A federal appeals court rejected the challenge by environmental groups Monday to block expanded mining on an open pit coal mine located on the Navajo Reservation and powering the Four Corners Power Plant.
The 9th US Circuit Court of Appeals ruling stems from the sovereignty of the Navajo Nation holding that the curtailing of mining would deprive the tribe of a source of significant funds and that the Navajo Transitional Energy Company, (NTEC), an arm of the Navajo Nation, could not be forced into the lawsuit.
The Navajo Mine is a 33,000-acre strip mine that produces coal for the Four Corners Power Plant to generate electricity. The mine, power plant and transmission lines were built across Navajo and Hopi tribal lands and have operated since the early 1960s.
The power plant is owned by several utilities, including New Mexico, Tucson, Salt River and an Arizona public service company. They are subject to a lease agreement dating from 1960 with the Navajo Nation, and it serves as a key source of revenue for the nation, generating between $40 million and $60 million annually for the Navajo.
In 2011, the Navajo and Arizona negotiated a lease extension to 2041. The NTEC also planned to buy the mine outright with a $115 million line of credit in 2016.
By April 2016, conservation groups sued the Bureau of Indian Affairs, the Bureau of Land Management, Fish and Wildlife and the Dept. of Interior, arguing that the extension of mining violates the Endangered Species Act and the National Environmental Protection Act. They called for environmental reviews.
NTEC argued that it was required to be a party to the litigation to resolve the dispute but that it could not be forced into the litigation because of its sovereign immunity as an independent tribal nation. The appeals court agreed.
The question at this stage must be “whether the litigation threatens to destroy an absent party’s legal entitlements,” wrote Judge Michelle Friedland for the unanimous three-judge panel. Only the tribe has power to seek review of environmental impact statements covering its leases.
She added it is for Congress, if it sees fit, to address whether to limit the tribe’s sovereign immunity.
Friedland was joined by Judge Sandra Ikuta and visiting judge Frederic Block of New York.
Case: Dine Citizens Against Ruining Our Environment v. BIA, No. 17-17320