Desert Rock gets land lease

Desert Rock gets land lease
By Kathy HelmsDiné Bureau
WINDOW ROCK — The Navajo Nation Council voted Friday to lease 591 acres for the Desert Rock Energy Project despite opposition from the heads of Resources Committee.
Council approved the lease between the Navajo Nation and Din Power Authority and a sublease between DPA and Sithe Global Power LLC by a vote of 66-7 with 15 delegates either absent or not voting.
Among Resources members, Nelson Begaye, Herman Daniels and Harry Goldtooth voted to give the project the green light. Committee Chairman George Arthur and Vice Chairperson LaVern Wagner voted red, along with delegates Alice Benally, Jerry Bodie, Edison Jones, Ervin Keeswood and Ida Nelson.
Resources members Norman John II a DPA board member and prime sponsor of legislation related to the project along with Amos Johnson and Larry Noble, were among those not voting.
Upper Fruitland Delegate LoRenzo Bates, who voted for the project despite concerns about lack of an Environmental Impact Statement and the Navajo Nation taking a back seat in the project rather than ownership, said he also heard from Sithe that they encourage Navajo to be a partner.
"Yet when I read the memorandum from the president of the Navajo Nation, it doesn't state anywhere that the Nation is even considering that, other than the language in the document," he said. Navajo Nation President Joe Shirley Jr. sent a memorandum to delegates endorsing the project and asking for their support.
Bates told constituents, "It's important to me, and it should be important to us as a Nation that we become an owner right now. And I would like to make a plea to DPA to work in that direction, as well as the president, or even the next administration. Then we'll see how serious we are."
He also brought up concerns regarding water issues discussed Thursday and the eleventh-hour approach. "According to presenters, they have until June 7. It's a take-it-or-leave-it," Bates said.
"So it's come down to this, members of the council: 'Trust me. Trust me that this a good deal. Trust me that these issues are not going to be of concern. Trust me that we'll work toward. ...'"
Bates said he was giving his vote in favor of the project "because it's an opportunity that I hope this Nation works toward in terms of ownership." However, he added, "That's the only reason I'm giving a green vote. Because I've seen, in the course of the four years that I've been here, opportunities come and go. We don't act. This is an opportunity for the Navajo Nation."
Conflicting languageBates also offered an amendment to language in the resolution regarding a limited waiver of sovereign immunity. He asked that the words "expressly and unequivocally" be deleted from language stating: "The Navajo Nation hereby expressly and unequivocally waives sovereign immunity from suit with respect to any dispute under the lease or sublease ..."
Inserted in its place was language stating, "The Navajo Nation hereby approves a limited waiver of sovereign immunity." In making the motion, he said, "The way it's written, it grandstands the fact that we're waiving sovereign immunity, and I have a real problem with that. We as legislators should also have a concern with that."
Though counsel approved Bates amendment, Chief Legislative Counsel Ray Etcitty said the amendment did not change language in the lease itself. "The lease languages were drafted by the Department of Justice, Steve Begay with DPA and Sithe Global and those are the languages they have negotiated," he said.
Also helping put the lease together were representatives from the Division of Economic Development and the Bureau of Indian Affairs, which assisted in ironing out areas where their involvement and action might be required in processing and approval of the lease/sublease.
Following the final vote, Sanostee Delegate Jerry Bodie said "My constituents were very disappointed at how the council voted. One of the comments from my constituents was, 'These council, all they're looking for is money. Money, money, money - that's all.' They were saying that there was no consideration for the human factor of what's going to be involved."
Bodie said there is no proof that the new plant will have relatively clean air. "I asked for it: 'Where is that plant that has the clean emissions?' Nothing," he said.
He was concerned with Etsitty's comments regarding the limited waiver of sovereign immunity. "We only changed the resolution where it said 'grant a limited waiver.' But the lease was not changed. That's still in effect.
"So the Navajo Nation, in an essence, has waived its sovereign immunity with this DPA and Sithe Global. So we're in a very dangerous situation where we have given up our sovereign immunity. That's where my constituents are very concerned because we're the ones who are going to be affected.
"Even George Arthur, who at the beginning was in support of it, the more documents he read, the more dissatisfied he became, and that's why he voted against it too," Bodie said.
"It's our health that the council has put in jeopardy. It's going to be very detrimental to the community people, and that's where we're looking for an alternative as to how to maybe stall this until we revisit the lease. Even though the Nation has approved it, it's very damaging the way we did it."
Don't read, just voteBodie said his constituents also were very concerned that council did not really read the whole lease. "It was just given to us as the presenters were coming on (Friday), which makes it very difficult to listen to those people and read at the same time.
"There were two packages that were given to us," Bodie said, rather than the inch-thick binder they received during Thursday's work session. "Neither one of us, any of us, had any time to read it and comprehend it thoroughly to make a wise decision. I may be wrong, but I think that it was a very unwise decision," he said.
Resources' Arthur represents three chapters: his home chapter of San Juan; Burnham, where he was born, and Nenahnezad. "Two of the communities, Nenahnezad and San Juan primarily Nenahnezad supported the project. Burnham said no and has been saying no for a period of time," he said.
Arthur's vote against the power plant wasn't so much a matter of support vs. non-support, as it was a matter of business structure regarding the way the business plan and terms and conditions were put together.
"If you read it, and they explained it yesterday, there are three major segments of this Desert Rock. There's tax, then there's water, and then there's land. Each one of these three segments were negotiated separately, having no inner communications. There's no interaction, no inner communications amongst the negotiators on behalf of the tribe.
"The same way with water. The water was negotiated off on the side in some corner. We've been apprised of it periodically, status and procedures. That also has its own terms and conditions. Then comes the land lease. The land lease was negotiated somewhere. I don't know who negotiated the business withdrawal.
"Now, if you put all three of them together in a clear overhead-projection type letter, and laid them on top of one another and put down a line and find out a timeframe, where it begins and where certain things happen, and where it ends,"none of the lease periods are the same," Arthur said.
"Tax is 25 years with a 15 year revisit. Water is 40 years. This particular document that we just approved is 50 years with a revisit at 25. The question is, what happens to the water at the end of 40 years for the water agreement?
"They themselves also have stated that the lifetime of the plant is 40 years. So why would you want to extend beyond the lifetime of the plant? That's a concern that I have."
Arthur said he told Sithe representatives in the presence of Din Power Authority that he would vote against it if they did not change the lease to coincide with the water lease agreement. "And I just did that," he said after the vote.
"That was what my amendment was going to be when I kept saying I needed to make an amendment. I didn't get recognized, but I guess that's the way the ball bounces at times. But I don't think it was in the best interest of the Nation, as far as business terms and conditions are concerned."
The lease does have conflicting languages which will be problematic somewhere down the road, he said."The only way the matter can be revisited is if someone introduces another legislation and council moves forward with that."
Sithe is now in the process of obtaining an air permit, according to Arthur. "Then there's the BHP coal supply. Those are probably the next two items of business activities that they're going to have to deal with. The air permit eventually that has to come back to Resources," he said.
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