State eyeing appeal in battle over Yucca water

Thursday, Dec. 27, 2001 | 9:37 a.m.

CARSON CITY -- The state may appeal to the U.S. Supreme Court in its fight to stop the Energy Department from getting water rights to operate the proposed nuclear dump at Yucca Mountain.

The 9th U.S. Circuit Court of Appeals this week rejected the state's petition to reconsider its earlier decision that handed the Energy Department a procedural victory in its effort to gain permanent water rights at Yucca.

Nevada Deputy Attorney General Paul Taggart said today there's been confusion over the case and "it merits going to the U.S. Supreme Court." He said, however, that he would have to confer with the state Department of Conservation and Natural Resources.

Mike Turnipseed, while he was state engineer, denied the application of the federal agency, noting Nevada law prohibits a nuclear dump. Turnipseed now heads the conservation department.

The Energy Department then filed suit, contesting the Turnipseed ruling, claiming federal law pre-empts state law.

U.S. District Judge Roger Hunt in Las Vegas ruled in favor of the state. But the Circuit Court, in its 2-1 ruling, sent the case back to Hunt to decide whether the federal Nuclear Waste Policy Act supersedes the Nevada law that bars a nuclear dump in Nevada.

The state asked the Circuit Court to reconsider its split decision. But it refused. Taggart said the court never gave a reason for its denial. "There was no discussion of the merits," he said.

Taggart said there has been a "fundamental misunderstanding" by the Circuit Court that the issue was the water that is now being used by the Energy Department in studying the site. The federal agency, Taggart said, has the rights for this temporary use.

This legal fight is over the permanent water rights. The state maintains the suit by the energy department is premature because President Bush and Congress have yet to designate Yucca as the permanent burial grounds for nuclear waste.

There is also a suit pending in the District Court in Tonopah over the water rights. And the state says the issue should be decided there before the federal court steps in.

The Circuit Court, in its original ruling, said, "Although the location of a nuclear waste repository is plainly a sensitive social issue, it is not the issue in this case."

The court said, "The issue in this case is whether the Nuclear Waste Policy Act preempts Nevada Revised Statute," which says the construction of a dump would be detrimental to the state's public interest.

It said that if the federal act is interpreted to mean that only the federal government is entitled to determine whether Yucca Mountain is suitable, then the Energy Department wins.

But Nevada will triumph if the federal nuclear law is interpreted to permit Nevada to take part in the decision making, above and beyond just filing a "notice of disapproval" of the site, as allowed in the federal law.