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Notice

Safe Drinking Water Act Determination; Underground Injection Control Program, Determination of Indian Country Status for Purposes of Underground Injection Control Program Permitting

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of prospective determination.

SUMMARY:

EPA must determine whether any of the approximately 160 acres of land located in the southeast portion of Section 8, Township 16N, Range 16W, in the State of New Mexico, is part of a dependent Indian community under 18 U.S.C. 1151(b) and, thus, considered to be “Indian country.” This determination is necessary in order to establish whether EPA or the New Mexico Environment Department is the appropriate agency to issue a particular underground injection control permit under the Safe Drinking Water Act. EPA is seeking comments and information from the public and all interested parties regarding the possible Indian country status of this land and is Start Printed Page 66403considering whether to hold a public hearing on the matter.

DATES:

Comments and information on this matter, and any request that a public hearing be held, must be received by January 3, 2006. EPA will consider all timely comments and information that pertain to the Indian country status of the land in question.

ADDRESSES:

Written comments should be submitted to David Albright, Ground Water Office Manager, at U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street, Mail Code: WTR-9, San Francisco, CA 94105. You may also submit comments by fax at 415.947.3549 or by e-mail at albright.david@epa.gov.

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FOR FURTHER INFORMATION CONTACT:

David Albright, at albright.david@epa.gov, or 415.972.3971.

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SUPPLEMENTARY INFORMATION:

Hydro Resources, Inc. (HRI) proposes to operate a uranium in-situ leach mine on an approximately 160-acre parcel of land located in the southeast portion of Section 8, Township 16N, Range 16W in the State of New Mexico (“Section 8 land”). HRI must apply for and receive an underground injection control (UIC) permit under the Safe Drinking Water Act (SDWA) to conduct its mining activities. The State of New Mexico has been authorized by EPA to administer the SDWA UIC program in the State, but that authorization does not extend to Indian country. Due to the State's lack of authorization in Indian country and as a result of a court decision discussed below, EPA must determine whether or not the Section 8 land is Indian country as defined by 18 U.S.C. 1151. EPA is seeking comments and information from the public and all interested parties regarding the Indian country status of the land HRI intends to use for its mining activities. Additionally, recognizing the U.S. Department of the Interior's expertise in these matters, EPA is soliciting the views of and working with the Department.

In the late 1980s, HRI sought an UIC permit for its property located within Section 8. The land is located in an area commonly referred to as the “Eastern Agency of the Navajo Nation” and the Navajo Nation has historically asserted that the land in question is a dependent Indian community. After considering materials submitted by the Navajo Nation and the New Mexico Environment Department (NMED), EPA determined that the Indian country status of the Section 8 land was in dispute and, thus, that EPA would be the appropriate agency to issue the SDWA UIC permit. The State of New Mexico and HRI challenged EPA's determination with respect to the Indian country status of the land in question. In 2000, in HRI v. EPA, 198 F.3d 1224 (10th Cir. 2000), the United States Court of Appeals for the Tenth Circuit upheld EPA's decision to implement the UIC program throughout HRI's Section 8 land because the Indian country status of that land was in dispute. The Court remanded the matter to EPA to make a final administrative decision on the Indian country status of the disputed land.

Recently NMED received a request from HRI for an UIC permit to operate a uranium in-situ leach mine in Section 8. As a result, NMED has formally requested that EPA make a decision on the Indian country status of the Section 8 land. EPA's decision whether the land at issue is Indian country will determine whether EPA or NMED is the appropriate agency to consider the permit request from HRI.

The United States Supreme Court in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), identified two requirements for determining whether land constitutes a dependent Indian community under 18 U.S.C. 1151(b): (1) Whether land has been validly set aside by the Federal government for the use of Indians and (2) whether that land is subject to federal supervision. Additionally, the court in HRI v. EPA noted that, prior to Venetie, the Tenth Circuit Court of Appeals required a community of reference determination as the first step in determining a dependent Indian community. It also concluded that, because the Supreme Court in Venetie was not presented with the question of the proper community of reference and did not speak directly to the propriety of a community of reference analysis, Tenth Circuit precedent continues to require a community of reference analysis.

To ensure EPA has all possible relevant information for making its determination on the Section 8 land status, EPA requests that the public submit information on the following items: the nature of the area in question; Indian and non-Indian land uses; relevant aquifer uses; land ownership patterns; use of area infrastructure and services by Indians and non-Indians; the relationship of inhabitants in the area to Indian tribes and to the Federal government; activities of government agencies toward the area; elements of cohesiveness manifested either by economic pursuits in the area, common interests, or needs of inhabitants supplied by the locality; whether any lands have been set apart for the use, occupancy, and protection of dependent Indian peoples; whether that land is subject to Federal supervision; and any other relevant information that might assist EPA in making its determination.

EPA welcomes written comments and information from the public and interested parties on whether the Section 8 land constitutes a dependent Indian community in whole or in part. At this time, EPA is limiting its analysis to the question of whether the Section 8 land is a dependent Indian community and, thus, Indian country and will not consider any issues, information, or comments regarding the permitting of mine operations on the Section 8 land. As part of the determination process, EPA is also consulting with the Navajo Nation.

If there is sufficient public interest and a request is made, EPA may consider holding a public hearing to elicit further input from the public on this matter. Such a hearing would not constitute a formal adjudication, but rather would provide an informal opportunity for the public and interested parties to provide additional comments and information.

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Dated: October 24, 2005.

Wayne Nastri,

Regional Administrator, Region IX.

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[FR Doc. 05-21822 Filed 11-1-05; 8:45 am]

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