U.S. District Judge Philip Pro ruled Tuesday that the Western Shoshone National Council could not demonstrate ''immediate and irreparable'' harm because the Yucca Mountain repository has yet to open and a disputed rail line has yet to be built.

Lawyer Robert Hager, representing the tribe, said Wednesday that no decision had been made whether to appeal. He noted that the judge's ruling left open the possibility that the tribe could seek an injunction later.

Energy Department spokesman Allen Benson said the government was gratified by the decision. He said the department filed a motion Monday asking the judge to dismiss the tribe's March 4 lawsuit outright.

In 2002, Congress picked Yucca Mountain, 90 miles northwest of Las Vegas, as the site to entomb 77,000 tons of spent nuclear fuel now stored in 39 states. The site is at the western edge of the Nevada Test Site, within ancient Shoshone lands.

The tribe claimed the Ruby Valley Treaty of 1863 allowed only settlements, mining, ranching, agriculture, railroads, roads and communication routes on Western Shoshone ancestral lands.

The treaty recognized vast stretches in present-day Nevada, California, Utah and Idaho as tribal land.