IPR's native and environmental clients win critical protections for Black Mesa land

The following was issued as a press release on May 12, 2014

Native and environmental groups win critical protections for Black Mesa land
Federal mine regulators now under mandate to give greater consideration to Peabody coal mine’s impacts on cultural and water resources.

Black Mesa, Arizona: Native and environmental organizations reached a landmark agreement with the Federal government today that will ensure environmental, cultural, and historic impacts to Black Mesa land are considered before allowing the Peabody-owned Kayenta Coal Mine to continue operating.  Additionally, renewable energy proposals must be considered for tribal lands permanently damaged by Peabody’s mining and for purposes of powering the Central Arizona Project. The mine provides coal to the controversial Navajo Generating Station.

“These concessions are a small, but critical step to undoing the 40 year legacy of environmental impacts and harm Peabody has caused our community,” said Nichole Horseherder, a Black Mesa resident and co-director of To’ Nizhoni Ani, one of the Plaintiff organizations. “This is my homeland. My community. I raise my children here and they will raise theirs here. We are hopeful that this agreement is a signal that U.S. Secretary of Jewell is taking our concerns seriously, but we will continue to stand and fight until these dirty energy projects are retired.”

In 2012, three native organizations To’ Nizhoni Ani, Black Mesa Water Coalition, and Diné Citizens Against Ruining our Environment—joined by the Sierra Club, and the Center for Biological Diversity—challenged Peabody’s permit to continue strip mining at Kayenta. The U.S. Office of Surface Mining and Reclamation Enforcement (“OSM”) oversees Peabody’s mining operation and reviews Peabody’s applications to renew or revise its five-year mine operator’s permit. When OSM approved Peabody’s latest application to renew its Kayenta Mine permit, the groups took action.

“Legal action is only one strategy we’re using to address the concerns of Black Mesa and Navajo Nation communities,” said Jihan Gearon, Executive Director of the Black Mesa Water Coalition. “But,” she continued, “it’s an important step in calling out Southern Arizona’s insatiable and unsustainable energy and water consumption, for which our communities suffer. It’s time the Navajo Nation is afforded the opportunity to create a just transition to an economy that works for us. Navajo-owned renewables can help start that transition.”

For the residents of the Black Mesa region, the Kayenta Mine and the nearby coal-fired Navajo Generating Station it feeds have meant decades of environmental degradation and disruption to historical and sacred sites. In addition to seeing visible impacts on the landscape since the mining operation first began in 1973, Black Mesa residents have felt the operations’ impacts on air quality, and on the quality and quantity of water available from the Navajo Sandstone Aquifer, or “N-aquifer,” located beneath the area surrounding the mine.

“For far too long, our communities’ interests have been ignored while our land, water, and culture has been threatened,” said Nellis Kennedy-Howard, of the Sierra Club’s Beyond Coal Campaign. “This is a very important step forward for better preserving the environment and the well-being of the Black Mesa region.”

The lawsuit brought before the U.S. Department of Interior’s Office of Hearings and Appeals in 2012 was finally resolved on April 29, 2014, when the parties all signed a settlement agreement, available here.

“The settlement is a recognition that the community’s concerns are valid,” said attorney Justin Gundlach of the Institute for Public Representation at Georgetown University Law Center. “The community wants a relationship with OSM where their interests and concerns stand on an equal footing with Peabody’s. We feel this is a small step by the agency in that direction.”

The settlement followed two years of litigation and negotiations. The settlement agreement requires Peabody and OSM to do several things differently:

  • In its upcoming review of Peabody’s application for a revised permit, OSM must consider the effects of mining and of the Navajo Generating Station on the environmental, cultural, and historical resources of Black Mesa.
  • When it conducts the process required by the National Historic Preservation Act, OSM must give To’ Nizhoni Ani and Black Mesa Water Coalition a seat at the table for discussions and evaluation of the historical resources of Black Mesa. OSM must also evaluate the merits of placing Black Mesa on the National Register of Historic Places.
  • To monitor the mine’s impacts on the N-aquifer, OSM must now take physical measurements at well heads in the vicinity of the mine—this departs from the approach that the 2012 Permit Renewal would have allowed, which was not to measure anything, but to estimate water levels using a computer model designed by a Peabody-hired contractor.
  • When deciding what to do with lands damaged by mining, OSM must now evaluate using the site for renewable energy generation to power the Central Arizona Project.

This FACT SHEET contains further details.

The parties have not yet resolved their dispute over fees and costs, though the settlement caps recovery at just over $48,000 (roughly the amount of our clients’ costs in the case).

 

 

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