Don't read too much into coal proposals

The March memo referred to in the Daily Sun story, "Tribes desperate to reopen coal mine," (May 7, 2006) was only a proposal, not a legal document. It is incorrect to say that the tribes were willing to give up anything. The March 7 document does not indicate what the tribes are willing to give up. Therefore the Daily Sun piece serves up speculation and an incomplete story.

It is untrue that Peabody Western Coal and Southern California Edison would be allowed to pump more water from the Navajo Aquifer over Hopi farmers' objections, as the Sun reported. The idea is to replace the use of N-aquifer water with Coconino aquifer water. The C-aquifer project was covered in the EIS scoping meetings and will be covered in the draft EIS.

Southern California Edison wants to pump the C-aquifer for replacement source of water. However, in an emergency, Peabody may still have to supply backup water from the N-aquifer but this will not be "more water" from the N-aquifer than was already agreed to.

The Navajo Nation did not agree to drop a lawsuit alleging Peabody engaged in racketeering that the tribe argues cost it $600 million in coal royalties, as the Sun reported. There is not enough information in the March 7 document for this conclusion and it is again, therefore, speculation. The negotiation and mediation involves all issues in dispute between the parties, including litigation.

It is untrue that the tribes agreed that Peabody could not be sued if it is determined the company fraudulently withheld data showing its pumping of the Navajo Aquifer for coal operations had harmed the aquifer, as the Sun reported. Again, the March 7 document is a proposal, not an agreement signifying what the tribes agree to. To say it is is speculation.

The Navajo Nation is not involved in secret negotiations, is not negotiating secret deals with energy companies, and neither the Navajo Negotiating Team nor President Shirley has authority to commit the Navajo Nation to any binding agreement. Only the Navajo Nation Council has the authority to approve a final agreement. The Navajo Nation negotiating team is involved in these negotiations with the consent of and in consultation with its client, the Navajo Nation government. This can hardly be called secret when several Navajo Nation governmental entities are involved.

The Navajo and Hopi tribes, Peabody, the Salt River Project and SCE are all bound by a confidentiality agreement that was required by a federal court mediation agreement. This is not at all unusual and is the standard practice governing similar matters.

The Navajo Nation Negotiation Team is composed of lawyers and council delegates. President Shirley is not on this team despite the accusation of him approving secret deals.

In accordance with the desire of the Navajo Nation Council, when negotiation meetings are held again, the Navajo Nation Negotiation Team will be at the table to participate in the mediation process.

The Sun reported that the March 7 proposal includes little of what the tribes requested. There is no way to ascertain what the tribe sought from that proposal document.

The information about the proposed pipeline to Canyon Diablo has been reported in public environmental impact statement scoping meetings and is not new. However, it is also untrue to report that if the well fields were to fail, Peabody would have first priority at Navajo users expense. Peabody will not do any pumping. As reported in the scoping meetings, tribal domestic uses will have priority.

It is also inaccurate to report that Southern California Edison would not pay for water development in the Leupp area because no agreement to that effect has been approved. This is more speculation. President Shirley stated he would not support an agreement that does not develop water for these Navajo communities.

The Navajo Nation is participating in the mediation process for specific reasons. These are to determine whether a better arrangement can be reached with the energy companies that provides:

1. Compensation to the Navajo Nation for all past wrongs alleged to have been committed by the companies.

2. A more equitable return on the sale of Navajo coal in the future.

3. Development of a C-aquifer pipeline to provide an alternative to the use of the N-aquifer for the old slurry line with, and only with, development of water infrastructure to be used by Navajo communities. And,

4. Reduction to the maximum extent possible of use of the N-aquifer for industrial use. But this will not happen if an alternative source of water is not found.

Information that Peabody asked the Office of Surface Mining and Engineering to increase water use from the N-aquifer is contained it its permit application and has been available since before these negotiations began or the C-aquifer project was conceived.

Although the Natural Resources Defense Council asserts that spring flows are diminishing and a falling water table is affecting solids in nearby wells, it made no study of its own to reach these conclusions. There is no reputable scientist that has endorsed the evaluation methodology used by NRDC and its conclusions. No reporter has contacted either the Navajo Nation or OSME to report their analysis of the NRDC report.

The Sun inaccurately reported that if the Black Mesa Mine reopened that Peabody would use water from the Navajo Aquifer water for a pipeline. There is nothing in the March 7 document to substantiate this. This is the purpose of the C-aquifer project, to replace N-aquifer water for the mining purposes. This was set forth in the EIS scoping sessions. If the power plant and the Black Mesa Mine are not re-opened, Peabody will still continue to pump substantial amounts of N-aquifer water for use at the Kayenta Mine.

George Hardeen is the communications director in the Office of the President and Vice President for the Navajo Nation.



Reprinted as an historical reference document under the Fair Use doctrine of international copyright law.