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Appeals court upholds uranium mining curb on Navajo lands

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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.

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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.