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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 U.S. Geological Survey 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.
New Times repeatedly sought interviews with Department of the Interior officials to discuss Peabody's groundwater pumping. Babbitt's press secretary, Mary Helen Thompson, promised on several occasions to get "somebody" to talk about the issue, but she didn't.
Hopi attorneys' requests have gotten nowhere with Interior.
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 the fact 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.
NRDC has hired a hydrogeologist to study groundwater reports covering many years. NRDC 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 Tribe show the cost of building a pipeline capable of transporting 4,400 acre-feet of water a year from Lake Powell to 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.
Although that alternative is being studied, at Babbitt's request it has been been lumped in with a complicated and contentious Little Colorado River water-rights case that dates back 20 years.
Water-rights cases are notoriously long-lived. The issues are complicated, the stakes are high and there is little motivation to settle disputes.
This scenario holds true for the Little Colorado River case. For three years, an array of interests fighting for water rights to the Little Colorado River has conducted court-ordered settlement negotiations.
Apache County Superior Court Judge John Minker has given the parties until May 2 to reach a settlement. If no agreement is reached, Minker has said he'll throw the case back into litigation.
The May 2 deadline places tremendous pressure on the Hopi Tribal Council to accept or reject a proposed settlement package of Little Colorado River rights that includes building a Lake Powell pipeline to Peabody's mines and the Hopi and Navajo reservations. The settlement framework was offered by Apache County Judge Michael Nelson on February 25.