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Signature Removed Accepted for the Libraries _ r~1 I d\-<:f ! Date accepted ----c:::;J:--+L-b{,"",/)_·~1.J'---\,L6 _ RECLAIMING HOME: COMPARING COALFIELDS ACTIVISM IN ARIZONA AND WEST VIRGINIA

by

JULIA BANNISTER SENDOR

Cathy Johnson, Advisor

A thesis submitted in partial fulfillment ofthe requirements for the Degree ofBachelor ofArts with Honors in Environmental Studies

WILLIAMS COLLEGE

Williamstown, Massachusetts

May 15, 2008 When we try to pick out anything by itself, we find it hitched to everything else in the Universe.

-John Muir

11 Acknowledgments

Above all, one person truly made this thesis possible. I would like to thank my mother, who traveled with me from the mountains to the desert this summer. She accompanied me as I visited Arizona and West Virginia to meet the activists in person. She soaked in the stories along with me, let me bounce my scattered ideas offher, and weathered two flat tires - one in each state. I literally could not have done it without her; I do not have a driver's license. For all your love and support, as well as your excellent driving skills, thank you.

I also want to extend my deepest thanks to the residents ofArizona and West Virginia who took time from their busy lives to welcome me into their homes and shared their experiences and sometimes blueberry muffins. Overwhelmed by their courage and passion, I left each interview with my head spinning with inspiration.

To my fearless advisor, Cathy Johnson, thank you for your wisdom and honesty. Thank you for keeping me on track and gently but firmly pushing me to organize my thoughts. Your dry sense ofhumor that made meetings fun, and the interesting clippings on your door even made waiting outside your office fun. Thank you also to my readers Nicole Mellow and Alex Willingham for your insightful advice.

Finally, to my family and friends, thank you for being patient with me during the rough spots and for your enthusiasm about my work, but also for reminding me about the great big world waiting beyond these pages oftext.

iii Table ofContents

Chapter 1: A Lay ofthe Land 1

Chapter 2: The Endangered Aquifer 31

Chapter 3: How to Shut Down a Mine .42

Chapter 4: Just Transitions 62

Chapter 5: "Strip Mining on Steroids" 79

Chapter 6: Up Against the State 91

Chapter 7: Thinking Outside the Limits 125

Chapter 8: Conclusion 140

A Note on Sources 146

Bibliography 147

IV Chapter 1 A Lay ofthe Land: Comparing Environmental Injustices in Arizona and West Virginia

Introduction

On the arid Black Mesa plateau ofArizona, the aquifer that had supported North America's longest-standing human settlements was facing collapse only three years ago. Today, across the country in West Virginia, nearly three million tons ofexplosives a day blast offthe tops ofthe

Appalachian mountains, the oldest mountain chain on the continent. While the red-orange expanse ofthe Black Mesa plateau looks like a different world from

the lush forests ofWest Virginia, the rich seams ofcoal beneath the surfaces of

both landscapes have led to similar patterns ofexploitation. Peabody Coal

Company in Arizona has been draining the region's already-limited

groundwater supply to transport its coal. Meanwhile, mountaintop removal coal

mining in West Virginia has leveled thousands ofacres ofmountaintops and

buried more than a thousand miles ofstreams. Mountaintop removal uses

heavy machinery and explosives to scrape mountaintops bare and blast off

hundreds offeet ofmountain in order to dig out the formerly unreachable coal

seams. Companies dump the leftover rocky debris into valleys and streams

and, after washing the coal, store billions ofgallons oftoxic sludge waste in

dams, often perched above homes. As mining operations endanger neighboring residents' health and even lives, and as coal companies strategically buy land to surround and isolate residents' houses, entire communities have disappeared.!

With their homes threatened by the national demand for cheap energy, grassroots activists in Arizona and West Virginia coalfields have launched intensive campaigns against the mining practices which threaten their communities. On the Black Mesa ofArizona in the last decade, the Hopi and

Navajo united with environmental groups to demand that Peabody Coal's

Black Mesa mine stop using their groundwater to ship coal to the power plant.

In southern West Virginia, also in the last decade, coalfield residents have struggled to end mountaintop removal mining, a relatively new form ofsurface coal mining that has become increasingly popular.

The Arizona activists have achieved far greater success than the West

Virginians in cracking the power ofthe coal industry. The Black Mesa organizers have forced the Black Mesa mine to shut down operations and are

seriously exploring economic alternatives to coal mining, as well as more

overarching ways to strengthen the economies ofindividual communities.

Meanwhile, the West Virginians have yet to end the process ofmountaintop removal itself, or even the most destructive parts ofthe process. Successes are

mainly limited to legal victories addressing more "peripheral" issues such as

processing plant dust or land inheritance rights. This thesis examines the

1 Patrick C. McGinley, "From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields," Environmental Law 34, no.3 (2004), under '''Almost Level, West Virginia': Mountaintop Removal Strip Mining," http://www.lexisnexis.com/us/lnacademic/search/homesubmitForm.do.

2 reasons for the different outcomes: why the Black Mesa groups have largely succeeded while the West Virginia groups are still struggling.

The two different outcomes make meaningful comparisons because the two situations share several key parallels. Both groups are well-organized, with broad coalitions that include both grassroots bases and national environmental organizations. Demographics ofboth regions reveal that their populations equally lack wealth and education - traditional resources for gaining political power. Both communities also depend on coal for jobs and revenue, so citizens and lawmakers face similarly difficult decisions in opposing coal mining.

While the tribal and state government structures differ, both governments were shaped by resource extraction industries and still rely on coal for a large portion ofstate revenue.

Although the struggle has not ended for either group, the Black Mesa activists' more tangible victory makes the case an icon ofthe potential of grassroots activism, in which a traditionally powerless group overcomes political, economic, and social inequalities to create change. The reasons for the Black Mesa activists' success provide a template for analyzing the complex challenges that the West Virginian activists face. As the story ofthe Black

Mesa campaign unfolds, four key advantages ofthe Navajo and Hopi activists emerge. First, the organizers gained the support ofcitizens and politicians by using powerful cultural framing to present their case. Second, they magnified their political voice by combining an outpouring ofpublic support with backing from local governments. Third, they offered convincing alternatives to the

3 problem. Finally, they gained new leverage points through third-party connections.

These same four points also highlight fundamental reasons for the West

Virginia groups' difficulties. The groups have struggled to overcome the cultural-political sway ofcoal in a state steeped in the history ofcoal mining, especially the influence ofthe miners' union which has publicly, fiercely opposed the groups' work. The activists have also failed either to gain widespread support at the local political level or otherwise find a way to convince the state government to respond to the grassroots opposition. They have not convinced the state that seeking alternatives to mountaintop removal is worth losing the coal industry's hefty contributions. Finally, the groups lack a strong ally pushing on the coal industry from a third angle. The Black Mesa organizers' sources ofsuccess, and the insights they provide into the West

Virginia case, address this thesis's underlying question ofhow citizens with traditionally little political voice can achieve environmental justice.

The Activists

The activist groups share many important characteristics, allowing the thesis to focuses less on the dynamics ofgroup organization, and more on how well the groups utilize their resources. The grassroots organizations in the two regions include similarly wide ranges ofmembers. On Black Mesa, the collaboration begins with a historically unusual partnership between the Navajo and Hopi. To rally their communities and local officials around protecting the

4 water supply, a Navajo group and a Hopi group each worked independently on

their own reservations. Meanwhile, a mixed Navajo-Hopi youth organization joined with both groups to present to local tribal chapters the case for

preserving the aquifer. Throughout this process, the local Sierra Club chapter,

a land trust called the Grand Canyon Trust, and the Natural Resources Defense

Council provided legal advice as well as scientific studies to prove the

existence ofenvironmental damages. The coalition represents a mixture of

native and non-native activists, and balances the different groups' strengths.

The Navajo and Hopi groups, for example, assert the most influence over their

own tribal leaders, while the Sierra Club, the Grand Canyon Trust, and the

Natural Resources Defense Council can offer greater economic, legal, and

scientific resources. While the Navajo and Hopi groups' remote locations make

coordinating more difficult, the mixed-tribe group, the Sierra Club, and the

Grand Canyon Trust all have offices in Flagstaff.

The West Virginia activists also represent a coalition ofgroups, both

within southern West Virginia and across the Appalachians. In West Virginia,

two main grassroots groups, the Coal River Mountain Watch and the Ohio

Valley Environmental Coalition, organize directly within the communities.

These groups form the core and shape the direction ofthe anti-mountaintop

removal movement in West Virginia. They share many members and

collaborate on most events. In addition, the West Virginia Highlands

Association is not geographically based in the coalfields, but works directly

with both the Coal River and Ohio Valley Groups.

5 The three groups often unite to file lawsuits through a law and policy center called the Appalachian Center for the Economy and the Environment.

This center provides the attorneys for most ofthe group and citizen lawsuits against the coal industry. Larger events such as rallies, public hearings, and petitions draw from an even broader base: Christians for the Mountains, the

Sierra Club, the Natural Resources Defense Council, Earthjustice, the North

Carolina-based Appalachian Voices, and anti-mountaintop removal groups in

Kentucky, Tennessee, and Virginia. The activists can also call on a wider variety ofoutside allies, from an organization that provides free airplane flights to journalists, citizens, and politicians to show the effects ofmountaintop removal mining, to journalists and photographers across the country who are condemning the mining destruction through the media. Both the West Virginia and the Arizona activists have raised significant support in their communities, have employed complex and well-organized strategies, and have attracted powerful collaborators, including national environmental organizations, which magnifies their voice.

Community Descriptions

The Arizona and West Virginia coalfield communities present profiles in classic demographics ofpolitical powerlessness: both regions are poorer and less educated than the national average. The age, education, and poverty levels are strikingly similar between populations in Navajo County, Arizona and in the nine West Virginia counties with mountaintop removal mines. The

6 parallels suggest that these differences cannot explain the Black Mesa groups' greater success. At the same time, however, they make the Black Mesa case an even more valuable framework for studying how the mountaintop removal campaigns have dealt with similar challenges to their community.

Both regions have age ranges close to the national average, and low education and high poverty levels, except for area within the wealthier

Kanawha County, WV, seat ofthe state capital. Both regions have 10-20% fewer high school graduates than the national average. In Navajo County only

12% ofthe residents have bachelors' degrees, 50% fewer than the national average. Similarly, in southern West Virginia counties, 7-12% ofthe residents have bachelors' degrees, which is 50-70% below the national average.

Economically, both Navajo County and the West Virginia counties sufler from low employment and income levels. An average ofonly 50% ofresidents in both regions work in the labor force, which is 15% lower than the national average. Median per-capita income, close to $12,000 across the regions, is

40% lower than the national average, while the percentage ofindividuals living below the poverty level, around 25%, is twice the national average? These statistics hold remarkably even across the counties; the stand-out difference is population density. Although both regions are low-density, rural areas, Navajo

2 U.S. Census Bureau, ''Navajo County, Arizona," Fact Sheet 2000; "Boone County, West Virginia," Fact Sheet 2000; "Fayette County, West Virginia," Fact Sheet 2000; "Kanawha County, West Virginia," Fact Sheet 2000; "Logan County, West Virginia," Fact Sheet 2000; "McDowell County, West Virginia," Fact Sheet 2000; "Mingo County, West Virginia," Fact Sheet 2000; "Nicholas County, West Virginia," Fact Sheet 2000; "Raleigh County, West Virginia," Fact Sheet 2000; "Wyoming County, West Virginia," Fact Sheet 2000; all from http://www.factfinder.census.gov/home/saIDmain.html?_lang=en.

7 County averages only 11 people per square mile, while the West Virginia counties, excluding Kanawha, average 60 people. 3

Both regions also depend heavily on the mines economically. The high poverty and low education levels intensify the significance ofthis dependence, since poorer communities, with less infrastructure, also struggle more to attract new businesses, and residents with less education struggle more to find new jobs. The communities can hardly afford to lose more revenue or jobs. Mining contributes a full 75% ofthe Hopi tribe's annual income, and 40% ofthe

Navajo's. Mining operations employ 300 members from both tribes.4 When the Navajo and Hopi councils voted to value water over the mining industry, they were forced to pay the price. The Black Mesa Mine closure cut 200 jobs, many ofthem Navajo and Hopi, and is projected to cost the Navajo Nation nearly $90 million a year in direct economic benefits.s Additionally, Peabody

Coal had offered a wide array of"perks" to their Navajo neighbors: from using the heavy equipment for road grading and snow removal, to public water sources, to tribal scholarships. Navajo members reported feeling the pinch from losing these services.6

3 U.S. Census Bureau, "Navajo County, Arizona," State & County Quiclifacts, http://quickfacts.census.gov/qfd/states/04/04017.html; "Boone County, West Virginia," "Fayette County, West Virginia," "Kanawha County, West Virginia," "Logan County, West Virginia," "McDowell County, West Virginia," "Mingo County, West Virginia," ''Nicholas County, West Virginia," "Fayette County, Raleigh Virginia," "Wyoming County, West Virginia," State & County Quiclifacts, http://quickfacts.census.gov/qfd/states/54000.html. 4 Enei Begaye, "The Black Mesa Controversy," Cultural Survival Quarterly 29, noA (2006), http://proquest.umi.com/pqdweb. 5 Cindy Yurth, "Chapters lament lost perks in wake ofmine closure," Navajo Times, December 22,2005, http://proquest.umi.com/pqdweb 6 Ibid.

8 In West Virginia, coal provides more than $3.5 billion ofWest

Virginia's gross state product - nearly 13% ofthe total. The coal industry and the coal-burning electricity industry (99% ofwhich is powered by West

Virginia coal), combined, generate approximately 60% ofthe state's business tax revenue through severance taxes.7 The state retains 93% ofthe revenue, mainly for funding elementary education, while the individual counties receive the remaining 7%, based on production level and population density.8 The

West Virginia Coal Industry provides about 40,000 direct jobs in the state, including miners, mine contractors, coal preparation plant employees and mine supply companies.9 Miners occupied 20,553 ofthese jobs in 2006. 10 These jobs represent roughly 5% and 2.5% oftotal employment statewide1!, although in the nine southern counties with mountaintop removal mining, the coal industry provides an average of 14% ofjobS. 12 The industry has the greatest job impact in Boone County, providing 42.3% ofjobs, and the least impact in

Kanawha County, with only 1% ofjobs.13 As in Arizona, the regions most directly suffering the environmental consequences ofmining also depend most heavily on the mining for revenue and employment.

7 West Virginia Coal Association, West Virginia Coal Facts 2007, http://www.wvcoal.com!docs/ coalfacts_07.pdf. 8 Ibid. 9 West Virginia Office ofMiners' Health, Safety and Training, West Virginia Coal Mining Facts, http://www.wvminesafety.org/wvcoalfacts.htm. 10 West Virginia Coal Association. 11 WORKFORCE West Virginia, "Employment ad Unemployment Data," LaborMarket Information, http://www.wvbep.org/bep/lmilTABLE2/T206west.HTM. 12 Shirley Stewart Burns, Bringing Doyvn the Mountains: the Impact oflv!.ountaintop Removal Surface Coal Mining on Southern West Virginia Communities, 1970-2004, Ph.D. dissertation (Morgantown, WV: West Virginia University, 2005), 27-28. 13 Ibid.

9 The Legacy of Coal

Not only are both regions currently economically reliant on the coal industry, but both governments are politically rooted in the coal and the mineral extraction industries. These histories create similarly complex cultural politics that combine a sense ofinjustice and exploitation with a beliefin the necessary and inevitable power ofthe coal industry. On the Navajo reservation, the

Bureau ofIndian Affairs actually organized the first Navajo Nation-wide

Council in the 1940s primarily to allow energy companies to purchase oil and gas rightS. 14 The Navajo saw coal development as crucial to their economic independence. A chairman at one time described the Black Mesa Mine lease as one ofthe Navajo's greatest accomplishments: "So it seems that we are not, after all, the redskin ofAmerican history who must hold out an impoverished hand begging for crumbs left over from the conqueror's victorybanquet...we have proven this by taking our place in the industrial development and the socio-economic patterns presently existing in the forward march ofour nation.,,15 Even so, an elite group oftribal council officials ended up dominating the distribution ofwealth on the reservation and focusing on resource extraction instead ofbuilding up a more diverse economy. 16

Meanwhile, the first Hopi tribal council also formed under the pressure ofthe coal industry. The tribe's first attorney was simultaneously working for

14 Charlie Homans, "Draining the Upper World: The Black Mesa Mine and the Navajo Aquifer," http://www.co1umbia.edulcuicssn/cssa/falO1/homans-draining-the-upper-world.html. 15 B.J. Morton, Coal leasing in the Fourth World: Hopi and Navajo coal leasing, 1954-1977 (Berkeley, CA: University ofCalifornia-Berkeley, 1985), 298-299. 16 Kathy Hall, "Impacts ofthe Energy Industry on the Navajo and Hopi," in Unequal Protection Robert Bullard ed. San Francisco, CA: Sierra Club Books, 1994, 135, quoting Lawrence David Weiss, The Development ofCapitalism in the Navajo Nation: A Political Economic History, Studies in Marxism, Vol. 5 Minneapolis: MEP, 1984,37.

10 Peabody Coal. The attorney convinced the Bureau ofIndian Affairs to ratify a

Western-style tribal governing body, which so many Hopi opposed that halfits seats went unfilled. The attorney then convinced this half-council to approve the Black Mesa lease which he had negotiated in private with Peabody. In the

Black Mesa lease, both the Hopi and Navajo agreed to rock-bottom deals for coal royalties and the sale ofN-aquifer water rights. A group ofHopi traditionalist mounted an opposition to the deal, claiming that the "rump" council, initiated by the coal lobby through the attorney, could not legally represent the interests ofthe Hopi people, and that the lease was void.

Ultimately, the courts dismissed the case by declaring that even a rump council was protected by sovereign immunity, despite the possibility that its actions

I may were illegal. ? The pressure ofthe coal industry, along with "progressive" tribal members' visions for economic independence, had produced glaringly unjust deals that established the long-term pattern ofNavajo and Hopi government subservience to the coal industry.

In West Virginia, outside interests began appropriating land from the state's beginning. By the early l800s, absentee landowners, mostly speculators seeking mineral wealth, held title to a full 93.3% ofland in West Virginia. IS

Meanwhile, nearly two-thirds ofall families living in West Virginia owned no land. I9 State funds and laws were directed to encourage mining: the state

17 Charles Wilkinson, Blood Struggle: The Rise ofModern Indian Nations (New York: W.W. Norton & Co., Inc., 2006), 336. 18 Ronald L. Lewis, Transforming the Appalachian Countryside: Railroads, Deforestation, and Social Change in West Virginia, 1880-1920 (Chapel Hill, NC: University ofNorth Carolina Press, 1998),85. 19 Ibid., 70.

11 funded geological surveys to map mineral fields, and local lawyers and politicians found work representing Northeastern and even European business interests.2o While in the Midwestern and Northwestern areas ofthe country, low land costs and active local markets made the distribution ofland more equitable, in West Virginia elites and absentee landowners continued to dominate land-buying.21

As the coal industry kept expanding through the late 1800s and early

1900s, it wielded power in every coal-producing state - but dominated the political system in West Virginia more than anywhere else. As the

Manufacturers' Record described, "In this respect, West Virginia holds a unique position not duplicated by the governmental machinery ofany other state in the South.,,22 The state's first governor held stock in two coal companies.23 West Virginia legislators, manyofwhom had their own mineral

and railroad investments, rewrote property laws to more easily transfer titles

and mineral rights into the hands ofmining companies. The coal barons

influenced how governors were elected and contributed heavily to campaign

funds for candidates from both parties, in addition to hold a majority ofseats in

the Senate. 24

Instead ofinvesting in industrialization that would encourage

widespread development, those who controlled the land and businesses

20 Ibid., 73. 21 Ronald D. Eller, Miners, Millhands, and Mountaineers: Industrialization ofthe Appalachian South, 1880-1890 (Knoxville, TN: University ofTennessee Press, 1982), 102. 22 Ibid., 217, quoting ManL{facturers' Record 50 (1906), 338. 23 Barbara Rasmussen, Absentee Landowning and Exploitation in West Virginia, 1760-1920 (Lexington, KY: University Press ofKentucky, 1994),76. 04 ~ Eller, 58.

12 invested primarily in infrastructure that would support more resource extraction and exchange. They also focused on exporting raw materials rather than using them to develop the local economy. As with the Navajo and Hopi, the narrow­ sightedness ofearly coal-fired politics created a legacy ofdependence on coa1. 25 Both the Black Mesa and the West Virginia activists are still struggling against this legacy - and struggling to frame their campaigns within its context.

Regulating Coal: The Power ofTribal and State Governments

Because coal has shaped both tribal and state politics, and because the communities and governments depend economically on coal, the coal industry wields powerful influence over tribal and state decision-making. One ofthe activists' greatest challenges, then, is that in both the Black Mesa and the West

Virginia cases, the governing body with the most responsibility to regulate the mining is also the most influenced by the mining. The environmental regulations surrounding mining and the results ofthe grassroots groups' attempts to use these laws in their activism, place the tribal and state governments at the center ofthe environmental justice battles.

According to U.S. law, the Indian nations and the U.S. maintain a government-to-government relationship, but a concept called the federal trust responsibility complicates that relationship. This trust responsibility requires that the Secretary ofthe Interior, on behalfofthe U.S. government, treats tribes as "dependent, domestic" nations, and holds the Indian lands in trust for "the common use and benefit" ofthe tribal members. Within the Department ofthe

25 Ibid., 193.

13 Interior, the Office ofSurface Mining regulates mining on Indian lands.26 The goal is a cooperative balance ofpower: tribal councils can grant or deny mining leases, while the Secretary ofthe Interior oversees these transactions with an eye towards the tribes' welfare, and the Office ofSurface Mining regulates the specifics ofthe operations. In terms ofwater rights, a set ofregulations called the Federal Reserved Rights guarantee that an Indian reservation must have access to enough water - including groundwater - to meet the needs ofthe reservation.27 For both mining and water regulation, therefore, the tribal governments exercise a significant sovereignty - within the bounds offederal approval.

Two basic federal laws regulate the environmental impacts of mountaintop removal: the Surface Mining Control and Reclamation Act and the Clean Water Act. Both set national environmental standards for mountaintop removal mining procedures and for preserving waterways, but delegate the responsibilities ofregulation to a mix ofstate and federal agencies.

Because West Virginia passed its own version ofthe Surface Mining Act, the state qualified to issue permits and regulate mining according to its own statutes through the West Virginia Department ofEnvironmental Protection

(WVDEP). The U.S. Department ofthe Interior is still responsible for holding the WVDEP to its own state law and to the national law's minimum environmental standards. Thus far, however, the U.S. Department has ignored

26 American Indian Policy Center, "Trust responsibility," http://www.airpi.org/projects/ trustdct.html. 27 Bureau ofLand Management. "Federal Reserved Water Rights," Western States Water Laws, http://www.blm.gov/nstc/WaterLaws/fedreservedwater.html.

14 even glaring instances ofthe WVDEP's negligence, leaving the WVDEP with a wide berth ofpower.28

The second overarching law, the Clean Water Act, regulates and protects the water quality ofrivers and streams. Water quality plays a crucial role in the anti-mountaintop removal struggle, because mountaintop removal operations use rivers and streams as dumping grounds for the "overburden" material blasted offfrom the mountains. The Clean Water Act also allocates regulatory power to both state and federal agencies: to the U.S. Army Corps of

Engineers for permitting the dumping, and the WVDEP for permitting all operations that would affect stream quality.29 However, because federal rulings have refused to regulate the Army Corps's negligent permitting, the \VVDEP

now plays the most essential role in enforcing the Clean Water Act.

Not only by law but also in the histories ofthe cases, both the tribal and

state governments have come to play crucial roles in protecting the natural

resources. The tribal councils' initial support was necessary to eventually shut

down Black Mesa Mine - and their unwillingness to give back the N-aquifer

rights cemented the mine's fate. However, the councils' ongoing negotiations

with the mine owners and their generally ambivalent stance on coal mining

could lead to future, similar conflict. Meanwhile, as the federal courts have

28 Margo Hasselman, "Bragg v. W. Va. Coal Ass'n and the Unfortunate Limitation ofCitizen Suits Against the State in Cooperative Federalism Regimes," Ecology Law Quarterly 29 (2002), under "The Surface Mining Control and Reclamation Act of 1970," http://www.lexisnexis.com/us/lnacademic/searchihomesubmitForm.do.

29 Jeffery W. Lilly, "Regulatory Regulations in the Mining Industry: Mountaintop Removal Mine Valley Fills Violate the Federal Clean Water Act," West Virginia Law Review 100 (1998), under "The Federal Clean Water Act," http://www.lexisnexis.com/us/lnacadernic/ searchihomesubmitFarm.do.

15 volleyed power back to West Virginia courts and agencies, the state's own refusal to crack down on mountaintop removal mining has developed into the activists' primary obstacle. Analyzing the activists' struggles requires analyzing how the different groups have worked to break the political and economic grip of coal on the tribal and state governments.

Theories on Grassroots Activism

The literature on environmental justice and broader social justice movements examines how grassroots activists can achieve real change in systems ofheavily imbalanced political and economic power. Fundamentally, the movement theorists challenge activists to push beyond the commonly accepted opportunities for citizen participation in political institutions.

However, the literature itselfoffers a range oftheories on how citizens can best affect decision-making processes: whether through disruption that operates outside standard political processes or through creating a larger role for citizens within those processes. Even so, both arguments are limited by fundamental inequalities in social, political, and economic structures. A newer wave of environmental activism theory deepens the argument by proposing community­ wide efforts to directly transform law, tradition, and the social, political, and economic structures.

Social theorists Frances Fox Piven and Richard Cloward assert that within the political and economic constraints that grassroots groups face, disruption offers the best tool for achieving social change. They argue that

16 elites with the decision-making power will not respond to organizations' specific demands, but that the disruption threatens to produce "instability and polarization," which may force elected leaders to respond.3o Piven and

Cloward describe disruption as violating traditions and laws that people usually follow and publicly flaunting the authorities to whom people usually defer.

They argue that this very act ofrebellion is empowering, so that "people who ordinarily consider themselves helpless corne to believe that they have some capacity to alter their lot." 31 Piven identifies disruptive power as "rooted in the very nature ofsociety, in the networks ofsocial interdependence or cooperation that society implies.,,32 She proposes that these interdependencies, imbalanced as they may be, still provide the lower class at least a small leverage point against the elites. In this context, disruption means, quite simply, withdrawing or threatening to withdraw cooperation from the customary social, political, or economic relationships ofinterdependence.

Piven and Cloward warn, however, that the power imbalances already

existing in these relationships limit the effectiveness ofgrassroots disruption:

"[T}he opportunitiesfor defiance are structured byfeatures ofinstitutional life.

Simply put, people cannot defY institutions to which they have no access, and to

which they make no contribution. ,,33 Even attempts to work outside the

institutions are bound by these dynamics ofaccess and contribution. Piven and

30 Frances Fox Piven and Richard A. Cloward, Poor People's Movements: Why They Succeed, How They Fail (New York: Vintage Books, 1979), 15. 31 Piven and Cloward, 4. 32 Frances Fox Piven, Challenging Authority: How Ordinary People Change America (Lanham, MD: Rowman and Littlefield Publishers, Inc., 2006),16. 33 Piven and Cloward, 23.

17 Cloward's central advice to activists is based in protest tactics. They counsel,

"The wiser course is to understand these limitations, and to exploit whatever latitude remains to enlarge the potential influence ofthe lower class," and specifically that "strategies must be pursued that escalate the momentum and impact ofdisruptive protest at each stage in its emergence and evolution.,,34

While literature from the grassroots environmental movement shares

Piven and Cloward's frustration with the limits ofstandard political processes, many environmental activism theorists focus on opportunities to change the system from within. Two closely related concepts, environmental justice and civic environmentalism, call for environmental decision-making processes that involve more citizen input. The environmental justice movement declares that all citizens, regardless ofrace, ethnicity, or class, have the right to freedom from environmental injustice and access to environmental benefits,35 with these rights protected by "public policy free from discrimination or bias.,,36 Civic environmentalism similarly calls for achieving environmental justice through grassroots participation in politics. Together, these ideas unite in what Daniel

Faber calls "ecological democracy:" the fundamental claim that "those communities ofpeople suffering ecological injustices must be afforded greater participation in the decision-making processes ofcapitalist industry and the state.,,37

34 Piven and Cloward, 37. 35 J. Timmons Roberts and Meliss M. Toffolon-Weiss, Chroniclesfrom the Environmental Justice Frontline, Cambridge, UK: Cambridge University Press, 2001, 10. 36 "Principles ofEnvironmental Justice," Web Resourcesfor Environmental Justice Activists, http://www.ejnet.org/ej/princip1es.html. 37 Daniel Faber, "Introduction," in The Struggle For Ecological Democracy: Environmental Justice Movements In The United States, ed. Faber (New York: Guilford Press, 1998), 1.

18 However, in theory and practice, environmental justice and civic environmentalism separate into two general approaches: a narrower focus and a broader focus. Narrower-focus strategies seek to involve citizens more directly in political processes so that they can fight specific injustices, while broader- focus strategies seek to change the very political, economic, and social structures that created the injustices in the first place.

The narrower focus emphasizes the right ofcitizen access to legislative and judicial procedures.38 Yet, like Piven and Cloward's argument for disruption, the narrower conception ofgrassroots environmentalism runs up against the limits ofinstitutional systems. Narrower-focus strategies tend to involve more reactive than proactive strategies, with citizens' groups constantly on the defensive in fighting environmental injustices. As Julian Agyeman explains, "[R[eaction is the political reality for many communities starved of resources. The purveyors ofenvironmental bads...are favored in pluralistic decision-making processes because oftheir disproportionate influence,

economic muscle, and knowledge.,,39 David Naguib Pellow and Robert J.

Brulle argue that this narrower approach diminishes the environmental justice movement's potential power: "[T]he focus on justice and redress through the

existing legal system may actually reinforce the very institutional relations that

create and maintain environmental injustice. This dynamic demonstrates that it

38 Julian Agyeman, Sustainable Communities and the Challenge ofEnvironmental Justice (New York: New York University Press, 2005), 7l. 39 Agyeman. 3.

19 is necessary to reframe environmental justice and to tie its radical analyses of the causes of environmental injustice to its action strategies.,,40

A third wave of civic environmentalism theory argues for following this broader conception of environmental justice. The Environmental Justice

Principles encourage activists to "promote economic alternatives which would contribute to the development ofenvironmentally safe livelihoods; and to secure our political, economic, and culturalliberation.,,41 William Shutkin calls this concept a "systems approach," in which citizens "engage in planning and organizing activities to ensure a future that is environmentally healthy and economically and socially vibrant at the local and regionallevels.,,42 In his exploration ofenvironmental justice as "ecological democracy," Daniel Faber explains how broader-focus strategies change the kinds ofchoices communities must make. He argues that the benefits of a legislative victory, for example, are less meaningful when a community must choose environmental and health protection over revenue and jobs: "Unless movements for environmental justice can address the political-economic tradeoffs, their conception ofecological democracy as a 'participatory democracy' will remain extremely limited.,,43

40 David Naguib Pellow and Robert J. Brulle, Power, Justice, and the Environment: A Critical Appraisal a/the Environmental Justice Movement (Cambridge, MA: The MIT Press, 2005), 294. 41 "Principles ofEnvironmental Justice." 42 William Shutkin, The Land That Could Be: Environmentalism andDemocracy in the Twenty-First Century (Cambridge, MA: The MIT Press, 2000),14. 43 Daniel Faber, "Introduction," in The Struggle For Ecological Democracy: Environmental Justice Movements In The United States, ed. Faber (New York: Guilford Press, 1998), 14.

20 He claims true environmental justice attacks the roots ofthe problem, rather than simply shifting the injustice from one "backyard" to another.44

Ultimately, both narrower and broader definitions and strategies can play important roles in environmental justice campaigns. Working to change larger political and economic structures opens up opportunities for smaller environmental justice victories - or, ideally, could prevent the injustice in the first place. Changing these structures also rebalances networks ofsocial interdependence, giving formerly less powerful groups more disruptive power.

At the same time, however, such broad-focus ambitions are much more difficult to achieve. Smaller goals may be ultimately less transformative but also more attainable. Involving citizens in the political process against specific injustices or using disruptive protest tactics could pave the way to deeper- seated changes. These activities can incrementally shift the balance ofpower and force communities and decision-makers to begin thinking about the larger issues. Pellow and Brulle call for a combination ofnarrow and broad strategies, proposing that "creating innovative practices through existing entities" and

"developing new institutions apart from traditional ones" will be "the next generation ofenvironmental justice theory and action." 45

Identifying the varying success ofnarrow and broad approaches is one way to analyze the Black Mesa and West Virginia cases. However, another element ofactivism strategy also plays an important role in the two cases:

44 Daniel R. Faber and Deborah McCarthy, Green ofAnother Color: Building Effective Partnerships Between Foundations and the Environmental Justice Movement, A Report by the Philanthropy and Environmental Justice Research Project, Northeastern University, 200 I, http://downloads.issuelab.org/ 1667Another_Color]inal_Report.pdf, 27. 45 Pellow and Brulle, 295.

21 framing the campaigns for the public. Both environmental justice and broader social movement literature stress the importance ofcreating a shared understanding about the cause, which, according to Patrick Novotny, "filters the problems it is confronting through the history, the beliefs, the language and the cultural experiences that are seen by its leaders as most likely to engender widespread sympathy and involvement.,,46 Here the role ofpolitical culture comes into play, as it can subtly yet powerfully shape individual and group political behavior. Daniel Elazar describes, "[I]ts influence lies in its power to set reasonably fixed limits on political behavior and to provide subliminal direction for political action in particular political systems.,,47 The most successful activists can take advantage ofpolitical culture to "draw on the cultural stock for images ofwhat is an injustice, for what is a violation ofwhat ought to be.,,48 At the same time, framing can be prove to be crucial to overcoming the perceived limits ofculture, which Piven and Cloward describe as "evolved in the context ofunequal power" and therefore a reinforcement of inequality.49 In the way they present their cause to communities and the public,

activists must maneuver skillfully within the political culture.

All ofthese elements ofsocial and environmental justice theory share a

growing emphasis on the importance ofplace. The most powerful movement

frames draw deeply from the political culture that, Elazar argues, is grounded

46 Patrick Novotny, T¥here We Live, Work and Play (Westport, CT: Praeger, 2000), 27. 47 Daniel 1. Elazar, The American Mosaic: The Impact o/Space, Time, and Culture on American Politics (Boulder, CO: Westview Press, Inc., 1994),3. 48 Mayer N. Zald, "Culture, ideology, and strategic framing," in Comparative Perspectives on Social Movements, ed. Doug McAdam, John D. McCarthy, and Zald (Cambridge, UK: Cambridge University Press, 1996),266. 49 Piven and Cloward, 1.

22 in a specific space and time. In addition, both narrower and broader strategies share a growing emphasis on grounding activism deeply in a sense ofplace.

Theorist DeWitt John's description ofnarrower civic environmentalism stresses how state, rather than national, governments have a comparative advantage in tackling environmental problems because oftheir deeper connection to place. Instead ofgeneric federal regulations, states "can customize initiatives to distinctive state-level conditions, institutions, and values."so Instead ofthe more passive civic participation in federal politics, "in a smaller political unit, there are many more opportunities for active, personal involvement in making decisions."sl Similarly, Shutkin explains that environmental justice's focus on culture, economics, and politics "is rooted in a place, a physical environmental conducive to collective action and community building.. .In a civic democracy, place and community are mutually constitutive and reinforcing."s2 He describes specific sites of"civic formation," where citizens can meet, talk, plan, and make decisions, as "the bedrock ofcivil society."s3

Here, however, the environmental justice theory, especially broader- focus civic environmentalism, struggles to connect local efforts to the overarching rhetoric ofa "movement." Environmental justice scholars call for leaders to develop a "coherent national strategy"S4 and "go global,"ss and for

50 DeWitt John, Civic Environmentalism: Alternatives to Regulation in States and Communities (Washington, D.C.: Congressional Quarterly, Inc., 1994),273. 51 Ibid. 52 William Shutkin, The Land That Could Be: Environmentalism and Democracy in the Twenty-First CentUly (Cambridge, MA: The MIT Press, 2000), 31. 53 Shutkin, 30. 54 Pellow and Brulle, 294.

23 individual campaigns to "evolve into a political force which challenges the systemic causes ofsocial and ecological injustices as they exist "'in everyone's backyard. ",56 However, almost all actual examples ofthis deeper civic environmentalism extend no farther than small communities. Scholars describe

Chicago's efforts to expand healthy food offerings and connect farmers with customers, sustainable neighborhood businesses replacing a proposed transfer station, or "smart growth" planning in suburbs. However, as far as offering models that combine meaningful civic environmentalism with the magnitude of a true movement, the literature remains mostly silent.

Taken together, these strands ofactivism theory offer both guidance and questions. The literature points to the need to revolutionize decision-making processes, whether through disruption from the outside or greater participation from within. Yet it also argues that these reforms will be limited unless groups can change underlying structures that create injustices in the first place. Social movement theory also stresses how framing campaigns can shape their groups' success. However, does the overwhelming emphasis, in both theory and practice, on place-based activism contradict the call for creating a larger environmental justice movement? While the literature provides a framework for exploring the two cases ofactivism in Arizona and West Virginia, the two cases also can begin to answer this question with examples ofhow efforts that are rooted in a place can also connect and swell into a broader and deeper push for change.

55 Pellow and Brulle, 296. 56 Faber and McCarthy, 27.

24 The Black Mesa Case

The Black Mesa case illustrates the power ofcultural framing, offers examples ofways to strengthen citizen participation, and demonstrates how narrower goals can build towards more systemic goals - as well as how separate local efforts can meaningfullly build toward a movement. While the

Black Mesa indigenous and environmental groups have not completely shaken the Navajo and Hopi economies' dependence on coal, they did succeed in shutting down down their main opponents: Peabody Coal's Black Mesa Mine, and the Peabody's sole customer, a power plant in Nevada. In 2005, the power plant closed, forcing its supplier, Black Mesa Mine, also to halt operations.

While the aquifer is not permanently protected, and Peabody could still try to find new customers or build new coal mines, for now, at least the Black Mesa protesters have won their case.

Navajo and Hopi organizers built grassroots support by framing the aquifer depletion as a threat to cultural heritage. They presented this upwelling ofsupport to the councils not only by collecting signatures opposing the mine's use ofthe aquifer but, even more powerfully, convincing local governments to

pass resolutions demanding that the Black Mesa Mine stop pumping the

aquifer. When they brought these resolutions to the tribal councils, they also

emphasized alternatives to pumping: they recommended that the councils look

for new, less water-intensive ways to transport the coal. The strategies won at

25 least a short-term victory: the councils eventually also voted to end the aquifer­ pumping - although not to shut down the mine altogether.

Meanwhile, the Grand Canyon Trust, a group that had joined the Black

Mesa coalition, created another pressure point: the Mohave power plant which received the mine's coal. In 1998 the Grand Canyon Trust had successfully sued the plant for violation the Clean Air Act. The plant had to decide whether to install costly scrubbers or shut down altogether. Mohave's owners were faced with the combined costs ofinstalling the scrubber pollution controls and having to meet the tribal councils' order to find a new shipping method. They decided to shut the station down. Its sole buyer gone, Peabody Coal was forced to close the Black Mesa mine. Alarmed that the mine would actually close, the

Navajo and Hopi tribal councils began frantic negotiations with Peabody and

Mohave to try to find a way to keep the operations running without using the

N-aquifer. Yet Mohave ultimately decided the power plant was not worth the trouble.

Because the Black Mesa mine is no longer in operation and pumping the aquifer, the indigenous-environmental coalition can claim a significant victory. To be sure, they have no guarantee offuture protection from mining's environmental damages, especially given the tribal councils' desperate last­ minute negotiations with Peabody. However, the keys to the activists' success

- compelling frames, organized citizen and local government support,

alternatives, and third-party allies - point to the potential for broader solutions.

The activists are now working to strengthen local governments, involve a wide

26 range ofcitizens in developing viable alternatives to the coal industry, and reach out to California energy users and ratepayers to build renewable energy networks.

Mixed Success: West Virginia Cases

While the closing of a single mine ended the most pressing issue for the

Arizona groups, mountaintop removal presents a more pervasive problem in

West Virginia. The anti-mountaintop removal activists have not gained any larger-scale legislative protection from the fundamental problems of mountaintop removal. The state ofWest Virginia, from the WVDEP to the all three branches ofgovernment, depends heavily on coal for revenue and jobs.

The West Virginia activists, despite their persistent arguments that they are fighting for healthy communities and economies as well as for trees and rivers, have failed to counter the ever-present mantra "Coal keeps the lights on" or the cultural and political sway oftheir mining union opponents. The groups also lack the backing oforganized support such as the chapter house resolutions; their fiery comments at mine permit hearings and their individual lobbying have had little effect. In addition, even though mountaintop removal mining itselfis not an integral part ofthe state economy, activists still cannot overcome the underlying public conviction that coal in general not only keeps the lights on but pays the bills to keep the lights on. Activists have won cases only when a victory would not significantly threaten the coal industry's

contributions, such as when the state forced a company to cover a coal

27 processing plant with a dome to protect a town's air quality.57 Even though these small successes demonstrate the importance ofalternatives that do not threaten the economy, the activists have never formulated concrete plans for long-term economic alternatives to the coal industry.

Lawsuits addressing more fundamental problems ofmountaintop removal have failed, pointing to the need for new tactics such as finding more strategic allies. In three lawsuits the federal courts initially found the WVDEP and Army Corps ofEngineers guilty ofviolating the Surface Mining and Clean

Water Acts, but the cases all died on appeal in the notoriously conservative

Fourth Circuit ofthe U.S. District Court. 58 The court decisions focused more

attention on the state's, rather than the federal government's responsibility to regulate. However, with the WVDEP and the state government unwilling to

crack down on mining, a new leverage point against the coal industry could be helpful. Yet the activists have no equivalent to the Grand Canyon Trust and its

influence on the Mohave power plant.

Through the lens ofthe Black Mesa activists' successes, the Arizona

case suggests four central weaknesses in the West Virginia activists' work:

their failure dominate cultural frames, organize citizens' voices into a coherent

force, suggest ways diversify the economy, and find larger allies to help change

the patterns ofpolitical access. At the same time, lessons from Black Mesa

underscore the potential in some ofthe West Virginia activists' broader-focus

57 Paula Canterbury, "We're Called the Dustbusters," in Mountaintops Do Not Grow Back: Stories ofLiving in the Midst ofMountaintop Removal Strip-Mining, interviewed by Carol Warren (Huntington, WV: Ohio Valley Environmental Coalition), 4. 58 Hasselman, under "The Decisions."

28 efforts. Attempts to reach out to the mineworkers' unions are currentlyfraught with tension, but could ultimately give the activists their most powerful cultural and political resource. Campaign finance reforms could also decrease the economic influence ofthe coal lobby and increase the power ofcitizen voices even without the support oflocal governments. Similarly, strengthening the

WVDEP's regulatory progranl would give citizens more opportunities to voice their concerns and, ideally, give the WVDEP more resources to address them.

Finally, a slowly developing new vision for West Virginia's economy, which includes tourism and renewable energy, could begin to counter the clout ofthe coal industry.

This thesis traces these themes through the Black Mesa and West

Virginia cases. Chapter 2 describes how even within the very problem ofthe depleted aquifer lay the foundation for the activists' ultimately successful strategies. Chapter 3 explains how the combination offour key advantages allowed the Black Mesa activists to win their case: cultural framing, organized local support, compelling alternatives, and third-party alliances. Chapter 4 shows how expanding these strategies into broader-focus tactics deepens the victory. Using lessons from the Black Mesa story to analyze the West Virginia groups' struggles, Chapters 5, 6, and 7 explain how, even though the problem ofmountaintop removal offers opportunities for successful strategies, the activists have not been able to gain those four advantages - but that broader­ focused efforts may eventually be able to create real change. The thesis argues that narrower-focused battles emphasize the need for broader efforts, and

29 explores the potential ofcombining narrow and broad strategies. Ultimately, the cases reveal how, from out the complexity ofinjustice, interconnected solutions can emerge, which can be rooted richly in place yet build, through their relationships, toward a meaningful push for even broader and deeper change.

30 Chapter 2 The Endangered Aquifer: Environmental and Cultural Injustice on Black Mesa

Introduction

Crossing nearly 300 miles ofrough desert terrain, Peabody Coal's pipeline sucked water from Navajo and Hopi's main aquifer and endangered the tribes' livelihood and culture. Water is precious on Black Mesa, where only 7-12 inches ofrain fall a year, and where no springs flow year-round.59

The seasonal springs which the aquifer feeds are vital to Hopi and Navajo agriculture, livestock, cleaning, and drinking, as well as part oftheir religious ceremonies.60 As Peabody Coal's mine pumped over a billion gallons ofwater from the aquifer each year, many tribal members accused Peabody of destroying sacred land, depleting the groundwater, and permanently damaging the aquifer. Yet the Navajo and Hopi had to fight for years to find scientific support for their claims ofdamage to the aquifer, as the federal Office of

Surface Mining Reclamation and Enforcement dismissed their concerns.

Examining the environmental threat, and the debate that surrounded it,

underscores the importance ofthe activists' struggles. Both the threat to the

aquifer and the federal government's lack ofconcern undermined Navajo and

Hopi culture, and the federal government's dismissal also shifted the focus to

the governing bodies most dependent on the mine: the tribal councils. Yet

these challenges also shaped the actions that led to the organizers' success by

59 Natural Resources Defense Council, "Drawdown: Groundwater Mining on Black Mesa," http://www.mdc.org/water/conservation/draw/chapl.asp. 60 Ibid.

31 providing the opportunity for powerful cultural framing and forcing the activists to develop alternatives and build outside support.

Living on Black Mesa: Physical and Spiritual Survival

Understanding the connections between the tribes and their Black Mesa home helps explain the layers ofscientific, political, and cultural significance ofthe water debate. It also explains the rich cultural legacy which the activists use to gain support from both the grassroots and the tribal government. Black

Mesa itselfforms the shape ofa hand, spreading five fingers across the arid

Navajo and Hopi land. Hopi villages cluster around the fingers, and Navajo land is farther north, in the palm. The Hopi have lived on the Mesa for so long that one oftheir communities is widely believed to be the longest continually inhabited settlement in North America. To the Hopi, the mesa is a spiritual place, home oftheir shrines and burial grounds. According to Hopi legend, the guardian of creation, Massau, told the Hopi that Black Mesa is the center ofthe world. When Peabody's dynamite and earth-movers tore back in the earth they destroyed not only the landscape, but shrines, archaeological sites, and the

settings for traditional Hopi stories.61

Yet, to both the Hopi and Navajo who live on Black Mesa, perhaps the most sacred part ofthe landscape is the water that lies beneath its surface.

Under the mesa, four layers ofaquifers stack on top ofeach other. The second­

deepest, the Navajo-aquifer (N-aquifer) is by far the purest. Protective sheets

ofmudstone and sandstone preserve the water quality so effectively that,

61 Ibid.

32 unfiltered, it naturally surpasses the EPA's standard for drinking water.62

Rainwater enters the N-aquifer from the northwestern comer ofthe mesa, on the Shonto Plateau, and seeps through the mesa's bedrock, through the

"fingers" near the Hopi villages, finally surfacing in washes and springs on the mesa's southern edge.

Figure 1.

ChiDJ,

.. ·t- -I Diagram of Black Mesa. [Source: Black Mesa Weavers for Life and Land, http://www.migrations.com/blackmesa/blackmesa.html.]

Because four ofthe mesa's twelve Hopi villages have no water systems, and the other eight only have rudimentary plumbing or a common village well, the natural purity ofthe N-aquifer is especially important. The villagers have no other source ofwater, and the majority ofresidents draw theirs from the village pump or haul it in buckets.63 The N-aquifer provides the region's only high-quality water; the water from the other three aquifers is either brackish or

contaminated by uranium and coal deposits. The Hopi, especially, use the

springs as pilgrimage sites, and use its water, the clay from its banks, and the

62 "The Navajo Aquifer," Black Mesa Trust, http://www.blackmesatrust.org/naquifer.htm. 63 Ibid.

33 reeds and spruces it feeds in their rituals. According to Hopi mythology, the springs were planted in the bedrock by the gods. 64 Because the aquifer played a crucial role in the groups' physical and spiritual survival, its destruction was doubly devastating - yet the call to save it could be doubly powerful.

The Aquifer at Risk: Unnecessary Extremes

The source ofthe destruction lay at the northern edge ofthe mesa, where the Black Mesa Mine had been pumping the aquifer as the water began its journey toward the southern springs. The pumping was not only extensive but unnecessarily so, deepening the injustice yet making alternatives that much easier to propose. The Black Mesa mine opened in 1970, and by the time it shut down in 2005, Peabody Coal had unearthed approximately 150 million tons of

coal65 and pumped over 44 billon gallons ofgroundwater. The mine used the water to propel coal through a slurry line, an all-but-obsolete form of

transporting coal. Peabody would grind the mined coal to a powder, then mix

it with water to form the slurry mixture, which they would ship through

pipelines 273 miles to the Mohave Generating Station in Laughlin, Nevada.

Since the late 1980s, hydrogeologists from the Department ofthe Interior's

Office ofSurface Mining have been monitoring the N-aquifer, using data from

the U.S. Geological Survey. By the Geological Survey calculations, Peabody

has withdrawn a yearly average of4,000 acre-feet ofwater, or 1.3 billion

gallons. (In contrast, the entire Hopi and Navajo population that relies on the

64 Ibid. 65 "PeabodyWestem Coal Company," Peabody, http://www.peabodyenergy.com/ Operations/CoalOperations-Southwest.asp.

34 N-aquifer uses less than a third ofthat amount, only 500 million gallons a year). For scale, one acre-foot represents one football field covered in a foot of water; 4,000 acre-feet is a football field 400 stories high.

By the time ofthe mine's closure, the Black Mesa pipeline was the only coal slurry line left in the nation because this intense drain on the resources made the process so unpopular. In fact, in the late 1970s, the U.S. Office of

Technological Assessment was already warning that mines should use slurry pipelines only in areas with a plentiful water supply.66 Yet the country's last slurry line was operating full force in a region that received no more than 12 inches ofrain a year.

True to the U.S. Office ofTechnological Assessment's warning, since the 1980s Hopi elders have claimed that springs on the southern rim are drying up. Reports from the Natural Resources Defense Council in 2000 and 2006 argued that the pumping had severely damaged the N-aquifer, creating an effect called "drawdown" where water pressure drops and threatens the structural integrity ofthe aquifer. When the tiny holes in an aquifer's sediment compact, the water can no longer percolate through these pores, and the aquifer can permanently lose its storage capacity.

The reports relied on U.S. Geological Survey data to argue that the slurry operations were weakening the aquifer. This data, collected for the past two decades, revealed that the water level has dropped over 100 feet in some wells, while the majority ofaquifer-fed washes and springs are discharging

50% less water than before. In addition, some areas appear to be contaminated

66 Ibid.

35 by low-quality water from the aquifer above it, indicating that the stress on the

N-aquifer was weakening the aquifer's structure and causing water to leak down from above.67

Adding to the ecological damage, the pipeline broke 12 times between

1994 and 1999 alone, according to the EPA. Eight ofthe breaks spilled coal slurry into the nearby washes. The most recent spill happened even after the

EPA called on the pipeline managers to take corrective measures against the frequent pipe breaks. In addition, during maintenance procedures, workers used fresh water to wash the inside ofthe pipe, letting the toxic, slurry- contaminated wastewater flow into ranchers' stock ponds or simply straight back into the ground. Hopi farmers and Navajo herders also lost water from major washes when Peabody captured surface runofffor its impoundments.68

Debating the Damages: Federal Government Dismissal

The severity ofthe Navajo and Hopi's concerns, however, could not convince the Office of Surface Mining to take action against the slurry line.

Instead, Office ofSurface Mining repeatedly insisted that a drought rather, not

Peabody's operations, was causing the aquifer damage. The activists had to

commission the Natural Resources Defense Council to review the geological

surveys ofthe aquifer to find evidence for the problems with pumping. The

ensuing debate laid the groundwork for future course ofthe activists' struggles.

Even though the Department ofthe Interior, ofwhich the Office ofSurface

67 Ibid. 68 Ibid.

36 Mining is a bureau, has a "tmst responsibility" to ensure the livelihood ofthe

Hopi and Navajo including their access to a sustainable water source, the

Office ofSurface Mining's dismissal ironically shifted the tribal government into a more critical role than the federal government.69 Yet the debate also reinforced the importance ofspiritual beliefs and initiated the activists' strategy ofconnecting to outside resources.

It remains unclear why the Office ofSurface Mining and the Natural

Resources Defense Council interpreted the geologic surveys so differently. It is tme that groundwater systems are highly complex and the science surrounding them still open to some interpretation, but the Office ofSurface

Mining also glossed over key findings. The Peabody Coal Company also played a large role in shaping the Office ofSurface Mining's analysis: Peabody worked with the U.S. Geological Survey to collect the data70 and also created the computer models the Office ofSurface Mining used to analyze the data. 71

Meanwhile, Navajo and Hopi interpretations ofthe problem clashed with the government analysis. Hopi water-rights activist and former council chairman

Vernon Masayesva explained, "In Western science they will tell you everything

is disconnected in neat little compartments. In telling you the water [on the

surface] is not connected to the aquifer, they are telling you your thumb is not

69 Even more specifically, very text ofthe Peabody Leasing Act obligated the Department of the Interior to protect the tribes' water rights, allowing the Department to end the pumping ifit was "endangering the supply ofunderground water in the vicinity or so lowering the water table that other users ofsuch water are being damaged." (Source: Natural Resources Defense Council, "Drawdown: Groundwater Mining on Black Mesa," quoting Mining Lease between the Hopi Tribe, State ofArizona, and Sentry Royalty Company [later Peabody Western Coal Company], June 6, 1966,3. 70 Natural Resources Defense Council, "Drawdown: Groundwater Mining on Black Mesa." 71 Sean Patrick Reily, "Gathering Clouds," Los Angeles Times, June 6, 2004.

37 connected to your toes. The Hopi [and Navajo] are saying that it doesn't work that way. In our science, we know everything is interconnected. Everything is universally together, each part to make the other work."n

According to Hopi science, the springs are drying up because ofa broken covenant with the guardian ofthe land, who promised Black Mesa to the Hopis ifthe Hopis would use its resources carefully. Masayesva explains,

"\\Then we turned something sacred, our water, into a commodity that you sell, this is where our water problems began. This is our knowledge. This is our science. But they say that this is just an Indian story because we can't measure that, quantify that, can't put it into your computer.,,73 Navajo religion emphasized a similar fundamental brokenness. Navajo science views the earth as female and the sky as male, and their relationship as the force that keeps the world in balance. Navajo activist Nicole Horesherder described how pumping the aquifer threatened the balance: "The relationship between the two has been disrupted. By drawing out so much groundwater you can see the sky and rain

clouds change. It is the relationship ofthe earth drawing water from the sky and

the sky drawing water back from the earth that creates the harmony.,,74

The debate pitted Navajo and Hopi spirituality against the Office of

Surface Mining's interpretation ofthe U.S. Geological Survey Results,

undermining the religion's validity just as the pumping itselfthreatened the

religious practices. By dismissing the citizens' concerns, the Office ofSurface

Mining not only brushed offNavajo and Hopi science but also cultural and

72 Ibid. 73 Ibid. 74 Ibid.

38 spiritual values. As Masayesva argued, "OSM [the Office ofSurface Mining] has not approached an impact assessment using the values and cultural perspective ofthe people it claims to protect, but rather from the utilitarian perspective ofthe company it is supposed to regulate...OSM does not view water drawn from the Navajo Aquifer as sacred, but as a commodity whose value lies in its utility." 75

The Black Mesa residents' frustrations with Office ofSurface Mining prompted an early version ofa tactic that ultimately helped the activists shut down the mine: looking to a resource-rich third party for help. In 1998, Vemon

Masayesva recruited the Natural Resources Defense Council to examine both the Geological Survey data and the Office ofSurface Mining's assessment based on that data. In a 2000 report and a follow-up in 2006, hydrogeologists hired by the Council proposed that the Office ofSurface Mining's analyses were flawed, both because ofthe U.S. Geological Survey's incomplete monitoring and the Office ofSurface Mining's over-reliance on outdated hydrogeologic models.76

In its periodic reports, the Office ofSurface Mining has evaluated the health ofthe aquifer using four criteria which the U.S. Geological Survey measures: structural stability, water quality, and discharge levels for both springs and washes. Even though at least two wells showed signs ofstructural failure, the Office ofSurface Mining dismissed the problem. The federal office

75 Tanya Lee, "Senate Committee hears Black Mesa Trust testimony on Peabody mining," FlagstaffTea Party 3, no.8 (2002). 76 Ibid; Natural Resources Defense Council, "Drawdown: An Update on Groundwater Mining on Black Mesa," http://www.nrdc.org/water/conservation/draw/draw.pdf.

39 also rejected evidence of contamination from the aquifer above the Navajo

aquifer, arguing that sampling error and mislabeling discounted the Geological

Survey's results. 77 To assess the water flow, or discharge, in the springs and washes, the Office ofSurface Mining plugged a series ofdata into computer

models based on a 1994 model ofthe Black Mesa groundwater systems.

According to the models, the discharge from springs and washes had not fallen

10% below normal levels, thereby meeting the Office ofSurface Mining

criteria. However, the actual data from the U.S. Geological Survey sites

revealed discharge reductions in multiple springs, with rates falling 10% to as

much as 85%, depending on the baseline. In fact, discharge in seven ofthe nine

monitored springs had dropped 30% since before the mine opened. Geological

Survey records also showed reductions of50% in discharge to the washes, even

though, again, the computer simulations reported that there should be no

significant difference.

Finally, Peabody and the Office ofSurface Mining claimed that the

aquifer continually recharges as rainwater flows into the aquifer. However,

calculating the recharge rate is as complicated as the other hydrologic

77 The OSM's dismissal ofthe USGS evidence is based on a technicality. The USGS's standard for structural stability is that the confmed groundwater, when tapped, must rise to 100 feet above the top ofthe aquifer. This measurement is called the potentiometric head. Meeting the USGS standard means the water pressure should be high enough to keep the aquifer "confined," protected against leakage from other layers ofpoorer-quality groundwater. In the USGS report, 6 out of 15 ofthe wells in the confined aquifer area showed that the potentiometric head had dropped below 100 feet. Yet the OSM immediately dismissed four of the wells' results because the wells were located too close to the unconfmed section ofthe aquifer, and therefore unreliable. Ofthe other two sites, the OSM ignore one set ofdata altogether, and claimed that the other did not represent new damage because the potentiometric head was already 99 feet above the aquifer during the first study. Even though the groundwater had still dropped over a hundred feet, now below top ofthe aquifer itself, the OSM continued to reject the evidence. (Natural Resources Defense Council, "Drawdown: An Update on Groundwater Mining on Black Mesa.")

40 questions. In the early 19808, the USGS estimated that the N-aquifer could replenish itselfat the rate of13,000 acre-feet each year. The Office of Surfac:e

Mining and Peabody pointed to this statistic to show that their 4,000 acre-foot withdrawal was sustainable. However, four years later, the U.S. Geological

Survey revised their analysis; this time they estimated that the recharge rate was only 2,500-3,500 acre-feet a year. Ifthe government's own estimate is correct, the slurry line was clearly operating on borrowed time.78

Not only were the Hopi and Navajo activists fighting a serious threat to the health ofthe land and people, but the federal government, responsible for protecting the tribes' interest, had brushed aside the problem and undermined

Hopi and Navajo religion. For help, the Navajo and Hopi had to rely

increasingly on the tribal councils, which were dependent on the mine, and

which were even created for the specific purpose offossil fuel extraction. Yet

the very complexities ofthe problem provided initial impetus for three ofthe

strategies that the activists have used most successfully in both long-term and

short-term campaigns: emphasizing collective cultural heritage, suggesting

alternatives to the problem, and gaining outside support.

78 Natural Resources Defense Council, "Drawdown: An Update on Groundwater Mining on Black Mesa."

41 Chapter 3 How to Shut Down a Mine: The First Black Mesa Victory

Introduction

This chapter is the analysis ofa tentatively happy ending to a complex story. In their central goal offorcing Peabody Coal to stop pumping the aquifer, the Black Mesa activists have, for now at least, succeeded. Not only did the

Black Mesa Mine shut down in 2005, but so did the Mohave Generating

Station, which bought all ofthe mine's coal. Out ofmulti-layered

environmental injustice, and out ofan equally intricate narrative ofconverging

forces ofactivism, clear patterns emerge that point to keys to the Black Mesa

activists' success in shutting down the mine. Environmental justice theory

provides a helpful framework for the analysis, with its emphasis on the power

ofcultural framing and the need to involve more citizens in the decision-

making process, as well as its anticipation ofthe challenges ofgrassroots

activism in the context ofunequal power.

On Black Mesa, Peabody Coal seemed to hold the power. Yet even

though the tribal councils depended heavily on the Black Mesa mine for

revenue and employment, they, rather than the federal government, played the

most important governmental role in protecting the health ofthe aquifer and the

people. While the Office ofSurface Mining ignored reports that Peabody's

pumping was damaging the aquifer, the tribal councils voted Peabody offthe

aquifer. How did the Black Mesa activists overcome the councils' economic

bias towards the Black Mesa Mine? Four crucial elements led to their success:

42 powerful cultural framing, strengthening the collective voices ofindividuals with the support oflocal governments, emphasizing alternatives to the problem, and accessing new leverage points through third-party connections.

Again, many oftheir advantages flowed from their problems. Using the aquifer's central role in subsistence and religion as a rallying point, the activists were able to build grassroots support around shared cultural heritage. Rather than simply trying to amass scattered individual voices, however, they organized and magnified their collective voice by convincing local chapter houses to pass resolutions against the aquifer pumping. The activists rooted their proposal to the council in religious and cultural arguments, and strengthened their case by using the power ofthe chapter house support and proposing realistic alternatives to the pumping. The alternatives downplayed the sacrifices the tribes would have to make, so that the proposal seemed less of a contest between the activists' contributions to the councils and Peabody's contributions.

Finally, the activists found a leverage point outside the tribal councils when their partnership with the Grand Canyon Trust allowed them to pressure the Black Mesa Mine from the angle ofthe power plant that received the mine's coal. Yet while these tactics added up to narrower victories, the tribes' dependence on the mine repeatedly threatened the undo the changes the activists' had achieved. The activists have continued to succeed because of their ability to adapt the four-part approach to push for increasingly deeper forms ofchange.

43 The Early Campaign: Struggles with the Government

While the campaign against Peabody has only more recently spread to the Navajo Nation, the fight began with the Hopi halfa century ago. The Hopi tribe's lease agreement was born out ofcontroversy and deep factionalism, and the conflict had been simmering ever since. In the years after the lease was signed, Hopi elders' lawsuits, protesting the unconstitutionality ofthe lease, were roundly dismissed. As the struggle reemerged, the activists' early work demonstrated the limitations ofworking within the tribal government and appealing to the national government.

Years after the Hopi elders lost their lawsuits, one man, Vernon

Masayesva, revived the fight against the mine. Masayesva had been a high­ school student when the lease with Peabody passed, and during his high school and college years he regularly attended tribal council meetings, captivated by listening to his elders speak and increasingly outraged by the Black Mesa Mine lease. He says he remembers vividly how the elders began to lose their voice in the council discussions ofthe lease. He recalls "the way the elders were being treated, ignored and ridiculed throughout that process.,,79

Provoked by the injustices he saw, he first sought - and then failed - to fight the aquifer depletion from within the government. Masayesva was elected to the council in the mid 1980s and quickly rose to the position ofChairman.

During his time on the council, he was able to convince the members to negotiate a slightly better deal with Peabody, and to convince the Secretary of the Intelior to turn down Peabody's 1994 bid for a permanent mining permit on

79 Reily.

44 the Black Mesa Mine. This forced Peabody to continue having to renew the lease every few years.80 Still, frustrated by the tribal council's refusal to fight the lease head-on, Masayesva decided not to make a bid for office in 1994, but to turn to a decidedly Westem form ofpolitics which the Hopi had rarely used: grassroots organizing. Masayesva explained, "I decided instead I needed to work with the grass-roots people who had not been represented, ever. ..I decided to put all my energy to fighting the fight from outside the [tribal] govemment.,,81

However, when Masayesva turned to the federal govemment for help, the govemment ignored his concems. The u.S. Office ofSurface Mining, responsible for ensuring that the mining processes do not pose an environmental threat, assessed the environmental impact ofthe Black Mesa

Mine during the 1990s. The Hopi delivered the Office ofSurface Mining hundreds ofpages oftestimony showing that the Navajo aquifer was suffering.

The Office ofSurface Mining never used the Hopi testimony.82 Instead, they

supported Peabody's claim that the deep groundwater they were pumping did not affect the water that the Hopi and Navajo communities used, which lay

closer to the surface. To strengthen the voice ofHopi testimony, Masayesva

founded the nonprofit Black Mesa Trust in 1998, and, together with the local

Flagstaff chapter ofthe Sierra Club, hired the Natural Resources Defense

80 Ibid. 81 Ibid. 82 Natural Resources Defense Council, "Water Life: An Interview with Vernon Masayesva, http://www.nrdc.orglwater/conservation/ivmblmesa.asp.

45 Council for a second opinion on the effects ofaquifer pumping.83 In 2000, the

Natural Resources Defense Council published a comprehensive study that criticized the Office ofSurface Mining's interpretation ofthe aquifer studies, and warned that the aquifer was in danger ofdepletion and collapse.84

Negotiating with Peabody: An Initial Victory

As the Natural Resources Defense Council conducted its study, the

Black Mesa Trust began to organize grassroots support. By sparking a public

outcry against the aquifer pumping, appealing to the tribal councils' sense of

cultural pride, and suggesting alternatives to using the aquifer, the Black Mesa

Trust convinced both the Hopi and Navajo councils to begin negotiating with

Peabody to find a new water source for the slurry.. While Masayesva recalls

that neither the tribal councils nor Peabody paid the activists much attention in

the beginning, in 2001, the Black Mesa Trust found an opening, a leverage

point: Peabody had to renew its mine permit with the u.S. Office ofSurface

Mining. Peabody re-applied for a permanent, or life-of-mine, permit. Ignoring

the Hopi opposition to the aquifer-pumping, Peabody requested to mine still

more coal and use more water to slurry it to Nevada. Peabody's application

D)cused attention on the precise nature ofthe relationship between the mine

company and the Hopi tribe, and the Black Mesa Trust took advantage ofthe

opportunity to push for public comment and debate. He launched a campaign

83 Ibid. 84 Natural Resources Defense Council. "Drawdown: An Update on Groundwater Mining on Black Mesa."

46 against the life-of-mine pennit and gathered 7,000 signatures opposing the mine's use ofthe aquifer. 85

Addressing the tribal councils, the Black Mesa Trust organizers argued that the aquifer was not only crucial to citizens' survival, but also to the preservation ofnative culture, and that the pumping was a continuation ofthe history ofoutside forces exploiting the tribes. "Water is the blood ofthe

Hopi," explained one Black Mesa Trust member. Leonard Selestewa, president ofBlack Mesa Trust, criticized, "All ofthis opulence and greed is sustained at the cost ofthe earth mother." Another activist, a Hopi elder and fonner tribal chainnan, argued that Peabody had duped the tribes to gain the water rights, and that the U.S. government had failed to protect this essential element ofthe tribes' livelihood and culture.86 The activists also emphasized the possibilities ofalternate sources ofwater, while never directly calling for the tribal councils to shut down the mine. The combination ofpublic comments and the activists' arguments swayed the tribal politicians. In 2001, Hopi chainnan Wayne Taylor publicly agreed with the Black Mesa Trust, stating, "The cultural and economic

survival ofthe Hopi and Navajo people depends upon a stable water supply.,,87

Using rhetoric similar to the Hopi activists', the chainnan later elaborated, "¥le

come from the standpoint that water is our lifeblood...It's just unconscionable to be using pristine water such as we have here for industrial use.,,88 By the end

85 Ibid. 86 Editorial, "Hopi and Navajo: Aquifer water a basis for unity," Indian CountJy Today, sec. A, July 18, 2001, http://proquest.umi.com/pqdweb. 87 Brenda Norrell, "Black Mesa gold, a vanishing heritage," Indian Country Today, sec. B, September 12, 2001, http://proquest.umi.com/pqdweb. 88 Daniel Kraker, "Is a coal mine pumping the Hopi dry?" High Country News 34, noA (2002), http://www.hcn.org/servlets/hcn.Issue?issue_id=221.

47 of2001, the Black Mesa Trust had convinced both tribal councils to begin negotiating with Peabody how the mine could find another water source.89

Another Aquifer at Risk

While the Black Mesa Trust had won this smaller victory, forces outside the activists and the tribal councils pushed the councils to make an even broader decision about the value ofthe mine to the Navajo and Hopi. In 2001, the Flagstaff-based Grand Canyon Trust won a lawsuit against the Mohave

Generating Station, the power plant where the Black Mesa Mine shipped all its coal. The Grand Canyon Trust accused Mohave ofviolating the Clean Air Act and forced Mohave's owners to agree to retrofit the station with scrubbers by

December 31,2005, or shut down operations altogether. That was the precise day that the station would have to renew its coal supply agreement with the

Black Mesa Mine. The new scrubbers were expensive, and Mohave's owners wanted to ensure that retrofitting would be worthwhile. They demanded that

Peabody and the Navajo and Hopi councils secure a source ofwater for

s]llppmg. .t h e coa 1..90

Peabody set its sights on a different aquifer, the Coconino or C-aquifer,

120 miles east ofthe original Navajo aquifer (N-aquifer). However, they knew

they could not build a pipeline to transport the aquifer's water before the end of

2005, so they lobbied to extend the tribes' deadline for stopping the pumping of

the N-aquifer. Hesitant ofpaying for the scrubbers before ensuring a coal

89 S.l. Wilson and Tanya Lee, "Peabody must fmd new water source for slurry pipeline - and soon," Newsfi'om Indian Country, sec. A, October 15,2001, http://proquest.umi.comlpqdweb. 90 Reily.

48 supply, Mohave similarly petitioned the Grand Canyon Trust for an extension for installing the scrubbers. The Hopi council chairman and Navajo president supported Peabody's C-aquifer proposal and the requests for extensions.

The chairman and president's support for Peabody showed how shallow

Black Mesa Trust's initial victory had been, since leaders were asking permission for the mine to continue pumping the N-aquifer, and, in the end, merely switch to pumping from an aquifer on which many other Navajo communities relied. A new activist group formed to protest the use ofthe C- aquifer, arguing that the Navajo president's compromise and call for an extension betrayed the Navajo people.91 While the Black Mesa Trust's strategies had convinced the tlibal councils to reconsider pumping the N- aquifer, activists needed the tribal councils to commit to deeper change in order to protect the water supply for all the people on the reservations.

The Navajo Join the Protest

The combined work ofNavajo organizers and their partner, the Grand

Canyon Trust achieved this deeper and broader change. When the Navajo joined the protest, the most ultimately successful strategies began to take shape.

The Navajo, working with the Hopi, strengthened their appeal to citizens' and tlibal councils' cultural connections to the land, harnessed the power oflocal chapter-house support, and emphasized alternatives to the coal slurry process other than the C-aquifer. They finally convinced the Navajo Council to reject

91 Brenda Norrell, ''News from the Southwest," Indian CountJy Today, sec. A, July 12,2006, http://proquest.umi.com/pqdweb.

49 Peabody's request for an extension. Knowing that the tribes' water supplies were at stake, the Grand Canyon Trust also rejected Mohave's extension request. Together, these actions shut down the mine and the power plant.

The cross-tribe partnership began when a Navajo member, Nicole

Horseherder, started questioning the water shortage on Navajo land and several large sinkholes which she believed were caused by the aquifer collapse. In

2001 she hosted a water conference and invited the Black Mesa Trust, the

Sierra Club, and the Natural Resources Defense Councilto share their understanding ofthe effects ofpumping. Angered by what she learned at the conference, Horseherder and her husband, Marshall Johnson, attended the

Navajo Nation Council's spring 2002 meeting to learn how the Navajo Nation was addressing Peabody's request for an extension. Horseherder discovered that the Council barely mentioned the issue; no Navajo was playing

Masayesva's role. Horseherder explained, "It opened our eyes as to how our leaders were letting the situation on Black Mesa happen."n

After the meeting, Horseherder and Johnson threw themselves into a months-long frenzy ofpolitical organizing, dedicated to extending the Black

Mesa Trust's work to the Navajo Nation. They £)unded their own nonprofit,

To'nizh Oni' Ani' (Navajo for "Beautiful Water Speaks"). Horseherder's niece also Wahleah Johns helped found the Black Mesa Water Coalition, a group of both Hopi and Navajo youth.

To oppose the deadline extension, the activists tried a wide range of tactics that at first had limited effects. They drafl:ed a resolution to the u.s.

92 Ibid.

50 Secretary ofthe Interior, then Gale Norton, asking her to stop the pumping and find a new way to transport coal. Members ofboth the Hopi and Navajo groups even traveled to Washington, D.C. to testifY to the Bureau ofIndian

Affairs about the Office ofSurface Mining's failure to protect the tribes' watt::r supply.93 The federal government took no action. Along with the Sierra Club, the activists also bought shares in Peabody Coal and traveled to the shareholders' meeting in St. Louis to propose a shareholder's resolution that

Peabody withdraw from the N-aquifer. Although the groups attracted publicity, the resolution did not pass. On the reservation, Horseherder and Johnson organized a mass horseback ride to the Council's 2002 summer session to draw attention to their concerns, but the council still did not vote to end the aquifer-· pumpmg.. 94

However, the activists' most intensive and ultimately successful effort was launching a grassroots campaign to gain the support ofthe local government chapter houses, a campaign that blended Western science and politics with native traditions.. They consulted elders and medicine men and women to understand the Navajo cultural perspective on the Peabody pumping.

Horseherder, Johnson, and other members took to the road, traveling across the

Black Mesa region ofthe Navajo Nation to explain the aquifer depletion to the chapter houses. As they met with groups of25 to 80 Navajo community members, the activists worked to translate the complexities ofWestern science

into Navajo vocabulary. They used poster boards to sketch how pumping could

93 Tanya Lee, "Senate Committee hears Black Mesa Trust testimony on Peabody mining." 94 Marley Shebala, "Riders push to end Peabody's pumping ofN-aquifer," The Navajo Times, July 18, 2002, http://proquest.umi.com/pqdweb.

51 deplete and depressurize the aquifer. As Horseherder explained, "[W]e carried the wisdom ofboth worlds with us in this effort. We did the kind ofwork that a lawyer could do for us, and at the same time we sought the knowledge, the teaching and the prayers our elders told us we needed in order to tackle this.,,95

After months ofcampaigning, the group convinced 11 out of 14 chapter houses to pass resolutions against Peabody's use ofthe N-aquifer.

The activists' decision to use chapter houses to strengthen their protest

was a wise one. The chapter houses are the local units oftribal government,

and a chapter resolution represents the voice ofa community. A chapter house

resolution would carry more political weight than a collection ofscattered

signatures. In addition, the chapter houses themselves do not receive any

royalties from the coal mine, so are far less dependent on coal than the tribal

council.96 In the chapter house resolutions, the activists found an important

resource: a source ofat least modest political power outside the limits ofcoal

dependency.

The Black Mesa groups asked the Navajo Nation to adopt the

resolutions on behalfofthe entire Navajo Nation, backing up their petition with

viable alternatives to using both the N-aquifer and the C-aquifer. The groups

also proposed alternatives for transporting the coal, advocating the more

traditional conveyor belts, railroads, or trucks, or, ifthe mine insisted on

keeping the slurry line, using reclaimed water from Flagstaffand Gallup, New

95 Reily. 96 Cindy Yurth, "Chapters lament lost perks in wake ofmine closure."

52 Mexico.97 Horseherder gave the council detailed documents outlining a plan, developed over six years ofMasayesva's meetings with water and energy use consultants, for using the reclaimed water. Horseherder explained to the council that she was "trying to be part ofthe solution" - and proposed an even broader-scale solution. While she stated that the groups did not want to shut down the mine immediately, she called for an eventual transition from coal to sustainable energy, which the groups could sell in California and Nevada.98

The groups crafted their petition as an appeal to the council's sense of cultural pride. During one trip to the council session, Marshall Johnson rode on horseback with the written petition tied to his saddle hom. His mother, a

Navajo elder, reminded the council ofhow Navajo medicine men used to make offerings to the Black Mesa water, telling the council, "No one ever thought that this water would be sent elsewhere and used for something other than healing and to continue life.',99 Another Navajo matriarch told the council that the Navajo people's appreciation for the value water and Mother Earth was

"traditional Navajo knowledge and some ofyou know that,,,IOO but that white people had stolen the land and water from the Navajo.IOI She accused the

council offailing to meet their responsibilities to the people and to the water

97 Jennifer Baldwin, Bruce Gertsman, and Elizabeth Gutterman, "Agreeing to disagree; Factions in Peabody water debate seek slurry alternatives," Navajo Times, sec. C, April 10, 2003, http://proquest.umi.com/pqdweb. 98 Shebala, "Council opposes use ofNavajo Aquifer." 99 Marley Shebala, "To Diyinii: Opponents ofNavajo Aquifer pumping must follow bureaucratic trail to be heard," Navajo Times, sec. A, November 27,2002, http://proquest.umi.com/pqdweb. 100 Marley Shebala, "Council opposes use ofNavajo Aquifer," Navajo Times, sec. A, July 31, 2003, http://proquest.umi.com/pqdweb. 101 Shebala, "To Diyinii: Opponents ofNavajo Aquifer pumping must follow bureaucratic trail to be heard."

53 and the earth, describing that the Navajo people felt that their leaders had stopped following "the Navajo way." She told them, "You kind ofjust look to attorneys as leaders."lo2 Yet the activists also avoided relying on the stereotype ofindigenous people as backwards nature-worshippers by emphasized the progressive nature oftheir proposal. "Don't be afraid ofshutting down the mines," Horsheder told the council. "The coal in Black Mesa is going away.

Invest in renewable energy. To'nizh Oni' Ani' just wants to help move the nation in the right direction."lo3

Meanwhile, union workers at the Black Mesa Mine were also lobbying the council, the state ofArizona, and the federal government to keep the mine open, but struggled to match the environmental groups' powerful frame. The president ofthe local United Mine Workers union specifically described the environmental groups' most important strategy as their "invocation ofNavajo religion." She explained, "They made it look like we [the miners] aren't traditional Navajos and aren't environmentalists.,,104 By the ended of2003, both tribal councils voted that Peabody stop pumping the N-aquifer by the 2005 deadline, and demanded that the Office ofSurface Mining enforce the tribes' n~quest.105 The U.S. government is bound by law to protect tribal interests, so the request wielded considerable clout.

102 Ibid. 103 Shebala, "Council opposes use ofNavajo Aquifer." 104 Cindy Yurth, "Caught in the middle; Black Mesa union leader defends, battles Peabody," ]\,Tavajo Times, sec. A, January 19, 2006, http://proquest.umi.comipqdweb. 105 Daniel Kraker, 'The end ofan era on the Colorado Plateau," High Country News, 38, no. 1 (2006)

54 The Grand Canyon Trust's power over the Mohave lawsuit also backed up Horseherder's victory. While Mohave appealed to the Grand Canyon Trust to extend the deadline for the scrubbers, the Trust and the Sierra Club had fonned a strong coalition with the Navajo and Hopi organizers, and knew that extending the deadline would allow Peabody to keep pumping the aquifer.

They refused to renegotiate the deadline with Mohave. 106 Finally, reporter

Daniel Kraker describes that Mohave believed the same argument the activists made to the council: that coal would soon become obsolete: "the coup de grace was administered by the changing energy market."107 Overwhelmed by the costs ofretrofitting and anxious about the uncertainty ofboth the Black Mesa

Mine coal supply and the long-tenn future ofcoal as a fuel, the owners shut the

Mohave station down on December 31,2005. The shut-down triggered the closure ofthe slurry pipeline and the Black Mesa Mine itself.

"The Mother ofAll Campaigns": Ongoing Negotiations

Still, the triple shut-down was not enough to close the case - again revealing how the activists had to extend their strategies to achieve more than the smaller victories. Behind closed doors, Peabody Coal, Mohave's owners,

and members ofthe Hopi and Navajo councils had continued negotiations

despite the closure. As Andy Bessler, Environmental Justice coordinator for

the FlagstaffSierra Club chapter, described, "As far as campaigns go, it's the

106 Roger Clark, interview by author, Flagstaff, AZ, August 8, 2007. 107 Kraker, "The end ofan era on the Colorado Plateau."

55 mother ofall campaigns; it will not die.,,108 The primary owners ofthe Mohave power plant, Southern California Edison, began planning to sell Mohave to a group ofco-owners for reopening, encouraged by the renewed prospect ofa secured coal supply. Southern California Edison even paid the federal Office ofSurface Mining to begin an Environmental Impact Statement (EIS) study in preparatIOn. .c:lor th e new proJect. . 109

However, the Southern California Edison needed the Hopi and Navajo councils to approve the lease. Now well-practiced, the Hopi and Navajo groups, along with their environmental-group allies, sprang into action, this time stressing more strongly then ever the need to transition away from coal altogether. The groups demanded public hearings and posted, summarized, and critiqued the Office ofSurface Mining's study on numerous websites. They urged people to write and call the OSM in opposition, providing a clear set of

"talking points." Their critique highlighted, again, the problems with pumping from the N-aquifer, and also explained the problems with using the C-aquifer, including the 55 households which would suffer decreased water supply and might have to relocate. The talking points explicitly called for a more radical alternative to the coal-fired power plant, envisioning Mohave as a solar thermal plant and an energy and wind farm. 11 0The activists even provided a concrete plan for the transition to renewable energy. Their plan, called the Just

Transition, proposed funding the energy and wind farm with the sulfur credits

108 Bessler. 109 Corbin, Amy, "Black Mesa," http://www.sacredland.org/endangered_sitesyageslblack_mesa.html. 110 Black Mesa Indigenous Support, "Stop Peabody Coal!" Intercontinental Cry, http://intercontinentalcry.org/stop-peabody-coal.

56 that Mohave's owners would be able to sell on the market for $1.3 billion after the plant's smokestacks shut down. The coalition met with tribal members and energy experts to beginning planning renewable energy projects to replace the potential loss ofjobs and tribal council revenue. lll The activists protested reopening the mine and power plant as they campaigned for the Just Transition.

After months ofthe activists' protest, in May 2007 Southern California

Edison stopped both funding the EIS and trying to sell Mohave. The attorney for a utility ratepayers network in California, where the power plant sold the electricity, commented that the 4ecision was a logical one: "There are lots of hurdles associated with bringing the plant back online, and the result would be a coal-fired power plant. California is looking to reduce greenhouse gas emissions connected with its electrical supply. This wouldn't fit in with those goals." While the Mohave owners never fully publicly explained the closure, they agreed with the ratepayers' network that the hurdles - from the cost of scrubbers to the need to find an alternative coal transport to the changing energy market - were "insurmountable" and outweighed the benefits of reopening the coal plant. ll2 This time, not only the third-party push from the

Grand Canyon Trust and the activists' short-term success with the tribal

councils helped close the power plant and mine, but another key factor was the

growing momentum for the activists' larger goal: replacing coal altogether.

111 "Sierra Club Partnership Program and The Just Transition Coalition host Renewable Energy Investment Summit with Navajo and Hopi Community Leaders," Sierra Club Press Release, January 23,2007, http://www.sierraclub.org/partnerships/triballsummit.asp. 112 Kevin Smith, "Edison to abandon Mohave station," Inland Valley Daily Bulletin, June 19, 2006.

57 Still, the Navajo and Hopi tribal governments have wavered in their stance on the Black Mesa Mine and in their relations with the coal industry in general, revealing that the activists' work is not yet finished. As recently as

October of2007, Peabody representative Beth Sutton reported that Peabody and the tribes had not ended negotiations: "We continue discussions with the tribes on projects that would allow the mine to resume operations. The Kayenta

Mine [which neighbors the former Black Mesa Mine and ships coal by train] is unaffected and continues operating."113 In addition, as part ofseparate royalties negotiations with Peabody, in closed-door meetings, the Navajo

Nation President and his administration initially agreed to a new law, the

Navajo-Hopi Coal Leasing Act. The act would have given the Department of the Interior power to oversee the slurry line as well as the Navajo and Hopi domestic water systems which rely on the N- and C-aquifers.

The proposal conspicuously included the slurry line as a still-viable transport option, and linked it to the use ofthe N- and C-aquifers. The proposal also would have taken away the tribes' abilities to directly protect the water systems. As the Navajo Times reported in 2007, "The act would basically remove tribal leasing authority over natural resources - water, coal, air, land, etc. - rights that federal treaties have recognized and protected and federal

courts have defended.,,114 The act was stillborn, as royalties negotiations with

Peabody crumbled. However, the tribal leaders' initial support ofthe act, along

113 Marley Shebala, "AG: Lawsuit Against Peabody to Resume," Navajo Times, October 18, 2007, http://proquest.umi.com/pqdweb. 114 Anonymous, "Black Mesa's troubled history," Navajo Times, sec. A, June 14, 2007, http://proquest.umi.com/pqdweb.

58 with their continued discussions with Peabody, reveal how the leaders still depend on the coal industry and are even apparently willing to cede their own power over leases.

The risks continue: even though Black Mesa Mine has shut down, a neighboring mine that ships coal by railroad still operates, leaving the door open for Peabody to renegotiate a lease for the abandoned Black Mesa Mine.

In addition, the Navajo are currently embroiled in a bitter fight over a coal-fired power plant and additional strip mining on another part ofthe reservation. The council chairman staunchly supports the new development. The activists' victories are significant but still have not guaranteed protection for the groundwater, much less unanimous support for the proposal to transition fully away from coal.

Conclusion

In the shorter term, the Navajo and Hopi organizers did succeed in

shutting down the mine, through repeated combinations ofcultural framing,

organized backing from citizens local governments, proposals for concrete

alternatives to pumping the aquifers, and the extra leverage provided by third··

party support. However, after each initial victory, the organizers confronted

the limits that environmental and social justice theorists describe. In the tribal

decision-making processes which the activists needed to influence, Peabody

Coal held the greatest power 1hrough their economic contribution to the tribes.

While Piven and Cloward call for confronting these limits by escalating protest

59 tactics, the Black Mesa activists succeeded by continually working to expand their voice within the political system, following the ideals ofcivic environmentalism.

Masayesva first convinced the tribal councils to work with Peabody to find an alternative to the N-aquifer by gaining grassroots support from individual members, framing the problem as cultural as well as environmental,

and stressing that the mine could find another way to transport coal. Yet this

victory proved too narrow to create lasting change when the Hopi chairman and

Navajo president proposed pumping another important aquifer and lobbied for

extending the deadline for forcing Peabody offthe N-aquifer and for Mohave's

scrubber installation. The campaign lacked Daniel Faber's vision ofas

broader-focused environmentalism, which pushes for greater change than

simply shifting the problem from one area - or aquifer - to another.

The Navajo organizers' more developed tactics, combined with pressure

on Mohave by the Grand Canyon Trust, the activists pushed past this first limit.

The growing coalition focused increasingly on framing the campaign as a

cultural issue, and not only gathered individual grassroots support but

harnessed the power ofthe local governments. Realizing that pumping the C­

aquifer would only redistribute the environmental injustice, the activists

proposed more detailed ways ofshipping the coal without pumping either

aquifer, and even began to push the councils to think beyond coal. These

efforts convinced the tribal councils to hold Peabody to their deadline for

ending pumping. The third party support from the Grand Canyon Trust added

60 the final pressure ofholding Mohave to their own deadline, and the combined pressure forced Mohave and the mine to close.

However, when the tribal leaders, Peabody, and Mohave nearly managed to reopen the plant and mine, the activists refined their proposal for alternatives and pushed even harder for a complete shift away from coal.

While it is unclear exactly why Mohave's owners eventually decided not to reopen, their comments imply that this broader push to transform the energy market played a role in the decision.

Still, the tribes' continued closed-door negotiations with Peabody threaten that this victory, too, may be too narrow, as the tribes still look to coal to boost the economy, and shut citizens and even local governments out ofthe decision-making process. The activists' pattern oframping up their strategies to achieve increasingly signifiicant victories points to the importance of broadening the strategies even more. The broader versions ofthese strategies reflect the "third-wave" environmentalism emphasis on social, political, and

economic change: reclaiming cultural pride, amplifying the power oflocal

governments, finding alternatives to coal and uniting with outside interests to

push for larger-scale environmental justice.

61 Chapter 4 Just Transitions:: The Newest Chapter ofBlack Mesa Activism

Introduction

The Black Mesa activists were forced to develop and evolve their strategies to win increasingly meaningful victories, demonstrating the importance ofbroader approaches to environmental justice. A new wave of

Black Mesa activism focuses on the larger issues through a plan to stimulate renewable energy development, efforts to empower local Navajo chapters, and emphasis on economic development that builds community and re-instills cultural pride. The broader-focus efforts have the potential to reshape the relationship between the Navajo and Hopi members and their tribal councils and to build a political and economic system that would never have allowed the

Black Mesa Mine to deplete the aquifer in the first place. Not only do these projects demonstrate the power of combining narrow-focus and broad-focus strategies, but they also show how even efforts that are deeply rooted in place

can connect with similar efforts to begin to create the more powerful force that

environmental justice theory envisions.

The Just Transition: Formulating the Plan

Each setback in the Black Mesa group's campaign forced the activists

to reconsider their proposal for alternatives. Most recently, the tribal councils'

continued conversations with Peabody emphasize the need for the activists'

most radical proposal: replacing coal with renewable energy. Instead of

62 seeking smaller shifts in coal transportation methods, this new goal directly confronts the root problem ofpoverty. The activists now work to diversify the tribal economies through alternative energy projects. They want Mohave's former owners, Southern California Edison, to pay for initial projects. The activists' plan, called the Just Transition, aims to capitalize on the sulfur credits that Mohave could sell on the market now that the plant's smokestacks have shut down. The power plant had been releasing over 40,000 tons ofsulfur dioxide and other pollutants each year, and the plant's closure would be an ironic windfall ifSouthern California Edison could sell other power producers their rights to the sulfur emissionsYs

The Navajo and Hopi activists, along with the Grand Canyon Trust and the Sierra Club, argue that Southern California Edison owes the tribes the profits from the sulfur credit sales, since Mohave kept costs low and profits high by exploiting the Navajo and Hopi for the past 30 years. Navajo activist

Enei Begaye explained, "It struck [us] that Mohave owners could walk away

from a development that polluted the Southwest, drained critical drinking water

supplies and brought hardship to tribal members and they would still see

windfall profits. It was decided that the Just Transition Plan would be the venue

to restore environmental and economic justice for the Navajo and Hopi

people.,,1l6 The groups pushing for the plan call themselves the Just Transition

115 Marilyn Snell, "Profile: The Rainmaker," Sierra Magazine, January/February 2007, http://www.sierraclub.org/sierra/200701 /profile.asp. 116 The Just Transition Coalition, The Just Transition Plan: Bringing Environmental Justice and a Clean Energy Future to the Navajo andHopi People, submitted for The State of Environmental Justice in America Conference, February 8,2007, http://www.ejconference2008.org/images/ The_Just_Transition_Coalition.pdf, 5.

63 Coalition. 117 They propose that the Navajo and Hopi use the money to invest in wind and solar projects, retrain the workers laid offfrom the mine, and partially repay the tribal governments for the lost revenue from coal royalties.I18 The

economic blow was heavy. The mine's closure cost the Hopi $7 million,

almost a third ofthe council's operating budget, and the Navajo lost 15% of

their revenues.I19 Two hundred mineworkers, mostly Navajo and Hopi, also

lost their jobS. 120

The Just Transition members acknowledge the loss but point out that

even when the Black Mesa Mine was open, the Navajo and Hopi were

struggling. The Just Transition Coalition publicized the tribes' economic

statistics, showing how even before the mine closed, both the Hopi and Navajo

Nations suffered from nearly 50% unemploymentYI In 2001, the Navajo

Nation reported that the median family income was $11,885 and per-capita

income $6,217, with over 56% ofNavajos living below the poverty level.

Even among American Indians, this was the highest poverty rate in the U.S.

Sixty-eight percent ofNavajo money was spent offthe reservation, and

Navajos owned only a third ofthe private businesses on the reservation. 122 As

the Black Mesa Mine sucked water from their own aquifers to ship coal for

1J7 Snell. 118 Christopher McLeod, "Seeking ajust transition," Earth Island Journal 21, no.2 (2006). 1]9 McLeod. 120 Timothy Lesle, "Making a Just Transition," The Planet Newsletter, May 2006, http://www.sierraclub.org/planet/200605/j usttransition.asp. 121 Snell. 122 Black Mesa Water Coalition, "Just Transition," http://www.blackmesawatercoalition.org/ justTransition.html.

64 electricity, 70% ofthe homes on Black Mesa did not have their own e1ectricity.123

Just Transition activists argue that the mine's closure will now force the

Navajo and Hopi nations to find new ways to increase employment and quality oflife for their members and to build economic independence. As Masayesva told the New York Times the day after the mine shut down, "Peabody has done us a favor by putting us in this situation.. .It's time for us to cut the umbilical cord to the company store." While Masayesva said he sympathized with the laid-offworkers, he explained, "The benefits to the Hopi have been not been much and not worth the price. It's time for us to get aggressive and get smart about our own resources."P4-

The plan also continues the activists' successful strategy ofpartnering with outside allies. In fact, Roger Clark from the Grand Canyon Trust originally conceived ofthe Just Transition plan after Hopi and Navajo representatives, Peabody, and Mohave's owners asked the Grand Canyon Trust to extend Mohave's deadline for installing scrubbers. The extension might have given Peabody time to secure an alternative water supply. The Grand

Canyon Trust refused but, from the start, worked to tie in an alternative to the

Peabody-Mohave dilemma. "I said, 'Look, we just can't bend on the consent

decree, but what can we do to fill in the gap caused by the end ofMohave?'"

125 Andy Bessler from the Sierra Club emphasized that the environmental

123 Lesle. 124 John M. Broder, "Winners Are JFew as Forces Clash on Tribal Lands Over Air, Water and Jobs," The New York Times, January 1,2006. 125 Clark.

65 groups' partnership with the tribal groups extended far deeper than any legal battle: "With the Mohave victory, environmental groups like the Sierra Club could just walk away and high-five each other...But because ofthe link between the Mohave closure and the lost jobs, 'that's not responsible to the tribes we're trying to support and help. ",126

Clark first presented the idea to the Hopi and Navajo Councils, who rejected it, still hoping to find a way for Mohave and Peabody to reopen. 127

However, the Just Transition coalition formed around Clark's proposal. The group learned that they could gain up to $1.3 billion total over the course of20 years. 128 Masayesva worked with an energy consultant to assess the tribes' prospects for developing solar power. They found that solar development for a

500 megawatt generating station was economically and technologically feasible and could provide the Hopi with $8 million or more each year in revenue, more than the tribe had lost from the mine closing. The consultant even suggested engineers could raise the solar dishes so that livestock could graze in the shade below. 129 The coalition also determined that projects could provide jobs for

8,000 Hopi and 250,000 Navajo, again more than compensating for the lost jobsYO

126 Lesle 127 Clark. 128 Cindy Yurth, "Enviros encouraged over Mohave closure," Navajo Times, June 29, 2006, http://proquest.umi.com/pqdweb. 129 Snell. 130 Marc Lifsher, "Indians Seek Funds from Edison," The Los Angeles Times, January 12, 2006.

66 Gathering Support

To set the plan in motion, the Just Transition Coalition repeated the activists' strategy ofseeking outside support. Eleven days after Mohave and

Peabody shut down, on January 11, 2006, the Just Transition coalition took their plan to the California Public Utilities Commission, which regulates power companies serving California. Because Mohave sold its electricity to

California, a third state and set ofstakeholders - the Commission and its

California ratepayers - entered the newest chapter ofthe Black Mesa controversy. The Just Transition coalition asked the Commission to assist in an entirely new plan for restitution: to set aside the sales sulfur credits and award them to the Navajo and Hopi Nations. 131 The Just Transition Coalition pointed out that investing in wind and solar could help California meet its new renewable portfolio standards. 132 A California ratepayer advocacy group even submitted a formal petition to the Commission supporting the Just Transition and suggesting that the Commission create a Renewable Energy Investment

Fund. 133 Activists also continued their strategy ofmixing cultural tradition with progressive entrepreneurialism. One Hopi member presented the CPUC president with a digging stick, a gourd ofwater, and com seeds, which Hopi tradition recounts as the "three simple tools" which a deity gave the Hopi so that they would thrive on the arid Black Mesa. The Hopi representative asked

131 Clark. 132 Kathy Helms, "The Fight Over Water Beneath Black Mesa," Gallup Independent, April 17, 2006. 133 The Just Transition Coalition, The Just Transition Plan: Bringing Environmental Justice and a Clean Energy Future to the Navajo and Hopi People, 18.

67 the CPUC, "All we ask is for is for you to give us the simple tools to bring our lives back.,,134

Still, even the promise ofthe broad-focus vision could not initially win over the Navajo and Hopi tribal councils. The Navajo and Hopi councils continued negotiating with Peabody and Mohave behind closed doors. The

Navajo president publicly swore to do all in his power to reopen the Black

Mesa Mine. 135 Navajo and Hopi council leaders criticized the Just Transition coalition as a small interest group which was endangering the delicate, critical negotiation process. The Navajo Council petitioned that the Utilities

Commission reject the Just Transition's request altogether, 136 while the Hopi

Council called Just Transition's request to set aside the money "laudable," but asked that the Commission wait to decide how to distribute it. 137 The

Commission agreed to take the first steps toward the Just Transition plan. It demanded that Mohave's owners, Southern California Edison, record all sulfur credit sales and place them in a separate holding account. The CPUC would then organize mediation sessions to help the coallition and the Navajo and Hopi councils plan how they might spend the money.

The Just Transition coalition focused on grounding their proposal in community support. Horseherder returned to her former organizing circuit,

134 The Just Transition Coalition, The Just Transition Plan: Bringing Environmental Justice and a Clean Energy Future to the Navajo and Hopi People, 2. 135 Snell. 136 Attorneys for the Navajo Nation, "Response ofthe Navajo Nation to Motion for a 'Just Transition' in Response to Closure ofthe Mohave Generating Station," http://www.blackmesawatercoalition.org/ Navajo_Nation_Response.pdf. 137 Attorneys for the Hopi Tribe, "Response ofthe Hopi Tribe to Motion for a 'Just Transition' in Response to Closure ofthe Mohave Generating Station," http://www.blackmesawatercoalition.org/ Response_HopiTribe_MotionjTC.pdf.

68 visiting the local chapter houses again to explain the proposal. 138 By the summer, five Navajo chapters had passed resolutions supporting the proposal, and others were actively considering it. 139 Navajo organizer Enei Begaye contrasted the coalition's efforts toward energy independence with the tribal councils' desperate negotiations with Peabody and Mohave: "We are emphasizing that this [coal mine] is not a sustainable emploYment source.

What we have is a real plan for sustainable jobs and an economy based on

clean renewable energy.,,140

As the Just Transition Coalition continued to refine their proposal, they

demonstrated how focusing on these broader goals can empower communities.

In January 2007, they gathered 50 tribal members and regional and national

energy experts to begin envisioning how the project could unfold. The plans

range from converting the old Mohave power station to a solar generator, to 141 installing small-scale electricity, to manufacturing for more local gridS.

When plans to reopen the mine seemed to crumble, the Navajo and

Hopi councils began to take more serious interest in the Just Transition's

proposal to use the sulfur credit sales. In March 2007, the California Public

Utilities Commission began the first ofa series ofmediation sessions for the

tribes, the Just Transition Coalition and the Navajo and Hopi government to

determine distribution. 142 In April, Navajo activists convinced council

138Lesle. 139 McLeod. 140 McLeod. 141 "Sierra Club Partnership Program and The Just Transition Coalition Host Renewable Energy Investment Summit with Navajo and Hopi Community Leaders." 142 "California Energy Regulators Grant the Just Transition Coalition's Request for Mediation to Develop Plans for Renewable Energy after the Closure ofthe Mohave Generating Station,"

69 delegates to introduce a legislation that would begin negotiations with the Hopi about how to spend the money.143 A month later, with the death ofthe latest proposal to reopen the Black Mesa Mine, the Navajo and Hopi Councils began to show considerably more interest in the Just Transition proposal. 144 While the Just Transition plan is still in negotiations it serves as an important extension ofthe activists' initial emphasis on alternatives to the N-aquifer use- an emphasis which helped win the first battle for environmental justice. The support ofthe Grand Canyon Trust and the Sierra Club, as well as the

California Public Utilities Commission, also shows how the activists canuse third-party relationships not only reactively, to fight injustices, but proactively, to push for deeper change.

The Local Governance Authority

While the activists successfully used the resolutions from local chapter houses to make their argument to the tribal councils, the councils' recent secret negotiations with Peabody and Mohave reveal a deep disconnect between the councils and the citizens and local government. In addition, citizens and local governments must navigate complex channels ofbureaucracy to start businesses, further placing economic decision-making in the hands ofthe tribal government. A movement within the Navajo Nation is working to strengthen local governments in order to give chapters a stronger voice and to stimulate

Sierra Club Press Release, March 22,2007, http://www.sierraclub.org/partnerships/tribal!coalition.asp. 143 Cindy Yurth, "A Green Home," Navajo Times, April 26, 2007., http://proquest.umi.comipqdweb. 144 Bessler.

70 more locally-based, Navajo-nm economic development that would provide jobs and spur revenue. This project expands on the activists' focus on cultural values, local governments, economic alternatives to coal, and outreach to partners offthe reservation

The 1998 Local Governance Act delegates to chapter governments new powers such as contracting, administering land, creating ordinances, and raising revenue, with the stipulation that the chapters commit to a series of accountability policies.145 The vision is to improve local government structures while granting them more power within the communities. As the Office of

Navajo Government Development's guide to the Act explains,

The centerpiece ofthe Local Governance Act is to allow the local people to take responsibility for their community and their future. Ifthe local people, the community, call the shots and make decisions regarding issues related to, for example, economic development...then the community pays the costs for its mistakes, ifmade, but also reaps the benefits ofits successes. Because the community learns from its mistakes and successes, there is a tremendous learning curve and decision-making tends to improve substantially.146

The act allows the chapters to tailor development plans to their own communities and combine a desire for economic independence with cultural pride. For example, Hard Rock Chapter President Percy Deal dismissed the

"perks" that Peabody Coal had provided the community, from the use ofheavy equipment for road grading to tribal scholarships. Deal told the Navajo

145 Nathan J. Tohtsoni, "Jump-starting the process: Nation aims to take advantage ofnew law that will remove BrA from business lease approvals," Navajo Times, February 8, 2001, http://proquest.umi.comlpqdweb. 146 Office ofNavajo Government Development, Local Governance Act: A Proposalfor Strengthening the Local Governments ofthe Navajo Nation (Window Rock, AZ), 3.

71 Times,"I don't like free stuff. It destroys the pride and dignity ofour people.

Instead oflooking at the little things we'll lose, let's look at this [mine closure] as an opportunity to develop our own industries and create our own jobS.,,147

Already, local governments, most notably the Shonto chapter, are using their

LGA accreditation to plan more ambitious business ventures then ever before.

The Shonto, for example, are in the process ofnegotiating with planners and investors for a wind turbine and an environmentally sustainable cultural tourism center. 148 The Shonto are working with Navajo-owned company Keya

Earth, whose mission is to empower native communities to create building and development projects that combine new technology with traditional methods.

Tony Skrelunas, who designed the Local Governance Act and now serves as the Grand Canyon Trust's Native America Program Director, is one ofthe company managers. 149

The certification also strengthens the chapters' political influence.

Skrelunas explained that the certified chapters are creating a council of governance, as a lobbying group that will encourage the tribal council to pass legislation that benefits the chapters. Skrelunas predicts, "It's going to ensure more responsiveness from the government.,,150 Other Navajo chapters plan to strengthen communities' political influence specifically through the opportunities that certification creates for alternative energy development.

After the coalition explained the Just Transition Plan to the Leupp Chapter

147 Yurth, "Chapters lament lost perks in wake ofmine closure." 148 Shonto development meeting, attended by author, Flagstaff, AZ, August 10,2007. 149 Cindy Yurth, "Old ways may be today's green," Navajo Times, sec. A, October 4,2007, http://proquest.umi.comlpqdweb. 150 Tony Skrelunas, telephone interview by author, April 21, 2008.

72 president, for example, the chapter's council delegate pointed out that the combination ofLocal Governance certification and renewable energy investments could strengthen the community's voice in managing their resources. "With certification, we could have a deciding role...That status is needed to give the chapter the ability to create formal policies on land and resource use. I urge the chapter to accelerate that effort. Once we are certified, that would bring us a step [closer] on a lot ofdecision making within the chapter, which could include the grassroots people as well.,,151

By making it easier for individual chapters to develop renewable energy businesses, the Local Governance Act facilitates the Just Transition Coalition's goal of creating a viable economic alternative to coal. The Act also continues the activists' strategic use ofoutside support by allowing chapters to seek funding from sources outside the Navajo Nation, such as the state, counties, and private corporations. For example, the Cameron chapter has already established small wind and solar projects to serve individual homes but was struggling to find the funding to complete the wind studies for larger project sites. However, as an energy feasibility funding specialist pointed out, Local

Governance certification could smooth the process and open up new sources of funding: "A resolution from the tribe or a recognized entity such as NTUA

[Navajo Tribal Utility Authority] would be necessary [to seek outside funds].

151 S.J. Wilson, "Leupp Chapter considers Just Transition," Navajo-Hopi Observer, May 16, 2007, http://proquest.urni.comlpqdweb.

73 flIfhowever, the chapter was to become a recognized self-governing entity, that authority would open doors to direct access to funds on their own merit.,,152

Combining cultural pride, local government power, alternatives to coal, and connections to outside groups, the Local Governance program uses the

Black Mesa activists' successful strategies to overcome the limits that the activists faced. In combination with the Just Transition Coalition's plan for funding and complementary community development efforts, these recent projects show how narrow-focus strategies can and often need to expand into plans for deeper change.

Influencing the Navajo Council

These strategies now seem to have influenced the Navajo Council. As recently as March 2008, the Navajo Nation itselfannounced its plans to invest in wind energy, through a partnership with a non-profit called the Citizens

Energy Corporation. The Navajo President signed a contract for a wind project that would produce at least 500 megawatts ofenergy, with at least 200 megawatts completed by 2012. The contract is very different from the old coal leases. It gives the Navajo Nation the chance to have majority ownership ofthe projects, but Citizens Energy is still providing the capital so that risks to the

Navajo government are low. Citizens Energy has also agreed to reinvest a portion ofits own profits into the Navajo Nation, so that in total the project will

152 S.J. \\Tilson, "Navajo community considers wind farm as source ofrevenue," News from Indian Country, December 24,2007, http://proquest.umi.comipqdweb.

74 earn the tribe an estimated $60-$100 million in revenue over the course of25 years.

Navajo President Joe Shirley's public support ofthe project echoes the original rationale for signing the coal leases: economic revitalization and independence: "By working together...to harness the power ofthe wind we can bring economic prosperity for the Navajo people and build our energy independence while providing jobs and other benefits for the Navajo nation,,153

The Hopi tribe has also contracted with an Arizona State University engineering professor to study wind power potential on the reservation. 154

Now the tribal councils themselves have adopted those same key techniques of developing alternatives and mutually beneficial partnerships with outside groups.

Conclusion

lfthe limitations ofthe Black Mesa activists' early victories revealed that the activists needed to push their strategies harder to overcome systemic inequalities, the most recent developments illustrate how they can apply the same general goals more broadly to begin to change the system itself. The current projects show how disruption is not the only way to change institutions, and that transforming economic and political opportunities within a community can involve both narrower and broader strategies. On an even larger scale, the

153 Felicia Fonseca, "Navajo Nation partners with Boston fIrm to develop wind energy," Las Cruces Sun-News, March 27,2008. 154 Kari Lyderson, "Wind Power," Colorlines 11, no. 2 (2008) http://proquest.umi.com/pqdweb.

75 projects show how these attempts at systemic change can be based in a community and rooted in place, yet build towards a meaningful larger movement by discovering new stakeholders - such as the California ratepayers or the Citizens Energy Corps.

The activists' work in four key areas succeeded in creating smaller

changes, yet those changes were not enough to withstand and overcome political and economic inequalities, as the tribal councils kept compromising to

keep the Black Mesa mine alive. However, the Black Mesa case shows that

expanded versions ofthose strategies can eventually ensure deeper

environmental justice. First, ifuniting citizens and galvanizing tribal councils

around cultural pride helped convince them to protect the aquifer, the activists

now can appeal to the same sense ofpride to gain support for developing

economies that celebrate the culture and for switching away from coal

altogether. Second, just as the support ofthe local governments initially helped

convince the councils to oppose the aquifer use, the Local Governance Act can

hold the Navajo council more directly responsible to the local government and

citizens, as well as enhance economic independence from coal. Stronger local

chapters would also increase local contribution to the Navajo Nation,

amplifying the grassroots voice in the council. The chapters' overwhelming

support ofpreserving the N-aquifer and C-aquifer demonstrates how a stronger

local voice could encourage stronger environmental protection.

Third, ifproposing alternatives initially only to pumping the aquifer

allowed the activists to begin crack the tribe's commitment to the status quo of

76 Black Mesa Mine operations, the Just Transition's more radical alternative is an opportunity to urge the councils to question altogether the commitment to extractive industries. Fourth, the importance ofusing multiple access points to close the Black Mesa Mine also bodes well for the long-term success ofthe

Just Transition Coalition's plan to open up the renewable energy industry with the help ofliberal ratepayers and California's need to meet energy portfolio standards.

Some ofthe prospects for systemic change, however, also relied on more limited successes. Only when the activists achieved the smaller victory of shutting down the mine did the tribal councils fully engage with discussing the

Just Transition Plan. The mine closure may also ultimately contribute to cultural revitalization, as activists have used the closure to argue that the tribes need to replace dependence on a fossil fuel economy with sustainable development that embraces the tribes' cultural heritage. These effects reflect theorists Pellow and Brulle's claim that combining narrow and broad tactics will create the "next generation" ofenvironmental justice activism.

Finally, the activists' success with these strategies provides examples of what the environmental justice literature conspicuously lacks: campaigns that are both deeply rooted in place yet help create larger-scale power that is more than just a movement in name only. While the activists motivate the Navajo and Hopi to reclaim their Black Mesa home politically, economically, and culturally, they have also been able to see where their own needs connect to the goals ofa land trust, a public utilities company, a ratepayers' group, and an

77 energy corporation. Their work can spread beyond Black Mesa, to the skies that the Mohave power plant no longer pollutes, to California's renewable energy portfolio, to a New England energy company's budget. Ultimately, the

Black Mesa case creates a powerful framework for analyzing grassroots groups' success along the spectrum from narrow victories to movement­ building. The cases focuses analysis on how well the groups have harnessed political culture, built political power at the local level, envisioned practical alternatives, and found strategic allies, and how they have been able to broaden those approaches as they run up against the limits ofpower inequalities.

78 Chapter 5 "Strip Mining on Steroids": The Injustices ofMountaintop Removal Mining

Introduction

As the last coal slurry line in the U.S. shut down, a relatively new form ofmining was only picking up pace. Across the country from Arizona, in West

Virginia, mountaintop removal mining is the most aggressive - and now most common - form ofstrip mining. It levels hundreds offeet ofmountaintop to dig out coal seams once thought to be too difficult to mine. Unlike standard surface mining, which strips away earth by following the contours ofthe land

(often compared to peeling an apple), mountaintop removal simply blasts away the mountain itself. From stripping the land, to drilling, to blasting, and to removal ofsoil and topsoil, to the storing coal-processing waste, to transporting the coal itself, the entire process is one long story ofdestruction. Like the

Peabody Company's exploitation ofthe aquifer, mountaintop removal threatens not only the environment but the very fabric ofWest Virginia communities. As in the Black Mesa case, this threat is also unnecessarily extreme and has continued with little regulatOly enforcement by the governing bodies. In the

Black Mesa case, the threat to culture and livelihood, the unnecessary severity ofthe damage and the lack ofconcern from the federal government spurred three ofthe activists' most successful approaches: cultural framing, proposing alternatives, and seeking outside support. Ifthe problems with the aquifer pumping held the seeds to solutions, the problems with mountaintop removal should hold those same seeds.

79 The Extraction Process: Mining and Transporting the Coal

Some opponents ofmountaintop removal call the process "strip mining on steroids," and, indeed, it takes strip mining to new extremes. The mining transforms the landscape at an unprecedented rate that is never necessary under strip mining or especially underground mining. This unnecessary damage should, theoretically, makes alternative forms ofmining easier to propose.

Since the first mountaintop removal mine opened in West Virginia in 1967, over 400 ofland square miles have been razed. 155 Companies begin the mountaintop removal process by chopping down the forests, then "pre- stripping" the land to flatten it for working. Using drills and explosives, they blast away layers ofrock (the "overburden") and coal, then the towering earthmovers arrive in to scrape away the overburden and scoop out the coal. On a single site, the explosives can level as much as 800 to 1,000 vertical feet of mountamtop.. 156

A combination oftechnological advances and heavy government subsidies has produced both the technology and the financial means to dig deeper than surface mining ever allowed. Thanks to enormous earthmovers called draglines, which can reach 20 stories in height and weigh up to 4,000

ISS Zo Gamble, "Injustice in the Fourth Circuit: Bragg v. West Virginia Coal Association is Moving Mountains for Industry," Vennont Law Review 30 (2006), under "Mountaintop Removal in West Virginia," http://www.lexisnexis.com/us/lnacademic/search/homesubmitForm.do. 156 Mark Baller and Leor Joseph Pantilat, "Defenders ofAppalachia: The Campaign to Eliminate Mountaintop Removal Coal Mining and the Role ofPublic Justice," Environmental Law 37, no.3 (2007), under "Mountaintop removal," http://find.galegroup.com/itx/start.do?prodld=EAIM.

80 tons, mountaintop removal is now the most efficient form ofsurface mining.

The draglines can hold up to 75 cubic feet ofoverburden in one load, but they cost upwards of$25 million upfront and are expensive to run. To maximize efficiency, the coal companies operate them 24 hours a day, seven days a week during the extraction phase.157 Fleets ofcoal trucks haul away the coal as well as much ofthe overburden spoil. Companies blaze access roads through the backcountry for the trucks and machinery to travel to the site. These temporary, crude roads are often the most environmentally harmful part ofthe process because ofthe extensive erosion that the newly bared earth creates. 158

While the extraction process does not directly threaten West Virginian culture as aquifer depletion did in Arizona, it does seriously lower the quality oflife for nearby residents, and has even cost residents their lives. The blasting itselffills communities with noise and dust 24 hours a day and cracks foundations in homes. Homeowners have reported that their walls are separating from their floors, boulder debris is filling their yards, and the blasting has exploded their windows. 159 Residents living within a half a mile from the mine can request a free assessment oftheir home before blasting begins so that they can sue for compensation for any later damages, but those living farther than a half-mile away must pay, and many cannot afford the cost.

160 Even the trucks that haul the coal from the mine endanger the residents. In

2003, the legal weight for a coal truck was 65,000 pounds but trucks were

157 Ken Ward, Jr., "Mining the Mountains: Industry, critics look for mountaintop removal alternative," Sunday Gazette-Mail, June 6, 1999. 158 Burns 175. 159 Ibid. 72. 160 Ibid. 72.

81 routinely surpass the limit. On the narrow, winding mountain roads, overweight trucks were wreaking havoc; in 2000 and 2001 alone, at least 16 people were killed in accidents involving overweight coal trucks. 161

Figure 2.

Mountaintop removal mining near Kayford Mountain, West Virginia. [Source: Ohio Valley Environmental Coalition, http://www.ohvec.org/galleries/mountaintopJemoval.]

From Sludge Ponds to Valley Fills: The After-Effects

The after-effects ofthe extraction pose even greater threats to communities, from toxic waste "sludge" ponds that loom over communities, to increased flooding, to polluted fishing streams and drinking water. Many of these after-effects are also unnecessarily damaging: governments should better evaluate the siting ofsludge ponds and check up on them more thoroughly, old mining sites should be reclaimed better, and the companies should not be able to dump as much waste material into streams and rivers.

161 West Virginia Citizen Action Group, "Truck Citation and Accident Data January 2000 ­ June 2002," http://www.wvcag.org/issues/overweight_coal_trucks/article_03.htm.

82 The sludge ponds are some ofthe most haunting threats to communities. Before shipping offthe coal, the companies "wash" it to remove the debris and residue from the blasting. Then they pour the leftover toxic

"sludge" into ponds held back by huge, un-reinforced earthen dams which are usually built from mining debris themselves. 162 These dams often perch above communities, endangering residents below. Researchers have now found evidence that many ofthe toxic elements in the sludge are seeping into drinking water reserves. In the town ofSundial, the elementary school sits directly below a 2.8 billion-gallon sludge pond, held back by an earthen dam that has faced several violations for safety standards. Ifthe dam ever broke, the students and teachers would have less than three minutes to evacuate the school before the flowing sludge reached 6 feet in depth. 163 The largest impoundment in southern West Virginia, Brushy Fork, is within 6 miles oftwo towns, is 900 feet high, and has a permit to hold over 8 billion tons ofthe coal sludge. The

West Virginia Department ofEnvironmental Protection (WVDEP) has prepared an escape route for the towns, should the dam burst - but the only route recommended is in the direction ofthe flow. 164 A dam break as recent as

2000 shows that the threat is real. In Inez, Kentucky, a Massey Energy impoundment burst into an old underground mine, pouring 300 million gallons ofslurry into the waterways and destroying aquatic life in 100 miles ofstreams.

162 Appalachian Voices, "What Are the Environmental Impacts ofMountaintop Removal?" MTR and the Environment, http://www.appvoices.org/index.php?/mtr/environmental_impacts. 163 Benji Burrell, "An ill-constructed sludge dam threatens the lives of230 children each day," End Mountaintop Removal Action and Resource Center, http://www.ilovemountains.org/communities/ c301?feature_id=5. 164 Burns, 77; United Mine Workers Association, "How sound is the Brushy Fork Impoundment?" http://www.ohvec.org/issues/slurry_impoundments/artic1es/umwa_brushy_fork.pdf.

83 165 The EPA called the break the worst environmental disaster in the history of the Southeast.166 Currently, 45 impoundments in West Virginia are considered high-risk, and 32 moderate risk. 167

In the face ofthese threats to communities, the legally required reclamation projects offlittle compensation. After removing layers ofsubsoil and rock, the companies are, under Surface Mining and Reclamation Act, required to "reclaim" the area. This means sculpting the soil and rock back into a slope shape, to achieve what is called Approximate Original Contour.

However, as JeffLee Hansbarger describes in a dissertation analyzing the environmental assessment ofmountaintop removal, "This is not an exact art, and usually leaves a terrace-like effect on sloped areas.,,168 The standard practice involves spraying the bare, re-compacted soil with a mix ofnon-native grass seed. An EPA report in 2005 explained how the hard soil and tenacious grass species tend to block trees from growing back, turning the reclamation sites into grassland habitats. 169 The forests that these "grasslands" replace are some ofthe richest, most biodiverse regions in the country, according to the

'Nature Conservancy. 170

Coal companies can avoid even these minimal efforts to reclaim the land ifthey can promise to use the newly-flattened area for economic

165 Bums. 72 166 Appalachian Voices, "What are the Environmental Impacts ofMountaintop Removal?" 167 Ibid. 168 JeffLee Hansbarger, Mountaintop Removal Mining: An Environmental Impact Assessment (EIA) Scoping Exercise and Impact Assessment ofMining Activities on Aquatic Resources (Morgantown, WV: West Virginia University, 2000), 10. 169 United States Environmental Protection Agency, Mountaintop Mining/Valley Fills in Appalachia Final Programmatic Environmental Impact Statement (October 2005), http://www.epa.gov/region3/mtntop/pd£lmtm-vfjpeis_full-document.pdf. 170 Appalachian Voices, "What are the environmental impacts ofmountaintop removal?"

84 development. Yet even after reclamation, the built-up land remains in precarious condition: water seeps through the earth more easily and carries leftover mine pollutants into the streams, and the whole area is susceptible to erosion and instability.I7l While the prospect ofeconomic opportunity has bolstered the case for mountaintop removal, the lack ofaccess and infrastructure and the physical instability ofthe land have prevented most development. The state government has awarded permits to coal companies that have no actual plans to reclaim or develop the land, and three-quarters of the land promised for economic development ends up essentially abandoned.

According to a lawyer who works for the grassroots groups, government and industry negligence burdens communities with the problem ofmining waste without the benefit ofdevelopment: "Mountaintop mining was supposed to be carefully conducted to benefit local communities and encourage their economic development, but it is destroying them instead. The coal companies are simply taking offmountaintops and dumping them into West Virginia's streams, harming the communities and the environment in the process."l72

The subsequent valley fill process, dumping rock and soil overburden into the valleys, continues the pattern ofsloppy oversight and the threats to communities. The overburden swells with air during removal, so that even if the company does use the overburden to re-grade the area, they still have leftover debris. Ifthe company decides not to re-grade the mountain, the overburden amount is even larger. Companies dump the leftover waste into the

171 Hansbarger, 46. 172 Ken Ward, Jr., "Flattened: Most mountaintop mines left as pasture land in state," The Charleston Gazette, August 9, 1998.

85 nearby valleys, polluting or even burying the waterways. The effect on the communities is severe: by stripping the mountain slopes oftheir cover and piling soil and rubble in the headwaters ofstreams and rivers, mountaintop removal exacerbates flooding. In 2001, after 500 homes were destroyed by flooding, Governor Bob Wise ordered a study ofMcDowell and Wyoming counties, which suffered from extensive flooding. The study concluded that out ofall the towns in the two counties, only two were "sustainable" and would continue to be safe for the citizens. Members ofthe other communities, the study recommended, should be relocated. Geologically, the areas were no longer suitable for living. The study described them as "physically worn

OUt."l73 Two years later, in November, 2003, more floods swept through

'Wyoming County, costing the county over $2 million in flood damages. l74 The

Army Corps ofEngineers is responsible for regulating valley fills to minimize

environmental damage and flooding risk. However, in 2003 the EPA found

150 illegal valley fills in West Virginia, where companies were dumping the waste without permits, unpunished by the Army COrpS.175 Yet these extreme

damages are fully unnecessary, again merely a problem ofoversight.

Mining runoff and waste also threaten aquatic life in these streams and

only exacerbates mountaintop removal's effect on communities by polluting

fishing streams and drinking water. Already, by 1998, a statewide study of

mountaintop removal found overburden had obliterated 470 miles ofWest

173 Bums, 12l. 174 Mary Catherine Brooks, ''Three Inches ofRain Cause Millions in Destruction," Raleigh Register-Herald, January 5,2004, quoted in Bums, 123. 175 Ken Ward, Jr., "EPA Review finds 274 Valley Fill Violations," The Charleston Gazette, September 5,2003.

86 Virginia's streams. Some waterways disappear altogether, and nearby wetlands can dry up when their headwaters are buried. 176 In addition, the erosion continues the chain ofdestruction: it uproots streamside vegetation, which increases water temperature and reduces dissolved oxygen in the water, further threatening aquatic life.In In 1999 and 2000, the American Rivers Association highlighted the Coal River in Boone County as one ofthe Nation's Most

Endangered Rivers. 178

Social and Economic Impacts

Along with the environmental threats to communities, mountaintop removal also, paradoxically, contributes little to the economy and may even hurt the job market. In addition, it weakens and has even wiped out entire communities. Mountaintop removal mining does improve the tax bases, create some jobs, and also spur the growth ofsome secondary jobs such as equipment sales and repair. However, surface mining as a whole provided only 1.2% of

West Virginia jobs and 2.6% oftotal state revenue in 2002.179 Perversely, mountaintop removal mining is sucking jobs from the workforce since draglines have replaced most ofthe labor. The statistics are striking. In 1970, the year the first mountaintop removal mine opened in West Virginia, coal mining provided 45,621 West Virginia jobs and produced roughly 143 million

176 Ibid 48-49 177 BU~s, 178. 178 American Rivers, "America's Most Endangered Rivers," http://www.americanrivers.org/site/ PageServer?pagename=AM~content_513f. 179 Appalachian Voices, "Myths and Facts about MTR," http://www.appvoices.org/ index.php?/mtr/myths_andjacts.

87 tons ofcoal. By the end ofthe nest three decades, total coal production had rise by more than 20 million tons, but coal mining only provided 15,377 jobS. 180

Mines have also wiped out whole communities, destroying present-day

social networks as well as cultural heritage. The town ofBlair, West Virginia

is one dramatic example. Ironically, Blair Mountain is the site ofa coal

miners' union strike, the largest domestic conflict in the U.S. since the Civil

·War. The battle marked the turning point in the struggle for legalizing unions,

and the community later became a popular "heritage tourism site.,,181 By 1998,

only 27 families lived in the town ofBlair, WV - down from 180 just a few

years before. The Arch Coal Company, in developing a mountaintop removal

mine, had initiated the depopulation by buying out the local businesses. The

town lost its business tax revenue, and citizens had to drive for miles to buy

groceries. Soon, Arch Coal was buying out the residents themselves, who by

this point were more inclined to leave. The population decline forced the local

schools to close, which is "often the death knell for a small community," as

Shirley Stewart Bums describes in her dissertation on mountaintop removal. 182

By 1996, the National Trust for Historic Preservation declared the area one of

the nation's "11 Most Endangered Historic Places.,,183

In addition, homeowners who sold to Arch Coal had to sign agreements

promising they would never attempt to return to Blair to live and that they

180 Bums, 93. 181 "Blair Mountain Listed Nationally as an Endangered Historic Site!" Preselllation Alliance afWest Virginia, http://www.pawv.org/newslblair.htrn. 182 Burns, 94. 183 "Blair Mountain Listed Nationally as an Endangered Historic Site!"

88 would never criticize strip-mining operations. This kind ofagreement is illegal. However, at least 11 communities have faced similar fates, and the wholesale emptying-out appears to be intentional. As a former vice president and spokesman for Arch Coal explained in a deposition, "Our philosophy is not to impact people and ifthere are no people to impact, that is consistent with our philosophy." 184

Because many ofdamages ofmountaintop removal are illegal and not an inherent part ofthe coal mining process, they gave activists the opportunity to call for outside legal services to defend the law. The coal trucks were over the legal weight, the sludge ponds violated safety code, and the ineffective reclamation projects broke the the companies' promises ofeconomic development. Illegal valley fills and illegal deals between coal companies and homeowners went unpunished. Fighting these unnecessary injustices on legal grounds has prompted West Virginia activists to ally with public attorneys, just as the Black Mesa activists were motivated to commission the Natural

Resources Defense Council to defend the existence ofthe aquifer threat.

Across the board, the dimensions ofthe mountaintop removal's damage mirror the problems with the aquifer. Mountaintop removal destroys the quality oflife for many West Virginia communities just as the aquifer-pumping in Arizona threatened the water that gave spiritual meaning to Navajo and HOJPi life. Essentially, the damage is not just environmental but social - and in fact, in West Virginia, even economic. In another parallel, the most extreme damages in both sites are also unnecessary - and often illegal. The Black Mesa

184 Burns, 94.

89 slurry line was evidence ofPeabody's resistance to pay to switch to a more sustainable model; mountaintop removal is the coal companies' cheapest and most efficient option. The unnecessary and often illegal extreme measures would theoretically give West Virginia activists the opportunity to propose at least moderate alternatives, and build connections with outside resources by tinding legal support. Ifanything, the problem itselfoffers activists strategies similar to the ones that succeeded on Black Mesa.

90 Chapter 6 Up Against the State: West Virginia's Ongoing Battle Over Mountaintop Removal

Figure 3.

Welcome sign to West Virginia, at the Virginia-West Virginia border. [Source: Photo by author, March 27,2008.]

Introduction

Although the basic problems ofmountaintop removal offer similar avenues for three ofthe approaches Black Mesa activists used, the West

Virginia groups have only achieved limited success in their fight against mountaintop removal. The central question becomes how well the West

Virginia groups have been able to take advantage ofthese three approaches, as well the fourth strategy ofbuilding support in local governments. West

Virginia activists must apply the strategies in the same restrictive context as on

Black Mesa: the institution that depends most heavily on the mining is the

91 goveming body they most need to influence. Both ofthe federal environmental laws that regulate mining were crafted to empower the state governments, under the assumption that the state would have the deepest knowledge ofits own terrain and the best resources for protecting itself. Yet West Virginia has an enduring heritage of economic dependence on coal connections between politicians and the coal industry, which compromises the state's ability to regulate the mining. So far, the fight against mountaintop removal has relied primarily on traditional political channels to push for better regulation. Neither challenges to mine permits, nor a steady stream oflegislative lobbying nor a serie:s offiery federal lawsuits has prevented the destruction ofover a thousand square miles ofmountains, and over a thousand miles ofstreams. How do the lessons from Black Mesa explain these failures?

In essence, the West Virginia activists have failed to carry through the strategies that led to the Black Mesa activists' success. More than on any other strategy, the West Virginia groups have focused on unifying the citizens' concems in the same way the chapter house resolutions did, through permit hearings, lobbying, and lawsuits. Yet not only have they been unable to approximate the role ofthe chapter house resolutions, but their failure in the other three key areas weakens the grassroots voice. They have not dominated the political-cultural frame ofthe struggle, provided strong enough altematives to the problem, or found a strategic outside ally with influence equivalent to the

Grand Canyon Trust's power over the Mohave power plant.

92 Instead, their attempts to organize the grassroots voice from below have failed, since local governance groups, the state government, and even individual politicians depend so heavily on coal. Attempts to make their voice heard from above, through federal lawsuits have only reinforced the power of the state, as well as revealed the power ofthe mineworkers in controlling public images of"virtuous" coal-mining and "anti-economy" environmentalism. Meanwhile, the state, even the Department ofthe

Environmental Protection, continues to support the coal industry for its economic contribution. Unlike the Black Mesa activists, the West Virginia groups have no overarching vision ofa new economy to offer. Finally, the scale ofmountaintop removal exacerbates the task offinding outside partners with strategic leverage points. Even though the groups have built beneficial relationships with outside attorneys, these attorneys still work within the same system that limits the activists. The Black Mesa case points to these weaknesses as sources ofthe West Virginia groups' failure, but also emphasizes that the groups must continually broaden the scope oftheir approaches to overcome the institutional limits.

Regulating Mountaintop Removing: The Laws

The grassroots organizers and their public attorneys have based their

fight against mountaintop removal on laws that, by granting extensive

regulatory power to the state ofWest Virginia, actually create many ofthe

activists' limitations. Grassroots efforts against mountaintop removal mining

93 have targeted two overarching federal laws: the Surface Mine Control and

Reclamation Act and the Clean Water Act, both passed in 1977. Within the intricacies and slippery ambiguities ofthe acts, 'West Virginia community members have attempted to rot their argument that mountaintop removal mining is fundamentally illegal. The balance between state and federal regulatory power has proven to be the most slippery ofthe ambiguities, even though the laws themselves were designed to allocate power between state and

federal agencies to maximize the quality ofenvironmental regulation. So far,

despite the laws' ambitious designs, neither act has prevented the leveled

mountaintops and buried streams ofAppalachia.

The Surface Mining Control and Reclamation Act was the first anti­

strip mining triumph, born out ofyears ofnational media attention and

coalfield activism. The act governs permitting, regulating, and restoring strip

mine sites, and its lawmakers' vision was to deliver the ideal balance between

federal and state power. The act aimed to avoid a "race to the bottom" by

setting national standards for environmental quality. However, the power­

sharing model allows states to tailor the SMCRA to their own specific

geographies, as long as their rules are at least as strict as the federal ones. ISS

The West Virginia Department ofEnvironmental Protection (WVDEP)

regulates mining and reclamation. However, the federal law includes two

checks against the power ofstate agencies. First, ifWest Virginia fails to fully

implement or enforce the SMCRA, the law charges the U.S. Secretary ofthe

Interior with overhauling the West Virginia enforcement and instating a federal

185 Hasselman, under "The Surface Mining Control and Reclamation Act of 1970."

94 program. 186 Second, the law allows for citizen suits, so that individual

communities members can play watchdog and, ifnecessary, sue to ensure

enforcement. 187

Federal SMCRA standards, now adopted by West Virginia, demand that

mining companies prove that mining activities within 100 feet ofstreams and

rivers will not affect water quality or quantity. The standards requires

companies to return the land to its "approximate original contour" - unless the

company can develop the land for an industrial, commercial, agricultural,

residential, or public facility which would equal or improve the land's

economic value.188 However, the WVDEP has the power to interpret the act's

key language: what it means to "affect" water quality, the definition of

"approximate original contour," and when proposed development outweighs

the value ofrestoring a mine site.

The Clean Water Act also plays a prominent role in strip-mining cases

because one ofmountaintop removal's most serious environmental impacts is

burying and polluting the streams and rivers with mine waste. The Clean

Water Act regulates the effects ofmine waste, requiring that a mining company

secure both a permit from the: Army Corps ofEngineers to deposit any "fill"

material in waterways, and a water quality permit from the WVDEP. 189 The

Army Corps's role in enforcing the Clean Water is unusual and has sparked the

186 Michael G. Crotty, "Bragg v. West Virginia Mining Association: the Eleventh Amendment Challenge to Mountaintop Coal Mining," Villanova Environmental Law Journal 13 ( 2002), under "Surface Mining Control and Reclamation Act," http://www.lexisnexis.com/us/lnacademic/search/homesubmitForm.do. 187 Ibid. 188 McGinley, under "SMCRA's Strict Limits on Mountaintop Removal Mining." 189 Lilly, under "The Federal Clean Water Act."

95 most controversy. While the Anny Corps governs fill material disposal, the

EPA- the standard regulators ofthe Clean Water Act - oversees disposal of pollutants. "Fill material" was originally intended to mean clean fill, for building bridges or artificial reefs, but never for waste, which the EPA

governed. Drawing the distinction between these two responsibilities has

stirred tension.

Another source oftension is a special clause within the Anny Corps's

program, called Nationwide Permit 21. To streamline the permitting process,

this program allows the Anny Corps to define types ofconstruction procedure

and award the procedure itselfa "general permit," so long as the projects

following this procedure "will only cause minimal adverse environmental

impacts when performed separately, and will only have minimal cumulative

eJlect on the environment.,,190 The Anny Corps approved surface coal mining

as a whole, which means that while a surface mining company could apply to

the Corps for an individual permit, it could also classify as a Nationwide Permit

21 project and instantly receive a general permit, without needing individual .. 191 mspectlOn.

Like the Surface Mining Act, the Clean Water Act gives significant

regulatory power to individual states. In West Virginia, a mining company

must apply not only to the Anny Corps but also to the WVDEPto ensure that

the mine processes do not "unacceptably" violate state water quality standards.

The WVDEP also must give public notice ofits permitting and hold public

1911 Ibid. 191 Ibid., 693.

96 hearings to allow the community to comment. I92 Both the WVDEP and the

Army Corps must sign offon the permit before a mining company can begin operations.

Together, the two acts currently limit the activists' work by enhancing the role ofthe West Virginia government, which is deeply connected to the coal industry. The Surface Mining Act hands over regulatory power almost entirely to the WVDEP, while the Army Corps ofEngineers' overarching approval ofmountaintop removal mining also means that the most critical decision-making is left up to the WVDEP. In theory, the delegation ofpower makes sense: the states should be the best equipped to investigate the effects of mining in their own forests, streams and communities. In theory, they should be able to address permit requests most quickly and knowledgeably and be more responsive to the needs oftheir own citizens than a federal agency. At

the same time, however, the laws' checks on state power were a tacit admission

that state agencies might fail to enforce these environmental laws - often in an

attempt to court industries - or, in West Virginia's case, appease the ones that

already influence much ofstate politics. However, these checks on state power

- federal agency oversight and citizen participation - have proven to be largely

ineffective in providing the environmental protection which the two acts sought

to ensure. Bound by these limits, the West Virginia activists find themselves in

a similar position to the Navajo and Hopi activists' reliance on the tribal

councils.

192 Lilly. under "Section 401 ofthe Clean Water Act."

97 Attempts to organize the grassroots voice

Most ofthe West Virginia groups' efforts have centered around the

Black Mesa activists' second strategy: influencing the key governing body through a unified grassroots voice. While the Black Mesa activists combined thousands ofangry citizen comments with the support ofchapter houses to strengthen their argument, West Virginia activists struggle find a way to present residents' concerns in a way that will sway the state government.

County government support is difficult to gain. Attending permit hearings, lobbying, attacking the state and federal governments through lawsuits, and even disruptive protests have had limited effects on the government. The difficulties stem both from the inequity ofa political and economic system where coal holds such power and often from the activists' failures to control how the public frames them campaigns culturally. Yet the Black Mesa activists

used their support from local governments as one ofthe centerpieces oftheir

campaigns. Their success, in contrast with the challenges in West Virginia that

the West Virginia activists need to focus on fundamentally rethinking the role

that citizens play in the state government.

In West Virginia, the nearest equivalent to the chapter houses is the

county governments - yet the county governments are far more dependent on

coal than the chapter houses. While individual Navajo chapters do not receive

coal royalties, West Virginia counties all receive a portion ofthe coal severance

taxes. The West Virginia Coal Forum, a state agency that supports the coal

industry, widely publicizes how the counties benefit from the taxes. As the

98 2002 newsletter explained, "Without these monies [the severance taxes], local governments would not be able to provide adequate funding for vital public services such as ambulance, fire and police services and education.,,193 In addition, even though mountaintop removal mining provides few jobs statewide, it does provide a larger portion ofthe jobs in the counties it most affects, further limiting the activists' options to use the county governments to build grassroots support.

The West Virginia groups do rely heavily on permit hearings to gather the upwelling ofcommunity protest, and planning around permit hearings is often the organizations' central work. However, the activists also describe the hearings as exercises in frustration. The most recent secretary ofthe DEP is a

former industry advocate who as a student wrote a law review article entitled,

"So You Want to Ban Mountaintop Mining? You may have to put your money

where your mouth is.,,194 In 2005 the environmental groups pointed out that

the secretary had never denied a permit application - in fact, she promised the:

legislature that she would speed up the permitting process for mountaintop

removal mining. Angry, the grassroots groups submitted to the DEP a list of

grievances, explaining, "We are disenfranchised by DEP, left out ofthe

permitting process." The secretary responded by calling the organizers

''unprofessional, deceitful, and dishonest.,,195 The permit hearings are far from

193 "Chairman's Letter: Coal Severance Tax is an Irreplaceable Source ofState Funding," Coal Forum Newsletter, http://www.coalforum.org/newsletterl.htm. 194 Ken Ward, Jr., "Profile: Environment is a priority for Wise, says new DEP chief," The Charleston Gazette, April 14, 2003. 195 Ohio Valley Environmental Coalition, "Citizens FED UP with the WV DEP," Winds of Change Newsletter, May 2005, http://www.ohvec.org/newsletters/woc_2005_05/index.html.

99 s(~rving as the equivalent to the chapter house resolutions. Instead, they often diminish, rather than strengthen, the citizens' argument.

Lobbying and Legislation

The West Virginia groups' extensive lobbying campaigns, while well- organized, have also largely failed as a way to convince lawmakers to listen to the residents' concerns. Viewed through the framework ofthe Black Mesa case, the failures reflect not only difficulty in finding legal channels that give citizens a meaningful political voice, but also the activists' inability to compete with the coal industry's economic contributions and resulting political clout.

The lobbying challenges are symptoms ofthe groups' problems strengthening and unifying grassroots support and finding viable alternatives to the destruction from coal.

The groups run the lobbying campaigns on both the state and national levels. In the state legislature, the West Virginia Environmental Coalition represents the anti-mountaintop removal movement, along with other related environmental causes. The lobby team spends the legislative sessions in the

Capitol building, closely following environmental legislation and meeting with representatives to discuss the bills. The team organizes community members to visit the Capitol on lobbying trips, meets members at the Capitol to briefthem on the status ofthe bill and escort them to representatives' offices, and even alTanges overnight stays ifthe citizen lobbyists need to spend the night.196 On

196 West Virginia Environmental Council, "WVEC Green Legislative Update," http://www.wvecouncil.org/ legisupdate/2008/02_08.html.

100 the federal level, a network ofAppalachian envirorunental groups has organized three annual lobby weeks in Washington, D.C. to urge federal legislation that would end mountaintop removal.

In both the state and £ederallegislatures, however, lobbying efforts have swayed legislators little. On the federal level, lobbyists are pushing for the

Clean Water Protection Bill, which would shift more Clean Water Act authority from the Army Corps ofEngineers to the EPA, which tends to enforce the act more strictly. Still, though the most recent lobby week resulted in 100 representative meetings and 16 new co-sponsors, the proposed act has not even been scheduled to be debated. 197

On the state level, envirorunentallobbyists face the steep challenge of the coal industry's campaign contributions. Even as the activists compile long lists ofpertinent bills and carefully organize to lobby for or against each of them, the coal industry employs even more powerful strategiy: campaign financing. The People's Election Reform Coalition, a joint project ofthe Ohio

Valley Envirorunental Coalition and the West Virginia Citizen Research

Group, tracked the coal industry's contributions to goverrunent officials from

1996-2004. The report linked the timing ofcontributions to important pieces of

legislation, often discovering correlations.

For example, Cecil Underwood, governor from 1996-2000 and former

coal executive, received 12% ofhis campaign costs from the coal industry, a

total of$895,946. During his' term as governor, Underwood passed a bill to

nd 197 "2 Mountaintop Removal Week in Washington a Smashing Success," EndMountaintop Removal Action and Resource Center, http://www.ilovemountains.org/news/241.

101 allow valley fills to be larger, cheaper, and easier to approve. He also appointed, in succession, three former coal industry executives to oversee the

~NVDEP. One ofhis appointees issued the largest mine in state's history:

3,100 acres for mountaintop removal mining.

Underwood's successor, Bob Wise began to back coal interests during his first term, and the coal industry contributed $187,400 to his 2002 re­ election campaign (15% oftotal contributions). Before the second-term

elections, Wise and the legislature were in the middle ofdebating a bill to raise the weight limits on coal trucks, after several deaths caused by crashes with

overweight coal trucks sparked citizen protest. Wise had been strongly

supporting the increase in the weight limit - and coal interest raised $73,500

for him in a single day's rally interests. The coal industry also contributed

$223,000 to legislative candidates that year, including the House Speaker and

the sponsor ofthe bill. Once re-elected, Wise continued to push for the bill,

and even as the public vocally opposed the weight increase, the legislature

passed the bill. 198

The current governor, Joe Manchin, has pocketed more from coal than

any other governor in the study: $571,214 for campaign financing (12% ofhis

funding) and $174,500 for inaugural celebrations .. During his term as governor,

Manchin has fiercely backed the coal industry. One ofhis first efforts as

governor was passing a bill that set up an agency to "foster, encourage, and

promote the mineral development industry," including coal, natural gas, and

other natural resources.

198 Mary WildfIre, "Campaign money corrupts," The Charleston Gazette, March 2,2008.

102 The legislative members drafting and passing these bills have also profited from coal contributions - a total of$1,511,360 between 1996 and

2004. The People's Election Reform Coalition report explains that connecting specific contributions to specific bills is difficult but that "there's little denying that contributions from coal interests fuel the passage oflegislation that is favorable to the industry, while stopping legislation that the industry perceives as hurting its bottom line.,,199

The report cites a myriad ofexamples ofbills that protect the coal industry. Despite intense grassroots lobbying, the legislature has lifted the coal truck weight limit, lowered the price for water pollution permits by $2.5 million, and reduced the penalty for stream pollution by 75%. They have passed a law that a mining permit can get an automatic approval ifthe DEP does not review the permit application within 30 days. They voted to increase the acreage a coal company can disturb without paying to reclaim the land, from 250 to 480 acres, which has encouraged more mountaintop removal projects. The legislature has also blocked bills that would control mining more tightly, from a bill to hold companies more responsible for damage from the blasting, to a moratorium on valley fills until the long-term effects had been studied.200

Currently, anti-mountaintop removal lobbyists have focused on two bills: a controversial stream quality act and the first-ever anti-mountaintop removal proposal. The bills offer almost opposite types ofleverage points. The

199 West Virginia People's Election Reform Coalition. 200 Ibid.

103 stream quality act compromises many environmental protection standards, but as it moved through the legislature, it sparked heated discussion on the value of

'West Virginia's streams. The anti-mountaintop removal proposal was shown to be politically impossible, but is inspiring in its idealism.

Stream protection standards are crucial to mountaintop removal regulation, since one ofthe WVDEP's main roles in mine permitting is determining whether the mining and valley fills will violate state water quality standards. The new stream bill would eliminate a stream quality measuring system that the WVDEP had previously adopted to accommodate coal industry advocates. The House debate stirred an up fiery environmental rhetoric, as one delegate urged, "We should be thinking about our mountains and our clean air and what should be clean water, as our legacy. Ifwe don't start preserving and valuing our natural resources, we're not going to be able to share them.,,201

However, coal industry lobbyists convinced the House not to add nearly 400 streams to a list ofspecially protected trout streams,202 revealing the enduring power ofthe industry.

Grassroots activists failed to persuade even a single other senator to support Senator Jon Hunter's anti-mountaintop removal bill of2008, again demonstrating the influence ofcoal. Coalfield residents urged the Senate

Energy, Industry, and Mining Committee to vote for the bill, to no avail.

Senator Hunter was the bill's only sponsor. At the same time, Hunter's

201 Associated Press, "House passes bill aimed at ending long fight over water quality," Charleston Daily Mail, March 6, 2008. 202 Ken, Ward, Jr., "Stream bill not as protective as it was touted to be," The Charleston Gazette, March 15, 2008.

104 proposal reveals at least one lesson: more independence from coal and mountaintop removal could be crucial to gaining legislative support. He represents the northern Monongalia district which has no mountaintop removal and is not as dependent on coal as the southern counties. After 12 years in the

Senate, Hunter is also not planning to run again.203 Though stillborn, the bill marked the first legislative opposition to mountaintop removal.

Yet while both the stream act and Jon Hunter's bill suggest a slight shift in how state representatives are beginning to weigh environmental questions, years oflobbying still have produced few substantive checks on the mining industry. Individual lobbying has not achieved the same effect as lobbying

with the support of 11 local governments as the Black Mesa activists did. Up

against the limits ofcitizen power in a system where the coal industry exerts

enormous economic force, the activists' struggles point to the need to find a

better way for citizens to communicate with lawmakers and a better way for

them to counter the coal industry's economic influence.

Enforcing the Laws: The Citizen Suits

The West Virginia activists have struggled not only to influence

environmental regulators with citizens' voices from below, but also to

challenge them from above through federal lawsuits. The federal lawsuits, like

the chapter house resolutions, are an attempt to formalize citizen concerns and

give them more political weight. They also mirror the Black Mesa activists'

203 Phil Kabler, "Senate hopefuls differ on mining, agree on raise," The Charleston Gazette, March 26, 2008.

105 strategy ofpartnering with outside resources. Yet unlike the Grand Canyon

TlUst's ability to work outside ofthe tribal councils, the West Virginia attorneys still fight for change from within the same legal system that limits the activists. After a string oflosses on appeal, and now with several tentative victories awaiting appeal, the suits have won the groups valuable national attention but largely failed to enforce stricter environmental regulation. The appellate court decisions have returned much ofthe power back to the very government and agencies the activists sought to change. The first suit also gained the environmentalists a fierce enemy in the miners' union, a group that still carries political powerful and cultural significance in West Virginia.

The first mountaintop removal lawsuit, the 1998 Bragg v. Robertson, attacked both the WVDEP and the Army Corps and propelled mountaintop removal mining into the national spotlight. Attorney Joe Lovett from the

Appalachian Center for the Economy and the Environment represented eight

Viest Virginia citizens. While the ultimate court decision even more firmly trapped the activists within the limits ofthe state government, the case was at first an attempt to circumvent those limits. Lovett took the case to federal court because he believed the state court would too easily be influenced by coal politics. Some state judges have received substantial campaign contributions

from the coallobby?04 Some are even close friends with coal executives?05

204 Because the u.s. Fourth Circuit Court of Appeals keeps lobbing cases back down to the state level, insisting that the state court regulate its own agencies, the coal industry's contributions to West Virginia Supreme Court justices is especially problematic. Between 1996 and 2004, coal interests poured $529,332 into justices' campaigns, providing one judge with as much as 31 % ofhis campaign funding. (Source: People's Election Reform Coalition.) 205 Recently, photographs were published ofthe chiefjustice ofthe West Virginia Supreme Court and the CEO ofMassey Energy, the region's largest coal company, socializing together

106 The citizens accused the WVDEP and Army Corps ofawarding pennits to mines that created illegal valley fills, that mined within 100 feet ofstreams and rivers, and that failed to restore the "approximate original contour" ofthe mountains?06 They asked the federal judge for an injunction to stop the

WVDEP director from pennitting mountaintop removal mines, even taking the judge on a helicopter ride over the mountaintop removal sites and reclamation attempts to show him the full extent ofthe damage?07 The judge agreed with the community members. He ordered the WVDEP director to stop pelmits for mountaintop removal mines that lay within 100 feet ofstreams. He ruled that the EPA, not the Army Corps, should regulate the fill material, because the material was effectively pollution.208

The ruling shocked West Virginia. It was in many ways a public relations and movement-framing disaster for the enviromnentalists. The president ofthe United Mine Workers Association, who had once publicly blasted the injustices ofmountaintop removal and even sent personal checks to support environmental work, switched to fiercely opposing the environmentalists?09 The union workers allied finnly with the coal industry against the environmental groups. This switch set back even farther the environmental groups' struggle to frame their campaign as pro-social justice

in the Mediterranean in the summer of2007, four months before the chiefjustice broke the tie in a court decision to overturn a $76.3 million fme which a bankrupt coal company had won against Massey. (Source: Adam Liptak, "Motion Ties W. Virginia Justice to Coal Executive," The New York Times, January 15,2008). 206 CrottY,288. 207 McGinley, under "Judicial Review: Coalfield Residents Turn to the Courts." 208 Baller and Pantilat, under "Bragg v. Robertson." 209 Larry Gibson, "Hope for Cecil Roberts' help vanished in 3 years," The Mountain Holler, June 20, 2007, http://www.crmw.net/mtnholler.php?id=6.

107 and pro-economy. The coal industry and many state politicians responded to the decision with what Baller and Pantilat describes as "scare tactics." Then- governor ofWest Virginia and coal company executive Cecil Underwood called the ruling "the bleakest day in the recent history ofour state ofWest

Virginia" and "a potential death sentence for coal mining.,,210 He ordered the state to cut the budget 10% in preparation for the diminished tax returns.2 11

Mining companies laid offworkers, claiming the court decision would force them into bankruptcy12 - even though, by 1997 statistics, mountaintop 213 removal mining only employed 1% ofthe state workforce.

Coal companies and the coal union launched an expensive media campaign, prophesying doom for the economy and job prospects. Senator

Robert Byrd (D-WV) even tried, unsuccessfully, to pass a rider through the

U.S. Congress, which would exempt mountaintop removal mining from the

SMCRA and CWA altogether.214 The WVDEP and the Army Corps appealed and the coal industry and union joined the appeal·- and changed the case name from Bragg v. Robertson to Bragg v. the West Virginia Coal Miners

Association, framing the case as an environmentalists-vs.-union faceoff. 215

The intensity ofthe state's reaction revealed not only how the WVDEP itselfaimed to defend mountaintop removal, but how the state government, fe:deral representatives, and mining union form a forceful block against change.

210 Ken Ward, Jr. "Groups: Ban Affects New Penmts." The Charleston Gazette, Oct. 23 1999. 21! McGinley, under "Judicial Review: Coalfield Residents Turn to the Courts." 212 Baller and Pantilat, under "Bragg v. Robertson. 213 Penny Loeb, "Shear Madness," us. News & World Report, August 11, 1997,31. 214 Baller and Pantilat, under "Bragg v. Robertson." 215 Ibid.

108 The appellate ruling only reinforced the power ofthe state. On appeal, the

Fourth District Court, a notoriously conservative panel, overturned the ruling.

They declared that the WVDEP as a state agency was "immune" from a federal ruling through the Eleventh Amendment - that citizens could not sue their own state in federal court. The Fourth District recommended that the citizens take the case to state court, or ask the EPA to threaten to revoke West Virginia's

Surface Mining Act license altogether. Because the state courts tend to be biased towards coal and because the EPA had never threatened state programs in a similar way, the plaintiffs saw neither option as viable.

Not only did the lawsuit ultimately fail to give official voice and

influence to the complaints ofthe eight citizens, but the appellate ruling has

served to weaken citizen voice on a larger scale. The ruling blocked the Surface

Mining Act's key safeguard to ensure environmental justice: that a combination

offederal supervision and citizen participation can check agency capture.216 In

fact, the Congress that passed the law had called citizen suits a "vital factor" in

ensuring proper regulatory contro1.217 The ruling also ties the hands ofthe

federal government - ironically, since the original purpose ofSurface Mining

Act was to prevent the environmental "race to the bottom" by holding states

accountable to national standards, even ifthey could run their own programs.

Because on the state level the West Virginians lack the Black Mesa activists

cultural appeal or ability to propose significant alternatives to coal, the groups

have even less power in the state courts, where the federal government wants

216 McGinley, under "Coalfield Environmental Injustice Takes a New Form." 217 Gamble, under "The Surface Mining Control and Reclamation Act (SMCRA)."

109 them to take the case. In fact, the case itselfweakened the heritage appeal and the ability to propose convincing alternatives, since it spurred the miners'

unions to publicly label the environmentalists as an enemies ofthe unions and a

danger to the economy.

Following the Court ofAppeals' insistence on the immunity ofstate

agencies, the next two federal cases involved only federal agencies. However,

as before, the cases ultimately only reinforced the power ofthe state

government ofWest Virginia - and therefore reinforced the limits to grassroots

activism. The environmental groups' losses in both cases allowed the Army

Corps to continue issuing their general permits, which meant that only the

~NDEP was responsible for the most careful monitoring. In 2002,

Kentuckians for the Commonwealth, the West Virginia groups' Kentucky

counterpart, sued the Army Corps over its Nationwide 21 general permitting on

~1est Virginia territory. The environmental group argued again that the EPA

and not the Corps should regulate valley fills, since the fill material was

actually a pollutant.

However, a federal rule change shifted the parameters ofthe legal

battles and reasserted the political and economic power ofthe coal industry.

As the Court was preparing its ruling, the Bush administration changed the

definition offill material, so that it would not count as pollution and so the

Anny Corps could remain the regulators ofit. The rule change again

demonstrated the extent ofthe influence ofthe West Virginia coal lobby. In

the tight 2000 presidential election, the five electoral votes from swing state

110 West Virginia had tipped the balance - after the West Virginia coal industries raised $275,000 for President George W. Bush and campaigned heavily throughout the state. The newly appointed Secretary ofthe Interior had explicitly promised the West Virginia Coal Association, "We will fix the federal rules very soon on water and spoil placement," referring to the definition offill material.,,218

In the first round oftrials, however, the environmental activists did win initial victory. District Court agreed that the new definition "violated the spirit and letter" ofthe Clean Water Act, ordered the Corps's West Virginia office to stop issuing any permits for mining that would include valley fills. However, again the same Fourth District Court ofAppeals overturned the ruling, lifted the injunction, and declared the judge's attempt to restore the original definition offill as beyond the scope ofthe tria1. 219 As a result, the Army

Corps regulates fill and can permit it quickly through the Nationwide Permit 21 process.

In 2003 the Ohio Valley Environmental Coalition launched another attack that the Army Corps's use ofthe Nationwide 21 program violated both the National Environmental Policy Act and the Clean Water Act.22o Again, the

U.S. District Court agreed with the accusation. The court found the Corps in violation ofthe Clean Water Act for permitting a procedure that had more than

218 Joby Warrick, "Appalachia is Paying Price for White House Rule Change," The Washington Post, August 17, 2004. 219 Julia Fuschino, "Mountaintop Coal Mining and the Clean Water Act: The Fight Over Nationwide Permit 21," Boston College Environmental Affairs Law Review 34, no.l (2007), under "Challenging the Minimal Impacts: Kentuckians for the Commonwealth v. Rivenburgh." http://www.lexisnexis.com/us/lnacademic/search/homesubmitForm.do. 220 Fuschino. under "Using NEPA and CWA to Challenge NWP 21: Ohio Valley Environmental Coalition v. Bolen."

III "minimal" impacts and for failing to provide the public notice and opportunity for public hearing which National Environmental Policy Act requires. The judge ordered an injunction on mines that had not begun operations - but again the Fourth District Court ofAppeals overturned the decision.221

By overturning the environmentalists' victories against the Corps, the

Fourth District Court ofAppeals has sanctioned the Corps's negligent oversight, further reduced opportunities for citizen input at hearings, and placed more power in the hands ofthe WVDEP. The appellate rulings secured the

Corps's power in permitting valley fills, and allowed Corps to continue permitting valley fills using its fast-track Nationwide 21 program that assesses environmental impacts only after it has authorized the fill. These cases shift the regulatory burden to the WVDEP, which must also approve mining and valley fill permits. As a result WVDEP has more responsibility than ever to examine fully the local effects ofa valley fill peni1lit that may have sailed quickly through the Corps's Nationwide 21 program.

Together, the losses in these three cases reveal that the West Virginia activists cannot use federal lawsuits in the same way that the Black Mesa activists used the chapter house resolutions to formalize and solidify grassroots opposition. The losses gained the activists national attention - yet also roused the miners' unions to frame the environmentalists as anti-union, anti-economy.

The cases sent the activist groups back to square one: being reliant on the vVVDEP which has dismissed their concerns to many times. Now, however,

221 Ibid.

112 the activists have the added challenge ofbattling their new label given by the miners' unions.

The WVDEP, which should provide an open forum for citizen concerns, has publicly sided with the coal industry and argued for the industry's economic boon to West Virginia. This attitude shows how desperately the West Virginia groups need a viable alternative to mountaintop removal in order to have any influence on the WVDEP. For example, the

WVDEP supports the coal industry and the Army Corps in a current suit about valley fill permitting. The fill would threaten nearby towns with flooding, pollute over a mile ofstreams with mine waste, allow the mine to continue operations for an extra 18 months - but also provide temporary employment to

39 workers.222 Along with Governor Joe Manchin, the West Virginia

Department ofCommerce, and the WVDEP all filed "friend ofthe court" briefs

on behalfofthe industry and the Corps. The Department ofCommerce and

WVDEP attorneys wrote, "In short, coal mining is vital to the economic

survival ofWest Virginia - the eradication ofthis industry would cause

devastation to thousands ofvV'est Virginians, shortfalls in general revenue, a

constriction ofstate and local services, and the destabilization ofthe economy."

223 The WVDEP and the state helped the industry frame a fight against

mountaintop removal as a fight against the entire industry and economy.

222 Ken Ward, Jr" "Boone County mountaintop removal project blocked," The Charleston Gazette, October 12, 2007. 223 Ken Ward, Jr., "Manchinjoins Massey, industry in mine ruling appeal," The Charleston Gazette, December 7,2007.

113 The WVDEP has extended similar support to the coal companies themselves. In 2006, when citizens planned to sue a coal company directly for dumping too much selenium into local tributaries, the WVDEP intervened to protect the company. Federal law requires that citizens warn companies and regulators 60 days before they intend to file a suit - and also stipulates that if the DEP "has commenced and is diligently prosecuting" a case, no one else can sue the company. Exactly 60 days after the citizens' warning the WVDEP filed its own suit against Hobet Mining, in state court. Several months later, when citizens announced they would file suits against four new permits, the DEP again waited 60 days before including those permits in their original lawsuit.

Since the WVDEP announced the expanded lawsuit in May 2007, they have taken no more action in the case - never taking depositions or asking the company for records. They have stalled the case while ignoring coal company water pollution discharge reports for nearly five years, thus allowing companies to duck thousands of citations and fines, and failing to uphold the Clean Water

A lawsuit by the EPA reveals an even more spectacular negligence on

the part ofthe WVDEP and the Army Corps. After a decade ofcitizen suits,

the EPA itselffinally sued Massey Energy, the largest coal producer in the

Appalachian region. For committing 60,500 days' worth ofself-reported

violations ofthe CWA in six years (an average of28 violations a day), Massey

agreed in January 2008 to pay $20 million in fines, plus $10 million to prevent

224 Ken Ward, If., "DEP protecting coal industry on selenium, lawsuit says," The Charleston Gazette, February 10, 2008.

114 future pollution problems?25 Under the settlement, Massey promises prevent an estimated 380 million tons ofsediment and other pollutants from contaminating the waterways through improved pollution control technology and tightened inspection.226 Massey also must set aside 200 acres ofWest

Virginia riverfront land for conservation purposes.227 Although Massey bargained the fine down from an original $2.4 billion,228 the reduced version is still the largest fine a coal company has ever paid for polluting streams. The settlement should address some ofthe pollution problem, and its hefty landmark settlement should compel coal companies to take environmental regulations more seriously. In many ways the settlement validates the decade of citizen suits which forced the problem ofmountaintop removal into the national spotlight and demanded the EPA's attention.

However, the lawsuit ,exposes the WVDEP almost as much as Massey

Energy, since it was the DEP that permitted the mines and allowed the violations. Attorney Joe Lovett explained, "The EPA has only had to step in here because ofthe complete failure ofthe state agencies to enforce the act they are charged to enforce.,,229 In addition, because a federal agency sued, most of the money will go to the federal government rather than the communities that suffered the actual damages. As Coal River Mountain Watch organizer Judy

225 Jesse Montgomery and Lora Smith, "Massey Energy settles suit with EPA on 4,500 violations ofthe Clean Water Act," Community Correspondents Corp, January 21,2008, http://www.appalshop.org/ ccc/?p=86. 226 Ian Urbina, "Coal Company Hit With E.P.A.'s Largest Civil Penalty," The New York Times, January 17, 2008. 227 Roxanne Smith, "Massey Energy to Pay Largest Civil Penalty Ever for Water Permit Violations," EPA Newsroom, January 17, 2008, http://yosemite.epa.gov/opa/admpress.nsf. 228 Matt Noerpel, "Massey Gets $20 Million Fine," Mountain Holler, February 4,2008, http://www.crmw.net/mtnholler.php?id=48. 229 Montgomery and Smith.

115 Bonds explained, "Ifthe West Virginia Department ofEnvironmental

Protection, instead ofignoring these blatant Clean Water Act violations, had brought this action itself, this money would be going to state coffers instead of federal.,,23o The case also shows the federal government's inability or reluctance to check state agencies. It took six years for the EPA to sue, and now that the case is settled, the EPA still leaves an unmistakably inadequate

WVDEP in charge ofpermitting proposals.

Since the state government has assisted publicly defended the coal industry, explicitly for its importance to the economy, the Black Mesa activists' third strategy - of initially proposing alternatives or pushing for change that does not threaten the economy - would be critical in West Virginia. Two smaller citizen suits do reveal the power offighting for these narrower goals.

In 2001, citizens from the town ofSylvester sued Elk Run Coal and Massey

Energy for polluting the town with coal dust from a coal processing plant.231

'West Virginia's own Boone Circuit Court fined the companies and ordered them to cover the plant with a dome to protect the town from the dust. Three years later, after a coal company tried to force six heirs to sell their land to a mountaintop removal mine site, the West Virginia Supreme Court protected the heirs' rights to keep their land?32 These cases reveal small chinks in the states'

defense of coal. They show that state courts might defend citizen's health and

230 Urbina. 231 Paula Canterbury, "We're Called the Dustbusters," in Mountaintops Do Not Grow Back: Stories ofLiving in the Midst ofMountaintop Removal Strip-Mining, interviewed by Carol Warren. Huntington, WV: OhioValley Environmental Coalition.

232 Bums, 168.

116 property rights when the stakies are lower - when their rulings do not threaten the coal industry. However, lmlike these very narrow victories that involve only a small community and a single family, the Black Mesa's short-tenn wins were still significant enough to force the tribes as a whole to rethink their relationship to the coal mine, and to set in motion the events that led to the closure ofthe mine and power plant.

Ofcourse, on the Black Mesa, the tribal councils' opposition to the aquifer pumping was met by the Grand Canyon Trust's lawsuit against the power plant; together, the two factors shut down the mine. The West Virginia activism suffers from lack of a similarly strategic ally that could provide an entirely new leverage point. The public attorneys have provided valuable legal assistance, but still must fight within the limits ofthe same system. On a practical level, it would be difficult to replicate the Grand Canyon Trust's pressure on the power plant, since in West Virginia the coal mines ship their coal to power plants across the U.S. and even the world. This more complicated web ofnational and global coal mines and power plants would diffuse the effect oftargeting specific plants. The activists must seek somehow to push past their limits in new ways.

Attempts at Disruption

Discouraged by these limits, many West Virginia activists have actually pursued one course ofaction far more heavily than the Black Mesa groups: using protests to shake up the system from the outside and achieve the kind of

117 disruptive power that Piven and Cloward advocate. To their credit, these protests have gained the groups widespread attention. Yet in terms of immediate results, the protesters still run up against the same limits they are trying to break through: their lack of contribution to the coal companies or the government makes their protest more ofa nuisance and less ofa threat. They

also have often struggled to frame their campaigns in a powerful way.

Further complicating the campaigns, many ofthe protesters are not

West Virginia natives, but idealistic young people who travel across the

country to support the cause for a short time. As the protesters have stormed

government buildings and coal industry headquarters, they have attracted

attention to the problem ofmountaintop removal - but also biting critiques that

cast the activists as detached from West Virginia's economic needs and its

culture. The political editor ofWest Virginia's The State Journal wrote, "We

learned this week that West Virginia will be treated to a visit by the traveling

eco-circus...Until August, West Virginia will be thick with Birkenstocks and

patchouli oil. ..It's nice to know that even ifwe're foolish enough to try to keep

our economy from total collapse, they would be willing to do it for US.,,233

Furthermore, the mineworkers already often portray the

environmentalists as their enemy, setting up a stark contrast between the two

groups. While some protests do swell to hundreds ofpeople, the often-small

gatherings seem all the more unimpressive in comparison to the massive surge

ofunion protests that for decades defined grassroots activism in West Virginia.

233 Chris Spirewalt, "Don't We Have Problems OfOur Own?" The State Journal, April I, 2005.

118 The limits to the disruptive tactics again stem from the activists' inability to appropriate the power ofthe political culture. They also highlight an essential tension that Piven and Cloward recognize in their own argument: disruption aims to overcome patterns ofpolitical and economic inequity, but it is difficult for the disruption to have great effect when the protesters contribute so little politically and economically.

The Power of the State

As in Black Mesa case, the results ofthe struggles against mountaintop removal emphasize the pivotal and problematic role ofthe governing body most dependent on coal. The activists have founded their protests in the

Surface Mining and Clean Water acts, yet these acts' efforts to balance state and federal environmental protection have backfired. Though the state theoretically has the best on-the-ground resources to evaluate mining permits and monitor the mining, the EPA suit and the string ofcitizen suits reveal how deeply the WVDEP's negligence has hurt the land and communities.

Meanwhile, the federal appellate courts refuse to enforce state laws, forcing citizens to rely on corrupt state courts to regulate the state agencies. In this way, the acts' checks against state government power - national bottom-line standards and citizen suits - have ended up channeling power back into the state.

Federal regulations, such as the definition offill material or the stream buffer zone rule, do shape the parameters ofthe protest. However, the EPA

119 only stepped in to enforce the Clean Water Act after six years ofextravagant violations. Slack state enforcement, rather than the terms of any federal law, allowed the 4,500 violations. Even efforts to restore the federal definition of fill material would still leave the WVDEP with the task ofmonitoring and enforcing stream quality. In addition, the West Virginia government has proven how fiercely it intends to support mountaintop removal and the coal industry. While theoretically the federal Court ofAppeals for the Fourth

Circuit could switch approaches and uphold the district court's rulings against mining, the state's rage against one ruling demonstrated how powerfully the state government and United Mine Workers can organize to protect the mining.

The coal industry's sway in turning West Virginia "red" for presidential elections showed also how deeply the coal lobby influences not only state politics, but political opinions.

Conclusion

Ifthe Black Mesa activists could succeed in such a politically and economically imbalanced context, why are the v..rest Virginia groups still struggling? Most basically, the reasons for Black Mesa's success highlight the weakest points in the West Virginia activists' campaign: creating socially and culturally appealing frames, bolstering the grassroots voice through formal channels, proposing convincing alternatives to the environmental damage, and finding key outside allies.

120 In both cases, the miners' unions represented a counterpoint in the environmental groups' attempts to control the image ofthe campaigns.

Although the miners' union members on Black Mesa complained that the Black

Mesa activists had won over the tribal councils by appealing to their sense of cultural pride and spiritual connection to the land, the miners' unions in West

Virginia have more powerfully dominated the movement-framing process. In many ways, the Black Mesa groups began with an advantage, since the

environment plays a more essential role in native heritage, while in West

Virginia the unions playa more essential role in the heritage. Still, the Black

Mesa groups worked hard to create a frame that was both traditional and

progressive, appealing to a broader audience. Meanwhile, while the West

Virginia activists can and do point out social, economic and even cultural

damage from mountaintop removal, they have not yet rebuilt connections to the

miners' unions.

In building a voice within the government, the West Virginia groups

have labored to find a powerful point ofaccess. Black Mesa activists

magnified their voice by gaining the support ofindividual tribal chapter houses.

West Virginia groups have tried to reach state agencies from above, through

federal suits, and from below, through individual lobbying, but they lack the

organized, solidified support ofthe chapter house resolutions. The chapter

houses gave the grassroots voices a formal political channel that was

independent from the coal royalties, whereas the most readily available

political and legal channels in West Virginia - WVDEP-run permit hearings,

121 legislative lobbying, and state courts - have deep ties to coal. Even citizen suits at the federal level generally result in a reemphasis ofthe power ofthe state government.

The West Virginia activists have also failed to use the Black Mesa tactic ofoffering possible alternatives to mining damage. Piven and Cloward's emphasis on contribution and access helps frame this need to propose economically viable solutions. In the tension between protecting the environment and the community and courting the lucrative coal industry, the coal industry both enjoys more access and makes a far greater contribution to the state. The Black Mesa activists initially won not because ofhow much they

contributed to state revenue, but because ofhow little their proposed

alternatives would diminish the coal industry's overall contribution. The Black

Mesa activists also more artfully shaped their appeal to the tribal leaders. Their

proposal downplayed the sacrifices the tribes would have to make, so that the

proposal seemed less ofa contest between the activists' contributions and

Peabody's contributions. Tribal activists asked the leaders to look for an

alternative to the slurry line, effectively forcing Peabody offthe aquifer but

emphasizing the possibilities for sustaining the economy. Even Masayesva and

Horseherder shifted their public statements oftheir goals, sometimes

suggesting a different aquifer, sometimes a different method, and sometimes

simply a different style ofslurry line which would use less water.

\Vhen smaller victories appeared to be too shallow to withstand the

tribes' dependency on coal, the Black Mesa activists broadened their

122 approaches and increased the scope ofthe alternatives accordingly, finally arriving at a plan to shift away from a coal-based economy altogether. In West

Virginia, a string ofsmaller cases, rule changes, and attempts at rule changes reveal similar leverage points in state courts and even in the state legislature -­ except that the West Virginians have not built on these small victories in the same way the Black Mesa activists have. The Sylvester dome, the heirs' rights case, and the stream quality act reveal cracks in the coal industry's grip over the state government. However, the victories are still very limited in the amount ofprotection they provide the land and people. The West Virginia activists have failed to use the victories as a wedge for driving deeper change ­ in contrast to the way the Black Mesa groups expanded their proposed alternatives to force the tribes to re-examine their dependence on coal and re­ envision the economy.

Finally, the West Virginia groups lack the Arizona groups' ability to solidify smaller-scale changes through using another leverage point. Because ofthe Black Mesa coalition's ability to push Peabody from another angle, the tribal council's demand for alternatives was enough to shut down the plant and the mine simply by unsettling the plant's owners. While the Black Mesa groups pressured both the tribal councils and the Mohave Generating Station, the West

Virginia groups primarily must work through government channels to fight the

coal industry's destruction.

Still, both groups must struggle against a fundamental paradox: the

governing body that has the most power and ability to regulate coal mining is

123 also the most dependent on the mining. Compounded through years ofpoverty and injustice, this dependency shapes the governments. The activists' attempts to influence state and tribal councils are mainly stories to seeking to work within the imbalance. Even the West Virginia protesters attempts to sidestep this limits end up confronting them. The Black Mesa victory, however, offers another strategy. Cultural framing, local government support, moderate alternatives, and strategic alliances won the Black Mesa activists smaller victories, yet the activists turned them into larger ones by broadening the scope oftheir activism. The Black Mesa activists are now revitalizing community and cultural pride, reshaping the relationship between citizens and the government, re-envisioning the economy, and connecting their campaign to other causes. These approaches point to the need to change the very framework ofthe system that produced the environmental justices in the first place.

124 Chapter 7 Thinking Outside the Limits: West Virginia's Growing Campaigns for Systemic Change

Introduction

While many ofthe activists in the West Virginia groups have focused their attention on permit hemings, lobbying, and legal battles, others have started working towards the more systemic change that the Black Mesa case emphasizes. Black Mesa showed how narrower strategies could build into broader versions ofthe same approach - overcoming institutional limits by working to change the institutions themselves. Again, the same four successful strategies from Black Mesa point to the most important ofWest Virginia groups' attempts to create deeper change. Continuing conversations with ofthe

United Mine Workers could help the West Virginia groups create more convincing cultural framing; clean elections campaign and a petition to strengthen the WVDEP could reform the relationship between the citizens and the state. New awareness ofhow mining affects tourism, combined with growing interest in sustainable economic diversification, may eventually transform how the state views alternatives to coal. Conspicuously, the West

Virginia activists still lack a strategic outside ally like the Grand Canyon Trust or the California Public Utilities Commission. However, because the activists currently cannot develop this angle, their efforts to change the political, economic, and social systems themselves become even more important.

125 Fighting Coal Industry Propaganda

Ifmountaintop removal itselfcontributes so little to the West Virginia economy - and may even hurt it in the long run - why does the state still rally to protect it in the name ofthe economy? Aside from the coal industry's influence over the government, the industry has worked hard to fuse mountaintop removal mining with the entire coal industry in public discussion.

The industry reframes attacks on mountaintop removal sites as attacks on the entire industry; it was this kind offraming that prompted Governor Underwood to declare the activists' 1998 victory against mountaintop removal as the

"bleakest day" in the state's recent history.

The miners' union has reinforced this mindset. After the first mountaintop removal lawsuit, which happened to involve one ofthe few unionized surface mines, the United Mine Workers' president lambasted

"environmental extremists" for "trying to take the jobs ofevery coal miner in the United States.,,234 When the WVDEP and the Army Corps ofEngineers appealed the ruling and changed the name ofthe defendants to "West Virginia

Coal Miners Association," they were capitalizing on the chance to manipulate the struggle's image as a contest between the environment and jobs.

This hostility between the union and the environmentalists is especially unfortunate since the two groups were once allies. In fact, when Cecil Roberts,

President ofthe United Mine Workers Association, took office in 1996, he joined one ofthe main environmental activists on the activist's plot ofland

surrounded by mined-out moonscape. Criticizing mountaintop removal's

234 Ward, "UMW taking up mountaintop fight?"

126 impact on communities, Roberts said, "It is so important that we not sell out our heritage, sell out our family name or our family home places.,,235 In theory, the environmentalists and unions share these common cultural values and even causes. Not only are the groups rooted in a commitment to strengthening grassroots power, but mountaintop removal mining's overall effect has been to weaken the: union. Mountaintop removal mining has cut jobs, which discourages unions. Many mountaintop removal mining companies have worked hard to prevent their mines from unionizing. Only 7 out of94 ofWest Virginia strip mines were unionized in 2006.136 Still, the union stands by its few mountaintop removal miners, and since the 1998 lawsuit, it has framed the environmentalists' campaigns against mountaintop removal as campaigns against the entire coal industry.

The Black Mesa case emphasizes the challenges this frame creates, since the Black Mesa activists owe a large part oftheir success in the tribal councils to their ability to initially isolate the aquifer-pumping issue from

economic worries. They urged the councils to consider alternatives without

demanding that coal production shut down altogether. As West Virginia

activists work to deconstruct coal industry propaganda and emphasize the

distinction between ending mountaintop removal and shutting down the coal

industry overnight, one promising breakthrough could be repairing their

relationship with the miners' unions. In March 2008, at an Appalachian Studies

conference in West Virginia, the spokesperson for the United Mine Workers

235 Gibson, "Hope for Cecil Roberts' help vanished in 3 years." 236 Ken Ward, Jr., "UMW taking up mountaintop fight?" The Charleston Gazette. April 6, 2006.

127 joined a panel ofenvironmental activists and community organizers looking for common ground among their causes. The spokesperson accepted the environmental activists' criticism ofmountaintop removal, explaining, "I don't think we have a problem with the concept ofending mountaintop removal."

He added, "We have always held the position that this issue is an important issue for all ofthe people who live in those communities, and it's important to talk about.,,237

However, a week later, the union backpedaled. Cecil Roberts published a letter in The Charleston Gazette, clarifying that the union would still stand behind union members working on mountaintop removal mines, explaining

"That is why we have joined with industry and political leaders in West

Virginia in rallies...to very clearly state our position on the preservation of those jobs and maintaining the economic benefits those jobs bring to the communities where our members live and work.,,238 These contrasting n:sponses are an opening to conversation about how the union and the environmentalists could unite around shared goals.

The anti-mountaintop removal activists must continue the conversation that began at the Appalachian Studies Conference. Ifthey can gain the support ofthe miners' union, they will not only gain the force ofthe state's original social justice movement, but will also be able to distinguish the mountaintop removal fight from the classic environment-versus-jobs dilemma. The environmentalists need help not only changing the politics and economics, but

237 Ibid. 238 Cecil Roberts, "UMW defends surface miners," letter to the editor, The Charleston Gazette, April 13, 2008.

128 also in communicating the existing truth: that mountaintop removal actually makes very little economic contribution to the state. They need to reassert

Cecil Roberts' claim that mountaintop removal is a threat to West Virginia's cultural heritage.

The Clean Elections Campaign

In combination with reinforced cultural frames, the West Virginia groups must tackle the problem ofthe coal lobby's influence over the state government. The Black Mesa case demonstrated the need to not only collect individual comments but strategically shape how the government receives them. Without an independent local political group such as the chapter houses through which to voice their concerns, the West Virginia activists need to transform the viable avenues they do have for influencing the state government.

Lessons from the Black Mesa case point to the importance ofthe activists' new clean elections campaign. West Virginia's anti-mountaintop removal groups have helped spearhead the campaign. They formed a coalition of26 groups, from the West Virginia AARP, to the Affiliated Construction Trade

Foundation, to the AFL-CIO and the West Virginia Council ofChurches. This coalition, Citizens for Clean Elections, crafted and lobbies for a plan to cut the strings that tie the state government to special interests and lobbyists.239

The plan is modeled after similar systems in Maine and Arizona, in which candidates can choose to run a "clean," publicly-financed campaign.

239 "About Citizens for Clean Elections," Citizens for Clean Elections, http://www.wvoter­ owned.org/aboutlindex.html.

129 Although the system is voluntary, the majority ofelected legislators in both

Maine and Arizona have won by clean campaigning: 85% ofthe legislators in

Maine, and 60% oflegislators plus the governor in Arizona. The clean election proposal aims to reduce government bias toward special interest lobbyists, alllow the candidates to spend more campaign time talking to constituents rather than raising private funds, and generally weaken the role that special interests play in setting public policy.240

This kind ofreform could be crucial to the fight against mountaintop removal because ofhow deeply coal money lines the pockets ofkey political figures. In one extreme example, West Virginia Coal Association president

Bill Raney spent $1,473 on holiday fruit baskets for the state's Department of

Energy, various legislative leaders, the governor (who got three baskets), and the presidents ofWest Virginia's two largest universities?41 More serious than fruit baskets, however, is campaign financing. As Chapter 6 explained, the

P~~op1e's Election Reform Coalition, a joint project ofthe Ohio Valley

Environmental Coalition and the West Virginia Citizen Action Group, tracked the coal industry's contributions to government officials from 1996-2004.

From 1996 to 2004, coal interests contributed over $4 million to the governor, the Supreme Court, and the legislature. The top recipients have been the governors, West Virginia Supreme Court Justices, and legislative leaders. As

240 Ohio Valley Environmental Coalition, "Public Campaign Financing: What Is It?" Winds of Change Newsletter, March 2008, http://www.ohvec.org/newsletters/woc_2008_03/article_15.html. 241 West Virginia People's Election Reform Coalition, Analysis ofCoal Industry Contributions to State Political Campaigns, 196-2004, by WV Citizen Action Group, Mountain State Education & Research Foundation, and the Ohio Valley Environmental Coalition, http://www.ohvec.org/issues/ campaign_fmanceJeform/articles/perc2004_coall.pdf.

130 Chapter 6 also described, the report shows how lobbyists have often strategically timed their gifts to influence key decisions surrounding coal mining?42

The powerful influence not only ofthe coal industry but also special interests in general taints the entire political system in West Virginia. In the

2004 state elections, for example, legislative candidates raised over $6 million for campaigning - ofwhich 63 % ofthe funds from special interests. As the

People's Election Reform Coalition explains, "Voters are turned offand many qualified candidates are excluded by lack offunds. Candidates spend so much time raising money that they have little time to talk with voters.,,243 Holding politicians more accountable to their voters could transform mining regulations, since a recent poll indicated that the majority ofWest Virginians actually oppose mountaintop removal. In 2004, the Appalachian Center for the

Economy and the Environment polled 500 voters and found that 56% opposed mountaintop removal, 29% favored it, and 15% did not know much about it.

Fifty-six percent said they would be more likely to vote against government

candidates who would weaken environmental regulations - and only 12% said

they would support these kinds ofcandidates. At least 75% were concerned

with mountaintop removal's effects on communities and environment, with a

full 82% concerned that mountaintop removal would pollute streams and

rivers.244

242 West Virginia People's Election Reform Coalition. 243 West Virginia People's Election Reform Coalition. 244 Appalachian Center for the Economy and the Environment, "Poll Results," http://www.appalachian-center.org/pollJesults/index.html.

131 The Citizens for Clean Elections proposed a bill that would promote competitive, voter-focused campaigns that tax the public as little as possible.

However, the legislature never voted on the bill during its 2008 session, since funding questions were still unresolved. The Citizens for Clean Elections has now committed to spending the next year resolving these questions so it can propose the bill again.245 Ofcourse, even this attempt to change the system is limited by the system itself, since the legislators will have to approve reforming their own campaign practices. Yet the project itselj~ with its diverse, 26-group coalition, is drawing attention to campaign financing problems and already creating the kind ofcivic engagement that the project seeks to produce.

Strengthening the Department of Enviroltlmental Protection

As a complementary attempt to improve citizen-state relations, West

Virginia activists have also focused on making the government not only willing but able to respond to communities' needs. Environmental activists and the state Public Workers' Union have joined to petition the legislature not only to fill vacancies at the WVDEP but provide better benefits. This strategy creates the opportunity to reclaim the state's theoretical "comparative advantage" in

protecting its own mountains, and streams, and people. After all, the federal

government allowed West Virginia to enforce its own surface mining and

reclamation laws under the assumption that the state's resources were best

equipped for the job.

245 "Clean Elections Update," Citizens for Clean Elections, February 29, 2008, http://www.wvoter-O\vned.org/news/2008/02_29.hunl.

132 In early 2008, the Ohio Valley Environmental Coalition launched a campaign to strengthen the DEP. In February anti-mountaintop removal activists joined the state Public Workers' Union in a rally for workers' health and the environment. They called for stricter enforcement ofstate environmental regulations, along with benefit protections and living wages. A representative ofthe Public VVorkers Union pointed out that the federal government is pocketing $2.4 billion from the EPA lawsuit against Massey - which, again, could have been West Virginia's ifthe DEP had caught the violations. "We cannot afford to allow these lost millions to go unnoticed.

How many raises? How manyjobs could be provided ifthe DEP was collecting fines from law-breakers?" he asked. "We need the DEP to do their job, which means we have to properly equip them with personnel and resources,,246 The campaign has the potential to succeed because the WVDEP itselfadmits that it needs help. Under the scrutiny that followed the lawsuit, the

WVDEP reported that it was making efforts to improve - but was still

approximately a year behind in reviewing the coal industry's pollution reports?47

The activists groups also started a petition demanding that the

legislature investigate why the WVDEP overlooked so many water pollution

violations, that it fill the 100 job vacancies which the WVDEP has reported,

and that it postpone all permits that involve dumping waste into streams until

246 Ohio Valley Environmental Coalition, "State Workers Rally for Wages, Revenue, Environmental Enforcement," Press release, February 8,2008, http://www.ohvec.org/pressJoom!pressJeleases/2008/02_I8.htm!. 247 Ken Ward, Jr., "DEP still behind on pollution monitoring," The Charleston Gazette, January 20,2008.

133 the DEP is fully prepared to monitor the streams and enforce the law?48 This appeal to the legislature has a precedent: in March 2007,50 coalfields activists lobbied to pass legislation that forced the DEP to study, for the first time, the effects ofcoal sludge in the water supply. This year's petition explains, "We know we can make a difference and help the DEP carry out their mission because we have done it before.,,249

The DEP has also proved itselfcapable offining some violations - recently $750,000 for a mining company's 300 violations ofthe Clean Water

Act,250 and in 2006 $1.4 million against Massey coal, though environmentalists

criticized that the fine was a small fraction ofwhat Massey actually owed.251

Still, the DEP appears committed to at least some oversight, and with a full

staffit might be able to better fulfill its role ofchecking up on citizens'

concerns and serving as the state's front line in mining regulation. The groups'

at1:l::~mpts to work with, rather than against the DEP might help reconcile the

previously tense relationship and ultimately give the citizens greater influence.

Diversifying the Coal Economy?

The Just Transition's detailed plan for renewable energy development

accentuates one important gap in the West Virginia efforts: none ofthe West

Virginia activists have created as viable a way ofshifting the West Virginia

248 Ohio Valley Environmental Coalition, http://www.ohvec.org/safewaterstrongdep/ DEP_Oversight_Letter.pdf. 249 Ibid. 250 Ken Ward, Jr., "Coal companies seek deals with state DEP," The Charleston Gazette, March 14.,2008. 251 Ibid.

134 economy away from coal. Instead, the activist groups often can only argue the negative: simply that coal is not benefiting the economy. Even communicating this argument is a challenge. The popular propaganda places coal at the heart of the West Virginia economy. Yet an EPA draft analyzing the impacts of mountaintop removal mining came to conclusions similar to those the Black

Mesa activists reached and the tribal councils are slowly reaching: that the communities economic options beyond destructive extraction.

The EPA report explained that the strictest regulations on mountaintop removal would only cost West Virginia 0.1 to 0.2 % ofcurrent total employment each year. The economic analysis called coal the "industry ofthe past," and claimed that the most promising industries for the central

Appalachian coalfield regions would be tourism, retail trade, health-care services, and call centers. The study concluded that "a reduction in mining may also have some positive side effects." It suggested that a reduction could prompt a shift towards sustainable forestry, and protection ofnatural resources

to preserve the tourism industry, 252 which already contributes more to the state

economy than surface mining.253

Environmental groups have proposed tentative plans to shift towards

this new economy. The West Virginia Environmental Council, which lobbies

for the anti-mountaintop removal activists, published an energy plan whose

goals include creating sustainable businesses jobs through renewable energy

252 Ken Ward, Jr., "Mining limits won't kill economy," The Charleston Gazette, May 12,2002. 253 Appalachian Voices, "Myths and Facts about MTR."

135 and energy efficiency projects?54 So far the plan only makes a series of recommendations, without a clear description ofhow to meet them. A conference in April 2008, however, provided one ofthe most organized efforts so far to envision an environmentally-sound economy. The conference, "Green

Makes $en$e," offered workshops on a variety ofsustainable business plans, from solar panel operations to green building to green tourism.255 Again, le:ssons from Black Mesa's successful strategies emphasize the need to

continue these kinds ofefforts

Tourism may offer West Virginia activists' closest approximation to the

Just Transition's renewable-energy alternative, since tourism is an increasingly

lucrative industry in West Virginia. In some cases, it may help fire opposition

to mountaintop removal, which ruins tourism opportunities. Tourism and

mining came to a head in 2007, when the DEP permitted a mountaintop

removal mine in the town ofAnsted, a lush recreation hotspot. The proposed

mine site borders a state park, and the mine would be visible from the popular

New River Gorge Bridge.

The community rose up in protest; the county commissioners passed a

resolution asking the WVDEP Appeal Board to rescind the permit. The

resolution detailed how the mine would damage the health ofthe community

and environment - and destroy the scenic vistas and threaten the tourist

industry which the commissioners described as "the fastest growing

254 West Virginia Environmental Council, "West Virginia Citizens' Energy Plan: For Economic Opportunities and a Sustainable Future," January 9,2008, http://www.wvecouncil.org/issues/ renewable_energy/WVEC_Citizen_EnergLPlan_2008.pdf. 255 West Virginia Environmental Council, "West Virginia Sustainable Fair 2008 ~ 'Green Makes SenSe,'"~ http://www.wvecouncil.org/calendar/SustainableFairFlyerAgenda.pdf.

136 industry...and the economic engine ofour County.,,256 The state Surface Mine

Board is now hearing the appeal. Ifthe community succeeds in blocking the mine, the victory could send a strong message about the power of economic alternatives to coal. The county commissioners' opposition to the permit also provides the first example oflocal governments supporting the environmentalists in the same way the chapter houses did in Arizona. Ifthis debate can encourage more counties to understand the economic tradeoffs of mining, and the longer-term possibilities ofspuring an economy without mining, the West Virginia groups could begin to combine grassroots political power, local autonomy, and sustainable economic development in the same way that the Navajo local governance certification is doing.

Conclusion

Without a key third-party ally like the Black Mesa activists had, the

West Virginia organizations' main avenue for influencing the coal industry is through the state government agencies. Still, the Black Mesa case provides a template for analyzing the most promising directions for broader-scale action.

In their fight to overcome the coal lobby's looming influence over the state, activists must reclaim their campaign frames, change their relationship to the

state government and its agencies, and develop proposals for alternatives to

mountaintop removal and even coal.

256 Commissioners ofFayette County, "Fayette County Commission Resolution Against Ansted Pennit," Winds ofChange Newsletter, March 2008, http://www.ohvec.org/newsletters/woc_2008_03/ article_03.html.

137 The Black Mesa case also illustrates the potential in West Virginia for combining narrower and broader approaches. The many failed environmental lobbying efforts educated the West Virginia activists about the need for the

Clean Elections Campaign, and even though the campaign has not yet succeeded, it challenges citizens to pay more attention to their representatives.

Similarly, though the Ansted community has not won their battle to protect their tourist industry, they call attention to the tradeoffbetween coal mining and the tourist industry and force the government agencies to think more de:eply about how their decisions shape the long-term future ofthe West

Virginia economy.

None ofthese broader-scale projects have finished, and many will be steep uphill battles. Reconciling with the coal unions means addressing the fundamental tension between many environmentalists' dream ofending the coal economy and the union workers' source ofemployment. Passing the

Campaign Finance Reform through the legislature would require convincing the legislators to vote to limit their own spending. Even filling vacancies at the

WVDEP does not guarantee that the new workers will be more responsive to citizens. Finally, spurring sustainable development in the second-poorest state in the country is no simple business. However, in a similar situation ofpoverty and dependency, the Black Mesa groups answered the need to expand their smaller victories into much broader ones. The fundamental lessons from the

Black Mesa case are that change is necessary - and possible - using practical, time-proven strategies to carry out a vision.

138 139 Chapter 8 Conclusion

The four strands ofthe Black Mesa activists' strategies shape this thesis. Together they illuminate the reasons for success in the complex Black

Mesa case, provide a framework for understanding the West Virginia struggles, and explain the significance ofWest Virginia activists' efforts to create broader change. By tracing these four key approaches, the thesis tests the theories of grassroots activism, demonstrating how working within institutions can be successful ifgroups combine both narrow and broad interpretations ofcivic environmentalism and environmental justice. The Black Mesa case and the perspective it provides on the West Virginia case also demonstrate the importance offraming the campaigns to harness the power ofthe political culture. The two cases echo the environment justice literature's emphasis on the importance ofplace as the root offraming and civic environmentalism.

They also begin to answer the literature's unspoken question ofhow an intense focus on place can connect to larger movements in a way that includes more than rhetoric about solidarity.

Both the Arizona and West Virginia cases begin with limits. To protect their land, water, and communities from the coal industry, the Black Mesa and

Vvrest Virginia activists both needed to influence the intermediate-level

governments - the tribal councils and the state. However, these same

governing bodies are shaped by and highly dependent on the same industry

they are responsible for regulating.

140 Yet in the face ofthese limits, the Black Mesa activists discovered four powerful tactics: framing the problem as not only about environmental but also cultural preservation, strengthening the grassroots voice with local government support, offering alternatives to the aquifer problem, and leveraging another angle through an outside partnership. At first, these strategies won a small victory: the Navajo and Hopi tribal councils agreed to look for a new water source. Yet the activists realized that only broader victories could preserve all tribal drinking water and prevent the tribal councils from compromising the communities interest in deals with the power plant and mine officials. To counter this risk, the activists used their strategies, but to push for this broader change. Now with the mine closed, the activists have switched from reactive to proactive campaigns. Throur,h the Just Transition Proposal and the Local

Governance certification, the same strategies have blossomed into even fuller

efforts to transfonn the limitations oftribal politics and economics.

The lessons from Black Mesa help assess how, in a similar political and

economic landscape, the West Virginia groups achieved so few successes in

their struggle against mountaintop removal. The West Virginia activists have

focused on the Black Mesa strategy ofpresenting a strong case to their

government. Yet despite all their efforts, they have not been able to find a

political forum as useful as the chapter houses. Instead, their efforts have only

reinforced the power ofthe state government. Their attempts to make their

voices heard have been further limited by their inability to channel cultural

pride, propose viable alternatives, or build an alliance with power outside the

141 system. While the activists have won a few token victories, they have been unable to build them toward larger change as the Black Mesa activists did.

Yet the view through the lens ofBlack Mesa's victories also highlights promising West Virginia projects that can build toward deeper success by recognizing initial weaknesses. The activists could reclaim a shared vision of

cultural heritage, redefine relationship between the state government and the people, and propose ways to the economy. Ifthe activists could build back their

alliance with the United Mine Workers, it would unite the grassroots struggle to

the powerful, near-legendary legacy ofthe former West Virginia miners' union

(which once rose up in the largest armed labor protest in U.S. history, against

the state and federal government). Ifsuccessful, the clean election campaign

and the push to strengthen the WVDEP could build more equal partnerships

between the government and grassroots. Finally, the growing interest in

building a sustainable and diverse economy might spur West Virginia to test its

ingenuity and claim greater ownership over its resources.

The case studies prove the most useful when they show how these narrower

and broader efforts can playoffeach other. They demonstrate that not only can

working to change systemic injustices facilitate smaller victories, but that

smaller fights can slowly redesign larger patterns. Outcomes oforganizing,

both successes and failures, can push citizens and governments to see a

situation with new eyes. On Black Mesa, when the councils proposed simply

switching to draining the C-aquifer instead ofthe N-aquifer, the activists

realized they needed to propose more explicitly radical alternatives to the

142 pumping. The economic shock ofthe Black Mesa Mine closure forced the

Navajo and Hopi councils to

In West Virginia the activists have achieved similar subtle yet important victories. The Bragg vs. Robinson lawsuit won the activists a valuable government watchdog: journalist Ken Ward, Jr. wrote series on mountaintop removal in The Charleston Gazette, and vigilantly continues to document the issues?57 In addition, failed lobbying efforts drove home the need for campaign finance reform. Finally, regardless ofthe results ofthe Ansted community's battle, the struggle can push the citizens and state to reevaluate the benefits ofcoal.

Combining these efforts could also not only build community, but empower the community. Narrow-focus organizing can quickly forge bonds between the organizers and their community and among community members, strengthened by an urgency which broader-focus efforts may lack. Once these connections form, launching efforts for more systemic change becomes easier.

On Black Mesa, by the time the groups were gathering support for the Just

Transition proposals, the activists had already built relationships with the

Navajo chapter houses and Hopi community groups. Both the early and later

campaigns brought together community members to talk about water, land,

health, and the future ofenergy use. The campaigns taught them how their

257 Hannah C. Halbert, "From Picket Line to Courtroom: The Changing Forum for Regional Resistance, Environmental Reform and Policy Change in Appalachia," Hamline Journal of Public Law &Policy 25 (2004), under "Litigation: An Essential Tool to Motivate Policy Change," http://www.1exisnexis.com/us/lnacademic/search/homesubmitForm.do.

143 tribal governments operate. The Black Mesa controversy also united the Navajo and Hopi tribes in a more meaningful and productive way than ever before, especially after u.s. relocation policies had turned the tribes into competitors

for land. This new partnership, forged by the protest against Peabody, has proved essential in the subsequent push to revolutionize the tribes' economies.

The West Virginia lawsuits also rallied many community members together for

the first time. As Hannah Halbert describes in a law journal article,

The developing coalition between grassroots organizations, individual citizens, legal action, and growing media coverage suggests a reemerging resistance movement in Appalachia. Not only is the coalition ofefforts more likely to produce lasting change on the specific issue ofmountaintop removal, but the synergistic actions form the foundation for civic culture and...create the democratic skills that are the basis for sustainable development.258

In many ways, the struggles to reclaim control over resources also

provide an opportunity for citizens to reclaim their heritage, health, community,

eeonomic independence - in essence, their home. The struggles have focused

the activists inward to confront institutional limits and explore how to

overcome them by digging into their cultural heritage, learning the intricacies

ofpolitical processes, and finding alternative solutions in the same places that

produced the problems.

Ultimately, however, the two cases call for pushing the limits not only

ofinequitable institutions but ofthe scope ofenvironmental justice and

grassroots activism. They call for a kind ofactivism that transforms institutions

to overcome limits and serve as a unifying force not only within communities

258 Ibid.

144 but between communities. The Black Mesa activists not only preserved their own water supply and are working to revitalize their own economies, but their work also helped clear up the skies in Nevada and may soon begin to add to

California's renewable energy portfolio. The West Virginia activists have joined with environmental groups across Appalachia but are also trying to form tangible bonds with diverse groups across the state: from the tourism industry to the AARP to the very regulators who once called them "unprofessional" and

"deceitful."

Just as lessons from the Black Mesa's smaller victories pushed them toward larger change, these growing efforts build momentum towards resolving the environmental justice literature's paradox: the call for a broad yet place­ based movement. The two cases offer possibilities for individuals and groups to connect around concrete ways to improve their lives. Could the Navajo and

Hopi become a key node in a cross-country renewable energy system that

stimulates economies and provides clean electricity? Could the West Virginia

groups finally gain a strategic equivalent to the Grand Canyon Trust's leverage

by working with groups ofstates to shut down power plants and phase out the

coal industry? At the moment, these possibilities remain just that: distant

possibilities. Yet they are rooted in real change that began on the oldest home

in the continent, and spread fr'Om there.

145 A Note on Sources

I was lucky enough to spend part ofmy summer traveling to West

Virginia and Arizona to interview the activists themselves. In West Virginia, I interviewed many members and stafffrom the organization Coal River

Mountain Watch. I also spent several nights at the organization's volunteer house in Rock Creek,WV, meeting other young people who wanted to get involved in the struggle against mountaintop removal. In Arizona, I interviewed members ofthe Black Mesa Trust, To'nizh Oni' Ani', the Black

Mesa Water Coalition, the Sierra Club, and the Grand Canyon Trust, and an

Environmental Studies professor at Northern Arizona University. However, I had not narrowed my focus for the thesis, and my interviews largely involved

personal stories. While I cite only a few ofthese interviews in my paper, they

all gave me important background in understanding the many dimensions ofthe

different cases.

Throughout this school year, I attempted to organize and explain the

stories from the summer, primarily through environmental justice and social

movement literature, law journals, newspaper articles, and the groups' own

websites and documents.

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