Federal judge dismisses Indian tribe suit against nuclear dump

SignOnSanDiego.com > News > Nation -- Federal judge dismisses Indian tribe suit against nuclear dump: "By Ken Ritter
ASSOCIATED PRESS
4:53 p.m. November 9, 2005
LAS VEGAS ? An Indian tribe will try again to get a federal judge to stop plans for a national nuclear waste dump in Nevada based on a 19th century treaty after its initial lawsuit was dismissed, a lawyer for the tribe said Wednesday.
The Western Shoshone National Council will appeal a ruling that the U.S. government had sovereign immunity from the tribe's lawsuit, the Las Vegas federal court lacked jurisdiction, and the case was premature because the Yucca Mountain project has not been built, said Robert Hager, a Reno-based lawyer who represents the tribe.
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"The U.S. government has spent $8 billion and hollowed out a sacred mountain, yet the court found that the government's actions are still merely 'hypothetical,'" said Hager, who received notice of U.S. District Judge Philip Pro's ruling this week.
A spokeswoman for the Justice Department, which had argued the government's case, declined immediate comment.
An Energy Department official in Las Vegas said Yucca Mountain project administrators welcomed the ruling.
It came two days after congressional lawmakers agreed to slash the 2006 budget for development of the repository to $450 million from $577 million ? just the latest in a series of setbacks that have included a required court-ordered rewrite of radiation safety standards and an investigation into possible falsification of scientific data.
The tribe filed suit March 4, citing the Ruby Valley Treaty of 1863. Tribal members said the treaty allows only specified uses of Western Shoshone ancestral lands ? including settlements, mining, ranching, agriculture, railroads, roads and communication routes. They maintained that entombing 77,000 tons of the nation's most radioactive nuclear waste was not among the approved uses.
The same judge in May declined the tribe's request for an 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.
In his ruling filed Nov. 1, Pro rejected outright the tribe's contention that it had standing to sue the government because the two parties were equal signatories to the 1863 treaty. The treaty recognized vast stretches of territory in present-day Nevada, California, Utah and Idaho as Western Shoshone tribal land.
However, an Indian Claims Commission decided in 1946 that the tribe lost the land through "gradual encroachment."
The date for opening the Yucca Mountain project 90 miles northwest of Las Vegas has been pushed back from 2010 to 2012 or later after the Energy Department postponed submitting an application for an operating license to the Nuclear Regulatory Commission.
"The challenged actions in this case are not final because the decision-making process regarding whether Yucca Mountain will become a nuclear repository is not completed," the judge said. "Additionally, (the Energy Department) has not completed its decision-making process regarding methods for transporting waste to Yucca Mountain, should it be licensed.""