[Senate Hearing 110-572]
[From the U.S. Government Publishing Office]
S. Hrg. 110-572
CURRENT PUBLIC LANDS AND FORESTS LEGISLATION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
S. 2443 S. 2779
S. 2875 S. 2898
S. 3088 S. 3089
S. 3157 S. 3179
H.R. 816 H.R. 2246
__________
JULY 9, 2008
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota LARRY E. CRAIG, Idaho
RON WYDEN, Oregon LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana JIM DeMINT, South Carolina
MARIA CANTWELL, Washington BOB CORKER, Tennessee
KEN SALAZAR, Colorado JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
JON TESTER, Montana MEL MARTINEZ, Florida
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Frank Macchiarola, Republican Staff Director
Judith K. Pensabene, Republican Chief Counsel
------
Subcommittee on Public Lands and Forests
RON WYDEN, Oregon, Chairman
DANIEL K. AKAKA, Hawaii LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana RICHARD BURR, North Carolina
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
KEN SALAZAR, Colorado JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
Jeff Bingaman and Pete V. Domenici are Ex Officio Members of the
Subcommittee
C O N T E N T S
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STATEMENTS
Page
Barrasso, Hon. John, U.S. Senator From Wyoming................... 13
Bingaman, Hon. Jeff, U.S. Senator From New Mexico................ 2
Edwards, George, Livestock Loss Mitigation Coordinator, Montana
Department of Livestock, Helena, MT............................ 59
Featherstone, Roger, Southwest Circuit Rider, Earthworks, Tucson,
AZ............................................................. 50
Holtrop, Joel, Deputy Chief, National Forest System, Forest
Service, Department of Agriculture............................. 21
Kyl, Hon. Jon, U.S. Senator From Arizona......................... 20
Lewis, Shan, President, Inter Tribal Council of Arizona, Phoenix,
AZ............................................................. 46
Nedd, Michael, Assistant Director, Minerals, Realty and Resource
Protection, Bureau of Land Management, Department of the
Interior....................................................... 25
Price, Charles C., Daniel, WY.................................... 62
Salazar, Hon. Ken, U.S. Senator From Colorado.................... 16
Salisbury, David, President, Resolution Copper Mining, LLC,
Superior, AZ................................................... 42
Smith, Hon. Gordon, U.S. Senator From Oregon..................... 14
Tester, Hon. Jon, U.S. Senator From Montana...................... 14
Williams, Alice, Associate Administrator for Infrastructure and
Environment, National Nuclear Security Administration,
Department of Energy........................................... 18
Wyden, Hon. Ron, U.S. Senator From Oregon........................ 1
APPENDIXES
Appendix I
Responses to additional questions................................ 71
Appendix II
Additional material submitted for the record..................... 77
CURRENT PUBLIC LANDS AND FORESTS LEGISLATION
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WEDNESDAY, JULY 9, 2008
U.S. Senate,
Subcommittee on Public Lands and Forests,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:05 p.m., in
room SD-366, Dirksen Senate Office Building, Hon. Ron Wyden
presiding.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM OREGON
Senator Wyden. The subcommittee will come to order.
Let us go ahead and begin. I would like to recognize the
chairman, Senator Bingaman. I know his schedule is very tight.
[The prepared statement of Senator Ensign follows:]
Prepared Statement of Hon. John Ensign, U.S. Senator From Nevada
Chairman Wyden, Ranking Member Barrasso, Members of the Committee:
Thank you very much scheduling this hearing and inviting me to
submit my comments concerning this important piece of legislation.
Mr. Chairman, this bill, which is cosponsored by Senator Harry
Reid, would provide for the release of the reversionary interest of the
United States in certain property in Reno, Nevada. The U.S. House of
Representatives passed the companion legislation, H.R. 2246, on
December 4, 2007. The legislation is noncontroversial and addresses an
issue arising from the conveyance by the Union Pacific Railroad to the
city of Reno of property along the Union Pacific's existing right-of-
way for the construction of the Reno Transportation Rail Access
Corridor (ReTRAC) project.
With the merger of Union Pacific and Southern Pacific Railroads in
1995, it was projected that the number of freight trains moving through
downtown Reno would double. In order to mitigate the traffic, public
safety, and environmental impact of the merger, the city developed the
ReTRAC project to eliminate 11 at-grade railroad crossings and build
approximately 2 miles of lowered train track through the heart of the
City. Local, state, federal, and private funds contributed to this
enormous $265 million transportation project, which created over 3000
jobs and supported the local economy. The project was completed on time
and under budget in 2005.
As part of the project, the Union Pacific-Southern Pacific Railroad
granted to the city of Reno title to right-of-way and surrounding land
for the project and any other economic development purposes. The city
hopes to revitalize the area with retail components, a plaza for public
events, and a more pedestrian-friendly downtown. However, it cannot
implement these plans because the United States currently holds a
reversionary interest in the land. Title for these lands was originally
granted to the railroad in 1866 to facilitate construction of the
transcontinental railroad. The federal government retained a
reversionary interest to ensure that the land was in fact used for a
railroad. Since that purpose clearly has been achieved, the proposed
legislation would release the federal government's reversionary
interest in the property and allow the city of Reno to move forward
with its redevelopment plans.
Thank you Chairman and Committee Members for holding this hearing
today. I hope you will join me in supporting this legislation that will
allow the city of Reno, Nevada, to continue redevelopment efforts
associated with an important public works project that has been a
tremendous success for the community.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW MEXICO
The Chairman. Thank you very much, Senator Wyden, and
thanks for having this hearing. There are two bills that I have
particular interest in that we are discussing today, along with
the rest of the legislation.
The first is S. 3179, the Lovelace Respiratory Research
Institute Land Conveyance Act. This is a bill that I introduced
with Senator Domenici as a cosponsor. This legislation
concludes the decommissioning of the Department of Energy's
Lovelace Respiratory Research Institute, which is located on
Kirtland Air Force Base in Albuquerque, New Mexico. It does so
by transferring the site from the Federal Government to
Lovelace. In doing so, it will save the taxpayers approximately
$20 million in long-term monitoring costs.
Similar efforts have successfully been completed at other
former DOE cold war sites such as the former Mound Laboratory
in Ohio which were transferred to the State for economic
development purposes.
Lovelace has already used its preexisting facilities to
generate over 500 new jobs in New Mexico.
This bill, which I am pleased to note is supported by the
Administration and the Department of Energy and which includes
changes recommended by the Air Force, ensures Kirtland will
continue its national security mission without any impact from
this privatization effort.
Mr. Chairman, I would like to welcome Pat Marx, who is
Lovelace's Chief Operating Officer. She is in the audience
today, and I ask that the written statement submitted by
Lovelace be included in the record.
[The prepared statement of Ms. Marx follows:]
Prepared Statement of Pat Marx, Chief Operating Officer, Lovelace
Respiratory Research Institute, on S. 3179
The Lovelace Respiratory Research Institute (LRRI) is pleased to
provide the following written statement to the Senate Energy & Natural
Resources Committee Subcommittee on Public Lands and Forests regarding
S.3179.
LRRI is a private, not-for-profit biomedical research organization
located in Albuquerque, New Mexico which is dedicated to improving
public health through research on the prevention, treatment, and cure
of respiratory disease. Equipped with a broad range of scientific and
technical expertise and a wealth of research capabilities, LRRI studies
respiratory health issues of concern to scientists and health care
experts in universities, government, industry, and patient advocacy
groups. The organization is committed to curing respiratory diseases
through research aimed at understanding their causes and biological
mechanisms; assessing and eliminating exposures to respiratory health
hazards; and developing improved therapeutics, vaccines, and
diagnostics. It readily opens its unique research facilities to
university, government, and private collaborators.
The institute, formerly known as The Lovelace Institute, was
originally founded in 1947. Today it employs 86 PhD level scientists
and 453 technicians and support staff, has an annual budget of
approximately $67 million all of which comes from out of state
customers. This translates to 2,000 direct and indirect jobs for the
local economy.
LRRI and its predecessor organizations (collectively hereinafter
referred to as LRRI) have operated the Inhalation Toxicology Laboratory
(the ITL, formerly the Inhalation Toxicology Research Institute) on
Kirtland Air Force Base since its inception in 1960. The ITL was
operated by LRRI from 1960-1996 under a cost-reimbursement, no-fee
management and operating contract with the Department of Energy (DOE)
and its predecessor agencies. ITL facilities and the land on which they
are located is one of two parcels of land which are the subject of the
conveyances which S3179 would authorize.
The ITL and LRRI have a long and proud history serving the research
needs of the United State Government. In 1996 the facility was
determined to be no longer needed for the DOE's mission. Since that
time the LRRI has been pleased to continue important work in the
facility for the Government under contracts and grants as well as
serving the needs of the broader research community. After the facility
was privatized under a lease from the US Government to LRRI on October
1, 1996, LRRI has been very successful in increasing the annual income
of the facility as well as increasing staffing from 180 employees to
539 employees.
The conveyance to LRRI which S.3179 authorizes will allow LRRI to
further invest in the facility and thereby make even greater progress
in understanding the fundamental biological responses of the
respiratory tract to inhaled materials. Likewise, such conveyance will
have a favorable economic impact on the Albuquerque, New Mexico
community by allowing this facility to continue its important mission.
Every day that passes without the completion of the privatization which
this conveyance represents is a lost opportunity to the Institute.
LRRI's lease and subsequent operation of the ITL facility has been
one of only a few privatization success stories in the DOE complex.
Through the diligent efforts of LRRI personnel, new, productive
research uses have been found for the ITL. By full conveyance of the
property to LRRI, this success story will continue for many years to
come.
Pursuant to the provisions of the Resource Conservation and
Recovery Act of 1976 (42 USC Sec. Sec. 6901 et seq., as amended), the
DOE has undertaken certain restoration projects to remediate
contamination at the facility. However, due to historic research
activities at the ITL during the Cold War era, the land on which the
facility is located will continue to be contaminated for the
foreseeable future. The environmental impacts and condition of the
facility have been assessed and documented extensively over the years
and are well known to the responsible federal and state agencies, the
public, and LRRI. Because of LRRI's commitment to seeing valuable
inhalation research continue at this facility and preserving the role
the facility plays in the economic stability of New Mexico, the Board
of Directors of LRRI has expressed its willingness to assume the
substantial cost of future remediation that may be required at the
facility in exchange for conveyance of the property.
We are very pleased that Chairman Bingaman and Senator Domenici
have introduced S.3179 to authorize the conveyance to LRRI in order to
complete the privatization of this research facility. With respect to
several specific provisions of the Bill, we note the following:
Section 3(c) directs the Secretary of the Interior and
Secretary of the Air Force to complete ``any real property
actions'' necessary to allow the Secretary of Energy to
complete the conveyance. LRRI is prepared to assume ownership
of the property upon the passage of S 3179. We note that
Section 3(a) ``authorizes'' the Secretary of Energy to convey
the property to LRRI, but unlike Section 3(c), does not direct
the Secretary to do so. Without better specification of the
real property actions Congress deems ``necessary'' for
conveyance to be completed and without a time established for
completion of the conveyance, LRRI is concerned that the
conveyance could be prolonged. We look forward to working with
the appropriate federal agencies and Congress to ensure timely
completion of the conveyances authorized by S 3179.
Section 3(f) contains a provision that requires LRRI to pay
the costs incurred by the various agencies in carrying out the
conveyance without placing any limitation on such costs. LRRI
is certainly willing to pay the reasonable expenses the
agencies may incur after passage of the Bill to effect the
conveyance, but obviously we would like the parties to have an
understanding in advance about what is deemed a reasonable
expense.
Section 3(g) contains a broad and expansive indemnification
requirement that LRRI is not prepared to meet and which we
believe was not intended by the drafters. Under the language of
this provision, LRRI would be required to assume the liability
not only for remediating the contamination located on the
property (which we are prepared to assume), but would also be
required to pay for ``property damage, personal injury, or
death resulting from releases, discharges...by the Institute
and any officers, agents, employees...of the Institute arising
from activities conducted on the parcel conveyed....'' As we
previously stated, LRRI and its predecessors operated the
facility for 36 years under a no-fee, cost-reimbursement
Government contract. Employees and others have pending claims
and may make future claims for personal injury for actions
taken prior to the privatization. LRRI can not assume liability
for such claims and no federal agency has requested that we do
so. We therefore respectfully request that this provision be
modified to reflect that LRRI will indemnify the Government for
the actions described in Section 3(g) if they arise from the
actions of LRRI or its agents and employees after September 30,
1996 when the facility was first privatized.
We look forward to working with the Committee and the sponsors of
this legislation as well as the federal agencies involved to develop
appropriate mutually acceptable modifications to clarify these points.
Thank you for the opportunity to provide the comments of LRRI on
S.3179.
The Chairman. I would also like to speak briefly about the
other bill, S. 2779, which I introduced along with Senators
Domenici, Salazar, Allard, and Bennett.
This legislation makes a technical correction to address a
recent interpretation by the Office of Surface Mining which
restricts the ability of States to use funds under the
Abandoned Mine Lands Program for noncoal mine reclamation.
There is no additional cost to the Federal Government involved
with this legislation. Western States, such as New Mexico,
Colorado, and Utah, have used AML funds in the past for noncoal
reclamation as authorized by the Surface Mining Control and
Reclamation Act, and while activities on noncoal sites have
consumed a relatively insignificant portion of the funds
provided for the overall AML program, the results in terms of
public health and safety in our western States is considerable.
There is a great deal of significant work yet to be done.
For example, in my State of New Mexico, we have over 15,000
previously mined sites, with a vast majority of these being
noncoal mines.
I believe that OSM's interpretation of the amendments to
restrict the use of AML funds for noncoal sites is in error. S.
2779 would make a minor technical change to clarify that States
may continue to use the funds for noncoal work.
I would like to also ask your permission, Mr. Chairman, to
put some statements in the record. First, there is a statement
from the Secretary of Energy and Minerals and the Director of
Mining and Minerals Division in the State of New Mexico, Joanna
Prukop and Bill Brancard. Next is a statement by the Governor
of Colorado, Bill Ritter. Next is a statement by the head of
the Department of Natural Resources in Utah, John Baza. Next is
a statement by the Interstate Mining Compact Commission. Next
is a statement by the National Association of Abandoned Mine
Land Programs. All of these statements support the passage of
2779.
Thank you again, Mr. Chairman, for your courtesy.
Senator Wyden. Thank you, Mr. Chairman. Without objection,
the statements that Senator Bingaman referred to in his opening
remarks will be included in the record.
[The prepared statements follow:]
Prepared Statement of Joanna Prukop, Secretary, Energy, Minerals and
Natural Resources Department and Bill Brancard, Director, Mining and
Minerals Division, State of New Mexico, on S. 2779
Thank you for the opportunity to present a statement on this
important topic.
We appreciate the efforts of Chairman Bingaman and this Committee
to propose legislation that will clarify the intent of Congress under
Title IV, the Abandoned Mine Land (AML) program, of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA).
The State of New Mexico strongly supports S. 2779. This bill will
make only minor changes to SMCRA to correct a misinterpretation of
SMCRA by the Office of Surface Mining of the Department of the
Interior. S. 2779 will return New Mexico and other states to their
longstanding role under SMCRA of directing abandoned mine land grant
funds to the highest priority needs at either coal or non-coal
abandoned mines.
New Mexico has a long and distinguished history of both coal and
hard rock mining. Centuries of mining have left a legacy of thousands
of mine openings and other mine hazards that pose serious threats to
public health and safety. We estimate that there are more than 15,000
unreclaimed mine hazards across New Mexico. Expanding populations and
increasing recreational uses are increasing the exposure to abandoned
mine dangers. An example of the AML problem is the numerous abandoned
uranium mines located primarily in areas of Native American habitiation
in northwestern New Mexico.
The primary funding source for AML projects in New Mexico has been
Title IV of SMCRA. SMCRA includes provisions for the safeguarding of
abandoned coal mines and high priority non-coal mines. Funding from the
fees collected on coal production has helped New Mexico address some of
our most hazardous abandoned mines. Since the inception of the SMCRA
AML program, New Mexico has addressed approximately 4,000 mine features
and reclaimed over 700 acres of mine-disturbed land.
Section 409 of SMCRA (30 U.S.C. 1239) allows the States to use AML
funds to address high priority non-coal abandoned mines as well as coal
mines. While New Mexico still has abandoned coal mines that need
reclamation, well over 90% of New Mexico's 15,000 mine hazards are
located at abandoned hard rock mines. In the past few decades, all of
the fatalities associated with abandoned mines in New Mexico have
occurred at non-coal mines. With our SMCRA grants, New Mexico has
balanced the need to reclaim abandoned coal mines with the need to
address the significant and immediate health and safety threats posed
by numerous non-coal mines. Over the past 6 years, New Mexico's $1.5
million annual grant was roughly split between coal (55%) and non-coal
(45%) projects.
In December 2006, Congress passed the Tax Relief and Health Care
Act of 2006 which included a re-authorization of the AML fee on current
coal production and other amendments to the SMCRA Title IV program. One
of the major changes was the distribution to the States and Tribes of
``state share'' funds that had been previously allocated to the States
under SMCRA, but had never been appropriated by Congress. For New
Mexico, this amounts to approximately $20 million in additional AML
funds distributed over the next 7 years, and presents a tremendous
opportunity to address many of the high priority coal and non-coal
abandoned mine threats.
Under SMCRA, the ``state share'' funds were available for use by
the States at abandoned coal mines and, under Section 409, also at high
priority abandoned non-coal mines. In the 2006 legislation, Congress
did not amend Section 409. However, the Interior Department issued an
opinion in December 2007 prohibiting the additional AML funds from
being used at non-coal abandoned mine projects. The Office of Surface
Mining followed with a proposed rule on June 20, 2008, which codifies
the Interior Department's interpretation.
The new interpretation flies in the face of Congressional intent.
Had the funds been appropriated to the State when they were originally
allocated to the State, there would have been no question that these
funds could be used for either coal or non-coal projects. Congress did
not amend Section 409 of SMCRA in the 2006 amendments. However, the
Interior Department has latched onto Congress' use of a new funding
source to distribute the previously allocated funds to claim that the
intent changed.
Since the beginning of the AML program, New Mexico, Utah and
Colorado have balanced the need to reclaim abandoned coal mines with
the need to address the significant health and safety threats posed by
numerous non-coal mines. With these funds, New Mexico successfully
completed a number of innovative projects that were recognized by OSM.
In the Cerrillos Hills between Santa Fe and Albuquerque, we closed
dozens of non-coal mines along trails in a park and protected park
visitors from mine hazards while showcasing the mining history. This
project received a national award from OSM. Last year, we received the
highest national award from OSM for the Real de Delores project in the
Ortiz Mountains which safeguarded mine openings within one of the
oldest gold mining districts in America.
The impact of the Interior Department's interpretation is
significant. While New Mexico's annual AML grant increased this year to
$4 million, less than one million is discretionary and can be spent on
either coal or non-coal projects; the remaining three million plus can
only be spent on coal projects. As a result, needed projects at
dangerous abandoned hard rock mines have been delayed and funds
diverted to lower priority abandoned coal mines.
This loss of flexibility also comes at a particularly significant
time for New Mexico. Under Governor Bill Richardson's direction, we are
using a variety of funding sources to conduct an inventory of abandoned
uranium mines, many of which are located in areas occupied by Native
Americans in northwestern New Mexico. The impacts of these uranium
mines on the nearby residents, particularly the Navajo people, are
finally receiving national attention as evidenced by the hearings this
year before the House Oversight and Government Reform Committee. New
Mexico is working cooperatively with the Navajo Nation and the U.S. EPA
to coordinate work on abandoned uranium mines in areas near the Navajo
Indian Reservation. With the new AML money available, we have a unique
opportunity to finally address some of these sites which have caused
great harm to the Navajo communities. With the Interior Department's
restrictions, our options become much more limited, because the money
for non-coal projects is much more limited. We hope you will prevent
that reduction in funds for eliminating hazardous non-coal risks.
Mr. Chairman and members of the Committee, we thank you for this
opportunity to present New Mexico's position on S. 2779. We urge the
Committee to correct the misinterpretation of SMCRA and restore the
flexibility needed by the States. We look forward to working with the
Committee in the future.
______
Prepared Statement of Hon. Bill Ritter, Jr., Governor, State of
Colorado, on S. 2779
Thank you for the opportunity to present a statement on this
important topic.
I appreciate the efforts of Chairman Bingaman, Senators Salazar and
Allard, and this Committee to propose legislation that will clarify the
intent of Congress under Title IV of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA).
Under SMCRA, Congress has allowed States to address public health
and safety hazards at all prior mining operations--both coal and non-
coal--through their Abandoned Mine Land (AML) Programs. See 30 U.S.C.
1239 (SMCRA section 409). Western states, including Colorado, have used
these funds, based on gubernatorial request and secretarial approval,
to protect public health and safety from the threats posed by coal and
non-coal abandoned mines alike. These threats are significant and
growing.
In Colorado, there are over 17,000 mine openings remaining to be
safeguarded--the overwhelming majority of these at abandoned non-coal
mines, as well as 33 underground coal mine fires of which some are over
a century old, 50,000 acres of abandoned coal mine area in the rapidly
developing Front Range of Colorado, and over 150 coal and hard rock
sites that require some form of environmental clean-up.
Many of the mine related fatalities in Colorado (16 of the 20) over
the past few decades have occurred at abandoned non-coal mines. As
urban growth pushes into undeveloped areas and as recreational uses
increase, the threat to public heath and safety from abandoned mines is
increasing. To address this issue, Colorado is appropriating nearly $1
million each year of Severance Tax revenues for AML work.
The reauthorization of the AML Program by Congress did not in any
way change the provisions that allow AML funds to be used to address
public health and safety hazards at either coal or non-coal mine sites.
Yet, the Department of the Interior, Office of Surface Mining (OSMRE)
has proposed rules that would prohibit the majority of the funds going
to Western, non-certified states from being used on non-coal abandoned
mines. This change is contrary to Congressional intent. Had Congress
intended to restrict funding for non-coal projects, they would have
done so in the legislation.
OSMRE's new interpretation of SMCRA is without support in the law.
Section 409 of SMCRA provides that funds allocated to the states under
either the ``state share'' formula or the ``historic share'' formula
(Sections 402(g)(1) and (5)) are available to safeguard high priority
non-coal hazards. Despite Congress' decision to leave Section 409
unaltered, OSMRE has decided arbitrarily that ``historic share'' funds
are no longer available for non-coal hazards. Similarly, Congress also
decided to provide to the states the amount of ``state share'' funds
that had been previously allocated to the states but not appropriated.
OSMRE has now decided that these funds are also no longer available for
abatement of non-coal hazards.
OSMRE claims that once a state has completed all of its coal
projects, then it can use all of its grant funds for non-coal projects.
Therefore, under OSMRE's new interpretation, in order to complete its
coal projects, Colorado will spend years working on high cost, low
priority coal projects that present little threat to public health and
safety--meanwhile, numerous, highly hazardous abandoned non-coal mines
will remain unattended. This is a potentially dangerous and unnecessary
risk that OSMRE is imposing on the states.
It is essential that we fulfill the intent of Congress to address
the greatest threats to public health and safety whether they are at
coal or non-coal abandoned mine sites. Colorado's congressional
delegation was a leader in this reauthorization to address the unabated
hazards at both coal and non-coal abandoned mines. The impact of the
Interior Department's interpretation is significant to Colorado. While
Colorado's annual AML grant increased this year to $6 million, only
$2.4 million is discretionary for either coal or non-coal projects, and
the remaining funds can only be spent on coal projects--based on
OSMRE's decision.
Since the beginning of the AML Program, Colorado, New Mexico, and
Utah have balanced the need to reclaim abandoned coal mines with the
need to address the significant health and safety threats posed by
numerous non-coal mines. With these funds, Colorado has safeguarded
over 7,500 hazardous openings. Colorado, New Mexico, and Utah have all
received recognition from OSMRE on exemplary non-coal projects.
Colorado supports S.2779 which will maintain the congressional
intent to provide states with the flexibility to use Title IV funds for
high priority coal and non-coal sites and not impose any new
restrictions on the use of the funds. With a very minor change to SMCRA
to correct a misinterpretation by the U.S. Department of the Interior,
S. 2779 will return Colorado and other Western states to their
longstanding role under SMCRA of directing abandoned mine grant funds
to the highest priority needs at either coal or non-coal abandoned
mines.
Mr. Chairman and members of the Committee, thank you for this
opportunity to present Colorado's position on S. 2779. I look forward
to working with the Committee in the future.
______
Prepared Statement of John R. Baza, Director, Department of Natural
Resources, State of Utah, on S. 2779
My name is John R. Baza and I am the Director of the State of
Utah's Division of Oil, Gas and Mining that is part of the Utah
Department of Natural Resources. I appreciate this opportunity to
submit this statement for the record with respect to the legislative
hearing on S. 2779, a bill to amend the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) to clarify that uncertified States and
Indian tribes have the authority to use certain federal fund payments
for qualified non-coal abandoned mined land (AML) reclamation projects.
I wish to state that I am unequivocally in favor of, and the State of
Utah supports the amended language of SMCRA being proposed by S. 2779.
Utah has and will continue to receive significant new funding under
the SMCRA reauthorization legislation; however, because of federal
agency interpretation, we will not be allowed to use it on non-coal
hazards, which comprise the major physical public health and safety
threat related to abandoned mines in Utah. The U.S. Office of Surface
Mining, Reclamation, and Enforcement (OSMRE) within the Department of
Interior is severely restricting the ability of states/tribes to spend
AML funds on non-coal hazards. This restriction applies to non-
certified states/tribes and has the greatest impact on three western
states with large non-coal problems: Utah, Colorado and New Mexico.
Beginning in federal Fiscal Year 2008, the states/tribes received a
substantial increase in AML funds from three sources: state share,
historic share, and unappropriated state share funds. Previously, at
our own discretion, the states/tribes could use all AML funds for
either high priority coal or non-coal projects. OSMRE is choosing to
interpret the reauthorization legislation as requiring them to restrict
the money connected with the historic share and the unappropriated
state share to abandoned coal mine projects only. State share funds
alone will be available for non-coal projects. The ramifications are
draconian: for Fiscal Year 2008, Utah will have $1.0 out of $3.7
million, Colorado will have $1.9 out of $6.6 million, and New Mexico
will only have $1.2 out of $4.2 million available for non-coal
projects.
Although OSMRE argues that the unappropriated state share is
federal treasury money, there is another interpretation. I believe that
the intent of Congress, as demonstrated by the reauthorized
legislation, is to return this funding to the states and tribes. It is
a purely arbitrary decision on OSMRE's part regarding from which
Treasury fund cost category they actually find the money to pay a long
past due debt. OSMRE claims that SMCRA was designed to eliminate coal
related AML problems all along and that it is incumbent upon them to
carry out Congress' wishes and ensure the completion of coal AML
projects and push programs to certification. I disagree. Congress
recognized an abandoned mine problem and identified the coal industry
and a fee on production as a vehicle to fund the amelioration of the
problem. OSMRE has funded the non-coal projects that meet all criteria
set out in SMCRA without objection for the past twenty-five years.
OSMRE's position on this matter suggests a bias against western states
who will derive the most significant impact from such decision-making.
I believe OSM is taking this opportunity to block legal avenues that
allow western states to address the extreme non-coal abandoned mine
hazards and is using every possible interpretation of the
reauthorization language to channel available funding to eastern coal
states.
In Utah, Colorado and New Mexico almost all (if not all) fatalities
and serious injuries associated with abandoned mines have occurred at
non-coal mines. These non-coal dangers are our highest priority. While
we will continue to conduct abandoned coal mine reclamation projects,
if we had a choice, we would target all of our funding increase on the
significant public health and safety hazards posed by non-coal
abandoned mines.
Utah previously submitted testimony to the Senate Energy Committee
on this same problem. During the reauthorization discussions, it was
our understanding that the Committee agreed with us that the
reauthorization would not decrease our ability to safeguard non-coal
hazards. We are extremely disappointed and concerned that OSMRE's
interpretation of the reauthorization legislation results in a
significant cut in the funding available to mitigate the most hazardous
sites in Utah. Even though we now have more funding available than in
previous years, we are more restricted in how we can use those funds
than ever before. We do not interpret the new language in the
reauthorized law as a mandate to deny states/tribes the ability to
manage their own programs in their own best interests and in the best
interest of the public. Again, I wish to add my name to the list of
individuals in support of this legislation. Thank you for the
opportunity to submit this statement on S. 2779. I would appreciate
your efforts to advance this bill into law.
______
Prepared Statement of the Interstate Mining Compact Commission,
on S. 2779
My name is Gregory E. Conrad and I serve as Executive Director of
the Interstate Mining Compact Commission (IMCC). I appreciate the
opportunity to submit this statement for the record with respect to the
legislative hearing on S. 2779, a bill to amend the Surface Mining
Control and Reclamation Act of 1977 (SMCRA) to clarify that uncertified
States and Indian tribes have the authority to use certain payments for
certain noncoal reclamation projects.
The Interstate Mining Compact Commission (IMCC) is an organization
of 24 states located throughout the country that together produce some
95% of the Nation's coal, as well as important hardrock and other
noncoal minerals. Each IMCC member state has active mining operations
as well as numerous abandoned mine lands within its borders and is
responsible for regulating those operations and addressing mining-
related environmental issues, including the reclamation of abandoned
mines. Over the years, IMCC has worked with the states and others to
identify the nature and scope of the abandoned mine land problem, along
with potential remediation options.
In testimony we presented to the Committee last March at an
oversight hearing on hardrock abandoned mine lands (AML), we noted that
nationally, abandoned mine lands continue to have significant adverse
effects on the environment. Some of the types of environmental impacts
that occur at AML sites include subsidence, surface and ground water
contamination, erosion, sedimentation, chemical release, and acid mine
drainage. Safety hazards associated with abandoned mines account for
deaths and/or injuries each year. Abandoned and inactive mines,
resulting from mining activities that occurred over the past 150 years,
are scattered throughout the United States. The sites are located on
private, state and public lands.
Over the years, several studies have been undertaken in an attempt
to quantify the hardrock AML cleanup effort. In 1991, IMCC and the
Western Governors' Association completed a multi-volume study of
inactive and abandoned mines that provided one of the first broad-based
scoping efforts of the national problem. Neither this study, nor any
subsequent nationwide study, provides a quality, completely reliable,
and fully accurate on-the-ground inventory of the hardrock AML problem.
Both the 1991 study and a recent IMCC compilation of data on hardrock
AML sites were based on available data and professional judgment. While
the data is seldom comparable between states due to the wide variation
in inventory criteria, they do demonstrate that there are large numbers
of significant safety and environmental problems associated with
inactive and abandoned hardrock mines and that remediation costs are
very large.
Some of the types of numbers that IMCC has seen reported in our
Noncoal Report and in response to information we have collected for GAO
and others include the following: Number of abandoned mine sites:
Alaska--7,000; Arizona--80,000; California--47,000; Colorado--7,300;
Montana--6,000; Nevada--16,000; Utah--17,000--20,000; Washington--
3,800; Wyoming--1,700. Nevada reports over 200,000 mine openings;
Minnesota reports over 100,000 acres of abandoned mine lands.
What becomes obvious in any attempt to characterize the hardrock
AML problem is that it is pervasive and significant. And although
inventory efforts are helpful in attempting to put numbers on the
problem, in almost every case, the states are intimately familiar with
the highest priority problems within their borders and also know where
limited reclamation dollars must immediately be spent to protect public
health and safety or protect the environment from significant harm.
Today, state agencies are working on hardrock abandoned mine
problems through a variety of limited state and federal funding
sources. Various federal agencies, including the Environmental
Protection Agency, Bureau of Land Management, U.S. Forest Service, Army
Corps of Engineers and others have provided some funding for hardrock
mine remediation projects. These state/federal partnerships have been
instrumental in assisting the states with our hardrock AML work and, as
states take on a larger role for hardrock AML cleanups into the future,
we will continue to coordinate with our federal partners. However, most
of these existing federal grants are project specific and do not
provide consistent funding. For states with coal mining, the most
consistent source of AML funding has been the Title IV grants under the
Surface Mining Control and Reclamation Act (SMCRA). Section 409 of
SMCRA allows states to use these grants at high priority non-coal AML
sites. The funding is generally limited to safeguarding hazards to
public safety (e.g., closing mine openings) at hardrock sites.
In December 2006, Congress significantly amended the SMCRA AML
program to, among other things, distribute funds to states in an amount
equal to that previously allocated under SMCRA but never appropriated.
However, while Section 409 was not changed or amended in any way, the
Interior Department has now interpreted SMCRA to prohibit this enhanced
funding from being used for noncoal projects. This is a significant
blow to states such as New Mexico, Utah and Colorado which have
previously used SMCRA AML funds to address many of the more serious
hardrock AML problems. S.2779 would address this misinterpretation by
the Interior Department and as a result we strongly support the bill.
As you noted in a letter to Secretary Kempthorne last month Mr.
Chairman, Interior's interpretation not only disregards the fact that
section 409 was left unamended by Congress, it is also inconsistent
with assurances repeatedly given to the states and tribes by OSM during
the consideration of the legislation that noncoal work could continue
to be undertaken with these AML funds. The interpretation would also
have the unacceptable result of requiring states and tribes to devote
funds to low priority coal sites while leaving dangerous noncoal sites
unaddressed. While OSM will argue that this may impact the amount of
funding available to uncertified states to address high priority coal
problems, Congress did not seem overly concerned with this result but
rather deferred to its original framework for allowing both high
priority coal and noncoal sites to be addressed.
OSM has also argued in a recent proposed rule implementing the 2006
amendments to SMCRA (at 73 Fed. Reg. 35214, et seq.) that ``prior
balance replacement'' funds (i.e the unappropriated state and tribal
share balances in the AML Trust Fund) are fundamentally distinct from
section 402(g) moneys distributed from the Fund. This, according to
OSM, is due to the fact that these prior balance replacement funds are
paid from U.S. Treasury funds and have not been allocated under section
402(g)(1). This is a distinction of convenience for the Interior
Department's interpretation of the 2006 Amendments and has no basis in
reason or law. The fact is, these funds were originally allocated under
section 402(g)(1), are due and owing pursuant to the operation of
section 402(g)(1), and did not change their ``color'' simply because
they are paid from a different source. Without the operation of section
402(g)(1) in the first place, there would be no unappropriated (i.e.
``prior'') state and tribal share balances. The primary reason that
Congress appears to have provided a new source for paying these
balances is to preserve a balance in the AML Trust Fund to 1) generate
continuing interest for the UMW Combined Benefit Trust Fund and 2) to
insure that there was a reserve of funding left after fee collection
terminates in 2021 to address any residual high priority historic coal
problems. There was never an intent to condition or restrict the
previously approved mechanisms and procedures that states and tribes
were using to apply these moneys to high priority coal and noncoal
problems. To change the rules based on such a clever invention is
inappropriate and inconsistent with law.
For the same reasons that Congress needs to clarify this
misinterpretation for noncoal AML work, it should also do so for the
acid mine drainage (AMD) set aside program. Section 402(g)(6) has,
since 1990, allowed a state or tribe to set aside a portion of its AML
grant in a special AMD abatement account to address this pervasive
problem. OSM's recent policy (and now regulatory) determination is
denying the states the option to set aside moneys from that portion of
its grant funding that comes from ``prior balance replacement funds''
each year to mitigate the effects of AMD on waters within their
borders. AMD has ravaged many streams throughout the country, but
especially in Appalachia. Given their long-term nature, these problems
are technologically challenging to address and, more importantly, are
very expensive. The states need the ability to set aside as much
funding as possible to deal with these problems over the long term. We
therefore urge the Committee to amend S. 2779 to correct the current
policy interpretation by Interior and allow the use of unappropriated
state and tribal share balances (``prior balance replacement funds'')
for the AMD set aside, similar to the use of these balances for noncoal
work. Suggested amendatory language is attached to our statement.
Over the past 30 years, tens of thousands of acres of abandoned
mine lands have been reclaimed, thousands of mine openings have been
closed, and safeguards for people, property and the environment have
been put in place. There are numerous success stories from around the
country where the states' AML programs have saved lives and
significantly improved the environment. Suffice it to say that the AML
Trust Fund, and the work of the states pursuant to the distribution of
monies from the Fund, have played an important role in achieving the
goals and objectives of set forth by Congress when SMCRA was first
enacted--including protecting public health and safety, enhancing the
environment, providing employment, and adding to the economies of
communities impacted by past coal and noncoal mining. Passage of S.
2779 will further these congressional goals and objectives.
Thank you for the opportunity to submit this statement on S.2779.
We welcome the opportunity to work with you to complete the legislative
process and see this bill, as amended, become law.
Suggested Amendment to S. 2779 to include the AMD set-aside account
(Amendments are in italics)
A BILL
To amend the Surface Mining Control and Reclamation Act of
1977 to clarify that uncertified States and Indian tribes have
the authority to use certain payments for certain noncoal and
acid mine drainage reclamation projects.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ABANDONED MINE RECLAMATION.
(a) Limitation on Funds.--Section 409(b) of
the Surface Mining Control and Reclamation Act
of 1977 (30 U.S.C. 1239(b)) is amended by
inserting ``or section 411(h)(1)'' after
``section 402(g)''. Section 402(g)(6)(A) of the
Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1232(g)(6)(A)) is amended by
inserting ``or section 411(h)(1)'' after
``paragraphs (1) and (5)''.
(b) Use of Funds.--Section 411(h)(1)(D)(ii)
of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1240a(h)(1)(D)(ii)) is
amended by inserting ``section 402(g)(6)''
before ``section 403'' and inserting ``section
409'' after ``section 403''.
______
Prepared Statement of the National Association of Abandoned Mined Land
Programs, on S. 2779
My name is Loretta Pineda and I serve as the president of the
National Association of Abandoned Mined Land Programs (NAAMLP).
The NAAMLP is a tax-exempt organization consisting of 30 states and
Indian tribes with a history of coal mining and coal mine related
hazards. These states and tribes are responsible for 99.5% of the
Nation's coal production. All of the states and tribes within the
NAAMLP administer abandoned mine land (AML) reclamation programs funded
and overseen by the Office of Surface Mining (OSM) pursuant to Title IV
of the Surface Mining Control and Reclamation Act (SMCRA, P.L. 95-87).
Since the enactment of SMCRA by Congress in 1977, the AML program has
reclaimed thousands of dangerous sites left by abandoned coal mines,
resulting in increased safety for millions of Americans.
The Association was pleased with the passage of the 2006 Amendments
to SMCRA. The 15-year extension coupled with increased funding has
provided the states and tribes with the ability to focus on the
protection of the public health and safety while ensuring restoration
of abandoned mines nationwide. The reauthorization of the AML program
by Congress did not in any way change the provisions that allow AML
funds to be used to ameliorate either coal or non-coal mine public
health and safety hazards. However, the Interior Department has now
published proposed rules to prohibit some of this funding from being
used to address many of the serious non-coal AML problems.
Therefore, we strongly support S.2779, which makes very minor
changes to SMCRA to correct a misinterpretation of SMCRA by the U.S.
Department of the Interior. S. 2779 will return states to their
longstanding role under SMCRA of directing abandoned mine grant funds
to the highest priority needs at either coal or non-coal abandoned
mines.
The NAAMLP has worked closely with the Interstate Mining Compact
Commission and the Western Governors' Association in providing
information to quantify the non-coal AML cleanup effort. While the data
is seldom comparable between states due to the wide variation in
inventory criteria, they do demonstrate that there are large numbers of
significant safety and environmental problems associated with inactive
and abandoned non-coal mines and that remediation costs are very large.
Some of the types of numbers that have been reported by IMCC in
response to information we have collected for GAO and others include
the following: Number of abandoned mine sites: Alaska--7,000; Arizona--
80,000; California--47,000; Colorado--7,300; Montana--6,000; Nevada--
16,000; Utah--17,000--20,000; Washington--3,800; Wyoming--1,700. Nevada
reports over 200,000 mine openings; Minnesota reports over 100,000
acres of abandoned mine lands.
States and Tribes are very familiar with the highest priority non-
coal problems within their borders and also have limited reclamation
dollars to protect public health and safety or protect the environment
from significant harm. States and Tribes work closely with various
federal agencies, including the Environmental Protection Agency, the
Bureau of Land Management, the U.S. Forest Service, and the U.S. Army
Corps of Engineers, all of whom have provided some funding for non-coal
mine remediation projects. For states with coal mining, the most
consistent source of AML funding has been the Title IV grants received
under the Surface Mining Control and Reclamation Act (SMCRA). Section
409 of SMCRA allows states to use these grants at high priority non-
coal AML sites. The funding is generally limited to safeguarding
hazards to public safety (e.g., closing mine openings) at non-coal
sites.
In written statements that we presented to the Committee in
November of 2007, the Association prioritized two issues of highest
concern to us. One involved the restriction noted above regarding the
use of unappropriated state and tribal share balances for noncoal AML
work. The second involves a similar restriction on the use of these
unappropriated balances for the Acid Mine Drainage (AMD) set-aside
program under SMCRA. Congress expanded this program in the 2006
Amendments to allow states and tribes to set-aside up to 30% of their
grants funds for treating AMD now and into the future. AMD has ravaged
many streams throughout the country, but especially in Appalachia. The
states need the ability to set aside as much funding as possible to
deal with these problems over the long term. Again, OSM has acted
arbitrarily in their interpretation of the reauthorizing language by
limiting the types of funds the state may use for the set-aside
program. We have proposed amendatory language that would correct this
misinterpretation and allow the states to apply the 30% set-aside to
their prior balance replacement funds. (Suggested amendatory language
is attached to our statement.)
In summary:
Since the inception of SMCRA in 1977 and the approval of
state/tribal AML programs in the early 1980's, the states and
tribes have been allowed to use their state share distributions
under section 402(g)(1) of the AML Trust Fund for high priority
noncoal reclamation projects pursuant to section 409 of SMCRA
and for the set-aside program for acid mine drainage (AMD)
projects.
In its most recent proposed rules, OSM has stated that these
moneys cannot be used for noncoal reclamation or for the 30%
AMD set-aside.
Pursuant to Section 411(h)(1) of the 2006 Amendments, the
states and tribes assert that these moneys should also be
available for noncoal reclamation under section 409 and for the
30% AMD set-aside. There is nothing in the new law that would
preclude this interpretation. Policy and practice over the past
30 years confirm it.
Over the past 30 years, tens of thousands of acres of abandoned
mine lands have been reclaimed, thousands of mine openings have been
closed, and safeguards for people, property and the environment have
been put in place. Be assured that States and Tribes are determined to
address the unabated hazards at both coal and non-coal abandoned mines.
We are all united to play an important role in achieving the goals and
objectives as set forth by Congress when SMCRA was first enacted--
including protecting public health and safety, enhancing the
environment, providing employment, and adding to the economies of
communities impacted by past coal and noncoal mining. Passage of S.
2779 will further these congressional goals and objectives.
I appreciate the opportunity to submit this statement for the
record with respect to the legislative hearing on S. 2779, a bill to
amend the Surface Mining Control and Reclamation Act of 1977 (SMCRA) to
clarify that uncertified States and Indian tribes have the authority to
use certain payments for certain noncoal reclamation projects. We
welcome the opportunity to work with you to complete the legislative
process and see this bill, as amended, become law.
Suggested Amendment to S. 2779 to include the AMD set-aside account
(Amendments are in italics)
A BILL
To amend the Surface Mining Control and Reclamation Act of
1977 to clarify that uncertified States and Indian tribes have
the authority to use certain payments for certain noncoal and
acid mine drainage reclamation projects.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ABANDONED MINE RECLAMATION.
(a) Limitation on Funds.--Section 409(b) of
the Surface Mining Control and Reclamation Act
of 1977 (30 U.S.C. 1239(b)) is amended by
inserting ``or section 411(h)(1)'' after
``section 402(g)''. Section 402(g)(6)(A) of the
Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1232(g)(6)(A)) is amended by
inserting ``or section 411(h)(1)'' after
``paragraphs (1) and (5)''.
(b) Use of Funds.--Section 411(h)(1)(D)(ii)
of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1240a(h)(1)(D)(ii)) is
amended by inserting ``section 402(g)(6)''
before ``section 403'' and inserting ``section
409'' after ``section 403''.
Senator Wyden. We are going to hear today a number of
bills, S. 2443 and H.R. 2246, to release a reversionary
interest of the United States in certain lands in Reno, Nevada;
S. 2779, to amend the Surface Mining Control and Reclamation
Act of 1977, to clarify that certain payments may be used for
noncoal reclamation projects; S. 2875, to authorize the Fish
and Wildlife Service to provide grants to reduce predation and
compensate landowners for livestock loss due to predation; S.
2898 and H.R. 816, to release certain public land from the
Sunrise Mountain Instant Study Area in the State of Nevada; S.
3157, to authorize an exchange of certain national forest land
in Arizona to facilitate the development of a copper mine; S.
3179, to authorize the conveyance of certain land in the State
of New Mexico to the Lovelace Respiratory Research Institute.
Let me close my opening remarks by just commenting briefly
on two bills that I have introduced that are extremely
important to my home State, the Oregon Badlands Wilderness Act
of 2008, S. 3088, and 3089, the Spring Basin Wilderness Act of
2008. These two bills would protect as wilderness two
especially unique treasures in the high desert of central and
eastern Oregon. They reflect the wild, rugged beauty that makes
our State and our State's terrain east of the Cascade Mountains
incomparable.
The Oregon Badlands Wilderness Act would designate as
wilderness almost 30,000 acres of the area just east of Bend
known as the Badlands, in addition to the area's natural
attributes of lava flows and 1,000-year-old ancient junipers,
many in the business consider this wilderness area as a very
substantial boost to the region's hub as an area of great
attraction for outdoor recreation. In the Bend area, people can
enjoy virtually any sort of outdoor activity imaginable, and we
are excited about the prospects of this legislation moving
forward.
The Spring Basin Wilderness Act of 2008 would designate
approximately 8,600 acres as wilderness, and with some of the
revised exchanges that are being discussed and are supported
widely, that would expand to more than 9,200 acres. This is one
of central Oregon's premier wild areas. It overlooks the John
Day Wild and Scenic River where you have spring wildflower
blooms and canyons and diverse geology that again offers
exceptional recreational opportunities for hikers, horseback
riders, hunters, and other outdoor enthusiasts.
So we will talk more about this legislation and other
bills, but I know colleagues have strong views on the measures
before them that affect their home States. Let me recognize the
ranking minority member, Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR
FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. I
appreciate you holding this hearing today.
Mr. Chairman, Senator Tester and I have a bill, S. 2875,
The Gray Wolf Livestock Loss Mitigation Act that we have
introduced. It authorizes the Secretary of the Interior to
provide grants to carry out programs to reduce the risk of
livestock loss due to predation by gray wolves and other
predators. The program will compensate landowners for livestock
loss due to predation.
Mr. Chairman, as you know, ranching is the backbone of the
Wyoming way of life and it is a time-honored and vital part of
the fabric of our western heritage. The Federal Government
reintroduced the gray wolf into our environment. The ranchers
of Wyoming did not ask that the wolf be reintroduced. As a
matter of fact, Wyoming ranchers opposed it because they knew
what the consequences would be, and one of those ranchers is
with us today. Often decisions are made in Washington and awful
impacts are felt back at home, and for Wyoming ranchers the
decision to reintroduce the wolf has led to livestock loss and
a direct threat to our livelihood. The wolf has been
devastating not just to our livestock but also to our wildlife.
The State of Wyoming, acting in good faith, has done its
part.
The gray wolf was recently taken off of the Endangered
Species Act, but it continues to be a serious problem and the
introduction of the wolves continues to have a significant
impact.
The State of Wyoming spent $1.2 million last year providing
compensation to ranchers who lost livestock. The State needs
additional assistance from the Federal Government to ensure
that ranchers get the assistance they need for a problem not of
their own making. Washington forced the wolf on Wyoming and on
our adjacent States in Montana and in Idaho, and Washington has
a responsibility to help pay for the damage.
Additionally, Mr. Chairman, I want to comment briefly on S.
2779. This legislation addresses abandoned mines in the
uncertified States and tribes, those which have not addressed
all the priorities under the Surface Mining Control and
Reclamation Act. The legislation before this subcommittee today
would allow, even require, that these uncertified States and
tribes use Abandoned Mine Land funds paid by the coal companies
to address entryways and tunnels of the noncoal mines.
I understand this legislative fix serves the needs of
western States like Utah and New Mexico and Colorado, but I am
going to urge the full committee to include a related bill, S.
2448, in the same discussion. That second bill, Mr. Chairman,
will also provide a legislative fix for western States and
tribes like Wyoming and Montana, States that have been
certified by the Department of the Interior as having addressed
their reclamation priorities.
In Wyoming's case, the executive branch is operating under
a twisted interpretation of the same law which is giving other
western States fits. In Wyoming's case, the Administration is
interpreting the phrase ``seven equal annual installments'' as
an unlimited number of unequal grants. Legislation is needed to
correct this erroneous interpretation. As a practical matter,
Mr. Chairman, I trust that both corrections can be addressed
concurrently.
Finally, Mr. Chairman, and most importantly, I want to
extend a warm welcome to Mr. Charles Price of Daniel, Wyoming.
He has traveled here today to testify on S. 2875 and share his
experience with the Senate. Charles, I appreciate your taking
the time away from the ranch to come to testify on this
important piece of legislation.
Mr. Chairman, I look forward to the hearing. Thank you.
Senator Wyden. Senator, thank you.
Senator Tester.
STATEMENT OF HON. JON TESTER, U.S. SENATOR
FROM MONTANA
Senator Tester. Thank you, Chairman Wyden. I will not take
much time at all. I appreciate you holding hearings on all
these bills.
As Senator Barrasso pointed out, I am here primarily for S.
2875. I will save most of my comments for the questions. So
thank you.
Senator Wyden. Senator Smith.
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR
FROM OREGON
Senator Smith. Thank you, Senator Wyden. It is good to be
here with you.
I will start my remarks by addressing two wilderness bills
that you have spoken to already, the Oregon Badlands and the
Spring Basin Wilderness Acts. I would like to acknowledge all
the extraordinary efforts that have been made by all parties to
develop these two pieces of legislation.
The Spring Basin area has been proposed as a wilderness
since 1980. It is encouraging as a legislator to be presented
with a proposal that has already been thoroughly vetted by
local governments and stakeholders. The BLM, the Confederated
Tribes of the Warm Springs Indian Reservation, local
landowners, and the Oregon Natural Desert Association have
joined together in supporting this proposal. So today I would
like to lend my support and ask that I be added as a cosponsor.
Senator Wyden. Senator Smith, that is a request that is
granted, and I thank you for it.
Senator Smith. This proposal contains four previously
negotiated land exchanges between private landowners and the
BLM, bringing the total area to be designated as contiguous
wilderness to 8,632 acres. There is a proposal by the Warm
Springs Tribe to increase the designated wilderness to 9,268
acres by revising the lands exchanged between the tribe and
BLM. The revised land exchange I believe improves the proposed
Spring Basin Wilderness, and I will work with you, Senator
Wyden, to see if this can be incorporated as well.
The Oregon Badlands Area was also originally set aside for
wilderness designation in 1980. The Badlands proposal includes
two small land exchanges and creates a wilderness area of
nearly 30,000 acres. This area is only 15 miles east of the
city of Bend. It is replete with jagged rock formations, Native
American pictographs, ancient western juniper trees, and a
diversity of wildlife from deer and elk to mountain lions and
golden eagles. There is no question that this is a special area
and it is worth protecting.
I do want, though, to raise a couple of concerns for
designating Badlands as wilderness, and that is--and we will
work on this, Senator, to see if we can resolve this--the
potential impact to offroad recreation. I understand that the
Badlands were closed to off-highway vehicle use in 2005 and
adjacent areas contain over 600 miles of trails for offroad
use. I would like to ensure that these alternate areas are
adequate to meet the local demand, and we will, I am confident,
be able to come up with some accommodation on this.
Additionally, while both these wilderness proposals have
broad support and do not affect grazing, this committee, I
believe, should do all it can to ensure that family ranches are
not regulated or litigated out of existence. I would ask the
many conservation groups that back these wilderness bills to
work with me and work with Oregon cattlemen to find a more
appropriate way forward for grazing on public lands in eastern
Oregon.
Part of the solution includes releasing lands designated as
wilderness study areas when supported by local government and
stakeholders, both the Spring Basin and Oregon Badlands areas
have been held as WSA's since 1980. While I believe these areas
are worthy of wilderness designation, some of the WSA's simply
are not and are being locked away from those who are making
their living off the land.
I would plead with conservation groups to stop the
litigation. There is an accommodation that can be found here.
Wilderness is different than WSA. Some should be wilderness. We
should finish the process, but this limbo that leaves cattlemen
and everyone dissatisfied I think really deserves some kind of
conclusion. Otherwise, I am left with little recourse but to
respond with legislation to maintain cattle grazing at levels
consistent with the land's capacity.
Also before the committee today, I am fully supportive of
the Gray Wolf Livestock Loss Mitigation Act. Oregon's
Department of Fish and Wildlife has a wolf management plan in
place and ready to implement pending further State legislative
action. The Federal plan proposed by Senators Tester and
Barrasso is similar to the Oregon plan, including a
compensation component for livestock owners whose animals are
destroyed by wolf predation.
So I fully support the Senators' work on the gray wolf act,
and I would like to encourage the geographic expansion of this
legislation. In its current form, the bill covers Montana,
Wyoming, and Idaho. The successful recovery of gray wolves,
however, has expanded their habitat boundary into eastern
Oregon and eastern Washington. I believe we have an obligation
to protect not only the declining species, but also the
ranching families who make their living off the land of this
great country.
Once again, I would like to thank all of the parties who
have assisted in crafting these bills, and I look forward to
shepherding their refinement and their passage with Senator
Wyden.
Senator Wyden. Senator Smith, thank you, and we will be
working together on these bills.
Let us go to Senator Salazar.
STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR
FROM COLORADO
Senator Salazar. Thank you very much, Chairman Wyden, for
holding this hearing.
I want to simply state my appreciation to Chairman Bingaman
and to Senator Allard for their support of 2799. The abandoned
mine land issue is a major issue for us in the western States.
In Colorado alone, we have some 17,000 abandoned mines, and
action needs to be taken on them. Under the current
interpretation of the Department of the Interior, we cannot
access those funds in the State of Colorado, and the same is
true for many of our western States, including New Mexico. So I
am here just to voice my support for that legislation.
I also would like to enter into the record a letter of June
6, 2007, which was signed by Senator Bingaman, Senator
Domenici, Senator Allard, Senator Hatch, and myself, as well as
other Senators whose names I cannot read, and ask that this
letter of June 6 be included as part of the record.
Senator Wyden. Without objection, that will be ordered.
[The information referred to follows:]
U.S. Senate,
Washington, DC, June 6, 2007.
Hon. Dirk Kempthorne,
Secretary, U.S. Department of the Interior, 1849 C Street, N.W.,
Washington, DC.
Dear Secretary Kempthome: We are writing to voice our serious
concern over what we understand is a proposed interpretation by the
Office of Surface Mining Reclamation and Enforcement (OSM) of certain
provisions relating to the Abandoned Mine Land (AML) Program contained
in the Tax Relief and Health Care Act of 2006. That law reauthorized
collection of the AML fee and made certain modifications to the AML
program. While we strongly support the AML program, we are concerned
that OSM may interpret the new law in a manner that would prevent
certain western states from addressing some of the most significant
problems relating to abandoned mines--those involving abandoned non-
coal mines.
Section 409 of the Surface Mining Control and Reclamation Act
(SMCRA), provides that states may address public health and safety
hazards at abandoned mine sites, both coal and non-coal. Western states
such as New Mexico, Colorado, and Utah, have prioritized the use of AML
funds to undertake the most pressing reclamation work on both coal and
non-coal mine sites. While these activities consume a relatively
insignificant piece of the funding provided for the overall AML
program, the results in terms of the public health and safety in these
states is considerable. There is significant work yet to be done. For
example, we understand that New Mexico alone has over 10,000 remaining
mine openings with a vast majority of these being non-coal, and that
all fatalities there in the last few decades have been at non-coal mine
sites.
We understand that OSM, nevertheless, is seriously considering an
interpretation of the recently-enacted amendments to SMCRA that would
prevent western, non-certified states from using for non-coal work
their historic state share and the payments comprising their previously
unappropriated balances. We believe this interpretation is in error.
First, it disregards the fact that section 409 was left unamended by
the Congress. Furthermore, this interpretation is inconsistent with
assurances repeatedly given to us by OSM during the consideration of
the legislation that non-coal work could continue to be undertaken with
these AML funds. Finally, the interpretation apparently being
considered by OSM would have the unacceptable result of requiring these
states to devote funds to low priority coal sites while leaving
dangerous non-coal sites unaddressed.
A fair reading of the recently-enacted amendments allows the use of
AML funds, including historic and unappropriated balance allocations,
for high priority non-coal sites in these uncertified western states.
We strongly urge you to adopt this interpretation.
Sincerely,
Jeff Bingaman,
U.S. Senator.
Pete Domenici,
U.S. Senator.
Ken Salazar,
U.S. Senator.
Wayne Allard,
U.S. Senator.
Robert F. Bennett,
U.S. Senator.
Orrin Hatch,
U.S. Senator.
Senator Salazar. Thank you, Mr. Chairman.
Senator Wyden. I thank the Senator.
Senator Kyl is on his way, but I think in the interest of
time, let us go forward and have the Administration panel come
up. I do want to make clear that when Senator Kyl gets here, we
will recognize Senator Kyl.
Alice Williams, Associate Administrator for Infrastructure
and Environment, National Nuclear Security Administration,
Department of Energy; Michael Nedd, Assistant Director of
Minerals and Realty Management, Bureau of Land Management,
Department of the Interior; and Joel Holtrop, Deputy Chief of
the National Forest System of the Forest Service, Department of
Agriculture. Why do you three not come on up?
I am going to make your prepared statements a part of the
record, and I always try--Mr. Holtrop has heard me say this--to
see if I can persuade people to just summarize their principal
concerns and it will save some time along the way. So if I can
persuade you all to do that, extra points awarded for that.
Ms. Williams, welcome, and please proceed.
STATEMENT OF ALICE WILLIAMS, ASSOCIATE ADMINISTRATOR FOR
INFRASTRUCTURE AND ENVIRONMENT, NATIONAL NUCLEAR SECURITY
ADMINISTRATION, DEPARTMENT OF ENERGY
Ms. Williams. Thank you, Chairman Wyden, Ranking Member
Barrasso, and distinguished members of the subcommittee. Thank
you to Chairman Bingaman and Mr. Domenici for introducing the
legislation.
My name is Alice Williams. I am the Associate Administrator
for Infrastructure and Environment at the National Nuclear
Security Administration of the Department of Energy.
I appreciate the opportunity to testify today on S. 3179, a
bill to convey approximately 135 acres of land currently under
the jurisdiction of the Secretary of the Air Force but leased
to the Secretary of Energy and the DOE improvements on that
land to the Lovelace Respiratory Research Institute. S. 3179
also directs the change in administrative jurisdiction of
another approximately 7 acres of land from the Secretary of
Energy to the Secretary of the Air Force.
The Department supports both elements of S. 3179.
The Inhalation Toxicology Laboratory, formerly known as the
Inhalation Toxicology Research Institute, is located within the
boundaries of Kirtland Air Force Base in Bernalillo County, New
Mexico. The facility served an important role from 1960 to 1996
as a Government-owned, contractor-operated laboratory
performing research for the DOE and its predecessor agencies on
the effects of inhalation of hazardous substances.
In 1996, the Department determined that the facility was no
longer required for its mission. In an effort to continue its
productive use for research and to mitigate the economic impact
that closing the facility would have on the Albuquerque
community, the facility was placed under long-term lease to the
Lovelace Respiratory Research Institute, which has operated it
for the U.S. Government since its inception.
Should I continue?
Senator Wyden. Why do we not do this, Ms. Williams? Why do
you not finish your statement, because I know you were going to
take 5 minutes, and Senator Kyl is a very gracious soul. When
you are done with your statement, then we will go right to
Senator Kyl.
Ms. Williams. Thank you.
S. 3179 provides for the completion of the privatization of
this facility by transferring the real property and
improvements from the Federal Government to the Lovelace
Respiratory Research Institute. The bill specifies that the
property and facilities must be used for the continuation of
their current research, scientific, or educational purposes.
S. 3179 further requires that Lovelace Respiratory Research
Institute will take title to the property as contaminated,
regardless of whether that contamination originated from past
Government operations, and conduct any and all environmental
remediation that might be required in the future. The
assumption of this responsibility provides for a significant
benefit to the taxpayer by transferring an estimated liability
in excess of $20 million in decontamination and demolition
costs for a facility that is excess to the Department's
mission.
Finally, S. 3179 directs the change in administrative
jurisdiction of another approximately 7 acres of land from the
Secretary of Energy to the Secretary of the Air Force. This
property is no longer required by the Department, and we
support its transfer for beneficial use to the Department of
the Air Force.
Thank you for the opportunity to testify, and as
appropriate, I will be happy to address questions.
[The prepared statement of Ms. Williams follows:]
Prepared Statement of Alice Williams, Associate Administrator for
Infrastructure and Environment, National Nuclear Security
Administration, Department of Energy, on S. 3179
Thank you Chairman Wyden, Ranking Member Barrasso and distinguished
members of the subcommittee, and thank you to Chairman Bingaman and Mr.
Domenici for introducing this legislation. My name is Alice Williams. I
am the Associate Administrator for Infrastructure and Environment at
the National Nuclear Security Administration of the Department of
Energy (DOE). I appreciate the opportunity to testify today on S. 3179,
a bill to convey approximately 135 acres of land currently under the
jurisdiction of the Secretary of the Air Force but leased to the
Secretary of Energy, and the DOE improvements on that land to the
Lovelace Respiratory Research Institute (LRRI). S. 3179 also directs
the change in administrative jurisdiction of another approximately 7
acres of land from the Secretary of Energy to the Secretary of the Air
Force.
The Department of Energy supports both elements of S. 3179.
BACKGROUND
The Inhalation Toxicology Laboratory, formerly known as the
Inhalation Toxicology Research Institute, is located within the
boundaries of Kirtland Air Force Base in Bernalillo County, New Mexico.
This facility served an important role from 1960 to 1996 as a
government-owned, contractor-operated laboratory performing research
for the DOE and its predecessor agencies on the effects of inhalation
of hazardous substances. In 1996, the Department determined that the
facility was no longer required for its mission. In an effort to
continue its productive use for research, and to mitigate the economic
impact that closing the facility would have on the Albuquerque
community, the facility was placed under long-term lease to the
Lovelace Respiratory Research Institute, which had operated it for the
United States government since its inception.
This ``privatization initiative'' has been a significant success.
The facility now has gross revenues exceeding $50M and provides
employment for more than 500 workers in the Albuquerque area. The
facility enjoys a very positive technical reputation for its work in
inhalation toxicology supporting both the private and public sector.
S. 3179
S. 3179 provides for the completion of the privatization of this
facility by transferring the real property and improvements from the
federal government to the LRRI. The bill specifies that the property
and facilities must be used for a continuation of their current
research, scientific or educational purposes. S. 3179 further requires
that LRRI will take title to the property ``as contaminated''
regardless of whether that contamination originated from past
government operations and conduct any and all environmental remediation
that might be required in the future. The assumption of this
responsibility provides for a significant benefit to the taxpayer by
transferring an estimated liability in excess of $20 million dollars in
decontamination and demolition costs for a facility that is excess to
the Department's Mission.
Finally, S. 3179 directs the change in administrative jurisdiction
of another approximately 7 acres of land from the Secretary of Energy
to the Secretary of the Air Force. This property is no longer required
by the Department and we support its transfer for beneficial use to the
Department of the Air Force.
Thank you for the opportunity to testify. I would be happy to
answer any questions.
Senator Wyden. Ms. Williams, thank you.
Senator Kyl, I know you are very busy as a member of the
Republican leadership, and please proceed.
STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA
Senator Kyl. Thank you, Mr. Chairman. Just for the benefit
of everyone here, we are right in between some votes, and I
really appreciate the four of my colleagues being here to hear
these important witnesses on these matters.
I am testifying about the Southwest Arizona Land Exchange
and Conservation Act. I just want to say three quick things
about this legislation.
We know that our copper needs in this country are going to
increase exponentially, especially if we can produce more
things like hybrid vehicles and other things which require more
copper for electrical use. There has been a find in Arizona
that is almost unsurpassed perhaps in the history of the United
States with respect to copper, and I say that with some
trepidation knowing that there is a lot of copper produced in
the State of Montana as well, but this is huge.
Part of the problem is that there is some public land
overlaying this. That gets to part two, the benefit to the
public of being able to acquire some extraordinary lands
currently private that would be put into public use. These
lands have tremendous environmental value, and rather than just
listing them and so on, I will refer them. Your staff is well
aware of them. Just a couple of examples.
More than 2 miles of a perennial trout stream on East Clear
Creek. I have been there. It is beautiful country, very
important in our State that does not have very many perennial
streams.
Almost 7 miles of land spanning both sides of the lower San
Pedro. This is the last totally flowing river in the State of
Arizona. It has got to be preserved. There are a lot of efforts
underway to preserve it. This is part of those efforts. There
are some ranches, some inholdings in the Tonto National Forest,
and so on.
But the bottom line is that this mine, which does have to
have a land exchange involved in it, offers us a wonderful
opportunity to acquire these environmentally sensitive lands as
well.
Incidentally, this mine that I speak of could have a total
economic impact of more than $50 billion. That is just how big
this thing is.
The third I want to mention is that when we first
introduced this bill, despite the best efforts of all of the
people in Arizona working on it--and there is virtual total
unanimity among the leaders in the State of Arizona to support
this, and they thought they had every single problem that could
conceivably be brought up worked out. That is where the staffs
of the minority and majority of this committee come in. They
are really good at finding other things that need to be
addressed, and the truth of the matter is there were a lot of
serious questions that were asked by your staffs that have now
been addressed. I think the best way for me to have you confirm
that is just talk to your staff.
We basically took a lot of their recommendations in
incorporating changes into the legislation. They involved three
specific areas, one relating to NEPA. I mean, there can be no
question that there has to be NEPA analysis in connection with
this, and there has been basically a belt and suspenders put on
that in the legislation.
There was a question of market value because this copper is
so deep into the ground, it is hard to know right now what the
real value is and, therefore, how much land exchange you do.
Built into this now is essentially a provision of whatever that
value turns out to be, that is what the Government is going to
get. There will be a value adjustment for the benefit of the
Government. From my standpoint, that is a good thing for this
bill because we can better assure our taxpayer constituents
that they are going to get their money's worth no matter what,
however it turns out the value of this is.
Then finally, there were some questions about a State park
and climbing opportunities for mountain climbers--rock
climbers, rather. I believe those issues have now all been
worked out.
So we changed the legislation originally introduced in
those three respects, again pursuant primarily to
recommendations of staff. I think it has made it a better bill.
It certainly has provided a unanimous or nearly unanimous point
of view among all of the key stakeholders in Arizona. I am
really hopeful because a lot rides on how quickly we can do
this in terms of the financial commitment to develop the mine
that we can complete this legislation this year. It is really
critical that we be able to move it forward quickly.
Therefore, I very appreciate, Mr. Chairman, your holding
this hearing and pledge to work with you if there are any other
questions or issues that arise that we need to deal with. Thank
you.
Senator Wyden. Senator Kyl, we will work very closely with
you, and we will make sure that it is bipartisan, that all the
staff is involved and that we do it quickly.
Senator Kyl. Great. Thank you very, very much, and I
appreciate your attention. Thank you, colleagues, for letting
me interrupt here.
Senator Wyden. Let us go now to Mr. Holtrop.
STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF, NATIONAL FOREST
SYSTEM, FOREST SERVICE, DEPARTMENT OF AGRICULTURE
Mr. Holtrop. Mr. Chairman and members of the committee and
subcommittee, thank you for inviting me to provide the
Department of Agriculture's views on S. 3157. You have my full
statement for the record and this afternoon I will summarize
our views on provisions that relate to National Forest System
lands.
S. 3157 is a complex land exchange bill that directs the
Secretary of Agriculture to convey to Resolution Copper Mining
Company 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
U.S. Forest Service and the Bureau of Land Management.
Because this proposed exchange would result in the
protection of lands that have outstanding natural qualities, as
Senator Kyl just expressed, the Department supports the
exchange and believes that overall it is in the public
interest.
We provided testimony last November on a similar bill, and
we understand that S. 3157 reflects modifications in response
to various concerns and we appreciate these changes. However,
some concerns remain and we have some new concerns which I will
highlight.
A new provision adds a 95-acre parcel called The Pond,
which would be conveyed to the Department of Agriculture. Rock
climbers currently use this area, and it could serve as an
alternative for those displaced from climbing areas that would
be conveyed to Resolution Copper. While we agree this offers an
attractive site for climbers, it lacks access and
infrastructure for public use. This includes safe parking,
pedestrian access, and sanitary facilities, and we would like
to work with the subcommittee to amend the bill to require that
improvements be completed prior to the parcel's conveyance.
This bill includes a new provision that specifies which
pre-exchange processing tasks are to be done, including land
survey and various reviews. It requires the exchange to be
completed within 1 year. We still believe this is an
insufficient time to complete all the work necessary to
complete the exchange. This includes development and review of
a mineral report, completion of appraisals and surveys,
verification of title documents, and the many specified
clearances, reviews, and consultation with Indian tribes.
Another new provision directs the Secretary to complete an
environmental impact statement post-exchange, but prior to
commencing mineral production regarding any Federal agency
action carried out relating to commercial production. The bill
does not specify which party would be responsible for the costs
of these provisions and our support is contingent upon the
requirement that Resolution Copper would be responsible for
these costs.
We are concerned about provisions of section 5 regarding
failure of the parties to agree on the value of any parcel. The
bill would require that disputes be resolved through binding
arbitration procedures found in a section of the Federal Land
Policy and Management Act of 1976. That section, however, is
intended for discretionary exchanges. Accordingly, we believe
that the bill should be amended to more specifically address
applicable options.
S. 3157 includes a new provision that would require a
payment to the United States should actual mineral production
exceed the projected production from the appraisal. The
Administration generally supports this approach but would like
to work with the subcommittee to clarify specific intent and
implementation procedures, as well as the disposition of
receipts.
The bill directs the Secretary to design and construct one
or more campgrounds to replace the Oak Flat Campground. We
appreciate that changes have been made to this provision based
on previous testimony. We still believe, however, it will be
difficult to find a suitable replacement site. The funding
cited in the bill remains insufficient and it may be difficult
to construct a replacement campground within 4 years. We would
like to work with the subcommittee to consider alternatives.
This concludes my statement, and I would be happy to answer
any questions you may have.
[The prepared statement of Mr. Holtrop follows:]
Prepared Statement of Joel Holtrop, Deputy Chief, National Forest
System, Forest Service, Department of Agriculture, on S. 3157
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 S. 3157, the ``Southeast Arizona Land Exchange
and Conservation Act of 2008.''
I will limit my remarks to the provisions of the bill directly
related to National Forest System (NFS) lands and will defer to the
Department of the Interior on provisions relating to the lands managed
by the Bureau of Land Management (BLM).
S. 3157 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.
The Department believes that the acquisition of the non-federal
parcels to be managed as part of the 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 provided testimony last November on a
similar bill, H.R. 3301, and we understand that S. 3157 reflects
modifications to that bill in response to various concerns. We
appreciate these changes. However, some concerns remain and we have
some new concerns regarding the new provisions in this bill. 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 parcel referred to as
the ``Oak Flat'' parcel from the United States for nine parcels of land
owned by Resolution Copper, six of which would be conveyed to the
Department of Agriculture: 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
the 95-acre parcel referred to as The Pond 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.
As a condition of the exchange, the bill requires Resolution Copper
to convey 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, which would be held by a qualified
unit of government, an Indian tribe, a land trust or certain other
organizations, would provide permanent protection for the parcel from
surface disturbance and ensure future public access and use.
S. 3157 also directs the Secretary of Agriculture to convey to the
Town of Superior, upon the Town's request, the 30-acre town cemetery
and approximately 181 acres adjacent to the Superior airport. In
addition, upon request by the Town, the Secretary shall convey the
reversionary interest and any reserved mineral interest in the 265-acre
Superior airport site already owned by the Town.
S. 3157 includes the 95-acre parcel called The Pond that was not a
part of H.R. 3301, which would be conveyed to the Department of
Agriculture. We understand that this area is currently used by rock
climbers and could accommodate those who are displaced from current
climbing areas that would be conveyed to Resolution Copper. While the
Forest Service agrees that this would be an attractive site for
climbers, it lacks the access and infrastructure to accommodate public
use, such as safe parking, pedestrian access, and sanitary facilities.
We would like to work with the Subcommittee and the bill's sponsor to
amend the bill to require such accommodations be completed prior to the
conveyance of the parcel to the Secretary.
If the value of the Federal land to be exchanged exceeds that of
the non-Federal land in the specified 9 parcels, section 5(b) of the
bill requires that Resolution Copper make a cash equalization payment.
The payment may be greater than the 25 percent limit imposed by Section
206 of the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1716(b). All cash equalization funds are to be deposited into the
Federal Land Disposal Account and could be used for either 1)
acquisition of additional lands from willing sellers within the
hydrographic boundary of the San Pedro River within a 2-year period
from the date of the deposit or 2) the management and protection of
endangered species and other sensitive land or environmental values in
the San Pedro Riparian National Conservation Area.
It is our understanding that upon completion of the land exchanges
described above, Resolution Copper would explore developing a very deep
copper mine beneath the Oak Flat parcel.
Section 4(d) of the bill requires that the exchange contemplated by
S. 3157 will be completed within one year. The Department believes that
this is insufficient time to complete all the work necessary 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 4(g) is a new provision not in H.R. 3301 that requires pre-
exchange processing including land survey and specified reviews that
are normally done in the course of a land exchange. Section 4(h)
directs the Secretary to complete an environmental impact statement
post-exchange but prior to commencing mineral production regarding any
Federal agency action carried out relating to commercial production.
The bill does not specify which party would be responsible for the
costs of these provisions. The Department's support is contingent upon
the clarification section 4(e) to require that Resolution Copper would
be responsible for these costs.
We are concerned about the provisions of section 5(a)(3) regarding
the failure of the parties to agree on the value of any parcel. As
written, the bill would require that a dispute would be resolved
through binding arbitration procedures pursuant to section 206(d) of
FLPMA. However, section 206(d) is intended for discretionary exchanges.
Accordingly, we believe section 5(a)(3) of the bill should be amended
to more specifically address those options in section 206(d) of FLPMA
that would be applicable to this exchange. We would like to work with
the Subcommittee and the bill's sponsor to amend section 5(a)(3)
accordingly.
S. 3157 includes a provision in Section 10 that would require a
payment to the United States should the cumulative production of
locatable minerals exceed the projected production used in the
appraisal required by section 5(a)(4)(B). This provision recognizes
that an accurate projection of future production will be difficult to
develop, and provides a mechanism for additional payments to the United
States should actual production exceed the projected production. The
Administration generally supports this approach but would like to work
with the committee to clarify the specific intent and implementation
procedures, as well as the disposition of receipts.
We object to the language in Section 10(b)(2) that makes funds from
potential mineral revenue payments available for expenditure without
further appropriation. This provision is meant to ensure that the
government is fairly compensated in the event that the valuation
process underestimates the amount of mineral resource that is
ultimately recovered, and we support this objective. However, the
legislation addresses the exchange of lands with mineral interests, the
value of which may not be fully realized until long after the exchange
has taken place. We would like to work with the committee to ensure
that the bill deposits the receipts into the Treasury, subject to
future appropriation.
If the final appraised value of the non-Federal land exceeds the
value of the Federal land, Section 5(d) reduces the Town's payment for
land it elects to purchase from the Secretary by an amount equal to the
difference in the values. We would like to work with the committee to
ensure that the taxpayer receives full fair market value in the sale to
the Town, in keeping with long-standing policy.
Section 8(a) directs the Secretary to design and construct one or
more campgrounds, including access routes, on the Globe Ranger District
of the Tonto National Forest within four years to replace the Oak Flat
campground. We appreciate that changes have been made to this provision
based on previous testimony on H.R. 3301, to double the amount of
funding and time to accomplish this task. However, concerns remain. We
still believe it will be difficult to find a suitable replacement site
within the Globe Ranger District, the funding cited in the bill remains
insufficient to construct a new campground to current standards, and
construction of a replacement campground within 4 years may be
difficult to accomplish. One alternative to constructing a replacement
campground would be to add to or upgrade existing campgrounds on the
Globe Ranger District. We would like to work with the Subcommittee and
the bill's sponsor to address our concerns.
Section 8(b) also was added to address concerns raised in our
testimony on H.R. 3301, but concerns remain regarding this provision as
well. This section provides an interim period for the Forest Service to
retain title to, operate, and maintain Oak Flat Campground. Due to the
complex nature of this exchange, we are concerned that the completion
of the land exchange could be delayed. We interpret the bill as
requiring the Secretary to deed the campground and revoke the mineral
withdrawal only if the land exchange is completed. We would like to
work with the Subcommittee and bill sponsor to clarify this language.
Finally, we would like to work with the Subcommittee and bill's
sponsor to address some technical issues with the bill and to ensure
that the maps described in the bill accurately reflect bill language,
and are referenced and dated properly.
This concludes my statement and I would be happy to answer any
questions you may have.
Senator Wyden. Mr. Holtrop, thank you.
Let us go next to you, Mr. Nedd.
STATEMENT OF MICHAEL NEDD, ASSISTANT DIRECTOR, MINERALS, REALTY
AND RESOURCE PROTECTION, BUREAU OF LAND MANAGEMENT, DEPARTMENT
OF THE INTERIOR; ACCOMPANIED BY DANNY LYTTON, CHIEF, DIVISION
OF RECLAMATION SUPPORT, OFFICE OF SURFACE MINING; AND ED BANGS,
WOLF RECOVERY COORDINATOR, FISH AND WILDLIFE SERVICE, MONTANA
Mr. Nedd. Mr. Chairman and members of the committee and
subcommittee, thank you for inviting me to testify on seven
bills of interest to the Department of the Interior. Because
there are so many bills before us, I will very briefly
summarize the Administration's position on each of these and
ask that our entire statement be made part of the record.
Senator Wyden. Without objection, that will be done.
Mr. Nedd. The Department supports with minor modification
S. 2443 and H.R. 2246 which release any reversionary interest
of the Federal Government to lands granted to Union Pacific
under the act of 1862 within a 2-mile subsurface railroad
corridor in Reno, Nevada. We believe this bill takes the
correct approach to clarify any potential land title question
that could result from placing this section of railway below
grade.
S. 2779 amends the Surface Mining Control and Reclamation
Act of 1977 to authorize States and Indian tribes that have not
certified completion of their coal-related abandoned mine land
problems to expend funds received under section 411(h)(1) on
noncoal-related AML problems. The Department is concerned that
the bill would ultimately delay coal-related health and safety
reclamation work that is a priority to ensure the health and
safety of people who live in or near our national historic coal
fields.
Danny Lytton, Chief, Division of Reclamation Support with
the Office of Surface Mines, is accompanying me today and will
be happy to answer any questions the subcommittee may have on
S. 2779.
The Administration opposes S. 2875, the Gray Wolf Livestock
Loss Mitigation Act of 2008. Ed Bangs, Wolf Recovery
Coordinator with the Fish and Wildlife Service out of Montana,
is accompanying me today and will be happy to answer any
questions the subcommittee may have on S. 2875.
S. 2898 and H.R. 816 release 65 acres of public land within
the Sunrise Mountain Instant Study Area to provide for
construction of a flood control project. The BLM supports S.
2898 and H.R. 816, but we recommend amending the legislation to
release the entire ISA from interim management of its
wilderness value so that the land can be managed for other
multiple use and under existing conservation agreements for the
area.
The Department generally supports S. 3088, the Oregon
Badlands Wilderness Act, and S. 3089, the Spring Basin
Wilderness Act. Both of these bills designate public lands in
Oregon as wilderness and provide for related land exchanges.
However, we would like the opportunity to work with the sponsor
and the committee to make modification to some of the land
exchanges, as well as some of the management and technical
improvements to both bills.
In general, the Department of the Interior supports the
efforts of congressional delegations to resolve wilderness
issues in their States. Congress has the sole authority to
designate land to be managed as wilderness and we have
repeatedly urged that these issues be addressed legislatively.
The Department supports the principal goal of S. 3157, the
Southeast Arizona Land Exchange and Conservation Act, though in
general we defer to the United States Forest Service on issues
directly related to National Forest Service System lands and
associated validation issues. We appreciate that a number of
changes have been made to the legislation in response to
concerns raised in previous testimony. 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.
Thank you for the opportunity to present the
Administration's position on these bills. I would be glad to
answer any questions.
[The prepared statements of Mr. Nedd follow:]
Prepared Statements of Michael Nedd, Assistant Director, Minerals,
Realty and Resource Protection, Bureau of Land Management, Department
of the Interior
S. 2443, H.R. 2246
Thank you for inviting me to testify on S. 2443, a bill to release
any reversionary interest of the United States in and to certain lands
located in Reno, Nevada. During consideration of similar legislation on
October 23, 2007 before the House Natural Resources Committee,
Subcommittee on National Parks, Forests and Public Lands, we testified
that we believed the goals of the House bill could be accomplished in a
more simplified manner. The House-passed bill, H.R. 2246 and S.2443 are
identical bills that partially address our recommendations. The BLM
appreciates the work of the sponsors in crafting these bills and we
support S.2443 with a minor modification.
Background
In the mid-19th century, the Congress sought to encourage the
development of the West by providing incentives for transcontinental
railroads. Among those incentives was the Act of July 1, 1862,
authorizing a transcontinental railroad to be built by the Union
Pacific Railroad and Telegraph Company. As part of that authorization,
the railroad was granted a right-of-way across public lands. One small
piece of that right-of-way is addressed in S. 2443.
A portion of the Union Pacific rail line authorized under the 1862
Act runs through downtown Reno, Nevada. As an active rail line, there
was increasing concern about safety and traffic flow issues. The city
of Reno found a creative solution in the form of the ReTrac (Reno
Transportation Rail Access Corridor) project, and in late 2005, the
first trains began to run on a 2-mile long, 54-foot wide, 33-foot deep,
train trench through downtown Reno. Unfortunately, there have been some
questions raised about whether the right-of-way given to the railroad
under the 1862 Act is affected by the subsurface nature of these two
miles of line. In addition, it is unclear whether the Federal
government retains a reversionary interest in the corridor.
S. 2443
S. 2443 would resolve these questions by releasing any reversionary
interest of the Federal government to lands granted to Union Pacific
under the Act of 1862 within the subsurface corridor. We would like the
opportunity to work with the sponsor and the committee on minor
modifications to the map so that the reversionary clause would only be
released on those lands within the subsurface corridor. We believe this
bill applies the correct approach to clarifying any potential land
title questions to this 2 mile subsurface railroad corridor.
Thank you for the opportunity to testify. I would be happy to
answer any questions.
S. 2875
Thank you for the opportunity to present the Administration's views
on S. 2875, the ``Gray Wolf Livestock Loss Mitigation Act of 2008''.
For the reasons outlined below, the Administration opposes this
legislation.
Background
On February 27, 2008, the U.S. Fish and Wildlife Service (Service)
published a final rule to remove the gray wolf population in the
northern Rocky Mountains from the Federal list of threatened and
endangered species. In doing so, the Service announced that the wolf
had exceeded its numerical, distributional, and temporal recovery goals
every year since 2002, and that the States of Montana, Idaho, and
Wyoming had made strong commitments to maintain wolf populations well
above minimum recovery levels. The delisting was effective March 28,
2008.
Since the time of its reintroduction, wolf depredation of livestock
has been a concern among some landowners and grazing permittees. The
Service, Tribes, State fish and wildlife agencies in Montana, Idaho,
and Wyoming, and USDA Wildlife Services currently work together to
investigate and respond to reports of suspected wolf damage to
livestock. The States and Tribes have signed cooperative management
agreements with USDA Wildlife Services to assist them with wolf
management. The States also have laws to protect private property from
damage caused by wildlife that are similar to the Federal experimental
population regulations that were in effect while wolves were listed.
Under those laws, landowners and grazing permittees will be able to
shoot wolves attacking or molesting their domestic animals, just as
they now can shoot resident black bears or mountain lions that are seen
attacking or harassing their livestock.
Since 1987, a private group, the Defenders of Wildlife, has paid
nearly $900,000 for livestock and herding and guarding animals killed
by wolves in the northern Rocky Mountains. However, it is uncertain if
that private compensation program will continue now that wolves are
delisted. Therefore, the States of Montana, Idaho, and Wyoming, as well
as adjacent states, anticipate that State-administered compensation
programs for wolf damage will complement or take the place of the
Defenders program after delisting.
S. 2875
The ``Gray Wolf Livestock Loss Mitigation Act'' authorizes the
Secretary of the Interior to provide grants to states and Indian tribes
to pay a share of the cost of programs to compensate livestock
producers for actions to reduce the risk of predation and for losses
due to predation. The bill sets out eligibility requirements,
provisions for allocation of funding, and provides for a maximum
Federal cost share of 50 percent.
In our view, for predator compensation and damage mitigation to be
effective components of wildlife conservation strategies, such programs
must seek to accomplish specific goals that contribute to the overall
strategy. Further, incentives to private landowners must operate on
clear bases of fact and performance so as to maintain the credibility
and fairness of expenditures. The program proposed in S. 2875 falls
short of both these requirements and, because of its broad scope, it
could also be unacceptably expensive and difficult to implement. As
wolf management is now a matter for the State governments, whether and
how to use compensation programs to advance State management goals is
most appropriately for State governments to decide. We are concerned,
however, that the proposed program would privilege for Federal cost-
sharing purposes a particular approach, financial compensation for
damage, to a specific conservation issue, human-predator conflict,
regardless of the conservation priorities identified by the States.
Another of the Administration's major concerns with the legislation
is its broad scope, which would cover a wide range of predatory species
and livestock losses. The bill defines a ``predatory species'' as
``gray wolves, grizzly bear, and other predatory species, as determined
by the Secretary.'' Other predators that cause livestock damage could
include mountain lion, golden eagle, black bear, coyote, fox, and many
types of predatory birds. In the Northern Rocky Mountains of Montana,
Wyoming, and Idaho alone, the Service estimates that there are over
1,000 grizzly bears, several thousand mountain lions and golden eagles,
and tens of thousands of black bear, coyotes, fox, and raptors. All of
these animals are capable of causing livestock losses due to predation,
or necessitating some type of preventative measure that reduces the
risk of livestock loss.
Because compensation programs generally require a rapid on-site
inspection and physical confirmation of the purported damage by
professional independent observers, such a broad program would result
in a significant workload for the agency administering the program. In
addition, the program would require Federal oversight and management of
some predatory species that are currently under state management, such
as mountain lions, black bear, and coyotes. In regard to its geographic
application, the bill refers specifically to Montana, Wyoming, and
Idaho, but indicates that it also applies to ``other States and Indian
tribes as the Secretary determines.'' Because nearly every state
contains predators that cause livestock damage, the program outlined in
S. 2875 would potentially have nationwide application.
Existing programs to compensate and mitigate for damage caused by
wildlife are varied and exceedingly complex. Although the Federal
government has worked with states, tribes, and non-governmental
organizations in order to conduct agency management activities to
reduce and mitigate the risk of damage to agriculture by wildlife,
including livestock loss due to wolf predation, it has never provided
monetary compensation for losses caused by wildlife.
Numerous state and private compensation and mitigation programs for
other types of wildlife damage (i.e., in addition to wolves) already
exist in the United States. Damage caused by other predators such as
black bears, grizzly bears, mountain lions and wild ungulates is paid
in Wyoming and Idaho by State-run compensation programs. Other
compensation programs pay for agricultural damage caused by wildlife
such as elk and deer (the amount of damage by predators is typically
much lower than that caused by ungulates or migratory birds).
Consideration should also be given to whether creating additional
programs to pay the public for predator damage might increase
expectations for compensation for damage done by non-predatory wildlife
as well, or might create incentives to raise livestock in areas with
predators. In addition, depending on the scope of this bill, wildlife
agencies in other states may have concerns that a Federal compensation
program for wildlife damage may compete for limited state match funding
and may negatively impact funding for higher priority state wildlife
conservation programs. It is our belief that most states will not have
the resources to participate in such a program.
Finally, we note that the program contemplated by S. 2875 would
support activities that are within the authority of another Federal
agency rather than within the Service's core mission to work with
others to conserve, protect, and enhance fish, wildlife, and plants and
their habitats for the continuing benefit of the American people. Such
a program could duplicate activities and overlap with other Federal
agency programs.
Thank you for the opportunity to testify today. We would be happy
to answer any questions you might have.
S. 2898, H.R. 816
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify on S. 2898, the Orchard Detention Basin Flood
Control Act. S. 2898, which is substantively the same as the House-
passed bill, H.R. 816, would release approximately 65 acres of public
land within the Sunrise Mountain Instant Study Area (ISA) [now referred
to as a wilderness study area under Section 603 of the Federal Land
Policy and Management Act (FLPMA)]. The Sunrise Mountain ISA is located
on the east side of the Las Vegas Valley and within proximity to Las
Vegas. The BLM supports S. 2898, but would like to work with the
Committee on an amendment to the bill.
The Orchard Basin Detention Project would provide much-needed flood
control for the eastern portion of the Las Vegas Valley. The project is
intended to protect the fast-growing Las Vegas area from flooding due
in part to stormwater drainage. The BLM understands the needs of this
growing area and supports efforts to protect both the expansion of the
city and the natural surroundings of the Las Vegas area.
The Sunrise Mountain ISA includes 10,240 acres of BLM-managed land.
The ISA lacks wilderness characteristics; it is in a clearly unnatural
condition and does not offer outstanding opportunities for solitude or
primitive recreation. Sections of the ISA are affected by numerous off-
highway-vehicle routes and illegal trash dumping, and there are
remnants of a copper mining operation from the early 1900s.
Furthermore, a portion of the ISA's western section is adjacent to
expanding land development that increases the likelihood of further
disturbances and unauthorized uses of the lands. Releasing the ISA from
wilderness study status would provide the BLM with additional
management tools for managing human activities, such as mechanically
removing litter and fencing off areas to protect sensitive resource
values. It would also allow the BLM to address other vital management
issues associated with the long-standing human uses affecting this
area. Among these issues is the need for an additional storm water
detention basin that is an essential component of a remediation project
for the Sunrise Landfill, a hazardous waste site on the ISA's
southeastern boundary. The proposed detention basin would encroach
several acres into the ISA.
The BLM recommends that S. 2898 be amended to release the entire
ISA (10,240 acres) from interim management of its wilderness values so
that the lands can be managed for other multiple uses and under
existing conservation agreements for the area.
Thank you for the opportunity to testify on S. 2898. We look
forward to working with the sponsors and the Committee on this piece of
legislation.
S. 3088, S. 3089
Thank you for inviting me to testify on S. 3088, the Oregon
Badlands Wilderness Act, and S. 3089, the Spring Basin Wilderness Act.
Both of these bills designate public lands in Oregon as wilderness and
provide for related land exchanges. The Bureau of Land Management (BLM)
generally supports the wilderness designations. We also support most of
the land exchanges, in principle, however we have several concerns. We
would like the opportunity to modify the lands identified for exchange.
We would also like the opportunity to work with the sponsor and the
Committee to make management and technical improvements to both bills.
In general, the Department of the Interior supports the efforts of
Congressional delegations to resolve wilderness issues in their states.
Congress has the sole authority to designate lands to be managed as
wilderness and we have repeatedly urged that these issues be addressed
legislatively.
The Department is concerned about ensuring that consideration is
given to energy potential when any legislative proposal for special
designation is considered. The BLM has reviewed the traditional and
renewable energy values of the areas proposed for designation, and has
determined that there is low or no potential for energy development in
the areas being designated. It is our understanding that there is
substantial local support for both of these proposed wilderness
designations. We support efforts to work together in the spirit of
cooperative conservation to solve local land use issues.
S. 3088, Oregon Badlands Wilderness Act
The proposed Oregon Badlands Wilderness lies just 15 minutes east
of the outdoor recreation-oriented community of Bend, Oregon. A trip
into the Badlands area is an experience of ancient junipers and
volcanic vistas. Visitors can explore ribbons of volcanic pressure
ridges or walk narrow moat-like cracks in the ground. Windblown
volcanic ash and eroded lava make up the sandy, light-colored soil that
contrasts sharply with fields of lava. A variety of wildlife species
inhabit the area including yellow-bellied marmots, bobcat, mule deer,
elk, and pronghorn. The southern portion of the Badlands includes
important winter range for mule deer. Avian species of local interest
include prairie falcons and golden eagles.
S. 3088 proposes to designate nearly 30,000 acres of BLM-managed
land as wilderness, release approximately 100 acres from Wilderness
Study Area (WSA) status, and provide for two land exchanges which will
add additional high resource value private lands to the public land
estate.
The Department generally supports the wilderness designation and
release in S. 3088 and would like to work with the sponsor and the
Committee on minor boundary adjustments and management language
modifications as is routine in such proposed designations. Among the
boundary modifications we would recommend are minor alterations to
protect adjacent landowner access and the exclusion of trailhead
parking areas and trailheads from the proposed wilderness.
We have serious concerns with section 5 of the bill which excludes
from the wilderness area a 25 feet corridor to accommodate the existing
use of the route for purposes relating to the training of sled dogs by
Rachael Scdoris. We applaud the efforts of Ms. Rachael Scdoris, a
visually-impaired sled dog musher living outside of Bend, Oregon, to
continue to train her sled dogs. It is our understanding that the
techniques she uses to train her dogs involve both motorized and
mechanized transport. The Wilderness Act of 1964 specifically prohibits
the use of both motorized and mechanized transport in designated
wilderness. If an exclusion from wilderness designation is going to be
made by Congress in this single case for Ms. Scdoris, we would like the
opportunity to work with the sponsor and the Committee to modify the
language of Section 5. We believe that greater specificity is
necessary.
Section 7 provides for land exchanges between the BLM, a private
party, and the Central Oregon Irrigation District (COID). Section 206
of the Federal Land Policy Management Act (FLPMA) provides the BLM with
the authority to undertake land exchanges that are in the public
interest. Exchanges allow the BLM to acquire environmentally-sensitive
lands while transferring public lands into private ownership for local
needs and the consolidation of scattered tracts. In principle, we
generally support the land exchanges envisioned by S. 3088, and we
would like the opportunity to work with the sponsor and the Committee
to address specific concerns.
The BLM supports the acquisition of the lands described in section
7(a) (the land exchange with Ray Clarno of Redmond, Oregon) and 7(b)
(the land exchange with COID). Some of the lands to be acquired are
within the area proposed for designation of wilderness and others are
within a Wildlife Connectivity Corridor designated by the BLM in its
2005 Upper Deschutes Resource Management Plan. The wildlife corridor
provides important connectivity habitat for pronghorn and other
wildlife in the area.
While the BLM could support the exchange out of Federal ownership
of some of the parcels identified by the legislation, many of these
lands provide important resource values, including wildlife and
recreation connectivity. There are alternative public lands within the
general area that the BLM has identified for disposal which may be more
appropriate for exchange. We would like the opportunity to work with
the sponsor to modify the land exchanges envisioned by the bill to
address these issues.
We would also like to work with the sponsor and the Committee to
address more technical issues related to the proposed exchanges,
including an extension of the current timeframe. Given the nature of
the work to be accomplished on the proposed exchanges, we anticipate
that it would take at least three years to complete the exchanges as
they are currently contemplated. We note that the legislation does
provide for an equal value exchange and standard appraisal provisions
consistent with section 206 of FLPMA. We strongly support these
provisions.
S. 3089, Spring Basin Wilderness Act
The proposed Spring Basin wilderness area lies just to the east of
the Congressionally-designated John Day Wild & Scenic River in north
central Oregon. Numerous vista points give visitors sweeping views of
the beautiful John Day river valley. Rugged cliffs, remote canyons and
colorful geologic features give the area a unique beauty. Wildlife
species in the area include mule deer, golden eagles, prairie falcons,
bobcats, California quail, meadowlarks, and mountain bluebirds. A
destination for hunters, hikers, and nature lovers, the proposed Spring
Basin Wilderness would comprise nearly 8,700 acres if the exchanges
envisioned in the bill were completed.
S. 3089 would designate a total of approximately 8,661 acres as the
Spring Basin Wilderness, including the current 5,982-acre Spring Basin
WSA. It would also provide for a series of four land exchanges with
private landowners and the Confederated Tribes of the Warm Springs
Indian Reservation (CTWSIR). The proposed land exchanges include lands
that would be included within the proposed wilderness boundary. These
exchanges would add high resource value lands to Federal ownership
along the John Day Wild & Scenic River as well as other environmentally
sensitive lands.
The Department of the Interior generally supports the wilderness
designation in S. 3089 and would like to work with the sponsor and the
Committee on minor boundary adjustments and management language
modifications as is routine in such proposed designations. Among the
boundary modifications we would recommend are alterations to protect
public access to the wilderness area as well as traditional hunting
camps, current and future trailhead facilities and to provide for
manageable boundaries. In addition, a possible modification to the
CTWSIR exchange discussed below would result in further additions to
the wilderness.
One of the land exchanges provided for in the bill includes the
exchange of a small parcel of land out of Federal ownership that is
currently within the WSA. The legislation should be modified to include
WSA release language prior to exchange of these lands.
Section 4 provides for four land exchanges between the BLM, three
private parties, and the CTWSIR. Section 206 of the FLPMA provides the
BLM with the authority to undertake land exchanges that are in the
public interest. Exchanges allow the BLM to acquire environmentally-
sensitive lands while transferring public lands into private ownership
for local needs and the consolidation of scattered tracts. In
principle, we support the land exchanges envisioned by S. 3089; however
we would like the opportunity to work with the sponsor and the
Committee to address specific concerns. We would note that there may
potentially be ongoing title issues regarding lands within the bed and
banks of the John Day River. These issues will need to be resolved
during the land exchange process.
Section 4(a) provides for the largest of the four exchanges,
between the CTWSIR and the BLM. This exchange would bring into Federal
ownership a large block of land proposed for inclusion within the
wilderness as well as additional tracts a few miles south of the
proposed wilderness within and adjacent to the John Day Wild & Scenic
River boundary. Bringing these additional parcels into public ownership
would increase public access to BLM-managed lands along the river for
hunting and hiking purposes and help to resolve ongoing inadvertent
trespass issues on CTWSIR lands. The exchange would also transfer out
of Federal ownership a number of parcels of BLM-managed land. These
parcels are largely scattered inholdings and the exchange would provide
for improved manageability for both the BLM and the CTWSIR.
The BLM in Oregon has been in discussions with the CTWSIR regarding
land exchange opportunities in this area which are more extensive than
those reflected in the legislation. We would like to work with the
sponsor and the Committee to more accurately reflect those discussions.
Section 4(b) provides for an exchange between H. Kelly McGreer of
Antelope, Oregon, and the BLM (McGreer Exchange). The lands proposed
for acquisition by the Federal government include Wild & Scenic river
frontage and a portion of Clarno East (a popular river access area with
continuing trespass issues), and we support bringing these lands into
Federal ownership.
The BLM supports the proposed exchange of lands out of Federal
ownership which are agricultural lands adjacent to lands owned by Mr.
McGreer. While we have not undertaken appraisals of the lands proposed
for exchange, we are concerned that the values of the lands proposed
for exchange under section 4(b) may not be relatively equal in value
(as required both by FLPMA and this legislation). We believe this
exchange may require substantial modification.
The proposed exchange under section 4(c) between the BLM and Bob
Keys of Portland (Keys exchange) provides for additions to the proposed
wilderness area and river frontage along the John Day Wild & Scenic
River, and we support their acquisition. We also largely support
exchanging out the Federal lands identified in this exchange except
that we would like to modify the proposal to insure continued non-
motorized public access to the Spring Basin Canyon trailhead in the
southwestern portion of the proposed wilderness. In addition, many of
the lands proposed for exchange out of Federal ownership are along
roads that would form the wilderness boundary. We wish to insure that
the land underlying the boundary roads remain in Federal ownership in
order to protect administrative access to the proposed wilderness.
Finally, section 4(d) provides for an exchange between the BLM and
the Bowerman Family Trust (Bowerman Land Exchange). The lands proposed
for acquisition by the Federal government include a small parcel within
the wilderness boundary and the remainder of the Clarno East launch
point. The parcel proposed for transfer out of Federal ownership is
adjacent to a large agricultural field owned by Bowerman. We support
this exchange.
We would also like to work with the Committee and the sponsor to
address more technical issues related to the proposed exchanges
including an extension of the current timeframe. Given the nature of
the work to be accomplished on the proposed exchanges, we anticipate
that it would take at least three years to complete the exchanges as
they are currently contemplated. We note that the legislation does
provide for an equal value exchange and that the exchanges be carried
out consistent with section 206 of the FLPMA and we strongly support
these provisions.
Conclusion
While we believe that the land exchanges in both S. 3088 and S.
3089 are generally in the public interest, work needs to be done to
clarify boundaries and appropriate parcels for exchange, and we would
like the opportunity to work with the Committee and the sponsor on
these exchanges before the bill moves to markup.
Thank you for the opportunity to testify. I will be happy to answer
any questions.
S. 3157
Thank you for the opportunity to testify on S. 3157, 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 funds to acquire
additional lands in the State of Arizona for management by the Forest
Service and the Bureau of Land Management. Three 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 and associated valuation
issues. We support the principal goals of S. 3157, and we appreciate
that a number of changes have been made to the legislation in response
to concerns raised in previous testimony. 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 three 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 the administrative jurisdiction
of the Bureau of Land Management (BLM). 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; and,
The 956 acre Appleton Ranch parcel adjacent to the Las
Cienegas National Conservation Area near Sonoita, 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. S. 3157 directs the BLM to
manage the lower San Pedro parcel as part of the existing San Pedro
Riparian National Conservation Area (NCA) designated by Public Law 100-
696. The lower San Pedro parcel lies along the same riparian corridor
as the San Pedro NCA, but is at least 60 miles downstream (north) of
the existing NCA, and has substantially different resource issues and
needs. The BLM intends to manage these lands as a separate unit of the
existing NCA with its own management guidance. We understand there is a
collaborative effort of stakeholders currently underway with which we
would like to work in developing the direction for the management of
this area.
The legislation proposes to transfer 160 acres in the Dripping
Springs area northeast of Hayden to the BLM We would welcome the
Dripping Springs parcel into federal management. The parcel has
important resource values including sensitive Desert Tortoise habitat
and allows the BLM to acquire this small private inholding within a
larger block of federal lands. The BLM does not intend to manage these
lands intensively for rock climbing as envisioned by earlier versions
of the legislation.
Finally, the bill provides for the transfer to the BLM of the 956
acre Appleton Ranch parcel on the southern end of the Las Cienegas NCA.
These lands lie within the ``Sonoita Valley Acquisition Planning
District'' established by Public Law 106-538, which designated the Las
Cienegas NCA. That law directs the Department of the Interior to
acquire lands from willing sellers within the planning district for
inclusion in the NCA to further protect the important resource values
for which the NCA was designated. These lands enable wildlife to travel
north through the NCA and beyond, and federal management will seek to
maintain this function. We support this acquisition and would recommend
that the legislation be amended to make clear that these lands would
become part of the Las Cienegas NCA upon acquisition and managed under
the provisions of that Act.
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.
We are concerned about the provisions of section 5(a)(3) regarding
the failure of the parties to agree on the value of any parcel. As
written, the bill would require that a dispute would be resolved
through binding arbitration procedures pursuant to section 206(d) of
FLPMA. However, section 206(d) is intended for discretionary exchanges.
Accordingly, we believe section 5(a)(3) of the bill should be amended
to more specifically address those options in section 206(d) of FLPMA
that would be applicable to this exchange. We would like to work with
the subcommittee and the bill's sponsor to amend section 5(a)(3)
accordingly.
S. 3157 includes a provision in Section 10 that would require a
payment to the United States should the cumulative production of
locatable minerals exceed the projected production used in the
appraisal required by section 5(a)(4)(B). This provision recognizes
that an accurate projection of future production will be difficult to
develop, and provides a mechanism for additional payments to the United
States should actual production exceed the projected production. The
Administration generally supports this approach but would like to work
with the committee to clarify the specific intent and implementation
procedures, as well as the disposition of receipts.
We object to the language in Section 10(b)(2) that makes funds from
potential mineral revenue payments available for expenditure without
further appropriation. This provision is meant to ensure that the
government is fairly compensated in the event that the valuation
process underestimates the amount of mineral resource that is
ultimately recovered, and we support this objective. However, the
legislation addresses the exchange of lands with mineral interests, the
value of which may not be fully realized until long after the exchange
has taken place. We would like to work with the committee to ensure
that the bill deposits the receipts into the Treasury, subject to
future appropriation.
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, as well as clarifying several references within
the bill text. 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.
______
Prepared Statement of Brent Wahlquist, Director, Office of Surface
Mining Reclamation and Enforcement, Department of the Interior
S. 2779
Mr. Chairman and Distinguished Members of the Committee, thank you
for the opportunity to submit testimony on S. 2779, a bill to amend the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), as amended.
This bill would authorize States and Indian tribes that have not
certified completion of their coal related abandoned mine land (AML)
problems to expend funds received under section 411(h)(1) on non-coal
related AML problems.
While this legislation would apply to all uncertified states, it is
of particular importance to three States (New Mexico, Colorado, and
Utah) that have traditionally spent a substantial portion of their AML
funds to address hazardous non-coal AML problems.
We recognize that many states have used AML funds to support a
variety of worthwhile goals in addition to reclamation of coal related
health and safety issues. One of SMCRA's objectives is to provide
funding to address these coal related issues. Accordingly, we are
concerned that the bill would ultimately delay coal-related health and
safety reclamation work that is a priority to ensuring the health and
safety of people who live in or near our Nation's historic coalfields.
Therefore the Administration cannot support the bill.
Background
There are 21 uncertified States receiving grants under the
abandoned mine land (AML) program. Together, they have a recorded
inventory of over $3.1 billion of high-priority, coal-related AML
problems (those representing health and safety hazards to the public)
remaining to be addressed. Each of these uncertified States is now
receiving grants from at least three sources. Two of these sources,
State share funds (SMCRA 402(g)(1)) and historic coal share funds
(SMCRA 402(g)(5)), have been allocated to uncertified States since
1990. Historic coal share funds are allocated only to those States that
have remaining high-priority coal problems in their inventory, while
state share funds are allocated to any state that has not certified
completion of all remaining coal AML problems even if it no longer has
an inventory of high priority problems.
Also, since 1990, funds from these two sources are the only funds
that may be used for non-coal reclamation by uncertified states. The
2006 amendments added Treasury payments (SMCRA 411(h)(1)), a third
source, for repayment of unappropriated State share balances (prior
balance replacement funds). However, these funds, which are paid out
over seven years beginning in FY 2008, must be used for coal-related
AML problems.
In some cases, a fourth funding source is available. Before the
2006 amendments were passed, SMCRA authorized all uncertified States
with high-priority coal problems remaining to receive at least $2
million annually. The 2006 amendments raised that level to $3 million
over a four year phase in period. When the sources of funding outlined
above total less than the minimum funding level, an amount necessary to
reach that threshold is granted from funds otherwise designated for the
Secretary of the Interior's (Secretary) use. Use of these funds is also
limited to addressing high priority coal AML problems.
Historically, New Mexico, Colorado, and Utah have spent about half
of their AML grants on non-coal problems. These three States received
approximately two-thirds of their fiscal year 2008 funding in prior
balance replacement funds. It is important to note that the 2006
amendments provide enough State share and historic coal share to allow
each of these three States to maintain their current non-coal programs
at historic levels. As mandatory funding under the 2006 amendments is
fully phased in, these states will have substantially more funding
available for non-coal AML work than they were spending on non-coal
prior to the 2006 amendments.
S. 2779
As introduced, S. 2779 would amend SMCRA to enable uncertified
States to use prior balance replacement funds to reclaim non-coal
problems. Since prior balance replacement funds are a major source of
AML funding for uncertified states through FY 2014, this will
substantially increase funds available for non-coal. However, since S.
2779 does not increase overall funding available, any increase in
expenditures by a State on non-coal problems will mean a corresponding
decrease in funds spent to address coal related problems, thus delaying
completion of high priority coal AML work shown in that State's
inventory. This, in turn, would delay certification of completion of
all coal problems for States that would increase spending on non-coal
as a result of this bill.
Certification of Completion of Coal Reclamation
Once a State certifies completion of its coal AML problems, it is
no longer eligible for AML funds. Instead, it receives payments from
the Treasury in an amount equal to what the State share would have been
(as well as any remaining prior balance replacement funds if
certification occurs prior to 2014). This foregone State share, along
with the historic share that state had been receiving, will be
distributed as historic coal share funds to the remaining uncertified
States to clean up high priority coal problems. Thus, the funding to
states with remaining high priority problems is increased each time
another state certifies. On the other hand, certified states have broad
discretion and very little accountability to OSM for how they use their
grants, which can certainly all be used for non-coal AML work.
In summary, while S.2779 will increase the funding available for
non-coal AML problems for uncertified states, it will cause a
corresponding delay in the completion of high priority coal AML
problems in those states which spend more on non-coal problems as a
result of this bill. Further, as states delay certification of
completing their remaining coal problems, it limits funding that would
otherwise be available to remaining uncertified states.
Senator Wyden. Thank you very much, Mr. Nedd.
What we are going to do--because I think we are going to
have a vote in a little bit, I am going to ask a couple of
questions about the Oregon bills, and I am going to recognize
colleagues because I know they have concerns about the status
of their bills. Then at the end, I am going to come back and
ask some questions with respect to Arizona.
Now, Mr. Nedd, we appreciate your support for the
wilderness designations in Oregon. I know you have been in
discussion with the Confederated Tribes of the Warm Springs
Indian Reservation about more extensive land exchange
opportunities so that we could boost the wilderness in there.
Is it correct to say at this point that the Bureau of Land
Management supports the concept of a larger exchange with the
tribe?
Mr. Nedd. Senator, we are very interested in working with
you and with the tribe on the proposed exchange and agree that
there is an opportunity for a larger exchange.
Senator Wyden. One other question just for you, Mr. Nedd,
before colleagues. You raise concerns with the land selected
for what is called the McGreer exchange and the question of
potential inequality. It is certainly my intent to work with
you all on your concerns, but you did note in your testimony
that the legislation provides for an equal value exchange,
which is where we clearly wish to go. Is that not the kind of
language you need to address the question of potential
inequality?
Mr. Nedd. Yes, Senator Wyden. Your legislation does provide
that all exchanges are to be of equal value, and we strongly
support your position on this. We simply felt we should point
out that this particular exchange, the McGreer exchange, may
require substantial modification.
Senator Wyden. I think we want to continue those
discussions with you because any proposed exchange--and we have
dealt with I do not know how many during my time on this
committee--is based on rough estimates prior to an actual
appraisal being undertaken. So we are interested in working
with you cooperatively, and I appreciate your comments.
Let me just recognize colleagues so they can get questions
in at this point.
Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
Mr. Nedd, I know you have people here for S. 2875 and for
S. 2779. I think you mentioned there were some colleagues that
you have with you that could help answer some questions.
If I could go to S. 2875 first, I would like to read a
quote to you from the Twin Falls Times newspaper, and it says,
``We didn't want it. They brought it to us. If the Federal
Government is going to bring it to us over our objections''--
and they are talking about the wolf--``then they need to pay
for it.''
That quote was from James Caswell, who at the time was the
Administrator for the Governor of Idaho's Office of Species
Conservation in regards to Idaho receiving Federal money
through an earmark for Idaho's wolf compensation program. As
you know, Mr. Caswell is now the Director of the Bureau of Land
Management.
Do you agree with the director's statement that the Federal
Government should pay compensation to ranchers for introducing
the wolf to Wyoming and Montana and Idaho over the States'
objections?
Mr. Nedd. Senator, I would like to refer to Mr. Ed Bangs
who is here to answer any----
Senator Barrasso. I see him smiling, and he is very happy
to do that.
Mr. Bangs. Thank you. I guess the position of the
Administration is that there are some serious problems with the
bill as written and we oppose it.
Senator Barrasso. So do you agree, though, that the Federal
Government should pay compensation to ranchers for introducing
the wolf into these States?
Mr. Bangs. I guess I am here to answer any technical
questions I can. The Administration's position is that, no,
there should not be compensation offered.
Senator Barrasso. So you would disagree then with the
statement of James Caswell, who is currently the Director of
the Bureau of Land Management.
Mr. Bangs. I would say that the Administration's position
is that no compensation should be offered.
Senator Barrasso. Reading the testimony that you submitted,
Mr. Nedd--I know you did not have time because of the number of
bills to go through each and every one of the testimonies in
full--the testimony says, ``As wolf management is now a matter
for the State governments, whether and how to use compensation
programs to advance State management goals is most
appropriately for State governments to decide.'' This seems to
be implying that the management of the wolves is entirely a
State issue. That is what I am hearing also from Mr. Bangs.
There are people in Wyoming--and we have one of them as our
guest today to talk about this--who would eradicate the wolves
entirely. That would be their position. So if Wyoming wanted to
adopt that position--that was our management plan--could we do
it?
Mr. Nedd. Senator, again, I would have to refer to Mr. Ed
Bangs who is here to answer any questions.
Mr. Bangs. I think the wolves could be eliminated. We
eliminated them once. If that happened, what you would see is a
relisting under the Endangered Species Act. So you would get
the Federal Government involved again.
Senator Barrasso. So then the Federal Government does want
to manage the wolves, but they just do not want to provide
assistance to those whose livelihoods are threatened.
Mr. Bangs. I think the Federal Government wants to make
sure that the wolves stay recovered and are managed as resident
game species just like elk, deer, and other things are by the
States.
Senator Barrasso. Do these States have any say in the
decision by the Federal Government to reintroduce the wolves
into the State?
Mr. Bangs. I think that they did. The State of Idaho helped
prepare the EIS. We had the State involvement. I think in the
end they all opposed wolf restoration, but in the early
development stages, they certainly had a voice in the issue.
Senator Barrasso. So they were forced upon the States in
spite of the States not wanting them, but then you are willing
to sit there and tell me and the members of this panel that it
is now up to the States to deal with it on their own. Is that
what you are really suggesting, that the Federal Government
should have no responsibility for the damage that has occurred?
Mr. Bangs. I think the issue is that the wolf population is
recovered. The States of Idaho and Montana have been managing
wolves under cooperative agreement with the Service for years
while they were listed. Now that they are delisted, that
management authority is transferred entirely to the States.
Senator Barrasso. So the additional damage being done by
wolves to livestock--the position of the Administration is we
came in, we created this mess, we are not responsible. Now it
is up to you to clean up and pay for it.
Mr. Bangs. Actually there is mitigation for wolf damage in
the form of USDA Wildlife Services who partners with the States
to remove problem wolves. So there is mitigation for wolf-
caused damage even while delisted.
Senator Barrasso. If I could move on to S. 2779, Mr. Nedd.
This is the Surface Mining Control and Reclamation Act of 1977.
One of the statements in your testimony raises some real
concerns. You state, ``Certified States have broad discretion
and very little accountability to the Office of Surface Mining
for how they use their grants which can certainly all be
used,'' it says, ``for non-coal AML work.'' If that is, indeed,
the case, are you telling me that all of these hoops that
certified States like Wyoming and Montana have to jump through
are just that? Bureaucratic mazes that serve very little
purpose and just slow down the distribution of money to the
States?
Mr. Nedd. Senator, I have Mr. Danny Lytton, who is Chief,
Division of Reclamation Support, with the Office of Surface
Mining. He will be glad to answer any questions.
Senator Wyden. Let us do this. Let us recognize Mr. Lytton,
but briefly because we have got Senator Tester and Senator
Smith.
Senator Barrasso. That will be my final question.
Senator Wyden. Great.
Mr. Lytton. Senator, first of all, let me just say that our
Solicitor's Office has advised us that we must use grants to
distribute the funds that certified States are getting.
Recognizing that there is a tremendous amount of discretion
that the certified States have in how they use their funds, we
have actually changed our grant process for certified States in
general. We require less information up front. We have cut in
half the time it takes--time allotted for us to approve a
grant. We do not require the listing or your show--certified
States showing us what projects will be done. Finally, we
cannot approve those projects. We are required to allow any
project that falls within your purview, either through the
State legislature or through the program's decisions. We are
required to approve those projects. The only requirement that
we have placed is that we approve the use of the fund for your
purposes. In other words, we have to approve a grant and we do.
Senator Barrasso. You can see, Mr. Chairman, the difficulty
in dealing with a bureaucracy that says seven equal payments,
an equal payment each year for 7 years, and it says nothing
about a grant process and gives you this kind of an answer.
Thank you, Mr. Chairman.
Senator Wyden. Thank you, Senator.
Senator Tester.
Senator Tester. Yes, thank you, Mr. Chairman.
I would assume, Mr. Nedd, you are going to refer all
questions about the wolf mitigation bill to Mr. Bangs?
Mr. Nedd. Yes, Senator.
Senator Tester. Mr. Bangs, do you still work for the Fish
and Wildlife Service, since the wolves have been delisted?
Mr. Bangs. I do.
Senator Tester. How long are you on the payroll for?
Mr. Bangs. Until October 1 they told me.
Senator Tester. OK, that is good. I would hope that you are
not the sacrificial lamb here. No pun intended.
I can tell you that this program is very, very important
and it is somewhat disconcerting that the person who makes the
presentation refers all questions to somebody who is going to
be gone October 1. That is not to say anything negative about
you, Mr. Bangs. You have done a great job in your capacity. I
hope you get a job that is very, very good down the line.
I will ask some questions revolving around the wolf
program. Does the agency believe that public acceptance is an
important part of wolf reintroduction?
Mr. Bangs. Yes.
Senator Tester. Do you think there will be public
acceptance as long as cattle ranchers are having their cattle
preyed upon by wolves with no mitigation funds for that?
Mr. Bangs. If there was no mitigation, I think support for
wolf recovery would go down.
Senator Tester. Are Defenders of Wildlife still in the
business, since the wolf has been taken off Endangered Species,
of putting up money for predation?
Mr. Bangs. In Wyoming and Idaho, yes. In Montana, no. They
have turned that program over to the State for compensation.
Senator Tester. Is it long-term? Are they going to continue
to put money into those programs year after year?
Mr. Bangs. I suspect not, no.
Senator Tester. Do you think this will probably be the last
year for it?
Mr. Bangs. I would suspect so, yes.
Senator Tester. So what are the impacts when we do not take
care of predation with ranchers? What is going to be the long-
term impact on all the work that has been done for the last 10
or 11 years?
Mr. Bangs. I guess the wolf predation will still be taken
care of. The Wildlife Service participates in mitigation,
killing problem wolves. The States will have hunting seasons.
So there is a lot of mitigation of wolf damage. The
compensation itself----
Senator Tester. Right.
Mr. Bangs. Each of the States has a compensation program
that they are trying to raise money for.
Senator Tester. How successful do you think those States
are going to be in raising money for wolf predation when both
parties on both sides really do not have any obligation to step
up to the plate?
Mr. Bangs. I think raising private funds or funds within
the States is going to be a tough row to hoe.
Senator Tester. Thank you. So what role should the Federal
Government be playing?
Mr. Bangs. The Administration believes that the current
bill in terms of compensation--we cannot support that. I might
point out that in terms of mitigation, in terms of rider
programs or something like that, there is Federal money through
different grant programs available to the States for that
currently.
Senator Tester. Is the Administration aware that over the
last 15 years, they have believed that public acceptance is
critical for wolf introduction to be successful?
Mr. Bangs. Yes.
Senator Tester. Do you see any sort of diametric opposition
to what you are saying and what the Administration is telling
you to say?
Mr. Bangs. I think the goal of the program was to get the
wolf population recovered and delisted so the States can manage
them just as they do other resident wildlife with deer, elk,
that kind of thing.
Senator Tester. Yes, but what about the compensation part
of it? It is not a huge part of the whole overall program, but
I think it is a critical part. Would you not agree?
Mr. Bangs. I can see where you would feel that way.
Senator Tester. You are very, very good at what you do, Ed.
I can see why they put you up here.
All kidding aside, I will just tell you this, and Senator
Barrasso alluded to it. Idaho has had an earmark for $100,000
for compensation for livestock losses. The reason that is
important is because two of the folks, who I respect both very,
very much, who are high up in the Department are from Idaho.
Yet, the Department comes down and says, no, we are not in
favor of this when in fact, if they were not in favor of this,
why did they request the earmark and why did they get the
earmark? Why did they utilize the earmark? Why did they not
turn the money back? You do not have to answer that.
Mr. Bangs. I do not really know.
Senator Tester. You do not have to answer that.
I would just ask this. I mean, go back to the people that
you work with. I can tell you that I think it is totally
unfair. All the points that Senator Barrasso brought up were
dead-on. I think it is totally inappropriate and unfortunate
that the Federal Government is walking away from this. I think
it is terrible.
I think the fact--and this is not to speak poorly of you,
Mr. Bangs--that they did not send somebody higher up in the
office that made this decision because quite honestly, I do not
think you have bought into it either. You do not have to answer
that either because the truth is it is compensation for a
select few people that raise livestock. We are not talking
about a lot of livestock, but it is the same people that get
hammered every time. A select few people to get compensation is
the right thing to do, and for the Department to say, no, we
are going to wash our hands of it, it is a State problem now,
is absolutely ridiculous. It is absolutely ridiculous.
I appreciate the work you have done in Montana. You have
done a great job. You need to influence the people above you
for the next 3 or 4 months to step back and take a look at this
and ask if this is really the right position because it is not.
Unequivocally common sense will tell you that this is not the
right decision to be making because if we think wolf
introduction is the right thing to do, which I would guess the
Department does, if we are going to keep public acceptance at a
high level, this has to be a part of the equation. That is all
I am going to say.
I got to tell you I wish you would have sent--and this is
nothing against you, Mr. Bangs, I wish you would have sent
somebody from the Department that I could nail to the wall
because it is pretty difficult when you got a guy who is going
to be gone October 1.
Thank you very much.
Senator Wyden. Thank you, Senator.
Senator Smith.
Senator Smith. Mr. Nedd, can you speak for the BLM whether
or not you believe that off-highway vehicle recreation demand
is currently being met by the BLM's existing program in central
Oregon?
Mr. Nedd. Senator, I do not have first-hand knowledge and I
cannot speak for the BLM on that.
Senator Smith. I wonder if you can get someone from the BLM
who has some knowledge of that--if they can get back to me with
an answer whether they think that they are meeting that demand.
Mr. Nedd. Yes, Senator.
Senator Smith. Could you also get back to me with a list of
all WSA's in eastern Oregon that have been studied and were
deemed not suitable for wilderness designation?
Mr. Nedd. Yes, Senator.
Senator Smith. Thank you. That would be great.
On a different issue, it is my understanding that the BLM
has about 130 permits pending for solar energy development on
public domain lands. Can you explain the backlog in processing
these permits, and does the BLM need more resources to process
these permit applications?
Mr. Nedd. Senator, I will have to get back to you with the
exact reasons for the backlog and other information, Senator.
Senator Smith. That would be great. We need energy. Thank
you.
Senator Wyden. Thank you, Senator Smith.
We do need to have a few matters on the record with respect
to the Arizona legislation, 3157. So let me, if I might, start
with you, Mr. Holtrop.
As I understand it, all parties believe that S. 3157 would
limit the review of environmental impacts prior to the
conveyance of Federal land and would, instead, require the
Secretary to conduct the EIS at a later date prior to
commercial production at the proposed mine. As written in the
bill, if the EIS showed that the mine would cause unacceptable
environmental impact, would the Forest Service still have the
authority to prevent that from occurring, having already
conveyed the land?
Mr. Holtrop. My understanding of the way the bill is worded
is we would do an environmental impact statement that would be
on those associated activities on the Federal lands that would
be required to be looked at at that time. So what we would be
looking at would be the impact of associated activities on the
remaining Federal lands.
Senator Wyden. Now, you testified, Mr. Holtrop, that the
Forest Service supports the exchange, believes it can be
offered in the public interest. How do you all go about making
that determination without knowing what the potential impact is
of the proposed mine?
Mr. Holtrop. Mr. Chairman, that is a good question. I think
the language of the testimony saying we believe that it is in
the public interest--that the exchange is in the public
interest--I will tell you the couple of things that I think we
weighed when we looked at that. One was we looked at the
benefits of the mine itself. We looked at the incredible
resources that the lands that would be conveyed to the Federal
Government would have with them, especially in a dry area of
Arizona, the precious resource of water and riparian areas, as
well as threatened and endangered cactus habitat and some
things like that, and the fact that it is a 1.8 or 1.9 to 1
acre-for-acre exchange coming into the public ownership. All of
those things, I think, weighed together, lead us to the point
of being able to say we believe, on balance, that this is in
the public interest.
Senator Wyden. Now, Mr. Holtrop, the Inter Tribal Council's
testimony goes into a number of concerns about the impact of
the proposed mine on the Apache Leap escarpment. My question
is, is it possible that the subsistence that is anticipated as
a result of the development of the mine would in your view
significantly impact Apache Leap?
Mr. Holtrop. I am not feeling like I am qualified to answer
that question. As you know, the legislation includes a
conservation easement to protect the Apache Leap. I think that
that was part of the intent of the legislation, and I am not
qualified to answer a question about subsistence.
Senator Wyden. We will hold the record open on that because
I think that is an important point, and it seems to me at some
sort of basic level we really need to have a yes or no answer
to that because if it is yes, we want to know how the exchange
is in the public interest, even if Apache Leap is significantly
impacted, and if no, we want to know how you all got about
getting to that position. So we will hold the record open on
that question.
To be sensitive to Senator Kyl's concerns, can you have
answers to those questions for us a week from today?
Mr. Holtrop. I am sure we can.
Senator Wyden. OK.
Then one question for you, Mr. Nedd, and perhaps you have
thoughts on this as well, Mr. Holtrop. It is our understanding
that the Oak Flat Campground was administratively withdrawn and
it appears that the Administration has the authority to revoke
the withdrawal and undertake an administrative land exchange to
facilitate the development of the mine. So our interest here
is, is that your understanding, and if it is, why has the
Department not pursued that?
Mr. Nedd. Senator, I am not familiar with the specifics of
the Forest Service withdrawal and would defer to the Forest
Service on that specific----
Senator Wyden. Mr. Holtrop, do you want to----
Mr. Holtrop. I would be happy to address that. The
withdrawal occurred, I believe, in 1955 or some time close to
that, to protect the resources of the campground, the Federal
investment in the campground. My understanding is that
administratively a withdrawal like that could be revoked. There
are other aspects of the exchange and the operation which are
beyond our Federal authority to be able to deal with, things
such as an exchange that involves more than one Federal agency,
because there are lands that would become managed by the Forest
Service, as well as by the Bureau of Land Management. We do not
have the authority to handle something like that. The greater
than 25 percent cash equalization is another thing that we do
not have the authority to deal with. So there are other aspects
of the bill that are beyond our administrative authority.
Senator Wyden. All right. Thank you all.
Senator Barrasso, do you have any questions about Arizona?
Otherwise, we will excuse this panel and get on to the next
one.
Senator Barrasso. No specific questions about Arizona.
Thank you, Mr. Chairman.
Senator Wyden. OK.
We thank all of you. We appreciate the cooperation of the
Administration on all this legislation.
David Salisbury, President and CEO of Resolution Copper, if
you will come forward. Shan Lewis, President of the Inter
Tribal Council of Arizona, if you will come forward. Roger
Featherstone, Southwest Circuit Rider, Earthworks, if you will
come forward.
For all of you, so you will have a sense of what Senator
Barrasso and I are juggling, there is an important vote
scheduled for 4 o'clock. So we are going and try and get as far
down the road. We have Mr. Featherstone, Mr. Salisbury. There
is Shan Lewis. Very good. We will get as far with the three of
you as we can and we will try to come back quickly afterwards.
Again, if you can summarize your principal concerns, we are
going to make your printed statements a part of the hearing
record in their entirety.
Mr. Salisbury, why do we not begin with you?
STATEMENT OF DAVID SALISBURY, PRESIDENT, RESOLUTION COPPER
MINING, LLC, SUPERIOR, AZ
Mr. Salisbury. Mr. Chairman and members of the committee,
my name is David Salisbury. I am the President of Resolution
Copper based in Superior, Arizona.
Thank you for the opportunity to testify in support of S.
3157. This legislation represents an important step toward
restarting a mine in Arizona's historic Copper Triangle Mining
District.
We also want to thank Senator Kyl for his longstanding
leadership and support.
Upon completion of this land exchange, we propose to
invest, at considerable risk, the time and funding required to
develop a deep underground mine. We believe the innovative and
proven technology will allow us to build a block cave mine
7,000 feet below ground with limited surface impact.
Mr. Chairman, there are six main reasons why we believe
this land exchange is in the public interest.
First, S. 3157 provides fair value to the American
taxpayer. The appraisal will be done by the Forest Service
using Department of Justice methodology to determine the fair
value of all land. Additionally, it provides full cash
equalization. If the appraisal indicates we owe additional
money, we will pay the difference to equalize the value. If,
however, the valuation indicates that the value of the land we
are exchanging is higher than the land we receive, we will
donate the excess to the United States. Importantly, this
legislation also includes a new, unprecedented value adjustment
payment, which ensures that the Government will receive payment
for any ore mined that was not included in the original
valuation of the ore body.
Second, this legislation delivers significant environmental
benefits and safeguards to the region. It includes language
confirming that an environmental impact statement, pursuant to
NEPA, will be completed before we mine the ore body. Further,
the parcels Resolution Copper would exchange to the Government
are of high ecological value and were identified with the
assistance of the BLM, Forest Service, and leading
environmental NGO's like the Nature Conservancy and Audubon
Arizona. Also, we plan to use tailings from our mine to reclaim
an existing open pit mine in the region by filling it with our
tailings and restoring the landscape.
Third, we are listening to the suggestions and concerns
from various stakeholders and doing our best to work with them.
Since the House hearing last November, we have had more than
300 meetings with stakeholders to address issues raised. S.
3157 reflects changes suggested during these discussions. Here
are a few examples.
The Forest indicated that additional time and money would
be required to relocate the Oak Flat Campground. This
legislation doubles both the time and the money compared to the
House bill.
Concerns have been raised by Native American nations. So we
have taken steps to ensure protection of the Apache Leap, to
ensure access to areas for traditional and cultural activities.
We acknowledge the sovereignty of the tribal nations and
respect their requests for government-to-government
consultations. We welcome the chance to work with them to
address their concerns.
We have addressed the mountain climbing community's request
to transfer Resolution's Pond property to the Forest Service
for future climbing. We have extended the duration of access to
the Oak Flat area, and we will continue to work closely with
the climbing community to provide additional opportunities.
Fourth, the mine is expected to produce up to 20 percent of
our Nation's anticipated copper demand. This is important now
more than ever because, for instance, hybrid vehicles use 70 to
100 percent more copper than conventional cars.
Fifth, the mine will create significant economic prosperity
for Arizona and the Nation. We anticipate spending $10 billion
and generating 1,400 jobs in connection with mining operations,
as well as several thousand construction-related jobs and a
thousand more indirect jobs. Resolution is working closely with
the Town of Superior and throughout the region to create a
diversified economy so that economic upswing created by the
mine will act as a catalyst for growth and help build a
sustainable economy.
I have submitted for the record a study which highlights
the significant economic and fiscal benefits the project will
generate, totaling in excess of $46 billion in economic
activity and approximately $11 billion in taxes to various
levels of government.
Sixth, more important than our view that the project is in
the public interest, many Arizona leaders, including Governor
Napolitano, a significant majority of the Arizona legislature,
county supervisors, mayors, city councils of the Copper
Triangle, community leaders, and the Arizona Republic, and many
other individuals and organizations have expressed their
support for moving this legislation forward.
In closing, this project represents a terrific opportunity
for the State of Arizona and the Nation. We ask Congress to
authorize this land exchange so that the promise of this
project has a chance to be realized. We appreciate your
consideration and respectfully request your prompt action to
enact this legislation this year. Thank you.
[The prepared statement of Mr. Salisbury follows:]
Prepared Statement of David Salisbury, President, Resolution Copper
Mining, LLC, Superior, AZ, on S. 3157
Mr. Chairman and Members of the Subcommittee: My name is David
Salisbury. I am the President of the Resolution Copper Mining LLC
(``Resolution Copper''), which is a company headquartered in Superior,
Arizona and owned by subsidiaries of Rio Tinto plc and BHP-Billiton
plc. I am here in support of S. 3157, and to briefly describe the
efforts we have made to address various issues since this Subcommittee
held a hearing on similar legislation two years ago. The Southeast
Arizona Land Exchange and Conservation Act of 2008, S. 3157, represents
an important step toward the development of a large, underground copper
mine in a historic mining district. This legislation would allow us to
acquire sufficient acreage of National Forest land, known as the Oak
Flat parcel, where much of our new underground mine will be located.
Most of the land needed is already blanketed by unpatented mining
claims which we or our predecessors have owned and maintained for
decades. As you can see from the map* attached to my testimony, the Oak
Flat parcel abuts, or is intermingled with, private land we already
own. That private land was the site of the Magma underground copper
mine, which operated from 1912 to 1996, and produced 25 million tons of
copper ore.
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* Map has been retained in subcommittee files.
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In the late 1990's, exploratory drilling revealed the existence of
a very large copper deposit located adjacent to the old mine workings,
but at a far greater depth of 4,500 to 7,000 feet below the surface.
This will require us to sink deep shafts and tunnels to access the ore
body. Once we have done this, we will complete a model of the precise
geotechnical conditions and determine if it is feasible to construct
the mine.
Developing a mine a mile to a mile and a half beneath the surface,
where the temperatures are up to 175 degrees Fahrenheit, is not only
technologically difficult, but also an extremely expensive and
financially risky proposition. Initially it will involve $750 million
in exploration and feasibility work. If the mine is feasible,
Resolution Copper will spend at least $4 billion toward capital
investment before mine construction is finished and we ship our first
load of copper. Resolution Copper has not made the final determination
as to the economic and technological feasibility of mining this ore
body. Despite a high level of confidence on the part of our engineering
team, it will require a $750 million investment before we can make this
determination.
To secure this type of investment, we believe it is critical both
to possess an ownership interest in most of the land where we will be
operating and to provide an adequate safety buffer around the mining
area. Further, the area around the project is intermixed with public
and Resolution's private lands preventing a safe and workable approach
to mine permitting, development and operation. In addition, because we
will intensively use the Oak Flat area for the mine, most of the land
we are seeking to acquire, except for Apache Leap, will have a limited
lifespan for continued public use in order to maintain safety for the
public.
We realize that our land exchange will result in the loss of a
Forest Service campground and other public recreation, but believe that
this legislation provides for a beneficial transfer of lands with the
added potential of a mine that will only enhance the national interest
in this exchange. Why? Because once operational, this mine would
provide approximately 20 percent of the Nation's annual needs for
copper from a safe, domestic source for approximately 50 years.
Building upon the national interest I have just outlined, allow me
to explain the significant economic and fiscal impact the mine will
have. The ore body is located in a region with over 100 years of mining
history known as the ``Copper Triangle.'' This region has suffered with
high unemployment for a number of years and our mine is expected to
bring 1,400 permanent, high quality, technical jobs directly affiliated
with the mine (1,200 direct jobs and 200 contract jobs) and a large
number of service related jobs to the region. Further, we anticipate
the creation of several thousand jobs during the construction phase of
the mine.
Included with my testimony I have submitted the executive summary*
of an economic and fiscal impact study prepared in April 2008 by
Elliott D. Pollack & Company, and I would like to provide you with a
few highlights directly from that report:
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* Document has been retained in subcommittee files.
The mine impact is estimated to last 66 years, with 16 years
of feasibility and preparation and 50 years of mining
operations.
The total economic impact of the 66 year project on the
State of Arizona, including the additional development of
residential, commercial, and industrial land in Superior, is
estimated to be $46.4 billion. During the peak years of mine
projection, the annual impact of the mine itself is estimated
to be $535.6 million. If the additional development of
residential, commercial and industrial land is considered, the
peak annual economic impact on the State is projected to be
$798.2 million. For a comparative perspective, studies have
estimated the economic impact of an NFL Super Bowl type event
to be approximately between $250 million and $500 million.
In terms of fiscal impacts, the project is estimated to
generate total federal, state, county, and local tax revenue in
excess of $10.7 billion.
It is important to understand that all of the fiscal and economic
impacts were based on the assumption that copper is priced at $1.30 per
pound (which was based on the long-term price as calculated by the
Arizona Department of Revenue). Today, copper is trading at over $3.50
per pound, so the assumptions in this study are very conservative.
As I indicated, the planned mine will be a very deep underground
mine utilizing a proven method of mining called block caving. Unlike an
open pit mine, it will have minimal waste rock dumps. We plan to ship
the ore from Oak Flat via underground tunnel to an existing open pit
mine site in the area. We then expect to process the copper ore at that
site and deposit the tailings to fill up one or more existing open pits
from closed mines, and then reclaim and re-vegetate those pits. We
believe that undertaking will significantly benefit the environment. In
addition, Senator Kyl has included subsection 4(h) in this legislation
to expressly confirm that before we open the mine, as already required
by existing law, the entire operation and its environmental impacts
will be subject to full review under the National Environmental Policy
Act.
In developing the land exchange proposal in S. 3157, we have worked
with the United States Forest Service, the Bureau of Land Management
(BLM), the Arizona Game & Fish Department, and numerous Arizona
conservation organizations to insure that the lands we are conveying to
the United States have greater environmental and other public values
than the lands we are receiving at Oak Flat. In S. 3157, Resolution
Copper will convey nine parcels of land, totaling approximately 5,634
acres, to the United States in return for the Oak Flat parcel. Whereas
most of Oak Flat is relatively flat, and has no permanent water--the
nine parcels we have assembled for exchange have exceptionally rich
ecological, recreational and other values, and many of them have
significant year-round water resources. I want to emphasize that these
parcels were recommended to us by The Nature Conservancy, The Audubon
Society, the Sonoran Institute and in consultation with the BLM and the
US Forest Service. The attributes of these offered lands include:
1) A new rock climbing parcel near Oak Flat which has just
been added to the exchange;
2) 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
(as requested by the BLM at the November 2007 hearing on H.R.
3301 in the House Subcommittee on National Parks, Forests, and
Public Lands, this parcel will be immediately added to the
existing San Pedro Riparian National Conservation Area);
3) Two miles of trout stream and other fish and wildlife
habitat along East Clear Creek in the Coconino National Forest;
4) Possibly the largest, and most ancient, mesquite forest
(or bosque) in Arizona;
5) Nine hundred and fifty-six acres of extremely diverse
grassland habitat in the AppletonWhittell Research Ranch--an
existing preserve jointly managed by the Forest Service, BLM
and the Audubon Society inside the Las Cienegas National
Conservation Area; and
6) Four in-holdings in the Tonto National Forest which have
significant riparian, recreational, cultural, historic and
ecological amenities including populations of the endangered
Arizona hedgehog cactus.
S. 3157 also provides that Resolution Copper must convey all nine
parcels to the United States, regardless of value. If the nine parcels
appraise at a higher value than the Oak Flat parcel, we will donate the
excess value to the United States.
Accordingly, this land exchange will 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) habitat for innumerable species of flora and fauna; 4)
important bird areas; and 5) year-round water resources--a rarity in
many parts of Arizona.
Mr. Chairman, we have also agreed to several provisions in S. 3157
that are designed to assure that the taxpayers receive full fair market
value in this land exchange and that any facilities or activities we
displace at Oak Flat land are adequately replaced, or improved upon. I
will briefly describe these key provisions:
S. 3157 requires that the existing Forest Service campground
at Oak Flat, which has 16 developed campsites, will be replaced
with a new campground or campgrounds. Based on testimony
presented at the hearing in the House last fall the US Forest
Service, we have increased the amount we will pay for the
replacement campground(s) from $500,000 to $1 million and
increased the time for establishing the new campground(s) from
2 years to 4 years. The bill now provides that the US Forest
Service will continue to own and operate the Oak Flat
Campground for 4 years after bill enactment.
Portions of the Oak Flat parcel and adjacent areas,
including areas of our existing private land, are used for rock
climbing. To accommodate these activities, we have agreed to
two changes in the legislation. First, as mentioned earlier, we
have now added our 95 acre Pond parcel to the land exchange.
Second, we have dropped the immediate closure of certain other
areas from the legislation and we will work at keeping them
open for climbing for as long as it is safe to do so.
Resolution Copper has committed to the working with
neighboring Native American communities. Resolution Copper also
acknowledges the sovereignty of the San Carlos and respects
their request for government-to-government discussions. The
exchange provides protections for the portion of the Oak Flat
parcel that comprises Apache Leap, which is an area of cultural
and historic importance to Apache and Yavapai tribal nations.
Likewise, S. 3157 requires that the JI-Ranch parcel we will
convey to the US Forest Service in the exchange will be
available to the Apache or Yavapai for acorn gathering.
Subsection 5(a) 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.
Finally, we are aware of the mining law reform legislation which
passed the House and is pending in the Senate. While the Federal
appraisal process to be used for this land exchange fully incorporates
royalty considerations, as required by the Justice Department
standards, and the lands and any cash equalization we convey to the
United States in the exchange will constitute a full upfront royalty
payment under the appraisal process, we have agreed to go a step
further. Namely, section 10 of S. 3157 now provides that if the
cumulative production from our mine ever exceeds the production assumed
by the appraiser, we will pay a ``value adjustment payment'' on any
excess production. In doing that, the public will be protected in the
event the appraiser errs in the mine production assumptions or if
subsequent mining operations discover and produce more ore than
originally assumed. We believe this is an eminently fair proposal
which, by definition, fully protects against potential production
errors in the appraisal process.
That completes my testimony. I very much appreciate the opportunity
to testify before you today and stand ready to answer any questions the
Subcommittee may have.
Senator Wyden. Thank you very much.
Mr. Lewis, let us go to you next.
STATEMENT OF SHAN LEWIS, PRESIDENT, INTER TRIBAL COUNCIL OF
ARIZONA, PHOENIX, AZ
Mr. Lewis. Mr. Chairman and members of the subcommittee, my
name is Shan Lewis. I serve as President of the Inter Tribal
Council of Arizona. Our members include 20 American Indian
tribes, nations, and communities in Arizona on matters of
international, national, and statewide importance to the
tribes. I also serve as the vice chairman of the Fort Mojave
Indian Tribe which has tribal lands in Arizona, California, and
Nevada.
I speak today on behalf of the Inter Tribal Council of
Arizona, and it is with deep concern that we respectfully
oppose the passage by the Senate Energy and Natural Resources
Committee and the Senate of S. 3157, as introduced on June 18,
2008.
We must say at the outset, as Chairman Wendsler Nosie of
the San Carlos Apache Tribe and President Bear on behalf of the
Fort McDowell Yavapai Nation testified before the House on
November 1, 2007, that the Federal agencies involved have
failed to consult with us on a government-to-government basis
on this matter. In this regard, this hearing is quite
premature. No consultation has occurred. No environmental
impact statement has been developed, and Resolution Copper does
not even know if the mine is feasible.
The Forest Service only announced on June 25, 2008 that
Resolution Copper has filed a proposed plan of operation for a
pre-feasibility study for the mine to be conducted around Oak
Flat, the land Resolution Copper asked you to convey to it now.
Comments on this pre-feasibility study are not due until July
18, 2008.
S. 3157 would direct Federal agencies to literally
dismember a federally established recreation campground
authorized during the presidency of President Dwight D.
Eisenhower in an area within ancestral Indian tribal lands that
are of unique cultural, spiritual, and archeological
significance to American Indian tribes in the region.
This project would deplete and contaminate water resources
from nearby watersheds and aquifers, leaving in its wake long-
term and in some cases permanent religious, cultural, and
environmental damage. Such destruction of the earth will remain
long after Resolution Copper and its foreign-owned parent
companies, Rio Tinto plc and BHP-Billiton, Ltd. have taken
their profits from the copper ore and water, which it has no
right, and have left the area. As American Indian tribes, we
have seen this pattern repeated all too often and oftentimes
with tragic consequences for our people and natural resources.
Aside from the unequivocal surface destruction that would
occur on lands under which the mining is proposed to take
place, given the unpredictable reaction of nature and the
extent of damage of block and cave mining has on the surface of
land, contrary to claims by the mining companies involved,
there is not a soul on this earth who can with certainty assure
that Apache Leap will not be damaged by this method of mining,
nor that it would potentially jeopardize the highway running
through the area, nor the water resources of other people in
the region. They can guess, estimate, and surmise, but they
cannot guarantee. We ask then why would the United States
permit this to happen when it is the trustee of our people, our
cultures, our interests, and our homelands, as well as the
steward of forest lands involved that belong to people of the
United States.
We strongly request and urge that you and your colleagues
of the Senate Energy and Natural Resources Committee resist
being pressured into giving these foreign entities such
incredible rights to land and resources at the expense of so
many environmental land stewardship and trust responsibilities
for which your committee has its own responsibilities.
ITCA and the San Carlos Apache Tribe, White Mountain Apache
Tribe, Yavapai Apache Nation, Tonto Apache Tribe, Hualapai
Tribe, Hopi Tribe, Fort McDowell Yavapai Nation, and many other
tribes will submit more extended comments for the record of
this hearing.
I thank you, Mr. Chairman, and the subcommittee for
allowing me to speak today.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Shan Lewis, President, Inter Tribal Council of
Arizona, Phoenix, AZ, on S. 3157
Mr. Chairman and Members of the Subcommittee:
My name is Shan Lewis. I serve as President of the Inter Tribal
Council of Arizona. Our members include twenty American Indian Tribes,
Nations and Communities in Arizona on matters of international,
national and statewide importance to the Tribes. I also serve as Vice-
Chairman of the Fort Mojave Tribe, which has Tribal lands in Arizona,
California and Nevada. Several ITCA Tribes have lands in more than one
state.
I speak today on behalf of the Inter Tribal Council of Arizona. It
is with deep concern that we respectfully oppose the passage by the
Senate Energy and National Resources Committee and the Senate of S.
3157 as introduced on June 18, 2008.
We must say at the outset (as Chairman Wendsler Nosie of the San
Carlos Apache Tribe and President Bear on behalf of the Fort McDowell
Yavapai Nation testified before the House on November 1, 2007) that the
Federal agencies involved have failed to consult with us on a
government to government basis about this matter. Under the United
States Constitution, and our treaties, agreements, and Congressional
and Executive policy, we request that the United States consult with us
on a government to government basis about this matter prior to any
decision to move forward. In this regard, this hearing is quite
premature. No consultation has occurred. No environmental impact
statement has been developed, and Resolution Copper does not even know
if the mine is feasible.
The Forest Service only announced on June 25, 2008 that Resolution
Copper had filed a proposed ``plan of operation for a pre-feasibility
study'' for the mine to be conducted around Oak Flats, the land
Resolution Copper asks you to convey to it now. Comments on the pre-
feasibility study are not due until July 18, 2008.
Senate Bill 3157 would direct federal agencies to literally
dismember a federally established recreation campground authorized
during the presidency of President Dwight D. Eisenhower in an area
within ancestral Indian Tribal lands that are of unique cultural,
spiritual and archeological significance to American Indian tribes in
the region. It would facilitate a serious and highly damaging assault
on the water, wildlife, and other natural as well as archeological and
historic resources of the area by using highly surface-destructive
block and cave mining all in the name of making the mining operation
cheaper for the foreign multinational corporations that seek to extract
the minerals from the ground there.
Although we are not opposed to mining in general, this form of
mining and mining in this location does not make sense, is offensive to
us, and would pose a danger to many important values of the region.
Further, the proposed mining operation would cause the collapse of the
surface of the earth on the public lands owned by the American People
and endanger the historic terrain at Apache Leap, Oak Flat, and Devils
Canyon as well as the surrounding countryside.
The project would deplete and contaminate water resources from
nearby watersheds and aquifers leaving in its wake long-term, and in
some cases, permanent religious, cultural and environmental damage.
Such destruction of the Earth will remain long after Resolution Copper
and its foreign-owned parent companies, Rio Tinto, PLC and BHP
Billiton, Ltd. have taken their profits from the copper ore and water
to which it has no right, and have left the area. As American Indian
Tribes, we have seen this pattern repeated all too often and oftentimes
with tragic consequences for our people and natural resources.
This mining operation by Rio Tinto and BHP call for a land exchange
that entails taking public land located in a particularly sensitive
area and transferring it to the subsidiary of these two foreign
conglomerates. To us, it is inappropriate for the United States to go
to such extraordinary lengths to accommodate these foreign interests'
desires to mine an ore body with such profound adverse impacts.
These mining companies have sought to piece together a handful of
small conservation projects in the state that may be meritorious
individually in an attempt to soften the huge environmental blow that
the mining project would deliver to the environment of the area. The
proponents, in essence, advocate that the Congress agree to sacrifice
the surface lands and the water that flows through their subsurface on
lands immediately adjacent to Apache Leap; that is, to ``look the other
way,'' so as to consciously permit this substantial insult to the lands
and the resources involved to advance, just to facilitate the less
expensive form of mining to benefit Rio Tinto and BHP.
Aside from the unequivocal surface destruction that would take
place on lands under which the mining is proposed to take place, given
the unpredictable reaction of Nature and the extent of damage of block
and cave mining on the surface of land, contrary to claims by the
mining companies involved, there is not a soul on the Earth who can
with certainty assure that Apache Leap will not be damaged by this
method of mining, nor that it would potentially jeopardize the highway
running through the area, nor the water resources of other people in
the region. They can guess, estimate, and surmise . . . but they cannot
guarantee. We ask, then, why would the United States permit this to
happen when it is the Trustee for our People, our cultures, our
interests, and our Homelands as well as the steward of forest lands
involved that belong to the people of the United States?
These foreign interests, clearly concerned about bottom-line
matters rather than cultural and related matters of indigenous peoples,
are apparently willing to promise almost anything to obtain more lands
owned by the American public today for the self-interests of their
shareholders. We urge that should not be the driving force or deciding
factor in the Congress's consideration of this ill-considered venture.
The environmental consequences to the lands in the proposed mining
area as well as the harm to spiritual, cultural, archeological, and
historic resources from the proposed mining by these huge foreign
mining companies is to us, simply not something that our Trustee should
willingly and consciously countenance and support all in the name of
what is the ``cheapest'' way for these mining companies to turn a
profit on resources. This land and its environmental beauty and
resources are National treasures. There are time that our government
should just say no and this is one of them. This type of mining in this
location should not occur.
We strongly request and urge that you and your colleagues on the
Senate Energy and Natural Resources Committee resist being pressured
into giving these foreign entities such incredible rights to lands and
resources at the expense of so many environmental, land stewardship,
and trust responsibilities for which your committee has such solemn
responsibilities.
ITCA and the San Carlos Apache Tribe, White Mountain Apache Tribe,
Yavapai-Apache Nation, Tonto Apache Tribe, Hulapai Tribe, Hopi Tribe,
Fort McDowell Yavapai Nation and many other Tribes will submit more
extended comments for the record of this hearing.
We thank the Chairman and the Subcommittee.
Senator Wyden. Thank you very much, Mr. Lewis.
Where we are, we have a vote on the floor of the Senate
now. So Senator Barrasso and I will go over and make that vote.
It is my intention to come back. Then we will go to you, Mr.
Featherstone. Then I will have some questions for the three of
you. Senator Barrasso may have some as well.
Then for the third panel, which will be Mr. Price from
Daniel, Wyoming, and Mr. Edwards from Montana, Senator Tester
will chair.
So our thanks to all of you for the patience. I know that
you have come on a particularly chaotic day here in the Senate,
and just know we will be back as soon as we can.
With that, we are in recess until after this vote. Thank
you.
[Recess.]
Senator Wyden. Thank you all for your patience. We will
hear now from Mr. Featherstone. Please proceed.
STATEMENT OF ROGER FEATHERSTONE, SOUTHWEST CIRCUIT RIDER,
EARTHWORKS, TUCSON, AZ
Mr. Featherstone. My name is Roger Featherstone. I am the
Southwest Circuit Rider for Earthworks based in Tucson,
Arizona. My territory covers the States of Arizona, California,
Colorado, Nevada, New Mexico, and Utah.
I would like to start by thanking Senator Wyden for holding
this hearing.
I would also like to say I am delivering my written and
oral testimony today also on behalf of the Grand Canyon Chapter
of the Sierra Club.
Earthworks is a nonprofit, nonpartisan environmental
organization dedicated to protecting communities and the
environment.
We are strongly opposed to S. 3157. This bill was written
to benefit Rio Tinto and BHP-Billiton, two huge foreign mining
companies, for the express purpose of expediting the building a
mine in Arizona. These companies have formed a wholly owned and
controlled subsidiary called Resolution Copper Company. This is
the height of special interest legislation.
This bill does not benefit the taxpayer. It does not
benefit the environment, and if passed, it would set a
dangerous precedent of mining companies going straight to
Congress for legislative relief from laws that they and every
other mining company have had no trouble in following in the
past. Every other mining company in the United States that
wants to build a mine goes through an established process that
has been around since 1872. Instead of circumventing that
process and going to Congress with this bill, what Rio Tinto
and BHP should be doing is writing a plan of operations for a
mine and then submitting it to the U.S. Forest Service for
consideration. This would allow the public to participate in
this process to help the Forest Service decide whether the mine
design is a good one and should be permitted.
Besides being unnecessary, there are numerous problems with
this bill. The bill would override an executive order signed by
President Eisenhower 50 years ago that recognized the value of
having Oak Flat Campground as a haven for recreation and many
other purposes.
The bill would trample on the rights of the Native American
community by giving away to a foreign corporation land that has
been used for generations for cultural and spiritual practices.
The bill purports to contain a NEPA provision, but upon
closer examination, it does nothing but reiterate what is
currently law. It does not allow a NEPA examination of the land
exchange itself. If does not allow a NEPA examination of the
mine proposal. All this NEPA language does is say that if
Resolution Copper wants even more Federal land than what they
would obtain in this land exchange for a road or other such
structure, then an environmental impact statement would be
prepared for that feature alone.
This version of the bill also purports to include some sort
of royalty. Again, this sounds good on paper, but when you look
closer, you find several flaws. The companies would hire and
pay for an appraiser that would set the royalty amount, set the
method of royalty, and would also attempt to determine the
amount of copper in the ground that could be mined. There would
be no public input into the appraiser's decision. Only the
Department of the Interior would oversee the appraisal, and as
my written testimony points out, they have a track record of
undervaluing public lands. If the appraisal comes in low or the
royalty amount were set low, the public would be out of luck.
If a royalty is to be meaningful at all as part of this
bill, Congress should set the royalty amount, the royalty
method, and the method for determining the quantity of mineral
upon which that royalty is based.
Further, S. 3157 makes it clear that the land surface will
be given no value in the appraisal. Considering the ecological
and cultural values of Oak Flat and the surrounding areas, at
the very least the appraisal and any royalty should be set
high. Maricopa Audubon Society in Arizona has done an
extensive, on-the-ground survey of the parcels included in the
exchange. While some of them have some ecological value,
Maricopa Audubon Society has found that they do not equal the
environmental and cultural value of the Oak Flat, Apache Leap,
Devil's Canyon area that we would lose. This legislation could
help address the question of the value of the land the public
would lose, but it is silent on that point.
In conclusion, this bill is bad public policy that benefits
corporations at the expense of the taxpayers and the
environment. This bill should not make it past this hearing.
Thank you again for your time, and I look forward to your
questions.
[The prepared statement of Mr. Featherstone follows:]
Prepared Statement of Roger Featherstone, Southwest Circuit Rider,
Earthworks, Tucson, AZ
Earthworks is a non-profit, non-partisan environmental organization
dedicated to protecting communities and the environment from the
adverse impacts of mineral development. Our national office, based in
Washington D.C., provides support to citizens across the country and
around the world. Our field offices in Arizona and Montana assist
communities throughout the western United States concerned about the
impact of mineral development in their backyards.
Earthworks supports responsible mining policies and practices and
recognizes that some mining companies seek to operate in a manner that
protects our environment.
The Sierra Club is America's oldest, largest and most influential
grassroots environmental organization. Inspired by nature, the Sierra
Club's members--including 14,000 in Arizona--work together to protect
our communities and the planet. The Sierra Club's mission is to
explore, enjoy, and protect the wild places of the earth; to practice
and promote the responsible use of the earth's ecosystems and
resources; to educate and enlist humanity to protect and restore the
quality of the natural and human environment; and to use all lawful
means to carry out these objectives. The Sierra Club's Grand Canyon
Chapter has been actively involved in protecting public lands in
Arizona for more than 40 years.
We appreciate the opportunity to express our view in front of the
Subcommittee about S. 3157, the Southeast Arizona Land Exchange and
Conservation Act of 2008 (Oak Flat Land Exchange).
BACKGROUND
Resolution Copper Company (RCC)--a wholly foreign-owned subsidiary
of Rio Tinto and BHP, two of the largest mining companies in the
world--is potentially planning to develop a deep underground copper
mine. RCC seeks to acquire Oak Flat, Apache Leap, and surrounding
public lands for its private use through this land exchange bill. There
are many significant problems posed by this unusual bill. For example,
if approved, more than 3,000 acres of the Tonto National Forest will
become private property and forever off limits to recreationists and
all those who enjoy public lands. Privatization of this land would end
public access to some of the most spectacular outdoor recreation and
wildlife viewing areas in Arizona. If a mine is developed, this land
would be affected by massive surface subsidence, leaving a permanent
scar on the landscape among other lasting and ongoing damage.
The Oak Flat Campground was recognized by the Eisenhower
Administration as an important recreational resource in 1955, and
specifically placed off limits to future mining activity. This unique
area is a world-class natural resource for birding, hunting, hiking,
camping, rock climbing, bouldering, canyoneering, picnicking,
responsible OHV driving, and other recreational uses. Oak Flat receives
tens of thousands of visitors each year. On the eastern border of Oak
Flat is Devil's Canyon, and the waters of Queen Creek, one of the crown
jewels of Arizona's state trust lands, with some of the finest
remaining riparian habitat in the state.
The Oak Flat Campground, Apache Leap, and the surrounding area are
very important for recreation and respite to the citizens of the town
of Superior and a large percentage of Superior residents oppose the Oak
Flat Land Exchange.
Oak Flat, Apache Leap, Devil's Canyon, and the surrounding area
have long been an important cultural site for Western Apaches as well
as for the Fort McDowell Yavapai tribe. The Tonto National Forest has
discovered at least a dozen archeological sites in and around Oak Flat.
Apaches continue to use the Oak Flat area to gather acorns and pine
nuts that are highly valued traditional and ceremonial foods. Making
Oak Flat private land would forever eliminate those Apache traditional
cultural and religious uses of that unique area. Apache Leap is an
historical land known as the Apache's Masada. It is hallowed grounds
where many dozens of Apaches leaped to their deaths when trapped by the
US Army.
The bill contains no meaningful environmental studies. Furthermore,
RCC has not yet filed a mining plan and has offered scant and often
conflicting information about (1) what will become of Oak Flat, Apache
Leap, and environs; (2) where the mountains of mining tailings will
ultimately reside; (3) where the enormous amounts of water needed for
mining will come from and be discharged; (4) how endangered species
(such as the Arizona hedgehog cactus, echinocereus triglochidiatus
arizonicus) will be protected and preserved; and (5) how necessary
cultural resources will be protected. Importantly, the bill makes no
mention of the subsidence that could occur if RCC is allowed to mine
this area as it intends. Much has yet to still be dealt with in terms
of environmental considerations.
This bill is at best premature. Before we can decide on the merits
of any exchange, the public must review and debate a plan of operation
for an actual mine. Only if, after full review of a plan of operations
and alternatives, a decision is made to move forward with a mine,
should it be determined if a land exchange is needed.
For this, and other reasons listed below, we are opposed to the
land exchange in its current form.
LOSS OF 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
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.
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.
In addition to privatizing this important area, S. 3157 also
rescinds P.L.O. 1229. In Section 9 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 DEVIL'S CANYON
Devil's 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. Devil's 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 Devil's Canyon's water and also provide valuable habitat for
wildlife.
Considering its proximity to the proposed mine and the amount of
water the mine would utilize, between 17,000 and 19,000 acre feet of
water per year, the risks of dewatering Devil's 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
For the first time, this version of the Oak Flat land exchange bill
mentions the National Environmental Policy Act (NEPA). While this may
sound like a step forward, the bill language does not change the status
quo.
There would be no NEPA analysis on the land exchange. The bill
forbids any NEPA analysis of impact except for commercial production
and then ONLY if there were a Federal nexus to what would become RCC
private land. The very fact that the entire section that deals with
NEPA is titled ``POST-EXCHANGE PROCESSING'' makes it clear that no NEPA
would occur until the land exchange was a done deal. At that point, the
bill clearly states that NEPA would only happen ``regarding any Federal
agency action carried our relating to the commercial production...''
This is already the case. A mine on private land that, for example,
wanted to build a road across Federal land would require NEPA on that
action. The only real difference this ``NEPA'' section would make is
that an EIS would need to be done instead of a simpler Environmental
Assessment.
Even if this provision would somehow invoke a NEPA analysis on a
mine design (and this would be highly unlikely), the exchange and the
mine would already be a done deal and the NEPA analysis would be moot
at best and more likely a complete waste of taxpayer money done simply
to give RCC some extra ``window dressing.''.
There would still be no analysis in the bill of the impacts on the
land traded out of public ownership, including impacts from mining or
other uses of the land on adjacent lands.
There is plenty of time to undertake the full public review of any
possible mine under Oak Flat and Apache Leap. Full public review and
input would show that the area is critically important to Western
Apache and others--a point that is being glossed over in the current
rush to approve the exchange.
S. 3157 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 clear that the public would not
get a fair return on the loss of Oak Flat, the possible damage to
Devil's Canyon, and the threats to Apache Leap.
Because there is no NEPA process associated with the exchange
itself, there is no opportunity for the public to review a Mining Plan
of Operation up front.
There are key questions outstanding on this proposal which make it
impossible to say the exchange is in the larger public's interest.
Where would all mining waste go? What is the plan for the mine
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.
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
Devil's 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. The exchange will not be modified.
If the information that Resolution Copper Company has provided on
this proposed mine is accurate, this mine will be the largest mining
operation in Arizona. It would be larger than the Phelps Dodge (now
Freeport McMoRan) 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 be potentially
harmful to Arizonans and United States taxpayers.
SHAM ROYALTY
Section 10 of this version of the land exchange contains a
provision for RCC to possibly pay a royalty to the Federal government.
While this provision may look good on the surface,, it is essentially
an attempt to ``greenwash'' the bill to make it more palatable to
decision-makers.
There is no mention in the bill of either the royalty amount or the
royalty method. We have attached to our written comments copies of
reports EARTHWORKS has prepared showing the problems with different
kinds of royalties. Congress should, at the very least, specify both
the royalty amount and define the royalty calculation method. Royalty
amounts paid on private lands in the United States are as high as 18
percent. Especially since Oak Flat and Apache Leap are so important to
the public (including Native American communities, recreationists, and
for conservation purposes)purposes) the royalty amount should be enough
to attempt to compensate for these losses. Especially since the bill
language makes it clear that the appraiser will not be placing a value
on the surface estate of Oak Flat and Apache Leap.
The bill places the entire burden of setting the rate and method of
the royalty to the appraiser and out of the hands of Congress and the
public. This is bad policy. Since most appraisers that are experts in
setting royalties spend the majority of their time working for the
mining industry, there is a high likelihood that, without oversight by
Congress or the public, that the royalty amount would be set far too
low. The way the bill is written, only RCC and the Department of
Interior will have any input into setting the royalty amount or method.
This royalty section also does not specify the quantity of mineral
production used in the appraisal calculations or any analysis of how
the estimate was calculated. Again, the company (who would be
responsible both in hiring and paying for the appraisal) would wish to
lowball these calculations to avoid paying money up front for the value
of minerals taken out of the public domain.
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 US 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.
INHERENT PROBLEMS WITH LAND EXCHANGES
In particular, this land exchange bill does little to ensure that
the land trade would fairly compensate the American public for the loss
of Oak Flat and Apache Leap. The bill requires that an appraisal be
completed within one year, yet the company itself will have no idea of
the full value of the minerals that are now held in the public trust.
This is particularly important given that the royalty payments in
Section 10 of the bill are based on this appraisal.
There is no mandate that RCC build a mine if the exchange were to
be approved. If the company decides not to mine, Rio Tinto and BHP
would be able to enter into the real estate development business. If
this bill passes, the land will be private land, allowing mining
companies to sell the land for condominiums or golf courses. Rio Tinto
is currently planning a massive housing development on its mine land
outside of Salt Lake City that could house as many as 500,000-600,000
people. BHP is planning a large subdivision for 3,500 at its mine site
near San Manuel. There is nothing to stop RCC from using this bill as a
grab of public land under the guise of mining.
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.
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.
RECLAMATION
There is no discussion about reclamation or closure of a mine in
the bill. If the land were privatized, Arizona state law would allow
the company itself to insure the cost of reclamation. This type of
self-guaranteed bond leaves the taxpayers vulnerable if the mining
company is to go bankrupt. We should learn from the example of the
bankruptcies of ASARCO and other mining companies. Without cash up
front for reclamation, the taxpayer would be left responsible for
reclamation costs.
CATERING TO SPECIAL INTERESTS
RCC has gone to great lengths in this bill to attempt to
accommodate several interest groups. The bill bends over backwards to
provide incentives for rock climber support of the bill. Yet in spite
of this effort, all but a few climbers oppose the exchange. The bill's
sponsors have offered parcels of land that would benefit only certain
conservation organizations. Yet, the bill locks other groups out of
areas traditionally used by the public. Not only would Native Americans
be locked out of traditional-use areas, but so would recreationists and
birdwatchers. Such a divide and conquer strategy of talking to and
appeasing only certain special interest groups is not the way to
conduct good public policy.
In addition, RCC has used what could certainly be considered
strong-arm tactics in eliciting letters of support from local
governments including the town council and Mayor of Superior. If
similar tactics, including working behind the scenes to force the
firing of individuals opposing the Land Exchange, were used in other
countries, Americans would be outraged. Such behavior is hardly
consistent with an environmentally and socially conscious corporate
citizen.
SUMMARY
There is no need for a land exchange in order for RCC to move
forward with plans to mine on public land. The 1872 Mining Law, which
governs hard rock mining on public land, makes it clear that RCC has
the ability to propose a mine on public land. Of the 183 major hard
rock mines in the US that have opened since 1975, 137 have operated on
public land.
The real solution is to put this land exchange bill on hold and ask
RCC to submit a Plan of Operation to the U.S. Forest Service so that an
Environmental Impact Statement can be written to cover all the
alternatives in the project. RCC has stated that it will not be ready
to mine for at least 10 years, giving the Forest Service and the public
plenty of time to scrutinize the mine plan and come up with a solution
that benefits the mining company, recreationists, and the traditional-
use tribal interests.
Unfortunately, this land exchange bill leaves many affected parties
out of decision-making process. The bill takes the decision from the
many and puts it in the hands of a few, undercutting good decision-
making that would involve and benefit the public and surrounding
communities. Rather than working out the details behind closed doors,
RCC should allow for full disclosure and scrutiny. This will allow any
environmental issues--such as subsidence, water use, and pollution
issues--to be dealt with early on in the process. It will also allow
RCC to fully consult with the tribes and other constituencies that will
be affected by the exchange. There seems to be only one reason this
bill is being rushed through the process--the companies know that the
only way to get what they want is to circumvent America's tried and
true public process by asking Congress to mandate a quick fix.
This land exchange bill would set a chilling precedent, allowing
for the revocation of similar land withdrawals such as parks,
recreation areas, and wildlife refuges. Public lands such as Oak Flat
that are set aside for recreation should remain protected for future
generations. This land exchange bill would sacrifice the interests of
Arizonans and all Americans, to benefit a mining company. Twenty years
from now--if a mine is built and ceases operation and the jobs once
again leave--what will be the fate of these towns and landscapes? We
strongly urge you to protect these public lands for the public's future
use and preserve the unique opportunities for Arizonans that the Oak
Flat area provides.
Recently the public has spoken loudly on several occasions about
keeping America's public lands public. This is just another land grab
under the guise of mining. Do not let this happen. There is time to do
this right.
Senator Wyden. Thank you all. I just have a couple of
questions at this point.
For you, Mr. Salisbury, S. 3157 would lift a withdrawal and
provide for the conveyance of this Oak Flat Campground, this
popular campground. That is certainly part of the debate
surrounding the legislation. Is the withdrawal and the
conveyance of that national forest land essential to the
development of the mine or could you proceed to develop the
mine without it?
Mr. Salisbury. Thank you, Mr. Chairman. The known ore body
that we have abuts the campground boundaries. Therefore, the
mineral exclusion of the campground prohibits us from exploring
and identifying what the extent of the ore body is. Therefore,
as we look at the ability to fully develop a mine plan, to
fully develop a plan of operations, we would be unable to carry
that work out without knowing what the ore body extent is and
what its extent is that extends under the campground. So
therefore, that is why we need the campground in order to be
able to drill under there and determine what the ore body
capacity is.
Senator Wyden. So on a yes or no with respect to my
question, you would say that you could not develop the mine
without it.
Mr. Salisbury. The ore body, because it abuts to the
campground--it would not be advisable for us to move forward
with the mine development without knowing what is under there,
and the exchange is essential to the development of the mine.
Senator Wyden. So the answer is yes.
Mr. Salisbury. The answer is yes. The exchange is essential
to the full development of the mine.
Senator Wyden. Now, it is my understanding that a number of
people, including the Governor and members of the congressional
delegation, have contacted you to urge you to include in the
exchange a piece of property along the lower San Pedro River,
an important piece of property evidently. It is near the Town
of San Manuel that is owned by your minority partner in the
project, BHP-Billiton.
Can you tell the subcommittee why you have not included
that piece of property in the proposal?
Mr. Salisbury. We have a relationship with BHP-Billiton as
a minority partner where we have encouraged them to consider
that addition. However, we have no control absolute over their
inclusion of that in this bill. While we have encouraged their
participation and they do participate in the Lower San Pedro
Working Group, we can only encourage and solicit their
participation or consideration of that, but we cannot command
them to make that parcel a part of this exchange.
Senator Wyden. Now, Mr. Featherstone suggested that
Resolution Copper should develop a plan of operations and
alternative before a decision is made on whether to move
forward with the land exchange. In your mind, is that a
feasible approach?
Mr. Salisbury. Because we do not understand and cannot
drill under the campground area, we can only do a partial
design of a mine. It is important for us to know precisely the
mineral capacity, the mineral quality, the geotechnical
capacity that exists there in order for us to fully complete a
mine design. This includes the determination of the degree of
subsidence that may exist under the mine.
May I just respond to an earlier question, chairman, if I
might? Our infrastructure exists between the mine ore body and
the Apache Leap. Therefore, any degradation to the Apache Leap
would disable our mine. We would not be able to continue. So
therefore, we are confident and our experience tells us in this
mining process we know how to control, that we know how to
monitor this kind of mining activity, and we will protect the
Leap.
Senator Wyden. Mr. Featherstone, do you want to respond to
the answer Mr. Salisbury gave to my question?
Mr. Featherstone. The question of subsidence or the
question of whether they need the campground?
I would point out that in respect to the campground,
President Eisenhower--and reiterated by President Nixon--knew
very well that this was in the middle of a mining district and
felt that the values of that campground far outweighed any
mineral extraction values. So now we are hearing that another
mining company wants this area and we should just roll over and
give it to them.
So I do not believe that--I mean, I think it is clear that
the Apache Leap area--or the Oak Flat Campground can be
sterilized in a mining operation, just as they would sterilize
Apache Leap, and a mine could continue in that area, as the Old
Magnum Mine happened, without interrupting or bothering that
campground.
Senator Wyden. Just one last question. Mr. Lewis, are the
tribes opposed to the legislation under any circumstance, or
are there a set of changes that would make the tribes support
it?
Mr. Lewis. I think right now with the current legislation
that the tribes oppose, I do not think we are at the point
where anything could be put into legislation to change our
minds. We hope that a full, comprehensive environmental study
be done to determine whether or not this project is even
feasible. Obviously, government-to-government consultation
would be part of that also.
Senator Wyden. All right. I have finished my questions
about Arizona. I know Senator Tester is very anxious to talk to
Mr. Edwards and Mr. Price.
Senator Craig, did you have questions that you wanted to
offer now? Because if you do, I think I may have Senator Tester
chair. I will yield the gavel.
Senator Craig. Mr. Chairman, I am here primarily under the
same interest that Jon is. So why do we not proceed to that?
Senator Tester. If I might, Mr. Chairman. I did not hear
the testimony of these three fine gentlemen, with the exception
of Roger Featherstone. I do have a couple questions for David
Salisbury, though.
Senator Wyden. Then let us do this. I am going to--because
I think fairly shortly we will move to the third panel, I will
turn the gavel over to you, Senator Tester, for any questions
you have of this panel and, Senator Barrasso, if you have any
questions of this panel, and that will wrap up this panel. Then
we will go on with the additional witnesses.
Senator Tester. I just have two very simple questions for
you. Do you know the size of the ore body, David Salisbury? Do
you know the size of the ore body?
Mr. Salisbury. We have been exploration drilling the
property since 2004. We have just completed and publicly
released a statement that indicates that there is an inferred
reserve. This is according to standards that are required by
the SEC--an inferred reserve of 1.3 billion tons of ore
containing 1.5 percent copper and .04 molybdenum. So we do have
an idea of what there is there on an inferred basis, yes.
Senator Tester. How deep is the ore body?
Mr. Salisbury. It ranges from a depth of 7,000 feet up to
4,000 feet below the surface at the present time. That is our
knowledge.
Senator Tester. Thank you very much.
No other questions? Then I will release you three guys.
Thank you for your testimony. Thank you for being here.
We will call forward Mr. Edwards and Mr. Price. While they
are getting situated, I want to thank Mr. Edwards and Mr. Price
for being here today. I appreciate the trip. It is a long haul
from Montana and Wyoming to get out here. So I appreciate you
guys making the effort.
We look forward to your testimony, and once you get
situated, Mr. Edwards, you can start with your testimony. Your
complete testimony will be a part of the record. I will ask you
to summarize as best as possible because we have got some
questions, and we are getting into the day pretty good. I am
sure you guys want to probably get somewhere tonight too. So,
Mr. Edwards, you go ahead and go and summarize your high
points. Thank you.
STATEMENT OF GEORGE EDWARDS, LIVESTOCK LOSS MITIGATION
COORDINATOR, MONTANA DEPARTMENT OF LIVESTOCK, HELENA, MT
Mr. Edwards. Mr. Chairman and members of the committee,
thank you for the opportunity to testify before you today.
The Gray Wolf Livestock Loss Mitigation Act of 2008 is
similar to Montana's livestock loss reduction and mitigation
program. Through our program, we are looking for ways to fund
prevention efforts and livestock losses due to gray wolves in
our State. Montana law also contains provisions so that we will
be able to include Montana Indian tribes, provided they have
adopted a wolf management plan that is consistent with
Montana's State wolf management plan.
During the 2007 Montana legislative session, the Livestock
Loss Reduction and Mitigation Board was created to administer
programs for mitigation and reimbursement of livestock losses
by wolves. This board is currently attached to the Montana
Department of Livestock. Our mission is to help support Montana
livestock communities by reducing the economic impacts of
wolves on individual producers by reimbursing their confirmed
and probable losses and helping to reduce their losses by
approving projects and funding programs that will discourage
wolves from killing livestock.
Our program's purpose is to acknowledge the importance of
economic viability and sustainability of individual livestock
owners who are negatively affected by wolf recovery.
Our program is based on the belief that both government and
livestock owners want to take reasonable and cost effective
measures to reduce losses and that livestock producers should
not incur disproportionate impacts as a result of recovery of
Montana's gray wolf population.
We began to process claims as of April 15 and pay 100
percent of the market value for confirmed and probable losses.
All confirmed and probable losses are verified by USDA Wildlife
Services personnel. Prior to beginning our claims process, a
private organization, Defenders of Wildlife, had been paying
claims. Defenders of Wildlife has made a donation of $50,000 in
April 2008 and has pledged to donate another $50,000 in 2009.
Without this donation, we would be unable to pay claims for
livestock losses as of July 1, 2008.
The fiscal note for Montana's legislation creating our
program estimated losses caused by wolves to be $200,000
annually. Since this legislation was originally drafted in
2006, the number of wolves in Montana has increased by 34
percent. Actual confirmed and probable livestock losses have
more than doubled since this legislation was introduced.
Livestock owners are shouldering an economic burden beyond
their control. This legislation will help address funding of
livestock losses and activities to reduce predation. Prevention
programs in this legislation are critical to our livestock
industry and we want to be able to implement them. Hopefully,
being able to fund preventative methods will reduce the
financial and emotional toll to our livestock owners.
Programs like Montana's livestock loss reduction and
mitigation program, with the help of Federal funding, will
allow wolves and livestock to coexist. Help me help them and
thank you for the support of this bill.
[The prepared statement of Mr. Edwards follows:]
Prepared Statement of George Edwards, Livestock Loss Mitigation
Coordinator, Montana Department of Livestock, Helena, MT
Mr. Chairman and members of the Committee, thank you for the
opportunity to testify before you today.
The Gray Wolf Livestock Loss Mitigation Act of 2008 is similar to
Montana's Livestock Loss Reduction and Mitigation program. Through our
program, we are looking for ways to fund prevention efforts and
livestock losses due to gray wolves in our state. Montana law also
contains a provision so that we will be able to include Montana Indian
Tribes provided that they have adopted a wolf management plan that is
consistent with Montana's state wolf management plan.
In 2005, Montana entered a memorandum of understanding (MOU) that
allowed the state to implement it's approved plan within federal law
and guidelines in place at the time. The MOU allowed Montana and the
Indian Tribes to lead wolf conservation and management activities
within their respective boundaries. In its 2007 Annual Report, Montana
reported over 420 wolves in about 73 packs and 39 breeding pairs, with
demonstrated distribution among Montana's portion of all three Northern
Rocky Mountain subpopulations.
In keeping with Montana's tradition of broad-based citizen
participation in wolf conservation and management, a diverse, 30-member
working group met 4 times in 2005. The working group was comprised of
private citizens, representatives from non-governmental organizations,
and representatives from state and federal agencies. A smaller
subcommittee continued to meet in 2006. This group finalized a
framework which became the basis for legislation in the 2007 Montana
Legislature.
During the 2007 Montana Legislative session, a bill to establish
the framework of the working group was introduced and passed (HB364).
The legislation created the Livestock Loss Reduction and Mitigation
Board to administer programs for the mitigation and reimbursement of
livestock losses by wolves. It also established the quasi-judicial
board, its purpose, membership, powers and duties, and reporting
requirements. The Board is administratively attached to the Montana
Department of Livestock, but its role and duties are wholly independent
from Montana Fish, Wildlife and Parks and the Montana Board of
Livestock.
Late in 2007, the Governor appointed the Board. The legislation
also codified much of the actual draft framework in state law. It
directed the Board to establish a program to cost-share with livestock
producers who are interested in implementing measures to decrease the
risk of wolf predation on livestock. It also directed the Board to
establish and administer a program to reimburse livestock producers for
losses caused by wolves. While some details of the grant program (loss
reduction) and the reimbursement program (loss mitigation) are
established in statute, the Board is in the process of establishing
additional details through a rule-making process, which will include
public comment opportunities.
Board makeup consists of seven members appointed by our Governor.
Three members were selected from a pool of names recommended by the
Montana Department of Livestock, another three members were recommended
by Montana Fish, Wildlife and Parks and one member from the general
public.
Gray wolves are firmly established in Montana. The long term
presence of wolves is dependent upon comprehensive programs that
carefully balance complex biological, social, economic and political
aspects of wolf management. One challenge that must be addressed in
seeking this balance is that gray wolf recovery has and will continue
to result in the loss of personal property and income to livestock
owners.
Our mission is to help support Montana livestock communities by
reducing the economic impacts of wolves on individual producers by
reimbursing their confirmed and probable wolf-caused losses and helping
to reduce their losses by approving projects and funding programs that
will discourage wolves from killing livestock.
Our programs purpose is to acknowledge the importance of economic
viability and sustainability of individual livestock owners in Montana
who are negatively affected by wolf recovery and to ensure a viable,
well distributed gray wolf population that meets recovery goals and is
managed similar to that of other large carnivores. The program was
created to fulfill a compensation provision of Montana's Gray Wolf
Conservation and Management Plan.
More specifically, the purpose of the loss reduction and mitigation
programs are:
to proactively apply prevention tools and incentives to
decrease risks of wolf-caused losses;
to provide financial reimbursements to livestock owners for
losses caused by wolves.
The program is based on the belief that both government and
livestock owners want to take reasonable and cost effective measures to
reduce losses, the acknowledgement that it is not possible to prevent
all losses, and that livestock producers should not incur
disproportionate impacts as a result of recovery of Montana's gray wolf
population.
To help fund this program, Montana legislators created a trust fund
that may collect up to five million dollars. The livestock loss
reduction and mitigation trust fund is to be funded with gifts, grants,
appropriations, or allocations from any source.
In designing this program legislators envisioned using a trust
fund, private donations, state appropriations and federal
appropriations to provide loss reduction grants and payments for losses
and mitigation efforts.
The Montana legislation creating this program provided $60,000
appropriation from the general fund in fiscal year 2008 for one full
time employee, operating expenses to establish the board and board
activities. Another $60,000 is appropriated for FY 2009. $30,000 was
placed into a fund for fiscal year 2008 for our program to begin loss
payments. Currently, there are no funds appropriated in our trust fund.
We began to process claims as of April 15th and pay 100% of the
market value for confirmed and probable losses. All confirmed and
probable losses are verified by USDA Wildlife Services personnel. Prior
to beginning our claims process, a private organization, Defenders of
Wildlife, had been paying 100% for confirmed losses and 50% for
probable losses.
Defenders of Wildlife has made a donation of $50,000 in April 2008
and has pledged to donate another $50,000 in 2009. Without this
donation we would be unable to pay claims for livestock losses as of
July 1, 2008.
The loss reduction element is intended to minimize losses
proactively by reducing risk of loss through prevention tools such as
night pens, guarding animals, or increasing human presence with range
riders and herders.
The fiscal note for the legislation creating our program estimated
losses caused by wolves to be $200,000 annually. Since this legislation
was originally drafted in 2006, the number of wolves in Montana has
increased by 34%. Actual confirmed and probable livestock losses have
more than doubled since this legislation was introduced. Only a small
fraction of predator-killed livestock are ever found. Loss figures in
USDA Wildlife Services reports only reflect a fraction of predator
related losses because no entity is able to verify all causes of
livestock loss. As wolf populations increase, wolf/human conflicts are
expanding on private land, other lands and across jurisdictions. The
number of gray wolves is significantly increasing. Losses are occurring
at a rapid pace and the importance of being able to fund prevention
efforts becomes more vital to our livestock industry.
As with this bill, Montana's program covers cattle, swine, horses,
mules, sheep, goats, and livestock guard animals.
The Montana Livestock Loss Reduction & Mitigation Program covers
losses due to gray wolves. Losses due to coyotes, grizzly bears, black
bears, mountain lions and red fox are not currently part of our
program.
The following is a breakdown of animals killed in Montana by wolves
since 2006:
Loss numbers are supplied by USDA Wildlife Services. 2008 numbers
reflect only an eight month long timeframe. This is very early in the
summer and most livestock are just going to summer range where a lot of
predator related losses historically occur.
Our program offers a transparent approach to our operations. All
livestock loss claims begin when a livestock owner calls USDA Wildlife
Services to investigate a loss. When it has been determined that the
loss is caused by wolves, Wildlife Services personnel send the
livestock owner an investigative report and our loss reimbursement
application. The livestock owner then has the option of submitting a
claim to our office. We use a weekly USDA market report to determine
livestock values for commercial livestock. Registered livestock values
are determined by sales receipts of similar age and sex at public or
private sales for that registered breed.
The livestock owners of Montana, Wyoming and Idaho are shouldering
an economic burden beyond their control. This legislation will address
funding of livestock losses and activities to reduce predation. At the
present time we don't have the necessary funding to offer preventative
programs. Prevention programs in this legislation are critical to our
livestock industry and we want to be able to implement them. Livestock
losses are occurring at a rapid pace and we are having great
difficulties in raising funds to keep up. Hopefully being able to fund
preventative methods will reduce the financial and emotional toll to
our livestock owners.
Benefits to the general public are immeasurable. Our three state
regions offer the ability for our children and future generations to
see wolves in their natural habitat.
We also need to keep our nations agricultural producers
economically sound. Programs like Montana's Livestock Loss Reduction &
Mitigation Program with help from federal funding will allow wolves and
livestock to co-exist. Help me help them and thank you for your
support.
[Additional information has been retained in subcommittee files.]
Senator Tester. Thank you, George. I appreciate your
testimony. We will have questions after Mr. Price gets done
with his.
Mr. Price.
STATEMENT OF CHARLES C. PRICE, DANIEL, WY
Mr. Price. I am, of course, Charles Price from Wyoming, and
Senator Wyden is not here, but Senator Tester, I got the
invitation from Senator Wyden. So I will thank him for the
invitation.
Senator Tester. Good to have you here.
Mr. Price. John Barrasso or Senator Barrasso. I knew him as
Dr. Barrasso in Wyoming. Thank you.
I guess I am addressing you on behalf of myself, the Upper
Green River Cattle Growers Association, and the Wyoming Stock
Growers Association and, to the best of my ability, the people
or citizens of Wyoming who are being impacted by these large
carnivores. In my discussion, it will be both grizzly bears and
wolves because we are impacted by both of them.
I am a member of the Upper Green River Cattle Association,
an association of 16 cattle ranchers who graze cattle in the
Upper Green River area. This area is within about 50 miles of
the Yellowstone Park. The numerical information that I am
presenting today is based on the Upper Green River Cattle
Association records from 1990 to 2004. I have also extracted
information from 2005 to 2007 so that you will get an idea of
the complete losses.
The details of this information are presented and analyzed
in a draft of a paper that we are working on for publication. I
have brought a number of copies of this paper today, and I left
those with Senator Barrasso's office and you can obtain them.
It has got detailed analysis, statistical analysis, to support
the numbers that we have generated in this report. I feel
pretty confident that the information is good.
We identified a predation problem in 1995 and began to
compile a consistent record of the calf losses starting in 1990
using association members' records. Prior to 1995, we had no
known grizzly or wolf predations, although as we look back, we
recognize we did have a low level of predation earlier.
In 1995, we had our first confirmed grizzly bear predation,
and it is important to know what a confirmed kill or predation
is. A confirmed predation kill or damage is one in which the
responsible agency, U.S. Fish and Wildlife Service, U.S.
Wildlife Services, or the Wyoming Fish and Game, examines the
damaged animal and confirms that it is damaged by a particular
predator and issues an affidavit to the owner of that animal.
So it is a third party confirmation.
Analysis of our records shows that calf losses increased
with the expansion of grizzly bears and wolves into our grazing
area. From 1995 to 2004, there were 29,693 calves that were
grazed on the allotment. Out of that, there were 1,332 calves
that were lost to all causes, but the predator losses for
grizzly bears were 520 in that period of time. Wolves, having
just come in at that time, were 177 losses of those calves to
those predators.
Although there have been and are still various levels of
compensation for livestock loss due to predation, these
previous compensation programs fall short. Our analysis
estimates that the uncompensated impact to producers in our
allotment amounts to $22,500 for that period of 1995 to 2004.
Compensation is usually based on a confirmed kill. However,
only a fraction of the calves damaged or killed are actually
found and confirmed. In the case of grizzlies, our study shows
only 1 in 3.8 calves are found. In the case of wolves, it is
even worse than that. It is 1 in 6.3. This is based on our
finding. This leads to the concept of a compensation factor, a
multiplier that can be applied to the number of confirmed kills
to fairly compensate producers for their predator losses.
As I said, I extracted information from 2005 to 2007, and
from that period of time, we had 59 confirmed grizzly kills, 35
wolf kills. Using the multipliers of 3.8 for the grizzlies,
means that there were 224 calves killed by grizzlies in that 3-
year period. For wolves, using the 6.3 multiplier, there were
221 calves in that period that were killed by wolves. Using
this estimation, I estimate that over 1,100 calves were killed
from 1995 to 2007. Now, you can think about that a little bit.
If a calf is $500, that is simple. That is over a half a
million dollars of loss, direct loss, to the livestock owner.
It is not including the management problems that occur.
The grizzly bear and reintroduced wolf have expanded into
areas where they are increasingly conflicting with human
activity. Both species are represented as having a large
national support from the public. Yet, the burden of the damage
these species cause falls on a very small number of
individuals. The result is that a few citizens are being driven
into ruin by the implicit and unfunded mandate.
To be fair, the Wyoming Fish and Game has been proactive in
providing compensation for the grizzly damage at 3.5 to 1. With
the delisting of the wolf, they are taking responsibility for
it, and the compensation factor is set at 7 to 1. This is based
on an Oakley study in Idaho that established that it was more
like 7 to 8, and it was a very intense study. However, since
the animals are of national public interest, I think the public
interest should financially bear some of the burden that these
few people that are being impacted do.
Inadequate compensation results in resistance to large
carnivore recovery programs. The development of compensation
programs that fairly reimburse livestock producers for their
losses is therefore a necessary component of large carnivore
recovery programs.
Thank you for your attention and the opportunity to comment
here.
[The prepared statement of Mr. Price follows:]
Prepared Statement of Charles C. Price, Daniel, WY
ECONOMIC IMPACTS OF LARGE CARNIVORE PREDATION ON CALVES
Impacts of grizzly bear (Ursus arctos) and gray wolf (Canis lupus)
predation on calves in the Upper Green River Cattle Allotment in
western Wyoming were quantified utilizing records of the number of
animals grazed and the number lost from 1990-2004. Confirmed predations
by grizzly bears began in 1995, while the first confirmed wolf
predation was in 2000. A ``Confirmed Predation'', is defined as
predation that is identified by a responsible agency, USDI-Fish &
Wildlife Service, USDA-Wildlife Services, Wyoming Game & Fish
Department (WGFD), as a predator damaged (2) animal for which an
affidavit is issued to the owner of the animal. Our analysis indicates
that calf loss increases coincide with grizzly bear and gray wolf
arrival and population establishment. From 1995 through 2004, 29,693
calves grazed on the allotment. Of the 1,332 calves lost to all causes,
an estimated 520 calves were lost to grizzly bear predation and 177
calves were lost to gray wolf predation.
Analysis of past and current grizzly and wolf compensation programs
with respect to the reimbursement of producers estimated the value of
the uncompensated financial impact on the allotment to be $222,500 for
the period 1995-2004 (Ref. 1. pp 11-12).
Only a fraction of the predated calves are actually found and
confirmed as predator damage. Based on our findings, only one damaged
calf is found and confirmed for every 3.8 grizzly bear damaged calves,
in the case of wolves only one damaged calf is found and confirmed for
every 6.3 wolf damaged calves. This leads to the concept of a
compensation factor, a multiplier that can be applied to the confirmed
calf losses to fairly compensate livestock producers for damage to
their livestock by large carnivores.
While the information is not in Ref. 1, I extracted the predator
damage data from our records for the years 2005-2007. There were 59
confirmed kills for grizzly bears and 35 for wolves. Using the 3.8 and
6.3 multipliers yields 224 and 221 calves lost to grizzlies and wolves
respectively for the 2005-2007 period. Using this information I
estimate that over 1142 calves have been lost to grizzly bear and wolf
predation for the 1995-2007 period.
The grizzly bear and reintroduced wolf have expanded into areas
where they are in increasing conflict with human activity. Both species
are represented as having a large national support from the public;
yet, the burden for the damage these species cause falls on a very
small number of individuals. The result is that a few private citizens
are being driven into ruin by an implicit unfunded mandate. To be fair
the WGFD have been proactive in providing compensation for the grizzly
damage, 3.5 to 1, and with the delisting of the wolf they are taking
responsibility for it with a compensation factor of 7 to 1. However,
since these animals are of national public interest the public should
support their interest financially.
Inadequate compensation results in resistance to large-carnivore
recovery programs. The development of compensation programs that fairly
reimburse livestock producers for losses is therefore a necessary
component of carnivore recovery efforts. Our analysis suggests that
disciplined grizzly bear management coupled with adequate compensation
for bear caused damage by the Wyoming Game and Fish Department is
effective in minimizing conflict and resistance by private citizens.
Reference 1: ``Quantifying economic impacts of large
carnivore predation on calves in the Upper Green River Cattle
Allotment of western Wyoming'', DRAFT, March 12, 2008; Albert
P. Sommers, Charles C. Price, Cat D. Urbigkit, Eric M.
Peterson.*
---------------------------------------------------------------------------
* Document has been retained in subcommittee files.
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Reference 2: ``Damaged'' refers to a calf that may be killed
or so badly mauled it can't be economically salvaged.
Senator Tester. I want to thank you both for being here and
for your testimony. I think we will just go right down the
line. I will be last. Senator Craig, go ahead.
Senator Craig. First and foremost, let me thank you, Jon,
and you, John, too who introduced this legislation. It is
critically necessary and important, and I am very supportive of
it in that respect.
Idaho, Montana, and Wyoming together over the last good
number of years have felt the brunt of the reintroduction of
the Canadian gray wolf, and finally, through exceptional
efforts on the part of a variety of people, we have got it to
the point of delisting and our States bringing in management
plans. I am extremely proud of the State of Idaho and the
cooperative effort of their management plan with both ranchers
and public lands interests, environmental communities, pro-wolf
interests. I think we can manage that wolf.
I think, Mr. Price, you stated it well. There is a public
interest out there. At the same time, there has to be a
reality. Our greatest problem is the fact that up until now,
the wolf has no known predator, and therefore, he has become so
used to the human species that we are not viewed as a threat.
So his separation from us, staying in the back country, is
almost nonexistent. Wolves are seen all over Idaho today. Of
course, as a result, domestic livestock grazing of all forms is
taking a fairly heavy hit. At the same time, so are all of our
wildlife that are the prey base of the wolf.
Instead of asking questions, let me make this statement
primarily to the Senators because I think it is a good window
to look through that may address some of the issues of this
legislation.
Because I serve on the Appropriations Committee, I have
been able to get an appropriated earmark, one of those evil,
bad things, for Idaho on an annualized basis since 2006, 2006,
2007, 2008, averaging about $1.2 million going to Idaho. This
is broken up, and DOI directs about $750,000 of it to the
Office of Species Management, about $200,000 to research on
ungulates, about $400,000 to mitigation collars, and $100,000
to compensation for loss. There is an estimated $200,000 need
because the compensation is in part money left over. So
therefore, some of our losses to our ranchers--they get pennies
on the dollar.
My guess is in Idaho alone, we are in need of about $1.5
million/$1.6 million a year. Now, if you spread that across the
three States, I think we are similar to each other in the sense
of total costs. I mean, I think it is reasonable to assume a
bill like this could cost us somewhere in the range of $4
million or $5 million annualized. I do not see that as a big
price to pay, in all fairness, to bringing about reasonable
management and the cooperative between the States and the Feds
and the U.S. Fish and Wildlife Service as it relates to
managing these animals and developing a good management
program.
So I thank both of you for the introduction of the
legislation and you gentlemen for being here to testify.
I lost this fight. Your predecessor, Conrad Burns, and I
kept wolves out of introduction for a good long while until the
Administration changed and one Secretary of the Interior came,
whose name will go unmentioned. I chose not to speak his name
anymore. He ignored the law and did what he did. We now have
the situation that we are trying to deal with in a balanced
way.
I do not think my attitude toward wolves has changed any
since that day, but I do recognize reality and the need to
build a balanced plan of management that keeps as whole as
possible our domestic livestock industry in the State while
recognizing the presence of the wolf.
So I give you that as some thoughts, Mr. Chairman. This is
a realistic approach. If it is a public desire to have these
wolves in our States, then there ought to be a public
commitment to help us manage them at the cost of the American
taxpayer.
Thank you all.
Senator Tester. Thank you, Senator Craig, and we think it
is a realistic approach too.
Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
Mr. Price, I appreciate you being here all the way from
Wyoming. Could you visit with us just a little bit about how
far back your family goes in Wyoming in ranching and your
family's history with wolves in Wyoming?
Mr. Price. Yes. My grandfather homesteaded on the Green
River in the late 1800s, and I guess I will say he was one of
the ranchers that pursued and helped remove wolves from
Wyoming. I can tell you stories about it, but it goes back.
I have my grandfather's homestead in my ranch. I still have
the homestead. I have donated some of the buildings on it to
museums and stuff. So it goes back over 100 years. The ranch
was awarded here this previous year the Centennial Ranch Award
for the State of Wyoming. They awarded all the ranchers who
still had family living on the original homestead an award
within the State, which I was grateful to get.
Senator Barrasso. So when they proposed reintroducing
wolves, you had a history, you had a background. I assume that
you made predictions as to what would happen if wolves were
reintroduced, and Fish and Wildlife officials made predictions
about what would happen. Could you talk a little bit about what
those predictions were and how they differed?
Mr. Price. You have to realize that when I came back to the
ranch, there were still some of the old people alive there that
had dealt with the wolves. Of course, we were strongly opposed
to the reintroduction of the wolves because they knew what the
problems were. I mean, they almost predicted what was going to
happen. Now, I had never run into the wolves myself personally,
but they knew. Some of those people were still alive.
So we resisted it strongly. I think you will recognize that
Wyoming did strongly resist that, finally caved in kind of,
because those wolves were turned loose before they should have
been before all the hearings and things were done. So they were
kind of forced on us.
Senator Barrasso. Did the wolves stay in Yellowstone?
Mr. Price. Hell, no.
Senator Barrasso. No surprise there. That is what you
predicted. Right?
Mr. Price. Yes. We knew that.
But I will say this. They planted them in Yellowstone in
1995, and on the Upper Green, I was the first person of the
association to have a confirmed wolf kill in 2000. So it took
them 5 years to expand that far. From there, the number has
just escalated. We are now getting confirmed kills. You heard
some of the numbers. In 2005-2007, we estimate we have got
kills, confirmed kills, of 35, but then you multiply it, and we
are talking over 200 head of calves that are destroyed.
Senator Barrasso. How far out of the park are you talking?
You are not talking about right next to the border of the park.
Mr. Price. We are about 50 miles from the park, the closest
point of the association grazing area to the edge of the park.
They are down around the ranch. They run around down there.
We do not have as many problems. I have never had a kill down
on the Green River itself, but up a little closer in the
forested area, yes.
Senator Barrasso. Now, you heard the testimony from the BLM
today. I do not know if you want to comment on things you
heard. Do you believe that the Federal Government has a
responsibility? They said they do not believe that they do in
terms of compensating ranchers.
Mr. Price. I will just repeat what I have said. These were
introduced as a public interest, a national public icon. If you
remember the words that were used, this is an icon of the wild,
and the public was interested in it. They were put into the
Yellowstone with the prediction that they would not go very far
outside of Yellowstone. As I remember reading some of the early
literature, they estimated like 15 bovine cattle would be
killed a year, something less than 100 head of sheep killed a
year. Shoot. I got 15 last--well, not last year, but I mean, I
have got a lot more than 15 killed.
Senator Barrasso. That was their total number predicted.
Mr. Price. That was their total number. I mean, that
included Idaho, Montana, and Wyoming. You know what has
happened. They are everywhere. The game populations are down.
The moose population--I am on the Green River. The moose
population on the Green River has stayed relatively constant,
but I have land up in the western Wyoming range.
Senator Barrasso. So what happened essentially is
everything you have predicted and nothing about what Fish and
Wildlife predicted.
Mr. Price. They underpredicted the damage, also
underpredicted how fast those wolves would multiply. They also
greatly underestimated the range of those animals.
Senator Barrasso. Thank you very much, Mr. Price. I am very
delighted that you could come here and share your story with
the Senate.
I think, Senator Tester, my time is expired. Thank you.
Senator Tester. Thank you, Senator Barrasso.
I have a few questions for Mr. Price and a few questions
for Mr. Edwards.
You said that there are 16 ranches in the Green River
Cattle Association. Does your ranch have more losses than
others or is it----
Mr. Price. It is statistical. Some years one of us will be
hit. Realize there is a twofold process. One is getting the
animal confirmed.
Senator Tester. Right.
Mr. Price. Sometimes we have had ranchers that have lost
calves and never had an animal confirmed.
Senator Tester. They never saw the calf?
Mr. Price. Never found a calf that they could identify.
Yet, their losses are consistent with predation. In fact, that
is the first thing you see. All of a sudden, your losses jump
up.
Senator Tester. You must have kept track of your losses
pre-1995.
Mr. Price. Yes.
Senator Tester. What percentage were they at pre-1995?
Mr. Price. Roughly 2 percent.
Senator Tester. What are they now?
Mr. Price. It varies from year to year.
Senator Tester. On average.
Mr. Price. In the 5 or 6 percent range.
Senator Tester. How far south of the park do the wolves
basically prey on cattle, on sheep?
Mr. Price. One hundred miles south toward Kemmerer, and
they have moved over into the Big Horns. There are wolves
there. They have moved down toward Laramie. I think there is
some in the Snowy Range down there. So hundreds of miles.
Senator Tester. But the whole State of Wyoming is not
impacted as of yet.
Mr. Price. Not impacted hard. You understand we are in a
dual classification, and they are going to get burned when they
get out of that trophy game area.
Senator Tester. Got you. OK, thank you, Mr. Price. I
appreciate you being here and appreciate the work you do. I too
farm the land my grandfather homesteaded, and there are very
few of us left. So I appreciate that.
Mr. Edwards, do you think compensation for losses is
important?
Mr. Edwards. Extremely important. We need to keep the
livestock owners on that land, keep that land in production to
feed our Nation.
Senator Tester. Is there any other reason why you think it
is important?
Mr. Edwards. It also gives an economic viability to the
tourism industry in Montana as well.
Senator Tester. Defenders of Wildlife dollars--I touched on
that a little bit with the BLM. It was not the BLM fellow. It
was the Fish and Wildlife fellow. He indicated and I just want
you to confirm, do you anticipate the Defenders of Wildlife
dollars--you talked about $50,000 in 2008, $50,000 in 2009--
continuing into 2010, 2011, 2012?
Mr. Edwards. At this time I have no way of knowing. They
initially--when they contacted me and said they were willing to
make the donation, it was based on the fact that Montana had
started a compensation program.
Senator Tester. How available is the money out there in the
private sector for compensation?
Mr. Edwards. So far, I have not been able to get another
donation beyond Defenders of Wildlife.
Senator Tester. How long have you been working on it?
Mr. Edwards. Approximately 7 months since the program
began.
Senator Tester. Hopefully, there are some folks listening
today that might throw you some dough. But I am not going to
hold my breath on that either.
What will happen if the compensation goes away? What will
happen if the States cannot afford to pick this up, if the
private sector does not pick it up, and the Federal Government
does not step up to the plate? What happens?
Mr. Edwards. We will have producers that literally go out
of business.
Senator Tester. Is it going to affect all producers or just
a select few?
Mr. Edwards. It is hard to predict at this time. There is
the potential to affect all the producers in our State. Wolves
travel great distances and are filling into the blank areas
now.
Senator Tester. Mr. Bangs talked about a USDA program that
has dollars in it for predation. Are you able to access those
dollars?
Mr. Edwards. No, I am not.
Senator Tester. Have you tried?
Mr. Edwards. I have been trying, yes.
Senator Tester. You cannot access them.
Mr. Edwards. No.
Senator Tester. Supposedly they are there but you cannot
get to them.
Mr. Edwards. What he was describing was Wildlife Services
coming in and removing wolves that are causing a problem in our
State. It was not expanded onto like alternative pastures,
fencing, other mitigation efforts.
Senator Tester. So that money is pretty well focused. It is
not readily available. If you have a rancher that has some
cattle or sheep loss, you cannot go to USDA and say, hey, I
need 1,000 bucks or 10,000 bucks.
Mr. Edwards. No, I cannot.
Senator Tester. I have no more questions. Do you, Senator
Barrasso?
Senator Barrasso. No. Thank you very much, Mr. Chairman.
Senator Tester. I just want to thank both you gentlemen for
coming. I make--and so does Senator Barrasso--a trip back,
every weekend in my case, and it is not an easy shot,
especially when you got haying to do and you got money to
raise. So thank you guys both for being here. I appreciate the
work you do. Thank you.
This committee is adjourned.
[Whereupon, at 5:27 p.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Joel Holtrop to Questions From Senator Bingaman
S. 3157
Question 1. At the hearing, Mr. Salisbury indicated that the mine
could not go forward without the revocation of the Oak Flat withdrawal
and the conveyance of that land. As a follow-up to Chairman Wyden's
question regarding the environmental review provided for in S. 3157, if
the EIS required by section 4(h) revealed that the mine would cause
unacceptable environmental impacts, would the Forest Service still have
authority to prevent those impacts from occurring given that the
withdrawal already will have been revoked and the land conveyed?
Answer. The Forest Service would not have this authority because it
no longer has jurisdiction once the federal land is transferred to
private ownership. However, development must comply with state or local
surface management regulations. The Forest Service would continue to be
responsible for conducting environmental analyses, reviewing, and
approving any proposals for ancillary activities related to the mining
development, such as roads, or rights-of-way for electric lines and
pipelines, that would take place on the adjacent National Forest System
lands.
Question 2. In follow-up to another question Chairman Wyden asked,
do the Forest Service's experts believe it is possible that the
subsidence that is anticipated as a result of the development of the
mine will significantly impact Apache Leap?
Answer. At this point, we are unable to assess the impact of any
subsidence on Apache Leap. Resolution Copper is currently conducting
pre-feasibility studies and assessing the mining methods to be
utilized. Although block caving has been mentioned as the possible
mining method, we do not know if this is the only mining method under
consideration. Because the mining development will occur on non-federal
lands, there is no requirement for the company to submit a plan of
operations to the agency. As a result, the Forest Service will not have
supporting data from a plan of operations to evaluate the impact of the
operation so we suggest that inquiry be made to Resolution Copper to
provide more detailed technical data regarding its project to you and
your staff.
Question 3. If the Forest Service cannot predict whether
significant impacts to Apache Leap may occur or if it believes that
such impacts are possible, then is it correct that the Forest Service
believes that the exchange would be in the public interest despite
those impacts?
Answer. It is the Department's view that, on balance, the exchange
as a whole is in the public interest. The National Forest System lands
identified for exchange contain significant ore deposits of copper,
silver and gold. This area is historically important to the economic
vitality of Arizona and today remains an active mining area,
contributing significantly to the nation's mineral production.
In addition, most of the non-federal properties that would be
acquired have high public resource values and would benefit from public
ownership. The Forest Service could protect the riparian habitat,
archeological sites, two miles of a permanently flowing trout stream, a
year-round pond, and an endangered cactus species on the acquired
lands. Further, as part of the exchange, a conservation easement for
the Apache Leap escarpment would be transferred to the federal
government by Resolution Copper.
Responses of Joel Holtrop to Questions From Senator Bingaman Barrasso
on rainbow family gathering in wy
Mr. Holtrop, I'm sure you're aware that your agency recently played
host to a Rainbow Family gathering in Wyoming. This event has been
deeply troubling to the people of Wyoming.
The Rainbow Family brought nearly 10,000 people to one meadow in
the Bridger-Teton National Forest. The group did not have a permit and
were allowed to camp helter-skelter all over the Big Sandy. This forced
the Boy Scouts to cancel a national gathering planned on that site. And
it displaced livestock grazing, cabin owners, recreationists and lodge
visitors.
It is unacceptable that this group--or anyone--would be exempted
from the rules that all public land users must follow. The people of
Wyoming were forced to deal with the impacts while these folks went on
with their unauthorized gathering.
Enough is enough. We are expecting you to make this right for
displaced users in Wyoming. And the Forest Service must handle this
group differently next year.
No state should have to endure this kind of double standard.
Everyone using public lands must follow the same rules.
Question 4. Can you provide the Committee a detailed explanation of
the steps that the agency has taken to force the Rainbow Family to
obtain the proper permits over the last decade?
Answer. To enhance the agency's ability to require compliance with
the noncommercial group use permit requirement and to administer the
permit, the Forest Service established an internal oversight committee
to build relationships with the Rainbow Family, to monitor
implementation of the noncommercial group use rule, and to make
recommendations for improvements in implementation of the rule and
administration of large group gatherings. The agency's goal is to
provide a national, consistent approach to all large group gatherings.
A National Incident Management Team was formed to provide consistent
enforcement of the noncommercial group use permit requirement and
effective noncommercial group use permit administration.
The following steps have been taken during the last ten years to
enhance implementation of the noncommercial group use rule, which
requires a permit for gatherings that involve 75 or more people, and to
obtain the Rainbow Family's compliance with the rule:
Town Hall Meetings have been held to allow the public to
comment on any concerns they may have, due to the large group's
presence and impacts on their community.
Continual discussions with the Rainbow Family on compliance
and permit requirements have occurred each year from the local
to the national level, including discussions with the Chief of
the Forest Service and the Under Secretary for Natural
Resources and Environment.
Local line officers and special uses personnel have met with
the Rainbow Family to discuss the group's and the agency's
concerns and to obtain compliance with the permit requirement
and other Forest Service regulations.
Forest Service Law Enforcement and Investigations Staff
(LEI) have met with state and local law enforcement officials
to address potential issues and to coordinate their efforts and
resources to minimize impacts on national forest resources,
public safety, and the local community and to obtain the
Rainbow Family's compliance with federal, state, and local law.
LEI has met with the local United States Attorney's Office
to gain its support and assistance with prosecuting Rainbow
Family gathering participants when permit requirements are
ignored. In the past, cooperative efforts between the Forest
Service and United States Attorney's Offices to gain compliance
through law enforcement have been successful.
The Forest Service has made numerous arrests and issued
hundreds of citations at Rainbow Family gatherings for
violations of law, including failure to obtain a noncommercial
group use permit.
Question 5. If a family group, or church group, or the Boy Scouts
want to hold a large (more than 50 person) picnic on the National
Forests are they required to have a permit to hold that event?
Answer. Per Forest Service regulations at 36 CFR Part 251, Subpart
B, noncommercial groups are required to obtain a free permit if their
event will involve 75 or more people, either as participants or
spectators. If a group event involves fewer than 75 people, a permit is
not required. Applications for a noncommercial group use permit must be
submitted at least 72 hours before the event. The Forest Service must
respond within 48 hours of receipt of a noncommercial group use
application; otherwise, it will be deemed granted.
S. 3157, TO PROVIDE FOR THE EXCHANGE AND CONVEYANCE OF CERTAIN NATIONAL
FOREST SYSTEM LAND AND OTHER LAND IN SOUTHEAST ARIZONA, AND FOR OTHER
PURPOSES
I note the bill would limit the full environmental reviews
typically carried out to analyze and approve a land conveyance, but it
would provide that ``before commencing production in commercial
quantities of any valuable mineral from the Federal land conveyed to
Resolution Copper. . ., the Secretary shall publish an environmental
impact statement ... regarding any Federal agency action carried out
relating to the commercial production.''
Question 6. Is this a common requirement that your agency has seen
in the past for other land exchanges that involve mining?
Answer. Section 4(h) is not a typical provision. It requires the
agency to prepare an environmental impact statement after the land
exchange is completed for federal agency actions related to commercial
mineral production that would be carried out on non-National Forest
System lands. In the vast majority of cases in which USDA has
discretion in completing a land exchange, the Forest Service typically
conducts NEPA analyses before land is exchanged out of federal
ownership. Congress does not typically direct the agency to comply with
NEPA after an exchange is completed.
Additionally, it is unclear what additional requirements the bill's
sponsor intended to impose with this language. Normally, the Forest
Service would not prepare an environmental analysis of activities that
are proposed to be carried out solely on private land. On its face,
section 4(h) would require the agency to prepare an EIS for ``any
federal agency action carried out relating to the commercial
production.'' However, an activity related to commercial production
carried out by Resolution Copper on the land that it receives in the
exchange would not be considered to be a federal agency action. If the
mineral development is confined to private land, the agency would not
be required to prepare an EIS under section 4(h).
However, if the company needs to use NFS land for ancillary
activities related to the mining development, such as rights-of-way for
electric lines, pipelines, or roads, section 4(h) could be read to
require the agency to prepare an EIS for these activities. While agency
approval of these types of ancillary activities on NFS lands would
normally require compliance with NEPA regardless of the direction in
section 4(h), the provision could be read to mandate preparation of an
EIS (as opposed to an EA) for the authorizations. Additionally, the
language could obligate the agency to consider the environmental
consequences of the entire non-federal action in the EIS. Given the
scope of this exchange and the complexity of the proposed mine,
clarification of the direction in section 4(h) would aid the Forest
Service in complying with the requirements of the bill.
Question 7. In your view, does this establish a precedent that you
will have to carry out on other mining-related land exchanges?
Answer. No. The legislation is limited solely to this exchange and
carries no other precedential value.
Question 8. Section 10 of S. 3157 provides for a value adjustment
payment, whereby Resolution Copper would pay the United States a
royalty for produced minerals if their value exceeds what was projected
for purposes of valuing the Federal land at the time of the conveyance.
Is there precedence for this requirement?
Answer. We are not aware of any precedent.
Question 9. Is it common for companies to agree to provide a
royalty or even a partial royalty, as called for in Section 10 of S.
3157 for hard rock mining?
Answer. Not in our experience.
Question 10. S. 3157 directs the Secretary of Agriculture to convey
approximately 3,025 acres of the Tonto National Forest to Resolution
Copper for approximately 1,445 acres of private land to be managed by
the Forest Service and approximately 4,189 acres to be managed by the
Bureau of Land Management.
I see that the federal government is getting about 1.86 acres in
return for every acre they give up in this exchange.
Do you expect that the appraisals will show balance in value when
they are completed?
Answer. We expect the outcome to be an equal value land exchange.
We expect that our appraisals will show an approximate balance in
value. However, we note that in the event that the appraisals indicate
otherwise, the bill provides for cash payment that would exceed the 25%
limitation in the Federal Land Policy and Management Act.
Question 11. The legislation provides the Secretary four years to
design and construct one or more campgrounds in the area to replace the
Oak Flat Campground that would be conveyed for the mine.
Are there other comparable areas to put a campground in the area?
Answer. Thus far, we have identified three possible locations for
the replacement campground, but are concerned that each location
presents challenges related to access, potential mining-related
hazardous materials, and cultural sites. We would also like to discuss
alternatives, such as enlarging or improving existing campgrounds in
the area.
Question 12. Might the replacement have a water source which would
be a significant improvement over the existing campground?
Answer. The Forest Service is still analyzing potential alternative
campgrounds. One of the alternative places suggested by the proponent,
the JI Ranch property, is on a floodplain which would not be suitable
for a campground. Availability of water for domestic use would be an
attractive feature of any proposed site.
______
Responses of David Salisbury to Questions From Senator Barrasso
Question 1. Mr. Salisbury, could you walk us through how much time
and money has been expended by your company to get to this point
regarding this mine?
Answer. Exploration work began in 2001 and Rio Tinto became manager
of the project in 2003.
As of June 2008, $290 million has been invested in the Resolution
Copper Project. Of this over $15 million has been spent on reclamation
work on the 100-year old Superior mine site. Resolution Copper has
recently received approval for $652 million (in addition to what has
already been spent) to construct a new shaft.
This shaft, reaching 7000 feet below the surface, is an important
step in the development of the mine and will allow the pre-feasibility
team to further study the rock conditions and help us determine if the
mine is feasible. Resolution Copper has not made the final
determination as to the economic and technological feasibility of
mining this ore body.
If we proceed, Resolution Copper will spend approximately $4
billion toward capital investment before mine construction is finished
and we ship our first load of copper.
Question 2. As I understand the legislation, Senator Kyl is asking
you to do several things that no other company has done to develop this
mine, including a more complicated NEPA process, paying a royalty for
the copper if you ever do mine it, providing a conservation easement to
Apache Leap, and giving the federal government nearly 1.86 acres for
every one acre that you get back. Are you aware of all these
requirements and is your Company willing to agree to them?
Answer. We are aware of the environmental and financial
requirements in S. 3157. Resolution Copper agrees to fully comply with
all of these measures.
The company supports the public comment and review process included
in NEPA and welcomes the opportunity to participate in this process.
Resolution Copper feels that this process is consistent with our
corporate commitment to transparency and community engagement.
Resolution Copper understands the importance of the value
adjustment payment in the bill. Resolution Copper is prepared to pay
this value adjustment payment to the United States on any production
from the mine which exceeds the production assumed in the appraisal.
The royalty rate will be any rate enacted by Congress prior to December
31, 2012, or the rate assumed in the appraisal if Congress does not
enact a Federal royalty.
The company recognizes the importance of Apache Leap as a scenic
and historical monument. Resolution Copper supports the preservation of
Apache Leap and the protections called for in S. 3157.
Finally, the emphasis on the exchange was assuring equal value for
the properties. The selection of the parcels in this exchange was
conducted in consultation with the Forest Service, BLM, and leading
NGOs. Resolution Copper believes in the conservation value of the
properties in S. 3157 and looks forward to seeing them preserved for
future generations.
Question 3. Can you tell us more about the public land order and
its significance for your project?
Answer. Public Land Order (PLO) 1229 was executed in 1955. The
withdrawal order was signed by an assistant secretary of the Interior
Department, and included numerous other campgrounds, picnic areas, fire
lookouts and other administrative sites. The Forest Service has
provided testimony to both the House of Representatives and the Senate.
In both cases, this testimony reflects that the Oak Flat withdrawal was
one of a series of routine withdrawals made to protect campgrounds and
other government facility investments from disruption by other
development. During the July 9th hearing before the Subcommittee on
Public Lands and Forests on S. 3157, National Forest System Deputy
Chief Joel Holtrop testified that the purpose of PLO 1229 was to
protect, ``the Federal investment in the campground (page 56, line 6 of
the hearing transcript).'' In l971, the withdrawal was modified to
allow disposal of the area by land exchange and other means, and that
is what Resolution Copper is asking Congress to do. Copies of both
orders have been attached to this testimony.*
---------------------------------------------------------------------------
* Documents have been retained in subcommittee files.
Appendix II
Additional Material Submitted for the Record
----------
Statement of Michael O. Hing, Mayor, Town of Superior, AZ,
S. 2466
Mr. Chairman and Members of the Subcommittee:
I am Michael Hing, Mayor of Superior, Arizona. I am pleased to
submit this testimony on behalf of the Town of Superior concerning S
2466.
My roots in Superior are deep. I was born and raised there. My
grandparents opened their grocery store in the 1920s and I operate it
now with other members of my family. As a small businessman and active
community member, I've witnessed the town's success during boom times
and its decline during busts. I plan to usher in a positive future for
the town, and this land exchange is crucial to that future.
Please allow me to explain what I mean. When the Magma Mine was
operating, our town was prosperous and grew to 7,500 people. Jobs were
plentiful and Superior made a name for itself But we depended only on
the mine for our well-being. Then, in 1987, Magma closed. Our community
was devastated. The effects are lingering to this day. Our population
shrank by more than half, to 3,500 residents. Major social problems
surfaced as employment plummeted and people lost hope. Crime and drug
use skyrocketed. Schools for our children lost funding, compromising
our ability to provide a solid education. The mine left an
environmental mess for others to clean up.
As mayor, I've absorbed an important lesson from witnessing that
civic trauma. I know to never rely completely on mining again. Our
economy needs to be diversified.
That's why I am so pleased that Resolution Copper Company has come
to Superior. The company discovered a significant ore body 7,000 feet
below the old Magma Mine. With such a major discovery, Resolution
could've swept in to Superior with a flourish of promises and new
mining jobs and then abandoned us when the ore was exhausted. But from
the day company representatives first arrived, they have looked to the
town's future. They approached me with ways to build up our economy and
to do it right. The company is just in the early stages of eventually
extracting the ore, but its representatives are already helping the
town plan for the day the mine closes.
The company works with our schools, boosting math and science
education to elementary-age children and providing summer jobs and
college scholarships to older youth. They have spent and are continuing
to spend millions in voluntary efforts to clean up, reclaim and improve
their land and facilities. They helped arrange economic development
meetings with the Arizona Department of Commerce to shape a workable
plan that will diversify our economy in mining services, manufacturing,
tourism, recreation and other businesses. They hire local contractors
and provide job training to local citizens. They are working to beef up
our infrastructure, including establishing Superior as a wireless
Internet zone. If this land exchange legislation is successful,
Superior will gain valuable property we can use for even more economic
development. In short, from the beginning, Resolution Copper has worked
with Superior and other area communities with a vision of sustainable
development.
The company's willingness to build Superior's future is very
important to our partnership. But even more importantly, company
officials have been completely transparent about their operations. The
company formed a citizens' committee to help town residents stay
informed of company activities and to give our input. They routinely
ask our opinions and include us in crucial discussions.
I testify before you today as a partner with Resolution Copper. The
land exchange legislation before you is critical to our shared vision
of the future. Resolution must complete the land exchange before it
invests $2 billion in mine development.
I will not bore you today with every detail of the exchange, which
will streamline the now-fragmented ownership of 3,000 acres in the Oak
Flat area. Suffice it to say that the town, the state, the governor,
and members of our Congressional delegation including Senators Jon Kyl
and John McCain and Rep. Rick Renzi, agree that Resolution Copper
should acquire the land, including campgrounds and rock-climbing areas.
In return, the non-federal properties that Resolution has assembled to
convey to the United States for the exchange are spectacular in their
contribution to wildlife habitat, protection of streams and other water
resources, endangered species habitat, land conservation, and
opportunities for recreation.
Allow me to describe some of the other environmental benefits that
S 2466 will include for Superior, surrounding communities and the State
of Arizona.
First, Section 6 of S. 2466 permanently protects the Apache Leap
escarpment, an environmental landmark above Superior that dominates our
landscape. The Superstition Land Trust and Resolution Copper, working
with the town, support the language of S. 2466 which insures that the
Apache Leap escarpment is never disturbed by development and remains as
it is today. Additionally, Resolution will spend up to $250,000 to
provide public access, trails, or trailheads to Apache Leap, if the
Land Trust, local Indian tribes and town deem it appropriate.
Second, Resolution, the town, and the U.S. Forest Service have been
working together to identify a replacement campground or campgrounds
for an existing 14-site Forest Service campground at Oak Flat. S 2466
requires the Secretary of Agriculture to design and construct one or
more replacements in the Globe Ranger District, and requires Resolution
to pay up to $500,000 for them.
Third, Resolution will compensate for the loss of recreational rock
climbing at Oak Flat. The company funded a large-scale search to find a
bigger and better climbing area. The resulting find, less than 20 miles
away at Tam O'Shanter Peak, has sparked interest from climbers all over
the world. The Arizona State Parks Board and the Arizona Legislature
have recognized this incredible find and are pursuing a new State Park
there devoted to climbing. A bill is moving through the Arizona
Legislature to authorize the park's creation, assuming that S. 2466 is
enacted.
The land exchange also creates new economic opportunities for
Superior, which, as you can see from the map attached to testimony, is
largely surrounded by the Tonto National Forest. S 2466 provides the
town with an opportunity to acquire some of this adjacent property from
the United States to meet anticipated growth.
Also, the Town's 30-acre cemetery is located on an isolated parcel
of federal land managed by the Tonto National Forest. While hundreds of
our forefathers have been buried there for the past century, no
authorization exists for our cemetery. S. 2466 allows the Town to
acquire this parcel at fair market value from the Forest Service.
Additionally, the Town owns a 265-acre parcel, which has a small
landing strip. The property has a reversionary interest, so if it ever
stops being used as an airport, it will be returned to the U.S.
government. The Town wants to acquire this reversionary interest, and
S. 2466 provides for a sale of the interest to the Town at fair market
value. Moreover, S 2466 provides that the Town may acquire up to 181
additional acres of land contiguous to the airport, also at fair market
value, and in a manner that provides the United States with manageable
boundaries on retained parcels. These airport parcels represent a
significant opportunity for the Town in terms of future growth,
economic diversification and development. And future airport uses have
been protected by the Arizona Department of Transportation. The
department's 5-year capital improvement plan includes the ability to
relocate the airport if we choose.
Finally, S. 2466 provides that if the lands offered by Resolution
exceed the appraised value of the federal Oak Flat parcel, any excess
value can be applied to the Town's purchase of the cemetery and airport
parcels. Both Resolution and the Town are anxious for the Town to
acquire these properties.
Mr. Chairman, as our governor has stated, the new mine is projected
to produce 1,000 jobs during construction and 400 to 600 permanent
jobs, plus more than a thousand related and indirect jobs. The economic
impact of the new mine will allow us to grow in a way that ensures a
future for our children and grandchildren. The possibilities the mine
holds for Superior and Arizona are among the many reasons that Gov.
Napolitano is joining us in strongly supported this land exchange.
Thank you for the opportunity to testify today. I would also like
to thank the members of our Congressional delegation, including Sen.
Kyl and McCain, and Rep. Renzi, for their efforts in bringing this
legislation to fruition and our state delegation for promoting the
creation of a state park. The town of Superior urges your thoughtful
consideration and timely passage of S. 2466, so that this land
exchange, which is so important to our future, can be implemented at
the earliest possible date.
S. 3157
Mr. Chairman and Members of the Subcommittee:
My name is Michael Hing. I am the Mayor of Superior, Arizona--a
small town in Pinal County, about 65 miles southeast of Phoenix. I
would like to address the committee in support of the Southeast Arizona
Land Exchange and Conservation Act of 2008. I firmly believe that this
land exchange is in the best interest of the public.
This land exchange represents an unprecedented opportunity to
improve the long term economic vitality of the state and the region.
Additionally, this exchange would transfer to the citizens of the
United States thousands of acres of conservation properties. These
properties offer permanent protection to endangered species,
preservation of key riparian habitats, and conservation of some of
Arizona's most valuable lands.
In addition to the ecologically valuable land exchange, Resolution
Copper Company leads the industry in taking action on a variety of
fronts to benefit and protect the environment. From their cutting edge
and forward-thinking water management and water procurement strategies
to their close working partnerships with the Arizona Trail Association,
Audubon Arizona, Boyce Thompson Arboretum, and The Nature Conservancy,
Resolution Copper Company continually focuses on tangible ways to be
better stewards of Arizona's precious natural resources. One excellent
example is their ongoing $50 million rehabilitation effort to restore
1,500 acres of land affected by previous mining operations in Superior.
I provided testimony to this committee in 2005, of which I have
attached a copy. In my previous remarks, I discussed the importance of
speedy passage of the land exchange to the economic and social well
being of Superior and neighboring communities. It is my belief that the
present version of this legislation is an even better deal for the
public.
Currently vast numbers of Superior residents are forced to commute
into the Phoenix metro area and nearby towns to find employment. The
lack of stable local employment has taken its toll on the residents of
Superior. Families that have resided here for multiple generations are
moving away. This situation has not improved since the last time I
addressed this committee.
Families and businesses across Arizona are feeling the impact of
the decline of the real estate market and the rising costs of energy.
At the same time, state revenues have been negatively impacted,
resulting in an estimated $1.6 billion deficit predicted for fiscal
year 2009. In order to secure our State's long term employment and
economic future, it is both prudent and reasonable to approve the
Southeast Arizona Land Exchange Conservation Act.
Elliott D. Pollack and Company--commissioned by Resolution Copper--
prepared an economic study recently. This study provides a preview into
the enormous economic and fiscal impacts of the construction and
operation of the mine project. The study predicted a jarring $46.4
billion of economic activity to the region. This is exactly the shot in
the arm needed by Superior.
Mining towns have seen their share of boom and bust. We have
learned from this and in partnership with Resolution Copper have
already taken steps to diversify our economy. I believe our plan for
the future will coupled with the economic development generated by the
mine, will allow Superior to develop a sustainable economy.
To mark this partnership, the town and Resolution Copper have
entered into a landmark agreement providing funding for programs that
will help Superior enhance business and residential opportunities.
The land exchange will also allow Superior to acquire lands
adjacent to the town. Mr. Chairman, Superior is only 4 square miles and
is almost completely surrounded by public lands. The lands Superior
will acquire through the exchange are crucial to attracting new
development and will provide significant opportunities for us.
I believe Congress has an excellent opportunity to provide an ideal
balance between the expansion of jobs, local and state revenues, and
diverse economic activity while conserving ecologically sensitive and
pristine lands for future generations. Following several years of in
depth research, study, and debate we submit to you our sincere hope
that this legislation can be swiftly approved so that the remarkable
economic impacts of this exchange can begin to be fully implemented and
realized.
I appreciate your consideration of this very important bill.
attachment
Town of Superior,
Superior, AZ, June 27, 2008.
Hon. Senator Ron Wyden,
Chairman, Public Lands and Forests Subcommittee, Committee on Energy
and Natural Resources, 230 Dirksen Senate Office Building,
Washington, DC.
Dear Chairman Wyden, As Mayor and on behalf of the Council of the
Town of Superior, Arizona, I would like to address the Committee
signifying the Town's fullest support for the Southeast Arizona Land
Exchange and Conservation Act of 2008, S.3157, introduced in the Senate
of the United States Congress. The Town recognizes Resolution Copper
for its investments and efforts towards enhancement of our regional,
state, and national economy.
As leaders of our community, the Council and I have always
recognized the important role played by the copper industry since the
birth of our State and its invaluable contribution to the development
and strengthening of our region's, state's, and the nation's economy.
In addition, Superior recognizes and appreciates the level of support
and local commitment provided by Resolution Copper.
The Town of Superior has a comprehensive understanding of the
evolving environmentally sound technologies and preventive measures
incorporated by all new mining developments, operations, and closures,
along with deepest appreciation for the mines' individual and
collective contribution to the economy, productive employment, creation
of the support industries, and to the overall quality of life of each
affected town, city, county, region, state, and our nation over the
last 100 years.
Mr. Chairman, I would like you to know that Superior has a
comprehensive understanding of and fully supports the Southeast Arizona
Land Exchange and Conservation Act of 2008 including the positive gain
to the taxpayers and people of our nation by approval of the proposed
exchange, due to the gain realized in further preservation of natural
resources, land, and the inherently present flora and fauna for the
enjoyment and heritage of generations to come, in return for exchanging
the gained land for the acreage needed by the Resolution Copper
Company's mine to facilitate its operations over the next three decades
or more.
The Town of Superior is in hill support of S. 3157 and in full
support of the Resolution Copper Company's Plans and Operations to
develop the new copper mine in the area of Oak Flat.
Sincerely,
Michael O. Hing,
Mayor.
______
Statement of John Keedy, President, Arizon Mountaineering Club,
Phoenix, AZ, on S. 3157
As the President of the Arizona Mountaineering Club (AMC), the
oldest and largest rock climbing and mountaineering club in Arizona
with nearly 400 active dues paying members and literally 1,000's of
past members, I want to take this opportunity to communicate our
continuing concerns about the Southeast Arizona Land Exchange and
Conservation Act of 2008 (Senate Bill S. 3157) introduced recently by
Senator Jon Kyl.
Resolution Copper Mining, LLC will, over time, eliminate much of
the rock climbing in the area of Oak Flat and the Queen Creek Canyon,
destroy the present Oak Flat Campground and prevent access to many of
the other areas that are frequented by rock climbers. These rock
climbing areas have been developed over many years with literally
thousands of routes being bolted for safety and for sport climbing.
Additionally there are thousands of bouldering routes where bolts is
not required. All this will be lost if the Southeast Arizona Land
Exchange and Conservation Act of 2008 is passed without consideration
of these valuable assets and reasonable accommodations for the loss of
those climbing areas made to climbers.
Having worked with Queen Creek Coalition over the past several
months and supporting efforts to preserve climbing opportunities in the
Oak Flat area, the AMC Board of Directors supports the items presented
in their position paper as listed below:
Queen Creek Coalition (QCC) has as its goal maximum climbing
and recreational opportunities in the Queen Creek area. Our
greatest want and desire is to continue alongside the mining
operations as it has been in the past. We have been asked to
assemble items that we want with respect to the mining
activities proposed.
Accordingly, we want:
A mining technique that is consistent with and abides by
existing protections, maintains surface integrity, complies
with all environmental regulations, and respects multi-cultural
traditions.
A contiguous, permanent, publicly accessible recreational
and conservation area of lands encompassing Apache Leap, Queen
Creek Canyon, and Devils Canyon and all appropriate
infrastructure including but not limited to trails, roads,
parking, information kiosks, restrooms, etc.
Fee Simple transfer of ``The Pond,'' ``Atlantis,'' and other
privately held lands along Apache Leap, in Queen Creek Canyon,
and any in Devil's Canyon surrounded by or adjacent to the
contiguous area to either federal, state, or other 3rd party
entity approved by the QCC.
The full and complete funding and follow-through for a State
Park dedicated to climbing at Tam O'Shanter. This includes but
is not limited to proper access roads and infrastructure.
Roads and infrastructure for the ``Inconceivables,'' ``Land
of the Lost,'' ``Steamboat Mountain,'' ``The Drip,'' and ``The
Homestead.''
Campgrounds, recreational access points, and necessary
infrastructure for the area north of ``The Pond'' and at the
``Inconceivables.''
Coexistence agreement and climbing management plan for
permanent, public recreational use of any lands involved with
the ``land trade.''
Definitions, Assumptions, and Stipulations
1) Roads are defined as a minimum of all-weather surface,
2WD, with full permanent, continuous, legal, no-cost to the
user access and rights to be located as determined by QCC.
Roads are to be built to specifications of the public entity
that will be responsible for maintenance and repair.
2) All lands transferred to the public or a 3rd party shall
be transferred in Fee Simple to a transferee approved by QCC.
3) All lands within the Contiguous area shall be withdrawn
from uses other than recreation and conservation.
4) All agreements will be made in writing.
5) All the foregoing, bulleted items shall be written into
the land exchange bill.
6) Funding for all items shall not be borne by the public or
come from public monies.
7) Infrastructure shall mean all items necessary to create,
replace, and maintain rock climbing routes, hiking trails,
internal access roads, trailheads, bouldering fall surface
preparation, etc.
We welcome the opportunity to discuss our position.
______
Statement of Manuel Ortega, Chairman, The Concerned Citizens & Retired
Miners Coalition, Superior, AZ, on S. 3157
The Concerned Citizens and Retired Miners Coalition is a group of
citizens who: 1) reside in Superior, Arizona, or do not reside in
Superior, Arizona, but are affiliated with relatives who are residents;
2) are retired hard-rock miners who previously worked in the now non-
operational mine in Superior, Arizona, and were displaced due to mine
closure or personal disability; or 3) are individuals who are concerned
that important U.S. public recreational land will be conveyed to a
foreign mining company for private use.
The Concerned Citizens and Retired Miners Coalition realizes that
Superior, Arizona, was born as a mining community and has lived through
the mining booms and busts of the Silver King Mine, the Queen Mine, the
Belmont Mine, the Magma Mine and the Broken Hill Proprietary Mine over
the history of our 100 plus years. Because we recognize that mining is
a large part of our history and will potentially be a larger part of
our future, we are not opposed to mining. In fact, we strongly support
responsible mining policies and practices in and around our community.
However, we believe that S. 3157 is unacceptable as it presents serious
negative impacts to us and our surrounding community as it seeks to
circumvent the important National Environmental Policy Act review and
analysis process. We also believe that there is no need for a land
exchange for the mine to move forward with their plans to mine this
area.
We appreciate and thank you for the opportunity to express our
views and voice our concerns about S. 3157, the Southeast Arizona Land
Exchange and Conservation Act of 2008 (Oak Flat Land Exchange) that
will profoundly affect our community.
OAK FLAT LAND EXCHANGE AND LOSS OF IMPORTANT PUBLIC CAMPGROUND AND
RECREATIONAL AREAS
Resolution Copper Mining, LLC, a foreign-owned mining company, is
planning a massive block-cave mine and seeks to acquire Oak Flat
Campground and the surrounding public lands for its use through this
land exchange bill. If they succeed, the campground and an additional
2,300 acres of the Tonto National Forest will become private property
and forever off limits to recreationists and other users. Privatization
of this land would end public access to some of the most spectacular
outdoor recreation and wildlife viewing areas in Arizona. It would
deprive the Town of Superior, currently land-locked at only 4 (four)
square miles, from economic diversification in and around our
community. It would also deprive the San Carlos Apache Tribe of their
religious burial ground ceremonies and their age-old cultural
attachments to the area.
Located just 5 miles east of Superior, Oak Flat is an important
part of our history and our economic diversification. It has long been
prized for its recreational variety. This area is exquisite and easily
accessible to millions of visitors from the Phoenix and Tucson
metropolitan areas, as well as the outlying areas of Gold Canyon, Queen
Valley, Florence, Kearny, Winkelman, Hayden, Globe, Miami, Top of the
World and Superior. It is significant to our neighbors, the Apache
people, for their cultural values and religious heritage.
The Oak Flat Campground, Apache Leap, and the surrounding area
important to the Apaches who gather acorns and pine nuts that are used
both traditionally and ceremonially. Apache Leap is an historical land
known as the Apache's Masada. It is there that many Apaches leaped to
their deaths rather than be captured by the U.S. Army approximately 125
years ago. One of our local historians, Christine Marin, PhD, Archivist
and Historian for Arizona State University and who is a former resident
of Globe, Arizona, and still has family in Superior, Arizona, recently
published an article in the Copper Country News dated June 11, 2008. In
her article entitled, ``Apache Leap Legend: Now We Have `The Rest of
the Story','' Dr. Marin indicated that the story of the Apache warriors
is verified by two historical publications. We believe that these lands
have significant import to the Apaches and that their wishes should be
carefully considered and respected.
You, our Federal legislators, are being asked to give up these
publicly owned lands that have been in trust for the American and
Native peoples since 1955, when President Eisenhower signed BLM Public
Land Order 1229. This Order specifically put Oak Flat off-limits to all
future mining activity. In 1971, President Nixon issued BLM Public Land
Order 5132 to modify PLO 1229 and allow ``all forms of appropriation
under the public land laws applicable to national forest lands--except
under the U.S. mining laws.'' These two executive orders from two
different Republican administrations both mandated that these lands
were to be preserved in perpetuity with special emphasis on prohibiting
mining activities on Oak Flat.
A decision regarding these public lands should be made with utmost
knowledge and care. Once these lands are lost to the public, they can
never be regained.
We are particularly concerned that a legislated land exchange of
the Oak Flat Campground and surrounding area would bypass necessary and
meaningful environmental impact studies. We fear that cultural
resources will not be protected. We believe that subsidence will occur
and that it will adversely affect our community. We don't have any
information regarding RCC's proposed disposition of the massive amounts
of tailings that will be produced and where they will reside. We are
terrified that there will be downstream pollution that will affect the
Town of Superior and everyone who depends upon the nearby aquifers for
drinking water. Our local water supplier recently imposed an additional
``arsenic surcharge.'' While The Magma Mine was operational, local
residents were told that there was no pollution or effects on the water
supply. Now, 20 years later, we find that there was--and continues to
be--a price to pay for giving a foreign-owned mining company carte
blanche because we trusted the mine explicitly.
It is for these reasons and many more that we oppose the Oak Flat
land exchange legislation.
WATER, THE ENVIRONMENT, AND DESTRUCTION OF LAND SURFACE
The Concerned Citizens and Retired Miners Coalition believes it is
critical that Hydrology Surveys, Environmental Impact Studies,
Subsidence Analyses and Transportation and Circulation Plans be
conducted PRIOR to discussion of any land exchange and/or different
use.
Resolution Copper Company's Environmental Impact Assessment
Manager, Bruce Marsh, indicated to one of our Coalition Members that
the new mine would utilize 40,000 acre feet of water per year. He
further indicated that they would be buying excess water from the
tribes and other sources, however, they are merely banking those water
rights and the sources are not secured. This is a concern because: 1)
Arizona is still in the grip of a 13-year drought with dwindling
Central Arizona Project supplies, and we do not have any assurances
that water will still be available when Resolution Copper Company
begins mining in the next ten (10) years; 2) Superior is located in the
Maricopa AMA rather than the Pinal AMA, and Phoenix metropolitan area
water supplies depend upon the Queen Creek aquifers; 3) The close
proximity of the Queen Creek aquifer to a massive mining operation will
negatively disrupt the underground water flow; and 4) Neither the State
of Arizona nor the local residents should have to bear the burden of
restoring clean and sustainable water utilized by mining.
The Concerned Citizens and Retired Miners Coalition have been
concerned about the issue of subsidence by virtue of Resolution Copper
Company's proposed block-cave mining method and its effect on the Oak
Flat Campground, the Apache Leap escarpment, and the Town of Superior.
Resolution Copper Company has finally admitted to ``minimal
subsidence.'' However, they admittedly have chosen this method of
mining as it is the least expensive and quickest method to approach
this massive ore body. Experts have demonstrated that there will be
irreparable destruction to the surface utilizing the block-cave method
of mining. This is absolutely unacceptable.
Resolution Copper Company has not yet determined the manner in
which the tailings will be accumulated. Since there will be a
considerable volume of tailings that will be created by this method of
mining, The Concerned Citizens and Retired Miners Coalition is
concerned about the contamination associated with this activity. We are
also concerned regarding reclamation of these tailings upon mine
closure.
S. 3157 does mention the National Environmental Policy Act (NEPA)
but the bill does not provide for even the most basic study and
analysis of these issues and concerns prior to obtaining the land
exchange. Furthermore, if the land exchange is granted, the National
Environment Policy Act study and analysis process will be by-passed.
The Concerned Citizens and Retired Miners Coalition believes that
Resolution Copper Company should not be exempt from the required
national permitting studies and analyses that have been required of the
other mines in the area by virtue of a land exchange. No other mining
corporation in this area has been allowed to bypass the Federal NEPA
process.
If the start-up timeframe proposed by Resolution Copper Company is
correct, then there is plenty of time to conduct the full public review
process. Additionally, if Resolution Copper Company is as
``transparent'' as they profess, they should welcome this endeavor to
put all the ``cards on the table'' and hear everyone's input.
We also believe that details of the project and potential impacts
(Mining Plan of Operation) should be made available to our residents
and to the general public up front. We continually hear that Resolution
Copper Company will make this plan available later--after the Oak Flat
land exchange. We feel that if the land exchange is of utmost
importance, Resolution Copper Company should accelerate production of
their plan NOW--before the Oak Flat land exchange.
PUBLIC RESPONSE OPPOSING THE FEDERAL LAND EXCHANGE OF OAK FLAT
CAMPGROUND, AND SURROUNDING AREAS
The Concerned Citizens and Retired Miners Coalition began gathering
signatures opposing the Federal Land Exchange of Oak Flat Campground
and surrounding areas in March of 2007 and obtained 90 hard-copy
petitions from the public over a 4-month period. Of the 692 individuals
who signed, 315 were Superior residents and 377 were concerned citizens
residing outside of Superior, Arizona. Additionally, we initiated an
on-line petition process and to date have gathered 3,943 signatures
world-wide opposing the Oak Flat land exchange.
On June 29, 2007, we hand delivered a cover letter, copies of the
petitions and photographs of some of the spectacular scenery in this
public land use area to Arizona Governor Janet Napolitano, the Superior
Town Council, as well as each of Arizona's Senators and Representative
to the United States Congress.
We entertained dialogue with Superior Mayor Michael Hing, who
indicated he wrote a letter to Congressman Grijalva in May of 2007
expressing some concerns and issues with the land exchange and
requesting delay of bill until such time that the Town of Superior and
Resolution Copper Company worked out a number of issues that materially
impact the Town and its citizens. On August 16, 2007, Mayor Hing sent a
similar letter, requesting delay of the bill, to Governor Napolitano
and each of Arizona's U.S. Congressmen. Subsequently, the Vice Mayor
and one additional Councilwoman attended our meetings to hear our
concerns.
At a Special Town Council meeting held on August 23, 2007, the
Council approved a letter written by Rosie Cordova, Superior Town
Manager, to John Rickus, President of Resolution Copper Company, LLC,
with a proposed Memorandum of Agreement regarding issues that
materially impacted the Town and its citizens. Subsequently, on
September 6, 2007, the Town Council approved a second letter be sent to
the Governor and each of the Arizona's U.S. Congressmen--again
requesting a delay of the bill and indicating that there were ``other
serious reservations due to a multitude of environmental concerns that
may adversely affect the land, water and air quality of our
community''.
The following Town Council meeting held on September 20, 2007, was
dedicated to a Resolution Copper Company presentation of their
September 10, 2007, letter to Mayor Michael Hing indicating their
disappointment in the recent developments from the Town Council
regarding our (sic Resolution Copper Company's) land exchange and
letter of August 24, 2007, and proposed a revised Memorandum of
Understanding. The room was filled with a multitude of Resolution
Copper Company supporters who presented petitions in support of the
Resolution Copper Company land exchange. Some of these petitions were
being signed before, during and after the Town Council meeting that was
held in a public building. I have never know our local officials to
allow any signature gathering for petitions to occur in a government
building--at a government meeting.
During this meeting, public comments were provided by various
individuals that were disparaging toward certain members of The
Concerned Citizens and Retired Miners Coalition. Members of The
Concerned Citizens and Retired Miners Coalition were not allowed to
make any comments in support of our views and were heckled during their
public comments. (Subsequent to this meeting, comments were directed to
various employers asking that the employees opposing the land exchange
be fired!) Signatures on petitions supporting Resolution Copper Company
were obtained in the Town Council chambers prior to and during the
meeting. Of the 386 individuals who signed, 163 were Superior residents
with the remaining 223 individuals living outside the Town.
The Town council voted unanimously to support the Resolution Copper
Company Memorandum of Understanding and agreed to write a letter to the
Arizona U.S. Congressional delegation in support of the land exchange.
The Mayor indicated that the Council felt compelled to vote positively
since so many people turned out at the meeting who supported the land
exchange. This did not make any sense since The Concerned Citizens and
Retired Miners had provided more than twice as many local signatures in
opposition to the land exchange!
Many changes have occurred over the past three (3) months--to
include replacing Mr. John Rickus as President of Resolution Copper
Company. The new President, Mr. David Salisbury, came on board and
quickly led the Superior Town Council through the execution process
(and corresponding photo opportunity) of the above-mentioned Memorandum
of Understanding. Mr. Salisbury has also provided a great deal of
information regarding the abundant stakeholder meetings held and the
positive response that they have received regarding their Superior
Project.
In fact, at a Town Council meeting in April, 2008, Mr. Salisbury
indicated that Governor Napolitano was now in full support of the
Resolution Project. The Concerned Citizens and Retired Miners Coalition
contacted Governor Napolitano's office subsequent to this council
meeting and were told, NO, the Governor still has concerns regarding
the project and that her position has not changed. Why would Resolution
Copper Company misstate the Governor's position?
April 30, 2008, Resolution Copper Company included several
signatures from Arizona's pool of local legislators in a sign-on
letter. Interestingly enough, 14 of the legislators who originally
signed on with Resolution Copper Company formally rescinded their sign-
on on May 20, 2008, stating they did not have full information on the
proposal at that time. This is again representative of RCC's strong-arm
tactics in obtaining support without providing full disclosure. We are
proud to know that these 14 researched RCC's position, obtained facts
regarding the proposed land exchange and had the integrity to formally
rescind their sign-on. We hope you do the same.
The Concerned Citizens and Retired Miners Coalition attendees find
the RCC meetings to contain more ``smoke and mirrors'' than
transparency. Any attempt to ask specific questions regarding their
plan of operation, environmental impacts, other studies and the like
are met with clear and concise statements and data provided by firms
hired and paid by Resolution Copper Company. A frequent answer to
questions is that RCC will provide the information, details, copies and
the like after the land exchange. That answer is unacceptable.
Resolution Copper Company hangs the promise of jobs over local
residents and government officials heads. Many individuals and
officials have bought into that theory. The Concerned Citizens and
Retired Miners Coalition does not agree that our legislators, local
officials or townspeople should be so anxious to support a land
exchange because of a promise that may never materialize. We strongly
urge everyone to ask difficult questions and expect that the process of
the American people be respected. We ask that you do not act so
cavalierly regarding some of our most important resources.
THREAT TO THE TOWN OF SUPERIOR'S ECONOMIC DIVERSIFICATION AND
SUSTAINABILITY
Many members of our Coalition have lived through the boom and bust
cycle of mining. After closure of the Magma/BHP mine in the 1990s, many
people fled the community in search of jobs, medical treatment
facilities and amenities that were not available in Superior. Voters
taxed the political body to create a more diversified and sustainable
economic basis for its residents. The Town received grants to develop
an Industrial Park, a low-income housing subdivision, a new swimming
pool, second fire station, airport, rest stop and numerous parks and
trails. These projects were initiated to create jobs for our local
residents, to increase state-shared revenue and local taxes and to
encourage eco-tourism.
The Concerned Citizens and Miners Coalition believes that in order
to sustain growth and development, we cannot rely on any one industry
to support us. Mining has an allure and historical ties in our
community. However, just as in the past, mining has a short life. We
cannot base our future on one single industry or employer.
While Resolution Copper Company has promised great hope for another
``boom,'' they do not willingly embrace annexation into our town
limits, they have purposely depreciated their land values in
anticipation of the land exchange and they have strong-armed our
government officials and management into accepting less than adequate
compensation for future use of the Town's services and support.
SUMMARY
Resolution Copper Company has divided this community by demanding
that the Town Council speak for the residents of Superior in unwavering
support of a land exchange that is not necessary in order for
Resolution Copper Company to mine. Behind the scenes, their
representatives have attempted to force the firing of individuals
opposing the Land Exchange. Those individuals who question Resolution
Copper Company in any fashion are deemed to be ``anti-mine.''
Businesses deemed ``anti-mine'' are not supported by Resolution Copper
Company, their employees or agents--in fact RCC employees are urged to
boycott! These strong-arm tactics should not be allowed to pervade a
community already distraught from previous ``boom and bust'' mining
cycles.
S. 3157 does not represent a land exchange that is in the broader
public interest. It is clear to The Concerned Citizens and Retired
Miners Coalition that Presidents Eisenhower and Nixon believed that
they were protecting Oak Flat from big business interests in acquiring
public lands for development, mining and transportation. Oak Flat has
been important enough to protect from mining and other elements for
over 50 years, and it should not be so easily conveyed to a foreign-
owned mining interest. This land exchange sets a terrible precedent.
The Concerned Citizens and Retired Miners Coalition strongly urges
the Public Lands and Forests Subcommittee of the Senate Energy and
Natural Resources Committee to ensure that the concerns of all public
interests are addressed prior to consideration of any Federal land
exchange. We believe you should protect these public lands for the
public's future use and preserve the unique opportunities for
Arizonans--and especially Superiorites--that the Oak Flat area
provides.
For these and many other reasons, we oppose S. 3157, the Southeast
Arizona Land Exchange and Conservation Act of 2008 and feel that it
should be rejected.
Thank you for your time and consideration.
______
Statement of Benny R. Wampler, Acting Director, Virginia Department of
Mines, Minerals and Energy, Richmond, VA, on S. 2779
My name is Benny Wampler and I serve as Acting Director of the
Virginia Department of Mines, Minerals and Energy (DMME). I appreciate
the opportunity to submit this statement for the record with respect to
the legislative hearing on S. 2779, a bill to amend the Surface Mining
Control and Reclamation Act of 1977 (SMCRA) to clarify that uncertified
States and Indian tribes have the authority to use certain payments for
certain noncoal and acid mine drainage reclamation projects.
Virginia fully supports the statements submitted by The Interstate
Mining Compact Commission (IMCC) and the National Association of
Abandoned Mine Land Programs (NAAMLP), organizations of which Virginia
is a member, to the Committee at the July 9, 2008, hearing. We strongly
urge Congress to clarify the current misinterpretation for the acid
mine drainage (AMD) set aside program. Section 402(g)(6) has, since
1990, allowed a state or tribe to set aside a portion of its AML grant
in a special AMD abatement account to address this pervasive problem.
Virginia recently celebrated the completion of a $3.4 million AMD
remediation project, partially funded with AML dollars, to treat two
impaired streams in the Powell River watershed. The Powell River is one
of the most ecologically diverse streams in the nation and is home to
29 species of rare mussels and 19 species of rare fish.
OSM's recent policy (and now regulatory) determination is denying
the states the option to set aside moneys from that portion of its
grant funding that comes from ``prior balance replacement funds'' each
year to mitigate the effects of AMD on waters within their borders. AMD
has ravaged many streams throughout the country, but especially in
Appalachia. Given their long-term nature, these problems are
technologically challenging to address and, more importantly, are very
expensive. The states need the ability to set aside as much funding as
possible to deal with these problems over the long term.
We therefore urge the Committee to amend S. 2779 to correct the
current policy interpretation by Interior and allow the use of
unappropriated state and tribal share balances (``prior balance
replacement funds'') for the AMD set aside, similar to the use of these
balances for noncoal work. Suggested amendatory language is attached to
our statement.
Thank you for the opportunity to submit this statement on S.2779.
We welcome the opportunity to work with you to complete the legislative
process and see this bill, as amended, become law.
Suggested Amendment to S. 2779 to include the AMD set-aside account
(Amendments are in italics)
A BILL
To amend the Surface Mining Control and Reclamation Act of
1977 to clarify that uncertified States and Indian tribes have
the authority to use certain payments for certain noncoal and
acid mine drainage reclamation projects.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. ABANDONED MINE RECLAMATION.
(a) Limitation on Funds.--Section 409(b) of
the Surface Mining Control and Reclamation Act
of 1977 (30 U.S.C. 1239(b)) is amended by
inserting ``or section 411(h)(1)'' after
``section 402(g)''. Section 402(g)(6)(A) of the
Surface Mining Control and Reclamation Act of
1977 (30 U.S.C. 1232(g)(6)(A)) is amended by
inserting ``or section 411(h)(1)'' after
``paragraphs (1) and (5)''.
(b) Use of Funds.--Section 411(h)(1)(D)(ii)
of the Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1240a(h)(1)(D)(ii)) is
amended by inserting ``section 402(g)(6)''
before ``section 403'' and inserting ``section
409'' after ``section 403''.
______
Statement of Nancy Freeman, Executive Director, Groundwater Awareness
League, on S. 3157
There are several serious considerations why the land exchange
proposed in SB 3157 is not a good idea for the public or the Native
Americans in the region.
1) U.S. mining companies always go through the National
Environment Policy Assessment (NEPA) to be able to mine on
public lands. Why should Resolution with the legacy of its
parent corporations' horrific environmental records be an
exception? They want the land to become private--with no
justification at all.
2) The nearby Apache Leap, a site of history of Native
American heroes, should be protected and not be disturbed. The
site should be made a national monument.
3) Oak Flat campground was set aside for protection by
President Eisenhower in 1955. With the population growth and
need for urban recreation, there is no reason to change that
status--which is still in force.
4) Tailings Disposal: There is no place to put the waste
tailings without spoiling the landscape for several miles,
which will amount to a pile equivalent to a 20 story-building
spread over 2,389 acres.
5) Cavity size: The underground cavity is estimated to be a
mile in diameter and 3,000 plus feet high. Is there an
insurance company that will provide insurance there will be no
collapses or air blasts?
6) Resolution Copper projects a use of 40,000 acre feet = 13
billion gallons of water per year. The Superior area does not
have this amount of groundwater; the old small-scale mining
company was piping water from 15 miles away by Florence. They
can contract for up to 36,000 af per year of CAP excess water--
WHEN and IF it is available.
7) The proposed mine site is in an incredibly beautiful areas
of Arizona, with oaks, riparian areas and a stream that
provides a home of hundreds of sycamores. It is claimed that
the private lands for exchange have endangered species.
However, I have inquired of the Nature Conservancy and Senator
Kyl for a list of the endangered species on the exchange lands.
I have not received a reply from either party.
For a comprehensive analysis of the situation, see http://
www.mining-law-reform.info/Congressional Report.htm, which was sent to
the Energy and Natural Resource Committee and Public Lands and Forests
subcommittee on July 7, 2008.
Why am I concerned? I live in mining territory and know what it
does to the territory. I have spent over 1,000 hours collecting data
and attending hearings, so that a local copper mine will stop its
pollution to the water that is delivered in my own home. A picture is
worth a thousand words. A bird's eye view is available on Google Earth
maps.
elaboration on points 1 and 2
1) Necessity of NEPA process
For some 25 years, U.S. companies have been mining on public lands
with public process and environmental oversight. Records show that even
with the NEPA process, there are serious contamination to groundwater,
soil and air. (www.mining-law-reform.info/EIS REPORT.pdf) Why should
Resolution Copper, a subsidiary of Rio Tinto, whose Kennecott
operations have created the biggest groundwater toxic plume in the U.S.
at Salt Lake region of Utah, be granted the ability to mine without
public process and oversight? This week a report came out that a Rio
Tinto/Kennecott operation in Nevada is accused of inaccurate mercury
reporting: www.kiplinger.com/print.php?storyid=479706
In 1997, a massive blowout of the sulfuric acid leach pads into
Pinto Creek's adjacent riparian watershed occurred at the BHP copper
mine just a few miles east of Resolution Copper's proposed mining site.
Pinto Creek empties into the Roosevelt Lake, which provides a potable
drinking water supply. See photo below:*
---------------------------------------------------------------------------
* Photos have been retained in subcommittee files.
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Further, since this area is owned the other parent companies, BHP,
Resolution Copper officials have proposed that they pipe the tailings
waste up to this region, which is already a WQARF (Water Quality
Assurance Revolving Fund) site. For further information, see www.g-a-
l.info/Remedial Action.htm
2) Tailings Disposal
There is no place to put the waste tailings without spoiling the
landscape for several miles. Augusta projects that they will be
processing 110,000 tons of ore per day. Since the ore only has less
than 3% copper and moly combined, the daily dump will be some 100,000
tons of waste. When put in a pile 200 ft. high (20-story building), it
will require 2,389 acres for disposal over the life of the mine. The
tailings impoundment in my home town of Green Valley covers 3,600 acres
and grows higher by 8 to 10 feet per year.
______
Attachment.--Environmental Impact of Proposed Mining Project at Apache
Leap and Oak Flats, Superior, Arizona
Note: This report is available on-line at www.mining-law-reform.info/
Congressional%20Report.htm
A foreign company Resolution Copper, a joint venture corporation
formed by a British and Australian Company, is attempting to get an Act
of Congress to undo the protection that President Eisenhower gave to
certain public lands in Public Land Order 1229 in 1955, including Oak
Flat in Tonto National Forest in Arizona. Oak Flat is just as unique
today as it was then. Further the mining operations would more than
likely impact a traditional Indian historical site, Apache Leap.
Although this region is not on designated Native American
reservation land, it has historical, traditional significance for the
Native Americans who have lived in the region for generations. It is a
historical site of Apache heroes, rather like Custer's ``last stand''--
which has been made a National Monument.
The proposed exchange lands do not in any way equal the sacrifice
of Oak Flat, Apache Leap, and Queen Creek, which abound with unique
flora and fauna. The proposed sites are principally over-grazed
abandoned ranches that offer no uniqueness of bird, animal or plant.
For details, see Attachment One: Land Exchange Properties.
The exchange will limit the environmental oversight and the public
process that proceeds with mining projects on public lands. One can not
help but conjecture the motives of a mining company that is trying to
convert public land into private land--when in fact public land is
readily available for mining.
Profits Made From Mining on Public Lands
top mining companies on blm land in the u.s.--ranked by acres affected
Tribal Coalition: The tribes of the region of formed a coalition to
preserve the sanctity of the region. They have sent a letter of
President Bush requesting that he continue to protect the region, which
has been protected by former President Eisenhower. As you can ascertain
by the above map, the mining site is to occur on the backside of the
formation. See Attachment Two: Tribal Coalition Letter to President
Bush
An online petition has been posted this week so that others can
express their support the efforts of the Tribal Coalition to save their
traditional sacred site of Apache Leap. People across the U.S. are
rallying to the cause. To date, there are 3941 signatures See on-line
petition: http://www.petitiononline.com/mod_perl/signed.cgi?coop2468
Impacts of mining: There are certain considerations that a person
not familiar with mining practices would need to know before making any
decisions concerning facilitating mining operations on or near these
two sites.
1) Mining is not a sustainable operation. The impact on the
area where the waste is dumped is more than considerable. Using
the figures of Resolution Copper, they will mill some one
billion tons, which have only some 3% copper. The other 97% has
to be dumped somewhere. If the tailings are stacked, they will
cover 2,389 acres at a height of a 20 story building. For
details, see Attachment Three: Volume of Tailings
2) Water impact. This region has two streams that flow
seasonally, but with some permanent pools--a rarity in Arizona.
To construct any project that could drawdown the water table--
thus emptying the creeks and streamlets--would be devastating
to the birds and other wildlife, as well as the trees and other
plant life. Even with the National Environmental Policy
requirements and oversight, it has been shown by recent
research that the Environmental Impact Statements
underestimated the impact on water in 76% of the cases studied.
For details, see Attachment Four: Predicting Water Quality
Problems at Hard Rock Mines
Another issue is that Resolution Copper will need to pump
nearly two billion gallons of toxic water out of the old Magma
Mine ``shaft 9'' before they start new operations. They planned
to discharge the water into a stream that flows behind Boyce
Thompson Arboretum State Park. After objections over sulfate
levels by the Arboretum management, Resolution now plans to
pipe the toxic water to Queen Creek, dilute it with water from
the CAP canal, and have the area farmers use it. At this time,
the residents of that region do not want the contaminated water
to get into their groundwater table. Department of
Environmental Quality as notified and is requiring Resolution
Copper to obtain a discharge permit.
3) Probability of subsidence: The company asserts that there
will be no subsidence with a tunnels running through terrain
4,000 to 7,000 feet deep and sq feet long and wide.
Nevertheless, they would not give a guarantee to Access Fund of
no impact to the Oak Flat climbing area and they plan to close
the region for recreational use. The bottom line on subsidence:
It's totally non-predictable.
Madan Singh, Director of the Arizona Department of Mines and
Mineral Resources reports, ``Subsidence is an inevitable
consequence of underground mining--it may be small and
localized or extend over large areas, it may be immediate or
delayed for many years'' (SME, 1992). In Mining publication,
1997, Fejes calls subsidence ``a natural result of underground
mining,'' and goes on to state that, ``When a void is created
nature will eventually seek the most stable geologic
configuration, which is a collapse of the void and
consolidation of the overburden material.'' Central to all
these opinions is the underlying fact that subsidence will
occur and will result in impacts to the overlying strata. There
is no way to predict the rifts and faults in a cliff-type area
such as Oak Flat and Apache Leap. For details, see Attachment
Five: Subsidence and Hydrological Environmental Impacts
3) Environmental impact of processing. There are two methods
for rendering the 3% copper (predicted grade ore at Resolution
mine) from the general ore:
1) Electro-winning is a method of dissolving copper ore with
sulfuric acid, then electroplating it to 99% pure copper. The
positive aspect is that it creates less waste than the second
method; however, only certain better grades of oxide ores can
be processed with Electro-winning. The drawback is the sulfuric
acid is stored in open ponds where any animal or bird
unfamiliar with the territory would be dissolved instantly.
Further, although these ponds are lined, human and machine
errors do occur. In 2002 at the ASARCO Silver Bell operations
outside of Tucson, 242,000 gallons of sulfuric acid were
released to the environment when a pond was inadvertently
overfilled. Further, the caustic nature of sulfuric acid makes
the pipes and equipment subject to breaks and leaks. For
details, see Attachment Six: Environmental Impact of Sulfuric
Acid Leaching
2) Flotation is the method used for lower grade, or sulfide
ore. Toxic chemicals are used in the Flotation Process to
separate the copper and molybdenum out of the milled powder.
This Flotation process is the major extraction method at Duval/
Sierrita mine because of the poor quality of the copper at this
site. Some chemicals produce bubbles that that the copper
adheres to and the ``bad stuff'' falls to the bottom. At this
point, the unwanted minerals, salts and processing chemical
residues are piped over to a tailing impoundment.
The concentrate is then smelted in order to separate the
various metals and purify them. The smelting process also
potentially introduces contaminants into the environment. It is
noteworthy that at the historical mining sites in Arizona, the
smelter was placed near the Latin town. For details, see
Attachment Seven: Environmental Impact of Flotation
There is particular concern because Resolution Copper was
formed by BHP Billiton and Rio Tinto Mining Companies. Both of
these companies vie as the worst polluter of the environment--
world wide. For details, see Attachment Eight: Rio Tinto
Environmental Record For details, see Attachment Nine: BHP
Billiton Environmental Record
Further, Rio Tinto is the parent company of Kennecott, a
company that has created the largest toxic plume in the U. S.
For details, see Attachment Ten: Kennecott Clean-up.
In closing, I would like to share with you an open letter from a
resident of Superior and a former miner at the Magma mine. See
Attachment Eleven: Open Letter
[Additional documents and attachments have been retained in
subcommittee files.]