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Leaders mum on coal, water proposal

March 30, 2006 by  
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By Marley Shebala, Navajo Times 03.30.06

WINDOW ROCK – President Joe Shirley Jr. has refused to comment on a proposed
settlement of the tribe’s 1999 lawsuit against Peabody Western Coal Co. and
Southern California Edison for allegedly bamboozling Navajos out of about
$600 million in coal royalties.

On Tuesday the Navajo Times asked to interview Shirley about the proposal
which surfaced late last week. “That’s not going to happen,” responded George
Hardeen, Shirley’s spokesman.

Hardeen noted that the draft agreement, which involves the Navajo and Hopi
tribes, Peabody, and utilities that own the Mohave Generating Station and the
Navajo Generating Station, was “leaked” to the media and so it remains “
highly confidential.”

Details of the proposal already have been published in local newspapers.
Hardeen cited Navajo Attorney General Louise Denetsosie as the source for
advice to deny media requests for comments and/or interviews on the document.
Shirley, with Denetsosie at his side, heads the Navajo Nation’s negotiating

The Navajo Nation filed its lawsuit against Peabody, Edison (Mohave plant
operator), in federal court during the administration of former President
Kelsey Begaye.

The tribe alleged that Peabody and the utilities blocked an increase in coal
royalty rates by soliciting a top federal official, former Interior
Secretary Don Hodel, to bury federal records justifying the increase.

In 1984, the Navajos sought to raise the royalty rate from two percent, set
in the original 1964 lease, to 25 percent. Federal reports supported the
increase but tribal leaders, who did not see the research, finally were persuaded
to settle for a 12.5 percent royalty rate.

The lawsuit asked $600 million in actual damages and up to treble that
amount in punitive damages. Federal courts have rejected repeated requests by the
defendants to dismiss the tribe’s claim, but directly the parties to settle
the case.

The draft accord, dated March 3, 2006, refers to a settlement but does not
contain its details.

Feds to control resources

However, the draft does outline 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 is ready to hook into the Coconino Aquifer. The new slurry line
would be financed and built by Edison and other utilities that co-own the Mohave
power plant.

The draft agreement also calls for the U.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.

Because Denetsosie and Shirley refuse to talk about the draft agreement, it’
s unknown how the proposed Navajo-Hopi Coal Leasing Act would impact the
Navajo Nation Environmental Protection Agency.

NEPA was established by former President Peterson Zah to increase the tribe’
s control over its natural resources. On Wednesday, NEPA Director Steven B.
Etsitty was in a meeting and unavailable for comment.

Navajo Nation Council Delegate Amos Johnson (Black Mesa/Forest Lake), a
former negotiating team member, said it appears that Peabody and the utilities
would be released from a variety of damages, especially those involving use of
the aquifers underlying tribal land.

“That undermines Navajo sovereignty and our ability to manage and control
our resources,”
Johnson emphasized. “All of that is being taken away.”
He added that the proposed Navajo-Hopi Coal Leasing Act would turn back
history by authorizing Congress to approve coal leases and probably water leases.
“It’s like giving authority to the fox to guard the chicken house,” Johnson

Repeating past mistakes
Johnson, who sits on the council’s Resources Committee, noted that the
proposed Navajo-Hopi Coal Leasing Act would also set a “bad precedent” for Indian
nations across the country.

It would repeat the mistake the Navajo government made when it allowed
Congress to settle the Navajo-Hopi Land Dispute, he contended.
“Many Navajo were relocated and many children became homeless,” he said. “
That dispute is still not over.”

Johnson said Navajo elders from his area still remember the promises Peabody
made when the Navajo Nation was negotiating the first coal lease with

“Peabody promised to bring schools, clinics, water, electricity and roads to
the people,” he said. “There’s nothing today and those are overdue
promises. They should not be in this draft agreement.”

Johnson said he’s asked Shirley, Denetsosie, and Delegates Eddie Arthur
(Hardrock/Pinon) and George Arthur (Burnham/San Juan/Nenahnezad) – all members of
the negotiating team – to speak to the Black Mesa and Forest Lake chapters
because they have been most impacted by Peabody and federal relocation.
“They have all claimed confidentiality,” he said. “I don’t know what’s so
confidential when talking about people’s lives and resources.”

Johnson said he was removed from the Navajo settlement team by Denetsosie
about three months ago and replaced by Eddie Arthur. He said Denetsosie gave no
reason for the change.

According to Johnson, the Navajo team also includes Delegates Ervin Keeswood
(Hogback), and Raymond Maxx (Coalmine Canyon/Tóh Nanees Dizí).
“There also are a number of (Navajo) hired guns – hired attorneys, hired
economists, hired engineers,” he added. “The Hopis have their own team.”
On Wednesday, Gil Alexander, Southern California Edison spokesperson said, “
We believe it is unfortunate that someone leaked a document from that
(mediation) process dated March 7.The document is not a current reflection of any
discussions. In other words, it was current as of the date on it and it is not
current now.”

Alexander, like Shirley and Denetsosie, declined to talk about the proposed
settlement because of a confidentiality agreement among parties to the

Hopes for reopening
He said Edison, which has been involved in the negotiations since November
2004, continues to hope that Mohave reopens because of its “great value” to
the tribes, local community, and to utility customers.

Also on Wednesday, Beth Sutton, Peabody spokesperson, also cited
confidentiality for not speaking about the draft agreement.

“While terms of the stakeholder agreement are confidential and an agreement
is yet to be reached, a potential resolution would create huge community
benefits by creating 600 jobs and nearly $2 billion in direct economic
contributions over the course of Mohave’s resumed operations,” Sutton added.
“The tribes would receive tens of millions of dollars in revenue and the
Coconino Aquifer would be developed as a new water source,” she said.

Sutton asserted against that the Navajo Aquifer has not been harmed by
Peabody’s water withdrawals, a position disputed by a new study issued by the
Natural Resources Defense Council

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