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 continue to dry up, they say, their ancient culture may disappear, too.

First of Two Parts

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 12 millenniums. 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, which lies 100 miles northeast of Flagstaff. "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 which subsists in an environment that gets less than 12 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 adviser.

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 in 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 unfavorable terms of the tribe's 1966 lease with Peabody.

The Hopi have learned 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 now reveal, was literally double-dealing. The costs of his deception are only now becoming clear.

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. 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 50 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 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--particularly Phoenix, Las Vegas and Los Angeles.

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 deeply 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 10th 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 by the angular cinder-block 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 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 70-year-old rancher who regularly makes lengthy pilgrimages to far-flung sacred sites.

Vernon Masayesva, a former tribal chairman, believes that water remains the Hopi's 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 30 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 vice president of operations Gary Melvin.

In the middle of the fray is Secretary of the Interior 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 90 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 Vernon 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, New Mexico, 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 30 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 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 initially 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 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. 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 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. 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 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, which New Times has obtained, concludes that 90 percent of the water in the aquifer is 10,000 to 35,000 years old and 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' draft report, Peabody's Gary Melvin says.

In fact, Melvin says the Peabody data show the recharge rate to be near predictions in USGS models developed in the early 1980s. Peabody's data have 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 sparring over technical (and inherently speculative) hydrogeology reports is likely to continue.

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 show simply 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 former secretary 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 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.

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."

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 convinced 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 University of Colorado law professor Charles F. Wilkinson reveal that Boyden violated the sacred trust he held with the Hopi. He also violated a legal tenant.

"John Boyden's legal files, donated to the University of Utah afer 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."

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.

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.

Next week: John Boyden's legacy.

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