Feds argue Four Corners Power Plant, Navajo Mine case wrongly dismissed

Brief seeks reversal of district judge's decision

Hannah Grover
Farmington Daily Times
A 25-year extension of operations at the Four Corners Power Plant in Fruitland is the subject of a legal battle between several environmental groups, the federal government and the Navajo Transitional Energy Company,.
  • The case stems from a 25-year extension of operations for the mine and power plant that was granted in 2015.
  • The case was dismissed in September because NTEC's sovereign status prevented it from joining as a party in the case.
  • A spokesman for the San Juan Citizens Alliance said he was not surprised about the federal government’s brief.

FARMINGTON — The federal government is arguing that a court case regarding the Four Corners Power Plant and Navajo Mine cannot be dismissed on the basis that the Navajo Transitional Energy Company — the owner of the mine and an arm of the Navajo Nation — is unable to join as a party to the case due to its sovereign status.

The federal government filed an amicus curiae — or friend of the court — brief on Friday in the U.S. Court of Appeals for the Ninth Circuit. The brief asks for the court to reverse a district judge's decision to dismiss the case.

The case stems from a lawsuit filed in 2016 against several federal agencies and officers alleging that environmental laws were not followed when a 25-year extension of operations was granted in 2015 for the power plant and coal mine. The coalition of environmental groups that filed the complaint includes Diné Citizens Against Ruining Our Environment, the San Juan Citizens Alliance, the Western Environmental Law Center, the Center for Biological Diversity, Amigos Bravos and the Sierra Club.

In September, U.S. District Judge Steven P. Logan ruled that NTEC was a necessary party to the case because of its interest as the owner of the mine. Because NTEC’s sovereign immunity status prevented it from entering the case, Logan ruled that the litigation must be dismissed. The case was appealed in November.

NTEC has called the appeal an attempt to undermine the Navajo Nation’s sovereign immunity.

“The Order by the district court acknowledged and respected the right of the Navajo Nation to manage and control its lands; a right which was reserved unto the Nation by long-standing treaties between the Navajo and the United States," NTEC said in an email statement Wednesday. "The environmentalists appealed, which is an attack on tribal sovereignty and exposes that environmental groups do not stand with the tribes unless it benefits their agenda, argues that the environmentalists should have a say on how the Nation utilizes its lands. The brief by the U.S. claims that the U.S. government can represent our interests. But, as we know from too many experiences, only we can protect our rights and culture.”

In its amicus brief, the federal government argues that NTEC is not a necessary party to the case. The brief argues that the environmental groups are challenging a governmental decision that was not an action by the tribe. It also states that while the interests of NTEC and the government are not identical, they are aligned to the point that the federal agencies involved in the case could properly represent NTEC's position.

“Allowing Diné Citizens’ suit to proceed poses, at most, a limited danger of prejudice to NTEC,” the amicus brief states. “Dismissing suits like this one, on the other hand, would insulate an entire class of agency actions from judicial review.”

The environmental groups argue that the environmental impact statement did not adequately address the impacts of the power plant on the endangered Colorado pikeminnow and razorback sucker, which are fish that live in the San Juan River. The groups also argue that the environmental impact statement did not consider reasonable alternatives to the extension or the impacts of air pollution from the power plant.

Mike Eisenfeld, a spokesman for the San Juan Citizens Alliance, said he was not surprised about the federal government’s brief. He said the environmental advocacy group supports the federal government’s amicus brief and would like to have the case heard on its merits.

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at hgrover@daily-times.com.