Energy

Stitt challenges Biden administration on mineral regulation

July 19, 2021

Ray Carter

Gov. Kevin Stitt has sued the federal government to challenge the Biden administration’s efforts to strip Oklahoma of its jurisdiction to regulate surface coal mining and reclamation operations in parts of eastern Oklahoma following a U.S. Supreme Court decision that declared tribal reservations continued to exist in Oklahoma.

“The Department of the Interior and other defendants in this case are dead wrong about their decision,” Stitt said. “They are attempting to unlawfully federalize mines that have been regulated by Oklahoma for almost 40 years by ignoring the clear limitations in the McGirt decision. Despite multiple attempts at dialogue, the Biden Interior Department has refused to adequately explain their legal position. The state of Oklahoma has no choice but to pursue legal action.”

Oklahoma Solicitor General Mithun Mansinghani said the Biden administration’s action “ignores the law and the reality that Oklahoma has managed these operations for decades. The administration’s action jeopardizes the safe operation of coal mining and mine reclamation, state funding, and the jobs of state employees that have been performing this work for many years.”

In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee Nation’s reservation was never disestablished. While the ruling applied only to Creek land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis could result in application to numerous other issues, such as taxation and regulation, although the Biden administration is the first to try to expand the ruling’s impact to areas outside criminal law.

Courts have since found that the land of the Choctaw, Chickasaw, Cherokee, and Seminole nations are also considered reservations under federal major crimes law. The impacted area includes most of eastern Oklahoma and is home to 1.8 million people.

In a release issued in April, the U.S. Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE) notified the Oklahoma Department of Mines and the Oklahoma Conservation Commission that because of the McGirt decision “the State may no longer exercise regulatory jurisdiction under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on Indian Lands within the State.”

The entities directly impacted by the dispute could ultimately include four coal companies operating seven mines in five Oklahoma counties (Craig, Latimer, LeFlore, Okmulgee, and Rogers counties) and more than 700 non-coal sites where limestone, dimensional stone, sand and gravel, gypsum, clay and shale, granite, caliche, tripoli, salt, iron ore, and chat are mined.

The state’s lawsuit argues that the Biden administration’s action is based on “a novel and erroneous expansion of the U.S. Supreme Court’s decision in McGirt v. Oklahoma.”

“The holding in McGirt is explicitly limited to the statutory definition of ‘Indian country’ as it applies in federal criminal law under the Major Crimes Act,” the lawsuit states. “… The holding does not extend outside of that limited federal criminal context, and OSMRE errs in attempting to expand it to undermine Oklahoma’s regulatory jurisdiction under SMCRA.”

The lawsuit argues that the Biden administration did not comply with existing federal law and its actions are therefore “arbitrary, capricious, and otherwise inconsistent with law.” Among other things, the state argues federal law required the Biden administration to notify Oklahoma government that it had concluded a change in regulatory authority was required, a process that provides the state of Oklahoma 60 days to submit a proposed amendment to its state plan.

Federal law also provides a procedure for substituting federal enforcement of state programs or withdrawing approval of state programs. Oklahoma’s lawsuit notes that process requires “written notice to the State, the opportunity for an informal hearing, and public notice and hearing” and public notice of the federal agency’s findings.

“Unlike the lengthy, formal public process employed to establish the Oklahoma program and to make various amendments to the Oklahoma program throughout the last 30 years, OSMRE amended the Oklahoma program to exclude the historic lands of the Muscogee (Creek) Nation with a stroke of the pen behind closed doors,” Oklahoma’s lawsuit states. “OSMRE did not conduct an informal or formal hearing with Plaintiffs or the public prior to issuing the Notice of Decision or the Grant Funding Denials. Nor did OSMRE provide an opportunity for public review and comment prior to issuing the Notice of Decision or Grant Funding Denials.”

“The federal court should stop the Biden administration’s improper act in its tracks and declare that jurisdiction remains with the state,” Stitt said.