Loss of State Jurisdiction To Administer the Surface Mining Control and Reclamation Act of 1977 Within the Exterior Boundaries of the Muscogee (Creek) Nation Reservation in the State of Oklahoma, 26941 [2021-10400]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 86, Number 94 (Tuesday, May 18, 2021)]
[Notices]
[Page 26941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10400]



[[Page 26941]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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


Loss of State Jurisdiction To Administer the Surface Mining 
Control and Reclamation Act of 1977 Within the Exterior Boundaries of 
the Muscogee (Creek) Nation Reservation in the State of Oklahoma

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

ACTION: Notice of decision.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are notifying the public that the recent decision of the 
United States Supreme Court in McGirt v. Oklahoma, 140 S. Ct. 2452 
(2020), which legally recognized the on-going existence of the historic 
Muscogee (Creek) Nation Reservation in the State of Oklahoma, 
necessarily forecloses 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 Muscogee (Creek) 
Nation Reservation. SMCRA designates OSMRE as the regulatory authority 
over surface coal mining and reclamation operations on Indian lands 
where a tribe has not obtained primacy. OSMRE has thus determined that 
Oklahoma cannot exercise its State program regulatory authority over 
surface coal mining and reclamation operations within the exterior 
boundaries of the Muscogee (Creek) Nation Reservation. Accordingly, for 
lands within the exterior boundaries of the Muscogee (Creek) Nation 
Reservation, OSMRE is assuming jurisdiction over the SMCRA Title IV 
reclamation and Title V regulatory programs. The Muscogee (Creek) 
Nation Reservation consists of lands, wholly or partially within the 
following counties: Creek, Hughes, Seminole, McIntosh, Muskogee, 
Okfuskee, Okmulgee, Tulsa, Rogers, Mayes, and Wagoner.

DATES: As of April 2, 2021, OSMRE initiated transfer of SMCRA Title IV 
and Title V program responsibilities within the exterior boundaries of 
the Muscogee (Creek) Nation Reservation.

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

SUPPLEMENTARY INFORMATION: On April 2, 2021, OSMRE sent letters to the 
Oklahoma Conservation Commission (OCC) and the Oklahoma Department of 
Mines (ODM) to initiate transfer of the SMCRA Title IV and Title V 
program responsibilities within the exterior boundaries of the Muscogee 
(Creek) Nation Reservation. Thus, beginning a coordination period that 
will 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 
Muscogee (Creek) Nation Reservation. During the transition period, both 
the OCC and ODM will, to the extent permitted by applicable law, 
maintain routine reclamation and regulatory program activities, 
including by responding to any Abandoned Mine Land (AML) emergencies 
within the exterior boundaries of the Muscogee (Creek) Nation 
Reservation. OSMRE does not consider any action with irreversible or 
irreparable consequences, such as the approval of permitting actions or 
the release of bonds or other obligations under SMCRA, to be a routine 
reclamation and regulatory program activity, and, during the transition 
period, OCC and ODM should not take any such actions with respect to 
lands within the boundaries of the Muscogee (Creek) Nation Reservation.
    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 program 
that meets the minimum standards set forth 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 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. As indicated, 
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. 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. The regulations at title 30 of the Code of Federal 
Regulations, Chapter VII, implement these provisions of SMCRA.

Glenda H. Owens,
Deputy Director, Office of Surface Mining Reclamation and Enforcement.
[FR Doc. 2021-10400 Filed 5-17-21; 8:45 am]
BILLING CODE 4310-05-P