Dark Days on Black Mesa

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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.

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John Dougherty
Contact: John Dougherty

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