(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.
The Denver-based 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 Inc.
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.”
The agency 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.
After a 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.
The majority 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 community.”
Finding that Congress has never, throughout Section 8’s long history, designated it as Indian land, the appellate panel vacated the EPA’s final land determination.
“This ruling 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.”