EXTRACTING ENVIRONMENTAL JUSTICE —
THE NAVAJO NATION DEFENDS ITS URANIUM MINING BAN

Extracting some justice after so many decades of environmental injustice can be a daunting task. Just ask the Navajo Nation.
In the five months since the Navajo Nation Council voted overwhelmingly to ban uranium mining and processing anywhere in “Navajo Indian Country,” prospects of new mining have intensified, spurred by rising uranium prices and buoyed by regulatory rulings of state and federal agencies. Even the New Mexico Environment Department (NMED), which has trumpeted its environmental justice commitment with “listening sessions” and a gubernatorial executive order (see, Voices, vol. 6, no. 2), couldn’t resist taking what Church Rock Chapter called an “anti-Navajo” position in telling the U.S. Environmental Protection Agency (USEPA) that one of Hydro Resources Inc. (HRI) proposed mining sites in the chapter is not “Indian Country”.
But recently, the Navajo Nation went on the offensive to promote and protect its quest for a bit of justice after nearly 60 years of adverse economic, health and environmental consequences from uranium development. President Joe Shirley, Jr., who signed the historic measure into Navajo law on April 29, carried a simple message to the United Nations in June and to the U.S. Congress in September: Respect our inherent sovereign right to protect our resources and our people; leave our ban on uranium mining alone.
The message may be getting through. In June, Congressional conferees deleted a provision from their massive energy legislation that would have provided $30 million in federal “grants” to companies using in situ leach (ISL) technology to mine uranium. The defeat of the proposed subsidies was a huge victory for the Navajo Nation, grassroots Navajos and the environmental community, which had battled them for four years. And it represented an increasing awareness in Congress that the Navajo Nation is serious about saying ‘no’ to uranium development.
The outside world is also taking notice of the Nation’s extraordinary policy decision. In August and September, Navajo leaders were presented regional and international awards for their roles in passage of the Diné Natural Resources Protection Act (DNRPA) of 2005, the Navajo law banning uranium mining and milling. On the occasion of receiving the 2005 Nuclear-Free Future Award in Olso, Norway, President Shirley remarked, “We’d like to believe this law will stand. We need friends like you to stand with us.”

CORPORATE INTEREST IN NEW URANIUM MINING INTENSIFIES
Now at more than $30 a pound, its highest value since 1979, uranium has become an attractive commodity for investors with little knowledge of Navajo uranium history. As one on-line market analyst for ResourceInvestor.com wrote on September 23, “Over the last few years shares in uranium stocks have all made massive grains, a lot of them in the triple digits, [and] many pundits and analysts believe the party is far from over.” At least two mining companies have joined Hydro Resources, Inc. (HRI), in announcing acquisition of uranium properties in northwestern New Mexico and indicating their intention to develop them. SRIC’s analysis of company data and examination of land status maps indicate that most of those properties are in Navajo communities in the Eastern Agency; others are located on the northwestern flank of Mt. Taylor, or Tsoodzil (“Meadow Mountain” in Navajo), the southernmost of the Diné’s four sacred peaks.

Church Rock Chapter President Johnny Livingston (left) and local resident Larry J. King inspect a parcel of land targeted by Strathmore Minerals Corp. for potential uranium development. The site had extensive exploration drilling in the 1950s, '60s and '70s. Possible archeological and cultural resources sites had been flagged for further evaluation.

One of the firms, Strathmore Minerals Corp. (SMC) of Vancouver, British Columbia, opened a “uranium mine development office” in Santa Fe in August to promote its interest in uranium deposits in New Mexico’s Grants Mineral Belt. Press reports said Strathmore had met with Governor Bill Richardson’s office, but it wasn’t clear what promises — if any — the Governor or his advisors made. The news was significant enough for President Shirley to meet with Richardson in late August, pleading with him to support the Navajo Nation’s uranium ban. The president said the governor “assured him he would not take any action without first consulting with the Navajo Nation.” For his part, Richardson told public radio’s Democracy Now! on September 22 that he is “sensitive to what President Shirley told me,” but he stopped short of endorsing or otherwise supporting the Navajo uranium ban.
One of Strathmore’s properties is the former Phillips Petroleum Corp. Nose Rock mine located about 12 miles north of Crownpoint in the Becenti Chapter. Phillips sunk a 3,400-foot shaft on the property in the late 1970s, but never developed the ore body after the bottom fell out of the uranium market in 1980-81. Strathmore also says it has interests in 1,200 acres on U.S. Forest Service land near the town of San Mateo on the northwest flank of Mt. Taylor. Called the Roca Honda deposit, both Strathmore and HRI claim interests in the property. (The extent of a corporate relationship between Strathmore and HRI/URI is not revealed in the company’s publicly available data, but one of its technical board advisors is Ray Larson, a former URI executive.) The property is located only two miles from the 3,300-foot-deep Mt. Taylor underground mine, which was developed in the 1970s and early 1980s by Gulf Mineral Resources and later acquired by Chevron Resources, which produced high-grade ore from the mine between 1984 and 1990.

Strathmore’s most serious prospect, however, appears to be in the Church Rock Chapter on a 640-acre tract of U.S. Bureau of Land Management (BLM) land that is landlocked by Indian lands. The parcel is sandwiched between HRI’s proposed Church Rock Section 8 ISL mine and United Nuclear Corp.’s Northeast Church Rock underground mine, which was closed in 1983 and is now the subject of state and federal reclamation requirements. Strathmore announced on September 1 that it had hired a firm to conduct an archeological survey of the property, which Navajo Nation and BLM officials confirmed is Section 4 in T16N, R16W. In announcing its intent to survey of the property, Strathmore was careful not to mention its location is in a dependent Navajo community or acknowledge that the Navajo Nation had asserted jurisdiction over uranium mining of any type in off-reservation “Indian Country.” Rather, the company noted only that its “Church Rock property is situated south of the Navajo Reservation and immediately northeast of Hydro Resources Inc.’s uranium property.”

Community members and supporters joined Navajo President Joe Shirley, Jr. in Washington, DC to talk to Congress about the Navajo Nation’s ban on uranium mining. Pictured (l to r): Mitchell Capitan, ENDAUM; Dee Wanda Johnson; Dennison Smith, law professor, Virginia Tech; NMELC attorney Eric Jantz; attorney Keith Killian, Grand Junction, CO; Navajo presidential aide Cora Maxx Phillips; Jennifer McCall, Killian Law Firm; and Sister Rosemarie Cecchini, Gallup Diocese.

Whether Strathmore a serious mining company or is simply acquiring uranium properties for future sale to other firms is not yet clear. Its web site says Strathmore “is a Canadian based resource company specializing in the strategic acquisition and development of uranium properties . . . that offer investors high leverage to future rising uranium prices” (emphasis added). The company also said that it decided in March “to advance its core area uranium properties in New Mexico towards production. . ., [hiring] 2 experts with over 65 years of experience to facilitate the mine development process” (emphasis added).
Strathmore’s financial data reveal that the company has spent more on acquisition and development of its New Mexico properties than on any other of its properties in Saskatchewan, Quebec, Peru, Wyoming and Arizona. But neither its financial statements nor its web site indicate that the company actually extracts uranium by either conventional or solution mining methods. Nonetheless, one of its recent press releases stated that the company intends to use ISL mining to extract ore from its New Mexico properties. And SMC executives also attended a New Mexico Legislature committee meeting in mid-September where HRI and other industry officials touted the economic benefits to the state of new uranium mining.
Quincy Energy Corp., a Hancock, Michigan-based company with offices in Toronto and Vancouver, has “aggressively acquired drill proven uranium resources” on nearly 17,000 acres of uranium properties in New Mexico. Those properties appear to be located in Crownpoint, Mariano Lake, Smith Lake and Thoreau chapters. Two of its properties in the Crownpoint area overlap those claimed also by HRI, but any overt relationship between the two firms is not acknowledged by either company. (But like Strathmore, a former URI executive, William McKnight, Jr., a mining geologist, is listed as a member of Quincy’s technical board.) It is unclear if Quincy actually owns and operates producing mines or is simply acquiring gold and uranium properties for resale to investors. And like Strathmore, Quincy has not mentioned the Navajo uranium ban on its web site or in any of its press releases, even though Quincy executives also attended the September 16 New Mexico legislative meeting at Huerfano Chapter on the Navajo Nation, at which the DNRPA was discussed.
Hydro Resources Inc., meanwhile, continued to persevere in what is now its 17-year-old quest to open ISL mines in Church Rock and Crownpoint chapters. HRI is licensed by the NRC to conduct ISL mining and uranium processing at two sites in Church Rock and two in and near Crownpoint, but the license has been held up by the similarly undaunted 10-year legal challenge of Eastern Navajo Diné Against Uranium Mining (ENDAUM), SRIC, and the New Mexico Environmental Law Center (NMELC). HRI cannot begin ISL mining and processing at its Church Rock and Crownpoint ISL sites until the NRC administrative adjudication is finished and the company obtains an Underground Injection Control (UIC) permit from either the USEPA or NMED, whichever is determined to have jurisdiction. HRI has not applied for a UIC permit from USEPA, and the validity of a 1989 UIC permit for its Church Rock Section 8 mine issued by NMED’s predecessor agency was left in doubt by a January 2000 decision of the 10th Circuit Court of Appeals.

Pictured (l to r): Navajo presidential aide Cora Maxx Phillips; Chris Shuey, SRIC; Mitchell Capitan, ENDAUM; and Dennison Smith, law professor, Virginia Tech.

Nonetheless, HRI — which isn’t financially separate from its parent company, URI — remains a significant player in potential future uranium development in Navajo Country. In addition to its Church Rock and Crownpoint properties, URI has reported in its SEC filings on that it acquired “fee interest” in 177,000 acres of uranium properties in New Mexico in March 1997. It also lists two properties — West Largo and Roca Honda — located on the northwestern flank of Mt. Taylor. Another tract, the 640-acre Mancos property, is located on BLM land west of its Sections 8 and 17 sites in the Church Rock Chapter.
Unlike Strathmore and Quincy, URI actually has considerable experience producing uranium from four South Texas ISL mines since the late 1970s — an experience that has also included a long history of license violations, leaks and spills of mining fluids, difficulties restoring contaminated groundwater to baseline standards, and problems in maintaining reclamation and restoration bonds. But URI has been resilient, weathering the financial and regulatory storms of the past 25 years. In late-2004, the company opened its Vasquez ISL mine in Duval County, producing and selling uranium it actually mined for the first time since 1998. According to its August 15 report to the SEC, URI sold 144,660 pounds of uranium in the first six months of 2005, receiving an average of about $19 a pound on costs of about $12 a pound. By comparison, HRI has said its break-even price per pound at the Church Rock Section 8 site would be about $15. Resuming uranium production has helped the company raised about $14 million from stock sales this year alone.
Whether any of URI’s newfound investors and existing shareholders know about the Navajo uranium mining ban and its implications for whether HRI will ever be able to mine uranium from its properties in Navajo Country also is unclear. Like Strathmore and Quincy, URI/HRI has said nothing about ban in any of its financial or public statements released since May 1. It’s certainly had opportunities to disclose such critical information: URI filed SEC reports on May 16, July 28 and August 15 and issued press releases on financial matters on July 28 and August 12.

NAVAJO BAN NOT CONSIDERED IN NMED POSITION
As URI was selling uranium from its Texas operation, HRI was actively lobbying NMED to take a position on the whether the state or the USEPA should issue a UIC permit for the proposed Section 8 mine under authority of the federal Safe Drinking Water Act (SDWA). HRI wants New Mexico to have jurisdiction because HRI owns both the surface estate and the minerals underlying the 160-acre tract. The Navajo Nation has argued as far back as 1996, however, that the parcel is located in a dependent Indian community, Church Rock Chapter, and should be subject to federal regulation, or eventually tribal regulation should the Navajo EPA be delegated authority to implement and enforce UIC requirements on Navajo lands. (Federal and state UIC rules are applicable to ISL mining because it involves injecting chemicals into rock layers that are or may be underground sources of drinking water.)
Nonetheless, NMED Secretary Ron Curry obliged HRI’s request in a March 3 letter to USEPA regional administrator Wayne Nastri. Noting that HRI “has recently approached NMED” concerning a UIC permit, Curry asked EPA to “determine the dependent Indian community status for Section 8 . . . as required by the 10th Circuit Court of Appeals” in a January 2000 decision. The court ruled that EPA had lawfully determined in July 1997 that a dispute over the Indian Country status of Section 8 existed and that it had authority under the SDWA to assert jurisdiction over those lands on behalf of the Navajo Nation as long as the dispute continued.
But NMED did not stop at simply telling EPA to make a determination. Curry went on to assert NMED’s position that “Section 8 is not a dependent Indian community.” Curry’s letter cited the U.S. Supreme Court’s decision in the infamous 1998 Venetie case, which has been viewed by Indian law experts as narrowing the definition of “Indian Country” and restricting tribal and federal authority over non-Indians and non-Indian lands even when such lands are located in Indian communities.
In a July 27 letter to Curry, NMELC Attorney Eric Jantz, writing on behalf of ENDAUM and SRIC, charged that recent cases involving Navajo lands, not Venetie, are the controlling case law, and that under those rulings Section 8 meets all of the Supreme Court’s criteria for being a dependent Indian community. Jantz noted that Church Rock Chapter’s population is 97 percent American Indian (nearly all Navajo), that the community receives its services from the Navajo Nation, U.S. Bureau of Indian Affairs and the U.S. Indian Health Service, and that Section 8 is surrounded entirely by Indian lands of various designations. He also said that NMED’s position “is an affront to Navajo sovereignty and the citizens of Church Rock’s right to self determination,” noting that not only had the Navajo Nation Council enacted a ban on uranium mining and processing in “Navajo Indian Country,” but also that Church Rock Chapter had adopted resolutions opposing new uranium mining in the area in 2000 and 2003.
Church Rock Chapter President Johnny Livingston also took Curry to task for the state’s position. “It seems to me that you have never visited Church Rock or talked to the people here,” Livingston wrote in a July 20 letter. “If you had, you would know this is Navajo Country.” He explained the vast majority of lands in the community are occupied by Navajos or used by Navajos for grazing. He also noted uranium mining and milling permitted by the state in the 1970s and 1980s left widespread radiological contamination along roads and highways and in residential areas of the chapter. And he chided Curry for not seeking the Chapter’s input. “You chose to adopt the company’s position, not the community’s. You sent a copy of your letter to HRI, but not to us. I don’t know why you are taking such an anti-Navajo position, but that’s what it looks like to me.”
Curry told Jantz in an August 29 letter that NMED’s position “has consistently been that Section 8 is subject to the regulatory authority of the State of New Mexico,” and that any change in that position “would have rather large regulatory repercussions throughout the checkerboard area.” While he pledged “to work with the Navajo Nation . . . and the surrounding community to ensure protection of human health and the environment,” Curry did not address the applicability of the DNRPA or respond to the substantive elements of either NMELC’s or Church Rock Chapter’s previous letters. (By the end of September, Chapter officials said they had not received a response to Johnny Livingston’s July 20 letter.)
USEPA has indicated that it intends to issue a notice asking for public comment on the Section 8 jurisdictional issue, and would make a final determination after weighing those comments.

NRC RULES AGAINST INTERVENORS
The NRC’s Atomic Safety and Licensing Board ruled on July 20 that ENDAUM’s and SRIC’s technical and legal arguments that HRI’s ISL mines would contaminate underground sources of drinking water in violation of federal law “do not provide a basis for invalidating HRI’s license to perform ISL uranium mining” at the Section 17, Unit 1 and Crownpoint sites. The ruling came in response to the intervenors’ March 7 brief, a 1,200-page document that included testimony of seven different experts and hundreds of pages of supporting documentation. In August, the Licensing Board also dismissed the intervenors’ concerns that HRI and the NRC Staff had not demonstrated compliance with federal requirements protecting traditional cultural properties and archeological resources. The Board’s rulings on these issues did not address the Navajo uranium ban because the intervenors’ briefs were filed in March and April before the law was adopted by the Council. (The intervenors raised compliance with the uranium ban in their briefs and technical presentations on radioactive air emissions from Section 17 and the adequacy of the February 1997 Final Environmental Impact Statement for the project, both of which were filed in June. The Licensing Board is expected to rule on those issues this fall.)

NAVAJO NATION GOES ON THE OFFENSIVE
Beginning in June, President Shirley embarked on a campaign to educate the public, members of Congress, and the media on the Navajo Nation’s rationale for adopting the DNPRA. On June 22, he told the United Nations’ Educational, Scientific and Cultural Organization (UNESCO) in Paris, “Uranium mining has not sustained the Navajo people; it has brought only death, illness, degraded lands and polluted water supplies.” He said the Navajo Nation Council voted to ban uranium mining and processing “to protect our land and our water from being contaminated as it was in the past.”
Shirley found support for sustaining the Navajo Nation’s uranium mining ban among several members of Congress during meetings in Washington in mid-September. Representatives Patrick Kennedy of Rhode Island, Dennis Kucinich of Ohio, Jim Matheson of Utah, Rick Renzi of Arizona and Tom Udall of New Mexico all pledged to help protect the Navajo uranium ban from federal attack. Shirley was also assured by staff of the Senate Indian Affairs Committee chaired by Senator John McCain of Arizona that they would look into the extent to which various federal agencies are exercising their trust responsibilities to the Navajo Nation surrounding both past uranium impacts and proposed new mining.
Shirley told the congressmen and their staffs that Department of Justice procedures continue to thwart Navajo uranium miners and their survivors from receiving compensation payments for their work-related illnesses and deaths under provisions of the Radiation Exposure Compensation Act (RECA). He cited federal statistics showing that Navajos, who made up as much as a third of the uranium mining and milling workforce in U.S. between 1949 and 1971, have had only 8.4 percent of their compensation claims granted and have received only 11 percent of compensation awards. Shirley also told congressional leaders the NRC has given short shrift to ENDAUM’s and SRIC’s arguments that ISL mining in the Navajo context is not safe. “We feel that the process [NRC] used to approve the permits is skewed,” he said. “We feel that the NRC has been systemically biased” for HRI, relying on the “expert” testimony of HRI’s and URI’s executives who are heavily invested personally in the company.

THE OUTSIDE WORLD NOTICES
While industry and government have been slow to recognize the Navajo uranium ban, organizations in the U.S. and abroad have noticed. Between the end of April and the middle of June, enactment of the DNRPA received coverage in more than 65 media outlets nationally. In August, Navajo Nation Council delegate George Arthur, who sponsored the DNRPA, ENDAUM administrator Lynnea Smith of Crownpoint, and former SRIC Navajo Community Liaison, Harris Arthur, who passed away in December, received NMELC’s annual Karl Souder Water Protection Award for their roles in convincing Council delegates to adopt the uranium mining ban. In his acceptance remarks, George Arthur said, “there was a choice to be made — whether we make a dollar or survive for generations to come. We decided it was more important to have generations and generations after us.”

In late September, President Shirley received the Nuclear-Free Future Award from the Frank Moll Foundation For The Coming Generation and the International Physicians for the Prevention of Nuclear War. “Many of my people have died,” Shirley said in his acceptance speech in Oslo, Norway. “Many are dying today. Some are on their deathbed. Why continue to mine that which kills? So the Diné Nation said no more.” Shirley said that if uranium ISL mining is not stopped, the next generation of Navajos to be similarly affected will be the 15,000 people in the Eastern Agency who depend on the groundwater there for drinking water and economic development.

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