State loses appeal over Yucca water

Mary Manning and Cy Ryan

Tuesday, Oct. 16, 2001 | 8:49 a.m.

A federal appeals court on Monday ruled that a fight over water rights related to the construction of a nuclear waste repository at Yucca Mountain will be heard in federal court.

The 9th U.S. Circuit Court of Appeals in San Francisco ordered a federal judge to hear the government's suit. One of the three judges who heard the appeal dissented.

The Department of Energy sued Nevada after the state engineer refused to issue permanent water rights to construct the world's first high-level nuclear waste repository 90 miles northwest of Las Vegas.

Former state engineer Michael Turnipseed denied the DOE's request for the ground water in 2000, citing threats to public health, safety and Nevada's tourism-based economy if the state's ground water were to become contaminated with radiation.

The state granted the DOE temporary permission to use the ground water to study Yucca Mountain through April 2002. But the DOE had sought permanent rights to use 430 acre-feet a year to build and operate a repository. An acre-foot is enough water to supply a family of four for a year.

In September 2000 U.S. District Judge Roger Hunt, saying the suit should be heard in state court, refused to hear the DOE's challenge regarding Nevada's decision not to grant water rights for the nuclear waste project.

In his ruling, Hunt said rules related to water are the responsibility of the state. Hunt's ruling prompted the DOE to seek an opinion from the appeals court, which ruled that the Yucca Mountain project is authorized under federal law, so a federal court is the proper place to hear the case.

The appeals judges did not dictate how Hunt should resolve the issue of states' rights. Appeals Judge Proctor Hug of Reno, who dissented Monday, argued that since the project has not been approved, the water rights issue should be left to a state court.

"I reach what I find a logical and compelling conclusion: an act which Congress has not yet passed cannot preempt state law or state agency decisions," Hug wrote.

Paul Taggart, deputy attorney general who represented the state engineer who denied the water application, said he was disappointed with the ruling of the circuit court.

"We did not prevail," Taggart said.

Taggart outlined several options, such as asking for a re-hearing of the full 9th U.S. Circuit Court of Appeals or appealing to the U.S. Supreme Court.

Taggart said the state wanted the issue decided in state court, but the case is going back to Hunt. One issue is whether the federal Nuclear Waste Policy Act supersedes the Nevada law that bars a nuclear dump in Nevada.

"Although the location of a nuclear waste repository is plainly a sensitive social issue, it is not the issue in this case," said the court's 2-1 decision, which was written by Judge Thomas Nelson.

Nelson said that if the federal act is interpreted to mean only the federal government is entitled to determine that Yucca Mountain is suitable, then the DOE wins.

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

The circuit court said the interpretation will control the outcome of this suit.

Taggart contends Congress has not yet selected Yucca Mountain as the nation's nuclear waste repository, so it is premature for the DOE to apply for the permanent water rights. While this is a fight over the nuclear dump, Taggart said the issue also revolves around who controls water rights in Nevada -- the government or the state.

"We think water law is a state matter," Deputy Attorney General Marta Adams said.

Bob Loux, executive director of the Nevada Agency for Nuclear Projects, echoes Adams.

"Federal courts are not familiar with state water law," Loux said, noting that the state had granted the DOE enough water to study the mountain. "Unless there is a permit for the DOE to build the repository, the agency does not need a permanent water right."

Nevada officials oppose the proposed repository at Yucca Mountain, which is the only site being studied to store 77,000 tons of highly radioactive waste.

DOE officials had not seen the ruling and therefore could not comment, a spokesman said.