Following Montana’s administrative laws and regulations, department staff did their job and rejected Arch Coal’s application in early April of this year, sending a 41-page deficiency notice to the company.

Mike Rowland, Arch Coal’s Montana Director speaking in Lame Deer, MT at a public hearing on the proposed Otter Creek coal mine.

Words and phrases used over and over again in the deficiency notice include: must be submitted, inadequate, misleading, mis-represented, contradictory, not acceptable, unacceptable, inconsistencies, missing CAD data, correct this information, incorrect, discrepancy, unclear, correct this statement, confusion, does not adequately address, resubmit, inappropriate, insufficient, error, improper, missing, DEQ does not agree and cannot be verified. I’m not taking these words out of context. Read it for yourself. These phrases and words were used consistently in the document referring to Arch Coal’s data or analysis of the data.

Arch Coal will argue that it is common for mining permit applications to be returned to the company for more details or for minor reworking of the document. This is true.

What isn’t common, in Montana at least, is for a mining company to change the language of the laws and administrative rules in their permit application to “lessen their commitment.”

Yeah, they did that.

Rewriting Montana laws

Now, either Arch Coal has people working for them that are not qualified to produce a permit application or they intentionally changed the language of the regulations to see if they could slip one by the state of Montana and lessen their responsibilities to the land, water, air and citizens. Arch is used to working in Wyoming so my hunch is it’s the latter of the two.

On page 24 of the deficiency notice, Department staff write,

It appears that in some instances, OCC (Otter Creek Coal Co.) recites the applicable rule verbatim, and in other instances, modifies or omits rule language.

Then again on page 24, DEQ states,

OCC has again added the qualifier, “where feasible” to the permit language in the following paragraph (17.24.631(3)(b). OCC’s version of ARM 17.24.631 is not acceptable and must be modified: there is no ‘where feasible’ provision in the rule.

And on the final page there is one last sentence from Environmental Quality staff,

DEQ has noted that OCC has changed the language of the rules throughout the application to lessen the commitment required by the rules. As a reminder, OCC will be held to the standards set forth in the ARM l7.24.XXXX first and foremost, before the commitments in the permit application.

Where Feasible?

I think it is important to take a moment and think about what they did. It is something that takes a level of arrogance that is almost unimaginable to the average person. But then again, when you are acting on behalf of a large corporation like Arch Coal — with its numerous subsidiary companies — and no individual has to actually take responsibility for the actions of said corporation, I guess any discomfort at breaking rules gets dispersed among enough people that it is no big deal.

Wouldn’t it be great if you could just follow laws “where feasible.” Oh, I’m sorry officer, I was speeding through a school zone because slowing down just didn’t seem feasible.

What else is mind-boggling is that the small article in the Montana newspapers about the deficiency notice stated that Montana regulators were just asking for more information about the mine. The article completely ignored that Arch Coal didn’t submit entire required sections of the permit and rewrote Montana’s administrative rules.

It is understandable that Arch Coal is in a hurry. Port proposals to export coal to Asia on the west coast are dropping like flies and they don’t have a domestic market for their coal. They are in a race against time, history and the citizens of southeastern Montana, and Arch Coal is losing.

Thank the Montana Department of Environmental Quality staff

If you have a moment go ahead and send a thank you to the staff at the DEQ who did such a great job reviewing Arch Coal’s permit application.

DEQCoal@mt.gov

Last week, during a three-day meeting in Lame Deer, Montana, hosted by the Surface Transportation Board (STB) concerning the proposed Tongue River Railroad, I came to the unsettling conclusion that the public process is broken. A system, ostensibly meant to gather the public’s input in order to make good policy decisions, ignores the most important questions: questions of right and wrong, of profit at the expense of people, of justice. Bring those questions up in a meeting and watch people squirm in their seats.

But those are the questions that define the fight over the proposed Tongue River coal train. It’s simple.

Consultation in Lame Deer

Rosebud Creek valley looking out from Deer Medicine Rocks. Photo by Alexis Bonogofsky

To say that southeastern Montana is rich in cultural and historic sites is an understatement. You can’t walk a foot without seeing a place recorded in the oral and written histories of dozens of Tribes. Representatives from the Northern Cheyenne, Oglala Lakota Sioux, Yankton Sioux, Rosebud Sioux, Crow Creek Sioux, Cheyenne River Sioux, Standing Rock, Spirit Lake and Crow were in attendance.Tribal Historic Preservation Officers asked many good questions of the STB, but let me summarize for you.

Q: Does it matter that almost 100% of the directly impacted citizens of southeastern Montana do not want the Tongue River Railroad built? Answer: We are just at the beginning of the process.

Q: Does it matter that digging up the coal will only benefit a few at the expense of the many? Answer: We are just at the beginning of the process.

Q: Does it matter that this coal will exacerbate climate change, destroy aquifers and cultural sites forever and degrade water and air quality? Answer: We are just at the beginning of the process.

Real answers to these questions will never be answered because the Surface Transportation Board, their third-party contractors and the coal companies are indifferent, at best, to the moral questions of the Tongue River Railroad. The methodology used to measure impacts and mitigation has no room for questions of right and wrong. That is irrelevant to the process.

What the Surface Transportation Board should be doing 

I think most citizens accept that our government is supposed to protect individuals from the unreasonable actions of others, especially those with more money, resources, and power. The government must level the playing field. This is to ensure that the interests of the powerful do not trample on the rights, property and lives of the citizens. The government must act as the neutral broker that regulates both the relationship between the individual and the corporation and most importantly, the application of power. It should not act as the agent of industry.

I know, kind of naïve right? But that is standard that our government should be held to, both elected and non-elected representatives, from Senators to Surface Transportation Board staff, and we should demand that they live up to their responsibilities.

Rancher Clint McRae addresses Tribal THPO officers about the important cultural and historic sites on his property during the STB Tongue River Railroad site tour. Photo by Beth Raboin.

What about the No-Action Alternative? (i.e. The “coal train to Asia” doesn’t get built option)

All of us who attended the meeting heard the staff of the Surface Transportation Board say numerous times, “the alternative that receives a permit.” Wait a minute, someone said, but there is an “alternative” that is the “No Action” alternative that the STB is required to analyze and consider…right? They quickly backtracked, “Oh yes, there is the no action alternative.” Huh, funny, cause you never really mention that alternative as being a viable option.

BNSF and Tongue River Railroad representatives did not disappoint. They, as usual, sat quiet in a corner of the room checking their phones occasionally but otherwise seemed completely uninterested in the proceedings, besides the short little, “we are excited to be working together” pep talk from BNSF’s Public Affairs guy that is.

They never tell the gathered community, landowners and THPO officers why we should support their coal train. Like Vanessa Braided Hair said in her essay, Why the Otter Creek Coal Mine Will Never be Built, they are confident in our government’s disinterest in questions of right or wrong and the ability of the process to deliver them a permit.

Amish farmers move hay during a recent wintery day in southeastern Montana. The Tongue River Railroad is slated to go directly between their barn and their house. Photo credit: Alexis Bonogofsky

The situation reminds me of a quote by the Cat in Alice in Wonderland, “In that direction,” the Cat said, waving its right paw round, “lives a Hatter: and in that direction,” waving the other paw, “lives the March Hare. Visit either you like: they’re both mad.”

The process doesn’t have a memory, but we do (i.e. The Tongue River Railroad Co. has been bad news for over 30 years)

There is no room in the Surface Transportation Board process for memory.  The tribal citizens and ranchers who have been fighting this coal train for over 30 years do remember though. They remember a lot. Just ask them.

Bison bone pile, dug up by a coal company paid archeologist, exposed to the elements for 1 year on the Crow Reservation – photo by Mike Scott

As Jeannie Alderson, a Tongue River rancher said at a recent public hearing,

“The coal companies always tell you what they are going to bring, but they never tell you what they will take away.”

Hundreds of generations of Native Americans have been protecting this land and this is the second generation of ranchers that are fighting this coal train. If I was a betting person, I know which side I’d put my money on.

Here’s something that the Surface Transportation Board staff should consider if they haven’t already. People in Montana have spent decades of their lives fighting this ill-conceived railroad. A railroad that was a bad idea when they first proposed it and is a bad idea now. They have sacrificed their health, time with their friends and family and experienced increased stress worrying that their livelihoods, history, culture and environment will be damaged irreversibly.

And yet, the STB is asking them to participate in another decade long process because Arch Coal’s stocks are in the tank and they need to look like they are expanding for their investors.  Tribes and landowners are being asked to participate in the same process that has never worked for them or treated them as equal to the railroad.

If you are opposed to the project entirely, it is interpreted as a refusal to participate in their process. To them, it is irrational and so they trivialize those who criticize the process or say no from outside the power structure.

If the public process worked, this proposal would have been dead and buried long ago.

The process asks the wrong questions of the wrong people (i.e. the people of southeastern Montana are the real experts)

We are told over and over that the process will lead to the best decision for everyone, the public and the coal companies. One big happy family. How sweet.

Conrad Fisher, Northern Cheyenne Tribe’s Tribal Historic Preservation Officer testifies at the Otter Creek coal mine scoping hearings last winter. Photo credit: Alexis Bonogofsky

I will be the first to admit that the Surface Transportation Board staff and the experts they have hired know some things. In fact, they know a lot and they also seem like very nice people. People who, on some level, probably know that what is happening is wrong. But their personal views on this matter are irrelevant to what they are paid to produce.

How the experts report what they develop for the EIS will use neither common sense nor the experiences of the people who have lived in the valleys their whole life and whose ancestors lived there as well. A non-rancher doesn’t understand why and how cattle are moved. A non-Cheyenne doesn’t understand why the Greenleaf area is important.

We are told through the process that the experts know best. Without anyone actually saying so, the citizen is eliminated as a participant.  We are there to be managed, to be dealt with, another problem that needs to be solved, possibly consulted, but ultimately ignored.

The questions that we need to answer (i.e. Is this right?) 

They refuse to ask the question, is it right, is it moral, is it ethical for a private corporation to seize Montanan’s private property, destroy sacred cultural sites of the tribal nations, exacerbate climate change, damage important water resources for wildlife, crop production and livestock, wildlife habitat and air quality?

Not only do they refuse to ask the question, they refuse to admit the question is worth asking. The public process doesn’t allow for moral balance, experiential knowledge, common sense, memory or a social view of the world. Instead, we watch as these important human values wither away.

What is encouraged to flourish is competitiveness, amorality and an extreme aggressiveness when questioned or criticized.  Above all, what is encouraged is a growth of an undisciplined corporate self-interest.

What Voice Do We Have? 

The people of southeastern Montana, those most directly impacted, say no. No, we don’t want the Tongue River Railroad, the Otter Creek coal mine or your process.

Surface Transportation Board staff tell us it isn’t your decision; that we need to trust the process. A process without memory or morality.

The people ask, whose decision is it? They tell us, it is the decision of three unelected political appointees in Washington D.C. who have never been to the Tongue River Valley. They have never ranched. They have never felt the way the land in southeastern Montana digs in to your soul. They have never experienced the epic beauty of the Tongue River and Otter Creek Valleys.

But, they tell us, don’t worry. We’ll relay your concerns to them and they will be reflected in a 2,000 page Environmental Impact Statement.

That makes all of us out here sleep better at night.

For more background on the Tongue River railroad, please see my series on the Tongue River railroad public hearings at blog.nwf.org/bonogofsky.

Northern Cheyenne tribal members gather to oppose the proposed Otter Creek coal mine on January 17, 2013

Arch Coal understands money. What Arch Coal doesn’t understand is community. They don’t understand history. They don’t understand the Cheyenne people whose ancestors fought and died for the landthat they are proposing to destroy. They don’t understand the fierceness with which the people, both Indian and non-Indian, in southeastern Montana love the land.

This is why not one dragline will rip the coal from the earth and not one dynamite blast will loosen the precious topsoil. It is why not one rail car will be loaded with coal and why not one toxic orange cloud will pass over someone’s house or the Tongue River. It is why not one burial site will be dug up and why not one elk will be displaced. It is why our water will continue to run clean and plentiful and our wildlife will continue to roam free.

This is why the proposed Otter Creek mine in southeastern Montana will never be built.

How Arch Coal treats the Northern Cheyenne community

I, along with hundreds of Northern Cheyenne tribal members, have attended all of the recent public hearings that were held on the proposed Otter Creek coal mine and Tongue River Railroad. These hearings were held to gather public input on the proposed coal mine and associated infrastructure that is needed to haul the coal out of southeastern Montana and to the West coast for export to Asia.

Standard procedure for Arch Coal representatives was to sit in the back of the room, checking their phones and looking at their watches. Many times, they would walk out in the middle of someone’s testimony. Mike Rowlands, head of Arch Coal in Montana, spoke to us for one minute.

Click here to view the embedded video.

One minute about a coal mine that will impact my people for generations. This is all he thought we deserved apparently.

Not once did they stand up and tell my community why we should support their efforts to build a massive coal mine on our borders. Not once did they tell us why we should bear the burden of the air, water and environmental pollution that will occur.

You know why they don’t do that? Because they don’t have to. To them, this mine is a done deal. The permit is a detail, a step in the process. A process rigged for one outcome. They don’t care if the Northern Cheyenne community supports them.

Well, I guess they did say they were just here to open a coal mine.

Fighting Back

By now, we have given Arch Coal and the state of Montana thousands of reasons why we are against this mine. Those thousands of reasons are people, individuals and families who are coming to public hearings, group meetings, signing petitions and getting involved.

In November 2012, Cheyenne tribal members turned out in force at public hearings to oppose the Tongue River Railroad. In December 2012, we attended coal export public hearings in Spokane and Seattle to oppose the development of any coal export terminals in the northwest and support our brothers and sisters from the northwest tribal nations who are fighting to protect their land and treaty rights.

Lucas King, Northern Cheyenne tribal member, testifies at the Seattle coal port hearing in December 2012. Photo by Paul K. Anderson.

Northern Cheyenne tribal members attend a public hearing on the proposed Otter Creek coal mine

On February 20, 2013, we submitted detailed scoping comments to the Montana Department of Environmental Quality on the proposed mine. Over 250 Cheyennes helped write and develop these comments.

On March 20, 250 Cheyennes and our allies from the Southern Cheyenne, Three Affiliated Tribes, Oglala Lakota Nation, Yakama Nation gathered in Lame Deer to oppose any development of the Otter Creek and Tongue River Valley.  This will not be a one-time event.

Then, on March 24 through the 30, a group of us travelled to Henry Red Cloud’s Renewable Energy Center on Pine Ridge Reservation in South Dakota to learn how to install solar photovoltaic systems.

Cheyenne students learn how to install solar PV at Henry Red Cloud’s Renewable Energy Center. Photo credit: Alexis Bonogofsky

We have been fighting for this land for hundreds of years and will continue to do so.

Protecting Otter Creek and Tongue River Valleys for Future Generations

Montana politicians who support the Otter Creek mine and Arch Coal are on the wrong side of history and the wrong side of the people. Since Montana’s leaders will not stand up for the people, the people will stand up and lead them. Politicians like Senators Max Baucus and Jon Tester understand the importance of protecting the North Fork of the Flathead River from coal mining but not the lifeblood of southeastern Montana, the Tongue River. Why is protecting the Flathead River more important than the Tongue River?

We will not let it become a sacrifice zone for energy exports. We have already moved beyond the paradigms forced on us by the coal companies.

This message is for Arch Coal and all other mining companies that want to dig up our homeland.

We will not only stop the Otter Creek coal mine, we will pursue renewable, distributed energy and find real, sustainable solutions for our people.

Save Otter Creek sign on Highway 212 on the Northern Cheyenne Reservation

Vanessa Braided Hair is a Northern Cheyenne tribal member and is organizing tribal citizens to oppose the development of the proposed Otter Creek coal mine and Tongue River Railroads in southeastern Montana. She is a also a wildlands firefighter and descendent of the Northern Cheyenne Otter Creek homesteaders. She lives on Northern Cheyenne Reservation in southeastern Montana.

From left: Vanessa Braided Hair, Waylon Roger and Paulee Small. NWF photo by Alexis Bonogofsky.

Cheyenne’s Speak Out

Otter Creek rally in Lame Deer, Montana. (r) Tom Mexican Cheyenne (c) Otto Braided Hair (l) Martin Braided Hair Photo credit: Alexis Bonogofsky

“We believe our community will bear the brunt of the negative impacts from the Otter Creek mine. Sacrificing the land, water, animal and plant life for mining and money is not worth what our ancestors fought and gave their life. Our group is worried about the crime, accidents, drugs and other social issues that come along with boomtowns that our Tribe is not equipped to handle. We are being asked to deal with this so that a transnational corporation can make billions of dollars shipping coal to Asia,” said Tom Mexican Cheyenne.

The proposed mine’s proximity to the border of the reservation is of particular concern to Northern Cheyenne tribal members. Otter Creek Valley, used for thousands of years by tribal peoples, contains cultural, historic and burial sites important to the Cheyenne people and many other Plains Tribes and serves as important habitat for hundreds of wildlife species.

“To preserve language culture and identity you must protect air, land, and water, that’s who we are.  Without language and land we are not who we say we are,” said Phillip Whiteman Jr., Northern Cheyenne Sweet Medicine Chief.

People have watched as North Dakota reservations have experienced dramatic increases in crime, traffic accidents and cultural conflict from nearby oil development. When coupled with environmental impacts of air pollution, water pollution and decreased wildlife populations, many tribal members now are opposing the development of the mine.

Tribal Renewable Energy Alternatives

Henry Red Cloud with Northern Cheyenne tribal members Jeff King and Kale Means at a solar photovoltaic training last month. Photo credit: Mark Andrew Boyer Photography

A couple of the trainees will then go on to work in Colorado on a large scale solar installation this summer with the goal of starting their own renewable energy business on the Northern Cheyenne Reservation.

“We want a different future for our children. Coal is a dead end for us,” said Vanessa Braided Hair, Northern Cheyenne wildlands firefighter and community organizer. “We will fight this till the end.”

To put these hearings in perspective for those of you who don’t live in eastern Montana, they are being held in very small and rural communities and the economy is primarily based on family-owned farms and ranches and wildlife-based recreation, mostly hunting.

When 75 people turn out to a public hearing on a cold Montana night in a small town, that’s a big deal.

What was the consensus in Ashland last night?

Ashland is the community that is closest to the proposed Otter Creek coal mine and would also bear the extra burden of the proposed Tongue River Railroad. This community has the most to lose from the industrialization of this quite and pristine valley.

Well, if last night was any indication, the residents in Ashland don’t want the railroad running through their community. In the packed auditorium, over 20 citizens spoke against the railroad and not ONE person stood up to support it. After every speaker, the auditorium erupted in applause.

A “Travesty”

Walter Archer, chair of the Northern Plains Resource Council, kicked the night off with the first public comment calling the whole situation a travesty. Right on his heals came Henry Coffin, a local rancher.  He read the part of the Montana Constitution that says Montanan’s have a right to a “clean and healthful environment” and also a “right to defend our property.” He told them to leave the Tongue River “dead alone”. Kenneth Medicine Bull, a tribal member called it an “American tragedy.”

You can imagine where the night went from there.

This is an environmental justice issue

Golder Ranch – Photo take by Alexis Bonogofsky

He said that ultimately what the Tongue River Railroad proposal boiled down to was an environmental justice issue, for both the Northern Cheyenne Tribe and the local farmers and ranchers.

As Brad pointed out, and what most American’s don’t know, he is part of the 1% of the population in the United States that produces food for the rest of the 99%. One farmer called the Tongue River Valley, the “San Joaquin of the Plains,” with amazingly long growing season and plentiful and clean water from the Tongue. In addition, the tribal communities in southeastern Montana have some of the highest poverty rates in the nation. These two groups of people will have to deal with immense impacts of this mine and rail line.

The truth comes out

These proposals have nothing to do with national energy security or economic development. This isn’t about jobs for the poor, helping Montana’s tax base or helping local schools.

This is about money. But not money for Montanans, the Northern Cheyenne or local farmers and ranchers. And the last time I checked, mule deer and elk don’t know the first thing about using money to buy food. They rely on the plentiful forage in the Tongue River Valley.

A couple of things are important to know about the Tongue River Railroad and the Otter Creek mine:

1. The companies that are proposing the Tongue River Railroad and the Otter Creek Coal Mine are owned by some of the richest men in America.  A handful of  people will become very rich off Montana’s natural resources while;

Phillip Whiteman and Lynette Two Bulls speak at an environmental justice meeting in Lame Deer earlier this year

2. The 1% of the population who grow and raise food for the rest of the population and Native Americans will bear the brunt of the water, air, social and environmental impacts from the TRR and Otter Creek coal mine.

It’s pretty simple.  A BLM study conducted during a statewide oil and gas environmental impact statement showed that historically, energy development that occurred off the reservation, although was promised to bring the Cheyenne people out of poverty, actually worsened economic conditions on the Reservation.

Closing statement

At the end of the evening, a man who came with his wife stood up and walked slowly to the front of the auditorium. He hadn’t planned on speaking and obviously just finished doing chores for the evening. His jeans were tucked into his mud boots, dirt smeared on his sweatshirt and his voice shaking slightly from nervousness.

He stood up and looked at the government bureaucrats sitting at the table in the front of the room, white lights beating down on their face and said,

“What voice do we have?”

Indeed.

What you can do to help:

Submit Comments

You can send your comments to: Ken Blodgett, Surface Transportation Board, 395 E Street, SW, Washington, D.C. 20423-0001, Environmental filing, Docket No. FD 30186. The STB also provides an online comment form.

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If you need help submitting comments or want more information about the Tongue River Railroad and its impacts on wildlife, please contact me at bonogofsky@nwf.org. Stay tuned for updates about the public scoping hearings and more about the Tongue River Railroad in Part II and III.