Opponents of Desert Rock sue over access to records

By Felicia Fonseca
Albuquerque, New Mexico (AP) 4-08

Opponents of a proposed coal-fired power plant on Navajo land claim federal agents have violated open records laws by withholding information related to the controversial plant and a coal mine that would supply it.

Navajo Nation’s Dine Power Authority and Houston-based Sithe Global Power have partnered to build the $3 billion Desert Rock plant in northwestern New Mexico. The plant would be capable of producing electricity for up to 1.5 million homes in cities across the Southwest.

Dine Citizens Against Ruining our Environment and the San Juan Citizens Alliance filed a lawsuit against the U.S. Bureau of Indian Affairs, its Gallup regional director, Omar Bradley, and the U.S. Department of Interior.

The groups are asking a federal judge to find the defendants in violation of the Freedom of Information Act and to order them to provide all unlawfully held documents by a certain date. The act requires that federal agencies make a determination on a request within 20 working days. An agency can seek a brief extension, but can continue to withhold documents only if they fall under exceptions to the law.

Among the groups’ requests are records on a consultant’s work on the draft environmental impact statement for the Desert Rock project, water use for the project and how the expansion of BHP Billiton’s Navajo Mine would affect tribal members who live and graze livestock in the area.

In each case, the groups claim the BIA refused to fully provide the documents.

“It’s basically stonewalling,” Brad Bartlett, an attorney for the plaintiffs, said Thursday. “It tells me there’s likely some things the agency wants to hide.”

A BIA spokeswoman in Washington, Nedra Darling, declined to comment, citing pending litigation.

Construction on the 1,500-megawatt power plant is pending the approval of an air permit and a massive environmental impact statement, which the groups claim was influenced by Sithe.

The groups want a record of all communication between URS Corporation – the company that prepared the EIS for the BIA – and the proponents of the proposed power plant, including Sithe, Desert Rock Energy LLC, DPA and Bracewell & Giuliani LLP.

Mike Eisenfeld of the San Juan Citizens Alliance said when a third party prepares a document such as an EIS, there is typically a disclaimer and documentation that spells out the third part will be impartial and objective in its review.

“We don’t believe that exists,” Eisenfeld said. “... We also believe Sithe had undue influence on preparation of the document and that the whole NEPA (National Environmental Policy Act) process has been corrupted.”

The plaintiffs also want to review any and all land agreements and those related to use of Navajo Nation water for the plant and records related to alternate sources of water that could be used for the project as needed.

Desert Rock critics believe the alternative source of water referenced in the EIS is the San Juan River, which they say can’t handle supplying another coal-fired power plant.

“If Navajo Nation President Joe Shirley has committed the tribe’s water rights to the San Juan River for another coal-fired power plant, the public has a right to know,” said Dailan Long of Dine CARE.

A spokesman for Sithe, Frank Maisano, said developers have no plans to tap the river for the project. Crews drilled two wells on the site last year, which developers say will provide the 4,500 annual acre-feet needed for Desert Rock.

Desert Rock would receive its coal supply from the nearby Navajo Mine, which operates on 38,000 acres near the Desert Rock site. BHP officials said they have entered into agreements with 11 families since the 1970s to rent their customary use rights for mining operations.

Bartlett said from the few documents he has seen, “there’s really problems with the way BHP has treated community members.”

“We want to see what’s really going on,” he said.

Maisano contends the lawsuit is simply another effort by the plaintiffs to stall the project.

“This doesn’t hurt Sithe Global,” he said. “This hurts the Navajo people. This hurts those who could be working at the plant. It hurts those who could use those increased programs that the revenue from the project will help fund.”