Let Hopi voters have a say on proposed water rights settlement agreement

Water is Life. Water is Sacred. Life is Sacred. These are the teachings of our elders. For us, Hopi Senom, water is central to our life, our prayers, our ceremonies and our songs because it sustains life and all living things. We have a covenant with our caretaker, Maasau, to protect, conserve and use our natural resources wisely. Other Indian tribes have similar teachings.

We have the most pristine water source on our reservation - the Navajo Aquifer (N-Aquifer). It is our (Hopi and Navajo) primary source for drinking water. The massive N-Aquifer lies underneath our reservation and over 90 percent of it is over 10,000 to 35,000 years old. The N-Aquifer has been at the center of much controversy over the years. The state of Arizona, Peabody Coal, owners of the Navajo Generating Station and the federal government all want water from our N-Aquifer.

The Peabody Coal Company pumped over 3.3 million gallons of this pristine water every day to slurry coal to the Mohave Generation Station, over 275 miles away, until it was stopped and the power plant shut down operations in 2005. When Peabody Coal started mining our coal in the mid-1960s, it paid Hopi only $1.67 per acre foot of water when the Arizona Power Utility was paying the Gila River Indian Community $20 per acre foot, and the Central Arizona Project water rates for industrial use were $50 per acre foot at the same time. An acre foot of water is about 326,000 gallons of water (about the size of a football field, one foot deep).

It was the Hopi and Navajo tribes that forced Peabody to stop pumping water from this aquifer. Today, our coal is mined on Black Mesa by Peabody Coal and sold to the Navajo Generating Station (NGS) for production of electricity. NGS then sells the electricity to utility companies like the Arizona Public Service (APS). APS recently announced it made a 26 percent profit last fiscal year due, a large part, to our water and coal. That is why they want our water and our coal.

In 1966 when Hopi Tribal Council accepted the coal lease with Peabody Coal, it agreed to a certain amount of water to be developed for Peabody's mining operations. The Navajo Nation also entered into two leases with Peabody Coal with similar provisions. Because of Hopi's objections to the pumping of the N-Aquifer for coal operations, the Hopi lease provided a special provision requiring Peabody, at its sole expense, to find an alternative water source when the Secretary of Interior determines the operation of wells by Peabody is endangering the supply of underground water or so lowering the water table that other users of the water are being damaged.

While the water table and water quality in the N-Aquifer have been threatened, and our sacred springs have or are drying up, Peabody still has not complied with its lease obligations nor has our federal trustee, the Department of Interior, intervened and required Peabody to comply with the lease. In fact, Peabody Coal and the federal Office of Surface Mining, Reclamation and Enforcement (OSMRE), our federal trustee and oversight agency, and others claim in several reports like OSMRE's Cumulative Hydrologic Impact Statement (CHIA) and Peabody's Probable Hydrologic Consequences (PHC), that there have been minimal or no impacts to the N-Aquifer.

The Agreement-in-Principle for the Northeastern Arizona Indian Water Rights Settlement Agreement (NAIWRSA) is now before the Hopi Tribe for consideration, and if agreed to, will allow the U.S. Congress to consider the NAIWRSA for passage. The Navajo Nation has already agreed to the Agreement-in-Principle.

The proposed settlement provides for water rights claims on the Lower Basin of the Colorado River and the Little Colorado River. It proposes to quantify water rights for the Hopi Tribe, Navajo Nation, and for many other water users (thirty-three parties in total). It also provides for a Western Navajo Pipeline to deliver Colorado River water to Hopi and Navajo communities. But recently, Senator Jon Kyl (R-AZ) imposed on the parties to find ways to reduce the cost of developing this pipeline. In time, the pipeline may become cost prohibitive to make the pipeline a reality.

The tribes are being pressured to agree to the proposed Agreement-in-Principle but the Agreement contains dangerous provisions for "waiver and release of claims for water rights, injury to water rights, and injury to water quality from time immemorial and thereafter, forever..." This means the tribes cannot file claims for all past, current and future damages to our groundwater resources.

Recently both Navajo and Hopi agreed to settle the Racketeering Influenced and Corrupt Organizations Act (RICO) lawsuits with Peabody Coal, Salt River Project and Southern Cal Edison. Navajo settled for $65.0 million while Hopi settled for a mere $6.0 million, a far cry from the $1.8 billion lawsuit filed in 1999 by the Navajo Nation. Hopi intervened in the suit later in 1999. The RICO suit was filed because the tribes claimed they should be receiving coal royalties at current fair market prices (20 percent instead of 12.5 percent at that time).

Why is the federal government, Peabody, Salt River Project and others suddenly pushing the two tribes to settle the lawsuits and agree to the proposed Agreement-in-Principle? Could it be because of recent findings challenging their claims that there are no damages to our aquifers? Could it be that these entities want to avert a potentially large damage lawsuit by the tribes?

Hopi voters should have a say in the proposed water rights agreement. Our water is sacred and is central to our ceremonies and to who we are as Hopi Senom. Our sacred springs are drying up and our drinking water is contaminated and the N-Aquifer has been severely impacted due to over-pumping by Peabody Coal.

The proposed Agreement is complicated and will affect us as sovereign nations forever, yet little or no effort is made by the current tribal council and administration to educate tribal members on what is proposed in this Agreement. Do you have faith in the tribal council to make informed decisions for us? The tribal council and administration may have already compromised any leverage we may have to file claims for damages to our resources by agreeing to the RICO lawsuit.

Hopi Senom have a right to decide if the proposed Agreement-in-Principle should be approved. This can only be done through education and a Public Referendum so Hopi voters can decide.

Benjamin H. Nuvamsa

Former Hopi Tribal Chairman

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