A People Betrayed

Recently discovered documents indicate that the lawyer who represented the Hopi Tribe in crucial negotiations with Peabody Western Coal Company was working for the mining company at the same time

In September 1965, Boyden wrote Phelps expressing concern that the plant was going to be located in Arizona, near Page, rather than in Utah. The letter clearly underscores Boyden's partnership with Peabody. "Does this mean we are abandoning the possibility of locating the plant in Utah?" Boyden asks.

Perhaps the most revealing letter in the file is a November 1967 letter marked "Personal & Confidential" from Boyden to Phelps in which Boyden states: "I am enclosing a proposed statement to Peabody Coal Company for my work done to date."

The letter requests payment for work dating back three years, to 1964--the year the Hopi, under Boyden's direction, granted Peabody an exploration permit on Black Mesa. The billing itemizes numerous phone calls between Boyden and Phelps as well as a dozen conferences with state and federal officials and private businessmen on Peabody's behalf.

The records do not reveal how much Peabody was paying Boyden for his services, which continued through at least 1971.

New Times faxed copies of several of Boyden's letters to Peabody officials at their Flagstaff headquarters, seeking comment. The company's response confirms that Boyden worked for Peabody during the period (1964-66) in which he negotiated the Black Mesa coal lease on behalf of the Hopi Tribe.

At the same time, Peabody denies Boyden represented the company during lease negotiations with the Hopi.

"The copies of correspondence you sent to us relate to an exploratory project near the Navajo reservation in Utah that had no connection to the Hopi Tribe," Peabody spokeswoman Beth Ulinger states.

Ulinger incongruently adds: "Mr. Boyden did not represent Peabody during the negotiation of the Arizona leases, and we have no knowledge or information to suggest that Mr. Boyden did anything inappropriate."

Boyden's son, Stephen Boyden, also says his father "wasn't representing Peabody at the same time he was representing the Hopi Tribe."

After an initial interview, New Times faxed a copy of John Boyden's 1967 Peabody billing statement to Stephen Boyden for his review. Stephen Boyden, an assistant attorney in the Utah Attorney General's Office, declined to return repeated phone calls seeking comment on those documents.

Legal ethicists say an attorney should, at the very least, fully disclose any potential or actual conflict of interest to a client. There is no indication that Boyden ever disclosed to the Hopi Tribe that he was also representing Peabody in the crucial years leading up to the 1966 signing of the Black Mesa coal and groundwater leases.

Boyden's representation of Peabody and Hopi at the same time is harshly viewed by legal experts.

"Clearly, it is manipulative and duplicitous," says David Goldberg, director of Arizona State University's School of Justice Studies. "No doubt there was misrepresentation, at the least withholding information to one side that was in some way directly or indirectly made available to the other."

Wilkinson's documentation has convinced at least one key player in the coal rush that Boyden betrayed the Hopi. Former Interior secretary Stewart Udall says Boyden's actions raise serious questions about the lease--particularly the use of groundwater to transport coal to the Mohave Generating Station.

Federal reports show sharp declines in groundwater levels attributed to Peabody's pumping. The Hopi say numerous springs and washes have diminished flows because of Peabody's water pumping. The aquifer is the primary source of water for the Hopi, who have no flowing rivers on their reservation.

The Hopi want Peabody to stop pumping groundwater and obtain water for its slurry line from another source.

Udall says the water issue must be addressed by the current Secretary of the Interior Bruce Babbitt, particularly since Boyden had a conflict of interest at the time the lease was first negotiated.

"I'm not [saying] this to put Secretary Babbitt, my friend, on the spot," Udall explains. "I'm doing this because I think the decision is secretarial. . . . If he looked at it and saw the evidence with regard to Mr. Boyden and what he did, then that would weigh pretty heavily on his mind."

Babbitt's office remains silent on the issue.
If Udall's suggestion isn't heeded, legal action by the Hopi appears likely.
"I imagine the tribe and their attorneys are reviewing the situation to see if they can bring a suit to void the lease because it was obtained by fraud," Wilkinson says.

"It is my strong sense that the Hopi would want to consider that suit," he adds.

Hopi tribal attorney Reid Chambers declined to comment on the tribe's legal options.

Boyden, Wilkinson explains, not only had a conflict of interest. He also failed to help the Hopi capitalize on the powerful economic lever the tribe had at its fingertips.

Black Mesa, Wilkinson says, was essential to one of the most important political and economic developments in Arizona history--the Central Arizona Project.

Ever since the idea was hatched in the 1940s, the Central Arizona Project was embraced by Arizona politicians from both sides of the aisle. Arizona wanted to tap its share of Colorado River water that was being used by California.

In 1963, the U.S. Supreme Court allocated 2.8 million acre-feet of Colorado River water to Arizona each year. To put that water to use, Arizona needed a canal to bring water to the farms, businesses and communities in and around Phoenix and Tucson.

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