A federal appeals court on Wednesday dealt another blow to the state of Utah's attempts to block a tiny tribe from hosting a big nuclear waste dump.
In a unanimous decision, the 10th Circuit Court of Appeals ruled that federal laws and tribal sovereignty trumped state laws aimed at blocking the controversial facility. A three-judge panel said the Skull Valley Goshute Tribe and its partner, Private Fuel Storage (PFS), would suffer
"direct and immediate harm" if the laws went into effect.
"The Utah statutes are thus preempted by federal law," Judge
wrote for the majority. The court added: "As to the Skull Valley Band, federal law has
long recognized the tribes' interests as sovereigns in control over tribal lands."
The decision strikes down a scheme laws that sought to impose
large costs, taxes and other restrictions on the tribe's ability
to accept up to 44,000 tons of radioactive waste. PFS,
a consortium of eight private utility companies, would have
had to pay at least $500 million in fees to the state
and post a cash bond of at least $2 billion.
The laws also made changes to transportation and road laws
in an attempt to make it difficult for waste to be delivered to
the reservation. The only road running to the reservation
and the proposed facility would have been designated a state highway
in hopes of giving the state more control.
The state has been fighting the dump ever since the tribe's chairman,
Leon Bear, signed a multi-million dollar lease with PFS.
So far, the state's challenges have been rejected by the courts
and by the Nuclear Regulatory Commission, the federal agency
reviewing the project.
The tribe, which has fewer than 150 members, is divided over the proposal.
A group called Ohngo Gaudadeh Devia accuses Bear of corruption,
misusing tribal funds and of running an illegitimate government.
Margene Bullcreek, one of the group's leaders, has filed challenges
against the dump as well.
Last December, a federal grand jury indicted Bear on charges that he
stole money from the tribe and lied on his tax returns.
Some of the funds at issue allegedly came
from PFS, which has provided an unspecified amount of money to certain
tribal offices.
Bear has pleaded not guilty to all the charges but Bullcreek and
other activists say the indictment is reason enough
for the federal government to deny the waste facility. The Bureau
of Indian Affairs has given its approval for the PFS lease. A lawsuit
the state filed to have the terms disclosed was rejected.
Earlier this year, another federal appeals court threw out the
state's challenge to the federal laws underlying the waste dump.
The National Nuclear Waste Policy Act allows the licensing of
private storage facilities, the courts have ruled.
The tribe's lease will last up to 20 years but it can be extended.
It is highly likely that the waste would continue to be delivered
to the reservation beyond that date because Yucca Mountain,
the federal waste repository's in Nevada, is tied up in legal and political
battles. It won't open until 2010 at the earliest.
Get the Decision:
SKULL VALLEY BAND OF GOSHUTE
INDIANS v. NIELSON (August 4, 2004)
Relevant Links:
Skull Valley Goshute Tribe - http://www.skullvalleygoshutes.org
Private Fuel Storage - http://www.privatefuelstorage.com
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