[Federal Register Volume 86, Number 199 (Tuesday, October 19, 2021)]
[Notices]
[Pages 57854-57855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22720]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

[S1D1S SS08011000 SX064A000 212S180110; S2D2S SS08011000 SX064A000 
21XS501520]


OSMRE Jurisdiction To Administer the Surface Mining Control and 
Reclamation Act of 1977 Within the Exterior Boundaries of the Cherokee 
Nation Reservation and the Choctaw Nation Reservation in the State of 
Oklahoma

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Notice of jurisdiction.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are notifying the public that the recent decisions of the 
Oklahoma Court of Criminal Appeals in Hogner v. Oklahoma, 2021 WL 
958412 (Okla. Ct. Crim. App. March 11, 2021), and Sizemore v. Oklahoma, 
2021 WL 1231493 (Okla. Ct. Crim. App. April 1, 2021)--which held that 
the historic Cherokee Nation of Oklahoma and the Choctaw Nation of 
Oklahoma Reservations, respectively, had not been disestablished--
necessarily foreclose the State of Oklahoma's authority to implement 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on 
Indian lands within the exterior boundaries of the Cherokee Nation and 
Choctaw Nation of Oklahoma Reservations. This determination follows the 
recent decision of the United States Supreme Court in McGirt v. 
Oklahoma, 140 S Ct. 2452 (2020), which legally recognized the ongoing 
existence of the historic Muscogee (Creek) Nation Reservation in the 
State of Oklahoma and necessarily foreclosed the State of Oklahoma's 
authority to implement SMCRA on Indian lands within the exterior 
boundaries of the Muscogee (Creek) Nation Reservation. As OSMRE stated 
in its recent notification regarding SMCRA jurisdiction on the Muscogee 
(Creek) Nation Reservation, SMCRA designates OSMRE as the sole 
regulatory authority over surface coal mining and reclamation 
operations on Indian lands where a tribe has not obtained primacy. 
Consistent with the Supreme Court's decision in McGirt, Oklahoma may 
not exercise its State program regulatory authority over surface coal 
mining and reclamation operations within the exterior boundaries of the 
Cherokee Nation and Choctaw Nation of Oklahoma Reservations. 
Accordingly, for lands within the exterior boundaries of the Cherokee 
Nation and Choctaw Nation Reservations, OSMRE is the sole agency with 
jurisdiction over the SMCRA Title IV abandoned mine land (AML) 
reclamation and Title V regulatory programs. The Cherokee Nation 
Reservation consists of lands, wholly or partially within the following 
counties: Adair, Cherokee, Craig, Delaware, Mayes, McIntosh, Muskogee, 
Nowata, Ottawa, Rogers, Sequoyah, Tulsa, Wagoner, and Washington. The 
Choctaw Nation of Oklahoma Reservation consists of lands, wholly or 
partially within the following counties: Atoka, Bryan, Choctaw, Coal, 
Haskell, Hughes, Johnston, Latimer, Le Flore, McCurtain, Pittsburg, 
Pontotoc, and Pushmataha.

DATES: As of June 17, 2021, OSMRE notified Oklahoma of OSMRE's 
responsibilities under SMCRA Title IV and Title V programs within the 
exterior boundaries of the Cherokee Nation and Choctaw Nation of 
Oklahoma Reservations.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Regional Director 
(DOI Interior Regions 3, 4, and 6), Office of Surface Mining 
Reclamation and Enforcement, 501 Belle St., Suite 216, Alton, IL 62002; 
Telephone (618) 463-6463 Ext. 5101.

SUPPLEMENTARY INFORMATION: The decisions in Hogner and Sizemore both 
rely on the rationale of the United States Supreme Court in McGirt v. 
Oklahoma, 140 S Ct. 2452 (2020). Following McGirt, OSMRE evaluated 
Oklahoma's implementation of its approved regulatory program to 
identify any inconsistency with the McGirt decision. On April 2, 2021, 
OSMRE sent letters to the Oklahoma Conservation Commission (OCC) and 
the Oklahoma Department of Mines (ODM) notify those agencies of OSMRE's 
responsibilities under SMCRA's Title IV and Title V program within the 
exterior boundaries of the Muscogee (Creek) Nation Reservation. OSMRE 
notified the public of its jurisdiction via Federal Register notice, 
published on May 18, 2021 (86 FR 26941).
    Although McGirt expressly recognized the ongoing existence of only 
the Muscogee (Creek) Nation Reservation, in Hogner and Sizemore the 
Oklahoma Court of Criminal Appeals examined the relevant treaties and 
congressional acts and applied McGirt's reasoning to conclude that the 
Cherokee Nation and Choctaw Nation of Oklahoma Reservations had not 
been disestablished. The U.S. Department of Justice subsequently 
recognized that the Cherokee Nation and Choctaw Nation of Oklahoma 
Reservations had not been disestablished and has determined that the 
United States has criminal jurisdiction over major crimes committed 
within the boundaries of these reservations. As those reservations have 
not been disestablished, the lands within the exterior boundaries of 
the Cherokee Nation and Choctaw Nation of Oklahoma Reservations 
constitute ``Indian lands'' as defined by SMCRA, prohibiting the State 
of Oklahoma from exercising jurisdiction over surface coal mining and 
reclamation operations within the exterior boundaries of these 
reservations. On June 17, 2021, OSMRE sent letters to OCC and ODM 
notifying those agencies of OSMRE's responsibilities under SMCRA's 
Title IV and Title V programs within the exterior boundaries of the 
Cherokee Nation and Choctaw Nation Reservations. This notification 
began a coordination period to allow for the orderly transfer of all 
OCC and ODM records, documents, data, and other information associated 
with the regulation of activities under SMCRA within the exterior 
boundaries of the Cherokee Nation and Choctaw Nation of Oklahoma 
Reservations.
    Pursuant to SMCRA, States may acquire the primary responsibility 
(i.e., primacy) for the regulation of surface coal mining and 
reclamation operations on non-Federal and non-Indian lands within the 
State. To obtain primacy, a State must develop a regulatory and/or 
abandoned mine land program(s) that meets the minimum standards set 
forth

[[Page 57855]]

in SMCRA and the Federal regulations, as approved by the Secretary of 
the Interior. SMCRA, however, does not allow for the delegation of this 
authority to a State to regulate surface coal mining and reclamation 
operations on ``Indian lands'' within the State's boundaries. Unless a 
Tribe obtains primacy, SMCRA designates OSMRE as the sole regulatory 
authority over surface coal mining and reclamation operations on 
``Indian lands.'' 30 U.S.C. 1300. SMCRA defines ``Indian lands'' as: 
``all lands, including mineral interests, within the exterior 
boundaries of any Federal Indian reservation, notwithstanding the 
issuance of any patent, and including rights-of-way, and all lands 
including mineral interests held in trust for or supervised by an 
Indian tribe.'' 30 U.S.C. 1291(9).

Potential Implications of Substitution of Federal Authority

    SMCRA established the Abandoned Mine Reclamation Fund to receive 
reclamation fees that, along with funds from other sources, are used to 
finance reclamation of abandoned coal mine sites. Title IV of SMCRA 
authorizes OSMRE to provide grants to eligible States and Tribes that 
are funded from permanent (mandatory) appropriations. In general, 
recipients use these funds: To reclaim the highest priority AML coal 
mine sites that were left abandoned prior to the enactment of SMCRA in 
1977; to reclaim eligible non-coal sites; for projects that address the 
impacts of mineral development; and for eligible non-reclamation 
projects.
    Title V of SMCRA authorizes OSMRE to provide grants to States and 
Tribes to develop, administer, and enforce State and Tribal regulatory 
programs that address, among other things, the disturbances from coal 
mining operations. Additionally, upon approval of a State or Tribal 
regulatory program, Title V authorizes a State or Tribe to assume 
regulatory primacy and act as the regulatory authority within the State 
or Tribe, and to administer and enforce its approved SMCRA regulatory 
program with oversight and backup enforcement authority provided by 
OSMRE. The regulations at Title 30 of the Code of Federal Regulations, 
Chapter VII, implement these provisions of SMCRA.
    OSMRE will revisit and revise Oklahoma's regulatory and reclamation 
grants, as appropriate and consistent with OSMRE's assumption of 
regulatory and reclamation jurisdiction over Indian lands in Oklahoma.

Glenda H. Owens,
Deputy Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2021-22720 Filed 10-18-21; 8:45 am]
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