**Diné CARE Note: The Legal Suit is attached at the end of this article**


By FELICIA FONSECA
ASSOCIATED PRESS WRITER

ALBUQUERQUE, N.M. -- 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 Wednesday 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."

Source: http://seattlepi.nwsource.com/local/6600ap_nm_desert_rock_records.html

April 4, 2008
By Chuck Slothower | Herald Staff Writer

Two environmental groups have filed a lawsuit against the Bureau of Indian Affairs over the agency's refusal to release documents related to the controversial Desert Rock power plant.

San Juan Citizens Alliance, a Durango-based environmental organization, and the Navajo group Diné Citizens Against Ruining our Environment, or Diné CARE, say they have been stymied in their attempts to learn more about how a key document was created.

The groups filed suit Wednesday in U.S. District Court for New Mexico. The U.S. Department of Interior, Bureau of Indian Affairs and BIA Navajo Regional Director Omar Bradley were named as defendants.

The groups seek BIA records related to the development of the Draft Environmental Impact Statement, or EIS. The statement is a lengthy document detailing the possible effects of the power plant on nearby air, water, soil and animal species.

After months of work, the Draft EIS was released in May 2007.

The plaintiffs say the BIA denied access to documents it requested relating to URS Corp., a San Francisco company, and its work on the Draft EIS.

"We are very concerned about the corruption of the BIA's public approval process for Desert Rock," said Mike Eisenfeld, San Juan Citizens Alliance's New Mexico staff organizer.

"URS Corporation wrote the Draft EIS for the BIA, but now the agency says that URS works for Sithe," Eisenfeld added. "The public has a right to know how the agency, Sithe and URS have interacted in planning the proposed power plant."

Sithe Global Power, a New York-based company, and Diné Power Authority, a Navajo company, propose to build Desert Rock on Navajo land about 30 miles southwest of Farmington.

Desert Rock, a $3 billion project, would produce 1,500 megawatts of electricity. Navajo Nation officials have strongly backed the project, saying it would provide much-needed economic development on the impoverished reservation. But environmentalists have raised concerns about the possible environmental effects of the coal-fired plant.

A BIA official did not return a message requesting comment Thursday. But Frank Maisano, spokesman for the project, called the lawsuit a "delaying tactic."

"These are old charges, and we've heard these same things many times before," Maisano said. "The reality is we've had more than 450 public meetings about this project. There's nothing new here. This is just another delaying tactic, and the real sad thing is this only hurts the Navajo people."

The plaintiffs said they had filed three Freedom of Information Act requests that the BIA denied. Their lawsuit requests communications between URS, the BIA and Sithe, and full release of water and land agreements between the Navajo Nation and Sithe.

"We are highly concerned that the tribal government may be planning to use its water rights in the San Juan River basin to feed Desert Rock," said Dailan Long, a Diné CARE activist.

Brad Bartlett, an attorney for the Energy Minerals Law Center in Durango, representing the plaintiffs, said "the BIA's refusal to let the public know what it is doing through access to its records is unacceptable."

The purpose of the Freedom of Information Act, Bartlett added, "is to foster public disclosure of government actions and is designed to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny."

Groups file complaint against BIA for records

By Cornelia de Bruin The Daily Times
Article Launched: 04/04/2008 12:00:00 AM MDT

FARMINGTON — Tired of waiting for documents it requested through the federal Freedom of Information Act, San Juan County's Diné Citizens Against Ruining Our Environment (Diné CARE) and San Juan Citizens Alliance filed a complaint this week to force the Bureau of Indian Affairs' hand.

BIA spokesman Nedra Darling, in Washington, D.C., denied comment because the litigation is pending.

The two groups filed requests three times as they sought records detailing a consultant's work on the Navajo Nation and Sithe Global's proposed Desert Rock Power Plant. The 1,500-megawatt coal-fired plant would be located near Burnham on the Navajo Nation and still is awaiting federal permits to operate.

"Despite the harmful effects of the proposed Desert Rock coal-fired power plant on precious water resources and air quality in the Four Corners region, the lead federal agency in charge of the project has denied numerous requests to review even basic public records on those issues," the two organizations charged in a Thursday press release.

Diné CARE and the Citizens Alliance filed their complaint in U.S. District Court in New Mexico on Wednesday.
They are suing Omar Bradley, Navajo regional director of the U.S. Bureau of Indian Affairs in Gallup; the Bureau of Indian Affairs in Washington, D.C.; and the U.S. Department of Interior.

"We are very concerned about corruption of the BIA's public approval process for Desert Rock," said Mike Eisenfeld of the San Juan Citizens Alliance. "URS Corporation wrote the Draft EIS (enviornmental impact statement) for the BIA, but now the agency says that URS works for Sithe."

Sithe Global is the energy company paying for construction of the plant, which many Navajo tribal leaders, including President Joe Shirley Jr., support as a way to boost a struggling economy.

"The public has a right to know how the agency, Sithe and URS have interacted in planning the proposed power plant," he said.

Desert Rock supporters are awaiting both an environmental impact statement approval from the BIA, along with an air permit from the Environmental Protection Agency. Both are needed in order for Desert Rock to be built.

Careful to specify that he can't speak for the BIA, Desert Rock spokesman Frank Maisano, called the charges "old."

"What they're doing is throwing darts at the board and hoping they'll hit something," Maisano said. "It only hurts the Navajo workers who need the jobs and the people who stand to benefit from the programs funded through the plant's progress."

The reason specifics about water availability are not completely included in the draft environmental impact statement, Maisano said, is because of actions Diné CARE took while a survey was in progress.*

"They were blockading the area that Sithe was permitted to survey and do test drilling of the aquifer," Maisano said. "They delayed us two to three months."

Calling the Citizens Alliance/Diné CARE law suit "delaying tactics," Maisano said, "It's hard to take it seriously when you've heard all the charges before."

"There's nothing new here," he added.

Eisenfeld and Dailan Long, spokesman for Diné CARE are meeting to discuss a related Desert Rock Power Plant issue with two members of Gov. Bill Richardson's staff this week.

Diné CARE released in January a report that was highly critical of the Navajo Tribal government's support of Desert Rock, condemning the support as being in opposition to the Fundamental Laws that set out how Navajos should act in accordance with and to their environment.

On tap are meetings with Richardson's Energy and Environmental Policy Adviser, Sarah Cottrell, and his Environmental Justice Coordinator, Milton Bluehorse.

"It's informal, but we've been in touch with them for awhile," Eisenfeld said. "The governor has concerns about Desert Rock."

Cornelia de Bruin: cdebruin@daily-times.com

* Diné CARE's comment: Direct Action of local community members in December 2006 does not justify the complete omission of BASIC PUBLIC documents which pertain to water studies, the expansion of the BHP coal mine, and communications between URS, Sithe, and the Diné Power Authority; all of which were to be included in the July 2007 Draft Environmental Impact Statement. Burnham residents have been informed that water quality testing have been completed and there is no surveying activity at the proposed site, which begs the question again, "Where are these basic documents?"