A long legal battle over a proposed uranium mine on the border of the Navajo Nation near Church Rock. N.M., has apparently ended in favor of mining company Hydro Resources Inc.
The question decided by the court in HRI vs. EPA is whether private land to be mined in the so-called checkerboard area of the Navajo Nation constitutes federally protected “Indian Country” as legally defined by the U.S. Supreme Court.
The area is a mix of public, private and tribal lands located northeast of Gallup. Last year the 10th U.S. Circuit Court of Appeals voted 2-1 to uphold a 2007 ruling by the Environmental Protection Agency that the private land did fall under that unique legal designation due to its overwhelming Indian characteristics and because it is surrounded by Navajo reservation land.
But in a last-ditch appeal procedure, HRI was granted a rare en banc review of the case in January during which all 11 10th Circuit appeal judges heard arguments in the jurisdictional case a final time (Free Press, Feb 2010).
On June 15, the en banc panel ruled 6-5 that the land did not fall under the Indian Country designation, overturning the appeal decision and allowing the mine to go forward with stateissued permits, rather than federal. Industrial projects such as mines in Indian Country require environmental oversight at the federal level.
The decision is a blow to opponents of the mine, including the Navajo Nation, which banned-uranium-mining on its reservation in 2005 due to its legacy of environmental disaster and illness.
“It is really disappointing, and my feeling is that the majority misapplied (precedent), and it seemed to break along ideological lines,” said Eric Jantz, a staff attorney with the New Mexico Environmental Law Center, a watchdog group.
He said the close vote indicates that the case has a good chance to be ultimately ruled on by the U.S. Supreme Court.
HRI plans to mine the uranium in-situ, a controversial process that injects chemicals underground into the uranium ore to dissolve it and pump it to the surface, rather than digging it out. In-situ mining requires an underground injection control permit, but which agency issues it — the New Mexico Department of Health and Environment or the U.S. EPA — was at the core of the lawsuit.
EPA argued the private land met the legal definition of “Indian Country” and therefore put the permit in the hands of the federal government, which has a trust responsibility under treaty law to protect the health and safety of Indian communities.
HRI argued the private land is under the jurisdiction of the state of New Mexico and it had authority to issue the permit, which it originally did.
“This ruling enables us to immediately seek to renew the underground injection control permit that we had been granted by the State of New Mexico in 1989,” stated Don Ewigleben, president and CEO of Uranium Resources, HRI’s parent company, in a press release. “This is the last permit required for us to advance our in situ recovery uranium mining project on our Church Rock property where we hold 13.7 million pounds of in-place, mineralized uranium material.”
The Church Rock Chapter of the Navajo Nation that surrounds the HRI mine site has suffered greatly from the effects of past uranium-mining. In 1979, a breached tailings pond spilled millions of gallons of radioactive sludge into local rivers, effects that linger today in contaminated soil and water and illnesses to citizens that are believed tied to the toxic exposure. The area is still a Superfund site, and cleanup continues to this day.
“The waste piles are still there, emitting radon over the allowable limit,” reported Church Rock resident Larry King during the Indigenous Uranium Summit last year at Acoma Pueblo. “Old buildings were never cleaned up, some were buried. No one ever told us how bad the water was or what uranium exposure could do to you over the years.”
In-situ leach mining is too much of a risk because it threatens the groundwater and aquifers relied on by area residents and livestock, King said at the summit.
“Once contaminated, you cannot bring the aquifer back,” he said. “It all happens underground so you cannot detect the leakage or where the plume is going. We will make a stand and overcome all of this. We mean no.”
The Nuclear Regulatory Commission reports that in-situ mining has technology that protects groundwater from contamination. And HRI says it can control pollution within its property boundaries. But skeptics disagree.
“The position seems to be that this is like a brownfield area — since it is already contaminated, better use it for the same kind of industrial development,” Jantz said. “The debate the industry does not want to have is that nuclear power is a societal good, but some communities have to sacrifice their groundwater.”
