This action was commenced on March 4, 2005. On March 16, 2005, Defendant Bodman, in his official capacity as Secretary of Energy, issued a press release on the official website of the United States Department of Energy wherein Defendant Bodman admitted that he was aware of emails regarding the Defendants’ planned Yucca Mountain project, which reflected intentional misrepresentation of scientific data used to seek and obtain Congressional and Presidential approval of the project since 1998. (Exhibit 1, Press Release from Department of Energy) These intentional misrepresentations of scientific fact upon which Congressional and Presidential approval were based were, thereafter, covered up for approximately seven years.
The misrepresentations related to the knowledge of how rapidly water moves through Yucca Mountain, which was the very basis for a Petition sent to Defendant Bodman’s predecessor in 1998. Virtually every major environmental group in the United States and around the world requested that the then Secretary of Energy acknowledge the unsuitability of the Yucca site due to water infiltration and the fast flow rate of water, the single most important public safety and environmental issue of all. (See Exhibit 2, Affidavit of Kevin Kamps and attached Petition). The response of the Departments of Energy and Interior to that Petition was to intentionally misrepresent the facts relating specifically to water infiltration and flow rate, and to, then, cover-up those misrepresentations for the next seven years while they affirmatively sought and obtained further Congressional and Presidential approval of the project based upon those misrepresentations. The circumstances surrounding the intentional misrepresentations of water infiltration at the Yucca site indicate that those misrepresentations and the subsequent seven year cover-up were not inadvertent or insignificant, but were, instead, the specific response to the identification by top scientists around the world to that specific scientific reason why the Yucca site should be deemed unsuitable for long term storage of high level nuclear waste.
Having intentionally misrepresented the science upon which Congressional and Presidential approval was based, Defendants now argue that the approval obtained for Yucca Mountain under the Nuclear Policy Act prevents Plaintiffs from asking this Court to preliminarily enjoin Defendants based upon that same fraudulently obtained approval. Defendants ask this Court to overlook the fraud committed to obtain Congressional and Presidential approval of the Yucca project in 2002, and to completely disregard the fact that approval was based upon intentional misrepresentation of the most material scientific facts. Carrie Dann, a member of the Western Shoshone National Council, signed the Petition (Exhibit 2) informing the Secretary of the Department of Energy that the water infiltration data was faulty and could not be relied upon for the decision to choose Yucca Mountain. The Plaintiffs, by representation, have been involved in the scientific matters and the environmental safety matters since the beginning of Yucca Mountain, and have also been the intended parties that were given faulty information by the government. Since 1998 the Plaintiffs have been advocating that the data was false.
Defendant Bodman has now admitted that the Department of Energy and the Department of the Interior knew the data was false in 2002 when the Nuclear Policy Act was adopted by Congress on the recommendation of the Department of Energy, but have only revealed their knowledge in 2005. Defendant Bodman has admitted that knowledge of the falsity was concealed until March 16, 2005.
The traditional elements of equitable estoppel require a showing that:
(1) the party to be estopped knows the facts; (2) the party intends that his or her conduct will be acted on;(3) the latter must be ignorant of the true facts; and he must rely on the former’s conduct to his injury.
A party seeking to invoke estoppel against the government must satisfy two requirements in addition to those ordinarily applicable. Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir. 1989) (en banc), Petition for cert. filed, 58 U.S.L.W. 3771 (U.S. May 21, 1990) (No. 89-1806). First, it must establish “affirmative conduct going beyond mere negligence.” (Quoting Wagner v. Director, Fed. Emergency Management Agency, 847 F.2d 515, 519 (9th Cir. 1988). Second, it must show that the government’s act will cause a serious injustice and the imposition of estoppel will not unduly harm the public interest.
S&M Investment Co, v. Tahoe Regional Planning Agency, 911 F.2d 324, 329 (1990) Accord, Salgado-Diaz v. Gonzales, 2005 U.S. App. LEXIS 4015 (January 31, 2005)
The Department of Energy engaged in affirmative conduct that went beyond mere negligence by submitting flawed data to the Congress upon which the decision was made by Congress to adopt the Nuclear Policy Act.
The Department of Energy certainly believed and intended for Congress to act on the facts that the DOE submitted to it stating that Yucca Mountain had been investigated and the data supported choosing it as the site. For the Secretary of Energy, defendant herein, to now, in 2005, reveal to the citizens of the United States and Congress that the data was flawed just after the DOE requested further funding for the Yucca Mountain project, indicates that the government’s act has and will cause a serious injustice. The public interest will not only not be harmed by imposing equitable estoppel upon the government, the public interest will be safeguarded from such overt acts of governmental deceit. The government is clearly estopped from arguing that the Nuclear Policy Act is an impediment to this litigation and request for preliminary injunction.
As a general rule, federal courts have jurisdiction to hear and decide claims by an Indian tribe against the United States arising under federal law. Gila River Indian Community v. Henningson, Durham and Richardson, 626 F.2d 708, 711 (9th Cir. 1980). The Ruby Mountain Treaty is federal law, found at Treaty with The Western Shoshone, 1863; 18 Stat. 689, Ratified June 26, 1866, Proclaimed October 21, 1869.
Further this request before the Court is a challenge to an Administrative decision. The Plaintiffs have asked the Defendants to correct an incorrect use of the land and such an act is properly governed by the Administrative Procedure Act. 5 U.S.C.§ 702. The Pueblo Sandia requested a lot line adjustment and the Court found that a waiver of sovereign immunity was available for such a question because it was not a claim for land but a change in the use and quantity of land for use. See, Pueblo of Sandia v. Babbitt, 1996 U.S. Dist. LEXIS 20619 (1996). Accord, Pueblo of Taos v. Andrus, 475 F. Supp. 359 (U.S. D.C. 1979). Similarly, the Western Shoshone Nation is asking this Court to prohibit the use of land in a way that was not contemplated by the Treaty so that these issues can be more appropriately heard on the merits.
The Defendant United States of America admitted as recently as September 1986, that the 1863 Treaty of Ruby Valley was in full force and effect, and. moreover, the Treaty remains in full force and effect.
In the United States of America v. Mary Dann and Carrie Dann, Civil R-74-60 BRT, the Defendant United States of America admitted that the 1863 Treaty of Ruby Valley remained in full force and effect, as reflected by the attached Findings of Fact and Conclusions of Law filed on September 15, 1986. In that ruling, the Court found specifically at Paragraph 4 on Page 2 that “The Government has admitted that the 1863 Treaty of Ruby Valley is in full force and effect.” (See Exhibit 3, Findings of Fact and Conclusions of Law).
Further the United States Supreme Court in the Dann case, United States v. Dann, 470 U.S. 39; 105 S.Ct. 1058; 84 L.Ed.2d 28 (1985) made no finding about the individual aboriginal rights, only that the claims paid were considered paid as of the date the United States set aside the money whether that money had been paid to the Tribe or not. Those claims have not been paid to this date. Those persons who were parties to that case may be foreclosed from making further claims, as argued by the government, but the Supreme Court specifically did not rule on the individual aboriginal claims:
The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the “final discharge” of §22(a) does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual rights may exist in certain contexts, this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion as to its merits.
At pages 1064, 1065
The government incorrectly relies on the resolution of the claims of the Western Shoshone as having been decided by the Dann case. Neither the parties nor the issues had the identity necessary the bar the Western Shoshone National Council from a case regarding the taking of their lands. The United States District Court for the Northern District of New York when interpreting the Treaty of the Cayuga Indian Nation and found that the release and relinquishment of Treaty rights are very specific and the terms are strictly construed and prior judgments cannot be res judicata unless there is an identity of issues and parties.
A claim or defense brought in a subsequent proceeding is barred by the doctrine of res judicata if “ 1) the prior action involved an adjudication on the merits, 2) the prior action involved the same parties or their privies and 3) the claims asserted in the subsequent action were raised in the prior action. Cayuga Indian Nation of New York v. Village of Union Springs, 317 F. Supp.2d 128, 140 (U.S.D.C. No. Dist. NY 2004).
Defendants rely simultaneously upon the arguments that the Western Shoshone never really held title to the lands described in the Treaty as “Western Shoshone Territory,” and that Western Shoshone title was extinguished by gradual encroachment and taking in 1872. In other words, Defendants argue that the Western Shoshone never really owned Western Shoshone Territory, “and if they did, we took it from them.” The issues of title and taking are presently before the Northern Division of this Court in Case Number CV-N-04-0702-LRH-VPC.
Yucca Mountain is located geographically within the Southern Division of this Court. The present case is not premised upon title to Yucca Mountain, and Plaintiffs respectfully request that the Court rule on this instant Motion without addressing the issue of title.
Cases involving Indian Treaties and title are often inconsistent and distinguished based upon the context in which Indian title is raised. In this case, Plaintiffs argue that the restrictions on use specifically provided for under the Treaty were bargained-for considerations upon which both parties agreed. It is important to note that virtually all of the present use of lands described in the Treaty as Western Shoshone Territory are consistent with the uses agreed upon in the Treaty. No evidence exists that the Western Shoshone were ever told at the time the Treaty was negotiated that, by entering into the Treaty, the Western Shoshone agreed that their lands would later be the dumping ground of the most toxic substance ever known to man, accumulated from this country and 41 other countries around the world. Instead, what was clearly disclosed by the agents for the United States to Western Shoshone leaders was the intention to use Western Shoshone lands for only those purposes specifically set forth and agreed to by both parties to the Treaty.
The canons of statutory construction help give meaning to these words. “. . .a fundamental canon of construction provides that ‘unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Smith, 155 F/3d 1051. 1057 (9th Cir. 1998) “Treaties with the United States regarding the disposition of Indian land must be interpreted in the same way as statutory language, that is to say, congressional intent to terminate Indian title must be clearly expressed.” Citing Hagen v. Utah, 510 U.S. 399, 423; 127 L.Ed.2d 252; 114 S.Ct. 958 (1994). See, Cayuga Indian Nation of New York v. Village of Union Springs, 317 F. Supp 2d 128 (U.S. D.C. No. Dist. NY 2004). Accord. Menominee Tribe v. United States, 391 U.S. 404 (1968). Acccord: U.S. v. Bay Mills Indian Community, 653 F.2d 277 (6th Cir. 1981). Accord: Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 700 F.2d 341 (7th Cir. 1983). The language of the Treaty is clear that the uses that the United States were to be allowed on the lands of the Western Shoshone were mining and building railroads and communities, not accumulating toxic waste that would contaminate the earth for 10,000 years.
The government argues that the treaties with the Shoshone people were interpreted by in the Northwestern Bands case. The Western Shoshone National Council, nor the Western Shoshone people were parties to the Northwestern Bands case. The Western Shoshone National Council was not a party to the Dann case cited in the opposing papers of the government. Those cases are not binding upon the Western Shoshone National Council in interpreting the Ruby Valley Treaty nor for purposes of this litigation.
No doubt, an analysis of the legal history of the United States Courts and their treatment of Indian claims is not consistent. This is because each Treaty must be considered in the circumstances and historical context in which it was executed. In the case of the United States v. Shoshone Tribes of Indians, 304 U.S. 111 (1938) the Supreme Court made findings on elemental issues of Indian land rights. . . . although the United States always had legal title to the land and power to control and manage the affairs of the Indians, it did not have power to give to others or to appropriate to its own use any part of the lands without rendering, or assuming the obligation to pay, just compensation to the tribe for that would not be the exercise of guardian ship or management, but confiscation. At page
When interpreting the treaty with the Eastern Shoshone, the Court adopted the standard that has been the guiding rule when Treaties with the Indians are at issue.
“. . .the settled policy of the United States fairly to deal with Indian tribes. In treaties made with them the United States seeks no advantage for itself; friendly and dependent Indians are likely to accept without discriminating scrutiny the terms proposed. They are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, but are to be construed in the sense in which naturally the Indians would understand them. Worcester v. Georgia, 6 Pet. 515, 582; Jones v. Meechan, 175 U.S. 1, 11, 20 S.Ct. 1; Starr v. Long Jim, 227 U.S. 613, 622, 623 S., 33 S. Ct. 358.
The reason this rule of treaty interpretation is critical is that the circumstances of the Western Shoshone when they entered into the Treaty of Ruby Valley will be an intensive fact circumstance left to the determination of the Court in Case No. CV-04-0702-LRH(VPC) For this reason and because each fact situation was different regarding the four treaties of the Shoshone entered into in and around the Civil War, the Western Shoshone have a higher degree of probability of prevailing on the merits of their claim.
The Court in Shoshone Tribes of Indians recognized that “The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee.” Even if the United States retained the fee title, while the Tribe retained the right of occupancy, the right of use, and, for the purposes of this litigation, the right of reversion, the lands must remain uncontaminated for the resolution of the lands issues. The Court found that even if “the tribe’s right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute title. Cherokee Nation v. State of Georgia, 5 Pet. 1, 48; Worcester v. State of Georgia, Shoshone Tribes of Indians, cited supra, at page 580. These last cited cases were handed down at a time in our country’s history when the preservation of Indian lands was not the priority of the government nor the citizenry. Today, 2005, in a time when this country espouses the human rights violations that ravage the citizenry of China, Africa and other countries who have not heartily embraced the values of democracy and the worth of the individual, surely, the rights of the first Americans to their ancestral lands is a more viable and valued claim. The United States relies upon the Northwestern Bands case which was issued in 1940. The cases respecting the rights and lands of the Indian nations has been more recent and evidence of the change of legal reasoning regarding the preservation of Indian rights and lands making the Northwestern Bands case distinguishable from the matters at issue in this proceeding. In 1999 the United States Supreme Court found that the Mille Lacs Band of Chippewa Indians retained their usufructuary rights to the lands they had ceded by Treaty to the United States. “The Chippewa’s usufructuary rights were not extinguished when Minnesota was admitted to the Union. Congress must clearly express an intent to abrogate Indian treaty rights, United States v. Dion, 476 U.S. 734, 734-740, 90 L.Ed. 2d 767, 106 S.Ct. 2216, and there is no clear evidence of such an intent here.” Minnesota et al v. Mille Lacs Band of Chippewa Indians, et al., 526 U.S. 172, 176; 119 S.Ct. 1187; 143 L.Ed.2d 270 (1999). This case is much more in line with the recent considerations of preservation of Indian lands and rights, i. e United States v. Alcea Band of Tillamooks et al, 329 U.S. 40, 67 S.Ct. 167, 91 L.Ed. 29 (1946) (“in our opinion, taking original Indian title without compensation and without consent does not satisfy the ‘high standards for fair dealing’ required of the United States in controlling Indian affairs. United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 356 (1941). The Indians have more than a merely moral claim for compensation.) At page 46.
The United States had repeatedly and consistently required that the tribes convey their right, title and interest to the lands that they claimed in several Treaties of the time. (See, Exhibit 4) The United States and its agents were fully cognizant of the implications of reserving the land to the Western Shoshone people subject to the right to use the land for certain specified and named uses by the emigrants of the United States.
The Western Shoshone have a long history of pursuing a fair hearing on their rights to the lands that they have held since time immemorial. (See, “Constructive Conquest in the Courts: A Legal History of the Western Shoshone Lands Struggle - 1861 to 1991" 42 Nat. Resources J. 765 (2002). That is not the issue before this Court. In order for the Western Shoshone to have the right to seek a resolution to the issue of the rights to their Indian lands, the lands must remain in tact. The United States District Court for the District of Alaska entered a preliminary injunction until a trial on the merits could be concluded to resolve the claims of the native Thlingit Indians. See, U.S. v. State of Alaska, 197 F. Supp. 834(U.S. Dist. Alaska 1961) The State of Alaska was prepared to fill the tidelands claimed by the Indians and the Court realized that irreparable injury would occur and without the preliminary injunction, the lands would be lost whatever the final outcome of the trial on the merits. Likewise, to allow the government to bring nuclear waste to Yucca Mountain precludes any resolution of the claims of the Western Shoshone to Yucca Mountain.
The Western Shoshone National Council consists of a representative from each of the following groups: Traditional Western Shoshone Cattlemen, Ely Western Shoshone Tribe, Timbisha Western Shoshone people, Great Basin Descendants of the Western Shoshone, Southern Western Shoshone, the Dann Band and the Yomba Reservation of the Western Shoshone. The Western Shoshone National Council represents over 10,000 Shoshone people who are the descendants of the persons who were represented by the signors of the Ruby Valley Treaty. (Exhibit 5, Affidavit of Raymond Yowell)
The government attacks the standing of these Western Shoshone to represent themselves and the other people of their nation. The Supreme Court found that being deprived of any interest in land was a “sufficient injury-in-fact to satisfy the case-or-controversy requirement of Article II of the Constitution.” Hodel v. Irving, 481 U.S. 704, 705 (1987) The Supreme Court found that even if the Plaintiffs were not asserting their own property rights, but those decedents’ and future decedents. Certainly, then, the decendents of the signors of the Ruby Valley Treaty who are the Western Shoshone Nation have standing since it is their reversionary rights to the lands of their forefathers that are being lost forever by the nuclear dump proposed by the United States.
The Western Shoshone National Council incorporates by reference the entirety of the Amicus Brief submitted by the Indigenous Law Institute in Support of Plaintiffs which brief supports the arguments herein. The Western Shoshone have a sacred and cultural claim to Yucca Mountain. See, Affidavit of Corbin Harney, attached Legend of Yucca Mountain, (Exhibit 6). The Western Shoshone have a historical right, a Treaty right from both the Ruby Valley Treaty of 1863 and the Treaty of Guadalupe Hidalgo , and a moral right to have the lands of their ancestors preserved and protected so that their right of use and occupancy can remain for time immemorial as it has been subject only to the conditions that they agreed to in a desperate moment in the Ruby Valley to save their own lives and the small hope that a remnant of the Western Shoshone people would continue on the earth.
DATED this ___day of April, 2005.
LAW OFFICE OF HAGER & HEARNE
CERTIFICATE OF SERVICE
Pursuant to FRCP 5(b), I hereby certify that I am an employee of the LAW OFFICE OF HAGER & HEARNE, and that on this date, I mailed, U.S. mail, postage prepaid, a true and correct copy of the PLAINTIFFS REPLY IN SUPPORT OF THE MOTION FOR PRELIMINARY INJUNCTION, to the following addresses: Thomas Sansonetti
DATED this ____day of April, 2005.
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