Motion by Smith and Apachito
SPONSOR NAVAJO COUNCIL DELEGATE LORENZO BATES
I want to emphasize to colleagues that insurance not for BHP, for us, NTEC, who are, will be the owners. It has nothing to do with BHP. We are the owners and it’s required. It’s unfortunate that thru this process to complete the acquisition that an outside company decided to do wat it did. Navajo Nation has never decided to do that in the middle of the game. but we have player that has changed and only reason we are here today. We,the Council, thru Prez signature, granted authority to allow NTEC to sign off on documents. but simply because NTEC has no track record as we speak. NTEC has no assets is why we are here. Once all of what is required, in terms of acquisition, coal fuel agreement, APS purchase of SCE share in Four Corners Power Plant, then NTEC establish track record. And intent of Council when Council approved which was to gain control of resource that did the job that we cud have been doing and now are doing. You as council by your vote put ur trust into employees of BHP to insure that the continued jobs, to insure that continued revenues, that the resource we have that we wud proceed with. that is the vote you gave. but by virture of outside company changing mid-stream is why here not wat Council voted on. for more than 50 yrs, Navajo sat on bench and had no say on resource that we have 100 yrs worth. but here today by your vote to have a say and determine future of coal. granted that coal is, will be at it’s lowest level but technology is such, as we talk today, has been improving and will improve that coal can become, not clean coal but more acceptable to the environment. and that example is amount of dollars owners have to put in place today for more than billions into 3 units and 2 going down.
NTEC STEVE GUNDERSON
insurance bond is between NTEC and insurance companies.
NTEC ATTORNEY PAUL FRYE
very brief comments. this proposed resolution changes one thing, where determination of arbitration panel enforced. it doesn’t change process of decision making in event of dispute. decision makers are who u approve. they pick one arbitrator and we pick one and third decides. court has ability to enforce or not.
NAVAJO COUNCIL DELEGATE DWIGHT WITHERSPOON
there is concern if entities are not interested in coal and pple wud not vote for this. there is essentially issue related to NTEC having limited capital, not having history and actually being owner. it needs to demonstrate it is owner and demonstrate get benefits of not paying state taxes and act like owner, you have to have insurance.
unfortunately if timing, cud identify other companies but this company wanted different court for half a billion dollars insurance bond.
DELEGATE KATHERINE BENALLY
Dine Power Authority came to us over and over saying You gotta do this but you have cough up so much money and we did, close to $40 million and nothing happened.
Is NTEC going to do this too? You gotta do this before we do this! I thot everything done when signed on dotted line. IF didn’t happen, we shud have backed out.
If not this matter, another matter.
And secondly, understand, someone told me, question for Speaker, that this is majority vote only.
There is a memo that we received from Attorney General Tsosie, dated today, that Legislation 0367-13 only deals with changing arbitration so only majority.
DELEGATE RUSSELL BEGAYE
addendum #2, limited waiver of tribal sovereign immunity, and I believe that requires two-thirds vote.
NAVAJO DEPUTY ATTORNE GENERAL DANA BOBROFF
Navajo Nation Arbitration ACt, section 1102, talks about Navajo courts for enforcement and not exclusive court for enforcement and with Ramah court can go into state court without waiver or this legislation. Take tribal court order into state court so we believe don’t need 2/3 majority vote. just asking to agree with enforcement in state courts if necessary.
NAVAJO ATTORNEY GENERAL HARRISON TSOSIE
We looked at this in two parts. when u do a contract, u usually have sovereign immunity clause and then choice of law provision and have provision for dispute resolutions so lok at separately: sovereign imuunity and place for arbitration. so back when 88 council they enacted arbitration act and passed with 2/3 vote so council already waived sovereign immunity and now adding state forum to enforce arbitration. and what adding, in addition to Navajo, is state courts. As Bobroff stated, based on this provision, case Navajo involved in, there was judgement domesticated in state courts and become valid in another jurisdiction, whether in state or federal, if took judgement from Navajo, it cud be domesticated. once get judgement, they can take judegement and have recognized by that jurisdiction. so that wiaver has been done and coming to add another forum where award of arbitration can be enforced. I know can be difficult and step back to explain whole purpose. the folks keep coming back for more and more. first negotiations was with BHP and as moved along we got to point of doing fuel supple agreement and as condition of owning mine, OSM said need insurance bond.
DELEGATE LEONARD TSOSIE
AG up there only to explain arbitration act.
He’s not an agent and he’s going into support Bates’ legislation.
Delegate Benally asked for legal advice by chief legislative counsel.
I was comtemplating this too and Aribitration is exemption to sovereign immunity but I question jurisdiction and Bobroff said no tied to jurisdiction in Navajo Nation. That is certainly one reading. It says “may” be enforced in Navajo court.
I am not comfortable with lowering super majority cuz bad precedence. there are numerous legislation that came to us and not as tough as this. Yet we required super majority, everytime. And it seems to me that lowering of super majority is a selective action by Department of Justice. That action is not required or used across the board. and then I’m concerned that the next thing, ask for more money, over and beyond. So I say we vote this down. I say we go with super majority. when convienient for Dept of Justice, those advice comes forth and when not to their benefit, we are required to meet those standards. It unequitable how we are treated.
DELEGATE LEONARD TSOSIE
if lok at Arbitration Act, nothing that says it wud be enforced in state court. Your memo is so brief that it’s not a brief. It doesn’t cite Sovereign Immunity Act and Arbitration Act. You also lok at sovereign immunity act, it says Navajo Nation can only be sued in Navajo court and nothing about state court or otherwise. That is premise and lok at Arbitration Act, can do according to all applicable laws. The Navajo courts are only ones with original and exclusive power to enforce. And we are waiving that. You may hid from us but it’s in our law. I don’t mind talking about 2/3 requirement but at least be honest with us and I read differently than attorney general. It says “original and exclusive” and nothing about state court. It says take to Navajo court. When says exclusive, it butts everyone else out except Navajo courts.
DELEGATE JONATHAN NEZ
I voted against at Naabi cuz of waiving of sovereign immunity and then this memo comes up. seems like held until question made. I think stepping back, Council unanimously supported development of NTEC to move forward and we got another resolution from NTEC and then started getting opposition. Many of us said we don’t want NTEC coming to Council every Council session and here we are again. I thot due diligence done. I thot attorneys there that knew wat going on and if someone breached commitment, their intent, then there shud be avenue for us to go after them. but yet here with another government bail out. I understand being self reliant and why supported resolution so administer own natural resources and transiton our energy dependency. so there was mention of sovereign immunity and that cleared up. I use to defend and say not separate Az and NM. Bond proposal was thot to be mostly Az and willing to help but equity. One of things like to amend, since everybody honkie dorie with Attorney General and NDOJ that it be put into legislation. There shud not be any problem: page 3, line 20, new C: state in new third line, this legislation only allows alternative…waived in Arbitration Act.
Seconded by Dwight Witherspoon
DELEGATE LEONARD TSOSIE
Tell Delegate Nez, we helped out on NGS so u still owe us one and u haven’t delivered. On this thing, again, this wud just make it to where overruling Arbitration Act and Sovereign Immunity Act cuz now inserting language which has effect of law and I wud not recommend. WE have clear wording and ask that Attorney General and whomever answer my question regarding “exclusive original jurisdiction” and then it is waiver. And concerned that former Council already waived on your behalf. It is bad presedent and bad thing to say. Wat do we need council for? each question to council is unique and analyze as such. we shudn’t advice council that your predessor made decision for you. Other thing is uniqueness of this is that we are arguing that NTEC no track record but BHP there until 2016 so take up then and NTEC have track record. So if one yr thing and BHP there until 2016, let’s take up then instead of waiving law based on less than half page memo. I support waiving only with 4/5 vote. Shudn’t play around with especially with such huge amount of money. This is rainbow that surrounds our land and we shudn’t waive just for company asking.
VOTE ON AMENDMENT #1 AT 4:11 PM
8 in favor, 9 opposed