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Court blocks state laws against nuclear waste dump
Thursday, August 5, 2004

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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