The reservation’s water supply runs right through the contaminated area.

Door Closing for Wyoming Lawmakers on Resolution Against the Department of Energy

Tristan Ahtone
3/3/12

With only a week to go until the legislative session is over, Wyoming lawmakers are reviewing a number of bills, including a joint resolution requesting Congress to provide for increased monitoring and funding for remediation of the Riverton uranium mill tailings site. The resolution also charges the Department of Energy, the agency responsible for cleanup, with demonstrating “an inability to carry out mandates of federal law in connection with the site and has engendered a climate of distrust, which negatively impacts the ability to reach a solution to remedy a clear health hazard to the residents of the Wind River Indian Reservation and residents of the State of Wyoming.”

The resolution was designed to allow legislators to assist tribal authorities in their dealings with the Department of Energy, and explicitly asks for Congress to provide increased funding and monitoring for the site; enact legislation requiring the DOE to work cooperatively tribal officials and state and local agencies; begin immediate remediation; and that Wyoming’s Secretary of State, Max Maxfield, put the resolution in the hands of President Barack Obama and the speaker of the House of Representatives, the Wyoming congressional delegation, and the Dr. Steven Chu, secretary of the Department of Energy.

“We’d like the Department of Energy to more aggressively handle that situation,” says Republican State Senator Cale Case. “We’re assisting tribal authorities in lending support to them in their assertion that this is a real problem and the Department of Energy hasn’t kept their promises and it’s not going like it’s predicted.”

During debate, Case told the Senate that the federal government expected the site to clean itself up within 100 years, but that hasn’t been the case. The uranium is left over from the ’50s and ’60s when Susquehanna-Western, left behind 1.8-million cubic yards of materials contaminated with uranium, uncapped and unlined until they were finally removed in the late 1980s.

“Pollution at the site has actually increased, especially as a result of the flooding we had in record amounts in 2010,” said Case.

Case isn’t the only one skeptical of the DOE’s assertion that the site will clean itself up naturally after 100 years. Tribal officials on Wind River question this as well, especially in light of recorded uranium spikes in DOE monitoring wells.

James Byrd is the Democratic Representative from Cheyenne. He says the measure is important because when the state gets behind these types of action, it gets the federal government to take notice.

“Basically what we’re trying to do is establish a position,” says Byrd. “A lot of times when we do this is to let the federal government know where we stand so that we can give some ammunition to our congressional delegation, or in other events, the governor if he’s going to meet with governors or other officials on the federal level. What it does is it officially gives him a tool in his toolbox to go and put forth a state platform.”

In February, Governor Mead sent a letter to Department of Energy Secretary Steven Chu expressing concern over the DOE’s assertion that the site will clean itself up, and that the department’s efforts may need to be reassessed. He also urged the DOE to “work collaboratively and in close communication with the tribes to reach acceptable, sustained, and well-understood site remediation.” In other words, get on with the work, and play nice with Wind River.

Wes Martel is co-chair of the Shoshone Business Council. He says the biggest issue at play now is jurisdiction.

“Any time anything effects trust resources within our exterior boundaries, we want our wind river environmental quality department to be the lead agency,” says Martel. “We want to make sure that that’s going to happen in the future, we want to make sure that when people deal with resources and minerals within the exterior boundaries that the tribes are the main party to be dealt with.

However when it comes to jurisdiction over these matters, as usual, complications arise in Indian country.

Michigan State University law professor Matthew Fletcher says, “The tribes that are sort of governing that reservation right now want to be the first responders, so to speak. The lead environmental enforcement agency or government, naturally, in their traditional homelands.”

Fletcher says since the 1970s the federal government has taken the lead in enforcement of clean air and water cases around the country. However if a state can prove that they can do a better job than the EPA they can get jurisdiction. This also holds true for tribes.

“The federal government can recognize the Indian tribes there as, essentially, having the same powers as state government,” says Fletcher. “It’s actually called Treatment as State Status, or TAS status. And once the federal government recognizes the tribe as having the same environmental enforcement capacity within its territory as a state, then the tribe has significant abilities.”

However, there has to be political will from state and federal officials to support it which can be hard to come by, especially when such issues like jurisdiction over uranium and most especially, Pavillion. At the moment the EPA has released data tentatively linking contaminated water in the town to hydraulic fracturing, and it seems that both state and federal officials are completely freaked about what impact the data could have on the industry.

“We have statutorily carved out that as a sovereign nation where the tribes are supposed to have supremacy in what goes on on the tribal lands,” says Byrd. “I would like to see us work seriously and diligently with them to look at these problems like the uranium tailings – the Pavillion problem is just one that, in my opinion, the state just kind of fumbled and didn’t give it the proper kind of attention that it should have. Then it got escalated to the federal level, which is unfortunate, because now we’re really just another suit at the table instead of just controlling the conversation and working directly with the tribal leaders and the residence.”

In the case of Pavillion, Treatment as State Status would be the first place the tribes could gain control. However, before the EPA can recognize TAS status, the tribe has to show that they have jurisdictional authority for the purposes of environmental enforcement. The way to do that is under what is generally known as the Montana 2 exception. As a general rule, tribes don’t have jurisdiction over non-tribal members unless the tribe can show that activities by a non-member on the reservation threaten the political integrity, economic security, or the health and welfare of the tribe. So for instance, in Pavillion, many residents on Wind River cannot drink local water possibly because of hydraulic fracturing, that type of environmental degradation effectively destroys large parts of the reservation.

“And that certainly implicates the health and welfare and political integrity and economic security of the tribe,” says law professor Matthew Fletcher. “It seems to me that if an entire reservation like Wind River, or good chunks of it, are going to lose a dramatic amount of their drinking water or have it substantially affected, this completely fits within Montana 2. They have a strong case, assuming the link between Fracking and the poor water quality, they have as strong a case as you can possibly get.”

But still, getting officials to agree to tribal control is a different story.

“I think there are way too many factors in the Pavillion,” says Republican Senator Kit Jennings. “Number one: is if you look at the way the EPA handled their so-called tests over this last summer… they did a very shabby job of going over there and trying to do that, and then one test out of three shows a little trace of probably what they put in when they completed the wells, and they start yelling that it’s fracking. It’s absolutely ridiculous what’s going on and I think its way above the pay grade of anyone on the reservation. I think it should stick with the governor and the state and work through what we need to do over there.”

As for governor Mead, he refused to give comment for this story.

So where do things stand now: The Riverton Uranium Mill Tailings Remedial Action resolution has passed through the Senate and is now being debated by the House and is expected to pass. However, both the Pavillion and uranium situations bring to light possible future problems, especially if fracking becomes as important to national interests as uranium once was.

“You know at some point, I have a suspicion – and I don’t really know – but people who engage in fracking will be given a lot of the same immunities that the people who were doing uranium mining back in the ’50s and ’60s were given,” says Matthew Fletcher. “There are reservations, for example, in Utah, that are largely wastelands where all the toxic dumping was done from all over the country, and fracking could create that kind of circumstance in a lot of parts of Indian country.”

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