Frontier Justice—in a Good Way The lawyer who took on Enron goes after companies that poisoned the Navajo Nation By Marilyn Berlin Snell
January/February 2008
HUNDREDS OF MILES FROM THE NAVAJO NATION, John Hueston sat reading his local newspaper, the Los Angeles Times, one December morning in 2006. Married to a Navajo woman he met while they were students at Dartmouth College in the 1970s, Hueston was drawn to an article titled "Blighted Homeland" about the toxic legacy left by uranium mining on the reservation. He'd known nothing about it before.
"It struck me that this was an incredible modern American tragedy that just wasn't getting addressed at all. It was shocking," says Hueston. "My first thought was that if this sort of radioactive disaster were present anywhere else in the country, the president would be there. There would have been a strong and consistent enforcement effort. Instead, there was an inexplicable and inexcusable lack of effort by the U.S. government to contain and remediate this disaster."
Hueston, 43, is a former federal prosecutor now in private practice. A formidable legal strategist, he has never lost a case or even a motion and shows up consistently on Forbes magazine's list of the nation's top 25 lawyers. As a lead prosecutor on the Enron Task Force, Hueston boned up on the intricacies of the energy business and grilled Enron founder Ken Lay for four days on the stand.
The veteran attorney isn't sure if he would have acted had he not had family connections, but his wife comes from Navajo Mountain, and she still has family there. Hueston faxed a letter to the Navajo Nation's attorney general, offering his services.
He's been hired to go after the polluters. "The first phase," Hueston says diplomatically, "is to approach companies to encourage them to remediate the sites to which they've been attached--and to do it voluntarily and at their own expense."
Working with lawyers from the Navajo Nation's department of justice, the team has had some early success. The Rare Metals Corporation and its successor, El Paso Natural Gas Company, operated a uranium processing mill near Tuba City, Arizona, the hometown of Teddy Nez (see "Power Hungry"), in the western region of the Navajo Nation between 1956 and '66. The facility halted operations after processing approximately 800,000 tons of uranium. All tailings from the mill were placed in unlined evaporation ponds that covered 33 acres at the site, and then, for 22 years, radioactive soil from these ponds was blown to the four directions. Rain drained through the tailings and contaminated the Navajo aquifer with uranium, nitrates, molybdenum, and selenium.
"In fairness to El Paso and many of the other companies, they cleaned up to the extent required by the regulations of the era," says Hueston, "but those standards were inadequate to protect the Navajos against radiation." He adds that under existing law these companies still have liability and so does Uncle Sam. Uranium mining largely benefited the government during the cold war, since it was the sole purchaser of the ore, says Hueston. Additionally, "the government has a trust obligation to make sure that Navajos aren't harmed by the mining that takes place on their reservation," he says.
Initial federal efforts at remediation of the Rare Metals site were complicated by the Navajo tribe, which sent cleanup crews packing after disagreements with federal agencies. But in 1988, the U.S. Department of Energy (DOE) returned to clean up the surface area on the site--though it declined to address the contamination created on "vicinity properties" by time and the elements. The department signed off on the project two years later. Groundwater contamination from the mine continues to be a problem.
After a series of meetings with Hueston and Navajo justice department lawyers in 2007, El Paso agreed to begin voluntary remediation. The company then turned around and sued the U.S. government to recoup the cleanup costs, noting in briefs that the Uranium Mill Tailings Radiation Control Act "requires a federal effort to provide for the stabilization, disposal, and control [of tailings], in a safe and environmentally sound manner." The Nuclear Regulatory Commission, which has a mandate to develop a safe nuclear industry, is named in the suit, as is the Department of Energy and the U.S. EPA.
According to Navajo Nation lawyer Dave Taylor, who's been working with Hueston, there has been an "awakening" on the part of the EPA as to the seriousness of the contamination on the reservation and the need to clean it up. "But DOE's not there and neither is the Nuclear Regulatory Commission," Taylor says.