ML20150E382

Intervenor Scanp'S Response to the Bd'S Request of 780926. Urges Comm to Grant Petition for Intervention Filed by Upper Skagit Indian Tribe,Sauk Suiattle Indian Tribe,& Swinomish Tribal Community(Petitioners).Cert of Svc Encl

ML20150E382
Person / Time
Site:	Skagit
Issue date:	11/22/1978
From:	Leed R SKAGITONIANS CONCERNED ABOUT NUCLEAR POWER (SCANP)
To:
References
NUDOCS 7812190080
Download: ML20150E382 (9)

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j(( Ng vjj {7j UNITED STATES OF AMERICA NUCLEAR REGULATORY ~ COMMISSION .

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,BEFORE,THEATOMICSAFETYANDLICENSINGBOARDN, [

In the Matter of; )  !

) l PUGET SOUND-POWER & LIGHT. ) DOCKET NOS. STN 50-522 1 CO MP ANY , et.al., ): 50-523 i

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(Skagit Nuclear Power Project, )

Units l-and 2) )

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1 INTERVENOR SCANP'S RESPONSE TO THE BOARD'S REQUEST OF SEPTEMBER 26, 1978 SCANP's response to the' Board 's request for additional submissions respecting the Petition for Intervention filed by the Upper Skagit Indian Tribe, the' Sauk-Suiattle . Indian Tribe, and the Swinomish Tribal ' Community (" Petitioners") will not address t ddress all of the issues and concerns - raised by petitioners, the applicant, and the staff in 'the comprehensive-i .I

. documents already filed with respect to this petition. SCANP -l l 1 supports permitting intevention, howeve r, and will demonstrate that the. staff.and applicant have underestimated greatly both the importance and complexity of the - issues raised by peti-tioners, and the unique ability of petitioners to address-comprehensively the issues it raises.

Both applicant and staff have underestimated the complex-f ity of Indian law in their analyses of the rights'of peti-tioners Indian Tribes under United States v. Washington.- The I

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staff cites the court's holding that the Tribes reserved fishing rights c ver 100 years ago and were not recently granted I these rights for its proposition that the tribes were aware of the extent of these rights previous to the litigation in U.S.

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v. Washington, and cannot now be heard to say that that li tiga-tion greatly altered the circumstances surrounding petitioners' late application for intervention. Staff's belief that the U.S. v. Washington decision merely reconfirmed preexisting treaty fishing rights reveals a distinct lack of familiarity with the scope and practical ef fect of this litigation. J udge Boldt found specifically that the state consistently and continually had acted to deny Indian treaty fishing rights and to prevent their assertion. Both public reaction and the massive litigation which has followed the Boldt decision, including thw acceptance of review by the' Supreme Court last month, undercut completely any assertion that the Boldt deci-sion was a mere reconfirmation of preexisting law and custom.

Thus, the staff's comp arison between petitioners ' late action here and the denial of late intervention to a housewife who can cite only her domestic duties as the cause of her delay is most inappr op ri a te .

In contrast to the mi sunde rs tanding shared by the staff and the applicant with respect to the basic principles gov-erning Indian law, petitioners are represented by counsel whose

skills in tnis area are highl)- respected. The Native Rights Division of Evergreen Legal Services has played a major role throughout the litigation of U.S. v. Washington. Although the lengthy submissions of the applicant and staff indicate that a great deal of effort has gone into researching applicable Indian law, their submissions also demonstrate that there is a serious danger that the Tribes ' treaty rights will either bb' ignored or misconstrued if petitioners are not allowed to intervene.

These difficulties anticipated by SCANP are nowhere more apparent than with respect to the fisheries issue. The appli-cant's response of Nove mbe r 17,. 1978 purports to answer the question of who will protect tribal fishing rights. But in ,

reality, it does not address this question at all. Instead, applicant merely asserts and reasserts that the proposed pro-ject will not have any impact on petitioners' treaty rights.

If by some remote chance applicant's conclusion that treaty rights will not be affected is incorrect, applicant has sug-gested ' no alternative to intervention which will adequately protect those rights.

While it is not at this point appropriate to address the merits of the applicant and staff assertions that the fisheries impacts of the project are minimal or non-existant, SCANP does contend that staff and applicant have confused the issue of impact on fisheries with impact on Indian treaty rights to take

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fish. Aside from the aspects of project cons t ru ct ion and

- operation, the proposed fish hatchery clearly' presents an _ issue bearing on those treaty rights. The applicant and staff

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propose a hatchery program to offset any losses in the natural fishery despite the-fact that the hatchery program itself may reduce the productivity of the Skagit fishery, and adversely affect native stocks. Recent studies' indicate' that hatchery programs have not'been as successful as previously thought in replacing and supplementing natural. runs.

But even if it is assumed that the hatchery will indeed maintain the runs at their former levels, we are again confron-ted with a legal issue which has direct impact on petitioners alone, and which both staff and applicant have failed to address. As applicant points out, see Applicant's Answer to Petition at 41, any hatchery will be operated by the Washington State Department of Game or Fisheries. What applicant has overlooked is that the State of Washington contends and has contended consistently for several years that hatchery fish are not' su bje ct to Indian treaty rights. This issue has been pressed upon the Supreme Court but not resolved, see Department of Game v. Puyallup Tribe, 414 U.S. 44, 49-50, (1973) (White, concurring), and is currently at issue in United States v.

Washington, Phase II. The staff and applicant analyses of this issue - again makes clear that the petitioner's legal expertise is .necessary to insure protection tion of their treaty rights

'in this proceeding.

Applicant's response to petitioners ' issue concerning the genetic impacts of- local radiation upon an isolated population .

further reveals the' insensitivity of other -parties. to issues ,

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uniquely . af f ecting the petitioners and the need for int e rve n-tion. Again, SCANP does not intend to argue the merits of this issue in this presentation. But it is clear to us ~ that the issue raised is a substantial one, and is one that is not an-swered adequately by citation to a regulation concerning gen-eral impacts on larger and more diverse populations. The pos-sibility that either low level radiation or an accidental high level release could have a- severe adverse impact on a small and discrete population possessing unique cultural characteristics.

is certainly substantial and worthy of further study.

The applicant's answer, at 37-38, contends only that

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because the issue has not been studied completely , the' inter-venors have nothing significant to cont ri bu te. Petitioners have stated in detail the nature of the studies they are con-ducting concerning this issue and who their proposed witnesses will be. It is clear that without any real delay in the proceedings, petitioners will be prepared to mak e a signifi-cant contribution to the record on this issue. But even if )

this were not so, applicant in its argument has misplaced the i burden of proof which both the Commission's own regulations and the Supreme Court have placed on the applicant. See 10 CFR 1

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i 2.732; _Id P art 2, App. A (V)(d)(1); Vermont Yankee Nuclear Power Corp. v. Natural-Resources Defense Council, Inc., 98 S. Ct.

1197 (1978). In Vermont Yankee, the Supreme Court held that an intervenor must only make a showing " sufficient to require reasonable minds to inquire further." 98 S. Ct. at 1217..

l Applicant's position that it &nd staff have not studied the 1

issue of genetic effects on an isolated population is not.a sufficient answer; the NRC's regulations require the applicant  !

l to carry the burden of proof on this issue, and the Vermont Yankee decision teaches that the NRC must address this issue.

The applicant's suggestion that the issue need not be studied because it has not been studied misses the point and again demonstrates the need'to' grant intervention to allow peti-tioners'to protect their rights.

After suggesting that the rights of the petitioning tribes wil.1 not be affected or are not the appropriate subjects of in-guiry in this proceeding, applicant and staff intimate that SCANP is fully capable of representing the interests of the tribes. The petitioning tribes have already stated in detail, {

Petition at 17, their dissatisfaction with SCANP's showing on l the fisheries issue. Petitioners ' brief s make abundantly clear that SCANP is not qualified to explicate, let alone adequately p rot e ct , the treaty rights of petitioner tribes, nor to under-take the studies and showings-which Petioners believe are l l

necessary to protect those rights, and which Petitioners have j l

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already initiated. -_It 'is also apparent that there are probably real and significant conflicts of interests 'between SCANP and l petitioner tribes. This is especially true with respect to the I fishery issue, where proposals made by petitioners to preserve their treaty rights probably conflict with the desires of SCANP members who are sport and commercial fishermen and who may wish to assure the greatest possible fish runs which are not' subject to treaty.taking.

The concerns here raised by SCANP are not exhaustive, but should suffice to demonstrate that only the petitioning tribes are in a position to assert and protect native American -' legal rights. SCANP states its support' and full agreement with all l contentions raised by petitioners in support of their motion to i n te r ve ne , and urges the commission to grant said motion.

Respectfully submitted, s' /

ROGER M. LEED.

DATED: Novembe r 22, 1978 ,

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h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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) DOCKET NOS. STI PUGET SOUND POWER & LIGHT COMPANY, et al., )

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(Skagit Nuclear Power Project, )

Units 1 and 2) )

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CERTIFICATE OF SERVICE I hereby certify that copies of:

INTERVENOR SCANP' S RESPONSE TO THE BO ARD' S REQUE SEPTEMBER 26, 1978 have been served on the following by depositing the san United States mail, postage prepaid, on this 7bd day c 1978.

S amuel W. J ensch , Esq., Chairman Alan S. Rosenthal Atomic Safety and Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regu Commission Washington, D.C.

Washington, D.C. 20555 Dr. John H . Buck, Dr. Frank F. Hooper, Member Atomic Saf ety anc Atomic Saf ety and Licensing Board Appeal Board School of Natural Resources U.S. Nuclear Regt University of Michigan Washington, D.C.

Ann Arbor, MI. 48104 Michael C. Farra Gustave A. Linenberger, Member Atomic Safety an.

Atomi c Saf ety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Reg; Commission Washington, D.C.

Washington, D.C. 20555 Certificate - 1

Docketing and Service Section Canadian Consulate General Office of the Secretary Peter A. van Brakel U.S. Nuclear Regulatory Vice-Consul Commission 412 Plaza 600 Washington, D.C. 20555 6th and Stewart Street Seattle, Washington 98101 Richard L. Black, Esq.

Counsel for NRC Staf f F. Theodore Thomsen U.S. Nuclear Regulatory Perkins, Cole, Stone, Olsen Commission & Williams Office of the Executive Legal 1900 Washington Building Director Seattle, Washington 98101 Washington, D, C. 20555 Alan P. O' Kelly Nicholas D. Lewis, Chairman Paine, Lowe, Coffin, Herman Energy Facility Site Evaluation & O' Kelly Council 1400 Washington Trust Financial 820 East Fifth Avenue Center Olympi,a, Washington 98504 Spokane, Washington 99204 Robert C. Schofield, Director Skagit County Planning Depart-ment 120 West Kincaid Street Mt.Vernon, Washington 98273 Richard M. Sandvik, Esq.,

Assistant Attorney General Department of Justice 500 Pacific Building 520 S. W. Yamhill -

Portland, Oregon 97204 Robert Lowens tein, Esq.

Lowenstein, Newman, Reis &

Axelrad 1025 Connecticut Avenue, N.W.

Washignton, D.C. 20036 H. H. Phillips, Esq.

vice President and Corporate Counsel Por d General Electric y g]m ;. g /fM 121 S.W. Salmon Street Portland, Oregon 97204 CFSF and FOB E. Stachon & L. Marbet ROGER M. LEED 19142 S. Bakers Ferry Road Counsel for Intervenors Boring, Oregon 97009 Certificate - 2