Nevada wins battle in war over Yucca

<b>CORRECTION, 9/6/07</B> - Republican Congressman Jon Porter's political affiliation was misstated in a Wednesday story on Yucca Mountain.

Nevada has won a significant battle in its 20-year war with the federal government over the Department of Energy's plans to build a nuclear waste repository at Yucca Mountain.

The victory came in a decision late Friday by U.S. District Judge Roger Hunt to deny Justice Department attorneys an emergency motion. The motion was aimed at blocking the state engineer's order that DOE stop using Nevada's water for drilling boreholes near the mountain, 100 miles northwest of Las Vegas.

Hunt's 24-page ruling criticized the attorneys representing DOE as being arrogant and unreasonable and, above all, for violating a court-approved agreement on use of the state's water at Yucca Mountain.

State officials were beaming Monday when they learned of Hunt's decision and said it will preclude DOE from collecting data that Yucca Mountain Project officials have said is crucial to submitting a complete license application to the Nuclear Regulatory Commission for constructing a repository.

"We're obviously pleased with his decision, and he's very knowledgeable of what's going on with the state law and the federal law," said Bob Loux, executive director of the Nevada Agency for Nuclear Projects and a long-time opponent of what Nevada politicians refer to as "the dump.

Added Marta Adams, the senior deputy attorney general who represented Loux in the case: "These guys have no mandate to do borehole drilling. They're just arrogant."

"This is going to be tricky for them to appeal and they have some real public relations issues here," Adams said.

Allen Benson, an Energy Department spokesman in Las Vegas for the Yucca Mountain Project, wouldn't comment as to whether borehole drilling operations were in progress Tuesday.

"We have just received the court order and we're reading it now and we'll determine the path forward," Benson said.

Subcontractors for the Yucca Mountain Project have been using water from nearby wells to drill what project officials have said will be 80 boreholes if drilling continued through November.

That is up from DOE's original estimate that only 15 boreholes would be needed for "geotechnical" work to ensure that surface facilities where spent nuclear fuel assemblies would be handled and stored before entombing them in the mountain will be safe from earthquakes and floods.

The water is used to cool and lubricate drill bits and to make mud for collecting rock samples.

Adams said if she finds out that DOE continues to use the state's water for drilling boreholes "then we've certainly got to go in for a contempt order. I would expect they're going to comply," she said.

"What is very crystal clear is the court vindicates the state's position and upholds they (DOE) should cease and desist," Adams said.

Loux said he thinks the state engineer has authority to prohibit DOE from trucking water in from out of state or other sources in the state for work at Yucca Mountain.

"You simply can't use water in this state without his approval period, no matter how you acquire it," Loux said.

Hunt's order says that any perceived hardship that DOE encountered when State Engineer Tracy Taylor issued his cease-and-desist order June 1, then lifted it temporarily only to reinstate it on July 20, was "self-inflicted."

"The state, on the other hand, faced the unauthorized use of its water, a violation of state water law, a violation of an agreement it entered in good faith, a violation of this court's order authorizing that agreement, and interference with its obligation to its citizens to enforce its laws and preserve its water," Hunt wrote.

He further stated that "there has been no act by Congress which pre-empts Nevada's state water laws. ... The only public interest issue is whether state officials can be precluded from exercising their lawfully mandated duties, or whether a federal agency can run roughshod over a state's rights or interests without specific authority and mandate to do the precise activities it wishes to do."

Hunt was not impressed by the way the water flap unfolded with DOE ultimately demanding to use 4 million gallons of water for drilling 44 boreholes with intentions of doubling each for "continuing site characterization work it hid from the court and from the state."

Either the borehole work is "unreasonable and without demonstrable, legitimate purpose. ... Or, alternatively, it (the DOE) shows a complete lack of confidence in its ability to obtain a license from the NRC (Nuclear Regulatory Commission) because of weakness in its original scientific studies."

Hunt agreed with the state's attorneys that DOE's scientific, site characterization work was supposed to have been completed at Yucca Mountain when then-Energy Secretary Spencer Abraham recommended the site to President Bush in 2002.

"Either that is so, and this is not site characterization, or it would appear that the DOE misled Congress and the president in its application for approval of the site," Hunt wrote. "DOE attempts to deny that this is further site characterization. However, its own documents contradict that argument."

Nevada Attorney General Catherine Cortez Masto weighed in on the issue, saying in a statement, "In what Judge Hunt characterizes as 'arrogant,' DOE has not ... complied with Nevada water law or 'been forthcoming about its intentions for water use in the future.'"

In Washington, Nevada lawmakers applauded the opinion as a blow for states' rights, and at the same time shining a light on DOE clumsiness in pursuing water for the Yucca project.

Sen. Harry Reid, D-Nev., said the federal government got the outcome it deserved.

"Stealing water, misleading Congress, and ignoring court orders are par for the course for the Energy Department," he said in a statement.

Rep. Dean Heller, R-Nev., said the department's unauthorized water use "is one more blunder" in a history of Yucca Mountain missteps.

Rep. Jon Porter, R-Nev., said DOE "has consistently played fast and loose with procedures" to speed the repository.

Rep. Shelley Berkley, D-Nev., said the case "sends an unmistakable message to President Bush and his Republican allies that Nevada will fight any attempt in Congress to pass legislation that would authorize a full-blown water grab."

A bill the Bush administration has proposed seeks to broaden DOE powers to obtain water over Nevada objections. But it has found no support in Congress this year.

Stephens Washington Bureau Chief Steve Tetreault contributed to this report.