by TIM HULL
18 June 2010
(CN) -The 10th
Circuit cleared the way for a Texas company to seek the last
permit it needs to begin extracting nearly 14 million pounds of
uranium from the ground near the Navajo community of Churchrock
by ruling that the mine operation is not on Indian land.
appellate panel, sitting en banc, determined that New Mexico,
not the Environmental Protection Agency, has the authority to
issue an underground injection control permit to Hydro Resources
The permit will
allow the Houston-based company to extract uranium by injecting
chemicals into the ground.
The EPA, which
ceded permitting authority to states for most lands except
Indian reservations, had claimed that Hydro Resource's Section 8
property was subject to federal jurisdiction because it is part
of a "dependent Indian community."
argued that since the "community of reference" - in this case
the nearby Navajo community of Churchrock - is Indian land,
Section 8 must also be considered Indian country.
In 2005 the
Navajo Nation outlawed uranium mining on the reservation, which
stretches across northeastern Arizona and into New Mexico.
three-judge appellate panel upheld the agency's decision, the
company sought a review of the full court. That review resulted
in a 6-5 ruling that the EPA wrongly determined that Section 8
property was Indian land.
found that EPA's decision goes against precedent established by
the Supreme Court in 1998's Alaska v. Native Village of Venetie
Tribal Government. In that case, the high court established a
simple test for determining Indian land and rejected the
"amorphous community of reference" test used by EPA.
"In adopting the
approach it did ... the Court rejected the idea that the
boundaries of a federally dependent Indian community should be
determined by a sort of judicially administered census study of
the nature of 'the Indian tribe inhabiting' the area," the
majority wrote. "The right question, the Court held, is instead
whether Congress has taken some action to designate and maintain
the land in question for Indian use. It is Congress's action
alone that demarcates the boundaries of a dependent Indian
Congress has never, throughout Section 8's long history,
designated it as Indian land, the appellate panel vacated the
EPA's final land determination.
enables us to immediately seek to renew the underground
injection control (UIC) permit that we had been granted by the
State of New Mexico in 1989," Don Ewigleben, president and CEO
of Hydro's parent company Uranium Resources, said in a
statement. "This is the last permit required for us to advance
our ... recovery uranium mining project on our Churchrock
property where we hold 13.7 million pounds of in place
mineralized uranium material."