Tuesday, June 8, 2010

Hopi-Tewa vs Kayenta Mine

Hopi-Tewa vs Kayenta Mine
Kayenta Mine Permit Renewal

Mr. Dennis Winterringer

Attn: Kayenta Mine permit renewal

Office of Surface Mining Reclamation and Enforcement

1999 Broadway, Suite 3320

Denver, CO 80202-3050


In behalf of our Hopi-Tewa members we provide the following comments of CAlifornians
for Renewable Energy, Inc. (CARE) on the Peabody Western Coal

Company (PWCC or Peabody) Application for the Kayenta Mine (KM) Renewal Permit AZ-0001D.

Revelation 19:20: And the beast was taken, and with him the false prophet that

wrought miracles before him, with which he deceived them that had received the mark
of the beast, and them that worshipped his image. These both were cast alive into
a lake of fire burning with brimstone.

CARE alleges there is a pattern of synergistic corruption wherein Office of Surface
Mining and Reclamation and Enforcement (OSMRE) and United States Environmental Protection
Agency (US EPA), and/or the United States, are involved with PWCC in a corrupt organization
whose purpose is to allow PWCC continue its unlawful operation of the Black Mesa
and Kayenta mines, i.e., the purported Kayenta Mine Renewal Permit AZ-0001D. The
United States and Peabody have a common corrupt purpose; to enable the coal monopoly
Peabody to steal the land, water and coal from the Hopi-Tewa and Navajo peoples,
as they have done with impunity from prosecution for the last 40 years. The resulting
ecological and socioeconomic damage, unlike the Gulf Spill, is nothing new for the
Hopi-Tewa and Navajo peoples.

We allege that there is a pattern and practice of the United States, including OSMRE
and US EPA, participating in such synergistic corruption with the coal energy industry
as demonstrated by the United States miss-handling of the Gulf Oil Spill, as reported
by the May 14, 2010 New York Times article U.S. Said to Allow Drilling Without Needed
Permits.1 "WASHINGTON - The federal Minerals Management Service gave permission
to BP and dozens of other oil companies to drill in the Gulf of Mexico without first
getting required permits from another agency that assesses threats to endangered
species - and despite strong warnings from that agency about the impact the drilling
was likely to have on the gulf...Those approvals, federal records show, include

one for the well drilled by the Deepwater Horizon rig, which exploded on April 20,
killing 11 workers and resulting in thousands of barrels of oil spilling into the
gulf each day." And this is by the same federal government workers who the San Francisco
Chronicle in an article titled Offshore drilling regulator to be broken up reported
on May 12, 2010, "Even before the gulf spill, the agency had been battered by the
findings of a 2008 Interior Department investigation that revealed employees in
its Denver office had inappropriate sexual relationships with representatives of
oil companies and had used drugs."

What is Synergistic Corruption?

The November 30, 2005 article by Dr. Robert Stevens titled "What is Social Capital"explains
what synergistic corruption is using Enron as an example at pages 3 to

4. "Bethany McLean and Peter Elkind in their book The smartest guys in the room
document the story of the rise and fall of Enron, resulting in the largest bankruptcy

in US history. It was a story of "creative accounting". Enron was able to claim
fantastic profits, constantly driving up their share price. But their profits were
hypothetical - not actual - based on projected future

earnings. Meanwhile the company was accumulating huge debt levels. By the end, Enron
had accumulated debts of US$38 billion - only a third of which showed up on its
balance sheet.

McLean and Elkind observe that the corrupt Enron executives could not have accomplished
their deception without plenty of help.

They needed accountants to agree that prepays were a trading liability...They needed
lawyers to sign off on deal structures. They needed credit rating agencies to remain
sanguine in the face of frighting levels of off-balance sheet debt. Most of all,
they needed the banks and the investment banks to help them carry out their machinations.
(McLean and

Elkind 2003 page 161-162)

Almost everyone associated with the company failed to do right thing.

Such conspiracy - synergistic corruption as it has been called - certainly involved

networks of people with shared values pursuing their goals. Each stood to profit

On Field's account synergistic corruption is a form of social capital.

It is not clear however, that synergistic corruption is straightforwardly an asset.

Synergistic corruption undermines the ethical basis of business. I will argue later
that promise making and keeping and honest dealing is a form of social capital that

underpins an economy and a society of which it is a part. Synergistic corruption
corrodes this form of social capital. It is more of a liability than an asset.

Francis Fukuyama in "Social Capital and Civil Society" defines "social capital"
as "an instantiated informal norm that promotes cooperation between two or more

individuals" (Fukuyama 1999 page 1).

Fukuyama argues that "Many groups achieve internal cohesion at the expense of

outsiders, who can be treated with suspicion, hostility or outright hatred. Both
the Ku

Klux Klan and the Mafia achieve cooperative ends on the basis of shared norms, and
therefore have social capital, but they also produce abundant negative externalities
for the larger society in which they are embedded." (Fukuyama 1999 page 2).

Group cohesion secured at the expense of outsiders is obviously a liability for

larger society. As Fukuyama admits "It is very important when measuring social capital

to consider its true utility net of its externalities." (Fukuyama 1999 page 2).

Too many negative externalities could presumably lead one to conclude that

social cohesion secured at the expense of outsiders is not a form of capital at

The culture of synergistic corruption from John Boyden to Scott Canty

Congress passed Public Law 93-531 in 1974. Public Law 93-531 was called the Relocation
Act4, and was falsely justified by what "Peabody Coal Company's public

relations and lobbying firms" falsely constructed as the "Hopi-Navajo land dispute."
This "range war" was not true. What was true, was lawyer John Boyden with the assimilated
Hopi Tribal Council. Boyden formed a Hopi Tribal Council that consisted of several
First Mesa Hopi, based on an election in which about 10 percent of the Hopis on
the reservation voted. The newly elected Tribal Council then hired Boyden as their

John Boyden with his assimilated Hopi Tribal Council wanted Peabody Coal to

strip mine Black Mesa after the natural resources had been discovered. More than

Navajo and 100 Hopi did not want Black Mesa strip mined.

Boyden's efforts culminated with the passage of Public Law 93-531, which authorized
division of the joint-use area and the relocation of 10,000 Navajos. With the

exception of a handful of congressmen and senators who knew of the relationship
between Boyden and the Interior, those who voted for P.L. 93-531 were completely

ignorant about the Indian situation and trusted the land-dispute story of their
colleagues, Arizona Senator Barry Goldwater and Congressman Morris Udall. Their
story also convinced President Ford, who signed the bill into law in 1974. Tying
this all together is the fact that the corrupt lawyer, John Boyden, had Peabody
as a client; hence, "Peabody Coal Company's public relations and lobbying firms"
falsely constructing the so called "Hopi-Navajo land dispute."

4 See http://www.colorado.edu/StudentGroups/tsc/deep.html

5 See http://www.angelfire.com/music2/greggwager/landgrab.html

The coal strip-mining on the Hopi reservation is primarily the work of Boyden

client Peabody. In the late 1960s, the Department of Interior attempted to investigate

Boyden's actions, but closed the investigation in the mid-1980s for lack of evidence.
Since then, however, new evidence has come to light. Charles Wilkinson, a distinguished
Professor of Law at the University of Colorado, discovered records showing that

Boyden had represented Peabody in another matter at the same time as he was representing
the Hopis in their negotiations with Peabody.

Then in August of 2004 Group Executive for Peabody's Southwest Operations

John Wasik in a letter to Black Mesa Trust6 acknowledged that John Boyden did do

for Peabody in the 1960s, but "explained" that the work was done after the coal
lease negotiations were approved."[However,] in November 1967, Mr. Boyden wrote
a "Personal and Confidential" statement of work to Peabody 'for work done to date.'
The statement of work went back three years to 1964 during the height of coal lease

In approximately 1970, Peabody began its coal mining operations at the

Kayenta/Black Mesa mine complexes. Although the mine complexes are located primarily
on the Navajo Nation's reservation, the Navajo Nation and the Hopi Tribe are joint
owners of some of the subsurface minerals. 25 U.S.C. § 640d-6.

In 1984, the OSM issued new regulations governing the permitting of mining

operations on Native American lands. The new regulations required permits for all
mining operations, but allowed existing mining operations to continue while awaiting
action on permit applications.

In 1984, Peabody submitted a permit application for the Kayenta/Black Mesa

mining complexes. Between 1985 and early 1990, the OSM was considering the application
and preparing an environmental impact statement (EIS) addressing the Kayenta/Black
Mesa mining operation. The EIS recommended approval of Peabody's permit

6 See http://www.blackmesatrust.org/november%2011%202004.htm

application, subject to special conditions, to ensure compliance with the Surface
Mining Control and Reclamation Act (SMCRA) and other federal laws.

In July 1990, the OSM issued permit AZ-0001C. This permit was limited to the

Kayenta mine. The OSM reserved action on the Black Mesa mine under an

"administrative delay". In August 1990, Peabody challenged thirteen of the special
conditions, including special condition twelve, and filed a request for review.
The ALJ permitted the Navajo Nation, the Hopi Tribe to intervene.

In correspondence to Peabody on February 19, 1991 by David Neslin

7 an Attorney for the law firm Arnold & Porter retained by the Hopi Tribe regarding

River Adjudication and Kayenta Permit Appeal he states regarding the Permit as follows,
"these water issues should not be resolved in the Kayenta appeal. The Surface Mining
Control and Reclamation Act, by its terms, does not affect water rights. Moreover,

United States has represented to you that it will be neutral between the Hopi Tribe
and the Navajo Nation regarding the relative priority of their water rights."

In correspondence to the Secretary of Interior's office on April 23, 1991 by Harris

Sherman8 another Attorney for the law firm Arnold & Porter retained by the Hopi

in the same matters states:

As we explained at last week's meeting, further analysis of the impoundments is
necessary to evaluate the impact of Peabody's mining operations on the hydrologic
system for the purpose of deciding whether to issue a new permit for the Black Mesa
Mine. The decision whether to issue a new permit remains the fundamental issue facing
the Interior

Department: that is what the pending water study will be used for. Under Section
507 and 510 of the Surface Coal Mining Control and Reclamation Act, 30 U.S.C. §§
1257 and 1250, as well as Section 102 of the National

Environmental Policy Act, 42 U.S.C. § 4332(2) (E), the Secretary must look at all
hydrologic impacts in making this decision, .including impacts to both surface and
ground water. Furthermore, the surface and ground

water systems are interconnected in that, downstream from the impoundments, the
N-aquifer discharges into Moenkopi Wash and Moenkopi Wash helps to recharge the
N-aquifer. Thus, from a technical standpoint the two should not be segmented.

The need for further study of the impoundments was highlighted in

testimony at the recent hearing in Peabody Coal Co. v. Office of Surface Mining
Reclamation and Enforcement, No. TU 90-2-PR (U.S. Dep't. of Int., Hearings Div.).
At that hearing, Steve Parsons, a hydrologist for the Office of Surface Mining,
testified on behalf of the Interior Department and in, support of special condition
12 to the Kayenta permit, which

requires Peabody, among other things, to release water from the impoundments and
document the effect of such releases. The condition itself evidences the need for
further analysis of the impoundments and was imposed, in part, for that purpose.
As Mr. Parsons explained:

"There was a general concern (by OSM) that the ···

hydrologic conclusions that were drawn [regarding the

impoundments] were not totally or as well refined as they

should be.

* * * *

There are two main goals [of special condition no. 12]. One

is to maintain the hydrologic status quo, if you will, with respect to the impoundments
of the water that they're containing in an effort to pass that water on downstream,
as well as to better define or refine the effects of those impoundments on the overall
hydrologic system, and thereby reduce the impacts on the hydrologic balance.

After several hearings and after the parties had reached agreement on nine of the
special conditions, the ALJ asked the parties to continue to pursue a settlement
of the

remaining conditions. After extensive negotiations, Peabody, the OSM, the Navajo
Nation, and the Hopi Tribe reached an agreement. On October 24, 1991 DOI Office
of Hearings and Appeals approved the settlement that eliminated Special Condition
SC 12 that required Peabody to treat and release waters impounded by the mine operations.
However the resulting settlement was moot because on July 6, 1995, permit AZ-0001C
was superseded by renewal permit AZ-0001D.

In 1991 Scott Canty, John Boyden's replacement as attorney to the Hopi Tribe,

comes in to the picture.9 On the issue of the Peabody's impoundments in a December
22, 2003 letter to Black Mesa Trust Canty states "The decision draws a distinction
between measures taken to protect adjudicated water rights versus those aimed at
mere water rights claims. While the former are within the OSMRE authority, the
latter are not."10

This statement was clearly contrary to what correspondence to Peabody on

February 19, 1991 by David Neslin an Attorney for the law firm Arnold & Porter retained
by the Hopi Tribe regarding Colorado River Adjudication and Kayenta Permit Appeal
states regarding the Permit as follows, "these water issues should not be resolved
in the Kayenta appeal. The Surface Mining Control and Reclamation Act, by its terms,
does not

affect water rights."

In January 2010, an administrative law judge for the appeals of OSMRE's

approval of the Peabody Western Coal Company's renewal permit application AZ-0001D

for the Black Mesa Complex decided that the Final EIS did not satisfy the National
Environmental Policy Act (NEPA) and vacated the record of decision (ROD) issued

OSMRE on the permit renewal.

Because, in part, the ALJ's Decision finally after nearly 40 years of the United

States ongoing synergistic corruption with Peabody allowing the corporation exclusive
rights to exploit the lands of the Hopi-Tewa and Navajo peoples to extract their
coal and water resources without just compensation may be over.11 This is mostly
because on May 13, 2010 in Hopi Tribe Resolution H-017-201012 "the Tribal Council
hereby terminates the employment contract between the Hopi, Tribe and Mr. Canty
from his employment as General Counsel of the Tribe effective immediately." Finally
a lawfully elected Chairman, Vice-Chairman and lawfully elected council members
have been allowed to be seated without any outside interference by Peabody's agents.
The lawfully instituted Hopi Tribe


See http://www.examiner.com/a-


government terminated Canty for "undermining the rule of law, creating instability
at the highest levels of the Tribe's government, and jeopardizing the safety of
the citizens of the Tribe; and in addition to the, misconduct indicated ..., the
Tribal Council has also determined that Mr. Canty's job performance has been unsatisfactory
and has violated the Tribe's Personnel Policies including the Personal and Professional
Misconduct Policy."

Regulatory requirements

Pursuant to 30 CFR 774.15 Permit renewals (a) General. A valid permit, issued pursuant
to an approved regulatory program, shall carry with it the right of successive

renewal, within the approved boundaries of the existing permit, upon expiration
of the term of the permit. (c) Approval process (1) Criteria for approval. The regulatory

authority shall approve a complete and accurate application for permit renewal,
unless it finds, in writing that- (i) The terms and conditions of the existing permit
are not being satisfactorily met; The existing permit was vacated by the ALJ's order
vacating the ROD.

OSMRE has provided no evidence of enforcement of Special Conditions (SC) 12 to the
KM Permit. SC 12 was supposed to force Peabody to treat and release waters impounded.
(ii) The present surface coal mining and reclamation operations are not in compliance
with the environmental protection standards of the Act and the regulatory program;
The existing permit was vacated by the ALJ's order vacating the ROD. OSMRE has provided
no evidence of enforcement of the Act and the regulation as demonstrated by ALJ
Holt vacating the Black Mesa Complex LOM permit's EIS. (iii) The requested renewal
substantially jeopardizes the operator's continuing ability to comply with the Act
and the regulatory program on existing permit areas; The existing permit was vacated
by the ALJ's order vacating the ROD. PWCC has provided no evidence that anything
has changed for the Black Mesa mine uses which are no longer permitted. (iv) The
operator has not provided evidence of having liability insurance or self-insurance
as required in §800.60 of this chapter; Peabody's liability insurance provides for
only $2,000,000 to "cover all operations at the Black Mesa Complex which includes
Kayenta and Black Mesa Mines for bodily injury and property damage, including damage
from the use of explosives as a result of surface coal mining and reclamation operations."
It also fails to comply with §800.60 since it doesn't cover the entire five year
period for the permit renewal sought by Peabody. (v) The operator has not provided
evidence that any performance bond required to be in effect for the operation will
continue in full force and effect for the proposed period of renewal, as well as
any additional bond the regulatory authority might require pursuant to subchapter
J of this chapter; Peabody has not provided the necessary evidence that its "performance
bond required to be in effect for the operation will continue in full force and
effect for the proposed period of renewal" since it doesn't cover the entire five
year period for the permit renewal sought by Peabody or (vi) Additional revised
or updated information required by the regulatory authority has not been provided
by the applicant. PWCC has provided no evidence that

anything has changed for the Black Mesa mine uses which are no longer permitted
since the existing permit was vacated by the ALJ's order vacating the ROD.

It is extremely clear that the "administrative delay" of the life-of-mine permit

the Black Mesa mine is not being addressed and that the Hopi-Tewa should be in control

of the waters discharged by both the Kayenta and Black Mesa mines. The permit's
renewal application confuses this issue and fails to address the fact that the Record

Decision (ROD) on PWCC's life of mine permit for the so-called Black Mesa Complex
has been vacated and therefore Peabody has no permit for the Black Mesa mine portion
of the Complex.

Since the permit area is located within the following lands of Navajo County,

Arizona that are described relative to the Gila and Salt River Base Meridian, therefore
a new use plan needs to be developed (at a minimum) for T35N, R18E - Sections 13,
14, 24, 25, and 36; T36N, R18E - Sections 1-18, 20, and 22-26; and T37N, R18E -

28, 29, and 32-36.

The Permit needs to also address the water allotment rights of Moenkopi farmers

whose water rights are being adversely impacted by the mine's impounds and water

usage. PWCC's application claims that the Life-of-Mine (LOM) Permit "renewal does
not propose any revisions to the approved mining and reclamation plan and therefore,

there is no need for OSMRE to deny the extension." The LOM Permit was changed substantially
when Peabody succeeded in getting the DOI to nullify Special Conditions

(SC) 12 to the KM Permit. SC 12 was supposed to force Peabody to treat and release
waters impounded from their sediment as a way of keeping hydrologic system (surface

and groundwater water) in balance. As a result of the nullification, no waters are
treated and released down to Moencopi wash. Therefore OSMRE is knowingly letting
Peabody steal Moenkopi farmers' water entitlements.

This is a major revision, contrary to PWCC's and OSM's position. The Proposed

Permit needs to be compared to the Hopi standard and the Hopi standards need to

required when they are more stringent than US EPA's standards, and visa versa when
the US EPA's standards are more stringent. The Hopi Tribe approved Surface Water
Quality Standards in August 29, 1997, and subsequently, the Hopi Tribe has received
Treatment as a State for the purposes of Sections 106 and 303 of the CWA.

The renewal application fails to address the lack of Clean Water Act (CWA)

Section 404 permits for the hundreds of impound ponds. These impounds are part of
the NPDES permit.

According to Hopi Water Quality Standards:

15. Require that surface and ground-water withdrawals do not cause degradation of
unique surface or ground-water bodies.

17. Ensure that ground-water withdrawals do not occur in quantities that will cause
degradation of springs or riparian habitat.

J. Ground-Water Recharge (GWR). Ground-water recharge use means any surface water
that recharges ground water. Surface waters designated as groundwater recharge must
meet the standards for the aquifer being recharged as well as the surface water

Ground-water recharge: The use of a surface water as a source of recharge to ground

Currently the impound waters are being with held from being discharged because the
impound ponds would contaminate the surrounding aquifers with contaminated

ground-water recharge that fails to meet the standards for the aquifer being recharged
and therefore violates the Hopi standards and US EPA must follow Hopi standards
under federal law, i.e., the Clean Water Act.

The Hopi-Tewa and Navajo peoples need water, not oil or coal, to stay alive.

Peabody's devastation of their finite water resources with lacks or non-existent

oversight has now been going on for close to 40 years. Peabody, with permission
of OSMRE, has caused irreparable damages to the Hopi-Tewa and Navajo peoples' waters
and cultural resources that they are hiding from the Hopi-Tewa and Navajo peoples.

This demonstrates a pattern and practice of synergistic corruption between PWCC

and the United States.

Requests for Relief

The Renewal Permit AZ-0001D should not be closed for public comments. US EPA, OSMRE,
and Army Corp permit activities need to be conducted concurrently.

OSMRE relies solely on Peabody's 3-D hydrologic "Model" to assert its claim, that
the model provides "in controvertible technical information" to support the conclusion
that the hydrologic consequences of Peabody's past, present and projected usage
of Navajo Aquifer are negligible. Peabody has never submitted a surface water reclamation
plan. Because of synergistic corruption with Peabody, OSMRE does not require Peabody
to post a groundwater and surface water reclamation plan and bond. The Renewal Permit
AZ-0001D should include a restoration plan for surface and ground water uses by
the mine and require Peabody to post reclamation bonds. The Renewal Permit AZ-0001D
needs to address the lack of Section 404 permits for the hundreds of impound ponds.

Respectfully submitted,


Michael E. Boyd President (CARE)

CAlifornians for Renewable Energy, Inc.


Lynne Brown Vice-President (CARE)

CAlifornians for Renewable Energy, Inc.



Teresa Anahuy

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