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Dark Days on Black Mesa

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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."

The traditional Hopi knew all along.
For nearly fifty years, their pleas to the federal government to prevent mining in the heart of their homeland on Black Mesa have been ignored.

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John Dougherty
Contact: John Dougherty

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