Press Release: Settlement Reached in Legal Dispute Over Kayenta Mine
FOR IMMEDIATE RELEASE
MAY 12, 2014
Contacts:
Nichole Horseherder
To’ Nizhoni Ani
nhorseherder@yahoo.com
(928) 675-1851
Jihan Gearon
Executive Director
Black Mesa Water Coalition
jihan.gearon@gmail.com
(928) 380- 6684
Justin Gundlach
Lead attorney for To’ Nizhoni Ani and others
Georgetown University Law Center
Institute for Public Representation
jg1414@law.georgetown.edu
(202) 661-6694
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.
1
Press Release: Settlement Reached in Legal Dispute Over Kayenta Mine
“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.
2