Federal regulators abandoned a proposed survey of Native American cultural resources at a planned uranium mine site in southwest South Dakota recently, just days before a judge decided the survey is required by federal law.
The contradictory actions could further complicate and prolong a regulatory review process that is already nearly a decade old.
Powertech (USA) Inc., a subsidiary of Canada-based Azarga Uranium, wants to develop a mine 13 miles northwest of Edgemont, on the remote southwestern edge of the Black Hills. The project is named “Dewey-Burdock,” for two old town sites in the area.
The uranium would be mined by the “in situ” method, which involves drilling dozens of wells across a wide area. A liquid solution is pumped underground to dissolve the uranium and bring it to the surface, so it can be processed for use in nuclear power plants.
Contention over the potential presence of Native American burial sites, artifacts and other cultural resources within the 17-square-mile area of the proposed mine has been ongoing since Powertech applied to the U.S. Nuclear Regulatory Commission for a license in 2009. Nevertheless, the commission granted the license in 2014, even as a dispute about the lack of an adequate cultural resources survey was still pending before the commission’s Atomic Safety and Licensing Board.
In 2015, the board acknowledged the lack of an adequate cultural resources survey and directed the staff of the Nuclear Regulatory Commission to remedy the problem. The board and the commission also decided to leave Powertech’s license in effect while a remedy was sought (mining has never commenced, because Powertech still needs several additional licenses and permits from other federal and state agencies).
The main agitator for a cultural resources survey has been the Oglala Sioux Tribe, of the Pine Ridge Indian Reservation. The proposed mine site is about 50 miles west of the reservation but is part of the tribe’s traditional homelands.
Talks among Powertech, the tribe and the Nuclear Regulatory Commission about the potential methodology and scope of a cultural resources survey had been progressing for the past couple of years. But those talks broke down during meetings between commission staffers and tribal officials in June on the reservation.
On July 2, members of the commission staff told the tribe that efforts to conduct a cultural resources survey would be discontinued, because of fundamental incompatibilities in the approaches proposed by each side.
Then, on July 19, the Atomic Safety and Licensing Board set August and September deadlines for motions to potentially resolve the survey dispute without a new survey (some data on cultural resources is available from past field investigations that turned up dozens of archaeological sites within the boundaries of the proposed mine area).
While the survey talks were grinding toward their eventual breakdown over the past couple of years, there was also a court battle in progress, resulting from the tribe’s petition to the U.S. Court of Appeals for the District of Columbia. In the petition, the tribe sought a review of the Nuclear Regulatory Commission’s decision to leave Powertech’s license in effect.
On July 20, just 18 days after the Nuclear Regulatory Commission abandoned its effort to conduct a cultural resources survey, the appeals court’s three-judge panel issued an opinion. The opinion was filed by Chief Judge Merrick Garland — the would-be U.S. Supreme Court justice who was nominated during the waning days of the Obama administration.
Garland’s opinion said the Nuclear Regulatory Commission violated the National Environmental Policy Act — which is known by the acronym “NEPA” — when the commission decided to leave Powertech’s license in effect after acknowledging the lack of an adequate cultural resources survey. The opinion further noted that the commission’s decision in the Powertech matter had not been a “one-off” but appeared to be “settled practice.”
“The agency’s decision in this case and its apparent practice are contrary to NEPA,” Garland’s opinion said. “The statute’s requirement that a detailed environmental impact statement be made for a ‘proposed’ action makes clear that agencies must take the required hard look before taking that action.”
Elsewhere in the 34-page opinion, Garland noted that the Nuclear Regulatory Commission's decision to leave Powertech's license in effect was grounded in the tribe's inability to show that irreparable harm would result. Garland referred to the situation as a "classic Catch-22" for the tribe.
"But without an adequate survey of the cultural and historical resources at the site," Garland wrote, "such a showing may well be impossible. Of course, if the project does go forward and such resources are damaged, the Tribe will then be able to show irreparable harm. By then, however, it will be too late."
The court declined to vacate Powertech’s license, because of concerns about “disruptive consequences” — including a potential plummeting of the stock price of Powertech’s parent entity, Azarga Uranium. Rather than vacate the license, the court remanded the case back to the Nuclear Regulatory Commission “for further proceedings consistent with this opinion.”
But the recent trajectory of those regulatory proceedings — toward a resolution of the survey dispute, possibly without a new survey — could be at odds with the court opinion. And if the tribe is unsatisfied with the outcome of the survey dispute, the tribe could ultimately go back to court.
For now, the factions in the dispute disagree about the potential impact of the recent court decision and regulatory actions.
The tribe’s lawyer, Jeffrey Parsons, of the Western Mining Action Project in Lyons, Colo., sees no resolution in the near future.
“This process could go on for a long time,” he said.
Blake Steele, president and CEO of Azarga Uranium, issued a written statement describing the recent developments as "an opportunity to resolve the only remaining contention for the Company’s Dewey-Burdock NRC License in an expedited manner.”