Black Mesa's troubled history

Navajo Times, June 14, 2007

Coal strip mining was controversial on Black Mesa from the very beginning. When it was first proposed during the MacDonald administration in the 70s, residents of the highly traditional area predicted that it would divide the community.

Besides the obvious disruption of thousands of acres of land, there was the question of water. Peabody Western Coal Co. got permission from the tribe to use millions of gallons annually from the Navajo Aquifer, the area's main reserve of high-quality ground water.

Within a few years, local residents and the Hopi Tribe began reporting that seeps and shallow wells were drying up. Despite a long barrage of scientific studies asserting that the pumping from the aquifer was not drying up surface water sources, Navajo and Hopi grassroots organizations were successful in organizing communities to oppose Peabody's use of the Navajo Aquifer for its operations, especially to slurry coal over 273 miles to the Mohave Generating Station in Laughlin, Nev.

The Navajo Nation Council passed a resolution in July 2003 that supported putting the N-aquifer off limits to Peabody.

A close reading of the resolution showed that it carried no legal force, but Peabody agreed to look for an alternative water source.

Meanwhile, the company continues to use the N-aquifer for its operations on Black Mesa, albeit at a fraction of what it was using before Mohave, the Black Mesa Mine, and the coal slurry shut down in December 2005.

Peabody has characterized the mine closure as a suspension, not an end to operations. But behind the high profile demise of Mohave, target of a decades-long battle by environmentalists, is a less known fact:

The tribe had not agreed to extend or renew the lease because it was still trying to recover coal royalties it claimed it should have received from the mine.

The coal royalties were the subject of a $600 million lawsuit and negotiations had stalled. In 1999, the same year that Mohave's owners agreed to clean it up or shut it down within six years, the tribe sued the U.S. Interior Department and Peabody to increase royalty rates on Black Mesa coal.

The nation's 1999 lawsuit is tied to a 1985 Interior decision that blocked the nation from increasing Peabody's royalty payments from 2 percent to 25 percent. Instead, the tribe settled for an increase of half that, 12.5 percent rate.

According to federal records, while the Navajo Nation, Peabody and the BIA were re-negotiating the royalty rates, then Interior secretary Donald Hodel met with Peabody representatives and later suppressed a BIA letter that supported the tribe's position on a 25 percent coal royalty rate.

Hodel's action, and the BIA document, were unknown to the Navajo Nation before 1999. A federal court threw out the complaint against Hodel, but allowed the suit against Peabody to go forward and urged the parties to settle it out of court.

Last year, a March 3, 2006, draft settlement of the lawsuit, negotiated by Shirley and his administration, was leaked to the media. It contained sweeping changes to the way water, coal, and other natural resources are governed on tribal land.

For instance, the Navajo and Hopi tribes would agree to rescind measures prohibiting use of the Navajo Aquifer to slurry coal from Peabody's Black Mesa Mine to the Mohave Generating Station in Nevada.

The N-aquifer would continue to be available to Peabody's use until a new slurry line was ready to hook into the Coconino Aquifer. The new slurry line would be financed and built by California Edison and other utilities that co-own the Mohave power plant.

The draft agreement also calls for Interior's Bureau of Reclamation - instead of the tribes - to oversee the slurry line and Navajo and Hopi domestic water systems tapping the C-aquifer.

BOR would gain this authority from a new law, the Navajo-Hopi Coal Leasing Act, which Congress would have to approve.

The act would basically remove tribal leasing authority over natural resources - water, coal, air, land, etc. - rights that federal treaties have recognized and protected and federal courts have defended.

Shirley has not responded to the Times request for a comment on the draft settlement. He also has never presented it to the tribal council.