SALT LAKE CITY – A giant strip mine atop Black Mesa in northern Arizona will not be expanding under a permit it received more than a year ago from the Office of Surface Mining Reclamation and Enforcement.

In a surprise announcement Jan. 7, an administrative law judge of the Department of the Interior vacated a life-of-mine permit OSM issued Dec. 22, 2008 that would have allowed Peabody Western Coal Co. to expand its permit area on Black Mesa, where more than 5,000 acres of coal remain unmined.

The judge’s order, citing legal shortcomings, was handed down on the eve of a planned visit by OSM officials to Hopi and Navajo tribal lands Jan. 11 to discuss OSM’s policies and Peabody’s mining proposals, according to those informed about the event.

“OSM violated NEPA (the National Environmental Policy Act) by not preparing a supplemental draft environmental impact statement (EIS) when Peabody changed the proposed action,” said Judge Robert G. Holt, of Interior’s Office of Hearings and Appeals.

“The (Black Mesa Project) Final EIS did not consider a reasonable range of alternatives, described the wrong affected environment baseline, and did not achieve the informed decision making and meaningful public comment required by NEPA,” the judge said.

The Hopi Tribe’s position is that the judge’s decision “will have little practical effect on the mining operation,” Tina May, tribal public information officer, said in a prepared release.

The expanded permit area would have resulted in more stringent regulations on Black Mesa Mine, which had been operating under a decades-old OSM permit program, she said.

“The decision essentially sends the (EIS) process back to OSM for a do-over,” Nada Talayumptewa, chair of the Hopi Tribal Council’s Water and Energy Team, said. “Mining will continue under the existing permit that covers the Kayenta Mine and OSM will now have an opportunity to go back and revisit the question of how mining operations at both the Black Mesa and Kayenta Mines should be permitted in the future.”

Wahleah Johns, a Black Mesa Water Coalition co-director and opponent of the expanded permit called the ruling “an important step towards restorative justice for indigenous communities who have suffered at the hands of multinational companies like Peabody Energy.”

Johns said the decision is “also precedent-setting for all other communities who struggle with the complexities of NEPA laws and OSM procedures in regards to environmental protection,” noting the “irreversible damage of coal mining industries” on the environment.

Criticism of the Black Mesa Mine permit expansion process had been raised by Black Mesa Water Coalition and a number of other environmental and advocacy groups censured by the Hopi Tribal Council and Navajo Nation President Joe Shirley Jr. The mining issue also intensified political infighting on the Hopi Tribal Council and heightened conflict over pocketbook issues, cultural concerns, and resource control and management.

The vacated permit would have applied to 100 square miles of Hopi and Navajo lands of the Black Mesa Complex, including Kayenta Mine, which supplies coal via an 83-mile rail line to the Navajo Generating Station near Page, Ariz. Also in the complex is Black Mesa Mine, which supplied Nevada’s defunct Mojave Generating Station.

In 2004, Peabody sought to include Black Mesa Mine in its existing permanent permit for Kayenta operations and to be approved for rebuilding the 273-mile coal slurry pipeline to Mojave; for creating a new aquifer water supply system, including a 108-mile pipeline to convey the water to the mine complex; for building a new coal-wash plant and disposal facility; and for building a new haul road between mine areas.

The coal company identified two “action” alternatives – approving the permit application with the construction projects, or approving a combined permit for Kayenta and Black Mesa operations without the construction projects and without coal mining from the Black Mesa operations.

When Mojave closed and seemed unlikely to re-open, Peabody discontinued the former construction plan but proposed to enlarge the area of its mining operation by nearly 19,000 acres.

As required by NEPA, the company identified its purpose as continuing the supply of coal to the NGS and encompassing Black Mesa facilities and coal areas into Kayenta permitted operations. It did not, however, completely abandon the construction plans it termed “unlikely” and analyzed them in both draft and final EIS’s.

Because the proposed changes resulting from elimination of the construction plans were substantial, federal regulations required OSM “to at least prepare a supplemental draft EIS,” the judge noted.

“At a minimum, the new proposed action would change the impacts on water resources, soils, vegetation, wildlife, and cultural resources,” he said.

By describing the baseline environment inaccurately, it “left the impression that the proposed action would have significantly less impact.”

By changing the proposed plan but failing to revise the plan’s scope or analysis of significant issues OSM violated federal regulations and failed to inform the public about reasonable alternatives and failed to provide “full and fair discussion of significant environmental impacts.”

Because the Final EIS did not comply with NEPA it cannot support OSM’s permit decision and the permit decision must be vacated and sent back to OSM to prepare different NEPA documentation to support a new decision, the judge said.

An analysis of the Final EIS was conducted by volunteers at the UCLA Environmental Law Clinic for use in the appeal. Besides Black Mesa Water Coalition, others involved included Victor Masayesva Jr.; Kendall Nutumya, The Forgotten People (Coal Mine, Tonalea, and Leupp Chapters); David Abney and Sean Gnant of Ahwatuckee Legal Office; and Californians for Renewable Energy.