Hopi, Peabody cases top council's agenda

By Jim Maniaci
Diné Bureau

WINDOW ROCK — Major cases involving the Navajo-Hopi land dispute and coal mining on Black Mesa once again dominate the annual litigation update to be given to the Navajo Nation Council in executive session Thursday and Friday.

And this doesn't count the four major water rights cases, one of which involves the recent signing with New Mexico of the San Juan River rights settlement. The other three are the mainstream Colorado River, its Little Colorado River tributary and the related larger Gila River adjudication in Arizona.

The Gila River case in Phoenix involves a settlement worked out with Sen. Jeff Bingaman to reserve 6,400 acre-feet a year of Central Arizona Project water for Window Rock. This would be part of the Navajo-Gallup pipeline project which is one of the keys, for the tribe, to the San Juan settlement.

For the mainstream case, Navajo Nation Attorney General Louis Denetsosie said in his quarterly April 18 report in the Executive Branch quarterly book that the tribe and U.S. are in a two-year court-ordered delay "to pursue negotiations." On March 22, he said, the tribe met with the U.S. Justice and Interior departments, the Arizona Water Resources Department, the Central Arizona Water Conservation District and the states of California and Nevada to tell them of future domestic and non-domestic needs of the Din. Meanwhile, he added, "Navajo experts continue technical work to refine claims."

Navajo-Hopi litigation includes the 1934 and Owelty cases, plus the Bennett Freeze takings case and settling the rent in post-partition cases.

Some cases
Listed on the agenda as "Peabody cases" are the breach of trust case against the federal government, the tribe verses the St. Louis-based coal giant and a related one involving Peabody with the Salt River Project and Southern California Edison. There also are the various cases in mediation.

In his latest quarterly report, Denetsosie said the 1934 case "is in its final stages of a mediated settlement," noting an inter-government agreement (contract) "providing for the dismissal of all litigation has been negotiated," with only the cost and schedule of an eagle study pending. But he admitted further mediation may be needed.

As to the Owelty case, the quarterly report of April 18 repeats the Jan. 24 status that the federal district court in Phoenix has yet to decide if Navajo can reduce the $2 million the Hopi's want for seven trading posts now in the Navajo Partitioned Lands.

Denetsosie reported that in the suit against Peabody, seeking to recover $8 million paid to Hopi, a mediation order which expired Jan. 31 was extended at the request of all parties. An extended period of motions, counter motions and cross motions were heard in July.

In the tribe's suit against the U.S., the attorney general said a decision should be issued by the end of the year in the breach of trust suit. The U.S. Supreme Court ruled against the Navajo Nation, based on the Indian Mineral Leasing Act, but sent part of the case back to the lower courts on March 4, 2003.

The tribe claimed $600 million was due because Don Hodell approved the standard royalty rate rather than the BIA-recommended 20 percent through the company's improper contact with the secretary.

Tribal lawyers are working on a reply brief in response to federal lawyers' submission in March. The Supreme Court ordered the Appeals Court and Federal Claims Court to decide if Navajo waived certain rights in the IMLA decision and whether there is a network of other laws and regulations that would result in a trust duty by the U.S.

Related case
A related case involves Peabody along with SRP and Edison and is in mediation, involving the replacement of the high-quality Navajo "N" Aquifer with the much larger Coconino "C" Aquifer as Peabody's water source for the Black Mesa Mine, which exclusively supplies the Mohave Generating Station.

The suit stems from alleged interference with the U.S. Interior Department Secretary's trust duty involving royalty rates decided in the 1980s. Denetsosie said SRP has been released, except for appeals of a dismissal order.

The stay (delay) order expired Jan. 25, but was mutually extended, the attorney general added.

As to the Mohave Generating Station, he reports that when the current C Aquifer studies underway in the Leupp Chapter are done, Mohave's owners (Edison is the managing partner) "will make a business decision whether to proceed with the environment impact study for the C Aquifer pipeline and mine rededication plan."

Denetsosie concluded this section of his report by pointing out the "generating station will close after Dec. 31, 2005. Layoffs at the Black Mesa Mine may begin earlier than that." This is based on the California Public Utilities Commission granting the necessary permits.

"If all goes as contemplated and the CPUC approves the CPCN (Certificate of Public Convenience and Necessity) the MGS will resume operation in late 2009 or early 2010," Denetsosie said.

Since the CPUC in December found that the costs were reasonable for Edison to install air pollution control equipment and build the new waterline, it ordered the Los Angeles area-based electric company "to continue to negotiate in good faith with the two tribes to secure stable water and coal supplies for the power plant."

President Joe Shirley Jr. in his quarterly "State of the Navajo Nation" speech said the tribes will meet soon with the three environmental groups whose federal suit resulted in an order for the Mohave improvements to be in operation no later than Dec. 31, 2005. The three groups will be asked to support "relief from the consent decree."

— To contact reporter Jim Maniaci, telephone (505) 371-5443.