The Governor of Zuni, Robert Lewis, learned of the Salt River Project's plans to develop a massive coal surface mine approximately 11 miles from the sacred Zuni Salt Lake in the middle 1980's. The Governor and Councilman of the Tribe were, of course, very concerned that the proposed Coal Surface Mine in addition to its other threatened effects on the area surrounding the Fence Lake might represent a direct threat to the water and/or salt supply reaching the sacred Zuni Salt Lake which the Zuni people believe to be the home of the Salt Mother, a most important religious figure in Zuni belief. Neighboring tribes such as the Pueblo of Acoma, the Pueblo of Zuni, Rayman Navajos, the Hopi Tribe, etc. and perhaps others have also used the sacred Zuni Salt Lake and its vicinity for many centuries according to their own oral histories and as confirmed by many anthropological studies. Governor Lewis, in approximately 1986, expressed the Tribe's grave concerns about the safety and survival of the Zuni Salt Lake by asking the Department of the Interior to undertake a thorough and independent study of Zuni's concerns and report on whether those concerns were well-founded.

Zuni was particularly anxious to preserve Zuni Salt Lake because the Pueblo had just completed almost a century of aggressive political struggle to obtain the return of Zuni Salt Lake to the ownership of the Zuni Tribe. Due to obscure legal determinations made in the late nineteenth century, Zuni Salt Lake had been treated as a salt harvesting resource of the territory of New Mexico and had been put under the control of the territorial Land Commissioner rather than that of the Tribes that annually harvested salt for religious and practical purposes from the Lake. It was only in 1977, after decades of struggle, that the Congress instructed the Secretary of the Interior to arrange whatever land exchanges were necessary to effect the return of this land from the State of New Mexico and the Zuni Salt Lake and the area immediately around it were, over a period of years thereafter, reacquired by the federal government and transferred to the title of the Pueblo of Zuni. The Pueblo of Zuni has always treated the Lake as accessible to other Native American Nations which have historically used it and the Pueblo of Zuni has also treated a large area surrounding the Lake as a sacred sanctuary zone, sometimes called "A Neutral Zone" by anthropologists. After the return of Zuni Salt Lake itself to the ownership of the Pueblo, most of the land surrounding it, including the lands constituting the federal portion of the Fence Lake Coal Mine, were owned and controlled by the Bureau of Land Management.

For reasons that are not easy to reconstruct today, the US Geological Survey, which had been asked to investigate the questions raised by Zuni Pueblo in 1986 did not publish its completed report until 1992 by which time the Salt River Project had already acquired two (2) coal leases from the Bureau of Land Management which were finalized on November 1, 1991. Unfortunately because of the delay in the USGS publication of the hydrology report on the threat to Zuni Salt Lake from the proposed Coal Surface Mine, its conclusions could not be discussed in, or even known, at the time of the Bureau of Land Management's environmental assessments in the late 1980's and through 1990. The USGS report in 1992 studied the impact of a potential large new coal surface mine activity in the San Augustine coal area as designated by BLM and of course, the Salt River Project's Fence Lake Mine falls directly in the middle of the San Augustine area. It was known that the Salt River Project had been drilling wells particularly explores the availability from the Dakota aquifer to serve the Coal Surface Mine purposes over a period of approximately fifty (50) years and that is one of the issues studied by the USGS report. Its author, Dr. Robert Myers, analyzed proposed additional pumping for such a coal surface mine from the Dakota aquifer, and analyzed the Dakota Sandstone as a confined aquifer. That is one which would not be substantially recharged by leakage from above or below in response to pumping. He also recognized this as undisputed that the Dakota aquifer underlies, and is continuous, in existence in the entire area between Zuni Salt Lake to the southwest and the Fence Lake Mine to the northeast. The distance between them as noted above is about 11 miles and much of that distance is represented by Nations Draw and Largo Wash, local surface water features that follow the trend of the Jemez Lineament, a large geological feature of recent volcanic origin which stretches across much of northwestern New Mexico.

The USGS report after using the customary formulas for calculating the effect of additional pumping in a confined aquifer, predicted that there would be at least four (4) feet of decline in the Dakota aquifer at ten or more miles distance from the pumping center for the proposed coal mine and noted that because Zuni Salt Lake is extremely shallow, often fluctuating between one and one-half (1 1/2) and four (4) feet in depth that it could be expected that such a substantial decline in the water elevation in the Dakota aquifer under the Lake could have a serious affect on the survival of Zuni Salt Lake itself. The Pueblo for obvious reasons thought that the relatively clear conclusion of the USGS independent review of this issue would foreclose the possibility either of the coal mine being established as Fence Lake or at least of any thought of using the Dakota Sandstone aquifer to supply the water needs of the coal mine. However, to the deep disappointment of the Tribe, the Salt River Project ignored and contradicted the USGS report in November of 1993 when it filed its Permit Application Package (PAP) with the New Mexico Mining and Minerals Division and in fact asked for the right to supply all of the needs it would experience in the future from the Dakota aquifer alone if it chose to do so.

While the USGS study was underway, the BLM completed a lengthy process of completing a management plan for the entire Socorro District which included the San Augustin coal area which in turn included the Fence Lake mine site. While this was being undertaken, the BLM also had an overlapping responsibility as the lead agency in NEPA review of the impact of the proposed Fence Lake mine. The question was raised before BLM because the Salt River Project Agricultural and Farming District of Arizona had not only drilled wells to explore the availability of water at the Fence Lake site for a coal mine but had also contacted BLM and made it clear that it was requesting very large leases of BLM land in the Fence Lake area as an essential element of its proposed Fence Lake Surface coal mine. For reasons that are hard to reconstruct today, BLM did not communicate with or adopt the studies already under way by the USGS in the late 1980's while it was completing its Socorro Area Management Plan or its so-called environmental assessment activities in connection with the request by SRP for two leases of BLM federal lands to form the centerpiece of the Fence Lake coal mine; the total acreage sought and later permitted by BLM to SRP is 6440 acres. The BLM elected not to deal with the issue of the possible affect of water depletion for the Fence Lake mine on the nearby Zuni Salt Lake, obviously assuming that the New Mexico state agency or some other entity would try to cope with that consideration. Likewise, the BLM does not seem to have dealt in any way with the massive impact of a coal surface mine of some 18,800 acres (of which 6,440 acres were federal land) on the adjacent land which Zuni and other Tribes had viewed as a sacred sanctuary zone and in which it was widely known that a great number of shrines, burial cites, and archaeological ruins, some of religious importance as well, existed. As a matter of fact, the BLM simply dismissed that issue by making its own finding before the completion of its "impact assessment" that there was nothing apart from Zuni Salt Lake itself within the BLM managed lands at Fence Lake that would qualify as eligible for listing on the Federal Register of Historic Properties. This is of considerable importance because approximately a decade later when the issue was revisited by the National Park Service on an appeal from the New Mexico State Historic Preservation officer, the Park Service did in fact recognize approximately 185,000 acres adjacent to Zuni Salt Lake as an eligible property in toto and thus contradicted the premise of the environmental and administrative assessment that the BLM had made some eight (8) or nine (9) years before. Most importantly, the 1998 determination by the Park Service of the eligibility of the entire sanctuary zone for listing on the Federal Register included at least fifty-five percent (55%) and possibly more of the area that had already been leased to SRP by BLM subsequent to its BLM's so-called environmental assessment and subsequent to its erroneous calculation that nothing but the Zuni Salt Lake itself and one or two explicit physical sites at Fence Lake were themselves eligible property.

The BLM does not seem ever to have "screened" the 6,440 acres sought by SRP for coal mining, as Congress seems to have required it to do at the time, either in the context of its administrative plan which was reaching completion in the late 1980's, or in its so-called environmental assessment on the pending applications to lease federal coal lands by SRP. This is particularly odd in view of the fact that the BLM files contained a 1988 study by an independent archaeologist/consultant, Dr. Clara Kelly, who had been retained to interview tribal elders and representatives and otherwise investigate the possible impact of the proposed coal mine on traditional, cultural properties. One of the things Dr. Kelly acknowledged in her 1988 report, was that her conversations with representatives of the Pueblo of Acoma indicated that there was a very large zone surrounding Zuni Salt Lake and running almost directly to the proposed federal coal lease lands which the Acomas themselves recognized as part of the sanctuary zone, and she reports that the Acomas cautioned her that the Zunis had a different and perhaps larger estimate of the boundaries of the sanctuary zone surrounding Zuni Salt Lake. Dr. Kelly was not authorized to pursue discussions with Zuni representatives and her study was reported without any other reference to this critically important issue. The failure of the BLM to properly screen the alternative uses of the land sought for the federal coal leases at Fence Lake, including the bona fide alternative of recognizing the unique, religious, and historical importance of this land to the Zunis and their neighboring Tribes resulted in an extremely cursory, environmental assessment which predictably concluded without any detailed weighing of impact on traditional, cultural properties or threat of new water uses on Zuni Salt Lake, that the land should be leased for coal surface mine purposes as sought by SRP. Those leases were of course signed on November 1, 1991. Thereafter, in 1992 when the USGS report of Dr. Myers was filed, the Tribe believed that that belated publication would at least protect the Tribe since it was itself a Department of the Interior independent finding. However, the USGS report, despite its six (6) years of study and preparation, seems to have been a tree that fell in the forest with no one standing by to hear. In November of 1993, SRP filed its PAP in Santa Fe, New Mexico and elected to contradict and ignore the warnings that Dr. Myers had expressly included in his report to the affect that Zuni Salt Lake was in danger of adverse effect and perhaps destruction from the proposed SRP pumping.

Although the state laws and rules of the Mining and Minerals Division which are required to track the provisions of the Surface Mining Control Reclamation Act ("SMCRA") enacted by Congress in 1977 expressly provide that a PAP is supposed to contain authoritative hydrologic information obtained from competent independent federal and state agencies. SRP in this case chose to ignore and the MMV has never made the slightest effort to enforce this requirement of its own statute and rules. The SRP’s position was that Dr. Meyers was over-conservative and simply wrong in his analysis of the “aquifer” as requiring study under the equations for a confined aquifer which would, of course, promulgate effects eventually many miles distance. Instead, SRP simply assumed without any independent evidence or testing to support its assumption that the “aquifer” pumping by SRP would induce leakage from the overlying Mancos shale. A confining aquifer known as an aquitard, the existence of which had in fact served to make the Dakota an aquifer in which water was encountered under substantial pressure. This assumption that there would be responsive leakage was based on a broad belief that an entire area is volcanically fractured and therefore that there would be deep, continuous, transmissive vertical fractures that would allow communication of water from the Mancos to the underlying Dakota aquifer. This unverified assumption permitted SRP to calculate that the maximum effect of pumping at Fence Lake would not exceed approximately 3,700 feet and therefore could represent no possible danger to Zuni Salt Lake which was 11 miles distance. Neither at the time, nor subsequently, has SRP ever been required by the State, MMD or indeed by any federal agency dealing with this matter to conduct the brief aquifer pump test which experts agree could relatively quickly demonstrate whether Dr. Meyers of the USGS was right in his initial analysis or whether the extremely convenient contrary assumption of the SRP and the New Mexico Mining Division is on the contrary correct. It is also important to remember that since that time the matter has been independently examined by the New Mexico State Engineer Office Technical Division which is precisely the same analysis as did Dr. Meyers of USGS and came to the same conclusion that a decline of 4 or 5 feet in the Dakota aquifer at a distance of 10 or more miles would result from the proposed SRP pumping at Fence Lake. Indeed, the New Mexico State Engineer’s calculation predicted that there would be measurable ground water declines at a distance of 2_ miles in the Dakota aquifer from the SRP pumping center in as little as 25 days. However, despite all of the Tribe’s repeated attempt, neither the state nor the federal agencies have ever seen fit to order the test that would verify or discredit the SRP’s assumption on this point.

In addition to this New Mexico State Engineer hydrologists from the United States Bureau of Indian Affairs examined the technical data and approximately four years ago entirely endorsed the Tribe’s concerns and the Tribe’s technical analysis. In the meantime, Glorieta Geo-Science had been hired by the Pueblo to make an independent analysis of the SRP proposed pumping at Fence Lake on Zuni Salt Lake. Glorieta Geo-Science was hired in September of 1996 immediately after the director of the New Mexico Mining and Mineral Division entered her permanent decision in favor of the SRP application for a coal surface mine to develop 81 million tons of coal over 37 years, with the right to rely entirely if it chose to do so on the waters of the Dakota aquifer. Although Salt River Project had had no less than eleven or twelve years to drill wells and examine water supply and study the geology of the area and Zuni Pueblo did not even become a formal party to the proceedings until it had filed its appeal from the MMD’s granting of the permit in August of 1996, the MMD refused to extend the trial on the appeal. Zuni pointed out that under the unusual rules of the MMD, once the appeal was filed by Zuni which had never had any formal participation before, all of the burdens of proof to show that the agency was wrong shifted to the Pueblo Zuni and that Zuni had only in July hired new attorneys and in September found capable hydrologists to study this critically important issue. On October 1, the Zuni’s formally filed a motion for an extension of time to be able to prepare an adequate technical case on the obvious dispute between the USGS report and the way in which the MMD and SRP were treating the effects of production for the proposed Salt Lake mine. On the 4th of October, the director declined to grant that and announced that the hearing would begin with the hydrology issue on the morning of October 21. In the intervening two weeks, the newly-retained hydrologists and lawyers for the Tribe had to put together their entire case with all the burdens of proof placed on the Tribe to be presented in approximately 2-3 weeks before an agency hearing headed by the agency director who had already considered the matter for several years and whose name appeared on the permit from which Zuni had appealed. It also became clear during the trial that when the agency put out a CHIA, or Comprehensive Hydrologic Impact Assessment in late 1994, in which it adopted the SRP contention that Zuni’s Salt Lake could not be injured by SRP pumping because the Dakota aquifer was a leaky confined aquifer and the effects of pumping it could not extent beyond 3,700 feet, the director of the MMD had been extensively involved in reviewing and preparing the language of this technical report which of course prejudged the issue which Zuni was forced to challenge in October of 1996. The depositions of the experts of both sides were not possible until the middle of the week. Before the trial was to begin, the last deposition was on Friday afternoon and the trial began on the following Monday morning. The hearing officer made it clear that there would be no rebuttal opportunity and that there would be no additional evidence heard on hydrology issues. After Zuni’s case was made, even though it was stated that the Zuni’s hydrology advisors had only had time to make brief visits to the lake and its area, review an enormous geological literature on the subject and had not even had time to prepare a written report setting out their testimony and conclusions.

One of the key issues in addition to the impact on Zuni’s Salt Lake from the pumping of the Dakota aquifer itself was the question of how much water SRP actually intended to take from that and perhaps other aquifers in connection with the Fence Lake mine. Although at many places the PAP reported only that SRP owned the right to take 300 gallons per minute of water from the Dakota aquifer which would be more than sufficient to supply the approximately 100 gallons per minute which it said it would need, it was discovered in preparation for trial that SRP had actually acquired and declared in the State Engineer’s Office 600 gpm of Dakota aquifer rights expressly tied to the Fence Lake mine, and more than 300 gpm of other rights giving it a total water right declared in the State Engineer’s office approximately eleven or twelve times greater than the maximum it was telling the State of New Mexico it would ever need. Unfortunately, all of Zuni’s efforts at the trial to discover SRP’s plans for the balance of the water it had acquired and declared in the State Engineer’s Office but not discussed in its PAP were thwarted because the director of the MMD persuaded the hearing officer that those matters were irrelevant to the issues before the hearing office. Therefore, that very large discrepancy involving possible future expansion of Dakota aquifer and other diversions in connection with the Fence Lake mine has never been explained by SRP or the State.

The existence of the State Engineer’s independent analysis of the effect of pumping the Dakota aquifer at a distance of 10 or more miles was also not disclosed by the SRP or the MMD. It appears that the MMD staff “hydrologists” (whose entire hydrologic experience apart from this case consisted of a six-week course at the University of Tulsa after he was hired by the State of New Mexico), was sent to the New Mexico State Engineer asking it privately to review and give its blessing to the way SRP had conducted certain extremely short well tests at its pumping center at Fence Lake in 1994. In the response, the State Engineer Office surprised the MMD no doubt by noting that the Dakota aquifer was properly studied as a confined aquifer under the same equations that the USGS had used and he came to exactly the same conclusion. Unfortunately, although that advice communicated in writing in May of 1996 to the MMD supported the Tribe’s position and contradicted the SRP permit application as well as the 1994 CHIA published by the agency itself, the MMD never saw fit to call that to the attention of the Tribe before the trial on the hydrology issues began. Indeed, we only learned of it by accident when investigating the contents of the State Engineer file a few days before the trial commenced.

The Tribe has sought and will continue to seek to prevent the Department of Interior from approving the one remaining federal administrative action which SRP is seeking from DOI. That is, the approval of its life of mine plan. Even though the office of surface mining put out a “Final Supplemental Environmental Impact Statement” in April of 1996 immediately before the State approved the SRP permit, the OSM did not in any respect conduct original or independent studies to reconcile the difference between the 1992 USGS report and the hydrology position taken by SRP in its PAP and thereafter endorsed by the state agency MMD. On the contrary, it simply defaulted on its responsibility to independently review this issue and adopted the findings of the state agency which in turn rubber-stamps the position taken by SRP and its permit application package. When the Tribe discovered that this 1996 so-called FSEIS had been apparently timed to give a federal blessing to the state MMD action a couple of months later in approving the permit application package, the Tribe began a program of bringing these issues including the serious breach of trust by certain federal agencies of their responsibility to fairly and objectively consider the questions raised by Zuni Pueblo in its insistence that Zuni’s Salt Lake as well as the traditional cultural properties in the sanctuary zone be respected and protected so that the Zuni’s and their neighboring tribes could continue to practice their religion as they had done for millennia. So far, even thought he 1996 FSEIS determines that the life of mine plan should be approved, such action has not been taken and in fact the office of trust responsibility in the BIA has been asked by the Secretary’s office to reexamine the questions, including the Tribe’s complaints that the EIS process needs to be reopened and at a minimum there needs to be a significant aquifer test of the Dakota to resolve scientific disputes. In the course of an independent study commissioned by BIA-OTR through Dr. King and Dr. Richerly of New Mexico State University, both experienced and distinguished engineer geologists, their tentative report is to the effect that if anything the Tribe’s concerns had been understated and that the proposed pumping will in fact very possibly cause even greater threat to Zuni’s Salt Lake than Zuni’s own consultants predicted. Indeed, Dr. King has now stated in writing his belief that not only virtually all of the water reaching Zuni’s Salt Lake comes from the Dakota aquifer underlying it, but that the salt which also reaches the lake and is later harvested by Native Americans also originates in the Dakota aquifer. We will be glad to try to answer any questions that the Commission has about the hydrology and related issues.