Navajo Nation

Enviro Groups File Cert Petition in HRI/Navajo Uranium Mining Case

Matthew L.M. Fletcher

The case is captioned Morris v. United States Nuclear Regulatory Commission. Petition here. Lower court materials here [corrected link, thanks to A.T.S.].

Questions presented:

1. In determining whether public radiation doses from a proposed new uranium mine would exceed regulatory limits, could the U.S. Nuclear Regulatory Commission (“NRC”) interpret 10 C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive emissions from existing uranium mine waste on the mine site?

2. Where, in establishing a groundwater restoration surety for a proposed uranium mine, the NRC failed to follow its own criteria for protecting the drinking water on the site, did the NRC violate the Atomic Energy Act’s prohibition
against licensing operations that are inimical to public health and safety?

News coverage from Law360 (miigwetch to J.W.):

Environmental and Native American groups on Thursday launched a last-gasp effort to fight proposed in situ leach uranium mining in northwestern New Mexico that they allege will contaminate large areas of groundwater, including a primary drinking water source for 15,000 Navajos.

In a petition for a writ of certiorari, the Eastern Navajo Dine Against Uranium Mining, a Navajo community organization; the Southwest Research and Information Center, an environmental education organization; and two local ranchers, Grace Sam and Marilyn Morris, asked the U.S. Supreme Court to overturn a March 2010 ruling from the U.S. Court of Appeals for the Tenth Circuit.

The groups said that under the Tenth Circuit’s ruling, Hydro Resources Inc. would not have to clean up existing Cold War-era radioactive waste on its property, and that both the old waste and new mining would expose residents to dangerous levels of radiation.

This is the first time that the U.S. Nuclear Regulatory Commission has licensed a mining operation in a community drinking water supply, despite the fact that no aquifer in which in situ leach uranium mining has occurred has ever been restored to premining condition, according to the groups.

Moreover, the government has allegedly not required an adequate bond to clean up the mine should HRI — a subsidiary of the Texas-based Uranium Resources Inc. — walk away from the site.

“The community is letting the government know that they will not give up the fight and they will continue resisting these proposed uranium mines,” said Eric Jantz, an attorney with the New Mexico Environmental Law Center who is representing the plaintiffs.

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Navajo President Shirley on the Importance of San Francisco Peaks to Dine People

Matthew L.M. Fletcher1 Comment

Here: President Shirley statement on Sanctity of San Francisco Peaks.

An excerpt:

After centuries of attempts to subdue and vanquish North America’s native people, as Navajo people we are trying to do everything we can to save self, to preserve our identity, and to live by the teachings our ancestors gave to us. Dook’o’osliid is one of our strengths. It is our essence. It is us. When the foreigners decide to desecrate it to make artificial snow for economic interests alone, that does not help my way of life. That does not help my people’s survival. That does not help when I talk to my children and grandchildren about the importance of the Navajo way, and the pride that is to be taken to be Navajo despite all that tells them they and their beliefs are somehow less than others’.

Briefing in Navajo Law Enforcement Employee Claim for Higher Wages under 638 Contract

Matthew L.M. Fletcher

The case is Boye v. United States and is pending in the Federal Circuit:

Boye Opening Brief

Government Brief (Boye)

The lower court decision is here.

Key Bank Consents to Navajo Court Jurisdiction in Lending Agreement

Matthew L.M. Fletcher

From the Navajo Times:

* * *

Shirley pointed to an unprecedented $60 million loan agreement with Cleveland-based Key Bank to fund construction of justice complexes in Crownpoint and Tuba City.

Shirley signed the agreement, which had previously been endorsed by the council, with KeyBank on June 24. This marks the first time that the tribe has made this kind of arrangement with a bank and assigned tax revenues to pay for it.

“This signing comes six years after discussions first began and fulfills our vision to see these needed facilities built on Navajoland to combat the rising crime rates,” Shirley said.

He noted that the bank had agreed to respect the tribe’s sovereignty, including a pledge to use the tribal courts in case of a dispute.

Shirley said KeyBank agreed to the provision after doing its own evaluation of tribal court rulings.

“KeyBank took the time to conduct research and determined that our Navajo legal system is strong and stable,” he said.

About 20 years ago, a similar study was done and determined that in cases involving a dispute between the tribe and an outside entity, the Navajo Nation Supreme Court ruled for the Navajo side in all but one instance. In the one case won by a non-Navajo plaintiff, the company was never able to collect the money it was owed.

Key Bank officials, however, determined that the decisions in the tribal court system went about half the time to the tribe and the other half to the non-Navajo entity.

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Tribal Issues in New Arizona Immigration Law

Matthew L.M. Fletcher

Here are the materials:

Arizona Immigration Statutes Outline

Tribal Immigration Enforcement Issues

Navajo Tribal Identification

Navajo Pres. Shirley Uses Line Item Veto for First Time

Matthew L.M. Fletcher

From the President’s Office:

WINDOW ROCK, Ariz. – Navajo Nation President Joe Shirley, Jr., today signed Resolution CJN-25-10 into law while exercising presidential line item veto authority for the first time since the Navajo People approved it more than six months ago.

The new presidential authority saved the Navajo Nation $5,650,000 in spending. The spending would have tapped the Navajo Nation Department of Justice’s Contingency Management Fund.

In his first line item veto message to Navajo Nation Council Speaker Lawrence T. Morgan and the Council, the President said the line item veto of four components of the large spending bill was necessary to preserve the fund at a level essential to protect the Nation’s interests.

“There really are no monies,” the President said after signing the law. “They’ve been encumbered. That money from the contingency fund is already obligated. The only resolution I didn’t line out is money for the kids in spite of the fact that there is no money.”

The Contingency Management Fund is reserved for liabilities and claims owed by the Navajo Nation as determined by the Office of the Attorney General.

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Ninth Circuit Allows EEOC Claim against Peabody Coal to Proceed; EEOC and Navajo May Seek Injunctive Relief

Matthew L.M. Fletcher4 Comments

Ah, Rule 19!

Here is Judge William Fletcher’s opinion in EEOC v. Peabody Coal. Here are the briefs.

And supplemental authority filed by the Navajo Nation: Austin v Andrus Brief.

Tenth Circuit Vacates EPA’s Dependent Indian Community Determination in HRI v. EPA

Matthew L.M. Fletcher3 Comments

Here is the opinion of the Tenth Circuit sitting en banc. Five judges dissented. [Updated link here.]

Here are the en banc supplemental briefs:

HRI Supplemental Brief

States Amicus Brief

United Nuclear Amicus Brief

EPA Supplemental Brief

Navajo Nation Supplemental Brief

Pueblos Amicus Brief

American Indian Law Profs Amicus Brief [The court denied the motion to file this amicus brief. See opinion at 25 n. 7]

HRI Reply Brief

Our posting on the panel decision is here.

Navajo Reapportionment Map

Matthew L.M. Fletcher

From the Navajo Times via Pechanga:

The reapportionment map representing the plan approved Friday. PDFDownload a large-format PDF version of the map. (2.1 MB, requires Adobe Reader.)

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The Navajo Board of Election Supervisors approved on Friday a reapportionment plan dividing the Navajo Nation into 24 voting districts for a new, reduced tribal council election.

The board also voted to extend the filing deadline for council delegate candidates by one business day, to 5 p.m. Monday, June 14. This will give candidates at least a little time to acquaint themselves with the new apportionment plan, the board said.

“This is good,” said President Joe Shirley Jr., who presented the plan approved by the board. “This is something we should have done a long time ago. We are moving along and progressing.”
The board unanimously approved both measures.

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New Mexico Supreme Court Upholds State Hot Pursuit Criminal Search in Indian Country

Matthew L.M. Fletcher

But recognizes that the tribal government could enact legislation to prohibit such hot pursuits.

Here is the opinion in State v. Harrison: New Mexico Supreme Court Opinion.