Mesa's troubled history
Navajo Times, June 14,
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,
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
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's lease with Peabody for
the Black Mesa Mine ended on Dec. 31, 2005, as did the
lease for the slurry pipeline.
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.