State asks circuit court to re-examine Yucca issue

Tuesday, Nov. 13, 2001 | 10:40 a.m.

CARSON CITY -- The state of Nevada is continuing legal efforts to deny the federal government the water it needs to develop Yucca Mountain into a repository for high-level nuclear waste.

The state is asking the full 9th U.S. Circuit Court of Appeals to re-examine an earlier finding of a three-judge panel that favored the Department of Energy.

Senior Deputy Attorney General Marta Adams said today a petition was mailed to the court Friday and asks that the full court re-hear the case, rather than letting the decision of the three-judge panel stand.

Adams said the appeals panel made errors in the facts it included in its decision. She said the petition relies in part on the dissent written by Judge Procter Hug of Reno.

The circuit court, in its 2-1 ruling, sent the case back to U.S. District Judge Roger Hunt in Las Vegas to decide whether the federal Nuclear Waste Police Act supersedes the Nevada law that bars a nuclear dump in Nevada.

The Energy Department had filed an application seeking permanent water rights for the proposed repository that has not yet been designated by President Bush nor approved by Congress.

Mike Turnipseed, while he was state engineer, denied the application of the federal agency, noting Nevada law prohibits a nuclear dump. The Energy Department then filed suit, claiming the federal law pre-empts the state law.

Adams said one of the issues is whether federal law even comes into play, since there has not been any approval by either the president or Congress.

"In my mind they really blew it," Adams said of the 9th Circuit. It may be six months before the court rules on the petition for a re-hearing before the full court.

The re-hearing petition was filed on behalf of Turnipseed, who is now director of the state Department of Conservation and Natural Resources and the Nevada Agency for Nuclear Projects that has been fighting the Yucca Mountain designation.

The state wants the issue decided in a state District Court, not in the federal system. That's what Hunt's initial decision held.

The circuit court, in a decision written by Judge Thomas Nelson, said, "Although the location of a nuclear waste repository is plainly a sensitive social issue, it is not the issue in this case

"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.

Any final decision by the circuit court could be appealed to the U.S. Supreme Court.