                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              August 27, 2012
                                      PUBLISH              Elisabeth A. Shumaker
                                                               Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 LOS ALAMOS STUDY GROUP,

             Plaintiff - Appellant,
       v.                                             No. 11-2141
 UNITED STATES DEPARTMENT
 OF ENERGY; THE HONORABLE
 STEVEN CHU, in his capacity
 Secretary, Department of Energy;
 NATIONAL NUCLEAR SECURITY
 ADMINISTRATION; THE
 HONORABLE THOMAS PAUL
 D’AGOSTINO, in his capacity as
 Administrator, National Nuclear
 Security Administration,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                 (D.C. NO. 1:10-CV-00760-JCH-ACT)


Thomas M. Hnasko, Hinkle, Hensley, Shanor & Martin, LLP, Santa Fe, New
Mexico, (Dulcinea Z. Hanuschak, Hinkle, Hensley, Shanor & Martin, LLP, and
Lindsay A. Lovejoy, Jr., Law Office of Lindsay A. Lovejoy, Jr., Santa Fe, New
Mexico, with him on the brief), for Plaintiff - Appellant.

Robert P. Stockman, Environment & Natural Resources Division, United States
Department of Justice, Washington, DC, (Ignacia S. Moreno, Assistant Attorney
General, Washington, DC; Andrew A. Smith, John P. Tustin, Environment &
Natural Resources Division, United States Department of Justice, and Janet
Masters, Matthew F. Rotman, of counsel, Office of the General Counsel, U.S.
Department of Energy, with him on the brief), for Defendants - Appellees.
Before BRISCOE, Chief Judge, McKAY, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.


      On August 16, 2010, Plaintiff Los Alamos Study Group filed a complaint

for declaratory and injunctive relief under the National Environmental Policy Act

(NEPA), 42 U.S.C. §§ 4321–4347, and the Administrative Procedure Act (APA),

5 U.S.C. §§ 701–706. Defendants were the National Nuclear Security

Administration (NNSA), the United States Department of Energy (DOE), NNSA’s

administrator, and the DOE secretary. The complaint alleged that the design

proposed for construction of a Chemistry and Metallurgy Research Replacement

Nuclear Facility (the Nuclear Facility) at the Los Alamos National Laboratory

(the Laboratory) had changed so much since the original environmental analysis

in 2003 that a new analysis was required and that all work on the facility should

be halted until the conclusion of such analysis. The district court dismissed the

claims on two grounds: (1) that they were prudentially moot because Defendants

began an environmental analysis after the complaint was filed and committed to

refraining from all construction on the Nuclear Facility until the analysis was

complete, and (2) that the case was not yet ripe because there had been no final

agency action. We agree with the district court on the ripeness issue. We

therefore need not address prudential mootness.


                                        -2-
I.    BACKGROUND

      A.    Regulatory Overview

      NNSA is an agency within the DOE whose responsibilities include

managing and securing the nation’s nuclear weapons. As part of these

responsibilities, NNSA administers the Laboratory in Los Alamos, New Mexico.

The Laboratory supports various activities relating to nuclear weapons, including

“nuclear materials handling, processing and fabrication; stockpile management;

materials and manufacturing technologies; nonproliferation programs; and waste

management activities.” 69 Fed. Reg. 6967, 6968 (Feb. 12, 2004).

      As a federal agency, NNSA must comply with the provisions of NEPA,

which “declares a broad national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 348 (1989). NEPA does not require agencies to reach particular substantive

environmental results. See id. at 350–51. But it “requires federal agencies to

pause before committing resources to a project and consider the likely

environmental impacts of the preferred course of action as well as reasonable

alternatives.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711

(10th Cir. 2010) (internal quotation marks omitted). Its dual goals are that the

agency “consider every significant aspect of the environmental impact of a

proposed action” and “inform the public that it has indeed considered

environmental concerns in its decisionmaking process.” Baltimore Gas &

                                        -3-
Electric Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (internal

quotation marks omitted).

      To further these goals, NEPA requires thorough environmental studies

before official action:

      [B]efore an agency may take major Federal actions significantly
      affecting the quality of the human environment, an agency must
      prepare an environmental impact statement (EIS) in which the agency
      considers the environmental impacts of the proposed action and
      evaluates alternatives to the proposed action, including the option of
      taking no action. In doing so, the agency must take a hard look at
      information relevant to its decision.

Forest Guardians, 611 F.3d at 711 (citations, brackets, and internal quotation

marks omitted). If, after an EIS has been prepared, “there are substantial changes

to the proposal or significant new circumstances or information relevant to

environmental concerns,” then a supplemental EIS (an SEIS) must be prepared.

10 C.F.R. § 1021.314(a). An SEIS is prepared in the same manner as the original

EIS, except that the DOE is not required to allow the public to comment on the

scope of an SEIS. See id. § 1021.311(a), (f); id. § 1021.314(d); 40 C.F.R.

§ 1501.7 (defining scoping as “an early and open process for determining the

scope of issues to be addressed and for identifying the significant issues related to

a proposed action”). If the DOE takes action on a proposal in an EIS or SEIS, it

must prepare a public record of decision (ROD), see 10 C.F.R. § 1021.315(b); id.

§ 1021.314(d), which states what the decision is, identifies and analyzes the




                                         -4-
alternatives considered, and discusses means of avoiding or minimizing

environmental harm from the selected alternative, see 40 C.F.R. § 1505.2.

      B.    Chemistry and Metallurgy Research Building

      Many of the Laboratory’s activities require facilities equipped to handle

radioactive materials. The most important of these facilities are located in the

Chemistry and Metallurgy Research building (the CMR Building) and a separate

plutonium facility (which is being upgraded in another project). Some of the

CMR Building’s capabilities are apparently unique, such as its analytical-

chemistry and materials-characterization functions. In the late 1990s NNSA

concluded that the CMR Building was “near the end of its useful life,” 69 Fed.

Reg. 6967, 6968, both because a seismic analysis had revealed that the building

lacked sufficient structural integrity and because its components were aging.

NNSA therefore began considering options for how and where to continue the

functions performed at the CMR Building. An EIS in 2003 analyzed four

alternatives for the Chemistry and Metallurgy Research Building Replacement

Project. They varied in what buildings would be constructed and where they

would be placed. The ultimate choice for the project in the 2004 ROD, see id. at

6967–72, was “Alternative 1”: replacing the CMR Building with a new facility at

Technical Area 55 comprised of two buildings: a “consolidated nuclear material-

capable, Hazard Category 2 laboratory building” (the Nuclear Facility), and “a

separate, adjacent administrative office and support functions building,” referred

                                        -5-
to as the Radiological Laboratory Utility Office Building (the Office Building).

75 Fed. Reg. 60745, 60746 (Oct. 1, 2010). The project also involved the

“construction of a parking areas(s) [sic], tunnels, vault area(s), and other

infrastructure support needs.” 69 Fed. Reg. 6967, 6968. The 2004 ROD was

never challenged.

      Over the following years the design changed, primarily to accommodate

seismic and safety concerns. The changes have increased the scale and estimated

cost of the proposed construction. For example, the original design for the

Nuclear Facility called for a building with “a footprint of 300 by 275 feet, with

one story below ground and one story above ground,” Aplt. App., Vol. 3 at 568;

but as of August 2010 the proposed building had a footprint of 342 by 304 feet,

“with three levels below ground and one-and-a-half levels above ground,” id. at

569. The estimated cost increased from $745 to $975 million for both the Office

Building and the Nuclear Facility in 2005 to over $2 billion for just the Nuclear

Facility in 2009.

      C.     Later Environmental Studies

      By July 30, 2010, these changes (and perhaps communications from

Plaintiff) had led NNSA to conclude that it should prepare a Supplement Analysis

to determine whether it needed an SEIS to update the 2003 EIS. See 10 C.F.R.

§ 1021.314(c) (requiring preparation of Supplement Analysis when “it is unclear

whether or not an EIS supplement is required”). Before completing a Supplement

                                          -6-
Analysis, however, NNSA decided to prepare an SEIS. Donald Cook, the Deputy

Administrator for Defense Programs at NNSA, filed a sworn declaration stating

that no Nuclear Facility construction would occur during the preparation of the

SEIS. After two public meetings and a 45-day comment period, NNSA issued a

Draft SEIS in April 2011. It held three public hearings on the Draft SEIS and

accepted comments for 45 days. The final SEIS was published in August

2011—several months after the district court had issued its opinion in this

case—and the Amended ROD was published in October 2011. Plaintiff is

challenging the SEIS and the Amended ROD in a different action.

      D.     Ongoing Activity at the Laboratory

      Even as there have been reevaluations of the Nuclear Facility component of

the project approved by the 2004 ROD, some other authorized actions have

continued. Construction of the Office Building, for example, is complete.

Construction of the Nuclear Materials Safeguards and Security Upgrades Project

Phase II, which provides a security system at Technical Area 55, is ongoing.

Also, design work for the Nuclear Facility has continued. The district court found

that the design for the overall project was less than 50% complete, and during the

SEIS process the design was expected to advance by only about 15%. By October

2010 approximately $210 million had been spent on design work for the Nuclear

Facility. The Federal Project Director submitted a sworn declaration that the

ongoing design process “[would] provide important information for the analysis

                                        -7-
in the SEIS needed to understand and address uncertainties associated with the

construction of the [Nuclear Facility].” Aplt. App., Vol. 3 at 822 (Declaration of

Herman C. LeDoux at 2, Los Alamos Study Group v. U.S. Dep’t of Energy,

No. 10-CV-760 JCH/ACT (Dec. 20, 2010)).

      E.    District-Court Proceedings

      Plaintiff filed its complaint in the United States District Court for the

District of New Mexico on August 16, 2010, soon after being notified that NNSA

planned to prepare a Supplement Analysis, but before NNSA announced its

decision to prepare an SEIS. The complaint contains five claims: (1) that

Defendants are violating NEPA and the APA by failing to prepare an applicable

EIS for the Nuclear Facility while implementing a proposal that differs

substantially from any analyzed in the 2003 EIS; (2) that NEPA prohibits

Defendants from proceeding with the Nuclear Facility before preparing a new EIS

that considers connected actions and cumulative environmental impacts arising

from other Laboratory projects; (3) that Defendants are violating NEPA by failing

to identify mitigation measures and prepare a mitigation action plan for the

current version of the proposed Nuclear Facility; (4) that Defendants are violating

NEPA by failing to integrate required environmental analyses into their

decisionmaking processes for revising plans for the Nuclear Facility; and (5) that

Defendants are violating NEPA by not providing a notice or comment process for

public input regarding the Nuclear Facility. In an October 4 motion to dismiss

                                         -8-
under Fed. R. Civ. P. 12(b)(1), Defendants stated that they were conducting

further environmental reviews, and argued that the claims were time-barred,

would not be ripe until completion of the SEIS and issuance of a ROD, and were

moot.

        The district court referred the matter to a magistrate judge, who issued

proposed findings and a recommended disposition on January 6, 2011. After

reviewing de novo the findings and recommendation and holding two additional

hearings, the district court issued a May 23 opinion holding that the complaint

should be dismissed as prudentially moot and unripe. Regarding ripeness, the

court held that because the SEIS process was ongoing, there was no “final agency

action” for a court to review. Aplt. App., Vol. 2 at 331 (Mem. Op. & Order at 18,

Los Alamos Study Group, No. 10-CV-760 JCH/ACT (May 23, 2011) (internal

quotation marks omitted)). In response to Plaintiff’s contention that Defendants

were making an irretrievable commitment of resources to the Nuclear Facility

project, the court said that Defendants had made no decision formally allowing

detailed design and construction and that Nuclear Facility construction would not

begin before completion of the SEIS. Although $210 million had been spent on

the project during the prior six years, the court noted that the money had been for

“building design and analysis” and that “the expenditure of even large amounts of

money on design does not indicate that NNSA has made an irreversible and

irretrievable commitment of resources, because design work is ongoing and

                                          -9-
neither a final SEIS nor a final approval for construction has been issued.” Id.

(internal quotation marks omitted). The court also found that Plaintiff had not

shown that the result of the environmental analysis had been predetermined.

      Plaintiff appealed. The parties then filed additional motions in this court.

Defendants filed a motion for summary disposition on November 1, 2011, arguing

that the issuance of a final SEIS and Amended ROD rendered the case

constitutionally moot. Plaintiff responded that the case was not moot because the

NEPA violations were continuing. Then, on March 6, 2012, Plaintiff filed a

motion to supplement the record, vacate the judgment below, and remand under

Tenth Circuit Rule 27.2(A)(1) because the DOE/NNSA 2013 budget request

allegedly contradicted the SEIS. Defendants responded that the motion did not

comply with Rule 27.2 and that the budget proposal was not a final agency action.

      On appeal Plaintiff argues that the issues are neither prudentially moot nor

unripe and that the district court erred in resolving factual issues in favor of

Defendants despite conflicting evidence supporting Plaintiff. Because we agree

with the district court that the issues presented are not ripe, we do not decide the

prudential-mootness question.

II.   ANALYSIS

      A.     Procedural Issues and Standard of Review

      Plaintiff raises two procedural objections to the district court’s disposition

of Plaintiff’s motion to dismiss. First, it contends that the court should have

                                          -10-
converted Defendants’ Rule 12(b)(1) motion to dismiss into a motion for

summary judgment. Such a conversion would have restricted the court’s

authority to weigh evidence. Ordinarily, “[w]hen a motion relies on facts outside

the record, the court may hear the matter on affidavits or may hear it wholly or

partly on oral testimony or on depositions.” Fed. R. Civ. P. 43(c). In particular,

when considering a Rule 12(b)(1) motion to dismiss, the court may weigh the

evidence and make factual findings. See Holt v. United States, 46 F.3d 1000,

1003 (10th Cir. 1995) (“When reviewing a factual attack on subject matter

jurisdiction, a district court may not presume the truthfulness of the complaint’s

factual allegations. A court has wide discretion to allow affidavits, other

documents, and a limited evidentiary hearing to resolve disputed jurisdictional

facts under Rule 12(b)(1).” (citation omitted)). When ruling on a summary-

judgment motion, however, the court must view the evidence in the light most

favorable to the party opposing the motion. See In re Wal-Mart Stores, Inc., 395

F.3d 1177, 1189 (10th Cir. 2005).

      Plaintiff relies on an exception to the general rule permitting the weighing

of evidence in Rule 12(b)(1) proceedings. We have held that the district court

must convert a 12(b)(1) motion into a summary-judgment motion if “resolution of

the jurisdictional question is intertwined with the merits of the case.” Holt, 46

F.3d at 1003. Whether the issues are so intertwined is generally determined by

whether “subject matter jurisdiction is dependent on the same statute which

                                         -11-
provides the substantive claim in the case.” Id. (“Here, resolution of the

jurisdictional issue—i.e., whether the government is immune from suit under [the

Flood Control Act of 1928]—does not depend on the [Federal Tort Claims Act]

which provides the substantive claims in the case. Thus, the district court

properly treated the government’s motion as one brought pursuant to Rule

12(b)(1).”). Plaintiff contends that this exception applies because “NEPA

provides the basis for federal question jurisdiction and for the substantive claim.”

Aplt. Br. at 53.

      We do not address this contention because it was waived below. Plaintiff’s

brief in response to Defendants’ motion to dismiss contains a one-paragraph

section entitled “Legal Standard,” which states in part: “The Court has broad

discretion to freely weigh affidavits and other documents in resolving the

jurisdictional issue. In the following Response and documenting submittals,

[P]laintiff has provided significantly more than a preponderance of evidence that

this Court has subject matter jurisdiction over this litigation.” Aplt. App., Vol. 1

at 86 (citations omitted). A party cannot ask the district court to do something

and then complain on appeal that the court complied with the request. See

ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 771 (10th Cir. 2011) (invited-

error doctrine).

      Plaintiff’s second procedural complaint is that the magistrate judge erred in

denying leave for discovery on the issues raised by Defendants’ motion to

                                         -12-
dismiss. But Plaintiff never sought review by the district court of the magistrate

judge’s decision, so Plaintiff is not entitled to consideration by this court of the

denial. See Centennial Archaeology v. AECOM, No. 11-8000, 2012 WL 3055942,

at *9 (10th Cir. July 27, 2012); Niehaus v. Kansas Bar Ass’n, 793 F.2d 1159,

1164–65 (10th Cir. 1986), superseded by statute on other grounds as stated in De

Vargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377, 1383–84 (10th Cir.

1990).

         We now turn to the merits of the district court’s decision that the case is

not ripe for review. We review the decision de novo, see Utah v. U.S. Dep’t of

Interior, 535 F.3d 1184, 1191 (10th Cir. 2008), although we review for clear error

any findings of historical fact, see Gordon v. Norton, 322 F.3d 1213, 1219 (10th

Cir. 2003). Plaintiff bears the burden of showing ripeness. See id.

         B.    Ripeness

         The ripeness doctrine prevents courts “from entangling themselves in

abstract disagreements over administrative policies, and also . . . protect[s] the

agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.”

Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967), overruled on other

grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977). “A claim is not ripe for

adjudication if it rests upon contingent future events that may not occur as




                                           -13-
anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.

296, 300 (1998) (internal quotation marks omitted).

      One set of factors for determining ripeness is set forth in Qwest

Communications International, Inc. v. FCC, 398 F.3d 1222, 1231–32 (10th Cir.

2005): “(1) whether the issues involved are purely legal, (2) whether the

agency’s action is final, (3) whether the action has or will have an immediate

impact on the petitioner, and (4) whether resolution of the issue will assist the

agency in effective enforcement and administration.” 1 Here, the second

factor—the finality of agency action—is all we need consider, because the

absence of final agency action is dispositive. See Friends of Marolt Park v. U.S.

Dep’t of Transp., 382 F.3d 1088, 1093–94 (10th Cir. 2004) (“[W]hether the issues

are fit for review depends on whether the plaintiff challenges a final agency

action.”); Park Lake Res. Ltd. Liab. Co. v. U.S. Dep’t of Agric., 197 F.3d 448,

450 (10th Cir. 1999) (citing the APA, 5 U.S.C. § 704, which limits review to final

agency actions and actions made reviewable by statute).

      An agency’s action is final if it satisfies two requirements: “First, the

action must mark the consummation of the agency’s decisionmaking process—it


      1
         We have also articulated a three-factor test: “1) whether delayed review would
cause hardship to the plaintiffs; 2) whether judicial intervention would inappropriately
interfere with further administrative action; and 3) whether the courts would benefit
from further factual development of the issues presented.” Sierra Club v. U.S. Dep’t of
Energy, 287 F.3d 1256, 1262–63 (10th Cir. 2002). But the two tests “essentially
include[] all the same considerations.” Coal. for Sustainable Res., Inc. v. U.S. Forest
Serv., 259 F.3d 1244, 1250 n.11 (10th Cir. 2001).

                                          -14-
must not be of a merely tentative or interlocutory nature. And second, the action

must be one by which rights or obligations have been determined, or from which

legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)

(citations and internal quotation marks omitted); see Ctr. for Native Ecosystems v.

Cables, 509 F.3d 1310, 1329 (10th Cir. 2007) (quoting Bennett). Neither

requirement is satisfied here. As the district court found, the decisionmaking

process for building a Nuclear Facility was ongoing: “The [SEIS] process [was]

still open to public participation and it [was] unclear . . . what form the SEIS and

associated ROD [would] take.” Aplt. App., Vol. 2 at 329 (Mem. Op. & Order at

16, Los Alamos Study Group, No. 10-CV-760 JCH/ACT (May 23, 2011)). And

the agency had made no decision determining any rights or obligations: no

Nuclear Facility construction was occurring, the project design was less than 50%

complete, and NNSA was still evaluating sizing, layout, and excavation options.

See Bennett Hills Grazing Ass’n v. United States, 600 F.2d 1308, 1309 (9th Cir.

1979) (judicial review of draft SEIS was not warranted because courts should not

interfere until agency makes decision).

      Plaintiff argues that its claims are ripe because (1) NEPA requires the

preparation of an EIS before “irreversible and inretrievable commitments of

resources to an action that will affect the environment,” Reply Br. at 20 (internal

quotation marks omitted); (2) Defendants have made such commitments to the

Nuclear Facility; and (3) once an EIS is required, the court can act because “‘a

                                          -15-
person with standing who is injured by a failure to comply with the NEPA

procedure may complain of that failure at the time the failure takes place, for the

claim can never get any riper,’” id. at 29, quoting Ohio Forestry Ass’n, Inc.

Sierra Club, 523 U.S. 726, 737 (1998). Plaintiff cites several cases in support.

Those, and other, cases turn on whether the agency has committed to an action

that eliminates its ability to prevent later adverse environmental consequences,

such a binding commitment being final agency action for NEPA purposes. For

example, in New Mexico ex rel. Richardson v. Bureau of Land Management, 565

F.3d 683, 718 (10th Cir. 2009), the issuance of a lease without a no-surface-

occupancy stipulation was an irretrievable commitment because the agency could

not prevent environmental impacts caused by the lease after its issuance. See also

Ctr. for Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d 466, 480

(D.C. Cir. 2009) (challenge to first stage of multistage lease program was not ripe

when agency would be conducting additional analyses in later stages that could

scuttle the program); Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43,

49–50 (D.C. Cir. 1999) (focusing on whether the agency had given up the

authority to preclude the relevant activities and concluding that there was no

irreversible commitment because until leases were issued the Forest Service could

“undertake additional efforts to comply with its NEPA obligations”); Conner v.

Burford, 848 F.2d 1441, 1450 (9th Cir. 1988) (sale of leases required EIS because

after the sale the government could not preclude “activities [that were] likely, if

                                         -16-
not certain, to significantly affect the environment”); Mobil Oil Corp. v. FTC, 562

F.2d 170, 171–73 (2d Cir. 1977) (even when an agency indicated at the beginning

of an administrative proceeding what remedies it expected ultimately to request,

there was no irreversible commitment because the proceeding’s outcome was

merely speculative).

       Plaintiff, however, has identified no actions that irreversibly lead to

construction of the Nuclear Facility (and any resulting environmental injury).

Instead, it identifies only interlocutory actions that have no necessary

consequences for the facility. 2 We now address in turn the actions relied on by

Plaintiff.

             1.     Ongoing Construction

       One of Plaintiff’s primary arguments is that ongoing construction at the site

constitutes an irreversible commitment to build the Nuclear Facility. But the

district court found that no construction on the Nuclear Facility was occurring

during the SEIS process and that the construction already completed or underway

had been approved independently of the Nuclear Facility. Plaintiff has not shown

how any ongoing construction bound Defendants to build the Nuclear Facility.


       2
         We need not decide whether the present case became ripe upon preparation of
the SEIS or the issuance of the ROD, because Plaintiff does not argue ripeness on that
ground. Although we have a duty to determine whether we lack jurisdiction to hear a
case—a duty that arises because we have no authority to decide a matter when we lack
jurisdiction—we have no duty to investigate grounds for jurisdiction not raised by a
party. See Somerlott v. Cherokee Nation Distribs., Inc., No. 10-6157, 2012 WL
3055566, at *6 (10th Cir. July 27, 2012).

                                         -17-
            2.     Design Work

      As for design work—another allegedly irreversible commitment to build the

Nuclear Facility—the district court found that “NNSA is still evaluating the

aspects of relative sizing and layout of the proposed [Nuclear Facility], and the

overall project design is less than 50 percent complete.” Aplt. App., Vol. 2 at 320

(Mem. Op. & Order at 7, Los Alamos Study Group, No. 10-CV-760 JCH/ACT

(May 23, 2011)). As Plaintiff said in the complaint, Defendants had not even

made decisions classified as either “‘Critical Decision 2’” or “‘Critical Decision

3,’” which would “formally allow detailed design and construction, respectively.”

Id., Vol. 1 at 17 (Compl. for Declaratory J. & Injunctive Relief at 7, Los Alamos

Study Group, No. 10-CV-760 JCH/ACT (Aug. 16, 2010)). The present level of

design work does not prevent Defendants from considering alternative designs.

Cf. New Mexico ex rel. Richardson, 565 F.3d at 718 (sale of lease without no-

surface-occupancy stipulation was an irretrievable commitment because the

agency could not prevent environmental impacts caused by lessee after its

issuance). No legal consequences flow from the design work thus far and it

determines no rights or obligations. See Bennett, 520 U.S. at 177–78. The Ninth

Circuit made the same observation when considering an agency’s decision that it

would “partially fund preliminary design and engineering work”:

      Neither this decision nor the design and engineering work that will
      follow will have any impact upon appellants in and of themselves.
      The threat that such an impact will eventually occur is neither

                                        -18-
      immediate nor certain. The [agency] has explicitly disavowed any
      advance commitment to approve construction. The design and
      engineering work is still in progress.

Rapid Transit Advocates, Inc. v. S. Cal. Rapid Transit Dist., 752 F.2d 373, 378

(9th Cir. 1985) (dismissing case).

             3.     Administration Support

      Plaintiff next suggests that support for the project by the highest levels of

the Executive Branch shows that there has been final agency action. But it cites

no case law that such support makes a decision irreversible. And in any event a

commitment to a particular Nuclear Facility plan is not demonstrated by the

evidence it cites: a letter from the Vice President stating the Administration’s

“unequivocal commitment to recapitalizing and modernizing the nuclear

enterprise,” Aplt. App., Vol. 6 at 1736; a White House press release stating the

Administration’s commitment “to requesting the funding needed” to complete the

full Chemistry and Metallurgy Research Replacement facility, id. at 1737; a letter

from Senator John Kyl questioning the Administration’s commitment; and a

November 2010 article in the Nuclear Weapons & Materials Monitor that

discusses political negotiations regarding Senate support for the START treaty in

return for sufficient long-term funds to “moderniz[e] . . . the nation’s weapons

complex and arsenal.” Id., Vol. 3 at 696. General statements about nuclear

policy create no rights or obligations regarding the Nuclear Facility. Indeed, in a

March 6, 2012, motion to this court, Plaintiff asserts that the Administration’s

                                        -19-
current proposal is to defer construction of the Nuclear Facility for at least five

years.

               4.    Budget Proposal

         Also in the March 6 motion, Plaintiff argues that February 2012 budget

materials show that Defendants are considering new alternatives for the Nuclear

Facility. Plaintiff asks that we supplement the record with these budget materials

“to dispose of any claims of prudential mootness or ripeness.” Pl.-Appellant’s

Mot. to Supplement the Record, to Vacate the J. Below, & to Remand Pursuant to

Tenth Cir. Rule 27.2(A)(1) at 5 (Los Alamos Study Group v. U.S. Dep’t of Energy,

No. 11-2141 (10th Cir. Mar. 6, 2012)). But a budget request is no more a final

agency action than an offer is a contract. A request is not a binding legal

obligation. Indeed, even the appropriation of funds for construction would not

necessarily create final agency action absent final agency approval. See Rapid

Transit Advocates, 752 F.2d at 379. To the extent that the budget materials have

any relevance (and the logic of Plaintiff’s argument is far from clear to us), they

only emphasize that the conception of the Nuclear Facility is everchanging, with

no definitive decisions having been made.

               5.    Contractor’s Performance-Evaluation Plan

         About the time this suit was filed, the performance-evaluation plan for the

management and operating contractor, Los Alamos National Security, LLC

(LANS), included an award term based on LANS taking “[a]ctions necessary to

                                          -20-
issue and execute construction contracts.” Aplt. App., Vol. 6 at 1670. Plaintiff

apparently believes that this term establishes a binding commitment to construct

the Nuclear Facility. We think that conclusion is a stretch; but the issue is no

longer before us anyway because the plan was amended to eliminate that

obligation. Once the term was eliminated, which was before the district court

dismissed this case, it could no longer be the basis for finding this case ripe. See

Anderson v. Green, 513 U.S. 557, 559 (1995) (“[R]ipeness is peculiarly a

question of timing” and must be judged at the time of review. (internal quotation

marks omitted)); Hooker Chem. Co. v. EPA, 642 F.2d 48, 52–53 (3d Cir. 1981)

(case was not ripe when agency withdrew orders after the plaintiff filed petitions

for review); 13B Charles A. Wright et al., Federal Practice and Procedure

§ 3532.1, at 390 (3d ed. 2008) (“Many [cases] find that although a dispute was

once ripe, ripeness has been lost to overtaking events.”).

             6.     2010 Project-Update Presentation

      Plaintiff notes that a June 2010 project-update presentation states that

LANS should “‘plan for [Nuclear Facility] completion by 2020 with operations in

2022.’” Aplt. Br. at 57 (quoting Aplt. App., Vol. 6 at 1653). But planning for an

event and committing to its realization are not the same thing. See Bell v.

Bonneville Power Admin., 340 F.3d 945, 950 (9th Cir. 2003) (challenge was not

ripe when agency had “made only future plans to negotiate and support” but had

not made the relevant acquisition that might violate the statute). Although

                                         -21-
Plaintiff also asserts that the presentation demonstrates that “[c]ontracts for

interior fixtures have been let,” Aplt. Br. at 57 (citing Aplt. App., Vol. 6 at

1650–67), the cited pages do not support the assertion.

       Because the district court properly found that Defendants had not yet taken

any action requiring an environmental study for the Nuclear Facility, we affirm its

holding that Plaintiff’s claim was not ripe.

III.   CONCLUSION

       We AFFIRM the district court’s dismissal of Plaintiff’s suit. We DENY all

pending motions.




                                          -22-
