ML20211Q925
| ML20211Q925 | |
| Person / Time | |
|---|---|
| Site: | 07200022 |
| Issue date: | 09/08/1999 |
| From: | Kennedy J AFFILIATION NOT ASSIGNED |
| To: | Marco C, Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| CON-#399-20815 ISFSI, NUDOCS 9909160014 | |
| Download: ML20211Q925 (26) | |
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I JOH N P AU L KEN H TDY, P.C.
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ATTORNEY AT LAW j
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R ADh September 8,1999 Catherine L. Marco i
Shenvin E. Turk l
Office of the General Counsel Mail Stop O-15 B18 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Possibly false and misleading infounation regarding " host community" Docket No. 72-22-ISFSI
Dear Staff:
I have recently become aware of evidence which I believe reflects serious conflicts with evidence which has been presented to and is being relied upon by the Licensing Board in this matter.
I am enclosing a copy of a letter signed by Leon Bear and submitted as evidence in the above proceeding by the Applicant. Mr. Bear claims to be the Chairman of the Skull Valley Band and its Executive Committee and further claims to have been authorized by ? is Tribe to execute the purported lease agreement for the ISFSI site in this matter.
I am also enclosing a declaration signed by Mr. Bear which was filed by PFS in federal court litigation pending against the United States Department of the Interior and PFS (Di.trict of Utah 98-CV-00380K). In addition, I am enclosing a declaration which was filed in the same case by Sammy Blackbear.
It seems to me that the Blackbear declaration raises serious and fundamental questions regarding the right of Leon Bear to claim authority to act on behalf of the Tribal General Council (the Tribe's sole governing body) or to speak or act on behalf of the Tribe. This, of course, raises even more questions concerning the purported lease agreement presented to the Commission by l
PFS as one of the foundational documents supporting its application.
9909160014 990908 PDR ADOCK 07200022 C
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I call this conflict to your attention so that you rnay give it appropriate consideration and make it part of the record. It seems to me that this conflict must be resolved as soon as possible to avoid wasting precious resources of all concerned I
I Yours very truly,,
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J ' hn Paul Kennedy l
cc: service list in Docket 72-22-ISFSI
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Fat Dunem F. Stenden, Esq To: John Pad Kemedy Date:9/BS9 Trne:12A16PM Page2of13 05/21/1999 10:25 2000000000 COPY T RE R PE 01 sinsweer enddc i s h s
Skull %iler Rewrveen P!O.Beniso Grammile. Ui.h 64029 Ofree (sol) 4744535 Fax: (801) 4744514 p
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February 16,1999 a-_
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CR>.EtuTE Mr. Mark DeWeetti, Senior Project Manager Spent Pueluoenans section Speat FuelProject Of5ce OtBee of Nuclear Matenal Safety and Safeguards U.S. NUCLEAR REOULATORY COMMISSION Wadsngton, D.C. 20555 RE:
RESPONSE TO REQUEST FOR ADDITIONAL INFORMATION (ER 1)
PRIVATE FUEL STORAGE FACILITY DOCKET NO. 72 22/rAC NO. L22462 RKIff1 vat f WY BAND OF GoKHfft1INDIANE Mr. DeGigetti b8r. Francis Young, in a letter kom the Nuclear Regulatory Coinsdssion (NRC) dated December 18,1998, requested tom Private Fuel Storage, LLC (PFS) ad&tional indbrmation related to their Lisease Application Ibr a Spent Fuel Storage Faamty located on the Skun Vegey Band of Goshute Indians' Reservation. A sub set of these quesdone requested ad&tional information relating to the Band and it's members.
& Band has participated in the paperados of thmes responses to thees queadoes with the
- - of PFS. Ahbough tbs queadoes requested informados conoanns topics generauy deemed seasniw by the Bad, we beBen the infbrmation supphed addruem the needs expewood by the NRC and will provide closure of these questions.
The responses suppued as an estachassa to this letter are directed toward NRC queadons mumbered 9 2(b),11 1,112(a,b.c),11-1(a),12 3(a,b),13-1(a,b),13 2(a,b), and 15 4.
J AD e.
oc: J. Parkyn, PF5 Chainnes Anachment
Frat Duncan F. Seadman, Esq Tg John Pad Kennedy Date:9/Bl99 Trn12:4(16PM Page3of13 05/21/1999 18:25 2000000000 GPY:CD(rDR PE 02 ENVIRONMENTAL IMPACT STATEMENT
- 9. LAND AND WATER USE 9-2 b. Provide any plans for economic development by the Skull Valley Band of Goshute indiens, as well as any other planning documents related to the county's future development, such as comprehensive plans and population projections. This information will support the Els cumulative impact analysis concoming land use.
Information should be sufficient to support the EIS assessment of impacts of the proposed project on land use in general and on other developments currently being planned in the area.
RESPONSE
County plans are provided elsewhere in the overall response by PFS (Attachment 9 2). The Skull Valley Band of Goshute Indians are pursuing future economic development of the reservation and the Band. As noted in the PFS ER. the remote desert environment of much of Tooele County (including Skull Valley) cannot support increased population or development. Natural resources, particularly the lack of water resources, will always serve as a limitation to j
potential growth in certain areas of the county. Although development plans have not been formalized, tht. Band's intent is to pursue industrial and agricultural development on the reservation. The Tekol Test Facililty and the i
PFS storage facility are examples of industrial development on the reservation in the roughly 13 sections of land designated for that purpose. Agricultural initiatives (cattle grazing) on a 1/2 section of land are oflong range lnterest to the Band. The Band selectively considers business opportunities for the reservation that are consistent with other business ventures in Tooele County.
EIS RAl. SkuN Valley Band of Goshute Responses Page 1 of 11
Fat Duncan F. Seadman, Esq To: John Pal Kennedy Datd82 Tee.12A10FM Page4of13
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05/21/1999 18:25 2000000000 CDPY:CENTERR F%GE 03 ENVIRONMENTAL IMPACT STATEMENT
- 11. SOClOECONOMIC EFFECT8 11-1 Assess the effects the lease payments would have on the community of Skull Valley Dand members living on the reservation; on potential social, educational, and economic development of the reservation; and the welfare of the Band members who live in other communities.
RESPONSE
Currently the Skull Valley Band of Goshute Indians have an enrollment of 119, with about 30 members of the Band living on the reservation. Six of these members are over the age of eighteen. The balance of the enrollment reside in the outlying cities or out-of state. Two adult Band members from the resemation are students; one Band member is an elected tribal official, and the other Band members from the reservation are employed at the Tekoi facility (as a security guard) or off the reservation in nearby communities working within the agriculture, forestry, and fisheries class of industry.
Members living off the reservation are employed in similar positions and also include artisans, nurses, and construction workers. Approximately 50 % of the enrolled membership Ilving off the reservation have expressed interest in retuming to the reservation if jobs and housing were available. The presence of the PFS facility will provide this opportunity to all enrolled Band members.
The Band has no natural resources other than the raw land itself. Because the Skull Valley Goshute Reservation is located in an area that has, been designated as a waste zone by the State o* Utah, the Band must rely on economic development programs that are consistent with the numerous waste processing and testing facilities that surround the Reservation. Until 1995 about 90% of the Band's income to fund programs came from the lease of a rocket motor testing i
facility on the resemation. This lease has been renewed but the scale of activities has reduced significantly in recent years as well as the number of Band members receiving employment at the facility (now down to 2 tribal members).
The Band has decided against business relationships with businesses not consistent with other industrial activities in Tooele County and of interest to the Band.
The addition of the PFS facility to the reservation will provide a base income to the Band as a whole. Individualjob opportunities will also exist which will further enhance and support the economic stability of the Band. The Band, through a budgeting process, allocates all of the financial resources for the betterment of the Band on a yearfy basis. Many of the activities conducted on the reservation, including maintenance, operation of the Pony Express Store, and the operation of Tribal govemance are presently volunteer positions due to the lack of financial EIS RAI. Skull Volley Bond of Goshute Responses.
Page 2 of 11
Front Duncan F. Seadan, Esq T9: & Pad Kemedy Date:9899 Trne:12:4116PM Page5of13 05/28/1999 18:25 2000000000 CIFY:CDEM pg g4 l
l resources. The Band is in the process of developing financial strategies to provide for the long-term financial security and standard of living improvement for all enrolled Band members from their business ventures which includes their business opportunity with PFS Improvements contemplated for the reservation include housing, schools, dey-core, medical facilities, higher education opportunities, and commercialimprovements to the Pony Express Store.
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i El$ RAI, Skull Valley Sand of Goshute Responses Page 3 of 11
Frm 0as F.Seatm Esq To: Join Pal Kemedy Date:9/85 Tn12.4t16PM Page6of13 es/au1999 18:25-asesee0000 c m v:ce m m pa os i
ENVIRONMENTAL IMPACT $TATEMENT
- 11. SOClOECONOMIC EFFECTS 11 2 For the following items, include a discussion of significent differences, if any, between members who live on the reservation and those who live in communities off the reservation.
i Describe the education, income levels, location, health, etc. of the Skull Valley Band including any characteristics that would distinguish the Band members from the general population, including the following:
Explain the extent to which Band members who live off the a.
reservation retum to the reservation for regular visits, cultural and/or religious activities, or have other connections to the reservation land, b.
Explain whether those members living off the reservation would be likely to move to the reservation if there were equivalent or other economic opportunities on the reservation or whether residents of the reservation would be likely to leave if the construction of the facility is approved. This information is needed to ascertain whether lease payments would be likely to result in inducing people to move onto the reservation or to leave it.
c.
Provide any available information on criteria or restrictions that the Band applies in deciding whether to allow persons to reside and/or operate a business on the reservation.
1
RESPONSE
The household income of the Band members living on the reservation is approximately $20,000 per year. About 17 individuals are noted as having incomes below the povesty level. (includes individuals who live on the reservation but are non Band members, e0, ppJoes of Bond members).
It la noted that the above information conflicts with some govemment documents, og, one documsr,t rcports that a total of five households on the reservation have an income of between 840,000 and 574,999 with the median household income within the reservation at $61,359 (income & Poverty Data for Skull Valley Reservation. UT,1/8/99). Also, the por capita income in 1990 was reported as
$20,647 for residents on the reservation. These numbers are incorrect and grossly overstate the income on the reservation.
Approximatsty 10 % of the enrolled membership of the Band have two or four year degrees from post-secondary education. The Band has an ongoing tuition EIS RA1. Skull Veney Band of Goshute Responses Page 4 of 11
Frat Duncan F.Stadmm, Esq R J*iPad Kennedy Date:MS Tne:12#16PM Pa p g 05/21/1999 10:25 2000000000 W PV:CE} M PASE 06 assistance program that has limited capability due to the lack of financial resources. The general health of the Band is not any different and would not be distinguishable from the general population.
a.
The ancestoraliand routinely inhabited over the centuries by the Skull Valley Band of Goshute Indians is in Tooele Valley not Skull Valley. The Band was a nomadic tribe with family units traveling together rather than village units. The Tooele Valley was the area to where these nomadic families gravitated together. Their spiritual and other ceremonial events are traditionally individualistic in nature and occurred more often when two families met while traveling. Today, the Band's practicing of spiritual or j
other kinds of ceremonies remain individualistic, Individual spiritual ceremonies are open to all native Americans who share the same personal spiritual beliefs as the person requesting the ceremony. The conduct of the ceremonies is not a scheduled activity.
Word of mouth throughout the Band and other tribes is the typical mechanism for announcement. A great many of the ceremonies are conducted in individual homes, whether on or off the reservation.
Band govemance activities in terms of a yearly general council meeting draw nearly full attendance of the enrolled members to Skull Valley.
b.
Band members over the years have left the reservation due to the lack of jobs, adequate housing, and suitable conditions to raise a family. At the present time,50 % of the enrolled members living off the reservation have expressed interest in retuming to the reservation if jobs and housing were available. No members of the Band living on the reservation have expressed a desire to leave when the PFS facility is built and operating.
The availability of jobs and income from PFS will provide the financial resources for the Band to achieve their goal of creating a productive homeland for all enrolled Band rnambers.
c.
The reservation is open to all enrolled Band members without exclusion.
Non tribal members can only live on the reservation if married to an enrolled member of the Band.
Tribal enterprise opportunities are screened by the Band's Executive Committee for consistency with the Bands goals of economic independence through ventures that are similar to those throughout Tooele County. The General Council meetings.that are attended by a me}ority of enrolled members of the Band determine the direction and focus that the Executive Committee uses in its assessment of business ventures. The General Council then approves further action by the Executive Committee for those ventures worthy of interest.
28 RAl. skuN VeNey Bond or Goshute Responess Page 5 of 11
i FmDuenF.WEsq. To:JohnPalKemedy Die:9899 Tne:12A16PM Page8of13 es/2in999 18:25
'2eeeeeeees-ccm:CEMER PE e7 ENVIRONMENTALiMPACT STATEMENT it. SOClOECONOMIC EFFECTS 117 Assess the social and economic impacts to the residents of Skull Valley who are not Band members.
Describe and quantify the employment of (1) Band members and a.
(2) non-Band members,in ranching and agricultural activities, at the Alliant Techsystems static rocket engine test facility, the Pony Express store, and any other places of employment. Report the i
extent to which people employed in these and other enterprises in Skull Valley live in the valley or commute from other communities.
RESPONSE
According to the U.S. Census Bureau, in 1990, of the 17 individuals (15 male,2 female) living on the Skull Valley Reservation aged 16 yurs and over,5 males were employed in the labor force. All five of the employed individuals lived within 10 minutes of their place of employment, and all 5 were employed in the
" industrial, agriculture, forestry, and fisheries" business sector. Today,4 males and 1 female have income producing employment. The belance of the potentiel work force either are physically unable to work, volunteer for unpaid tribal positions, or have not found suitable opportunities for employment.
The Pony Express Convenience Store is owned and operated by the Skull Valley Band of the Goshute Indians and sells convenience groceries and gasoline to Band members and pensersby on Skuu Valley Road. Three volunteer staff members operate the store. These members include one tribal resident from the reservation, one non-tribal member married to a tribal resident, and one nork tribal member who lives in a nearby residence south of the reservation. The store is open seven days a week from nine to five. All operational and maintenance costs for the store are controlled through the tribal budgeting process, income dortved from the Pony Express operation is d+?::":j into the tribel general account.
A discussion ofincome from the Alliant Techsystems rocket testing facility is provided in response 11 1. The facility employs 3 security personnel,1 of which is a tribal member living in Grantsville, another tribal member living on the reservation, and 1 non-trbal member livmg in Skull Valley. Five non tribel techniciens work at the facility only during the infrequent testing operations, These individuals commute frorn the Salt Lake City area to the test foollity. No
. Tribal members are directly employed for facility operations. The proposed PFS facility would not affect the continued operation of the Alliant Techsystems
- CRY-eis mM, skua veney send or oosmpse Responsor Page e of 11
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1 From DuanF.Stahan,Eg To:JohnPalKemedy Ode $M9 Time:12A16PM Py9of0 B5/21/1999 18:25 2000000000 COPY CENTERR PAGE 60
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The principal land use in Skull Valley is rangeland for ilvestock grazing. Cattle and sheep are grazed, especially in winter when livestock is brought down from the higher mountain elevations. As noted in the PFS ER, the land along the Low Corridor rail spur and a majority of land (55 percent) within a 5-mile radius of the PFSF is public land administered by the BLM as part of the Pony Express Resource Area (PERA). The remainder of the land is split almost evenly between the Skull Valley Reservation and private ownership.
As the PFS ER points out, the BLM land within 5-miles of the PFS faciltty is part of the SkullValley and South Skull Valley grazing allotments. 85% of the land in the Skull Valley Allotment is considered to be of fair to poor condition with the overall conditions in decline. The allotment is divided into three postures: West Cedar. Eightmile, and Black Knoll. The southeast comer of the Black Knoll Pasture is within the 5 mile radius and the Low Corridor rail spur would cross both the Black Knoll and Eightmile Postures. Two operators are authorized to graze sheep and cattle within the Skull Valley allotment. Portions of two pastures in the South Skull Valley allotment are within the 5-mile radius: the East End of the Cochrane Posture and the northem edge of the Post Hollow Pasture. The permit holder for these areas is also allowed to grate sheep and cattle. It is unknown how many individuals are employed by these private ranchers, however, operation of the PFS facility would not interfere 'with the continued use of these pastures for grazing.
l Eis RAi, skvil veney Band of Goshute Responess pageyorg3
Fm Decan F. Ses&mn, Esq. To: John PalKemedy Ode 29 Ted2 Aim Papuem 95/21/1999 10:25 2800008ece COPY:CE N E m N 10 ENVIRONMENTAL Hl4 PACT STATEMENT
- 12. CULTURAL RESOURCES 12-3 Assess the effects of the propoted PFSF construction and operation on traditional Skull Valley Goshute practices, i
Describe these traditionallifestyles and practices and the s.
importance in maintaining these lifestyles for the Skull Valley Band.
b.
Provide evidence that known traditional practitioners (or the i
traditional leaders of the Skull Valley Bend) have been consulte$ to soquire this information.
The information should include types of plants that era used and the traditional gathering sites for these plants; anirnels that are hunted and the locations of traditional hunting sites; and ceremonies that are performed and the locations of traditional ceremonial sites. Other traditional practices (and the areas in which they occur) also should be identified.
RESPONSE
As noted in the response to Question 112, the oncestorallands of the a.
Skull Valley Band of Goshute are in Tooele Veney not Skun Valley. Pit houses, pictographs, and religious circles have boon log on the Tooele Army Depot and elsewhere. Furthermore,ged in the valley traditional Band practices are individualin nature and are not assoaisted with the physical reservation property. Due to the look of water for a significant portion of the reservation, traditional plants such as sage and onder either do not exist generally in a condition to be of interest to Band members or at all.
Loostions to find such plant are in the 8tensbury Mountains not lower in the valley where the reservation is located The evenability of such plants in Tooele Valley is for greater then Skull Valley for the limited use by Bend members. The presence of the PF8 facility in Skuli Valley as well as other Band business ventures will have no effect on tribal membore in.
regent.
b.
The Skull Valley Band of Goshute indlans has a traditional form of govemment under a GeasvW Counoll comprised of the eligible membership of the Band. A three person Executive Committee, elected by the General Council, comprised of a Chairmen, Vloe Cheltman, and EnJ._.7, is the goveming body of the Band and handles day to day manere. The Emeoutive Committee represents the Band and all of it's enrolled members for tribal affaire. PFS previously conferred with members of the Executive Committee for information to support the Liconee Application to the Nuclear Reguletory Commission.
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Fat Dnm F. Seat 4 Esq To: John PmA Kemedy Date:9M9 Ine:12.R16PM Page13of13 05/21/1999 10:25 2000000000 COPY:CWrERR PAgg 12 ENVIRONMENTAL IMPACT STATEMENT
- 13. ENVIRONMENTAL JUSTICE 13-1 a.
Describe the leadership and governance of the Skull Valley Band of Goshute indians.
b.
Explain how the reservation of the Skull Valley Band of Goshute Indians meets the screening factors described in the ER of the critoria for selection of candidate sites of a *willing jurisdiction," and "public acceptability." To the extent applicable, provide the response of the Skull Valley Band to the Site Selection Questionnaire (ER Table 8.1-2).
RESPONSE
a.
The Skull Valley Band of Goshute Indians is a federally recognized Indian Tribe. An Executive Committee, that is the goveming body of the Band, and the General Council, which is the membership of the Band, handles tribal govemance. The Executive Committee is comprised of three members, Chairman, Vice-Chair, and Tribal Secretary, who are nominated and elected by the adult membership of the General Council for four year terms.
b.
Attached to these responses is a copy of the Site Select 6on Questionnaire with the Band's responses to questions provided by PFS. The Band received this questionnaire after PFS was notified by the Band of our interest in hosting the facillly on the reservation in the area identifled for industrial development. Since the Band approached PFS for consideration and have, on record, a resolution of the General Council (consisting of all adult enrolled members of the Band) approving and suppoeting the development and operation of the facility, we believe this clearty establishes the Band as a "willing jurisdiction". In addition, the reservation is located in an ares that has been designated as a weste zone by the State of Utah. Numerous " waste" businesses have already been established everywhere in this zone but on the reservation.
Therefore, we believe that the Band represents the only "public" left to be considered for acceptability and as previously established, we find the facility not only acceptable, but also highty desirable.
I EIS RM, skuu veney send of Goshute Reeponses Pege 9 of 11
Fran Decan F, Seahan, Esq. Tg John Pad Kemedy Date:9899 Tne:114t16PM Page12of13 05/21/1999 18:25 2000000000 CDPY:CE2ffERR PAGE 11 ENVIRONMENTAL IMPACT STATEMENT
- 13. ENVIRONMENTAL JUSTICE 13-2 m.
Describe the frequency with which the actMties discussed in the RAI item 12-3 occur and the extent to which men, women, and/or children participate in them.
b.
Describe consumption rates oflocary harvested plants and animals by Skull Valley Goshute men, women, and children.
Provide sumclent information to determine whether the proposed action in conjunction with traditional activities and/or food consumption pattoms could lead to adverse health impacts to the residents of the reservation and other Skull Valley Band members.
RESPONSE
As identifed in the response to question 11-2, activities, ceremonies, and a.
traditional practices other than govemance are practiced by the individual in a home setting wherever that is located. Ancestorallands reside in Tooele Valley with the more well known historical and logged locations found on the Tooele Army Depot property.
b.
The lack of water in general on the reservation severely restricts the
^
availability of all edible plants and therefore restricts the presence of animals with the exception of a few horses maintained by Band members.
Tribal members consume food obtained from commercial stores no different than other members of the general population in Tooele County or Salt Lake City. The Band has identified an area (1/2 section) of potential agricultural development (limited cattle grazing) east of Skull Valley Road and west of the Tribel Village. Thu area has been identified for possible future development if sufficient water con be obtained to support the operation. No plants or animals are presendy grown or grazed on the reservation for human consumption.
I i
a EIS RAl Skull Velicy Bond of Goshute Rossoness Page 10 or11 i
FraDunmF.WEsq. To:JohnPWKennedy IMI9999 Ine:12.4(16PM Page10of13 05/21/2999 18:25 2000000000 COPY:&NTERR PAGE 09 i
ENVIRONMENTALIMPACT STATEMENT
- 15. COSTI BENEFIT ANALYSIS 15-4 Provide information on the amount of income generated for the Skull Valley Band and/or its members by existing economic a:tivities in Skull Valley, and the extent to which such income-producing activities may be lost if the PFS application is approved.
RESPONSE
income producing activities are described in responses 11-1,11-2, and 11-7.
The Band's business affairs are privileged and proprietary as we are in competition with other businesses in Tooele County and have limited resources i
to pursue such ventures. As discussed in the response to question 112, the general personalincome to residents of the reservation is small. In addition, by the very fact that the operation of the reservation and the Pony Express Store is done by volunteers clearly establishes that the income received from our business ventures does not even cover the true cost of running the Bend's affairs as a " business". In fact, other businesses could not survive under these same conditions off the reservation. None of our business actMties would be adversely affected by the PFS facility. In fact, the business actMty associated with the Pony Express Store would probably increase significantly due to the construction and operation of the PFS facility.
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l EIS RAI, Skuu Veney send of Goshute Responses Page 11 of 11
' T7 John P;ul Kennedy, Esq 1700-581 1007, From: Communication CsntIt 801-465-0733 B/24/99 13.05 06 Page 3 of 5 JUL-20-99 TUE 16:27 J P KENNEDY 6TTORNEY FAX NO. 801 581 1007 P 02 5tM BY:PifYSICAL RES00t&S
- 7 0 : 2:13PN : tRAH 4170MEY GEN.*
801 G81 1007;* 2/ 4 m
UNITED trrATES DISTRICTCOURT IN AND POR 711E DISTRICT OF UTAH, CENTRAL DIVISION STATE OFUTAH, PhdadfE DECLARATIONOF LEON D. BEAR vs.
THEUNtIED STATES DEPARTMBNT :
CMI ActlanNo.2:99CV 0500K OFTHEINTERIOR; BUREAU OF INDIAN AFFAIR 8;FHOENIX AREA DIRECTOR. BUREAU OFINDIAN AFFAIRB; and SUPERINTENDENTOF UINTAH AND OURAY AGENCY, BUREAU OFINDIAN AFFAIRS, Defendants.
1, Leon D. Best, sists:
1.
I en the Ominamn ofthe Skal Valley Band of 00shule Indiens (" Band"), a Fadendy recognimod Indian trim loomed ki the Stsee of Utah.
2.
'Ds Paedoss oflh Act ("FAIA") litigadon at hand spansna a kase, dated May 20,1997, between the Band and Prhete Puel Storset L.L.C. ("PF5"). By this innse the Band egned to permit PPS to construct a balbty for the temporary storage orspent nuclear fhel ("SNF")
tr a taan ofyames and 1 ben to more the SNF ce s porten of the Band's meervation h -W ibt soonornic and snylpynom besidha. 'De Band and PFS furthur agreed that the lease smuld becoise effective only upon the W of an Enyhentosatal ingeet Stateinsat and the licensing of the l
Tar. Mm P;ul Kennedy, Esq 1-700-581 1007, From: Communication Csnt:r 801-465-0733 B/24/99 13 05 52 Pag) 4 of 5 JUl.-20-99 TUE 18:27 J P KENNEDY ATTORNEY FAX NO. 801 581 1007 P,03 NDR BY:PtfYSICAL RES0lRES
- 7-20-99 : 2:14Ptf : UTAH ATIMEY GEN. 4 601 381 1007:s 3/ 4 3.
On Demutter 4,19916 the Band requested the the superim== bum of the Uhtah and Ouray Agency ("Superissendset") of the Baums ofladian Afbirs ("BIA"). Department of the laborist ("Departenst"), besen a review of the proposed lasse as avguired by 25 U.S.C. HI5 and 25 C.F.R. Put 162 for sqppemel or disapproval of the lease in the enervise of the Departamat's trust n=p==Bdthy to the Band. The Band made this regnest boosme the kuul kt question k "rustricted Imium ids" wthis ths===mns. cf 25 U.S.C. H15. Aasr sesenhe negotiations, the superbsendent approved the lease onMay23,1997.
4.
1 understand the Ouvernaumt has wkkhshi provisions addressels the ternenstion of the lease (paragraph 4.C(1) and (2), huse payinents (parasnqih 5.A-H). rent and sent interest 4
payments (part of pesagraph 6), appliumbElly of Baul temas and regulations (Paragupb 17.8),
Austratbn ofpupose 1Novisions (pungsph 25.9), ibuki waiver ofsevereign kanadty (paragnyh 27.D) and put ofparasnyh 35.A(1), and named apsess escanseors (Babbit "B) (hersineser "the withheld internetion") frten pdiun enclosure.
l 5.
Ibe Band is opposed to the pubbe discionse of the withheld inimuuden.
6.
'Inis a===na==*ial hq=h==e tremestion hevolving cosapettson wth otter shes and smer===*e **6==8y and intammekmauy. Otler Islime trEms, an-Indium srogs and orpshutions, ami amernesats have shown immest h beh hosts er SNF stange helikiss. Tbs disabsure of the withheld inbnastion woukt give suoh compatkers valushis hformation which thry could use to negotiste loww psy===a, and to structure waivers ofsovmeisa ~
,,tenmination provisions, tribal tassa, tribal regulatbas, and other provisions.
7.
Furthensors, the Bad is h b clbar types ofiseses and agreenunts as part of a broad eoooomic dowlopmast progreat. The Bund may wish to megotiste Mh-w provisions ahlrussius finusoing, sowseign 6-==hy, tassa, ngshalons, tenmination, and other provisions for
To: J%n Paul Kennedy, Esq. 1700-561-1007,;From: Communic tion Ccnt:r 801-465-0733 B/24/99 13 06 48 Paga 5 of 5 JUl.-20-99 TUE 16:27 J P KENNEDY ATTORNEY FAX NO. 801 581 1007 P.04 y BY:PffYSICAL RESout23
- 7-20-88 4 2
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601 581 1007;* 4/ 4 sedi,_,
?-. Game Isenes and semummata. Rainass ofthe witidisid is'onnation would ssw ",
i underant the Band's fews business tre sad would ruin if a oonadence of potential corposution putmas in the abDity of the Band to maintain a con 5dential reisHaamWp.
8.
The wkhhaM indmention is unquestionably infomation which the Band guards sa peeprisemy and caddeutial isemantion. We hsw not publich zeisesed k b may other context. To id msbe seah idormatina publicly sysDahle would be use* and would put die Band as a W vs dimulventags, Both the Bad and PPS anungnised tim layonance ofprotecting this indennscion torn public disclosure sad entered into a canMandalby Asnmenset conosening the Isame and reisted notarisis on naamadw 27,1996, which was approwd by tis BIA on Fehnery 28,1997.
l 9.
Had the Band believed tint the withheld isommake would be snede pubisch sveilable under tie FUEA, the Band wonkl not how agued hem the hans a negotisted but rssher would bow sousit shumitive anses ofW igen FFE that would not how seguired the appseval of the De m j
1o.
In auxmismos wm2s U.s.c.117461 decise iment penetyof parJerythatthe ex spiesisinnsadsorrect.
D A M this 1 dayof 1/b.1995.
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EXHIBIT A i
Duncan F. Steadman(7439)
STEADMAN FAIRRANKs & SHEPLEY,LC
$50 South 300 West l
Payson, Utah 84651-2808 l
(801) 465-0703 Fax: (80l) 465-0733 Attorneys for All Individual Relators and Plaintifs John PaulKennedy(17%)
l 1385 Yale Avenue Salt Lake City, Utah 84105 (801) 583-6170 Fax: (801) 581-1007 Attomey for Relator Confederated Tribes of the Goshute Reservation IN THE UNIT'tD STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION STATE OF UTAH, Plaintiff, vs.
DECIARATION OF l
THE UNITED STATES DEPARTMENT OF SAMMY BLACKBEAR, Sm.
l THE INTERIOR, THE BUREAU OFINDIAN AFFAIRS, et al, Defendants and l
l PRIVATE FUEL STORAGE L.L.C., a Delaware Limited Liability Company, Defendant Intervenor.
td Cases UNITED STATES OF AMERICA, 3
l er rel: Sammy Blackbear Sr., et al, and the V 56 l
Confederated Tribes of the Goshute Reservation, l
SAMMY BLACKBEAR SR. and MARGENE B E CREEK Judge: Dale Kimball p
g, v.
BRUCE BABBITT, Secretary of the United States Department of the Interior, the UNITED STATES DEPARTMENT OF THE INTERIOR; the BUREAU OF INDIAN AFFAIRS; et al,',
Defendants.
l Seedy BLAcusEAR. Sit.* Aucust9,1999. Fact f or 9 l
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7 e
l il -
i Sammy Blackbear, Sr. d===, declares and states:
- 1. I am a Relator and a Plaintiffin this matter.
- 2. I am over the age of 18 and competent to testify to the matters set forth herein.
- 3. I have attended Tribal General Council meetings most of my life, and have been actively involved in the affairs of the Band since becoming an adult. I* persona!!y know most of the members of the Band and am related to many of them. I have served as a Tribal of5cer and have been an employee of the Band. I know and understand the Band and much ofits history and l
traditions.
- 4. The Skull Valley Band ofGoshute Indians (" Band" or " Tribe' or " Tribal")is a Bureau of 4
Indian Affairs ("BIA") supervised, federally recogmzed, Indian tribe.
- 5. I am now, and at all relevant times was, an adult member of the Band. Numerous other Plaintiffs-Relators in the captioned action are also adult members of the Band and thereby are also w..krs of the Tribal General Council.
- 6. My three minor children and I now live and, at all relevant times since the spring of 1996 have lived, on the Skull Valley Reservation.
- 7. There are approximately 130 members of the Skull Valley Band.
- 8. There are approximately 70 adult members of the Band.
- 9. Most Skull Valley Tribal members live off the Reservation in Salt Lake City and neighboring communities. Some live on the reservation of Re!ator Confederated Tnks of the Goshute Reservation, while others live near there, in southern Utah, in Nevada or even as far away as Cahfornia.
a(
- 10. According to documents I have received from the Bureau ofIndian Affairs, on May 20, 1997, PFS purportedly entered into a purported lease agreement (" Purported Lease Agreement")
of certain land located within the boundaries of th Reservation of the Skull Valley Band of I
Sootr BlacunaAa, St.. Aucurr 9,1999 - P4ca 2 or 9 t
n.
l Tribal Chainnan was disputed with the BIA. I was present when the BIA negotiated a method for resolving the dispute, and have personal knowledge that the BIA negotiated resolution was never i
i implemented, leaving that dispute unresolved and Leon Bear without full and proper authority.
- 21. In my presence, while Leon Bear was claiming to act as Tribal Chairman, Mr. Bear has stated before the Tribal General Council that unless he was retained as the Tribal Chairman, Tribal j
members would not be paid Tribal fand distribution payments which all Tribal members were then l
' scheduled to receive Iaon Bear made these statements on two occasions in the past few years, i
both timesjust before Christmas, each time while Leon Bear displayed the checks for such l
payments up in front of the Tribal General Council and said in essence, " vote for me or you don't l
get this money."
- 22. Notwithstanding Leon Bear's disputed status u a Tribal official, Leon Bear has continued to act as if he is the Tribal Chairman of the Band and continues to represent publicly that he is the l
TribalChairman.
l
- 23. The Tribal General Council has not authorized, and the Band does not have, a three l
i person executive committee that serves as a Tribal gowrning body. Leon Bear announced that he l
had created such a body and what its " powers" were, but neither the " committee" nor its L
announced " powers" have never presented to the Tribal General Council for an authorizing vote.
- 24. The Tribal General Council has never voted on, authonzed or approved the Purponed Lease Agreement, has never authorized Leon Bear or anyone else to execute such an agreement l
and has never instructed Leon Bear or anyone else to ask the Bureau or Secretary Babbitt to review or approve such an agreement. Because representatives of the Bureau ofindian Affairs have been present at virtually all of the relevant Tribal mMa== the B.I.A. is aware or should be aware of the matters which I have stated herein.
- 25. Neither I, nor to my knowledge most of the other members of the Tribal General Council, seesy Beacras4a.am. Aucuer9,1999.Pm:n 4 of f L
c L,
Goshute Indians, which land is held in trust for the Tribe by the United States.
i
)
!!. The stated purpose ofPurported Lease Agreement is to constmet and operate a facility i
I for the storage of high-level nuclear waste, including spent fuel rods from a number ofplants around the United States where electric power is generated using nuclear fuel.
- 12. Purported Lease Agreement will directly involve, or effectively impair, the use of approximately one-half of the Skull Valley Reservation's easily accessible and commercially useful l
land area and have an enormous effect on me and my family, the other Relators and other members of the Band, and the residents and guests of the Band's Skull Valley Reservation.
- 13. Purported lace Agreement states on its face that it wu approved by the BIA on May 23,1997, three days after it was dated as being entered into by its parties and submitted for l
approval.
l
' 14. Of the approximately 25 Goshutes who live on the Skull Valley Reservation where the Private Fuel Storage L.L.C. ("PFS") high-level nuclear waste storage facility is proposed,15 (including my three minor children and me) are represented in this complaint as Relators, minor
)
children of Relators or members ofRelators.
- 15. All aduk members of the Band fonn the Tribal General Council.
i
- 16. The Tribal General Council is the only governing body of the Skull Valley Band.
- 17. I am now, and at all relevant times since 1982 was, a a.J,er of the Tribal Gene al Councd of the Band.
- 18. I have personally attended all meetings of the Tribal General Council relevant to the PFS l
project since the project was first discussed several years ago.
- 19. I have read the declaration of Leon D. Bear dated July 24,1998, filed in this case.
Statements contained therein are false and contrary to my personal knowledge.
- 20. Leon Bear is not the 9=^==Aed, duty elected Tribal Chairman because his position as annary Beacrasas, Sm.. Aucuer9,1999. Pass 3 er9 i
li
[?
have ever even seen a copy of the fhli Purponed Iaase Agreement or had a chance to properly
{
consider the authorization of such a lease of Tribal trust land. As far as I know, the only ones that have seen the full document are the three purpor'ed Tribal officials who signed it. The only copy l
the rest of us have seen is the redacted copy, and that copy was supplied by the BIA pursuant to i
the FOIA request, long after the " approval" proceu was alle* edly finished.
g
- 26. The purported Tribal leaders who signed the Purported Lease Agreement, acted without L
authority to do so, such that the Tribe is not and never has been a party to the Purported Lease Agreement. Having personally attended all meetmgs of the Tribal General Council relevant to the i
j PFS project since the project was first discussed several years ago, I have personal knowledge l
that there has never at any such meeting been a proper vote authorizing the Purported Lease l
Ay
. hr authorizing the purported Tribal leaders to sign it.
1
- 27. It is my understanding, which is confirmed by the Purported Lease Agreement itself, that l
the Tribal General Council has the responsibility and duty of to conduct all important Tribal busmess, Wag the authorization of any entry into a lease of Tribal trust land.
I
, 28. In my presence, while claiming to act as Tribal Chairman during several public meetings i
held on the Skull Valley Reservation over the past few years, in the presence of BIA officials, j
Leon Bear has stated that he has received millions of dollars in payments from PFS, and that none of that money is Tribal money, but rather all of that money is his personal propeny to spend as he alone decides Leon Bear has steadfastly refused to make any accounting to the Tribal General l
Council for these funds he claims "he" has received from PFS.
l
- 29. In my presence, while M'ains to act u Tribal Chairman during several public meetings l
held on the Skull Valley Reservation over the past few years, in the presence of BIA officials, Leon Bear has stated that he chose to share "his" PFS money with individuals on the Tribal General Couhcil that supported him (IAon Bear) and "his" PFS project.
l I
SeNur OsacKasAa,St. Avauer9,1ppp. Pacs sorp
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- 30. While clauning to act as Tribal Chairman during several public meetings held on the Skull Valley Reservation over the past few years, in the presence of BIA, officials, Leon Bear has ffered me thousands of douars, ifI would vote for the PFS Project and sig documents he o
described as " Tribal Resolutions" in support of the PFS high-level nuclear waste storage facility.
- 31. In my presence, while claiming to act as Tribal Chainhan during several public meetings held on the Skull Valley Reservation over the past few years, in the presence of BIA officials, Leon Bear has offered other persons who serve on the Tribal General Council thousands of l
donars, if they would vote for the PFS Project and sign documents he desenkd as " Tribal i
Resolutions" in support of the PFS high-level nuclear waste storage facdity.
- 32. In my presence, while claiming to act as Tribal Chairman during public meetings held on the Skull Valley Reservation in the past year, in the presence of BIA officials, Ieon Bear has offered my 17 year old d== par and all other 17 year old Tribal minors twenty thousand to one l
hundred thousand dollars each, if they would vote for the PFS Project and sign dwe he described as " Tribal Resolutions" in support of the PFS high-level nuclear waste storage facility, when they turned 18 and joined the Tribal General Council.
- 33. In my presence, while CC. to act as Tribal Chairman during several public meetings I
held on the Skull VaBey Reservation over the past few years, in the presence ofBIA officials, IAon Bear has stated that the PFS Lease Agreement does not waive any of the Tnh's sovereignty or grant any waiver of sovereign immunity to PFS.
l
- 34. The Tribal General Council has never approved any resolutions authorning entry into l<,
such a lease nor authorizing any waiver of sovereign rights, any waiver of sovereignty or any waiver of N M..
- 35. In my prisence,'while claiming to act as Tribal Chairman during several public meetings held on the Skuu Vauey Reservation over the past few years, in the presence of BIA officials, l
anaesy Stacussam,ht.. Acoust9,1999 Pass 6 or9
==
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i Leon Bear has stated that because of Tribal sovereignty, he (Leon Bear) is not bound by U.S.
Law or by the Indian Civil Rights Act on the reservation.
- 36. In my presence, while claiming to act as Tribal Chairman during a meeting held on the Skull Valley Reservation this past April, in the presence of BIA officials, Leon Bear announced that it is an act of treason against the Tribe for me or any othe'r party to this lawsuit to discuss Tribal meetings or Tribal matters with our attorneys or to provide Tribal resolutions or other Tribal documents to' our attorneys, in the furtherance of this lawsuit. At the same time, Leon Bear threatened us if we continued this lawsuit, told us that he would unilaterally decide what punishment would be impoe d on any offenders, and stated that any Tribal information or.
documents that we gave to our attorneys at any time in the past was also an offense that we could now be punished for.
- 37. According to h='=a's I have received from the BIA, the State of Utah filed Freedom ofInformation Act requests (" Utah FOIA"), dated April 28,1997, and June 16,1997, with the BIA, requesting a copy ofPurponed Lease Agreement.
- 38. Ganh Bear (now deceased), Margene Bullcreek, and Ijoined in filing a May 28,1998 j
FOIA request (" Bear FOIA") with the BIA, similar to those of the Sate of Utah.
- 39. In our request, we identified ourselves as members of the Tribal Councd.
- 40. A major reason for my FOIA request was so I could gather the documents I needed to iblfill my duties on the Tribal General Council.
41, In response to said FOIA requests, the BIA sent identical redacted copies of the l
Purponed Imse Agreement to the State of Utah and to us, claiming Exemption 4 of the FOIA as l
thejustincation for the redaction.
- 42. The BIA's administrative record that was sent to use pursuant to a Freedom of Information Act ("FOIA") request does not contain any documents or references to documents l
Sosur BrxxmaAm. En.. Aucour 9,1999. P40s 7 or p
which re6ect a BIA review ofissues related to fair market value for such a lease or facility safety.
- 43. None of the documents we have received from the BIA re6ect proper BIA involvement in the negotiation, approval or execution of Purponed Lease Agreement.
- 44. None of the BIA documents sent to us resect an evaluation ofissues conceming competition, and there has never been any mention of concerns about competition at Tribal General Council meetings where this project has been discussed. I have neither heard nor seen.
any evidence of actual comp-+3*ian that would aff' ct the Band.
e
- 45. None of the BIA documents sent to us refer to, discuss, or are a confidentiality agreement, and the Tnbal General Council has never discussed or authorized any confidentiahty agreement with PFS.
46, None of the h-s the BIA sent in iw4 to our FOIA request indicate the BIA did anything to ensure that the Tribe's only ruling body (the Tnbal General Council) property considered or approved the Purported Lease Aya.; and associated purported Tribal resolutions. This is true even though BIA officials have been present at Tribal General Council meetings where there was ample evidence indicating the Tribal General Council had not considered or approved the Purported Lease Agramnew and associated purported Tnial resolutions At some of these May in the presence of BIA ofEcials, Tribal General Council members requested an opportunity to review and discuss the Purported Lease Agreement, and were refused any such copy, review or opportunity to vote, and there was an utter lack of Tribal General Council consideration or approval of the Purported Lease Agreement or associated purported Tribalresolutions
- 47. None of the dar===*= the BIA sent in responding to our FOIA request indicate the BIA did anything to look for or investigate the possibility ofcorruption relating to the PFS Project, Purported Lease Agreement or associated purported Tnhal resolutions. This is true even though annosy Blacussam,St.. Accurr 9,1999. Fact s or 9
BIA officials have been present at Tribal General Council meetings where there was ample evidence indicating improprieties, including 'mdications of conflict ofinterest, lack of authority and/or unlawful acts on the part of purported Tribal of5cials, and offers ofPFS money in exchange for votes of Tribal General Council members.
- 48. None of the documents the BIA sent in responding t6 our FOIA request indicate the BIA did anything to investigate or ensure compliance with environmentaljustice issues.
- 49. None of the documents the BIA sent in responding to our FOIA request reflect that a NEPA compliant Environmental Impact Statement ("EIS") was prepr.ed before the BIA rushed
]
i to approve this project and the Purported Lease Agreement.
In accordance with 28 U.S.C. 61746, I declare under penalty of perjury that the foregoing is i
true and correct.
DATED this 9* day of August 1999.
&bbmr, TP.
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5mory 5 acKasAm,Sm.. Aucust 9,1999
- Pact 9 or 9
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