By Michael Goodyear*
When President Trump announced the considerable shrinking of Bears Ears National Monument in southeastern Utah in November 2017,[i] both Native Americans and environmentalists resisted.[ii] The shrinkage of Bears Ears removes a huge swath of culturally significant Native American sites from federal protection against privatization and exploitation for the purpose of expanding uranium mining into the area.[iii] While the shrinkage poses independent issues to Native Americans and the environment, it could also create environmental problems for nearby Native American tribes. Tributaries in areas formerly inside Bears Ears National Monument flow into the San Juan River, which in turn flows along the Navajo Nation.[iv] If uranium poisons the water in the region, thousands will suffer, as uranium poisoning is tied to kidney failure and even cancer.[v] While the restoration of Bears Ears would be the most secure way to protect the Navajo from upstream water pollution, the Navajo Nation can also use its own environmental laws, either with the Environmental Protection Agency (EPA) or on its own authority, to prevent the harmful side-effects of uranium mining.
President Obama established Bears Ears National Monument in the closing weeks of his presidency in 2016,[vi] but its cultural significance goes back much further. The site contains thousands of cultural and archaeological sites dating back thousands of years and many of the sites are considered sacred by various Native American tribes.[vii] In addition to its historical and cultural importance, the neighboring tribes use the land for hunting, gathering, and fishing, for which the Obama administration specifically provided access.[viii] The cultural importance of Bears Ears for Native Americans was long established; declaring Bears Ears a National Monument established federal protection to better preserve the land, especially in the face of private encroachment and potential uranium mining. Natalie Landreth, a senior staff attorney with the Native American Rights Fund said that Bears Ears was “the first truly Native American monument.”[ix] By vastly shrinking the borders of Bears Ears National Monument, these artifacts, traditions, and ways of life are all at risk. Not only will Native Americans no longer have privileged access to practice their traditions on the site, but vandalism and grave robbing would destroy the sanctity of Bears Ears.[x]
In addition to the cultural concerns, the shrinking of Bears Ears National Monument poses significant environmental risks. The uranium industry lobbied hard for the shrinkage of Bears Ears.[xi] With the National Monument shrunk, the uranium mines of southeastern Utah are potentially open to miners once again. Uranium mining can create numerous environmental and health concerns, including radioactivity and water pollution.[xii]
The cultural and environmental concerns come together to confront the Navajo Nation. The Navajo Nation is by far the largest Native American tribe, holding over 27,000 square miles in northeastern Arizona and neighboring parts of Utah and New Mexico.[xiii] A substantial part of Navajo Land lies along the San Juan River, which flows along lands that were formerly part of Bears Ears National Monument. Especially since northeastern Arizona is a mostly desert region, the San Juan River is a vital source of water.[xiv] If and when uranium mining does commence in Bears Ears, uranium-contaminated water will be a major concern of the Navajo downstream. After all, this would certainly not be the first time the Navajo have suffered greatly from outside uranium poisoning.[xv] From the 1940s through 1986, mining companies blasted millions of tons of uranium out of Navajo land; today’s population continues to suffer from greatly increased rates of kidney problems and cancer.[xvi]
But the Navajo Nation is not powerless against uranium miners. In City of Albuquerque v. Browner, the city of Albuquerque operated a waste treatment facility upstream from the Isleta Pueblo Indian Reservation.[xvii] Due to a 1987 amendment to the Clean Water Act, the EPA can treat Native American tribes as sovereign states under the Act,[xviii] provided that these tribes submit an application to the EPA and are approved.[xix] While these approved tribes have to have at least as high of standards as those recommended by the EPA under the Clean Water Act,[xx] the Isleta Pueblo had even higher standards.
The Tenth Circuit held that Native American tribes could establish more stringent water quality standards than the federal government under their inherent powers as a sovereign tribe.[xxi] While the tribe itself cannot impose its higher water quality standards on those upstream, the Clean Water Act authorizes the EPA to only issue National Pollutant Discharge Elimination System (NPDES) permits in compliance with the water quality standards of a downstream state.[xxii] The Tenth Circuit held that the EPA has the authority to require those upstream to comply with downstream tribal standards.[xxiii]
Forty-four tribes have been approved to administer their own water quality standard, including the Navajo Nation.[xxiv] Together with the EPA, the Navajo can force upstream uranium miners in Bears Ears to follow the more stringent Navajo water quality standards.[xxv] In fact, such high standards might be enough to discourage uranium mining altogether or at the very least force environmental consciousness.
However, an essential part of working with the EPA is to have an environmentally conscious and tribal-friendly EPA. Under the leadership of Scott Pruitt and the Trump Administration, this is not the most plausible hope.[xxvi] Since taking office, the Trump administration has steadily repealed environmental protections and infringed on Native American rights.[xxvii]
But this does not mean that the Navajo Nation is out of options. The holdings in Albuquerque do largely vest the protection for tribal water quality against upstream polluters in the EPA. However, the Tenth Circuit also noted under a prior Supreme Court ruling that Native American tribes could have inherent jurisdiction where there is “some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”[xxviii] That case, Montana v. United States, is usually considered an extreme step backwards for Native American sovereignty.[xxix] However, the carve out for health and welfare may be crucial in challenging or at least forcing environmental compliance with uranium mining in Bears Ears. While alone it may not be able to hold the uranium miners to the Navajo Nation’s water quality standards, it can at least force them to act in regards to those living downstream and prevent a reoccurrence of the uranium poisoning that afflicted the Navajo since local uranium mining started in the 1940s.
The reduction of Bears Ears National Monument was an enormous blow to Native American rights and raised environmental concerns in the area. The likely uranium mining in the area poses an especially dire threat to the Navajo Nation, but the Navajo have the ability to fight back. The Tenth Circuit’s holdings in City of Albuquerque v. Browner allow the Navajo to work with the EPA to force upstream compliance with Navajo water quality standards. Even if the EPA refuses to cooperate with the Navajo, the carve out in Montana v. United States may provide an individual course of action for the Navajo to block the environmental and health threats from uranium mining in areas that were formerly part of Bears Ears National Monument.
* Michael Goodyear is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Nadja Popovich, Bears Ears National Monument is Shrinking. Here’s What Is Being Cut, N.Y. Times (Dec. 8, 2017), https://www.nytimes.com/interactive/2017/12/08/climate/bears-ears-monument-trump.html.
[ii] Both conservation groups and Native American tribes have fielded lawsuits against the Trump Administration. Conservation Groups File Lawsuit After President Trump Illegally Axed Majestic Bears Ears National Monument, Earthjustice (Dec. 7, 2017), https://earthjustice.org/news/press/2017/conservation-groups-file-lawsuit-after-president-trump-illegally-axed-majestic-bears-ears-national-monument.
[iii] Hiroko Tabuchi, Uranium Miners Pushed Hard for a Comeback. They Got Their Wish, N.Y. Times (Jan. 13, 2018), https://www.nytimes.com/2018/01/13/climate/trump-uranium-bears-ears.html.
[iv] See Native American Connections, Bears Ears Coal. (Feb. 4 2018), http://bearsears.org/proposal-overview/ancestral-and-modern-day-land-users/ (including a map of the tribal lands and major rivers around Bears Ears).
[v] Public Health Statement: Uranium, Agency for Toxic Substances & Disease Registry (Feb. 2013), https://www.epa.gov/sites/production/files/2014-12/documents/navajo-tribe.pdf.
[vi] Coral Davenport, Obama Designates Two New National Monuments, Protecting 1.65 Million Acres, N.Y. Times (Dec. 28, 2016), https://www.nytimes.com/2016/12/28/us/politics/obama-national-monument-bears-ears-utah-gold-butte.html.
[vii] Cally Carswell, Archaeologists Uneasy as Trump Shrinks Bears Ears Monument Lands, Nature (Dec. 4, 2017), https://www.nature.com/articles/d41586-017-07794-5; see also Kate Wheeling, What Native Americans Stand to Lose if Trump Opens Up Public Lands for Business, Pacific Standard (Dec. 7, 2017), https://psmag.com/environment/what-native-americans-stand-to-lose-if-trump-opens-up-public-lands-for-business.
[viii] Kate Wheeling, What Native Americans Stand to Lose if Trump Opens Up Public Lands for Business, Pacific Standard (Dec. 7, 2017), https://psmag.com/environment/what-native-americans-stand-to-lose-if-trump-opens-up-public-lands-for-business.
[x] Courtney Tanner, Five American Indian Tribes, Furious over Trump Shrinking Bears Ears on His Trip to Utah, Sue the President, Salt Lake Tribune (Dec. 4, 2017), https://www.sltrib.com/news/politics/2017/12/04/five-american-indian-tribes-furious-over-trump-shrinking-bears-ears-sue-the-president/.
[xi] Brian Maffly, Uranium Mill Pressed Trump Officials for Bears Ears Reductions, Record Shows, Salt Lake Tribune (Dec. 13, 2017), https://www.sltrib.com/news/2017/12/13/uranium-mill-pressed-trump-officials-for-bears-ears-reductions-records-show/.
[xii] See Environmental Aspects of Uranium Mining, World Nuclear Ass’n, http://www.world-nuclear.org/information-library/nuclear-fuel-cycle/mining-of-uranium/environmental-aspects-of-uranium-mining.aspx (last updated Apr. 2017).
[xiii] Fact Sheet, Navajo Tourism Dep’t, http://www.discovernavajo.com/fact-sheet.aspx (last visited Feb. 4, 2018).
[xiv] Navajo Nation, Tribal Water Uses in the Colorado River Basin, http://www.tribalwateruse.org/?page_id=132 (last visited Mar. 10, 2018).
[xv] See For The Navajo Nation, Uranium Mining’s Deadly Legacy Lingers, NPR (Apr. 10, 2016), https://www.npr.org/sections/health-shots/2016/04/10/473547227/for-the-navajo-nation-uranium-minings-deadly-legacy-lingers; see also Brandon Loomis, With Uranium Poisoning Wells, Navajos Must Drive Miles to Get Drinking Water, AZ Cent. (Aug. 5, 2014), https://www.azcentral.com/story/news/arizona/investigations/2014/08/05/uranium-mining-poison-wells-safe-drinking-water/13635345/.
[xvii] City of Albuquerque v. Browner, 97 F.3d 415, 419 (10th Cir. 1996).
[xviii] 33 U.S.C. § 1377(e) (current through P.L. 115-90).
[xix] 40 C.F.R. § 131.8 (current through Feb. 1, 2018).
[xx] 33 U.S.C. § 1370 (current through P.L. 115-90).
[xxi] Albuquerque, 97 F.3d at 423.
[xxii] 33 U.S.C. § 1341 (current through P.L. 115-90).
[xxiii] Albuquerque, 97 F.3d at 424.
[xxiv] EPA Approvals of Tribal Water Quality Standards and Contacts, Envtl. Prot. Agency, https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards-and-contacts (last visited Feb. 4, 2018).
[xxv] Navajo Nation Surface Water Quality Standards 2007, Envtl. Prot. Agency, https://www.epa.gov/sites/production/files/2014-12/documents/navajo-tribe.pdf (last visited Feb. 4, 2018).
[xxvi] See Justin Worland, Inside Scott Pruitt’s Mission to Remake the EPA, Time Magazine (Oct. 26, 2017), http://time.com/4998279/company-man-in-washington/.
[xxvii] Nadja Popovich et al., 67 Environmental Rules on the Way Out Under Trump, N.Y. Times (Jan. 31, 2018), https://www.nytimes.com/interactive/2017/10/05/climate/trump-environment-rules-reversed.html; Tom Perez, Trump Is Breaking the Federal Government’s Promises to Native Americans, L.A. Times (Aug. 7, 2017), http://www.latimes.com/opinion/op-ed/la-oe-perez-native-american-indians-trump-20170807-story.html.
[xxviii] Albuquerque, 97 F.3d at 424 (citing Montana v. United States, 450 U.S. 544, 566 (1981)).
[xxix] Judith V. Royster, Revisiting Montana: Indian Treaty Rights and Tribal Authority Over Nonmembers on Trust Lands, 57 Ariz. L. Rev. 889, 893 (2015).