Thursday, April 28, 2005
Copyright © Las Vegas Review-Journal

Tribe fights Yucca in court

Judge hears Western Shoshone lawsuit, makes no ruling

Corbin Harney, spiritual leader of the Western Shoshone tribe, says a prayer Wednesday in front of the U.S. Federal Courthouse. Tribal members were on hand for a hearing on a motion for a preliminary injunction to stop the nuclear waste repository at Yucca Mountain. The tribe claims the land on which the site is located. Photo by THE ASSOCIATED PRESS

A federal judge made no immediate decision Wednesday on whether an American Indian tribe's 19th century claim to vast stretches of Western land should stop government plans for a national nuclear waste repository at Yucca Mountain.

U.S. District Court Judge Philip Pro didn't indicate when he would rule on the Western Shoshone National Council's request for a preliminary injunction based on the Ruby Valley Treaty of 1863. After an hour of oral arguments, Pro said he'd make a decision "as soon as possible."

Lawyer Robert Hager of Reno, representing the tribe, focused his plea for an immediate halt to the $58 billion project on Energy Secretary Samuel Bodman's disclosure last month that workers might have falsified data during site suitability studies.

"Misrepresentations were made. Lies were made," Hager said, insisting that falsified data was used to gain presidential and congressional approval for the project. "At some point, it's got to stop, your honor, and it's got to stop with the courts."

Bodman's March 16 disclosures came after the tribe's original lawsuit was filed March 4. In the original lawsuit the tribe claims that the Ruby Valley Treaty allows only settlements, mining, ranching, agriculture, railroads, roads and communication routes on Western Shoshone ancestral lands.

Department of Justice lawyer Sara Culley called the tribe's challenge "a direct contradiction of a congressional mandate" and said it was filed prematurely and in the wrong venue.

President Bush and Congress selected the Yucca Mountain site in 2002 after years of study. The Energy Department plans to transport 77,000 tons of highly radioactive waste now stored at sites around the nation and entomb it 100 miles northwest of Las Vegas.

Constitutionality and site selection challenges are before the U.S. Court of Appeals for the District of Columbia Circuit, Culley said, and licensing will be handled by the Nuclear Regulatory Commission.

"We don't have these decisions made," she told the judge.

Culley said the Energy Department has some 1,600 people working on the project. However, she said that since the repository was not expected to open for at least five more years, the tribe could show no "irreparable or immediate harm" from planning for the repository or for a rail line across Nevada to reach it.

Hager said Shoshone prayer sites had been declared off-limits and ancestral remains had been removed from graves during site preparation.

"Ongoing activity in the mountain is desecrating the mountain itself," he said.

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

Tribal members lost a Supreme Court challenge of that decision in 1985, and President Bush and Congress last year approved paying the tribe more than $145 million in compensation and accrued interest based on the 1872 value of 24 million acres.

Tribal members are split on whether to accept payments or continue to press the fight over rights to the land.

Estimates of the number of Western Shoshone members vary between tribal estimates of 10,000 and federal government estimates of 6,000. Most still live in Idaho, Utah, eastern and central Nevada, and Death Valley and the Mojave Desert in California.