Federal judge ordered dismissal of case in September

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FARMINGTON — Five environmental groups are appealing a decision by a federal district court judge that dismissed a lawsuit regarding the extension of operations at the Four Corners Power Plant.

In the April 2016 lawsuit, the groups claimed several federal agencies violated the National Environmental Policy Act, the Endangered Species Act and the Administrative Procedure Act when approval was granted to extend operations at the power plant for 25 years.

The approval also granted the expansion of mining operations at the Navajo Mine, which is the power plant's sole supplier of coal.

A federal judge in Arizona ordered the case dismissed with prejudice on Sept. 11.

On Thursday, Diné Citizens Against Ruining Our Environment, the San Juan Citizens Alliance, the Center for Biological Diversity, Amigos Bravos and the Sierra Club filed the appeal in the U.S. Court of Appeals for the 9th Circuit.

In a press release, the plaintiffs stated the appeal was made because the court dismissed the case based on the sovereign immunity of the Navajo Transitional Energy Co., despite the company not being named as a defendant.

NTEC owns the Navajo Mine and is an enterprise of the Navajo Nation.

The federal court granted a limited motion for NTEC to intervene in the 2016 legal action, and the company filed the motion to dismiss, citing it is a required party to the case because it has a financial interest in the power plant.

In the release that announced the appeal, the environmental groups cited ongoing concerns about pollution emitted by the coal-fired power plant and impacts to air, water, land and people.

"The court's dangerous ruling threatens to give federal agencies a free pass from complying with laws that protect communities and wildlife on tribal lands," Michael Saul, an attorney with the Center for Biological Diversity, said.

Camilla Feibelman, director of the Rio Grande Chapter of the Sierra Club, said in the release that while the country transitions from energy produced by coal to low-cost clean energy, coal companies "are desperate for decisions like this."

Clark Moseley, CEO of NTEC, called the appeal a "direct attack" on tribal sovereign immunity, and he is disappointed the plaintiffs continue to challenge sovereign immunity.

NTEC is required to comply with federal environmental laws, and the federal court's decision does not diminish that requirement, he said.

"While these citizen groups have made outlandish claims that the court ruling insulates tribal lands from environmental claims, the truth is that the law will not allow these groups to interfere in the legal operations of Navajo Nation enterprises,” Moseley said.

The Arizona Public Service Co. is the majority owner of the power plant.

Alan Bunnell, a spokesman for APS, said it is company practice to not comment on pending litigation.

He added the power plant remains an important energy resource for the region and is a "critical economic driver" for the tribe.

"Over the past several years, we have made the plant more environmentally friendly by permanently shutting down three older, less-efficient units, and we are currently upgrading the remaining two, newer units. This work will be completed in the first half of 2018," Bunnell said.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636 or by email at nsmith@daily-times.com.

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