Western Shoshones file Yucca lawsuit

Tribes cite 1863 treaty in claiming land cannot be used for waste repository

By KEITH ROGERS
REVIEW-JOURNAL

A contingent of Western Shoshones played what Yucca Mountain nuclear waste project opponents consider their ace in the hole Friday: a lawsuit based on an 1863 treaty that the tribes say doesn't allow building a repository on their native land.

It is the first time the Ruby Valley Treaty, authorized by Civil War Maj. Gen. Ulysses S. Grant, has been used in a case that targets Yucca Mountain, said Reno attorney Robert Hager, who represents the Western Shoshone tribes.

"I have always felt the Western Shoshone have the best claim to stop Yucca Mountain," Hager said, flanked by tribal leaders outside Lloyd George U.S. Courthouse in Las Vegas where the case was filed.

Yucca Mountain is a sacred site for Western Shoshones.

Hager said the tribes want to hold the departments of Energy and Interior accountable for the contractual agreement that specifies how their 93,750-square-mile swath across parts of Nevada, California, Utah and Idaho should be used.

The agreed uses do not include a disposal site for highly radioactive waste or a railroad to deliver waste to the mountain, which the federal government intends to do by submitting a repository licence application to regulators by the end of this year.

The lawsuit, with a motion for an injunction to stop the project, names Energy Secretary Samuel Bodman and Interior Secretary Gale Norton as defendants.

A spokesman for the Energy Department's Office of Repository Development in Las Vegas had no comment on the lawsuit.

The mountain 100 miles northwest of Las Vegas is the planned site for a repository to entomb 77,000 tons of spent reactor fuel and deadly defense wastes. The repository sits on land covered by the treaty, an eight-part pact with the Western Shoshones that was negotiated by James Nye, who was then governor of the Nevada Territory.

The plaintiffs from the Timbisha and Te-Moak bands -- Joe Kennedy, John Wells, Pauline Esteves and Kevin Gillette -- and the Western National Council claim the treaty allows only five uses for the land: settlements, mines, ranches, roads and a railroad.

"We've always talked about using this as a last resort," Raymond Yowell, 75, chief of the Western Shoshone National Council, said of the lawsuit.

Kennedy, of the Timbisha tribe, said the timing of the lawsuit, nearly three years after Congress overrode Gov. Kenny Guinn's veto to approve the repository, is important "not only for Western Shoshone but for all people and the citizens of Las Vegas."

"They just can't run over the people," Kennedy said of DOE officials.

"We're looking out for Nevada as a whole. They (DOE officials) have to be accountable and just can't put nuclear waste in the mountain. It could be devastating," he said.

Kennedy said his ancestors who forged the treaty and others before them long have considered Yucca Mountain and nearby Forty Mile Wash sacred places. To Western Shoshones, the mountain lives as a giant snake slithering westward for nearly 20 miles across the remote terrain of southern Nye County.

Ian Zabarte, the council's secretary of state, said unlike other cases involving the treaty, this one focuses on contractual issues and puts the burden on the U.S. government to demonstrate title. "They can't possibly do that," he said.

Wells, a Western Shoshone from Las Vegas, said the lawsuit "is finally putting the treaty out there where it belongs."

Yowell, 75, who lives on a reservation 27 miles south of Elko, estimates there are roughly 10,000 Western Shoshones, most scattered across the United States.

In 1946, an American Indian claims commission determined that when the West was settled, the Western Shoshones lost their land through gradual encroachment. In 1985, the Supreme Court favored the federal government in a lawsuit over who had title to the land.

Last year, President Bush approved a congressional measure to pay Western Shoshones more than $145 million in compensation and interest for their territory. The payment was for $27 million the claims commission awarded them in 1979 for what their territory was valued at in 1872.

According to Yowell, no money has yet been doled out to Western Shoshones who are split on whether or not to accept it.

Senate Minority Leader Harry Reid, D-Nev., has been a staunch opponent of the Yucca Mountain Project but also was instrumental persuading Congress to distribute the claims commission compensation. Reached late Friday, Reid's spokeswoman, Tessa Hafen, said the senator "feels if the case is successful and Yucca Mountain is stopped, then that's good for Nevada and the country."

In Carson City, project critic Bob Loux, executive director of the Nevada Nuclear Projects Agency, said he was pleasantly surprised when he heard the lawsuit was filed.

"I think it's great news. I think every bit of help we can get on Yucca Mountain is great," he said.

Peggy Maze Johnson, executive director of Citizen Alert, a statewide environmental group, said the lawsuit is significant because it shows the Western Shoshone are "are fighters and they're not going to sit still for this."

"This may be the thing that saves our butts from Yucca Mountain," she said.

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Last updated on March 05, 2005