NABI Commitee tables NGS legislation, work session scheduled

Budget and Finance Committee issues a ‘do not pass’ on lease legislation, questions waivers and language

The Navajo Generating Station uses coal to produce electricity. Because of recently declining prices of natural gas, the station is facing an uncertain future. Adobe stock

The Navajo Generating Station uses coal to produce electricity. Because of recently declining prices of natural gas, the station is facing an uncertain future. Adobe stock

WINDOW ROCK, Ariz. — The Naabik’íyáti’ Committee voted 16-2 June 8 to table legislation (0194-17) which seeks approval from the Navajo Nation Council of an agreement to extend operations of the Navajo Generating Station until the end of December 2019.

Along with the tabling motion, the Naabik’íyáti’ Committee directed the Office of the Speaker to schedule a work session for June 14 with the various stakeholders, including each of the five owners of the Navajo Generating Station to provide a forum to ask questions and to discuss and clarify the details of the document.

The current NGS agreement is set to expire in December 2019, however, the owners determined that the process of decommissioning the power plant will take approximately two years, which would require the power plant to begin shutting down in July 2017. The proposed legislation would allow the power plant to continue operating until the end of 2019 and continue providing significant revenues and hundreds of jobs for the Navajo Nation.

The majority of the discussion June 8 centered on an amendment proposed by Council Delegate Dwight Witherspoon (Black Mesa, Forest Lake, Hardrock, Pinon, Whippoorwill), which seeks to affirm the Navajo Nation’s position that no language contained within the document waives or diminishes the claims of the Navajo Nation to the 50,000 acre-feet of water used by the owners to operate the NGS power plant.

Following a lengthy discussion, the committee members voted 16-2 to approve the amendment, which will become part of the proposed legislation and agreement when it comes before the full council for final consideration.

Council Delegate Seth Damon (Bááháálí, Chichiltah, Manuelito, Tsé Lichíí’, Rock Springs, Tsayatoh) then motioned to table the legislation, citing the need to have the owners and more technical experts on hand to answer questions and to clarify language within the document. The motion was seconded by Council Delegate Leonard H. Pete (Chinle), and approved by the Naabik’íyáti’ Committee with a vote of 16-2.

The work session is tentatively scheduled for June 14, beginning at 1 p.m. at the Department of Diné Education auditorium. Legislation No. 0194-17 will require two-thirds of Council’s approval, or sixteen (16) supporting votes to pass.

During a special meeting held June 7, the Budget and Finance Committee issued a ‘do not pass’ recommendation with a vote of one in favor and four opposed for Legislation No. 0194-17, which seeks the Navajo Nation Council’s approval of an agreement between the Navajo Nation and the owners of the Navajo Generating Station to extend the operations of the power plant until the end of December 2019.

Legislation sponsor Navajo Nation Council Speaker LoRenzo Bates (Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tse’Daa’Kaan, Upper Fruitland) said that aside from maintaining the revenues gained from the operations of NGS and Kayenta Mine and the 800 plus jobs at both sites through 2019, the Navajo Nation would also receive a total of $110 million in rental fees from the owners over a period of 35 years, an additional $18 million to be paid in equal installments over a three-year period and additional assets at the power plant site including a railroad track, a lake pump facility and access and use of two transmission lines that the Nation could use to sell electricity on the open market.

Navajo Nation Division of Natural Resources Executive Director Bidtah Becker, who helped negotiate the proposed agreement, explained that the purpose of the 35-year term is to allow the owners to operate the power plant until the end of 2019, provide for three to five years for decommissioning the power plant after 2019 and to allow the owners access to the site for an additional 30 years to monitor the site as required by federal environmental laws.

Becker also outlined the four key waivers contained in the proposed replacement lease including: waiver of sovereign immunity, a covenant not to regulate the activity of NGS owners, waiver of claims and a request for the Bureau of Indian Affairs (BIA) waivers and exceptions. Becker also emphasized that the waivers do not prevent the Navajo Nation from pursuing litigation in case of environmental damages at the site and that federal laws provide an avenue for the Navajo Nation to file a lawsuit for such damages if they occur.

Navajo Tribal Utility Authority general manager Walter Haase, who was also part of the negotiating team, pointed out that the proposed agreement provides assurances for minimum royalty payments for coal production for two years totaling $39 million for the Navajo Nation.

BFC member Council Delegate Leonard Tsosie (Baca/Prewitt, Casamero Lake, Counselor, Littlewater, Ojo Encino, Pueblo Pintado, Torreon, Whitehorse Lake) adamantly opposed the waiver language, particularly a portion of the document that requests the Navajo Nation waive its laws in any potential litigation with the owners of the power plant. He also disagreed with language that would require any litigation to be handled in Arizona or federal courts, and recommended that all potential litigation be handled in only federal courts and not state court. 

“The neutral forum is federal court,” Tsosie said. “State court has the habit of ruling against sovereignty and the Navajo Nation. Navajo law should be considered in federal court.”

Tsosie also recommended that any language in the legislation stating, “is in the best interest of the Navajo Nation” be stricken throughout the legislation because Tsosie does not believe the language is in the best interest of the Navajo Nation.

“IThe best interest was for the owners to sign the lease approved in 2013 and for the BIA to finish the EIS [Environmental Impact Statement],” added Tsosie, referring to a previous agreement negotiated in good faith with the owners in 2012 that would have kept the power plant in operation until 2044.

BFC vice chair Council Delegate Dwight Witherspoon (Black Mesa, Forest Lake, Hardrock, Pinon, Whippoorwill) said he disagrees with the inclusion of certain waivers and requested stronger language to firmly state that nothing in the document waives the claims of the Navajo Nation to the 50,000 acre-feet of water used by the owners to operate the NGS power plant. He also directed the Navajo Nation Department of Justice, Department of Water Management, and the Office of Legislative Counsel to draft such language and to clarify inconsistencies in the document.

BFC member Council Delegate Lee Jack, Sr. (Dilkon, Greasewood Springs, Indian Wells, Teesto, Whitecone), who voted in support of the legislation, said the council needs more time to thoroughly review the proposed replacement lease before issuing a final decision and urged the owners to strongly consider and address the concerns brought forth by the council.

Following the Budget and Finance Committee’s vote June 7, Bates said that he respects and understands the positions and concerns brought forth by the committee members. He also stated that from the start of the process, he expressed to all of the stakeholders that it would be a very challenging piece of legislation to consider.

“Despite the challenges and the many questions that each of the committees have brought forth so far, I want my colleagues to have a clear and complete understanding of all the moving pieces because this is a major decision that will have lasting impacts,” Bates said.

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