On the grounds of Tribal sovereign immunity, yesterday the U.S. 9th Circuit Court of Appeals dismissed an environmental groups’ challenge of federal approval for a coal-fired plant and mine to continue operating on the Navajo Nation. Green organizations had sued the U.S. Bureau of Indian Affairs, claiming the federal decision to approve a 25-year extension on the operation of the Navajo Transitional Energy Co.-owned Four Corners Power Plant in northwest New Mexico and an expansion of the mine that supplies it on Navajo land violated various laws, including the Endangered Species Act and the National Environmental Policy Act, among others. The power plant’s lease runs through 2041.
But the accusations contesting the federal decision omitted the coal plant’s partial owner, Navajo Transitional Energy Co., a for-profit entity wholly owned by the Navajo Nation, which previously purchased an ownership interest in the mine from a private firm, BHP Billiton. Given Tribal reliance on critical revenue and jobs from the plant and mine, it would be unfair to consider the case without Tribal inclusion, wrote Judge Michelle Friedland. And as a Tribal entity, Navajo Transitional Energy Co. cannot be sued, Friedland stated on behalf of the unanimous three-judge panel.
“At stake is an estimated $40 million to $60 million per year in revenue for the Navajo Nation, as well as its ability to use its natural resources how it chooses,” Judge Friedland said.
Appellants included Diné Citizens Against Ruining Our Environment, San Juan Citizens Alliance, Center for Biological Diversity, Amigos Bravos, Sierra Club, and Center for Biological Diversity.
Navajo Transitional Energy Co., owner of Navajo Mine and partial owner of the Four Corners Power Plant, previously emphasized: “The Navajo Mine and the Four Corners Power Plant (FCPP) are cornerstones of the Navajo economy, employing hundreds of Navajo tribal members and providing critical revenues for Navajo public services. If operations at the Navajo Mine and the FCPP were interrupted, the solvency of the Navajo Nation would be threatened, and ownership of the Navajo Mine and other tribal assets almost certainly would be lost.”
Since 1963, Navajo Mine has been a source of well-paying jobs for Navajo and community members. Some employees are fourth generation miners, states NTEC’s website. NTEC purchased the Navajo coal mine in late 2013, and it remains the primary source of fuel for Four Corners Power Plant.
In July 2018, NTEC acquired a 7 percent ownership interest in a couple units of the Four Corners Power Plant from 4C Acquisition LLC, an affiliate of Arizona Public Service Co., the power plant’s majority owner with a 63 percent stake. At the time of purchase, Clark Moseley, NTEC CEO, said: “This is a milestone for NTEC. One of our primary goals has been to manage the assets of NTEC responsibly to allow for growth and prosperity as a Navajo Nation owned enterprise.”
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