Western Shoshone Nat. Council v. U.S., No. 5-05-0290-PMP LRL.

• Decision Date: 01 November 2005
• Docket Number: No. 5-05-0290-PMP LRL.
• Citation: 408 F.Supp.2d 1040
• Parties: WESTERN SHOSHONE NATIONAL COUNCIL; Joe Kennedy; John Wells; Pauline Esteves; and Kevin Gillette, Plaintiffs, v. UNITED STATES of America; Samuel W. Bodman, Secretary of the United States Department of Energy; and Gale Norton, Secretary of the United States Department of the Interior, Defendants.
• Court: U.S. Court of Appeals — Third Circuit

408 F.Supp.2d 1040

WESTERN SHOSHONE NATIONAL COUNCIL; Joe Kennedy; John Wells; Pauline Esteves; and Kevin Gillette, Plaintiffs, v. UNITED STATES of America; Samuel W. Bodman, Secretary of the United States Department of Energy; and Gale Norton, Secretary of the United States Department of the Interior, Defendants.

No. 5-05-0290-PMP LRL.

United States District Court, D. Nevada.

November 1, 2005.

Order Denying Reconsideration December 20, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert R. Hager, Hager & Hearne, Treva J. Hearne, Hager & Hearne, Reno, NV, for Pauline Esteves, Kevin Gillette, Joe Kennedy, John Wells, Western Shoshone National Council, Plaintiffs.

Blaine T Welsh, U.S. Attorney's Office, Las Vegas, NV, Kelly A. Johnson, U.S. DOJ, Washington, DC, for Samuel W. Bodman, Gale Norton, Kinder-Morgan Energy Partners, Defendants.

Indigenous Law Institute, Steven T. Newcomb, Eugene, OR, Pro Se.

Peter d'Errico, pro hac vice, Leverett, MA.

ORDER

PRO, Chief Judge.

Presently before this Court is Defendants' Motion to Dismiss (Doc. # 16), filed on May 16, 2005. Plaintiffs filed an Opposition to Motion to Dismiss (Doc. # 23) on July 6, 2005. Defendants filed Points and Authorities in Support of Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Dismiss (Doc. # 26) on August 5, 2005. For the reasons set forth below, the Court finds that Defendants' Motion to Dismiss must be granted.

I. BACKGROUND

Plaintiffs are the Western Shoshone National Council and four individual Western Shoshones. (Compl. [Doc. # 1] at ¶¶ 2-3.) According to Plaintiffs, the Western Shoshone National Council is the modern governmental structure of the Western Shoshone government that has existed since time immemorial. (Pls.' Reply in Supp. of Mot. for Prelim. Inj., Ex. 5, Aff. of Raymond Yowell at ¶¶ 1-4.) The Western Shoshone Indians have lived in the southwestern United States since before white settlement in the area. (Compl. ¶¶ 7-9.) The Western Shoshone homeland covered approximately sixty million square miles in Nevada, California, Idaho, and Utah. (Id. ¶ 12.)

In 1863, the Western Bands of the Shoshone Nation entered into a treaty with the United States known as the Treaty of Ruby Valley, 18 Stat. 689 (Ratified June 26, 1886). (Compl. ¶ 13, Ex. 1.) The Treaty called for cessation of hostilities and attacks upon United States citizens, trains, and mail and telegraph lines. (Compl., Ex. 1, art. 1.) The Treaty provided that "[t]he several routes of travel through the Shoshone country, now or hereafter used by white men, shall be forever free, and unobstructed by the said bands, for the use of the government of the United States, and of all emigrants and travellers under its authority and protection ...." (Id., art. 2.)

Additionally, the Treaty set forth activities for which the parties agreed the United States and its citizens could use the land. These included: establishing military posts; erecting and occupying station houses for travelers and the mail and telegraph lines; establishing and operating telegraph and overland stage lines; locating, constructing, and operating a rail line from the plains to the Pacific Ocean; exploring, prospecting, and mining for gold, silver, and other minerals; forming mining and agricultural settlements and ranches; and erecting timber mills and taking timber. (Id., arts. 2-4.) The United States agreed to compensate the Shoshone tribes for "the inconvenience resulting to the Indians in consequence of the driving away and destruction of game along the routes travelled by white men, and by the formation of agricultural and mining settlements," by paying the bands a five thousand dollar annuity for twenty years. (Id., art. 7.) The Treaty covered the lands including Yucca Mountain located in Nevada. (Compl. ¶ 7; Compl., Ex. 1, Art. 5.)

Over one hundred years later, the United States has selected Yucca Mountain as a proposed site for a repository for high-level nuclear waste. In 1982, Congress enacted the Nuclear Waste Policy Act ("NWPA"). Pub.L. No. 97-425, 96 Stat. 2201 (1982) (codified as amended at 42 U.S.C. §§ 10101-10270). The NWPA required the federal government to assume responsibility for permanently disposing the nation's nuclear waste and, to that end, set forth procedures for the selection and operation of geologic repositories. Nuclear Energy Inst., Inc. v. Envtl. Prot. Agency, 373 F.3d 1251, 1258-61 (D.C.Cir.2004).

The Act assigned to the Department of Energy ("DOE") the tasks of selecting, designing, and operating a nuclear waste repository. 42 U.S.C. §§ 10132-34. As the NWPA originally was enacted, the site selection process required the DOE Secretary to issue, general site-selection guidelines that DOE then would use to determine which candidate sites to recommend for site characterization. 42 U.S.C. § 10132(a)-(b). The Secretary initially would nominate at least five sites and then narrow the field to three for the President's consideration. 42 U.S.C. § 10132(b)(1)(A)-(B). Upon the President's approval of the nominated sites, DOE would conduct site characterization of each location. 42 U.S.C. § 10133(a). After completing site characterization, the Secretary would submit to the President, together with a final environmental impact statement ("FEIS"), a recommendation to approve a site, suitable for development as a repository. 42 U.S.C. § 10134(a)(1). The President subsequently would transmit his recommendation to Congress. 42 U.S.C. § 10134(a)(2). "The state within which the recommended site was located could submit a `notice of disapproval' to Congress, an action that would effectively end the development process with respect to that site unless Congress passed a joint resolution overriding the state's disapproval and approving the site." Nuclear Energy Inst., Inc., 373 F.3d at 1259 (citing 42 U.S.C. § 10136(b)(2)).

Pursuant to the NWPA, DOE nominated five candidate sites for characterization, and the DOE Secretary recommended three sites to the President. Id. Yucca Mountain, Nevada was among the three sites. Id. The President approved each site for consideration. Id.

In 1987, Congress enacted the Nuclear Waste Policy Amendments Act ("NWPAA") directing that DOE characterize only Yucca Mountain, Nevada for possible site selection as the nation's nuclear repository. Pub.L. No. 100-203, §§ 5001-65, 101 Stat. 1330, 1330-227 to 1330-255 (1987); 42 U.S.C. § 10133(a), § 10172(a)(1)-(2). In February 2002, the DOE Secretary recommended to the President that he approve Yucca Mountain as a suitable repository site. Recommendation by the Secretary of Energy Regarding the Suitability of the Yucca Mountain Site for a Repository Under the Nuclear Waste Policy Act of 1982 at 6 (Feb.2002), at http://www.ocrwm.doe .gov/ymp/sr/sar.pdf. On July 23, 2002, the President signed the Yucca Mountain Development Act ("YMDA"), Pub.L. No. 107-200, approving the Yucca Mountain site for the development of a nuclear waste repository. Nuclear Energy Inst., Inc., 373 F.3d at 1301. Nevada subsequently submitted its notice of disapproval. Id. Congress passed a joint resolution overriding Nevada's objection, and approved the development of a repository at Yucca Mountain. Id.; see also Pub.L. No. 107-200, 116 Stat. 735.

DOE currently is preparing an application for a license to construct a nuclear waste repository at Yucca Mountain and DOE expects to submit the application to the Nuclear Regulatory Commission ("NRC") by the end of the year. (Defs.' Mot. to Dismiss, Ex. 1 at ¶¶ 2-3, 7.) The NRC is charged with reviewing the application and deciding whether to authorize construction of the facility and whether to issue a license for DOE to receive and possess spent nuclear fuel and high level radioactive waste at the facility. 42 U.S.C. § 10141(b).

Additionally, DOE recently issued a Record of Decision adopting a primarily rail option for transporting nuclear waste to Yucca Mountain should it be approved as a repository. (Defs.' Mot. to Dismiss, Ex. 1 at ¶ 7.) DOE currently is preparing an environmental impact statement on the most appropriate rail alignment, with a Record of Decision expected by the end of 2006. (Id.)

Plaintiffs filed this action claiming Defendants' plan to dispose of nuclear waste at Yucca Mountain violates the Treaty of Ruby Valley because nuclear waste disposal is not one of the authorized uses for the land set forth in the Treaty. (Compl.[Doc.# 1].) Plaintiffs' Complaint alleges four claims. First, Plaintiffs claim they are entitled to a Writ of Prohibition preventing Defendants from authorizing or approving any action designed to permit or condone establishment of a nuclear repository at Yucca Mountain or construction of a rail line to transport nuclear waste to Yucca Mountain. (Id. ¶¶ 29-39.) Second, Plaintiffs request the Court enjoin Defendants from implementing their plan to construct a repository at Yucca Mountain or to construct a rail line to transport waste to Yucca Mountain. (Id. ¶¶ 40-47.) Third, Plaintiffs request a declaratory judgment that Defendants' plan to dispose of nuclear Waste at Yucca Mountain violates the Treaty. (Id. at ¶¶ 48-52.) Finally, Plaintiffs request this Court set aside and hold unenforceable the past approvals, permits, and activities at Yucca Mountain. (Id. at ¶¶ 53-61.)

Defendants move to dismiss the Complaint, arguing this Court has no jurisdiction because Plaintiffs lack standing; the United States has not waived its sovereign immunity; Plaintiffs' claims are not ripe; jurisdiction for two claims lies with the Court of Appeals; and the Indian Claims Commission Act's exclusive jurisdiction and finality of adjudications bar Plaintiffs' claims. Additionally, Defendants argue the Court should dismiss the Complaint because Plaintiffs fail to state a claim as Plaintiffs have no ownership or occupancy rights to enforce under the Treaty of Ruby Valley.

Plaintiffs respond that this Court has jurisdiction because Plaintif...