Gov. Mike Leavitt has promised to use every means at his disposal to block shipments of high-level radioactive waste to a proposed dump site on Goshute tribal lands in Tooele County.
But the courtroom may not be one of them, at least not for now.U.S. District Judge Dale Kimball has ruled that state officials will not be allowed to look at confidential portions of a lease agreement that could lead to a nuclear waste storage dump on the Skull Valley Reservation west of Salt Lake City. That ruling, along with another ruling against them earlier this year, leaves state officials with no pending legal arguments.
"That's it as far as the lawsuits go," said Phil Pugsley, an Indian law attorney with the Utah Attorney General's Office. "We are evaluating whether to appeal the ruling. We have not made any decisions."
As part of a federal lawsuit filed earlier this year, state officials argued that under the Freedom of Information Act they should be allowed to review the lease between tribal officials and Private Fuel Storage, a consortium of mostly Eastern private utilities wanting to store waste there. And they wanted to look at any administrative records pertaining to the lease.
Kimball said that since the lease documents are not available to the general public, they are confidential and should not be available to state officials.
Private Fuel Storage, based in Minnesota, wants to develop and operate a high-level nuclear waste facility for spent fuel rods on the reservation in Tooele County. The Skull Valley Band of the Goshute Tribe leased property to the firm in May 1997. The 25-year lease with a 25-year renewal option was approved by the Bureau of Indian Affairs, the tribe and Private Fuel Storage.
The Freedom of Information ruling is the second major issue the state has lost in its lawsuit against the BIA and U.S. Department of Interior, the two government agencies charged with managing tribal affairs. Earlier this year Kimball ruled the state cannot intervene in the lease negotiation process because it involves the affairs of a sovereign Indian nation. That ruling is on appeal with the 10th Circuit Court of Appeals in Denver.
The two issues -- the right to intervene in the BIA process and the Freedom of Information request -- were the only issues on which the state has sued.
State officials want to look at the lease documents, believing they would reveal whether safety and environmental issues were considered during the administrative process of approving the lease.
Attorneys for the BIA and Department of Interior say the state should wait until the project's environmental review process is complete. Then, if not satisfied with the results, the state should seek remedy through the National Environmental Policy Act.
Kimball's Nov. 3 ruling on the Freedom of Information Act also pertains to a group of 15 tribal members living on the reservation who sued the BIA and Department of Interior over the lease with Private Fuel Storage. Those tribal members believe they can still obtain the lease documents in the process of gathering evidence to pursue their lawsuit.
"This is not a not a major setback to our clients," their attorney, Duncan Steadman, said.
Their suit claims the lease is null and void because it was negotiated by tribal member Leon Bear, who they say was never elected tribal chairman.
"He acted without the authority and without the power," Steadman said.
The group wants to review the lease to determine, as they suspect, that the tribe is already receiving money from Private Fuel Storage. If so, they want an accounting of how much and where that money has been spent. Some tribe members believe Bear has already received about $1.4 million and has spent some of the money himself and has distributed some to tribal members who are backing his approval of the lease.
Bear has denied those allegations.
The group also says that as members of the tribal council they have a right to review the lease to determine if the deal is in the tribe's best interests. Without having seen the lease, about a third of the tribe supports the deal with Private Fuel Storage, about a third is undecided and another third is against the deal.
Attorneys for the BIA and Department of Interior have asked Kimball to dismiss the residents' suit, arguing it was filed under the wrong law, that it was filed before the approval process is complete and that the group hasn't exhausted its administrative remedies with the BIA. Kimball has yet to rule on those motions.
The state still has other avenues in its attempt to block the radioactive waste dumping. Any high-level nuclear waste dump in Tooele County must be licensed by the Nuclear Regulatory Commission after a lengthy public hearing process on public safety and environmental concerns. The state is already heavily involved in providing testimony as part of that.
"If the decision by the NRC is adverse, the state would consider the possibility of appeal in the courts," Pugsley said. "There are other legal avenues, but they are not presently ripe."
Nor will they be until the state has exhausted all its possibilities through the NRC administrative process. Although administrative, the process includes evidentiary hearings, and ultimately there will be findings, conclusions and decisions entered into much like a court proceeding. And any decision can be appealed.