By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
Masayesva and Hopi water attorneys believe the clause gives Bruce Babbitt a powerful lever, if he wants to pull it.
"Babbitt has a trust responsibility to protect the natural resource, and he has discretionary authority to make the decision requiring Peabody to stop using groundwater without calling for absolute proof on the part of the Hopi," Masayesva says.
Hopi water officials say there are plenty of scientific reports that show the groundwater is being depleted by Peabody and that Hopi supplies are damaged.
Hopi hydrologist Ron Morgan points to a series of USGS reports that clearly show Peabody's pumping is directly related to declining water levels in Hopi municipal wells. Water levels in Keams Canyon wells, for example, have fallen more than 160 feet since Peabody began pumping.
USGS hydrologist Gregory Littin says about half of that depletion at Keams Canyon can be attributed to Peabody's groundwater pumping.
Despite such evidence, the Department of the Interior has refused to act. Hopi attorneys' requests have gotten nowhere with Interior. (Babbitt's press secretary, Mary Helen Thompson, promised on several occasions to get "somebody" to talk about the issue with a reporter, but she didn't.)
Interior's silence on the issue is a bit surprising, considering that the department itself has displayed concern over Peabody's use of groundwater.
Former interior secretary Manuel Lujan rejected Peabody's application for a mining permit at the Black Mesa Mine in 1990 because of groundwater concerns. Instead, Lujan issued an interim permit to Peabody, pending groundwater studies.
Interior's refusal to issue a mining permit stems in part from a 1990 U.S. Environmental Protection Agency report that concluded the use of groundwater for the coal-slurry line "is not an environmentally preferable alternative."
Peabody claims a 1993 water study funded by the two tribes and Peabody conclusively proves there has been no long-term impact to the aquifer. Peabody asked Interior's Office of Surface Mining to issue a permit based on that report. The Hopi vehemently objected to the validity of the study and to the fact that they were not allowed to comment on the report before Peabody sent it to the Office of Surface Mining.
The conflict between the Hopi and Peabody continues while Interior sits on the sidelines. The department still hasn't issued Peabody a standard "life of mine" permit for Black Mesa. Mining continues unabated under the interim permit.
The Department of the Interior's inaction has led Masayesva to seek the aid of the Natural Resources Defense Council and a prominent San Francisco law firm to develop a strategy.
The NRDC has hired a hydrogeologist to study groundwater reports covering many years. It also is developing a legal strategy that emphasizes the environmental harm done by using drinking water for a coal-slurry pipeline.
"Peabody's use of groundwater strikes us as a very tremendous waste of a precious resource in the Southwest," says NRDC attorney David Beckman.
Beckman agrees that the Department of the Interior has an obligation to protect the tribe's natural resources and to act before the aquifer sustains major damage.
"The law instructs the government to very carefully and actively represent the best interests of the Hopi tribe," Beckman says.
There are other ways to move Peabody's coal to Nevada, including rail and the use of piped-in Lake Powell water for the slurry, Beckman says.
Economic studies commissioned by the Hopi show the cost of building a pipeline capable of transporting 4,400 acre-feet of water a year from Lake Powell to the Black Mesa Mine would raise the price of electricity to residential consumers in California, Arizona and Nevada by between 1 and 6 cents per month.
Even Peabody has acknowledged that low-cost transportation alternatives exist.
Mike Hyer, a Peabody executive, told the California Energy Commission during a November 1993 hearing that the company has developed alternatives to the "worst-case scenario"--its loss of groundwater for the slurry line.
"We believe there are alternatives out there," Hyer told the commission. Those alternatives are such "that Black Mesa coal would remain a low-cost source of coal for the Mohave station."
Peabody spokeswoman Beth Ulinger says the alternative Hyer spoke of is the Lake Powell pipeline.
If the water pipeline from Lake Powell is built, Udall says, the federal government should not charge the Hopi for the water.
"They shouldn't be forced to pay for the water," Udall says. "The government--by that I mean the Bureau of Indian Affairs and the Interior Department--have not really done right by the Hopis in this whole thing. They didn't protect them."
Udall knows only too well how badly the United States government failed in its legal obligation to protect the Hopi.
Udall was interior secretary when his agency approved Peabody's coal and water leases with the tribe. Udall says he was concerned even then about Peabody's use of groundwater.
"I thought about it a lot, and I could have vetoed it," Udall says. "I held it up [lease agreements] for a year because of water concerns."
Udall says a primary concern he had at the time was making sure the Hopi and Navajo tribes supported the lease agreements with Peabody. "I said, 'What do the Indians want to do? I'm not going to approve it unless the Navajo Tribal Council, and the Hopi, their governments, approved it.'"