Crying Earth Rise Up!
Update on the Crow Butte Resources, Inc. Uranium Mine North Trend Expansion

January 16, 2008 Hearing in Chadron Nebraska

By Debra White Plume and Dave Frankel (January 2008)

In freezing weather under a bright blue sky we arrived at the Mari Sandoz Building on the campus of Chadron State College in Chadron, Nebraska promptly at 8:45am. We offered tobacco with sending our voices to Tunkasila and the spirits, giving wopila and asking for guidance, strength and their presence in our work to protect our sacred water, land and all creation.  Through our prayers, the freezing wind carried the voices of many college students as they talked and walked to their classes, we could hear the frozen snow crunching under their boots as they walked past us.  Our small delegation entered the large room that was filled with golden sunshine from the glass ceiling of the atrium.  Within minutes the makeshift courtroom was filled to capacity, there was standing room only in a room that seated a hundred.  Respected elders in their 80’s and 90’s and teenage high school students sat with the science faculty of Chadron State College, environmentalists from the great plains region, and area farmers and ranchers filled the chairs beside staff from the Oglala Sioux Tribe, students from Oglala Lakota College and Pine Ridge High Schools, and representatives from the print, radio, and television media manning their equipment.  The Nuclear Regulatory Commission had 3 attorneys seated, along with half a dozen staff members, all flown in from Washington, DC.  Crow Butte Resources, Inc. had their two attorneys and several staff from their uranium mine, and their American and international corporate offices.

The occasion was a hearing in front of the three-judge panel of the Atomic Licensing Board of the US Government. The purpose of the hearing was to file an intervention to request a hearing regarding the application of the Crow Butte Resources, Inc. (CBR) Uranium Mine’s planned expansion to create a new In Situ Leach uranium mine called the North Trend Uranium Mine.  If approved, the license would permit CBR to build and operate a new uranium mine north of Crawford, Nebraska. CBR currently operates an In Situ Leach (ISL) uranium mine south of Crawford, NE, producing 800,000 pounds of yellow cake per year. Crow Butte Resources, Inc. is owned and operated by Cameco, Inc. which is the world’s largest uranium producer and based in Canada.  According to the US Nuclear Regulatory Commission, this is the first time in 17 years that such a petition has been filed.

Petitions filed regarding this uranium mine application were filed by Debra White Plume, Oglala Lakota from Pine Ridge, SD; Owe Aku (Bring Back the Way), a grassroots nongovernmental organization; Joe American Horse, Oglala Lakota, and the Slim Buttes Land Use Agricultural Cooperative of Pine Ridge, SD; Tom Cook, Mohawk of Chadron, Nebraska; and Bruce MacIntosh of the Western Nebraska Resources Council.  Each petitioner determined their standing issues (their right to file an intervention according to the regulations of the Nuclear Regulatory Commission) and contentions (reasons why they oppose the license application) and attached affidavits supporting their standing and contentions.  Debra White Plume and Owe Aku legal counsel is attorney Bruce Ellison, and attorney David Frankel is legal counsel for Tom Cook, Joe American Horse and Bruce MacIntosh and their respective organizations.

Expert testimony to support our theory that there is a mixing of the aquifers comes from Dr. LaGarry, the local expert in the field. The night before the hearing, we were provided with a key document by Southwest Research & Information Center (http://www.sric.org) - which was a November 8, 2007 letter from the Nebraska Department of Environmental Quality (NDEQ) to CBR that their request for an aquifer exemption is unacceptable because it failed to be site-specific and failed to include recent research including research from our expert Dr. LaGarry.

The night before the hearing, we emailed opposing counsel the LaGarry summary and told them that we wanted to stipulate to argue the mixing of the aquifers first at the outset of the hearing and that we intended to make a motion to that effect at the outset of the hearing.

When we got there, attorney Frankel brought copies of the NDEQ report for opposing counsel and asked them if they were aware of it. They said no and that they didn’t want a copy of it unless it was admitted into evidence.

The Chief Judge called the hearing to order, on the record, and Frankel moved for changing the order of the argument; we had argument from the NRC Staff and CBR opposing that and the Chief Judge Anne Young stated that she would prefer to stay on the agreed on order of the argument that they had prepared for.

Frankel then moved to admit the LaGarry summary as Exhibit A in support that there is a mixing of the aquifers and to admit the NDEQ letter as Exhibit B.  There was argument on that with the NRC and CBR claiming that they just received it and didn’t have a chance to review it even though they each received it in November and we were the ones who didn’t have it in our files. Ellison throughout the hearing reminded the three-judge panel that many documents had been removed from our immediate access due to the fire that burned Debra White Plume’s house to the ground a few weeks ago and petitioners were still gathering documents to replace those lost in the fire.

The Board took it under advisement and allowed us to refer to it during the proceeding although the Board requested briefing on the late filing under applicable regulations.

Frankel read from the NDEQ letter that CBR failed to include unfavorable research that indicates that there is substantial fracturing and faults that cause a movement of water between the uranium bearing zones being mined and the High Plains Aquifer.

We then argued standing of the Petitioners and the admissibility of the 6 Contentions (A-F) that we proferred.  After the Standing arguments and before lunch we presented Chief Joe American Horse and Chief Oliver Red Cloud, each of which a grandson of a Chief who signed the Ft. Laramie Treaties with the US Government of 1851 and 1868.

Chief American Horse, wearing a full feather headdress and formal beaded attire, introduced himself in Lakota and then in English talked about how the water is used sacredly in the sweat lodge and that prayers are made for everyone. Chief Red Cloud stated that under the treaties, all this mining was occurring in treaty territory and that as Chief of the 8 Reservations he found it interesting to sit and listen to these people arguing about what belongs to his people.

The Judges called this a case of first impression several times stating that there were no applicable rules in many areas of this case. The Chief Judge invited briefing on tribal law issues, Indian law, the treaty law issues, and rights of consultation and Native American rights under religious freedom laws, trust responsibility, the UN Declaration from September 2007, mineral and water rights of the native people here, and anything else that would educate the Board on the Indigenous Peoples rights in this case.

During the hearing it was revealed that there was no hearing for the recent amendment to increase CBR’s water usage from 4,500 gpm to 9,000 gpm and the Chief Judge asked the NRC Staff to brief the legal authority for granting the amendment without a public hearing.

Then it was revealed that there was no public notice or hearing in connection with the transfer of the Crow Buttes NRC License to Cameco, Inc. through a series of corporate transactions in 1996-1998. CBR’s counsel opined on the record that no such hearing was required. NRC Staff counsel did not know of any requirement for such a hearing as there is in other kinds of license transfers. So the Chief Judge asked for briefing on the legal authority for allowing the transfer of the license without a public hearing.

One of the Petitioners, Western Nebraska Resources Council, had sued several years ago under a Nebraska law that restricts or prohibits foreign ownership of the uranium mine and CBR convinced the state court judge that it wasn’t really a foreign company because it had a majority of directors who were US persons. Now, CBR has been renamed Cameco Resources and Cameco’s website says that Crow Buttes is 100% owned by Cameco.

It was a great day in court. We got some Lakota language spoken on the record, had two Chiefs speak, got invited to focus attention on the Indigenous Rights and it became clear that this is looking to become a big opportunity to make law in this field especially re: ISL Uranium Mining.

There are 14 new ISL license applications coming to NRC within the next two years. This case and the progress and troubles of the Crow Buttes Expansion and stopping the Expansion can be the turning of the tide.

We also can use Amicus Briefs on any of the issues that we were asked to brief especially we can use Amicus Briefs on the Indian law issues and from other interested parties and environmental groups, it is easy to file as a non-party with a motion as to why the Brief is material to the issues raised in the case.

Yesterday, in the building named for a woman who honored Crazy Horse, we sat at the table with the people and shed the light of day on what the World’s largest uranium company is doing with the help of their lawyers. Darkness receded as more light came in and by the sunset, we felt confident that we would show standing and at least one admissible contention and would therefore be able to get a hearing.

The decision is expected within 45 days and is subject to reconsideration and appeals.

www.uraniumisnotmyfriend.com