Federal judge denies Indian tribe's plea to halt nuclear dump

Federal judge denies Indian tribe's plea to halt nuclear dump

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KEN RITTER
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Associated Press

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LAS VEGAS - A federal judge has denied an Indian tribe's plea to stop federal plans for a national nuclear waste dump in Nevada based on a claim the project violates a 19th century treaty.

With the Yucca Mountain repository yet to open and a disputed rail line yet to be built, U.S. District Court Judge Philip Pro decided not to issue an injunction. He said the Western Shoshone National Council couldn't demonstrate "immediate and irreparable" harm.

Lawyer Robert Hager of Reno, representing the tribe, said Wednesday a decision on whether to appeal has not been made.

Hager said Pro's ruling did leave open the possibility that the tribe could seek an injunction later.

Energy Department spokesman Allen Benson said the government was gratified by the ruling. He said the department filed a motion Monday asking Pro to dismiss the tribe's March 4 lawsuit outright.

In his ruling Tuesday, Pro did not address that request. He rejected the tribe's request for a preliminary injunction to stop the federal government from applying to the Nuclear Regulatory Commission for an operating license and from planning a railroad line across Nevada to reach the $58 billion repository .

The tribe claims the Ruby Valley Treaty of 1863 allowed only specified uses of Western Shoshone ancestral lands - including settlements, mining, ranching, agriculture, railroads, roads and communication routes. Hager said a nuclear waste dump is not among those uses.

The treaty recognized vast stretches of territory in present-day Nevada, California, Utah and Idaho as Western Shoshone tribal land. An Indian Claims Commission decided in 1946 that the tribe lost the land through "gradual encroachment."

Justice Department lawyer Sara Culley said during oral arguments April 27 that the tribe's challenge to the Yucca project was "a direct contradiction of a congressional mandate."

The judge agreed. An injunction halting planning for the repository "would delay progress towards completing Congress' chosen solution" to entomb the nation's most radioactive waste, Pro wrote in his ruling.

Congress in 2002 picked Yucca Mountain as the site to contain 77,000 tons of spent nuclear fuel now stored in 39 states. The site is at the western edge of the Nevada Test Site, within ancient Shoshone lands.

The Energy Department also has proposed building a 319-mile rail route across Nevada to ship waste from Caliente, 150 miles northeast of Las Vegas, to the Yucca site, 90 miles northwest of Las Vegas.

The project has been beset by troubles and delays since a federal appeals court in Washington, D.C., tossed out a key radiation standard last year. The Environmental Protection Agency said Monday it expects to issue a new standard by September.

Revelations in March that workers may have falsified data on the project have also prompted several inquiries, and project officials have pushed back an original opening date from 2010 to 2012 or later.

In his ruling, Pro discounted Shoshone claims that prayer sites had been declared off-limits and ancestral remains had been removed from graves during site preparation.

The failure of tribal members to claim treaty rights at the time "undermines their claims for equitable relief now," the judge said.


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