Black Mesa Trust Press Release Jan. 8, 2009
Contact Vernon Masayesva, 928/255-2356
Peabody Coal's Permit for Black Mesa Mining Complex Rejected
By Vernon Masayesva, Hopi
Black Mesa Trust
A new day for Native peoples
"A great new day is dawning for the Hopi and all Native peoples in this country," said Vernon Masayesva, executive director of the grassroots organization Black Mesa Trust, in response to the news that an Office of Surface Mining administrative law judge has rejected the permit issued by OSM for the Black Mesa Complex that would have allowed Peabody Coal to continue mining-as-usual at the Black Mesa and Kayenta Mines on Hopi and Navajo lands in northern Arizona.
Masayesva and former Hopi Tribal Chairman Ben Nuvamsa met with Interior Secretary Ken Salazar's staff in November to ask that decision-makers at Interior be more responsive to Native American concerns and more mindful of their trust responsibilities for the 560-plus Indian tribes in the U.S.
"The Interior Secretary and the agencies under his oversight are to be commended," said Masayesva. "They have taken prompt and appropriate action to begin to undo centuries of federal decision-making disrespectful of Indians and their rightful place in this nation. We look forward to a productive and amicable working relationship with Joe Pizarchik, the Office of Surface Mining and Reclamation Enforcement's new director."
Administrative Law Judge Robert G. Holt wrote in his Jan. 5 order: "I have decided to grant Nutumya's NEPA Motion [submitted by Kendall Nutumya et al. asking that the permit be rejected] because it demonstrates that OSM violated NEPA [the National Environmental Protection Act] by not preparing a supplemental draft environmental statement (EIS) when Peabody changed the proposed action. As a result the Final EIS did not consider a reasonable range of alternatives, described the wrong affected environmental baseline, and did not achieve the informed decision-making and meaningful public comment required by NEPA. Because the Final EIS does not satisfy NEPA, the decision must be vacated and remanded to OSM for further action."
That the Hopi people did not have an adequate opportunity to comment during the EIS process has long been an issue in the Hopi villages. Last year Victor Masayesva, Jr., circulated a petition in the Village of Hotevilla asking OSM to cancel the environmental impact statement on just those grounds. The petition, bearing 117 signatures, was delivered to OSM in Denver, Colo., in Dec. 2008.
In 2004, Peabody submitted to OSM a mining application that would have combined the Black Mesa and Kayenta Mines, which have been in operation since the early 1970s, into one mining operation under one permit, rebuilt the coal slurry pipeline that carried water from the Black Mesa Mine to the Mohave Generating Station in Laughlin, Nev., and built a new water-supply system to supply the mine. This last point was the critical one for Black Mesa Trust because Peabody had been using 4,400 acre feet a year of pristine drinking water pumped from the N-aquifer for the coal slurry pipeline and its other mining operations on Black Mesa. Black Mesa Trust was founded in 1999 to stop Peabody's use of N-aquifer water, the birthright of the Hopi and Navajo living on Black Mesa. Incontrovertible evidence showed that Peabody's pumping of the aquifer was not only wasting sole source drinking water but also destroying the aquifer itself. OSM performed an EIS for the Peabody permit application and issued a draft that identified a preferred alternative that approved the application and construction projects. But after the draft EIS was published and before a final EIS was issued, Peabody changed its permit application, deleting the development of a new water system for the mining operation, as well as several other components of the original plan. OSM announced that in response to Peabody's revised application, it had chosen Alternative B, rather than Alternative A, as the preferred alternative. OSM reopened the comment period on the draft EIS, but did not conduct additional scoping meetings or change the topics that the EIS would analyze, even though Peabody had radically modified its application.
OSM selected Alternative B, and approved Peabody's application, issuing its decision in December 2008.
The Administrative Law Judge found that Peabody's revision of its application contained substantial changes related to environmental concerns and that OSM should at least have prepared a supplemental draft EIS. "At a minimum, the new proposed action would change the impacts on water resources, soils, vegetation, wildlife, and cultural resources," wrote the judge, adding, "Because the change was so substantial, OSM may also have considered whether to terminate the NEPA compliance process on Peabody's original application and start anew on Peabody's latest revised application." [Italics added.]
Sean Gnant, one of the people who prepared the legal work that led to this decision, pointed out that the judge's order does not stop mining on Black Mesa. It does probably mean that OSM will have to prepare a new EIS, at which point the Hopi people could ask -- during the scoping process -- that OSM include an alternative that would put require Peabody to replace the water that it has pumped from the N-aquifer.
Sean Hecht, director of UCLA's Frank G. Wells Environmental Law Clinic, and his students did extensive work on the Nutumya motion in collaboration with Gnant and Nuvamsa. "Every year our students work on a variety of issues," said Hecht, and I jumped at the chance to have them take on this effort. It was a significant legal issue, the work was challenging for the students, the clients were compelling, and I knew we could do a good job on it. The students really put their hearts into it." Hecht said he would be happy to continue to work with the Hopi people if Peabody or OSM appealed the ruling to a higher administrative level or took it to court.
The legal work was prepared by David Abney, Sean Gnant, and students at the UCLA Frank G. Wells Environmental Law Clinic under the direction of Sean B. Hecht. Additional motions on behalf of the Hopi people were prepared by Californians for Renewable Energy's Michael Boyd and Martin Homec. Verrin Kewenvoyouma, Esq., Victor Masayesva, Jr., Black Mesa Water Coalition, and the Navajo groups The Forgotten People and the Coal Mine, Leupp, and Tonalea Chapters of the Navajo Nation were involved in this effort. The Black Mesa Trust Board of Directors offers its sincere gratitude to these people and groups and to everyone whose prayers and good thoughts have brought us to this day.