Biosphere 2 Center
Three thousand feet below the Black Mesa Mine sits the Navajo Aquifer, also referred to as the N-aquifer. Spanning three major rock formations, the Navajo Sandstone, the Kayenta Formation, and the Lukachukai Member of the Wingate Sandstone, the aquifer is at its deepest point 1200 feet thick, and is fully saturated under 3500 square miles of Black Mesa. On the edges, the water seeps out of the N-aquifer, where it has remained since the Jurassic Period, and into the region’s most productive watershed, the cliffs of Black Mesa. The naturally occurring springs here are the axis of Hopi culture, the point to which the disparate clans that formed the tribe over centuries migrated in an otherwise arid region. The Navajo, too, have thrived on the watershed for hundreds of years, long enough to establish their own sacred sites in the area. Today, on the land belonging to the Navajo Nation and the Hopi Tribe, much of which—either deliberately or as a result of neglect—remains unconnected to any grid providing public utilities, wells drilled into the N-aquifer continue to provide the common denominator of life on Black Mesa.
The N-aquifer also provides an essential element of the Peabody Corporation’s operations: a pipeline, stretching 270 miles from Black Mesa, Arizona to Laughlin, Nevada depends on water from the aquifer to create the slurry in which the Black Mesa Mine’s coal is transported. Specifically, it depends on 3800 acre-feet of water annually from the N-aquifer.
And here begins the controversy surrounding Peabody and the mine, a scientific, historical, legal, and financial quagmire that has marred relations between and within the Navajo, the Hopi, numerous government agencies, a handful of very large energy companies, and environmental groups. At the root of these conflicts are issues of environmental degradation, legal ethics, and financial equity that remain as opaque now as they were when the mine was first opened. However, the unavoidable truth underlying the situation in both a literal and figurative sense is that, for whatever reason, the springs and wells fed by the Navajo Aquifer are drying up at an alarming rate, threatening both the hydrological and social stability of northeastern Arizona.
The history of the region now occupied by the Navajo, the Hopi, and Peabody is inextricable from the current conflicts over the mine. This is both because the legal vagaries of the late 19th Century laid the groundwork for the legal certainties that enabled the leasing of the land to Peabody in the mid 1960s, and because the Hopi, more than perhaps any other people in the world, remain firmly rooted in their past. Past ways of life, past traditions, and past conflicts are as present in the current Hopi situation as they were a hundred years ago.
In 1840, the Navajo, recently arrived to the land inhabited by the Hopi since around 1050 AD, began raiding their neighbors. The relatively nomadic Navajos considered theft to be socially acceptable, but the sedentary, agriculturally-oriented Hopi did not, and although the realities of the conflict between the two tribes that continues today may not have originated in this initial series of altercations, the cultural basis for the conflicts most certainly did. This initial period of conflict lasted for over two decades; in 1864, after a series of battles with the U.S. Cavalry, the Navajo surrendered to Kit Carson and were forced onto the Bosque Redondo Reservation along with the Mescalero Apaches. In the four years on the reservation, in which the Navajo were forced to take up farming, half the population of the tribe died. In 1868, Navajo leader Barboncito negotiated a treaty by which the Navajo were allowed to return to their land. Although the Navajo way of life had changed substantially in the interim, as the Navajo adopted the technology and dress of Anglo pioneers, the tribe’s new, more sedentary existence did not alleviate, and indeed may have added to, the problems with the Hopi.
Shortly thereafter, the Hopi’s problems with the U.S. Government began in earnest. To begin with, the Hopi Reservation had never been officially set aside as anything other than public land. To settle a feud between the local Bureau of Indian Affairs agent, J.H. Fleming, and a pair of Anglos who had been aiding the Hopis in their effort to keep their children out of the schools created by the BIA, the Bureau authorized the creation of a reservation measuring one degree latitude by one degree longitude, an arbitrary decision to which we owe the neatly rectangular official shape of Hopiland prior to 1974. This effectively removed the reservation from the public domain, and allowed Fleming to legally evict his opponents. This allotment of land, a small rectangle within a larger body of Navajo land, created boundaries which have fluctuated and been defined and redefined, both officially and unofficially, again and again ever since. Perhaps most importantly, it was along the northern boundary of the Hopi Reservation that, in the early 20th Century, the U.S. Geological Survey discovered coal of perhaps the highest quality found anywhere in the world.
Although the extensive resources underneath the Hopi and Navajo Reservations were known of in 1909, the tribes lacked the bureaucratic structures necessary for energy companies to acquire mineral rights from them. This began to change in 1933, when Franklin Delano Roosevelt named John Collier Commissioner of Indian Affairs. Collier had spent time among the Hopi in 1920 and took a special interest in the tribe, dispatching novelist and Pulitzer Prize winner Oliver LaFarge to the reservation to persuade the tribe to adopt a constitutional form of government in place of the non-centralized, theocratic system favored by the Hopi, in which the Kikmongwis, spiritual leaders of the communities, were responsible for decision making. LaFarge was initially reluctant, noting that “we came among these people, they didn’t ask us. . . .” He was aware that the Hopis had no interest in establishing a centralized, democratic tribal council, but at Collier’s urging he continued his efforts. Three years later, the first Hopi Tribal Council recognizing the tribe’s new constitution was convened.
LaFarge’s efforts were aided by schisms within the Hopi tribe that already existed when he arrived, divisions which have been intimately tied to the mining controversy in subsequent years. The Hopis, over fifty years of attempts by the U.S. Cavalry to remove them from the communities on the mesas, removal of Hopi children to boarding schools, and imprisonment of tribal leaders in Alcatraz, had become split into two camps which still exist to some degree today. One group, referred to at the time as “friendlies” and later as “progressives,” accepted the lifestyle encouraged by the BIA. The other, the “hostiles” or later “traditionalists,” stuck to Hopi traditions, and frequently faced persecution both from the government and progressive members of the tribe for doing so. In a 1906, a dispute between progressives and traditionalists in Oraibi, a Hopi village that is perhaps the oldest continuous settlement in North America, culminated in a literal shoving match between the two sides. All agreed that the loser would be forced to leave the community. The traditionalists were defeated, and left Oraibi to settle Hotevilla, a community that has remained the heart of the traditionalist movement ever since.
The resentment and division between the progressives and traditionalists was institutionalized with the creation of the Tribal Council, the ranks of which were filled entirely with progressives; the traditional Hopi means of dissent on a given issue is to remain silent and not participate, and so, when presented with a constitution that ran counter to their traditional means of governance, the traditionalists simply refused to be involved.
However, the Tribal Council was initially short-lived. As a concession to traditional Hopi culture, the constitution stated that Tribal Council representatives “shall be recognized by the Council only if they are certified by the Kikmongwi of their respective villages,” and the religious leaders, generally loyal to the traditionalists, rarely did so. The Tribal Council disbanded in 1943.
Even as the Hopi Tribal Council was disintegrating, the development of the Southwest was moving forward in ways that would soon require the existence of such an authority. Following World War II, the open spaces of the region made it ideal for the construction of military facilities. As Cold War-era United States defense spending brought about boom years in Southwestern urban areas previously regarded as backwaters, the populations of cities throughout Arizona, New Mexico, Utah, Nevada, and southern California began to increase dramatically. It was clear that this new development would require astronomical increases of available electricity and significant redirection of water from rivers and exploration of groundwater reserves, all of which would necessitate the full use of all possible sources of energy throughout the region. Not the least of these were the mineral resources underlying Black Mesa. The USGS had begun extensive studies of the hydrology and geology of Black Mesa in the early 1940s. In 1946, Felix Cohen, the Solicitor General of the United States, under pressure from the energy industry, released the “Ownership of the Mineral Estate in the Hopi Executive Order Area” opinion to clarify who exactly owned what, stating that the Navajo and Hopi tribes held coextensive rights to the minerals under Black Mesa.
The same year saw the passing of the Indian Claims Commission Act (ICC), which stated that tribes had five years to file claims for compensation for land taken from them by the U.S. Government. The act suddenly made the position of claims attorney for almost any tribe an extremely lucrative one, and lawyers began descending upon both the Hopi and the Navajo. Two attorneys applied to the Navajo for the position: Norman Littell and John Boyden. The former was given the job. The latter was rejected, and applied for the position again three years later, this time with the Hopi.
In the interim, interest in mineral resources on Black Mesa had been steadily increasing. In 1948 the land officer in the Department of Indian Affairs had written the Assistant Commissioner of the department asserting that reorganization of the Tribal Council was essential to acquiring oil and coal leases on the Hopi Reservation. At the same time, the BIA was updating twenty energy companies on the progress of Tribal Council formations on both the Hopi and Navajo Reservations.
In response, there was an increase in activity among the traditionalists as well. Thomas Banyacya, a young Hopi who would eventually become a leading voice in the traditionalist movement, was appointed translator and spokesman for the tribal elders. In 1949, the traditionalists wrote to President Truman declaring their refusal to lease their land to energy companies, stating that “this land is not for sale. This is our sacred soil.”
Nevertheless, Boyden was certified by the BIA as the claims attorney for the Hopi Tribe in 1951. Although many sources close to Boyden, Hopi and Anglo alike, assert his loyalty to the Hopi, his interactions with them were questionable from the very beginning. Perhaps the earliest mystery of his career with the tribe is the question of how he was able to marshal support, even among the progressives, for his campaign to acknowledge federal ownership of land that was once theirs in exchange for money for the tribe. Even John Paul Kennedy, Boyden’s former partner in the law firm of Boyden, Kennedy and Romney which served the Hopi until the late 1980s, has said that, “trading land for money is anathema to the Hopi—you cannot sell your land.” Accounts conflict as to whether or not Boyden led the Hopi to believe that the ICC, the only basis for his hiring, would make it possible for them to get land back, which would not have been true. At any rate, in 1950 and 1951 Boyden tirelessly canvassed the Hopi Reservation until he had cobbled together a new Tribal Council supporting his bid for claims attorney from members of progressive communities throughout the reservation, a small faction of the Hopi but one that was nonetheless officially recognized by the BIA in 1953.
By the mid 1950s the development in the Southwest later known as the Big Buildup was in full swing, and projects like Glen Canyon Dam, Flaming Gorge Dam, and the Navajo Dam were under construction. Perhaps even outpacing the Bureau of Reclamation’s efforts to develop hydrological power and irrigation for the region were the efforts of private energy companies to acquire mineral leases. The legal circumstances at the time were conducive to an environment of frenzied speculation; the National Environmental Protection Act was not yet in existence, and the Department of the Interior’s coal leasing policy for federal land was barely cohesive, dealing with requests for leases on a case-by-case basis without taking into account potential environmental impacts of mining operations.
Within the reservations as well, the climate was perfect for unchecked mineral exploration. The Navajo, who had not had a tribal authority prior to the 1940s, were now being governed by a Tribal Council that had been assembled by the BIA to facilitate the transferal of oil and gas rights to energy companies. The issue of land rights was still festering between the Hopi and Navajo, and in 1958 Arizona Representative (and future Secretary of the Interior) Stewart Udall pushed Public Law 85-547, which enabled the two tribes to litigate against each other in the U.S. District Court in Arizona, through legislation. However, the Hopi did not have the financial resources necessary for legal action, and petitioned the Secretary of the Interior, requesting funds for the court battles. In response, the Department of the Interior authorized the Hopis to develop their mineral resources (a clause in the Hopi constitution made Interior Department approval of such activity necessary). For a people with virtually no financial prospects beyond coal and limited oil leasing, the combination of PL 85-547 and the Secretary’s authorization in effect made the Hopis’ ability to favorably resolve their dispute with the Navajo contingent upon the extent to which they developed their mineral resources.
One of the court battles between the Navajo and Hopi was resolved in 1962 with the Arizona Supreme Court’s Healing v. Jones decision, which divided mineral rights for Black Mesa evenly between the two tribes. The following year, a case that would have equal impact on Black Mesa was settled in the U.S. Supreme Court’s Arizona v. California decision, which secured rights to the hotly contested Colorado River water for Arizona. Shortly thereafter work began on the Central Arizona Project (CAP), a large-scale initiative intended to draw the newly allotted water from the Colorado to meet agricultural and residential needs. The canals designed to transport the water would have to move it uphill from the river to Phoenix and Tucson, and the pumping required to do so would need immense quantities of energy. A variety of ideas were proposed, all of which required dramatic changes to Arizona’s environment.
To understand the decisions made regarding energy development in Arizona in the 1960s, many of which appear inexplicable in hindsight, one must fully grasp the extent to which the Central Arizona Project was considered an inevitability. At the time, and to a lesser but still formidable extent today, development in the Southwest went unquestioned, and this development would require energy. Thus, politicians who might otherwise have questioned projects like the Glen Canyon Dam and the Black Mesa Mine expressed only limited reservations, because the projects were so essential to the CAP.
Perhaps the clearest, and most tragic, example of this is Stewart Udall, former Arizona Representative and Secretary of the Interior when the lease for Black Mesa was presented to the Interior Department for approval. Charles F. Wilkinson, environmental and Indian law scholar and author of Fire on the Plateau: Conflict and Endurance in the American Southwest, a legal history of the Colorado Plateau, who has known Udall for many years, says that former Secretary “is really one of the rare public leaders who cares a lot about his legacy but who is also willing to admit his mistakes. . . he certainly regrets the Central Arizona Project, and he wouldn’t have wanted Black Mesa to go ahead the way it did.” Udall himself expressed as much in a 1997 interview; “I naturally feel pangs of conscience about [the CAP] at this point by the way it has all turned out.”
Even at the time, the huge quantities of water that would be required by the proposed mining operation worried Udall; “I thought about [the lease] a lot and I could have vetoed it. I held it up for a year because of water concerns.” Ultimately, Udall did approve the lease, but inserted an escape clause that would allow subsequent Secretaries to require that Peabody find another water supply for the proposed slurry line if the Navajo and Hopi’s water supply were threatened.
In 1966, the approved lease for the Black Mesa Mine to be operated by Sentry Royalty Company (soon to be acquired by Peabody) was presented to the Hopi by John Boyden. Former Hopi Tribal Chairman Vernon Masayesva, a veteran in the campaign to shut down the Black Mesa Mine slurry pipeline, believes that “the only way that mining can be profitable is for Indians to basically give up the coal,” and this is essentially what happened. According to the lease, approved by the Hopi on May 16 of the same year, the tribe would receive about half the going rate for coal, and a fantastically low $1.67 per acre foot for water from the N-aquifer.
The fact that Boyden would broker a deal that was so obviously slanted towards Peabody while he was employed by the Hopi led many in the tribe to suspect that Boyden was covertly working for the energy company as well. In the 1970s, the Hopi enlisted the Indian Law Resource Center to research Boyden’s propriety with regard to the Hopi and Peabody, but the resulting “Report to the Hopi Kikmongwi” included no concrete evidence of a conflict of interest on the lawyer’s part. In 1985, Charles Wilkinson was hired by the tribe to again assess the integrity of the then-deceased Boyden’s actions, but again was unable to discover anything beyond rumors and accusations.
However, in 1992 a research assistant to Wilkinson, while going through Boyden’s personal papers recently released to the Marriot Library at the University of Utah following an investigation by Reid Payton Chambers, the Hopis’ lawyer in Washington, D.C., discovered documents conclusively proving that Boyden had been working for Peabody at the same time he was employed by the Hopi. The lawyer’s personal correspondence revealed that in 1964 he had represented Peabody in a hearing in front of the Utah State Land Board arguing for the sale of land to Peabody to be used for a power plant that would process coal from the Black Mesa Mine, as well as in a hearing in front of the Utah Water and Power Board on the same subject. Documents were also found confirming that Boyden had been updating Peabody executives on the progress of confidential deliberations over the lease among the Hopi.
Even if Boyden had not acted unethically in his representation of the Hopi, the inequitable lease they became party to is reflective of the general state of Indian law at the time. Tribes were frequently defended by lawyers like Littell and Boyden, Anglos who in many cases did genuinely care for the tribes for which they worked, but in a paternalistic way frequently entirely opposed to the tribes real interests. Tribes that were thrown by sweeping legislation like the ICC into the foreign complexities of the American legal system found themselves entirely under the direction of a single man who felt he knew best, not just for the tribe, but for the entire region, as in the case of the Black Mesa lease. All duplicity aside, Boyden may have felt that the CAP was so integral to the proper development of the Southwest that he was willing to abandon his duties as a lawyer and compromise the interests of his clients to smooth the path for Black Mesa’s strip mining. At any rate, the Hopi Tribal Council signed the lease in 1966, and work began on the Black Mesa Mine, which would open in 1970. 
At the same time, battles between conservationists and the Bureau of Reclamation that would indirectly but profoundly impact Black Mesa were underway. On January 21, 1964, the federal government issued the Pacific Southwest Water Plan, a document with sweeping implications that included the proposals for the Marble Gorge Dam and the Bridge Canyon Dam, both in the Grand Canyon. David Brower, on behalf of the Sierra Club—although the organization would later censure him for acting without approval on the campaign—ran full-page ads in The New York Times blasting the plan to flood the Grand Canyon, eventually bringing enough pressure to bear on Stewart Udall that the Secretary put an end to the dams. The offhand comment of Floyd Dominy, Commissioner of Reclamation at the time and the man behind most of the dam proposals of the 1960s, that “my Secretary’s becoming a David Brower type,” demonstrates the extent to which Brower was ultimately able to influence Udall’s policy decisions.
However, the aesthetic bent of organizations like the Sierra Club was potentially dangerous for those opposed to mining Black Mesa, because putting an end to dam proposals in the Grand Canyon meant that the energy had to come from somewhere else. Black Mesa, although strikingly beautiful, does not provide the awesome scenery of the Grand Canyon that most Americans associate with natural landscapes worth saving, and its inaccessibility to non-Hopi and non-Navajo may have exacerbated the problem as well. In the 1950s the Hopi Reservation had become a popular destination for young Anglo refugees from the countercultures of Los Angeles and San Francisco, some of whom ultimately settled in relatively non-traditional Hopi villages such as Oraibi and Hotevilla. These increasing numbers of increasingly disrespectful visitors ultimately led to the banning of whites from many Hopi ceremonies and towns. The signs one sees today at the entrances to most Hopi villages, forbidding visitors to take photographs, make video or audio recordings, sketch, remove objects of any kind, and go anywhere near the kivas or off the clearly established paths, are a testament to the sheer volume of preventative measures that the Hopi have been forced to take. In short, the lengths to which the Hopi went to protect their society failed to help them in making the connections they needed in the non-native constituency of conservation groups like the Sierra Club.
As a result, conservationists were, by and large, willing to accept Udall’s compromise: Marble Gorge Dam and Bridge Canyon Dam would not be built, but Glen Canyon Dam would be built upstream from the Grand Canyon, and Black Mesa mining operations would be increased beyond the proposed Black Mesa Mine itself, providing coal to what would be the Navajo Generating Station in Page, Arizona, near Glen Canyon Dam itself. The proposal for the Kayenta Mine, adjacent to the Black Mesa Mine complex and also operated by Peabody, was quickly approved.
One can hardly question Brower and the Sierra Club’s commitment to keeping the Grand Canyon from being deliberately flooded, or the importance of their victory over the Bureau of Reclamation and the role it played as a turning point in Stewart Udall’s career. Nor will many argue that the Kayenta Mine is a more mutually beneficial operation than the Black Mesa Mine; it does not and never has used a slurry pipeline, transporting coal to the Navajo Generating Station by train instead, and it employs a large number of Navajo (unlike the Black Mesa Mine, which falls on both the Navajo and Hopi Reservations, the Kayenta mine is entirely within the borders of the former, and the Navajo Nation receives all royalties from the coal as well as almost all jobs at the mine). However, the fact remains that the compromise meant exchanging the hydrological power that the Grand Canyon dams would have provided for the eight million tons of coal extracted from the Kayenta Mine annually that help make the Peabody Energy Corporation the fifteenth largest producer of carbon dioxide emissions in the world. Additionally, the fact that the widely-supported Kayenta Mine and the controversial Black Mesa Mine are linked geographically, owned by the same corporation, and draw from the same employment pool makes it potentially difficult to marshal support for policy changes regarding the Black Mesa facility. Interestingly enough, the same Sierra Club that, under Brower, was partially responsible for the establishment of the Kayenta Mine in the first place has officially offered their support of Black Mesa Trust, the Hopi campaign against the Black Mesa Mine’s use of N-aquifer water.
In 1969, Stewart Udall ended his tenure in the Interior Department. A year later, the Black Mesa Mine began operations; the Kayenta Mine would open three years later. The early 1970s also marked a period of intensified conflict within the Hopi tribe between the progressives and the traditionalists. Abbot Sekaquaptewa, a progressive who would remain perhaps the staunchest supporter of Boyden among the Hopi—and, interestingly enough given his support of Peabody, a pioneer in bringing solar power to Hopi communities—was elected Chairman of the Hopi Tribal Council. At the same time, the traditionalist movement was fomenting in Hotevilla, and Vernon Masayesva, at the time a student at the University of Arizona, was quickly becoming a disciple of sorts to Thomas Banyacya and other aging leaders of the traditionalist anti-mining movement.
In 1974 Public Law 93-531, the so-called Relocation Act introduced by Wayne Owens, Democratic Representative from Utah and a former employee of John Boyden, was passed, resolving the Navajo-Hopi land dispute in the favor of the Hopi Tribe, at least on paper; the battle over land rights has yet to be settled in any meaningful way. At the time, Hopi traditionalists were still busy fighting the coal lease, ultimately bringing suit to federal court, arguing that the Hopi Tribal Council that approved the lease could not possibly be considered representative of the Hopi tribe. Despite the traditionalists’ arguments that the 1966 Tribal Council had only eleven of the required sixteen seats filled, and only six of those had been approved by the Kikmongwi as required by the tribe’s constitution, the suit was dismissed on the grounds that tribal sovereign immunity extended to the Tribal Council’s decisions.
Despite this setback to the Hopi anti-mining movement, in the late 70s and early 80s the tide was turning towards the Navajo and Hopi, at least financially speaking. In 1978 a confidential audit circulating within the Department of the Interior concluded that the original royalty rate for the Black Mesa lease was unjustly low (the audit was later challenged by Peabody). In the same year, the Navajo Tribal Council, along with many other tribes, adopted new tax ordinances that would bring millions of dollars of revenue from energy companies operating on the Navajo Nation’s land into the tribal government. Although energy companies fought the tribes’ new taxes viciously in court, the matter was settled by the Supreme Court opinion on Merrion v. Jicarilla Apache Tribe stating that the Jicarilla Apaches could tax companies operating on their land and setting a precedent for tribes throughout the country.
The same period saw a general shift in the legal stance of Native American tribes across the United States, brought on largely by a shift in legal teams. The older generation of lawyers like Boyden, who died of cancer in 1980, that had created the legal framework of the inequitable mineral leases and land deals of the mid-20th Century were gradually being replaced by younger lawyers, generally either members of the tribe itself or people who had been trained specifically to litigate in the best interest of the tribes. There were exceptions; the Hopis asked the Department of the Interior to disqualify the lawyers representing the tribe, the late Boyden’s former colleagues in the firm of Boyden, Kennedy and Romney, but the Interior Department decided that enough time had passed since questionable actions on the firm’s part that the complaints did not merit disqualification. However, at the same time, legal teams organized by or in the interest of the tribes were being born, such as the Big Mountain Defense/Offense Committee, which was formed to defend the Navajo residents of the Big Mountain area, now a part of the Hopi Reservation, in the post-PL 93-531 legal morass of relocation negotiations but would eventually speak out against Peabody’s actions as well.
“For a variety of reasons, tribes are in a very different position now than they were in the 60s,” says Charles Wilkinson, “and some of it has to do with changes in law, but a lot of it has to do with the tribes taking a much more active role. . . . I think [the Hopi and the Navajo] have been more assertive for sure. I think they have been doing better at gathering their own scientific information, at negotiating, and at litigating; they’ve been much more active.”
As a result, certain aspects of the situation of the Hopi and Navajo with regard to the Black Mesa Mine have certainly improved. Both tribes, under new legal counsel, renegotiated their leases with Peabody in 1988 and again in 1998, and are now being paid a more reasonable rate for their mineral resources. Today, royalties from the mine make up the vast majority of the economy of the Hopi tribe and, to a slightly lesser extent, the Navajo Nation. The Navajo in particular have benefited immensely from the employment opportunities provided by both the Black Mesa and Kayenta Mines.
However, many issues relating to the mining operations remain unresolved, and form the basis of bitter rifts within the tribes and between them. Most critically, the matter of water use from the N-aquifer has yet to be addressed in a manner favorable to anyone but Peabody. Although more equitable mineral leases have satisfied many and perhaps most of the Hopi and Navajo, a substantial segment of the tribes, as well as many environmentalists, remain concerned about the ecological ramifications of continued pumping on Black Mesa. With the possible exception of the Natural Resources Defense Council, which has tirelessly campaigned against the slurry line, the loudest voice in the movement has been Black Mesa Trust, an organization led by former Hopi Tribal Chairman Vernon Masayesva and supported by the Sierra Club.
Vernon Masayesva is and always has been something of an enigma as far as Hopi tribal politics are concerned. Despite his roots in the traditional movement and commitment to the majority of its beliefs, Masayesva has always participated in the Tribal Council still scorned by traditionalists, serving as chairman in the early 1990s. In a tribal community where the same parties opposed to the Peabody operations have generally been opposed to the relocation of Navajos from Hopi land, Masayesva has been a leading spokesman against the former and in favor of the latter, and as a result has enjoyed accordingly little support among the Navajo for his campaigns. And despite the integral role that Hopi religion has played in Masayesva’s opposition to mining operations on Black Mesa, during his tenure as Tribal Chairman he came into bitter conflict with his late mentor Thomas Banyacya over the traditionalists’ refusal to endorse any form of government except the traditional theocracy.
The paradoxes of his own position on reservation affairs notwithstanding, Masayesva’s skill with words and knack for public relations have placed him in a role previously filled by Banyacya: the primary link between Hopiland and greater America. Masayesva gives the impression that he is the voice of the Hopi Tribe, regardless of the always dubious extent to which he actually speaks for the majority—due to Hopi traditionalists’ refusal to participate in Tribal Council affairs, even the winners of elections on the reservation generally receive the official support of a very small percentage of the Hopi population eligible for voting. Masayesva has a well-honed ability to connect the beliefs, history, and modern plight of the Hopi to the world outside of the reservation; speaking on October 5, 2001, Masayesva portrayed the Hopi Reservation as a safe haven for an United States badly wounded by the recent terrorist attacks, a haven contingent on the wise use of what has been made available in Hopiland. One of the many Hopi stories pertaining to the origin of Black Mesa says that the mesas are a hand holding the three original gifts to the Hopi: an ear of corn and a planting stick, both referring to traditional Hopi farming practices, and a gourd of water, which Masayesva believes to represent the N-aquifer. After outlining this legend, Masayesva continued, “our government is creating an illusion of a safe country. Now, we live in a state of fear. Out there, the world is turning upside down. Here, [it is] safe, the hand. This is the Hopi prophecy; this is a refuge, provided you use the three things.”
Few have been as vehemently opposed to the Black Mesa Mine pipeline as Masayesva. “The Black Mesa pipeline is an anachronism,” he says. “It is a throwback to a time in America and the world when it was assumed that progress meant consumption, and that the earth’s productive resources were infinite, that Indians didn’t know better and that we would not be willing, or prepared, to act on our beliefs.” However, Masayesva is not opposed to the mine itself; for the Hopi, mineral sales to Peabody are paradoxically of critical importance in allowing the tribe to maintain relative autonomy in the modern United States and continue its largely traditional way of life.
“I think it’s a terrible conflict for them,” says Wilkinson. “The tribe, in terms of economic development, doesn’t have a lot of potential, and of course the revenues from Peabody are significant, so I think there’s a large block of people who are very divided on [Black Mesa Mine]. They don’t like the aquifer being drawn down, they detest that, and yet they feel trapped by the flow of funds.”
Adding to the conflict is the cultural significance of the water underlying Black Mesa for the Hopi. According to Masayesva, “the cultural side of [the pipeline dilemma] for the Hopis is not the money—we are trying to correct a mistake we made. We sold water as a commodity. We sold a holy thing as a commodity. We wronged our children.”
Charles Wilkinson believes that Masayesva is not alone among the Hopi in taking this perspective on the issue. “there are a great many people who place the aquifer in a cultural context as opposed to an Anglo scientific placement of it as a hydrological resource. . . . It plainly goes way beyond seeing the aquifer as a monetary resource, and it goes way beyond seeing it in [terms of] sustainability, as that [term] is usually used in Anglo communities” In the Hopi story describing the creation of the first world, Tokpela, water is second only to land and far ahead of life in the process of creation of the universe undertaken by Sotuknang, nephew of Taiowa, the Creator. When the Hopi left Sipapu, the dome (allegedly located in the Gorge of the Little Colorado) from which they emerged into the Upper World where they live today, old wise women led the wandering, disparate clans to the mesas first and foremost because of their dependable supply of water.
As a result, solutions have been proposed by the Hopi to alleviate stresses placed on the N-aquifer, allowing the tribe to continue living in its ancestral homeland on its sacred water source, and at the same time maintain the financial influx provided by the Peabody operations. And yet these proposals may be no more environmentally sound than the existing pipeline, or even offer much of a solution, if they ever come to pass. In 1992, the Hopi Tribal Council, under the leadership of Masayesva, drafted a proposal to use Colorado River water from Lake Powell in the slurry line in place of the N-aquifer water, but so far matters of feasibility and legality—the Colorado River allotment being considered belongs to the Navajo—have kept this plan from becoming a reality. In 1994, the Hopis appealed to Secretary of the Interior Bruce Babbitt to take advantage of the escape clause included by Udall in Peabody’s original permit for the Black Mesa Mine and advocate the Lake Powell proposal. Although Babbitt did not suspend Peabody’s permit, he did tie resolution of the N-aquifer use issue into a major case concerning surface water sources in the Arizona State Court, Re: The General Adjudication of All Rights to Use of Water in the Little Colorado River System and Source. However, negotiations on Little Colorado were sidelined in 1999 when the Navajo Nation, joined by the Hopi Tribe, brought suit against multiple parties including Peabody and the U.S. Government. The Navajo alleged that Peabody paid a friend of then-Secretary of the Interior Donald P. Hodel to influence him on a 1985 decision that ultimately cost the Navajo $600 million in royalties from Peabody. Although a federal judge did reprimand Hodel for betraying the public trust, the suit against the government was ultimately thrown out; the case against Peabody and the Southern California Edison Company has been allowed to proceed despite motions filed by Peabody. The legal limbo in which this lawsuit still floats has hampered progress on Little Colorado, and it is debatable whether or not the Lake Powell pipeline, even if it is eventually built, will be able to provide enough water for the increasing populations and infrastructure of the Hopi and Navajo Reservations and Peabody operations.
In addition to the legal difficulties of working out an alternative to N-aquifer water to supply Black Mesa Mine operations, a major obstacle to parties trying to block further use of the water has been the scientific ambiguity of the whole affair. In its defense of the Black Mesa Mine’s use of N-aquifer water, Peabody has relied primarily on the lack of absolute proof that their operations are resulting in negative impacts to municipal wells in the area. The Natural Resources Defense Council has reacted strongly to this. “Absolute proof, of course, can rarely if ever be furnished,” the organization states in a recent report on Black Mesa Mine, “and for Peabody to insist on it here, when the use of drinking water for industrial purposes has generally been discredited and when the importance of N-aquifer water to the Hopi and Navajo communities has been established beyond dispute, is only to beg the question of what standard of proof should apply.” Nevertheless, the lack of conclusive data on the cause of depletion of the N-aquifer has allowed the company to continue operating the mine, although it has also kept the Black Mesa Mine from receiving the life-of-the-mine permit secured by Peabody for the Kayenta Mine.
A central source of the official ambiguity regarding the Black Mesa Mine data is the disagreement between the Interior Department’s Office of Surface Mining Reclamation and Enforcement (OSMRE) and the U.S. Geological Survey (USGS). The OSMRE is reliant upon the data collected from Black Mesa by the USGS; their interpretation, which is generally supportive of Peabody, has come under fire from the NRDC.
The OSMRE bases its approval of the mine on a model developed in 1983 by USGS researchers, updated in 1988. However, the data available at that time was limited, and the model was never intended for long-term projections of aquifer health. Peabody states that numerical models “are the only available tools to distinguish the observed or measured impacts among individual municipal, industrial or other pumping stresses.” This is generally true, especially with regard to aquifers, which are notoriously difficult to accurately assess based on data alone. Nevertheless, all allocation of impacts to distinct parties aside, the very basis of the OSMRE model is flawed. In the years since the initial development of the USGS model, the predictions of the model have directly contradicted (in Peabody’s favor) data collected by the USGS, which unequivocally demonstrate material damage. An assessment of the USGS model funded by the Navajo Nation, the Hopi Tribe, and Peabody in 1993 confirmed its validity. However, in 1996 the USGS revised the water budget and structural estimates upon which the 1983 model was based to reflect more recent and technologically sophisticated data collection, revisions that dramatically reduced the original projected recharge of the N-aquifer and, accordingly, the safe yield of the hydrological system. Despite this, the OSMRE continues to use the original model (NRDC Ch. 1, 7).
In addition to relying on the OSMRE model to support continued operations, Peabody has also stated that the phenomenon of Hopi and Navajo wells running dry is unrelated to the slurry line. In a 1994 statement, Peabody attorney Irene Crawford said, “we believe that climatic conditions are affecting the surface water for the villages, while Peabody is pumping deep down.” According to USGS data, this is only partially true; although Navajo and Hopi wells draw from the unconfined part of the N-aquifer and Peabody draws from the confined part, the two sections are integrally linked as far as hydrological stability is concerned.
Further hampering the Navajo Nation and Hopi Tribe’s ability to consolidate their power and put greater pressure on Peabody to cease operation of the slurry line is the lingering fallout of PL 93-531, which has fostered animosity between the two tribes. In 1983, President of the Navajo Nation Peterson Zah said, “we are being ripped off by Peabody Coal because we [the Hopi and the Navajo] can’t get along. And the lawyers are getting rich off the Navajo and the Hopi.” Although the Bureau of Indian Affairs categorically denies that the relocation negotiations are in any way related to the mining issue, divisions of opinion over the Black Mesa Mine and the relocation of Navajos living on what is now legally Hopi land tend to fall along more or less the same lines—Hopi traditionalist leaders are opposed to both, while progressives like Abbot Sekquaptewa have generally been in favor of both—and the relocation of Navajos still living in the Big Mountain area of the Hopi Reservation will positively impact potential mining operations there. Attempts were made in 1983 by Zah and Hopi Tribal Chairman Ivan Sidney to heal the historically bad relations between the tribes in the name of better leverage against Peabody, but the Hopi Tribal Council, at odds with their chairman, acted on the recommendations of the Boyden, Kennedy and Romney law firm and placed restrictions on Sidney’s interactions with the U.S. Government and the Navajo, bringing an end to negotiations between the two leaders.
The campaign against the Black Mesa Mine pipeline has also been dealt a blow by the Presidential Election of 2000. Vernon Masayesva is deeply suspicious of connections between the upper echelons of the Peabody Energy Corporation and the Bush administration, and a cursory analysis of recent events relating to Dick Cheney’s National Energy Policy does give one pause. Peabody began trading stock on May 22, 2001, less than a week after Cheney announced his industry-friendly National Energy Policy, declaring that “conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy.” In August, Fredrick D. Palmer, Peabody’s executive vice president for legal and external affairs, stated that it was unnecessary for Peabody to lobby the Bush administration because of their similar views: “We don’t need to be talking to the White House to know what they want. I understand the importance of fossil fuels to the American people. Dick Cheney understands that. The president understands that.” In the same month, the U.S. General Accounting Office began attempting to obtain information from Cheney regarding the National Energy Policy Development Group which was never satisfactorily provided, prompting the Comptroller General to threaten litigation in September, stating that
“This is a very serious matter with significant potential implications. . . . It involves several good government principles, including the right of the Congress to oversee the executive branch, and the need for transparency and accountability in connection with the development and execution of federal government policies that can affect the lives of every American.”
The state of war declared in October has also caused many opposed to the use of N-aquifer water in Peabody’s operations to worry that the need for more energy, or even the ability to increase energy production for other reasons under the pretense of need, will overwhelm all efforts towards environmental sustainability and social equity. Wilkinson agrees, and sees “the whole West as being in [a vulnerable] position. They [the Bush administration] want to mine wherever they can mine.” Black Mesa has already been put in a somewhat vulnerable position; in March, Secretary of the Interior Gale Norton substantially rewrote updated mining regulations put into effect by the Clinton administration, removing sections giving the Bureau of Land Management the capacity to categorically refuse mining permits for regions where such operations would cause “substantial irreparable harm” to resources, both environmental and cultural, a definition that included sites of sacred importance to Native American tribes.
Despite this, Masayesva remains committed to ending Peabody dependence on N-aquifer water by 2005; “Black Mesa Trust is asking: is this the way you use water in the middle of the desert? Is this the way you use water in a region that receives less than ten inches [of rainfall] a year?” The NRDC has demanded that Peabody provide an environmentally sound alternative water source for the Hopi and Navajo, and that the Department of the Interior require safe yield of all parties operating on aquifers, suggestions that Wilkinson supports, and sees as an inevitability; “I think you have to assume that within four to ten years there’s going to be no more pumping out of that aquifer, or if there is it, would be clearly limited to annual recharge.” (Peabody did not respond to a request for an interview.)
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