Message #130:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Navajos, OSM, and Peabody Coal: The Court Order
Date: Fri, 3 May 1996 18:28:06 -0700 (MST)
Mime-Version: 1.0

From: Garth Portillo

For the general readership, fyi:

Newspapers widely reported the lawsuit between certain Navajo Indians (Dineh
Alliance) versus the Department of Interior Office of Surface (OSM) Mining
and Peabody Western Coal.  Recently, the results of that case were also
published in the media, reporting that the mining operation(s) were to be
shut down.

Although the case involves numerous issues surrounding the Surface Mining
and Reclamation Act and OSM responsibility towards tribal members (as
opposed to tribal government) as well as willful violations of mining rules
on the part of Peabody, of particular interest to us in the CRM business is
the fact that archaeological resources and human remains were a major
aspect of the case.

The case was adjudicated in the Office of Hearings and Appeals with
Administrative Law Judge Ramon M. Child; Docket numbers DV 95-3-PR and
DV-95-4-PR; Decision issued March 11, 1996.

Amongst other issues, it was established as fact that the Surface Mining and
Reclamation Act prohibits mining within 100 feet of a cemetery (cemetery can
be an isolated prehistoric burial under definitions of the Act) or a
potential cemetery; that 33 percent of archaeological sites in the area
contain burials; that Peabody Western Coal, with knowledge of OSM, mined
over four sites with 11 burials and threatened as many as 100 additional
burials in the near future.

Again, this was one factor in the case.  Others included mining within 300
feet of occupied dwellings, poisoning of surface water, death of livestock
due to water contamination, and more.

End Result of the Case:  The decision is 17 pages long and is decided
overwhelmingly in favor of the plaintiffs.  Cutting to the chase, the mining
permits for the Kayenta Mine were set aside with the court determining that
OSM should never have granted the permits.  By order of the Court,
application for permit to mine was denied outright.  As far as I can tell,
Peabody's Black Mesa Mine was not affected.