NGS/SRP LEASE: ROUND TWO
WHO TODAY IS WATCHING OUT FOR OUR DEMOCRACY, LAWS, LANDS, WATERS, REVENUES, HUMAN RIGHTS, & SOVEREIGNTY?
(Treaty leaders Barboncito, Manuelito, and Ganado Mucho--by Jack Ahasteen. Used with education permission.)
LAWS VIOLATED & LAWSUITS NEEDED. Navajo Nation lawyers and weak leaders pick and choose which laws to enforce, based on convenience for those who exploit us (or, as some say, for bribes). The proposed new lease for Navajo Generating Station (NGS)―which is not Navajo but is on Navajo land―was illegally negotiated by an illegally appointed negotiating team put in place by an unconscious President Shelly and a corrupt Navajo Nation Department of Justice (DOJ). Title 18 of the Navajo Nation Code, for energy agreements, explicitly requires 10 negotiating team members be appointed: five informed citizens (one from each Agency); two delegates from the Resources Committee; and three specially trained professional staff. The first seven, or 70% of the legislatively required membership of the negotiating team, were never appointed. Therefore, Shelly’s and DOJ’s illegal negotiating team produced the NGS lease that is again before the Council. It is an illegal and invalid document. The Council is supposed to protect the People from such things. Also, the Attorney General (appointed head of DOJ, who should be elected instead) is our main law enforcement officer. The current one is not enforcing the law, he’s breaking it. Council and the President must comply with Title 18, or be sued. (Interior’s giant conflict of interest on NGS may allow us to sue the agency, like the Cobell Indian trust lawsuit. Some DOJ lawyers also need to be sued.)
Outsiders will continue to show their vile disrespect for our laws and rights as long as our own lawyers and leaders encourage them with the same disrespect. Title 18 also has important pro-Navajo negotiating standards that were illegally ignored. In addition, Chapter and citizen concerns on proposed leases are legally required consideration under Title 18 “prior to (a lease’s) submission to the President, … the Resources Committee, or the Navajo Nation Council.” This never happened and is more proof of hijacking of the Navajo People’s democratic process.
LAND GIVEAWAY. The 1969 right-of-way/easement runs to 2019. It gave NGS use of 7,400 acres for a total fee of about 14¢ per acre ($1,000). It should have been 6,000 times more in 1969 dollars. The Interior Secretary, our ‘trustee,’ set the price. Our lawyers approved. Interior benefitted financially because Interior was, and still is, the biggest beneficial owner of NGS. This is major conflict of interest.
Not the Speaker or President.
But now, a few good delegates & thousands of grassroots Navajo citizens are trying to.
Salt River Project (SRP) is the 2nd biggest beneficial owner of NGS. In what is an odd and possibly illegal agreement, Interior has made SRP the Interior’s trustee over Interior’s ownership interest in NGS. This is very fishy, even to the uninformed. Thus, Interior has made SRP its trustee on NGS issues, but has appallingly failed to protect the Navajo Nation as our trustee on NGS issues.
Council now knows DOJ was dishonest with them about the NGS lease being automatically renewable by NGS; it’s only the 1969 lease they can renew, not the proposed 60-page addition. The old lease is useless without the new addition (called “Amendment No. 1”), and without the separate land use right-of-way/easement the Nation has to consent to, first, in writing. Council also now knows 25 CFR §169.3 says “No right-of-way shall be granted over and across any tribal land, … without prior written consent of (the tribe) and the approval of the (Interior) Secretary.”
WATER GIVEAWAY. In 1968, Interior-SRP got the Navajo Nation to pass a 50-year waiver of claims to use Navajo water rights from Lake Powell in the amount of 34,100 acre feet/year. This is not a limit on our rights volume. It’s what NGS needs. Interior-SRP arrogantly wrote the 1968 waiver legislation and gave it to our Council to pass. Interior-SRP, with our lawyers’ help, got the waiver by deception and for free. The water is now valued up to $34 million/year or more. SRP, Interior, and DOJ want another 25-year giveaway when the old one expires. That’s up to $850 million worth. It’s time to negotiate this. (Recently, SRP (made arrogant and bigoted by an arrogant and bigoted DOJ advising them behind the scenes) rudely re-wrote official Navajo Council legislation on NGS, and sent it back.)
REVENUES. At 50% ⁺ unemployment after 60 years of lawyer control, our economy is a disaster; while our resource wealth is sucked up by the Southwest’s economy. We will have received little over 50 years for the 1-2 $billion in values given up to NGS for about $600,000/year over most of the lease term. The 50-year total of about $30 million (which excludes a few years’ taxes & limited enticements) is only 1%-2% of the values gone to NGS. Past compensation is due us, as will be future revenues for a full-value and legally negotiated lease (just as non-Indians are entitled to), and for rights-of-way, easements, gross revenue taxes, possessory interest taxes, and any water rights forbearance agreements.
HUMAN RIGHTS VIOLATIONS. Under the United Nations (UN) Declaration on Indigenous Rights, and our fundamental laws, Navajos have a human right to free, prior, and informed consent before actions are taken like NGS leases and water rights settlements. See Resolution of the Navajo Nation Human Rights Commission NNHRCMAY-18-12. In these cases, and others, DOJ and some leaders are guilty of violating our human rights. Those responsible (e.g., Shelly and DOJ lawyers Stan Pollack & Kathryn Hoover) need to be removed from our government forever; see e.g., the Navajo Nation Supreme Court case In the Matter of Frank SEANEZ, 9 Am. Tribal Law 329 (2010).
“A fundamental duty of … Navajo… government lawyers is to inform … what the law is, not … re-state the law as what they wish it should be. (A Navajo Nation) government lawyer … has a fiduciary duty not to obstruct, interfere or influence … . (Our) statutes (are not) for show. (The) government is accountable to all the laws of the Navajo Nation … . (We) cannot and will not condone a government lawyer intentionally using his position to undermine the very foundation of a stable Navajo Nation government.”
See also, Thinn v. Navajo Generating Station, 7 Am. Tribal Law 558:
Under Navajo Fundamental Law “All public officials in the Nation have a fiduciary responsibility to the Navajo People to execute the trust the People have placed with them in the administration of government.”
Also relevant are the UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS, which stress how business enterprises, like NGS and Peabody Coal, must respect human rights and policies and procedures governing their wider business activities and relationships. These include procurement practices and financial incentives for personnel and lobbying activities where human rights are at stake. For instance, Guiding Principle (GP) 17 states:
Human Rights Due Diligence
17. In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed. Human rights due diligence:
(a) Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships; …
In addition, the commentary to GP 17 indicates human rights due diligence should be initiated as early as possible in the development of a new activity or relationship―such as, in the NGS case, consideration of the NGS lease extension and right-of-way/easement grants. Potential impacts should be addressed through prevention or mitigation, while actual impacts―those that have already occurred― should be subjects for remediation (GP 22). Finally, questions of complicity should be examined where a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties. See Final Report to the UN Human Rights Council (A/HRC/17/31). See also the UN Human Rights Council’s website at:
SOVEREIGNTY & DEMOCRACY. Law books say sovereignty is the power of self government. Some of our leaders give it up—to NGS, DOJ, etc. Some lawyers take it away, e.g., Pollack & Hoover.
What the grassroots Navajos have been doing since the February 14, 2012 turning point (when Pollack, Hoover, and Senator Jon Kyl did their FRAUD against us on the Little Colorado River Water Rights Settlement through the Senate), is promote something we have not had in modern times—real representative democracy; where our leaders ultimately represent us, our views, and our interests.
Since the White Man came, we have been dictated to by Spain, Mexico, the U.S. Army, the BIA, missionaries, States, our lawyers, and the corporations and state & federal politicians who the key DOJ lawyers basically represent. (The Attorney General must be removed & DOJ cleaned out.)
Our People are really liking the idea of democracy, and wanting a return of sovereignty and the instituting of a truly representative democracy. Doing right by the People on NGS now is a step in the right direction for all present and future generations. The DOJ and Corporate dictatorships must naturally die away in the face of our Navajo People exercising our inherent rights to democracy.
The “Arizona” Generating Station Needs to Benefit Navajo
Navajo Generating Station Article
By Dwight Witherspoon
Monday, March 18, 2013
Although the Navajo Generating Station carries the name of the Navajo people, the “Navajo” Generating Station previously negotiated in 1968 and 1969 had significant flaws for the Navajo Nation. First, five power companies along with the United States Bureau of Reclamation planned a way to generate cheap electricity and deliver water throughout the State of Arizona by using the Navajo Nation’s resources. Second, the Navajo Nation was exploited for use of their land, water and coal with little benefit.
Therefore, it is critical for the Navajo Nation to re-negotiate Navajo Generating Station’s (NGS) use of Navajo land, water, and coal; including, taxes and ownership so the Navajo Nation experiences maximum benefits.The Generating Station is operated by Salt River Project (SRP) who has (21.7%) ownership and shall own (24.3%) of the Generating Station for the use and benefit of the United States of America.
This designation of ownership from the U.S. Bureau of Reclamation (BOR) to SRP was intended for two purposes: 1) attempt to alleviate a conflict of interest as a trustee for the Navajo Nation (yet allowed if not influenced the Navajo Nation to waive claims to the Upper Colorado River Basin for the life of the Generating Station or 50 years to provide cheap energy), and 2) establish a non-profit entity called the Central Arizona Project (CAP) to annually deliver 1.5 million acre feet of cheap water throughout Arizona.
The ownership energy designated for SRP from BOR is used to lift the water for transportation from the Lower Colorado River and to help repay BOR for the construction of the Central Arizona Project. Central Arizona Project (CAP) delivers 50% of the water for Phoenix and 80% of water for Tucson; as-well-as, water to the central Arizona Tribes and to recharge the overdrawn aquifers in Phoenix Valley and Tucson. Generating Station owners also includes: Arizona Public Service Company at 14%; Department of Water and Power of the City of Los Angeles at 21.2%; Nevada Power Company at 11.3%; and Tucson Gas & Electric Company at 7.5%.
The planned exploitation of Navajo land, water, and coal to generate cheap electricity and deliver water throughout Arizona was negotiated in 1968 and 1969. 7,466 acres of Navajo land is used for the Generating Station including: right of ways for train rail to deliver the Navajo coal to NGS, right of ways for power lines, coal ash placement, and other smaller land uses. In 2010, the Navajo Nation received $608,000 for their land lease(s) to NGS. In the same year, the Navajo Nation received no taxes from NGS, but taxes were paid to the State of Arizona.
The Navajo Nation did not receive any money for taxes paid to the Nation until 2011. The Generating Station is able to use 34,100 acre feet of the 50,000 apportioned to the State of Arizona from the Upper Colorado River Basin for a small delivery fee to the Bureau of Reclamation (which use to be 7.00 dollars per acre feet). The Navajo Nation had to waive their claim to the 50,000 acre feet and any claim above the 50,000 acre feet apportioned to the State of Arizona for the life of the Generation Station or 50 years; which-ever comes first, and 50 years will be in September 2019.
The Navajo Nation waiver by Resolution CD-108-68 allows for 34,100 acre feet of the 50,000 to be used for NGS. The Navajo Nation was influenced by the jobs, possible coal revenues from Peabody and NGS jobs with lease revenue to agree to this waiver. This Navajo Nation wavier of claim to the 34,100 acre fee of water at $1,000 per acre feet would be $34,100,000 per year.
The Peabody Energy or Peabody Western Coal Company (PWCC) pays the Navajo Nation 12.5 cents for the exclusively Navajo coal and 6.25 cents on the Navajo/Hopi joint coal. The PWCC pays $471 dollars per acre feet for lease of the Navajo Aquifer Water (which is some of the best water in the country) and is used for dust suppression, cleaning trucks/large mining equipment, and human use (including water hauling for Navajos’). PWCC used to pay a little over $1,000 per acre feet for use of Navajo Aquifer Water from the ten year negotiated period of 1997 to 2007. The PWCC uses around 1,200 acres feet per year and used to use much more to slurry coal to the Mohave Generation Station in Nevada, which was shut down in 2005.
Therefore, the Navajo Nation will be seeking to maximize its benefits from the Generating Station through lease(s), taxes, ownership, and water waiver in the re-negotiations that has exploited the Navajo Nation for almost fifty years. Credit goes to the grassroots people and organizations for educating me on issues regarding the “Arizona” Generating Station and for suggesting that the Navajo Nation should push for ownership in NGS.
When meeting with NGS representatives, the small benefits to the Navajo Nation was clearly drawn out and it was also clearly pointed out that there needs to be an ownership provision or the Nation will be advocating to charge the highest possible for the lease, taxes, and water waiver for a poor 1969 agreement. Only through a Navajo Nation ownership provision will the re-negotiation be a win-win for all; otherwise, the re-negotiation will be a win-lose for one and a loss for the other (meaning the cheap electricity and cheap water rates will dramatically increase throughout Arizona). Only through increases in land lease, taxes, ownership, and ability to make claim to the water in 2019 can the Generating Station be called the “Navajo” Generating Station.
Thank you Councilman, & special thanks to Marshall & Elsa Johnson, Dine Water Rights, & all you Grass Roots Organizers & Protestors.Good job councilman Witherspoon, here's to ownership and re-negotiation successSRP Barry D Drost - Excellently written. Well thought out advocacy of Navajo Nation ownership in NGS. I'm hoping the Nation gets everything he is advocating for.
With respect to Councilman for writing. Please continue pressure on corporate influence on allowing their ways to profit at our expense. This is a total disgrace to nickel and dime their way to land, water & coal.Awesome article! More research is needed to see how much Peabody and NGS owners profit $ pay n tax to State of AZ for comparison to what they pay Navajo, again thanks for pointing out the economic and environmental injustice to this system that has kept our Nation n poverty while the southwest cities flourished Thank you, Councilman, Dwight Witherspoon for informing us with what's happening with economic & environmental injustice with regards to Navajo Nation land, water and coal.A very informative article, Dwight Witherspoon, two points: 1 - use & gather more info to be loaded & cocked for the next renegotiation meeting and 2 - talked w/other tribes to find out about their experience for strategic planning. Thanks!
It is a great relief to know our leaders are questioning past negotiations and looking out for Dine resources and health. Keep at it Dwight we deserve more than fair, if they do not want to play ball look elsewhere for other native or Navajo investors to rebuild a new generating system in the same area, an ideal location and energy will always been needed.Nizhoni hey!Ahxéhee’ Dwight WitherspoonThank you for standing up for Navajo people because being nickel and dime is not for us. I was disappointed how the delegates voted 20 to 1 vote!Thanks for the insight that usually is an oversight. Blessings for strength, endurance and honesty Dwight.