ML19305A050

Brief Submitted by Applicant in Support of Appeal of 781124 Order Granting Intervenor Status to 3 Indian Tribes.Asserts That Latters' Petitions Were Untimely & Decision Based on Improper Factors.W/Certificate of Svc

ML19305A050
Person / Time
Site:	Skagit
Issue date:	12/11/1978
From:	Little D, Thomsen F PERKINS, COIE (FORMERLY PERKINS, COIE, STONE, OLSEN
To:
Shared Package
ML19305A049	List: ML19305A048 ML19305A050
References
NUDOCS 7901020165
Download: ML19305A050 (32)

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[\, j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

PUGET SOUND POWER & LIGHT ) Docket Nos. 50-522 COMPANY, et al. ) 50-523

)

(Skagit Nuclear Power Project, ) December 11, 1978 Units 1 and 2) )

)

APPLICANTS' BRIEF IN SUPPORT OF APPLICANTS' APPEAL OF LICENSING BOARD DECISION AND ORDER GRANTING INTERVENTION TO THREE INDIAN TRIBES PERKINS, COIE, STONE, OLSEN & WILLIAMS F. Theodore Thomsen Douglas S. Little Attorneys for Applicants 1900 Washington Building Seattle, Washington 98101 Of Counsel:

Loweactein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 7901020\G6

TABLE OF COhTENTS INTRODUCTION - . . . . . . . . . . . . . . . . . . . 1 BACKGROUND . . . . . . . . . . . . . . . . . . . . . 2

1. Procedural background . . . . . . . . . . . 2

2. The Skagit Project . . . . . . . . . . . . 3

3. This proceeding . . . . . . . . . . . . . . 4 I' 4. Related Proceedings . . . . . . . . . . . . 6 ISSUES . . . . . . . . . . . . . . . . . . . . . . . 8 DISCUSSION . . . . . . . . . . . . . . . . . . . . . 9

1. The Licensing Board failed to comply with the NRC regulation on intervention . . 9

2. The Licensing Board's decision was based on improper factors . . . . . . . . . 12 A. Preferential status given Petitioners . . . . . . . . . . . . 12 B. Additional improper factors . . . . 18

1. Petitioners' opportunities ~

for appellate re /iew . . . . . 19

2. Trust responsibility . . . . . 20

3. Prejudice to the paities if petition were granted . . . 25

4. Design changes and new information . . . . . . . . . 26

3. The Appeal Board should do the required balancing and deny the Petition to Intervene . . . . . . . . . . . . . . . . . 27 APPENDIX A--Principal Pleadings Re Indian Petition to Intervene (i)

TABLE OF CASES Aubertin v. Colville Confederated Tribes, 446 F. Supp. 430 (E.D. Wash. 1978) . . . . . . . . . . 16 Capoeman v. United States, 440 F.2d 1002 (Ct. C1. 1971) . . . . . . . . . . . . . . . . . . . . 17 Duke Power Co., (Perkins Nuclear Station, Units 1, 2 and 3) ALAB-431, 6 NRC 460 (197,7) . . . . . 11, 26 Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960) . . . . . . . . . . . . . . 16, 17 Felix v. Patrick, 145 U.S. 317 (1892). . . . . . . . . 18 Gila River Pima-Maricoca Indian Community v.

United States, 427 F.2d 1194 (Ct. C1.),

cert. denied, 400 U.S. S19 (1970). . . . . . . . . . . 21 Joint Tribal Council of the Passamocuoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). . . . . 22 Mann v. United States, 399 F.2d 672 (9th Cir.

1968). . . . . . . . . . . . . . . . . . . . . . . . . 18 Metropolitan Edison Co., (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 27 National Advisory Committee for Aeronautics, 1 AEC 42 (1958) . . . . . . . . . . . . . . . . . . . 14 National Aeronautic and Space Administration, 1 AEC 633 (1961) . . . . . . . . . . . . . . . . . . . 14 National Bureau of Standards, 2 AEC 273 (1963),

modified, 2 AEC 434 (1964), aff'd in pertinent part, 3 AEC 39 (1965). . . . . . . . . . . . . . . . . 14 Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), CLI-72-31, 5 AEC 25 (1972) . . . . . . . . . .~. . . . . . . . . . . . . . 10 Oneida Indian Nation of New York v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977) . . . . . . . 15 Pacific Molasses Co. v. FTC,356 F.2d 386 (5th Cir. 1966). . . . . . . . . . . . . . . . . .. . 9 (ii)

o .

Public Service Company of New Hampshire, (Seabrook Station, Units 1 and 2) CLI-78-1, 7 NRC 1 (1978), affirmed, New England v. United States Nuclear Regulatory Commission, 582 F.2d 87 (1st Cir. 1978) . . . . . . . . . . . . . . . . . . . 8 Sac & Fox Tribe of Indians of Oklahoma v.

United States, 383 F.2d 991 (Ct. C1.), cert.

denied, 389 U.S. 900 (1967) . . . . . . . . . . . . . 22 United States v. Allard, 397 F. Supp. 429 (D. Mont. 1975) . . . . . . . . . . . . . . . . . . . 16 United States v. Alpine Land & Reservoir Co.,

431 F.2d 763 (9th Cir. 1970). . . . . . . . . . . . . 18 United States v. Burns, 529 F.2d 114 (9th Cir.

1976) . . . . . . . . . . . . . . . . . . . . . . . . 16 United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974). 16 United States v. Washington, 520 F.2d 676 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . 23 United States v. Winans, 198 U.S. 371 (1905). . . . . 23 Vitarelli v. Seaton, 359 U.S. 535 (1959). . . . . . . 9 White v. Califano, 437 F. Supp. 543 (D.S.D. . . . . . 22 1977)

TABLE OF STATUTES, REGULATIONS AND OTHER AUTHORITIES 42 U.S.C. 2014(s) . . . . . . . . . . . . . . . . . . 14 Treaty of Point Elliott, 12 Stat. 927 . . . . . . . . 23 10 CFR Part 2 . . . . . . . . . . . . . . . . . . . . 15 10 CFR 2.4 (o) . . . . . . . . . . . . . . . . . . . . 14 10 CFR 2.714 . . . . . . . . . . . . . . . . . . . 9, 14 10 CFR 2.714 (a). . . . . . 8, 10-12, 15, 18, 20, 27, 28 10 CFR 2.714 (a) (1) . . .. . . . . . . . . . . . . . 25 (iii) i

. .e .

e 10 CFR 2.714 (a) (1) (ii) . . . . . . . . . . . . . . . . 19 10 CFR 2.714a . . . . . . . . . . . . . . . . . . . . 3 10 CFR 2. 714 a (c) . . . . .. . . . . . . . . . . . . . 8 10 CFR 2.714 (b) . . . . . . . . . . . . . . . . . . . 10 10 CFR 2.715 . . . . . . . . . . . . . . . . . . . . . 7 r

10 CFR 2.715 (c) . . . . . . . . . . . . . . . . . . . 7 10 CFR 2.785 (a) . . . . . . . . . . . . . . . . . . . 27 39 Fed. Reg. 44065 . . . . . . . . . . . . . . . . 2, 10 43 Fed. Reg. 17799 . . . . . . . . . . . . . . . . . . 10 F. Cohen, Handbook on Federal Indian Law (1941). . . . 17 Conf. Rep. No. 2639, 83d Cong. 2d Sess. 1 (1954) reprinted in 1954 U.S. Code Cong. & Ad. News 3529, 3529 . . . . . . . - . . . . . . . . . . . . . . 14 i

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(iv) ,

i

INTRODUCTION This is an appeal by Applicants from a decision of the Licensing Board granting a petition to intervene filed nearly three and one-half years late.

In granting the petition, the Licensing Board virtually ignored the Commission's regulation governing untimely peti-tions to intervene. For this reason, its decision must be r e ve r s et . Reversal is also required because the decision is founded on factors that are erroneous as a matter of law. When the petition to intervene is judged, as it must be, by balanc-ing the factors specified in the Commission's regulations, the petition should be denied.

After the issuance on November 24, 1978 of the decision appealed from here, the Licensing Board was reconstituted by the appointment of a new chairman. Notice of Reconstitution of Board dated November 28, 1978. In view of this, and to reach a final decision on the petition to intervene as soon as possible in fairness to petitioners and the existing parties, Applicants urge the Appeal Board to rule on the petition to intervene on

'its merits, instead of remanding it for reconsideration by the newly reconstituted Licensing Board, after which it very 4

probably would again be brought before the Appeal Board in any event.

BACKGROUND

1. Procedural background.

On June 13, 1978 a petition to intervene (Petition to Intervene) in this proceeding was filed on behalf of the Upper Skagit Indian Tribe, the Sauk-Suiattle Indian Tribe and the Swinomish Tribal Community (Petitioners) .1 The petition was accompanied by Petitioners' Initial Brief in which Petitioners sought to justify the filing of their petition nearly three and one-half years after the deadline specified in the Commission's notice of hearing.2 Thereafter, both Applicants and the NRC Staff answered the petition, urging that it be denied. Applicants' Answer; Staff's Answer. The two previously admitted intervenors, SCANP and FOB /CFSP, filed answers in support of the petition.

SCANP's Answer; FOB /CFSP's Answer. Applicants' Answer was accompanied by the Affidavit of Donald L. Noel, which includes 1

The Petition to Intervene and the principal pleadings subsequently filed heref.n relating to that petition are listed in Appendix A attached to this brief and will be cited herein using the abbreviated citations listed in Appendix A.

2 The Conimission's notice of -hearing was published in the Federal Register on December 20, 1974 and fixed January 20, 1975 as the deadline for filing petitions to intervene. 39 Fed. Reg. 44065.-

examples of the early news coverage of the Skagit Project and its legal proceedings. Noel Affidavit. Subsequently. Peti-tieners replied to the answers of the Staff and Applicants.

Petitioners' Reply Brief.

On September 26, 1978 the Licensing Board requested certain further submissions from the parties. Board's Request.

Petitioners, Applicants, the Staff and SCANP responded to this request. Appendix A. In their response, the Staff urged the Licensing Board to give Petitioners an opportunity to provide information on certain subjects and suggested that if a proper showing were made, Petitioners should be admitted as inter-venors on certain limited issues. Staff's Response, pp. 7-14.

Conversely, the Staff expressed the view that if Petitioners failed to provide the information suggested, they should not be permitted to intervene. Id., p. 13. The Licensing Board did not adopt the Staff's suggestion.

On November 24, 1978 the Licensing Bo'ard issued its deci-sion and order granting the Petition to Intervene. On Decem-ber 11, 1978 Applicants appealed this decision and order by filing a Notice of Appeal and this brief pursuant to 10 CFR 2.714a.

2. The Skagit Project.

The proposed Skagit Nuclear Power Project, Units 1 and 2, (the project) will consist of two boiling water reactors and associated generating units ano facilities. The proposed site for the project is located on the north side of the Skagit Valley in Skagit County, Washington, approximately 4 miles east of the city of Sedro Woolley, and approximately 1 mile north of the Skagit River. Puget Sound Power & Light Company (Puget) is the sponsor of the project, which will be jointly owned by Puget and Portland General Electric Company, Pacific Power &

Light Company and The Washington Water Power Company (Appli-cants). Exh. 58.

3. This proceeding.

Puget's application for construction permits for the project was docketed in September 1974. At that time, Unit 1 was scheduled for commercial operation in mid-1981 and Unit 2 in 1983. Exh. 1, p. 23. Both units are urgently needed on line as soon as possible. Assuming issuance of the requested LWA or construction permits during the third quarter of 1979, which Applicants consider to be a reasonable expectation, Applicants estimate that Unit 1 could be brought on line by mid-1986 and Unit 2 by mid-1988.

The Commission's notice of hearing fixed January 20, 1975 as the deadline for filing petitions to intervene. Note 2, supra. SCANP filed a timely petition, alleging concerns similar to those now urged by Petitioners, and was admitted.

SCANP Petition of January 20, 1975; Board Order of February 10, 1

1975. On February 19, 1975, the final date specified in the notice for limited appearance requests, one of the Petitioners, the Swinomish Tribal Community, advised the Commission by mailgram as follows:

Since the proposed nuclear power plant could have an important effect on the time [ sic] economic resources of the Swinomish Tribal Communities, namely fishing, the Tribal Community does wish to testify at the hearing in its own behalf.

Applicants' Brief, pp. 11-12, and App. A. However, no request for intervention was made by any of the Petitioners until their present petition was filed on June 13, 1978.

The evidentiary hearings before the Licensing Board began with a July-August 1975 session during which environmehtal and site suitability issues were heard, although not all were completed. Additional evidentiary sessions were held in June, July and August 1976, March, May and July 1977, and March and June 1978. A total of 65 days of evidentiary hearings have been held thus far.3 Additional sessions will be required to complete the few remaining matters and Applicants will shortly be requesting the Licensing Board to schedule them as soon as possible.

3 0f these, three days were devoted to the proposed pre-LWA work considered in a prior appeal in this proceeding, ALAB-446, 6 NRC 870 (1977).

4. Related Proceedings.

Puget first publicly announced its plans for the Skagit Project on January 17, 1973. Noel Affidavit, p. 2 and Attach-ment 1. Over the next 14 months, Skagit County considered the question of whether or not the project should be permitted at the proposed site. This involved a number of public hearings before the Skagit County Planning Commission, which engendered widespread public comment and front-page coverage by the news media. The potential effects of the project on the environment and the community, the same concerns now belatedly voiced by Petitioners, were studied and debated, both on the record in the formal zoning proceeding and off the record in numerous public meetings and in the newspapers. Indicative of the widespread public interest is the fact that at the final eight-day public hearing before the Planning Commission, in January 1974, the opponents of the project filed a petition signed by more than 1,000 residente of Skagit County, and the proponents filed one signed by more than 6,000. Introductory Testimony of Warren J. Ferguson, July 1, 1975, pp. 2-5, follows

.Tr. 609; Noel Affidavit, attachments 11, 14.

The zoning proceeding ended with the signing, on March 26, 1974 of a comprehensive agreement between Puget and Skagit County, in which the county imposed conditions on the use of the proposed site for the project.4 Noteworthy here are the 4A copy of this agreement is included in Appendix K' of the Skagit Environmental Report. Exh. 4.

conditions imposed to protect the Skagit River fishery, the principal concern now stressed by Petitioners some four years later.5 The state proceeding related to the Skagit Project began on March 28, 1974, when Puget filed its application for site certification with the Washington State Thermal Power Plant Site Evaluation Council (TPPSEC or the Council) .O This proceeding was actually two separate but related proceedings.

One, the site certification proceeding, resulted in the execu-tion of a site certification agreement between Puget and the State of Washington on January 5, 1977. Exh. 83. The second, the National Pollutant Discharge Elimination System (NPDES) permit proceeding, resulted in the adoption by the Council on January ?2, 1976 of an NPDES permit and Section 401 certifica-tion for the Skagit Project. Exh. 57. Both proceedings were hotly contested by those opposing the project and were widely reported by the news media. Exhs. 57, 84; Noel Affidavit.

Of particular relevance here is that the aquatic impacts of construction runoff and cooling water discharge from the project were considered and determined in the NPDES proceeding. Exh._57. These are now among the matters urged by SId., Articles 6.1, 6.2, 6.3 and 6.8.

6 This Council, which has since been renamed the Energy Facilities Site Evaluation Council (EFSEC), is representing the State of Washington in this proceeding pursuant to 10 CFR 2.715(c) and the Licensing Board's order of March 3, 1975.

Petitioners in support of their intervention and which they would seek to relitigate, should they be admitted. Peti-tioners' Witnesses, pp. 4-5. Such relitigation would, however, be contrary to the policy of the Commission as set forth in the Seabrook proceeding. Public Service Company of New Hampshire, (Seabrook Station, Units 1 and 2),-CLI-78-1, 7 NRC 1, 23-29, particularly n.42 (1978); affirmed, New England Coalition v.

United States Nuclear Regulatory Commission, 582 F.2d 87, 98-99 (1st Cir. 1978).

ISSUES Applicants contend that the Licensing Board, in ruling on the Petition to Intervene, failed to balance the factors specified in the Commission's regulations,10 CFR 2.714 (a) , as it was bound to do. Additionally, Applicants contend that the factors on which the Licensing Board did rely are erroneous as a matter of law. These two errors by the Licensing Board require reversal of its decision.

. The ultimate question presented by this appeal is whether the Petition to Interveae should have been denied by the Licensing Eoard. 10 CFR 2.714a (c) . Applicants contend that it should have been. A balancing of the factors specified in the Commission's regulation requires this result. The. Licensing 3 Board not having performed the prescribed balancing, we urge the Appeal. Board to do so and deny the Petition to Intervene.

The issues presented by this appeal are:

1. Whether the decision below must be reversed because the Licensing Board failed to balance the factors specified in 10 CFR 2.714 (a) , and thus failed to comply with the NRC regulation on intervention.

2. Whether the decision below must be reversed because the Licensing Board relied on factors that are erro-neous as a matter of law.

3. Whether the Appeal Board should do the required balancing and deny the Petition to Intervene.

DISCUSSION

1. The Licensing Board failed to comply with the NRC regula-tion on intervention.

It is axiomatic that an administrative agency is bound by its own regulations, including its procedural rules. Vitarelli

v. Seaton, 359 U.S. 535 (1959); Pacific Molasses Co. v. FTC, 356 F.2d 386 (5th Cir. 1966). The subject of this appeal, an untimely petition to intervene, is governed by an NRC regula-tion,10 CFR 2.714. Although obligated to scrupulously observe 10 CFR 2.714, the Licensing Board quite clearly did not do so.

Incredibly, the Licensing Board's opinion contained not a single citation to 10 CFR 2.714.

10 CFR 2.714(a), as amended effective 7 on May 26, 1978, states in pertinent part that:

Non-timely filings will not be entertained absent a determination by the Commission, the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request, that the petition and/or request should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) of this section:

(i) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's par-ticipation may reasonably be expected to assist in developing a sound record.

7 The regulation applicable to a petition to intervene is the regulation in effect at the time the notice of hearing appeared in the Federal Register. Northern States Power Co.

(Monticello Nuclear Generating Plant, Unit 1) , CLI-72-31, 5 AEC 25 (1972). The notice of hearing in the Skagit Proceeding was published in the Federal Register on December 20, 1974. 39 Fed. Reg. 44065. While the five factor legal test for evalu-ating nontimely petitions to intervene is the same under either the present or prior regulation (43 Fed. Reg. 17799), the regulation in effect on December 20, 1974 contained several requirements that were not complied with here. The Petition to Intervene is not under oath or affirmation and was not accompanied by a supporting affidavit. It sets forth neither Petitioners' contentions nor the bases therefor. In granting the intervention without there being satisfaction of these requirements, the Licensing Board did not comply with the controlling regulation and its decision should be reversed.

Furthermore, the amended regulation has not been satisfied in that Petitioners have not listed their contentions and the basis for each contention with reasonable specificity, as required by 10 CFR 2.714 (b) .

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(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's par-ticipation will broaden the issues or delay the proceedings.

10 CFR 2.714 (a) places a specific duty on the Licensing Board to determine whether or not the petition shoul' be granted based on a balancing of five identified factors. -See Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3) ,

ALAB-431, 6 NRC 460, 462 (1977). The Licensing Board, however, did not comply with this duty in granting the Petition to Intervene here. Although the Licensing Board's opinion con-tains ultimate findings which essentially repeat the wording of the five factors, there is little and often no reasoning within the opinion to support these ultimate findings. Of greatest significance, however, is that the Licensing Board's decision, as clearly reflected in its opinion, was based upon factors not included within 10 CFR 2.714 (a) . The Licensing Board stated:

Interesting as it may be to review the scope of the Commission's regulations on late filing of petitions to intervene, the precise issue is whether the Indians come within the broad scope of protection that the logislation and the court decisions have accorded them.

Decision, p. 17. After exploring its view of the " precise issue" and opining that "the late filing in the case should be considered as though the U.S. were the petitioner" (Decision,

p. 18), the Licensing Board concluded that:

Applyine the co-plaintiff approach, or acting as guardian or for the protection of a government Instrumentality, if the petition were solely by the United States on behalf of the Indians, the factors recited in the Commission's regulations for a late filed petition to intervene would yield to the public interest which the government represents.

Decision, pp. 19, 20 (footnote omitted).

Quite plainly, the Licensing Board reached its decision after expressly shunning the Commission's regulations governing nontimely petitions to intervene and instead based its decision on factors which are not included within the five factors of 10 CFR 2.714(a). Because the Licensing Board failed to comply with the controlling NRC regulation, its decision must be reversed. Moreover, as discussed below, the factors upon which the Licensing Board relied are erroneous as a matter of law.

2. The Licensing Board's decision was based on improper factors.

A. Preferential status given Petitioners.

As we have noted, the Licensing Board, after choosing to bypass the NRC regulations on nontimely petitions to inter-vene, defined the precise issue before it as "whether the Indians come within the broad scope of protection that the legislation and the Court decisions have accorded them."

Decision, p. 17. In resolving this issue, the Licensing Board considered the Petition to Intervene as being one filed by the United States on behalf of the Indians. Based on this working hypothesis, the Licensing Board concluded that "the public ,

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interest which the government represents" displaced the NRC regulations regarding late filed petitions to intervene, apparently on the basis of case law that laches cannot.be asserted against the federal government. Decision, p. 20.

However, this line of reasoning has no bearing on whether the nontimely Petition to Intervene should be granted or denied and, furthermore, contains several errors of law.

In effect, the Licensing Board granted preferential status to Petitioners which exempted them from the NRC regu-lations. Decision, pp. 19-20. Such special treatment, how-ever, was not requested by Petitioners. Petitioners' Reply Brief, p. 21. Although at times equivocal as to their posi-l tion, Petitioners conceded that they have no absolute right to intervene under the Atomic Energy Act and that they could be admitted only within the scope of the applicable regulations.

Petitioners' Initial Brief, pp. 39-40. In fact, they labeled as erroneous any characterization of them as insisting that they have "an absolute right to intervene without regard to NRC regulations." Petitioners' Reply Brief, p. 21.

Critical to the Licensing Board's exemption of Peti-tioners from the NRC regulations is its reasoning that the petition could have been filed by the United States and, if it had been, the United States could not be time barred from intervening. Petitioners were, in a sense, treated by the

]

i Licensing Board as being agents of the United States, although of course there is no factual basis for such treatment by the Licensing Board. Nevertheless, even had the United States petitioned to intervene on behalf of the Indians, the Licensing Board's conclusion would be erroneous. Just as the Licensing Board is bound by the NRC regulations, so would be the United States if it appeared as a petitioner. 10 CFR 2.714 applies to any " person", which is broadly defined to include a government agency" (other than the NRC, or in some situations, the Energy Resource and Development Administration) , any foreign govern-ment or nation, or other entity. 42 U.S.C. 2014(s); 10 CFR 2.4 (o) . As a result, government agencies are on an equal footing with others before the Commission with respect to obtaining licenses. Conf. Rep. No. 2639, 83d Cong., 2d Sess. 1 (1954), reprinted in 1954 U.S. Code Cong. & Ad. News 3529, 3529. This equal footing is illustrated by licensing proceed-ings in which a federal governmental entity was an applicant subj ect to NRC regulations. National Advisory Committee for Aeronautics, 1 AEC 42 (1958); National Aeronautic and Space Administration, 1 AEC 633 (1961); National Bureau of Standards, 2 AEC 273 (1963), modified, 2 AEC 434 (1964), aff'd in perti-nent part, 3 AEC 39 (1965). Similarly, the United States is on an equal footing with all other persons seeking intervention, and is bound by the requirements of 10 CFR 2.714.

i

The principle relied upon by the Licensing Board that the United States is not subject to the equitable defense of laches is plainly not applicable here. As is clear from the authorities cited by the Licensing Board (Decision, p. 20 n.9),

this principle arises from notions of sovereign immunity and federal supremacy. However, the present case is a federal administrative proceeding not involving any challenge to the immunity or supremacy of the United States. The question of untimeliness of the Petition to Intervene is under consider-ation here because such consideration is required by a federal regulation promulgated pursuant to an Act of Congress. The NRC regulations in 10 CFR Part 2 represent the sovereign's interest regarding the conduct of proceedings on applications for the construction and operation of nuclear power plants. As pre-viously shown, Congress intended the requirements of the Atomic Energy Act to be applicable to all persons including federal governmental agencies. The Licensing-Board's reasoning that a petition for intervention by the United States could not be barred due to untimeliness is clearly contrary to law.0 8

The error in the Licensing Board's reasoning that 10 CFR 2.714(a) is not applicable because laches cannot be effectively asserted to bar the petition is demonstrated by review of Oneida Indian Nation of New York v. County of Oneida, 434 F.

Supp. 527 (N.D.N.Y. 1977). In that case, the Oneidas sued for damages arising from the use and occupancy of land which had been purchased from their ancestors in 1795. The purchase was held to be a violation of the federal'Nonintercourse Act of l 1790 which forbade the alienation of tribal property without I

consent of the United States. The defendants asserted defenses of statute of limitation, laches, and adverse possession, all based on state law. The court rejected these defenses due to l

Two additional lines of authority demonstrate that Petitioners cannot be exempted from NRC regulations. The first is that "a general statute in terms applying to all persons includes Indians and their property interests", in the absence of a clear exclusion of Indians. Federal Power Commission v.

Tuscarora Indian Nation, 362 U.S. 99, 116, 120 (1960).9 In i

the supremacy of the federal law over the state laws. The court further noted that had the United States brought the suit on behalf of the Oneidas, the sovereign's interest would have rendered inapplicable these defenses. 434 F. Supp, at 534.

Most importantly, however, this inclusion did not eliminate the application of all statutes of limitations, in particular the federal statute of limitation for cases brought for or on behalf of tribal Indians. Id. Just as the Indians and the United States there were bound by the federal statute of limitations, Petitioners here are bound by the NRC regulations.

9 There are many other examples of a general federal statute being applicable to Indians and non-Indians alike.

See, e.g., United States v. Burns, 529 F.2d 114 (9th Cir.1976)

(used the Tuscarora standard in ruling that a federal firearm statute applied to an Indian despite his treaty right to hunt);

United States v. Three Winchester 30-30 caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir.1974) (Indian felon with treaty right to hunt was not exempt from federal statute out-lawing possession of firearms by a felon); United States v.

Allard, 397 F. Supp. 429 (D. Mont. 1975) (upheld conviction of Indian for selling golden eagle feathers despite assertion of interference with treaty hunting rights); Aubertin v. Colville Confederated Tribes, 446 F. Supp. 430 (E.D. Wash. 1978) (Bank-

, ruptcy Act applied to Indian tribes despite claim of inter-ference with tribal sovereignty) .

that case, the Court upheld the condemnation of lands of the Tuscarora Indian Nation pursuant to the eminent domain provi-sions of the Federal Power Act. The Court was particularly conscious of Congress's intent to make the Federal Power Act "a complete and comprehensive [ statutory] plan." 362 U.S. at 118. The same is true with respect to the Atomic Energy Act and the regulations adopted pursuant to it.

The final line of pertinent authority, which is a corollary of the Tuscarora standard, is that Indians are subject to time bars in the same manner as other litigants. As stated in F. Cohen, Handbook on Federal Indian Law 163 (1941):

In the absence of statute, Indian litigants are subject to the same defenses as other people. Except with respect to restricted property, they may lose their rights because of laches, and the running of the statutes of limitation.

(Footnotes omitted). In Cacoeman v. United States, 440 F.2d 1002 (Ct. Cl. 1971) , the court held that a suit by an Indian for return of allegedly improper charges assessed by the government incident to the sale by it of timber standing on lands which the government held in trust for the Indian was barred by the six-year federal statute of limitations. In doing so, the court rejected plaintiff's argument that statutes of limitation do not run against Indians, 440 F.2d at 1007, 1008. Therefore, just as Indians may lose their rights because of laches and the running of statutes of limitations, Peti-tieners can lose their opportunity to intervene by failing to timely file their petitions under 10 CFR 2.714 (a) , and, as further explained below, have done so here.10 B. Additional improper factors.

Although the primary ground for the Licensing Board's decision was the preferential status given Petitioners exempt-ing them from the requirements of 10 CFR 2.714 (a) , several additional factors were discussed by the Board and may have been considerations influencir.g its decision. Since these factors are not included within 10 CFR 2.714(a), they are improper bases for the decision to the extent that the Licens-ing Board utilized such factors to support its decision. These additional factors are addressed below.

10S ee also, Felix v. Patrick, 145 U.S. 317 (1892)

(affirmed verdict for defendant based upon the laches of the plaintiff Indian); Mann v. United States, 399 F.2d 672 (9th Cir. 1968) (federal statute of limitations barred an untimely suit by Indian despite contention that Indians were excepted from statute of limitations); United States v. Alpine Land &

Reservoir Co., 431 F.2d 763 (9th Cir.1970) (petition to inter-vene by Indian denied as not timely filed under Rule 24 of Federal Rules of Civil Procedure, despite plaintiff's claim that Rule 24 did not apply to Indians).

p

1. Petitioners' opportunities for appellate review.

During the period of its deliberation on the Petition to Intervene, the Licensing Board requested from the parties legal analyses of how Petitioners might assert their interests protected by treaty either on appeal or further consideration or review, if intervention were to be denied and intervenor SCANP were not to appeal. Board's Request, p. 1; Applicant's Response, pp. 1, 5. Petitioners, Applicants, Staff and SCANP responded to the Board's request. Appendix A.

Subsequently, in its decision, the Licensing Board discussed both the possibilities of and limitations on appellate review by Petitioners and the wasteful duplication 11 of their having to take an appeal. Decision, pp. 12, 24, 26. The implication is that the Licensing Board may have been influenced toward granting intervention by the limited opportunities fer appel-late review if Petitioners were not admitted. For good reason, such a consideration is not among the factors in 10 CFR 11 The Licensing Board also thought it would be a " waste-ful duplication" if Petitioners had to resort to some other forum to seek protection of their treaty fishing rights.

Decision, pp. 9, 10, 24. As Applicants have previously ob-served, a court proceeding offers more suitable other means available to Petitioners for protecting their treaty fishing right if such were necessary. Applicants' Response, pp. 6, 7.

However, the Licensing Board's reasoning reads the "availa-bility of the other means" factor (10 CFR 2.714 (a) (1) (ii)) out of existence by declaring other forums to be wasteful and thus  ;

inherently inferior.

l i

2. 714 (a) . Obviously it makes little sense to permit inter-vention for the ulterior purpose of preserving appellate opportunities.

2. Trust resconsibility.

The Licensing Board's view of the federal trust responsibility toward Indians was that "(c]onsistent in many Court decisions are the determinations that the United States government is a trustee for the Indians and will protect their interests." Decision, p. 18. The Licensing Board then used this interpretation to rationalize its stance of co.1sidering the Petition to Intervene as being one filed by the United States. Id., pp. 18-20. However, the Licensing Board's statement of the relationship between the United States and Indians is overly broad, especially in the factual context of this case. Additionally, the Licensing Board erroneously

, failed to analyze what effect, if any, the relationship between the United States and Petitioners has on the factors set forth in 10 CFR 2.714(a) which should have controlled its decision.

No authorities were cited by the Licensing Board to support its expansive and abstract view of the federal trust responsibility toward Indians. In addition, the Licensing Board did not address relevant questions such as: the source, if any, of any trust relationship between the United States and Petitioners; whether the NRC has any trust duties to Peti-tieners, and, if so, exactly what such duties are; and, how the

. 1

immediate question here of whether to grant or deny the Pcti-tion to Intervene is influenced by trust responsibilities, if any exist.

The analytical framework for resolving whether or not federal trust responsibilities exist and have been breached in a particular factual sitaation is set forth in Gila River Pima-Maricopa Indian Community v. United States, 427 F.2d 1194 (C t . C1.) cert. denied, 400 U.S. 819 (1970). The Indians in that case asserted that the federal government had a guardian-ship obligation to provide them with, inter alia, educational facilities and medical care. After describing the crucial issue as "how, or in what manner, did the Government undertake the role of guardian, and its concomitant obligations?", the court reasoned as follows:

Appellant (Indians) admits that there was no treaty, agreement, order or statute which expressly obligated the United States to perform these ser-vices. This, we feel is fatal to appellant's case.

As we have stated before, in a case dealing with this very tribe:

Whether or not the legal relationship of guardian and ward exists between a particular Indian tribe and the United States depends, we think, upon the express provisions of the par-ticular treaty, agreement, executive order, or statute under which the claim presented arises.

It is true that the word ' fiduciary' and the expression " guardian-ward relationship" have been used by the courts to describe generally the natur' 'E the relationship existing between the India s and the Government. However, in the absence of some language in a treaty, agreement or statute spelling out such a relationship, the courts seem to have meant merely that the rela-tionship between the Indians and the Government is 'similar to' or ' resembles' such a legal relationship and that doubtful language in the treaty or statute under consideration should be interpreted in favor of the weak and dependent Indians. * * * [ Emphasis supplied] . Gila River Pima-Maricopa Indian Community et al. v. United States, 140 F.Supp. 776, 780-781, 135 Ct.C1. 180, 189 (1956).

427 F.2d at 1198.

, Therefore, the language of appropriate statutes, treaties and agreements must be explored to determine whether or not the NRC has any trust obligation to Petitioners which might affect whether the Petition to Intervene should be granted.12 The Licensing Board's decision evidences no such investigation.

l 12 That there can be no trust duty in the absence of a specific statute, treaty or agreement creating such a duty has been amply demonstrated. See, e.g., Sac & Fox Tribe of Indians of Oklahoma v. United States, 383 F.2d 991 (Ct. C1.) cert.

denied, 389 U.S. 900 (1967) (court refused to impose a con-i structive trust upon the United States in the absence of lan- l guage in a treaty, agreement, order or statute expressly cre- l ating such a trust obligation); Joint Tribal Council of the i Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir. l 1975) ("a fiduciary relationship. . . [in the context of the Nonintercourse Act] must indeed be based upon a specific stat-ute, treaty or agreement which helps define and, in some cases, limit the relevant duties."); White v. Califano, 437 F. Supp.

543 (D.S.D. 1977) (the federal defendants' trust duties were recognized and defined by statute and not by some abstract idea of " trust responsibility").

l l

Petitioners here do not seek to establish a trust responsibility in the absence of a treaty. Petitioners' Reply Brief, p. 28. They have not identified any statutes or agree-ments as sources of any trust responsibility which might be involved here. They have confirmed thet the treaty right on which they rely here is the following right from the Treaty of Point Elliott, 12 Stat. 927: "[t]he right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Terri-tory . . . Petitioners' Response, p. 1.

The courts have held that this right of taking fish, and similar rights in other Indian treaties, reserved to the signatory tribes the right of access to fish in certain locations in common with others. For example, in United States

v. Winans, 198 U.S. 371 (1905), the Supreme Court, in ad-dressing similar language in a treaty between the United States and the Yakimas, described the treaty right as "the right to resort to the fishing places" and said that it gave the Indians":

. . . a right in the land, -- the right of crossing it to the river, -- the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the State and its grantees.

198 U.S. at 381, 382. Similarly, in United S*gfje v. Washing-ton, 520 F.2d 676 (9th Cir. 1975), the coat 's reviewing the 9

treaties (including the Treaty of Point Elliott) between the United States and the western Washington Indian tribes, and the specific right asserted here, said:

The United States wished to free most of the land in the Puget Sound area for the impending white migration and' settlement. Governor Stevens' task in executing the treaties was to induce the Indians to move onto reservations. The Indians expressed their concern that they would be unable to continue their tradi-tional way of life, centered on the gathering of fish because of limited fishing opportunities on the proposed reservation. The governor overcame their fears by promising them continued access to their traditional fishing areas off the reservations.

Id. at 684 (emphasis added) .

Assuming then that Petitioners do have a treaty right of continued access to the " usual and accustomed" fishing places, what duties, if any, does the NRC owe Petitioners with regard to such a treaty right? Petitioners claim that the United States' duty is to protect this treaty fishing right.

Petitioners' Initial Brief, p. 8; Petitioners' Reply Brief,

p. 27. However, they fail to identify any source in either a statute, treaty or agreement for such an obligation.

Nevertheless, assuming further that the United States is obligated to protect Petitioners' treaty fishing right, how does this obligation influence Petitioners' request to intervene? Petitioners have sought to partially excuse the untimeliness of their petition by claiming " misplaced reliance on the United States as trustee of Petitioners' rights".

Petitioners' Reply Brief, p. 20. It is clear, however, that

the Skagit Project will not interfere with Petitioners' alleged right of access to and use of usual and accustomed fishing places and that the Staff has considered this question. Fir-'

Environmental Impact Statement, follows Tr. 7767, S 11.7.9; Staff's Answer, pp. 17, 18; Applicants' Answer, p. 35. Hence, there is simply no basis for finding a breach of any assumed trust obligation of the NRC to Petitioners. The concept of trust responsibility provides no solace to Petitioners' attempt to excuse their untimely Petition to Intervene.

3. Prejudice to the parties if petition were cranted.

Before turning to what it saw as the more impor-tant factor of the preferential status of Petitioners, the Licensing Board commented that "the inherent inquiry in a consideration of the Commission's regulations pertaining to late filings is: who would be hurt or disadvantaged by a grant of the petition." Decision, pp. 15-17. This interpretation of the NRC regulation is in error for several reasons. By dis-tilling 10 CFR 2.714 (a) (1) to a single consideration - namely, who would be .ejudiced if the petition were granted - the Licensing Board repealed the identified five factors and avoided the required balancing. Furthermore, this interpre-tation essentially requires Applicants and the Staff to show cause why the petition should not be granted, thereby elim-inating the Petitioners' clear obligation to make a substantial showing of good cause for failure to file on time. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977). To the extent that the Licensing Board's decision may have been influenced by this improper factor, the decision was erroneous.

4. Design changes and new information.

The Licensing Board repeatedly notes that Appli-cants have made design changes and submitted new information since the application was originally filed in 1974, which, of course, they have, as with any application. Decision, pp. 6, 10, 11, 16, 21-22, 24-25, 27. The implication is that the design changes or new information justify Petitioners' late entry into this proceeding. The only possible relevance here of design changes or newly submitted information would be whether any is significant enough to provide good cause for Petitioners' untimely filing. The Licensing Board gives no indication in its opinion that this question was even con-sidered. All we can do is speculate, based on the Board's frequent reference to changes and new information, that this factor may have played a part in its deliberations in some unexplained manner.

3. The Appeal Board should do the required balancing and deny the Petition to Intervene.

The Licensing Board failed to evaluate the Petition to Intervene based upon a balancing of the~ factors specified in the Commission's regulations. Accordingly, the required balancing remains to be performed, either now by the Appeal Board or upon remand by the newly reconstituted Licensing Board. We urge the Appeal Board to undertake this task now rather than remand it to the Licensing Board. There is prece-dent for this approach and no question.as to the Appeal Board's authority to do so. Metropolitan Edison Co.. (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 623 (1977); 10 CFR 2. 785 (a) , 2.714(a).

We re ognize that ordinarily upon a reversal the Appeal Board would want the Licensing Board to reconsider the matter based upon a proper application of the regulations, so as to give the Appeal Board the benefit of the Licensing Board's l

reconsidered views and greater familiarity with the record. In j this instance, however,. due to the intervening reconstitution I

of the Licensing Board, these ends cannot be fully attained. '

As a result, the Appeal Board, we submit,.is in virtually as good a position as the Licensing Board to rule on the question of whether this particular petition should be granted or i

denied. The issues arising under 10 CFR 2.714 (a) have been briefed by the parties and appear to be ripe for decision now.

Appendix A.

With respect to the merits of the Petition to Intervene, we submit that, for the reasons set forth in Applicants' Answer, Petitioners have failed to make a substantial showing of good cause for failing to file their petition on time. A balancing of the f actors specified in 10 CFR 2.714 (a) dictates that the Petition to Intervene should be denied.

Accordingly, we urge the Appeal Board to reverse the Licensing Board's November 24, 1978 decision and deny the untimely Petition to Intervene.

PERKINS, COIE, STONE, OLSEN & WILLIAMS By F. Theodore Thomsen h DSL.

(

By C1/AblJ .

'Qouglah S. Little Attorneys for Applicants i

1900 Washington Building Seattle, Washington 98101 Of Counsel:

Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036

Appendix A December 11, 1978 SKAGIT NUCLEAR POWER PROJECT Docket Nos. 50-522 and 50-523 Principal Pleadings Re Indian Petition to Intervene Abbreviated Complete No. Date Citation Title or Description 1 6-13-78 Petition to Petition to Intervene Intervene 2 6-13-78 Petitioners' Brief in Support of Petition to Initial Intervene of Upper Skagit Tribe, Brief Sauk-Suiattle Tribe and Swincmish Tribal Community 3 7-21-78 SCANP's Intervenor SCANP's Response to Answer Upper Skagit Indian Tribe, The Sauk-Suiattle Indian Tribe and The Swinomish Tribal Communi-ties' Petition to Intervene 4 7-28-78 FOB /CFSP's FOB /CFSP Brief in Support of Answer Petition to Intervene of Upper Skagit Tribe, Sauk-Suiattle Tribe and Swinomish Tribal Community 5 7-28-78 Applicants' Applicants' Answer to Indian Answer Petition to Intervene 6 7-26-78 Noel Affidavit of Donald L. Noel Affidavit In Support of Applicants' Answer to Indian Petition to Intervene 7 8-4-78 Staff's NRC Staff's Answer to Petition Answer to Intervene Filed on Behalf of the Upper Skagit Indian Tribe, the Souk-Suiattle Indian Tribe, and the Swinomish Tribal Community 8 9-5-78 Petitioners' Petitioner Tribes' Reply Brief Reply Brief to Answers of NRC Staff and Applicant

'w. ',' '

Abbreviated Complete No. Date Citation Title or Descriotion 9 9-26-78 Boa rd 's Licensing Board's Letter Re-Request questing Further Submissions from Parties re Petition to Intervene 10 10-27-78 Petitioners' Petitioner Tribes' Response to Response the Board's Request of September 26, 1978 11 10-27-78 Petitioners' Petitioner Tribes' Pre-Witnesses liminary Designation of Witnesses 12 11-17-78 Applicants' Applicants' Response to the Response Board's Request of September 26, 1978 13 11-21-78 Staff's NRC Staff Response to Board Response Request and Petitioner Tribes' Responses 14 11-22-78 SCANP's Intervenor SCANP's Response to Response the Board's Request of September 26, 1978 15 11-24-78 Decision Decision and Order Granting Intervention 16 11-24-78 Addendum Addendum to Decision and Order Granting Intervention r

w. ,,- -

UNITED STATES OF AMERICA NUCLEAF, REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

PUGET SOUND POWER & LIGHT COMPANY, ) DOCKET NOS. 50-522 et al. ) 50-523

)

(Skagit Nuclear Power Project, )

Units 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that the follcwing:

NOTICE OF APPE; BY APPLICANTS APPLICANTS' BRIEF IN SUPPORT OF APPLICANTS' APPEAL OF L". CENSING BOARD DECISION AND ORDER GRANTING INTERVENTION TO THRE'J INDIAN TRIBES {

in the above-captioned proceeding have been served upon the persons shown on the attached list by depositing copies thereof in the United States mail on December 11, 1973 with proper postage affixed for first class mail.

DATED: December 11, 1978 s s.m = ,

F. Theodore Thomsen Counsel for Puget Sound Power &

Light Company 1900 Washington Building Seattle, Washington 98101 l l

1 l

l

-s. .,.

~ '

. Date: December'11, 1978 y ?;. ,,. ..

Valentine B.-Deale, Chairman Ificholas D. Lewis, Chairman Atomic Safety'and Licensing Board Energy _ Facility Site Evaluation 1001: Connecticut Avenue, N.W.- Council

-Washington, D.C.120036 +

820 East Fifth Avenue

. Olympia, WA 98504 D r. : Frank F. Hooper, Member A'_omic Safety and Licensing Board Robert C.-Schofield, Director School of1 Natural Resources Skagit County Planning Department.

University of Michigan 120 West Kincaid Street Ann. Arbor, MI'48104- Mount-Vernon, WA' 98273 Gustave A.'Linenberger, Member Richard M. Sandvik, Esq.

Atomic Safety and Licensing Boat' Assistant Attorney General U.S. Nuclear Regulatory CommissicT Department of. Justice

= Washington, D. C. 20555 500 Pacific Building 520 S.W. Yamhill Alan S.:Rosenthal, Chairman Portland, OR. 97204

-Atomic' Safety and Licensing Appeal Board Robert Lowenstein, Esq.

U.S. Nuclear Regulatory Commission Lowenstein, Newman, Reis & Axelrad-Washington, D. C. 20555 1025 Connecticut Avenue, N.W.

Washington, D. C. 20036 Dr. John H. Buck,~ Member.

Atomic Safety and Licensing Warren Hastings, Esq.

-Appeal Board Associate Corporate. Counsel U.S. Nuclear Regulatory Commission Portland General Electric Company Washington, D.C. 20555 121 S.W. Salmon Street Portland, OR 97204 Michael C. Farrar, Member Atomic Safety and Licensing CFSP and FOB Appeal Board E. Stachon & L. Marbet U.S. Nuclear Regulatory Commission 19142 S. Bakers Ferry-Road Washington,. D . C. . 20555 Boring,.OR' 97009 Docketing and Service-Section Canadian Consulate General Office of-the Secretary Peter A. van Brakel U.S. Nuclear-Regulatory Commission Vice-Consul.

Washington, D.-C. 20555 412 Plaza 600

.(original. and 20 copies) 6th and Stewart Street Seattle, WA 93101

~ Richard L. Black, Esq.

Counsel for NRC. Staff Donald S. Means U.S. Nuclear Regulatory Commission Box 277 Office of the Executive Legal La Conner, WA :98257 Director

-Washington, D.C.'20555 Richard D. Bach, Esq.

Rives, Bonyhadi, Drummond & Smith Roger.M. Leed, Esq. 1400 Public Service Building 1411 Fourth Ave. Bldg. #610 920 S'.W.'6th Avenue Seattle,- WA 98101. Portland,'OR- 97204-

' Russell W.'Busch, Esq.

Evergreen Legal Services.

15308 Ballard Avenue N.W.

Seattle,..WA. 98107 l 11/27/78 L.