Emergency legislation on NTEC purchase tabled
During the last day of the Navajo Nation Fall Council Session, Council Delegate Carl Slater implored his lawmaking colleagues not to table emergency legislation 0319-19 seeking to terminate Navajo Transitional Energy Company’s general indemnity agreement.
“I don’t think anything will be accomplished by tabling this in terms of the acquisition of new information,” said Slater. “We’ve had two or three days to obtain that information. Let’s not kick the can down the road. That’s what we keep doing. We are the Council of inaction right now when it comes to our natural resources.”
But, in spite of Slater’s fervor, Council decided with a vote of 11-9 to table the emergency legislation for no more than 30 days. The motion was made by Delegate Edmund Yazzie.
The emergency bill, of which Slater is the co-sponsor, would terminate NTEC’s General Indemnity Agreements, allowing President Jonathan Nez to submit notices of termination to the sureties related to the agreements. This would assure the Navajo Nation won’t be on the hook for any costs relating to the eventual cleanup of three coal mines recently purchased by NTEC.
“This legislation is very simple,” explained Slater. “It seeks to protect our Nation, our money, our funding from getting tied somewhere else in another state. We should not be liable for those things.”
In 2013, NTEC was a brand new company given the task of purchasing the Navajo Mine and for this to happen NTEC had to obtain the performance and reclamation bonds for the mine. To do this Council approved a limited waiver of the Nation’s sovereign immunity to be included in the general indemnity agreement. Then in 2015, an amendment was made to extend same limited waiver to eight additional sureties and their subsidiaries, affiliates and associated companies.
Fast forward to the current NTEC purchase of three Cloud Peak mines in Wyoming and Montana where NTEC must obtain surety bonds or other financial assurance for eventual reclamation. Each bond could total between $350 and $400 million.
The legislation stated that the Nation understands that NTEC wants the Nation’s backing on surety bonds for the Cloud Peak Mines, and surety companies are taking the position that the 2013 and 2015 resolutions were all the agreement they need to believe the Nation will cosign for reclamation bonds.
“Basically it’s a blank check that the Navajo Nation gave in 2013 and 2015 … for the Navajo Nation to co-sign any bond NTEC takes out,” said Navajo Department of Justice attorney April Quinn during last Thursday’s Naabikiyati meeting.
On Oct.4 federal court approved NTEC’s purchase of the bankrupt company’s mines. While Council was discussing terminating the company’s general indemnity agreements Wednesday night, NTEC finalized acquisition and took possession of the three mines: Spring Creek mine in Montana, Colorado Rojo and Antelope mines in Wyoming.
“With the acquisition of these mines, NTEC is thrilled to become a neighbor and important employer in Montana and Wyoming,” stated Clark Mosely, President and CEO of NTEC. “We look forward to working with the existing team of 1,200 employees and implanting our exceptional record of safety, reclamation, and community partnership in the Powder River Basin.”
During Council’s discussion on the emergency legislation the issue came up of whether or not the newly appointed chief legislative counsel Dana Bobroff was privy to the deals.
“There has been a lot of question asked … There is a lot of assumptions going on,” said Yazzie of Bobroff. “In some of her statement she’s made assumptions so that draws a lot of concerns that we are uncertain of what is happening. For Ms. Bobroff and our AG to get a grasp and get everything in order and for us, I motion we table this legislation. For us to get the facts … to get more info on this before we make the crucial vote.”
Bobroff said that she has reviewed the emergency legislation, documents and agreements. She said the only information she has not looked over was communication from NTEC and the attorneys who dealt with the bankruptcy of Cloud Peak Mines, but Navajo DOJ has that information and they were able to review at that moment.
“The combination of the two of us can do a thorough presentation,” said Bobroff. “We could do it right now.”
Even with the assurance from Bobroff and Attorney General Doreen McPaul, and with Speaker Seth Damon recommending a work session the next morning, Yazzie stood by his tabling motion.