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Pocketbook issues underlie a Hopi coal mining dispute

KYKOTSMOVI, Ariz. — The Hopi Tribal Council wants to prevent economic losses it believes could result from the actions of those who oppose an expansion of the Black Mesa Mine Complex. As a result, the current council supports the Office of Surface Mining’s controversial decision to grant an expanded permit to Peabody Western Coal Co.

“In a time when the national economy is reeling from financial setbacks, the Hopi Tribe can little afford the loss of the vital revenues that are produced for the tribe” by the mining operations, states a May 29 petition to the Department of the Interior Office of Hearings and Appeals.

In addition, the tribe’s sovereign interest in the dispute supersedes OSM’s regulatory role or the coal company’s supplier role, the tribe’s attorney said in a request to intervene in legal proceedings that could void the mining permit.

Coal revenues provide more than half the Hopi Tribe’s approximately $20 million annual income and operating budget and an adverse OSM decision on Peabody’s request for an expanded mining permit “would devastate the tribe,” said Scott Canty, the Hopis’ attorney, in the petition. He was not available for comment.

The Hopi Tribe Office of the General Counsel wants to intervene in an Interior review sought by opponents of the permit revision, including those who seek greater tribal control over the coal resource and those concerned about the industrial use of pristine aquifers and other environmental and cultural impacts.

On Dec. 22, 2008, OSM’s Denver regional office approved an extended permit on 100 square miles of Hopi and Navajo lands, allowing the renewed mining of approximately 5,590 acres of remaining coal at Black Mesa. The mining complex includes Kayenta Mine, which supplies coal to the Navajo Generating Station in Arizona and Black Mesa Mine, which supplied Nevada’s defunct Mohave Generating Station.

The OSM permit revision would continue Kayenta Mine’s present operation, but would allow the Navajo Generating Station to potentially use coal from additional coal resources within the Black Mesa Complex, including areas within the Hopi lease portion. Opponents want the OSM permit revoked.

“These continuing coal sales are critical to the revenue stream relied upon by the Hopi Tribe to support its governmental operations and its local economy,” the current petition states, expressing concern that even a temporary shutdown of mining operations would adversely affect tribal government “and the many Hopi families who depend on coal revenues to provide the salaries that in turn pay their bills and put food on their tables.”

The present action is the latest in a long-running dispute over control of tribal government and tribal resources. The legitimacy of present and past tribal councils has been called into question by warring factions, leaving open the issue of with whom government-to-government consultations have been and are being held.

The initial petition for an Interior hearing was filed by environmental groups and individuals, not on behalf of the Hopi Tribe, as the current filing appears to state.

The initial petitioners dispute the tribal attorney’s contention that his filing represents the Hopi Tribe’s position because “the Hopi Tribe did not file it.” The tribe lacks a properly elected chairman and vice chairman and there is no legitimate Hopi Tribal Council to initiate or approve the filing.

Whether the permit should be approved and whether the Black Mesa environmental impacts analysis was adequate “are issues of critical concern to the Hopi Tribe in light of the tribe’s position as owner of the coal resource and as sovereign over a portion of the land and resources” that underwent impacts analysis in the permit decision process, Canty’s petition states.

Because of the tribe’s sovereign interest, the tribe should advocate in support of OSM’s decision on the permit, “based on the Hopi Tribe’s active involvement throughout the National Environmental Policy Act process that produced the Draft and Final EIS documents” on which the permit was based, it states.

NEPA consultation and findings are at the heart of objections raised about the permit, beyond the general contention that tribal council instability made government-to-government consultation difficult, if not impossible. Ben Nuvamsa, former tribal chairman, said Peabody did not consult with him as required, and major environmental advocacy groups question key conclusions of the EIS.

Eight Native and environmental organizations including the Sierra Club, Natural Resources Defense Council, and Black Mesa Water Coalition alleged OSM violated six federal laws, including NEPA and the Endangered Species Act, when it approved the extended permit. Objections were directed to environmental studies required before OSM’s decision and to alleged flaws in OSM’s planning process.