As Oklahoma Courts continue to grapple with the many legal challenges they face as a result of the U.S. Supreme Court’s McGirt v. Oklahoma decision, an interpretation of that decision that goes beyond just criminal prosecution has resulted in the State of Oklahoma suing the United States Department of the Interior.

Last year the Supreme Court determined that because Congress has never dissolved the borders of the Muskogee (Creek) reservation, the tribe retains jurisdiction in criminal cases that had previously been handed to the state. This ruling has since been extended to each of Oklahoma’s Five Civilized Tribes, which includes the Seminole Nation.

On April 2, the Office of Surface Mining Reclamation & Enforcement (OSMRE, a Bureau of the U.S. Department of the Interior) announced they had notified the Oklahoma Department of Mines (ODM) and the Oklahoma Conservation Commission (OCC) that, under the McGirt decision, the State may no longer exercise regulatory jurisdiction under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on Indian Lands within the State. SMCRA defined “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-if-way, and all lands including mineral interests held in trust for or supervised by an Indian tribe.

On Monday July 19, Governor Stitt issued a press release stating that, working with the Oklahoma Office of the Attorney General, he has filed a lawsuit against the Department of Interion, Secretary Deb Halaand and other Biden administration officials for unlawfully attempting to strip Oklahoma of its jurisdiction to regulate surface coal mining and reclamation operations. The lawsuit argues the Department of the Interior is relying on a novel and erroneous expansion of the McGirt decision, which was explicitly limited to the application of federal criminal law under the Major Crimes Act.

“The Department of the Interior and other defendants in this case are dead wrong about their decision,” Governor Stitt argues. “They are attempting to unlawfully federalize mines that have been regulated by Oklahoma for almost 40 years by ignoring the clear limitations in the McGirt decision. Despite multiple attempts at dialogue, the Biden Interior Department has refused to adequately explain their legal position. The state of Oklahoma has no choice but to pursue legal action.”

Stitt’s argument pushes back on the OSMRE claim that the 1977 Reclamation Act specifically designates OSMRE as the regulatory authority over surface coal mining and reclamation operations on Indian lands where a Tribe has not obtained primacy. Thus, for lands within the exterior boundaries of the Muscogee (Creek) Nation Reservation, OSMRE will assume the SMCRA Title V and Title IV responsibilities from the Oklahoma Department of Mines (ODM) and the Oklahoma Conservation Commission (OCC). These Titles currently regulate active surface coal mining and reclamation of abandoned mined lands within the State.

The lawsuit argues that the Defendants failed to follow the required process under the APA for taking final agency action and the required process under SMCRA for disapproving a State program and preparing a Federal program.

According to the State of Oklahoma Department of Mines website, Oklahoma coal production had declined from its peak production of 5.73 million tons in 1981 to its lowest production at 670,610 tons in 2017. Until recent years, the major consumption of Oklahoma coal had been by out-of-state utilities. However, there is potential for Oklahoma’s coal resources to provide the basis for economic growth; only the apex of coal resources has been exploited. Oklahoma contains the most significant deposits of bituminous coal between the Mississippi River and the Rocky Mountains. Other mining regulated by the ODM includes limestone, dimensional stone, sand and gravel, gypsum, clay and shale, granite, caliche, tripoli, salt, iron ore, and chat.

According to the OU Oklahoma Geological Survey, Oklahoma metals production is an important part of the state’s heritage, but today no mining for metals occurs in Oklahoma.