Wednesday, September 29, 2010

Roberto Rodriguez: Countdown: Todos Somos (We Are All) Raza Studies


COUNTDOWN: TODOS SOMOS (WE ARE ALL) RAZA STUDIES

By Roberto Dr. Cintli Rodriguez

Part 1 of a II Part Column


The lines have been drawn. Or rather, the date has been set and the countdown has begun. If Arizona State Schools Superintendent Tom Horne has his way, after Dec 31, 2010, Tucson Unified School District’s highly successful Mexican American Studies K-12 department will cease to exist.

Despite Gov. Jan Brewer having signed HB 2281, the anti-Ethnic Studies measure – in May of this year – supporters have good reason to feel confident that on Jan 1, Raza Studies will be alive and well.

The measure bans schools from teaching hate, anti-Americanism and the violent overthrow of the U.S. government. Horne, 2281’s “intellectual author,” claims that Raza Studies advocates these things, and promotes “ethnic solidarity” and results in racial segregation in schools.

The Draconian measure and Orwellian effort does not call for the outright elimination of Raza/Ethnic Studies. Instead, it calls for the withdrawing of 10% of district funds every month that a program is found to be out of compliance. For TUSD, that would amount to $3 million per month, a sum it can ill-afford to lose.

The day after 2281 was signed and after Horne threatened to show up to TUSD headquarters to do a victory lap – hundreds upon hundreds of K-16 students and community activists laid siege to both TUSD headquarters and then later the state building, resulting in 15 arrests. During this siege, TUSD’s Board of Governors issued a May 14 statement from the acting superintendent. In its entirety, it reads:

“TUSD proudly supports our Ethnic Studies classes. We have no plans to eliminate or reduce course offerings. We believe these courses are relevant, engaging, meet state standards and are in full compliance with the law. Additionally, they are part our unitary status plan. We stand firmly behind our Ethnic Studies Department, staff members and students.”

The statements are a clear indication that if the program is ruled out of compliance, it will be the anti-thesis of local control and the epitome of foreign [state] intervention. His goal – as he has repeatedly stated – is to rule Raza Studies out of compliance and to eliminate it by the end of the year.

As a result, a historic lawsuit against Tom Horne is forthcoming. The consensus amongst Tucson’s Mexican American community is that come Jan. 3, Raza Studies will be fully operational – continuing to educate and inspire minds and continuing its successful mission of preparing its students to attend colleges and universities nationwide. This program is virtually an anti-dropout program (more than a 90% graduation rate) and more than that, it is now virtually a college student factory (upwards of 70%). But Horne doesn’t care about that. Instead, his primary concern is ensuring that only Greco-Roman knowledge – the purported basis for Western Civilization – is taught in Arizona schools.

Raza Studies grounds students in Critical Thinking, and in Indigenous Pedagogies – on maiz-based or Maya-Nahua knowledge(s) that is thousands-of-years old and that originates on this very continent. Despite this, Horne and his legislative allies claim that Raza Studies is un-American. In court, Horne will have his hands full in defining these terms. Can things that originate in Greece and Rome be considered American, while knowledge that originates on the American continent be considered un-American and not part of Western Civilization?

The measure makes a clumsy attempt to isolate Raza Studies; it allows for the teaching of the Holocaust and purportedly exempts both American Indian Studies classes [required by federal law] and African American Studies classes [that are open to everyone). These are false exemptions because all Ethnic Studies classes are open to everyone and there are no American Indian Ethnic Studies classes required by federal law. Despite this, the measure appears to be a clear discriminatory effort to eliminate Raza Studies.

In the realm of definitions – will maiz-based knowledge also be ruled as not Indigenous or not “American Indian”?

The forthcoming lawsuit will be historic in nature. Think Monkey Scopes Trial or Brown v. Topeka Board of Education. What happens here in Arizona will set a legal precedent of not simply what can be taught in public schools – but also whether states have the right to restrict, censor, dictate, intimidate and overrule what districts and educators can teach in local schools.

HB 2281 is the epitome of [cultural] mind control or forced assimilation. Ultimately, the struggle in the forthcoming Precious Knowledge documentary (http://vimeo.com/15062646 ) is about the inherent right – also enshrined in treaties and international laws – of children to learn about their own histories and cultures. At TUSD, it is about the right of all children to learn about these histories and cultures and thus the forthcoming lawsuit (www.Saveethnicstudies.org).

Rodriguez, a professor at the University of Arizona and a member of the Mexican American Studies Community Advisory Board, can be reached at: XColumn@gmail.com
· A national mobilization in support of TUSD’s Raza Studies is currently underway and the primary focus of National Ethnic Studies Week. For more information, go to: http://ethnicstudiesweekoctober1-7.org
· A National conference on hate, censorship & Forbidden Curriculums will take place at The University of Arizona Dec 2-4. For info: http://drcintli.blogspot.com or: rodrigu7@email.arizona.edu

Column of the Americas
PO BOX 3812
Tucson, AZ 85722

COLUMN: http://drcintli.blogspot.com


ARCHIVED COLUMN OF THE AMERICAS
http://web.me.com/columnoftheamericas

Kit Carson Returns: Navajo Water Rights Settlement



The Historical Campaign of Genocide Against the Dineh People Continues

By Bill Edwards
Re-incarnation and the Return of Kit Carson


Also see: March and rally today, Wed., Sept. 29, 2010, to the Navajo Nation Council:
http://www.bsnorrell.blogspot.com/

Re-incarnation must be true, because I have gotten to see the return of Kit Carson. Only this time he is bigger and badder with a more powerful army and is capable of doing more damage.
His army rides under the banner of “Northeastern Arizona Indian Water Rights Settlement Agreement.”
His army is the state of Arizona, Flagstaff, Winslow, Holbrook, Taylor, Snowflake, Show Low, Eagar, Springerville, Arizona Public Service Co. Bar Tbar Ranch Inc. Crater Ranch LLC Flying M Ranch Inc Aztec Land and Cattle Inc, Arizona State Land Department, Arizona Game and Fish Commission Arizona State Parks Board, Arizona Department of Transportation, Lyman Irrigation Company Pioneer Irrigation Company, Show Low-Pinetop-Woodland Irrigation Company, Silver Creek Irrigation District, Pinetop-Lakeside Sanitary District, Euell Lyle Barnes, and Navapache Hospital District.
When he came through the last time he burned fields, crops and homes. This time he plans to steal water. Not just from us, but from our children, our grandchildren, their grandchildren, their grandchildren’s grandchildren and so on FOREVER! That is what is in this “Water Right Settlement Agreement.”
Out of the 500 million acre feet of water we already have, “Kit Carson” -- AKA the state of Arizona -- is going to be nice and “give” us a water pipeline and the use of 32,000 acre feet of water for now and forever, and not a drop more. Along with that we give up all future claims, forfeit the right to sue.
The proposed Agreement prohibits any future irrigated agriculture beyond some 10,000 acres of farm projects identified along the main-stem of the Little Colorado River between Birdsprings and Cameron. (That’s a lot of land.)
It sure is nice of them to come in and tell us what we can do with our land not just for now, but FOREVER!
Kit Carson AKA the state of Arizona has Indian scouts, they are called "council delegates" and want to vote to pass this. How could anyone vote to give away his or her grandchildren’s water?????? As natives don’t we know better? If this is passed you will never be able to increase the size of existing dikes. The main reason the state wants to rush this through the council is to get around the Winters Doctrine.
First of all we already own the water. WE ALREADY OWN THE WATER. If we did not already own the water why would the state bother to come over here with a proposal for us to sign? Eh?
They come in and ask us to give them ALL of our water and then turn around and tell us, “Well out of the 500 million acre-feet that you already own, we will let you have 32,000 acre-feet per."
Huh?????????????
In plain English the “Winters Doctrine” recognizes aboriginal rights. We were here first and we have first dibs on the water. Whatever is left is to be given to the settlers and latecomers. According to the Winters Doctrine, the states are the latecomers.”
Let’s remember, waters within the Navajo Nation, regardless of state lines, belong to all the people of the Navajo Nation. Our forefathers fought fearlessly and courageously to protect the land, natural resources, and waters within these sacred mountains because it was their duty and their obligation to the future generation. Many gave their lives or served time as prisoners of war to preserve what rightly belongs to us. They sacrificed much to regain what is rightfully ours,” said Former Navajo Chairman Peter MacDonald.
Native men and women are still sacrificing their blood, sweat, tears and even their lives for these right. Are we just going to give away our water without regard to this sacrifice?
Federal and state governments do not want Indian tribes to take advantage of the Winters Doctrine. The Winters doctrine put the tribes in a position of power.
DO NOT GIVE UP YOUR POWER!
Tell them NO! Don’t tell, DEMAND, that your council delegates vote NO on this. Go to Window Rock on the 29th. And make sure they vote no. Bring your children. It is their future we are talking about. Even if they have to miss school. It is that important.
Bill Edwards


Bill Edwards
Business Manager North Leupp Family Farms
Vice-President Tolani Lake Enterprises Inc.
Resident of Tolani Lake, Navajo Nation, Western Agency, Arizona
Enrolled Lumbee/African-American
Business Owner-Edwards Consulting
http://www.pleazz.com/
Photo 1: Kit Carson Photo 2: Leupp on the Navajo Nation

Monday, September 27, 2010

ACLU Sues for Information on American Indian Women Pressured to Induce Labor

ACLU Sues for Information on American Indian Women Pressured to Induce Labor
http://www.commondreams.org/newswire/2010/09/27-4


FOR IMMEDIATE RELEASE
September 27, 2010
12:47 PM

Pregnant Women on South Dakota Reservation Denied Freedom to Make Medical Decisions

PIERRE, S.D. - September 27 - The American Civil Liberties Union and the ACLU of South Dakota filed a Freedom of Information Act (FOIA) lawsuit today against Indian Health Services (IHS) seeking information about reports that pregnant women on the Cheyenne River Sioux Reservation are being pressured into taking medication to induce labor against their wishes. The FOIA lawsuit also seeks information on plans to build a birthing unit on the reservation, funded in large part with federal stimulus dollars.

"A woman living on the Cheyenne River Sioux Reservation has the same rights as any other woman to make medical decisions during pregnancy," said Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project. "No woman should be compelled to undergo induced labor against her will."

There is no obstetric care available on the reservation, the fourth largest in the United States. Although plans to build an obstetric care facility on the reservation have been pending since 2002, construction has not moved beyond its earliest stages despite an appropriation from Congress last year to finish the facility. Since most women on the reservation depend on IHS for healthcare, they are forced to travel 90 miles to St. Mary's Healthcare Center in Pierre for labor and delivery, the nearest facility with an IHS contract.

Many women are simply told that they must have their labor induced on a particular day without being given any information about the risks and benefits of induction, any discussion of their options or any choice in the matter. Many of the women undergo the forced inductions because they are dependent on IHS for their healthcare and feel they have no option but to comply, creating an inherently coercive situation. Making the situation even worse, because of the distance between the hospital and the reservation, if the women of the Cheyenne River Sioux Tribe are induced without any prior notice, they may not be able to have their family with them during labor and delivery or to make sure their affairs are looked after while they are hospitalized.

"It is bad enough that these women are denied basic healthcare services on their own reservation," said Robert Doody, staff attorney with the ACLU of South Dakota. "They should not also feel bullied into being induced at a time that is convenient for their doctor, and sacrifice the right to decide how to give birth."

The federal lawsuit was filed in the U.S. District Court for the Southern District of New York after IHS failed to respond in a timely manner to ACLU FOIA requests submitted in November 2009 for the documents, as mandated by law. The lawsuit seeks a court order requiring the agency to make the requested documents publicly available.

Concerns about the quality of IHS services have prompted a Senate investigation into what the Senate Committee on Indian Affairs has called "serious cases of mismanagement, malfeasance, retaliation against whistleblowers as well as potential criminal behavior" occurring in South Dakota, as well as other states. The committee will hold a hearing on Tuesday to explore these allegations. The Senate Committee on Indian Affairs will be broadcasting Tuesday's hearing at indian.senate.gov/hearings/hearing.cfm?hearingID=4834

The complaint can be viewed at: www.aclu.org/reproductive-freedom/aclu-v-indian-health-services-complaint

Thanks to RezNews for this.

Forgotten People: Navajos say Bennett Freeze Development Act a disappointment




FORGOTTEN PEOPLE
Dine' Be' Iina' na' hil naa (Dine’ Rebuilding Communities)
Don Yellowman Joe Klain
President Vice-President
Lucy Knorr
Sec’y/Treasurer

P.O. Box 1661
Tuba City, AZ 86045
(928) 401-1777
forgottenpeoplecdc@gmail.com
http://www.forgottennavajopeople.org/

FORGOTTEN PEOPLE COMMENTS ON KIRKPATRICK DISCUSSION DRAFT OF THE “FORMER BENNETT FREEZE AREA DEVELOPMENT ACT”

September 24, 2010
Photo: Radioactive remains from uranium mine on Navajo Nation/Forgotten People

Forgotten People supports James W. Zion, Esq.’s comments on Kirkpatrick discussion draft of the former Bennett Freeze Area Development Act herein attached. We agree with James Zion that the draft is a disappointment. First, it is authorization legislation, not required by the Constitution, and all it would do is set up a new trust, to be funded from sources that are not likely, and authorize appropriations that will never come.

The Office of Navajo and Hopi Indian Relocation (ONHIR) and Housing and Urban Development (HUD) have never served the victims and survivors of the Bennett Freeze and Relocation. Forgotten People doesn’t know what the Navajo Hopi Land Commission (NHLC) and Rep. Kirkpatrick are doing because they are operating in secret.

Forgotten People submitted a letter and packet to Rep. Kirkpatrick in September, 2010, requesting she work with the House Resources Committee to conduct an Oversight hearing. Representative Kirkpatrick never responded. Rep. Kirkpatrick never met with Forgotten People and in August, 2010, when her 2 aides showed up several hours late to meet with us outside a building where a conference room was not reserved, they never told us about this draft rehabilitation plan. We never heard about it until our attorney James W. Zion told us about it.

On August 4, 2010, Forgotten People filed an accounting suit against NHLC to find out where the rehabilitation trust fund monies and collected fee revenues are. While this suit is pending, we request an injunction on all 638 and HUD contracts, an injunction on all land purchases by NHLC, a Social Impact Assessment of relocation and Bennett Freeze trauma be conducted and an invitation for Forgotten People to sit at the discussion table.

Don Yellowman, President, Forgotten People says, The Office of Navajo and Hopi Indian Relocation is the WORST agency to oversee redevelopment. ONHIR is the fox guarding the hen house. ONHIR is in the business of relocation not rehabilitation. Rehabilitation must begin with development planners and a real plan to create infrastructure, not try to put a band aid on 43 years of abandonment and neglect.

ONHIR is in the business of relocating people not rehabilitation. Many of our members have been waiting for 30 years to receive relocation housing while people that never lived on HPL benefitted. And while ONHIR says they have no money to repair relocation housing and build new housing, apparently they have millions of dollars to loan the Navajo Nation to construct casinos, develop more cluster housing without any infrastructure to host communities and make more broken promises that have never been fulfilled.

Robert Begay, Board of Director, Forgotten People says, the ONHIR is the coyote that has been stealing and killing our sheep. To put ONHIR in charge of rehabilitation is like inviting the coyote to take charge. No matter what you do to that coyote they will steal and kill our sheep. That is their instinct. There is no honesty with that coyote. ONHIR is in the business of relocating people not conducting rehabilitation. What we need in the former Bennett Freeze is development planners to work with the people and grassroots Non Governmental Organization’s like Forgotten People to develop a holistic plan that a band aid cannot fix. ONHIR has no concern for our people

Marsha Monestersky, Program Director, Forgotten People wants the United Nations, Commission on Human Rights, Commission on the Elimination of Racial Discrimination (CERD), World Health Organization (WHO), and Center for Disease Control to intervene in light of their recent intervention in Zamfara in northern Nigeria, where seven villages have so far been confirmed as contaminated to assess the full impact of the "acute massive lead poisoning”. Too many people in the former Bennett Freeze have died from living in substandard housing, drinking uranium and arsenic contaminated water and living in and around abandoned uranium mines and mills. The rehabilitation plan needs development planners on board and the provision of safe drinking water, human housing, roads, bridges and social and economic development and remediation of abandoned coal and uranium mines and mills.

Forgotten People is a nonprofit incorporated on the Navajo Nation and an NGO:
· We request additional congressional guidance on the expenditure of existing monies and assurances that the Navajo Nation will not use any funding for Bennett Freeze rehabilitation for uses other than such rehabilitation,
· We request recognition of the Forgotten People as an agent for Bennett Freeze residents for the negotiation of program and plan approaches. With our academic, governmental, scientific partnerships, and a team of community development planners led by a multi-agency task force with monies managed by US Environmental Protection Agency (EPA) as the lead agency to ensure accountability and fiscal responsibility..

--------------


COMMENTS ON KIRKPATRICK DISCUSSION DRAFT OF THE
“FORMER BENNETT FREEZE AREA DEVELOPMENT ACT”

September 22, 2010
By James Zion

A reporter kindly provided copies of the discussion draft of Representative Kirkpatrick’s proposal for legislation for a “Former Bennett Freeze Area Development Act” and accompanying documents. These are a lawyer’s initial comments on the legislative proposal with the support of The Forgotten People organization.

The draft is a disappointment. First, it is authorization legislation, not required by the Constitution, and all it would do is set up a new trust, to be funded from sources that are not likely, and authorize appropriations that will never come.

Second, it attempts to keep a bureaucracy, the Office of Navajo and Hopi Relocation, in existence when it has not proved its worth to the Bennett Freeze people and that may not be very popular with Navajos. The additional promise that “638" programs could be contracted from the Office is not a meaningful one for the people of the Bennett Freeze, who have not seen any benefit from existing “638" or HUD programs. A past study of a proposed plan for rehabilitating the Bennett Freeze was announced, with a great deal of fanfare, and the thick study has never been adopted—much less acted on. My requests for a copy (from the CEO of the Navajo Housing Authority) were ignored.

Third, set asides of small percentages from the B.I.A. Indian Programs budget, the Indian Housing Block Grant Program, and Rural Development Program are really an attempted earmark, and the other beneficiaries of such programs will likely block any such measure. Otherwise, no real money is identified.

Fourth, some of the language of the proposed Act tracks the existing Navajo Rehabilitation and makes some technical amendments to it. There is no discussion of better implementation of that trust fund or what the Navajo Nation has done or is doing with the current trust fund income. In point of fact there is one dirty audit on a housing venture carried out for the purported benefit of Bennett Freeze residents and a law suit for an accounting that seeks to know what is being done with the fund. The Forgotten People wait for the Navajo Nation’s response to the suit.

Fifth, there is no mention of the division of all funds received and held by the Department of the Interior or B.I.A. for easements, rights-of-way and other fees from the Bennett Freeze Area for the period between July 1966 and November 3, 2006 (40 years) between the Navajo Nation and the Hopi Tribe. The division is authorized by Article 7.2 of the Navajo-Hopi Intergovernmental Compact of November 3, 2006. The Forgotten People have asked various people how much money is involved and when it will be allocated (and how the Navajo Nation will spend it) many times and never given an answer. The proposed legislation does not mention it.

Sixth, the proposed Act would do some tinkering with accommodation agreements with Navajo families without mentioning the due process implications of impairing existing contracts. The Hopi Tribe might have something to say about that. There is no mention of help for families with existing agreements, or those who do not have them because of coercion and intimidation.

Aside from those shortcomings, there could be positive steps:

1. An oversight hearing into:

a. Why there has never been an effective plan for the Bennett Freeze area and meaningful appropriations;

b. Where the monies to be split between the Navajo Nation and Hopi Tribe are; how much money there is; and whether the feds can account for 40 years of revenue;

c. What happened with the B.I.A funded rehabilitation “plan”;

d. What has happened with the existing trust fund; and

e. Authorization legislation based on a meaningful assessment of real need and supportable assurances of appropriations to follow or realistic sources of monies for a trust.

2. Additional congressional guidance on the expenditure of existing monies.

3. Assurances that the Navajo Nation will not use any funding for Bennett Freeze rehabilitation for uses other than such rehabilitation.

4. Recognition of the Forgotten People as an agent for Bennett Freeze residents for the negotiation of program and plan approaches.

James W. Zion

Friday, September 24, 2010

Court document: Navajos ask US Supreme Court to halt Nuclear Contamination

No. 10-___
IN THE
Supreme Court of the United States
MARILYN MORRIS, ET AL.,
Petitioners,
v.
U.S. NUCLEAR REGULATORY COMMISSION, ET AL.,
Respondents.
On Petition for A Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
Diane Curran
Counsel of Record
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
Suite 600
1736 M Street N.W.,
Washington, D.C. 20035
(202) 328-3500
dcurran@harmoncurran.com
Eric Jantz
New Mexico Environmental
Law Center
Suite 5
1405 Luisa Street
Santa Fe, NM 87505
(505) 989-9022
Counsel for Petitioners Eastern Navajo Diné Against Uranium
Mining and Southwest Research and Information Center
Other counsel listed inside cover
Levon Henry
Jesse Traugott
DNA-People’s Legal
Services, Inc.
P.O. Box 306
Window Rock,
Arizona 86515
(928) 871-4151
Zackeree Kelin
Kelin Law Firm
1309 Rio Grande
Boulevard N.W.
Albuquerque,
New Mexico 87104
(505) 242-7200
Counsel for Petitioners Marilyn Morris and Grace Sam
i
QUESTIONS PRESENTED
1. In determining whether public radiation
doses from a proposed new uranium mine would
exceed regulatory limits, could the U.S. Nuclear
Regulatory Commission (“NRC”) interpret 10
C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive
emissions from existing uranium mine
waste on the mine site?
2. Where, in establishing a groundwater restoration
surety for a proposed uranium mine,
the NRC failed to follow its own criteria for protecting
the drinking water on the site, did the
NRC violate the Atomic Energy Act’s prohibition
against licensing operations that are inimical
to public health and safety?
ii
PARTIES TO THE PROCEEDING
AND CORPORATE DISCLOSURE STATEMENT
The following parties were petitioners below and
are petitioners here: Grace Sam, Marilyn Morris,
Eastern Navajo Diné Against Uranium Mining
(“ENDAUM”), and the Southwest Research and Information
Center (“SRIC”). The United States and
the United States Nuclear Regulatory Commission
(“NRC” or “Commission”) were the respondents below
and are respondents here. Hydro Resources, Inc.
(“HRI”) was a respondent-intervenor below and is
also a respondent-intervenor here.
ENDAUM is a nonprofit organization incorporated
under the laws of the Navajo Nation and is exempt
from taxation under Section 501(c)(3) of the Internal
Revenue Code. ENDAUM does not issue stock
and no parent corporation or publicly held corporation
has ten percent or more ownership interest.
ENDAUM’s membership consists of concerned community
members in Church Rock and Crownpoint,
who are predominantly members of the Navajo Nation.
ENDAUM’s mission is to protect public health
and the water of the communities of Church Rock
and Crownpoint.
SRIC is a nonprofit organization incorporated
under the laws of New Mexico and is exempt from
taxation under Section 501(c)(3) of the Internal Revenue
Code. SRIC does not issue stock and no parent
corporation or publicly held corporation has ten percent
or more ownership interest. SRIC’s mission is
to promote the health of people and communities,
protect natural resources, ensure citizen participation
in government decisions that affect their weliii
fare, and secure environmental and social justice for
present and future generations.
Marilyn Morris and Grace Sam are individual
members of the Navajo Nation who reside and graze
livestock near the proposed Church Rock mine sites.
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
TABLE OF CONTENTS ........................................... iv
TABLE OF AUTHORITIES ...................................... vi
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTES AND REGULATIONS INVOLVED ...... 1
STATEMENT OF THE CASE.................................... 2
A. Procedural History........................................... 2
B. Radioactive Air Emissions at Section 17 ....... 2
C. Groundwater Quality at Church Rock
Section 8 .......................................................... 4
1. Groundwater quality and ISL mining ...... 4
2. NRC requirements for restoration
and financial surety ................................... 5
a. Restoration goals ............................. 6
b. Financial surety .............................. 7
D. Decisions Below ............................................... 8
1. Radioactive air emissions at Section 17 ..... 8
2. Groundwater restoration goals and
surety for Section 8 .................................... 9
REASONS FOR GRANTING THE WRIT .............. 11
ARGUMENT ............................................................ 12
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals,
Violates Fundamental Principles of Statutory
Interpretation as Outlined by this Court. ......... 12
v
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC’s
Interpretation of the Regulation .................. 12
B. The Majority’s Opinion is Inconsistent with
Other Part 20 Regulations and the
Regulations’ History ...................................... 14
II. The NRC Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health
Protection Mandate ............................................ 17
CONCLUSION.......................................................... 19
Appendix:
Opinion of the United States Court of Appeals
for the Tenth Circuit, filed March 8, 2010 …App. 1
CLI-06-29, 64 N.R.C. 417 (2006) ................ … App. 68
CLI-06-14, 63 N.R.C. 510 (2006) ................. …App. 91
CLI-04-33, 60 NRC 581 (2004) ................. … App. 109
CLI-01-04, 53 N.R.C. 31 (2004) ................ … App. 156
CLI-00-12, 52 N.R.C. 1 (2000) .................. … App. 235
CLI-06-1, 63 N.R.C. 1 (2006) .................... … App. 248
Order of the United States Court of Appeals
for the Tenth Circuit Denying Rehearing
and Rehearing En Banc, filed May 18,
2010....................................................... … App. 261
Atomic Energy Act, 42 U.S.C. § 2022(a) .. … App. 263
Atomic Energy Act, 42 U.S.C. § 2099........ … App. 264
10 C.F.R. § 30.1301(a)(1) .......................... … App. 265
10 C.F.R. Part 40, Appendix A, Criterion 9...App. 267
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989) .........................................…17
Thomas Jefferson Univ. v. Shalala, 512 U.S.
504 (1994) .....................................................…9, 14
STATUTES:
Atomic Energy Act.................................... 1, 16, 18, 10
42 U.S.C. § 2099 .......................1, 11, 12, 16, 17, 19
National Environmental Policy Act ..................... 1, 17
Uranium Mill tailings Radiation Control Act............ 1
42 U.S.C. 2022(a) .................................................. 1
28 U.S.C. § 1254(1) ............................................... 1
REGULATIONS:
10 C.F.R. § 20.1301(a)(1) ............. I, 3, 8, 11, 12, 15, 16
10 C.F.R. § 20.1001(b)................................................. 5
Internal Revenue Code § 501(c)(3) ............................ 1
ADMINISTRATIVE DECISIONS
In re Hydro Resources, Inc., CLI-06-29, 64
N.R.C. 417 (2006) ................................................ 1
In re Hydro Resources, Inc., CLI-06-14, 63
N.R.C. 510 (2006) .................................... 1, 3, 8, 9
In re Hydro Resources, Inc., CLI-06-1, 63
N.R.C. 1 (2006) .................................................... 1
In re Hydro Resources, Inc., CLI-04-33, 60
N.R.C. 581 (2004) .......................................... 1, 10
vii
In re Hydro Resources, Inc., CLI-01-04, 53
N.R.C.3 1 (2001) ................................................... 1
In re Hydro Resources, Inc., CLI-00-12, 52
N.R.C. 1 (2000) ..................................... 1, 7, 10, 17
In re Hydro Resources, Inc., LBP-05-17, 62
N.R.C. 77 (2005), review denied, CLI-06-1,
63 N.R.C. 1 (2006) ............................................ 6, 9
In re Hydro Resources, Inc., LBP-04-3, 59
N.R.C. 84 (2004), rev’d in part, CLI-04-33,
60 N.R.C. 581 (2004) ............................................ 7
In re Hydro Resources, Inc., LBP-99-30 50
N.R.C. 77 (1999), affirmed, CLI-00-12, 52
N.R.C. 1 (2000) ................................................. 4, 9
In re Hydro Res., Inc., LBP-98-9, 47 N.R.C.
261 (1998), rev’d in part, 48 N.R.C. 119
(1998) ................................................................... 2
Shieldalloy Metallurgical Corp. (Newfield,
NJ); Director’s Decision Under 10 C.F.R.
2.206, 45 N.R.C. 338, 342 (1997) .................. 17, 18
FEDERAL REGISTER NOTICES
56 Fed. Reg. 23,360 (May 21, 1991) ........................ 15
51 Fed. Reg.1032 (Jan. 9, 1986) .............................. 15
25 Fed. Reg. 8595 (1960) .......................................... 16
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of certiorari
to review the judgment of the United States
Court of Appeals for the Tenth Circuit in this case.
OPINIONS BELOW
The opinion of the panel of the court of appeals is
reported at 598 F.3d 677, and is reprinted in the Appendix
to the Petition (“Pet. App.”) 1-67. The order
denying rehearing or en banc review of the panel decision
is reprinted at Pet. App. 261-62. The NRC orders
reviewed by the court of appeals are reported at
64 N.R.C. 417, 63 N.R.C 510, 63 N.R.C. 1, 53 N.R.C.
31, and 52 N.R.C. 1, and are reprinted at Pet. App.
68-260.
JURISDICTION
The judgment of the court of appeals was entered
on March 8, 2010. A request for rehearing or en banc
review was denied on May 18, 2010. On July 23,
2010, Associate Justice Sotomayor extended the time
in which to file this Petition up to and including September
15, 2010. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
The relevant provisions of the Atomic Energy Act,
the National Environmental Policy Act, the Uranium
Mill Tailings Radiation Control Act, and NRC’s implementing
regulations are reprinted at Pet. App.
263-270.
STATEMENT OF THE CASE
A. Procedural History
This case began in 1988, when HRI applied to the
2
NRC for a license to conduct in situ leach (“ISL”)
mining of uranium on four sites in the towns of
Church Rock (Sections 8 and 17) and Crownpoint
(Crownpoint and Unit 1) in northwestern New Mexico.
Church Rock and Crownpoint both lie within the
boundaries of the Navajo Nation and are located in
the Eastern Navajo Agency. Pet. App. 3. The NRC
issued a notice of opportunity for hearing in 1994,
when it published the Draft Environmental Impact
Statement for the proposed mine. In re Hydro Res.,
Inc., LBP-98-9, 47 N.R.C. 261, 264 (1998), rev’d in
part on other grounds, 48 N.R.C. 119 (1998). Petitioners
requested a hearing in 1995, but the proceeding
was held in abeyance pending the issuance of the
Final Environmental Impact Statement (“FEIS”) in
1997. Id., 48 N.R.C. at 265-66.
In 1998, before hearings had begun, the NRC issued
a license to HRI. Pet. App. 5. The NRC then
conducted informal adjudicatory hearings on HRI’s
applications in two phases. In Phase I, the NRC addressed
issues pertaining only to HRI’s proposed
mine on Section 8 at Church Rock. Id. at 7. In
Phase II, the NRC adjudicated the lawfulness of the
other three mine sites: Church Rock Section 17, Unit
1 and Crownpoint. Id. This petition and the case in
the court of appeals concern only Church Rock Sections
8 and 17.
B. Radioactive Air Emissions at Section 17
HRI’s Section 17 licensed area at Church Rock is
located on land held in trust by the U.S. Government
for the Navajo Nation and leased by the Bureau of
Indian Affairs to local residents who live and graze
their livestock there. Three families live on Section
17 inside the licensed area, and approximately 850
3
people live within five miles of the Section 8 and Section
17 mining sites. Pet. App. 7-8.
HRI’s licensed area on Section 17 includes the
site of the abandoned Old Church Rock Mine, an underground
uranium mine that operated in the early
1960s and from 1977 to 1983 before it was purchased
by HRI in the early 1990s. The surface remains contaminated
by dust and rocks from the prior uranium
mining operations. Those wastes continue to emit
radiation in excess of the NRC’s regulatory limits.
Id.
In the 1997 FEIS, the NRC acknowledged that
some parts of the Section 17 site already are radioactively
contaminated, but asserted that “these areas
may be cleaned up as part of the well field decontamination.”
Pet. App. 30 n.15. The NRC concluded
that licensing the proposed uranium mine “may be
result in a positive health effect at the Church Rock
site.” Id.
Nine years later, in the adjudicatory proceeding
on the issue of whether HRI’s license application for
Section 17 satisfied 10 C.F.R. § 20.1301(a)(1)’s public
radiation dose limits, the NRC changed course, holding
that it has no authority to require HRI to clean
up the mine site if it is licensed by the NRC. Pet.
App. 98. As a result, HRI would now receive a license
to operate Section 17 without ever having to
clean up existing radioactive contamination that is
nine to fifteen times the regulatory limit. Id. at 60
(Lucero, J. dissenting). Nevertheless, the NRC did
not correct the now-disproven representation in the
1997 FEIS that the issuance of a license to HRI
would likely benefit the public by leading to NRCordered
cleanup of the existing contamination.
4
C. Groundwater Quality at Church Rock
Section 8
1. Groundwater quality and ISL mining
In its undisturbed state, uranium is immobile in
an aquifer. The mineralized zone of the aquifer contains
high concentrations of chemicals such as uranium
and radium, while surrounding groundwater
may have low concentrations of these chemicals.
J.A. 331, Morris v. U.S. Nuclear Regulatory Comm'n,
598 F.3d 677 (10th Cir. 2010) (No. 07-9505) (“C.A.
J.A.”). Thus, an aquifer with a mineralized ore zone
may also have drinking water nearby. See In re Hydro
Resources, Inc., LBP-99-30, 50 N.R.C. 77, 105
(1999), affirmed, CLI-00-12, 52 N.R.C. 1 (2000).
By its nature, the ISL process of mining uranium
in an aquifer “tend[s] to contaminate groundwater.”
Pet. App. 33. ISL mining involves establishing a series
of injection and production wells that are laid
out in a series of geometric patterns known as “well
fields.” Pet. App. 4. Mining is conducted by injecting
a solution of water, dissolved oxygen, and sodium bicarbonate
(known as “lixiviant”) through injection
wells and into the discrete areas of uranium mineralization,
called “ore zones.” The lixiviant dissolves
the uranium in the ore zone and causes it to become
mobile in the aquifer. Production wells then pump
the uranium-laden solution (known as “pregnant lixiviant”)
to the surface for processing. At a processing
plant, the uranium is chemically stripped from the
groundwater, which is then returned to the aquifer
to extract more uranium. Id. at 3-4. During the
mining process, monitoring wells around the perimeter
of the well field are used to detect excursion of
lixiviant. Id. at 4.
5
In a given well field, pre-mining groundwater
quality within the ore zone is generally poor due to
the mineralization of the aquifer. C.A. J.A. 331. Premining
quality of groundwater that lies outside the
ore zone but still within the well field, however, may
be good. Id. Such is the case at Section 8 where
uranium concentrations vary from as high as 10.9
milligrams per liter (“mg/l”) in the ore zone to as low
as 0.002 mg/l in other parts of the Section 8 mine
site. C.A. J.A. 253. The uranium concentration of
0.002 mg/l is more than an order of magnitude below
the Environmental Protection Agency’s (“EPA’s”)
drinking water standard of 0.03 mg/l.
2. NRC requirements for restoration and
financial surety
HRI’s license contains two related requirements
with respect to restoration of groundwater at the
termination of HRI’s mining operation. First, after
licensing but before mining may begin, HRI must establish
“groundwater restoration goals” within the
well field for an array of chemicals and radionuclides.
Pet. App. 5, 40-42. Second, at the time of licensing
HRI must establish a financial surety based
on the estimated cost of restoring the groundwater at
the conclusion of HRI’s mining operation. Id. at 5.
a. Restoration goals
HRI’s license requires it to establish a “primary
restoration goal” of returning all contaminants to
“average pre-lixiviant injection conditions,” also
known as “baseline” conditions. Id. at 40-42. These
restoration goals are consistent with the Uranium
Mill Tailings Restoration and Control Act, which requires
the EPA to establish standards for protection
of public health from hazards posed by inactive ura6
nium milling sites. Pet. App. 263. Because groundwater
quality may vary so widely within a mine site,
primary restoration goals must be separately established
for the groundwater within and outside the
ore zone and HRI may not average those values.
LBP-99-30, 50 N.R.C. at 99-100; In re: Hydro Resources,
Inc., LBP-05-17, 62 N.R.C. 77, 96-97 (2005),
review denied, CLI-06-1, 63 N.R.C. 1 (2006).
The license allows HRI to postpone setting primary
restoration goals until just prior to the commencement
of mining activities, after HRI has installed
its injection, production and monitoring wells.
C.A. J.A. 320.1 Thus, HRI has yet to establish the
pre-mining baseline conditions for Section 8. Pet.
App. 243.
b. Financial surety
NRC regulations require HRI to set aside a financial
surety that is sufficient to cover the estimated
cost of decommissioning its mine sites, including
restoring groundwater. Pet. App. 44-45, 267-70.
Groundwater restoration accounts for the majority of
decommissioning costs and therefore the majority of
––––––––––––––––––––––––
1 If baseline concentrations of contaminants are lower than
the maximum concentration limits (“MCLs”) specified in the
EPA’s drinking water regulations, the license establishes a
“secondary goal” of returning groundwater to those EPA MCLs.
Pet. App. 41-42. When HRI received its license in 1998, however,
EPA did not have an MCL for uranium, and therefore the
NRC imposed a secondary restoration goal for uranium of 0.44
mg/l. LBP-05-17, 62 N.R.C. at 89. After the EPA determined
that chronic ingestion of even low levels of uranium can cause
kidney damage and promulgated a drinking water MCL for
uranium of 0.03 mg/l, the NRC agreed to reduce the limit in
HRI’s license in order to be consistent with EPA. Id. at 89-92.
7
the surety estimate. In re Hydro Resources, Inc.,
LBP-04-3, 59 N.R.C. 84, 90 (2004).
The amount of money that must be set aside for a
groundwater restoration surety is based on the estimated
cost of flushing enough water through a
mined aquifer to return the groundwater quality to
the primary or secondary restoration goals that will
be established by HRI prior to mining, i.e., baseline
conditions or EPA drinking water standards. Pet.
App. 112-113; C.A. J.A. 256.
While HRI must establish a surety at the time of
licensing, its license does not require it to establish
restoration goals until after licensing. Therefore, by
necessity, HRI based its groundwater restoration
cost estimate on only a limited amount of data about
groundwater conditions on Section 8. Those data,
presented in the FEIS, show that water quality at
Section 8 varied from highly contaminated in the ore
zone to drinking water quality outside the ore zone.
C.A. J.A. 253. Even though HRI’s license prohibits it
from averaging ore zone and non-ore zone groundwater
quality values in establishing primary restoration
goals, the NRC allowed HRI to average those widely
divergent water quality values for purposes of establishing
a surety for Section 8. Pet. App. 243. The
NRC concluded that it would be necessary to flush
the Section 8 mine with nine “pore volumes” of water
in order to restore the quality of the water to these
average values. Id. at 47.
D. Decisions Below
1. Radioactive air emissions at Section 17
NRC regulation 10 C.F.R. § 20.1301(a)(1) limits
the public radiation dose (i.e., the total effective dose
equivalent (“TEDE”)) to 0.1 rem per year. Pet. App.
8
8. In the administrative adjudication of HRI’s license,
Petitioners contended that HRI could not satisfy
§ 20.1301(a)(1) at Section 17 because radiation
doses from existing contamination on the site far exceeded
the TEDE of 0.1 rem per year. Id. at 15, 95.
But the Commission rejected Petitioners’ argument
on the ground that the radioactive debris on Section
17 is not part of HRI’s “licensed operation.” Id. at 98
The Commission also concluded that radioactive
emissions from the debris constitute “background radiation”
which is not subject to the dose limits in 10
C.F.R. § 20.1301(a)(1). Id. at 107.
On review, a majority of the court of appeals concluded
that the NRC’s interpretation of §
20.1301(a)(1) was entitled to deference because it
was not “plainly erroneous” or inconsistent with the
NRC’s statements of intent in promulgating the regulations
at the time it promulgated the regulations.
Id. at 16-22. Because the majority relied on the
Commission’s interpretation of the term “licensed
operation,” it never reached the question of whether
the NRC had applied a proper interpretation of the
term “background radiation.” Id. at 22. See also Pet.
App. 91-108.
Judge Lucero dissented from the majority’s interpretation
of 10 C.F.R. § 20.1301(a)(1), concluding
that it is “‘inconsistent with the regulation’ and thus
warrants no deference.” Id. at 62 (quoting Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
Observing that the NRC’s interpretation rendered
specific exclusions from the rule “unnecessary,”
Judge Lucero concluded that the NRC’s interpretation
“violates a fundamental rule of construction.”
Id. at 64. Further, he concluded that “the majority’s
decision . . . will unnecessarily and unjustifiably
9
compromise the health and safety of the people who
currently live within and immediately downwind of
Section 17...” Id. at 61.
2. Groundwater restoration goals and surety
for Section 8
In the adjudicatory proceeding before the NRC,
Petitioners charged that in its Environmental Report
for the proposed mine, HRI had already established
baseline groundwater conditions that were based on
averages of uranium concentrations in the ore zone
and the surrounding area of much lower uranium
concentration. C.A. J.A. 384-85. Petitioners asserted
that HRI “may use this same tactic in setting
restoration goals for the project sites.” Id.
The Presiding Officer rejected Petitioners’ claim,
however, concluding that HRI had not yet established
baseline conditions, and would not do so until
after the license was issued. LBP-99-30, 50 N.R.C.
at 99-100. He also noted that “baseline should be determined
in both the production area and the mine
area separately.” Id. at 100. This prohibition
against averaging ore zone and non-ore-zone water
quality was also affirmed in a subsequent decision,
LBP-05-17, 62 N.R.C. at 96-97.
Despite the NRC’s clear instruction that HRI may
not average ore zone and non-ore-zone water quality
values to set restoration goals, the NRC did just that
in concluding that HRI’s surety was adequate and
that it had a reasonable assurance that HRI could
clean up the Section 8 aquifer at the conclusion of its
mining operation. This assumption is made clear in
CLI-00-12, in which the Commission stated its expectation
that HRI would not have to restore uranium
concentrations in Section 8 groundwater to “a
10
cleaner, more stringent level” than 1.8 mg/l, the “average
level already existing in Section 8.” Pet. App.
243 (citing FEIS at 3-36, C.A. J.A. 253) (emphasis
added). The FEIS itself reports 1.8 mg/l as the
“mean’ between uranium concentrations of 10.9 mg/l
in the ore zone and 0.002 mg/l in the non-ore-zone.
C.A. J.A. 253. The Commission did not change its
conclusion when it revisited the surety issue in CLI-
04-33, Pet. App. 131.
The court of appeals affirmed the NRC’s decision,
deferring to the agency’s determination that HRI’s
proposed groundwater restoration efforts and attendant
surety estimates are adequate. Id. at 51-52.
Additionally, the court affirmed the NRC’s conclusion
that it would be reasonable to use Section 8 to
demonstrate that HRI could restore groundwater before
permitting it to mine at its other sites. Id. at 51.
However, the court did not address the validity of
NRC’s assumption that it could use average values
for ore zone and non-ore zone water quality to assess
the adequacy of HRI’s surety and the feasibility of
groundwater restoration.
11
REASONS FOR GRANTING THE WRIT
The Court should take review of this case because,
as Judge Lucero noted in his dissent, the majority’s
decision “violates a fundamental rule of construction”
by accepting an interpretation of §
20.1301(a)(1) that renders other terms of the rule
superfluous. Pet. App. 64 (Lucero, J. dissenting).
The NRC’s interpretation of the rule is also inconsistent
with other statements of intent by the NRC, not
only in the § 20.1301(a)(1) rulemaking context but
also throughout the course of the administrative proceeding.
While the NRC used the 1997 FEIS to assure
members of the public that licensing of the mine
would benefit them by resulting in an NRC-ordered
cleanup of highly contaminated areas of the Section
17 mine site, the majority has now affirmed the
NRC’s subsequent disclaimer of any authority to order
such a cleanup. Thus, the majority has allowed
the government to renege on its promise to the members
of the public living near the HRI mine, who
must now live indefinitely with radioactive contamination
that will “unnecessarily and unjustifiably
compromise the health and safety of the people who
currently live within and immediately down wind
from Section 17.” Id. at 60 (Lucero, J. dissenting).
Moreover, by approving a financial surety for
groundwater restoration that was based on the impermissible
assumption that high quality groundwater
values could be averaged with values for the polluted
ore zone, the court countenanced the NRC’s
violation of the Atomic Energy Act’s prohibition
against licensing operations that are inimical to public
health and safety. Pet. App. 264. Because the
12
court’s decision is inconsistent with the law and puts
public health at risk, it should be reviewed.
ARGUMENT
I. The NRC’s Interpretation of 10 C.F.R. §
20.1301, as Upheld by the Court of Appeals, Violates
Fundamental Principles of Statutory Interpretation
as Outlined by this Court.
A. The Plain Language of 10 C.F.R. §
20.1301(a)(1) Does not Support the NRC’s
Interpretation of the Regulation.
NRC regulation 10 C.F.R. § 20.1301(a)(1) requires
that:
(a) Each licensee shall conduct operations so
that –
(1) The total effective dose equivalent to
individual members of the public from the
licensed operation does not exceed 0.1 rem
(1 mSv) in a year, exclusive of the dose contributions
from background radiation, from
any administration the individual has received,
from exposure to individuals administered
radioactive material and released
under § 35.75, from voluntary participation
in medical research programs, and from
the licensee’s disposal of radioactive material
into sanitary sewerage in accordance
with § 20.2003.
Pet. App. 265. The majority opinion defers to the
NRC’s interpretation that the term “licensed operation”
means only HRI’s activities in removing uranium
from the ground and chemically processing it,
and therefore § 20.1301(a)(1) does not apply to the
significant radioactive emissions from pre-existing,
13
human-caused mine waste on HRI’s site. Pet. App.
16-18 . The majority found that an alternative reading
was not compelled by the regulation’s plain language.
Id . at 17.
As Judge Lucero noted in his dissent, however,
the NRC’s interpretation of the term “licensed operation”
as used in 10 C.F.R. § 20.1301(a)(1) renders
other terms of the regulation superfluous. For instance,
language in § 20.1301(a)(1) excluding sanitary
sewers and medical operations from the regulation’s
scope would not be necessary because those activities
are not part of the specific activity to be conducted
under the license. While the majority asserts
that the language in the regulation excluding sanitary
sewers and medical administration “clarifies”
that the NRC has other regulations that govern
those matters (Pet. App. 17), in fact “[t]here is no
reason to expressly exclude radiation from medical
research programs if ‘licensed operation,’ by definition,
refers only to activity of the licensee.” Id. at 64.
Further, the majority completely fails to explain
its circular statement that the exclusion of background
radiation “makes sense in its own right” under
the NRC’s interpretation of the regulations. Pet.
App. 17. In fact, the exclusion of background radiation
does not make sense under any reasoning, because
this interpretation renders the exclusion “superfluous,”
in violation of the “well-established principle
of statutory and regulatory interpretation that
a provision should be read such that no term is ren14
dered nugatory.” Id. at 63. See also Thomas Jefferson
Univ., 512 U.S. at 513.2
B. The Majority’s Opinion is Inconsistent
with Other Part 20 Regulations and the
Regulations’ History.
The majority also misreads the history of the
1991 rulemaking in which the NRC strengthened radiation
doses limits for members of the public. Pet.
App. 18-21. According to the majority, the rulemaking
history supports the NRC’s interpretation of 10
C.F.R. § 20.1301(a)(1) because it “specifically linked
the relevant measured dose to the ‘licensed operation’
by changing regulatory language that had referred
to “both licensed and unlicensed sources” to
the “licensed operation.” Id. at 18.
But the court’s analysis begs the question of what
the NRC meant by the term “licensed operation,”
which is not defined in the regulations. The majority
apparently assumes that “licensed operation” means
essentially the same thing as “licensed sources,” and
therefore the exclusion of the term “unlicensed
sources” from the 1991 rule shows that the NRC did
not intend the rule to cover unlicensed sources in the
licensee’s possession. That reading of the regula-
––––––––––––––––––––––––
2 Because the majority opinion defers to the NRC’s interpretation
of “licensed operation,” it does not address the issue of
whether the NRC’s interpretation of “background radiation” is
entitled to deference. Judge Lucero’s dissent addresses that issue,
however, and concludes that the NRC’s interpretation of
“background radiation” violates canons of regulatory construction.
Pet. App. 64-65. Because the NRC’s interpretation of its
regulatory language renders significant portions of those regulations
superfluous, the majority should not have afforded that
interpretation any deference.
15
tions is not supported by the context of the rulemaking,
however, because the statement of regulatory
purpose that accompanies 10 C.F.R. § 20.1301(a)(1)
expresses the Commission’s intent to regulate radiation
doses from both “licensed and unlicensed radioactive
material.”3
Similarly, a colloquy in the 1991 rulemaking expresses
the Commission’s intent to regulate “doses
from radiation and radioactive material under the
licensee’s control.” 56 Fed. Reg. 23,360, 23,374 (May
21, 1991). See also 51 Fed. Reg.1032, 1133 (Jan. 9,
1986) (NRC’s statement in the proposed rule regarding
the impracticality of regulating radiation doses
from several sources, “not all of which are controlled
by the licensee.”)
For the same reason, the fact that the NRC reduced
the maximum permissible radiation dose from
0.5 rem/year in the proposed rule to 0.1 rem/year in
the final rule does not, as the majority suggests,
show that the NRC intended to exclude from the
scope of the rule any radiation source in the licensee’s
control that is not also used in the licensee’s ac-
––––––––––––––––––––––––
3 Section 20.1001(b) provides that:
It is the purpose of the regulations in this part to
control the receipt, possession, use, transfer, and
disposal of licensed material by any licensee in such
a manner that the total dose to an individual (including
doses resulting from licensed and unlicensed
radioactive material and from radiation
sources other than background radiation) does not
exceed the standards for protection against radiation
prescribed in this part.
(emphasis added).
16
tivities. Pet. App. 21. It simply demonstrates that in
contrast to the proposed rule, which covered radiation
sources both within and beyond the licensee’s
control, the final rule covers only radiation sources
within the licensee’s control.
The majority also states that the NRC’s reading
of § 20.1301(a)(1) is consistent with the Commission’s
stated interest in establishing standards that
are “‘practical from the standpoint of the licensees’”
and that meet the Atomic Energy Act’s policy of developing
nuclear energy. Pet. App. 19 (quoting 25
Fed. Reg. 8595 (1960)). But no practical consideration
or general statement of policy could be fairly
read to permit the NRC to subvert the specific command
of 42 U.S.C. § 2099 that it may not issue a
source materials license that would be “inimical to . .
. the health and safety of the public.” As Judge Lucero
states in his dissent, that is exactly what the
NRC has done here with the approval of the majority.
Pet. App. 60.
Finally, the majority does not address the fact
that the NRC’s interpretation of 10 C.F.R. §
20.1301(a)(1) renders false the 1997 FEIS’ statement
that high levels of existing contamination on the
Church Rock Section 17 site “may be cleaned up as
part of the well field decontamination.” Pet. App. 30
n.15. The court leaves unexplained the question of
how, if the NRC has no authority over HRI’s existing
mine waste for purposes of enforcing 10 C.F.R. §
20.1301(a)(1), it could claim in the FEIS that it has
the authority to order HRI to clean up the existing
contamination at the conclusion of HRI’s mining operation.
17
Nor has the NRC attempted to correct what now
constitutes a misstatement in the FEIS that licensing
of the HRI mine is likely to benefit the community
by resulting in an NRC-ordered cleanup of existing
contamination. See discussion above at 3-4. The
NRC simply allowed the 1997 FEIS to stand uncorrected,
despite its obligation under the National Environmental
Policy Act to provide “carefully consider[
ed] and “detailed” information to the public regarding
the environmental consequences of its decisions.
Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349-350 (1989).
II. The NRC-Approved Groundwater Surety for
Groundwater Restoration at Section 8 Violates
the Atomic Energy Act’s Public Health Protection
Mandate.
Consistent with the Atomic Energy Act’s requirement
that the issuance of an NRC source materials
license may not be “inimical to public health
and safety,” 42 U.S.C. § 2099 (Pet. App. 264), NRC
decommissioning funding requirements are designed
to ensure that at the end of operations, a licensee
will possess “sufficient funds to eventually decontaminate
and decommission the site to a level at
which public health and safety is assured.” Shieldalloy
Metallurgical Corp. (Newfield, NJ); Director’s Decision
Under 10 C.F.R. 2.206, 45 N.R.C. 338, 342
(1997). The NRC runs afoul of this mandate by arbitrarily
basing HRI’s initial groundwater restoration
effort and surety estimate on the assumption that
HRI needs to restore groundwater at Section 8 only
to the average of ore zone and non-ore zone groundwater
quality, not the drinking water quality currently
found in some areas of Section 8. Pet. App.
18
243. Contrary to its own conclusion that baseline
restoration goals cannot be established by averaging
ore zone and non-ore zone water quality, the NRC
has founded HRI’s restoration surety on a preliminary
restoration goal estimated by averaging extremely
low contamination values for potable nonore-
zone water with extremely high values for polluted
ore zone water.
Thus, even though baseline conditions have yet to
be definitively established, the NRC has impermissibly
assumed that average groundwater conditions
are poor and approved a surety that is correspondingly
low. As a result, HRI’s financial surety for
groundwater restoration at Section 8 is unlikely to be
sufficient to restore good quality groundwater outside
the ore zone to pre-mining conditions in the
event that HRI is financially unable to do so. By effectively
allowing HRI to degrade local residents’ potable
water source, the NRC has violated the Atomic
Energy Act’s public health protection mandate in 42
U.S.C. § 2099 and the NRC’s own interpretation of
the purpose of surety estimates as set forth in
Shieldalloy.
In affirming the NRC, the court reasoned that the
surety for Section 8 applies only to the “outset” of
HRI’s mining project and that the surety was subject
to future revisions for the other three mining sites.
Pet. App. 52-53. Setting aside the very high standard
for obtaining a hearing on future revisions to
the surety (Pet. App. 55), it is no consolation to the
neighbors of the Section 8 mine that the aquifer on
which they depend for drinking water will have been
sacrificed as an initial experiment in setting
groundwater restoration surety amounts. As the
court has acknowledged, groundwater restoration to
19
baseline conditions at ISL projects is exceedingly difficult,
if not impossible and at best, only one ISL operation
may have successfully restored groundwater.
Pet. App.35-36.4 Like the NRC, the court of appeals
failed to account for the real possibility that HRI
may not be able to complete the demonstration experiment
and leave Section 8 contaminated because
of an inadequate groundwater restoration surety.
This kind of experiment is not contemplated by the
Atomic Energy Act’s requirement for protection of
public health and therefore warrants review.
––––––––––––––––––––––––
4 In note 19 of its opinion, the panel states that there is evidence
in the record that groundwater quality was successfully
restored at the Bison Basin project, without providing a record
citation. Pet. App. 36. However, that assertion was not supported
in the administrative case with any evidence, and the
court does not cite any. To Petitioners’ knowledge, no ISL mining
operation has ever restored groundwater to pre-mining conditions.
20
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted,
Diane Curran
Counsel of Record
Harmon, Curran, Spielberg
& Eisenberg, L.L.P.
Suite 600
1736 M Street N.W.
Washington, D.C. 20035
(202) 328-3500
dcurran@harmoncurran.com
Eric Jantz
New Mexico Environmental
Law Center
Suite 5
1405 Luisa Street
Santa Fe, New Mexico
87505
(505) 989-9022
Counsel for Petitioners Eastern Navajo Diné Against
Uranium Mining and Southwest Research and
Information Center
Levon Henry
Jesse Traugott
DNA-People’s
Legal Services, Inc.
P.O. Box 306
Window Rock, Arizona
86515
(928) 871-4151
Zackeree Kelin
Kelin Law Firm, P.C.
1309 Rio Grande
Boulevard N.W.
Albuquerque,
New Mexico 87104
(505) 242-7200
Counsel for Petitioners Marilyn Morris and Grace
Sam
September 2010

Wednesday, September 22, 2010

Native American Music Awards Nominees 2010



Nominees Announced for the Twelfth Annual Music Awards
To Be Held On Friday, November 12, 2010
At Seneca Niagara Hotel & Casino In Niagara Falls


Featuring Performances By Top Nominees & Special Red Carpet Event By Radio Partner WGWE-FM


September 20, 2010 – New York, NY. Nominations for the 12th Annual Native American Music Awards (NAMA) were announced today by The Native American Music Association & Awards, reflecting the combined votes of the NAMA Advisory Board Membership Nominating Committee.

The 12th Annual Native American Music Awards will be held on Friday, November 12, 2010 at the Seneca Entertainment Center in the Seneca Casino & Hotel in Niagara Falls, New York.

Tickets are on-sale now through http://www.ticketmaster.com/, all ticketmaster outlets, and at the Seneca box office (716) 501 2444. Tickets are $25.00, $35.00 and $50.00. Special discounted hotel rates are available for NAMA attendees at $159.00 plus tax and fees per night on a first come first serve basis and by calling 716-299-1100 or 1-877-8SENECA (73-6322).

Both new and established artists share the list of nominations throughout a diverse array of 30 music categories spanning all genres. This year’s top nominees are the cause-driven; Jan Michael Looking Wolf with his CD, "Breakin Free" and Joseph FireCrow with his distinctly new sound on "Face The Music" who are both tied with five (5) nominations and are both contenders in the Record of the Year category. Other leading nominees feature the slightly more edgier bands; Aztlan Underground with their self-titled recording, and Digging Roots with "We Are" who both received four (4) nominations each alongside solo artists Michael Bucher for his "Believe" CD and Rock and Roll Hall of Famer, Nokie Edwards of The Ventures (Wipe Out, Hawaii Five-O) who also received 4 nods for his solo instrumental effort, "Hitchin' A Ride."

Country artists like Shane Yellowbird (3), Quatisi (3), and new artist Victoria Blackie (2) dominante as multiple nominees. Leading with three (3) nominations each are; R. Carlos Nakai, Jim Boyd, Johnny Whitehorse, Eagle & Hawk, Samantha Crain and composer Brad Clonch of Injunity. Joanne Shenandoah is featured on a collaborative effort with Shiela Applegate and received two (2) nominations for her musical work as well as did a young group from the Rosebud Reservation, Nake Nula Waun and their producer/creator, Frank Waln who have been trying to fight the teen suicide epidemic on their reservation by performing for free and giving away CDs to their peers.

All with two (2) nominations are; Allen Mose Jr. & Orion Jay Mose, Gabriel Ayala, Anthony Betoney, BlueDog, Douglas Blue Feather & Danny Voris, Indigie Femme, JJ Kent, Kelly Montijo Fink, Kicking Woman Singers, Lone Bear, Mwalim, Plex, Sayani, Segweh, Spiritwing, and Yvonne St. Germaine.

"These nominations throughout all 30 music categories reflect an impressive and diverse array of talent from across the country," said Awards President Ellen Bello. "We have received entries from artists overseas and in Europe as well. This year will also feature a new music category for Waila Music, or Chicken Scratch, a form of dance and polka music from Southern Arizona. It's truly an exciting year for Native American music and we look forward to nothing less than a spectacular Awards celebration this year.”

Public voting to determine the winner of each category will commence in the next few days and will be open to the general public. Anyone interested in voting can visit the Awards website, www.nativeamericanmusicawards.com. Music from all nominees is currently featured on the audio players on the website.

Tentatively scheduled to perform at this year's 12th Annual Native American Music Awards show taking place on 11/12/10 will be top nominees; Joseph FireCrow, Jan Michael Looking Wolf Band, Digging Roots, new artist Victoria Blackie and American idol semi-finalist Charly Lowry with her band, Dark Water Rising with more to be announced.

See below for a complete list of official nominees for the 12th Annual Native American Awards:


A ARTIST OF THE YEAR
JJ Kent – The Other Side of JJ Kent
Joanne Shenandoah – Enchanted Garden
Johnny Whitehorse – Riders of the Healing Band
Joseph FireCrow – Face The Music
Michael Bucher – Believe
Shane Yellowbird – It’s About Time

B BEST BLUES RECORDING
Get Up & Get Out – Bluedog
Guitar & Vocals - Larry Burnett w/Don Chapman
If That’s All Right With You - Twice As Good
Indian Casino - Blackhawk Blues Band
Let Me Be – The Graywolf Blues Band
Shades of Gray - Cecil Gray & The Flying Eagle Blues Band


C BEST COMPILATION RECORDING
Colours of My Life – Stephanie Harpe, Jason Burnstick, W.T. Goodspirt, Don Amoro, Tewanee Jospeh
Moon of the Drum – Terry Lee Whetstone
Rise Up - Various
The Best of Drumgroups.com NAC Compilation Vol 1 – Various
The Night Before; The Best of David Searching Owl - David Searching Owl
Walking With the Spirits - Randy McGinnis


D BEST COUNTRY RECORDING
Hitchin’ A Ride - Nokie Edwards
It’s About Time - Shane Yellowbird
Moving On - John McLeod
The Other Side of JJ Kent - JJ Kent
SOS - Quatisi
Wanted Man – Victoria Blackie

E DEBUT ARTIST OF THE YEAR
Chris Ferree - Unbound
Cody Sunbear Blackbird – Raven Speaks
Joseph Strider – Meanings Within Meanings, Within Meanings
Marc Brown – Long Time Coming
Samantha Crain – Songs In The Night by Samantha Crain
Victoria Blackie - Wanted Man


F DEBUT DUO OR GROUP OF THE YEAR
Dark Water Rising – Dark Water Rising
Indigie Femme – Indian Souvenir
Kicking Woman Singers - The 4th Coming
Nake Nula Waun – Always Ready
Sayani – Sacred Fire
Segweh – Segweh


G BEST FEMALE ARTIST
Deborah New Moon Rising – Stories From The Social Fire
Kelly Montijo Fink – Songs of War & Victory
Quatisi - SOS
Shanise – Okeymow Maskiki Vol III
Tinesha Begaye – Horses Are Our Journey
Yvonne St. Germaine – Turning My Day Around


H BEST FOLK RECORDING
Amor Deveras – Yolanda Martinez
Believe - Michael Bucher
Hiding Behind The Sun - Peter Sackaney
Indian Souvenir - Indigie Femme
Scrapbook – Bobby Bullet st Germaine (Strawberry Island)
Songs In The Night by Samantha Crain - Samantha Crain


I FLUTIST OF THE YEAR
John Bear – Pure Passion
John Two-Hawks – Wind Songs
Johnny Whitehorse – Riders of the Healing Road
Jonny Lipford – Turn The Page
Joseph FireCrow – Face The Music
R. Carlos Nakai – Dancing Into Silence


J BEST GOSPEL/INSPIRATIONAL RECORDING
Doo Lado Shi diyin da - Larry Kaibetoney
Hoop of Life - RainSong: Terry & Darlene Wildman
Out of the Rainshadow - Rainshadow
Sacred Fire - Sayani
Songs of War & Victory - Kelly Montijo Fink
Turning My Day Around - Yvonne St. Germaine


K DUO - GROUP OF THE YEAR
Allen Mose Jr. & Orion Jay Mose – Holistic Blessings
Aztlan Underground – Aztlan Underground
Bluedog – Get Up & Get Out
Digging Roots - We Are
Fawn Wood & Dallas Washkahat – ‘Til The End
Injunuity – Fight For Survival


L BEST INSTRUMENTAL RECORDING
A Tribute To Walter Flett - Me’tis Fiddler Quartet
Fight For Survival - Injunity
Hitchin’ A Ride - Nokie Edwards
Red River Jig – Arvel Bird
Remembrance – Gabriel Ayala
Rollin’ Like Thunder – Douglas Blue Feather & Danny Voris

M BEST MALE ARTIST
Anthony Betoney – That’s An Old Song
Jay Begaye – Horses Are Our Journey
Glen Ahhaitty – No More Lies
Kevin Yazzie – Hope
Lone Bear – NDN Moon
Mike Sullivan Sr– Love, Lies & Lullabies

N BEST NATIVE AMERICAN CHURCH RECORDING
A Time for Healing – Cecile Moosomin
Dakota/Lakota Traditional Church Songs – Sacred Harmonies
Hope - Kevin Yazzie
Okeymow Maskiki Vol III - Shanise
Reconnected – Brian Stoner & Verdell Primeaux
Unity - Alex Turtle & Johnny Monroe


O BEST NEW AGE RECORDING
Jim Boyd – Voices From The Lakes
Sheila Applegate w/music by Joanne Shenandoah – Enchanted Garden
Joseph FireCrow – Face The Music
R. Carlos Nakai – Dancing Into Silence
Johnny Whitehorse - Riders of the Healing Road
Ron Warren, Dawn Avery, Ash Dargan – Red Moon


P BEST POP RECORDING
A Sunny Day - SpiritWing
Lifestyle Muzik - Bigg B
Nightwatch - Sentinel
SOS - Quatisi
The Liberation Sessions - Mwalim
We Are – Digging Roots


Q BEST POW WOW RECORDING
Boys Will Be Boyz – The Boyz
Live In Alexis – Blackstone
Many Tribes, One Nation - Warscout
One Voice, One Nation - Thunder Mountain Singers
The 4th Coming - Kicking Woman Singers
The Elk Dreamers - Elk Soldier


R BEST PRODUCER
A Michael Martinez, Lee Herrera, Mac Suazo, Tom Bee – neXt eXit
Frank Waln – Always Ready
George Parker – Late Night Sessions
Gloria Larocque – Colours of My Life
Jan Michael Looking Wolf, Donald Blackfox, Shawn Justice – Breakin’ Free
Robert Doyle– Dancing Into Silence


S BEST RAP / HIP HOP RECORDING
BrainStorm - Plex
I Love California - Short Dawg Tha Native
It Comes Natural - Lady Xplicit
Sex, Drunks & Hip Hop - Night Shield
Tribal Tribulations - Chase Monchamp/Chase Manhattan
Voice The Vision - Native Era Presents Arielle Tiensvold n Mista Futuristic

T RECORD OF THE YEAR
Believe – Michael Bucher
Breakin’ Free - Jan Michael Looking Wolf Band
Dancing Into Silence - R. Carlos Nakai, William Eaton & Will Clipman
Face The Music - Joseph FireCrow
It’s About Time – Shane Yellowbird
True Blue - Northern Cree


U BEST ROCK RECORDING
Aztlan Underground - Aztlan Underground
Breakin’ Free – Jan Michael Looking Wolf Band
Need Your Love - Robe Williams
Segweh – Segweh
The Great Unknown - Eagle & Hawk
We Are – Digging Roots


V SONG/SINGLE OF THE YEAR
“Cherokee Smoke” – Nokie Edwards
“Grandfather” - Windwalker
“Lizard Blues” - Joseph FireCrow
“We Are Sinixt” – Jim Boyd
“What If We Could” – Eagle & Hawk
“What The World Needs” – Jan Michael Looking Wolf Band


W SONGWRITER OF THE YEAR
Brad Clonch – Fight For Survival
Douglas Blue Feather– Rollin Like Thunder
Michael Bucher – Believe
Nokie Edwards – Hitchin’ A Ride
Samantha Crain – Songs In The Night by Samantha Crain
Vince Fontaine, Chris Burke-Gaffney – The Great Unknown


X BEST SPOKEN WORD RECORDING
Aztlan Underground – Aztlan Underground
Firewater – Janet Rogers
Moon of the Drum – TerryLee Whetstone
Nightwatch - Sentinel
Red Earth – Lowery Begaye
Stories From The Social Fire – The Story Tellers


Y BEST TRADITIONAL RECORDING
Cultural Legacy - Wakinyan Oyate
Holistic Blessings - Allen Mose Jr. & Orion Jay
Kee-Tsa-Gya - Zotigh Singers
Rebuilding The Fire – Bo Taylor
That’s An Old Song - Anthony Betoney
Utopia - Todi Neesh Zhee Singers


Z BEST MUSIC VIDEO
Barefeet On The Blacktop – Shane Yellowbird
Breakin’ Free/Addiction– The Jan Michael Looking Wolf Band
By The Water - Donna Kay
Sacred Warrior – Tom Bee
Shock Town - Jim Boyd
Spring To Come – Digging Roots


AA BEST WAILA RECORDING (NEW CATEGORY)
Gortie & the TO Boyz – A Tribute To Augustine Lopez Sr
Native Creed - Cumbiafied Nativez
Native Thunder - Get’n Down
Papago Warrior – Papago Warriors 5
The Cisco Band - T.C.O.B.
Tohono O’odham Braves - 25 Years of Waila Music


BB BEST WORLD MUSIC RECORDING
A Sunny Day - SpiritWing
Aztlan Underground - Aztlan Underground
BrainStorm - Plex
Red Moon - Ron Warren, Dawn Avery, Ash Dargan
Remembrance - Gabriel Ayala
The Liberation Sessions - Mwalim


CC NATIVE HEART (Non-Native Artist)
Big City Indians - Tribal Vision
Denise Johanson – Cave Spirits
Jeff Ball Band – Ghost Town
Peter Phippen –Woodnotes Wyld
Scott Tweedie – Long Island Sound
Wind & Fire – Mark Holland/N. Scott Robinson

The Native American Music Awards congratulates all of this year's nominees.

NAMA 12 is sponsored by: The Santa Ynez Band of Chumash Indians Foundation, TheSan Manuel Band of Mission Indians, Seneca Niagara Hotel & Casino, WGWE, 105.9 FM, a commercial and FCC-licensed radio station owned by Seneca Broadcasting, a subsidiary of Seneca Holdings and Bandzoogle who will be offering a special promotion to all NAMMY artists in the coming weeks.

# # #

Peoples Climate Camps Prepare for Cancun Summit


At least three peoples' climate camps will set up during the UN Climate Summit in Cancun in November


Climate Justice Treks from Cochabamba to Cancún
By Daniela Estrada*
Caribbean beach in Tulum, Mexico
Photo by Michelle Cook, Navajo, Llamas at Cochabamba, Bolivia Climate Summit 2010

http://www.ipsnews.net/news.asp?idnews=52921
Credit:Mauricio Ramos/IPS

SANTIAGO, Sep 21, 2010 (Tierramérica) - The "people's" climate agenda that the Bolivian government and civil society produced at an April conference in Cochabamba has made its way to the official United Nations negotiating table. But its inclusion in a binding climate treaty is unlikely, say activists.

The agreement approved by the World Peoples' Conference on Climate Change and the Rights of Mother Earth, in the Bolivian city of Cochabamba, was a response -- founded on the idea of climate justice -- to the derailed official talks for a new, obligatory global climate pact.

The failure of the negotiations was evident last year at the Copenhagen climate summit, officially known as the 15th Conference of Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC).

In August, the Bolivian government of leftist Evo Morales applauded the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention for its decision at a Bonn meeting to include more than a dozen proposals from Cochabamba in the text to be negotiated going forward.

Among them are proposals to establish an international tribunal on climate justice and to limit the increase of the global average temperature to one degree Celsius, with the consequent need to reduce carbon dioxide in the Earth's atmosphere to 300 parts per million (ppm).

Currently, the concentration of this greenhouse gas is 387 ppm. According to scientists, if it cannot be reduced to 350 ppm or less, the global average temperature will rise more than two degrees Celsius -- with catastrophic environmental, social and economic consequences.

The delegates in Bonn also agreed to discuss a 50-percent cut in greenhouse gas emissions by industrialised countries for the second period of commitments under the Kyoto Protocol on climate change, from 2013 to 2017.

They also agreed to bring in the concept of the rights of Mother Earth, the perspectives of indigenous peoples, and the issues associated with human migration spurred by climate change.

At the core of the official negotiations is determining just how far the wealthy countries are willing to reduce their greenhouse emissions.

The draft text also covers some of the Cochabamba meet's more controversial demands: the exclusion of market mechanisms in forestation activities, and opposition to converting natural forests into monoculture tree plantations.

The negotiators said they are open to considering measures to block intellectual property protections when it comes to technology transfer aimed at mitigating climate change.

The draft will be debated Oct. 4-9 in the northeastern Chinese city of Tianjin, and finally at the 16th Conference of Parties (COP 16), to take place in the Mexican Caribbean resort city of Cancún, Nov. 29-Dec. 10.

"The proposals of the Cochabamba peoples' summit have been included, which means they will be taken into account," said Colombian activist Lyda Fernanda Forero, of the Hemispheric Social Alliance, which includes non-governmental organisations (NGOs) and networks from Canada to Chile.

But "the lack of will of the developed countries has not changed, and the discussion will continue on the same terms that have been in place till now, making it difficult to reach binding conclusions," Forero told Tierramérica.

"Although it is legitimate and very beneficial that the contents of the 'Peoples Agreement' have been submitted to the official talks, we don't see the possibility that they will be included in the treaties in Cancún, if there are any," agreed Eduardo Giesen, coordinator of Chile's Alliance for Climate Justice.

Stanislaw Czaplicki, co-founder of Climate Reaction Bolivia, an NGO, said in a conversation with Tierramérica, "no issue will reach enough consensus to achieve the level of concrete and approved policy."

In his opinion, there will be spaces in Cancún to debate scientific, technological and financial issues, "but there are not, nor do they pretend to be, a space in which to talk about economic geopolitics," which he says are the basis of the biggest controversies.

The pessimism of the Latin American activists only seems to underscore the divisions among the civil society groups planning to participate in the Cancún events.

There will be at least three distinct sites for alternative forums at COP 16. A group of about 50 NGOs, among them Germany's Heinrich Böll Foundation, created the Climate Dialogue-Mexican Space. The Hemispheric Social Alliance plans to be there.

Another set of organisations will take part in Klimaforum 2010, continuing the experience they began at COP 15 in Copenhagen. Its political platform is very similar to that of Cochabamba.

Meanwhile, the global movement of rural workers and farmers Vía Campesina will set up camp in Cancún.

The Cochabamba proposals are "radical," said Jorge Villarreal, the Heinrich Böll Foundation's regional coordinator for Mexico, Central America and the Caribbean, adding: "We fear the negotiations will be radicalised and there is a risk of breakdown."

However, he acknowledged to Tierramérica that there are "points of consensus, for instance, that the UN Convention should administer the global funds, developed countries should change consumption patterns, and a climate tribunal should be created."

The peoples' agenda "is not going to be become part of the Cancún agreement because (the governments) are more interested in discussing other issues, like market mechanisms," said Alberto Gómez, coordinator for North America of Vía Campesina.

In the opinion of Forero, of the Hemispheric Social Alliance, "COP 16 once again will be a moment of tension for imposing the Copenhagen Accord," forged at the last minute by Brazil, China, United States, India and South Africa. That non-binding agreement does not have fixed targets for reducing greenhouse emissions.

The Copenhagen Accord has been slowly accumulating the signatures of many less developed and vulnerable countries, "which see it as the only way to obtain resources, though scant, for confronting the impacts of climate change," said Chilean Giesen.

In this context, the activists are setting their sights on building alliances and proposing alternatives to the "dominant model," for example, at the upcoming meeting of the Group of 20 wealthy and emerging nations, Nov. 11-12 in Seoul, said Forero.

For Giesen, sooner or later "the movement for climate justice will converge in the countries of the developing South with other citizen groups to influence public policies, and will emerge as political actors at the national level."

The Chilean activist believes that transformations at the national level, not in the international arena, "are the only real possibility for the convergence of civil society and government positions" on climate change.

* Emilio Godoy (Mexico) and Franz Chávez (La Paz) contributed reporting. This story was originally published by Latin American newspapers that are part of the Tierramérica network. Tierramérica is a specialised news service produced by IPS with the backing of the United Nations Development Programme, United Nations Environment Programme and the World Bank. (END)

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Saturday, September 18, 2010

Lakota elder delivers summons to Pope in London on residential school abuse

Public Summons Delivered today to Pope Joseph Ratzinger in London by Lakota and international Tribunal


The Summons was read and posted today by Lydia White Calf, Lakota, outside Westminster Cathedral in London, England where Pope Joseph Ratzinger held a mass. Later, more than 10,000 people marched through the streets, calling among other things for his arrest and trial. The Tribunal to which Ratzinger is being summoned will be convened in London on April 4, 2011. The International Tribunal into
Crimes of Church and State

A Convening of a Forum of Justice under International and Common Law
Cause No. ITCCS – 001 – 2011 UK, Docket 001 A
PUBLIC SUMMONS
To: Joseph Ratzinger, aka “The Pope” and Pontiff of the Roman Catholic Church

BE ADVISED that you have been listed as a primary witness in an adjudication of a matter before this Court, which is a Tribunal of International and Indigenous Judges. Your presence is hereby requested on Monday, April 4, 2011 at 10:00 am, at a location to be disclosed, in the City of London, England.
Said Tribunal is convened pursuant to international Law, indigenous tribal Law, the Rule of Natural Law and the Law of Nations. Your presence is required to participate in the examination of issues and questions regarding the following matters and charges:
1. Your responsibility and liability as head of the Roman Catholic Church for the crimes of genocide, murder, warfare, forced removal from traditional lands, slave labour, institutionalized racism, theft of resources, child trafficking and pedophilia, and other crimes against indigenous peoples and children, arising from the Indian Residential School system in Canada established and maintained by Roman Catholic Church and the government of Canada.

2. Your failure to reply or respond to a public Letter of Demand issued to you from the Friends and Relatives of the Disappeared dated February 4, 2008, asking that you identify the burial sites and cause of death of children who died in Indian Residential Schools in Canada established and run by your church.

3. Your promulgation and enforcement of a policy of concealing and denying violence and rape against children within your Church, and your practice of actively concealing, protecting and aiding and abetting child rapists and other criminals within your Church, and of thereby perpetrating an international obstruction of justice.

You may desire to consult with your attorney in regards to this matter, or have an advocate attend the hearings with you. You may submit written documents and materials, but be advised that they do not carry the same weight, or can substitute for or replace, your personal testimony.

BE ADVISED that any failure by you to respond to this PUBLIC SUMMONS, or failure to attend this Tribunal, can be interpreted to mean that you do not dispute the charges made against you laid forth in this document and by witnesses and other material, and may result in a verdict against you made in absentia.

Due to the Nation to Nation status of this issue, involving the original Nations of the North American continent as holders of Allodial Title, and its concern with matters concerning internationally recognized Crimes against Humanity, this Tribunal and its findings will be monitored by human rights specialists and representatives of governments, International agencies, indigenous Nations and the public media.

This Tribunal will be open to the public and the media. Its officers will submit its findings in the form of a final comprehensive report to the United Nations High Commissioner for Human Rights, the International Criminal Court, and other bodies.

Duly Signed and Delivered this 18th Day of September, in the year 2010, in the City of London.

(signed in the original)

Royce White Calf, Elder
Oglala Lakota Nation
Acting Secretary, The International Tribunal into Crimes of Church and State

American Section: c/o 1000 Walker St., Unit 223, Holly Hill, Florida USA 32117

ITCCS Communication 002 2011 UK, Docket 002

Friday, September 17, 2010

Tea Baggers in Indian Country

In the cloak of hate, the Tea Party sanitizes racism with deception

By Brenda Norrell
Censored News
http://www.bsnorrell.blogspot.com

It seems unlikely that the rightwing Tea Party would be seeking converts in Indian country, but that's what is happening in Montana and South Dakota. In Arizona, heavily-armed Tea Party style hunters are stalking human beings on the Arizona border.

This week, I posted this comment and question, "The Tea baggers, as they are called, are edging their way into Indian country. Any sightings?"

The first confirmation came by way of a link to Wanbli's Indigenous Rights Movement Blog Talk Radio show, about the 'Lakota Tea Party.'
http://www.blogtalkradio.com/wanbli/2010/08/06/indigenous-rights-movement-radio-lakota-tea-party

As the questions rolled in about the Tea Party, I added this on Facebook, "The rhetoric is of course racist. Although many people are not happy with some, or many, of Obama's decisions, the Tea Party rhetoric often crosses the line into harsh or violent rhetoric.

"Rush Limbaugh and Arizona Gov. Janet Brewer also seem to be heroes of the Tea Party guys."

Although Native American readers seemed assured that there was no way that the Tea Party would gain a stake in Indian country, it turned out it had already happened. The Tea Party was in Crow country in Montana, and attempting to organize with Lakotas in Pine Ridge, South Dakota.

This article on the Crow Tea Party appeared in the Billings Gazette:
http://billingsgazette.com/news/state-and-regional/montana/article_1074f29c-1aa0-11df-998a-001cc4c002e0.html

One person responded, "It is a tactic of the rightwingers to pit marginalized groups against one another. They want to see us fight over the scraps that the dominant culture throw us."

The majority of Tea Party members are white, protestant, conservative and rich, according to Wikipedia: http://en.wikipedia.org/wiki/File:Tea_Party_Demographics.gif

Of course, the root of the modernday Tea Party is colonization and the colonizers. Wikipedia states, "The name 'Tea Party' is a reference to the Boston Tea Party of 1773—a protest by American colonists against various acts by the British Government which, among other things, attempted to establish a monopoly on the importation of tea into the colonies by giving a cut on re-importation tax imposed on the East India Company."

It turns out that the Tea Party was already organizing in Pine Ridge.

One reader writes, "They had a tea party meeting at Pine Ridge during Oglala Lakota Nation Pow-wow. I never heard how the turn out was or what they were framing their voice around."

Then from Arizona, came these comments.

"Down here in southeastern Arizona, JT Ready and his for hire mercenaries often say the same things and he has an Apache in his group that is very confused about why he helps the damn NAZI," wrote another.

In South Dakota, Native Americans already talk of a "Tea bagger infestation."

The idea of Native Americans promoting the Tea Party, along with white conservatives, was too bizarre for most. One person e-mailed and questioned whether Native Americans are being paid to travel and organize Tea Party meetings in South Dakota and Montana.

Another person on the Navajo Nation wrote, "I smelled them at the Navajo Nation Fair, hopefully they don't spread their speechless moments to our leaders."

The "bag of brew" scent came from Arizona Gov. Jan Brewer.

It was this final video from the Sonoran Desert in Arizona that revealed how the surge in hate and racism in America, with migrant xenophobia fueled by the media and pushed by private prison lobbyists, border wall builders and security contractors, is now being manifest.

It is a video of white supremacists hunting for migrants with assault rifles on the Arizona border.

Heavily armed, they wear "Border Patrol" caps and display their cache of weapons in the Arizona desert. A confused Apache, a young man wearing the camouflage of a shrub, says he is not a white supremacist and alludes to working with a police department.

Watch the video:

http://www.youtube.com/watch?v=vvtBBt1OUnw

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Censored News is published by censored journalist Brenda Norrell. A journalist for 27 years, Brenda lived on the Navajo Nation for 18 years, writing for Navajo Times, AP, USA Today, Lakota Times and other American Indian publications. After being censored and then terminated by Indian Country Today in 2006, she began the Censored Blog to document the most censored issues. She currently serves as human rights editor for the U.N. OBSERVER & International Report at the Hague and contributor to Sri Lanka Guardian, Narco News and CounterPunch. She was cohost of the 5-month Longest Walk Talk Radio across America, with Earthcycles Producer Govinda Dalton in 2008: www.earthcycles.net/
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"O FRIEND! In the garden of thy heart plant naught but the rose of love, and from the nightingale of affection and desire loosen not thy hold." --Baha'u'llah, Baha'i Faith