U.S. District Judge Roger Hunt on Aug. 31 denied an emergency motion by lawyers for DOE who wanted him to block State Engineer Tracy Taylor's June 1 order for DOE to stop using Nevada's water for the second phase of its bore hole drilling project.

The DOE sent a letter to Taylor on Thursday saying it had stopped using water for the second phase but would continue using it for the first phase until that phase is completed by the end of this month.

"It should be noted that DOE's letter seems to suggest that it is still within DOE's prerogatives to use water ... even though this court unequivocally determined that DOE's use of water for bore hole activity is not authorized by law and has not been agreed to by the parties," Adams wrote.

She said the DOE's use of water to drill bore holes was never agreed to by the parties regardless of which phase.

The drilling is under way to collect rock samples for data needed for a license application that DOE must submit to federal regulators to construct a nuclear waste repository and above-ground handling and storage facilities.

On Friday, Deputy State Engineer Bob Coache went to Yucca Mountain and observed the DOE using water from nearby wells for the first phase of drilling but not the second phase, a spokesman for the state engineer's office said Monday.

The second motion, filed Monday by Senior Deputy Attorney General Michael Wolz on behalf of the state engineer, asks the court to "direct DOE to cease the use of water for all bore hole drilling."

"There is no legal justification for treating either phase of the drilling program differently from the other" under Hunt's Aug. 31 decision, Wolz wrote.