Diné Power wants control over all energy projects

Copyright © 2009
Gallup Independent
By Kathy Helms
Diné Bureau

WINDOW ROCK — Legislation to broaden the scope of Diné Power Authority’s role and responsibilities will move on to the Economic Development Committee and Ethics and Rules without recommendation from the Resources Committee.

The legislation was presented to Resources this week but died for lack of a second to a motion made by Harriett Becenti.

The proposal also failed to receive an endorsement from the Navajo Nation Department of Justice. In a Dec. 23, 2008, memorandum, attorney Karis Begaye said the department does not recommend approval of the proposed plan of operation because of a number of concerns.

The primary issue is Diné Power Authority’s proposition to obtain exclusive authority over the development of all wholesale energy projects for the Nation.

“This proposal shall require that any developer or proposal for any energy project, non-renewable and renewable, for or on the Navajo Nation shall be facilitated through DPA,” Begaye wrote. “This is a drastic shift from the original intent of the creation of DPA, which was for the purpose of development of a major coal-fired electric generating station.”

The Office of Management and Budget also raised concerns about the plan in a July 2007 memorandum, saying the changes might not be desirable because the broadened scope might overlap with Navajo Tribal Utility Authority.

The plan additionally would strip the Navajo Nation Council’s power to be the final authority on further amendments or changes to DPA’s plan of operation.

Steven Begay, Diné Power Authority general manager, said that if passed, the final authority would rest with Economic Development Committee. “The Resources Committee would recommend and the EDC would have final approval,” he said.

Norman John II, a member of the committee and sponsor of the legislation, said DPA wants to have rights to all energy, not just coal-fired. “We’ve been at this thing almost 19 months and I don’t know why DOJ was sitting on it. That kind of upsets with the process how the executive branch is dealing with this. I guess it’s going to be up to Economic Development and Navajo Nation Council if they want to have changes.”

John also took issue with a memorandum from Vice President Ben Shelly in which he designated the Division of Natural Resources, with Resources Committee oversight, to be the Nation’s lead agency for energy development.

“I don’t think the vice president has the authority to say that, unless the president says with executive order,” John said.

Navajo Nation Department of Justice’s Begaye, citing a Nov. 12, 2008, opinion from Attorney General Louis Denetsosie, said Diné Power Authority is the primary authority for wholesale energy development on a designated project if the Navajo Nation will be an equity interest holder, “but not the exclusive authority.”

The Minerals Department is granted the authority to review all energy-related rights of way and negotiate on behalf of the Navajo Nation. “The authority DPA is requesting is to coordinate energy development on behalf of both the Resources Committee and the Division of Natural Resources, which is in contravention of their current authorities,” Begaye said.

Decisions on the Nation’s investment, use and development of resources, including both natural and monetary, should remain under the authority and decision of the Navajo Nation government, Begaye added. “The rationale for this opinion is simple, which is what may be in the best interest of DPA may not always be in the best interest of the Navajo Nation.”

Giving Diné Power Authority power over wholesale energy businesses on behalf of “all Navajo Nation entities,” would grant DPA exclusive authority over all divisions and departments, as well as the Navajo Nation Council and its standing committees.

“This means that any energy project the Navajo Nation pursues directly through any governmental body must be facilitated through DPA. The only role the Navajo Nation will play is issuing the necessary leases and other agreements for development,” Begaye said.

Another section provides that Diné Power Authority will receive capital contributions of natural resources and land, including rights of way from the Nation and that Diné Power Authority will provide a return on the investment based on the value of those resources to the Nation.

The language of these sections is “overbroad, vague and ambiguous,” she said, and could be used to argue that Diné Power Authority does not have to pay for rights of way.

One section provides that Diné Power Authority does not have to comply with Navajo Nation laws and regulations so long as it acts “consistent with” such laws and regulations.

Begaye said DPA should be on the same footing as any other business entity doing business on Navajo and “should not only be bound by Navajo Nation laws, but it should pay the fair value determined by the Minerals Department for the use of land and natural resources.”

The department also is concerned with Diné Power Authority’s ability to adequately carry out any exclusive authority. “DPA has spent an enormous amount of time, effort and resources on the Desert Rock Energy Project, with still much left to do,” she said.

Presently, there are several proposed large- and small-scale renewable energy projects that the Nation is pursuing throughout the five agencies. “The concern is whether DPA has the resources, such as employees, funds, etc., to spearhead all these projects,” she said. Most tribal enterprises do not have exclusivity in any specific area, she added.

Later this month, the Navajo Nation Council will consider whether to assign rights of way to Diné Power Authority so that they can then be assigned to Sithe Global Power’s Desert Rock Energy Co. for the Desert Rock Energy Project.