Indigenous Peoples and Human Rights 2020

Friday, January 8, 2010

Peabody Coal Mining Permit Voided at Black Mesa

Complete copy of order, on pdf file, available from

United States Department of the Interior
Office of Hearing and Appeals
Departmental Hearings Division
405 South Main Street, Suite 400
Salt Lake City, Utah 84111
Telephone: (801) 524-5344
Facsimile: (801) 524-5539

January 5, 2010

In Re Black Mesa Complex Permit Revision.
DV 2009-1-PR thru DV 2009-8-PR
Significant Permit Revision
Permit No. AZ-001D
(Docket No. DV 2009-4-PRJ)

(Docket Nos. DV 2009-1-PR, DV ... DV 2009-8-PR)


OSM violated NEPA by not preparing a supplemental draft EIS when Peabody changed the proposed action. As a result the Final EIS did not consider a reasonable range of alternatives to the new proposed action, described the wrong environmental baseline, and did not achieve the informed decision-making and meaningful public comment required by NEPA. Because of the defective Final EIS, OSM's decision to issue a revised permit to Peabody must be vacated and remanded to OSM for further action.

Having considered the motion, the other papers on file, and for good cause, it is ordered that:

1. The Motino by Petitioners, Kendall Nutumy, et.all, in Docket No. DV 2009-4-PR, for Summary Disposition Based on OSM's Violation of the National Environmental Policy Act (NEPA), is granted.

2. The Decision, dated December 22, 2008, of the Office of Surface Mining Reclamation and Enforcement, approving the Application for Significant Permit Revision (Project AZ-001-E-P-01)(Permit AZ-001D) filed by Peabody Western coal Company for the Black Mesa Complex, is vacated.

3. The other pending motions in this consolidated preceding are denied as moot or not ripe for review.

4. The request for review filed by the following applicants are dismissed as moot.

Californians for Renewable Energy
Victor Masayesva, Jr.
Black Mesa Water Coalition
The Forgotten People
Coal Mine Canyon Chapter
Tonalea Chapter
Leupp Chapter

5. The prehearing conference scheduled for March 9, 2010, and the hearing scheduled for March 16, 2010, are cancelled.

Appeal Rights

Any party aggrieved by this decision may file a petition for discretionary review with the Interior Board of Land Appeal, or seek judicial review pursuant to the provisions in 43 CFR Section 4.1369.

Robert G. Holt
Administrative Law Judge


Ann Garrison said...

This is great, but I'm wondering how worrisome this is:

"Any party aggrieved by this decision may file a petition for discretionary review with the Interior Board of Land Appeal, or seek judicial review pursuant to the provisions in 43 CFR Section 4.1369."

Lori Goodman, of Diné CARE, has told me "they'll always be back."

NaBahe SheepDog Keediniihii: said...

Good for Justice to not overlook things this time. When I glanced through the BMP-DEIS in 2008, there were instant red flags: no Impact Statement regarding pipeline abandonment or clean up and for any convincing alternatives for using the N-Aquifer. Tried to point that out way back... But I still don't get it. At Big Mtn., Resisting is Unconditional. But the ruling was that "hearing cancelled" which differs from "revoked." Maybe itz my English which is my 2nd language. Beware that there is always that option of Appealing and Revision of an imcomplete EIS for this mega-corporation who has millions in resources. HOWEVER, millions of thanks to all the decades of support for this indigenous resistance, and "we who will continuing Resisting, Salute You!

Ann Garrison said...

Yes, Chief Loner. I'm, worried about that appeal process as well. And make that billions in resources, for Peabody Coal.

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