ML19323A973

Pleading in Lieu of Brief Amicus Curiae Re Untimely Petition of Three Indian Tribes.Urges Admittance of Tribes as Full Parties Except for Fully Addressed Issues Where Serious Gaps in Existing Record Must Be Shown.Certificate of Svc Encl

ML19323A973
Person / Time
Site:	Skagit, Phipps Bend
Issue date:	04/17/1980
From:	Oconnell C INTERIOR, DEPT. OF
To:	NRC COMMISSION (OCM)
References
NUDOCS 8005090048
Download: ML19323A973 (7)

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NUCLEAR REGUUATORY COMMISSION

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IN THE. MATTER OF

) Docket Nos. STN 50-552 '

PUGET SOUND POWER 6. LICHT CO., ~ET~AL. STN 50-553 (SKAGIT NUCLEAR POWER PROJECT, )

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BRIEF AMICUS. CURIAE SECRETARY OF THE INTERIOR i The Commission has before it an untimely petition of three l

indian tribes - the Upper Skagit, the:Sauk-Suiattle, and the Swinomish l

Tribes -- to intervene in a construction permit proceeding involving the i proposed Sksgit Nucisar Plant, which is proposed to be located on the )

Skagit River in the vicinity of the communities of the three Tribes. I To aid the Commission in its review of-a decision of the Atomic S&fety l and Licensing Appeals Board (Appeals Board) denying the Tribes' petition,

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it has asked all parties to address the followin,ggues Whether petitioner's status (American Indian tribes), separate f rom or in conjunction with the partidular other facts and circumstances of and sur-rounding this case, gives rise to sufficient cause to excuse the extra-ordinary tardiness of the filing of the Tribes' petition to intervene. .

In the same Order the Commission directed the NRC staff to invite the Department of Interior to express its views on that issue. l J

The Secretary of the Interior accepts the invitation.

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Discussion if the Commission's Order is asking whether the Trites' trust relationship with the United States bestows a "special status" which would legally require intervention without regard to the ceamission's Rules of Practice, we answer .. . no. However, if the Commission is -

asking whether there exists other equities which should weigh heavily in favor of the Tribes' prayer for intervention, we answer with an .

emphatic'... yes!

Here is a proceeding wherein the Commission is required by law to pass upon an application filed by Puget Sound Power and Light Company to construct and operate twin. nuclear plants on the Skagit River in close proximity to the communities of the Petitioners. In considering the Appelent's' proposed nuclear facility the Commission is required to take into considerstica the public health and safety, together with the environmental consequences of the proposed. f acility. The interest of the Petitioners with respect to the proposed nuclear facility is not challenged,1,/ yet the Appeals Board has chosen to take an uncompromising position with regard to the Tribes' attempt to participate in this proceeding in order to protect their natural resources. It is the Board's position that the Tribes have not demonstrated a good enough reason to justify ,

being late in filing their intervention petition. 'Yet, the Appeals Board 1,/ The Treaty of Point Elliott guarantees to the petitioning Tribes the right to take harvestable fish from various points along the Skagit River, including the site of the proposed nuclear facility. Since the Tribes are highly dependent on the Skagit River fishery both i

aconomically and socially, and since - the Tribes have an unusually l high rate of unemployment in the area, any loss or adverse impact to l rhat fishery as a result of the construction and operation of the nuclear facility will obviously have a more intensified effect on the Tribes than the public in general.

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has conceded that no other party to this proceeding can adequately repre-cent and protect the Tribes' interests and, moreover, the Board recognized that there does not exist any other means whereby the Tribes can fully and effectively protect their resource except by full participation la this. proceeding. The Board even admits that there is a possibility --

ce believe probability -- that the Tribes can make a contribution ~ to the development of a sound record.

While the Board has said that the Tribes' excuses for its late petition are not persuasive, we read the Board's opinion as being bottomed on the fear that such intervention may cause further delays to the proceed-I ing. The rationale behind the Appeals Board's Majority opinion is indeed 1

puzzeling because this proceeding -- for reasons unrelated to the Tribes' petition -- has already experienced extraordinarily lengthy delays.

Moreover, on March 6,1980, the Licensing Board acknowledged that new information regarding the geology and seismology of the proposed site will require further investigation and has therefore ordered that, until those issues are addressed, all further bearings "on other matters...

(regarding this application] will be shelved."

Earlier we advised you that the trust relationship between the Tribes and the United States cannot be the sole justification for ignoring the Commission's Rules of Practice. However, we do not want to leaveiyou with the impression' that the trust. relationship is meaningless.

The trust relationship does indeed warrant that "special treatment' be given to the Tribes. As the Supreme Court declared in the early 19th century, the trust relationship existing between American Indians and I the United States is "unlike any rwo people in existence." Cherokee l

l Nation v. Georgia, 30 U.S. (5 Pet.) 1,1831. . The petitioning Tribes' trus t relationship with the United States is founded on the Treaty of

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Point Elliot t, 384 F. Supp. 312 (W.D. Wash. 1974); 520 F.2d 676 (9th Cir. 1975); cert. denied 423 U:S.1086 ;(1976). In interpreting enis particular treaty, the Supreme: Court has recently announced that the benefits conf erred to the petitioning Tribes justifies that special treatment be giverr by the bnited States (and its agencies) when dealing with thet protection and enforcement of its treaty protected. rights.

We believe that the trust: relacionship existinc between the. Tribes and the United States justifies a lessestringent interpretation of the Cocamission's Rules of Practice when considering their late intervention petition'. Af ter all, the Tribes are merely requesting an opportunity to assist in the formation of a full. record concerning the potential '

impact of che proposed nuclear. facility on their natursi resource. l The Tribes have not, to our knowledge, expressed opposition to the construction of the nuclear plant at the proposed site. They merely want to be satisfied that this Commission is fully informed of poten-tisi impacts resulting f rom .the construction and operation of the facility. We can appreciate the need to bring proceedings of this nature to a conclusion within a reasonable period of time. But it is our understanding that the Tribes are not. desirous of reopening the

. record as to-those issues, that have been fully tried. We do understand, however, that the Tribes are asserting .that some important findings relative to the fisheries issue have not been fully developed on the record. In this regard we note, with interest, that the Appeals Board's Dissinting Opinion has off ered two compromising solutions to the Tribes' intervention, i.e. intervention for the sole purpose of allowing the Tribes to convince the Licensing Board that the record is deficient or, in the alternative, intervention for the sole purpose of allowing

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{ the Tribes to file proposed findings of fact and conclusions of law based on the existing record, with the right to appeal. 2/ We appreciate Mr.

Farrar's attempt to allow the Tribes a measure by which they could protect i valuable interests in their treaty protected fishery but more importantly to assist the Board to develop a full record upon which the Conunission can make an informed judgment. However, we would wish that Mr. :Farrar's first

suggestion be elightly adjusted. Accordingly, we respectfully request that the Tribes be permitted to intervene as full parties regarding all issues to be tried in the future with the caveat that, as to matters which the hearing Board f eels:have already been fully addressed, the Tribes .

would have the burden of showing that there are serious gaps in the exist-ing record or that additional evidence. developed by the Tribes' axperts deserves to be heard.

Respectfully submitted, 2

. Charles E. O'Connell, Jr.

. Attorney for the Assistant iSecretary of the Interior, Indian Affairs fl fh

/ D4te 2/. We are dismayed at the cavalier manner in which the Majority of the Appeals Board summarily dismissed. the suggested solutions of fered by Mr. Farrar. . However, we note with interest that Skagit County was I recently granted intervention in this proceeding -- some 4 1/2 years af ter the Company's application waar f ormally noticed by the Commission.

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l CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document upon each party listed below.

1 Russell W. Busch. Esq. i Evergreen Legal. Service 520 Smith Tower Seattle, WA 98104 Drnald S. Means . . # , ..

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P.O. Box 277 '

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Lo Conner, WA 98257 ./ _<-, .3 v' g,,

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T.F. Thomaen, Esq. - *;-

'.;L Puget Sound Power. & Light:Co. '.j8 , , .' ',' ' ',', E i-} .-

1900 Washingcon Building 4 ' -

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Saattie, VA 98273 , ' ', \ r:s -

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'kagitonians Concerned About Nuclear Plants R:ger Leed, Esq. ~ v .- ]-Wf ,.'  %

1411 4th Avenue Building Od 5 t' Suite 610 Seattle, WA 98101 Nuclear Regulatory Commission Office of Executive Legal Direr. or Attn Stewart A. Treby, Esq.

W2shington, D.C. 20555 LAi Charles E. O'Connell, Jr. '

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DNITED STATES OF AMERICA ' '[k 2.;,f_ ; d .. ..D ,'Q. ~

NUCLEAR RECULATORY COMMISSI0t 4 1 w,#'

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FUCET SOUND POWER 4 LICHT CO. , ET AL. ) Docket Nos. STN 50-552 (SKAGIT NULEAR POWER PROJECT, UNITS ) STN 50-553' 1 and.2) ) -

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HOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE THREE DAYS OUT OF TIME Because the preparation of the Brief Amicus Curiae was un-cvoidably: delayed due to the unexpected leave of absence taken by the undersigned's secretary, it is respectfully requested that the Cosssission cceept the attached brief three days beyond its due date, April,14,1980.

l Charles E. O'Connell, Jr. l

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Attorney for the Assistant I

Secretary of the Interior, Indian Affairs

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