impact of recent environmental protection agency “indian country” determination prepared for the...

Impact of Recent Impact of Recent Environmental Protection Environmental Protection Agency “Indian Country” Agency “Indian Country”

DeterminationDeterminationPrepared for the National Mining Association/Nuclear Prepared for the National Mining Association/Nuclear

Regulatory Commission Annual ConferenceRegulatory Commission Annual Conference

Prepared by Thompson & Simmons, PLLCPrepared by Thompson & Simmons, PLLC::

Presented byPresented by: : Anthony J. Thompson, Esq.Anthony J. Thompson, Esq.

Christopher S. Pugsley, Esq.Christopher S. Pugsley, Esq.

IntroductionIntroduction Given the Recent Resurgence in the Given the Recent Resurgence in the

Demand for New Sources of Uranium, It is Demand for New Sources of Uranium, It is Imperative that Prospective Licensees Imperative that Prospective Licensees (Applicants) Understand (Applicants) Understand AllAll Aspects of the Aspects of the Licensing Process;Licensing Process;

Since Many, if Not Most, New Near-Term Since Many, if Not Most, New Near-Term Uranium Recovery Projects Will Utilize the Uranium Recovery Projects Will Utilize the In Situ Recovery (ISR) Process, It is In Situ Recovery (ISR) Process, It is Important to Know Which Licenses/Permits Important to Know Which Licenses/Permits are Required and What Issues Will Ariseare Required and What Issues Will Arise

Emerging Issues for ISR Emerging Issues for ISR Uranium Recovery ProjectsUranium Recovery Projects

ISR Uranium Recovery Projects Generally ISR Uranium Recovery Projects Generally Require Three Types of Licenses/Permits Require Three Types of Licenses/Permits or Approvalsor Approvals::

Nuclear Regulatory Commission (NRC)/Agreement Nuclear Regulatory Commission (NRC)/Agreement State State Uranium Recovery LicenseUranium Recovery License;;

Environmental Protection Agency (EPA) Environmental Protection Agency (EPA) Aquifer Aquifer ExemptionExemption for Activity in Aquifer or Portion Thereof for Activity in Aquifer or Portion Thereof Exempted from Use as Drinking Water Source;Exempted from Use as Drinking Water Source;

EPA/State/Tribal EPA/State/Tribal Underground Injection Control Underground Injection Control (UIC) Permit(UIC) Permit for Injection of Lixiviant for Injection of Lixiviant

Emerging Issues for ISR Emerging Issues for ISR Uranium Recovery ProjectsUranium Recovery Projects

A Prospective Licensee Must A Prospective Licensee Must Understand to Which Understand to Which Agency/Entity an Application Agency/Entity an Application Must be SubmittedMust be Submitted::

Uranium Recovery LicenseUranium Recovery License >>> >>> NRC/Agreement State;NRC/Agreement State;

Aquifer ExemptionAquifer Exemption >>> EPA; >>> EPA; UIC PermitUIC Permit >>> EPA/State/Tribe >>> EPA/State/Tribe

Underground Injection Control Underground Injection Control PermittingPermitting

Who Has Control Over UIC Who Has Control Over UIC Permitting Has Become More Permitting Has Become More Difficult to Determine;Difficult to Determine;

Lack of Clarity Over Which Lack of Clarity Over Which Agency/Entity Has Jurisdiction Over Agency/Entity Has Jurisdiction Over Issuance of UIC Permits Potentially Issuance of UIC Permits Potentially Could Cause Delays in Development Could Cause Delays in Development of New ISR Uranium Recovery of New ISR Uranium Recovery ProjectsProjects

Safe Drinking Water Act/Underground Safe Drinking Water Act/Underground Injection Control Program OriginsInjection Control Program Origins

In the 1970s, Congress Identified the Need for In the 1970s, Congress Identified the Need for Harmonization BetweenHarmonization Between::

Protection of Underground Sources of Drinking Water Protection of Underground Sources of Drinking Water (USDWs);(USDWs);

Mineral Recovery (e.g., Uranium) in USDWsMineral Recovery (e.g., Uranium) in USDWs

Congress Enacts the Safe Drinking Water Act to Include Congress Enacts the Safe Drinking Water Act to Include a UIC Programa UIC Program::

EPA Promulgates a UIC Program ThatEPA Promulgates a UIC Program That::

Sets Parameters for Exempted Aquifers, or Portions Thereof, Sets Parameters for Exempted Aquifers, or Portions Thereof, Where Mineral Recovery Activities Can Occur;Where Mineral Recovery Activities Can Occur;

Sets Requirements for Remedial Action if Production or Post-Sets Requirements for Remedial Action if Production or Post-Production Mineral Recovery Operations Cause Impacts on Production Mineral Recovery Operations Cause Impacts on Adjacent, Non-Exempt Aquifers or Portions Thereof;Adjacent, Non-Exempt Aquifers or Portions Thereof;

Promotes Active State/Tribal Involvement in UIC Permitting Promotes Active State/Tribal Involvement in UIC Permitting ProcessProcess

Jurisdictional Authority: Jurisdictional Authority: “Primacy”“Primacy”

UIC Program Enacted to Provide A UIC Program Enacted to Provide A Simplified Jurisdictional ProgramSimplified Jurisdictional Program::

Primary Jurisdiction Over UIC Program and Primary Jurisdiction Over UIC Program and Issuance of UIC Permits Rests with EPA;Issuance of UIC Permits Rests with EPA;

State and Tribal Governments May Petition State and Tribal Governments May Petition EPA to Obtain “Primacy” Over the UIC EPA to Obtain “Primacy” Over the UIC Program Within Their Jurisdiction (i.e., Program Within Their Jurisdiction (i.e., Issuance of UIC Permits)Issuance of UIC Permits)

EPA Must Approve All Aquifer ExemptionsEPA Must Approve All Aquifer Exemptions

““Primacy”Primacy”

Under EPA’s UIC Program, “Primacy” Under EPA’s UIC Program, “Primacy” is Intended to Offer State and Tribal is Intended to Offer State and Tribal Governments the Opportunity to Governments the Opportunity to Manage a UIC Program Consistent Manage a UIC Program Consistent With EPA Regulations & GuidelinesWith EPA Regulations & Guidelines::

State or Tribal Authority Must Submit State or Tribal Authority Must Submit Petition/Application to EPA requesting Primacy Petition/Application to EPA requesting Primacy and Demonstrating a Viable UIC program;and Demonstrating a Viable UIC program;

Requirements Must be Requirements Must be At Least as Stringent as At Least as Stringent as EPA’s Requirements EPA’s Requirements

Jurisdictional Authority: Jurisdictional Authority: “Primacy”“Primacy”

Jurisdiction to Issue UIC Permits Rests Jurisdiction to Issue UIC Permits Rests with the Following Agencies/Authorities with the Following Agencies/Authorities Under the Following ScenariosUnder the Following Scenarios::

Lands in Question “Non-Indian Country” & No Lands in Question “Non-Indian Country” & No State “Primacy” >>> State “Primacy” >>> EPA Issues PermitEPA Issues Permit;;

Lands in Question “Non-Indian Country” & State Lands in Question “Non-Indian Country” & State Has “Primacy” >>> Has “Primacy” >>> State Issues PermitState Issues Permit;;

Lands in Question “Indian Country” & No Tribe Lands in Question “Indian Country” & No Tribe “Primacy” >>> “Primacy” >>> EPA Issues PermitEPA Issues Permit;;

Lands in Question “Indian Country” & Tribe Has Lands in Question “Indian Country” & Tribe Has “Primacy” >>> “Primacy” >>> Tribe Issues PermitTribe Issues Permit;;

Lands in Question “In Dispute” >>> Lands in Question “In Dispute” >>> EPA Issues EPA Issues PermitPermit

Current “Primacy” StatusCurrent “Primacy” Status The Status of “Primacy” for Traditional ISR The Status of “Primacy” for Traditional ISR

Injection Wells (Class III) in Uranium-Injection Wells (Class III) in Uranium-Producing States AreProducing States Are::

NebraskaNebraska: State Shares “Primacy” with EPA Over Class : State Shares “Primacy” with EPA Over Class III Wells;III Wells;

UtahUtah: State Has “Primacy” Over Class III Wells;: State Has “Primacy” Over Class III Wells; ArizonaArizona: EPA Has “Primacy” Over Class III Wells;: EPA Has “Primacy” Over Class III Wells; NevadaNevada: State Has “Primacy” Over Class III Wells;: State Has “Primacy” Over Class III Wells; WyomingWyoming: State Has “Primacy” Over Class III Wells;: State Has “Primacy” Over Class III Wells; South DakotaSouth Dakota: EPA Has “Primacy” Over Class III Wells;: EPA Has “Primacy” Over Class III Wells; New MexicoNew Mexico:: State Has “Primacy” Over Class III Wells;State Has “Primacy” Over Class III Wells; TexasTexas: State Has “Primacy” Over Class III Wells: State Has “Primacy” Over Class III Wells ColoradoColorado: EPA Has “Primacy” Over Class III Wells: EPA Has “Primacy” Over Class III Wells

Recent Issues for Underground Recent Issues for Underground Injection Control ProgramsInjection Control Programs

Hydro Resources, Inc. (HRI) and Some Hydro Resources, Inc. (HRI) and Some Members of the Navajo Nation Have Members of the Navajo Nation Have Engaged in Litigation Regarding UIC Engaged in Litigation Regarding UIC Permit for Church Rock Section 8 (New Permit for Church Rock Section 8 (New Mexico) Project SiteMexico) Project Site::

Section 8 Property is Fee Land (Surface & Section 8 Property is Fee Land (Surface & Subsurface);Subsurface);

HRI Obtains UIC Permit from New Mexico;HRI Obtains UIC Permit from New Mexico; Navajo Nation Alleges Section 8 is “Indian Country;”Navajo Nation Alleges Section 8 is “Indian Country;” U.S. Court of Appeals for Tenth Circuit Remands UIC U.S. Court of Appeals for Tenth Circuit Remands UIC

Permit Issue to EPA for Decision on Section 8 Permit Issue to EPA for Decision on Section 8 “Indian Country” Status (2000)“Indian Country” Status (2000)

““Indian Country” Indian Country” DeterminationsDeterminations

EPA’s Determination is Based on the EPA’s Determination is Based on the Federal Definition of “Indian Country:”Federal Definition of “Indian Country:”

18 U.S.C. 18 U.S.C. § 1152 Defines That “Indian § 1152 Defines That “Indian Country” as Either:Country” as Either:

Reservation Lands;Reservation Lands;

Allotted Lands;Allotted Lands;

Dependent Indian CommunityDependent Indian Community


Supreme Court Has Considered The Supreme Court Has Considered The Determination of “Indian Country” Based on Determination of “Indian Country” Based on Status as a “Dependent Indian Community” in Status as a “Dependent Indian Community” in State of Alaska v. Native Village of Venetie State of Alaska v. Native Village of Venetie Tribal GovernmentTribal Government::

All “Indian Country” Lands Must Fulfill Two Basic All “Indian Country” Lands Must Fulfill Two Basic Standards: Standards:

Land Must BeLand Must Be::

Set Aside by Federal Government for Use by Native Set Aside by Federal Government for Use by Native Americans; Americans; ANDAND

Under Under ActiveActive Federal Superintendence for the Benefit Federal Superintendence for the Benefit of Dependent Native Americansof Dependent Native Americans


Tenth Circuit Considers The Dependent Indian Tenth Circuit Considers The Dependent Indian Community Issue in HRI v. EPA (2000) and Community Issue in HRI v. EPA (2000) and HoldsHolds::

Circuit Court’s Circuit Court’s ““Community of Reference”Community of Reference” Test Should Test Should Be Used to Determine in What Context Lands in Be Used to Determine in What Context Lands in Question Must Be Evaluated;Question Must Be Evaluated;

Status of the Area in Question as a “Community;” ANDStatus of the Area in Question as a “Community;” AND ““Community of Reference Within the Context of the Community of Reference Within the Context of the

Surrounding Area”Surrounding Area”

Venetie Venetie Did Not Directly Address “Community of Did Not Directly Address “Community of Reference” Test;Reference” Test;

HRI and Members of the Navajo Nation Must Return to HRI and Members of the Navajo Nation Must Return to EPA for Final Determination of “Indian Country” IssueEPA for Final Determination of “Indian Country” Issue

EPA Administrative EPA Administrative ProceedingProceeding

HRI, Navajo Nation, and Other Interested HRI, Navajo Nation, and Other Interested Persons/Groups Submit Comments/Argument to Persons/Groups Submit Comments/Argument to EPA;EPA;

HRI ARGUMENT TO EPA: Section 8 is Not “Indian HRI ARGUMENT TO EPA: Section 8 is Not “Indian Country”:Country”:

No Part of Section 8 Land is Reservation, Tribal Trust No Part of Section 8 Land is Reservation, Tribal Trust or Allotted Land;or Allotted Land;

No Part of Section 8 Land is Now or Has Ever Been No Part of Section 8 Land is Now or Has Ever Been Set Aside by the Federal Government for Use of Set Aside by the Federal Government for Use of Native Americans (Navajo);Native Americans (Navajo);

No Part of Section 8 Land is Now or Has Ever Been No Part of Section 8 Land is Now or Has Ever Been Under Active Federal Superintendence for Dependent Under Active Federal Superintendence for Dependent Native Americans;Native Americans;

All Acres of Section 8 Land is Owned in Fee Simple All Acres of Section 8 Land is Owned in Fee Simple and Surface & Subsurface Estates are Owned by HRI and Surface & Subsurface Estates are Owned by HRI Through a Patent with United StatesThrough a Patent with United States


NAVAJO NATION ARGUMENT TO NAVAJO NATION ARGUMENT TO EPA: The Character of Section 8 EPA: The Character of Section 8 Lands Determines Indian CountryLands Determines Indian Country::

Tenth Circuit Decision Distinguishes Tenth Circuit Decision Distinguishes Section 8 From Classes of Land Such As Section 8 From Classes of Land Such As Described in Described in VenetieVenetie;;

Section 8 is Within Boundaries of “Church Section 8 is Within Boundaries of “Church Rock Chapter” of Navajo Nation;Rock Chapter” of Navajo Nation;

Population is Predominantly Navajo;Population is Predominantly Navajo; Historic Uses of Land Based on Navajo Historic Uses of Land Based on Navajo

CultureCulture


EPA/Department of the Interior (DOI) EPA/Department of the Interior (DOI) Issues Decision Finding Church Rock Issues Decision Finding Church Rock Section 8 Property to be “Indian Section 8 Property to be “Indian Country:Country:””

Tenth Circuit Decision Distinguishes Tenth Circuit Decision Distinguishes Section 8 From Classes of Land Such As Section 8 From Classes of Land Such As Described in Described in VenetieVenetie;;

Section 8 is Within “Loose” Boundaries of Section 8 is Within “Loose” Boundaries of Church Rock Chapter of Navajo Nation;Church Rock Chapter of Navajo Nation;

Population is Predominantly Navajo;Population is Predominantly Navajo; Historic Uses of Land Based on Navajo Historic Uses of Land Based on Navajo

CultureCulture

Status of Section 8 DeterminationStatus of Section 8 Determination

HRI Has Appealed EPA’s Decision to HRI Has Appealed EPA’s Decision to the Tenth Circuit Arguingthe Tenth Circuit Arguing::

EPA’s Decision Relies on Flawed Tenth Circuit EPA’s Decision Relies on Flawed Tenth Circuit Determination in Determination in HRI v. EPAHRI v. EPA on “Community of on “Community of Reference Test;”Reference Test;”

Section 8 is Private Fee Land and Fails the Section 8 is Private Fee Land and Fails the VenetieVenetie Test; Test;

Briefs Expected to be Filed with Tenth Briefs Expected to be Filed with Tenth Circuit by the End of Summer, 2007Circuit by the End of Summer, 2007

Status of “Indian Country” Status of “Indian Country” Jurisdiction IssueJurisdiction Issue

Line of Analysis for Determining What is a Line of Analysis for Determining What is a “Dependent Indian Community” is Murky at “Dependent Indian Community” is Murky at Best;Best;

Circuits (Eighth, Ninth, & Tenth Circuits) Differ Circuits (Eighth, Ninth, & Tenth Circuits) Differ on Proper Interpretation of Issueon Proper Interpretation of Issue::

Ninth Circuit Adheres to Strict VNinth Circuit Adheres to Strict Venetie enetie InterpretationInterpretation

Scope of Supreme Court’s Scope of Supreme Court’s VenetieVenetie Decision Decision Brought into Question by Tenth Circuit’s Brought into Question by Tenth Circuit’s OpinionOpinion::

Resolution of Tenth Circuit Opinion in Supreme Court Resolution of Tenth Circuit Opinion in Supreme Court Would Resolve the Issue on a National BasisWould Resolve the Issue on a National Basis

Status of “Indian Country” Status of “Indian Country” Jurisdiction IssueJurisdiction Issue

In Light of EPA’s Decision and the Tenth Circuit’s In Light of EPA’s Decision and the Tenth Circuit’s Application of the Application of the Venetie Venetie DecisionDecision::

Applicants for UIC Permits Have No Clear Parameters on Applicants for UIC Permits Have No Clear Parameters on What Constitutes “Indian Country;”What Constitutes “Indian Country;”

Potential Scope of “Indian Country” Definition Could be Potential Scope of “Indian Country” Definition Could be Extremely Broad;Extremely Broad;

All Lands (State, Private Fee, BLM, etc.) in New Mexico All Lands (State, Private Fee, BLM, etc.) in New Mexico “Checkerboard” Area Could Be Classified as “Indian “Checkerboard” Area Could Be Classified as “Indian Country;”Country;”

All Lands Considered “Sacred” by Tribes Potentially Could All Lands Considered “Sacred” by Tribes Potentially Could Become “Indian Country;”Become “Indian Country;”

Lands Defined as “Indian Country” Potentially Could Lands Defined as “Indian Country” Potentially Could Exceed Congress’ MandateExceed Congress’ Mandate

Courts Will Be Unclear As to the Scope of Courts Will Be Unclear As to the Scope of VenetieVenetie and Can and Can Offer No Clear Understanding for Applicants Until Resolved Offer No Clear Understanding for Applicants Until Resolved by the Supreme Court;by the Supreme Court;

ConclusionsConclusions With the Resurgence of Nuclear Power, With the Resurgence of Nuclear Power,

Applicants for New Uranium Recovery Applicants for New Uranium Recovery Projects Need a Clear Understanding of the Projects Need a Clear Understanding of the Licensing/Permitting Process;Licensing/Permitting Process;

Applicants Must Understand Where to Applicants Must Understand Where to Submit License Applications to Streamline Submit License Applications to Streamline the Licensing/Permitting Process;the Licensing/Permitting Process;

Lack of Clarity in Application Process Could Lack of Clarity in Application Process Could Lead to Significant Delays FromLead to Significant Delays From::

Rejected Applications for “Lack of Jurisdiction;”Rejected Applications for “Lack of Jurisdiction;” Administrative Litigation to Determine Land StatusAdministrative Litigation to Determine Land Status

ConclusionsConclusions New Uranium Companies Must Be New Uranium Companies Must Be

Aware of Aware of AllAll Licensing/Permitting Licensing/Permitting Issues Associated with New Projects;Issues Associated with New Projects;

Great Care Must Be Taken to Great Care Must Be Taken to Compose a Comprehensive, Accurate Compose a Comprehensive, Accurate Critical Path for Licensing/Permitting;Critical Path for Licensing/Permitting;

Agency Outreach is Essential to a Agency Outreach is Essential to a Proper Understanding of the Process Proper Understanding of the Process and Jurisdictionand Jurisdiction

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