Here at Navajo Council Resources & Development Committee’s special meeting regarding continued purchase of BHP coal mine by Navajo Nation, which is represented by Navajo Transitional Energy Company, a tribal enterprise that the Council created to complete negotiations of BHP coal mine.
I did an interview with NTEC President Steve Gunderson and asked him about El Paso Company pulling out of its ownership of Four Corners Power Plant. Gunderson said that he couldn’t comment but he added that the Corporation representative that leaked that information would be liable to lawsuit by the Security Exchange Commission because according to Gunderson the leak was linked to “insider trading.” Gunderson also said that El Paso’s share in Four Corners Power Plant was already purchased. He wouldn’t name the buyer. I also asked him if a coal agreement had been made with Four Corners Power Plant and he said it’s continuing.
RDC STARTING:
SPNOPSR DELEGATE LORENZO BATES
when created NTEC as owner, operator of mining operation, we also included the authority to make waivers to move forward with coal mine purchase. When BHP operator, they had to do what is before us today. As NTEC going thru this process, NTEC also do this and as they sought our reclamation bonds, they went to these two entities and as a result of NTEC being a new company with no assets and no track record, rather than recognize the authority that Council granted, they came back to NTEC and said no, we want the Navajo Nation to stand behind this and why we are here. They want Navajo Nation signature. And how turn over to Gudnerson to provide details.
NTEC CEO STEVE GUNDERSON
the need for Navajo nation to stand behind two pieces of insurance since due diligence report provded and included earlier legialation so the need is not necessarily new where tribe signatory to insturane. but what is new is that we have chosen 2 insurance companies cuz of willingness to accept Navajo arbitration act over agreements. as got closer to closing, Zurick realized high dollar amts from Swiss financial parent company and parent company decided last minute for some reason that they wud use navjao arbitration act but they wanted neutrality. as spoken to u many times before, I’ve been in corporate transaction in 20 yrs and when corporations engage in thse negotiations over large contracts, they do arbitration in Delaware so all treated equally. but say that in their acceptance of Navajo arbitration act that Navajo has a little of an upper hand. And application of New Mexico coiurts, I’m not an attorney, is where NTEC go. Neutrality is what they are seeking. it’s common in transactions such as these that this is what occurs.
NTEC ATTORNEY GREGG KELLY
Zurick willing go with Navajo arbitration act but Councl neds to accept alternative binding arbitration. as Gunderson mentioned, Zurick very interested in finding neutral forum and same for parties for coal supply agreement so all parties in same arbitration and bring in Four Corners Power plant owners but Navajo arbitration not apply. forum wud be in Albuquerque and use NM arbitratin act and NM arbitration act has been used when issue related to tribe that occur off reservation go into arbitration.
NAVAJO DEPARTMENT OF JUSTICE MARCELLINO GOMEZ
I will add very little to Greg Kelly’s explanation of legislation, what adding is forum selection and use of NM arbitration act and other than that cud have used Navajo arbitration act in tribal court. what doing here is allowing arbitration in NM court.
RDC MEMBER LEONARD TSOSIE
This is scary and I supported purchase of BHP coal mine and I have witnessed NTEC Board and CEO and they did good. And I don’t blame them for this. But we need to draw the line. I am losing taste for this deal. I’m disappointed that Due Diligence Team didn’t bring up when doing and now happening after the fact. If APS doesn’t trust us then why shud we trust them and their insurance company. This is a 100 waiver, not limited. One totally give up to state courts and state courts end up being enemies and once expose to state court they will apply state law, not Navajo law because they will tell us we cound ourselves with this thing. only ting reminded of is when see Zurick I’m reminded of Switzerland. Don’t know if three eyes, use lasars as weapons. looking at assurity right to settle and has unconditional right means Navajo has no say…or pay any loss, decision by assurity shall be final and binding. I read that as we have no say. I don’t know why we don’t negotiate. They are telling us, take it or leave it. So I say don’t take it. Legislation is a little misleading, not partial waiver but 100 percent waiver. Exhibit A says indemnities deposit money in event of loss which means tribe puts up money. I thot they would. to me I read to say that Zurick write letter and say want $100 million and we have to do. And at #4, it says such funds to pay loss or hold as collateral for future potential loss. They’re going to hold this as collateral. #5, we give way out – assurity may cancel any bond without an liability. This is the Get OUt of Jail card. We pay them all this money with #4 and #5. Amazed NDOJ not advising us, if u do this these are the consequences. I’m beginning to feel that in absence of advice that it’s bad advice. And why I couldn’t sleep last night. If this move forward, I rcommend that Council sit down with APS and re-examine. Been hearing partners not wanting go forward. Navajo Nation lived up to obligation. They did what they wanted at beginning. And I stand behind vote. But now, this was supoose to be done in July and now one partner on other side changing their mind so it’s not good. And I think if BHP had done this then BHP brief us on how much paid and issue they went thru with this kind of agreement. BHP willing to talk to us when processing documents. WE shud talk to BHP and not just staff and few Cuncil members cuz this going to Council. and I understand that this cuz whole effort ot fail and cost $40 million loss to budget but total cost may outweigh $40 m loss and tell NTEC Board and CEO thank you. they keep pushing us and who is to say that come back again for more concessions. I have no beef with NTEC Board and CEO and I thot that all resolved in July. If APS and partners no longer trust us to perform then we shud say we don’t trust you either. We’re not going anywhere. Later generations be here to mine coal so why treating us as foreign coal company. We’re going to stay here. but now they want us to put up performance bond and if not work then not work. but crazy rule that if vote down that this legislation moves forward so let’s meet before goes to Naabi and Council. And workers at BHP and Four Corners Power Plant need to kow that it’s not Council’s fault. So I urge not to pass this.
RDC MEMBER LEONARD PETE
wE gave lot of money for Due Diligence and thot look. And now without guidance from tribal attorney I feel being lead down dark road. I wish I was attorney so cud feel like I fully understand what is happening. But I don’t feel like that. I feel like we’re going to end up with monkey on back. More deal with this, the more tangled it gets.
