Split appeals court rules against EPA and Navajo concerns

Photo by Carol Berry Denver Police Sgt. Jason Carrigan (left) warned uranium mining opponents Shannon Francis and Nadine Padilla that they and the rest of a protest delegation would be arrested if they did not leave the Grand Hyatt Hotel area in downtown Denver and move to the sidewalk in front of the building. The delegation was attempting to address a conference hosted by the Nuclear Regulatory Commission and the National Mining Association May 26.

Split appeals court rules against EPA and Navajo concerns

By Carol Berry, Today correspondent Story Published: Jun 17, 2010 Story Updated: Jun 17, 2010 DENVER – Navajo residents worried about uranium mining’s impact on their northwestern New Mexico community were handed a defeat by a narrowly divided federal appeals court in an en banc ruling June 15. Justices of the 10th U.S. Circuit Court of Appeals ruled 6-5 that a tract of land owned by a uranium company surrounded by Indian lands did not constitute “Indian country,” as legally defined, and that the state, not the federal government, would enforce drinking water regulations at a leach mine that injects water and chemicals into an underlying aquifer, withdraws the solution and recovers uranium. While the EPA said the aquifer beneath the Hydro Resources Inc. tract does not and will not serve as a drinking water supply, “tailings from uranium mines have contaminated air, groundwater, streams and soil on the Navajo reservation,” according to one dissenting judge. “The wind blew dust from the tailings piles into Navajo homes and water sources. Holding ponds on the reservation associated with the uranium mines were not well-maintained.” Because of differences of opinion over the way in which “Indian country” was defined, one of the judges said the long-running litigation is likely to go to the Supreme Court, noting the current majority ruling “undoes decades of settled Indian law based upon sound principles.” The tract owned by HRI east of Gallup is within the boundaries of Church Rock Chapter (a tribal unit established by the federal government in 1950) and is six miles from the chapter house and Church Rock community. EPA described the land as “completely surrounded” by lands set aside for Indian use – a dependent rural Indian community that is part of the chapter and one in which some families have used the land for generations. Federal law defines Indian country 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. A three-judge 10th Circuit panel in April 2009 upheld the EPA’s 2007 decision that HRI’s proposed in situ leach mine was inside “Indian country” as legally defined and therefore would be permitted and regulated by EPA and not the state, the assertion disputed by HRI and vacated June 15. EPA’s position rested in part on a complex two-stage definition of whether surrounding lands – the “community of reference” – when further defined by social, public, and jurisdictional factors constituted Indian country and encompassed the immediate area as a dependent Indian community. In its ruling vacating the panel’s decision, the full appellate court said that EPA argued federal, not state, criminal jurisdiction applied to the HRI tract because it is part of a dependent Indian community, but that two key requirements for that status – explicit use by Indians as Indian land, and federal superintendence – had not been met. “Had EPA chosen to define its authority under the SDWA (Safe Drinking Water Act) in a different way, the result in this case might have been different,” the judges noted in a 116-page document. “While groups of Indians may very well live on such lands in socially and politically discrete communities, they do not live in ‘Indian country’ because the land in question has not been explicitly set aside by Congress for use as a ‘dependent Indian community.’ “The superintendence requirement means that the federal government currently must be ‘actively controlling the lands in question, effectively acting as a guardian for the Indians,’” the court said. But, “Over the last 20 years in this circuit, we have held that a ‘community-of-reference ‘ test must be employed to determine the appropriate community, before determining whether that community is both ‘dependent’ and ‘Indian,’” wrote Senior Judge David M. Ebel for the minority. “By overturning decades of our precedent, the majority introduces confusion into an area of law that had been largely settled, and does so based on a case that did not even consider the issue.” Land in Church Rock Chapter is overwhelmingly owned by or for Navajos, some 98 percent of the chapter’s residents are Navajo or married to Navajos, and the Navajo Nation provides police protection, housing, electricity, drinking water, and other utilities to the residents in what constitutes a dependent Indian community, the judges stated. The hydrology of the HRI tract is tied into the hydrology of the entire Church Rock Chapter, where three separate aquifers run directly beneath the tract and throughout the chapter. Fourteen wells from one of the aquifers, from which most chapter residents draw drinking water, are within 20 miles of the tract, and “Any pollution into the aquifers would likely affect much of the Chapter population,” the dissent states. The Church Rock Chapter is the appropriate community of reference and HRI’s tract is within a dependent Indian community, it states, noting that consequences of the majority ruling “are likely to be enormous, reintroducing checkerboard jurisdiction into the Southwest on a grand scale and disrupting a field of law that had been settled for decades,” which may ultimately require Supreme Court resolution. In an additional statement, three of the dissenting justices noted “the externalities produced by a mining operation – including pollution, traffic, and the aesthetic harms by having a large mining operation nearby – also affect the surrounding community.” They cited “the largest nuclear spill in U.S. history” near Church Rock in 1979 that caused extensive damage and contamination. Briefs in support of HRI were filed by the National Mining Association, United Nuclear Corporation, and the states of Colorado, Kansas, New Mexico, Utah and Wyoming, while those supporting EPA and the Navajo Nation were filed by the Pueblos of Santa Clara, Sandia, Isleta and Zia.