Home Working with Section 106 Section 106 in Action Archive of Prominent Section 106 Cases New Mexico and Arizona: Development of Fence Lake Mine

Agency: Bureau of Land Management

Criteria for ACHP Involvement:

• The project will affect hundreds of archeological properties, as well as several traditional cultural properties of significance to the Zuni, Hopi, Acoma, and Navajo Tribes, including the Zuni Salt Lake Sanctuary Zone (Criterion 1).

• The Zuni Tribe requested ACHP’s involvement in resolving its concerns with the consultation process and the adequacy of identification efforts under an existing Programmatic Agreement (Criterion 4).

In August 2001, the Pueblo of Zuni Tribal Historic Preservation Officer contacted ACHP to request that the 1993 Programmatic Agreement (PA) for the proposed Fence Lake Project be amended. The Pueblo signed the 1993 agreement as a concurring party, but has since become concerned with its implementation and the adequacy of the PA to address the protection of archeological resources and properties of traditional cultural and religious significance.

At ACHP’s urging, the Bureau of Land Management (BLM), as lead Federal agency, proposed a September 2001 meeting of the parties to the PA to discuss the Pueblo’s concerns and consider mitigation measures for the effects of the project on the Zuni Salt Lake Sanctuary Zone traditional cultural property (TCP). Instead, Tribal Chairman Malcom Bowekaty asked to meet separately with BLM and ACHP to discuss the Pueblo’s concerns.

In November 2001, ACHP member Katherine Slick and ACHP staff member Carol Gleichman traveled to tribal headquarters to meet with Governor Bowekaty and the Tribal ACHP. At this meeting, ACHP agreed to support the Pueblo’s request for an amendment to the PA to clarify that the Pueblo’s participation in that agreement does not indicate its approval of the project. ACHP also indicated support for the Pueblo’s desire to have tribal elders visit sites before archeological data recovery is conducted, provided that could be done in a reasonable timeframe.

Later that month, BLM wrote to Governor Bowekaty offering to amend the PA to insert a statement of the Pueblo’s position on the project and its opposition to project impacts on human remains. The draft amendment is currently being reviewed by all of the signatories. BLM also proposed a meeting among consulting parties, to be held in February 2002. Meanwhile, the Pueblo of Zuni has requested ACHP support of its request to BLM to allow the Pueblo to conduct its own TCP evaluation of the mine’s disturbance areas. ACHP staff is currently drafting a response to this request.

Background

The Fence Lake Project is a proposed surface coal mine covering approximately 16,800 acres, and a 44-mile railroad corridor that will be used to transport coal to an existing generating station near St. Johns, Arizona. Between the mine and railroad corridor, approximately 8,432 acres of land will be disturbed. The Salt River Project Agricultural Improvement and Power District (SRP) has applied to BLM (Soccoro Area Office) and the Office of Surface Mining Reclamation and Enforcement (OSM) for approvals to construct and operate the mine and railroad corridor.

To develop a PA for the project, BLM, serving as lead agency for Section 106 review, consulted with OSM, SRP, ACHP, the State Historic Preservation Offices (SHPOs) of Arizona and New Mexico, the New Mexico Mining and Mineral Division, and the Zuni, Hopi, Acoma, and Navajo Tribes. The PA was executed in 1993, establishing procedures for the identification of historic properties and development of a comprehensive treatment plan and data recovery plans for historic properties affected by the project.

Archeological surveys and a TCP study were also completed in 1993. Hundreds of archeological sites were identified, as well as several TCPs. The Zuni Salt Lake was determined eligible for the National Register of Historic Places by BLM and New Mexico SHPO, and the Keeper of the National Register later extended the boundaries of this property to include a radius of approximately 10 miles around the lake, referred to as the Sanctuary Zone. This 182,000-acre TCP extends into the southwestern portion of the proposed mine. With the identification of this new sanctuary zone, BLM must develop a treatment plan for the mitigation of effects to TCPs.

This project has been highly controversial. Despite its concurrence in the PA in 1993, the Pueblo of Zuni has actively opposed the construction of the Fence Lake Mine because of concerns that the mining and transportation of coal in the vicinity of the Zuni Salt Lake will adversely impact the water table and water quality.

A final decision on approval of the mine’s plan of operation has been held up for several years by appeals filed by the Pueblo of Zuni and others. In response to some of the issues that have been raised, the Department of Interior has informed the Pueblo that it will defer a decision on the mine while the tribe and SRP engage in settlement negotiations. These discussions, which are private and confidential, may result in agreements regarding the treatment of historic properties.

Staff contact: Carol Gleichman

Updated May 6, 2003

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