Lawsuits, courtroom showdowns loom

By Cy Ryan / Sun Capital Bureau

CARSON CITY -- For 17 years, the state has been filing lawsuits to slow or stop the storage of nuclear waste at Yucca Mountain.

Despite the fact Nevada has won only once in more than 10 prior cases, Gov. Kenny Guinn believes the legal attacks hold the best chance to stop the proposed nuclear dump.

"I've always felt our strongest case is in the courts," said Guinn, adding the state doesn't have to worry about its political clout.

"The courts settle life and death issues every day. And they don't have the politics involved."

There are presently six suits pending over a variety of issues ranging from water to radiation standards to the issue of geologic suitability.

The U.S. Senate may approve Yucca Mountain later this year. If and when that happens, the court cases will start moving forward. And more suits are expected.

"We're getting to the point, where we will have a showdown," said Senior Deputy Attorney General Marta Adams, who is now overseeing the state's legal battle.

Adams knows it will be difficult. "When you're challenging an agency (DOE) decision, you're an underdog," she said. "They have the presumption on their side," meaning that the decisions are presumed valid unless shown otherwise.

"We know we're in trouble politically, but we've got some winners in our lawsuits. And Adams warns that the state would "lose position in the lawsuits" if it ever agreed to negotiate for money from the federal government.

To bolster its team, the state has hired high-priced private legal counsel.

The state has contracted with Joseph R. Egan of Washington D.C. for $2.5 million over three years. Eagan charges $395 an hour and some of the work is farmed out at a cost ranging up to $450 an hour.

Antonio Rossmann, a San Francisco lawyer, has also been hired for $300,000 a year. He charges $300 an hour and his associate Roger Moore bills at $210 an hour.

For Yucca Mountain opponents, it's money well spent.

"If we win in the courts, it's over with," Guinn said. "If we lose we will have to abide by the ruling. Right now we have to fight down the line to the end."

Bret Birdsong, a professor at the University of Nevada, Las Vegas Boyd School of Law who teaches environmental and natural resources law, said the reason the state lost in the earlier suits was "the record was not developed. The suits were premature. Here we have a full record."

This is an uphill battle for the state, Birdsong said. But the state has some good firepower, including the opinions of leading scientists that there are too many unanswered questions to go forward with the project.

The strategy of the state, Birdsong believes, is to "throw sand in the gear box" to slow development of Yucca Mountain in hopes that additional favorable evidence is uncovered or the political winds shift in favor of Nevada.

"In general, delay is on the side of environmental plaintiffs," Birdsong said.

Things in favor of the state in the suits are: a Nov. 30 General Accounting Office report that there are more than 300 unanswered questions regarding Yucca Mountain; the April 26 release of an article in Science magazine by two scientists saying the Yucca decision is premature; and a finding by the National Academy of Science that took issue with some of the research.

"These are just the sort of things the state might be able to use to convince a court not to defer to the Department of Energy's scientific judgment," Birdsong said.

The courts may not rule the site is unsuitable, but they could send the issue back to the Energy Department to take another look at the questions.

Adams said a suit over the state shutting off the water to Yucca Mountain is probably farther along than the other cases. And she expects a hearing to be set in the near future. The U.S. 9th Circuit Court of Appeals overturned an initial victory by the state. It ordered the case back to U.S. District Judge Roger Hunt in Las Vegas to decide whether federal law pre-empts the state's ruling.

Adams said the state could take this case all the way to the U.S. Supreme Court and win but be trumped by lawmakers. Congress could turn around and change the law to give the water rights to the Energy Department.

Harry Swainston, a former deputy state attorney general, started the lawsuits in 1985 and he was successful right off the bat. The U.S 9th Circuit Court of Appeals overturned the decision of the Energy Department that declined to allocate money to Nevada to oversee the preliminary site studies at Yucca Mountain.

The appeals court ruled Congress has specifically wanted public participation in the planning of the waste site and had intended that the money come from the nuclear waste fund and not the state.

Swainston recalled, "Not giving us the money was like letting the fox guard the chicken coop."

But after that, the courts failed to see it Nevada's way. Swainston said suits were filed challenging the environmental siting guidelines, seeking to permit Nevada to use money to bring suits and opposing the decision of the Bureau of Land Management to turn over 50,000 acres for use of the Energy Department for exploration of Yucca Mountain.

Legal action was also filed to stop the federal agency from getting air and water permits to go forward with its study, Swainston said.

"When we asked the 9th Circuit (court of appeals) for money to participate, they were very agreeable but when we started getting more aggressive to close down the program, then they were not so sympathetic," Swainston said.

"Win or lose, we learned something in every case. You may not get the result you set out to achieve but you learn what works. If you don't do it, you're hurting your ultimate chances in later cases."

Swainston and Attorney General Frankie Sue Del Papa did not only set their sights on the Energy Department but also targeted the Lincoln County Commission, which passed a resolution favorable to allowing the repository. A lawsuit was filed to overturn the resolution and to toss the commissioners out of office.

Swainston says a district court agreed to invalidate the resolution, but the commissioners remained in office. And that led to the seldom-seen move by the 1995 Legislature of condemning both Del Papa and Gov. Bob Miller for their legal action to remove the commissioners.

Voting mostly along party lines, the Republicans pushed through resolutions in the Senate and Assembly, critical of the two Democrats for trying to squelch freedom of speech of Lincoln County.

The resolutions said Del Papa sought to punish the county commission for criminal conspiracy and remove them from office, without even a trial. And Miller was criticized for lending his name to the suit.

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