Motions Filed in Skull Valley Band/Private Fuel Storage Vs. State of Utah

News Release 12/12/01

Contact: Sue Martin
801-532-5322 or
801-209-3062

Motions Filed in Skull Valley Band/Private Fuel Storage Vs. State of Utah

SALT LAKE CITY (Dec. 12, 2001) - The Skull Valley Band of Goshute Indians and Private Fuel Storage (PFS) today fired the latest volley in their lawsuit against the state of Utah. In U.S. District Court, the plaintiffs filed motions asking Judge Tena Campbell to issue a summary judgment in the lawsuit, declaring unconstitutional recent state laws designed to prohibit the spent nuclear fuel storage facility on the Skull Valley Reservation, and to dismiss the counterclaims filed by the state.

"This lawsuit is not about the safety of the proposed facility and the health of the public," said Scott Northard, project manager for PFS. "Those issues are being addressed by the Nuclear Regulatory Commission (NRC), which has the legal authority to license nuclear facilities. In the course of the five-year-long licensing process the state has had, and will continue to have, ample opportunity to provide evidence and expert testimony, which is then evaluated by independent experts, to see if there is any possible harm to Utahns."

"This lawsuit simply asks the court to rule on legal matters, specifically, whether laws passed by the state conflict with federal law and attempt to interfere with rights granted to individuals, businesses, and Indian tribes by the Constitution of the United States," explained Northard.

"A favorable ruling in this case, one that declares the state laws in question unconstitutional, would send a clear message to the state that it cannot arbitrarily outlaw legal activities that it simply doesn't like. It would be a clear victory for the many businesses in Utah that do, or could, profit from an association with this project. However, a favorable ruling would not mean the proposed facility will receive a federal license."

"These motions are important to the Skull Valley Band of Goshutes and all Indian tribes," according to Chairman Leon Bear. "A favorable ruling would mean that state legislatures may not prohibit economic development on Indian reservations permitted under federal law. This is critical to Indian property rights."

Background

Over the past four years, in an admitted effort to prevent the construction of a temporary spent nuclear fuel storage facility to be located on the Skull Valley Goshute Reservation, and to prevent the shipment of spent fuel to that facility, the Utah Legislature has enacted five pieces of legislation: Senate Bill (S.B.) 78 and S.B. 196 (passed in 1998), S.B. 164, and S.B. 177 (passed in 1999), and S.B. 81 (passed in 2001).

Three of these acts amend Utah's Radiation Control Act through the addition of "Part 3," which contains an outright ban on placement of spent fuel in Utah. In the event the outright ban proves unconstitutional, Part 3 also contains an impossibly burdensome backup licensing scheme that the Legislature intentionally designed to render the storage or transportation of spent fuel within Utah impossible.

In April 2001, the Skull Valley Band and Private Fuel Storage filed a lawsuit in U.S. District Court asking the Court to declare unconstitutional this collection of laws.

In July, the state filed a counterclaim asking the Court to short-circuit the pending NRC licensing process by prohibiting the proposed facility. The counterclaim posed five reasons why the project "must fail." The counterclaim did not address the Goshute/PFS claims - that the Utah laws are unconstitutional - but rather challenged the jurisdiction and processes of the NRC, Bureau of Indian Affairs (BIA), and the Skull Valley Band.

In a motion filed today, the Skull Valley Band and PFS ask the Court to issue a summary judgment and declare the Utah laws in question unconstitutional. The motion argues that

The Utah Legislature and Governor have responded to PFS's proposed spent fuel storage facility on the Skull Valley Reservation in a manner that is not tolerable under the United States Constitution.
The Utah laws are preempted by federal regulation of the nuclear industry under the Atomic Energy Act. They are also preempted by federal law governing leasing and economic development of Indian reservations. Federal courts have been swift to invalidate state attempts to regulate in this arena.
The Utah laws are intended to, and do, discriminate against interstate commerce.
The Utah laws violate the Contracts Clause of the Constitution by expressly voiding agreements the Band and PFS have made with each other and with third parties.
Provisions of the Utah laws relating to roads and railroads are preempted by the federal Hazardous Materials Transportation Act, which is intended to eliminate patchwork state laws and replace them with uniform national regulation governing the transportation of hazardous materials, including nuclear materials.
Portions of the state laws (Part 3 of the Utah Radiation Control Act) undermine First, Sixth, and Fourteenth Amendment rights to freedom of association, freedom of speech, and right to petition the government.
Part 3 also contains civil and criminal penalty provisions that are unconstitutionally vague and do not reasonably alert the public as to what type of conduct the statute intends to prohibit.
The tax provision of Part 3 violates the Commerce Clause by imposing confiscatory and unfairly apportioned tax burdens on activities that are unrelated to the State of Utah.

In another motion filed today, the Skull Valley Band and PFS ask the Court to dismiss the state's counterclaims because:

The Court lacks jurisdiction to consider questions of NRC authority; that question would be addressed to the U.S. Court of Appeals if/after a license was granted.
The Court lacks jurisdiction to determine whether the proposed facility would violate the National Environmental Policy Act, an issue that must first be addressed in the licensing process and then in the U.S. Court of Appeals.
The state lacks standing to challenge the BIA's approval of the Band's lease with PFS. Final BIA approval will not be made until a license is granted; therefore the state's claim is not "ripe." In addition, the state has already attempted to raise this claim in the U.S. Court of Appeals for the Tenth Circuit and it was rejected on ripeness grounds. Under the law, the Tenth Circuit decision is conclusive.
The state lacks standing to challenge the Band's approval of the lease. Furthermore adjudication of the issue would violate tribal sovereign immunity, and this Court has no jurisdiction to entertain a challenge to an internal tribal decision.

Developments in the Federal Licensing Process

On November 13, the NRC staff issued a supplement to its Safety Evaluation Report (SER) re-evaluating the risks associated with aircraft or cruise missile crashes at the proposed facility. The report is an independent analysis of data and analysis developed by PFS and reaches a similar conclusion: the risk of such an accident is less than one in a million, therefore it is considered "not credible."

On November 14, the NRC Commissioners upheld a previous decision by the Atomic Safety and Licensing Board (ASLB), which is presiding over the NRC hearing, that the "one in a million" standard is appropriate for spent fuel storage facilities.

This means that the facility will not interfere with policies and practices of Hill Air Force Base, which uses Skull Valley as an approach corridor to the Utah Test and Training Range (UTTR). The UTTR can continue its mission without interruption or change. This conclusion should eliminate one of the most often heard objections and concerns of the state and especially Rep. James Hansen.

In the wake of September 11, the NRC is reviewing its regulations to determine if changes are warranted to protect all citizens living nuclear facilities. This is an issue that is much broader than the PFS facility. Obviously, PFS, if licensed, will comply with all additional safeguards that the NRC may require.

In December, the NRC staff is expected to release two more documents: a supplement to the SER re-evaluating earthquake hazards at the facility; and a final Environmental Impact Statement which will be a joint report from the NRC, BIA, Bureau of Land Management, and the Surface Transportation Board on the potential environmental impacts during construction and operation of the proposed facility.

In April 2002, evidentiary hearings will be held before the ASLB in Salt Lake City, during which the parties will present testimony on safety and environmental issues, including earthquake and aircraft crash hazards. Once the hearings are completed, the ASLB will prepare an initial decision on the license application.

When the ASLB's decision is rendered in 2002, it will end a five-year-long, rigorous examination of all of the issues related to PFS's ability to comply with federal regulations designed to protect public health and safety. The facility will be licensed only if it can demonstrate it can comply with the regulations. If the facility cannot be operated safely it will not be built.

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