Dark Days on Black Mesa
Eighty-two-year-old Valjean Joshvema leans forward in his chair and sings a Hopi prophecy that has come to pass.
The ageless Hopi lyrics foretell of an era when the Hopi will wander the high desert mesas they and their ancestors have occupied for more than twelve millennia. According to the prophecy, the Hopi are searching for the sacred substance that has sustained their lives, their culture, their religion.
"The song refers to animals. That is us," says Joshvema, whose home is located in the 950-year-old village of Old Oraibi on the Hopi reservation in northeastern Arizona. "They will drink all the water and will look around for water with a dipper, and it's not there."
The song Joshvema learned during his childhood warns the Hopi never to misuse water. The wages of such sin are ruination of North America's oldest society--a society that subsists in an environment that gets fewer than twelve inches of rainfall a year.
"The prophecies are supposed to teach us not to do these things, but we are not listening," says Joshvema.
Joshvema is a member of Wuwtsim, one of several Hopi religious orders. He says the religious society that once tightly bound the Hopi is rapidly fading. Joshvema has been many things: a U.S. Marine, heavy-machinery operator, farmer, rancher, spiritual advisor. But like many others in the 10,000-member tribe, Joshvema is convinced that the Hopi are on a path that could wreck their homeland.
Thirty-one years ago the Hopi Tribal Council struck an agreement to sell groundwater to Peabody Western Coal Company. That water is mixed with coal strip-mined by Peabody from nearby Hopi and Navajo lands to make a slurry. The mixture is then injected into America's only coal-slurry pipeline, which leads to a massive electricity plant at Laughlin, Nevada, where the coal is burned to produce power for Las Vegas, Los Angeles and Phoenix.
Although the tribe has received more than $100 million in coal royalties from Peabody in the past decade, many Hopi now contend that Peabody's groundwater pumping is drying up springs and washes--destroying the tribe's link to its past and its hope for the future.
"The song ends," Joshvema says, "with, 'No one will help us.'"
Fortunately, the final verse of the prophecy may not yet have been written.
A new generation of Hopi leaders is emerging. These leaders have been trained in American universities, the armed forces and federal courtrooms, but they also revere traditional Hopi teachings. They are fighting to protect Hopi water.
In the course of their work, they have discovered that their Hopi predecessors are not solely to blame for the unfavorable terms of the tribe's 1966 lease with Peabody.
The Hopi have learned that they were deceived by their lawyer whom they trusted and whom many loved. The late Salt Lake City attorney, John Boyden, negotiated a mining and groundwater agreement on behalf of the Hopi with Peabody. For his work, the Hopi paid him more than $1 million.
But Boyden, records reveal, was literally double-dealing--working for the coal company at the same time he was working for the tribe. The costs of his deception are only now becoming clear--and only because of the work of University of Colorado law professor Charles F. Wilkinson.
The agreement Boyden forged with Peabody is threatening to rip the heart out of what's left of traditional Hopi culture. If the groundwater dries up, Joshvema and other Hopi would have to abandon their homeland.
"That would be the ultimate disaster," Joshvema says.
It's fitting that Black Mesa is so named, considering the coal found there.
The formation towers 8,000 feet above sea level at its northern boundary near the Navajo town of Kayenta, in Arizona. The 3,300-square-mile plateau gradually slopes southwestward to an altitude of 2,000 feet, where it splits into fingerlike promontories. It is on these narrower mesas that the Hopi and their ancestors have survived for more than 12,000 years.
Black Mesa is bordered on the northwest by a vast outcropping of Navajo sandstone. The sandstone plunges beneath the 1,500-foot-high face of Black Mesa--only to reappear in scattered locations fifty or more miles to the southwest, near the Hopi villages.
The sandstone beneath Black Mesa contains huge quantities of water, as much as 300 million acre-feet. But only a fraction of this amount can be withdrawn by wells or will ever flow naturally through springs and washes.
The Hopi first settled near springs and washes fed by the Navajo sandstone and other, shallower aquifers. Their society developed an intimate relationship with water and its sources--rain, snow, springs and washes.
Until recently, the Navajo sandstone and other aquifers beneath Black Mesa were in equilibrium: The discharges into springs and washes were equal to the amount of water being recharged into the aquifers from precipitation.
The Hopi culture thrived with the natural ebb and flow of the water below.
Black Mesa itself has long been an important area to both the Hopi and the Navajo. It contains numerous sacred shrines and burial grounds--many of which have been destroyed by Peabody's mining operations, according to a 1996 ruling by a Department of the Interior administrative law judge.
In the early 1960s Peabody signed leases with the Hopi and Navajo tribes that allowed the company to prospect and mine coal on more than 100 square miles of Black Mesa. Peabody hit the jackpot. The company discovered one of the richest coal deposits in the world--and Peabody had exclusive rights to it.
By the early 1970s Peabody had built one of the largest coal strip mines in the United States. The company signed long-term coal contracts with two power plants that were built in the early '70s to sate the power needs of burgeoning Southwestern cities.
One of those contracts is with Southern California Edison's Mohave Generating Station in Laughlin, Nevada. Peabody engineers reviewed several possible methods of transporting the coal to Laughlin, including truck and rail. But the company also knew that Black Mesa sat atop the sodden Navajo sandstone.
The company decided that the cheapest way to transport its coal to Laughlin was to mix the coal with groundwater and inject the slurry into an underground pipeline. The company draws water from eight wells dug deep into the thickest section of the Navajo sandstone aquifer; Peabody sucks 3,800 acre-feet of water each year from the ground. (An acre-foot is the amount of water that would cover an acre of land to a depth of one foot; it is also estimated to be the amount of water used by a family of four in a year.) The 273-mile-long pipeline moves about five million tons of coal each year.
Once the pumping began, the Navajo sandstone aquifer was thrown out of balance. Natural discharges and well withdrawals exceeded recharge. Peabody believes the amount of water it is withdrawing is small in comparison to the size of the aquifer. "If we ship all the coal to Mohave that is available to us, we will only use one-tenth of 1 percent of the volume of the water in the aquifer," says Peabody vice president of operations Gary A. Melvin.
But the Hopi contend that because their villages are located at the southern edge of Black Mesa, above a considerably narrower portion of the Navajo sandstone aquifer, Peabody's withdrawals are lowering the water table and drying up water sources that were reliable in the past.
"When you start withdrawing that amount of water, that affects the recharge of the springs, and it can have a devastating impact," says Nat Nutongla, director of the Hopi tribe's water-resources program.
The debate over how much impact Peabody's wells are having is being waged in a seemingly endless series of contradictory hydrogeologic reports. A definitive answer may be decades away.
But one thing is certain on Black Mesa: Peabody's coal-slurry line will remain a center of controversy.
Slurry lines are rarely used to transport coal in the United States. The fact that Peabody uses the method in one of the driest regions on Earth is startling.
In a 1993 letter to Secretary of the Interior Bruce Babbitt, the Hopi tribe complained that the slurry line at Black Mesa "is the only instance in American history where coal has been transported with groundwater, let alone pristine groundwater that represents the only source of drinking water for an Indian Tribe."
The past and present collide on the Hopi's beautiful mesas.
Meticulously constructed sandstone rock homes dating back a century or more are interspersed with the angular cinderblock homes of today.
Dirt roads twist through ancient villages and lead to homes equipped with satellite dishes.
Hopi villages have retained a distinct, noncommercial identity. Businesses are few. Advertising and billboards are sparse. Hopi voters rejected a proposal to build casinos as a revenue source. Many Hopi are self-employed artisans or work for the tribal government.
Where its Navajo neighbors are building modern shopping centers, the Hopi reservation, which is surrounded by the Navajo reservation, has a few small markets. Most Hopi still drive to Flagstaff, a hundred miles away, to do such basic tasks as wash clothes.
Power, water and sewer lines are slowly linking Hopi villages to a society many have resisted for decades.
Dances, ceremonies and art remain vital to the Hopi, but Hopi traditionalists say their spiritual underpinnings have become secondary to entertainment.
As modern technology encroaches on the Hopi mesas, many of the traditions of the past are fading. The Hopi language is dying; few children learn their native tongue. The gardens that once flourished on the steep hillsides are crumbling from neglect.
Few Hopi gather their water from springs as their ancestors did. The art of dry-land farming is losing its luster. The lure of the conveniences of modern life is disconnecting the Hopi from their past.
It is a trend that disturbs many traditional Hopi.
"The young people are getting further and further away from our culture," Valjean Joshvema laments.
The Hopi are a divided people; many traditionalists don't even recognize the Tribal Council as a legitimate body. But on the issue of water, Hopi leaders--both progressive and traditional--are united.
They believe Peabody's extraction of 1.2 billion gallons of groundwater a year is drying up springs and diminishing flows in washes they have worshiped and relied upon for generations.
"We are facing a tragic situation by depleting our only water source," says progressive Hopi tribal chairman Ferrell Secakuku.
"It is important for Peabody not to waste the water, because that is our only source," says Dalton Taylor, a seventy-year-old rancher who regularly makes lengthy pilgrimages to far-flung sacred sites.
Vernon Masayesva, a former tribal chairman, believes that water remains the Hopis' vital link to their past. Since he left the council in 1993, he's been on a mission to educate his people about the importance of their water.
"I really want us to go back to honor, respect and trust the ancient wisdom, to go back to our relationship with water," Masayesva says. "Water is sacred. Water is a blessing."
Peabody says the Hopi claims are nonsense. The company acknowledges that the water table will drop during the life of its mine. But the coal will all be mined within thirty years, and Peabody executives promise groundwater will be replenished within a decade of the mine's closure.
The company cites several hydrogeological studies that indicate Peabody's groundwater use is not drying up springs. The company blames climatic changes for variations in spring and wash flows that concern Hopi farmers and ranchers.
"The evidence continues to support that there is really no significant impact," says Peabody's Melvin.
In the middle of the fray is Bruce Babbitt. The former Arizona governor is saying nothing about the contentious issue. His department supports a proposal to build a water pipeline from Lake Powell to Peabody's coal mine and to communities on the Hopi and Navajo reservations. The pipeline would provide Peabody another water source for its slurry line and bring renewable water supplies to Hopi and Navajo communities.
But the department's proposal would also require the Hopi to pay $75 million or more to get Lake Powell surface water through ninety miles of pipeline to Peabody's mine and farther to the dozen Hopi villages arrayed across the southern edge of Black Mesa.
While the prospect of Lake Powell water for Peabody and the Hopi villages sounds alluring, Hopi resistance is mounting.
"They want us to mortgage our grandchildren's future to solve a problem that is not caused by us," says Masayesva.
Masayesva is urging the Tribal Council to reject the pipeline plan and focus on conservation and development of other water resources, including obtaining rights to 50,000 acre-feet per year of Colorado River water.
At the same time, Masayesva says the tribe must pressure Babbitt and Peabody to cease groundwater pumping. The tribe should be prepared to take legal steps that include shutting down the mine, he says.
There are indications that Babbitt has the authority to force Peabody off the groundwater and that the Hopi have the legal power to close the mine.
Former secretary of the interior Stewart Udall approved the Peabody coal lease in 1966, but only after adding a key stipulation. Under that provision, if Peabody's wells are found to be "endangering the supply of underground water," the interior secretary may order Peabody to find another water source at its "sole expense."
During a phone interview from his office in Santa Fe, Udall says that Babbitt should protect the Hopi. It is time, Udall says, for Babbitt "to champion the best solution for the Indians."
If Bruce Babbitt follows that advice, he will run head-on into one of the most powerful industrial consortiums in the United States.
Peabody Western Coal Company is the hub of a prodigious industrial engine that has fueled growth and development in the Southwest for thirty years. Peabody is a subsidiary of a British multinational corporation, The Energy Group, which is rapidly increasing its investment in U.S. utility companies.
Peabody clears profits of $60 million to $70 million a year from its Indian coal-mine leaseholds, according to Hopi chairman Ferrell Secakuku. A Peabody spokeswoman calls that estimate "overstated."
It is charitable to say that Peabody got a great deal on its initial coal leases with the Hopi and Navajo tribes, paying each tribe a 3.3 percent royalty, about half the royalty rate elsewhere at the time. Peabody also dodged an assortment of taxes.
Then there's the groundwater, which Peabody got at incredibly low rates. The Navajo initially were paid $5 per acre-foot of water while the Hopi received a mere $1.67 per acre-foot for the groundwater that continues to be pumped from 2,000 feet below the surface at an astounding rate of 2,000 to 4,500 gallons per minute. The rates were renegotiated in 1987 to reflect the market value of the water--Peabody says it now pays an average of $3.2 million per year for 3,800 acre-feet of water, for an average of $840 per acre-foot.
Peabody operates two adjacent mines on Black Mesa under leases with the Hopi tribe.
The Black Mesa Mine supplies coal fuel for the 1,580-megawatt Mohave Generating Station, operated by Southern California Edison. Once it is separated from the coal, the Hopi water is used as a coolant in the power plant. Other owners of the power plant include the Los Angeles Department of Water and Power, Nevada Power Company and Arizona's Salt River Project.
The second mine, called Kayenta, is dedicated to the Navajo Generating Station located near Page, Arizona. Peabody ships about seven million tons of coal each year to that 2,310-megawatt plant via a 78-mile-long electric railway.
The Navajo power plant was built primarily to provide power to operate the $5 billion Central Arizona Project, a series of canals that pumps water more than 300 miles from the Colorado River near Lake Havasu to the Phoenix and Tucson metropolitan areas and surrounding farms, industries and Indian tribes. CAP is designed to deliver more than two million acre-feet of water per year to central Arizona towns, an amount sufficient to provide for eight million people.
Like the Mohave plant, the Navajo power station provides electricity to powerful utility companies, including the Salt River Project (the facility's operator), Arizona Public Service Company, Nevada Power Company, Los Angeles Department of Water and Power and Tucson Electric Power Company.
Peabody not only fuels a massive power and water grid that drives economic development in the Southwest; the mining conglomerate has also become the economic backbone of the Navajo and Hopi tribes.
Revised leases in 1987 greatly increased royalties to both tribes. In recent years the Hopi tribe has received about $10 million of its $17 million annual budget from Peabody. The Navajo Nation, 160,000 strong, is collecting about $35 million a year in coal royalties and water payments from Peabody. (The Navajo are receiving more royalties because the mines are located primarily on Navajo land.)
Peabody's mines also employ about 700 Navajo workers and a handful of Hopi employees at wages and benefits averaging more than $55,000 annually. A fringe benefit for the Native Americans: all the free coal they can cart off.
Facing so much economic power, it's not surprising that Hopi concerns about groundwater remain unknown to the public--let alone attract serious attention from Congress or the Clinton administration.
And the Hopi are alone in their fight to get Peabody off groundwater. The Navajo government is not concerned about Peabody's groundwater use.
Stanley Pollack, water-rights attorney for the Navajo, claims there is no evidence that Peabody's groundwater withdrawals are damaging the aquifer. Pollack says diminished flow from Hopi springs and washes is because of improper placement of Hopi municipal wells rather than Peabody's industrial wells.
Peabody, Pollack says, draws all the attention because it is withdrawing vast amounts from the aquifer. But Peabody's wells are many miles away from Hopi villages and have only a minor effect on groundwater levels on the Hopi reservation, Pollack claims.
"Peabody," Pollack says, "is an easy target."
Since his term as Hopi tribal chairman expired in 1993, Vernon Masayesva has devoted much of his time to finding a way to stop Peabody from using groundwater for its mining operations.
While the numerous groundwater studies conducted by both private and federal agencies are inconclusive, Masayesva is more convinced than ever that Peabody is having a serious impact on Hopi water supplies.
"The more we look into the impact on the aquifer, the more we find serious damage occurring," Masayesva says.
Tribal elders report numerous instances of diminished or drying springs that hydrogeologists have linked directly to the Navajo sandstone aquifer.
Masayesva also points to an April 1996 draft report prepared by the U.S. Geological Survey that shows a sharply reduced groundwater-recharge rate in the area of the aquifer shared by Peabody and Hopi villages.
The report concludes that 90 percent of the water in the aquifer is 10,000 to 35,000 years old and that it collected there during the ice ages.
The report also states that the current recharge rate of the aquifer is 2,600 to 3,600 acre-feet per year, substantially less than the previous USGS estimate of 4,800 acre-feet per year.
Most important, at least to the Hopi, is that the USGS draft report shows for the first time that Peabody is taking out more water than is being naturally recharged.
The draft report, Masayesva says, is an important development in the long series of studies on the aquifer.
But so far, the USGS report remains in draft form, in part because of extensive comments provided by Peabody, which helped pay for the survey. The company conducted its own study using the same techniques as USGS and concluded that the recharge rate is much higher than USGS's draft report, according to Gary Melvin at Peabody.
In fact, Melvin says the Peabody data shows the recharge rate to be near predictions in USGS models developed in the early 1980s. Peabody's data has been forwarded to USGS for consideration in the agency's final report, Melvin says.
"We have yet to see anything that would cause us any concern or lead us to change any of the assumptions in our earlier studies," Melvin says.
The Hopi, however, claim they don't need definitive proof to shut down Peabody's wells.
Masayesva says the tribe's obligation under federal law is to simply show that there is a "threat" to the groundwater resource.
Once that threat is shown, the federal government--under its trust responsibility to Indian tribes--is required to conduct the studies and determine whether Peabody is depleting the aquifer.
And in this case, Masayesva says, the government doesn't have to prove damage, but only that Peabody poses a danger to the aquifer. The lower standard is a result of the lease language required by Stewart Udall: "Should the Secretary of Interior determine, at any time, that the operation of the wells by [Peabody] is endangering the supply of underground water in the vicinity or is so lowering the water that other users of such water are being damaged, he may...require Peabody Coal Company, at its sole expense, to obtain water for its mining and pipeline operations from another source that will not significantly affect the supply of underground water in the vicinity."
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.'"
That's when the Hopi were deceived by their trusted lawyer, the late John Boyden.
Udall knew that the Hopi Tribal Council was deeply divided on the issue and lacked widespread support from many traditional Hopi who opposed any mining leases.
Nevertheless, he approved the lease after Boyden persuaded the Hopi to go along with the deal.
"Boyden got some kind of resolution through the Tribal Council," Udall says. "If he had not done so, I wouldn't have approved it."
Three decades later, information has surfaced that details Boyden's role in negotiating for the Hopi with Peabody.
Documents unearthed by CU law professor Charles Wilkinson reveal that Boyden violated the sacred trust he held with the Hopi. He also violated a legal tenet.
"John Boyden's legal files, donated to the University of Utah after his death in 1980 but only recently available for public review, show that Boyden violated his high duty to the Hopi by working concurrently for Peabody Coal during the decisive years of the mid-1960s," Wilkinson states in a lengthy paper published in the Brigham Young University Law Review in 1996.
Udall says he was stunned to learn of Wilkinson's findings. Attorneys are to avoid such conflicts of interest at all costs.
"I naturally feel pangs of conscience about this at this point by the way it has all turned out," Udall says. "And I'm particularly sensitive to the Hopi point of view because of what Boyden did."
Hopi religious leaders, the Kikmongwi, beseeched President Harry Truman in 1949 to forbid such atrocity.
Truman ignored them.
In the early 1960s the traditional Hopi who followed ancient ways of self-governance by consensus protested efforts by a renegade Hopi tribal council to grant mining leases.
Washington, D.C., bureaucrats responded by usurping the Hopi Constitution that "prevent[ed]" the council from executing mineral leases without approval of the Hopi people by "delegating" leasing authority to the renegade council.
By the late 1960s the traditional Hopi leaders had grown deeply suspicious of the council's attorney, who had negotiated a one-sided mineral lease with Peabody Western Coal Company. The lease allowed Peabody to create one of the largest coal strip-mining and water-consuming operations in the United States--on Black Mesa.
Hopi traditionalists wrote presidents Lyndon Johnson, Richard Nixon and Jimmy Carter seeking to halt the mining, but none listened.
They turned to the courts, filing numerous lawsuits. All were thrown out.
As the decades passed, many of the traditionalists faded into the dusty mesas where the Hopi first built villages more than 950 years ago and where their ancestors roamed 12,000 years ago.
Only a handful of the Hopi's traditional religious leaders remain.
And only now are the half-century-old suspicions being confirmed.
The Hopi, whose tenets are trust and loyalty, were deceived. And nobody played a larger role than Boyden, their longtime attorney.
Wilkinson takes no delight in his revelation of Boyden's dual role. But he's pleased it provides proof to support the long-held contentions of Hopi traditionalists.
"This is one of the largest single events in the Hopi's thousand-year history," Wilkinson says of Boyden's role in the Peabody mining lease. "At least now the record is clear."
John Sterling Boyden was a pillar of Utah Democratic politics for decades. A friend of Utah governors and an acquaintance of presidents, Boyden twice sought Utah's Democratic nomination for governor.
The prominent Salt Lake City attorney grew up a devout Mormon in Coalville, Utah. He served as a bishop in Salt Lake City from 1953 through 1958. His contribution to the Mormon Church was recognized at his funeral in 1980, when Marion Romney, of the Church's First Presidency, spoke.
Boyden was hired by an unofficial group calling itself the Hopi tribal council in 1950 to represent the tribe before the Indian Claims Commission. The commission was created to determine compensation to Indian tribes whose land was seized by the United States. The work was lucrative for Boyden, who eventually earned a $500,000 fee, equal to 10 percent of a $5 million settlement the U.S. offered to pay the Hopi for the loss of four million acres.
The elected Hopi Tribal Council was no longer recognized by the federal government when Boyden was hired. That council was dissolved by the federal government in 1943.
To legitimize his claim as Hopi attorney, Boyden executed agreements with leaders of seven of the twelve Hopi villages, along with the unofficial Hopi council.
Boyden expanded his role beyond representing Hopi interests with the Claims Commission in 1951, when he convinced the seven Hopi villages to hire him as general counsel to negotiate with oil companies that desired leases on Hopi land. Boyden told the villages he would be paid only out of revenues he produced for the tribe, according to Hopi tribal records.
The plan to make Boyden general counsel was problematic. The local Bureau of Indian Affairs director recommended the contract be rejected because it would legitimize the renegade tribal council without the consent of the Hopi people. But Boyden went over the local BIA director's head and won approval from Department of the Interior officials who were eager to see the Hopi grant oil and mineral leases.
A BIA memorandum describes a Boyden meeting with Interior Department officials in which he says "that remuneration for his services will depend largely on working out solutions to many of the Hopi problems to such a point that oil leases will provide funds."
The BIA approved Boyden's general-counsel contract in May 1952, triggering controversy on the Hopi reservation. While the protests caused the Interior Department to review BIA approval of Boyden's contract, in the end Boyden's appointment stood.
The lawyer turned his energy toward gaining federal recognition of the unofficial tribal council.
The original Hopi council had been created in the aftermath of the 1936 ratification of the Hopi Constitution. The constitution, however, was strongly opposed by Hopi religious leaders, the Kikmongwi, and many Hopi did not vote in the 1936 ratification election. More than 1,800 eligible voters stayed home. The constitution was approved by a vote of 651 to 104.
Tribal records reveal that BIA officials knew there was profound opposition to the constitution at the time it was ratified.
Oliver LaFarge, the federal agent supervising the election, noted in his diary that the Hopi were opposed to settling matters by majority vote because it leaves a dissatisfied minority.
"Their natural way of doing things is to discuss among themselves at great length and group by group until public opinion as a whole has settled overwhelming in one direction," LaFarge wrote. "Opposition is expressed by abstention," he concluded.
Nevertheless, the BIA approved the constitution and created the first Hopi Tribal Council.
But the constitution also required that the Kikmongwi approve councilmembers who were elected. Many Kikmongwi refused to do so. By 1942 several villages had failed to reappoint councilmembers, and the Hopi Tribal Council languished. By 1943 the BIA determined that the council had become dormant.
The unofficial tribal council soon evolved and operated through the 1940s and into the early 1950s.
Just as the area BIA director had predicted, Boyden's approval as general counsel soon led to the BIA's recognition of the unofficial tribal council in 1955. The approval came even though only seven of twelve villages had elected members to the council.
For much of the next seven years, Boyden and the tribal council attempted to resolve a contentious land dispute between the Hopi and the much larger Navajo tribe. In 1962 a federal court determined rights to 2.5 million acres of land; the ruling required several thousand Navajo and about a hundred Hopi to move from their homes to other areas.
The ruling also stated that the Hopi and Navajo would split evenly any proceeds from the rich coal deposits on Black Mesa.
Boyden had already banked $500,000 for representing the Hopi before the Indian Claims Commission. For his work on the land-dispute case, the Hopi Tribal Council paid Boyden an additional $1 million--$780,000 for legal services and $220,000 as an expression of the Hopi's "gratitude" for his work.
The fee was outlandish and was initially rejected by Arizona BIA officials.
"The Phoenix area office noted that the 7,800 hours spent, valued at the 'top price paid for top attorneys' at that time would be worth $273,000. It recommended approval of a $400,000 fee" because Boyden had forgone any fee for a number of years, tribal records state.
Boyden appealed the BIA's assessment to Secretary Udall in April 1965. Soon after, the Interior Department approved Boyden's $1 million fee.
While Boyden was working on the land-dispute case, he was also eliminating a hurdle that kept private companies from leasing Hopi land.
The Hopi Constitution prevented the tribal council from entering mineral leases without tribal approval. Boyden knew the majority of the Hopi were against leasing or mining their land. To circumvent the constitutional provision, Boyden asked Udall in early 1961 to delegate leasing authority to the tribal council so it could generate enough money to pay legal expenses in its land dispute with the Navajo.
Udall, who had just been appointed by Democratic president John F. Kennedy, directed the Department of the Interior to delegate mineral leasing authority to the tribe. This was a crucial decision for the Hopi and Boyden alike.
The tribe immediately began signing oil and gas leases with several corporations, generating $3 million. Some of those funds were used to pay Boyden's $1 million fee.
Hopi traditionalists filed suit in federal court in 1964, challenging the delegation of mineral leasing authority to the tribal council. But the suit was dismissed on the grounds that the council could not be sued because of its sovereign immunity.
The stage was set for Boyden to execute the Black Mesa coal lease with Peabody Western Coal Company.
The Hopi Tribal Council barely mustered a quorum--only eleven of seventeen councilmen were present--when it voted to approve a lease with a subsidiary of Peabody on May 16, 1966. Of the eleven who voted, only six had been certified by the Kikmongwi as the Hopi Constitution required.
The lease was negotiated on the Hopi's behalf by John Boyden.
"Nothing on record indicates that John Boyden ever provided the Hopi Tribal Council with any substantial analysis of the Peabody lease," Charles Wilkinson states in "Home Dance, The Hopi, and Black Mesa Coal: Conquest and Endurance in the American Southwest," a paper published last year in the Brigham Young University Law Review.
The lease was a terrible deal for the Hopi.
The tribe received only 3.3 percent of gross sales, about half the rate that the federal government was getting in mining royalties at the time. Numerous taxes were waived. The lease had no provision for renegotiations--a standard clause usually providing for a new pact every ten years.
The vast amount of land involved, 40,000 acres, was also far above the 2,560 acres that federal rules allowed for a single mining lease on Indian land. There are no indications that the tribe sought to have the acreage limits waived.
The lease was amended in October 1966 to allow Peabody to withdraw more than 4,000 acre-feet of potable water from beneath Black Mesa each year.
The lease called for the Hopi to receive a paltry $1.67 per acre-foot for the water--a rate far below the $30 to $50 that other industries paid per acre-foot at the time. The $1.67 figure was handwritten into the lease agreement. Hopi officials have been unsuccessful in trying to determine who wrote in the value.
The entire Peabody deal was negotiated in secret.
The Hopi people wouldn't learn details of the lease negotiated by Boyden until several years later, when Peabody began ripping Black Mesa apart.
Udall now says he was oblivious to Boyden's maneuvers.
"How he manipulated them and how he got it done, I don't know," Udall says. "The word that came to me was that they [the Hopi] had approved the lease."
Udall contends today that he would never have approved the lease "if the word came back the Hopi don't want it."
Yet Udall, very early in his tenure as interior secretary, had approved the delegation of mineral leasing authority to the council, a decision that allowed Boyden and the council to bypass the Hopi constitutional provision calling for a plebiscite before any leases were approved.
The delegation of mineral-leasing power removed a huge obstacle for Boyden, who by then was also working for Peabody.
Snowcapped mountains beckon through the window of Charles Wilkinson's small fourth-floor office at the University of Colorado Law School.
Wilkinson delves quickly into a topic that has been his life's work--the West. He is one of the nation's most prominent legal experts on public lands and Indian law and has followed the developments on Black Mesa for more than 25 years.
A 1966 graduate of Stanford University law school, Wilkinson cut his teeth on Indian law in 1971 when he joined the Native American Rights Fund. He began his academic career in 1975 at the University of Oregon's law school before moving to Colorado in 1987.
His numerous books and papers on environmental issues related to public lands and Indian reservations have won him widespread recognition. Outside magazine calls him the "West's foremost legal authority on natural resource management."
Wilkinson's discovery of Boyden's conflict of interest still leaves him unsettled, even though he's known about it for several years. Boyden's relationship with the Hopi is an important element in Wilkinson's upcoming book, Conquest and Endurance in the American Southwest.
"There was a level at which this was very uncomfortable for me," Wilkinson recalls of his discovery. "It just turns your stomach. Reading those letters is sickening."
The letters Wilkinson refers to are correspondence between Boyden and Peabody officials in the 1960s.
Rumors had persisted for years that Boyden was working for Peabody while also representing the Hopi tribe. But the rumors couldn't be substantiated. Boyden always denied ever working for Peabody, and the mining company denied that the lawyer worked for them. John Boyden's son and former law partner, Stephen Boyden, maintains that position today.
But files released by the University of Utah library contain letters between Boyden and Peabody officials discussing work Boyden did at Peabody's request. The records include Boyden's billings to Peabody for work done between 1964 and 1971.
While the university file is revealing, it is far from complete. "We can't tell when the relationship began or when it ended," Wilkinson says.
But what is clear is that there was a close and intimate relationship between Boyden and Peabody.
"The file discloses that Boyden represented Peabody in October 1964 at a hearing in front of the Utah State Land Board; he urged the board to sell Peabody land for a proposed power plant that would use Black Mesa coal," Wilkinson's article in the BYU law review states.
Records show that Boyden wrote a Utah businessman in October 1964 and claimed he was "connected with the company [Peabody]."
In July 1965, Boyden sent a letter to Ed Phelps, Peabody's vice president of engineering, promising to update Phelps after he met with Utah's governor. "I will get together with him and then promptly inform you," Boyden wrote.
At the time, Peabody was seeking to obtain water rights from Utah to use in the cooling system of a proposed power plant that would burn Black Mesa coal. Boyden wanted the plant built in Utah.
In September 1965 Boyden wrote Phelps expressing concern that the plant was going to be located in Arizona, near Page, rather than in Utah. The letter clearly underscores Boyden's partnership with Peabody. "Does this mean we are abandoning the possibility of locating the plant in Utah?" Boyden asks.
Perhaps the most revealing letter in the file is a November 1967 letter marked "Personal & Confidential" from Boyden to Phelps in which Boyden states: "I am enclosing a proposed statement to Peabody Coal Company for my work done to date."
The letter requests payment for work dating back three years, to 1964--the year the Hopi, under Boyden's direction, granted Peabody an exploration permit on Black Mesa. The billing itemizes numerous phone calls between Boyden and Phelps as well as a dozen conferences with state and federal officials and private businessmen on Peabody's behalf.
The records do not reveal how much Peabody was paying Boyden for his services, which continued through at least 1971.
After copies of several of Boyden's letters were faxed to Peabody officials at their Flagstaff headquarters, the company confirmed that Boyden worked for Peabody during the period in which he negotiated the Black Mesa coal lease on behalf of the Hopi tribe. At the same time, Peabody denied Boyden represented the company during lease negotiations with the Hopi.
"The copies of correspondence you sent to us relate to an exploratory project near the Navajo reservation in Utah that had no connection to the Hopi Tribe," says Peabody spokeswoman Beth Ulinger.
Ulinger then adds: "Mr. Boyden did not represent Peabody during the negotiation of the Arizona leases, and we have no knowledge or information to suggest that Mr. Boyden did anything inappropriate."
Stephen Boyden, an assistant attorney in the Utah Attorney General's office, also says his father "wasn't representing Peabody at the same time he was representing the Hopi tribe."
Legal ethicists say an attorney should, at the very least, fully disclose any potential or actual conflict of interest to a client. There is no indication that Boyden ever disclosed to the Hopi tribe that he was also representing Peabody in the crucial years leading up to the 1966 signing of the Black Mesa coal and groundwater leases.
Boyden's representation of Peabody and Hopi at the same time is harshly viewed by legal experts.
Wilkinson's documentation has convinced at least one key player in the coal rush that Boyden betrayed the Hopi. Udall says Boyden's actions raise serious questions about the lease--particularly the use of groundwater to transport coal to the Mohave Generating Station.
Udall says the water issue must be addressed by current Secretary of the Interior Bruce Babbitt, particularly since Boyden had a conflict of interest at the time the lease was first negotiated.
"I'm not [saying] this to put Secretary Babbitt, my friend, on the spot," Udall explains. "I'm doing this because I think the decision is secretarial...If he looked at it and saw the evidence with regard to Mr. Boyden and what he did, then that would weigh pretty heavily on his mind."
Babbitt's office remains silent on the issue.
If Udall's suggestion isn't heeded, legal action by the Hopi appears likely.
"I imagine the tribe and their attorneys are reviewing the situation to see if they can bring a suit to void the lease because it was obtained by fraud," Wilkinson says. "It is my strong sense that the Hopi would want to consider that suit."
Boyden, Wilkinson explains, not only had a conflict of interest, he also failed to help the Hopi capitalize on the powerful economic lever the tribe had at its fingertips.
Black Mesa, Wilkinson says, was essential to one of the most important political and economic developments in Arizona history--the Central Arizona Project.
Ever since the idea was hatched in the 1940s, the Central Arizona Project was embraced by Arizona politicians from both sides of the aisle. Arizona wanted to tap its share of Colorado River water that was being used by California.
In 1963 the U.S. Supreme Court allocated 2.8 million acre-feet of Colorado River water to Arizona each year. To put that water to use, Arizona needed a canal to bring water to the farms, businesses and communities in and around Phoenix and Tucson.
Arizona was in a position to get the funding to build the CAP in the mid-1960s. Udall was secretary of the interior, and Senator Carl Hayden of Arizona was the most senior member of the U.S. Senate. Together, they shepherded the project through a reluctant Congress.
"I played an important role in this. I can't deny that. We were frantic to get the CAP through Congress," Udall says.
Several major political and technical problems needed to be solved. Tremendous amounts of electricity would be needed to move as much as 2.2 million acre-feet of water more than 300 miles, over mountains, to central and southern Arizona.
The first plan was to build two hydroelectric power plants in the Grand Canyon. But the Sierra Club launched a massive publicity campaign and thwarted the proposal by the Bureau of Reclamation in 1966. A secondary plan soon emerged that called for a coal-fired power plant to be built near Page.
Udall again played a key role in nurturing the development of the Page power plant on Navajo land. The plant would be fueled by Black Mesa coal.
"Udall interceded saying if they [CAP backers] give up the fight for power plants in the Grand Canyon, he would help them get the Page plant," says historian Alvin Josephy.
"It was a big mistake of Udall's," says Josephy, a close friend of Udall's. "He was allowing people to deal for the Indians without even telling the Indians most of the time what was being dealt away."
Utilities were eager to construct power plants in remote locations so as not to exacerbate pollution problems in the burgeoning urban areas of Los Angeles, Las Vegas and Phoenix. Twenty-three Western utilities formed a consortium called WEST Associates to push for development of coal resources on Black Mesa and throughout the Four Corners region, where several highly polluting plants already existed.
Salt River Project soon presented plans to build the Navajo Generating Station near Page on Navajo land.
The coal for that plant would come from Black Mesa.
While the Page plant would solve the technical problem, the politics were more tangled. California, which was accustomed to receiving Arizona's share of Colorado River water, fought the CAP. To help persuade California and Nevada to support the project, another power plant was proposed: the Mohave Generating Station near Laughlin, Nevada. That plant was dedicated to supplying cheap power primarily to Southern California and Nevada.
Once again, Black Mesa was to be the source of coal. The water beneath Black Mesa would be used in the slurry line to transport coal from the mine to the plant. And after the coal was removed, the water would be used in the power plant's cooling system.
A political resolution finally was hammered out in the 1968 Colorado Basin River Project Act, which set the stage for the construction of the CAP and the two massive electric generating stations.
The whole deal depended on Black Mesa.
The Hopi and Navajo were in a unique position to strike lucrative deals with Peabody and the utilities. Without their coal, the CAP wouldn't get past square one.
"Boyden knew the leverage the Hopi had," Wilkinson says.
But Boyden was also working for Peabody coal.
Instead of cutting a lucrative deal, the Hopi (and for that matter the Navajo, who were represented by separate counsel) ended up with scraps.
It wouldn't be until 1987--21 years after signing the initial lease--that the tribes began to get anywhere near a market rate of return for their coal.
By then Boyden was dead.
"He failed them miserably," Wilkinson says.
The $5 billion CAP has yet to fulfill its promise.
The heavily subsidized water is used on heavily subsidized crops. High payments on the CAP debt have forced several agricultural irrigation districts into bankruptcy. Many municipalities have rejected using the expensive and low-quality water. Arizona still is failing to take its full allotment of CAP water.
At the canal's terminus west of Tucson, millions of gallons of Colorado River water that have been pumped across 300 miles of desert, propelled by power generated with Black Mesa coal, are unceremoniously dumped onto a dry lake bed.
The costly CAP water either evaporates or percolates back into the earth.
The Hopi experience with John Boyden taught them a lesson. The tribe no longer relies on a single attorney for all its legal matters.
Nevertheless, when it comes to Indian lands and politics, there's a potential conflict of interest under every rock.
The tribe is currently in sensitive negotiations to settle a complicated water-rights case on the Little Colorado River, which flows near the Hopi reservation. A proposal to build a pipeline that would deliver Lake Powell water to Peabody coal and to the Hopi and Navajo tribes is part of the settlement.
The plan requires the Hopi to pay $75 million or more to get 2,000 acre-feet of Lake Powell water each year to its villages. The proposal would also allow Peabody to stop pumping groundwater--a high priority of the Hopi.
The settlement proposal, however, is opposed by some members of the Hopi Tribal Council and the former Hopi tribal chairman.
Besides the high cost to the Hopi, critics say the proposed settlement was developed by a man with strong ties to the Navajo.
Animosity and suspicion between the Hopi and Navajo run high.
The tribes continue to battle over land rights. Illegal Navajo occupation of some Hopi land has earned the Hopi a judgment against the Navajo worth about $20 million. The Navajo, so far, have refused to pay the judgment.
Under the proposed Little Colorado settlement developed by Arizona's Apache County Superior Court Judge Michael C. Nelson, the Hopi would forgive that judgment against the Navajo.
Before he became a judge, Nelson served as legal counsel to former Navajo tribal chairman Peterson Zah between 1982 and 1987. He's also written several books about Navajo government and has served on several Navajo committees.
Former Hopi tribal chairman Vernon Masayesva is worried about Nelson's long relationship with the Navajo and his proposed Little Colorado settlement.
"Why should we support the position where the Navajos would not have to pay a $20 million settlement to the Hopi?" Masayesva asks.
Masayesva says he's sensitive to potential conflicts of interest, "particularly after having seen what John Boyden has done."
The long, sordid history of the exploitation of Black Mesa by Peabody, Boyden, the federal government and utilities has turned Masayesva and other tribal leaders into cynics.
And now, the Hopi tribe faces another crucial moment in its long history.
"I just can't have trust in anyone who, in my opinion, is not neutral. I don't think Judge Nelson can be, regardless of what he says. In any other situation, it would not be acceptable," Masayesva says.
But this isn't "any other situation"--this is Black Mesa.
Most Hopi ceremonies revolve around prayers for rain.
"We are praying for the cycle of nourishment for all life," says Gloria Lomahaftewa, assistant to the director of Native American affairs at the Heard Museum in Phoenix.
The prayers for rain never stop, even in death.
Hopi tradition, Lomahaftewa says, states that when a wife dies, she should be wrapped in her wedding robes for her ride back to heaven. There she will be turned into a cloud.
If she has led a good life, she will return a great blessing to her people.
She will transform into a cloudburst.
John Dougherty is a staff writer at Phoenix New Times, where this story first appeared.
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