federal judge sitting as chancellor is not mechanicallyobligated to grant an injunction for every violation of law.").Thus, we conclude that Kasza's inventory and inspectionsclaims, and the relief sought in connection with them, aremoot and that no declaration with respect to them needs to bemade.C[23] Even though Kasza's inventory and inspection claimsare moot, RCRA also requires the public disclosure of inspec-tion and inventory reports. RCRA SS 3007(c) and 3016(a); 42U.S.C. SS 6927(b) and 6937(c). The district court agreed withKasza that EPA violated these provisions.13 In response to thatruling, EPA obtained a Presidential exemption under RCRAS 6001(a). Based on the exemption, the district court foundthese claims moot as well.Kasza maintains that the district court erred by acceptingthe September 29, 1995 Determination by President Clinton,which declared: I hereby exempt the Air Force's operating location near Groom Lake, Nevada from any Federal, State, interstate or local provision respecting control and abatement of solid waste or hazardous waste dis- posal that would require the disclosure of classified information concerning that operating location to any unauthorized person.Presidential Determination No. 95-45, 60 Fed. Reg. 52,823(Oct. 10, 1995).14 She argues that the President may onlyexempt facilities from specific statutory provisions and cannotcreate a statutory exemption for documents according to theirstatus. By transferring authority to one who simply possessesclassification authority and allowing the exemption to applyto any future classified information, Kasza submits that thePresident has created a "rolling exemption" authority in theseindividuals, thereby running afoul of RCRA's public disclo-sure requirement as well as the notification requirement forCongress. Kasza also points out that Congress could have spe-cifically exempted classified information as it did in CER-CLA, 42 U.S.C. S 9620(j)(2), but instead chose to allow thePresident to protect national security through an exemptionfrom "requirements" rather than an exemption based on thestatus of documents. We disagree that the exemption isinvalid.[24] Section 6001 gives the President authority to exemptfederal facilities from compliance with "a requirement" if hedetermines it to be in the paramount interest of the UnitedStates to do so. This plainly allows the President to exempt afacility from less than all RCRA requirements which, it wouldseem, best serves RCRA's purposes as some (though not all)of its requirements are unexempted and will still be met in thecase of the operating location near Groom Lake. Here, thePresident found that "it is in the paramount interest of theUnited States to exempt the operating location from anyapplicable requirement for the disclosure to unauthorized per-sons of classified information." As a practical matter, thePresident's exemption relates in this case to RCRA's publicdisclosure requirement. Limiting his determination in this waydid not impermissibly relieve the President of his duty todecide that a federal facility should be exempt from a RCRArequirement; President Clinton decided that the operatinglocation near Groom Lake should be exempt, but only to theextent that compliance would require disclosure of classifiedinformation to unauthorized persons. That is what the Presi-dent determined was in the paramount interest of the UnitedStates, a matter Congress explicitly left to the President's dis-cretion, and we have no problem with the district court'saccepting that determination.Kasza finally argues that the President cannot exempt afacility retroactively to excuse violations in past years orapply a 1995 exemption to withhold unexempted materialfrom prior years. So far as we can tell, he hasn't tried to doso. In any event, we decline Kasza's invitation to remand forthe district court to determine the status of regulatory infor-mation for prior, unexempted years. As we have already con-cluded that "remedial" relief of the sort requested is moot,remand would be pointless.DSince we hold that Kasza's claims for equitable and declar-atory relief were properly dismissed because no effectiverelief can be granted, we need not consider any other issuethat she raises except whether the court should have grantedher motion to disqualify defense counsel. On that issue, wedecline to reverse for the same reasons explained in Frost.IVThe Cross-Appeal in KaszaThe Administrator cross-appeals the district court's deci-sion that SS 3007 and 3016 require public disclosure of theclassified inventory and inspection reports in the absence ofa S 6001(a) Presidential exemption. The government's posi-tion is that 18 U.S.C. S 793(d), which makes the disclosure ofclassified information to unauthorized persons a criminal act,necessarily trumps SS 3007 and 3016.15 Otherwise, Brownersubmits, the Administrator of EPA would be on the horns ofa dilemma, facing criminal charges if she were to complywith RCRA's duty of disclosure.[25] We decline to address this question, as the Administra-tor's appeal is moot. Instead of seeking a stay, or other emer-gency relief from the district court's order before obtainingthe Presidential exemption, she elected to seek an exemption,which the President issued on September 29, 1995. WhileEPA suggests that the controversy isn't moot because theexemption has to be renewed annually and thus is within theexception to the mootness doctrine for questions that arecapable of repetition, yet evading review, we disagree. Theorder was not inherently unreviewable when entered; indeed,the district court gave the government ample time to decidewhat it wanted to do. See In re Bunker Ltd. Partnership, 820F.2d 308, 311 (9th Cir. 1987) ("The exception[to mootness]was designed to apply to situations where the type of injuryinvolved inherently precludes judicial review, not to situationswhere the failure of parties to take certain actions has pre-cluded review as a practical matter."). Accordingly, wedecline to render what we believe would be an advisory opin-ion on the relationship between RCRA's disclosure require-ments and the classification statutes. Being moot, the cross-appeal must be dismissed.VPost-Judgment RulingsAKasza and Frost argue that the district court erred in refus-ing to order the redaction or unsealing of the transcript of ahearing held June 20, 1995 involving an Air Force manualthat they claimed was publicly available but that the Air Forceclaimed was classified. Early on, the court denied a motion byintervenor KLAS, Inc.16 to unseal the transcript and relatedmaterials, but accepted the government's proposal to redactall matters under seal after the proceedings were concluded.Eventually that happened, but not with respect to the June 20proceeding. However, we can't tell from the court's laterorders whether the June 20 hearing fell between the cracks orwhether the court intended its original order to remain ineffect. Therefore, we remand for the court to address thisissue and, should it determine in its discretion to leave the sealin place, for a statement of reasons. See Hagestad v. Tra-gesser, 49 F.3d 1430, 1434 (9th Cir. 1995).BThe Environmental Crimes Section of DOJ's Environmentand Natural Resources Division sought clarification of thedistrict court's "Doe" orders in both actions so that it couldinterview present and former workers at the operating locationnear Groom Lake in the course of investigating whether crim-inal activity had occurred. Kasza and Frost appeal a numberof the district court's rulings related to this issue, but theappeal has been mooted in the meantime. The governmentsubmitted a declaration indicating that it has finished itsinvestigation and its file is closed. This ends any live contro-versy about the issues raised on appeal, and we therefore dis-miss it.VIAttorney's FeesRCRA S 7002(e) provides: The court, in issuing any final order in any action brought pursuant to this section . . . may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing party or sub- stantially prevailing party, whenever the court deter- mines such an award is appropriate.42 U.S.C. S 6972(e). A plaintiff will be a "prevailing party"if she "succeed[s] on any significant issue in litigation whichachieves some of the benefit which the part[y ] sought inbringing the suit." Hensley v. Eckerhart,
461 U.S. 424
, 433(1983). A party, however, need not obtain any formal judicialrelief to be a prevailing party; rather all that is necessaryunder the "catalyst test" is that "(1) as a factual matter, therelief sought by the lawsuit was in fact obtained as a result ofhaving brought the action, and (2) there was a legal basis forthe plaintiffs' claim." Idaho Conservation League, Inc. v.Russell, 946 F.2d 717, 719 (9th Cir. 1991) (quoting Andrewv. Bowen, 837 F.2d 875, 877 (9th Cir. 1988)).AThe district court found that Kasza was a substantially pre-vailing party with respect to her inventory and inspectionclaims as "the relief sought by the lawsuit was in factobtained as a result of Plaintiffs bringing this action" and thecomplaint had a legal basis.17 However, the court awardedfees for only 586 of the 1215 hours requested. We agree withKasza that the district court should have explained its reduc-tion; otherwise, meaningful appellate review is impossible.We therefore reverse the award of fees and remand for thecourt to articulate its reasons. Gates v. Deukmejian, 987 F.2d1392, 1396 (9th Cir. 1992).Kasza argues that in addition to being a substantially pre-vailing party on the inspection and inventory claims, she wasa substantially prevailing party on the disclosure claim; thiswe leave to the district court on remand.BThe district court ruled that Frost failed to qualify as a sub-stantially prevailing party because she did not obtain or con-tribute to the relief requested in her prayer, which asked foran order restraining the Air Force from incinerating and trans-porting hazardous wastes in the vicinity of Groom Lake.Although the court recognized that it could award fees on thecatalyst theory, it restricted its analysis to the prayer insteadof considering, as it should have, the entire complaint. Frostcomplained that the Air Force violated its RCRA inventoryduties, and sought a declaration to this effect. Withoutexpressing an opinion one way or the other about how the dis-trict court should come out on the matter, we remand for it tolook anew at " `what the lawsuit originally sought to accom-plish and what relief actually was obtained' " as a practicalmatter. Idaho Conservation League, 946 F.2d at 719 (quotingAndrew, 837 F.2d at 877).VIIConclusionWe affirm summary judgment in both Frost and Kasza. Weremand for the district court to consider whether to retain theJune 20, 1995 hearing transcript and related material underseal, and, if so, to state its state reasons. We dismiss EPA'scross-appeal in Kasza as moot. We also hold that there is nolonger a live controversy regarding the district court's deci-sion to clarify its original order allowing the plaintiffs in Frostand Kasza to proceed under fictitious names, and dismiss theirappeals on this point as moot. Finally, we reverse and remandthe district court's decisions on attorney's fees in both Frostand Kasza.Each party shall bear its own costs.AFFIRMED IN PART; DISMISSED IN PART;REVERSED AND REMANDED IN PART.
_____________________________TASHIMA, Circuit Judge, concurring:I concur in all of the majority's opinion, except Part II.B.I also concur in the judgment. I am unable, however, to con-cur in Part II.B because, first, it is entirely dicta, and, second,were it necessary to reach the issue, I would hold that the RCRA1presidential exemption preempts the common law statesecrets privilege in those areas where it applies.Part II.B addresses "Frost's argument that the Presidentialexemption provided by S 6001 preempts the state secrets priv-ilege as to RCRA regulatory material." This is a false claimthat need not be addressed.As the majority opinion points out, the presidential exemp-tion exempts "the disclosure of classified informationconcerning that operating location" (emphasis added), i.e., theoperating location near Groom Lake. Maj. op. at 114. Whatthe Air Force is withholding, purportedly under the statesecrets privilege, is information in ten categories, see id. at104, that the Secretary of the Air Force says in her unclassi-fied declaration "is validly classified " (emphasis added). Seeid. at 104-05 & App. I at P 4. Thus, the Air Force is withhold-ing exactly what the presidential exemption authorizes it towithhold -- classified information concerning the operatinglocation near Groom Lake -- and nothing more.In this case, there is no conflict between the scope of thestatutory exemption and the common law privilege. The onlymaterial claimed to be protected by the privilege is classifiedinformation; exactly, what the statutory exemption authorizes.Thus, there is no need to decide the hypothetical question ten-dered by Frost of whether the statutory exemption preemptsthe common law privilege, and any discussion of this issue isdicta.On the merits of this issue, according to the majority, infor-mation that RCRA requires the Air Force to compile andmaintain can be excluded from litigation either because apresidential exemption relieves the Air Force of its obligationto make this information publically available, or because theSecretary of the Air Force believes this information concernsa state secret. In my view, these dual grounds for keeping thesame information secret cannot coexist. The presidentialexemption and the state secrets privilege have exactly thesame purpose: They are both designed to keep state secretssecret. Thus, for the class of information that RCRA requiresthe Air Force to reveal, the presidential exemption and thestate secrets privilege "speak directly" to the same question,namely, what information the Air Force can keep hidden inthe name of national security. See United States v. Texas, 507U.S. 529, 534 (1993) ("In order to abrogate a common-lawprinciple, the statute must speak directly to the questionaddressed by the common law.") (citations and quotationmarks omitted).Accordingly, were we properly to reach the issue, I wouldhold that the Air Force cannot assert the state secrets privilegeto withhold any documents or information, except as autho-rized by the presidential exemption under RCRA. 2I.The majority, while correctly recognizing that a federalstatute preempts federal common law whenever the two speakdirectly to the same question, fails to define the relevant"question" with appropriate breadth. In Milwaukee v. Illinois,
451 U.S. 304
(1981), the Supreme Court made clear thata comprehensive regulatory statute can preempt well-established federal common law without even mentioning thecommon law rules preempted. That case concerned whetherthe 1972 Amendments to the Federal Water Pollution ControlAct preempted the federal common law claim for abatementof nuisance caused by interstate waters. The prior existence ofthe common law claim was clear and the 1972 Amendmentsdid not specifically say anything about it, so the Court couldhave applied the rule that statutes in derogation of the com-mon law are strictly construed. Instead, the Court noted thatthe 1972 Amendments established "a comprehensive programfor controlling and abating water pollution." Id. at 318 (cita-tion and quotations marks omitted). It concluded that "[t]heestablishment of such a self-consciously comprehensive pro-gram by Congress . . . strongly suggests that there is no roomfor courts to attempt to improve on that program with federalcommon law." Id. at 319.Milwaukee is instructive because the Supreme Court hassimilarly described RCRA as "a comprehensive environmen-tal statute that empowers EPA to regulate hazardous wastesfrom cradle to grave." City of Chicago v. EnvironmentalDefense Fund, 114 S.Ct. 1588, 1590 (1994). The text ofRCRA provides a clear means by which federal agencies,such as the Air Force, can protect state secrets from publicdisclosure under RCRA, i.e., by seeking a presidential exemp-tion. It seems odd for this court to add to this comprehensiveregulatory statute yet another means for protecting statesecrets, when Congress has not chosen to do so. See Mobil OilCorp. v. Higginbotham,
436 U.S. 618, 625
(1978) (holdingthat courts are not free to supplement congressional enact-ments with federal common law).Our decision in Jesinger v. Nevada Fed. Credit Union, 24F.3d 1127 (9th Cir. 1994), is also informative. In Jesinger, werefused to find a common law cause of action under the Fed-eral Credit Union Act (FCUA), 12 U.S.C. S 1751 et seq. Id.at 1131. We did not say that the FCUA was "comprehensive,"or that anything in the text of the law addressed whether a pri-vate right of action existed. Id. We noted only that the FCUAprovided a certain set of remedies and we inferred from thisthat Congress meant to address the general question of reme-dies and that we were not free to supplement Congress'answer with our own. Id. at 1131-32. Similarly, RCRA -- astatute that goes further than the FCUA and does comprehen-sively regulate an entire field -- explicitly provides a proce-dure to keep information secret if national security interestsare at stake and Jesinger clearly implies that we are not freeto supplement Congress' answer with our own.In sum, Milwaukee and Jesinger tell us that in decidingwhether a statute preempts federal common law, we must notbe too specific in our demand that Congress "speak directly"to the question addressed by the common law. In both of thesecases, the statute said nothing about the precise questioninvolved, but the courts found preemption by taking a broadview of congressional goals. With this background in mind,I now turn to the statute involved in the case at bench.II.In enacting RCRA, Congress declared "it to be the nationalpolicy of the United States that, wherever feasible, the genera-tion of hazardous waste is to be reduced or eliminated asexpeditiously as possible." 42 U.S.C. S 6902(b). Perhapsmore relevant to this case, Congress added that"[w]aste thatis nevertheless generated should be treated, stored, or dis-posed of so as to minimize the present and future threat tohuman health and the environment." Id. We know that Con-gress intended RCRA to apply to the Air Force becauseRCRA says that "[t]he term `Federal Agency' means anydepartment, agency, or other instrumentality of the FederalGovernment . . . ." 42 U.S.C. S 6903(4) (emphasis added).RCRA goes on to provide that federal agencies are subjectto "all Federal, State, interstate, and local requirements, bothsubstantive and procedural . . . respecting control and abate-ment of solid waste or hazardous waste disposal . . . ." 42U.S.C. S 6961(a). Also, each agency must submit an inven-tory to the EPA of agency-owned sites where hazardous wasteis stored or treated, 42 U.S.C. S 6937(a), the EPA mustinspect these sites, 42 U.S.C. S 6927(c), and the reports mustbe made public. 42 U.S.C. SS 6927(b) and 6937(a).A moment's reflection reveals what a huge intrusion RCRAis into the military's traditional ability to keep secrets.According to the language of the statute, the Air Force can nolonger simply refuse to acknowledge the existence of militarybases in this country or keep silent about everything that goeson there. Now, the Air Force is required to provide the EPAwith a great deal of information about its activities and theEPA is required to make this information public.It turns out that Congress appreciated the broad sweep ofRCRA and realized that some limits had to be placed on pub-lic disclosure, no matter how environmentally beneficial itmight be. For that reason, there are two exceptions to RCRA'srequirement that inventory reports be made public. The firstis mentioned in 42 U.S.C. S 6927(b): The EPA can refuse toreveal part of a report if it would result in a disclosure ofinformation under 18 U.S.C. S 1905, which protects "tradesecrets, processes, operations, style of work, or apparatus," aswell as other kinds of confidential statistical information. Theother exception is the presidential exemption: "The Presidentmay exempt any solid waste management facility of anydepartment, agency, or instrumentality in the executivebranch from compliance with [any Federal or State solid orhazardous waste law] if he determines it to be in the para-mount interest of the United States to do so." 42 U.S.C.S 6961(a). An exemption lasts for only one year, although itmay be renewed, and the President must tell Congress everyJanuary what exemptions he has issued in the past year. Id. Ifthere were any doubt about why the presidential exemptionexists, we could turn to the original House Report on RCRA,which used the phrase "national security interests" in place of"paramount interests." H.R. Rep. No. 94-1491, at 67 (1976),reprinted in 1976 U.S.C.C.A.N. 6238, 6305.Considering the structure of RCRA as a whole, it is clearthat Congress has "spoken directly" to the question of whenand how information that is required by RCRA may be keptsecret. The plain language of the statute subjects the Air Forceto its terms and requires certain information about the AirForce's activities to be made public. The statute also createstwo exceptions to these requirements, one for trade secretsand the like, the other for agencies exempted by the President.I would read this statute exactly as it is written.Instead, the majority would create a third exception toRCRA's requirement to make inventory reports public: If adepartment head thinks disclosure might harm national secur-ity, then she can withhold information without presidentialapproval. This makes a presidental exemption mere surplus-age and effectively thwarts Congress' attempt to centralizeresponsibility by making one person accountable for nationalsecurity exemptions to RCRA. Gone too are Congress'requirements that RCRA exemptions be renewed every singleyear and that the President report to Congress each January onwhat exemptions he has issued. Now any department head canrefuse to disclose information required by RCRA, they neverhave to renew this refusal, and nobody reports to our electedrepresentatives. By holding that the state secrets privilege canbe invoked even for information that a federal statute requiresthe Air Force to produce, the majority has flouted the plainlanguage of RCRA and created exactly the kind of wide andinvisible diffusion of power that Congress feared when itwrote the presidential exemption.III.The majority avoids finding preemption by concluding thatthe state secrets privilege and the presidential exemption havedifferent purposes, but this argument cannot withstand closescrutiny. The majority states, "the state secrets privilege and[the exemption] have different purposes: one is an evidentiaryprivilege that allows the government to withhold sensitiveinformation within the context of litigation; the other allowsthe President to exempt a federal facility from compliancewith RCRA's regulatory regime." Maj. op. at 102. But obvi-ously, the phrase "an evidentiary privilege that allows thegovernment to withhold sensitive information within the con-text of litigation" is a description of what the privilege is, nota description of its purpose. To discover the purpose of theprivilege, we need to ask, Why would someone think it is agood idea to let the government withhold sensitive informa-tion within the context of litigation? Similarly, the words"allows the President to exempt a federal facility from com-pliance with RCRA's regulatory regime" describe only whatthe exemption does. To ascertain the purpose of the exemp-tion, we need to ask, Why would someone think it is a goodidea to let the President exempt a federal facility from compli-ance with RCRA's regulatory regime? Yet these are preciselythe questions the majority neither asks nor answers.As to the first question, the Supreme Court has alreadyexplained the purpose of the state secrets privilege: It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. On this princi- ple, suits cannot be maintained which would require a disclosure of the confidences of the confessional, or those between husband and wife, or of communi- cations by a client to his counsel for professional advice, or of a patient to his physician for a similar purpose. Much greater reason exists for the applica- tion of the principle to cases of contract for secret services with the government, as the existence of a contract of that kind is itself a fact not to be dis- closed.Totten v. United States, 92 U.S. (2 Otto) 105, 107 (1875). Seealso United States v. Reynolds,
345 U.S. 1, 10
(1953)("[T]here is a reasonable danger that compulsion of the evi-dence will expose military matters which, in the interest ofnational security, should not be divulged.").Thus, the purpose of the privilege is to keep state secretssecret. The majority, by contrast, suggests that the privilegehas something to do with litigation in particular. See maj. op.at 102 ("one is an evidentiary privilege that allows the gov-ernment to withhold sensitive information within the contextof litigation") (emphasis added). It is true that the law of evi-dence sometimes excludes information for reasons related tolitigation. For example, the Federal Rules of Evidence do notpermit the introduction of evidence of subsequent remedialmeasures, offers of compromise, payment of medical ex-penses, a rape victim's past sexual behavior, as well as evi-dence of a person's character. Fed. R. Evid. 404, 407, 408,409, 412. No one thinks that by excluding this evidence froma trial we keep it secret from the world at large. Rather, weexclude this otherwise public information because we fear itsimpact on a particular trial. Hence, it would be correct to saythat these public policy exclusions "withhold sensitive infor-mation within the context of litigation" because their purposeis specifically related to the litigation.Entirely different from the public policy exclusions are thecommon-law evidentiary privileges, such as the attorney-client privilege, the doctor-patient privilege, the husband-wifeprivilege, and the priest-penitent privilege. These privilegesexist not because we fear the impact that certain kinds ofinformation might have on a trial. Rather, we are motivatedby a more general social policy goal of keeping certain kindsof information secret. Secret from the court. Secret from thejury. Secret from the world. The evidentiary privileges applyonly in litigation for the very simple reason that in ordinarylife, people can keep their secrets because they are not com-pelled to testify or answer discovery requests. But it does notfollow that the purpose of these privileges has anything to dowith litigation; therefore, it is incorrect to describe thepurpose of an evidentiary privilege as "to withhold sensitiveinformation within the context of litigation." The purpose isto withhold sensitive information from the world at large.After all, in our system, litigation is conducted in public andwhat is introduced as evidence at a trial presumptively passesinto the public domain. See, e.g., Globe Newspaper Co. v.Superior Court,
457 U.S. 596, 604
-06 (1982); Valley Broad-casting Co. v. United States Dist. Court, 798 F.2d 1289,1293-94 (9th Cir. 1986).It is clear to me, as it was clear to the Supreme Court morethan 120 years ago, that the state secrets privilege is moti-vated by the same general desire for secrecy as are the otherevidentiary privileges. It exists not to "withhold sensitiveinformation within the context of litigation," but to withholdit from the world at large.Once the purpose of the state secrets privilege is properlyunderstood, it becomes obvious why the RCRA presidentialexemption preempts it. The two provisions have exactly thesame purpose. The exemption allows the President to avoidthe mandatory disclosure requirements of RCRA, if he deter-mines that it is in the "paramount interests" of the UnitedStates to do so. Why does this provision exist? To keep statesecrets secret.To be sure, the exemption and the privilege work very dif-ferently. The common-law privilege can be claimed by thehead of a department, Reynolds,
345 U.S. at 8
, while theexemption may be claimed only by the President. 42 U.S.C.S 6961(a). The exemption must be renewed annually and mustbe reported to Congress, id., while no such requirementsapply to the privilege. The majority argues that the scope ofthe privilege also differs from that of the exemption: "If afacility has been exempted, for example, a citizen's suit couldquestion whether the exemption was in the paramount interestof the United States, to which the exemption itself would notapply but to which the state secrets privilege might." Maj. op.at 102.As an initial matter, I doubt that a citizen's suit could actu-ally challenge the President's determination that a RCRAexemption was "in the paramount interest of the UnitedStates." That is a classic example of a political questionfirmly committed to executive discretion. See generally Heck-ler v. Chaney,
470 U.S. 821, 832
(1984) (rejecting judicialreview under the Administrative Procedure Act for agencydecisions within the "special province of the ExecutiveBranch"); cf. Baker v. Carr,
369 U.S. 186, 217
(1961) (reject-ing judicial review of constitutional questions when a casecannot be decided "without an initial policy determination ofa kind clearly for nonjudicial discretion"). Does the majorityreally believe that federal judges should tell the Presidentwhat is, and what is not, "in the paramount interest of theUnited States?"Regardless, whenever a statute preempts the common law,it is different from the common law it is preempting. Other-wise, we would call it a "codification." The relevant questionis whether the statute "speaks directly" to the question previ-ously answered by federal common law, not whether it pro-vides the same answer. United States v. Texas,
507 U.S. 529
,534 (1993). In this case, the presidential exemption and thestate secrets privilege speak directly to the same question;therefore, I am unable to join in Part II.B of the majority opin-ion.IV.Under the majority's view, there is a class of informationgenerated under RCRA that could potentially be kept secretunder the state secrets privilege, even though no presidentialexemption has been issued under RCRA. For that class ofinformation, because the exemption and the privilege speakdirectly to the same point, I would conclude that the commonlaw privilege is preempted by RCRA's presidential exemptionprovision.
_____________________________APPENDIX IUNITED STATES DISTRICT COURTDISTRICT OF NEVADAJohn Doe I, John Doe II, JohnDoe III, John Doe IV, John DoeV, and John Doe VI, Plaintiffs, Civil: v. CV-S-94-795-PMPCarol M. Browner, Administrator,Environmental Protection Agency, Defendant.andHelen Frost, John Doe I, John DoeII, John Doe III, John Doe IV,John Doe V, and John Doe VI, Plaintiffs, v. Civil:William Perry, Secretary of CV-S-94-714-PMPDefense, Anthony Lake, NationalSecurity Adviser, and SheilaWidnall, Secretary of the AirForce, Defendants.UNCLASSIFIED DECLARATION ANDCLAIM OF MILITARY AND STATE SECRETSPRIVILEGE OF SHEILA E. WIDNALL,SECRETARY OF THE AIR FORCEI, SHEILA E. WIDNALL, HEREBY DECLARE THE FOL-LOWING TO BE TRUE AND CORRECT:1. Official Duties: I am the Secretary of the United States AirForce and the head of the Department of the Air Force. In thatcapacity, I exercise the statutory functions specified in section8013 of Title 10, U.S. Code. I am responsible for the formula-tion of Air Force policies and programs that are fully consis-tent with the national security directives of the President andthe Secretary of Defense, including those that protect nationalsecurity information relating to the defense and foreign rela-tions of the United States. As the Secretary of the Air Force,I exercise authority over the operating location near GroomLake, Nevada, and the information associated with that oper-ating location. As the head of an agency with control over theinformation associated with the operating location nearGroom Lake, I am the proper person to assert the military andstate secrets privilege with regard to that information. UnderExecutive Order 12356, I exercise original TOP SECRETclassification authority, which permits me to determine theproper classification of national security information onbehalf of the United States. Executive Order No. 12356, Sec.1.2, 47 Fed. Reg. 20,105 (1982), reprinted in 50 U.S. CodeSection 401 (1991); Presidential Order of May 7, 1982, Offi-cials Designated to Classify National Security Information, 50U.S. Code Section 401 (1991).2. Purpose: This Declaration is made for the purpose ofadvising the court of the national security interests in and thesecurity classification of information that may be relevant tothe above captioned lawsuits. The statements made herein arebased on (a) my personal consideration of the matter, (b) mypersonal knowledge; and (c) my evaluation of informationmade available to me in my official capacity. I have con-cluded that release of certain information relevant to theselawsuits would necessitate disclosure of properly classifiedinformation about the Air Force operating location nearGroom Lake, Nevada. I am satisfied that the informationdescribed in the classified Declaration is properly classified.I have further determined that the information described in theclassified Declaration, if released to the public, could reason-ably be expected to cause exceptionally grave damage to thenational security. It is not possible to discuss publicly themajority of information at issue without risking the very harmto the national security that protection of the information isintended to prevent.3. Security Classification: Under Information Security Over-sight Office guidance, "[c]ertain information that would oth-erwise be unclassified may require classification whencombined or associated with other unclassified information."(32 CFR 2001.3(a)) Protection through classification isrequired if the combination of unclassified items of informa-tion provides an added factor that warrants protection of theinformation taken as a whole. This theory of classification iscommonly known as the mosaic or compilation theory. Themosaic theory of classification applies to some of the infor-mation associated with the operating location near GroomLake. Although the operating location near Groom Lake hasno official name, it is sometimes referred to by the name ornames of programs that have been conducted there. Thenames of some programs are classified; all program names areclassified when they are associated with the specific locationor with other classified programs. Consequently, the releaseof any such names would disclose classified information.4. National Security Information: As the head of the agencyresponsible for information regarding the operating locationnear Groom Lake, I have determined that information thatconcerns this operating location and that falls into any of thefollowing categories, is validly classified:a. Program(s) name(s)b. Mission(s);c. Capabilities;d. Military plans, weapons, or operations;e. Intelligence sources and methods;f. Scientific or technological matters;g. Certain physical characteristics;h. Budget, finance, and contracting relationships;i. Personnel matters; and,j. Security sensitive environmental data. The following areexamples of why certain environmental data is sensitive to thenational security. Collection of information regarding the air,water, and soil is a classic foreign intelligence practice,because analysis of these samples can result in the identifica-tion of military operations and capabilities. The presence ofcertain chemicals or chemical compounds, either alone or inconjunction with other chemicals and compounds, can revealmilitary operational capabilities or the nature and scope ofclassified operations. Similarly, the absence of certain chemi-cals or chemical compounds can be used to rule out opera-tions and capabilities. Revealing the composition of thechemical waste stream provides the same kind of exploitableinformation as does publishing a list of the chemicals usedand consumed. Analysis of waste material can provide criticalinformation on the makeup as well as the vulnerabilities of thematerial analyzed. Disclosure of such information increasesthe risk to the lives of United States personnel and decreasesthe probability of successful mission accomplishment.5. Role of State and Federal-Environmental Agencies: Since1990, appropriately cleared representatives of Nevada'sDepartment of Conservation and Natural Resources have beenauthorized access to the operating location near Groom Lake.The state representative's role is and has been to monitor andenforce compliance with environmental laws and regulationsand to advise on remedial efforts, if required. Appropriatelycleared officers of the U.S. Environmental Protection Agencywere recently granted access to the operating location nearGroom Lake for inspection and enforcement of environmentallaws. Federal inspectors from the Environmental ProtectionAgency commenced an inspection pursuant to the SolidWaste Disposal Act, commonly referred to as a "RCRAinspection," at the operating location near Groom Lake,Nevada on December 6, 1994. The Air Force has taken thesesteps to ensure full compliance with all applicable environ-mental laws. At the same time that the operating location nearGroom Lake is being inspected for environmental compli-ance, it is essential to the national security that steps also betaken to prevent the disclosure of classified information.6. Invoking Military and State Secrets Privilege: It is myjudgment, after personal consideration of the matter, that thenational security information described in this Declarationand in the classified Declaration, concerning activities at theU.S. Air Force operating location near Groom Lake, Nevada,constitutes military and state secrets. As a result, disclosure ofthis information in documentary or testimonial evidence mustbe barred in the interests of national security of the UnitedStates. Pursuant to the authority vested in me as Secretary ofthe Air Force, I hereby invoke a formal claim of military andstate secrets privilege with respect to the disclosure of thenational security information listed in paragraph four of thisDeclaration and more fully discussed in the classified Decla-ration, whether through documentary or testimonial evidence.7. Environmental Compliance: Although I have found it nec-essary to invoke the military and state secrets privilege, Ibelieve it important to comment on the Air Force's commit-ment to full compliance with the environmental laws of theUnited States. Our goal is to be the best possible environmen-tal steward of the lands comprising the Nellis Range. To meetthat goal we are cooperating and will continue to cooperatewith both federal and state environmental agencies.8. Under penalty of perjury, and pursuant to section 1746 ofTitle 28, U.S. Code, I certify and declare that the foregoingstatements are true and correct.Executed this 21 day of February, 1995, at Arlington, Vir-ginia.
___________________________FOOTNOTES 1 The facility is referred to for purposes of these actions as "the operat-ing location near Groom Lake."2 Kasza v. Browner, No. 96-15535 and 96-15537 proceeds against CarolM. Browner, the Administrator of the United States Environmental Protec-tion Agency. We will refer to her either as the Administrator or the EPA.The named defendants in Frost v. Perry, No. 96-16047, are William Perry,then the Secretary of the Department of Defense; Anthony Lake, then theNational Security Advisor; and Sheila Widnall, the Secretary of the AirForce. We will refer to them collectively as the Air Force.3 The district court had jurisdiction in Frost pursuant to RCRA Section7002(a)(1)(A), 42 U.S.C. S 6972(a)(1)(A), and in Kasza, pursuant toRCRA Section 7002(a)(2), 42 U.S.C. S 6972(a)(2). We have jurisdictionpursuant to 28 U.S.C. S 1291.4 Each federal agency must compile, publish, and submit to the Adminis-trator (and to the state where the site is located if it has an authorized haz-ardous waste program) an inventory of each site at which hazardous wasteis stored, treated, or disposed of or has been disposed of at any time.RCRA S 3016(a), 42 U.S.C. S 6937(a).5 Widnall's unclassified declaration is recited in full in Appendix I.6 The Administrator must annually undertake an inspection of each fed-eral facility for the treatment, storage, or disposal of hazardous waste toenforce compliance with RCRA. RCRA S 3007(c); 42 U.S.C. S 6927(c).The results shall be available to the public, unless trade secret informationwould be disclosed. RCRA S 3007(b); 42 U.S.C.S 6927(b). If an agencyfails to provide the hazardous waste inventory required by S 3016,S 3016(b) obligates the Administrator to "carry out the inventory programfor such agency." 42 U.S.C. S 6937(b). The Administrator also must sharewith the state information she has received on hazardous waste sites.RCRA S 3012(a); 42 U.S.C. S 6933(a).7 The declarants are Barry N. Breen, Director of EPA's Federal FacilitiesEnforcement Office, and Elliott P. Laws, Assistant Administrator ofEPA's Office of Solid Waste and Emergency Response.8 The relevant language in S 6001(a) provides in full: The President may exempt any solid waste management facility of any department, agency, or instrumentality in the executive branch from compliance with such a requirement if he determines it to be in the paramount interest of the United States to do so. No such exemption shall be granted due to lack of appropriation unless the President shall have specifically requested such appro- priation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, but additional exemptions may be granted for periods not to exceed one year upon the President's making a new determination. The President shall report each January to the Congress all exemp- tions from the requirements of this section granted during the pre- ceding calendar year, together with his reason for granting each such exemption.42 U.S.C. S 6961(a).9 The one argument Frost makes that might make a difference has to dowith the district court's holding that an Air Force manual she says waspublicly available, and material, was improperly withheld from evidence.However, the argument lacks merit, as the district court did not clearly errin finding that the manual was classified. Frost's related contentions aboutabuse of the privilege, including that submission of the manual led to a"court seal" over her counsel's office, lack any basis in the record.10 The district court cited 28 U.S.C. S 519, to this effect. Section 519states: Except as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.11 We assume without deciding that the Nevada Supreme Court Rulesgovern the conduct of DOJ attorneys appearing in the United States Dis-trict Court for the District of Nevada. Nevada Supreme Court Rule 157parallels ABA Model Rule 1.7, and provides: 1. A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless (a) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (b) Each client consents, preferably in writing, after consulta- tion. 2. A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibili- ties to another client or to a third person, or by the lawyer's own interests, unless: (a) The lawyer reasonably believes the representation will not be adversely affected; and (b) The client consents, preferably in writing, after consulta- tion. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.12 Kasza further argues that the district court should not have denied hera continuance for more discovery before hearing EPA's motion for sum-mary judgment, but we need not reach this issue in light of our conclusionthat her claims for relief are moot.13 This ruling is the subject of EPA's cross-appeal, which we discuss inPart IV, infra at 116. We will also, however, dismiss the cross-appeal asmoot.14 The President renewed this exemption on September 28, 1996 andSeptember 26, 1997. See Presidential Determination 96-54, 61 Fed. Reg.52,679 (Oct. 8, 1996) and Presidential Determination 97-35, 62 Fed. Reg.52647 (Oct. 8, 1997).15 Section 793(d) imposes a fine of not more than $10,000 and not morethan 10 years imprisonment on individuals who give classified informa-tion "to any person not entitled to receive it."16 KLAS filed an amicus curiae brief in Frost's appeal.17 See Kasza v. Browner, 932 F.Supp. 254 (D. Nev. 1996).1 I use the same short-form references as the majority.2 It is important to note that, in any event, RCRA would not preempt thecommon law privilege in those areas to which RCRA does not "directly"speak. For example, it would appear that certain categories of informationas to which the state secrets privilege is claimed are not within RCRA'sscope. Of the 10 categories of information as to which the privilege isclaimed, see Maj. Op. at 104 & App. I atP 4, only one -- "security sensi-tive environmental data" -- would appear to be preempted by the RCRAexemption. Sheila E. Widnall Secretary of the Air Force the end