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By Ray Stern
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The proposal calls for the construction of an 8,000 acre-foot per year pipeline from Lake Powell to the Black Mesa Mine and then on to the Hopi village of Moenkopi, which is more than 50 miles from the rest of the Hopi villages.
The Hopi and Navajo tribes would each lease 2,000 acre-feet of water to Peabody each year and Peabody would agree to stop groundwater pumping. Each tribe would also receive 2,000 acre-feet for municipal use.
The 2,000 acre-foot allocation would be a veritable tsunami for the Hopi, which uses less than 300 acre-feet of water a year--or about 27 gallons per person.
While the proposal on its face seems to solve many Hopi water concerns, it would come at a tremendous cost.
The Hopi Tribe would be required to commit to pipeline construction about $35 million it is owed in land settlement judgments by the U.S. government and Navajo Tribe. The Hopi would also have to pay $2 million to the Navajo for pipeline right-of-way and waive $6 million in water royalties from Peabody. The tribe would also have to drop a lawsuit seeking a share--potentially worth tens of millions of dollars--of mineral taxes collected by the Navajo from Peabody.
Even with these outlays, there is no assurance there would be enough money to extend the proposed pipeline to the main cluster of Hopi villages. Furthermore, the Navajo Tribe is reluctant to pay its portion of the land settlement--approximately $15 million--to the Hopi. (The $15 million judgment stems from the long-standing Navajo-Hopi land dispute. The money is meant to compensate the Hopi for the loss of Hopi Reservation land that Navajo illegally occupied.)
"Without the Navajo judgments, Hopi is almost $50 million short for the full line," a March 21 report from Hopi attorneys to the Tribal Council states.
Council member Caleb Johnson opposes the settlement, saying the Hopi are giving up too much for a relatively small amount of water. The tribe has long supported the concept of building a pipeline, but has wanted a much larger allotment of water. The tribe also wants the government to pay a greater share of the costs.
"Everybody is getting something except the Hopi people," Johnson says. "We are losing a lot."
The council appears to be split on the issue, Johnson says. The settlement will be discussed and possibly voted on at the April 28 Tribal Council meeting.
Hopi tribal chairman Ferrell Secakuku declined to elaborate on the settlement proposal because he says the terms are supposed to be kept confidential.
The goal of the settlement, Secakuku says, is simple:
"The whole idea is to get Peabody off the aquifer."
The stakes are high for the Hopi.
If they accept the settlement--and other parties, including the Navajo, also agree--the Hopi are looking at a huge financial outlay but a guaranteed long-term surface-water supply. The 2,000 acre-feet of surface water would be nearly seven times the amount the 10,000-person tribe currently uses each year. More important, the settlement would stop Peabody from using groundwater.
If the Hopi reject the settlement, the opportunity to have a pipeline built to Hopi villages from Lake Powell will likely vanish for the foreseeable future. And Peabody will still be pumping groundwater.
To Masayesva, the choice is clear: Reject the proposed settlement.
The tribe, he says, can take legal action against Peabody and the Department of the Interior to force Peabody to stop using groundwater. "If necessary, we can shut down the mine," he says.
While taking such steps could threaten the tribe's major source of revenue, Masayesva is confident that Peabody would develop another water source for its slurry line before closing the highly profitable mine.
As for the surface-water pipeline to the Hopi villages, the costly project causes more problems than it solves, Masayesva says.
"It creates a huge, huge debt obligation for the Hopi. Why should Hopi pay for it?" Masayesva asks. "This is not our problem. We did not create this problem."
Instead, the Hopi should develop other water resources and assert a claim for 50,000 acre-feet per year of Colorado River water and figure out later how to get the water to the reservation. If the tribe obtains the water rights, it could lease the water to downstream users until it needs the water far in the future.
Former Interior secretary Udall agrees that the cost to the Hopi under the proposed Little Colorado settlement is far too high.
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."