Attorneys for the Gila River Indian Community urged an Arizona federal judge earlier this month to toss a suit brought by the Hopi Tribe and two other plaintiffs seeking to force a state water agency to keep buying power from the Navajo Generating Station until it closes at the end of 2019.
Attorneys Linus Everling and Thomas L. Murphy argued on Aug. 2 that a ruling in favor of the plaintiffs – the Hopi Tribe, Peabody Western Coal Company, and the United Mine Workers of America – would undermine the tribe’s water rights.
“And it would make no sense, after the United States’ investment in NGS has fulfilled its purpose of providing low-cost power for decades, to require that (Central Arizona Project) users must now, (50) years later, pay for NGS power at above-market ratees to artificially prolong the life of NGS,” Murphey wrote in a motion to dismiss that was officially filed on Aug. 21, during which U.S. District Judge Steven P. Logan allowed the Gila River to intervene in the case. “Requiring purchases at above-market rates after NGS is no longer economically competitive would undo the very purpose of building NGS in the first place – providing low-cost power to deliver CAP water.”
Murphey says the Central Arizona Water Conservation District should be allowed to carry on with its plans to stop using the plant’s power for an Arizona water canal system.
“Plaintiffs’ attempt to force (Gila River) to subsidize their coal production would destroy the value of (Gila River’s) trust assets by artificially raising the cost of delivering through forced non-market power purchases,” Murphy wrote. “NGS cannot generate power at rates competitive enough to stay open unless a federal court requires CAWCD to buy its power, there will be by definition be little to no market for or sales of excess capacity.
Murphy added saying even if there were such consumers willing to pay above-market rates, the plaintiffs identify nothing in Section 303 of the Colorado Basin Project Act that would dictate the perverse outcome of requiring Arizona tribes to overpay for their CAP water entitlements as a way of keeping NGS open past the date when it is economically sustainable, so that they and CAWCD can receive indirect and contingent benefits from the sale of excess capacity.
The plaintiffs filed a lawsuit against CAWCD on May 1 in the U.S. District Court in Arizona, saying the Colorado Basin Project Act obligates CAWCD to acquire CAP’s power requirements from NGS so long as NGS remains open.