Nevada tribe says Sandoval and Pruitt didn’t adequately consult on Superfund decision



The leader of an American Indian tribe near Yerington says Nevada Gov. Brian Sandoval and Environmental Protection Agency Administrator Scott Pruitt excluded tribal officials from meaningful participation in a decision about a polluted mine.

Laurie Thom, chairman of the Yerington Paiute Tribe, signed a letter to Sandoval that said the governor should have met with tribal officials before agreeing with Pruitt to defer a Superfund listing for the former Yerington Anaconda Mine. She sent Pruitt a similar letter.

On Feb. 5, Sandoval and Pruitt signed an agreement that would put the state, not the federal government’s Superfund program, in charge of overseeing cleanup at the mine.

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Decades of operations polluted water in and around the mine property. Multinational oil company BP, through a subsidiary that operated the mine when most of the pollution occurred, is responsible for the cleanup bill.

BP and non-Indian local officials have resisted calls to add the mine to EPA’s Superfund list, saying such a designation could give local agriculture an undeserved black eye.

Tribal officials have pushed in favor of a Superfund listing, saying the EPA has more resources and authority to hold BP accountable for the cleanup.

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Non-Indian residents near the mine have already received a $19.5 million settlement from BP, through subsidiary Atlantic Richfield Co., and the company is paying to supply bottled water to the Yerington Paiute reservation, although the tribe wasn’t part of the cash settlement.

The letter dated May 18 called Sandoval’s decision to sign the agreement for state oversight after previously consenting to a Superfund designation, “an unusual action,” since BP has the financial resources to fund a cleanup and "most states generally avoid accepting a transfer of liability and financial commitment previously held by a federal agency."

In the letter to Sandoval, Thom also said Nevada Department of Environmental Protection officials met with tribal officials only to inform them of decisions that had already been made, as opposed to consulting on future decisions.

The letter also stated that Sandoval, as the decision-maker, should have met with tribal officials personally.

“Your own schedule of the last two years proves that this has not happened,” Thom wrote.

In response to Thom’s letter, Sandoval disagreed with the tribe’s premise and said he was “disappointed” the chairman went public with her concerns.

“The Governor has a strong working relationship with the Yerington Paiute Tribe, most recently with the work he's done with it to sign a compact that allows the tribe to sell marijuana and so he is naturally disappointed the letter was provided to the press before it was provided to him,” Sandoval spokesperson MarySarah Kinner wrote.

“Governor Sandoval’s singular goal throughout this process was to have the Anaconda Mine site cleaned up in the quickest and most thorough manner in order to avoid the stigma of being declared a Superfund site," Kinner wrote. "The deferral agreement between NDEP and the EPA provides the path for the quickest cleanup funded by Atlantic Richfield. There was no guarantee of funding or cleanup even if it was listed on the National Priority List.”

Clifford Banuelos, the tribal-state environmental liaison for the Inter-Tribal Council of Nevada, said federal agencies are generally required by law to meaningfully consult with tribal leaders on decisions that could affect tribes. States don’t always have the same responsibility, he said.

But in the case of mine, Banuelos said, the tribe and state have a consultation protocol.

“They are supposed to at least follow that protocol,” Banuelos said. “I do think that the state is trying to work with the tribe, but I am not sure they are following consultation policy.”

In the letters, Thom described meaningful consultation as a process that involves a meeting between tribal government leaders and “decision makers” for non-Indian governments.

She said signatures on the deferral agreement from Sandoval and Pruitt identify them as decision makers, meaning they should have first consulted with the tribe.

“As Administrator of the Environmental Protection Agency, you failed to meet any standard of consultation on a government-to-government basis prior to making the decision to enter into the deferral agreement with Nevada,” Thom wrote to Pruitt in a letter dated March 8.

Tribal officials did meet with high-ranking officials in the EPA’s Region 9, which covers Nevada, but Pruitt’s signature on the deferral agreement suggests regional officials weren’t the true decision makers. A Region 9 spokesperson referred questions about the letter to Pruitt to the agency's national office, which did not immediately respond.

Banuelos said regional EPA officials hinted to tribal officials there would be a deferral, but that they didn’t state it definitively.

“They didn’t say it plainly but that is what they said,” Banuelos said of EPA officials. “They really parsed their words and I think they kind of dangled fruit in front of the tribe. And that is what the tribe held onto but that wasn’t going to happen.”

Banuelos said the tribe’s concerns about lack of consultation with the state were the result of a miscommunication, adding, “I don’t think it was done on purpose.”

Still, he said even a dispute rooted in miscommunication is important because trust from people on all sides will be critical to the success of the cleanup.

“That trust has to be developed because the history of government agencies working with indigenous people is horrible,” Banuelos said.