Denver Appeals Court Jeopardizes Navajos? - 1st Native Veterans Affairs Ass't Sec'y Sworn In
By Kathy Helms
CHURCHROCK – The 10th Circuit Court of Appeals in Denver has upheld a Nuclear Regulatory Commission license issued to Uranium Resources Inc. in 1998, which would allow its subsidiary, Hydro Resources Inc., to mine uranium in Churchrock and Crownpoint.
However, Judge Carlos F. Lucero, in a stinging dissent, disagreed with the majority’s decision that HRI did not have to comply with federal limits on radiation releases from existing mine waste at the Churchrock Section 17 proposed in-situ leach mine site.
“Because the majority’s decision in this case will unnecessarily and unjustifiably compromise the health and safety
of the people who currently live within and immediately downwind from Section 17, I must respectfully dissent,” Lucero wrote in the 2-1 opinion.
“The NRC’s erroneous decision and the majority’s endorsement of that decision will expose families [living near Section 17] to levels of radiation beyond those deemed safe by the NRC’s own regulations, jeopardizing their health and safety.”
The license allows for the production of up to 1 million pounds of uranium per year from Churchrock until the company successfully demonstrates that it can return the groundwater to pre-mining conditions, after which mining on other properties can begin and production can be increased to 3 million pounds per year.
“This ruling is a major breakthrough for URI and upholds the NRC license that took us 10 years to obtain and as many to address in supplemental reviews and litigation,” said Don Ewigleben, president and CEO of Uranium Resources.
New Mexico Environmental Law Center of Santa Fe represented petitioners, Eastern Navajo Dine Against Uranium Mining – a Navajo community organization – and Southwest Research and Information Center, a non-profit environmental education organization. DNA-People’s Legal Services of Window Rock represented local residents Marilyn Morris and Grace Sam. The Navajo Nation is an intervenor in the case.
Petitioners claim the NRC, in issuing HRI's license, violated the Atomic Energy Act, which sets forth specific requirements an applicant must meet before obtaining a license, and the National Environmental Policy Act, which requires an agency give a “hard look” at the environmental impact of the proposed action.
HRI applied for a license in 1988 to conduct in situ, or ISL, mining at four locations in McKinley County. Two of the sites, Sections 8 and 17, are adjacent to each other in Churchrock. Two other sites are located in Crownpoint.
Eric Jantz, lead attorney on the appeal, said petitioners are “very disappointed” in the court’s decision. “The majority passed up the opportunity to protect the health and safety of the people of Crownpoint and Church Rock – because the NRC won’t.”
Jantz noted that though the license authorizes ISL mining at all four sites, the panel’s ruling on groundwater restoration and financial assurance mentioned only the Churchrock Section 8 site, while its ruling on radioactive air emissions applied only to Churchrock Section 17.
David Taylor of Navajo Department of Justice, said the Navajo Nation is “disappointed by the decision of the panel, gratified by Judge Lucero's dissenting opinion, and look forward to discussing the matter with the petitioners' attorneys.”
The company still needs an underground injection control permit before development can begin at the Churchrock project. The question of who has jurisdiction to issue the permit also is under appeal.
Oral arguments on the jurisdictional issue were presented Jan. 12 in an en banc, or full court, review of the April 17, 2009, ruling by a three-judge panel that jurisdiction to issue the permit rested with the U.S. Environmental Protection Agency because HRI’s Section 8 land is in Indian Country.
“We believe that a resolution to this matter will be positive,” URI's Ewigleben said. “We intend to continue our discussions with all stakeholders in order to find a means for all to benefit and that further litigation can be avoided. We are beginning to see progress in this area and continue to believe uranium mining will be part of the state’s future”
Jantz noted that at least 850 people live within 5 miles of the two proposed Churchrock ISL sites – a concern Lucero also raised in his dissent.
“I have never really read – and I certainly haven't been a party to – a case where the dissenting judge has been really so blunt about the majority's opinion. Judge Lucero says right out that the NRC is not doing its job to protect the health and safety of the folks in Churchrock and the majority opinion allows that injustice to continue. It's pretty amazing,” Jantz said.
“We remain concerned that HRI seeks to mine uranium within one-half mile of two of Crownpoint’s municipal water supply wells, a proposal that is unprecedented in the ISL industry in the U.S.”
Rick Van Horn, senior vice president of operations for URI, said the company has done extensive studies that support the NRC's decision. The company does not agree with the dissenting opinion.
“We believe the NRC's take on the impact of background radiation is correct. There's always a dissenting opinion, but we are pleased we got this ruling that upholds our NRC license. We thought that the NRC license was issued properly, and what the court has done is they have verified that.”
URI has done studies on Section 17 that haven't been released yet, but that also back up the NRC license decision, Van Horn said. “At the national level we seem to be pursuing nuclear power. The thing we need to do is connect the dots so everybody understands that a nuclear power plant doesn't work unless you have uranium to burn in it.”
Chris Shuey of SRIC said plaintiffs are still discussing whether to live with the decision or petition the full court to review the case. “The decision just came out so we haven't made that decision. That's going to be the next decision on our part.”
Jantz said his clients' commitment to resisting any new uranium mining hasn't changed. “This case is one of many opportunities to stop HRI. I've talked to all of the Law Center's clients and they have said they are going to take every opportunity to stop this.”
In his dissent, Lucero said petitioners should be able to rely on the NRC to properly interpret statutes and agency regulations designed to protect the public’s health and safety. “Instead, the NRC has abandoned its statutory commitment ... and has rendered this community vulnerable to the ill effects of dangerous radiation,” he said.
“My respected colleagues compound the NRC’s error by failing to adequately review the agency’s action,” he added, noting the NRC issued HRI’s license at Section 17 using an interpretation of law that is inconsistent with the text of the regulation.
Lucero said the court should remand the NRC decision to the agency to reconsider its licensure of HRI. “Because the majority’s decision compounds past injustice by committing legal error, I respectfully dissent.”
FIRST ASSISTANT SECRETARY FOR NATIVE AMERICAN VETERANS AFFAIRS SWORN IN
Submitted by Monica Davis
SACRAMENTO — A group from the Tule River Reservation took a trip to Sacramento last week to play a major role in the swearing-in of Pedro Molina, the first Assistant Secretary for Native American Veterans Affairs in the nation.
At the ceremony, Curly Santos, Emo Alvarado, Adam Christman and Koda Bell of the Painted Rock Singers performed the flag song.
The Tule River Native Veterans Post 1987 conducted the presentation of colors in conjunction with the Pacific Region of the Nation American Indian Veterans.
The following 11 members of Post 1987 participated in the ceremonial presentation: Commander Stan Santos, Joe Martinez, Nick Encinas, Treasurer Matt Carabay, Louie Espinoza, Henry Balangue, Lieutenant Clay Garfield, Paul Lara, Danny Franco, Albert Quintero and Frank Silvas.
Also prior to Molina’s appointment was a performance by traditional cultural dancers, a blessing, a prayer, a veteran’s warrior song and the welcome by Roger Brautigan, Secretary of the California Department of Native American Affairs.
Molina, appointed by Gov. Arnold Schwarzenegger, has served the U.S. Department of Veterans Affairs as American Indian program manager and marketing and community relations representative since 1998.
He previous held the positions of minority veteran program manager from 1995 to 1997 and Hispanic program manger from 1975 to 1995.
Molina, who served in the U.S. Army from 1970 to 1973, is a member of the Yaqui Nation from Tuscon, AZ.
TO SUBMIT an ARTICLE, OPINION PIECE, COMMENTS to the Native Unity Digest, e-mail firstname.lastname@example.org.
NATIVE UNITY - A place for Native American Peoples to solidify their tribes to make a positive impact on the cultural, social, economic and political fabric of American society and a place for non-Natives to better understand the ways of the American Indian.
News Blog - American Indian Report - AIR BLOG
THE BUFFALO POST - Missoulian Montana's Native News Blog about Native People And The World We Live In.
Check Out NATIVE PRIDE- It's a great site!
NATIVE AMERICA, DISCOVERED AND CONQUERED
PATHOLOGY.ORG - Up-to-date informmational database on general health and disease information, medical schools and medical resources.
FOR ANNIE'S NATIVE CELEBRITY NEWS - go to www.nativecelebs.com
CATCH COLORADAN PETER JONES AT:
SUPPORTING NATIVE AMERICAN/FIRST PEOPLE - ARTISTS, FILM MAKERS, ENTERTAINERS, ETC. http://www.krystynmedia.blogspot.com.