Speaker pro tem rules NGS legislation 'out of order', citing Title 18
By Alastair Lee Bitsoi
WINDOW ROCK, March 1, 2013
Speaker Pro Tem Elmer Begay ruled the 25-year lease extension legislation for Navajo Generating Station out of order Thursday night during the Naa'bik'iyati' Committee meeting.
The decision from Begay (Dilkon/Greasewood Springs/Indian Wells/Teesto/White Cone) came after many Council delegates voiced concern that President Ben Shelly's appointed Navajo Taskforce Group, which negotiated the lease extension on behalf of the tribe, violated provisions under Title 18 of the Navajo Nation Code.
Council Delegates Alton Joe Shepherd (Cornfields/Ganado/Jeddito/Kin Dah Lichii/Steamboat) and Dwight Witherspoon (Forest Lake/Hardrock/Kíts'iili/Pinon/Whippoorwill) cited Title 18 during debate, saying that tribal law requires that a mines and minerals negotiating team be appointed by the "president of the Navajo Nation and confirmed by the Government Resources Committee of the Navajo Nation Council."
They also said that provisions under Title 18 also require the 10 member negotiating team to include two members from the Resources and Economic Development Committees of the Navajo Nation Council.
Shelly's Navajo Taskforce Group, which was appointed when he took office two years ago, didn't include a single member from the 24-member Council's Resources and Development Committee, nor was it ever confirmed by the Government Services Committee, or in this case, the Naa'bik'iyati' Committee.
"There was no Council that participated in the negotiating team," Witherspoon quipped. "That's a flaw in the negotiations. I know that Delegate Shepherd is essentially using the law to bring up an issue that we as a Council were not party to to the negotiations."
Witherspoon said he approached Shelly more than two times about how the negotiation team would me made up. He added that at the NGS lease extension work session on Feb. 22 held at Fire Rock Navajo Casino, the Council was informed they only had a "yes or no" input on the legislation.
"We have laws," said Shepherd in a point of order to Navajo Attorney General Harrison Tsosie. "It's this body that confirms those appointments."
Under the 1969 least negotiations, the owners of NGS - Tucson Electric, Nevada Power, Arizona Public Service, Los Angeles Power and Water District, Salt River Project and the U.S. Bureau of Reclamation - have the option or legal right to ask the tribe for lease negotiations, according to Harrison Tsosie.
The attorney general was explaining how the creation of the three-branch government in 1989 allows a tribal president to issue executive orders, including the appointment of a taskforce negotiating team like Shelly's.
"In reference to the section you're quoting which is in Title 18 of the Navajo Nation Code, there is some history with this also," Tsosie added. "And the history that we first need to remember in 1989Éat the time there was a lot of transition and this particular reference to Title 18 was developed in 1985 for a very specific purpose."
Tsosie also said prior negotiation teams were never assembled according to Title 18, such as the negotiating team that negotiated the lease extensions for Four Corners Power Plant. The Council approved FCPP's lease extension on Feb. 15, 2011.
"I don't know where the AG is coming from," Shepherd interjected. "The books are here, the laws are here. For him to change my mind to say that this was written way back then, ÔWe're not going to abide by it.' We have laws."
"The taskforce is really nothing," Shepherd added. "The team that should be established is the one we need to listen to. Anybody could be the taskforce."
Council also hasn't amended Title 18 and will need to change "Government Services Committee" to what is now the Naa'bik'iyati' Committee and "Resources and Economic Development Committees" to the Resources and Development Committee during a regular Council session to meet its newly adopted legislative structure as a 24-member Council.
Shelly's Navajo Taskforce Group, which came under fire by the Council, consists mostly of executive branch employees and lawyers from the Navajo Department of Justice.
The taskforce includes Navajo Attorney General Harrison Tsosie, leader of the negotiating team; Fred White, division director for the Division of Natural Resources; Sam Woods from the Office of the President and Vice President, Navajo DOJ Attorney Marcelino Gomez; Navajo Environmental Protection Agency Director Stephen Etsitty; Tax Commissioner Martin Ashley; and Akhtar Zaman and Ram Das, both from the tribe's minerals department.
Navajo DOJ Attorney Bill Johnson is no longer part of the negotiation team, according to Tsosie.
For those reasons spelled out in the tribal code, as well as what many other Council delegates, namely Katherine Benally (Chilchinbeto/Dennehotso/Kayenta) and Roscoe Smith (Crystal/Fort Defiance/Red Lake/Sawmill), thought is an important matter that should not be "rushed," Begay ruled the lease extension legislation "out of order."
"What's the rush," Benally asked her colleagues, before adding in Navajo, "Hozhoo dooleel."
She also added that Title 18 is clear in its meaning.
"We have to abide by the rules, abide by the laws, and make sure we turn every stone and make sure we're all satisfied," she said. ÊÊÊ
Some Council delegates, particularly Duane Tsingine (Bodaway-Gap/Coppermine/K'ai'bii'to/LeChee/Red Lake-Tonalea) and Lorenzo Curley (Houck/Klagetoh/Lupton/Nahata Dziil/Wide Ruins), didn't agree with the rationale behind the sudden use of citing Title 18 for assembling the negotiating team.
Both delegates tried last minute attempts to prevent the legislation from being called out of order.
"This is a very good deal in this day and age that we're negotiating," Tsinigine said. "In 1968, we did not negotiate. It was the federal government that wrote this for us."
Tsinigine added, "I asked the attorney general if the delegates want to be on the negotiation team, which I think is too late, can we extend this another month or two to get them on the negotiation teamÉthis power plant and Navajo Generating Station has to pass."
Curley echoed similar thoughts, saying he was surprised his colleagues "pulled out" Title 18 to complain about it not being adhered to.
"The way I see it is we're not certain about a lot of things and don't feel comfortable about the numbers," Curley said. "We're using Title 18 as an excuse for somebody to come up with a better number. I don't see any improvements by the Title 18 group."
The numbers Curley refers to is the $42 million the tribe would receive annually for extending the lease from 2019 to 2044.
The good news, too, is that had the Committee approved the legislation, they would have convened in a special Navajo Nation Council session immediately after to consider the bill, and possibly would have received a $1 million bonus from NGS owners for passing it.
The annual payment is substantially larger than the $608,400 outlined in the original lease approved in 1969.
According to Mariana Kahn, legislative counsel, Title 18 is valid law.
"Members of the Council, and also the audience there, and then the presenters, today I'm going to rule this out of order, this legislation today," Begay said, after being told by Benally he has the authority to exercise his power as speaker pro tem.
Arrest made in burglary of Diné Education Center
By Noel Lyn Smith
WINDOW ROCK - Personnel from the Navajo Nation Facilities Maintenance Department were busy cleaning after a burglary took place early Friday morning at the Diné Education Center.
The main entrance was marked off with yellow crime scene tape and staff was not allowed inside.
It will remain close until it is cleaned and secured, said Facilities Management Department Manager Marcus Tulley.
Housed in the building are the Department of Diné Education executive offices, the tribe's scholarship and financial aid office, Navajo Head Start, the Johnson O'Malley Program, Office of Youth Development, Office of Research and Planning, Diné Culture and Language, and Vocational Rehabilitation.
Majority of the damage was in the offices of Head Start and the Johnson O'Malley Program.
Binders and papers were tossed on the floor, desktop computers were disassembled and laptop-docking stations were emptied in Head Start while broken glass was swept in the Johnson O'Malley offices.
The portion of the tribe's Division of Finance that was relocated to the building's auditorium in 2011 was not affected, Tulley said.
Navajo Police Department Sgt. Antonio Cooke said police were notified around 4 a.m. about the break-in after an employee noticed broken glass at the main entrance.
As an officer arrived on scene, he saw a man running from the building.
The officer went around the building to look for the individual and found a parked vehicle.
After the officer wrote the license plate number of the vehicle, he continued searching for the man.
While the search continued, the vehicle left the scene so the officer ran the license plate and found out it was registered to an address in Rio Puerco Estates in Fort Defiance.
An arrest was made after officers recovered some of the stolen items from the residence.
Cooke said that in a separate unrelated incident, The Bistro restaurant in the Navajo Nation Shopping Center was also burglarized overnight and an arrest was made in that incident.