27 November 2002
WATER ON BLACK MESA
By Marley Shebala The Navajo Times
For people living on and around Black Mesa, it seemed like a simple request to their leaders.
All they wanted was for their leaders to ask U.S. Interior Secretary Gale Norton to ask Peabody Coal Company to stop using their only source of water to transport coal to another state.
And since many of the people around Black Mesa still live in the traditional Navajo way, they sent Marshall Johnson, 40, on horseback from Forest Lake to the Navajo Nation Council to present their request during the council's summer session in July.
November is almost over and their petition is mired down in tribal and federal politics, bureaucratic red tape and corporate negotiations.
The council is having a special session on Dec. 6 and one of their resolutions is the result of the request carried by Johnson.
The proposed Dec. 6 resolution is titled, "Expressing Support for the Development and Implementation of an Alternative to the Use of the N-Aquifer Water for the Black Mesa Pipeline and Urging Implementation of the Alternative by the end of 2005, and Expressing Support for Efforts by Senator (Jon) Kyle to Obtain Congressional Authorization for the Use of Water from the Central Arizona Project for Mining Purposes at Black Mesa."
It's sponsored by the council's Resources Committee Chairperson George Arthur (Nenahnezad/San Juan) but has no supporting resolutions.
In contrast, the request from Black Mesa which was carried by Johnson was made in the form of resolutions from Forest Lake, Hardrock, Pinon, Low Mountain, Shonto, Kayenta, Tuba City, and Teesto.
The Chinle Agency Council, which represents 14 chapters, also supported the Black Mesa request.
Letters of support for the Black Mesa request also came from organizations such as To Nizhoni Ani (Beautiful Springs Speak), the Indigenous Youth Council of Pinon, the Black Mesa Water Coalition, the Sierra Club, Black Mesa Trust and the Natural Resource Defense Council.
Johnson, an iron worker and bull rider, who wears his long black hair in the traditional Navajo way, tied the Black Mesa request to his saddle horn and rode for two days from Forest Lake to the council chamber.
His wife, Nicole Horseherder, 32, who also ties her hair in the traditional Navajo way, followed her husband with her children in her pickup truck.
They arrived at the council chamber on July 15, a Monday, which was the first day of the council's five-day summer session.
Legislative staff informed them that there was a procedure, the '164 process or signature review process, that any proposal must go through before going to the council. Since their issue concerned water, they needed to go before the council's Resources Committee with a resolution.
The Johnson's prepared the required resolution and asked Council Delegate Jones Begay (Forest Lake/Black Mesa) to be a co-sponsor with them.
Their resolution, which was titled, "Resolution to Terminate Peabody Coal Company's Groundwater Pumping of the Navajo Aquifer," completed the 164 process and went before the Resources Committee at noon on July 19, the final day of the council's summer session.
The Johnson's hoped the committee, which consists of eight council delegates, would act on their resolution in time for it to go before the council.
Begay, a member of the Resources Committee, was absent but he sent a message to the committee to defer action until their next meeting when he'd be present.
Arthur, who was chairing the meeting, also advised his committee that the resolution required more discussion than expected and so the committee deferred it to July 25.
Navajo Nation Deputy Attorney General Britt E. Clapham, in a written review of the resolution, advised Arthur that Peabody's use of the Navajo Aquifer has significant and far-reaching impacts on the Navajo Nation and Peabody.
Clapham stated that the resolution implies that the council has the authority to terminate Peabody's use of the aquifer.
He stated that according to the 1964 and 1966 coal leases, the Navajo Nation allowed Peabody to use the aquifer for its mining operations.
Clapham noted that the Commissioner of Indian Affairs approved the1966 lease on the condition that if a study shows that Peabody's use of the aquifer is endangering it that the U.S. Interior Secretary could have Peabody obtain another source of water or deepen the water wells for other users.
He recalled that 1985 lease amendments authorized a study of Peabody's use of the aquifer, which the Navajo Nation, Hopi Tribe and Peabody commissioned.
Clapham stated that the study, by S.S. Papadopolous, supported the findings of the U.S. Geological Survey, which concluded that the impact of Peabody's pumping on the N-aquifer is minor and temporary.
He added that the Navajo Nation Water Resources Department has reviewed technical reports and there is no evidence that supports the allegations in the resolution.
The allegations Clapham referred to was a finding by the Natural Resources Defense Council in 2000 that Peabody's pumping of 4,400 acre-feet of water per year exceeds the aquifer's natural ability to recharge itself and is creating irreversible damage and contamination.
Clapham recommended that the Resources Committee conduct hearings to receive the benefit of Navajo Nation expertise on this issue.
He noted that if the Navajo Nation terminated Peabody's use of the aquifer, Peabody could sue the Navajo Nation for breaking its lease agreement.
And Clapham stated it could also create controversy between the Navajo Nation and citizens who work at the Peabody mine.
He stated that it could also negatively impact a lawsuit that the Navajo Nation has pending against Peabody.
Clapham stated that Southern California Edison is also trying to shut down its Mohave Generating Station on Dec. 31, 2005, because of coal quality issues, lack of water other than groundwater to slurry coal and an unwillingness to negotiate to solve problems.
Termination of Peabody's use of the aquifer only adds support for Edison's position, which the Navajo Nation is officially opposing before the California Public Utilities Commission, he stated.
Peabody mixes pulverized coal from its Black Mesa mine with water from the aquifer to create slurry, which is pumped over 270 miles through an 18-inch pipeline to the Mohave Generating Station near Laughlin, Nev.
The public utilities commission, on Oct. 11, held a public hearing at the Tuba City Chapter on Edison's request to end Mohave Generating Station's operations in 2005 or authorize Edison to spend about $58 million in 2003 on pollution-control measures at Mohave.
The pollution from Mohave cut visibility at the Grand Canyon, which prompted the Sierra Club to sue Mohave in 1998.
The U.S. Environmental Protection Agency also found that Mohave was releasing 40,000 tons of sulfur dioxide into the air each year.
Edison, as Mohave's owner, agreed to install $1.1 billion worth of pollution control equipment by 2005.
Navajo Nation President Kelsey Begaye and other tribal officials submitted testimony at the public utilities commission public hearing opposing Edison's closure of Mohave and supporting an alternative water source.
The Johnson's also offered similar testimony.
They had repeatedly tried to meet with the Resources Committee after their first meeting on July 19, when they were told to return on July 25.
But at the July 25 meeting, the Resources Committee set an Aug. 22 work session, which was postponed to an unknown date.
The work session was finally rescheduled to Sept. 18 but then it was unexpectedly cancelled and no date was ever set for the work session.
A new resolution
But that didn't stop the Johnson's. They were learning how their tribal government worked - or didn't work.
The Johnson's started a new resolution with another sponsor, Council Delegate Lorenzo Bedonie (Hardrock), who headed the council's Budget and Finance Committee, which also gave them a supporting resolution.
This new resolution was titled "Petitioning the Secretary of the Interior to require Peabody Western Coal Company to obtain water for the Coalmining and Pipeline Operation at Black Mesa from an alternative Source no later than 2005."
With Bedonie's help, the Johnson's took their resolution before the council on Oct. 25, which was the last day of the council's fall session.
When the council questioned why there was no Resources Committee resolution, Bedonie explained that the committee kept postponing action on the Johnson's resolution.
Council Delegate Johnny Naize (Tselani/Cottonwood) then asked why Bedonie was not sharing a memorandum from tribal water rights attorney Stanley Pollack.
Bedonie said the memo was stamped confidential.
Pollack, in an Oct. 21 memo to Bedonie, stated that his resolutions were well intentioned but they would damage the Navajo Nation's 1985 claim to the Little Colorado River.
He explained that the nation claim included the right to use water from the N-aquifer for domestic, municipal, industrial, stockwatering and agricultural purposes.
"If the nation were to assert by way of these resolutions that Peabody's use of 4,000 acre-feet/year is damaging the N-aquifer, the Navajo Nation could later be prohibited from asserting a much larger claim to the use of the N-aquifer," stated Pollack.
He noted that the Hopi Tribe has openly opposed Peabody's use of the N-aquifer because it's damaging it.
But the Hopi Tribe, in a private negotiation session and recently in a meeting with Sen. Jon Kyle, R-Ariz., confided that they more concerned about the growing Navajo population, which would put pressure on the N-aquifer, stated Pollack.
He emphasized that since Peabody is also looking for an alternative supply of water for its slurryline, the U.S. Office of Surface Mining has suspended the processing of Peabody's application and will require a new application.
The Johnson's and Bedonie stated in their resolution that Peabody had submitted an application to OSM to increase their N-aquifer pumping from 4,400 acre-feet per year to 5,700 acre-feet per year.
Peabody also seeks a "life of mine" permit for the Black Mesa Mine and to mine more than one million tons of coal per year from an area on the Kayenta Mine. The company also wants to add land to the Black Mesa permit area to build a haul road.
When the Johnson's attempted to submit resolutions to OSM from the people living on and around Black Mesa in opposition to Peabody's application, OSM told them that the resolutions had to come from the Navajo Nation government because of the relationship between the Navajo Nation and the U.S.
And that's what initiated the Johnson's horseback ride from Forest Lake to the council chamber on July 15.
The Johnson's and Bedonie finally got the people's resolutions before the council on Oct. 25 but then Council Delegate Ervin Keeswood (Hogback) under council floor rules, called for a substitute motion.
Keeswood's substitute motion immediately replaced or substituted Arthur's resolution for the resolution sponsored by the Johnson's and Bedonie.
But then under the same council floor rules that forced the Johnson's to go before the Resources Committee and wait for four months to get in front of the council, the council tabled Arthur's resolution until it could be heard before the Resources Committee.
Keeswood also asked that the Resources Committee deliberate on Arthur's resolution and the resolution from the Johnson's and Bedonie.
When the council reconvened on Nov. 1, they learned that the Resources Committee had only discussed Arthur's resolution on Oct. 31, instead of both resolutions.
Keeswood noted that his directive on Oct. 25 was for the Resources Committee to deliberate on both resolutions and develop one resolution for the council that included the concerns of all parties. And so Bedonie and the Johnson's were allowed to speak to the council.
Marshall Johnson, speaking in Navajo, remembered that when his wife and he went before the council on Oct. 25, they felt alone.
He said the council had the Justice Department, the attorney general and water experts speak for the Navajo government.
Marshall said that this time they were not alone, that they had brought "the people's" Justice Department, attorney general and water experts.
Lorraine Johnson, Marshall's mother, also spoke in Navajo and remembered when there was plenty of water for the people, the livestock and Mother Earth.
That was when the people didn't need water permits and other papers, she said.
She said her father, who was a traditional medicineman, made offerings to the water from Black Mesa because it was used in healing ceremonies.
Offerings were also made for the female and male rains, she said.
No one ever thought that this water would be sent elsewhere and used for something other than healing and to continue life, she said.
This water is valuable and the people traveled long distances to plead for the water, said Lorraine Johnson.
'White people' plans
Katherine Smith, who said she was from Big Mountain, the land that was stolen from the people, told the council that whatever belongs to the people is always taken away based on plans of the white people, who don't even originate from here.
Smith said that prevents them from understanding and accepting that the land was and is developed in a spiritual way.
There are holy places on this land, like the female and male mountains, she said.
Smith explained that the female mountain inter-relates with water and the male mountain with medicines.
That is the Navajo way but the people see that their leaders don't listen to the Navajo way, she said.
"You kind of just look to attorneys as leaders," said Smith.
She said that on the walls of the council chamber are traditional Navajo images but today she has primarily heard the English language.
"What happened to those with hair buns?" asked Smith.
The vegetation is changing and that means there are water problems on the sacred mountains, she said.
Marie Gladue, who also came from Big Mountain, said that in other parts of the United States and world, people are struggling to get water.
But here there's plenty of water, pristine water that can be sold for a $1 a bottle, and it's just being given away, said Gladue.
She said the people that live on and around Black Mesa have to haul water for 30 miles one way and they don't have electricity.
But the Navajo Nation allows Peabody to use the water from the Navajo aquifer to light up the whole Southwest portion of the U.S., said Gladue.
"Please, we come to you in a good manner and we're not putting you down. There are lot of issues that mess up our way of life and this is one of them," she said.
In the end, the council referred Arthur's resolution and the Black Mesa resolution back to the Resources Committee again.
Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html