[Photograph: Susanne Anderson from Song of the Earth Spirit]     

Dark Days on Black Mesa

 

The Hopi want one of the largest coal mines in North America to stop using their
groundwater. If springs and wells dry up, their ancient culture may disappear.

By John Dougherty
Phoenix New Times

Eighty-two-year-old Valjean Joshvema leans forward in his chair and sings
a Hopi prophecy that has come to pass.

The ageless Hopi lyrics foretell of an era when the Hopi will wander the
high desert mesas they and their ancestors have occupied for more than
twelve millennia. According to the prophecy, the Hopi are searching for
the sacred substance that has sustained their lives, their culture, their religion.

Water.

"The song refers to animals. That is us," says Joshvema, whose home is
located in the 950-year-old village of Old Oraibi on the Hopi reservation
in northeastern Arizona. "They will drink all the water and will look
around for water with a dipper, and it's not there."

The song Joshvema learned during his childhood warns the Hopi never to
misuse water. The wages of such sin are ruination of North America's
oldest society--a society that subsists in an environment that gets fewer
than twelve inches of rainfall a year.

"The prophecies are supposed to teach us not to do these things, but we
are not listening," says Joshvema.

Joshvema is a member of Wuwtsim, one of several Hopi religious orders. He
says the religious society that once tightly bound the Hopi is rapidly
fading. Joshvema has been many things: a U.S. Marine, heavy-machinery
operator, farmer, rancher, spiritual advisor. But like many others in the
10,000-member tribe, Joshvema is convinced that the Hopi are on a path
that could wreck their homeland.

Thirty-one years ago the Hopi Tribal Council struck an agreement to sell
groundwater to Peabody Western Coal Company. That water is mixed with
coal strip-mined by Peabody from nearby Hopi and Navajo lands to make a
slurry. The mixture is then injected into America's only coal-slurry
pipeline, which leads to a massive electricity plant at Laughlin, Nevada,
where the coal is burned to produce power for Las Vegas, Los Angeles and
Phoenix.

Although the tribe has received more than $100 million in coal royalties
from Peabody in the past decade, many Hopi now contend that Peabody's
groundwater pumping is drying up springs and washes--destroying the
tribe's link to its past and its hope for the future.

"The song ends," Joshvema says, "with, 'No one will help us.'"

Fortunately, the final verse of the prophecy may not yet have been
written.

A new generation of Hopi leaders is emerging. These leaders have been
trained in American universities, the armed forces and federal
courtrooms, but they also revere traditional Hopi teachings. They are
fighting to protect Hopi water.

In the course of their work, they have discovered that their Hopi
predecessors are not solely to blame for the unfavorable terms of the
tribe's 1966 lease with Peabody.

The Hopi have learned that they were deceived by their lawyer whom they
trusted and whom many loved. The late Salt Lake City attorney, John
Boyden, negotiated a mining and groundwater agreement on behalf of the
Hopi with Peabody. For his work, the Hopi paid him more than $1 million.

But Boyden, records reveal, was literally double-dealing--working for the
coal company at the same time he was working for the tribe. The costs of
his deception are only now becoming clear--and only because of the work
of University of Colorado law professor Charles F. Wilkinson.

The agreement Boyden forged with Peabody is threatening to rip the heart
out of what's left of traditional Hopi culture. If the groundwater dries
up, Joshvema and other Hopi would have to abandon their homeland.

"That would be the ultimate disaster," Joshvema says.

It's fitting that Black Mesa is so named, considering the coal found
there.

The formation towers 8,000 feet above sea level at its northern boundary
near the Navajo town of Kayenta, in Arizona. The 3,300-square-mile
plateau gradually slopes southwestward to an altitude of 2,000 feet,
where it splits into fingerlike promontories. It is on these narrower
mesas that the Hopi and their ancestors have survived for more than
12,000 years.

Black Mesa is bordered on the northwest by a vast outcropping of Navajo
sandstone. The sandstone plunges beneath the 1,500-foot-high face of
Black Mesa--only to reappear in scattered locations fifty or more miles
to the southwest, near the Hopi villages.

The sandstone beneath Black Mesa contains huge quantities of water, as
much as 300 million acre-feet. But only a fraction of this amount can be
withdrawn by wells or will ever flow naturally through springs and washes.

The Hopi first settled near springs and washes fed by the Navajo
sandstone and other, shallower aquifers. Their society developed an
intimate relationship with water and its sources--rain, snow, springs and
washes.

Until recently, the Navajo sandstone and other aquifers beneath Black
Mesa were in equilibrium: The discharges into springs and washes were
equal to the amount of water being recharged into the aquifers from
precipitation.

The Hopi culture thrived with the natural ebb and flow of the water
below. Black Mesa itself has long been an important area to both the Hopi
and the Navajo. It contains numerous sacred shrines and burial
grounds--many of which have been destroyed by Peabody's mining
operations, according to a 1996 ruling by a Department of the Interior
administrative law judge.

In the early 1960s Peabody signed leases with the Hopi and Navajo tribes
that allowed the company to prospect and mine coal on more than 100
square miles of Black Mesa. Peabody hit the jackpot. The company
discovered one of the richest coal deposits in the world--and Peabody had
exclusive rights to it.

By the early 1970s Peabody had built one of the largest coal strip mines
in the United States. The company signed long-term coal contracts with
two power plants that were built in the early '70s to sate the power
needs of burgeoning Southwestern cities.

One of those contracts is with Southern California Edison's Mohave
Generating Station in Laughlin, Nevada. Peabody engineers reviewed
several possible methods of transporting the coal to Laughlin, including
truck and rail. But the company also knew that Black Mesa sat atop the
sodden Navajo sandstone.

The company decided that the cheapest way to transport its coal to
Laughlin was to mix the coal with groundwater and inject the slurry into
an underground pipeline. The company draws water from eight wells dug
deep into the thickest section of the Navajo sandstone aquifer; Peabody
sucks 3,800 acre-feet of water each year from the ground. (An acre-foot
is the amount of water that would cover an acre of land to a depth of one
foot; it is also estimated to be the amount of water used by a family of
four in a year.) The 273-mile-long pipeline moves about five million tons
of coal each year.

Once the pumping began, the Navajo sandstone aquifer was thrown out of
balance. Natural discharges and well withdrawals exceeded recharge.
Peabody believes the amount of water it is withdrawing is small in
comparison to the size of the aquifer. "If we ship all the coal to Mohave
that is available to us, we will only use one-tenth of 1 percent of the
volume of the water in the aquifer," says Peabody vice president of
operations Gary A. Melvin.

But the Hopi contend that because their villages are located at the
southern edge of Black Mesa, above a considerably narrower portion of the
Navajo sandstone aquifer, Peabody's withdrawals are lowering the water
table and drying up water sources that were reliable in the past.

"When you start withdrawing that amount of water, that affects the
recharge of the springs, and it can have a devastating impact," says Nat
Nutongla, director of the Hopi tribe's water-resources program.

The debate over how much impact Peabody's wells are having is being waged
in a seemingly endless series of contradictory hydrogeologic reports. A
definitive answer may be decades away.

But one thing is certain on Black Mesa: Peabody's coal-slurry line will
remain a center of controversy.

Slurry lines are rarely used to transport coal in the United States. The
fact that Peabody uses the method in one of the driest regions on Earth
is startling.

In a 1993 letter to Secretary of the Interior Bruce Babbitt, the Hopi
tribe complained that the slurry line at Black Mesa "is the only instance
in American history where coal has been transported with groundwater, let
alone pristine groundwater that represents the only source of drinking
water for an Indian Tribe."

The past and present collide on the Hopi's beautiful mesas. Meticulously
constructed sandstone rock homes dating back a century or more are
interspersed with the angular cinderblock homes of today.

Dirt roads twist through ancient villages and lead to homes equipped with
satellite dishes.

Hopi villages have retained a distinct, noncommercial identity.
Businesses are few. Advertising and billboards are sparse. Hopi voters
rejected a proposal to build casinos as a revenue source. Many Hopi are
self-employed artisans or work for the tribal government.

Where its Navajo neighbors are building modern shopping centers, the Hopi
reservation, which is surrounded by the Navajo reservation, has a few
small markets. Most Hopi still drive to Flagstaff, a hundred miles away,
to do such basic tasks as wash clothes.

Power, water and sewer lines are slowly linking Hopi villages to a
society many have resisted for decades.

Dances, ceremonies and art remain vital to the Hopi, but Hopi
traditionalists say their spiritual underpinnings have become secondary
to entertainment.

Hopi youth stepping off a school bus look like many urban kids, sporting
saggy jeans and hip-hop styles. They're wild about basketball.

As modern technology encroaches on the Hopi mesas, many of the traditions
of the past are fading. The Hopi language is dying; few children learn
their native tongue. The gardens that once flourished on the steep
hillsides are crumbling from neglect.

Few Hopi gather their water from springs as their ancestors did. The art
of dry-land farming is losing its luster. The lure of the conveniences of
modern life is disconnecting the Hopi from their past.

It is a trend that disturbs many traditional Hopi.

"The young people are getting further and further away from our culture,"
Valjean Joshvema laments.

The Hopi are a divided people; many traditionalists don't even recognize
the Tribal Council as a legitimate body. But on the issue of water, Hopi
leaders--both progressive and traditional--are united.

They believe Peabody's extraction of 1.2 billion gallons of groundwater a
year is drying up springs and diminishing flows in washes they have
worshiped and relied upon for generations.

"We are facing a tragic situation by depleting our only water source,"
says progressive Hopi tribal chairman Ferrell Secakuku.

"It is important for Peabody not to waste the water, because that is our
only source," says Dalton Taylor, a seventy-year-old rancher who
regularly makes lengthy pilgrimages to far-flung sacred sites.

Vernon Masayesva, a former tribal chairman, believes that water remains
the Hopis' vital link to their past. Since he left the council in 1993,
he's been on a mission to educate his people about the importance of
their water.

"I really want us to go back to honor, respect and trust the ancient
wisdom, to go back to our relationship with water," Masayesva says.
"Water is sacred. Water is a blessing."

Peabody says the Hopi claims are nonsense. The company acknowledges that
the water table will drop during the life of its mine. But the coal will
all be mined within thirty years, and Peabody executives promise
groundwater will be replenished within a decade of the mine's closure.

The company cites several hydrogeological studies that indicate Peabody's
groundwater use is not drying up springs. The company blames climatic
changes for variations in spring and wash flows that concern Hopi farmers
and ranchers.

"The evidence continues to support that there is really no significant
impact," says Peabody's Melvin.

In the middle of the fray is Bruce Babbitt. The former Arizona governor
is saying nothing about the contentious issue. His department supports a
proposal to build a water pipeline from Lake Powell to Peabody's coal
mine and to communities on the Hopi and Navajo reservations. The pipeline
would provide Peabody another water source for its slurry line and bring
renewable water supplies to Hopi and Navajo communities.

But the department's proposal would also require the Hopi to pay $75
million or more to get Lake Powell surface water through ninety miles of
pipeline to Peabody's mine and farther to the dozen Hopi villages arrayed
across the southern edge of Black Mesa.

While the prospect of Lake Powell water for Peabody and the Hopi villages
sounds alluring, Hopi resistance is mounting.

"They want us to mortgage our grandchildren's future to solve a problem
that is not caused by us," says Masayesva.

Masayesva is urging the Tribal Council to reject the pipeline plan and
focus on conservation and development of other water resources, including
obtaining rights to 50,000 acre-feet per year of Colorado River water.

At the same time, Masayesva says the tribe must pressure Babbitt and
Peabody to cease groundwater pumping. The tribe should be prepared to
take legal steps that include shutting down the mine, he says.

There are indications that Babbitt has the authority to force Peabody off
the groundwater and that the Hopi have the legal power to close the mine.

Former secretary of the interior Stewart Udall approved the Peabody coal
lease in 1966, but only after adding a key stipulation. Under that
provision, if Peabody's wells are found to be "endangering the supply of
underground water," the interior secretary may order Peabody to find
another water source at its "sole expense."

During a phone interview from his office in Santa Fe, Udall says that
Babbitt should protect the Hopi. It is time, Udall says, for Babbitt "to
champion the best solution for the Indians."

If Bruce Babbitt follows that advice, he will run head-on into one of the
most powerful industrial consortiums in the United States.

Peabody Western Coal Company is the hub of a prodigious industrial engine
that has fueled growth and development in the Southwest for thirty years.
Peabody is a subsidiary of a British multinational corporation, The
Energy Group, which is rapidly increasing its investment in U.S. utility
companies.

Peabody clears profits of $60 million to $70 million a year from its
Indian coal-mine leaseholds, according to Hopi chairman Ferrell Secakuku.
A Peabody spokeswoman calls that estimate "overstated."

It is charitable to say that Peabody got a great deal on its initial coal
leases with the Hopi and Navajo tribes, paying each tribe a 3.3 percent
royalty, about half the royalty rate elsewhere at the time. Peabody also
dodged an assortment of taxes.

Then there's the groundwater, which Peabody got at incredibly low rates.
The Navajo initially were paid $5 per acre-foot of water while the Hopi
received a mere $1.67 per acre-foot for the groundwater that continues to
be pumped from 2,000 feet below the surface at an astounding rate of
2,000 to 4,500 gallons per minute. The rates were renegotiated in 1987 to
reflect the market value of the water--Peabody says it now pays an
average of $3.2 million per year for 3,800 acre-feet of water, for an
average of $840 per acre-foot.

Peabody operates two adjacent mines on Black Mesa under leases with the
Hopi tribe.

The Black Mesa Mine supplies coal fuel for the 1,580-megawatt Mohave
Generating Station, operated by Southern California Edison. Once it is
separated from the coal, the Hopi water is used as a coolant in the power
plant. Other owners of the power plant include the Los Angeles Department
of Water and Power, Nevada Power Company and Arizona's Salt River Project.

The second mine, called Kayenta, is dedicated to the Navajo Generating
Station located near Page, Arizona. Peabody ships about seven million
tons of coal each year to that 2,310-megawatt plant via a 78-mile-long
electric railway.

The Navajo power plant was built primarily to provide power to operate
the $5 billion Central Arizona Project, a series of canals that pumps
water more than 300 miles from the Colorado River near Lake Havasu to the
Phoenix and Tucson metropolitan areas and surrounding farms, industries
and Indian tribes. CAP is designed to deliver more than two million
acre-feet of water per year to central Arizona towns, an amount
sufficient to provide for eight million people.

Like the Mohave plant, the Navajo power station provides electricity to
powerful utility companies, including the Salt River Project (the
facility's operator), Arizona Public Service Company, Nevada Power
Company, Los Angeles Department of Water and Power and Tucson Electric
Power Company.

Peabody not only fuels a massive power and water grid that drives
economic development in the Southwest; the mining conglomerate has also
become the economic backbone of the Navajo and Hopi tribes.

Revised leases in 1987 greatly increased royalties to both tribes. In
recent years the Hopi tribe has received about $10 million of its $17
million annual budget from Peabody. The Navajo Nation, 160,000 strong, is
collecting about $35 million a year in coal royalties and water payments
from Peabody. (The Navajo are receiving more royalties because the mines
are located primarily on Navajo land.)

Peabody's mines also employ about 700 Navajo workers and a handful of
Hopi employees at wages and benefits averaging more than $55,000
annually. A fringe benefit for the Native Americans: all the free coal
they can cart off.

Facing so much economic power, it's not surprising that Hopi concerns
about groundwater remain unknown to the public--let alone attract serious
attention from Congress or the Clinton administration.

And the Hopi are alone in their fight to get Peabody off groundwater. The
Navajo government is not concerned about Peabody's groundwater use.

Stanley Pollack, water-rights attorney for the Navajo, claims there is no
evidence that Peabody's groundwater withdrawals are damaging the aquifer.
Pollack says diminished flow from Hopi springs and washes is because of
improper placement of Hopi municipal wells rather than Peabody's
industrial wells.

Peabody, Pollack says, draws all the attention because it is withdrawing
vast amounts from the aquifer. But Peabody's wells are many miles away
from Hopi villages and have only a minor effect on groundwater levels on
the Hopi reservation, Pollack claims.

"Peabody," Pollack says, "is an easy target."

Since his term as Hopi tribal chairman expired in 1993, Vernon Masayesva
has devoted much of his time to finding a way to stop Peabody from using
groundwater for its mining operations.

While the numerous groundwater studies conducted by both private and
federal agencies are inconclusive, Masayesva is more convinced than ever
that Peabody is having a serious impact on Hopi water supplies.

"The more we look into the impact on the aquifer, the more we find
serious damage occurring," Masayesva says.

Tribal elders report numerous instances of diminished or drying springs
that hydrogeologists have linked directly to the Navajo sandstone aquifer.

Masayesva also points to an April 1996 draft report prepared by the U.S.
Geological Survey that shows a sharply reduced groundwater-recharge rate
in the area of the aquifer shared by Peabody and Hopi villages.

The report concludes that 90 percent of the water in the aquifer is
10,000 to 35,000 years old and that it collected there during the ice
ages.

The report also states that the current recharge rate of the aquifer is
2,600 to 3,600 acre-feet per year, substantially less than the previous
USGS estimate of 4,800 acre-feet per year.

Most important, at least to the Hopi, is that the USGS draft report shows
for the first time that Peabody is taking out more water than is being
naturally recharged.

The draft report, Masayesva says, is an important development in the long
series of studies on the aquifer.

But so far, the USGS report remains in draft form, in part because of
extensive comments provided by Peabody, which helped pay for the survey.
The company conducted its own study using the same techniques as USGS and
concluded that the recharge rate is much higher than USGS's draft report,
according to Gary Melvin at Peabody.

In fact, Melvin says the Peabody data shows the recharge rate to be near
predictions in USGS models developed in the early 1980s. Peabody's data
has been forwarded to USGS for consideration in the agency's final
report, Melvin says.

"We have yet to see anything that would cause us any concern or lead us
to change any of the assumptions in our earlier studies," Melvin says.

The Hopi, however, claim they don't need definitive proof to shut down
Peabody's wells.

Masayesva says the tribe's obligation under federal law is to simply show
that there is a "threat" to the groundwater resource.

Once that threat is shown, the federal government--under its trust
responsibility to Indian tribes--is required to conduct the studies and
determine whether Peabody is depleting the aquifer.

And in this case, Masayesva says, the government doesn't have to prove
damage, but only that Peabody poses a danger to the aquifer. The lower
standard is a result of the lease language required by Stewart Udall:
"Should the Secretary of Interior determine, at any time, that the
operation of the wells by [Peabody] is endangering the supply of
underground water in the vicinity or is so lowering the water that other
users of such water are being damaged, he may...require Peabody Coal
Company, at its sole expense, to obtain water for its mining and pipeline
operations from another source that will not significantly affect the
supply of underground water in the vicinity."

Masayesva and Hopi water attorneys believe the clause gives Bruce Babbitt
a powerful lever, if he wants to pull it.

"Babbitt has a trust responsibility to protect the natural resource, and
he has discretionary authority to make the decision requiring Peabody to
stop using groundwater without calling for absolute proof on the part of
the Hopi," Masayesva says.

Hopi water officials say there are plenty of scientific reports that show
the groundwater is being depleted by Peabody and that Hopi supplies are
damaged.

Hopi hydrologist Ron Morgan points to a series of USGS reports that
clearly show Peabody's pumping is directly related to declining water
levels in Hopi municipal wells. Water levels in Keams Canyon wells, for
example, have fallen more than 160 feet since Peabody began pumping.

USGS hydrologist Gregory Littin says about half of that depletion at
Keams Canyon can be attributed to Peabody's groundwater pumping.

Despite such evidence, the Department of the Interior has refused to act.
Hopi attorneys' requests have gotten nowhere with Interior. (Babbitt's
press secretary, Mary Helen Thompson, promised on several occasions to
get "somebody" to talk about the issue with a reporter, but she didn't.)

Interior's silence on the issue is a bit surprising, considering that the
department itself has displayed concern over Peabody's use of groundwater.

Former interior secretary Manuel Lujan rejected Peabody's application for
a mining permit at the Black Mesa Mine in 1990 because of groundwater
concerns. Instead, Lujan issued an interim permit to Peabody, pending
groundwater studies.

Interior's refusal to issue a mining permit stems in part from a 1990
U.S. Environmental Protection Agency report that concluded the use of
groundwater for the coal-slurry line "is not an environmentally
preferable alternative."

Peabody claims a 1993 water study funded by the two tribes and Peabody
conclusively proves there has been no long-term impact to the aquifer.
Peabody asked Interior's Office of Surface Mining to issue a permit based
on that report. The Hopi vehemently objected to the validity of the study
and to the fact that they were not allowed to comment on the report
before Peabody sent it to the Office of Surface Mining.

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.

Hopi religious leaders, the Kikmongwi, beseeched President Harry Truman
in 1949 to forbid such atrocity.

Truman ignored them.

 

 

    

"When we were coming away from the mine one of the ladies in the tour asked, 'Where is the reseeding going
on?' The man said, 'Right here. We are going through it right now.' The earth was an ugly grayish brown. It looked like sand just turned over. The topsoil was gone. Bottom gravel soil was on top, and it was hard and dry.
    "She asked him when they had planted the grass. He said, 'Oh, three years ago. An experimental grass.' But there was no grass and she said so. He said, 'Oh, were still experimenting.' He was very tense.

 

 

In the early 1960s the traditional Hopi who followed ancient ways of
self-governance by consensus protested efforts by a renegade Hopi tribal
council to grant mining leases.

Washington, D.C., bureaucrats responded by usurping the Hopi Constitution
that "prevent[ed]" the council from executing mineral leases without
approval of the Hopi people by "delegating" leasing authority to the
renegade council.

By the late 1960s the traditional Hopi leaders had grown deeply
suspicious of the council's attorney, who had negotiated a one-sided
mineral lease with Peabody Western Coal Company. The lease allowed
Peabody to create one of the largest coal strip-mining and
water-consuming operations in the United States--on Black Mesa.

Hopi traditionalists wrote presidents Lyndon Johnson, Richard Nixon and
Jimmy Carter seeking to halt the mining, but none listened.

They turned to the courts, filing numerous lawsuits. All were thrown out.

As the decades passed, many of the traditionalists faded into the dusty
mesas where the Hopi first built villages more than 950 years ago and
where their ancestors roamed 12,000 years ago.

Only a handful of the Hopi's traditional religious leaders remain.
And only now are the half-century-old suspicions being confirmed.
The Hopi, whose tenets are trust and loyalty, were deceived. And nobody
played a larger role than Boyden, their longtime attorney.

Wilkinson takes no delight in his revelation of Boyden's dual role. But
he's pleased it provides proof to support the long-held contentions of
Hopi traditionalists.

"This is one of the largest single events in the Hopi's thousand-year
history," Wilkinson says of Boyden's role in the Peabody mining lease.
"At least now the record is clear."

John Sterling Boyden was a pillar of Utah Democratic politics for
decades. A friend of Utah governors and an acquaintance of presidents,
Boyden twice sought Utah's Democratic nomination for governor.

The prominent Salt Lake City attorney grew up a devout Mormon in
Coalville, Utah. He served as a bishop in Salt Lake City from 1953
through 1958. His contribution to the Mormon Church was recognized at his
funeral in 1980, when Marion Romney, of the Church's First Presidency,
spoke.

Boyden was hired by an unofficial group calling itself the Hopi tribal
council in 1950 to represent the tribe before the Indian Claims
Commission. The commission was created to determine compensation to
Indian tribes whose land was seized by the United States. The work was
lucrative for Boyden, who eventually earned a $500,000 fee, equal to 10
percent of a $5 million settlement the U.S. offered to pay the Hopi for
the loss of four million acres.

The elected Hopi Tribal Council was no longer recognized by the federal
government when Boyden was hired. That council was dissolved by the
federal government in 1943.

To legitimize his claim as Hopi attorney, Boyden executed agreements with
leaders of seven of the twelve Hopi villages, along with the unofficial
Hopi council.

Boyden expanded his role beyond representing Hopi interests with the
Claims Commission in 1951, when he convinced the seven Hopi villages to
hire him as general counsel to negotiate with oil companies that desired
leases on Hopi land. Boyden told the villages he would be paid only out
of revenues he produced for the tribe, according to Hopi tribal records.

The plan to make Boyden general counsel was problematic. The local Bureau
of Indian Affairs director recommended the contract be rejected because
it would legitimize the renegade tribal council without the consent of
the Hopi people. But Boyden went over the local BIA director's head and
won approval from Department of the Interior officials who were eager to
see the Hopi grant oil and mineral leases.

A BIA memorandum describes a Boyden meeting with Interior Department
officials in which he says "that remuneration for his services will
depend largely on working out solutions to many of the Hopi problems to
such a point that oil leases will provide funds."

The BIA approved Boyden's general-counsel contract in May 1952,
triggering controversy on the Hopi reservation. While the protests caused
the Interior Department to review BIA approval of Boyden's contract, in
the end Boyden's appointment stood.

The lawyer turned his energy toward gaining federal recognition of the
unofficial tribal council.

The original Hopi council had been created in the aftermath of the 1936
ratification of the Hopi Constitution. The constitution, however, was
strongly opposed by Hopi religious leaders, the Kikmongwi, and many Hopi
did not vote in the 1936 ratification election. More than 1,800 eligible
voters stayed home. The constitution was approved by a vote of 651 to 104.

Tribal records reveal that BIA officials knew there was profound
opposition to the constitution at the time it was ratified.

Oliver LaFarge, the federal agent supervising the election, noted in his
diary that the Hopi were opposed to settling matters by majority vote
because it leaves a dissatisfied minority.

"Their natural way of doing things is to discuss among themselves at
great length and group by group until public opinion as a whole has
settled overwhelming in one direction," LaFarge wrote. "Opposition is
expressed by abstention," he concluded.

Nevertheless, the BIA approved the constitution and created the first
Hopi Tribal Council.

But the constitution also required that the Kikmongwi approve
councilmembers who were elected. Many Kikmongwi refused to do so. By 1942
several villages had failed to reappoint councilmembers, and the Hopi
Tribal Council languished. By 1943 the BIA determined that the council
had become dormant.

The unofficial tribal council soon evolved and operated through the 1940s
and into the early 1950s.

Just as the area BIA director had predicted, Boyden's approval as general
counsel soon led to the BIA's recognition of the unofficial tribal
council in 1955. The approval came even though only seven of twelve
villages had elected members to the council.

For much of the next seven years, Boyden and the tribal council attempted
to resolve a contentious land dispute between the Hopi and the much
larger Navajo tribe. In 1962 a federal court determined rights to 2.5
million acres of land; the ruling required several thousand Navajo and
about a hundred Hopi to move from their homes to other areas.

The ruling also stated that the Hopi and Navajo would split evenly any
proceeds from the rich coal deposits on Black Mesa.

Boyden had already banked $500,000 for representing the Hopi before the
Indian Claims Commission. For his work on the land-dispute case, the Hopi
Tribal Council paid Boyden an additional $1 million--$780,000 for legal
services and $220,000 as an expression of the Hopi's "gratitude" for his
work.

The fee was outlandish and was initially rejected by Arizona BIA
officials.

"The Phoenix area office noted that the 7,800 hours spent, valued at the
'top price paid for top attorneys' at that time would be worth $273,000.
It recommended approval of a $400,000 fee" because Boyden had forgone any
fee for a number of years, tribal records state.

Boyden appealed the BIA's assessment to Secretary Udall in April 1965.
Soon after, the Interior Department approved Boyden's $1 million fee.

While Boyden was working on the land-dispute case, he was also
eliminating a hurdle that kept private companies from leasing Hopi land.

The Hopi Constitution prevented the tribal council from entering mineral
leases without tribal approval. Boyden knew the majority of the Hopi were
against leasing or mining their land. To circumvent the constitutional
provision, Boyden asked Udall in early 1961 to delegate leasing authority
to the tribal council so it could generate enough money to pay legal
expenses in its land dispute with the Navajo.

Udall, who had just been appointed by Democratic president John F.
Kennedy, directed the Department of the Interior to delegate mineral
leasing authority to the tribe. This was a crucial decision for the Hopi
and Boyden alike.

The tribe immediately began signing oil and gas leases with several
corporations, generating $3 million. Some of those funds were used to pay
Boyden's $1 million fee.

Hopi traditionalists filed suit in federal court in 1964, challenging the
delegation of mineral leasing authority to the tribal council. But the
suit was dismissed on the grounds that the council could not be sued
because of its sovereign immunity.

The stage was set for Boyden to execute the Black Mesa coal lease with
Peabody Western Coal Company.

The Hopi Tribal Council barely mustered a quorum--only eleven of
seventeen councilmen were present--when it voted to approve a lease with
a subsidiary of Peabody on May 16, 1966. Of the eleven who voted, only
six had been certified by the Kikmongwi as the Hopi Constitution required.

The lease was negotiated on the Hopi's behalf by John Boyden.
"Nothing on record indicates that John Boyden ever provided the Hopi
Tribal Council with any substantial analysis of the Peabody lease,"
Charles Wilkinson states in "Home Dance, The Hopi, and Black Mesa Coal:
Conquest and Endurance in the American Southwest," a paper published last
year in the Brigham Young University Law Review.

According to Wilkinson, the tribal minutes show little discussion of the
lease, no information on whether the tribe would get a good return, and
no revelation that Boyden had ties to Peabody.

The lease was a terrible deal for the Hopi.
The tribe received only 3.3 percent of gross sales, about half the rate
that the federal government was getting in mining royalties at the time.
Numerous taxes were waived. The lease had no provision for
renegotiations--a standard clause usually providing for a new pact every
ten years.

The vast amount of land involved, 40,000 acres, was also far above the
2,560 acres that federal rules allowed for a single mining lease on
Indian land. There are no indications that the tribe sought to have the
acreage limits waived.

The lease was amended in October 1966 to allow Peabody to withdraw more
than 4,000 acre-feet of potable water from beneath Black Mesa each year.

The lease called for the Hopi to receive a paltry $1.67 per acre-foot for
the water--a rate far below the $30 to $50 that other industries paid per
acre-foot at the time. The $1.67 figure was handwritten into the lease
agreement. Hopi officials have been unsuccessful in trying to determine
who wrote in the value.

The entire Peabody deal was negotiated in secret.

The Hopi people wouldn't learn details of the lease negotiated by Boyden
until several years later, when Peabody began ripping Black Mesa apart.

Udall now says he was oblivious to Boyden's maneuvers.

"How he manipulated them and how he got it done, I don't know," Udall
says. "The word that came to me was that they [the Hopi] had approved the
lease."

Udall contends today that he would never have approved the lease "if the
word came back the Hopi don't want it."

Yet Udall, very early in his tenure as interior secretary, had approved
the delegation of mineral leasing authority to the council, a decision
that allowed Boyden and the council to bypass the Hopi constitutional
provision calling for a plebiscite before any leases were approved.

The delegation of mineral-leasing power removed a huge obstacle for
Boyden, who by then was also working for Peabody.

Snowcapped mountains beckon through the window of Charles Wilkinson's
small fourth-floor office at the University of Colorado Law School.

Wilkinson delves quickly into a topic that has been his life's work--the
West. He is one of the nation's most prominent legal experts on public
lands and Indian law and has followed the developments on Black Mesa for
more than 25 years.

A 1966 graduate of Stanford University law school, Wilkinson cut his
teeth on Indian law in 1971 when he joined the Native American Rights
Fund. He began his academic career in 1975 at the University of Oregon's
law school before moving to Colorado in 1987.

His numerous books and papers on environmental issues related to public
lands and Indian reservations have won him widespread recognition.
Outside magazine calls him the "West's foremost legal authority on
natural resource management."

Wilkinson's discovery of Boyden's conflict of interest still leaves him
unsettled, even though he's known about it for several years. Boyden's
relationship with the Hopi is an important element in Wilkinson's
upcoming book, Conquest and Endurance in the American Southwest.

"There was a level at which this was very uncomfortable for me,"
Wilkinson recalls of his discovery. "It just turns your stomach. Reading
those letters is sickening."

The letters Wilkinson refers to are correspondence between Boyden and
Peabody officials in the 1960s.

Rumors had persisted for years that Boyden was working for Peabody while
also representing the Hopi tribe. But the rumors couldn't be
substantiated. Boyden always denied ever working for Peabody, and the
mining company denied that the lawyer worked for them. John Boyden's son
and former law partner, Stephen Boyden, maintains that position today.

But files released by the University of Utah library contain letters
between Boyden and Peabody officials discussing work Boyden did at
Peabody's request. The records include Boyden's billings to Peabody for
work done between 1964 and 1971.

While the university file is revealing, it is far from complete. "We
can't tell when the relationship began or when it ended," Wilkinson says.

But what is clear is that there was a close and intimate relationship
between Boyden and Peabody.

"The file discloses that Boyden represented Peabody in October 1964 at a
hearing in front of the Utah State Land Board; he urged the board to sell
Peabody land for a proposed power plant that would use Black Mesa coal,"
Wilkinson's article in the BYU law review states.

Records show that Boyden wrote a Utah businessman in October 1964 and
claimed he was "connected with the company [Peabody]."

In July 1965, Boyden sent a letter to Ed Phelps, Peabody's vice president
of engineering, promising to update Phelps after he met with Utah's
governor. "I will get together with him and then promptly inform you,"
Boyden wrote.

At the time, Peabody was seeking to obtain water rights from Utah to use
in the cooling system of a proposed power plant that would burn Black
Mesa coal. Boyden wanted the plant built in Utah.

In September 1965 Boyden wrote Phelps expressing concern that the plant
was going to be located in Arizona, near Page, rather than in Utah. The
letter clearly underscores Boyden's partnership with Peabody. "Does this
mean we are abandoning the possibility of locating the plant in Utah?"
Boyden asks.

Perhaps the most revealing letter in the file is a November 1967 letter
marked "Personal & Confidential" from Boyden to Phelps in which Boyden
states: "I am enclosing a proposed statement to Peabody Coal Company for
my work done to date."

The letter requests payment for work dating back three years, to
1964--the year the Hopi, under Boyden's direction, granted Peabody an
exploration permit on Black Mesa. The billing itemizes numerous phone
calls between Boyden and Phelps as well as a dozen conferences with state
and federal officials and private businessmen on Peabody's behalf.

The records do not reveal how much Peabody was paying Boyden for his
services, which continued through at least 1971.

After copies of several of Boyden's letters were faxed to Peabody
officials at their Flagstaff headquarters, the company confirmed that
Boyden worked for Peabody during the period in which he negotiated the
Black Mesa coal lease on behalf of the Hopi tribe. At the same time,
Peabody denied Boyden represented the company during lease negotiations
with the Hopi.

"The copies of correspondence you sent to us relate to an exploratory
project near the Navajo reservation in Utah that had no connection to the
Hopi Tribe," says Peabody spokeswoman Beth Ulinger.

Ulinger then adds: "Mr. Boyden did not represent Peabody during the
negotiation of the Arizona leases, and we have no knowledge or
information to suggest that Mr. Boyden did anything inappropriate."

Stephen Boyden, an assistant attorney in the Utah Attorney General's
office, also says his father "wasn't representing Peabody at the same
time he was representing the Hopi tribe."

Legal ethicists say an attorney should, at the very least, fully disclose
any potential or actual conflict of interest to a client. There is no
indication that Boyden ever disclosed to the Hopi tribe that he was also
representing Peabody in the crucial years leading up to the 1966 signing
of the Black Mesa coal and groundwater leases.

Boyden's representation of Peabody and Hopi at the same time is harshly
viewed by legal experts.

Wilkinson's documentation has convinced at least one key player in the
coal rush that Boyden betrayed the Hopi. Udall says Boyden's actions
raise serious questions about the lease--particularly the use of
groundwater to transport coal to the Mohave Generating Station.

Udall says the water issue must be addressed by current Secretary of the
Interior Bruce Babbitt, particularly since Boyden had a conflict of
interest at the time the lease was first negotiated.

"I'm not [saying] this to put Secretary Babbitt, my friend, on the spot,"
Udall explains. "I'm doing this because I think the decision is
secretarial...If he looked at it and saw the evidence with regard to Mr.
Boyden and what he did, then that would weigh pretty heavily on his mind."

Babbitt's office remains silent on the issue.

If Udall's suggestion isn't heeded, legal action by the Hopi appears
likely.

"I imagine the tribe and their attorneys are reviewing the situation to
see if they can bring a suit to void the lease because it was obtained by
fraud," Wilkinson says. "It is my strong sense that the Hopi would want
to consider that suit."

Boyden, Wilkinson explains, not only had a conflict of interest, he also
failed to help the Hopi capitalize on the powerful economic lever the
tribe had at its fingertips.

Black Mesa, Wilkinson says, was essential to one of the most important
political and economic developments in Arizona history--the Central
Arizona Project.

Ever since the idea was hatched in the 1940s, the Central Arizona Project
was embraced by Arizona politicians from both sides of the aisle. Arizona
wanted to tap its share of Colorado River water that was being used by
California.

In 1963 the U.S. Supreme Court allocated 2.8 million acre-feet of
Colorado River water to Arizona each year. To put that water to use,
Arizona needed a canal to bring water to the farms, businesses and
communities in and around Phoenix and Tucson.

Arizona was in a position to get the funding to build the CAP in the
mid-1960s. Udall was secretary of the interior, and Senator Carl Hayden
of Arizona was the most senior member of the U.S. Senate. Together, they
shepherded the project through a reluctant Congress.

"I played an important role in this. I can't deny that. We were frantic
to get the CAP through Congress," Udall says.

Several major political and technical problems needed to be solved.
Tremendous amounts of electricity would be needed to move as much as 2.2
million acre-feet of water more than 300 miles, over mountains, to
central and southern Arizona.

The first plan was to build two hydroelectric power plants in the Grand
Canyon. But the Sierra Club launched a massive publicity campaign and
thwarted the proposal by the Bureau of Reclamation in 1966. A secondary
plan soon emerged that called for a coal-fired power plant to be built
near Page.

Udall again played a key role in nurturing the development of the Page
power plant on Navajo land. The plant would be fueled by Black Mesa coal.

"Udall interceded saying if they [CAP backers] give up the fight for
power plants in the Grand Canyon, he would help them get the Page plant,"
says historian Alvin Josephy.

"It was a big mistake of Udall's," says Josephy, a close friend of
Udall's. "He was allowing people to deal for the Indians without even
telling the Indians most of the time what was being dealt away."

Utilities were eager to construct power plants in remote locations so as
not to exacerbate pollution problems in the burgeoning urban areas of Los
Angeles, Las Vegas and Phoenix. Twenty-three Western utilities formed a
consortium called WEST Associates to push for development of coal
resources on Black Mesa and throughout the Four Corners region, where
several highly polluting plants already existed.

Salt River Project soon presented plans to build the Navajo Generating
Station near Page on Navajo land.

The coal for that plant would come from Black Mesa.

While the Page plant would solve the technical problem, the politics were
more tangled. California, which was accustomed to receiving Arizona's
share of Colorado River water, fought the CAP. To help persuade
California and Nevada to support the project, another power plant was
proposed: the Mohave Generating Station near Laughlin, Nevada. That plant
was dedicated to supplying cheap power primarily to Southern California
and Nevada.

Once again, Black Mesa was to be the source of coal. The water beneath
Black Mesa would be used in the slurry line to transport coal from the
mine to the plant. And after the coal was removed, the water would be
used in the power plant's cooling system.

A political resolution finally was hammered out in the 1968 Colorado
Basin River Project Act, which set the stage for the construction of the
CAP and the two massive electric generating stations.

The whole deal depended on Black Mesa.

The Hopi and Navajo were in a unique position to strike lucrative deals
with Peabody and the utilities. Without their coal, the CAP wouldn't get
past square one.

"Boyden knew the leverage the Hopi had," Wilkinson says.

But Boyden was also working for Peabody coal.

Instead of cutting a lucrative deal, the Hopi (and for that matter the
Navajo, who were represented by separate counsel) ended up with scraps.

It wouldn't be until 1987--21 years after signing the initial lease--that
the tribes began to get anywhere near a market rate of return for their
coal.

By then Boyden was dead.

"He failed them miserably," Wilkinson says.

The $5 billion CAP has yet to fulfill its promise.

The heavily subsidized water is used on heavily subsidized crops. High
payments on the CAP debt have forced several agricultural irrigation
districts into bankruptcy. Many municipalities have rejected using the
expensive and low-quality water. Arizona still is failing to take its
full allotment of CAP water.

At the canal's terminus west of Tucson, millions of gallons of Colorado
River water that have been pumped across 300 miles of desert, propelled
by power generated with Black Mesa coal, are unceremoniously dumped onto
a dry lake bed.

The costly CAP water either evaporates or percolates back into the earth.

The Hopi experience with John Boyden taught them a lesson. The tribe no
longer relies on a single attorney for all its legal matters.

Nevertheless, when it comes to Indian lands and politics, there's a
potential conflict of interest under every rock.

The tribe is currently in sensitive negotiations to settle a complicated
water-rights case on the Little Colorado River, which flows near the Hopi
reservation. A proposal to build a pipeline that would deliver Lake
Powell water to Peabody coal and to the Hopi and Navajo tribes is part of
the settlement.

The plan requires the Hopi to pay $75 million or more to get 2,000
acre-feet of Lake Powell water each year to its villages. The proposal
would also allow Peabody to stop pumping groundwater--a high priority of
the Hopi.

The settlement proposal, however, is opposed by some members of the Hopi
Tribal Council and the former Hopi tribal chairman.

Besides the high cost to the Hopi, critics say the proposed settlement
was developed by a man with strong ties to the Navajo.

Animosity and suspicion between the Hopi and Navajo run high.
The tribes continue to battle over land rights. Illegal Navajo occupation
of some Hopi land has earned the Hopi a judgment against the Navajo worth
about $20 million. The Navajo, so far, have refused to pay the judgment.

Under the proposed Little Colorado settlement developed by Arizona's
Apache County Superior Court Judge Michael C. Nelson, the Hopi would
forgive that judgment against the Navajo.

Before he became a judge, Nelson served as legal counsel to former Navajo
tribal chairman Peterson Zah between 1982 and 1987. He's also written
several books about Navajo government and has served on several Navajo
committees.

Former Hopi tribal chairman Vernon Masayesva is worried about Nelson's
long relationship with the Navajo and his proposed Little Colorado
settlement.

"Why should we support the position where the Navajos would not have to
pay a $20 million settlement to the Hopi?" Masayesva asks.

Masayesva says he's sensitive to potential conflicts of interest,
"particularly after having seen what John Boyden has done."

The long, sordid history of the exploitation of Black Mesa by Peabody,
Boyden, the federal government and utilities has turned Masayesva and
other tribal leaders into cynics.

And now, the Hopi tribe faces another crucial moment in its long history.

"I just can't have trust in anyone who, in my opinion, is not neutral. I
don't think Judge Nelson can be, regardless of what he says. In any other
situation, it would not be acceptable," Masayesva says.

But this isn't "any other situation"--this is Black Mesa.

Most Hopi ceremonies revolve around prayers for rain.

"We are praying for the cycle of nourishment for all life," says Gloria
Lomahaftewa, assistant to the director of Native American affairs at the
Heard Museum in Phoenix.

The prayers for rain never stop, even in death.

Hopi tradition, Lomahaftewa says, states that when a wife dies, she
should be wrapped in her wedding robes for her ride back to heaven. There
she will be turned into a cloud.

If she has led a good life, she will return a great blessing to her
people. She will transform into a cloudburst.

 

John Dougherty is a staff writer at Phoenix New Times.

(C)2000 New Times, Inc.