A 13-year-old plan to mine for uranium in southwestern South Dakota has hit further snags that could prolong the regulatory consideration of the project for at least another year.
At issue is the lack of an adequate survey of the project area to identify sites of historic, cultural and religious significance to Lakota Sioux Native Americans, who controlled the area before it was seized by the U.S. government in the late 1800s.
The mining project has been pursued since at least 2005 by Powertech, a South Dakota-registered company that is affiliated with the publicly traded Canadian corporation Azarga Uranium. The plan includes drilling deep holes in a remote area near Edgemont and pumping a solution underground to dissolve uranium and bring it to the surface, for processing and eventual use in nuclear power plants.
Powertech earned a U.S. Nuclear Regulatory Commission license — one of numerous regulatory approvals necessary for the project — in 2014. But the Oglala Sioux Tribe, which is headquartered on the Pine Ridge Indian Reservation in South Dakota, claims the license was improperly issued without an adequate survey of tribal cultural resources as required by the National Environmental Policy Act.
The dispute is proceeding along dual tracks, within the bureaucracy of the Nuclear Regulatory Commission and in the U.S. Court of Appeals for the District of Columbia. There were significant developments in both venues recently.
Friday, the Nuclear Regulatory Commission issued a letter proposing a process for a cultural resource survey. The schedule for the process runs through May 2019.
The process would include hiring a contractor, meeting with tribal leaders, interviewing tribal elders and conducting a field survey. The contractor’s work would be billed to Powertech at an estimated cost of $250,000. The letter also suggests that Powertech consider reimbursing members of five or more tribes for their participation, including mileage, a per diem and lodging costs, plus a $10,000 honorarium for each tribe.
The letter asks for Powertech’s response by March 30.
Meanwhile, the U.S. Court of Appeals for the District of Columbia is considering the Oglala Sioux Tribe’s request for a review of the Nuclear Regulatory Commission’s actions. The court heard oral arguments Tuesday in Washington, D.C.
Many of the arguments from the lawyers and the questions and comments from the three-judge panel focused on whether the license should have been granted, and whether it should now be suspended or revoked, based on the lack of an adequate cultural resource survey.
The Oglala Sioux Tribe is represented by Jeffrey Parsons, senior attorney for the Western Mining Action Project in Lyons, Colo. He argued that because the license has already been issued and remains effective, Powertech could construct its mine and destroy sacred tribal sites before the sites are identified.
“The tribe is essentially being pushed to the edge of this cliff,” Parsons said, according to the live internet audio feed of the proceeding.
James Adler, an attorney representing the Nuclear Regulatory Commission, argued that the lack of an adequate cultural resource survey was not identified as a violation of the National Environmental Policy Act until a year after the license was issued. There was no obvious remedy for the violation at that point, Adler said.
But a judge challenged Adler by describing the survey requirement as an obligation to do a “hard look” at tribal resources.
“You have to first do the hard look before you do the federal action. And you’ve done the federal action before you finished the hard look,” the judge said.
Adler and an attorney for Powertech, Christopher Pugsley, of the Washington, D.C.-based firm of Thompson & Pugsley, each argued that the license does not put the tribe in immediate jeopardy of losing cultural resources, because additional regulatory approvals of the project are still required from entities including the U.S. Environmental Protection Agency, the U.S. Bureau of Land Management and the state of South Dakota. The project cannot move forward without those approvals, the lawyers argued.
Pugsley further argued that Powertech is facing substantial risk. He called Powertech a junior company with no cash flow that is burning through money from investors every month.
“If the license were suspended, vacated or revoked, the stock price of the company would plummet, and the company would either not be able to maintain operation, or would be subject to what I guess you could call a hostile takeover,” Pugsley said.
The judges will take the matter under advisement and could decide during the next few months whether to grant a review of the Nuclear Regulatory Commission’s actions.
Contact Seth Tupper at email@example.com