OKLAHOMA CITY – State Attorney General Mike Hunter is butting heads with President Biden’s Office of Surface Mining Reclamation and Enforcement over its attempted takeover of regulation of coal mining and reclamation activities on land in Oklahoma that’s subject to the McGirt decision.
Hunter’s April 16 response was issued after OSMRE’s deputy director, Glenda Owens, sent letters dated April 2 to the Oklahoma Conservation Commission and the state Secretary of Energy and Environment; Ms. Owens claimed that the U.S. Supreme Court ruling in McGirt v. Oklahoma last July stripped the state of authority to regulate surface coal mining and reclamation operations on lands constituting the Muscogee (Creek) Reservation. The Court-reaffirmed tribal reservation encompasses portions or all of 11 counties in eastern Oklahoma.
Owens wrote that the Surface Mining Control and Reclamation Act of 1977 “designates OSMRE as the regulatory authority over surface coal mining and reclamation operations on Indian lands” when a tribe does not have the primary responsibility for regulatory activity within its boundaries.
The OSMRE demanded that Oklahoma officials surrender their authority and records to federal officials within 30 days.
“[B]ecause your demand appears to have no adequate basis in law, I am advising that no state agency should comply with it...,” Hunter replied.
Hunter sent his response to OSMRE’s regional director and Tulsa field office director; to Oklahoma’s five-member congressional delegation and its two United States senators; to Kenneth Wagner, Oklahoma Secretary of Energy; to Blayne Arthur, state Agriculture Secretary; to Trey Lam, executive director of the Oklahoma Conservation Commission, which administers the state’s Abandoned Mine Land program; and to Mary Ann Pritchard, director of Oklahoma’s Department of Mines.
Hunter said the U.S. Department of the Interior, parent agency of the OSMRE, is ignoring relevant law.
“Courts ruled a long time ago that reservation lands are not categorically exempt from state jurisdiction for all purposes. The McGirt ruling was about criminal jurisdiction, not all state regulations of industries. Further, we have supervised mines and reclamation operations in Oklahoma for decades and there is no legal basis for us to stop this practice now.”
The AG’s letter says only Congress has the authority to change the regulatory authority on reservation lands from the state to the federal government. Even then, Congress faces limits in repealing a state’s civil jurisdiction over non-Native
Americans on reservation land, Hunter wrote.
“You write about whether your agency ‘granted a State regulatory authority over Indian lands within its boundaries’ or whether your agency has ‘authority to confer on the State of Oklahoma jurisdiction’ over Indian lands,” Hunter wrote to Ms. Owens. “Both statements reflect an incorrect understanding of state jurisdiction. Absent a statute stripping the state of jurisdiction, Oklahoma has inherent authority on the Creek reservation regardless of the actions of your agency.”
Owens’ letters “also assume pre-emption of state jurisdiction without citing any statute indicating a clear and manifest purpose of Congress to enact such pre-emption,” Hunter wrote.
OSMRE “long ago acquiesced in Oklahoma’s jurisdiction over mines throughout Oklahoma,” Hunter asserted. The portions of the federal Surface Mining Control and Reclamation Act that are relevant to Indian lands “are currently satisfied through state supervisions,” Hunter wrote.
Owens wrote that the Conservation Commission should “continue its routine reclamation program activities” in the Creek Reservation, and continue to respond to any abandoned mine land emergencies, during the 30-day transition period. And the state Department of Mines “should maintain its routine administrative, inspection, and enforcement responsibilities” within the reservation boundaries during the interim period, Owens wrote.
“Per the guidance provided by the Oklahoma Attorney General, the Oklahoma Conservation Commission shall continue to proceed with all of our Abandoned Mine Land reclamation projects,” said Trey Lam, executive director of the Oklahoma Conservation Commission.
In a related issue, although the McGirt decision rendered last year by the Supreme Court of the United States focused solely on criminal jurisprudence, the extent of state taxing authority in “Indian Country,” as well as its regulatory authority, has also been challenged.
Oneta Power, LLC, which owns an electricity generation plant in Broken Arrow, filed suit in Wagoner County District Court last August against County Assessor Sandy Hodges over the company’s property tax assessment.
Oneta Power has raised the question of whether the Wagoner County assessor “has lawful jurisdiction to levy and assess ad valorem tax on personal property within the territorial boundaries of the Muscogee (Creek) Reservation” in light of the SCOTUS decision in McGirt.
The electric company has requested a trial, but no date has been set and the case is still pending, the Oklahoma State Courts Network indicates.