Black Mesa Trust sues Office of Surface Mining

KYKOTSMOVI- Black Mesa Trust is offering its support to Hopi tribal members on whose behalf a lawsuit has been filed against the U.S. Interior Department's Office of Surface Mining (OSM).

The class action lawsuit alleges that OSM violated traditional Hopis' religious freedom when the office scheduled the comment period on the Draft Environmental Impact Statement (DEIS) for the Black Mesa Project during January and February, a period during which Hopi religion requires that people attend to their religious obligations to the exclusion of public matters.

"I had to find someone to take over my responsibilities so I could go to the hearing," said Jerry Honawa, a Hopi religious practitioner and a named plaintiff in the lawsuit. "And then it was not even a hearing," he continued. Honawa referred to the hearings on the DEIS held by OSM on Hopi and Navajo and in surrounding towns during the comment period.

Honawa is particularly disturbed by OSM's selection of Alternative A, which allows unlimited use of Navajo aquifer (N-aquifer) water for the Black Mesa mining operation if a proposed project to bring water from the Coconino aquifer (C-aquifer) south of Interstate 40 to the mine falls through. He is upset not only by OSM's refusal to respond to his concerns at the hearings, but to the size and complexity of the document on which he was trying to comment. "It is 758 pages," he said. "I don't think anyone on the Hopi Tribal Council has read the entire document. They are just going along with whatever OSM says."

The lawsuit alleges that OSM violated both the First Amendment of the U.S. Constitution and the provisions of the Religious Freedom and Restoration Act (RFRA) by knowingly and deliberately scheduling the comment period in the middle of the Hopi religious calendar. "There is no exceptionally compelling state interest in requiring traditional Hopis...to choose between honoring their religious beliefs and practice and grappling with reading, analyzing, understanding, and [commenting] on a massive, complex, 758-page draft environmental impact statement on the Black Mesa Project during the religious portion of the Hopi calendar," read the papers filed with the U.S. District Court, District of Arizona on April 16.

The length and complexity of the document are also issues for Black Mesa Trust executive director Vernon Masayesva. "The draft EIS is not written in language that [everyday] people can understand," he said. "That is in direct violation of the principles of the National Environmental Protection Act. Not only was the comment period scheduled at an inappropriate time, but OSM insisted that our comments be 'concise' and refer to specific sections of the EIS. But their [own] document does not meet the 'concise' standard, and by not writing it in comprehensible language, OSM made it impossible for us to comply with their [emphasis added] requirements."

The lawsuit also alleges that OSM's actions violated the terms of the Treaty of Guadalupe-Hidalgo. Under Article IX of that treaty, by which Mexico ceded to the United States the traditional lands of the Hopi people, "...the United States of America agreed that the people residing in the territory acquired under that Treaty would be accorded the rights of citizens of the United States, including the right to be 'secured in the free exercise of their religion without restriction,'" the lawsuit reads.

Black Mesa Trust is a non-profit grassroots organization founded to protect the N-aquifer on Black Mesa for future generations of Hopis and Navajos. For more than three decades, Peabody Western Coal, the world's largest coal mining company, used water from the aquifer to slurry coal from the Black Mesa Mine to the Mohave Generating Station in Nevada.

Mohave eventually shut down at the end of 2005 because its owners failed to comply with a consent decree ordering them to install pollution control equipment. The formerly coal-fired plant remains closed, however, OSM has continued with the EIS process, possibly to make the power plant more attractive to potential buyers.

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