February 2010
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Judges to rule on uranium mine

By Jim Mimiaga

Denver, CO — A panel of 11 judges from the U.S. 10th Circuit Court of Appeals heard final arguments in January regarding a controversial uranium mine proposed on private land within the Navajo Nation.

At issue is whether private land owned by mining company Hydro Resources Inc. northeast of Gallup, N.M., falls under a legal jurisdiction known as “dependent Indian Country.”

In 2005, the Navajo Nation banned uranium-mining on the 16 million-acre reservation because of its legacy of environmental and health problems. But demand for uranium is rising as nuclear power gains popularity as an alternative to fossil fuels.

To circumvent the Navajo ban and tap uranium deposits, mining companies are taking advantage of the reservation’s southern “checkerboard” region, a mix of private, public, and tribal lands.

During the Allotment and Termination Eras (1887-1960s) the U.S. government attempted to dissolve reservation lands by allotting parcels to individual tribal members and then granting fee title. The programs were abandoned after tribes resisted, but some parcels within the reservation boundaries did come under private and public ownership and have since been sold or leased for mining.

Last April, in a 2-1 decision, the U.S. 10th Circuit Court of Appeals upheld a U.S. District Court ruling that the private parcels in the checkerboard area are legally “Indian Country,” under federal jurisdiction. The land is thus subject to U.S. EPA groundwater regulations.

The ruling meant HRI would have to obtain an underground-injection-control permit under the Safe Drinking Water Act from the EPA, rather than from the state, to do in-situ mining. The in-situ process involves injecting water and chemicals deep underground to dissolve uranium and pump it to the surface, rather than digging it out.

HRI was unsuccessful in convincing the appeals court that its private inholdings within the Church Rock Chapter of the Navajo Nation should be regulated by the New Mexico Department of Environment, which had already granted the company an underground-injection-control permit.

But HRI successfully petitioned for the case to be heard en banc, a rarely granted, last-ditch appeal procedure that requires 11 judges of the U.S. 10th Circuit Court of Appeals to review the decision and submit a final ruling.

“If they agree to hear en banc, that means the court has some issue with the decision already handed down,” explained an attorney who identified herself only as an Indian-rights advocate.

On Jan. 12, the judges gathered before a phalanx of attorneys and about 50 onlookers at the Byron White Federal Courthouse in downtown Denver and heard arguments a final time. The key test for Indian Country designation is whether the land is Indian in character and is part of the Navajo community.

According to the historical record, argued Marc Flink, an attorney representing HRI, the land and minerals are privately or publicly owned and should be regulated accordingly.

“If you go back to 1908 and 1911, Congressional action terminated sections of reservations and restored it to the public domain,” Flink said. “Now there is an attempt to remake history and restore it to Indian-land status. The Navajos and the EPA are drawing a border around allotments and [private] fee land and saying it is off limits.”

But the U.S. Supreme Court and Congress have stated that some nonreservation land does fall under dependent Indian Country status, replied U.S. 10th Circuit Chief Appeals Judge Robert Henry.

“The problem with your test is that it leaves community out,” Henry said. “When Congress used the word ‘community’ it intended a broader sense; they looked at Indian characteristics of hundreds of thousands of acres.”

David Carson, a U.S. Department of Justice attorney for EPA, said that the region is predominantly Navajo, is governed by the Navajo government, and is partly funded by the federal government under Indian treaty obligations.

“The map is clear that the land was set aside for Indians. The chapter is formed around existing communities and historically the property has been used for livestock-grazing by Navajos.”

But the sparse population lessens the chances of impacts from mining, noted Judge Paul Kelly. “How far is this 160 acres from any other Indian? It is in the middle of nowhere,” he said. “Not really a community, is it?”

“Just because it is rural does not mean it is not a community,” responded Carson. “There are people living there,” near the parcels proposed for mining.

Protecting groundwater, a drinking source for the 2,900 Navajos residing in the Church Rock area, is a chief concern. Church Rock is one of the chapters within the Navajo Nation that have seen horrific impacts from uranium-mining. Mining officials say the in-situ technique will protect groundwater and comply with standards of the Safe Drinking Water Act.

But Navajo leaders and environmentalists fear radioactive contamination of the aquifer is a risk.

“Groundwater in the West does not come in neat little squares,” said U.S. 10th Circuit Appeals Judge Carlos Lucero. “In what way can you inject [insitu chemicals] into the groundwater and ensure it stays on your 160 acres?”

Another judge asked whether the aquifers under two of the proposed mine sites are linked. Flink said “hydraulically, there may be some connection, but along the perimeter we install wells that draw the water out” to prevent seepage. “The New Mexico [water] engineer said the effect of injection will not be an injury to drinking water.”

The court is not ruling on whether the mine falls under the Navajo ban on uranium-mining, said David Taylor, senior attorney for the Navajo Department of Justice. Rather, the issue is which agency has jurisdiction over the underground-injection permit.

“Historically, EPA has a trust responsibility that the state does not have, and we expect the EPA to fulfill that trust responsibility,” Taylor told the Free Press following the hearing.

The court’s decision is expected to take between six months and a year.


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