OSMRE Jurisdiction To Administer the Surface Mining Control and Reclamation Act of 1977 Within the Exterior Boundaries of the Cherokee Nation Reservation and the Choctaw Nation Reservation in the State of Oklahoma
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Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are notifying the public that the recent decisions of the Oklahoma Court of Criminal Appeals in Hogner v. Oklahoma, 2021 WL 958412 (Okla. Ct. Crim. App. March 11, 2021), and Sizemore v. Oklahoma, 2021 WL 1231493 (Okla. Ct. Crim. App. April 1, 2021)--which held that the historic Cherokee Nation of Oklahoma and the Choctaw Nation of Oklahoma Reservations, respectively, had not been disestablished-- necessarily foreclose the State of Oklahoma's authority to implement the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on Indian lands within the exterior boundaries of the Cherokee Nation and Choctaw Nation of Oklahoma Reservations. This determination follows the recent decision of the United States Supreme Court in McGirt v. Oklahoma, 140 S Ct. 2452 (2020), which legally recognized the ongoing existence of the historic Muscogee (Creek) Nation Reservation in the State of Oklahoma and necessarily foreclosed the State of Oklahoma's authority to implement SMCRA on Indian lands within the exterior boundaries of the Muscogee (Creek) Nation Reservation. As OSMRE stated in its recent notification regarding SMCRA jurisdiction on the Muscogee (Creek) Nation Reservation, SMCRA designates OSMRE as the sole regulatory authority over surface coal mining and reclamation operations on Indian lands where a tribe has not obtained primacy. Consistent with the Supreme Court's decision in McGirt, Oklahoma may not exercise its State program regulatory authority over surface coal mining and reclamation operations within the exterior boundaries of the Cherokee Nation and Choctaw Nation of Oklahoma Reservations. Accordingly, for lands within the exterior boundaries of the Cherokee Nation and Choctaw Nation Reservations, OSMRE is the sole agency with jurisdiction over the SMCRA Title IV abandoned mine land (AML) reclamation and Title V regulatory programs. The Cherokee Nation Reservation consists of lands, wholly or partially within the following counties: Adair, Cherokee, Craig, Delaware, Mayes, McIntosh, Muskogee, Nowata, Ottawa, Rogers, Sequoyah, Tulsa, Wagoner, and Washington. The Choctaw Nation of Oklahoma Reservation consists of lands, wholly or partially within the following counties: Atoka, Bryan, Choctaw, Coal, Haskell, Hughes, Johnston, Latimer, Le Flore, McCurtain, Pittsburg, Pontotoc, and Pushmataha.
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<title>Federal Register, Volume 86 Issue 199 (Tuesday, October 19, 2021)</title>
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[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Notices]
[Pages 57854-57855]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22720]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
[S1D1S SS08011000 SX064A000 212S180110; S2D2S SS08011000 SX064A000
21XS501520]
OSMRE Jurisdiction To Administer the Surface Mining Control and
Reclamation Act of 1977 Within the Exterior Boundaries of the Cherokee
Nation Reservation and the Choctaw Nation Reservation in the State of
Oklahoma
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Notice of jurisdiction.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are notifying the public that the recent decisions of the
Oklahoma Court of Criminal Appeals in Hogner v. Oklahoma, 2021 WL
958412 (Okla. Ct. Crim. App. March 11, 2021), and Sizemore v. Oklahoma,
2021 WL 1231493 (Okla. Ct. Crim. App. April 1, 2021)--which held that
the historic Cherokee Nation of Oklahoma and the Choctaw Nation of
Oklahoma Reservations, respectively, had not been disestablished--
necessarily foreclose the State of Oklahoma's authority to implement
the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on
Indian lands within the exterior boundaries of the Cherokee Nation and
Choctaw Nation of Oklahoma Reservations. This determination follows the
recent decision of the United States Supreme Court in McGirt v.
Oklahoma, 140 S Ct. 2452 (2020), which legally recognized the ongoing
existence of the historic Muscogee (Creek) Nation Reservation in the
State of Oklahoma and necessarily foreclosed the State of Oklahoma's
authority to implement SMCRA on Indian lands within the exterior
boundaries of the Muscogee (Creek) Nation Reservation. As OSMRE stated
in its recent notification regarding SMCRA jurisdiction on the Muscogee
(Creek) Nation Reservation, SMCRA designates OSMRE as the sole
regulatory authority over surface coal mining and reclamation
operations on Indian lands where a tribe has not obtained primacy.
Consistent with the Supreme Court's decision in McGirt, Oklahoma may
not exercise its State program regulatory authority over surface coal
mining and reclamation operations within the exterior boundaries of the
Cherokee Nation and Choctaw Nation of Oklahoma Reservations.
Accordingly, for lands within the exterior boundaries of the Cherokee
Nation and Choctaw Nation Reservations, OSMRE is the sole agency with
jurisdiction over the SMCRA Title IV abandoned mine land (AML)
reclamation and Title V regulatory programs. The Cherokee Nation
Reservation consists of lands, wholly or partially within the following
counties: Adair, Cherokee, Craig, Delaware, Mayes, McIntosh, Muskogee,
Nowata, Ottawa, Rogers, Sequoyah, Tulsa, Wagoner, and Washington. The
Choctaw Nation of Oklahoma Reservation consists of lands, wholly or
partially within the following counties: Atoka, Bryan, Choctaw, Coal,
Haskell, Hughes, Johnston, Latimer, Le Flore, McCurtain, Pittsburg,
Pontotoc, and Pushmataha.
DATES: As of June 17, 2021, OSMRE notified Oklahoma of OSMRE's
responsibilities under SMCRA Title IV and Title V programs within the
exterior boundaries of the Cherokee Nation and Choctaw Nation of
Oklahoma Reservations.
FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Regional Director
(DOI Interior Regions 3, 4, and 6), Office of Surface Mining
Reclamation and Enforcement, 501 Belle St., Suite 216, Alton, IL 62002;
Telephone (618) 463-6463 Ext. 5101.
SUPPLEMENTARY INFORMATION: The decisions in Hogner and Sizemore both
rely on the rationale of the United States Supreme Court in McGirt v.
Oklahoma, 140 S Ct. 2452 (2020). Following McGirt, OSMRE evaluated
Oklahoma's implementation of its approved regulatory program to
identify any inconsistency with the McGirt decision. On April 2, 2021,
OSMRE sent letters to the Oklahoma Conservation Commission (OCC) and
the Oklahoma Department of Mines (ODM) notify those agencies of OSMRE's
responsibilities under SMCRA's Title IV and Title V program within the
exterior boundaries of the Muscogee (Creek) Nation Reservation. OSMRE
notified the public of its jurisdiction via Federal Register notice,
published on May 18, 2021 (86 FR 26941).
Although McGirt expressly recognized the ongoing existence of only
the Muscogee (Creek) Nation Reservation, in Hogner and Sizemore the
Oklahoma Court of Criminal Appeals examined the relevant treaties and
congressional acts and applied McGirt's reasoning to conclude that the
Cherokee Nation and Choctaw Nation of Oklahoma Reservations had not
been disestablished. The U.S. Department of Justice subsequently
recognized that the Cherokee Nation and Choctaw Nation of Oklahoma
Reservations had not been disestablished and has determined that the
United States has criminal jurisdiction over major crimes committed
within the boundaries of these reservations. As those reservations have
not been disestablished, the lands within the exterior boundaries of
the Cherokee Nation and Choctaw Nation of Oklahoma Reservations
constitute ``Indian lands'' as defined by SMCRA, prohibiting the State
of Oklahoma from exercising jurisdiction over surface coal mining and
reclamation operations within the exterior boundaries of these
reservations. On June 17, 2021, OSMRE sent letters to OCC and ODM
notifying those agencies of OSMRE's responsibilities under SMCRA's
Title IV and Title V programs within the exterior boundaries of the
Cherokee Nation and Choctaw Nation Reservations. This notification
began a coordination period to allow for the orderly transfer of all
OCC and ODM records, documents, data, and other information associated
with the regulation of activities under SMCRA within the exterior
boundaries of the Cherokee Nation and Choctaw Nation of Oklahoma
Reservations.
Pursuant to SMCRA, States may acquire the primary responsibility
(i.e., primacy) for the regulation of surface coal mining and
reclamation operations on non-Federal and non-Indian lands within the
State. To obtain primacy, a State must develop a regulatory and/or
abandoned mine land program(s) that meets the minimum standards set
forth
[[Page 57855]]
in SMCRA and the Federal regulations, as approved by the Secretary of
the Interior. SMCRA, however, does not allow for the delegation of this
authority to a State to regulate surface coal mining and reclamation
operations on ``Indian lands'' within the State's boundaries. Unless a
Tribe obtains primacy, SMCRA designates OSMRE as the sole regulatory
authority over surface coal mining and reclamation operations on
``Indian lands.'' 30 U.S.C. 1300. SMCRA defines ``Indian lands'' as:
``all lands, including mineral interests, within the exterior
boundaries of any Federal Indian reservation, notwithstanding the
issuance of any patent, and including rights-of-way, and all lands
including mineral interests held in trust for or supervised by an
Indian tribe.'' 30 U.S.C. 1291(9).
Potential Implications of Substitution of Federal Authority
SMCRA established the Abandoned Mine Reclamation Fund to receive
reclamation fees that, along with funds from other sources, are used to
finance reclamation of abandoned coal mine sites. Title IV of SMCRA
authorizes OSMRE to provide grants to eligible States and Tribes that
are funded from permanent (mandatory) appropriations. In general,
recipients use these funds: To reclaim the highest priority AML coal
mine sites that were left abandoned prior to the enactment of SMCRA in
1977; to reclaim eligible non-coal sites; for projects that address the
impacts of mineral development; and for eligible non-reclamation
projects.
Title V of SMCRA authorizes OSMRE to provide grants to States and
Tribes to develop, administer, and enforce State and Tribal regulatory
programs that address, among other things, the disturbances from coal
mining operations. Additionally, upon approval of a State or Tribal
regulatory program, Title V authorizes a State or Tribe to assume
regulatory primacy and act as the regulatory authority within the State
or Tribe, and to administer and enforce its approved SMCRA regulatory
program with oversight and backup enforcement authority provided by
OSMRE. The regulations at Title 30 of the Code of Federal Regulations,
Chapter VII, implement these provisions of SMCRA.
OSMRE will revisit and revise Oklahoma's regulatory and reclamation
grants, as appropriate and consistent with OSMRE's assumption of
regulatory and reclamation jurisdiction over Indian lands in Oklahoma.
Glenda H. Owens,
Deputy Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2021-22720 Filed 10-18-21; 8:45 am]
BILLING CODE 4310-05-P
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