President of the Navajo Nation

On Behalf of

The Navajo Nation

Concerning the Abandoned Mine Lands Program and Tribal Primacy

Before the

Senate Energy and Natural Resources Committee

March 11, 2004

Chairman Domenici, Senator Bingaman, and members of the Committee. I am honored to present testimony today on behalf of the Navajo Nation. The issue before us, the Reauthorization of the Surface Mining Control and Reclamation Act of 1977(SMCRA), is of the utmost importance to the Navajo people, and we appreciate the opportunity to express our position to the Senate Energy and Natural Resources Committee. The Navajo Nation requests that the following written testimony be submitted into the record.

______________________________________________________________________________ Objectives:

(1) Increase and/or continue the allocation of the reclamation fees collected annually to the Tribes under Section 402(g)(1)(B);

(2) Promptly release the unappropriated balance of State and Tribal share allocations;

(3) Extend the reclamation fee expiration date to September 18, 2018;

(4) Allow Native Nations participating in SMCRA the opportunity to apply for Tribal primacy under Title V of SMCRA, subject to applicable SMCRA regulations.

(1) Increase and/or continue the allocation of the reclamation fees collected annually to the Tribes under Section 402(g)(1)(B).

Many Navajo people live in conditions that the everyday American cannot comprehend; our needs are not unique to Native Nations across America, but it is important to list these statistics so the committee has a better understanding of why funding under Section 402(g)(1)(B) is so important to the Navajo Nation.

(1) 56% of the Navajo population live below the poverty level, and the unemployment rate hovers around 50%; (2) 70% of the Navajo people lack domestic and municipal water for everyday use; (3) 78% of the public roads are dirt based, with little or no gravel; (4) 60% of the Navajo Nation lacks basic communication services; (5) 60% of the Navajo Nation lacks electrical power lines.

I did not come here today to decry the substandard quality of life that exists on the Navajo Nation; however, I would like the members of this committee to know that through SMCRA the Navajo Nation has a vehicle to address these needs, and we have implemented projects in accordance with the priorities of SMCRA. The Navajo Nation has contributed an estimated $170M into the Reclamation Fee Collection Trust pursuant to SMCRA. The Navajo Nation’s share of the Reclamation Fee is approximately $87M, of which the Navajo Abandoned Mine Land Program has expended about $57M on AML reclamation efforts. SMCRA was amended in 1990 to include reclamation of abandoned mines such as uranium, silver, and limestone, which constitute a hazard to the public health and safety. Arguably, the most important section for Navajo has been the certification process under §411. This section was added to facilitate land and water projects, and public facility projects impacted by mining activities. In order to qualify under §411, the State or Tribe must be certified with completion of coal mine reclamation by the Secretary of Interior. The Navajo Nation applied and received its certification for completion in 1994. The Navajo Nation AML program has reclaimed over 1300 mine sites, and since many of the problem sites have been addressed, the Navajo Nation amended the Navajo Reclamation Plan in accordance with §411 of SMCRA to implement PFP’s (Public Facility Projects). Those chapters/communities that are impacted by present and past mining activities are eligible for PFP funding through a competitive proposal process. To date, the Navajo Nation, through the Navajo Nation Council Resources Committee, selected and approved 31 PFP’s through partnership and leverage funding. These PFP’s are funded by the 50% of reclamation fees collected annually on the Navajo Nation pursuant to §402(g)(1)(b) of SMCRA. The PFP’s develop infrastructure such as roads, waste management systems, and water services. The Navajo Nation has complied with the requirements of SMCRA and we have properly utilized our share of reclamation fees in accordance with the priorities set forth in SMCRA. The Navajo Nation strongly opposes any amendment to §402(g)(1)(b) that will deny us our reclamation allocation and divert it to states who have not yet completed reclamation activities. We believe it fundamentally unfair to punish a certified tribe (like the Navajo Nation) by taking the annual reclamation fees we contribute to the AML fund and redirecting it to States that are not certified. This would effectively penalize the Navajo Nation for taking the responsibility to reclaim the most hazardous and harmful externalities associated with mining on its land. There is not a state in the union that faces the vast array of infrastructure problems confronting the Navajo people; we desperately need our allocation of the reclamation fees available under §402(g)(1)(b) and we urge the committee to raise the tribal share of the reclamation fees so we may confront our infrastructure problems. At the very least, we recommend that tribes continue to receive the 50% allocation currently authorized under SMCRA. It is vital that Native Nations continue to receive their share of allocations at a rate of 50% or greater. We recognize the need to address problem areas in the Eastern States; however, we believe that these priorities can be met without punishing tribes and other states. The Thomas bill, S. 2086 , strives to strike such a balance. The Administration bill, S. 2049, sponsored by Senator Specter, completely eliminates the State/Tribal share allocation and we cannot support such a proposal.

(2) Promptly release the unappropriated balance of Tribal and State Share allocations Since the inception of the program, the Navajo Nation’s share of the reclamation fee is $87M. We have expended approximately $57M on AML reclamation efforts. The Navajo Nation balance of approximately $30M sits idle in the Federal Treasury and has not been allocated to us. We request the prompt return of our trust fund balance. S. 2086 and S. 2049 address the return of our trust fund balance in different ways. S. 2086 would return our balance to us by the end of 2004 through a provision authorizing payments to certified States and tribes that do not have lands available under the Mineral Leasing Act. S. 2049 authorizes a payout of the balance over ten years; however, the Navajo Nation cannot support this alternative if it will eliminate our allocation of the annual reclamation fees available under §402(g)(1)(b). The Navajo Nation desperately needs our trust fund balance to address many of the infrastructure problems mentioned above and we request that our balance be returned to us in an expeditious manner so we can address these concerns.

(3) Extend the Reclamation Fee expiration date to September 30, 2018. We are here today because the expiration date is due to expire September 30, 2004. We respectfully urge the committee to extend the expiration date to September 30, 2018. We believe this will allow OSM enough time to meet their goal of cleaning up priority sites and allow States and Tribes to achieve the goals that SMCRA was intended to accomplish.

(4) The Navajo Nation requests that tribes participating in SMCRA be treated on equal footing with the states and become eligible to apply for Tribal Primacy under Title V of SMCRA, subject to applicable SMCRA regulations. This committee is well aware of the struggles facing Native Nations in their push towards self-determination. Regretfully, the word has lost its meaning when it applies to the relationship between Native Nations and the Federal Government. Mr. Chairman, we believe that it was the original intent of the authors of SMCRA to treat Indian Tribes on equal footing with the states in regards to tribal primacy. For example, I reference Conference Report No. 95-337 from July 20th, 1977, a conference that you were a participant in Mr. Chairman. On page 114 of the report the comments for Section 710 read as follows: “The House bill was adopted by the Conferees. It was identical to the language reported by the Senate Energy and Natural Resources Committee. However, the Senate had replaced this section with a new Title VIII which would have treated Indian tribes in much the same way as States are treated under the Act, in particular by allowing tribal authorities to submit regulatory programs for approval by the Secretary. The Conferees rejected this Senate approach, agreeing instead to the House bill in requiring that a study be carried out by the Secretary and that operations on Indian lands comply with the performance standards of the act.”

Instead, Section 710 of SMCRA directed the Secretary of the Interior (Secretary) to consult with Indian tribes, and submit a report to Congress on the question of regulation of surface mining on Indian lands. The purpose was to propose legislation authorizing Indian tribes to elect to assume regulatory duties over the administration and enforcement of surface mining of coal on Indian lands. Today, almost 27 years have passed since SMCRA became law and the Department of Interior (DOI) has failed to propose legislation allowing Native Nations to assume primacy for regulation of surface coal mining activities on their lands. The failure to propose such legislation is not due to a lack of cooperation between the Navajo Nation and DOI. See the following timeline: • 1982: OSM entered into a Cooperative Agreement with the Navajo Nation, Crow, and Hopi Tribes, funding them to conduct several activities, including developing tribal regulations on surface mining that are necessary prerequisites for assuming tribal primacy; • 1984: DOI provided a report to Congress which recommended Tribes be allowed to obtain approval of either partial or full regulatory programs; • 1984: Congress passed Public Law 100-71 on Tribal Primacy authorizing the AML programs for the Navajo Nation, Hopi, and Crow tribes without first obtaining regulatory programs; • 1986: The Government Accounting Office recommended to the House Committee on Interior and Insular Affairs that regulatory capabilities of tribes to assume primacy should be assessed; • 1987: OSM responds to the Committee with a report assessing the readiness of the three tribes to assume primacy. OSM stated that the Navajo Nation was the most qualified tribal entity to assume primacy for control of the surface coal mine reclamation. • 1989: Funding for the Title V program under the Cooperative Agreement with OSM ceased in 1989, because DOI abandoned the pursuance of tribal primacy legislation; • 1992: Congress passed the Energy Policy Act, which amended Section 710 of SMCRA and provided for annual coal grants to four coal owning tribes. House Report No. 102-474(viii) p. 2313, reveals the intent behind Title XXV, §2514 of the Energy Policy Act of 1992, which amended §710 of SMCRA: “This section provides that the Navajo, Hopi, Northern Cheyenne, and Crow tribes will be eligible for funding to operate tribal offices of surface coal mining regulation. Each of these tribes have significant coal resources located on their reservations. Funding for these offices will allow for the development of tribal regulations and provide tribal employment and training in the area of mining and mineral resource regulation. The Committee intends these offices to work cooperatively with the Office of Surface Mining Reclamation and Enforcement of the Department of Interior in all matters relating to surface mining activities on Indian lands. The Committee intends this section to provide each of the tribes with the ability to be more involved and gain expertise in the regulatory activities regarding surface mining operations on Indian lands. This section is not intended to alter, expand, or diminish the current regulatory jurisdiction of these tribes over all lands within the exterior boundaries of their reservations.”

• 1996: After four years, DOI finally provided limited funding to the coal owning tribes in accordance with the Congressional amendment to §710.

The Navajo Nation has fully cooperated with OSM and we believe we have the necessary expertise to assume full primacy over all regulatory and inspection aspects of surface mining on the Navajo Nation. However, OSM has failed to introduce or advocate on behalf of Tribal primacy legislation. For 20 years now, Congress has been in receipt of the Secretary’s recommendations regarding tribal primacy. OSM is not authorized to accept applications for primacy until authorized by Congress. Since 1977, twenty-four coal mining states have obtained primacy from OSM for the authority to regulate, inspect, and enforce surface coal mining within those states. The Navajo Nation is ready to assume primacy over the regulation and enforcement of coal mining on our land. We realize that there are details and jurisdictional issues that must be addressed by the tribes and OSM when tribes apply for primacy. However, we are simply requesting that Congress allow tribes the opportunity to apply for tribal primacy and become eligible to receive 100% of the cost associated with the approved program. We believe that we can regulate and inspect our mines in a quick and efficient manner. OSM cannot respond to inspection requests and managerial duties in an expeditious manner because the three nearest offices are in Denver, Colorado, Farmington, New Mexico, and Albuquerque, New Mexico. The Navajo Nation can respond and oversee the operations of Navajo mines quickly and responsibly, with less cost to the Federal government. Therefore, we urge this Committee to adopt the following proposed amendment to §710 of SMCRA:

Section 710 (J) “Notwithstanding any other provision of this section, Indian tribes may be considered as states under Sections 503 and 504, and apply for and receive primacy under the provision of 504(e). Grants for developing, administering , and enforcing tribal programs shall be provided in accordance with the provisions of Section 705, except that tribes shall be eligible for 100% of the cost of developing, administering, and enforcing the approved program.”

Without the approval of Congress, Native Nations will never be able to apply for primacy and regulate surface coal mining and reclamation operations on their lands. We respectfully request that this committee approve our proposed amendment.

Conclusion: The Navajo Nation fully supports the reauthorization of SMCRA. The infrastructure on Navajo land is in desperate need of improvement and SMCRA helps facilitate our infrastructure needs through use of Public Facility Projects under §411. This is apparent by the recent funding of 31 Public Facility Projects through partnership and leverage funding. The Navajo Nation does not have the infrastructure capabilities that the states have. West Virginia (a state roughly the same size as the Navajo Nation) has 18,000 miles of paved road. In comparison, the Navajo Nation has 2,000 miles of paved roads. We have been a faithful and active participant in SMCRA, and we ask that you increase and/or continue our Tribal share allocation under §402(g)(b)(1), promptly release our unallocated trust fund balance of $30M, and extend the expiration date to September 30, 2018. In closing, we urge the Committee to adhere to the principles of self-determination and allow the Navajo Nation and other Native Nations the opportunity to apply for primacy under Section (s) 503 and 504 of SMCRA. We have been working towards assuming primacy for almost 30 years, allow us to take the final step. I thank the Committee, on behalf of my people, for the opportunity to testify today and we look forward to reaching a workable solution concerning the SMCRA reauthorization.