'Tell Peabody to fly a kite'
Former Chairman McDonald says Navajos 'must control' their water

By Kathy Helms
Diné Bureau

Peter MacDonald

WINDOW ROCK — It's time the Navajo Nation stood up, grabbed the reins of a runaway horse, and took the matter of tribal water rights into its own hands, according to former Navajo Nation Chairman Peter MacDonald.

Speaking at a "Water for Din NOT Peabody" public education and awareness meeting in Dilkon Monday afternoon, MacDonald who has a history with water rights told the group his position is: "Anything that has to do with the C-aquifer, or any aquifer for that matter, is that the Navajo Nation must control everything.

"To begin with, Navajos should control and undertake the study themselves, pay for it. Navajo should not only do a study, but develop the well and own it. Thirdly, the Navajo Nation must control the usage and allocation of that C-aquifer.

"If anybody wants to use that water that the Navajo Nation developed, then it's up to the Navajo Nation how they're going to allocate that." If Mohave Generating Station or Peabody want water, he said, "Then, 'OK, how much are you willing to pay?'

"Charge for the use of the water. That's the bottom line so far as I'm concerned, and it's doable," MacDonald said. "It's doable all the way around. And there's no reason why the Navajo Nation should beg and beg and kneel down to MGS and Southern California Edison and Peabody. They don't need to do that."

A confidential draft of a Mohave mediation document which recently came to light apparently was intended as a consensus document to be used as a basis for a final agreement among parties involved in keeping Mohave Generating Station open and Black Mesa and Kayenta mines operating.

The draft document calls for approval by Congress of Navajo and Hopi coal leases and grants under new legislation called the "Navajo-Hopi Coal Leasing Settlement Act," and also assumes the U.S. Bureau of Reclamation will operate the C-aquifer project.

At Monday's meeting, members of Din Care, C Aquifer For Din, and other grassroots groups and community members from Dilkon, Leupp, Tolani Lake, Teesto, and Birdsprings called for "no more secrecy and no more water deals."

If Mohave reopens, the tribes would agree to drop the RICO and Arizona lawsuits worth up to $600 million. The lawsuits were filed by the Navajo Nation, which was later joined by the Hopi Tribe, against Peabody for illegally influencing the U.S. government not to increase coal royalties in the 1980s.

Also according to the negotiating document, the tribes would not be allowed to impose any new taxes on the area where the C-aquifer wells and pipeline will be, or to develop uses that might interfere with C-aquifer water use. All claims for damages to the Navajo aquifer will be dismissed and MGS and Peabody held harmless.

The Natural Resources Defense Council recently released an updated study which it says is based on the federal government's own records and shows the N-aquifer already has been impacted on Black Mesa. Peabody says the aquifer is in good health.

No fear
MacDonald said he was "shocked and surprised" at the Mohave sequence of events and how it has unfolded because of the history of Navajo. "If you just go back not even 100 years, Navajo leaders of the past, without fear, they took on the United States government for what they believed was rightfully theirs. And without fear they took on states as well as BIA (Bureau of Indian Affairs) and giant corporations.

"The taxation that we started back in 1975, we knew the corporations would take us on. Sure enough, when we enacted that tax law, 22 corporations filed a lawsuit against us. They teamed up together. Not only did they file a lawsuit against us in Arizona District Court, 9th Circuit, but they also filed, quoting the same lawsuit, in Albuquerque federal court, 10th Circuit Court.

"Then they did the same thing in federal court in Salt Lake City. So we had three courts and they knew they would run us ragged or (we would) back off because we would say it was too expensive," he said.

But the Navajo Nation was undaunted. "We beat them in Arizona District Court, we beat them in Albuquerque Federal District Court, we beat them in Utah Federal District Court with one exception. The federal district court in Salt Lake City said, 'Yes, Navajo Nation has a right to tax with one exception provided that the Secretary of Interior agrees that they should tax'," MacDonald said.

"Our position was, 'No, we don't need anybody's approval.' So we appealed that particular decision, the Salt Lake City decision, in the 9th Circuit Court in San Francisco, and obviously we won that. Then all of the major energy companies, they dropped out."

Navajo leaders of the past stood strong, according to MacDonald. "They didn't shake in their boots when the government or the states or BIA or corporations were coming at them. They stood their ground.

"I think the reason they stood their ground is they knew who they were and they knew where they came from, what was theirs and belonged to them. That's why they didn't want to make a deal. There was no dealing to be made," he said.

"I don't see why we need to jump with fear every time New Mexico or Arizona or any of these states, or MGS or Peabody say something. Everybody starts shaking in their boots and then they say, 'OK, what else do you want?' "

Keeping Mohave and Black Mesa up and running is worth 400 jobs and $25 million to the Navajo Nation, according to MacDonald.

"Four hundred jobs could be gotten within 90 days if you work at it. And $25 million? I hear council delegates running around, saying, 'One casino will give us $50 million a year.' So, why shake in your boots when all you need to do is develop one casino and you get $50 million? Unless they're not telling us the truth.

"But if a casino is going to give us $50 million a year, that's twice as much as what Peabody is giving us in royalty for coal right now. I would rather keep the coal and tell Peabody to go fly a kite," he said.

"I imagine the word out all over the Southwest is, 'Just tell the Navajos they're going to get jobs, they're going to get some royalty, and you get whatever you want.' I think it's time we get away from that. We could have jobs without those people. We could create our own jobs with the same project, but it would be ours."

Go for the gold
MacDonald said a project such as the Desert Rock Energy Project is self-financing. "Why do you want to just lease it to somebody? If it's good, why not let the Navajo do it? They say, 'Well, we cannot finance.' That's bologna. The people that are going to put that power plant together don't have a billion dollars. They're going to have to get it financed just as we would have to have it financed," he said.

"They're going to collateralize the project. The project is self-financing. In other words, the amount of coal that's going to be used, the water, all of that is financeable. I'm sure they're going to use the project as a big part of the collateral to get their finances. Any tribe could do that," he said.

The Resources Committee of the Navajo Nation Council is to meet this week in Phoenix with Sithe Global Power LLC and Din Power Authority in a possible executive session work session to hammer out questions regarding a proposed business site lease for the Desert Rock Energy Project. Resources recently tabled the legislation.

Of the Mohave negotiations and development of the C-aquifer project to slurry coal, MacDonald said, "People talk about Enron as the poster child for fraud. Well this project here, the C-aquifer business, is worse than that.

"It's time we get serious about this water thing. My suggestion is for them (Navajo Nation) to get rid of the amateurs that they have working on water. These people are kindergarten kids compared to people that we need that can play in the Super Bowl."

To do the litigation, he said the tribe has to get good witnesses, including traditional elders. "While they are still with us, they need to get their statements. They need to use them because a lot of our rights and sovereignty is based on Navajo history, Navajo culture, our legends and traditions," he said.

Also needed are top engineers, scientists, and anthropologists. "I don't mean just the local ones. I mean world-renowned anthropologists, world renowned geologists, international water experts not some of these guys running around saying I'm an Indian water expert," MacDonald said.

"You don't need Indian water experts, per se. You want international water experts, economists and agriculturists. The last person you want to testify for you is a lawyer. The only time you need a lawyer is when you're looking for a loophole. That's all they know, how to find loopholes. In some cases they don't even know how to do that," he said.