Federal appeals court OKs Navajo Mine operation

Noel Lyn Smith
A drag line operates in March at the Dixon Pit at Navajo Mine in Fruitland.

FARMINGTON – The U.S. Court of Appeals for the 10th Circuit in Denver has vacated and dismissed last year’s federal court decision that halted operations in Area IV North at the Navajo Mine.

On Wednesday, a three-judge panel dismissed an appeal the Navajo Transitional Energy Company filed in 2015 as "constitutionally moot" and vacated an opinion, order and final judgment a federal judge in Colorado issued last year.

U.S. District Court Judge John L. Kane rejected the U.S. Office of Surface Mining Reclamation and Enforcement's approval in 2012 of mining operations in 714 acres of Area IV. He later ruled the office's approval violated the National Environmental Policy Act because it did not consider the impacts of burning coal at the Four Corners Power Plant.

In addition, the federal appellate judges determined they lacked jurisdiction on the appeal because the Office of Surface Mining, in accordance with the district court's remand, issued a revised Environmental Assessment for Area IV North in October.

The decision was reached after the three-judge panel determined an oral argument was not necessary for the appeal.

The Navajo Mine, which is owned by NTEC, is the sole provider of coal to the Four Corners Power Plant.

In a press release on Thursday, NTEC stated the halt in operation cost the company and the Navajo Nation approximately $2 million, and mining operations elsewhere at the Navajo Mine moved to seven days a week during the closure in order to provide the coal needed for the power plant.

NTEC CEO Clark Moseley welcomed the federal appeals court decision in the press release.

“NTEC is very pleased with this outcome on appeal. As a company of a sovereign nation, we can continue doing work to secure Navajo Nation’s self-determined future,” Moseley said.

He added, “The unfortunate decision of the Colorado District Court last year is no longer on the books, and NTEC can now move on with its operations on behalf of the Navajo Nation."

Mike Eisenfeld of the San Juan Citizens Alliance, one of the plaintiffs in the original lawsuit, said he was disappointed but not surprised by the federal appeals court decision. He said attention now turns to legal action against the Office of Surface Mining, the U.S. Fish and Wildlife Service, and other federal agencies for approving the Four Corners Power Plant and Navajo Mine Energy Project in July 2015.

The San Juan Citizens Alliance, along with Diné CARE and four additional environmental groups, filed a 60-day notice of intent to sue in December, citing violations of the Endangered Species Act and claims under the National Environmental Policy Act.

"Although the court's decision is disappointing, there essentially is no reversal or ruling on the merits of our case," Lori Goodman of Diné CARE said about Wednesday's decision.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636.