[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                     H.R. 3301, SOUTHEAST ARIZONA
                           LAND EXCHANGE AND
                       CONSERVATION ACT OF 2007

=======================================================================


                          LEGISLATIVE HEARING

                               before the

                SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
                            AND PUBLIC LANDS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                       Thursday, November 1, 2007

                               __________

                           Serial No. 110-52

                               __________

       Printed for the use of the Committee on Natural Resources



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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                

        SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS

                  RAUL M. GRIJALVA, Arizona, Chairman
              ROB BISHOP, Utah, Ranking Republican Member

 Dale E. Kildee, Michigan            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Chris Cannon, Utah
Donna M. Christensen, Virgin         Thomas G. Tancredo, Colorado
    Islands                          Jeff Flake, Arizona
Rush D. Holt, New Jersey             Stevan Pearce, New Mexico
Dan Boren, Oklahoma                  Henry E. Brown, Jr., South 
John P. Sarbanes, Maryland               Carolina
Peter A. DeFazio, Oregon             Louie Gohmert, Texas
Maurice D. Hinchey, New York         Tom Cole, Oklahoma
Ron Kind, Wisconsin                  Dean Heller, Nevada
Lois Capps, California               Bill Sali, Idaho
Jay Inslee, Washington               Doug Lamborn, Colorado
Mark Udall, Colorado                 Don Young, Alaska, ex officio
Stephanie Herseth Sandlin, South     Vacancy
    Dakota                           Don Young, Alaska, ex officio
Heath Shuler, North Carolina
Nick J. Rahall, II, West Virginia, 
    ex officio
                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Thursday, November 1, 2007.......................     1

Statement of Members:
    Flake, Hon. Jeff, a Representative in Congress from the State 
      of Arizona.................................................     3
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Bahr, Sandy, Sierra Club, Grand Canyon (Arizona) Chapter.....    30
        Prepared statement of....................................    32
    Bear, Raphael R., President, Fort McDowell Yavapai Nation....    12
        Prepared statement of....................................    13
    Holtrop, Joel, Deputy Chief, National Forest System, U.S. 
      Department of Agriculture..................................     3
        Prepared statement of....................................     5
    Johnson, Luke, Deputy Director, Bureau of Land Management, 
      U.S. Department of the Interior............................     6
        Prepared statement of....................................     7
    Nosie, Wendsler, Sr., Chairman, San Carlos Apache Tribe......    16
        Prepared statement of....................................    18
    Rickus, John, President, Resolution Copper Mining, LLC.......    26
        Prepared statement of....................................    27


LEGISLATIVE HEARING ON H.R. 3301, TO AUTHORIZE AND DIRECT THE EXCHANGE 
   AND CONVEYANCE OF CERTAIN NATIONAL FOREST LAND AND OTHER LAND IN 
 SOUTHEAST ARIZONA. (SOUTHEAST ARIZONA LAND EXCHANGE AND CONSERVATION 
                              ACT OF 2007)

                              ----------                              


                       Thursday, November 1, 2007

                     U.S. House of Representatives

        Subcommittee on National Parks, Forests and Public Lands

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:02 a.m. in 
Room 1324, Longworth House Office Building, Hon. Raul M. 
Grijalva, [Chairman of the Subcommittee] presiding.
    Present: Representatives Grijalva, Bishop, Christensen, 
Flake and Lamborn.

 STATEMENT OF THE HONORABLE RAUL M. GRIJALVA, A REPRESENTATIVE 
             IN CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you. Let me call the Subcommittee 
meeting to order, a legislative hearing on H.R. 3301, Southeast 
Arizona Land Exchange and Conservation Act of 2007. I will 
begin the meeting as we wait for our colleague, the Ranking 
Member, Mr. Bishop, who will be here shortly. At that point, if 
he has an opening statement, he will do that at that time.
    In calling the Subcommittee to order today, we will be 
receiving testimony on H.R. 3301 introduced by my good friend 
and colleague, Mr. Ed Pastor. It authorizes and directs a land 
exchange and conveyance of certain national forest lands and 
other lands in southeast Arizona. At its heart, H.R. 3301 seeks 
to convey the 3,000 Oak Flat parcel, which is currently managed 
by the Forest Service.
    Much of the Oak Flat parcel is currently operated as a 
Forest Service campground and is also popular for rock 
climbing, acorn gathering by Native American tribes. Beneath 
the Oak Flat parcel is what many have categorized as one of the 
largest existing copper deposits in North America.
    Resolution Copper Company is seeking to facilitate a land 
exchange in order to acquire the Oak Flat parcel for mining 
purposes. The Oak Flat parcel lies adjacent to Resolution 
Copper Company's existing private land and the site of the 
former Magma Mine. Resolution Copper would then convey to the 
Forest Service and the Bureau of Land Management a variety of 
different properties in southern Arizona.
    Land exchanges and conveyances can often be burdensome on 
the public interest. Because of its complicated nature, I think 
the measure before us today merits very careful consideration. 
I would suggest that even the parcels that the Federal 
Government would acquire under H.R. 3301, the overall benefit 
to the public interest is still in question.
    Many have suggested that Resolution Copper should pay a 
royalty on the proceeds from mining on Federal lands that they 
would acquire, and I tend to concur. I look forward to hearing 
the thoughts of each of our witnesses on the topic of the 
benefits to the public interest of this measure and this 
legislation.
    I am pleased today that we are joined by Chairman Nosie of 
the San Carlos Apache, President Bear of the Fort McDowell 
Yavapai Nation. Located on the Forest Service land in question 
is the Apache Leap, an area of significant cultural and 
historic value to these tribes.
    Furthermore, the Oak Flat parcel is an area of cultural 
significance for acorn gathering. These areas are very 
important to both tribes, and I am pleased that their 
leadership is here today to share those concerns and their 
thoughts. I also want to echo the concerns raised by Arizona 
Governor Napolitano about the tribes' need to be engaged in 
discussions regarding the mine and land exchange.
    These lands hold significant cultural value to the tribes, 
and there needs to be outreach to them before the legislation 
moves forward. I would also like to thank all of our witnesses 
for being with us today. We look forward to receiving your 
testimony. As I said, when Ranking Member Bishop arrives, if he 
has an opening statement we will hear it at that point.
    With that, let me call the first panel forward, please. 
There will be, as we know, a five-minute limit on the oral 
presentations. Excuse me. Before we do the introduction of our 
witnesses, let me turn to my colleague from Arizona, Mr. Flake, 
for any opening statement he might have regarding the 
legislation.
    [The prepared statement of Mr. Grijalva follows:]

          Statement of The Honorable Raul Grijalva, Chairman, 
        Subcommittee on National Parks, Forests and Public Lands

    The Subcommittee will come to order. Today we will be receiving 
testimony on H.R. 3301, the Southeast Arizona Land Exchange and 
Conservation Act. H.R. 3301, introduced by my good friend and 
colleague, Representative Ed Pastor, authorizes and directs a land 
exchange and conveyance of certain National Forest land and other lands 
in southeast Arizona.
    At its heart, H.R. 3301 seeks to convey the 3,025 Oak Flat parcel, 
which is currently managed by the Forest Service. Much of the Oak Flat 
parcel is currently operated as a Forest Service campground, and is 
also a popular site for rock-climbing and acorn gathering by Indian 
tribes. Beneath the Oak Flat parcel is what many have characterized as 
one of the largest existing copper deposits in North America.
    Resolution Copper Company is seeking to facilitate a land exchange 
in order to acquire the Oak Flat parcel for mining purposes. The Oak 
Flat parcel lies adjacent to Resolution Copper Company's existing 
private land and the site of the former Magma Mine. Resolution Copper 
would then convey to the Forest Service and the Bureau of Land 
Management a variety of different properties in southern Arizona.
    Land exchanges and conveyances can often be burdensome on the 
public interest. Because of its complicated nature, I think the measure 
before us today merits some careful consideration. I would suggest that 
even with the parcels that the Federal Government would acquire under 
H.R. 3301, the overall benefit to the public interest is in question. 
Many have suggested that Resolution Copper should pay a royalty on the 
proceeds from mining on the Federal lands they would acquire and I tend 
to concur. I look forward to hearing the thoughts of each of our 
witnesses on the topic of the benefits to the public interest of this 
measure.
    I am pleased that we are joined today by Chairman Wendsler Nosie of 
the San Carlos Apache and Mr. Raphael Baer of the Ft. McDowell Yavapai 
Nation. Located on the Forest Service land in question is the Apache 
Leap, an area of significant cultural and historical value to these 
tribes. Furthermore, the Oak Flat parcel is an area of cultural 
significance for acorn gathering. These areas are very important to 
both tribes and I am pleased they have joined us today to share their 
concerns.
    I echo concerns raised by Arizona Governor Napolitano about the 
tribes needing to be engaged in discussions regarding the mine and land 
exchange. These lands hold significant cultural value to the tribes and 
there needs to be outreach to them before this bill moves forward.
    Again, I would like to thank all of our witnesses for being with us 
today. We look forward to receiving your testimony.
    I would now like to recognize Ranking Member Bishop for any opening 
statement he may have.
                                 ______
                                 

  STATEMENT OF THE HONORABLE JEFF FLAKE, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Flake. I thank the Chairman. I will be very brief. I 
just want to say I appreciate those who have traveled a long 
way to get here, particularly those from Arizona, and commend 
those who have been involved in this process and this 
legislation. This is very important for the State of Arizona I 
think for the mining industry and appreciate those of 
Resolution Copper for the work that they have done to make sure 
that those locally are informed about what is going on here and 
involved in the process.
    So I look forward to this hearing and this process moving 
forward. I thank the Chairman.
    Mr. Grijalva. Thank you, Mr. Flake. Let me call on the 
witnesses a five-minute rule in terms of the oral presentation, 
and your statements will be entered into the record entirely. 
Any extraneous material that any of the witnesses might have 
will also be entered into the record in its entirety.
    With that, let me turn to Mr. Joel Holtrop, Deputy Chief, 
National Forest Service. Welcome, again, sir.

           STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF, 
          NATIONAL FOREST SYSTEM, USDA FOREST SERVICE

    Mr. Holtrop. Thank you, Mr. Chairman and members of the 
Subcommittee for the opportunity to provide the Department of 
Agriculture's view on H.R. 3301, the Southeast Arizona Land 
Exchange and Conservation Act of 2007. My remarks are limited 
to those provisions of the bill directly related to National 
Forest System lands and will defer to the Department of the 
Interior on provisions relating to the lands managed by the 
Bureau of Land Management.
    The Department believes that the acquisition of the 
nonFederal parcels to be managed in the National Forest System 
would provide protection for riparian habitat and water rights, 
archeological sites, two miles along a permanently flowing 
trout stream, a year round pond and an endangered cactus 
species.
    The Department appreciates that several changes have been 
made to this proposal in response to previous testimony to 
address various concerns, and in this context the Department 
supports the exchange as well as the valuation provisions and 
believes it is in the public interest, although some concerns 
remain regarding the overall bill.
    H.R. 3301 is a complex land exchange bill that directs the 
Secretary of Agriculture to convey to Resolution Copper certain 
lands and interests in the Tonto National Forest in Arizona in 
exchange for private lands and funds to acquire additional 
lands in the State of Arizona for management by the Forest 
Service and the Bureau of Land Management.
    It also directs the Secretary of Agriculture to convey to 
the Town of Superior a cemetery, some 181 acres adjacent to the 
Superior Airport and Federal reversionary interest in the 
airport site already owned by the town. It is our understanding 
that upon completion of the land exchange Resolution Copper 
would explore the possibility of developing a very deep copper 
mine beneath the Oak Flat parcel.
    Section 4[d] of the bill requires that the exchange 
contemplated by H.R. 3301 will be completed within one year. We 
believe that this is insufficient time to complete all the 
necessary work for the exchange including the development and 
review of a mineral report, completion of appraisals and 
surveys, verification of title documents and the many 
environmental clearances, reviews and the consultation with 
Indian tribes required under various laws, regulations and 
policy as outlined in Section 4[e].
    The bill directs the Secretary to design and construct a 
campground including access routes on the Globe Ranger District 
of the Tonto National Forest within two years to replace the 
Oak Flat Campground. Preliminary indications are that it will 
be difficult to find a suitable replacement site within the 
Globe Ranger District.
    We are also concerned that the $500,000 Resolution Copper 
is directed to pay for the replacement campground is 
insufficient in that the two year timeframe will be difficult 
to meet. We request that this requirement be made 
discretionary, that the legislation reflect the total cost of 
the campground replacement to protect the taxpayers' interest 
and that the two year deadline be dropped.
    Section 8[a][3] requires the Secretary to continue to 
operate the Oak Flat Campground for two years or until a 
replacement campground is constructed. The Department objects 
to the requirement that it operate a campground located on 
private lands as well as the waiver of liability for Resolution 
Copper. We recommend that this section be amended to reflect 
that the campground will only be operated by the Secretary 
until the land is transferred.
    Section 8[c][3] identifies areas to be closed to public use 
upon enactment of the Act. We recommend that area closures be 
negotiated based on the needs expressed in mining plans of 
operation during the period between bill enactment and 
consummation of the exchange, should it occur.
    Finally, we would like to work with the Subcommittee and 
bill sponsors on several technical changes to the bill. For 
example, it should be clarified that the Secretary will convey 
by quit claim deeds and that title to lands received by the 
government must meet attorney general's title standards.
    This concludes my statement, and I would be happy to answer 
any questions you may have.
    Mr. Grijalva. Thank you, sir.
    Let me turn to Mr. Luke Johnson, Deputy Director, Bureau of 
Land Management. Welcome back. You would probably be happier 
back here preparing questions than answering them, but 
nevertheless, welcome.
    [The prepared statement of Mr. Holtrop follows:]

   Statement of Joel Holtrop, Deputy Chief, National Forest System, 
                     U.S. Department of Agriculture

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to appear before you today to provide the Department of 
Agriculture's view on H.R. 3301, the ``Southeast Arizona Land Exchange 
and Conservation Act of 2007.''
    I will limit my remarks to the provisions of the bill directly 
related to National Forest System lands and will defer to the 
Department of the Interior on provisions relating to the lands managed 
by the Bureau of Land Management.
    H.R. 3301 is a complex land exchange bill that directs the 
Secretary of Agriculture to convey to Resolution Copper Mining, LLC 
(Resolution Copper) certain lands and interests in the Tonto National 
Forest, Arizona, in exchange for private lands and funds to acquire 
additional lands in the State of Arizona for management by the Forest 
Service and the Bureau of Land Management (BLM).
    The Department believes that the acquisition of the non-federal 
parcels to be managed in the National Forest System (NFS) would provide 
protection for riparian habitat and water rights, archeological sites, 
two miles along a permanently flowing trout stream, a year round pond 
and an endangered cactus species. The Department appreciates that 
several changes have been made to this proposal in response to previous 
testimony to address various concerns. In this context, the Department 
supports the exchange as well as the valuation provisions, and believes 
it is in the public interest, although some concerns remain regarding 
the overall bill.
    The bill directs the exchange of a 3,025-acre area referred to as 
the ``Oak Flat'' parcel from the United States for five parcels of land 
owned by Resolution Copper: the 147-acre Turkey Creek parcel in Gila 
County; the 148-acre Tangle Creek parcel in Yavapai County; the 149.3-
acre Cave Creek parcel in Maricopa County; the-266 acre JI Ranch parcel 
in Pinal County (all located within the Tonto National Forest); and the 
640-acre East Clear Creek parcel in Coconino County located within the 
Coconino National Forest. The bill requires that, in addition to the 
above exchange lands, Resolution Copper shall pay $7,500,000 into a 
special Treasury account for acquisition of additional lands in 
specified areas within the State of Arizona.
    The bill requires a 695-acre conservation easement for the Apache 
Leap escarpment on lands to be conveyed from the United States to 
Resolution Copper. This conservation easement would provide permanent 
protection for the parcel from surface disturbance and ensure future 
public access and use.
    H.R. 3301 also directs the Secretary of Agriculture to convey to 
the Town of Superior, upon receipt of a request, the 30-acre town 
cemetery, approximately 181 acres adjacent to the Superior airport, and 
Federal reversionary interest in the 265-acre airport site already 
owned by the Town.
    It is our understanding that upon completion of the land exchange, 
Resolution Copper would explore the possibility of developing a very 
deep copper mine beneath the Oak Flat parcel.
    Section 4(d) of the bill requires that the exchange contemplated by 
H.R. 3301, will be completed within one year. The Department believes 
that this is insufficient time to complete all the necessary work to 
complete the exchange, including the development and review of a 
mineral report, completion of appraisals and surveys, verification of 
title documents, and the many environmental clearances, reviews, and 
the consultation with Indian Tribes required under various laws, 
regulations, and policy, as outlined in Section 4(e).
    Section 8(a) directs the Secretary to design and construct a 
campground, including access routes, on the Globe Ranger District of 
the Tonto National Forest within two years to replace the Oak Flat 
campground. Preliminary indications are that it will be difficult to 
find a suitable replacement site within the Globe Ranger District. We 
are also concerned that the $500,000 Resolution Copper is directed to 
pay for the replacement campground is insufficient and that the two-
year time frame will be difficult to meet. We request that this 
requirement be made discretionary, that the legislation reflect the 
total cost of campground replacement to protect the taxpayer's 
interest, and that the two-year deadline be dropped.
    Section 8(a)(3) requires the Secretary to continue to operate the 
Oak Flat Campground for two years or until a replacement campground is 
constructed. The Department objects to the requirement that it operate 
a campground located on private lands, as well as the waiver of 
liability for Resolution Copper. We recommend that this section be 
amended to reflect that the campground will only be operated by the 
Secretary until the land is transferred.
    Section 8(c)(3) identifies areas to be closed to public use upon 
enactment of the Act. We recommend that area closures be negotiated 
based on the needs expressed in mining plans of operations during the 
period between bill enactment and consummation of the exchange, should 
it occur.
    Finally, we would like to work with the Subcommittee and bill 
sponsors on several technical changes to the bill. For example, it 
should be clarified that the Secretary will convey by quitclaim deeds, 
and that title to lands received by the government must meet Attorney 
General's title standards. We would also like to ensure the maps 
described in the bill are referenced and dated properly.
    This concludes my statement and I would be happy to answer any 
questions you may have.
                                 ______
                                 

          STATEMENT OF LUKE JOHNSON, DEPUTY DIRECTOR, 
                   BUREAU OF LAND MANAGEMENT

    Mr. Johnson. Thank you very much. Mr. Chairman and members 
of the Subcommittee, I thank you for the opportunity to testify 
on H.R. 3301, the Southeast Arizona Land Exchange and 
Conservation Act. I would like to summarize my remarks and 
request the full statement be submitted for the record.
    H.R. 3301 provides for the exchange of a 3,025 acre parcel 
of Forest Service managed land in exchange for a number of 
private parcels and a cash payment to the Forest Service fund. 
In general, we defer to the Forest Service on those issues 
directly related to Forest Service lands.
    We support the principal goals of H.R. 3301 and commend the 
sponsors for the changes that have been made to the legislation 
since last Congress in response to concerns that were raised. 
We would like the opportunity to continue to work with the 
sponsor and the committee on a number of additional 
modifications to the legislation.
    It is our understanding the intent of the legislation is to 
facilitate an exchange with Resolution Copper Mine and Company 
who has indicated its intention to explore the possibility of a 
very deep copper mine near Superior, Arizona, and wishes to 
acquire the Forest Service parcel overlying the copper deposit 
as well as the subsurface rights.
    The legislation provides for the exchange of a number of 
parcels of private land to the Federal Government. Two of the 
private parcels are identified for transfer to the Secretary of 
the Interior. The first is a 3,073 acre Lower San Pedro parcel 
east of the Town of Mammoth, Arizona, and straddles the San 
Pedro River.
    The acquisition of these lands would enhance a key 
migratory bird habitat along the San Pedro River, and we would 
welcome them into BLM management. We do, however, have some 
management concerns surrounding the counsel we would appreciate 
the opportunity to resolve. The second is the Dripping Springs 
parcel which presents a number of problems outlined in detail 
in our testimony that we would like to resolve before the bill 
moves forward.
    We note the BLM does not currently have the resources or 
staff to manage a rock climbing area to replace the existing 
one on Forest Service lands that is expected to be displaced as 
a result of the exchange. Other issues requiring clarification 
include timing of the exchange, appraisal related provisions 
and the equalization of values as well as some more technical 
issues.
    Thank you for the opportunity to testify, and I would be 
happy to answer any questions you might have.
    [The prepared statement of Mr. Johnson follows:]

Statement of Luke Johnson, Deputy Director, Bureau of Land Management, 
                    U.S. Department of the Interior

    Thank you for the opportunity to testify on H.R. 3301, the 
Southeast Arizona Land Exchange and Conservation Act. The legislation 
provides for the exchange of a 3,025-acre parcel of Forest Service-
managed land in exchange for a number of private parcels and a cash 
payment to a special Forest Service fund. Two of the private parcels 
are identified for transfer to the Secretary of the Interior. In 
general, we defer to the United States Forest Service on those issues 
directly related to Forest Service lands. We support the principal 
goals of H.R. 3301, and we appreciate that a number of changes have 
been made to the legislation since last Congress in response to 
concerns we raised. However, we would like the opportunity to continue 
to work with the sponsor and the Committee on a number of additional 
modifications to the legislation.
    It is our understanding that the intent of the legislation is to 
facilitate an exchange of land with Resolution Copper Mining. 
Resolution Copper has indicated its intention to explore the 
possibility of a very deep copper mine near Superior, Arizona, and 
wishes to acquire the 3,025-acre Forest Service parcel overlying the 
copper deposit as well as the subsurface rights.
    The legislation provides for the exchange of a number of parcels of 
private land to the Federal government. We note that while the bill 
states that two of these parcels are to be conveyed to the Secretary of 
the Interior, it is our understanding that the intention of the 
sponsors is for the parcels to be under Bureau of Land Management (BLM) 
management. The parcels identified are:
      3,073 acres along the Lower San Pedro River near Mammoth, 
Arizona;
      160 acres within the Dripping Springs area, near Kearny, 
Arizona.
    The lower San Pedro parcel is east of the town of Mammoth, Arizona, 
and straddles the San Pedro River. The acquisition of these lands would 
enhance a key migratory bird habitat along the San Pedro River, and we 
would welcome them into BLM management. While H.R. 3301 directs the BLM 
to manage the lower San Pedro parcel consistent with the management of 
the existing San Pedro Riparian National Conservation Area (NCA) 
designated by Public Law 100-696, it specifically does not make these 
lands a component of that NCA. The new lands lie along the same 
riparian corridor, but they are at least 60 miles downstream (north) of 
the existing NCA, and have substantially different resource issues and 
needs. We recommend the lands either be designated as a separate unit 
of the existing NCA (with their own management guidance), or that they 
be managed consistent with the other lands in their vicinity under 
existing BLM Resource Management Plans. We understand there is a 
collaborative effort of stakeholders currently underway with whom we 
would like to work in developing the direction for the management of 
this area.
    The Dripping Springs parcel presents several problems. The 
legislation proposes to transfer 160 acres in the Dripping Springs area 
northeast of Hayden to the BLM. The BLM is then directed in section 
8(b) to transfer these 160 acres plus an additional approximately 2,000 
acres of public land to the Arizona State Parks Board for the purpose 
of a rock-climbing area to replace a similar area currently managed by 
the Forest Service that is within the area to be transferred to 
Resolution Copper. The bill directs the transfer to Arizona State Parks 
at no cost as soon as the new State Park is established.
    The Department can support the transfer of the existing 2,000 acres 
to the State of Arizona. The majority of these lands were previously 
identified for disposal. However, we recommend that the legislation 
provide for an immediate transfer of these lands to the State without 
waiting for the establishment of the State Park. The BLM does not 
currently have the resources or staff to manage a rock climbing area to 
replace the existing one on Forest Service lands that would be taken 
over by Resolution Copper in this exchange. Therefore, since Dripping 
Springs has been designated as the replacement area, we urge its 
immediate transfer to the State so that appropriate management of the 
area can be arranged. In addition, we do not believe that it is 
appropriate for the 160-acre parcel to be a part of the Federal 
exchange when the BLM will simply act as a pass-through for the State. 
Any arrangements between Arizona State Parks and Resolution Copper 
should be handled outside of the Federal exchange.
    H.R. 3301 also requires the BLM to provide public access to Arizona 
State Parks to construct a road to the new rock-climbing area. The 
proposed road stretches over approximately six miles of rough terrain 
and, in addition to crossing BLM-managed land, also crosses state and 
private property. The legislation would require Resolution Copper to 
pay up to $500,000 to the Secretary of the Interior for transfer to 
Arizona State Parks for the construction of the road. We believe that 
the funding for the road should be between Resolution Copper and the 
State of Arizona rather than involve the Secretary of the Interior.
    Section 8(b)(2)(A) requires the immediate granting of a right-of-
way across Federal lands for the road. We believe it is important to 
determine the appropriate route for the road through a full and open 
public process consistent with the provisions in FLPMA and encourage 
the bill be amended to allow us to do so. The BLM is happy to provide a 
right-of-way for the road but does not believe it should be involved in 
the design, payment, or construction of the road.
    Other issues requiring clarification include: timing of the 
exchange; appraisal-related provisions; and, the equalization of values 
provisions. Section 4(d) of the legislation requires that the exchange 
be completed within one year. Based on our experience with exchanges, 
we do not believe that this is sufficient time for the completion and 
review of a mineral report, completion and review of the appraisals, 
and final verification and preparation of title documents. Preparation 
of a mineral report is a crucial first step toward an appraisal of the 
Federal parcel because the report provides the foundation for an 
appraisal where the land is underlain by a mineral deposit. 
Accordingly, adequate information for the mineral report is essential. 
We recommend adding a provision requiring Resolution Copper to provide 
confidential access to the Secretaries of Agriculture and the Interior 
(and their representatives) to all exploration and development data and 
company analyses on the mineral deposits underlying the Federal land in 
order to ensure an accurate appraisal.
    Finally, we would like the opportunity to work with the sponsor and 
the Committee on miscellaneous technical items including maps for the 
areas to be exchanged. In the case of lands to be transferred to or 
from the Secretary of the Interior, the maps should be completed by the 
BLM.
    Thank you for the opportunity to testify, I will be happy to answer 
any questions.
                                 ______
                                 
    Mr. Grijalva. Thank you, sir, and let me begin.
    Mr. Holtrop, I understand that an appraisal has not been 
completed on the lands in question in H.R. 3301, however, if 
based on any preliminary estimates do you expect that the lands 
exchange under H.R. 3301 to be of equal value?
    Mr. Holtrop. Well, as you stated, there has not been an 
appraisal completed to this date yet. What the bill allows for 
is cash equalization to assure that the equal value exchange 
would occur.
    Mr. Grijalva. The one year time limit imposed on the land 
exchange, does that give you enough time to complete the NEPA 
analysis, ESA consultation, tribal consultation?
    Mr. Holtrop. We are concerned that it does not provide 
enough time. Even just the appraisal of the land itself can 
take up to a year and the mineral appraisal on top of that, and 
with all of the environmental review and consultation of the 
tribes, as you mentioned, the one year period of time does not 
appear to be sufficient to us.
    Mr. Grijalva. Out of curiosity, the Eisenhower 
administration removed Oak Flat Campground from mining in 1955. 
Do you know why?
    Mr. Holtrop. The mineral withdrawal at that time was done 
to protect the Federal Government's interest in the capital 
improvement of the campground that exists there.
    Mr. Grijalva. In the provision that allows the Secretary of 
Agriculture to grant a permanent conservation easement for 
Apache Leap to qualify as a grantees, how would you expect the 
Secretary to decide which grantee would receive that 
conservation easement?
    Mr. Holtrop. Well, as I read the bill what is required is 
that Resolution Copper would provide a conservation easement 
acceptable to the Secretary, so it is my understanding that 
Resolution Copper would do the process of determining who would 
be the grantee of the conservation easement. If that were 
acceptable to the Secretary that would be accepted. The bill 
requires that the grantees be either a government unit, a 
tribal unit or some land trust organization.
    Mr. Grijalva. Today, as you know, the House will be 
considering H.R. 2262, the Hard Rock Mining and Reclamation 
Act. If the mining operation in question were left on Federal 
lands rather than exchanged through this legislation, how would 
royalty payments on the mining operation change under the 
legislation that is being considered today if that were indeed 
to become law?
    Mr. Holtrop. Well, I am afraid I am not prepared to answer 
that. I am not familiar with what the effect of the new bill 
would have on that, and because of that I don't have a position 
on how that would be.
    Mr. Grijalva. On the next panel we are going to hear from 
tribal leaders with regard to their comments and concerns 
regrading the legislation. Has the Forest Service engaged in 
any discussions with the tribes in question regarding this 
exchange?
    Mr. Holtrop. Yes, we have. We have been involved in 
informal discussions. As I understand it, the Tonto National 
Forest has been working with eight or nine different tribal 
entities in informal discussions as we were finding out 
information about the proposed exchanged.
    There has been visits to the sites with the tribes to look 
at the various heritage sites and protection that would be 
necessary and mitigation measures that might be necessary, but 
until there is a firmed up Federal action there has not been 
formal consultation at this stage yet.
    Mr. Grijalva. One question for Mr. Johnson. The provision 
in the legislation directs the establishment of a replacement 
climbing park due to the loss of that activity to the Oak Flat 
parcel. Should the deal to have this area managed as a state 
park fall through would BLM be able to manage this area, the 
climbing park?
    Mr. Johnson. Well, as you know, Mr. Chairman, the BLM is 
presently managing the Dripping Springs land, the parcel that 
you referenced. Because of the added attention that has come to 
that particular area since then, the BLM certainly is aware 
that there has been an increase in usage in that site, although 
the BLM is not managing it for that particular use at this 
time.
    If a road were to be constructed under the legislation we 
would expect that there would be a substantial increase in 
visitation there. It should be known that the BLM does not 
presently have the staff or the resources to manage it 
consistent with the expectations that might come with that 
site. The BLM would hope that the arrangement outlined in the 
legislation for the state to take ownership of that and the BLM 
to transfer ownership of those acres to the State of Arizona 
would be the ultimate outcome.
    Mr. Grijalva. Let me turn to Mr. Bishop. If we have another 
round I have just one additional question.
    Mr. Bishop?
    Mr. Bishop. I have only one question for either Joel or 
Luke. The Oak Flat Campground area that was set aside back when 
I was I think three, no one has been able to tell me why that 
was set aside. Do either of you know?
    Mr. Holtrop. It was set aside to protect the Federal 
interest in the capital improvement of the campground.
    Mr. Bishop. Do you know any more about why they did that, 
though? I mean, is that the sum and substance of why it was set 
aside?
    Mr. Holtrop. My understanding that was the sum substance of 
why that was set aside. It is not uncommon I don't believe when 
there is a Federal improvement on a parcel that a mining 
interest would create a difficulty of us continuing to protect 
that improvement to do a withdrawal in that case.
    Mr. Bishop. Was this action done in isolation or was it 
part of a larger approach of dealing with making some kind of 
land arrangements within the State of Arizona?
    Mr. Holtrop. I don't know the answer to that. I would be 
happy to try to find that out and get back to you later.
    Mr. Bishop. Thank you. That is it.
    Mr. Grijalva. Mr. Flake?
    Mr. Flake. Thank you, Mr. Chairman.
    Mr. Holtrop, can you comment a little on the ecological 
value of the lands being transferred to the Federal Government 
as opposed to the lands that you relinquish control over?
    Mr. Holtrop. There is some significant ecological values as 
to the land that would be coming into the National Forest 
System lands. There are watershed values in an area of course 
where water is a very important resource, some of the lands 
have an endangered cactus species associated with them, there 
is two miles, a free flowing stream associated with some of 
them, and so there is high ecological values. Those are just 
some of those values.
    Mr. Flake. So as far as cash value it is net wash as it 
always is, but ecological value, the Federal Government is 
getting a pretty good deal?
    Mr. Holtrop. There are significant values that are 
associated with the properties that we would be receiving, and 
there obviously are significant values associated with the Oak 
Flat parcel as well. The valuation would be based on economic 
values.
    Mr. Flake. Right, but the ecological value here is one of 
the reasons that the Forest Service, and BLM and others are 
supporting this exchange?
    Mr. Holtrop. The position of us being in support of it is 
based on a recognition of the values associated with the 
parcels that we would be receiving which are significant, and 
there would be further analysis done as we went through this 
process to further ascertain those values.
    Mr. Flake. Right. Thank you.
    Mr. Johnson, you mentioned that the legislation should be 
amended to compel Resolution Copper to provide, you know, 
mineral information for the purposes of appraising the land. Is 
that common or is this setting new precedent?
    Mr. Johnson. I think that the necessity of having the full 
information and that information at the disposal to BLM is part 
of what would be a standard for preparing that information and 
assessing what the mineral values would be.
    Mr. Flake. My guess is that information is not often 
available. What happens when it is not there?
    Mr. Johnson. Well, in this particular case it is my 
understanding that with the proponent the BLM would be serving 
in the role while the Forest Service would prepare the mineral 
report, would review that and would want access to that to be 
able to ensure that the mineral values were fully assessed and 
to ensure that the taxpayer was receiving an equal exchange and 
an equal outcome in the exchange.
    Mr. Flake. All right. Thank you.
    Mr. Grijalva. Thank you, sir. I will forward the 
opportunity to my colleagues.
    One follow-up question, Mr. Holtrop, because as the 
question came up earlier. Elaborate on some of the questions or 
concerns that you might have regarding the relocating of the 
campground.
    Mr. Holtrop. There are going to be some difficulties with 
finding a suitable location for an additional campground or a 
new campground on the Globe Ranger District. We have looked at 
three different sites to date. Each of those sites have 
different issues associated with them. They have issues of 
access, they have issues around hazardous materials from prior 
mining activities, there are issues with private land 
neighboring some of those campground sites.
    The site that we feel best about at this point has some of 
those concerns but has a significant access issue associated 
with it where we would probably have to construct about a mile 
of road in order to get to the campground site. So those are 
some of the issues that we are dealing with. Then the 
additional concern that my testimony raised was the concern 
that the $500,000 would be insufficient to pay for the cost of 
the construction of that site.
    Mr. Grijalva. Thank you.
    Mr. Flake?
    Mr. Flake. Just a follow-up to that. You mentioned that two 
years is insufficient and $500,000 is insufficient. Rather than 
leaving it open ended, do you have a realistic estimate in 
terms of both time and cost?
    Mr. Holtrop. I believe a more realistic estimate of cost 
when you consider of course we would have to do the 
environmental analysis and determine the site and that could 
change the cost considerably, but if we were to go to the site 
that currently appears to be the best, if there were the need 
for a road to be constructed to the site the road itself would 
be over $1 million in cost.
    The average cost for every camp unit on the Tonto National 
Forest over the past several years has been nearly $40,000 per 
unit. The campground that we are giving up is about a 19 site 
campground, so the cost of the development of the campground 
itself would be close to $700,000. When you include the 
environmental analysis and some of the other things, $2 million 
might not even be enough, but that might be a more reasonable 
estimate.
    Mr. Flake. Thank you.
    Mr. Grijalva. Let me thank the witnesses. Appreciate it 
very much. If there is additional questions we will provide 
those in writing.
    With that, let me call the next panel up. Thank you very 
much, and I appreciate you being here. Let me begin this panel 
with Raphael Bear, President, Ft. McDowell Yavapai Nation.
    Mr. President?

        STATEMENT OF THE HON. RAPHAEL BEAR, PRESIDENT, 
                  FT. McDOWELL YAVAPAI NATION

    Mr. Bear. Thank you very much, Mr. Chairman, members of the 
Subcommittee. Thank you for the opportunity to appear before 
you today on H.R. 3301. My name is Raphael Bear, I am the 
President of the Ft. McDowell Yavapai Nation located in Ft. 
McDowell, Arizona.
    We recognize the increasing global demand for copper has 
resurrected the mining industry and fostered interest in 
deposits previously deemed unprofitable. Resolution Copper 
Company, or RCC, is proposing to mine a deposit estimated to be 
worth in the tens of billions of dollars. However, we believe 
the feasibility of this mine, the equalization of the exchange, 
environmental damage along with the potential economic benefits 
as purported by RCC have not been fully or fairly appraised or 
analyzed.
    We are extremely concerned that the mine will cause 
irreparable harm to the environment. In conveying Federal land 
to the private entity, RCC will be effectively exempt from NEPA 
or other environmental protections. Furthermore, provisions for 
reclamation in the 1872 Mining Act are inadequate and the 
Surface Mining Control and Reclamation Act of 1977 are not 
applicable for copper mining.
    Our paramount concern is where and how will tailings and 
overburden be relocated. In consulting with geologists and 
geomorphologists it does not appear that there are sufficient 
previously abandoned surface mine pits that could either 
temporarily or permanently house the predicted hundreds of 
thousands of tons of material generated per day for 40 years of 
mining, much of it which will contain a number of toxic 
substances.
    Will unspoiled canyons be sacrificed to store this 
material? Thus, in the absence of truly meaningful Federal laws 
regulating copper mining who will make determinations of what 
land will be sacrificed, land that the Yavapai hold so dear?
    Added hydrologic studies are needed to determine how 
aquifers and water in this region will be affected. For 
example, groundwater pumping will dewater natural springs in 
riparian areas such as Devils Canyon. These areas are not only 
hydrologically significant but are sacred to the Yavapai people 
and will be lost forever as a result of groundwater pumping.
    Although a conservation easement would provide protection 
for Apache Leap from surface disturbance dewatering of the 
tunnels would cause a serious draw down of the water table of 
the region and result in subsidence in and around the Leap. 
Additionally, if financial conditions prove this mine 
impractical what guarantees are there to assure water will be 
replaced back into the aquifer prior to mine closure?
    Thus, before this legislation moves forward we request that 
the Secretary of Agriculture be directed to commission and 
independent third-party analysis of the hydrologic and 
engineering reports that evaluate potential impacts of the 
area. Underscoring our concerns are Arizona's mining laws. RCC 
will probably spend little in bonding to underwrite either the 
cost of remediation during mining operations or upon mine 
closure.
    Typically self-bonding or corporate guarantees are all that 
is required. The impacts of sulfuric acid and other 
contaminants from lead solutions and other processing with 
copper are well-documented. However, mining companies in 
Arizona have been known to walk away from their clean up 
obligations.
    For example, Asarco Mining Company recently declared 
bankruptcy. The cost of remediating their mines are reported in 
the hundreds of millions of dollars. This region is tied to our 
cultural and religious heritage as it is our ancestral 
territory. I cannot express in words how deeply felt this 
sacred area is to my people. It simply transcends words.
    This exchange weakens or renders unenforceable current 
Federal Indian protection laws such as National Historic 
Preservation Act, or NHPA. Thus, how will the Yavapai cultural 
heritage or resources, whether tangible or intangible, be 
preserved or protected?
    Ultimately, damage that will result from this mining 
operation cannot be mitigated simply by placing a dollar value 
on it or by exchanging it for some other land that is far from 
the area of concern. Thus, at this time we believe that there 
are too many unresolved serious issues that could be fully 
addressed prior to congressional approval.
    Mr. Chairman, members of the committee, on behalf of the 
Ft. McDowell Yavapai people I thank you for the opportunity to 
express our deep concern regarding this proposed legislation. 
Thank you very much.
    Mr. Grijalva. Thank you, Mr. President.
    Let me now turn to Wendsler Nosie, Chairman, San Carlos 
Apache.
    Mr. Chairman?
    [The prepared statement of Mr. Bear follows:]

  Statement of President Raphael R. Bear, Fort McDowell Yavapai Nation

    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to appear before you today. My name is Raphael Bear, I am 
the President of the Fort McDowell Yavapai Nation located in Fort 
McDowell, Arizona. I have been invited to testify today on the proposed 
Southeast Arizona Land Exchange legislation, H.R. 3301, that will 
authorize and direct the exchange and conveyance of National Forest and 
other land in central and southeast Arizona. My comments, both written 
and oral, will specifically address and provide evidence as to why this 
proposed mining operation causes great concern to the People of the 
Fort McDowell Yavapai Nation.
    We recognize the increasing global demand for copper has 
resurrected the mining industry and fostered interest in deposits 
previously deemed unprofitable. This includes a large undisturbed ore 
body beneath the original Magma Mine and about 7000 feet below Apache 
Leap (1000 ft below sea level), as well as Oak Flat and Devils Canyon, 
just east of Superior, AZ. The Resolution Copper Company, herein 
referred to as RCC, is exploring the feasibility of mining this deposit 
estimated to be worth in the tens of billions of dollars. The proposed 
House and companion Senate bill (S. 1862), directs the Secretary of 
Agriculture to convey and dispose of 3025 acres within the Tonto 
National Forest (FS) including the Federally Protected Oak Flat 
Campground. This would exchange land from Federal to private property--
property that was once inhabited by the Yavapai People. Given the 
current economic conditions our country and the State of Arizona are 
facing, this type of endeavor with the potential to generate millions 
of dollars in tax revenues could be looked on favorably. However, the 
feasibility of the mine, the equalization of the exchange, the 
environmental and cultural losses, and potential economic benefits as 
purported by RCC has not been fully or fairly appraised or analyzed.
    At this time, the Congressional Budget Office (CBO) and /or Office 
of Management and Budget (OMB) cannot truly evaluate the exchange as 
the Federal government has yet to perform a substantive economic 
evaluation of the land that houses the copper and other minerals. We 
believe that appraisal-related provisions and the equalization of 
values provisions are needed prior to Congressional passage. As H.R. 
3301 is drafted, all mineral deposits within the Federal parcel are not 
accounted for in the evaluation. As of today, RCC asserts that there 
may be over 24,000,000 tons of copper (600,000 tons per year for 40 
years). In today's market, that would translate to roughly $150 
billion. Thus, the Federal parcel is orders of magnitude greater in 
value than that of the non-federal parcels selected for exchange. The 
mineral report is an essential step toward an appraisal of the Federal 
parcel and therefore critically needed to assure the parity of the land 
exchange. However, section 4(d) of the legislation requires that the 
exchange and other critical documentation be completed within one year 
after congressional passage. We do not believe that this is sufficient 
time for the completion, analysis, and review of a mineral report and 
appraisals. Once RCC has completed their evaluation and analysis, we 
call for an independent, 3rd party review of the engineering reports 
for this operation. This must be accomplished in consultation with all 
affected parties, including the Fort McDowell Yavapai Nation, prior to 
this legislation moving forward. At this time, relying on the RCC 
current engineering report or the Department of Agriculture review of 
this report is insufficient. On a monetary level, RCC financially 
recoups all mineral profits at the expense of the public making such an 
exchange grossly disproportionate.
    Oak Flat is a major piece of this land exchange. In 1955, Oak Flat 
campground was recognized by President Eisenhower as an important U.S. 
resource. This area was specifically withdrawn from mining activity 
when the he signed Public Land Order 1229. I will not expound on 
reversing President Eisenhower's decision as others before me have 
either testified or documented the significance of this region. 
However, when designated lands are legally protected from future 
anthropogenic disturbances, in this case mining activity, then 
congressionally reversed, any assurances that other Federal land that 
is deemed culturally important or environmentally critical is also in 
jeopardy. Thus, this exchange sets a dangerous precedent.
    As past stewards of this land, we are deeply concerned that the 
mine will cause irreparable harm to the environment including, but not 
limited to, contaminating scarce water supplies, decimating the land 
base directly through mining practices and post mining subsidence, 
destroying habitat for endangered species, and causing massive surface 
damage. The bill does not specifically direct the Secretary of 
Agriculture to perform or have performed in-depth, critically needed 
environmental studies and analysis of the mining operation. RCC will be 
effectively exempt from National Environmental Policy Act (NEPA) and 
any opportunity for public involvement afforded by NEPA. The NEPA 
process mandates analysis and disclosure of environmental impacts, 
allowing all affected parties and decision-makers to review and 
comprehend the risk assessment. The Yavapai People are a critically 
affected party in this legislation. As such, the Secretary of 
Agriculture must direct RCC to provide full disclosure of all pertinent 
environmental information regarding the mining operation, including a 
substantive mining and reclamation plan prior to congressional mark-
ups.
    Currently, there are no stringent mining laws that govern copper 
mining. Provisions for reclamation in the 1872 Mining Act are 
inadequate and the Surface Mining Control and Reclamation Act of 1977 
is not applicable for copper mining. The majority of environmental 
protections that these Federal lands are currently afforded are through 
federal law but many may become inapplicable once the exchange becomes 
law. Our paramount concern is where and how will overburden and 
tailings be re-located? In consulting with geologists and 
geomorphologists, it does not appear that there are sufficient, 
previously abandoned surface mine pits that could either temporarily or 
permanently house the predicted 100,000's of tons of material generated 
per day for the 40 years of mining. Much of this material will contain 
an array of toxic substances. Will unspoiled canyons be sacrificed to 
store this material? Furthermore, technologically enhanced naturally 
occurring radioactive materials (TENORM) are waste elements within 
stockpiles that release toxins into the environment. Subterranean toxic 
metals pose little harm to human health. However, when brought to the 
surface, stockpiled, exposed to the air, and subjected to various 
technological processes, there is a potential for adverse effects to 
humans. This is particularly true in Arizona where there are abundant 
deposits of radioactive metals and poisonous arsenic. Thus, in the 
absence of truly meaningful Federal laws regulating copper mining, who 
will make determinations as to what lands will be sacrificed--land that 
my People hold so sacred? We must be consulted and allowed to 
participate in the process.
    Once the land is conveyed, under the mining laws of the State of 
Arizona, RCC will probably not be required to expend cash to post a 
bond to underwrite either the cost of remediating toxic spills during 
their mining operations, or for their pollution clean-up upon mine 
closure. Typically, self-bonding or corporate guarantees are all that 
is required. The impacts of sulfuric acid and other contaminants from 
leach solution are well documented and thus I need not elaborate. 
However, in Arizona, mining companies who declare bankruptcy leave 
behind large clean-up obligations. For example, Asarco, which owns many 
mines in Arizona, declared bankruptcy and was reported to have left 
100's of millions of dollars in clean-up costs. Thus, a greater level 
of financial responsibility should be mandated as there is much risk 
associated with this projectq
    As related in previous public testimony on earlier versions of this 
bill, a major scientific concern relates to groundwater pumping as it 
will de-water this region. Riparian areas and natural springs such as 
Devils Canyon are not only hydrologically significant but are sacred to 
the Yavapai People and will be lost forever as a result of groundwater 
pumping. Although a conservation easement would provide protection for 
Apache Leap from surface disturbance, dewatering of the tunnels will 
cause a serious drawdown in the water table of the region and will 
result in subsidence in and around the Apache Leap. Further required 
investigations vis-a-vis water must also address:
      What empirical and realistic predictions are made for 
long-term water-use over the 40 plus years of mining? Has the long-term 
availability and sustainability of water use been assessed?
      How will dewatering of the mine be executed? Will water 
removed from the shafts prior to copper removal be stored? How will 
water be replaced in an environmentally safe and effective way after 
ore is removed?
      If during the course of mining operations, financial 
conditions prove this mine impracticable, what guarantees will be made 
to assure that water will be replaced back into the aquifer?
    By conveying the land from public ownership to a private entity, 
much of the permitting process, particularly regarding clean water, is 
effectively removed. For example, if one looks at recent federal court 
rulings concerning private property across the U.S., Sections 402 and 
404 of the Clean water Act have often been rendered unenforceable 
(Section 402--National Pollutant Discharge Elimination System; Section 
404--regulates the discharge of dredged and fill material into waters 
of the United States, including wetlands). Thus, what safeguards will 
be congressional mandated to prevent water contamination or a decrease 
in quality that will/may result due to either direct or indirect 
discharge or result from this type of mining technique?
    In essence, feasibility and economic studies in regard to water 
have not been fully addressed. Furthermore, given the on-going long-
term drought and resulting potential water shortages within the State, 
including the Colorado River (BOR Colorado River Water Shortage 
Criteria Documentation, 2006-7) it is imperative that long-term 
strategic projections and economic data substantiate that water for 
mining purposes is the most beneficial use for the State as a whole. 
Thus, before this legislation moves forward, we request that the 
Secretary of Agriculture be directed to commission an independent, 3rd 
party analysis of the hydrologic and engineering reports that evaluate 
potential impacts of the entire area including Devils Canyon and Apache 
Leap. This analysis must be in direct consultation with the Fort 
McDowell Yavapai Nation.
    Mining will also impact lands that are tied to our cultural and 
religious heritage as this region is part of the Yavapai ancestral 
territory. As stated earlier, many federal protections will be removed 
from this land. Hence, the Native American Graves Protection and 
Repatriation Act (Public Law 101-601) or any provision of the American 
Indian Religious Freedom Act (42 U.S.C. 1996), the National Historic 
Preservation Act (6 U.S.C. 4701 et seq.), and the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) that are designated 
to protect areas important to Native American's may be inapplicable or 
unenforceable. As stated above, dewatering, land subsidence, polluting 
of the land and water; all of these activities will desecrate this 
sacred area. I cannot express in words how deeply felt this land is to 
the Yavapai--it simply transcends words. Damage that probably will 
result from this project cannot be mitigated simply by placing a dollar 
value on it or by exchanging it for some other land that is far from 
the area of concern. Specific questions that must be addressed include, 
but are not limited to, the following:
      What, if anything, in this legislation will account for 
Yavapai cultural resources in the area? Given the extent of land that 
will be needed for all mining operations, what federal authority will 
statutorily assure that cultural assessments of the entire area will 
not just represent a ``cursory review''? How will all collected data--
raw and published--be disseminated to the Yavapai? What provision will 
ensure that this information will not become public domain so that 
culturally sensitive and sacred areas will not be subject to vandalism?
      Where will material be housed if removed from the site? 
Storage or dissemination of materials must be formally and legally 
agreed to by the Fort McDowell Yavapai.
      What language in the bill is the federal government 
proposing to assure that Yavapai cultural heritage, whether tangible or 
not and regardless of lineage, is going to be preserved in such a way 
that it meets with our approval?
      As the bill is currently written, the Native American 
Graves Protection and Repatriation Act (NAGPRA ) may not be applicable 
once the land is conveyed. Therefore, what language will be added to 
assure the protection or removal of sacred burial sites will meet with 
our approval?
    In summary, the language of the bill, as currently drafted, does 
not adequately address: 1) the mineral report and appraisal of the 
Federal parcel to assure the parity of the land exchange; 2) the 
weakness of Federal and Arizona's current statutes or laws governing 
copper mining; 3) the lack of an extensive mining plan, reclamation 
protocol, or bonding assurances; 4) groundwater and surface water 
issues; 5) subsidence issues; 6) the need for a third party, 
independent Environmental Impact Statement on the entire mining 
operation; and 7) Federal environmental and cultural protections 
afforded public lands are no longer applicable once the land is 
conveyed. We have additional concerns but many are addressed in 
Governor Napolitano's letter of August 24, 2007 outlining very specific 
economic, environmental, and cultural omissions in the current bill. 
The San Carlos Apache Tribe has also expressed many of these very same 
concerns. Other Arizona Tribes have articulated their grave 
trepidations on this bill and provided documentation under separate 
cover. Thus, at this time, we believe there are too many unresolved 
serious issues that must be fully addressed prior to congressional 
approval.
    Mr. Chairman, members of the Committee, on behalf of the Fort 
McDowell Yavapai People, I thank you for the opportunity to express our 
deep concerns regarding this proposed legislation.
                                 ______
                                 

             STATEMENT OF THE HON. WENDSLER NOSIE, 
                  CHAIRMAN, SAN CARLOS APACHE

    Mr. Nosie. Chairman, first I would like to introduce 
myself. I am Wendsler Nosie, Chairman of the San Carlos Apache 
Tribe. I also have Jonathan Kicheon, council member, and also, 
Leon Anderson, who is a former veteran, also here for the first 
time. I would like to thank you. I, again, thank you for the 
opportunity to give us an opportunity to speak freely and to be 
open with you of our concerns.
    Not reflecting so much on my relative to my right, Mr. 
President Bear, of the concerns he expressed which is also in 
my written testimony I would like to say that first, the 
biggest part that I hear not being discussed is the religious 
aspect of the place to the people, the first people of this 
nation.
    It concerns us at the most highest because of the 
reflection that it would give to the identity of who we are as 
native people. Oak Flat is a place where a blessed gift was 
given to the people about morals, and ethics and how to 
maintain the Earth. That is the biggest part that is missing 
within this consultation that we speak of because who gives the 
right for anyone to tamper with any other person's religion 
rightfully to practice?
    In this history it is a known fact, the history of America, 
that Native Americans have been put aside and not recognized on 
their religious belief. Our religious belief is who makes us 
who we are which makes this North America very unique because 
God had given a blessed gift here that in so many ways we try 
to express and we try to share.
    There was a question brought up earlier of Eisenhower. Here 
sits before me a feather off a feather that was given to 
President Eisenhower of the uniqueness of Oak Flat. In those 
days from what I understand at least the President and the 
committee members at that time spoke with the native people to 
realize the importance of the religious aspect of that area and 
with the people who had suffered, who had given their sacred 
life, their soul, by leaping to their death because of what was 
to come to them of a change that no one understood.
    It was important to them to maintain who they were and who 
they are. Those chose that life by jumping and giving their 
life to sacrifice it for the future, which today for us it 
lives in us every day, every hour, every second. With all the 
people who lived in that area and were prisoners of war in San 
Carlos and not given the opportunity to go back, even though we 
resided in San Carlos, we were never given the opportunity to 
go back to our homelands.
    So as you can see, a lot of our elders today feel with 
inside them the hurt, the abuse, and to have to maintain where 
we are at to reach out to Oak Flat and to those areas of what 
was significant importance to us in a spiritual way of life. So 
it is really devastating when you look on the religious part of 
it.
    In America a lot of words that were defined in trying to 
define the Apache language is really not true because what we 
are talking about when we say crown dancers or devil dancers, 
those are angels, no different than any other religion that 
practice about what angels are.
    The crown of the head represents the halo, and all the 
marking within that represents everything that was given from 
the creator, God, who is known throughout the world by many 
names that were given to us, which makes this place very 
significant to us, and never being allowed to go back to 
practice who we are but to sneak there and to be able to do it.
    Water. Now, when we speak of water, water is for everybody 
today. We realize that the world isn't going to change to allow 
us to be who we are, but now today speaking on behalf of not 
only Native Americans but speaking for the people that live in 
that area, water, Arizona doesn't have water. What we have 
there is water to the future.
    With this kind of mining, it is going to pull everything to 
one place and contaminate the water. What is really left for 
Arizona? Those of you who call yourself Arizonans should know 
that because it is important that we keep Arizona alive with 
what we have.
    Health concerns. A big issue. I have been telling this 
since Superior Globe Miami that just look at the gravesites, 
the cemetery. Many of those people lost their lives on account 
of their health with mining. Right now there is no check and 
balance, so what we see to the future is more devastation. When 
it comes to health, a lot of people are going to be diagnosed 
with cancer and everything else that it brings. So this is one 
of the great warnings that we are bringing out to the people 
that is very important.
    The future. Man, if we have a future at all we have to say 
no to this bill. I am asking the committee to kill this bill 
because if there is a future for Arizona it comes back to the 
water, the spirit of Arizona. If we are Arizonans, then we know 
that is important. Now, from what I understand a lot of these 
companies are from foreign countries which would lead the other 
side of the world.
    This is America. We should make that decision ourselves. We 
should learn from what has happened in the other part of the 
world to know that what we need to do here, and it is to keep 
America the way it is and to learn from each other so that we 
can better America.
    But, again, like I said, I am just asking on behalf of all 
the tribes, White Mountain, Camp Verde, Tonto, Hualapai, and 
Hopi and with my relative to my right, that we kill this bill 
because for the betterment of Arizona, and for the betterment 
of our people and the generations that are yet to be born which 
is very important. Thank you.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Now, let me turn to Mr. John Rickus, President, Resolution 
Copper. Welcome, sir.
    [The prepared statement of Mr. Nosie follows:]

            Statement of The Honorable Wendsler Nosie, Sr., 
                Chairman of the San Carlos Apache Tribe

    My name is Wendsler Nosie Sr. I am Chairman of the San Carlos 
Apache Tribe. Thank you for the opportunity to submit testimony to the 
Subcommittee on National Parks, Forests and Public Lands concerning the 
Southeast Arizona Land Exchange and Conservation Act of 2007 (H.R. 
3301).
    The Tribe is submitting this testimony to express its strong 
opposition to the legislative land exchange proposed by H.R. 3301, 
which would allow foreign owned mining giants, Rio Tinto PLC (UK) and 
BHP Billiton Ltd (Australia), to desecrate the aboriginal homeland of 
the Apache People and acquire and mine approximately 3,025 acres of 
public lands near Superior, Arizona. H.R. 3301 would also bypass the 
``hard look'' required by the National Environmental Policy Act, 42 
U.S.C. Sec. 4321 et seq. (NEPA) and other important environmental and 
cultural resource protection laws.
    The lands to be acquired and mined by Rio Tinto and BHP Billiton 
under H.R. 3301 are referred to by non-Indians as Oak Flat and Apache 
Leap. These lands are sacred and holy places. So too is the nearby area 
known as Devils Canyon which also will be desecrated if this 
legislative land exchange is approved. The Apache People, as well as 
other Native Nations in Arizona and elsewhere, including the White 
Mountain Apache Tribe, the Yavapai-Apache Nation, the Tonto Apache 
Tribe, the Hopi Tribe, the Hulapai Tribe, and the Mescalero Apache 
Tribe in New Mexico, are compelled to oppose H.R. 3301, not only for 
our People, but for all of the people who pray that the unique features 
and habitat of Oak Flat, Apache Leap, and Devils Canyon will continue 
to be preserved for future generations.
The Holy and Sacred Sites of Oak Flat, Apache Leap and Devils Canyon
    Well before Oak Flat, Apache Leap, and Devils Canyon were 
appreciated for their unique habitat and features by hikers, bird 
watchers, off-road enthusiasts, and rock climbers, these Lands were 
home to the Apache People. In our native language Oak Flat is called 
Chich'il Bildagoteel, and it lies in the heart of T'is Tseban country. 
The Oak Flat area is bounded in the east by Gan Bikoh or Crown Dancers 
Canyon, and in the north by Gan Diszin or Crowndancer Standing. These 
canyons are called ``Devils Canyon'' and ``Queen Creek Canyon'' by non-
Indians.
    For as long as may be recalled, our People have come together here. 
We gather the acorns and plants that these lands provide, which we use 
for ceremonies, medicinal purposes, and for other cultural reasons. We 
have lived throughout these lands, and the Apache People still come 
together at Oak Flats and Apache Leap to conduct religious ceremonies 
and to pray or take rest under the shade of the ancient oak trees that 
grow in the area. The importance of these lands has not changed. These 
are holy, sacred, and consecrated lands which remain central to our 
identity as Apache People.
    In the nearby area called Devils Canyon, we have placed marks, 
which are symbols of life on Earth, on the steep ledges and canyon 
walls that rise high above the stream that has carved deep into the 
Canyon, and we buried our ancestors in the Canyon's heart. The 
escarpment of Apache Leap, which towers above nearby Superior, is also 
sacred and consecrated ground for our People for a number of reasons, 
many of which are not appropriate to discuss here. You should know, 
however, that at least seventy-five of our People sacrificed their 
lives at Apache Leap during the winter of 1870 to protect their land, 
their principles, and their freedom when faced with overwhelming 
military force from the U.S. Calvary which would have required them to 
surrender as prisoners of war.
    The traditional cultural significance of these lands, as well the 
presence of other historic sites on the lands of Oak Flat and Apache 
Leap, and in Devils Canyon, render these landscapes and sites eligible 
for inclusion on the National Register of Historic Places under the 
National Historic Preservation Act, 16 U.S.C. Sec. 470 et seq. (NHPA). 
Yet, allowing Rio Tinto and BHP Billiton to acquire and mine these 
lands through the legislative land exchange proposed by H.R. 3301 would 
destroy the cultural and historical significance of these lands under 
the NHPA, and desecrate this place of profound religious importance for 
our People. Rio Tinto and BHP Billiton ask Congress to approve this 
exchange for the single-minded purpose of providing the best possible 
profit to the shareholders of two foreign mining companies, which have 
no identity or loyalty to the United States, and which will suffer no 
adverse consequences for their profit.
    The Apache People cannot, under any circumstances, support this 
result, especially where the devastating impacts from the mining 
activities to be conducted on, around, and deep underneath this sacred 
place will be felt forever once the mining is finished, leaving our 
future generations to suffer the legacy of damage left behind.
    If enacted, H.R. 3301 would bypass the laws enacted by Congress for 
federal land exchanges. Congress has insisted that the normal 
administrative land exchange process must include Tribal consultation, 
meaningful public input, and close scrutiny of the proposed exchange 
and mining project under NEPA and other environmental and cultural 
resource protections laws, including, but not limited to, the NHPA, the 
Endangered Species Act, 16 U.S.C. Sec. 1531 et seq. (ESA), the Native 
American Graves Protection and Repatriation Act, 25 U.S.C. Sec. 3001 et 
seq. (NAGPRA), the Archaeological Resources Protection Act, 16 U.S.C. 
Sec. 470aa et seq. (ARPA), and the American Indian Religious Freedom 
Act 42 U.S.C. Sec. 1996 et seq. (AIRFA). In addition, the federal 
decision makers would have to consider less harmful and environmental 
damaging alternatives. The rationale and justification for this special 
legislative land exchange has never been explained by the supporters of 
H.R. 3301.
The Unique Environments of Oak Flat, Apache Leap, and Devils Canyon Are 
        An Important Refuge for Plants and Animals and a Place of Peace 
        and Solitude for Its Visitors
    Since time immemorial, our People have understood the unique beauty 
and importance of Oak Flat, Apache Leap, and Devils Canyon. In more 
recent history, the importance of these lands has been recognized by 
scientists, biologists, and outdoor enthusiasts. Tourists from Arizona, 
and indeed, all over the world, travel to this unique region of Arizona 
to see and experience the beauty of these places.
    Deep pools of water are captured at the bottom of Devils Canyon as 
it slices through the high desert on its way to Mineral Creek and 
eventually to the Gila River. These pools provide a cool and safe home 
for a diverse number of plants and animals. The region, like all of 
Arizona, is suffering under a long period of drought. The water which 
still courses through Devils Canyon has become a precious ribbon of 
life. The Canyon provides some of the last suitable habitat for a large 
number of animal and plant species--species that can no longer find 
refuge in other riparian areas in Arizona, as these areas can no longer 
be counted on to provide the most important element of life for all 
beings--water.
    The flows in Devils Canyon and throughout the region, will be 
depleted and subject to contamination if Rio Tinto and BHP Billiton 
acquire the lands of Oak Flat and Apache Leap through the land exchange 
proposed by H.R. 3301. Given the fragile state of Arizona's water 
supply, certainly these concerns should be subjected to close scrutiny 
through the normal environmental review process established by Congress 
in NEPA and other environmental laws. These protections would be 
bypassed by H.R. 3301.
    Oak Flat and Apache Leap sit at an approximate elevation of 4,200 
to 4,600 feet above sea level, making it a cool respite for travelers 
from Phoenix who visit the area as Highway 60 skirts Oak Flat 
Campground before running through Devils Canyon. The campground and 
picnic area at Oak Flat are surrounded by large boulders and towering 
outcrops, while in the campground and picnic area below, ancient oak 
trees provide shade for hikers, campers and picnicking families, and 
give crucial sanctuary for many important bird species--a fact that has 
been well documented by local Audubon societies.
    The unique and sensitive ecosystem of Oak Flat is not only fertile 
ground for medicinal plants and herbs essential to the cultural and 
religious practice of the Apache People, but the endangered Arizona 
Hedgehog cactus (Echinocereus triglochidiatus var. arizonicus), which 
is listed under the Endangered Species Act, also inhabits the Oak Flat 
area. Other threatened and endangered species are known to be in the 
area as well, including the Lessor long-nosed bat and the Chiricahua 
leopard frog. Under H.R. 3301, however, the land exchange and resulting 
mining project could be constructed and operated without compliance 
with the federal consultation requirements required by the Endangered 
Species Act.
    The importance of Oak Flat was recognized in 1955 when, through the 
efforts of the Eisenhower Administration, 760 acres of Oak Flat, known 
as ``Oak Flat Campground'', were withdrawn from all forms of 
appropriation, including mining, under the public land laws through 
Public Land Order 1229 (PLO 1229). This was done despite the fact that 
Oak Flat Campground was already located in the heart of an active 
mining district. Since this time, mining interests have attempted to 
push back or set aside the protections for Oak Flat found in PLO 1229 
on several occasions. Despite strong pressure, federal decision makers 
have consistently rejected such attempts, choosing instead to preserve 
the important values of Oak Flat for future generations. There is no 
justification for Congress to abandon its responsibility to protect 
these treasured lands today.
    The protections for Oak Flat mandated by PLO 1229 remain just as 
valid today as when they were first issued in the 1950s. If these lands 
are exchanged by H.R. 3301, and acquired by Rio Tinto and BHP Billiton 
for their mining purposes, the unique values of Oak Flat will be 
destroyed forever. Despite this fact, H.R. 3301 fails to provide any 
legal basis or justification for Congress to override the legal 
authority of this important public land order.
Overview of the Resolution Mining Project to Be Facilitated by H.R. 
        3301
    The details of Rio Tinto's and BHP Billiton's plans to mine the Oak 
Flat and Apache Leap Area are not fully known. Although a mining plan 
would normally be required if the exchange was conducted pursuant to 
the requirements of an administrative land exchange and the Federal 
Land Policy Management Act of 1976, 43 U.S.C. 1701 et seq. (FLPMA), 
such a plan has not been publicly released. In addition, the exact 
location of the proposed project footprint and the lands to be acquired 
by Riot Tinto and BHP Billiton have never been disclosed.
    H.R. 3301 references a map titled ``Southeast Arizona Land Exchange 
and Conservation Act--Federal Parcel--Oak Flat'' dated January 2005, as 
the description of the approximately 3,025 acres of land located in 
Pinal County, that Rio Tinto and BHP Billiton would acquire from the 
Tonto National Forest for their mining operations, which includes the 
760 acres of Oak Flat Campground, as withdrawn by Public Order No. 
1229. See H.R. 3301, Sec. 3(3). It is significant that Rio Tinto and 
BHP Billiton have not made the legal description or map of the lands 
which they are asking Congress to give them through H.R. 3301 readily 
available for public review. To the knowledge of the Apache Tribe, 
these companies also have not made the legal description or map of 
these lands readily available to Congress along with the proposed 
legislation.
    In addition, H.R. 3301 describes a 695 acre ``conservation 
easement'' area for Apache Leap, within the 3,025 acres of federal land 
that would be acquired by Rio Tinto and BHP Billiton, as depicted on a 
map titled ``Apache Leap Conservation Easement Area,'' dated November 
2006. Again, the companies have not made this map or the legal 
description of the 695 acres of lands in this conservation easement 
area readily available to the Apache Tribe or public, and quite 
possibly Congress. While the Apache Tribe objects to this ``Apache Leap 
Conservation Easement Area'' because it will not in fact protect this 
sacred and holy place of the Apache People, we also object because both 
the Tribe and the public have not been provided full disclosure of the 
boundaries and location of these lands.
    Although (a) the precise location of the lands to be acquired and 
mined are unknown; and (b) the details of Rio Tinto's and BHP 
Billiton's mining plans for Oak Flat and Apache Leap have not been 
disclosed, the following aspects of the project seem clear, based upon 
the limited explanations of the project recently made available on the 
website of Resolution Copper, Resolution Copper Mining, LLC (Resolution 
Copper) (the named joint venture of Rio Tinto and BHP Billiton) see 
www.resolutioncopper.com, (last visited 10/25/2007), as well as a 
review of certain permit application documents submitted to Arizona 
Department of Environmental Quality (ADEQ) by Resolution Copper:
      Resolution Copper is a joint venture of Rio Tinto and BHP 
Billiton. Resolution Copper is the successor in interest to Magma 
Copper Company (and certain earlier mining interests) which previously 
conducted copper mining in the area proposed for the Resolution Copper 
project, including in the area just west of Oak Flat and near Superior, 
Arizona. While a large mine shaft (known as Shaft No. 9) was drilled in 
1973 after a massive copper ore deposit was discovered approximately 
7,000 feet below the surface of the ground, the large copper ore 
deposit was never developed.
      After Resolution Copper was formed by Rio Tinto and BHP 
Billiton, the foreign mining giants turned their attention to whether, 
and by what means, the massive copper ore body located somewhere below 
Oak Flat could be extracted from deep within the earth. Despite the 
incredible opportunity for profit the ore body represents, they quickly 
settled on one of the oldest, cheapest, most dangerous, and 
environmentally damaging mining methods available in the industry 
today. This method is known as block-caving. By using this method, 
Resolution Copper's own website reveals that they could extract up to 
600,000 metric tonnes of saleable copper from the mine every year for 
at least 40 years before the ore body would be exhausted.
      Under today's copper prices, listed on the London Metal 
Exchange on 10/25/2007, the saleable copper extracted from these public 
lands (if these lands are exchanged to Rio Tinto and BHP Billiton), 
would have a value of around $185.6 Billion Dollars. The appraisal 
requirements of H.R. 3301 do not adequately ensure that the public will 
receive fair value for these minerals.
      Through block-caving, Resolution Copper would develop a 
series of tunnels deep below these sacred lands, and directly below the 
massive ore body, which is located, in part, underneath Oak Flat and 
Apache Leap. Using blasting and other techniques over the 40+ years of 
the mine, Resolution will break up and remove the ore body from the 
ground for further processing, creating an enormous void in the Earth 
that will eventually collapse in on itself, causing significant surface 
subsidence throughout the project area, including at Oak Flat and 
Apache Leap, and possibly Devils Canyon, Highway 60, and elsewhere. It 
is unknown if closure plans for the project have been prepared for the 
Resolution Copper Project.
The Resolution Copper Mining Project Will Result in Massive Surface 
        Subsidence and the Desecration and Destruction of the Oak Flat 
        Area, Apache Leap, and Devils Canyon Despite the Proposed 
        ``Conservation Easement'' Inserted in H.R. 3301
    Under the normal requirements for a land exchange in accordance 
with NEPA and FLPMA, Congress would require federal decision makers to 
conduct interdisciplinary studies and closely scrutinize the inevitable 
surface impacts of the mining project on Oak Flat, Apache Leap, and 
nearby Devils Canyon. They would be required to consult with the Apache 
Tribe and interested members of the public throughout the process, and 
would have to consider the impact of the surface subsidence on the many 
eligible sites and landscapes found in this area as required by the 
NHPA and other laws. They would also be required to evaluate the effect 
of surface subsidence on the traditional cultural and religious 
elements of this landscape for the Apache People. Rio Tinto and BHP 
Billiton seek to have Congress exempt them from all of these important 
requirements of the law through H.R. 3301.
    The Apache People do not accept the purported ``conservation 
easement'' found in Sec. 6 of the proposed legislation as a substitute 
for the complete protection of Oak Flat, Apache Leap, and Devils 
Canyon. The holy and consecrated nature of these places are not 
embodied solely in the physical feature known as Apache Leap. Oak Flat 
and nearby Devils Canyon are also holy, sacred and consecrated grounds. 
They are all in their place in a unique and irreplaceable region. The 
traditional cultural and religious values of these places for the 
Apache People, and the collective integrity of the entire area as a 
whole, will be destroyed by the surface subsidence and other aspects of 
the mining proposed by Resolution Copper.
    Even if Apache Leap was protected from subsidence by the proposed 
conservation easement (which it is not), this important cultural, 
religious and historic site would eventually be surrounded by 2,330 
acres of land that will be irretrievably damaged and defiled by the 
proposed mining project. This includes the lands of Oak Flat and nearby 
Devils Canyon. This would be akin to leaving the sanctuary of a church 
intact, but allowing for the desecration and destruction of the rest of 
the church, which destroys, in itself, the purpose of the church as 
community gathering place and place of worship.
    While H.R. 3301 would purport to prohibit ``commercial mineral 
extraction'' from under the proposed conservation easement, it does not 
prohibit Resolution Copper from tunneling under Apache Leap or from 
conducting other below ground operations directly below the escarpment. 
In addition, nothing in H.R. 3301 would require Resolution Copper to 
cease its mining operations and block-caving activities in the 
surrounding area should these operations and activities show signs of 
damaging or desecrating Apache Leap. Indeed, under Sec. 6, the 
responsibility of maintaining and preserving Apache Leap would be 
shifted to the grantee of the conservation easement. Resolution Copper 
would be relieved of any obligation to change its mining plan or 
operations to avoid harming this sacred place.
    These serious problems are multiplied by the fact that H.R. 3301 
would bypass the normal federal requirements of NEPA and other federal 
laws enacted by Congress--laws that would normally require Resolution 
Copper to perform adequate studies and conduct modeling in order to 
predict how their mining activities will impact surrounding surface 
features. Under H.R. 3301, impacts to Apache Leap would only be known 
when and if they occur. By then it will be too late.
    Furthermore, while Rio Tinto and BHP Billiton ``promise'' today 
that they will change their mining methods if Apache Leap is 
threatened, their promises ring hollow to us. The risks of massive 
surface subsidence presented by block caving are well documented. Once 
these lands are in the private hands of Rio Tinto/BHP Billiton, it will 
be too late for the government, the Apache Tribe, or the public to do 
anything if these foreign mining companies break their promise or 
discover that their hopeful predictions are wrong.
    In addition, the foul environmental track record and history of 
shameful treatment of indigenous people by Rio Tinto and BHP Billiton 
are well known. Their record speaks volumes.
    Both companies' operations over the years have left a wake of 
environmental destruction, human rights complaints, and lawsuits filed 
worldwide. Here in the United States, the Greens Creek Mine in Alaska 
(owned by Rio Tinto and two other companies) is alleged to be that 
state's second largest discharger of toxic waste, releasing 59 million 
pounds of toxic chemicals in one year, and violating the Clean Water 
Act 391 times. In the United Kingdom, Rio Tinto's Capper Pass smelter 
dropped an estimated 1.3 pounds of lead and other emissions on area 
residents each week during its operation, leading to a settlement 
agreement with hundreds of claimants in which the company refused to 
accept blame, but provided compensation to those with cancer and other 
illnesses.
    On the other side of the world, current and former residents of 
Papua New Guinea were compelled to file suit in United States federal 
court against Rio Tinto, alleging violations of international law, 
including war crimes and crimes against humanity in Rio Tinto's 
operation of a large scale mine in that country. In relation to another 
mining operation in Papua New Guinea, villagers sued BHP Billiton for 
more than $4 Billion in damages for the destruction of the Ningerum 
people's traditional lands in which they have lived since time 
immemorial. BHP Billiton eventually was forced to abandon the 
destructive mining project after studies showed that the operation was 
causing great environmental harms, but the company is accused of 
failing to see that the project was properly managed upon its 
departure. Villagers are no longer able to safely eat locally harvested 
fish or food grown from their own gardens. It is estimated that it will 
take 300 years to clean up the area of the contamination which the 
mining operation caused.
    It is often stated that history is prophesy. In this case, the 
historical conduct of Rio Tinto and BHP Billiton provide no assurances 
that these companies will keep their promise to protect Apache Leap, or 
for that matter, to protect the environment and respect the traditional 
culture and religious values of the Apache People.
    Finally, the conservation easement proposed by H.R. 3301 for Apache 
Leap does nothing to address the impacts of the mine to the surface and 
groundwater supply in the region. It also fails to address the imminent 
threat of environmental contamination to the surrounding soils and 
sediments, and the surface and groundwater presented by this massive 
mining project. These are extremely serious consequences which, under 
H.R. 3301, would not be studied or modeled by Rio Tinto and BHP 
Billiton.
The Resolution Copper Mining Project Will Dangerously Deplete 
        Groundwater and Surface Water Supplies Throughout the Region
    The massive mining operation to be facilitated by H.R. 3301 
threatens to dangerously deplete surface and groundwater supplies 
throughout the region--water supplies that are already relied upon and 
desperately needed by others in Arizona. H.R. 3301 does not require 
Resolution Copper to perform any modeling or proper studies of the 
impact of their project on the regional water supply and hydrology. To 
date it is unknown if such work has been undertaken. That which is 
known is briefly summarized below.
      The copper ore body is estimated at its highest point to 
be located 7,000 feet below the surface; however, because the actual 
surface of the Earth at Oak Flat and Apache Leap already sits between 
4,100 feet and 4,600 feet above sea level, the top of the massive ore 
body appears to be actually located at approximately 3,000 feet below 
sea level.
      Given the depth of the ore body, as well as its immense 
size, throughout the 40+ year life of the mining project, Resolution 
Copper will have to aggressively conduct extensive ``dewatering'' 
activities in order to continually pump and remove the surface water 
and groundwater which will increasingly migrate into the enormous 
cavity created by the removed ore and waste rock (and the extensive 
tunnel system needed for the mine), nearly all of which will be located 
well below the elevation of the streams in the region, and will cut 
through the region's groundwater aquifers.
      This depletion of the regional groundwater supply can be 
described as a ``bathtub effect'', in which surface water, tributary 
groundwater, and aquifers located above, beside, and beneath the 
excavated ore body and mining tunnels (on the outside edges of the 
bathtub) constantly migrate to and from the bottom of the bathtub (the 
vacant ore body and mining tunnels). As this process continues over the 
40+ year life of the project, the mine will deplete many billions of 
gallons of water from the surface water and groundwater throughout the 
region, including depleting (and/or contaminating) springs sacred to 
the Apache People. Neither Rio Tinto nor BHP Billiton have the legal 
right to disrupt, deplete or contaminate this water under any law.
      Finally, the alteration of both the subsurface and the 
surface geological structure of this area as the result of the block-
caving process and imminent surface subsidence (which will take place 
as gravity and the weight of the Earth above the enormous cave created 
by this mine cause the cave to collapse in on itself) will alter the 
natural state of the aquifers and surface drainage of the watersheds 
throughout the region forever.
    A microcosm of the dangers to the regional water supply presented 
by a mine of this magnitude has already been realized by Resolution 
Copper as it struggles to dewater the deep mine shaft known as Shaft 
No. 9, located just west of Oak Flat. Shaft No. 9 was drilled by 
Resolution Copper's predecessor in interest in 1973. According to 
permit application documents filed by Resolution Copper with the 
Arizona Department of Environmental Quality, Shaft No. 9 was drilled to 
an approximate depth of 800 feet below sea level. Shaft No. 9 was 
originally pumped free of water through of process called mine 
``dewatering.'' However, when the dewatering process was stopped, 
surface and groundwater flooded the Shaft.
    Resolution Copper estimates in its permit application documents 
that it will take at least 18 months to 2 years to pump all of the 
migrating surface and groundwater out of Shaft No. 9, in order to 
facilitate mining operations. To do this, Resolution Copper predicts it 
would be required to pump at a rate of 2,500 gallons per minute (for 18 
months to 2 years) just to initially dewater the Shaft. To keep Shaft 
No. 9 dry after initial dewatering, Resolution Copper estimates it 
would then have to remove water from the Shaft at a rate of 300 to 800 
gallons per minute throughout the 15 year life of the Shaft. If Shaft 
No. 9 is kept dry for the 15 year life of the Shaft, this single mine 
shaft, by itself, will permanently remove and deplete over 8 billion 
gallons of water from the regional water supply. This would be enough 
to supply at least 46,900 Arizona homes for an entire year.
    The problem of depletion to the regional water supply demonstrated 
in microcosm by Resolution Copper's Shaft No. 9 represents a very small 
fraction of the total depletion to the water supply which will be 
caused by the ``bathtub effect'' created by Resolution Copper's tunnels 
and shafts, and the removal of the copper ore body itself, which is 
located at least 3,000 feet below sea level. This problem will increase 
over the 40+ year life of the project, and it will continue forever 
after Rio Tinto and BHP Billiton remove and sell the copper and other 
metals from the mine and wire their profits to locations outside the 
United States. We Americans will be left with an ever increasing toxic 
stew of hazardous mine wastes, contaminated water, and the inevitable 
collapse of the area. Indeed, the water found in Shaft No. 9 has 
already been shown to be contaminated by Arsenic, Nickel and Beryllium. 
Even if these heavy metals are removed through treatment, the water 
from Shaft No. 9 is likely to be unsafe to discharge into nearby Queen 
Creek because of dangerously high levels of pH and Total Dissolved 
Solids. It also cannot safely be used for irrigation without first 
being blended with water of a better quality.
    The threat to the regional water supply created by dewatering the 
mine will also be multiplied by the construction of stormwater 
retention and impoundment features and other small dams and diversion 
channels, which are designed to temporarily detain any rainfall or 
other sources of water (such as streams and washes) within the 
footprint of the project to avoid any discharge of contaminated water 
into adjacent or nearby creeks and streams. Migration to these water 
sources, however, will nevertheless happen over time. In addition, the 
mining process itself will consume enormous amounts of water. As noted 
above, Resolution Copper does not have the legal right to this water.
    The serious depletion problems also cannot be solved by the use of 
Central Arizona Project Water, as Resolution Copper may suggest. The 
bulk of CAP water is already dedicated and committed to other uses and 
users in Arizona, including for use in future Arizona Indian water 
rights settlements. There simply is not enough CAP water to meet 
Resolution Copper's demand for this giant mining project. In addition, 
the ``banking'' of CAP water that is purportedly being undertaken by 
Resolution Copper, will not eliminate the burden of this mining 
operation on the regional water supply, as CAP water is banked at 
locations near Phoenix, Arizona, for later withdrawal in the Phoenix 
Active Management Area. This is, of course, far from the area of the 
proposed mining project near Superior, Arizona. Therefore, there is no 
enhancement to the local water supply by virtue of Resolution Copper's 
``banking'' CAP water. Any inference by Resolution Copper that there 
will be sufficient water under the legal control of Resolution through 
its CAP banking to conduct its mining operations would be false.
    The dangerous limits to Arizona's water supply are well known. The 
demands on this finite water supply only increase under the continued 
pressure of drought, a fast growing population, and other additional 
demands from development and mining. The impacts on the regional water 
supply presented by the Resolution Project have not been studied or 
subjected to public review and scrutiny. Under the legislative land 
exchange proposed by H.R. 3301, such studies and mandatory public 
review would not be required. It is clear that the impacts to the 
regional water supply will be real and substantial. It would be a 
dangerous leap of faith to facilitate this land exchange without 
studying this matter in great detail and providing the results of such 
studies to the public for review.
The Project Threatens to Contaminate the Surface and Groundwater and 
        Sediments and Soils of the Region
    Resolution Copper has not prepared, or at least has not made 
publicly available, a mining plan or mine closure plan for this massive 
mining project. If they have performed studies or other assessments 
regarding the project's potential to contaminate the surrounding area, 
we have not seen them, and we serious doubt that Congress has seen 
them. We also have not seen the details of the environmental 
protections (if any) that Resolution Copper may intend to put in place 
if Congress allows them to circumvent federal law to acquire and mine 
these lands. Certainly, the protections do not appear in H.R. 3301.
    The United States' short-term experience with mines of this type 
does not provide it with adequate information to evaluate the long-term 
and irreparable impacts of such a large scale block-caving operation 
conducted deep in the Earth--impacts that may take many centuries to 
manifest. In fact, the United States' experience with any mining 
technique is just a little over 200 years old. Yet, we are only now 
experiencing some of the disastrous results of early Spanish, Mexican, 
and American mining practices in the west, which will compound over 
time.
    Mining operations, especially large scale copper mines like the 
block-caving operation proposed by Resolution Copper, eventually result 
in the contamination of the surface and groundwater (and sediments and 
soils), not only in the immediate area of operation, but often, 
throughout the adjoining and related aquifers. It is simply not a 
matter of ``if'', but ``when.'' For example, groundwater is frequently 
contaminated when water from the mining project containing heavy metals 
and other contaminants migrates from the project into surrounding 
aquifers. Surface water is contaminated when liners leak, pipes burst, 
or stormwater impoundments fail. These problems also result in 
contamination to the sediments and soils of the region. We have 
experienced these dangerous events with unfortunate frequency in 
Arizona and New Mexico.
    The threat of significant environmental contamination presented by 
the Resolution Project, coupled with the cumulative environmental 
effects of other significant historic and future mining activities in 
the region, must not be lightly cast aside by Congress, or others who 
may be blinded by Resolution Copper's promise of short term economic 
gain and employment. The dangers of environmental contamination 
presented by this massive mining project are very real. H.R. 3301 would 
bypass the requirement that these dangerous impacts be studied or 
considered and subject to public scrutiny. H.R. 3301 would also 
foreclose the possibility that less dangerous alternatives be 
considered. This is not acceptable to the Apache People, and it should 
not be acceptable to Congress, as the representative of the American 
People.
No Justifiable Rationale Exists for Avoiding the Normal Administrative 
        Land Exchange Process in Favor of H.R. 3301
    Rio Tinto and BHP Billiton have failed to provide any meaningful 
reason why the legislative land exchange proposed by H.R. 3301 is 
justified. They have not explained why the ``hard look'' required by 
NEPA and other important environmental and cultural resource protection 
laws should be bypassed through H.R. 3301. For the Apache People, there 
is no reason.
    The primary justification relied upon by Rio Tinto and BHP Billiton 
to support this massive mining project appears to be its potential to 
create jobs for the local community of Superior, Arizona, and its 
neighbors.
    While it is correct that the construction and operation of the 
Resolution Copper mine will create jobs in the short term (numbers vary 
considerably on the estimated total amount of jobs, type of job, and 
terms of employment), the truth is that the jobs created by this mine 
will not be filled by people from the local Superior community or even 
neighboring towns.
    Resolution Copper, like other mining companies such as Phelps Dodge 
Corporation (now owned by Freeport McMoRan Copper & Gold Inc.), Teryl 
Resources, and others, are developing and expanding their copper mining 
operations throughout Arizona due to increased copper prices. Hundreds 
of job openings for these mining operations have yet to be filled by 
these companies, who are now finding that they must recruit employees 
from as far away as Phoenix or Tucson, and in some instances, from 
outside the State. Hefty signing bonuses are being offered for some 
jobs, and some mining companies, like Freeport McMoRan, have created 
programs which would allow employees who have homes in Phoenix and 
elsewhere to live at the mine during the week and return to their 
families on the weekends. If local job creation is one of the primary 
justifications for the Resolution Copper project, than it would seem 
that this need has already been met by other mining companies in the 
area.
    Finally, it should be noted that by Resolution Copper's own 
accounts, it is only in the ``Pre-feasibility'' phase of development 
for the mining project. See www.resolutioncopper.com/res/whoweare/
project_development_steps.pdf (last visited 10/26/2007). In fact, 
Resolution Copper does not intend to begin mine construction until the 
year 2013.
    Quite simply, there is no urgent need for Congress to act on the 
legislative land exchange proposed in H.R. 3301. If Rio Tinto and BHP 
Billiton desire to acquire Oak Flat and Apache Leap for their mining 
project (which the Apache Tribe urges should never be allowed), 
sufficient time exists for these foreign mining giants to follow the 
established federal administrative land exchange process (which all 
Americans normally must follow), which would require a ``hard look'' at 
this project under NEPA and other laws, and consideration of the 
profound concerns that the Apache People and members of the public 
maintain about this project.
    The Apache Tribe understands the role that mining has played in 
Arizona's brief history as a State. However, there are some places in 
the world that simply should not be destroyed or desecrated under any 
terms or for any reasons. Oak Flat, Apache Leap, and Devils Canyon are 
some of these places. On behalf of the Apache Tribe, and the Native 
Nation's named earlier, we urge you not to support H.R. 3301 in any 
form, and to take all actions within your power to protect these holy, 
sacred, and consecrated lands from harm.
                                 ______
                                 

             STATEMENT OF JOHN RICKUS, PRESIDENT, 
                       RESOLUTION COPPER

    Mr. Rickus. Thank you, Mr. Chairman and members of the 
committee. My name is John Rickus, I am the President of 
Resolution Copper based in Superior, Arizona. I want to thank 
you for the opportunity to present the support of the bill as 
it is an important step toward the development of a large 
underground copper mine in the historic mining district.
    If you look up at the screen you will see the deposit 
exists in this area here, and this area is the old magma mine 
that you can see there. The old body is an extension from the 
old magma mine mineralization. Because of its depth at 7,000 
feet below surface, it will be complex and take a considerable 
period and money to develop.
    I am going to focus on four issues: economic benefits, 
environmental benefits, mitigation of stakeholder concerns and 
fair value to the public.
    Economic. We will spend over $10 billion in capital over 
mine life. Mine will last for at least 40 years from the 
commencement of production. It will generate 1,400 permanent 
jobs, all of which will be high paying, and there will be 
significant additional jobs during the construction phase. In 
addition, there will be indirect jobs, and we anticipate that 
this could be in the region of 6,000 to 7,000 additional jobs 
in the region.
    Our financial models indicate that the tax benefits to the 
United States are substantial, and the tax return is several 
times the return to the shareholders of resolution. This 
project is large and is projected to produce 25 percent of the 
domestic demand for copper in the United States, copper coming 
from Arizona.
    Second, environmental benefits. I have a net positive 
environmental benefit in terms of acreage to the public and 
Arizona. In 2004, we started a voluntary clean up of the 
historical mining area which is to the north of Superior. We 
started a voluntary clean up of this area which had been mined 
since 1910. We are spending $50 million to clean up that area, 
and we will have cleaned up 2,000 acres.
    There were tailings dams, an old smelter, and so on, on 
that site. We didn't have to do that until after our mine 
closed, which will be around 2060 or so, but we did it as an 
act of good faith now. The lands that we have pulled together 
as has been previously mentioned have very high ecological 
value, and we are offering 5,539 acres in return for 3,000 of 
nonriparian land.
    We will deposit tail ends in old open pit mines. There are 
many in the region, and there is plenty of space. We anticipate 
this will result in the re-landscaping of a considerable number 
of acres way in excess of 3,000. Therefore, the land 
potentially affected by mining will be half that which we 
anticipate landscaping.
    Mitigation. Our mining operations will have an impact in 
the Oak Flat area. There is the campground there, and there is 
the Oak Flat area in general. As was indicated, we will provide 
$500,000 for a replacement campground, we will be looking at 
alternative camp climbing domains and we are looking to ensure 
that the climbers can climb in this area, which we own, for as 
long as possible, possibly in perpetuity.
    We are establishing working group with all the climbing 
factions within Arizona. As you know, we are putting a 
permanent conservation easement on Apache Leap--for those that 
don't know it, it is this feature here--and we are including 
some of our private land in that conservation easement.
    Mr. Chairman and members of the committee, there may be 
other areas of concerns to the Apache Nations. We have tried to 
reach out as evidenced by the letters that we have submitted 
for the hearing record, and we would welcome direct dialogue in 
the very near future, and have always said that and have always 
welcomed the Apache Nations into our offices, but they haven't 
come as yet. The exchange provides fair value to the taxpayer.
    Appraisal. We will use Department of Justice appraisal 
methodology. The valuation of the land will ignore our 
ownership of the mining claims, and we are paying for the full 
value of Apache Leap and then placing it into conservation 
easement. These are considerable concessions. There will be 
full cash equalization.
    If the appraisal indicates we owe additional monies it will 
go into a special fund for Federal land in the Coconino, San 
Pedro, Las Cienegas and Sonoran Desert. If it is the reverse 
and the value of the land we are conveying is higher than the 
land received that will be donated to the United States 
government for purchasing land in Superior.
    My last comment concerns royalties. We are of course aware 
of the mine law reform legislation currently working its way 
through this committee and the House. As previously stated, 
even before this process we assumed that the up front payment 
of fair value based on a royalty of the government. We would be 
pleased to work with this committee as to how mining law reform 
might relate to this land exchange and to deal with any changes 
to that appraisal that may be necessitated by passage of such 
reform.
    The intent of this would be to ensure that the value is 
fair, that there is not duplication of payment, to ensure that 
the lands we have offered are fully credited and that the 
public will receive these important offered lands as part of 
the solution. So I reiterate, we are very willing to work with 
this committee on these matters.
    Thank you very much, and I would be happy to answer 
questions afterward.
    Mr. Grijalva. Thank you very much, sir.
    For our last witness, Ms. Sandy Bahr from the Sierra Club. 
Ms. Bahr?
    [The prepared statement of Mr. Rickus follows:]

   Statement of John Rickus, President, Resolution Copper Mining, LLC

    Mr. Chairman and Members of the Subcommittee:
    My name is John Rickus. I am the President of the Resolution Copper 
Mining LLC (``Resolution Copper''), which is a company headquartered in 
Superior, Arizona and which is owned by subsidiaries of Rio Tinto plc 
and BHP-Billiton plc. I am here in support of H.R. 3301 and to briefly 
describe the efforts we have made to ensure that the land exchange and 
other provisions of H.R. 3301 are in the best interest of all the 
parties involved, including the general public.
    The goal of the land exchange, from our perspective, is for us to 
acquire approximately 3,025 acres of National Forest land, which is 
comprised of mining claims that we hold and an existing campground. For 
ease of reference, I will refer to it collectively as the Oak Flat 
parcel. As you can see from our display and the map attached to my 
testimony, the Oak Flat parcel either abuts, or is heavily intermingled 
with, private land that Resolution Copper already owns. Much of that 
private land was the site of the old Magma underground copper mine, 
which operated from 1912 to 1996 and produced 25 million tons of copper 
ore. We are in the midst of spending an estimated $50 million to clean 
up the old tailings and other remnants from that mine and we have spent 
$15 million on the cleanup to date.
    After the Magma Mine was closed in 1996, further exploratory 
drilling revealed the existence of a very large copper deposit located 
adjacent to the old mine workings, but 4500 to 7500 feet below the 
surface of the Oak Flat parcel, where the temperatures are up to 175 
degrees Fahrenheit. We will sink deep shafts and tunnels to access the 
orebody in order to conduct the mining operations. When in operation, 
the mine will provide approximately 25% of the nation's annual needs 
for copper from a safe, domestic source and create 1400 permanent, high 
quality technical jobs--several thousand jobs during mine construction, 
and a very large number of service related jobs in the region. It will 
also generate income, property, severance and other Federal, State and 
local tax revenue that we believe will be several times the amount of 
the value of this project to our company.
    As I just indicated, developing a mine of this magnitude a mile to 
a mile and a half beneath the surface is an extremely expensive and 
financially risky proposition--involving $750 million in exploration 
and feasibility work and $4 billion or more of capital investment, 
before mine construction is finished and mining can commence to produce 
minerals in commercial quantities. To justify this type of investment, 
we believe it is prudent to first own the land where we will operate. 
Fragmented land ownership simply does not promote efficient mine 
permitting, development and operation. In addition, because we will be 
intensively using the Oak Flat parcel for access, exploration and 
development, much of it will lose its recreational value. Ownership of 
that land will also enable us to provide the necessary protection of 
the public from our mining operations.
    The mine will be a deep underground mine. Unlike an open pit mine, 
this mine will have minimal waste rock dumps. We will ship the ore from 
Oak Flat using an underground tunnel with a conveyor to an existing 
open pit mine site, where we will upgrade the copper ore to produce a 
concentrate for sale or further processing. The concentration process 
generates a waste sand known as tailings, that will fill up at least 
one existing old open pit mine, which we will then reclaim and re-
vegetate. We believe that will be a very important long-term benefit to 
the environment.
    Now, we realize that when we ask to remove land from public 
ownership, it is incumbent upon us to try and convey to the public 
lands that have even greater environmental and other public values than 
the lands we are receiving. We have worked with the Forest Service, 
BLM, Arizona Game & Fish, and numerous Arizona conservation 
organizations to achieve that in H.R. 3301.
    As it now stands in H.R. 3301, Resolution Copper will convey 8 
parcels of land, totaling approximately 5,539 acres, to the United 
States in the exchange. Whereas most of the Oak Flat parcel is 
relatively flat, and has no permanent water--the 8 parcels we have 
assembled for exchange are exceptionally rich in ecological, 
recreational and other values and many of them have significant year-
round water resources. The other attributes in these offered lands 
include:
    1)  seven miles of river bottom and riparian land along both sides 
of the free flowing San Pedro River, which is one of the most important 
migratory bird corridors in the United States;
    2)  two miles of trout stream and other fish and wildlife habitat 
along East Clear Creek in the Coconino National Forest;
    3)  possibly the largest, and most ancient, mesquite forest (or 
bosque) in Arizona;
    4)  956 acres of extremely diverse grassland habitat in the 
Appleton-Whittell Research Ranch--an existing preserve jointly managed 
by the Forest Service, BLM and the Audubon Society inside the Las 
Cienegas National Conservation Area;
    5)  four in-holdings in the Tonto National Forest which have 
significant riparian, ecological, cultural, historic and recreational 
amenities, including populations of the endangered Arizona hedgehog 
cactus, and a rare pond fed by a year-round stream; and
    6)  a 160 acre parcel to add to the proposed rock climbing 
recreational area.
    H.R. 3301 provides that we cannot acquire the Oak Flat parcel 
unless we convey all 8 of the parcels to the United States, regardless 
of value. If the 8 parcels appraise at more than the Oak Flat parcel, 
H.R. 3301 requires that we donate the excess value to the United 
States.
    As a result, this land exchange is guaranteed to result in very 
significant net gains to the United States in: 1) river bottoms and 
riparian lands; 2) habitat, or potential habitat, for threatened, 
endangered and sensitive species; 3) public recreational opportunities; 
4) habitat for innumerable species of flora and fauna; 5) important 
bird areas; and 6) year-round water resources--a rarity in many parts 
of Arizona.
    We have submitted letters for your record from various units of 
local government, conservation organizations and other interested 
parties either supporting the entire land exchange, or supporting 
Federal acquisition of the 8 parcels we will be conveying to the public 
in the exchange.
    Mr. Chairman, we have also agreed to several provisions in H.R. 
3301 that are designed to ensure that the taxpayers receive full fair 
market value in this land exchange and that any facilities or 
activities we displace in acquiring the Oak Flat parcel are adequately 
replaced, or improved upon. I will briefly describe those provisions in 
the order they appear in H.R. 3301:
      Subsection 5(a) of H.R. 3301 provides that all appraisals 
will be conducted in accordance with U.S. Department of Justice 
appraisal standards, which are used for all Federal land transactions. 
The Forest Service will write the appraisal instructions and all 
appraisals must be formally reviewed and approved by the agency. This 
means that the appraisal process will be under the government's 
complete supervision and control.
      We realize that mineral appraisals can be difficult, 
especially where unpatented Federal mining claims are involved. 
Accordingly, we have agreed to have the Oak Flat parcel, 75% of which 
is overlain by our unpatented mining claims, appraised as if our mining 
claims do not exist. That is a very significant concession on our part 
and will guarantee that the taxpayers get the full fair market value 
for the land they give up in the exchange. It should be noted that such 
value is determined by the assumption that a royalty exists in favor of 
the government, and which is then paid up front. That provision has 
been in H.R. 3301 and its predecessors since inception, even prior to 
the current mining law reform efforts. Paying that up front--by 
delivery of the sensitive environmental lands--ensures that the 
government receives this value without having to depend on future 
operations for this return. This is, as previously noted, in addition 
to the very substantial local, state and federal taxes that will be 
paid by the operations.
      To protect the portion of the Oak Flat parcel that 
comprises Apache Leap, we have agreed to a permanent 695 acre 
conservation easement for Apache Leap, which will preclude surface 
development of the Apache Leap and which will prohibit us from mining 
underneath the Apache Leap. The easement has been voluntarily enlarged 
this year to include 105 acres of our existing private land. Note that 
as drafted, we will receive no credit in the appraisal for the 
easement. We understand that Apache Leap holds cultural and historic 
importance to the Apache tribes and this is one of the main reasons for 
the easement. H.R. 3301 contemplates that the easement will be held by 
a governmental or NGO body, which may include the Apaches. We have also 
provided a $250,000 endowment to administer the easement. As you know, 
H.R. 3301 also states the intention of Congress that we enter into an 
agreement with interested Apache to allow for continued acorn gathering 
at the Oak Flat Campground and requires that the JI-Ranch parcel that 
we will convey to the Forest Service as part of the exchange, will be 
available for acorn gathering. In addition, we have on numerous 
occasions both formally and informally indicated to a number of Apache 
tribes that we stand ready to engage in dialogue with them to see if 
there are other areas where we can address their concerns.
      As for outdoor camping and recreation, H.R. 3301 
specifies that the existing Forest Service campground at Oak Flat, 
which has 16 minimally developed campsites, will be replaced with a new 
campground or campgrounds, and Resolution Copper will pay up to 
$500,000 of the costs thereof.
      Also as you know, Mr. Chairman, portions of the Oak Flat 
parcel and adjacent areas, including areas of our existing private 
land, are areas currently used for rock climbing and bouldering. To 
accommodate these activities, we have agreed to three separate actions. 
First, subsection 8(b) of H.R. 3301 facilitates the establishment of a 
new rock climbing State Park, if the State so chooses. We have already 
spent in excess of $1.5 million to identify and develop the climbing 
resource in the Park area, and to buy private land for inclusion in it. 
Our road builders have studied the proposed access road to the Park, 
and are confident we can build it to the specifications set forth in 
H.R. 3301 for the $1 million we have pledged. Secondly, we signed a 
private license agreement with the Access Fund that authorizes 
continued rock climbing on two parcels of our existing private land 
where climbers were previously trespassing, and on one parcel we will 
acquire from the Forest Service. Thirdly, we are in the process of 
forming a climbers' working group to discuss ongoing access and 
climbing issues and to expand and enhance these opportunities, so long 
as it is safe to do so.
      If the government appraisal process determines that we 
owe additional funds in the exchange, section 5(b) of H.R. 3301 
requires us to pay full cash equalization into a special fund to be 
used for the acquisition of new Federal land in either the Coconino 
National Forest, San Pedro River Corridor, Las Cienegas NCA, or in the 
Sonoran Desert.
    My last comment concerns royalties. We are, of course, aware of the 
mining law reform legislation currently working its way through this 
Committee and the House. As previously stated, even before this process 
we assumed the up front payment of fair value based on a royalty to the 
government. We would be pleased to work with the Committee as to how 
mining law reform might relate to this land exchange and to deal with 
any changes to that appraisal that may be necessitated by passage of 
such reform. The intent would be to ensure that the value is fair, that 
there is not duplication of payment, to ensure that the lands we have 
offered are fully credited and that the public will receive these 
important offered lands as part of the solution. So, we are very 
willing to work with this Committee on these matters.
    That completes my testimony. I very much appreciate the opportunity 
to testify before you today and stand ready to answer any questions 
that you may have. It is my hope that H.R. 3301 will now proceed with 
all due pace so that we can continue the work on this critical project.
                                 ______
                                 

              STATEMENT OF SANDY BAHR, SIERRA CLUB

    Ms. Bahr. Mr. Chairman, members of the Subcommittee, for 
the record, my name is Sandy Bahr, I am the Conservation 
Outreach Director for the Sierra Club's Grand Canyon Chapter in 
Arizona. I appreciate the opportunity to provide information on 
H.R. 3301. My comments will focus primarily on the problems 
with the exchange, the negative impacts of the mine it will 
facilitate and why it is bad policy to avoid the National 
Environmental Policy Act.
    First, I would like to address the loss of Oak Flat picnic 
and campground. H.R. 3301 allows Resolution Copper Company to 
privatize Oak Flat. Oak Flat was recognized by President 
Eisenhower as an important area back in 1955 when he signed 
Public Land Order 1229. It specifically put this land off 
limits to future mining activity and reserved it for 
campgrounds, recreation and other public purposes.
    Oak Flat provides many recreational opportunities for 
Arizonans including for the people in the local communities. 
Activities include hiking, camping, rock climbing and birding. 
The area has four bird species that are on the National Audubon 
Society's watch list of declining species that are of national 
conservation concern. Also, the endangered Arizona hedgehog 
cactus is found in the area. Oak Flat is an important part of 
our history and also has significant values for Native peoples 
as you have heard earlier.
    H.R. 3301 rescinds Public Land Order 1229. In Section 10 of 
the bill titled Miscellaneous Provisions it revokes any public 
land order that withdraws Federal land. It is a bad precedent 
and a bad message for the Congress to give up an area that has 
been protected for more than 50 years. We are also concerned 
about potential threats to Devils Canyon, which is nearby.
    Devils Canyon provides important riparian habitat in a 
state where much of our riparian habitat has been degraded or 
destroyed. Considering its proximity to the proposed mine and 
the amount of water the mine will utilize there are significant 
risks of dewatering Devils Canyon.
    H.R. 3301 allows Resolution Copper to bypass the National 
Environmental Policy Act as would be required if this land 
exchange was evaluated through the administrative process. An 
administrative exchange would require an environmental impact 
statement including an examination of alternatives, the 
environmental impacts, the cumulative impacts and possible 
mitigation of the impact.
    Without it, there are key questions that are outstanding 
including, is it necessary to give up Oak Flat for this mining 
operation? If the information that Resolution has provided on 
this proposed mine is accurate it will be a large copper mining 
operation, perhaps the largest in Arizona and one of the 
largest in the United States.
    To allow the company to circumvent the National 
Environmental Policy Act on such a large mine that has great 
potential to negatively affect the surrounding environment and 
to leave all those unanswered questions would be wrong. State 
laws are not adequate to ensure this level of analysis. There 
is no state environmental policy act and no act that looks at 
the larger public interest relative to this exchange.
    It is clear that Resolution Copper will benefit from the 
exchange. It is less clear that the public is getting a fair 
return or that it is worth the loss of important public lands. 
It is difficult to understand how the exchange could move 
forward without solid appraisals including on the value of the 
copper itself.
    Resolution has indicated that it is a large ore body. Their 
website right now says 48 billion pounds of copper. If valued 
at $3 per pound, the ore body would be worth $144 billion. 
Another concern with the mine is its ultimate reclamation. 
Arizona has relatively weak requirements in this area. Right 
now our state contains over 100,000 abandoned mines and many 
contaminated sites.
    I just want to quickly touch on some of the inherent 
problems of land exchanges. They can be effective tools, but 
there are certainly many pitfalls. They should be used 
judiciously. Even with administrative exchanges often the 
public lands are under valued while the private lands are over 
valued, and there have been numerous reviews to indicate that. 
Arizonans have made it clear how they feel about land exchanges 
by six times since 1990 rejecting land exchange authority for 
the Arizona State Land Department.
    In summary, I just want to say H.R. 3301 does not represent 
a land exchange that is in the broader public interest. We lose 
Oak Flat Campground. If an area that has been protected from 
mining and other negative actions for over 50 years can be 
given up so readily, what is next? What is really protected? 
There is no real environmental analysis or significant public 
involvement process, and there are many unanswered questions. 
Answering them after the fact does not ensure the public's 
interest is served.
    The loss of Oak Flat and any protections for it and the 
withdrawal of the protections in the bill, the failure to 
provide an adequate analysis of the exchange up front, the 
magnitude of the potential impacts of this land exchange, the 
failure to include any appraisal or valuation of the minerals 
up front and the potential threat to Devils Canyon and Queen 
Creek, for all of those reasons, the Sierra Club is strongly 
opposed to this land exchange. Thank you.
    [The prepared statement of Ms. Bahr follows:]

  Statement of Sandy Bahr, Sierra Club, Grand Canyon (Arizona) Chapter

    Mr. Chairman, members of the Subcommittee, thank you for the 
opportunity to provide information on H.R. 3301 Southeast Arizona Land 
Exchange and Conservation Act of 2007. My comments will focus primarily 
on the problems with the exchange itself and the negative impacts of 
the mine it will facilitate. I will outline the concerns about the 
particular bill, why it is bad policy to avoid the National 
Environmental Policy Act review and analysis process, and also address 
some of the inherent problems with land exchanges themselves.
Loss of Oak Flat Campground
    First, I would like to address the loss of Oak Flat Picnic and Camp 
Ground. H.R. 3301 will allow Resolution Copper Company (Rio Tinto--55% 
owner--headquartered in the United Kingdom, and Broken Hill 
Properties--45% owner--headquartered in Australia), which acquired the 
old Magma Mine near Superior, Arizona to privatize Oak Flat Campground.
    Oak Flat campground was recognized by President Eisenhower as an 
important area back in 1955, when he signed Public Land Order 1229 (see 
Exhibit A, PLO 1229) which specifically put this land off limits to 
future mining activity and reserved it for camp grounds, recreation, 
and other public purposes. Oak Flat provides many recreational 
opportunities for Arizonans, including for those in the local 
communities, and for others from around the country. Recreational 
activities in the area include hiking, camping, rock climbing, birding, 
bouldering and more (see Exhibit B, photo of Oak Flat)
    Oak Flat is a key birding area. Four of the bird species that have 
been sighted at Oak Flat are on the National Audubon Society's watch 
list of declining species that are of national conservation concern 
including the black-chinned sparrow, Costa's hummingbird, Lewis' 
woodpecker, and gray vireo. The endangered Arizona Hedgehog cactus 
(Echinocereus triglochidiatus var. arizonicus) also inhabits the Oak 
Flat area and is threatened by this proposed mine.
    Oak Flat is an important part of our history and also has 
significant cultural values for native peoples, including for acorn 
collection. Because of the significance of Oak Flat, its history of 
providing a respite for travelers and those seeking relief from the 
hubbub of the urban environment, the significance of the area for the 
Apache people, and the important recreational opportunities it offers, 
the Sierra Club is strongly opposed to this land swap.
    In addition to privatizing this important area, H.R. 3301 also 
rescinds P.L.O. 1229. In Section 10 of the bill, titled ``MISCELLANEOUS 
PROVISIONS'', it revokes any public land order that withdraws Federal 
land or the land to be conveyed to Arizona State Parks. It is 
disturbing to see this withdrawal of the protection for Oak Flat. 
Considering all the pressures on our public lands, the important 
services and opportunities they provide, and the important respite from 
the increasing urbanization they provide, it is a bad precedent and a 
bad message for the Congress to give up to a mining company an area 
protected by President Eisenhower more than 50 years ago.
Threats to Devils Canyon
    Devils Canyon is located in the Tonto National Forest and on State 
Trust Lands near the proposed mine, just northeast of the town of 
Superior. It flows into Mineral Creek which is a tributary of the Gila 
River. Devils Canyon provides important and all too rare riparian 
habitat in a state where much of our riparian habitat has been degraded 
or destroyed--most estimates indicate that more than 90 percent has 
been lost to water diversions, groundwater pumping, and other 
activities. It is an area enjoyed by hikers and climbers and those 
seeking some relief from the heat. Sycamores and Arizona alders thrive 
on Devils Canyon's water and also provide valuable habitat for 
wildlife. (See exhibit C--photo of Devils Canyon.)
    Considering its proximity to the proposed mine and the amount of 
water the mine will utilize, between 17,000 and 19,000 acre feet of 
water per year (see RCC website.), the risks of dewatering Devils 
Canyon are significant. Banking Central Arizona Project water at a 
remote location as the company is currently doing will not protect this 
important riparian area.
No Meaningful Environmental Analysis
    H.R. 3301 allows Resolution Copper Company to bypass the National 
Environmental Policy Act (NEPA), as would be required if this land 
exchange was evaluated through the administrative process. An 
administrative exchange would require a NEPA Environmental Impact 
Statement on the exchange itself, including an examination of 
alternatives, the environmental impacts, the cumulative impacts 
(including past and anticipated impacts in the area), and possible 
mitigation of the impacts. This type of analysis helps the public 
better evaluate whether they are getting a fair exchange and also 
evaluate the true environmental impacts of such an exchange. A NEPA 
analysis can identify a less environmentally harmful alternative as 
well. It is clear that Resolution Copper Company (RCC) will benefit 
enormously from this exchange. It is less clear that the public is 
getting a fair return on the loss of Oak Flat, the possible damage to 
Devils Canyon, and the threats to Apache Leap.
    Because there is no real NEPA process associated with the exchange, 
there is no opportunity for the public to review a Mining Plan of 
Operation. Instead, what we have is a shifting landscape of different 
answers to the same questions. We might argue with the agencies about 
how much information and analysis needs to be done on the exchange in 
an administrative process, but at least there is opportunity to make 
that argument.
    There are key questions outstanding on this proposal which make it 
impossible to say the exchange is in the larger public's interest. 
Where is all the mining waste going to go? What are they going to do 
with the tailings? Is this a sulfide ore, which is often the case for 
ore that is below the water table? If it is, how are they going to 
address the acid mine drainage from the rock dumps? How are they going 
to process the ore? At one point they suggested using the leach pad at 
Pinto Valley, but if their estimates on the amount of ore are accurate, 
they could only process a fraction of the ore at that leach pad. Are 
they going to smelt the ore? If so, where? Clearly there are 
significant air quality issues associated with that, not to mention 
considerable energy use.
    Resolution Copper Company indicates that they will complete an 
Environmental Impact Study in 2009. That study will have little 
relevance if this bill has already passed and the land exchange has 
been consummated. If done properly and with a solid open public 
process, an environmental analysis can inform the proposed action. A 
study after the fact does not allow that, plus there will be no 
opportunity to choose the no action alternative or a less 
environmentally damaging alternative. We will not know the effects of 
this proposed mine on Devils Canyon until after the fact. We will not 
know if it is really necessary for the public to give up Oak Flat in 
the exchange or if they can mine this ore body without it until after 
the deal is done. The study after the fact might make people feel 
better about the deal, but its value is negligible, at best, as it will 
not change the outcome.
    If the information that Resolution Copper Company has provided on 
this proposed mine is accurate, it will be the largest mining operation 
in Arizona. It would be larger than the Phelps Dodge Morenci Mine and 
one of the largest working copper mines in the United States. To allow 
the company to circumvent the National Environmental Policy Act on such 
a large mine that has great potential to negatively affect the 
surrounding environs and that has so many unanswered questions 
associated with it, would just be wrong.
Value of the Land and the Ore
    A critical issue that is not addressed by this legislation is the 
value of the lands that RCC will acquire. There is no real discussion 
of the known and anticipated mineral values on the U.S. Forest Service 
(public) lands. It is difficult to understand how this land exchange 
could move forward without solid appraisals, including on the value of 
the copper itself. The Mineral Report and Feasibility Study help 
provide the basis for the appraisal. The value of the exchange cannot 
possibly be properly evaluated without that.
    Resolution Copper Company has indicated that this is a large rich 
ore body. The company's website indicated that there were 30 billion 
pounds of copper last month. This month, the website says it is 48 
billion pounds or 600,000 tons of copper per year for 40 years. That is 
a huge shift in the numbers in just one month. If valued at three 
dollars per pound, the ore body would be worth $144 billion. If a Net 
Smelter Royalty of only three percent was applied for purposes of 
placing a value on the minerals, RCC should be giving the public $4.32 
billion in exchange lands. What they are offering is a tiny fraction of 
that.
Weak Reclamation Requirements
    Another concern with the mine is its ultimate reclamation. Arizona 
has weak reclamation requirements and has seen the negative impacts of 
mining for decades. Our state contains over 100,000 abandoned mines and 
while there is a fund for addressing abandoned mines, there is little 
allocated to it. We have many contaminated sites that are directly 
attributable to mining including the Pinal Creek site, east of this 
proposed mine, and the Iron King Mine, which has been proposed for 
listing on the federal Superfund National Priority List.
    The financial assurance mechanisms are not very strong either as 
Arizona does not require cash or bonds or paid-up insurance, but 
instead will accept ``corporate guarantees'' or a company's promise to 
pay. If the company goes bankrupt before reclamation is complete, such 
as is the case with some of the ASARCO mines, then the public, the 
taxpayers, have to pay for any reclamation.
Inherent Problems with Land Exchanges
    While land exchanges can be a tool for conservation, it is a 
limited tool and the pitfalls are many. It should be used very 
judiciously. Even with an administrative exchange that would include 
examination of alternatives and would look at the environmental 
impacts, it is difficult to determine if the public's interest is 
really being served. Even though the federal land management agencies 
are required to do thorough reviews and ensure that a trade is in the 
public interest, there are significant problems. The General Accounting 
Office (GAO) issued a report in June 2000 where it examined a total of 
51 land exchanges, most of which occurred in the west (BLM and the 
Forest Service: Land Exchanges Need to Reflect Appropriate Value and 
Serve the Public Interest, GAO/RCED-00-73, June 2000.) The GAO auditors 
found that often the public lands were being undervalued while the 
private lands were being overvalued, resulting in significant losses to 
taxpayers. The agency also found that many of these exchanges had 
questionable public benefit.
    The GAO discovered that there were some exchanges in Nevada in 
which the nonfederal party who acquired federal land sold it the same 
day for amounts that were two to six times the amount that it had been 
valued in the exchange. While that would not necessarily be the case 
here, we do know that the non-federal party is likely to make billions 
of dollars off this land, far short of what the public will get in 
return.
    While the GAO was examining administrative exchanges, it noted that 
there are inherent problems with exchanging lands no matter the 
mechanism. In particular, it noted that there are no market mechanisms 
to address the issues relative to value for value. The GAO indicated:
        At least some of the agencies' continuing problems may reflect 
        inherent underlying difficulties associated with exchanging 
        land compared with the more common buying and selling of land 
        for cash. In land exchanges, a landowner must first find 
        another landowner who is willing to trade, who owns a desirable 
        parcel of land that can be valued at about the same amount as 
        his/her parcel, and who wants to acquire the parcel being 
        offered. More commonly, both landowners would simply sell the 
        parcels they no longer want and use the cash to buy other 
        parcels that they prefer. In this way, the value of both 
        parcels is more easily established when they are sold in a 
        competitive market, both parties have more flexibility in 
        meeting their needs, and there is no requirement to equalize 
        the values of the parcels. Difficulties in land exchanges are 
        exacerbated when the properties are difficult to value--for 
        example, because they have characteristics that make them 
        unique or because the real-estate market is rapidly 
        developing--as was the case in several exchanges we reviewed. 
        Both agencies want to retain land exchanges as a means to 
        acquire land, but in most circumstances, cash-based 
        transactions would be simpler and less costly.
    They went on to say that program improvements could not address 
these inherent difficulties and recommended that Congress ``consider 
directing the agencies to discontinue their land exchange programs 
because of the many problems identified and their inherent 
difficulties.''
    If land exchanges are ever suspended and these more market-oriented 
mechanisms used, it would be critical that the agencies focus on 
selling smaller parcels that are not contiguous with the larger public 
lands and then use the dollars to finance acquisition of inholdings and 
key ecological areas.
    Land exchanges have been very controversial in Arizona, which may 
be one more reason that large corporations do not want to go through 
the National Environmental Policy Act process which includes 
significant public involvement. Arizonans have made it clear how they 
feel about land exchanges by rejecting six times land exchange 
authority for the Arizona State Land Department.
    In 2003, an independent entity, the Appraisal and Exchange Work 
Group, was formed to review Bureau of Land Management (BLM) land 
exchanges. The Work Group's report concluded that BLM's land appraisals 
were inappropriately influenced by the managers wanting to complete the 
deals and that these unduly influenced appraisals cost the public 
millions of dollars in lost value in exchanges with private entities 
and state governments.
    One land swap resulted in an ethics violation investigation of 
Kathleen Clarke, the BLM Director at the time. The proposed San Rafael 
Swell land exchange would have cost federal taxpayers $100 million 
because the BLM lands were so undervalued. The Office of Inspector 
General's Report on the San Rafael Land Exchange found that several BLM 
employees devalued the public lands and kept information from Congress 
(Page 23 of Report).
Summary of Concerns about H.R. 3301
    H.R. 3301 does not represent a land exchange that is in the broader 
public interest. A large contiguous parcel of public land--3,025 
acres--that includes Oak Flat Campground is conveyed to Resolution 
Copper Company. Approximately 4583 acres is conveyed to the public, 
some of it in rather small parcels, but even the larger parcel by the 
San Pedro is significantly threatened by future nearby development.
    It is pretty clear that President Eisenhower believed he had 
protected Oak Flat when he issued the Public Land Order. If an area 
that has been protected from mining and other negative actions for over 
50 years, can be given up so cavalierly, what is next? This sets a 
terrible precedent. This proposed land swap should be rejected and the 
impacts of such a major action properly evaluated.
    There is no real environmental analysis or significant public 
involvement process. What will this do to Devils Canyon? Where will the 
ore be processed? What about the rock waste? How will the concerns of 
the native peoples be addressed? And most of all, what is the rush? Why 
is there not time allotted for adequate public review, analysis, and 
appraisal? Even if RCC started moving forward with plans to mine today, 
it is unlikely they would be ready to mine this copper for several 
years. There is plenty of time to do a thorough analysis and look at 
the alternatives, the costs, the values of the lands--including 
environmental and cultural--and to consider the public's concerns.
    For these reasons and more, we oppose H.R. 3301.
    Again, thank you for the opportunity to discuss this important 
issue.
    [NOTE: The exhibits submitted for the record have been retained in 
the Committee's official files.]
                                 ______
                                 
    Mr. Grijalva. Thank you very much. Let me start. Mr. 
Chairman, Mr. President, thank you for being here today and 
sharing your opinions and your views with us. Let me ask a 
question that comes up all the time relative to the discussions 
about this land exchange. Were either of the tribes that you 
represent part of the initial discussions on this proposed land 
exchange, if you wouldn't mind answering?
    Mr. Bear. No, Ft. McDowell was not. For that matter, Ft. 
McDowell was not contacted until about six months ago after a 
meeting with Senator Kyl, and then there were attempts, 
telephone calls that happened at that point by Resolution 
Copper that we did not return because we did not feel at that 
time that we were prepared to talk to Resolution Mining.
    We feel at this time this is a congressional issue, that we 
need to be here at this table with Congress to talk this out. 
Thank you.
    Mr. Grijalva. Mr. Chairman?
    Mr. Nosie. Yes. San Carlos takes the same stand on that 
because we were not contacted, and as far as the way we 
understand is that it would be the United States government 
contacting us on something highly this dramatic as far as where 
the tribe stands, but at this point, no.
    Mr. Grijalva. OK. There is a provision in the legislation 
that would find an alternative site for the acorn gathering 
should acorn gathering no longer be safe on the Oak Flat 
parcel. Does the provision for alternative site address the 
religious and cultural significant points that you made during 
your testimony?
    Mr. Bear. Mr. Chairman, let me kind of add a little more to 
the last question, then I will answer this one. Further yet in 
the question you asked earlier, RCC, Resolution Copper Company, 
did not do their diligence in their process in answer to your 
last question. Now, in answer to your question about the 
replacement for acorn gathering, there is no replacement. As 
you well know, land is land, and what it is, and what my people 
hold, as I mentioned, in their hearts dear to their hearts.
    That is a spiritual type thing that we as Native people do. 
We believe that obviously God has given that land to us, and 
that is there for all of us to benefit from.
    Mr. Grijalva. Mr. Chairman?
    Mr. Nosie. Chairman, it is the same thing. It is not the 
acorn issue, it is the fact that it is a spiritual place. With 
spirituality, everything is through a corridor, and you have to 
really understand the religion to really know the significance 
of it. We have never been given that opportunity in America to 
express that, so, no.
    Mr. Grijalva. Yes, but if I may, Mr. President and Mr. 
Chairman, there is a provision in the legislation that would 
express the intention of Congress that Resolution Copper can 
negotiate an agreement with your tribes on acorn gathering in 
the Oak Flat area, a concern, and react to one of the points in 
there that that agreement would be revokable at any time. Your 
reaction to that?
    Mr. Bear. Mr. Chairman, I can answer that. There is a six 
month period to do that, and we feel that is not acceptable. 
That is a one way agreement, and six month time is not 
sufficient. There is some trust responsibility here as well 
from the Federal Government as trustees over Indian country. We 
feel they don't want to avoid that. We want to make sure that 
the Federal Government does participate in that.
    Further yet, there is room for renegotiation on this. There 
is no legal recourse that they can honor if this land is every 
conveyed. That is some of our questions.
    Mr. Grijalva. OK. The last point, and then I will have some 
follow-up questions for the other witnesses, but to both the 
Chairman and the President, a suggestion that has been made 
that a third-party engineering review conducted to gauge the 
potential impact of mining operation on Apache Leap to assess 
whether that conservation easement is adequate or not, how do 
you see that third-party engineering review?
    Mr. Bear. Mr. Chairman, definitely there is a need for that 
third-party review of that, not only of the easement, but also, 
we ask for the hydrological research needed to be done. In 
addition, what happens if copper prices all of a sudden plummet 
as we live in the economy that we live today? What assures, 
what guarantees that water will be replaced back into the 
aquifer if Resolution Copper Mining does leave?
    There are some hydrologic engineering reports that need to 
be done. That was in my written statement, and also in my 
detailed statement that is already there.
    Mr. Grijalva. Thank you. Mr. Chairman, any comments?
    Mr. Nosie. No. The same thing applies.
    Mr. Grijalva. Thank you.
    With that, Mr. Bishop?
    Mr. Bishop. Mr. Chairman, clarify this for me. Is both Oak 
Flat and Apache Leap considered a land of religious 
significance to the Apache Nation?
    Mr. Nosie. Yes, the whole top of the mound on Oak Flat.
    Mr. Bishop. You mentioned some other tribes there as well. 
Does the Hopi Nation, for example, have that same view of the 
land?
    Mr. Nosie. Yes. We have had a joint signature opposing the 
bill.
    Mr. Bishop. All right. Ms. Bahr, I asked earlier if anyone 
knew why the administration had separated or set aside Oak 
Flat, and no one has an institutional memory to know why it was 
actually done. Does your organization know why? I don't really 
want speculation here, I just want to know, do you know why it 
was set apart?
    Ms. Bahr. Congressman Mr. Bishop, all I can refer to is the 
public land order which was issued, and in the public land 
order they said that it was for campgrounds, and for picnicking 
and other public purposes. It was part of a larger public land 
order. It has been an area that is popular for camping and 
picnicking for some time. It is on the way between Superior and 
the Globe area, and is a nice stop over.
    Mr. Bishop. Is that a long answer for saying no, we really 
don't know why it was specifically set apart?
    Mr. Rickus, if I could ask you just one question. In some 
respects I really don't understand why you need the land 
exchange in the first place. Last week while the mining law was 
being debated in this room we heard expert testimony from 
environmental groups saying that anybody could buy public land 
for $250 an acre, and that is why they were pushing the mining 
law reform bill.
    They also said there are no environmental laws that are 
being followed under existing law, and that is why the change 
had to take place. So my question is, why do you need a land 
exchange? If my calculations are correct all you need to do is 
pay $7,560.50, and the mine would actually be yours.
    Mr. Rickus. The campground is prohibited with entry, and 
the land exchange includes the campground.
    Mr. Bishop. So you mean under existing law you can't really 
buy public land for $250 an acre and operate under the 1872 
environmental laws?
    Mr. Rickus. We could.
    Mr. Bishop. OK. Actually, I think my question was in the 
negative, and you answered in a positive, but I think we both 
said the same thing.
    Mr. Rickus. I think so, yes.
    Mr. Bishop. You can't buy it for $250 an acre, right?
    Mr. Rickus. No.
    Mr. Bishop. OK. I yield.
    Mr. Grijalva. Mr. Flake?
    Mr. Flake. Thank you.
    Mr. Nosie and Mr. Bear, you had mentioned that you have not 
sat down with Resolution Copper to this point to speak directly 
to them?
    Mr. Bear. Yes. Thank you, Mr. Flake. We met with Senator 
Kyl about six months ago, and it was after that that we had 
calls from Resolution Copper on this issue. I don't think we 
talked to them at all, and we felt that the due diligence, the 
responsibility of Resolution Copper, was not honored in this 
because we were not contacted in this process.
    However, we don't feel we need to be contacted at this 
point because we feel this is something that we are talking 
with Congress about at this point. Now, we are still in the 
process of analyzing this situation to see what benefits or how 
it impacts us. I mean, there is a lot of things here, so many 
that all these things need to be analyzed properly. Thank you, 
Mr. Flake.
    Mr. Flake. Mr. Nosie, you have any comment there?
    Mr. Nosie. No, but we did get information out of Town of 
Globe, the possibility of this mining. As anything else, you 
know, get the ball rolling and then have the tribes at the very 
end. But, again, you know, we felt that there is the trust 
responsibility with the Federal Government and the tribe to 
make those initial contacts of the possibilities of what may 
occur.
    Mr. Flake. As it stands, whether this exchange goes through 
or not, Resolution owns a significant chunk of land. In fact, 
they own more now than they would after the exchange.
    Mr. Rickus, is that correct?
    Mr. Rickus. That is correct, yes.
    Mr. Flake. Whether this exchange goes through or not it 
would seem that to find some kind of common ground and to 
discuss differences that you have would be useful I would 
think.
    Mr. Rickus. And I totally agree. In fact, when we first 
embarked on this project in 2002 we were asked by the Forestry 
Service that they would be responsible for liaison with the 
Apache Nations and would they mind that we just stayed in the 
background there, and so we did. In early 2005, we were 
endeavoring to engage with the San Carlos in particular and the 
White Mountain, and we were scheduled to meet with them before 
the Senate hearing last year.
    A resolution was passed by the two Nations not to talk to 
us, and so the meeting was canceled. We have since then been 
endeavoring to make contact, and there are a series of letters, 
which you have, which outline the attempts that we have made. 
Our door is always open, and we have made that point several 
times, that any members of the Apache Nations can come and talk 
to us.
    Our filing cabinets are open. They can look at what we have 
got. Anything but confidential information about personnel, 
salaries and so on is open for them to examine whenever they 
wish. That invitation is open and remains open since.
    Mr. Flake. I would simply say that it would make our job 
easier here I think if the parties could sit down and discuss 
some of the differences and present them to us in that way.
    Ms. Bahr, you brought up NEPA. Is there anything in the 
agreement at all in the legislation which would prohibit the 
Forest Service from moving through with some kind of NEPA 
analysis?
    Ms. Bahr. Mr. Flake, there is nothing that prohibits it, 
but if the land exchange goes through it is NEPA after the 
fact. There is no opportunity to change the land exchange or to 
determine that it is not in the public's interest which would 
be required if it was an administrative exchange. They have to 
determine that it is in the public's interest, and also, you 
know, look at some alternatives. So it would be after the fact.
    Mr. Flake. You mentioned that Arizonans had turned down six 
times some types of land exchanges or efforts to do something. 
Could you explain that a little further?
    Ms. Bahr. Absolutely. Mr. Flake, six times the legislature 
has placed on the ballot measures that included land exchange 
authority for the State Land Department, and six times the 
voters have rejected that. It is since 1990 because it was 
after a Court decision that determined they were 
unconstitutional.
    Mr. Flake. How many land exchanges have occurred in Arizona 
in the last couple of decades say?
    Ms. Bahr. I couldn't give you the exact number. I would be 
happy to look that up. There have been some Federal land 
exchanges, and many of them have been controversial.
    Mr. Flake. Has the Sierra Club ever supported a land 
exchange to your knowledge?
    Ms. Bahr. In Arizona?
    Mr. Flake. Yes.
    Ms. Bahr. In recent history, I would say not in recent 
history.
    Mr. Flake. So even with the Forest Service testifying that 
the ecological trade is a good one, is a net plus for the 
taxpayers, or the citizens, or whatever, in terms of ecological 
value, that still doesn't persuade the Sierra Club or others to 
even consider any land exchange?
    Ms. Bahr. Mr. Flake, I think it is debatable as to whether 
it is a net ecological value, but one of the concerns that we 
have about land exchanges, which I did put in my written 
testimony, is that it is hard to get a handle on what is in the 
public's interest and the values associated with it, and that 
often the public lands are under valued and the private lands 
over valued in those exchanges, and that, you know, they set up 
one part of the state up against the other part of the state 
and sometimes different parts of the country and that is one of 
the reasons they are controversial because the values over here 
aren't necessarily the same over here, but they are still 
important.
    Mr. Flake. Thank you.
    Mr. Grijalva. Thank you, Mr. Flake.
    Ms. Christensen, any questions?
    Ms. Christensen. No. Having just come in, I will defer 
questions to anyone else.
    Mr. Grijalva. Thank you. Let me follow-up with the other 
witnesses some questions.
    Mr. Rickus, you mentioned that the Forest Service said to 
defer discussions with the tribes because they were going to be 
the liaison to that discussion. So there were no conversations 
prior to the submission of the previous version of this 
legislation in the 109th Congress from your company to the 
tribe?
    Mr. Rickus. There were some conversations in early 2006, 
and if my memory serves me right, the hearing was in April or 
May. So we did have conversations earlier than that, yes, and 
correspondence.
    Mr. Grijalva. With the tribes?
    Mr. Rickus. With the tribes, but never formally with the 
tribal councils, always informally. I might inform you that our 
company had a joint venture and an office on the San Carlos for 
two years where we were endeavoring to reach agreement to 
explore for copper deposits on the San Carlos Reservation with 
them. That was our exploration group, and that occurred I think 
in 2002.
    Mr. Grijalva. OK. And briefly, I think Mr. Flake brought 
the point up about discussions, and I concurred, that you heard 
from the tribal leaders about the continued opposition because 
they feel the land exchange doesn't address very important 
cultural and religious significance to both tribes. How do you 
respond to that question, and how do you see that question even 
mitigated?
    Mr. Rickus. We are obviously very sensitive to all issues, 
and we from day one tried to mitigate stakeholder concerns. We 
are very happy to discuss such sensitive issues at any time and 
would really welcome the opportunity to sit down with both 
Chairmen and Chairmen of other Apache Nations to see how we can 
resolve and mitigate their concerns.
    Mr. Bear. Mr. Chairman, may I comment?
    Mr. Grijalva. Certainly.
    Mr. Bear. Thank you. The Yavapai people, my people, are not 
Apache, we are Yavapai. The linguistics are totally different, 
so we have worked together in the past because of our close 
association brought closer together by forest relocation and 
imprisonment. So my people, the Yavapai, are not Apache, 
although we have worked close together with the Apache.
    Now, further, the question about the why not just work 
together or supporting working together, we believe that this 
is a Federal bill that is being proposed, therefore, we are 
here to talk to you, that there is some trust responsibility 
here on behalf of the Federal Government, so we bring this up 
to you.
    Now, Ft. McDowell Yavapai Nation was never contacted until 
six months ago. Thank you.
    Mr. Grijalva. OK. Your point being that this is a 
government to government discussion?
    Mr. Bear. Yes.
    Mr. Grijalva. OK. Mr. Rickus, in a recent letter that we 
received from the Governor, she expressed concerns with the 
alternative climbing park. She stated in there quite pointedly 
that Resolution Copper should cover the projected $8 million in 
capital cost. Your response to that letter and to that request 
from the Governor?
    Mr. Rickus. When we first promoted the idea of a state 
park, the State Park Board were convinced in their studies that 
there would be 150,000 visitors a year to the park and that it 
would be an economically viable concern. When a state parks 
bill was passed to that effect, the documentary evidence 
indicates that they were convinced that it was going to make 
money and be a viable state park.
    We have since talked to the Governor's staff about this 
issue and have indicated to them that the best thing that they 
can do would be to sit back and watch just how many climbers 
would visit this place, and if they were encouraged to form a 
state park due to a large number of visitors then they could 
consider a state park and make that move in the future.
    You will notice in the bill there is no date or time period 
for the government of Arizona to formulate a state park.
    Mr. Grijalva. Thank you. And my second time around time is 
running out.
    Ms. Bahr, my apologies. I do have some questions, and I 
will submit those in writing. You can respond to those, and 
they will be part of the record.
    Ms. Bahr. Thank you. Be happy to.
    Mr. Grijalva. Thank you. Mr. Bishop, any further questions?
    Mr. Bishop. In the interest of time since we are going to 
have a vote very soon I will do any other further questions in 
writing as well.
    Mr. Grijalva. Mr. Flake?
    Mr. Flake. Just one quickly. Mr. Rickus, you mentioned that 
you are confident that the analysis has been done to protect 
the stability of Apache Leap in terms of the engineering from 
the deep mining that would occur. Can you comment further on 
that?
    Mr. Rickus. Certainly. We will be mining away from Apache 
Leap to start with, and our mining activities for the first 20 
years will be some considerable distance away from Apache Leap, 
and any effective caving won't get anywhere near the area for 
approximately 35 years. So we will have 30 years of mining 
record where we can monitor 24 hours a day what is happening to 
the rocks to satisfy ourselves what is happening.
    If there is any potential effect to Apache Leap, we will 
not mine any ore to the west and sterilize it. That is a firm 
undertaking that I have made on the television, in the press, 
written it up many times, and we will stick by that firmly and 
totally. I have slides and so on to demonstrate that, but I am 
sure in the interest of time may not wish to go through all of 
that.
    Mr. Flake. Mr. Holtrop testified earlier that $500,000 was 
insufficient to construct a new campground. Do you think that 
$500,000 is or is that something that can be worked out in the 
end?
    Mr. Rickus. Well, we have not seen where the Forestry 
Service are proposing the new campground would be, so I can't 
really comment on that at the moment. We are happy to have a 
dialogue in that respect.
    Mr. Flake. You mentioned that this could ultimately produce 
about 25 percent of copper, the output. Is the United States a 
net importer or exporter of copper at the moment?
    Mr. Rickus. It is a net importer of copper, and in the 
future as a lot of the existing mines run down it will become 
more dependent on foreign imports.
    Mr. Flake. All right. Thank you.
    Mr. Grijalva. Thank you, Mr. Flake. Before we adjourn, I 
would extend, anybody have any closing comments? Mr. Flake? Mr. 
Bishop? Ms. Christensen?
    [No response.]
    Mr. Grijalva. I did that because I do.
    Mr. Bishop. Well, then, if you want me to.
    Mr. Grijalva. No. Thank you very much, all the witnesses, 
to clearly people that have traveled from Arizona to be here. 
Very much appreciated your time and your comments. I want to 
summarize some of the matters today that we have learned 
regarding H.R. 3301. It is clear I think from today's hearing 
that there are a number of concerns about the measure that is 
before us today.
    These concerns are not only important to the people of our 
home State of Arizona, but also touch on larger policy 
considerations that the Subcommittee should look at in terms of 
land exchanges. I think in moving forward the following items 
need to be addressed.
    First of all, it is very clear that these lands hold very 
significant cultural and religious values to Ft. McDowell 
Yavapai Nation and the San Carlos Apache. There is no question 
both tribes need to be better included in the discussions on 
the matter in the future.
    The Forest Service shared with us that the land exchange is 
not of equal value in the written testimony. Perhaps more needs 
to be done to equalize the land exchange even given the cash 
reimbursement clause that is in there. The Forest Service 
shared with us the one year time limit on the land exchange 
will not give enough time for NEPA, ESA consultation and tribal 
consultations.
    We either need to strike that provision or work with the 
Forest Service to modify it. The Forest Service shared with us 
that it would be very difficult to relocate the campground if 
the funding is inadequate. It appears that Resolution Copper 
may need to consider dealing with that funding and offering 
more funding.
    Also, the Forest Service need to be consulted on a better 
way to deal with any relocation process. We heard from the BLM 
they don't have the capacity to manage the rock climbing park 
should the state not take it. Governor Napolitano thinks 
Resolution Copper should provide $8 million to cover cost of 
the state park. Resolution Copper needs to consider the request 
from the Governor.
    Let me thank you. I think there is additional issues, the 
hydrology issue that was brought up. I really believe that as 
consideration of moving this matter forward careful 
consideration of all the elements have to be taken into 
account. I think because it does have implications beyond just 
a simple land exchange that this needs to be a deliberate due 
diligence process where it is transparent and every participant 
affected by it knows what is going on.
    So I look forward to additional information in the future, 
and, like I said, there were issues that have been raised today 
that need to be very desperately addressed. With that, let me 
adjourn the meeting and thank all of you very much.
    [Whereupon, at 11:17 a.m. the Subcommittee was adjourned.]

                                 
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