Gary Witherspoon 'Water and Energy: Survival in the American Southwest'

Water and Energy:

Survival in the American Southwest

Narrative on Dine' water rights and Navajo Generating Station lease negotiations

By Gary Witherspoon

Censored News

In 1519, Cortez and his army of mercenaries invaded the Triple Alliance formed by the great city states of central Mexico.  His conquest of the Mexica took several years and finally succeeded as a result of an horrendous small pox epidemic that Cortez and his soldiers brought to the Indigenous population that had no immunity to it.   Professors Cook and Borah of the University of California Berkeley found in a very exhaustive study that from 1520 to 1620 a very advanced Indigenous population of 25.2 million people living in some of the largest and most beautiful cities in the world at the time was reduced to 700,000 people by the disease, devastation and terror Cortez and the Spaniards brought to central Mexico.

In 1539 in search of the fabled Seven Cities of Gold, Coronado and his company from central Mexico invaded the American Southwest, leaving death, destruction and terror wherever they went.  Mercifully Coronado and his marauders returned to Mexico in 1541 and the Indigenous people of the American Southwest were mostly left alone until 1598 when the Spaniards came to colonize what is now the states of New Mexico and northern Arizona.  The Spanish colonization of the Southwest lasted 250 years, interrupted by 12 years of peace by the successful Pueblo Revolt of 1680 in which  the surviving 19 Pueblos rose up against their oppressors and successfully drove them back to Mexico.   From 1598 to 1846, the Indigenous Pueblo city-states were reduced from 90 to 19 during this reign of terror that the Spaniards brought upon them.  The loss of life was also accompanied by the loss of land, resources, culture and freedom.

In 1846 the US created a pretext to start a war with Mexico, which had finally won its freedom and independence from Spain in 1821.  The US imperial war on Mexico forced Mexico to cede to the United States the territory that now constitutes the states of Colorado, Utah, New Mexico, Arizona, Nevada and California.  The surviving Indigenous nations of these territories, however, did not cede their lands or their sovereignty to the US colonial invasion.  The last 160+ years have resulted in a continuous struggle for these Indigenous communities and nations to negotiate their sovereign survival and to retain their lands, water, cultures and languages.

Beginning with the post World War II era, the non-Indigenous population of the American Southwest rapidly increased.  This 20th century invasion of the “snowbirds” has led to a significant squeeze on the resources of the area, particularly power and water.  Large reserves of coal, uranium and oil were found on Navajo lands and lands jointly claimed by the Navajo and the Hopi Nations.  

The United States in conjunction with local and state governments and various energy companies established plans to exploit these energy reserves on Navajo land.  Initially the Secretary of the Interior, Al B. Fall, claimed these energy reserves belonged to the federal government, and issued drilling rights to Standard Oil to drill for oil on Navajo land.  

The US claim to mineral rights on Native lands was challenged by lawyers for the Indian Rights Association on behalf of the Navajo and other Native peoples, and the US Supreme Court ruled that the subsurface mineral reserves on Indian lands belonged to the Indian Nations and not the US government.  This required the US and energy companies that wanted to exploit energy reserves on Indian land to get the permission of the Indigenous Nations and to presumably pay them a fair royalty for the energy reserves they wanted to take.

Another resource in scarce supply in the Southwest is water.  In a 1908 US Supreme Court in the case of Winters vs. the United States held that Indigenous Nations and communities had first and priority rites to the water on and flowing through and nearby their lands and communities.  This decision became known in water law as the Winter’s Doctrine.  The case was brought by Indian Nations in the state of Montana.  The Winters Doctrine has subsequently been confirmed by additional rulings that have established Indigenous water rights as having priority over states, corporations and private individuals.  Accordingly the Navajos were recognized by the Winter’s doctrine as having priority rights to the waters flowing in the San Juan, the Colorado and the Little Colorado rivers.  This doctrine also recognized Hopi claims to priority rights to waters in the Colorado and Little Colorado Rivers.  These rights were not limited to prior patterns of usage, but were rights that could be based on future needs and use as well.

After failing to legally claim or steal the oil on Navajo land, the Secretary of the Interior in 1923 created the Navajo Tribal Council.  His purpose was to create a body that could “legitimately” lease oil drilling rights to US oil companies.  The Tribal Council originally consisted of seven members, and was established essentially as a puppet government of the US.  The regulations governing the “Navajo” Council were created by the Interior department, and these regulations did not allow any Navajo to run for or sit on the council without the approval of the Secretary of the Interior, and the Council was not allowed to meet or make decisions without the presence of and  the approval of the Secretary of the Interior or his representative.  When necessary or appropriate, the regulations allowed the Secretary of the Interior to act on behalf the Navajo Council.

In the 1920s and 1930s, oil was the main resource mined on Navajo lands.  In the 1940s, uranium became another primary resource mined on Navajo land.  As the agency of the federal government supposedly holding Navajo resources in trust for the welfare of the Navajo people, the Interior Department through the Bureau of Indian Affairs negotiated mineral leases and royalties for the Navajo tribe.  These leases were then to be legitimized by the approval of the puppet government established by the Secretary of the Interior.  

As the Navajo Tribal Council subsequently asserted its independence from the Interior Department, the Tribal Council (now known as the Navajo Nation Council), nevertheless, has generally persisted to this day in approving whatever mining, resource development or resource give aways the Interior Department has told them to approve.  In its first 40 years, the Tribal Council was limited in the scope of what it could  by its own lack of expertise and independence.  Therefore, it  followed the advice of the BIA and the Interior Department.  In recent years the education and the expertise of Council Delegates has significantly increased and the regulations governing the Council’s functioning have empowered the Council with more power and potential independence.  While the resulting decisions of the Navajo Nation Council have improved, the rapidity and scope of this change and improvement continues to disappoint many Navajo citizens and grassroots activists groups.

The early 20th century leases negotiated by the Interior Department and approved by the Navajo Tribal Council put no protections in these leases to safeguard the health of Navajo miners or compensate the local Navajo communities displaced by these mines.  Moreover, these leases provided little protection for Navajos subjected to the large and dangerous amounts of radioactivity from the uranium mines or from the hazards of air pollution from the coal mining and coal burning generating stations.  Royalties were small and the Tribal Council had limited power over the use of these revenues, so little benefit came to the Navajos from the oil drilling and uranium mining of the 1920s through the 1950s.  In recent decades, however, the Navajo Nation Council has made significant progress in getting better and more fair returns on its energy reserves.

The population explosion in the Southwest after World War II created an ever expanding need for water and electrical power.  A plan to mine the large coal reserves on Navajo and Hopi lands, and to burn this coal in electrical generating stations was formulated in the 1950s and 1960s.  This led the Interior Department to direct the Navajo and Hopi Tribal Councils in 1966 to lease large portions of Navajo lands and lands jointly claimed with the Hopis to Peabody Coal Company.  Thus ensued a massive strip mining of coal on Black Mesa.  No provision was made to assist or compensate the local Navajo people who lost their homes, farms, and grazing lands to the strip mine.  

The Peabody mine on Black Mesa and covers an area as large as the whole city of Phoenix and its suburbs.   Peabody also leases and strip mines an additional 8 million tons of coal annually from the Kayenta Mine, just north of the original Black Mesa mine.  Other smaller areas on the Navajo reservation have also been leased to other coal mining companies for additional strip mines.  The coal from these mines has been shipped to three principal coal burning generating stations.  One is the Four Corners Power Plant infamously known for being the biggest source of air pollution in the North America and the only human made entity visible to astronauts from space.  A second  one is the Navajo Generating Station near Page, Arizona, and the third was the Mohave Generating Station near Laughlin Nevada.  The Four Corners Power Plant is located in NW New Mexico near the towns of Shiprock and Farmington.  The Black Mesa and Kayenta mines alone are estimated to contain 21 billion tons of high quality coal easily worth well over 100 billion dollars.

In the first 30-40 years of these mines and of the coal generating power plants they served, the pollution, suffering and harm created by the mines and the plants were largely limited to the Indigenous peoples living within the vicinity of these mines and power plants, while most of the financial benefits produced by these mines and plants went to the non-Indian owners of the mines and the plants.  The benefits of the plants also went to off reservation cities of Phoenix, Tuscon, Las Vegas and Los Angeles to which the power produced by the plants was sent.  The royalties negotiated by the BIA for the Navajo and Hopi peoples were very small. The initial royalty provided by the mine going to the Navajos and Hopis for their coal was not to exceed 10 cents per ton for one mining area and not more than 12 1/2 cents per ton for the other mine.  The land was leased to Peabody for 50 cents per acre per year.  The initial Black Mesa mine area was about 40,000 acres for which Peabody paid $20,000 per year on its 40 year lease.  

From the late 1960s to the year 2000, environmental activists, local and national Indian activists and some journalists tried to call attention to these injustices and environmental damages, but with limited long term success.  The Peabody Mine was shut down for short periods.  The mining companies and power plants pacified some local resistance by hiring local people as miners and employees, providing some Navajos and Hopis  with high paying jobs.  They then have used these employees as activists to keep the mines and power plants open when others in the Indigenous communities wanted to see them shut down.

In the last 20 years, some of the terms of the lease payments were re-negotiated, providing the Navajo and Hopi Tribal Councils with more revenue, making it tougher for these councils to resist renewing the leases or insisting on higher royalties or tougher protections for the people and the environment.  It has recently been claimed that the Navajo Nation gets 60% of its revenues from these energy leases, and the Hopi Nation gets 80% of its revenue from the coal leases.

In the arid Southwest, water is a more scarce and a more valuable resource than electrical power.  The companies that exploited the energy reserves also found ways to get at Navajo water resources and rights.  The lease for Peabody Coal to strip mine Black Mesa negotiated by the interior Department and approved by the Navajo and Hopi Tribal Councils had a provision in it that allowed the Peabody coal company to drill for and extract unlimited amounts of subsurface water for the use in slurring coal through a pipeline from Black Mesa to the Mohave Generating Station at Laughlin, Nevada, a distance of more than 270 miles.  

Millions of gallons of underground water were used daily to slurry coal through a large pipeline from Black Mesa downhill to the Mohave Generating Station over 200 miles away.  The lease allowed Peabody to extract subsurface water below 1000 feet for a price of $1.67 per acre foot.  An acre foot of water is an acre of water one foot deep, or about 43,500 cubic feet of water.  I do not have a conversion table, but I would estimate that an acre foot of water would be more than 100,000 gallons.  At the time of the lease, the going rate for an acre foot of water in the Southwest was between $20 to $36 per acre foot.  The lease paid the Navajos and Hopis less than 10% of the going price for an acre foot of water.

The Peabody Coal Company claims that this water was being taken from a large lake 2000 feet below the surface of the earth and that the depletion of this lake would have  no effect on water tables closer to the surface.  The experience of the local people, however,  has proved otherwise.  The local Indigenous people claim their wells and windmills and other subsurface water levels are being affected by this huge amount of water being extracted from the earth.  Lower water tables have been discovered more than 100 miles from Black Mesa, and the Navajos, the Hopis and their Anglo neighbors off the reservation are appropriately concerned about the depletion of what is known as the Navajo Aquifer that is found below the surface of the earth over a very large area of the northern Arizona, and an area bigger in size than several small states.  

The concerns regarding the depletion of the Navajo Aquifer have not been heeded by Peabody, or these concerns have been disputed by the company.  In response, the Navajo Nation President and the Navajo Nation Council in 2004 told Peabody Coal Company that their 40 year lease ending in 2006 would not be renewed unless the permission to deplete the subsurface water on Black Mesa was withdrawn from the lease.  The Hopi Council drew a similar conclusion.  Peabody balked at this and said they would just not renew the lease without this provision.  The Navajos and Hopis remained firm, however.  The issue became mute when the Mohave Generating Station decided to shut down rather than meet EPA requirements to lower the levels of air pollution the generating station was putting in the air.  The generating station said it could not afford the costs of the equipment necessary to lower the pollutants it was emitting, so the station decided to shut down.  Thereafter, there was no more reason to slurry coal 270 miles to Laughlin, NV.

Peabody and the Mohave Generating Station leaned on the Navajo and Hopi Nation leaders to lobby Washington to lower the standards so the Mohave station could stay in business.  The companies argued that the Navajo Nation would lose significant amounts of revenue by seeing the mine and the generating station shut down, as well as lose several hundred jobs filled by Navajos.  It is presumed that the company felt the lobbying from the Navajo and Hopi Nations about how they would suffer if the mining stopped and the generating station closed would make a more compelling argument to Congress to lower the emission standards than an economic hardship argument from the billionaire companies. In any case the Navajos and the Hopis did not really go to bat for these companies largely because Peabody would not relent on depleting the subsurface water, the Navajo Aquifer, which the the Navajo Nation deemed to be more important to its long term survival that the continuation of the mining and the generating station.

The states of California, Nevada and Arizona also did lobby for the companies or were unsuccessful in doing so.  Powerful national environmental groups strongly opposed any lowering of the emission standards for the generating station, and they had the facts on their side.  The air above the Grand Canyon was so full of haze that no one could take a decent photo of the Grand Canyon anymore.  Tourist visits to the Canyon diminished, and visitors left the Canyon with complaints about its polluted state.  A national treasure had been defiled.  Both the Mohave Generating Station and the Navajo Generating Station were located within 75 miles on opposite sides of the Grand Canyon.  These coal fired generating stations were said to be the culprits that were defiling a national treasure.

The Peabody mining of coal at the Kayenta Mine provides coal to the Navajo Generating Station near Page, Arizona and near the Glen Canyon Dam on the Colorado River.  The coal in this case is shipped to the Navajo Generating Station by rail.  After closure of the Black Mesa Peabody Mine in 2006, efforts by the company and others were made to re-open the Black Mesa Mine and combine its lease and mining operation with the Kayenta Mine.  After several years of maneuvering by various groups to stop it, this request was finally approved.  Currently Peabody Coal is strip mining coal at both the Black Mesa and Kayenta Mines, and shipping this coal by rail to the Navajo Generating Station at Page, AZ.   

The EPA has, however, put the Navajo Generating Station on notice that it must install new emission filters within three years or be shut down, basically requiring NGS to do the same thing it required the Mohave station to do.  The Navajo Generating Station claims the filters will cost more than a billion dollars to install, and the company will not do this installation and pay the high costs of reducing the emissions without the Navajo Nation first extending its lease for another 25 years.  The first lease to NGS was made in 1968 for a period of 50 years.  The 50 years will be up in 2018, but the company must complete its enhanced emission controls by 2016 or be shut down by the EPA.

In the lease providing land and resources to the Navajo Generating Station near Page, Arizona, the non-Indian owners and operators of NGS (which includes the the Arizona utility companies Arizona Public Service Co., the Salt River Project, and Tucson Electric Power) put a provision in the 1968 lease agreement that the Navajo Nation would not assert or claim any of its aboriginal (Winter’s Doctrine) water rights to the Upper Colorado River for the entire duration of the 50 year lease.  At the time, some informed observers said this provision was tantamount to the Indians selling Manhattan Island for trinkets.  At that time, most of the council could not read and none had a college education, so they relied on the bad advice given to them by the Bureau of Indian Affairs and approved this language in the lease.  

The Nevada Energy and the Los Angeles Department of Water and Power are also co-owners of the Navajo Generating Station along with the Arizona companies named above.  The states of California and Nevada have made it clear that they wish to exit from the coal fired electricity business, both because they do not want to pay for new expensive emission controls and because they do not want to be part of the pollution problem or be a major contributor to global climate change issues.  On the other hand, the state of Arizona and its public utility companies are willing to buy out the interests of the Nevada and California public utility companies and assume the costs of meeting the new emission standards.  However, they are only willing to do this if the Navajos will renew their lease with the Arizona SRP company for another 25 years.  This raises the question as to why Arizona is willing to continue to invest in coal fired electricity when the other states see the writing on the wall and are getting out of the business of coal fired electrical power.  Is it because the lease for the Navajo Generating Station guarantees the state of Arizona uncontested use of the Navajo water rights in the Colorado River?   The Navajo water rights to the Colorado River may be more important to the state of Arizona than any electrical power produced by NGS?

The Navajo Nation President, Ben Shelly, picked a set of negotiators to negotiate a renewal of the lease for NGS with the Salt River Project.  Before that lease was re-negotiated, however, the SRP made one deceptive power grab to get at the Navajo water rights both on the the Colorado River and the Little Colorado River (an easterly flowing tributary of the main Colorado River that goes through central Arizona just west and south of the Navajo and Hopi reservations).  This water grab came in the guise of Senator Kyl doing a “favor” for the Navajos and Hopis by sponsoring a bill to settle all claims to the little Colorado River if the tribes agreed to the allocation of Little Colorado River claims agreed upon by lawyers representing all claimant parties.  The Navajos and Hopis were represented in these negotiations by their hired attorneys.

The Little Colorado River agreement offered to provide limited amounts of water to two Navajo communities and one Hopi community from the Little Colorado River.  The projected diversions were to be achieved by construction projects to be paid for by the US government, but the monies for these projects were not guaranteed.  In return the Navajos and the Hopis were to sign away all their claims forever to any other water from the Little Colorado River.  The Councils of both tribes balked at this language in a document that “their” attorneys agreed to.  Following the advice of their attorneys, the Hopi Chairman and the Navajo President had also agreed to the provisions of this legislation, and both tried to force it upon their councils.  Why were these leaders in such a hurry to give away forever the water rights of their nations to the Little Colorado River?

The Navajo and Hopi Councils were told that Senator Kyl was the only one who could get this through Congress because of his contacts in the Republican party, and he was going to do this just before retiring at the end of 2010.  Therefore, they had to approve this agreement quickly or forever lose this chance to get these benefits.  However, the beneficial projects did not have guaranteed funding in a Congress looking to reduce funding.  The arm twisting did not work.  Activist groups did research on the issues and the Navajo Council got some independent counsel and advice that led them to reject this “offer.”  There were several other objectionable items in the proposed settlement.  One would prevent Navajos from buying any more land and having it converted to trust status, a provision that had nothing to do with the so-called Little Colorado water settlement.  The Navajo Nation Council balked at this, but Senator Kyl said there was no time to make changes to the legislation.  The NN Council proceeded to amend the agreement against Kyl’s advice and to remove objectionable language and provisions.

Senator Kyl then gave up and turned the effort over to the Secretary of the Interior to try to get the legislation enacted, but nothing was done because the state of Arizona persisted in demanding that the objectionable language and provisions remain.  One of the most objectionable provisions was that the Navajo Nation would agree to the 25 year renewal of the lease for the Navajo Generating Station.  The council said that was a separate issue, and they would not agree to it.  

Because that lease for the NGS was negotiated nearly 50 years ago, few members of the current Navajo Nation Council knew exactly what was in the original lease.  Most Council members did not know that that lease gave away all Navajo claims to water rights in the Colorado River for the entire duration of the lease. These rights could have been and could still be worth billions of dollars and vital to Navajo survival and prosperity.  If the Navajo Nation Council had accepted this legislation, this so-called retirement “gift’ from Senator Kyl, they would have given up all Navajo claims to water in  the Colorado River for the next 25 years, and given up forever all Navajo water rights in the Little Colorado River.

In retrospect it is useful to remember that the hired attorney of the Navajo Nation, Stanley Pollock, strongly advised the Navajo Nation Council to accept Senator’s legislation.  A hydrologist who worked for the Navajo Nation for more than a decade claims he has proof that Stanley Pollock has worked for the Peabody Coal Company, and feels he his representing Peabody’s interest rather than the interest of the Navajo Nation.  The Attorney General of the Navajo Nation, Harrison Tsosie, strongly campaigned for and advocated for the Navajo Nation Council to accept this legislation as written by Senator Kyl, even though Kyl was an attorney for the Salt River Project before being elected to Congress.  The Navajo Nation President, Ben Shelly, also strongly advocated to the NN Council that they accept this agreement as written without amendments.  All of these people advocated for this legislation despite the widespread grassroots opposition to the legislation among the Navajo people.

To his credit, Navajo President Ben Shelly did reverse his position on the agreement after having some of its flaws pointed out to him, and after discovering widespread opposition to it among the Navajo electorate.  As far as I know, the other two attorneys, Stanley Pollock and Harrison Tsosie, have never recanted from their support for and advocacy of this disastrous legislation.  This whole process turned out to be a good educational lesson for most of the members of the Navajo Nation Council.

President Ben Shelly was elected Navajo President in a surprise election.  In the primary runoff election in which the two candidates with the highest vote totals run against each other in the general election, Ben Shelly had only 7,763 votes to Lynda Lovejoy’s 17,137 votes, but in the general election just three months later, Shelly won by a close margin with 33,692 votes as compared to 30,357 votes for Lynda Lovejoy.  The financial contributions and activist efforts by the Navajo United Mine Workers was a key factor in this surprise victory, and Shelly has certainly tried to thank the miners by advocating for policies to help them keep their coal mining jobs.

The above narrative provides an historical narrative and a regional political and economic context for the current issues facing the Navajo Nation with regard to the renewal of the lease for the Navajo Generating Station, and with regard to the formation of a company to purchase a coal mine in New Mexico which would continue to supply coal to the Four Corners Power Plant near Shiprock, NM on the Navajo reservation.  Both of these issues were before the Navajo Nation Council in its deliberations on April 29, 2013.  

It is sad that the Navajo Times did not bother to cover these deliberations and decisions with as much effort or space as they would have given to the coverage of a high school basketball game.  The Navajo Times and other papers and journalists should have provided the Navajo Nation and the people of the Southwest and the rest of the country with a clear, complete and accurate discussion of the history and significance of these issues before the Navajo Nation Council began its deliberations.  Instead, the Navajo Times did an injustice to the Navajo people by providing only a minuscule and biased account of the deliberations and decisions after they were made by the Council.

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Gary Witherspoon first came to the Navajo reservation in 1962, and has worked on the reservation as a head start teacher, a school administrator at the RoughRock Demonstration School, an instructor at the Navajo Community College, as the first Director of the Borrego Pass Community School, as a consultant to the Navajo Education Department, and as Director of the Navajo Language Institute at the Navajo Academy (now Navajo Prep).  He has also been a professor at Yale University, the University of Michigan and most recently at the University of Washington.  He is currently professor emeritus at UW, and lives in Bullhead City, AZ.  His wife is the former Nellie Nabahe of Naschitti, NM.