Forgotten People: Victory for Black Mesa

FORGOTTEN PEOPLE
Dine' Be' Iina' na' hil naa
Don Yellowman, President
P.O. Box 1661
Tuba City, AZ 86045
(928) 401-1777
http://www.forgottennavajopeople.org

Photo courtesy Forgotten People.
forgottenpeoplecdc@gmail.com
A Victory for Black Mesa - David v. Goliath

By The Forgotten People

A Victory for Black Mesa - David v. Goliath

update Jan. 10, 2010 5 pm

BLACK MESA, Ariz. -- On January 20, 2009, Forgotten People and three Chapters, Tonalea Chapter, Coal Mine Canyon Chapter and Leupp Chapter joined Californians for Renewable energy, Kendall Nutumya, Victor Masayesva, Jr., and Black Mesa Water Coalition to oppose the U.S. Department of the Interior's Office of Surface Mining (OSM) decision to approve a controversial life-of-mine permit for Peabody Coal Company's Black Mesa mine in the final days of the Bush Administration.

On January 5, 2010, Administrative Law Judge Robert Holt issued an order vacating Office of Surface Mining's (OSM's) approval of Peabody Coal Company's proposed permit modification based on violations of National Environmental Policy Act (NEPA). These NEPA violations were pointed out by the Nutumya's plaintiffs in their successful motion for summary judgment, and these same NEPA issues and others were also the subject of Forgotten People's appeal. The NEPA errors found by Judge Holt included a failure by OSM to prepare a new supplemental EIS and a failure to provide for meaningful public comment and review. The Judge also found OSM failed to develop and consider reasonable alternatives to the proposed action.

Judge Holt said "OSM prepared a final E1S, after making "substantial changes in the proposed action" in violation of NEPA and failed to "provide full and fair discussion of significant environmental impacts." And, "Having considered Kenall Nutumya's motion, the other papers on file, and for good cause vacated OSM's decision to approve the permit. The March 15, 2010 hearing is canceled."

Chester Claw, President of Tonalea Chapter House said "All these years our people suffered from adverse health effects and pollution of the environment. I am speechless, at a loss for words about what Forgotten People and the other groups are doing against a big company while all the Navajo Nation has done for decades is think about money and forget about the people's health and the environment. This is 'David v. Goliath' and David prevailed."

Chester Claw continues, "Now we need to focus on Salt River Project and NGS so they get a transportation permit to carry Peabody's Kayenta coal like they do at all other mines to ensure safety. SRP and NGS must install warning lights and barrier arms so no more people and livestock die at the railroad crossings."

Don Yellowman, President of Forgotten People continues, "What SRP and NGS are doing with an unpermitted railroad is equivalent to an unsafe semi truck driving on a highway without warning lights and improperly functioning brakes. Are they doing this because the life of our people and livestock are less important?"

Forgotten People believes Judge Holt's decision to vacate Peabody's life of mine permit is a major collective victory. Forgotten People congratulates the Nutumya plaintiffs and their counsel and also expresses their appreciation for the good work of Forgotten People's attorney's, Mick Harrison, S. Dennison Smith, paralegal Marsha Monestersky and their colleagues at GreenFire Consulting for drafting a high quality appeal and for excellent trial preparation and discovery responses. Forgotten People and their legal team are prepared to defend this decision on appeal. Forgotten People also expresses their appreciation for attorney's David Abney, Sea Gnant, Sean Hecht and UCLA School of law for putting forth detailed NEPA and SMCRA arguments.

In light of US EPA initiatives, the uncertainty of the NGS, and an increasing awareness of climate change, Forgotten People urges the Navajo Nation Council to hold a public hearing on the Kayenta mine in a Hogan in Black Mesa, 'Vote No' to an extension of Peabody's Kayenta mine lease, develop an alternative energy policy, and 'Go Green'.

Hopi and Navajo Stop Peabody Coal Mine Expansion

Wahleah Johns, Black Mesa Water Coalition 928-637-5281, Wahleah@gmail.com David Graham-Caso, Sierra Club 213-387-6528 x214 david.grahamcaso@sierraclub.org Amy Atwood, Center for Biological Diversity, 541-914-8372, atwood@biologicaldiversity.org
Photo: Hopi and Navajo protest in Denver by Mano Cockrum

Hopi and Navajo Residents Stop Peabody’s Coal Mine Expansion on Black Mesa
Department of Interior Administrative Law Judge Vacates Mining Permit for Peabody’s Black Mesa Mines

BLACK MESA, Ariz. —Peabody Western Coal Company’s Black Mesa Coal Complex has suffered a major setback as an Administrative Law Judge for the U.S. Department of the Interior (DOI) vacated a permit for the massive coal mining complex. The judge vacated the permit in response to one of several appeals filed by Navajo and Hopi residents as well as a
diverse coalition of tribal and environmental groups. The permit, issued by the DOI’s Office of Surface Mining, Reclamation and Enforcement (OSM), allowed Peabody to operate and expand the Black Mesa mine and the Kayenta mine under a single permit.
Wahleah Johns, co-director of Black Mesa Water Coalition and one of the petitioners in the appeal said, “As a community member of Black Mesa I am grateful for this decision. For 40 years our sacred homelands and people have borne the brunt of coal mining impacts, from relocation to depletion of our only drinking water source. This ruling is an important step towards restorative justice for Indigenous communities who have suffered at the hands of multinational companies like Peabody Energy. This decision is also precedent-setting for all other communities who struggle with the complexities of NEPA laws and OSM procedures in regards to environmental protection. However, we also cannot ignore the irreversible damage of coal mining industries continues on the land, water, air, people and all living things.”
The Administrative Law Judge’s order decides issues raised by members of the Hopi Nation in one of many appeals brought in response to OSM’s final permit, which was issued in the waning days of the Bush Administration. The “life of mine” permit issued by OSM authorized and expanded mining operations at Black Mesa beyond the year 2026 for the remaining
portion of an estimated total of 670 million tons of coal. The order cited violations of the National Environmental Policy Act (NEPA).
“This is a huge victory for the communities of Black Mesa impacted by coal mining and proof that Peabody can’t have its way on Black Mesa anymore,” said Sierra Club’s Hertha Woody, also a member of the Navajo Nation. “Coal is a dirty, dangerous and outdated energy source that devastates communities, jeopardizes drinking water and destroys wildlife habitats. This
decision is yet another example of why it no longer makes sense to burn coal to get electricity.”
The Black Mesa Coal Mine Complex has a long history of controversy stemming from concerns about air and water pollution, impacts to local residents, the drying of aquifers and sacred springs, and coal’s contribution to global warming. Heavy metals and pollutants that result from mining operations are toxic to humans and harmful to wildlife.
“This is a vindication of what we have been saying for years,” said Amy Atwood of the Center for Biological Diversity. “As a result of this huge victory, business-as-usual at Black Mesa has come to an end and a transition toward a green energy economy in the Four Corners region can truly begin.”
“It is good news that our concerns were heard. Water is very precious that should not be used for coal mining but instead should be used for our people. I am pleased with this outcome,” said Calvin Johnson of the grassroots organization C-Aquifer for Dine’.
“Dine' C.A.R.E. commends DOI Judge Holt,” said Anna Frazier of Dine’ C.A.R.E. “This is a hopeful step toward a better consultation with OSM and other regulatory entities. The ultimate goals for our people and our land are for OSM to withdraw the life of mine permit, as there is no purpose and need for it, to move toward permanent closure of the existing Kayenta Mine
and transportation complex and to begin total reclamation on Black Mesa.”
The coalition of tribal and environmental groups who filed a related appeal of OSM’s permit included the Black Mesa Water Coalition, Diné C.A.R.E., Dine Hataalii Association, Inc., To Nizhoni Ani, C-Aquifer for Diné, Diné Alliance, Sierra Club, Center for Biological Diversity, Natural Resources Defense Council. Legal representation in the appeal was given by the
Energy Minerals Law Center attorneys Brad Bartlett and Travis Stills and Atwood, a senior attorney at the Center for Biological Diversity.
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For more background information please visit: http://www.blackmesawatercoalition.org/

Black Mesa Water Coalition: Judge withdraws Peabody permit

FOR IMMEDIATE RELEASE
January 8, 2010

Department of Interior Judge Withdraws Peabody's Coal-Mining Permit on Black Mesa Reverses 11th Hour Bush Administration Decision

By Black Mesa Water Coalition
Billy Parish
billyparish@gmail.com (203) 887-7225

BLACK MESA, Ariz. - A Department of Interior Administrative Law Judge withdrew Peabody Coal Company's Life of Mine permit for operations on Black Mesa, AZ, handing a major victory to tribal and environmental organizations who appealed the permit decision in January. The permit had been granted on December 22nd 2008 by the Department of Interior's Office of Surface Mining (OSM) in one of several fossil-fuel friendly 11th hour decisions by the Bush Administration.

According Judge Robert G. Holt, "OSM violated NEPA [National Environmental Protection Act] by not preparing a supplemental draft EIS [Environmental Impact Statement] 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."

Wahleah Johns, co-director of Black Mesa Water Coalition, one of the petitioners in the appeal, issued the following statement: "As a community member of Black Mesa I am grateful for Judge Holt's decision. For 40 years our sacred homelands and people have borne the brunt of coal mining impacts, from relocation to depletion of our only drinking water source. This ruling is an important step towards restorative justice for Indigenous communities who have suffered at the hands of multinational companies like Peabody Energy. This decision is also precedent-setting for all other communities who struggle with the complexities of NEPA laws and OSM procedures in regards to environmental protection. However, we also cannot ignore that irreversible damage of coal mining industries continues on the land, water, air, people and all living things."


P.O. Box 613 Flagstaff, AZ 86002 US

Peabody Coal Permit Rejected for Black Mesa

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
Censored News
http://www.bsnorrell.blogspot.com

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.

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