Uranium Mining in the Navajo Nation after Hydro Resources, Inc.

In 2005, Navajo Nation President Joe Shirley said, “as long as there are no answers to cancer, we shouldn’t have uranium mining on the Navajo Nation,” when he signed the Diné Natural Resources Protection Act (DNRPA) banning uranium mining on Navajo land.[1] The Navajo Nation was responding to the repercussions of over forty years of uranium mining on Navajo land.[2] The Navajo Nation spans over 27,000 square miles in Arizona, New Mexico and Utah. There are now hundreds of abandoned mines, and Navajo people suffer from high rates of cancer, heart disease and birth defects.[3] Lack of access to safe drinking water also poses a serious public health risk, as a significant portion of regulated water sources are contaminated.  And thirty percent of the Navajo population, about 54,000 people, only have access to unregulated water sources of water.[4]

Uranium mining on and near Navajo lands is not just a thing of the past.  The Navajo Nation is estimated to have 70 million pounds of uranium reserves of 1227 million pounds nationwide.[5] As ongoing attempts to mine continue, jurisdictional issues abound in a complicated web of federal, state and tribal regulations.  Especially challenging is the checkerboard pattern of land ownership in northwestern New Mexico.  In the mid-nineteenth century in order to encourage settlement of the west, Congress deeded railroad companies alternating one-square-mile parcels on each side of the track lines to sell for further funding.  After years of changing hands, the parcels are now owned by the Navajo, the state, and private individuals.[6]

A recent Tenth Circuit case Hydro Resources, Inco. V. United States EPA (HRI III) held the Navajo have no jurisdiction to prohibit mining on these privately owned parcels. [7] The proposed mining in HRI III would use the in situ leach (ISL) method of extracting uranium from the Navajo Westwater Canyon Aquifer by injecting chemicals into the groundwater to dissolve the uranium then pumping out the solution.  While the method would be less destructive to surface lands, there is a high risk of contaminating the groundwater resource which at present provides drinking water for approximately 15,000 people.[8]

Although the Navajo banned uranium mining in passing the DNRPA, they do not have control over mining permits.  The EPA holds permitting authority for Underground Injection Control (UIC) which includes the in situ method.  In 1982 they delegated that authority to New Mexico Environment Department (NMED) for all land in the state except Indian land.[9] The conflict in Hydro Resources, Inc. revolved around whether the land in question was “Indian country” meaning it would be subject to EPA permitting authority rather than to NMED.[10] “Indian country” is defined in Title 18 U.S.C. § 1151 in the context of criminal jurisdiction but the definition has been imported into the civil context.  Under § 1151, Indian country includes “dependent Indian communities” which the majority in Hydro Resources, Inc. defined according to 1998 Supreme Court case Alaska v. Native Village of Venetie Tribal Government.  The Venetie test requires asking first, if Congress explicitly set aside land for Indian use, and second, if the federal government is “actively controll[ing] the lands in question, effectively acting as a guardian for the Indians.”  The court found the land in question was not a dependent Indian community. [11]

The majority in Hydro Resources, Inc was primarily concerned with forming a test that would be predictable and consistent.  This is certainly a concern in determining criminal jurisdiction where due process requires fair warning that conduct is a crime without engaging in an extensive factor balancing test.  But in the environmental context, natural resources are not so easily spliced.  The mixed ownership and jurisdiction of the checkerboarded land leaves the Navajo with little recourse if the state does not effectively protect their resources in the area.

It would perhaps have been simpler if the EPA had maintained its permitting authority over the checkerboarded area to both avoid jurisdictional ambiguities, and to account for the mixed interests of the Navajo, state, and private parties. Another option would have been to adopt a definition of “Indian lands” unattached to § 1151 for UIC permitting authority under the Safe Drinking Water Act.[12] The EPA could even have delegated the permitting authority over this land to the Navajo through “treatment in the same manner as a state” (TAS).[13]

At present however the Navajo are left with few options. In May of 2011 the Eastern Navajo Diné Against Uranium Mining submitted a petition to the Inter-American Commission on Human Rights that the licensing of HRI’s mining site is a violation of the American Declaration of the Rights of Duties of Man and UN recognized right to clean water.[14] The hope is that the Commission “will put pressure on the Nuclear Regulatory Commission (NRC) and State Department to reverse the licensing decision.” [15] Even if unsuccessful in getting the licensing revoked the hope is that petition draws international attention to the past and potential future devastating effects of mining, as not just an environmental concern but a human rights concern.

Anna Hill is an editor for MJEAL.

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.
[1] 4/30/05 Press Release Navajo Nation President Joe Shirley, Jr. signs Diné Natural Resources Protection Act of 2005 The Navajo Nation: Office of the President and Vice President
[2] http://www.epa.gov/region9/superfund/navajo-nation/index.html
[3] http://www.nytimes.com/gwire/2011/05/12/12greenwire-navajo-group-to-take-uranium-mine-challenge-to-33718.html?pagewanted=all
[4] http://www.epa.gov/region9/superfund/navajo-nation/contaminated-water.html
[5] http://www.eia.gov/cneaf/nuclear/page/reserves/ures.html
[6] HRI III 1135-36
[8] http://www.sric.org/voices/2002/v3n4/westwater.html
[10] Id.
[11] Id.
[12] p440, 2011 Denver Law Review Comment on Hydro Resources, Inc.
[13] Id., http://water.epa.gov/type/groundwater/uic/index.cfm, http://www.epa.gov/tp/laws/tas.htm
[14] “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights” http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/479/35/PDF/N0947935.pdf?OpenElement

One Reply to “Uranium Mining in the Navajo Nation after Hydro Resources, Inc.”

Leave a Reply

Your email address will not be published. Required fields are marked *