Hada'a Sidi to Fight Peabody Western Lease Amendment

Media Statement
HADA' A SIDI TO FIGHT PEABODY WESTERN LEASE AMENDMENT

The Navajo Nation Council will hold a work session on Monday, December 21st, and then hold a vote the next day, on whether to approve amendments to a Peabody Western Coal Company mining lease. Hadada'a sidi, a Navajo grassroots reform organization, opposes the amendments because there is insufficient public information on its fairness and how it will benefit the Navajo Nation, and the public has not been adequately notified and involved. As is often the case, we aren't seeing transparency and inclusion in the legislative process.
There are problems with the amendment: For example, Peabody Coal promoters promised the people of the Black Mesa and Kayenta areas that the company will help with basic community needs.
They include water, electricity, roads and other infrastructure items. Given that Navajo society is still largely oral, Navajo communities and voters took the coal company representatives at their word and approved leases based on promises for assistance. However such promises are not legally enforceable, and they were not kept. While the central government may get the benefit of coal leasing, the affected communities did not. It is up to Western Agency Navajo Nation Council delegates to vote down any continuation of leasing until that is addressed.
The proposed amendments offer 12.5% of "gross realization" (proceeds from the sale of coal for one mine) and 6.25% for another (where the royalty is split with the Hopi Tribe). The people are not being told what the market rate is or whether the Navajo Nation will be cheated the way it was cheated in the past. We do not know if there were arms-length negotiations and due diligence by Navajo Nation officials.
Peabody Coal cheated the Navajo Nation in the negotiation of a past lease far below market rate.
The Nation brought suit against the United States for breach of its trust responsibility to assure market rate leasing, but the $600 million claim was dismissed on a technicality under a federal statute on government legal liability. There is no discussion of the monies lost for past cheating and no indication that justice will be done given the opportunity of this lease. There is no indication that the $600 million will be paid to the Navajo Nation by the party responsible for the loss.
The proposed amendment provides for scholarships, but such a "gift" takes away from the Council's responsibility to fund them out of coal royalties and other general fund monies. It is the Council's responsibility to determine scholarship needs and funding, and the coal company has no business adding them to sweeten the deal. They are funded out of monies that should go to the Navajo Nation anyway. There is no legislation pending to appropriate scholarship money, so we do not know what the Council intends to do with it.
Is the lease good for the Navajo Nation? It is being renegotiated after the fact because the prior lease expired in 2007. Why is there a wait? There is a signing bonus of $I,555,000 if the Secretary of the Interior personally approves the amendments within thirty days after they are made. Who gets that money? Will it be appropriated for "discretionary funds" yet again? Is this deal good for the Navajo Nation?
There is yet another reason the Council should refuse to act: Navajo Nation law provides for a five member "Navajo Negotiating Team" to represent the Navajo Nation in mineral lease negotiations and make recommendations "for the prudent development of Navajo resources which are consistent with the legal, economic, environmental, cultural, social, labor and resource policies of the Navajo Nation." The Team is required to make reports and recommendations on mineral leases to the
President of the Navajo Nation for review. The reports are then referred to the Navajo Nation Council Resources Committee for action.
Hada' a sidi has reviewed the legislative package for this resolution, and the proposed lease, and there is no indication that it was reviewed by a "Navajo Negotiating Team," with representatives from all five Navajo Nation agencies and submitted to the President for review. There is no showing of any public hearing by a Negotiating Team, any opportunity for public input, or any consideration of local need and how it will be satisfied. No report to the President and Resources Committee is mentioned in the resolution papers, and there is no copy of a report, with findings and recommendations.
One issue on the table-where there is a lot of talk and no action-is how rehabilitation of the former Bennett Freeze Area will be funded. A negotiating team report might hear public input on that, and make findings and recommendations, of the law was followed.
Hada'a sidi puts the Navajo Nation Council on notice that if it goes forward with this lease without adequate public input and without satisfying the law, there will be a suit to block implementation of the lease.
For more information, contact:
James W. Zion
(505) 389-9549
JZion@aol.com