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United States v. Nevada

ELR Citation: 37 ELR 20236
Nos. No. 2:00-CV-0268-RLJ-LRL, (D. Nev., 08/31/2007)

A district court denied the U.S. Department of Energy's (DOE's) motion to preliminarily enjoin Nevada from interfering with DOE's use of water for bore hole drilling so that it may proceed with development and operation of the national nuclear waste repository at Yucca Mountain. Despite an earlier stipulation among the parties, DOE announced in February 2007 that it needed 4 million gallons of water to drill 48 bore holes to obtain geotechnical information below the footprints of the surface facilities planned for the repository. The State Engineer ultimately issued a cease-and-desist order. DOE filed the instant action to enjoin the order. In the meantime, it has resumed the drilling operations and apparently has refused entry by the State Engineer to enforce the order. The court ruled that DOE failed to meet any of the criteria necessary to justify a preliminary injunction against the state precluding it from exercising its rights and duties with respect to state water law and state water rights. DOE presented no evidence or argument to demonstrate that it would prevail in the underlying case, i.e., to prove that the State Engineer's denial was unreasonable, arbitrary, or incorrect. There is no congressional or legal mandate for bore hole drilling, and there is no reason to believe that DOE's deadlines are mandated by any congressional mandate or federal law. The arbitrariness of DOE's actions is underscored by its increasing demand for more water. DOE has intentionally multiplied its demands to create a crisis of its own making. Further, the drilling can be accomplished by trucking water from a well for which DOE already has a permit. And since it was DOE's desire to use more (and more) water for the bore drilling project, and there was a stipulation in place that limited the amount of water it would use, the burden was on DOE to initiate discussions to reach an agreement about water use. Nor can the court attribute any damages due to delay caused by the cease-and-desist order that were not already the result of DOE's own actions. And the potential hardship upon the state and its rights is far greater than any potential hardship upon DOE for short-term delays or the curtailing of DOE's activities back to its original projections and promises.