BIA withheld Desert Rock information, opponents charge

WINDOW ROCK , April 24, 2008

"Shocked" was the reaction of Omar Bradley, BIA Navajo region director, on Monday to a lawsuit filed against him, the BIA and Interior Department.

Diné Citizens Against Ruining Our Environment and the San Juan Citizens Alliance are suing under the federal Freedom of Information Act on grounds that the federal agencies have withheld documents used in writing a draft environmental impact statement on the proposed Desert Rock Power Plant.

The groups are challenging the draft study's central conclusion that harmful effects to people and the environment would occur but would not exceed tolerable levels.

"I'm shocked," Bradley said of the lawsuit, "because we've been providing them with documents."

He said the BIA had to comply with federal regulations and policies in releasing documents to Diné CARE and the Citizens Alliance, both environmental groups based in Durango, Colo., that oppose Desert Rock.

Bradley declined to comment further on the lawsuit, filed April 2 in U.S. District Court in Albuquerque.

Brad Bartlett of the Energy Minerals Law Center in Durango, lead attorney for the environmental groups, confirmed Wednesday that the BIA had released some of the requested documents.

But Bartlett said a good portion of those documents was redacted - blacked out.

For example, he said, the BIA provided the lease agreement between the Navajo Nation, Diné Power Authority and Sithe Global Power of Houston but most of the document was blacked out.

DPA, a Navajo tribal enterprise based in Window Rock, is partnering with Sithe to develop the $3 billion, 1,500-megawatt power plant, which would burn coal. The lease agreement was approved by the Navajo Nation Council.

Bartlett explained that the important part of the lease was a clear description of the site to be used, and the source of water that would be used by the plant.

The BIA is charged with protecting Native American land and water resources, which is why the BIA bears the chief responsibility for analyzing the possible impacts of Desert Rock, he added.

Bartlett noted that the source of Navajo water to be used by Desert Rock is of the utmost importance because the tribe is pushing Congress to approve a settlement agreement with New Mexico regarding water rights to the San Juan River.

Part of that settlement involves a commitment for $6 billion in federal funds to construct a water pipeline from the river to Gallup. The pipeline would also provide water to Navajo communities in the eastern areas of the Navajo Reservation.

But Bartlett noted that the pipeline route would also pass near the proposed power plant, which will use large quantities of water, raising questions about whether the use of river water is contemplated somewhere in the thousands of pages of fine print.

Sithe and DPA have tested the groundwater at the Desert Rock site and the results show there isn't enough groundwater to meet the plant's need for 6,000 acre feet of water a year over five decades, Bartlett said, referencing testimony given last week by President Joe Shirley Jr. in Washington, D.C.

Diné CARE and the Citizens Alliance share Shirley's concern for the water needs of the Navajo people and the city of Gallup, which is why the groups requested those documents from the BIA, he explained.

And Bartlett said if the water for Desert Rock is coming from the Navajo Nation water settlement with New Mexico, Navajos who still haul their own water deserve to know the impact of Desert Rock.

He said the two groups also sued Bradley, the BIA and Interior over communications with the contractor hired to prepare the environmental study, URS Corp.

It's common for the BIA to contract consultants but the BIA must understand that any communication by the consultant, like itself, is subject to the federal freedom of information law, he explained.

Barlett noted that initially the two groups asked the BIA for any and all communication between the BIA and Sithe.

The BIA responded that it wasn't communicating with Sithe and that URS, as the preparer for the environmental impact statement, was communicating with Sithe, he said.

Barlett said when the groups resubmitted their request for any and all communication between URS and Sithe, the BIA informed them that they couldn't provide the documents because of the working relationship between URS and Sithe.

If URS is really working for Sithe, and URS is under a federal contract with the BIA to prepare the environmental assessment that involves the impact of Sithe's proposed plant to the Navajo Nation and its citizens, then there certainly is a "potential for bias and for the BIA to start over," he said.

He added that the groups are also requesting public records concerning the impact of the Navajo Mine, which would supply coal to Desert Rock.

Diné CARE and Citizens Alliance want to know how many Navajo people were relocated to make way for the mine, operated by BHP Billiton, and how many more would be relocated if it expands production to feed Desert Rock, Bartlett said.

But he said the BIA's response was to ask Diné CARE, a nonprofit grassroots organization, to pay $1,800 in copying and clerical fees. The BIA decided the group was not eligible for the fee waiver provided under FOIA because it would use the information to make money, a position Bartlett called "absurd."

The defendants have 20 days to respond to the suit, meaning a response was due before the court Tuesday. Bartlett said he had not heard anything.

Burt Shirley, spokesperson for Diné Power Authority, was attending a DPA board meeting Wednesday and was unavailable for comment.

Sithe spokesman Frank Maisano said, "The charges are nothing new. They are the same old, tired, conspiracy charges that we have come to expect from project opponents.

"All this amounts to is another delaying tactic," he said. "It's time for opponents to stop throwing the darts at the board, hoping they'll hit something. These tactics have only hurt the Navajo workers and the Navajo people who stand to benefit."

Sithe and DPA recently sued the U.S. Environmental Protection Agency for failure to issue a decision on the application for an air quality permit for Desert Rock.

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