To Comfort The Afflicted
And Afflict The Comfortable

To Comfort The Afflicted And Afflict The Comfortable

Wednesday, August 4, 2021

Observercast

Sue ‘Em Stitt Strikes Again!

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For someone who almost always has lost in any court, whether it be district, appellate or supreme, Sue ‘em Stitt sure seems to love spending your money in the failed and expensive process.

This time, the target is the United States Department of Interior and the issue is who has primary regulatory jurisdiction over surface mining on Indian Territory.

An interesting wrinkle on this matter from the get-go is Gov. Stitt filed his lawsuit in the Western District jurisdiction of the federal court system instead of the Eastern District where all the surface mining of coal occurs. He can argue that since his main office is in Oklahoma City, located in the Western District, that is where the legal arguments should be heard. However, he also has a smaller, fully staffed operation in Tulsa, which is in the Eastern District headquartered in Muskogee.

Additionally, all the tribes originally impacted by the McGirt decision are in the eastern half of our state.

Go figure. Somebody will have to.

More to the substance of the Interior’s stance on the matter of mining: the agency’s secretary, Deb Haaland, former U.S. representative from New Mexico and a Native American, makes clear her view that the federal government has primacy, that the McGirt decision indicates same, and that the majority of justices on the United States Supreme Court so ruled in July 2020.

The United States Office of Surface Mining and Reclamation, a part of Interior, is the lead federal agency in the argument and is likely to bring to bear all its extensive powers to defend its decision made just this May.

In summary, how this matter is resolved may bring clarity, or further confusion, to what is really at the core of McGirt and that is: Does it apply only to major crimes committed by Native Americans on tribal lands, or has the landmark decision opened the door for much further federal expansion into other state/federal responsibilities?

We’ll see. And perhaps Stitt has a better argument in court this time over the relatively minor dust-up about surface mining of coal. He better, based on his track record so far in any court, and the Legislature gave him $10 million of your tax dollars to find out.

Seems to me a better way might have just been a phone call to Secretary Haaland to discuss options other than what promises to be a prolonged and expensive series of court battles consuming months, if not years, until resolution.

One thing for damn sure: That approach initially would have been a lot cheaper. But knowing Stitt’s proclivity for court action I imagine, like the craps player in a casino, the $10 million of your money was probably burning a hole in his pocket.

Since it’s our money, we better hope his roll of the dice doesn’t come up snake eyes again … but I wouldn’t bet on.

P.S. The unspoken worry in my column above is this: Oklahoma oil and gas operators are increasingly concerned that McGirt might even extend someday to the federal regulation of their industry. Not possible you say? Guess who currently has such authority over all drilling on Osage tribal lands in Osage County? The Bureau of Indian Affairs, which just happens to be a part of … the Department of the Interior.

Stay tuned.

Cal Hobson
Cal Hobson, a Lexington Democrat, served in the Oklahoma Legislature from 1978-2006, including one term as Senate President Pro Tempore.