Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 10:00 AM

Joe Shirley, Jr.



JOE SHIRLEY, JR.                           FRANK J. DAYISH, JR.
      President                                  Vice-President


Testimony of Joe Shirley, Jr
President of the Navajo Nation


Before the


Committee on Energy and Natural Resources Committee


United States Senate


Concerning the
Reauthorization of the Surface Mining Control and Reclamation Act of 1977


September 27, 2005
Thank you for the opportunity to submit this testimony for the record concerning the Navajo Nation’s position on the reauthorization of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), Public Law 95-87.  The purpose of this hearing is to discuss two pieces of legislation that address SMCRA; S. 1701 and S.961 both titled the “Abandoned Mine Land Reform Act of 2005.”  I would like to discuss the position of the Navajo Nation regarding SMCRA reauthorization in general, the beneficial uses of the Abandoned Mine Land (AML) funds, and the expansion of SMCRA to allow the Navajo Nation to finally apply for the ability to regulate mining activities on Navajo land. 
 The Navajo Nation is the largest federally recognized Native American Tribe in the United States with close to 300,000 Tribal members, and a sovereign territory roughly equivalent in size to the State of West Virginia.  The Navajo Nation is one of three coal-producing Tribes in the country along with the Hopi Tribe and the Crow Tribe.  While the Navajo Nation has benefited financially from mining on our lands, we have also experienced the negative effects of what mining has left behind.  As companies folded their mining operations, many of them simply removed their machinery and left open scars behind.  Each abandoned mine presents a physical and environmental, and in some cases a radiological, hazard for the Navajo people and our land. 
 Mining companies have reaped the benefits of Navajo coal for decades to fuel coal-fired power plants that have aided the rapid expansion of the American Southwest.  While the coal mining companies and the power plant operators have earned tremendous profits, and the economies of Phoenix, Albuquerque, and Las Vegas, among other population centers, have boomed, the Navajo Nation, the home to this precious resource continues to exist in a condition that most Americans would find deplorable.  The majority of Navajo people live without the modern conveniences of electricity, running water, and sewage systems.  The unemployment rate on the Navajo Nation hovers around 50%, while the poverty rate is approximately 56%.  The State of West Virginia, which as noted earlier is approximately the same size of the Navajo Nation, has 18,000 miles of paved road; the Navajo Nation has only 2000 miles of paved roads.
 The reason for presenting these statistics to you today is less to use this hearing as an opportunity to illustrate the dire situation faced by so many Navajos, but to point out that the companies that have for decades come in and taken our coal have given so little back to the communities which have been affected by their activities.  They have polluted our water, soil, and air, and have done little to rectify the communities or the sites they have disturbed when they leave.  The issue of abandoned mines is more than just a problem with the mines themselves, although the environmental and physical hazards posed by many of the mines are severe, the problem is how do you put communities back together when the mining companies simply walk away?
 SMCRA presents a way of helping these communities.  Through the AML fee collection the Navajo Nation has contributed approximately $186 million to the AML Trust Fund, of which the Nation has been entitled to an estimated $93 million.  The Navajo Nation’s total expenditure of AML funds for reclamation and other projects is approximately $62 million.  Since 1994, the Navajo Nation has been a certified Tribe, meaning that it has completed the rehabilitation of its abandoned coal mines and is now allowed to use its Tribal share of the reclamation fee for Public Facility Infrastructure Projects (PFPs) to help communities that have been impacted by mining activities pursuant to §411 of SMCRA.  
 The Navajo Nation currently has an unappropriated AML trust fund balance of approximately $32 million that the U.S. Office of Surface Mining Reclamation and Enforcement (OSM) has not yet dispersed.  This is a small fraction of the overall balance of the AML Trust Fund, but for the Navajo Nation the rightful disbursement of this money represents a tremendous opportunity to help the Navajo people that have been affected by coal mining activities.  No one would argue that the AML Trust Fund has been dispersed efficiently, but it is essential to the Navajo Nation that this fee continues and that the Navajo Nation be allowed to use its Tribal share to further develop these PFPs.

The Navajo Nation Position in Brief
In recognizing the importance of the reauthorization of SMCRA to the Navajo people, the Intergovernmental Relations Committee of the Navajo Nation Council approved a resolution asking Congress to:
1. Increase, or at least continue, the allocation of the reclamation fee collected annually to the Tribes under §402(g)(1)(B);
2. Promptly disburse the unappropriated AML Trust Fund balances of States and Tribes;
3. Extend the expiration date for the reclamation fee beyond September 2018;
4. Continue to allow the flexibility to allow certified States and Tribes to spend AML funds pursuant to the goals and objectives of SMCRA;
5. Allow the Navajo Nation the opportunity to apply for primacy under Title V, subject to applicable SMCRA regulations.

The Navajo Nation urges the Committee to move quickly to reauthorize SMCRA.  While the program has been criticized for how it has released the funds to which States and Tribes are entitled, and for amassing such a large balance in the AML Trust Fund, currently at almost $2 billion, the program itself is well designed in concept if not in application.  Throughout the country, thousands of dangerous abandoned mines and impacted communities that have been affected by mining activity.  The portion of the AML fee that the federal government retains for its own uses provides the best way to encourage current mining companies to rectify the activities of past mining where there is little current mining to generate the fees necessary to mount a successful rehabilitation.  Similarly, the portion of the AML fee that is supposed to be returned to the States and Tribes allows those sovereign entities to clean up the past and present impacts of mining.  The Navajo Nation applauds the work of the Committee to streamline the AML program and to continue this rehabilitation opportunity so vital to the health and well-being of the Navajo people.

AML Fee Collection
The Navajo Nation urges the committee to increase, or at least continue, the collection and allocation of reclamation fees.  The AML fee collection and Tribal share allocation provide an important resource for the Navajo Nation to continue the clean up of abandoned mine lands and the rehabilitation of communities impacted by past mining.  Since the inception of this program, the Navajo Nation has reclaimed over 1,300 mine sites and addressed many of the physical and environmental hazards posed by these sites.  In 1990, SMCRA was amended to allow the use of the Tribal share to reclaim abandoned uranium and coppermines where they constitute a hazard to public health and safety, and to facilitate land and water projects and public facility projects in areas impacted by mining activities.  In order to use these funds for projects other than abandoned coal mine lands, a State or Tribe must be certified that it has completed its coal mine clean up.  The Navajo Nation received its certification in 1994.  Since that time, in compliance with §411 of SMCRA, the Navajo Nation has used the AML funds to aid communities impacted by past or present mining through a competitive proposal process.  If the project is approved, the Tribal share allocation is used to leverage further financing for the construction of infrastructure projects such as roads, electrical power lines, waste management, and municipal water systems. 
 The Navajo Nation will strongly support legislation that increases or continues the reclamation fee and continues the ability of States and Tribes to use the State or Tribal share for the clean up of abandoned mine lands and PFPs.  The Navajo Nation opposes any attempt to change §402(g)(1)(B) to no longer allow a certified State or Tribe to receive its 50% allocation and divert this money to States or Tribes that have not completed their reclamation activities.  A change of this sort would essentially punish the Navajo Nation for quickly and efficiently reclaiming its abandoned mine lands and receiving its certification status.
 The Navajo Nation desperately needs the allocation of reclamation fees to confront the vast infrastructure problems existing on Navajo land.  The Navajo Nation has complied with the requirements of SMCRA and has made tremendous strides in not only reclaiming abandoned mine lands but also in rehabilitating the communities effected by past and present mining activities.
 At a minimum, the Navajo Nation recommends to the Committee to maintain the 50% allocation currently authorized under SMCRA.  However, given the infrastructure problems faced by the Navajo Nation and other Tribes, we urge the committee to increase the Tribal share to help Tribes address these infrastructure issues.

Extension of the Reclamation Fee Expiration Date
Since September 30, 2004, the AML reclamation fee has continued through a series of congressionally mandated extensions.  The Navajo Nation requests that any reauthorization of SMCRA extend the expiration date to at least September 2018.  The number of abandoned mine sites in the U.S. is vast, and the impacts of past mining are felt in many communities.  An extension to 2018 would allow the OSM a sufficient period of time to rehabilitate their priority sites and allow States and Tribes to achieve the goals and objectives of SMCRA.

Trust Fund Balance
The Navajo Nation’s share of the unappropriated AML Trust Fund balance is currently around $32 million.  This is money that exists due to the coal mining activities on the Navajo Nation, and as such, the Navajo Nation has a right to expect this money will be retuned to the Nation as per SMCRA.  The Navajo Nation does not object to aiding the cleanup of abandoned mine sites across the nation using the portion of the AML fee allocated to OSM.  However, the Navajo Nation does object to having almost $32 million sitting in a trust fund for no appreciable reason to help shore up the federal budget when there are so many Navajo people and communities that can be helped by using this money as it was originally intended.  The Navajo Nation desperately needs this money to continue cleanup AML problems and infrastructure development. 

Within Indian Country, there is no greater principal than that of sovereignty and self-determination.  The ability of the Tribes to determine for ourselves what is best for our land and our people has been recognized repeatedly by the federal government.  Congress too recognized this principal in 1977 during the consideration and passage of SMCRA.  SMCRA allows States to apply for and receive the ability to regulate surface mining activities on State and Federal lands in §503.  While Congress seems to have been unsure of how best to allow Tribes to apply for and receive primacy over mining activities, it directed the Secretary to consult with Indian Tribes and conduct a study to determine how best to facilitate the granting of primacy over Tribal lands.  The purpose of this study was to propose legislation that would authorize Tribes to apply for and receive primacy to assume the regulatory duties over the administration and enforcement of surface mining on Indian lands in a manner to similar to that of States. 
 In the ensuing 28 years, the Secretary has failed to propose legislation that would allow Native Nations to assume primacy as directed by Congress.  The Navajo Nation has worked extensively with the Department of Interior to facilitate this proposed legislation.
• 1982:  OSM entered into a Cooperative Agreement with the Navajo, 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, 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 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.  Despite having 28 years to make their recommendations, OSM has failed to introduce or advocate on behalf of Tribal primacy legislation.  Congress has had the Secretary’s recommendations regarding Tribal primacy for 18 years; however, OSM is not authorized to accept applications for primacy until authorized by Congress. 
 Twenty-four coal mining States have obtained primacy from OSM for the authority to regulate, inspect, and enforce surface coal mining within those states since 1977.  The Navajo Nation has the ability and the experience to assume authority over the regulation and enforcement of coal mining on Navajo land. While the Navajo Nation understands that there may be some jurisdictional question that require Tribes and OSM to continue to work together to address, the Navajo Nation requests simply 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.  The Navajo Nation believes it can regulate and inspect existing mining operations in a timely 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 language that would authorize the application and granting of primacy to Native Nations. 
 The following is proposal language that would satisfy this requirement.  We are aware that there have been several other proposals that would also allow the Navajo Nation to apply for primacy.  The Navajo Nation would work with any potential sponsor to facilitate this change. 
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.”
 The Navajo Nation respectfully requests that the Committee approve an amendment to SMCRA that would allow the Navajo Nation to apply for primacy.  Without this legislative change the Navajo Nation would never be able to apply for primacy to regulate surface mining and reclamation activities on our own lands.  Finally, it is important to note again that the Navajo Nation is not asking for a legislative change that grants it primacy.  We are simply asking for the ability to be treated like a State and apply for primacy.  

Pending Legislation
After reviewing the pending legislation, the Navajo Nation feels that the S. 1701 introduced by Senator Thomas comes the closest to satisfying the Navajo Nation’s needs.  First, S. 1701 extends the AML fee collection until 2016.  While not the extension to 2018 that the Navajo Nation feels would be a sufficient amount of time to finish reclamation activities, this point is outweighed by the other benefits of the legislation.  Second, S. 1701 begins to disburse the unappropriated trust fund balances beginning next year.  For the Navajo Nation with a balance of approximately $32 million this amounts to three payments equal to one quarter of the total balance paid out for three years.  The Navajo Nation strongly supports this provision.  Third, Senator Thomas’ legislation continues to allow AML allocations to be used for PFPs.  The importance of continuing to allow SMCRA allocations to be used for PFPs cannot be underestimated for the Navajo Nation.  Finally, Senator Thomas’ legislation proposes a unique solution to the current problem of undisbursed funds sitting in the federal treasury.  Namely, S. 1701 allows States and Tribes to collect their own AML fees and then provide 50% to the federal government.  The Navajo Nation strongly supports this move to ensure that States and Tribes receive their allocations in a timely manner as opposed to waiting for the money to be appropriated.

The Navajo Nation has long supported the reauthorization of SMCRA.  The AML fee allocation provides an important opportunity for the Navajo Nation to not only finish the last of the reclamation activities, but also to continue the PFPs to help those communities impacted by mining.  The Navajo Nation also strongly supports the release of the unappropriated trust fund balance and the ability to collect our own AML fees.  While the Navajo Nation is encouraged by the efforts of Senator Thomas and S.1701 to address the concerns of the AML program, we urge the committee to include the primacy provisions in the legislation to ensure that the Navajo Nation will have the ability to be treated like States and determine for themselves how they will manage their own surface mining and reclamation activities.  The Navajo Nation has established that it has the expertise and processes in place to effectively handle this authority.  Thank you for the opportunity to provide this testimony to the Committee.