Friday, July 16, 2021, Gallup Independent

By Kathy Helms, Special correspondent

SANTA FE – In a potentially “groundbreaking” case, the Organization of American States’ Inter-American Commission on Human Rights has agreed to hear the merits of a petition filed a decade ago by the New Mexico Environmental Law Center on behalf of Eastern Navajo Diné Against Uranium Mining and several of its grassroots members.

The petition alleges that the United States, through its U.S. Nuclear Regulatory Commission, violated Eastern Navajo Diné’s human rights and breached its obligations under the American Declaration of the Rights and Duties of Man when, in 1998, the federal agency granted Hydro Resources, Inc. a license to conduct uranium mining at four sites in the Navajo Nation communities of Churchrock and Crownpoint.

“This is the first time anybody’s called the U.S. government to account for its uranium mining policies,” Eric Jantz, staff attorney with the Law Center, said. “There have been international cases regarding nuclear testing off the Marshall Islands but nobody has ever taken the government into account for how it has treated communities, especially Native communities, in the context of uranium development.”

Jantz said their hope is that it will allow people who may not otherwise be aware, to see that this is an ongoing issue that’s going to continue to affect Native communities for generations.

Human rights issue

The Inter-American Commission said petitioners object to the source and byproduct materials license granted to Hydro Resources, Inc. given previous uranium mining activities in or close to Churchrock and Crownpoint – Diné Indian Country communities where “suffering is measured in milligrams per liter, millirems, and picocuries.”

Churchrock, site of the largest nuclear disaster in U.S. history, received that dubious distinction 42 years ago July 16, 1979, when the tailings dam at the United Nuclear Corp. uranium mill broke, sending 93 million gallons of radioactive liquid churning down the Rio Puerco river that flows through the community.

ENDAUM’s petition, filed May 13, 2011, alleges the United States has violated several articles of the American Declaration including: right to life and personal security, right to the preservation of health and to well-being, right to the benefits of culture, and right to property.

Petitioners claim that the Navajo Nation is host to 520 abandoned uranium mine sites and three uranium mill sites that have contaminated tens of millions of gallons of groundwater and countless acres of land while also causing significant illnesses and death in nearby indigenous communities.

Speculative harms?

The United States contends that ENDAUM’s petition fails to set forth a clearly identifiable violation of any provision of the American Declaration because the alleged violations are not fully developed but are predicated upon a series of interdependent assumptions of future events.

Among those assumptions are that Hydro Resources, Inc. will successfully complete the necessary regulatory stages to commence mining operations; that it will actually begin such mining operations in the future; and that such mining operations will cause the harm through contamination that the petitioners hypothesize.

Further, the United States argues that the petitioners are no more able today to substantiate the speculative harms upon which their claims are based than they were at the time the petition was filed; and that as a factual matter, any potential violation of the American Declaration at some point in the future remains wholly speculative.

Hydro Resources, Inc. still has not started operations at any of the four sites and there is no indication that it will do so at any time in the near future, the United States claims.

Remedies exhausted

Jantz said ENDAUM decided to go to the Inter-American Commission after petitioners exhausted all domestic remedies Nov. 15, 2010, when the U.S. Supreme Court dismissed its application for further review after an unfavorable ruling from the U.S. Court of Appeals for the 10th Circuit.

“Initially, we decided to go to the Inter-American Commission because, one, ENDAUM has always considered the destruction of their water and their communities as a human rights violation. Two, they’ve always considered the impacts on their health and lives that uranium mining has had historically, and likely in the future also, as a human rights violation.

“So it made sense for us to go to the Inter-American Commission and assert claims under the regional human rights treaty, the American Declaration of the Rights and Duties of Man. That’s one of the few human rights mechanisms that the U.S. is a party to,” Jantz said.

What’s next?

ENDAUM has until Aug. 20 to submit “additional observations,” which is basically a brief talking about the legal issues, additional factual issues and technical issues that might help inform an ultimate decision from the commission. Jantz said they have requested an extension to the end of October but are proceeding under the assumption that they will have to file by the end of August.

“Four months really isn’t enough time to cover all the ground we need to cover for what’s happened – technical and health and factual developments from the last decade,” he said.

“Whether it’s in August or October, we’ll submit these additional observations. The U.S. government will have an opportunity to respond and when we file our additional observations we’ll ask for a hearing in person in our commission’s  next available session which is going to be spring 2022,” Jantz added.

There is no timeline for the commission to render a decision.

“This case, and others like it, is sort of the beginning of the effort to bring the U.S. government around to the idea that destroying environmental justice communities’ resources really is a human rights violation,” Jantz said.