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In late 2005, I noticed an announcement in the Federal Register that the EnvironmentalProtection Agency (EPA) was taking public comment on the issue as whether part of asection of some lands in McKinley county constituted Indian country’. Anyone who has beento the area empirically knows that the land are “Indian country’. Standing on the lands, one is in the middle of New Mexico’s Navajo Nation, and near one of the Navajo nation’s chapters.
But the law works differently than what we can instantly see. And the question was “disputed’ as being “Indian country’ by a mining company ( Hydro Resources, Inc or “HRI” ) that wanted to use the land for the mining of uranium ( U3O8).
The process of mining that HRI wanted to employ was “in situ leach mining”. That is different than conventional mining. Conventional mining involves the removal of rock from the ground, then breaking it up, and treating it to remove the minerals. In Situ Leach mining Involves groundwater fortified with oxygen and other solubilizing agents being pumped into the permeable ore body and then causing “the pregnant solution” to be pumped to the surface. Then it is treated chemically and the result is an uranium concentrate, typically known as “yellowcake”. The whole process is also known as the “front end of the nuclear cycle”.
Before continuing, it should be mentioned that the Navajo nation and the local Churchrock Chapter have effected legal bans of uranium mining. HRI’s closed tank, pool and loop system is no exception to the widespread opposition by the Navajo people. Their experience with mining companies has been a history of “disrespect” for the Navajo ways. In the 1960’s when the uranium mining business was flourishing were operated by corporations which had purchased the Santa Fe Pacific Railroad “right of way’ and maintained their mining, milling and transportation operations separated from the Navajo community. Workers for the corporate entities have shown higher cancer rates than others in the Native population. Issues such as the contamination of the water, air, soil, vegetation and livestock were not even considered.
In the late 1970’s the Kerr-McGee dam broke and led to over 90 million gallons of contaminated water in the area. When the attention of the activities came to the newly formed Environmental Protection Agency , companies ( which had also seen a decline in the demand for uranium) rather than employ safety standards simply bulldozed over the lands, fencing them off, and declared “bankruptcy’-- and new corporations would purchase their patent interests
The lands and the adjacent lands where Navajo members resided were left with a residual contamination which did not ‘qualify as an EPA ‘Superfund project’-- and remedial activity byThe EPA has been limited to planning measures and subject to “lack of funding”.
In the meantime, the successor companies have taken several legal actions which premise (at Law) that they are private property interests, engaged in traditional work in New Mexico, and under State of New Mexico law and standards, and being denied their right to enjoy the profits of legal activity through merit less litigation through the state and federal agencies and courts.
The EPA determination arose after over a decade of litigation and by reference by the state Environmental department after a 10th Circuit decision. Over the course of time, the demand for uranium has risen exponentially. In 2000 the price per pound was $7.00. In late 2005, when I read the notice for comments, the price had risen to almost $40 per pound. As late as early March 2007, the price demand has led prices to over $80 per pound. In the Churchrock area estimated tonnage of uranium was 4 billin dollars based on the $40 per pound price. So clearly a decision as to whether the land was legally “Indian country” had an economic factor. For if the lands were determined as “Indian Country”, then the ban would exist. If the determination was that the lands constituted ’private property within New Mexico’ then in absence of a compact or treaty with the Navajo nation, uranium mining could take place ( conditional upon other legal requirements such as a Nuclear regulatory agency license, environmental impact study, safe water certificate, etc.) .
Prior to writing a commentary, I made several visits to the immediate lands, talked with Navajo leaders and members, attended a chapter meeting, reviewed company reports and memorandum, took a “CERCLA cleanup training course” through the EPA, reread Cohen’s Handbook of Federal Indian Law , and reviewed state and Court documents, including the US Supreme Court case “ Alaska v. Village of Venetie Tribal Government ” and the prior Tenth Circuit case, HRI v. Environmental Protection Agency (2000).
Venetie pointedly provided that there are two major factors in determining “Indian country Status.” The first is whether there was an act of Congress or President designating the lands as tribal or native. The second is whether there is an active presence of Federal agencies.
Generally speaking a specific parcel does not have to be designated , but Indian country is defined broadly to include formal and informal reservations, dependant Indian communities, and Indian allotments whether restricted or held in United States Trust .
Reviewing the documents and history, I found there was an Executive order designating the Church Rock chapter within the Navajo reservation ( 1907) and mention of subsequent Executive orders ‘to assure the unallotted lands within the area” were reserved from entry sale or other disposition’. Additionally there was a general Act of the Congress allocating funds for the purchase of water rights and additional lands in 1929.
With the explicit of the Executive orders and acts of Congress , the qualification over the disputed lands rested upon “federal supervision’. I dare say that none of my conversations which lasted more than 10 minutes did not fail to include “BIA” , “BLM” or some other designated Federal agency. Additionally, after originally filing a commentary , I received from Congressman Udall’s office a requested record of payments by HRI to BLM for the “patent rights in Section 8 land-- which I then supplemented to the commentary .
One thing that I learned studying law was to stay germane. When the dispute is about whether or the lands constitutes “Indian Country” don’t go into the many side issues which can be present, such as the poverty rates, the public health concerns of residual contamination, the long standing arguments and disputes, or the amounts of potential wealth which might be created if corporate responsibility met the concerns of the community. Such is ‘speculative’ and generally not of concern to courts and agencies.
After over a year, in February 2007, the EPA issued it determination. It found that the lands were legally “Indian country” having the prerequisite “federal set aside by the Congress ” and elements of “federal supervision and activities”. I was glad that my own recommendation was one of the minority of commentators on the winning side. But I expected as much as my comments were not prejudiced by any interest or financial gain.
But in the back of my mind, I knew that the issue didn’t go the “distance”. It did not transcend the immediate question with a more holistic resolution-- such as potential of the creation of wealth and future if an initiative of corporate partnership existed instead of prolonged litigation. Four billion dollars is a lot of money. It is enough to introduce and share the benefits of technology with the “community of reference” and still prove profitable for the Corporate interests. It is well enough to provide to provide for the public health concern of the low level radiation, cleaning up the “past sins” with the standards of environmental protection that is current. It is enough to still enable the building of first rate hospital and health treatment facilities to deal with the practicality of health care and the more subtle health effects -- the increased cancer rates and tetra genetic effects.
And there could still be revenues to support “university development” ( a specialized school of mining and engineering) , supportive training facilities and equipment for the safety regulation and emergency response which nuclear activity may present-- even at the “front end’.
A revenue sharing plan could provide set asides for archeological and preservation, infuse the traditional agricultural and ranching activities and work to raise the community standard-- such as might be demonstrated by the poverty rates and educational attainment.
Of course, that’s the difference between the solutions of hopes and opportunity and the realities of world with its history of prejudices, greed and indifference. And of course, it is the difference between the dream and the persistence of litigation.
