Good news! In 2005 we honored George Arthur and the tribal council of the Navajo Nation for their timely framing of the Diné Resources Protection Act, a piece of legislation that includes the final language: 'No person shall engage in uranium mining and processing on any sites within Navajo Indian Country.' Celebrating this decision are also our friends at Southwest Research and Information Center (SRIC), 2006 recipients of the Award; they played a vital role in convincing the federal appeals court of in situ mining's toxic threat.
Appeals court upholds uranium
mining curb on Navajo lands
by Carol Berry
Indian Country Today
May 19, 2009
DENVER–The Navajo Nation’s anti-uranium mining ban scored a
victory April 17 when the 10th Circuit Court upheld federal, rather
than state, control over a permit for a proposed in situ leach uranium
mine in a mixed-ownership area of northwestern New Mexico.
Hydro Resources Inc. asked the federal appeals court to overturn an
Environmental Protection Agency determination that HRI’s proposed mine
near Church Rock was in "Indian country" as legally defined and therefore
must be permitted by EPA and not by the state.
The Diné Natural Resources Protection Act bans uranium mining on Navajo
Nation reservation lands, but rising prices have drawn uranium mining
companies to so-called "checkerboard" areas where private and Indian trust
lands are intermingled.
In a hearing before the court last year over the mine’s licensing by the
Nuclear Regulatory Commission, judges heard testimony that health hazards
are posed by the in situ process, which involves the removal of uranium by
pumping water and bicarbonate into the groundwater aquifer, withdrawing
the solution, and recovering the uranium.
The court questioned whether mining-related contaminants would be removed
before they reached the drinking water supply. EPA would enforce the Safe
Drinking Water Act, directly addressing concerns that have been expressed
about municipal water quality if HRI’s mine operations affected an
underlying aquifer.
Although the 10th Circuit currently upheld EPA’s decision, one judge in
the three-member panel dissented April 17, expressing concern about
measures used to define "Indian country."
"Never before has non-Indian fee land outside the exterior boundaries of a
reservation or Pueblo been held to be a dependent Indian community," said
District Judge G.K. Frizzell, who said it has the effect of eliminating
checkerboard jurisdiction outside the boundaries.
The issue may cause jurisdictional uncertainty in states "where Indian
country consists of original allotments and/or trust lands interspersed
with non-Indian land holdings," he said.
The question of whether the HRI mine site constitutes "Indian country"
rests on federal law defining it as including reservation lands under U.S.
jurisdiction, Indian allotments, and all "dependent Indian communities" in
the U.S. whether in original or acquired territory.
The parcel in question is within the boundaries of Church Rock Chapter (a
tribal unit established by the federal government in 1950), has a
predominantly Indian population, and is largely devoted to Indian use by
the federal government, the court said.
Members of the chapter, nearly all Navajo, live adjacent to the site, and
there are educational facilities, churches, and buildings housing chapter,
tribal and BIA entities at Church Rock Chapter east of Gallup.
The New Mexico Environment Department had asked EPA to decide whether
the mine site was in Indian country so that jurisdiction could be established
as to whether state or federal entities should issue a leach mine permit.
Earlier, the state had approved HRI’s request for an underground injection
permit, but the Navajo Nation told EPA the site was in Indian country, a
conclusion with which both EPA and the solicitor for the Department of the
Interior later agreed.
Among adversaries of the uranium mine are the Eastern Navajo Diné
Against Uranium Mining and the Church Rock Chapter, with support from
the Southwest Research and Information Center and several environmental
groups.
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