    [Senate Hearing 112-486]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 112-486

                               RESOLUTION COPPER

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

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENERGY AND NATURAL RESOURCES
                              UNITED STATES SENATE

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                       TO

          CONSIDER H.R. 1904, THE SOUTHEAST ARIZONA LAND EXCHANGE AND
       CONSERVATION ACT OF 2011; AND S. 409, THE SOUTHEAST ARIZONA LAND
      EXCHANGE AND CONSERVATION ACT OF 2009, AS REPORTED BY THE COMMITTEE
                           DURING THE 111TH CONGRESS

                                   __________

                                FEBRUARY 9, 2012

                           Printed for the use of the
                   Committee on Energy and Natural Resources

                                    _____

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    75-271 PDF                WASHINGTON : 2012
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    20402-0001

                   COMMITTEE ON ENERGY AND NATURAL RESOURCES

                      JEFF BINGAMAN, New Mexico, Chairman

    RON WYDEN, Oregon                    LISA MURKOWSKI, Alaska
    TIM JOHNSON, South Dakota            JOHN BARRASSO, Wyoming
    MARY L. LANDRIEU, Louisiana          JAMES E. RISCH, Idaho
    MARIA CANTWELL, Washington           MIKE LEE, Utah
    BERNARD SANDERS, Vermont             RAND PAUL, Kentucky
    DEBBIE STABENOW, Michigan            DANIEL COATS, Indiana
    MARK UDALL, Colorado                 ROB PORTMAN, Ohio
    JEANNE SHAHEEN, New Hampshire        JOHN HOEVEN, North Dakota
    AL FRANKEN, Minnesota                DEAN HELLER, Nevada
    JOE MANCHIN, III, West Virginia      BOB CORKER, Tennessee
    CHRISTOPHER A. COONS, Delaware

                        Robert M. Simon, Staff Director
                          Sam E. Fowler, Chief Counsel
                   McKie Campbell, Republican Staff Director
                   Karen K. Billups, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                                   STATEMENTS

                                                                       Page

    Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
    Cherry, Jon, Vice President, Resolution Copper Company...........    25
    Farquhar, Ned, Deputy Assistant Secretary, Land and Minerals
      Management, Department of the Interior.........................    17
    Kyl, Hon. Jon, U.S. Senator From Arizona.........................     5
    Lewis, Shan, President, Inter Tribal Council of Arizona, Vice
      Chairman, Fort Mojave Tribe....................................    30
    McCain, Hon. John, U.S. Senator From Arizona.....................     3
    Wagner, Mary, Associate Cheif, Forest Service, Department of
      Agriculture....................................................    13

                                   APPENDIXES
                                   Appendix I

    Responses to additional questions................................    49

                                  Appendix II

    Additional material submitted for the record.....................    65

                               RESOLUTION COPPER

                                  ----------

                           THURSDAY, FEBRUARY 9, 2012

                                           U.S. Senate,
                     Committee on Energy and Natural Resources,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:30 a.m., in
    room SD-366, Dirksen Senate Office Building, Hon. Jeff
    Bingaman, chairman, presiding.

    OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
                                 MEXICO

        The Chairman. OK. Why do we not get started? I am told
    Senator Murkowski is delayed a little bit and has asked us to
    go ahead, so we will do that.
        This morning the committee is considering legislation to
    provide for a land exchange between the Forest Service and the
    Bureau of Land Management, and the Resolution Copper Company to
    facilitate Resolution Copper's development of a large copper
    mine in Southeastern Arizona.
        This is an issue that has been before the committee now for
    several years, one that has generated significant controversy.
    During the previous Congress, Senator McCain, who is a member
    of our committee, asked me to work with him and see if we could
    come up with agreement on bill language to move this forward.
    We spent several months in discussions at the staff level on
    that set of issues, including many meetings with Resolution
    Copper and other interested parties. We did reach a compromise,
    which then resulted in the committee reporting a bill
    unanimously.
        Unfortunately, that bill, like almost all other public land
    bills reported in the last Congress, was not considered on the
    Senate floor, and was not enacted.
        Let me turn for a minute to the issues associated with the
    legislation. The mine proponents contend that the mine will
    create significant economic benefits. It will be located near
    an area with a history of mining. That would all appear true.
    This is a complicated project, as I understand, and will have a
    significant impact on the land which is currently part of a
    national forest.
        There is considerable disagreement as to the effect that
    the development will have on cultural resources and to sites
    that nearby Indian tribes consider sacred. There are issues
    that obviously need to be reviewed and answered before the land
    exchange takes place, in my view.
        A principle concern with the House bill--let me just flag
    so that witnesses can comment on it--is that it provides for a
    directed land exchange, does not allow for the analysis of
    potential impacts of the exchange prior to that exchange being
    conducted. It does not give the Federal Government any ability
    to modify the terms and conditions of the exchange to take into
    account information raised or brought to light as part of those
    reviews.
        Let me go ahead and defer to Senator Barrasso if he has
    comments that he wanted to make as an opening statement here.
        Senator Barrasso. Mr. Chairman, in light of the fact that
    Senator Murkowski is here and has an opening statement, I have
    one. I will wait until after our guests make their
    presentation. Thank you, Mr. Chairman.
        The Chairman. Very good. Why do we not go ahead and hear
    from our 2 colleagues from Arizona, Senator McCain and Senator
    Kyl. Why don't you proceed and give us your views on this
    issue? We appreciate your being here.
        Senator McCain.
        [The prepared statements of Senators Barrasso and Risch
    follow:]

      Prepared Statement of Hon. John Barrasso, U.S. Senator From Wyoming

        I would like to thank Senators McCain and Kyl for their
    testimony here today.
        I would like to join them in expressing support for H.R.
    1904.
        Like Senators McCain and Kyl, I believe Congress should not
    cede its constitutional authority to direct land exchanges.
        A State's elected representatives are far better positioned
    to determine what is in the public interest than political
    appointees in Washington.
        Of course, I understand that determining the public
    interest may often be difficult.
        However, in our system of government, we rely upon the
    judgment of our elected representatives.
        We do not expect or want our elected representatives to
    abdicate their responsibilities or punt difficult decisions to
    unelected officials.
        Congress has a long history of directing land exchanges.
        I don't see why Congress should give up that authority
    now--not with a national unemployment rate of 8.3 percent.
        And not when this specific land exchange will help create
    an estimated 3,700 jobs.
        And I certainly don't think that Congress should cede its
    authority to an Administration that puts politics ahead of
    unemployed Americans.
        We have seen this time and time again.
        I'm not only referring to the President's rejection of the
    Keystone XL pipeline.
        But also to the Administration's uranium withdrawal in
    Arizona.
        And the recent proposal to vastly reduce the acreage
    available for oil shale development throughout the West.
        In January, the President's Jobs Council released its year-
    end report for 2011.
        In that report, the Jobs Council stated that: ``providing
    access to more areas for mining is controversial, but, given
    the current economic situation, we believe it's necessary to
    tap America's assets in a safe and responsible manner.''
        Well, I believe H.R. 1904 does just that.
        And if the Administration won't follow the recommendations
    of the President's own Jobs Council, then Congress should.
        We can begin by passing H.R. 1904.
                                    ------

       Prepared Statement of Hon. James E. Risch, U.S. Senator From Idaho

        I think it is unusual that we are holding a hearing on a
    bill that has not been introduced by the proponents of the
    exchange, Senators McCain and Kyl. It is my hope that this
    committee will work with the home state senators on H.R.1904,
    which they support.
        I do not support ceding the power of Congress to determine
    what is in the public interest to the Executive Branch. I
    believe that Senators McCain and Kyl represent their state well
    and have clearly determined that 3700 jobs is in the best
    interest of the people of Arizona in an area where unemployment
    is near 50 percent. I believe that my colleagues from Arizona
    understand the impacts of this exchange better than the rest of
    us in the U.S. Senate and we should give deference to their
    views.

              STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR
                              FROM ARIZONA

        Senator McCain. Thank you, Mr. Chairman. First of all, I
    would like to thank you for all the efforts you have made on
    behalf of trying to see this very important issue come to
    fruition. I want to thank you and your staff for the efforts
    that we have made. If in my statement and Senator Kyl's
    statement, I am sure if we show a little frustration, I think
    maybe it would be understandable because we have been at this
    issue for a long time.
        As you know, the bill would facilitate a complex land
    exchange, as you said, that will ultimately protect 5,000 acres
    of environmentally sensitive lands throughout Arizona, while
    allowing for the Resolution Copper project to develop the third
    largest copper ore body in the world--the third largest in the
    world.
        It would employ 3,700 Americans. It would produce 25
    percent of the United States copper supply. It generates $61
    billion in economic growth, provide $20 billion in Federal,
    State, and local tax revenue.
        We can get copper from this mine, Mr. Chairman, or we can
    import it from someplace overseas. There will be a continued
    demand for copper in our economy.
        My colleague, Senator Kyl, and I first introduced the bill
    in 2005, 7 years ago. Today marks the bill's sixth hearing
    before our congressional committee. At every hearing the
    project's tremendous economic and environmental values are
    reaffirmed, and yet at each hearing we see the same agitators
    trot it out to play the tired role of the industry
    obstructionist.
        This vocal minority is so philosophically opposed to any
    mining in Arizona, they are willing to throw away the future of
    young families along with the best hope for long-term
    prosperity in the town of Superior, Arizona and the San Carlos
    Apache Indian reservations, where, Mr. Chairman, unemployment
    hovers around 50 percent.
        Unfortunately, today's testimony by the Administration
    includes no meaningful recognition of the mine's national
    importance aside from passively mentioning ``potential economic
    and employment benefits.'' Shame on the Administration for that
    kind of a statement when we have unemployment ripe throughout
    my State, and people are hurting, and homes are under water.
    The only mention in their long statement will be ``potential
    economic and employment benefits.'' The disconnect between
    Washington Democrats and facts on the ground could never be
    more apparent than in the Administration's statement today.
        Instead the Administration's testimony feeds
    unsubstantiated claims that the mine imminently threatens the
    area's environmental quality and cultural resources. This
    committee spent years analyzing, discussing, and evaluating
    this land exchange. We have had representatives of the
    Administration, including Interior Secretary Ken Salazar, visit
    the proposed mine site. The Forest Service began conducting
    preliminary evaluation of the mine area as far back as 2004.
        The Resolution Copper Company has invested $750 million to
    collect engineering data to develop its mine plan of operation,
    which is now nearly complete. Yet no ``compromise'' is
    acceptable to the opponents who continue to demand more tribal
    consultation and more environmental study.
        Let me say a word about tribal consultation. You are going
    to have a witness here from the Indian--Inter Tribal Council of
    Arizona. He will not mention that despite Senator Kyl and I
    constant urging that the San Carlos Apache tribe just sit down,
    just listen to the Resolution Copper. They refuse to do it.
    They refuse to sit down and at least listen and let the copper
    company make a presentation. Yet they will urge tribal
    consultation, tribal consultation.
        It is not fair. It is not right to the poorest part of my
    home State of Arizona that we cannot move forward with what
    would not only help that part of our State, but also the United
    States of America.
        So, I want to point out again the San Carlos Apache tribe
    have never met with Resolution Copper to learn about the
    project or discuss their cultural concerns. That is not what
    America is supposed to be all about. I respect tribal
    sovereignty. I do not respect people who refuse to sit down and
    at least listen to something that could help the tribe itself
    enormously, economically.
        So, the tribal leaders--the San Carlos Apache obviously
    care more about some issues than they do about the prospect of
    employment for their tribal members, which, as I mentioned, is
    incredibly high, not to mention the problems of drug abuse,
    alcohol, and all the other things that plague their reservation
    because of their failure to have any kind of viable economy.
        On multiple occasions, I have asked the chairman of the
    tribe to be briefed on the project and engage in constructive
    dialog, and each time my request and Senator Kyl's request has
    been declined.
        So, are we to believe that the mining opponents genuinely
    want tribal consultation? Are we to assume that in light of the
    Keystone Pipeline issue this Administration will not delay or
    ultimately reject the project in the name of more study and
    more tribal input? The Administration's apathetic view of the
    mine is disgraceful and frustrating, and should trouble every
    member of this body who has land exchange legislation pending
    before this committee.
        Mr. Chairman, it is time for Congress to put an end to
    these delays. The people in my State are hurting, and this mine
    is an economic opportunity that should not be squandered.
        Mr. Chairman, I have numerous letters from elected
    officials from the Governor of the State of Arizona to the
    mayor of Superior, Arizona, and other towns in the area. I
    would ask that they be accepted in the record at this time.
        Again, I apologize, Mr. Chairman, for any emotion that I
    have displayed in this, but I would ask the chairman to go to
    Superior, Arizona where half the homes are shut down, where the
    businesses are not functioning, where unemployment is close to
    50 percent. All these people want is a chance to work and an
    opportunity to have a better life.
        This bureaucracy that you will hear from and this Indian
    tribe is preventing them from having that opportunity. I am not
    asking them to agree; I am just asking them to sit down and
    listen to what we and the Resolution Copper Company have to
    say.
        I thank you, Mr. Chairman.
        The Chairman. Thank you very much. We will certainly
    include all the letters that you referred to in the record.
        Senator Kyl.

          STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA

        Senator Kyl. Thank you, Mr. Chairman, and a formal
    statement of both Senator McCain and I as well.
        The Chairman. We are glad to include those statements in
    the record.
        Senator Kyl. Thank you. One of the reasons why this land
    exchange is necessary is there is something called the copper
    triangle. It involves cities in Arizona called Globe, Miami,
    and Superior, and then Winkelman and Hayden. Within that area
    there is an enormous amount of copper, a lot of it which has
    been mined. But now this is, as Senator McCain said, the
    richest ore body--third richest in the world, and it would
    provide 25 percent of our copper.
        The problem here is that--and the copper company has all of
    the land around the area under which they would be mining. By
    the way, the mine would be about 7,000 feet underground. This
    is not surface mining; this is underground mining. But because
    of the danger of operations, the potential for some possible
    subsidants, and the safety issues, as I said, it is important
    for them to also have the little bit of area that would be
    exchanged here. I think it is about 5,000 acres that would be--
    excuse me, about 2,000 acres. Excuse me, I will get the exact
    amount here--2,466 acres, which is kind of right in the middle
    of it.
        The problem here is that the government withdrew a bunch of
    that land many years ago for a campground, and all it is is
    just an undeveloped campground for the Forest Service. That
    would be what would be available for the mining activity.
        In exchange for that, over 5,000 acres of incredibly strong
    environmental land would be transferred to the Federal
    Government. All of the environmental groups, even though they
    may not support the exchange, are very strongly in support of
    the Federal Government acquiring this Riparian area along the
    San Pedro River. There is an area at the Los Cienegas National
    Conservation area. There is an area near East Clear Creek,
    which has been featured in Arizona Highways magazine, and we
    got the approval to pull this out of the magazine. I am going
    to pass this up to you. Just take a look at it. This is the
    kind of land the Federal Government will get in exchange for
    the land that would go to the development of the mine.
        Let me address directly the other items that have been
    raised in objection. Senator McCain talked about the
    consultation. Now, we would like for the tribe to be able to
    sit down and express directly to the folks who would develop
    the mine why they do not want the employment, why they have a
    problem with this after all the other protections that have
    been granted.
        The big area in Arizona that is near here that everybody
    wants to make sure is protected is called Apache Leap. That is
    a big escarpment, very important in Native American culture and
    the history of Arizona. Actually this land exchange adds 110
    acres of private land to Apache Leap and totally protects it.
    So, that issue is--I mean, there is no issue there.
        On the environmental compliance questions have been raised.
    The reality is that resolution is already working through all
    of the existing legal requirements. For example, a pre-
    feasibility activities plan of operations was approved in 2010
    after 2 years of NEPA analysis, and appealed by opponents
    incidentally. The mining plan of operations is expected to be
    completed and submitted to the Forest Service this year. That
    will trigger the full NEPA process.
        So, nothing can be done here without compliance with all
    environmental laws, and the legislation does not change an iota
    of that. There are no waivers, and as of this year, as I said,
    they will have to begin NEPA analysis on the actual mining
    plan, even though the mining itself has not commenced yet. So,
    NEPA is fully satisfied.
        On the tribal consultation, the Federal Government will
    confirm to you that they have been consulting with the tribe
    since 19--excuse me, since 2004. That is the Department of
    Agriculture testimony in the past here. The Tonto National
    Forest has engaged in both informal and formal consultation
    with the various tribes. That has been going on for over 2
    years. It was upheld on appeal as in compliance with all
    applicable law, as well as the Forest Service's internal
    guidance. Nothing in the bill circumvents the consultation that
    would otherwise be required. That is a red herring.
        Fair value. I think we are all beyond the fair value issue.
    The bill follows uniform appraisal standards, professional
    appraisal practices. It says that if there is more value after
    the mine starts than we thought, then the company has to make
    that up. This is a provision that the BLM supports in the bill.
    I do not think there is any issue there.
        The real question was the issue of this public interest
    determination, and here it is real simply. You have
    administrative land exchanges, and you have congressional land
    exchanges. Congress has ceded some of its plenary authority to
    the agencies of the Federal Government to do land exchanges,
    usually smaller ones that really do not need to take up
    Congress' time. When that happens, because it is an agency
    doing it, it has to make a public interest determination. That
    is what it is called.
        Congress by our very action every day decides what we think
    is in the public interest, whether we raise taxes, or lower
    taxes, or do a land exchange, or, you know, authorize the
    President to go to war. Whatever it might be, we make a--our
    own public interest determination. We will do that in this land
    exchange with all of the hearings. With all of the
    consultation, with all of the public input, it is a very
    transparent process the congressional process. There have been
    6 hearings, House and Senate action. Everybody gets in on it.
    Congress eventually makes it decision. That is a public
    interest determination.
        This is not an administrative land exchange. We have not
    delegated this one to the Department of Agriculture to make. If
    we did, the Secretary of Agriculture would make a public
    interest determination. That is not what is going on here.
        So, Mr. Chairman, I know that 2 years ago the committee
    amended the bill that was before it at the time and imposed a
    condition of public interest determination after Congress has
    done all the other things that we do in the legislation,
    imposed a condition that the Secretary of Agriculture, on his
    own, one person, decide whether the development of this mine
    and the land exchange is in the public interest. That is not
    acceptable, and that is not something Congress should do. It is
    not something we need to do.
        For these folks to put over a billion dollars into a mine
    and then go to whoever this appointed Secretary of Agriculture
    is and say, now, do you in your sole judgment believe this is
    in the public interest. I mean, why have legislation? They
    could have gone through the administrative land exchange had
    they wanted to do that.
        There is no reason to cede that to the Secretary. I mean,
    frankly if you are going to put a billion dollars into
    something, you would be crazy to agree to something like that.
    We have always been the ultimate arbiter of what we believe is
    in the public interest, and we should retain our authority to
    do that.
        Senator McCain referred to Keystone. I will tell you, if
    you want evidence of what one person can do in a situation like
    this, there is a good bit of evidence. Why would Congress--and
    that is a case where the Secretary of State actually has
    authority. She does have to approve or disapprove that
    particular project. Here it is already in the Congress' hands.
    We have the authority. Why can we not make this determination?
        All of the work has been done. The law is clear. Every NEPA
    requirement will have to be satisfied. I just respect the folks
    that are trying to develop this mine and the community that
    supports them for their willingness to take a chance on us.
    They have now got $750 million sunk in a shaft that is over
    5,000 feet deep. It is 30 feet wide. They will tell you about
    it. What they found is there is an incredible potential here to
    be developed. We give up nothing by providing the land on the
    surface above a piece of this mining activity in exchange for
    some incredible environmental benefits that all Americans will
    be able to take advantage of.
        I just urge the committee to put all of this into
    perspective, and understand what our rights are, what our
    authority is. Now, we may have some disagreements. Mr.
    Chairman, you and I might disagree of whether it is in the
    public interest to go here, and that would be a legitimate
    disagreement for Members of Congress. But we do have the
    authority to make the decision. I just hope at the end of the
    day we will agree that we should.
        The legislation that came over to the Senate from the House
    is perfectly good legislation. It has all of the protections in
    it, and it has Congress making the decision. We are not
    delegating it to the Secretary, that is true. But I would
    submit that as between the approach that the committee took 2
    years ago and the approach that the House has taken in passing
    this bill, the House passed bill is the right way to go.
    Congress should proceed with this. It is an important project,
    and I implore the committee to move forward with it.
        Thank you, Mr. Chairman, for holding a very quick hearing
    on this. I appreciate that very much.
        The Chairman. Thank you very much. We appreciate your
    testimony.
        [The prepared statements of Senators McCain and Kyl
    follow:]

       Prepared Statement of Hon. John McCain, U.S. Senator From Arizona
        Mr. Chairman and members of the Committee, I appreciate you making
    the ``Southeast Arizona Land Exchange and Conservation Act of 2011''
    the sole focus of today's hearing. I'm pleased the Committee recognizes
    that this bill is a top-priority for the people of Arizona and the
    nation. As you know, the bill would facilitate a complex land exchange
    that will ultimately protect 5,000 acres of environmentally sensitive
    lands throughout Arizona while allowing for the Resolution Copper
    Project to develop the third largest copper ore body in the world.
        The benefits of this project are clear:

       The mine would employ 3,7000 Americans;
       Produce 25% of U.S. copper supply;
       Generate $61 billion in economic growth;
       Provide $20 billion in federal, state and local tax revenue.

        My colleague, Senator Kyl, and I first introduced this bill in
    2005, seven years ago, and today marks the bill's sixth hearing before
    a Congressional Committee. At every hearing, the project's tremendous
    economic and environmental values are reaffirmed, and yet at each
    hearing we see the same agitators trotted out to play the tired role of
    the industry obstructionist. This vocal minority is so philosophically
    opposed to any mining in Arizona that they are willing to throw away
    the future of young families along with the best hope for long-term
    prosperity in the Town of Superior, Arizona, and on the San Carlos
    Apache Indian Reservation.
        Unfortunately, Mr. Chairman, today's testimony by the
    Administration includes no meaningful recognition of the Mine's
    national importance aside from passively mentioning, quote, ``potential
    economic and employment benefits.'' Instead, the Administration's
    testimony feeds unsubstantiated claims that the Mine imminently
    threatens the area's environment quality and cultural resources. This
    Committee has spent years analyzing, discussing, and evaluating this
    land exchange. We've had representatives of the Administration,
    including Interior Secretary Ken Salazar, visit the proposed mine site.
    The Forest Service began conducting preliminary evaluations of mine
    area as far back as 2004. The Resolution Copper Company has invested
    $750 million to collect engineering data to develop its Mine Plan of
    Operation which is now nearly complete. And yet no ``compromise'' is
    acceptable to the opponents who continue to demand more tribal
    consultation and more environmental study.
        Mr. Chairman, for all of today's talk about the importance of
    tribal consultation, I want to point out that the leaders of the San
    Carlos Apache Tribe have never met with Resolution Copper to learn
    about the project or discuss their cultural concerns. Attempts by the
    company to reach out to the tribe have continuously been ignored. On
    multiple occasions, I've personally asked the Chairman of the Tribe to
    be briefed on the project and to engage in constructive dialogue, and
    each time my request has been declined.
        So are we to believe that the mining opponents genuinely want
    tribal consultation? Are we to assume that in light of the Keystone
    Pipeline issue, this Administration won't delay or ultimately reject
    the project in the name of more study and more tribal input? The
    Administration's apathetic view of the Mine is disgraceful and
    frustrating, and should trouble every member of this body who has land
    exchange legislation pending before this Committee.
        Mr. Chairman, it's time for Congress to put an end to these delay
    tactics. The people in my state are hurting for jobs and this Mine is
    an economic opportunity that must not be squandered. I wish to submit
    for the record several resolutions and letters of support for this land
    exchange issued from dozens of local governments and officials,
    including the Governor of Arizona.
        Congress is long overdue in moving forward with this proposal, and
    I urge my colleagues to support this land exchange. I thank the
    Chairman and the Committee for their attention to this issue.
                                     ______

         Prepared Statement of Hon. Jon Kyl, U.S. Senator From Arizona
        Chairman Bingaman, Ranking Member Murkowski, and members of the
    committee, thank you for the opportunity to appear before you today to
    discuss the Southeast Arizona Land Exchange and Conservation Act with
    you.
        As many of you know, I am disappointed that the chairman noticed
    this hearing to consider not just the recently House-passed H.R. 1904,
    but also a bill before this committee two years ago. That old text was
    a committee amendment in the nature of a substitute adopted by this
    committee in March 2010. The Senate did not act on S. 409, as amended,
    and when the 111th Congress ended, the bill died. The committee text
    has not been introduced as a bill in this Congress and, therefore, is
    not even before the Senate.
        That said, however, I plan to cover both the House-passed H.R. 1904
    and the committee-reported text of S. 409 in my testimony.
      h.r. 1904, the southeast arizona land exchange and conservation act
        I support H.R. 1904 as passed by the House of Representatives. The
    bill's sponsor, Representative Paul Gosar, has crafted a bill that
    enjoys strong support in our home state of Arizona. H.R. 1904 directs a
    land exchange in southeastern Arizona between Resolution Copper Mining,
    LLC (Resolution Copper), the secretary of agriculture, and the
    secretary of the interior. Specifically, the bill directs the secretary
    of agriculture to convey a 2,422-acre parcel of land located on the
    Tonto National Forest, in a known mining district called the ``Copper
    Triangle'' to Resolution Copper. The federal parcel, commonly called
    ``Oak Flat'' after the primitive camping site located there, will be
    traded to Resolution Copper to facilitate future exploration and
    development of what has been characterized as the largest copper-ore
    deposit ever discovered in North America, which is located some 7,000
    feet below the surface.
        Oak Flat is intermingled with, or abuts, private lands already
    owned by Resolution Copper Company. Resolution Copper's unpatented
    mining claims blanket the parcel except for the 760-acre area that
    includes the Oak Flat Campground. Oak Flat Campground was withdrawn
    from mining in 1955 by Public Land Order (PLO) 1229 along with 24 other
    campgrounds, lookouts, roadside zones, and administrative sites on
    National Forest lands. Oak Flat and these other sites were withdrawn to
    protect the federal capital investment in those sites--not because of
    any unique resource values. It is common practice to lift a PLO in a
    legislated land exchange.
        Given the ownership patterns, the public safety issues that may be
    associated with the mining activities, and the significant investment
    Resolution Copper must make to develop this mine (more than $6
    billion), it is important for Resolution Copper to own, in fee, the
    entire mining area.
        In return for conveying the federal parcel to Resolution Copper,
    the Forest Service and Bureau of Land Management will receive eight
    parcels of private land totaling 5,344 acres. These parcels have been
    identified by--and are strongly endorsed for acquisition by--numerous
    conservation organizations, as well as these very two agencies
    themselves. They include lands along the San Pedro River--an important,
    internationally recognized migratory bird corridor, riparian, and
    wetland habitat for threatened and endangered animal and plant species,
    including the southwestern willow flycatcher and the hedgehog cactus.
    These lands also include important recreational areas, cultural
    resources, and magnificent canyons and forests that are home to big
    game species. Most of the parcels are inholdings that will allow more
    effective management of the federal land. I would be remiss if I did
    not point out that this bill actually adds 110 acres of private land to
    the federally controlled Apache Leap, a cliff formation above the Town
    of Superior that is considered culturally and historically significant
    to several Indian tribes. There is no doubt that it is in the public
    interest to bring these lands into federal ownership for the enjoyment
    of future generations.
        Although the bill focuses primarily on the land exchange I just
    mentioned, H.R. 1904 also includes provisions that would permit the
    conveyance of federal lands to the Town of Superior. These lands
    include the town cemetery, lands around the town airport, and a federal
    reversionary interest that exists at the airport site. These lands are
    included in the proposed exchange to assist Superior in providing for
    its municipal needs, as well as in expanding and diversifying its
    economic development.
        The mine project this bill seeks to facilitate would open up the
    third-largest undeveloped copper resource in the world, making a major
    contribution to our nation's mineral production. According to a January
    2011 U.S. Geological Survey (USGS) report, the United States currently
    imports more than 30 percent of our national copper demand. Not only is
    it estimated that the mine project could produce enough copper to equal
    as much as 25 percent of current U.S. demand, but our demand is only
    expected to increase in coming years. This is so because of copper's
    status as a critical metal in alternative energy infrastructure and
    vehicles; so the need for this mine project is clear.
        The project would also have a tremendous economic impact in Arizona
    and our nation at large in the form of both jobs and revenue. The mine
    is expected to create 3,700 mining-related jobs alone, not to mention
    the hundreds more it will create in related sectors. I do not need to
    remind this committee of the need for more jobs in our country;
    moreover, many of the mining-related jobs would be created in an area
    of the state with some of Arizona's highest unemployment rates. Over
    the life of the mine, the project is expected to contribute more than
    $61 billion to the economy, including $19 billion in tax revenues to
    federal, State and local government coffers.\1\
    ---------------------------------------------------------------------------
        \1\ Pollack & Associates, Resolution Copper Company Economic and
    Fiscal Impacts Report Superior, Arizona, (September 2011).
    ---------------------------------------------------------------------------
        Despite the fact that this bill is overwhelmingly supported in
    Arizona, there is a vocal minority that is now resorting to scare
    tactics in an effort to kill this bill. They say that allowing this
    project to go forward would circumvent environmental review, destroy
    cultural resources, and give away a valuable mineral resource. I want
    to assure everyone here today that none of this is true.
                            environmental compliance
        Environmental compliance is a critical element of this project. In
    2008, Resolution Copper submitted to the Forest Service a pre-
    feasibility activities plan of operations. Those activities included
    exploration drill sites on the federal parcel that would be conveyed to
    Resolution Copper as part of the exchange. In 2010, after a full NEPA
    review that concluded with a Finding of No Significant Impact, not to
    mention an appeal by many of the vocal minority I mentioned earlier,
    the Forest Service approved the plan. Under House-passed H.R. 1904,
    Resolution Copper would be required to take the next step and submit a
    mining plan of operations to the Forest Service that would be the basis
    for an Environmental Impact Statement (EIS). That EIS would have to be
    completed prior to commencing production in commercial quantities of
    any valuable minerals. Resolution Copper has already started the
    development of the mining plan of operations and expects to submit it
    later this year, beginning this process. Additional environmental
    compliance requirements in federal and state law would also have to be
    addressed in order for the necessary permits to be obtained that would
    allow development of the mine. Resolution Copper is also active in
    sustainable development efforts that include voluntarily reclaiming and
    remediating impacts of historic mining in the area.
                   tribal consultation and cultural resources
        Tribal consultation, protection of cultural resources, and respect
    for Native American customs and traditions in the land exchange area
    are a priority. The bill contains an entire section that would
    permanently protect Apache Leap; it also requires, as a condition
    precedent to the land exchange, that Resolution Copper surrender to the
    United States, without compensation, the rights it holds under law to
    commercially extract minerals under Apache Leap.
        It is important to note that there appear to be some inconsistences
    in the Forest Service's testimony and the realities on the ground in
    terms of tribal consultation. It is my understanding, based on past
    testimony by the Forest Service before this committee, that
    consultation with the tribes began on a formal and informal basis as
    early as 2004.\2\ In addition, the Forest Service consulted with the
    tribes more than two years before approving the pre-feasibility plan of
    operations in the land exchange area in 2010.\3\ On appeal, the
    reviewing officer found that a good faith government-to-government
    consultation with the tribes had occurred and should continue.\4\
    Nothing in this legislation will short-circuit required tribal
    consultation under applicable law.
    ---------------------------------------------------------------------------
        \2\ Honorable Mike Johanns, Secretary of the Department of
    Agriculture, Answers to Senator Bingaman on S. 2466--the Southeast
    Arizona Land Exchange (2006).
        \3\ U.S. Forest Service, Decision Notice and Finding of No
    Significant Impact, Resolution Copper Mining Pre-Feasibility Activities
    Plan of Operations. http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/
    stelprdb5200237.pdf
        \4\ Decision on Appeal #10-03-00-0020-A215, Resolution Copper
    Mining Pre-Feasibility Activities Plan of Operations, Tonto National
    Forest, August 20, 2010. http://www.fs.fed.us/appeals .
    ---------------------------------------------------------------------------
                     fair value exchange for the taxpayers
        Ensuring this is a fair value exchange for the American taxpayer is
    an obvious prerequisite. For this reason, the bill requires that
    appraisals be conducted in accordance with the Uniform Appraisal
    Standards for Federal Land Acquisitions issued by the Department of
    Justice, as well as the Uniform Standards of Professional Appraisal
    Practice issued by the U.S. Appraisal Foundation. To ensure that
    Resolution Copper does not receive any minerals that were not
    anticipated in the appraisal, Section 6(b) of H.R. 1904 requires
    Resolution Copper to pay the United States an annual cash payment
    called a ``value adjustment payment'' on any production from the mine
    that exceeds the production assumed in the appraisal.
                  text of s. 409, as reported by the committee
        Now I will turn to the text of S. 409, the bill the committee
    worked on in the last session. I have two primary concerns: (1) the
    delegation of the public interest determination from Congress to the
    Department of Agriculture and (2) the pre-exchange NEPA requirement.
    Public Interest Determination
        In Section 3 of the committee amendment to S. 409, there is a
    provision that would delegate to the secretary of agriculture the
    determination as to whether this land exchange is in the public
    interest. Only if the secretary determines that the public interest
    will be well served by making the exchange can it go forward.
    Importantly, this provision is not in H.R. 1904--and with good reason.
    It, in effect, cedes Congress' constitutional authority to make
    decisions about whether a land exchange is in the public interest to an
    unelected political appointee--giving this one person final say over
    the exchange.
        A public interest determination is a requirement applicable to
    administrative land exchanges processed by the secretaries of the
    interior and agriculture under the limited authority they were granted
    by Congress in the Federal Land Policy and Management Act (FLPMA). It
    does not, and should not, apply in congressionally legislated land
    exchanges. Supporters of this provision claim that the provision is
    necessary in this land exchange because, in their judgment, Congress
    does not have the information or the expertise to determine whether the
    public interest would be well served by making this exchange.
        This is a shocking assertion. Congress is and always has been the
    ultimate arbiter of what is in the public interest. Congress, as
    representatives of the people, renders its final judgment on what is in
    the public interest through its passage or rejection of legislation.
    This is the very job we were elected to do, after all. Congress is and
    has always legislated land exchanges and, as elected officials, we use
    our best judgment to decide which land exchanges are in the public
    interest. We can delegate our plenary power to an administrative
    official, but need not do so. If the parties believed an administrative
    exchange was suitable, they could have gone that route. It is their
    right to ask Congress to exercise its superior authority to affect the
    exchange.
        In a legislative land exchange, Congress uses the legislative
    process to determine whether the exchange is in the public interest.
    That process, as you know, begins even before a bill is introduced.
    Legislated land exchanges are considered in hearings, markups, and
    other proceedings in both the House and Senate. In most cases,
    testimony from the administration, public, and other stakeholders is
    provided, along with CBO analysis. Town halls and fact-finding field
    visits are often conducted as well. Moreover, the public has
    opportunities to communicate with Congress throughout the entire
    legislative process via meetings, email, telephone calls, and letters.
    I would assert that this process is more transparent and thorough than
    anything the secretary would do on his own, without the public scrutiny
    inherent in Congressional action.
        According to the Government Accountability Office, the agencies'
    land exchange programs are plagued with problems. In 2000, GAO
    characterized the administrative land exchange process as a game of
    insider trading, and called on Congress to consider halting all
    administrative land exchange programs\5\. In a subsequent review in
    2009, GAO noted some improvements in the agencies' administrative land
    exchange programs, but still found that significant problems existed.
    One of those problem areas remained in the public interest
    determination. In GAO's sample of 31 land exchanges, it found that a
    third of the exchanges had a documented problem in the agency's public
    interest determination.\6\
    ---------------------------------------------------------------------------
        \5\ G.A.O., BLM and the Forest Service: Land Exchange Need to
    Reflect Appropriate Value and Serve the Public Interest, http://
    www.gao.gov/archive/2000/rc00073.pdf (June 2000).
        \6\ G.A.O., BLM and the Forest Service Have Improved Oversight of
    the Land Exchange Process, but Additional Actions are Needed, http://
    www.gao.gov/assets/300/290765.pdf (June 2009).
    ---------------------------------------------------------------------------
        Over the last seven years, Congress has reviewed every aspect of
    this land exchange proposal. Legislation has been introduced and
    considered in both the Senate and House. There have been multiple
    public hearings (six including this one, four in which the chairman has
    participated) and numerous town halls, including one in the last
    Congress with Secretary Salazar that also included field visits to the
    mine and land exchange area. We have also heard input from all
    concerned stakeholders: state and local officials, tribes, federal
    agencies, conservation groups, and the public at large, both those for
    this exchange and those against it. In my judgment, this land exchange
    is quite clearly in the public interest.
        The fact is, the U.S. Constitution gives Congress plenary authority
    ``to dispose of and make all needful rules and regulations'' concerning
    federal lands.\7\ Pursuant to this authority Congress has routinely
    legislated land exchanges including some that do not necessarily adhere
    to all of the specific requirements that bind the land management
    agencies. House-passed H.R. 1904 is the norm in legislative land
    exchanges, as it is grounded in Congress' plenary authority.
    ---------------------------------------------------------------------------
        \7\ Article 4, Section 3, Clause 2 of the U.S. Constitution gives
    Congress ``plenary'' authority to make decisions on the public lands.
    Under that authority, Congress has routinely passed laws directing non-
    discretionary public land actions including land exchanges.
    ---------------------------------------------------------------------------
    Pre-exchange NEPA
        Both House-passed H.R. 1904 and the old committee text include
    provisions that impose National Environmental Policy Act (NEPA)
    compliance requirements. While the old committee text applies the NEPA
    to the land exchange itself, H.R. 1904 instead requires the company to
    submit to the secretary of agriculture a proposed mine plan of
    operations, and requires it to conduct an environmental analysis for
    any federal actions or authorizations related to the proposed mine and
    mine plan of operations.
        This difference is rooted in the amount of discretion afforded to
    the agency regarding the land exchange. Since the old text would
    essentially legislate an administrative exchange, the land exchange
    decision is completely discretionary. Discretionary decisions of a
    federal agency are subject to a full review under the NEPA. In the case
    of House-passed H.R. 1904 and most other legislated land exchanges,
    Congress directs the land exchange, thereby limiting the agency's
    discretion and the NEPA review on the exchange itself. This makes
    sense. Why would Congress have the agency go through the NEPA process
    of developing a range of alternatives to the land exchange when it has
    already made the decision to consummate the exchange? Besides, the
    exchanging of lands does not have a significant environmental impact.
    This provision's only real purpose is to significantly delay the
    exchange. After all, the NEPA itself imposes no substantive
    environmental obligations--it is simply a procedural statute.\8\
    ---------------------------------------------------------------------------
        \8\ Robertson, Chief of the Forest Service, et al. v. Methow Valley
    Citizens Council et al., 490 U.S. 332, at 349.
    ---------------------------------------------------------------------------
        The NEPA compliance requirements in H.R. 1904 focus on the federal
    actions and authorizations related to the proposed mine and mine plan
    of operations that would be made after the land exchange. The Forest
    Service, in its testimony on H.R. 1904, has acknowledged that these
    provisions are consistent with existing NEPA requirements.\9\
    ---------------------------------------------------------------------------
        \9\ Statement of Mary Wagner, Associate Chief, U.S. Forest Service,
    U.S. Department of Agriculture, Before the Subcommittee on National
    Parks, Forests and Public Lands, Natural Resources Committee, U.S.
    House of Representatives (June 14, 2011).
    ---------------------------------------------------------------------------
        It is important to note that there are numerous other substantive
    federal, state, and local environmental laws that the mine project
    would have to comply with before it could be permitted to operate. H.R.
    1904 does not waive the application of any of these environmental laws.
                                   conclusion
        In conclusion, Mr. chairman, I think the rationale for this land
    exchange is clear.
        By transferring the land it currently holds to the federal
    government, Resolution Copper will help to conserve some of Arizona's
    most vulnerable natural wonders and enable future generations of
    Americans to experience their immense beauty for years to come. In
    effect, the transfer of the land Resolution currently holds constitutes
    an investment in the environment and in our future.
        Likewise, by transferring the land it holds to Resolution, the
    federal government is making an investment in our country's most
    immediate economic development. The significant jobs and revenue impact
    of this mine project will help Americans who are desperately seeking
    employment today. Moreover, it will help cash-strapped state and local
    governments provide those public services that have never been more in
    demand. I think it also goes without saying, Mr. chairman, that the
    federal government could use a few extra dollars these days too.
        So, now we face a choice. This land exchange has been vetted and
    debated, it has been reviewed and revised. Every feasible stakeholder
    has had his say. I think it's time to wrap up the debate and simply
    state the obvious: this proposed exchange is quite firmly in the public
    interest. Indeed, if this one is not, then what exchange could ever
    hope to be? I doubt there is a more thorough process we could design if
    we tried, Mr. chairman.
        Punting this exchange proposal to an unelected official for yet
    another review process and unilateral decision is not the answer. We
    were elected by our constituents to determine, on their behalf, what
    constitutes the public interest. We do it every day--on a myriad of
    issues, many more difficult and even more important than this land
    exchange. If we cannot even perform that most basic a function, then
    what exactly are we all doing here in Washington anyway?
        Let's do our duty. I urge your support for House-passed H.R. 1904.

        The Chairman. We have 2 panels today. We have
    Administration witnesses, both representative of the Forest
    Service, Department of Agriculture, who is the manager of this
    property that is the subject of the exchange, and also a
    representative of the Department of the Interior that would be
    the manager of much of the land that is the subject of the
    exchange. So, that is our first panel.
        Our second panel is a representative from Resolution
    Copper, Vice President Jon Cherry, and also Mr. Shan Lewis, who
    is the president of the Inter Tribal Council of Arizona.
        Why do we not go ahead, Ms. Wagner? Why do you not begin
    and give us the Forest Service view on the proposed legislation
    and the issues that are involved?

      STATEMENT OF MARY WAGNER, ASSOCIATE CHIEF, FOREST SERVICE,
                       DEPARTMENT OF AGRICULTURE

        Ms. Wagner. Thank you, Mr. Chairman, and members of the
    committee. I appreciate the opportunity to be with you today to
    provide the Department of Agriculture's views on H.R. 1904, the
    Southeast Arizona Land Exchange and Conservation Act of 2011,
    as passed by the House, and S. 409, the Southeast Arizona Land
    Exchange Conservation Act of 2009, as reported by the committee
    during the 111th Congress.
        I am Mary Wagner, Associate Chief of the Forest Service.
        I know you have had an opportunity to review the detailed
    written testimony. I am going to focus on just a few key points
    in my oral remarks.
        First, I will offer remarks on the overall purposes of the
    bill. The Department supports environmentally sound mineral
    development. We recognize the benefit copper mine development
    has to economy and employment conditions in the State of
    Arizona. We acknowledge the environmental benefits and
    qualities of the non-Federal parcels considered in this
    exchange. We appreciate the efforts of the committee to resolve
    land use issues for the town of Superior, and we support the
    recognition and protection of the important values of Apache
    Leap.
        The primary difference between H.R. 1904 and S. 409 is that
    the House bill makes a public interest determination and
    requires NEPA, after the land exchange, for authorizations to
    use, adjoining national forest system land for ancillary
    activities related to the mining development, such as rights of
    way for electric lines, pipelines, transportation, roads, in
    support of the mine plan of operations.
        S. 409 would address the principle concerns of the
    Department because it would require the Secretary to make a
    public interest determination on the merit of moving forward
    with the exchange based on an environmental analysis to be
    conducted before the land exchange would proceed. It also
    mandates consultation with affected Indian tribes as part of
    that process.
        The Department cannot support H.R. 1904 as written, but
    will continue to work with the sponsor on the committee to
    resolve concerns.
        The purpose of preparing an environmental analysis before
    consummating the land exchange would be to analyze the effects
    of the transfer of Federal land to Resolution Copper, any
    activities that are reasonably foreseeable to occur on the
    transferred land, including mineral development, and the
    acquisition of the non-Federal land resulting from the
    exchange.
        The agency would use the environmental analysis to make a
    decision on whether and how to proceed with the land exchange
    and what mitigation conditions would be required to mitigate
    identified impacts.
        NEPA conducted in advance of the exchange would create an
    opportunity for a meaningful tribal consultation where tribal
    concerns and interests would be identified and addressed and
    possibly mitigated. The Department believes that adhering to
    the Federal Land Policy Management Act and other laws that
    guide land exchanges ensures a sound process for determining
    the public interest and to disclosing environmental impacts.
        Of course Congress has the authority to waive any or all
    part of NEPA or to mandate the implementation of an act in a
    manner that waves application of NEPA. Unless such a mandate is
    passed in legislation, the Administration takes a position of
    complying with existing laws as written.
        We have a number of concerns about both versions of the
    bill that we would like to clarify and reconcile, things such
    as the parcels to be included in the acquisition, the appraisal
    provisions, value adjustment provisions, the purpose of funds
    for value adjustment payments, and the timeframes to complete
    the land exchange. We would like to work with the committee to
    resolve these concerns.
        This concludes my oral testimony, and I am happy to answer
    any of your questions. Thank you.
        [The prepared statement of Ms. Wagner follows:]

      Prepared Statement of Mary Wagner, Associate Chief, Forest Service,
                           Department of Agriculture
        Mr. Chairman and members of the Committee, thank you for the
    opportunity to appear before you today to provide the Department of
    Agriculture's views on H.R. 1904, the ``Southeast Arizona Land Exchange
    and Conservation Act of 2011'' as passed by the House and S. 409, the
    ``Southeast Arizona Land Exchange and Conservation Act of 2009,'' as
    reported by the Committee during the 111th Congress. I am Mary Wagner,
    Associate Chief of the U.S. Forest Service. Both H.R. 1904 and S.409,
    as reported, would direct the Secretary of Agriculture to convey
    federal land for use as an underground copper mine in exchange for
    environmentally sensitive non-federal land in Arizona. We defer to the
    Department of the Interior on provisions relating to lands to be
    managed by the Bureau of Land Management (BLM).
     h.r. 1904: the ``southeast arizona land exchange and conservation act
                                   of 2011''
        H.R. 1904 would direct the Secretary of Agriculture to convey to
    Resolution Copper Mining, LLC (Resolution Copper), a 2,422 acre parcel
    of land on the Tonto National Forest. The federal land to be conveyed,
    known as Oak Flat, contains a potentially sizeable copper ore body and
    adjoins an existing copper mine on private land owned by Resolution
    Copper. In exchange, Resolution Copper would convey five parcels of
    land to the Forest Service and three parcels of land to BLM. The total
    non-federal acreage that would be conveyed by Resolution Copper is
    5,344 acres, all of which are in Arizona.
        The Bill calls for an equal value exchange in section 4(e). If the
    value of the federal land (including the ore body) to be conveyed
    exceeds the value of the parcels to be acquired, the Bill would allow
    for a cash equalization payment by Resolution Copper in excess of
    twenty-five percent. Under current law, cash equalization payments may
    not exceed twenty-five percent (section 206(b) of Federal Land Policy
    and Management Act of 1976 (43 U.S.C. 1716(b)). A cash equalization
    payment resulting from the exchange would be deposited in the Sisk Act
    account to be used, upon appropriation by Congress, for acquisition of
    land for addition to the National Forest System within the State of
    Arizona.
        Section 6(b) of the Bill would require Resolution Copper to make
    value adjustment payments if, as the mine is developed, production of
    the mine exceeds expectations documented in the appraisal. Those funds
    would be deposited in a special account in the Treasury to be used,
    upon appropriation by Congress, for maintenance, repair, and
    rehabilitation projects on BLM and National Forest System lands. The
    Department's position is that any value adjustment payments should be
    used for land acquisition.
        The Bill also would provide for the sale of: a 30 acre parcel of
    land currently being used as a cemetery; a reversionary interest and
    reserved mineral rights in a 265 acre parcel; and 250 acres near the
    Superior Airport at market value to the Town of Superior. Sale proceeds
    would be deposited in the Sisk Act account to be used, upon
    appropriation by Congress, for acquisition of land to the National
    Forest System in Arizona.
        H.R. 1904 would require Resolution Copper to pay all costs
    associated with the exchange, including any environmental review
    document. The Bill provides that it is the intent of Congress that the
    exchange be completed not later than one year after the date of
    enactment. At the request of Resolution Copper, the Bill would require
    the Secretary, within 30 days of such request, to issue a special use
    permit to Resolution Cooper to carry out mineral exploration activities
    under the Oak Flat Withdrawal Area, from existing drill pads located
    outside the area, if such activities would not disturb the surface of
    the Area.
        At the request of Resolution Copper, within 90 days, the Bill would
    require the Secretary to issue a special use permit to Resolution
    Copper to carry out mineral exploration activities under the Oak Flat
    Withdrawal Area (but not within the Oak Flat Campground), if the
    activities are conducted from a single exploratory drill pad which is
    located to reasonably minimize visual and noise impacts to the
    Campground.
        H.R. 1904 would require the Secretary of Agriculture to complete an
    environmental review document after the exchange, and after the above-
    noted activities were permitted to take place, but before Resolution
    Copper's commencement of commercial mineral production on the land it
    would acquire in the exchange. Specifically, once the land exchange is
    consummated, and these lands are in the private ownership of Resolution
    Copper, Resolution Copper is authorized to submit a mine plan of
    operation to the Secretary. Thereafter, the Secretary must complete an
    environmental review document within three years that is limited to
    section 102(2) of the National Environmental Policy Act of 1969 (NEPA).
    The environmental document would be used as the basis for any federal
    action or authorization related to the proposed mine and mine plan of
    operations of Resolution Copper, including the construction of
    associated power, water, transportation, processing, tailings, waste
    dump, and other ancillary facilities. After the exchange, Resolution
    Copper may need to use the adjoining National Forest System land for
    ancillary activities related to the mining development, such as rights-
    of-way for electric lines, pipelines, or roads. As we understand the
    Bill, it would require the Forest Service to prepare an environmental
    analysis before issuing authorizations for such activities, which would
    be consistent with existing requirements under NEPA.
        The Bill would add five parcels of land totaling almost 1,200 acres
    to the National Forest System. Most of these parcels include riparian
    areas which are somewhat rare in Arizona. One of the parcels that would
    be acquired adjoins the Apache Leap area on the Tonto National Forest.
    Additionally, as a condition of the land exchange, Resolution Copper
    would surrender its rights to commercially extract minerals under
    Apache Leap.
        While the Department understands and appreciates the potential
    economic benefits and the value of the lands to be acquired by the
    American public, the Department cannot support the Bill as written but
    is looking forward to working with the Sponsor and the Committee. The
    principal concern is that the Bill would require the agency to prepare
    an environmental review document under NEPA after the land exchange is
    completed. Also of concern is the fact the Bill would immediately
    authorize mining exploration activities under an area that is
    considered sacred by the San Carlos Apache Tribe without a review or
    study or consultation with Tribes.
        NEPA is a forward looking statute setting out procedural
    obligations to be carried out before a federal action is taken. It
    requires that, before taking a discretionary decision, the federal
    agency consider the environmental impacts of a proposed major federal
    action and alternatives of such action. It is this Administration's
    policy that NEPA be fully complied with to address all federal actions
    and decisions, including those necessary to implement congressional
    direction.
        The purpose of the requirement in the bill that the agency prepare
    a limited NEPA review after the exchange, when the land is in private
    ownership, is unclear because the bill provides the agency limited
    discretion to exercise. An environmental review document after the
    exchange would preclude the U.S. Forest Service from developing a
    reasonable range of alternatives to the proposal and providing the
    public with opportunities to comment on the proposal. In addition, the
    U.S. Forest Service does not have an understanding of the impacts the
    proposed mine will have on local or regional water supplies, water
    quality, or possible dewatering of the area. No studies or assessments
    of the water supplies have been conducted. That is information which
    could and should be obtained by the Forest Service with NEPA analysis
    before the exchange. A NEPA analysis after the exchange would not allow
    the Forest Service to recommend alternatives since the exchanged parcel
    would already be in private ownership.
        The Bill should be amended to require the preparation of an
    environmental analysis before the land exchange is completed. The
    purpose of preparing an environmental analysis before consummating the
    land exchange would be to analyze the effects of the transfer of the
    federal land to Resolution Copper, any activities that are reasonably
    foreseeable to occur on the transferred land (including mineral
    development), and the acquisition of the non-federal land resulting
    from the exchange. The agency would use the environmental analysis to
    make a decision on whether and how to proceed with the exchange and
    what mitigation conditions would be required to mitigate the identified
    impacts.
        The legislation states that it is Congressional intent that the
    exchange be completed within one year. Based on our experience with
    complex land exchanges, this is an insufficient amount of time to
    complete the exchange. Given the requirement of mineral reports,
    appraisals, title documents, environmental analysis and government to
    government consultation with local Tribes, a two to three-year
    timeframe is much more realistic.
        The agency also understands that a number of federally recognized
    Indian tribes and regional and national tribal organizations are
    concerned that the H.R. 1904 circumvents various laws, policies, and
    Executive order that directs the Federal land managing agencies to
    engage in formal consultation with the interested Indian tribes. Indian
    tribes have also raised important concerns that the Bill is contrary to
    various policies and Executive Orders that Federal land managing
    agencies protect and preserve sites that are sacred to Native
    Americans. The Forest Service understands that the land is considered
    sacred by the tribe and holds significant traditional and historic
    value. Because of these expressed concerns and because this specific
    site has been the focus of historic Government protection it is
    important that this Bill provide for the process of formal tribal
    consultation to ensure both tribal participation and protection of this
    site.
        The Bill would require the Secretary to prepare a management plan
    for Apache Leap. Further, the federal lands to be exchanged (Oak Flat)
    hold significant cultural values to Indian Tribes. Although the Bill
    would require government-to-government consultation, any consultation
    would not be considered meaningful under Executive Order 13175,
    ``Consultation and Coordination with Indian Tribal Governments'',
    because the Secretary's discretion regarding the land exchange is
    limited. The focus of the consultations would likely be the management
    of those areas over which the agency would have discretion, namely, the
    federal land adjacent to the mine and Apache Leap.
        For example, the Secretary would not have discretion over the
    conveyance or on-site management of the Oak Flat site, which under the
    legislation would be conveyed to Resolution Copper. The San Carlos
    Apache Tribe considers the Oak Flat area to be a sacred site. They have
    expressed concerns that block cave mining would cause subsidence that
    would impact the fundamental religious nature of the site. They have
    also expressed concerns regarding potential impacts on water quality.
    They have detailed in correspondence to Secretary Vilsack, the
    importance of traditional acorn gathering and religious ceremonies
    which still occur on this site. The Department has a responsibility to
    consider the Tribes' concerns and these can only be adequately
    addressed if a pre-exchange environmental analysis is the first step.
      s.409, the southeast arizona land exchange and conservation act of
          2009, as reported by the committee during the 111th congress
        With the exception of the ``Pond Parcel,'' S.409, as reported,
    describes the same lands to be considered for exchange and many of the
    same provisions as H.R.1904. However, in contrast to H.R. 1904, S.409
    would address the principal concerns the Department has with H.R.1904.
    S. 409 would require the agency to make a public interest determination
    on the merit of moving forward with the exchange based on an
    environmental analysis to be conducted before the land exchange would
    proceed. It also mandates consultation with affected Indian tribes as
    part of that process. S.409 requires government-to-government
    consultation prior to making a determination as to whether the exchange
    is in the public interest. The Administration believes that the timing
    of government-to-government consultation prior to the Secretary of
    Agriculture's public interest determination would allow for meaningful
    consultation and coordination with interested tribes.
        We have a number of significant concerns with both versions such as
    parcels to be included for acquisition, valuation of the parcel to be
    conveyed, etc. We would like to work with the Committee to resolve
    these concerns.
        There is no doubt that the lands that would be acquired and managed
    by the U.S. Forest Service under either bill have important resource
    values that should be protected. There are also potential economic and
    employment benefits from the proposed mining operation. However, it is
    important to understand and address environmental concerns and impacts
    on sites considered sacred and important by the Tribes. In addition to
    the concerns expressed in testimony, the Department would like to work
    with the Committee on a number of technical concerns with H.R.1904, as
    passed by the House, or a Senate version of the Bill.
        This concludes my statement and I would be happy to answer any
    questions you may have.

        The Chairman. Thank you very much. Mr. Farquhar, we are
    glad to have you here. Go right ahead.

    STATEMENT OF NED FARQUHAR, DEPUTY ASSISTANT SECRETARY, LAND AND
            MINERALS MANAGEMENT, DEPARTMENT OF THE INTERIOR

        Mr. Farquhar. It is an honor to be here, Mr. Chairman.
    Thank you very much. I will present testimony--oral testimony--
    and ask that the written testimony be submitted for the record.
        At the committee's request, we will address both H.R. 1904
    as passed by the House on October 26 of last year, and S. 409
    as reported out by the committee on March 2, 2010. Both bills
    provide for the exchange of U.S. Forest Service managed land to
    a private company in exchange for a number of other parcels
    within the State of Arizona.
        In general, the Department of the Interior defers to the
    Forest Service on issues directly related to Forest Service
    managed lands and associated valuation issues.
        Both bills provide for the conveyance of 3 parcels to the
    Secretary of the Interior to be managed by the BLM, Bureau of
    Land Management. The acquisition of these lands advances
    important conservation goals associated with this unique and
    special natural resource. The parcels identified include 3,050
    acres along the lower San Pedro River near Mammoth, Arizona,
    160 acres within Dripping Springs near Kearney, Arizona, and
    the 940-acre Appleton Ranch parcel adjacent to the Las Cienegas
    national conservation area near Sonoita, Arizona.
        The Administration has several concerns with the Arizona
    Land Exchange and Conservation Act and cannot support the bill
    as written.
        The Administration's first concern with H.R. 1904 is the
    requirement for the Forest Service to prepare an environmental
    review document under NEPA after the land exchange is completed
    rather than in advance of the exchange as provided in S. 409,
    which you worked so hard on 2 years ago.
        In addition, concerns have been raised by Indian tribes
    that H.R. 1904 is contrary to the laws and policies and
    executive orders that direct Federal land management agencies
    to engage in formal consultation with interested Indian tribes,
    and to protect and preserve sites sacred to Native Americans.
        Many of the lands to be exchanged in both bills hold
    significant cultural values to Indian tribes. In particular,
    the Apache Leap area, the Oak Flat campground, and Devil's
    Canyon are culturally significant to the San Carlos Apache
    tribe and the Fort McDowell Yavapai Nation. There are also
    other neighboring tribes with cultural interest in the area.
        The Administration is concerned that any consultations
    under H.R. 1904 cannot be meaningful under Executive Order
    13175 and consultation and coordination with Indian tribal
    governments because the Secretary of Agriculture's discretion
    regarding the land exchange is limited. The tribal consultation
    provision in section 3(d) of S. 409 as you worked it up in the
    committee is significantly better than section 4(c) of H.R.
    1904.
        Thank you for the opportunity to testify today. The
    exchange proposed in both these bills is complex, and the
    Departments of Agriculture and the Interior seek to assure that
    the Federal Government's interest is appropriately protected in
    any final legislation.
        [The prepared statement of Mr. Farquhar follows:]

     Prepared Statement of Ned Farquhar, Deputy Assistant Secretary, Land
              and Minerals Management, Department of the Interior
        1Thank you for the opportunity to present testimony on the
    Southeast Arizona Land Exchange and Conservation Act. At the
    Committee's request, we will address both H.R. 1904, as passed by the
    U.S. House of Representatives on October 26, 2011, and S. 409, as
    reported by the Senate Energy and Natural Resources Committee on March
    2, 2010. Both bills provide for the exchange of a 2,422-acre parcel of
    U.S. Forest Service-managed land to a private company in exchange for a
    number of parcels within the State of Arizona for management by the
    U.S. Forest Service (FS) and the Bureau of Land Management (BLM). Three
    of the private parcels are identified for transfer to the Secretary of
    the Interior.
        In general, the Department of the Interior (DOI) defers to the FS
    on the issues directly related to FS-managed lands and associated
    valuation issues. We believe that the intent of the legislation is to
    facilitate an exchange of land with Resolution Copper Mining, LLC.
    Resolution Copper has indicated its intention to develop a copper mine
    near Superior, Arizona, and wishes to acquire the 2,422-acre FS parcel
    overlying the copper deposit as well as the Federal subsurface rights.
             conveyance of parcels to the bureau of land management
        Both bills provide for the conveyance of three parcels to the
    Secretary of the Interior to be managed by the BLM. The parcels
    identified are located in Gila, Pinal, and Santa Cruz Counties and
    include:

       3,050 acres along the lower San Pedro River near Mammoth,
            Arizona;
       160 acres within the Dripping Springs area near Kearny,
            Arizona; and
       the 940-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 key migratory bird habitat along the San Pedro River. The bills
    provide for the lower San Pedro parcel to be managed as part of the
    BLM's 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 NCA, but it is at least 60 miles
    downstream (north) of the existing NCA and has substantially different
    resource issues and needs. If this parcel is conveyed to the Secretary
    of the Interior and incorporated into the NCA, the Department
    recommends that the existing 80 acres of adjacent BLM-managed public
    land likewise be included within the NCA to facilitate the efficient
    and effective management of this important riparian corridor.
        The legislation also proposes to transfer 160 acres in the Dripping
    Springs area near Kearny, Arizona, to the Secretary of the Interior.
    This private parcel is an inholding within a larger block of public
    lands and has important resource values, including sensitive Desert
    Tortoise habitat.
        Finally, the bills provide for the transfer of the 940-acre
    Appleton Ranch parcel to the Secretary of the Interior. This parcel is
    located on the southern end of the BLM's 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 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 Las
    Cienegas NCA was designated. These lands are part of a significant
    wildlife corridor. The acquisition of these lands advances important
    conservation goals associated with this unique and special natural
    resource.
                                general concerns
        The Administration has several concerns with the Southeast Arizona
    Land Exchange and Conservation Act and cannot support the bills as
    written. The Administration's principal concern with H.R. 1904 is the
    requirement for the Forest Service to prepare an environmental review
    document under the National Environmental Policy Act (NEPA) after the
    land exchange is completed rather than in advance of the exchange as
    provided in S. 409 as reported. It is this Administration's policy that
    NEPA be fully complied with to address all federal actions and
    decisions, including those necessary to implement congressional
    direction. In addition, concerns have been raised by Indian tribes that
    the legislation is contrary to laws and policies and Executive Orders
    that direct Federal land management agencies to engage in formal
    consultation with interested Indian tribes, and to protect and preserve
    sites sacred to Native Americans.
        Many of the lands to be exchanged in both bills hold significant
    cultural value to Indian tribes. In particular, the Apache Leap area,
    the Oak Flat Campground, and Devil's Canyon are culturally significant
    to the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation.
    There are also other neighboring tribes with cultural interests in the
    area. The Administration is concerned that any consultations under H.R.
    1904 would not be meaningful under Executive Order 13175,
    ``Consultation and Coordination with Indian Tribal Governments,''
    because the Secretary of Agriculture's discretion regarding the land
    exchange is limited. The tribal consultation provision in section 3(d)
    of S. 409 is significantly better than section 4(c) of H.R. 1904. The
    Senate bill requires government-to-government consultation prior to
    making a determination as to whether the exchange is in the public
    interest. The Administration believes that the timing of government-to-
    government consultation prior to the Secretary of Agriculture's public
    interest determination would allow for meaningful consultation and
    coordination with interested tribes. This Administration is committed
    to work with Tribes to ensure that views and values are seriously heard
    and considered.
        Section 4(i) of H.R. 1904 expresses the intent of Congress that the
    exchange be completed within one year. This provision most notably
    differs from section 3(i) of S. 409, which provides for a three-year
    period to complete the environmental reviews and public interest
    determination on the land exchange. Based on our experience with
    exchanges, we believe the amount of time provided in H.R. 1904 is
    insufficient to review and finalize the necessary environmental
    documents, mineral report, and appraisals, as well as to conduct the
    final verification and prepare title documents. We are also concerned
    that one year may not be sufficient to complete analysis of any
    historic and sacred sites in the exchange area as required by the
    Native American Graves Protection Act and the National Historic
    Preservation Act. The three-year completion period included in S. 409
    provides a more reasonable timeframe for completing the necessary
    analyses and documentation.
        Preparation of a mineral report is a crucial first step toward an
    appraisal of the Federal parcel because the report provides important
    information about the Federal mineral deposit. Neither H.R. 1904 nor S.
    409 addresses access to confidential exploration and development data
    and company analyses on the mineral deposits underlying the Federal
    land in order to ensure a timely and accurate appraisal. Such
    information is essential for the mineral report, particularly in the
    context of this exchange, because of the size of the proposed mining
    operation and the proposed mining technique.
        Section 6 of both H.R. 1904 and S. 409 provides for an annual value
    adjustment payment to the United States if the cumulative production of
    locatable minerals exceeds the projected production used in the
    appraisal required by section 4 and section 3, respectively. These
    provisions recognize that an accurate projection of future production
    as part of the appraisal process will be difficult to develop, and
    provide a mechanism for additional payments to the United States if the
    actual production exceeds the projected production. The Department
    generally defers to the FS on the specific provisions of section 6 of
    both bills. However, we note that section 6(d)(1) of H.R. 1904 creates
    a new fund in the U.S. Treasury for the deposit of these value
    adjustment payments. In contrast, section 6(d) of S. 409 requires that
    these payments be deposited into the account established under the Sisk
    Act (Public Law 90-171). The Department supports the Senate bill's
    approach for the use of these funds. We believe that these funds should
    be dedicated to Federal land acquisition in the same manner as the
    initial land equalization payments provided for in section 4(e)(2)(C)
    of H.R. 1904. Because these funds are to compensate for a possible
    initial inadvertent under-appraisal of land values, it is appropriate
    that the value when captured be used in the same manner as if it had
    been included in the initial appraisal.
        Finally, there are a number of issues of a more technical nature,
    including appropriate map references, which we would welcome the
    opportunity to discuss as this legislation moves forward.
                                   conclusion
        Thank you for the opportunity to testify. The exchange proposed in
    H.R. 1904 and S. 409 is complex. The Departments of Agriculture and of
    the Interior seek to assure that the Federal Government's interest is
    appropriately protected in any final legislation.

        The Chairman. Thank you very much. Thank you both. Let me
    ask a few questions, and then defer to others, Senator
    Murkowski and others on the committee.
        Ms. Wagner, in the bill that the House has passed, H.R.
    1904, there is a section 4(h) that says that Resolution Copper
    can mine and conduct related activities on the Federal land
    prior to its conveyance, ``in accordance with applicable
    Federal, State, and local laws pertaining to mining and related
    activities on land and private ownership.'' What is your
    understanding of that provision?
        Ms. Wagner. Our review of that suggests that we could work
    together to provide some additional clarity. It suggests that
    once the land becomes private, the mineral development, the
    mineral activity would be guided by the laws for private lands
    as opposed to the laws that are guided for Federal land
    activity. It is just a little confusing in the text. At what
    point would mineral development be available to Resolution
    Copper?
        We would interpret the bill to mean that the mine
    development would be available to Resolution Copper after the
    conveyance was complete, meaning after the Federal became
    private land.
        The Chairman. So, where it talks about the Federal land,
    prior to the conveyance of the Federal land, it can be mined.
    Is that your understanding of it, or am I misreading it?
        Ms. Wagner. I think it is a provision that could do with
    some more clarity. Our assumption would be that the mining
    activity contemplated by Resolution Copper would only happen on
    that piece of land after the conveyance was complete. So, it is
    uncertain what the provision actually is directed to.
        The Chairman. OK. Let me also ask you, Ms. Wagner, the
    bill, H.R. 1904, requires Resolution Copper to submit a mine
    plan of operation to the Secretary prior to commencing
    production in commercial quantities from the land that it
    acquires from the United States. What authority would the
    Secretary have to react to that plan of operation, to either
    approve it, or ask for modifications, or reject it? If the land
    has already been exchanged and is now privately owned by the
    company, what authority would the Secretary have?
        Ms. Wagner. The Secretary would have the authority to
    address the mine plan of operations activities on the national
    forest system lands. So, we would be anticipating that there
    would be ancillary activities on adjacent national forest
    system lands, might require power lines, transportation routes,
    roads, waste dumps, talenes, et cetera. So, the mine plan of
    operation would detail what would be the impacts on other
    national forest system lands that we would need to address, and
    the bill imagines doing NEPA to address those concerns.
        The Chairman. So, your thought is that the Secretary would
    not have the ability to require any modification of the mine
    plan on the land that has been exchanged, but would be able to
    require modification of the mine plan to the extent that it
    required some of these activities on forest service land that
    still had not been exchanged. Is that accurate?
        Ms. Wagner. Yes. Yes, sir, that is our understanding as
    well.
        The Chairman. OK. Let me ask on tribal consultation, H.R.
    1904 has a provision that requires the Secretary of Agriculture
    to ``engage in government to government consultations with
    affected Indian tribes concerning issues related to the land
    exchange.'' I am just unclear in my mind what the purpose of
    those consultations would be since the statute directs the
    Secretary to proceed to exchange the land. What is your
    thinking on that?
        Ms. Wagner. Right. The bill authorizes and directs the
    Secretary to complete the land exchange. There would be no
    environmental analysis necessary to support the land exchange
    activity. So, the benefit of tribal consultation would be
    limited due to the limited discretion of the Secretary in this
    case.
        The Chairman. It would be limited, but you think it would
    still be meaningful? I am just not clear what it would consist
    of. What would they consult about? I mean, if the Secretary no
    longer had any authority, the land has been exchanged, it is
    now private land, what would they consult about?
        Ms. Wagner. The ancillary activities would be one piece of
    the work that we could absolutely discuss with the tribes
    because there would be--with a mine plan of operation
    submitted, we would expect there would be other activities. The
    management plan for Apache Leap would be another thing that we
    would work with the tribes directly on. But directly related to
    the land exchange, I think we would submit the consultation
    would be somewhat limited and not particularly meaningful
    because of the limited discretion of the Secretary.
        The Chairman. All right.
        Senator Murkowski.
        Senator Murkowski. Thank you, Mr. Chairman, and thank you
    to both of you for being here this morning.
        I want to direct my questions primarily to this issue of
    the finding of public interest determination. It is my
    understanding that the real difference between H.R. 1904 and S.
    409 is that requirement. I do find it interesting and actually
    quite unusual that we would have a bill before the committee
    that the sponsors have not asked us to have hearing on, and
    that was moved out of the committee in a prior Congress. I
    think it is pretty unusual, and I would like to understand from
    the Administration's perspective where we are going as a policy
    initiative when it comes to this issue of a finding of a public
    interest determination.
        I think Senator Kyl led, or laid it out relatively clearly
    in terms of the ceding of jurisdiction, ceding of authority
    here. You have congressional conveyances. I am assuming that
    both within Department of Agriculture and Department of the
    Interior that the dozens of land exchanges and land conveyances
    and land allocation bills that we have here in Congress, that
    the Administration does not have any problem with the fact that
    we have that congressional authority to move forward with
    conveyances and exchanges and allocations, is that correct? An
    agreement that that is appropriate. We have been doing that
    because, if not, we are going to have some real problems with
    some of the bills that we advance because there is a
    congressional authority route, and then there is the
    administrative route, is that correct?
        Ms. Wagner. We implement the laws Congress passes.
        Senator Murkowski. I understand, but you do not think it is
    inappropriate for Congress to be making the public interest
    finding by directing such exchanges, or conveyances, or
    allocations.
        Ms. Wagner. Congress has the discretion to make the finding
    of public interest.
        Senator Murkowski. So, as we have that authority, then is
    it not, I guess, somewhat disingenuous for either Department of
    Agriculture or Department of the Interior to recommend to the
    public that they pursue their land exchanges through the
    congressional route, which they are very often directed to do,
    but then support a provision that would require a public
    interest finding, because that is the real difference between
    the 2 processes. Do you agree?
        Ms. Wagner. So, in this case, Congress gives the Forest
    Service and the Department of the Interior laws that we have
    administrative processes that guide mineral development and
    land exchanges. So, we tend to say that following those laws is
    a good process.
        In this particular proposal, it would still have needed
    congressional action because it included BLM lands in the
    acquisition. We had the 25 percent cash equalization payment,
    and there was an exception in this bill that the cash
    equalization could be larger than 25 percent. There was a
    provision for capturing the excess value in the mineral estate.
    So, there would have been a need in this particular bill to
    require Congress to authorize those activities.
        So, the 2--the difference----
        Senator Murkowski. Then why would we not have just gone the
    congressional route as opposed to the administrative route?
        Ms. Wagner. So, the differences between the 2 bills include
    the provisions for NEPA as well as the public interest
    determination. So, the House bill finds a public interest
    determination, and basically waives NEPA for the land exchange.
    S. 409 requires the Secretary to make the public interest
    determination based on an environmental analysis. So, those 2
    things are what we are commenting on.
        Senator Murkowski. I understand that, but we are also going
    through the congressional approval route. So, basically you are
    taking it down--you are requiring it to do 2 hurdles instead of
    just one.
        Ms. Wagner. If Congress passes a law that waives the
    provisions in FLPMA or NEPA, we would follow the provisions in
    the law as authored by Congress.
        Senator Murkowski. Let me ask you this. In terms of timing,
    if, in fact, the S. 409 had passed in the last Congress, where
    would we be today in terms of the timing? Given the
    requirements that are contained in that, how long would it have
    taken to complete the NEPA? How long would it take to complete
    a finding of public interest? How long is this further extended
    in terms of a process?
        Ms. Wagner. When we are directed and authorized by Congress
    to complete a land exchange, we work expeditiously to complete
    that exchange, 2 to 3----
        Senator Murkowski. I wish that I could agree with you. It
    is not happening in Alaska, I can tell you that for a fact, and
    maybe we define ``expeditious'' differently, but go ahead.
        Ms. Wagner. I will certainly take your concerns back to the
    Department, Senator.
        So, we would estimate that 2 to 3 years as a general rule
    of thumb would be a timeline necessary, but frankly it would
    also depend on the complexity and what we discovered in the
    environmental analysis document, the public comment, the
    consultation procedures. So, it could be longer. Certainly----
        Senator Murkowski. You have indicated in your testimony
    that this is a pretty complex--I believe those were your words.
        Ms. Wagner. They were the words in the testimony of the
    Administration, yes.
        Senator Murkowski. OK. So, you do not really have an
    understanding, but it could be in excess of several years,
    given the complexity.
        Ms. Wagner. Yes, Senator.
        Senator Murkowski. If we are required to go this route. Do
    you think it is reasonable that here in Congress we wait that
    long to see an exchange when it has already been directed that
    it be completed?
        Ms. Wagner. If Congress wants the disclosure of
    environmental impacts and consultation provisions adhered to in
    this particular case, that would be the time necessary to
    complete that work.
        Senator Murkowski. I do think, Mr. Chairman, that this is
    an issue that we as a committee are going to have to figure out
    how we work through this. There have been over the past 4 or 5
    years, there have been a handful of measures that have come
    before us where, again, we are dealing with legislation that is
    seeking the congressional approval. You know, I thought that
    that was kind of what we did through this process, was we
    determined that public interest. Then yet another layer is
    added where a Secretary has that, again, sole discretion to say
    yea or nay to it.
        It would seem to me that not only is this ceding some
    authority from the Congress to the executive branch, but, in
    fact, you are adding additional time, additional delays, and,
    of course, that translates to additional costs for whatever the
    project may be.
        My time has expired. Thank you.
        The Chairman. Let me just clarify my understanding. I mean,
    one way to characterize the difference between the House passed
    bill and the bill we developed in the committees in the last
    Congress is that one has the public interest determination made
    by the Secretary, and the other has the public interest
    determination made by the Congress.
        A different way to characterize the difference between the
    2 bills is that one requires an environmental analysis and
    opportunity for public comment before there is a transfer of
    the land. The other does not.
        Is that an accurate description of the differences as you
    see it, Ms. Wagner?
        Ms. Wagner. Yes, Senator.
        The Chairman. All right. Let me ask one other line of
    questions. This is on one of the points that was referred to
    was Apache Leap. I believe it was Senator Kyl who said that the
    legislation that has come over from the House totally protects
    Apache Leap.
        As I read the legislation, it includes a provision in
    section 8(c) that exempts Resolution Copper's mining activities
    adjacent to Apache Leap from the provisions that are otherwise
    intended to protect Apache Leap. Is this a correct reading of
    it as you read it, Ms. Wagner? Have you focused on that part of
    the bill?
        Ms. Wagner. If I understand your question, Senator, it is
    do the provisions of the bill provide protections for Apache
    Leap, and what mining activity could take place adjacent to
    Apache Leap that might impact Apache Leap? Is that your
    question, sir?
        The Chairman. Yes. The question is whether or not is--am I
    right that the legislation exempts mining operations from the
    protections that are otherwise provided to Apache Leap, that
    the mining operations that might occur here--yes. Here is the--
    yes, this is this section 8(c), I believe it is. It says, ``The
    provisions of this section shall not impose additional
    restrictions on mining activities carried out by Resolution
    Copper adjacent to or outside of the Apache Leap area beyond
    those otherwise applicable to mining activities on privately
    owned land under Federal, State, and local laws, rules, and
    regulations.''
        Ms. Wagner. I think the laws that govern private land
    mineral development would protect adjacent land owners from
    impacts of that activity. So, in the case of Apache Leap, it
    would have those protections.
        The Chairman. So, it would have protections that would be
    in place by virtue--even as though it were private land. Is
    that what you are saying?
        Ms. Wagner. The private mining activity adjacent to Apache
    Leap could not impact Apache Leap if it was held in public
    ownership or other ownership. The provisions under the mining
    laws for private lands is not to impact adjacent land
    ownership. So, in the case of Apache Leap and Federal
    ownership, the intention would be not to impact it negatively
    from mining activity adjacent.
        The Chairman. All right. Thank you both very much for your
    testimony. We appreciate it. Why do we not go to our second
    panel?
        Mr. Jon Cherry, who is the vice president with Resolution
    Copper in Superior, Arizona, and Mr. Shan Lewis, who is
    president of the Inter Tribal Council of Arizona.
        Mr. Cherry, why do you not go right ahead, and we will hear
    from you and then from Mr. Lewis, and then have questions for
    both of you.

      STATEMENT OF JON CHERRY, VICE PRESIDENT, RESOLUTION COPPER
                                COMPANY

        Mr. Cherry. Very good. Mr. Chairman and members of the
    committee, thank you for the opportunity to speak with you
    today about this very important land exchange bill.
        This bill will result in the creation of 3,700 full time
    jobs and $61 billion in economy benefit to the State of
    Arizona, while generating more than $14 billion in Federal tax
    revenue without any Federal financial assistance. It will give
    the BLM and Forest Service high value conservation lands to add
    to the public endowment.
        My name is Jon Cherry, and I am vice president of
    Resolution Copper Company, a U.S. corporation headquartered in
    Superior, Arizona, and an indirect subsidiary of Rio Tinto,
    PLC.
        I am here today in support of H.R. 1904. This bill seeks
    congressional direction to complete a land exchange to
    consolidate ownership of land where we plan to invest over $6
    billion of private capital to develop the third largest
    underground copper deposit known in the world today.
        Based on current demand, we estimate that the copper
    produced from this project will be the equivalent of more than
    25 percent of current U.S. demand for copper for more than 40
    years, and come from a secure and environmentally responsible
    domestic source.
        This land exchange transfer is over 2,400 acres of national
    forest land to Resolution Copper. The land in question is
    underlain or surrounded by current and historic mining
    operations and mining claims, some of which are more than 100
    years old.
        This picture to my right here is the copper triangle.
    Historic mining activities for over 100 years have occurred in
    this area. Our project is right in the middle of that. We are
    actually looking at an extension of an existing old mine magna
    mining operations in Superior. Although it is 7,000 feet deep,
    it is an extension of ore in the area and a significant mining
    history.
        If you could pick any place to build a mine in the United
    States, you could not pick a better place to build one than
    right here.
        It is land that has been significantly impacted by human
    activities for decades. Resolution already owns valid mining
    claims on roughly 70 percent of this land. In return, we will
    transfer approximately 5,300 acres of high quality conservation
    lands, privately held by the company, to the BLM and Forest
    Service.
        By the end of this year, we will have invested more than
    $750 million exploring and studying this project. In fact, we
    will be prepared to submit a mine plan of operations to the
    Forest Service in the second quarter of this year, which will
    begin the formal NEPA EIS permitting process for the entire
    project, including the area discussed in the land exchange.
        These exchanged parcels to be received by the United States
    are often forgotten in the debate, but their significance
    cannot be overstated. These parcels were purchased by
    Resolution for the express purpose of this exchange with input
    from the government agencies and respected conservation
    organizations, such as the Nature Conservancy.
        At the center of the debate over this land exchange is the
    question of environmental oversight. On this point, let me be
    clear. Since the beginning of this project, Resolution has
    repeatedly stated that it would complete a full review of the
    project under the National Environmental Policy Act. Many of
    our activities to this point have been in preparation for that
    reality, which will shortly culminate, as I indicated earlier,
    in the submittal of a mine plan of operations to the Forest
    Service and begin this permitting process.
        The point is that under any circumstances, a complete NEPA
    analysis of the project, including impacts on lands to be
    acquired under the exchange bill, will be completed. Under no
    circumstances does this bill exempt Resolution Copper from any
    other environmental laws, including the National Historic
    Preservation Act, section 106 Consultation with Native American
    Tribes, Clean Water Act, Clean Air Act, and any other
    environmentally statutes.
        Since 2009, we have spent an additional $300 million
    exploring the mine area, drilling our first mine shaft to a
    depth of over 5,000 feet, and conducting various environmental
    and engineering studies. By the end of this year, our total
    investment will be far in excess of $750 million.
        We have attempted to obtain this land exchange since 2005,
    and built in extra time into our schedule to achieve the land
    exchange while we completed the various studies. The extra time
    has now been consumed, and the study is completed, and the
    project is at a significant decision point.
        By the end of 2012, Resolution Copper will be in a position
    to begin construction of additional mining shafts and
    infrastructure to keep the project on schedule. However, to
    make a financial investment of more than $6 billion to build
    this project, we need certainty of a congressional action which
    directs transfer of Federal land to us before we can make this
    type of investment.
        With 2 years and an additional $300 million spent since S.
    409, Resolution Copper must have certainty before investing
    billions of additional dollars. Simply stated, we must be able
    to acquire the Federal land under which we will operate.
        Furthermore, with a mineral deposit of this magnitude and
    with the huge private investment that will be required to
    develop it, we believe that it is appropriate that Congress,
    and not the Federal agencies, determine that the land exchange
    is in the public interest.
        If we as a Nation are truly serious about creating new jobs
    with private investment, producing long term budget deficits,
    and producing here at home rather than abroad, the base metals
    that serve our national interests and the land exchange
    embodied in H.R. 1904 should be advanced at its earliest
    possible date.
        Thank you again for the invitation to share our views with
    you, and I would be happy to take any questions.
        [The prepared statement of Mr. Cherry follows:]

         Prepared Statement of Jon Cherry, Vice President, Resolution
                                 Copper Company
                                  introduction
        Thank you for the opportunity to speak with you today about this
    very important bill. My name is Jon Cherry and I am Vice-President of
    the Resolution Copper Company, a US Corporation headquartered in
    Superior, Arizona and an indirect subsidiary of Rio Tinto plc. The
    Company is the Manager of Resolution Copper Mining LLC, which is
    jointly owned with the US-based BHP Copper Inc., a subsidiary of BHP
    Billiton Limited. Rio Tinto and BHP are two of the largest and most
    advanced mining companies in the world. I am here today on behalf of
    RCML which I will refer to as Resolution Copper. I am here in support
    of H.R. 1904, which seeks Congressional direction to complete a land
    exchange to consolidate ownership of the land where we plan to invest
    over $6 billion of private capital to develop the third largest
    underground copper deposit known in the world today, while creating
    over 3,700 badly needed jobs in Arizona and nearly $20 billion in tax
    revenue, $14 billion of which is federal. Based on current demand, we
    estimate that the copper produced from this project will be the
    equivalent of more than 25 percent of the current US demand for copper
    for more than 40 years from a secure and environmentally responsible
    domestic source.
        Minerals are where you find them and we believe that when a
    critical mineral deposit of this magnitude is discovered, there are
    appropriate and compelling reasons for the Congress to make Federal
    land use decisions to facilitate their development as you have on many
    other issues in the past.
                           the logic of the exchange
        The land exchange of H.R.1904 transfers 2,422 acres of National
    Forest land to Resolution Copper. The land in question is underlain or
    surrounded by current and historic mining operations and mining claims,
    some of which are more than 100 years old, and has been significantly
    impacted by human activities for decades. In addition, Resolution
    Copper already owns valid mining claims on roughly 70 percent of the
    land we are seeking to acquire. Simultaneously, Resolution Copper will
    transfer approximately 5,300 acres of environmentally important lands
    in eight privately held land parcels to the government to be managed by
    the USFS or BLM. With these eight properties, this land exchange will
    result in very significant net gains to the United State in:

              1) river bottoms and riparian lands, including seven miles
            along the renowned and free flowing San Pedro River;
              2) habitat for several threatened, endangered or sensitive
            plant and animal species;
              3) nationally and internationally identified important bird
            habitat by the Audubon Society and Bird Life International;
              4) new public recreational opportunities;
              5) year-round water resources--a rarity in many parts of
            Arizona; and
              6) protection of the important geographic feature of Apache
            Leap.

        The logic of the land exchange itself is simple. It consolidates
    our land ownership where we will be developing and operating our mine,
    and where we will be making a private investment in excess of $6
    billion dollars. To state it in its simplest terms, when we are making
    an investment of that magnitude, we believe that it is imperative and
    prudent to own and control the land where our mine and facilities will
    be located. And of course, the federal government benefits because it
    receives in return a portfolio of high-quality conservation lands and
    more than $14 billion in federal tax revenue.
        As Figure 1* shows, the current fragmented land ownership pattern
    between Resolution Copper and the Forest Service is a logistical and
    regulatory jumble. It serves neither public nor private interests, and
    due to operational and safety considerations, continued Forest Service
    ownership of the land will not benefit the public, recreationally, or
    any other way, once the physical mining operation begins.
    ---------------------------------------------------------------------------
        * Figures 1-5 have been retained in committee files.
    ---------------------------------------------------------------------------
        Figure 2 shows how our mine is located within the heavily developed
    area known as ``The Copper Triangle'' in Arizona. The three points of
    the triangle are anchored by the mining towns of Globe/Miami, Hayden/
    Winkleman and Superior. The old Magma mine at Superior is the platform
    from which Resolution Copper is launching its new project. Our project
    incorporates some of the existing surface, underground workings and
    infrastructure of the Magma Mine. In the center of the triangle you can
    see Asarco's very large Ray Mine at the bottom of Devil's Canyon, then
    Asarco's Smelter and tailings in Hayden to the south, the Christmas
    Mine to the east of Winkleman, the Globe and Miami area open pit mines
    to the north including the very large Freeport-McMoRan mine, Carlota
    and BHP Pinto Valley Mines--the latter of which is a possible location
    for the tailings from our mining operation, where we could fill up
    existing open pits and reclaim them.
        This display, and the others which will follow, should dispel any
    notion that we are proposing to operate in a pristine location. Indeed,
    our mine will be located in an area that has been very heavily
    developed with roads, mines, transmission lines and other facilities.
        Another key point is that the Superior area already has excellent
    existing infrastructure to support our mine. For example, the mine will
    be located almost immediately adjacent to State Highway 60, lies along
    other existing access roads, near an existing railroad line, power
    transmission lines and other nearby developed facilities. The area also
    has the towns of Superior, Miami and Globe within a short drive of the
    mine site. Those three towns are long-established mining towns with a
    skilled work force experienced in mining and with existing housing and
    related infrastructure. This will greatly reduce the amount of new
    infrastructure needed to develop the mine, and thereby minimize impacts
    on the environment.
        Figure 3 is a close-up of the Resolution Copper project site which
    shows even more of the existing infrastructure in detail, including all
    of the various drill holes in the area, including the 78 new
    exploratory holes that have been drilled since 2001 highlighted by pink
    dots. It is important to note that the majority of these drill holes
    were drilled and roads constructed in the same area included in the
    proposed land exchange--all following NEPA permitting and tribal
    consultation by the United States Forest Service with the San Carlos
    Apache Tribe. Also shown on the figure is the nearest San Carlos Apache
    Reservation boundary located approximately 20 miles east of the project
    site.
        Finally, I have two aerial photos (Figures 4 and 5) of the mine
    site itself which were taken just last summer. Figure 4 shows the mine
    site in the center, with the Town of Superior to the right, Asarco's
    very large open pit Ray Mine to the south. . .(which has been
    continuously producing copper since 1880). . . and other mines to the
    north. Figure 5 is a panorama which shows various other mines, roads,
    transmission lines, the large power substation near the mine and the
    Town of Superior. As you can see, one could hardly find a better place
    to build a new mine, while at the same time minimizing the need for new
    infrastructure. It simply makes good sense from planning, logistical
    and environmental perspectives.
                text of the committee-reported version of s. 409
        Now, I realize that this Committee also seeks testimony on the text
    of the Committee Substitute to S. 409, that was reported to the Senate
    in March 2010 in the last Congress. The Senate did not act on the
    Committee-reported version of S.409 before the Congress ended and that
    text has not been introduced as a bill in this Congress so I am not
    sure why that text is relevant here. Regardless, Resolution Copper did
    not oppose the Committee-reported version of S. 409 in the last
    Congress. The circumstances at that time, however, were very different
    than they are today. Let me explain:
        Since 2009, we have spent an additional $300 million exploring the
    mine area, drilling our first mine shaft to a depth of over 5,000 feet
    and conducting various environmental and engineering studies. By the
    end of this year, our total investment in the project will be more than
    $750 million dollars. We have been trying to obtain a land exchange
    since 2004 and built in extra time in our schedule to obtain this while
    we completed our various environmental and engineering studies. This
    time has now been consumed and the project is at a significant decision
    point.
        During the second quarter of 2012, we will be in a position to file
    our Mine Plan of Operations which will begin the NEPA EIS process over
    the entire project area including the area of the subject exchange. We
    will also be in a position by the end of 2012 to begin construction of
    additional mining shafts and infrastructure on private land adjacent to
    the federal land we would acquire through the land exchange, which
    overlies the ore body, to keep the project on schedule. However, to
    make a financial investment of more than $6 billion, we need the
    certainty of a Congressional law which directs that the 2,422 acres of
    Federal land be transferred to us before we can make this type of
    investment. Two years after S. 409 and an additional $300 million,
    Resolution Copper must have certainty before investing billions of
    additional dollars.
        As you know, H.R. 1904 provides that we must still undergo NEPA
    processing on our mine plan after we receive the Federal land.
    Resolution Copper has always recognized that such a review under NEPA
    will be required prior to commercial mining and have committed to do
    so. As mentioned earlier, we will be prepared to submit our Mine Plan
    of Operations to begin the NEPA process during the second quarter of
    this year. However, after spending in excess of $750 million we are
    reluctant to add additional risk. We must be able to acquire the
    Federal land where we will operate;
                          economic and national impact
        Last year Resolution Copper commissioned prestigious Arizona
    economists Pollack & Associates to conduct a new study to evaluate the
    impacts of our project to the local and state economy. A copy of the
    executive summary of this report* is included with the written
    testimony, but I would like to highlight a few important statistics
    from this report. Namely, that our project will:
    ---------------------------------------------------------------------------
        * Document has been retained in committee files.

       produce a very large amount of a critical metal right here
            at home that is the fundamental building block for the new
            green economy including hybrid and electric cars, solar panels,
            wind turbines and smart grids;
       create more than 3,700 mining related jobs that are
            desperately needed in an area of high unemployment;
       generate more than $19 billion in tax revenues to Federal,
            State and local government coffers--including $14 billion in
            Federal taxes; and
       benefit the economy of the state of Arizona by $61 billion
            over the life of the project.
                                   conclusion
        Our nation has been struggling through the worst economic downturn
    since the Great Depression. We have lost many manufacturing jobs, raw
    materials production and tax revenues to overseas endeavors. Thus, we
    believe that when an opportunity comes along to develop a very large
    mine from a reliable domestic source that produces a metal that is
    vital to our national security and modern lifestyle; and that source is
    in a location where significant development infrastructure already
    exists; and where there appear to be minimal environmental conflicts,
    Congress should avail itself of the opportunity to cut through red tape
    and approve transfer of the Federal land needed to operate the project.
    It is the exact type of Congressional action that can generate
    desperately needed jobs, $14 billion in Federal tax revenues and show
    the public that Congress is willing to promote the public interest.
        Copper, the metal that will be produced from this mine, is the
    fundamental building block for the new green economy including hybrid
    and electric cars, solar panels, wind turbines and smart grids.
        We know that the temptation always exists for some to say ``put it
    over there, not here'', and that there is no place where a large
    development can be located without some impact on the environment.
    However, you can only mine where the mineral is found and we believe we
    are truly fortunate to have found such a large mineral resource in an
    area where a great deal of developed infrastructure already exists, and
    where developing a mine will have minimal adverse impacts and at the
    same time such tremendous benefits.
        If we as a nation are truly serious about creating new jobs with
    private investment, reducing long term budget deficits, and producing
    here at home rather than abroad the base metals that serve our national
    interests, then the land exchange embodied in H.R. 1904 should be
    advanced at the earliest possible date. To do otherwise, and to
    continue to subject it to prolonged study and delay will only serve the
    interests of those who, while perhaps well intentioned, cannot see
    their way to any significant natural resource production, and in so
    doing, ship our jobs, tax revenues and resource production overseas. I
    know that is a strong statement, but I believe it comports with today's
    realities.
        Thank you again for the invitation to share our views with you
    today and I would be happy to answer any questions you may have.

        The Chairman. Thank you very much.
        Mr. Lewis.

      STATEMENT OF SHAN LEWIS, PRESIDENT, INTER TRIBAL COUNCIL OF
               ARIZONA, VICE CHAIRMAN, FORT MOJAVE TRIBE

        Mr. Lewis. Good morning, Chairman Bingaman, Ranking Member
    Murkowski, and members of the committee. My name is Shan Lewis.
    I am the president of the Inter Tribal Council of Arizona and
    vice chairman of the Fort Mojave Indian Tribe. On behalf of the
    20-member tribes of ITCA, thank you for letting me testify.
        I would like all tribal leaders here today to stand if they
    could. We are here today to bring a united front and strong
    opposition to H.R. 1904.
        The Chairman. We welcome all of the tribal leaders. I see
    we have representation from New Mexico. We are glad to have
    them here as well. But go right ahead.
        Mr. Lewis. Tribes from New Mexico, the Great Plains, the
    Northwest, California, the South, the Navajo Nation, and many
    other tribes join us against this bill.
        With the committee's permission, I would like to include
    for the record tribal letters and resolutions that oppose this
    bill, and I have those with me today.
        The Chairman. We will certainly include those in the
    record.
        Mr. Lewis. Also I would like to include a statement from
    the San Carlos family about its upcoming sunrise dance at Oak
    Flat, celebrating a young woman's coming of age. This is just
    one example of the great significance of Oak Flat to families
    who have held ceremonies there for centuries.
        I have 3 fundamental points in my remarks. One is the
    destruction of sacred sites, 2, Federal protection that will no
    longer apply if this land becomes privatized, and regional
    water resources that will permanently be altered, depleted, or
    contaminated.
        Since 2005, Resolution Copper has done everything it can to
    pass this legislation that would direct the Forest Service to
    transfer sacred land in the Tonto National Forest so that it
    can develop a massive block cave copper mine. To protect our
    holy places, it saddens us that we have to defend their
    legitimacy.
        Oak Flat is one of the holy places of Western Apache and
    Yavapai tribes where Gaan or spiritual beings reside. The Gaan
    are considered angels. Just as a church is a special place for
    Christians, Oak Flat is the equivalent for Apaches, Yavapais,
    and others. Many tribes go to these places for prayer,
    ceremonies, to gather ceremonial items, or for peace and
    personal cleansing. These places are holy.
        Federal laws and policies that protect sacred sites
    currently protect Oak Flat. But if this land is transferred to
    Resolution Copper would become private land, Federal
    protections would disappear, and this sacred site area could be
    destroyed.
        To give you an idea of the Federal land that would be
    conveyed to the company, I have some maps. Here, the first map
    shows the Tonto Forest in relation to the San Carlos Apache
    Reservation in Arizona. These lands are ancestral lands. Over
    here to my right, the second map shows Oak Flat and the forest
    outlined in red. The black outline shows land withdrawn from
    mining by President Eisenhower.
        Resolution Copper wants these sacred lands to extract one
    cubic mile of ore located over one mile beneath the surface. To
    give a mental picture, it would take over 1,400 Cowboy stadiums
    to hold one cubic mile of ore. The company plans to use the
    block cave method to extract ore because it is far cheaper than
    other methods.
        Here to my left is a diagram that depicts the block cave
    mining process, what it is. The company would dig a tunnel
    downward over a mile long and then dig another tunnel to the
    ore body. Once at the ore, they would blast away and extract
    massive amounts of ore using robotic technology a mile deep,
    technology that has not even been developed yet.
        The next diagram to my right, this shows what happens once
    they start pulling out the ore. At some point, the surface
    starts to cave in. This is called intact zone. Given the
    massive amounts of earth the company plans to extract, the
    surface will eventually collapse and the area will become an
    open pit. This is called cave zone. We think cave zone could be
    2 miles in diameter. This open pit would be visible from outer
    space.
        We have requested Federal and independent studies on this
    project since 2005 without success.
        Another grave concern is the permanent damage to surface
    and ground water. This mine will deplete enormous quantities of
    water and pollute it, which will devastate our communities. The
    water is a sacred element in tribal religious ceremonies.
    Arizona is a desert, and we all have the right to know what
    happens to our water. Again, there have been no Federal or
    independent studies to this issue.
        Here is a picture of a perennial spring in Oak Flat. Mining
    here would dry up or contaminate this spring and other water
    sources of Oak Flat. On my right is a picture of Oak Flat
    campground, an ancient oak tree that has nourished us for
    centuries with acorns.
        This area is protected under the Eisenhower withdrawal
    order. This area is the cave zone that would be destroyed.
        Last, I would like to make 3 points. This bill is a special
    deal or earmarked for one company who is foreign owned. The
    company claims that the project will create many jobs; however,
    no money can replace the loss of sacred sites.
        The company claims that the mine would be an extension of
    the old Magma Mine in the area. This is not true. Magma was
    developed in the 1880s with a much smaller blueprint.
    Nevertheless, Magma destroyed our holy places. Back then we
    were POWs until the early 1900s and did not have the right to
    vote in Arizona until 1948. We cannot turn back the clock, but
    we can say no to this mine.
        This bill would violate our government to government
    relationship and result in the destruction of a holy place.
    Senators, you simply will not be able to mitigate what this
    mine will destroy.
        Thank you.
        [The prepared statement of Mr. Lewis follows:]

     Prepared Statement of Shan Lewis, President, Inter Tribal Council of
                   Arizona, Vice Chairman, Fort Mojave Tribe
        Chairman Bingaman, Ranking Member Murkowski, and other Committee
    Members, thank you for the opportunity to testify today. My name is
    Shan Lewis, Vice Chairman, Fort Mojave Tribe, and President of the
    Inter Tribal Council of Arizona (``Inter Tribal Council'' or ``ITCA'').
    My Tribe is a member of the Inter Tribal Council of Arizona.
        vast tribal opposition to h.r.1904--due to sacred site concerns
        I speak today on behalf of the Inter Tribal Council of Arizona
    which consists of 20 federally recognized Indian Tribes, Nations and
    Communities with lands within the State of Arizona, New Mexico and
    California. We join together on matter of tribal, national, and
    statewide importance to the Tribes. Today we stand in opposition to
    H.R.1904. These 20 tribal governments include the Ak-Chin Indian
    Community, Cocopah Indian Tribe, Colorado River Indian Tribes, Fort
    McDowell Yavapai Nation, Fort Mojave Indian Tribe, Gila River Indian
    Community, Havasupai Tribe, Hopi Tribe, Hualapai Tribe, Kaibab-Paiute
    Tribe, Pascua Yaqui Tribe, Pueblo of Zuni, Quechan Tribe, Salt River
    Pima-Maricopa Indian Community, San Carlos Apache Tribe, Tohono O'odham
    Nation, Tonto Apache Tribe, White Mountain Apache Tribe, and the
    Yavapai Prescott Indian Tribe.
        Further, many other tribes and tribal organizations from across the
    country strongly oppose H.R. 1904, including the National Congress of
    American Indians, the All Indian Pueblo Council, the Inter Tribal
    Council of Nevada, Inc., the Affiliated Tribes of Northwest Indians,
    the Great Plains Tribal Chairman's Association, the Eight Northern
    Indian Pueblos Council, the United South and Eastern Tribes, Inc., the
    Mescalero Apache Tribe, the Navajo Nation, the Jicarilla Apache Nation,
    the Pueblo of Tesuque, the Susanville Indian Rancheria, the Shoshone-
    Bannock Tribes, and the Confederated Tribes of Siletz Indians.
        H.R. 1904, as passed by the House of Representatives on October 26,
    2011, would allow Resolution Copper Mining (RCM)--a joint venture of
    foreign mining giants Rio Tinto and BHP Billiton--to secure private
    ownership of over 2,400 acres of U.S. Forest Service lands and the ore
    and other minerals located underneath these lands in order to
    facilitate an unprecedented large-scale block cave copper mine in the
    Oak Flat region (collectively called ``Oak Flat''), which is bounded by
    portions of Apache Leap (referred to as Gohwhy Gah Edahpbah by the
    Yavapai) and Gaan Canyon (also referred to inappropriately as ``Devil's
    Canyon'' by non-Indians mistaking the Apache Angel dancers as devil
    dancers), and contains the 760-acre Oak Flat Withdrawal. Oak Flat is
    located within the aboriginal lands of, among others, the Western
    Apache and Yavapai tribes.
        Oak Flat has always been and continues to be a place of profound
    religious, cultural, and historic significance to the San Carlos Apache
    Tribe, the White Mountain Apache Tribe, the Fort McDowell Yavapai
    Nation, the Yavapai-Apache Nation, the Tonto Apache Tribe, and many
    other Native Nations. See attached February 2, 2012 letter to the Tonto
    National Forest, Globe Ranger District informing same of an upcoming
    Apache Sunrise ceremonial dace to be held at Oak Flat May 2-6, 2012.
        Federal laws and policies are designed to protect Native sacred
    sites such as Oak Flat. The proposed land exchange that would be
    mandated by H.R. 1904 would circumvent these laws and policies and
    transfer ownership of federal land containing a sacred site of Apache,
    Yavapai, and other Native people to a company for mining activities
    that will destroy this sacred site. Although ITCA is not opposed to
    mining in general, mining in this location that will result in
    destruction of a sacred site is offensive to us and should not be
    condoned. The 20 member Tribes of ITCA, therefore, strongly oppose H.R.
    1904, S. 409 from the 111'1' Congress, and any and all legislation that
    would convey Oak Flat to private interests whose proposed activities
    would cause irreparable harm.
        Under the United States Constitution, treaties, federal law, and
    executive orders, the United States has a trust responsibility to
    consult with tribes on a government-to-government basis about federal
    actions that impact tribes. The United States must consult with tribes
    before making any decision on whether to convey Oak Flat, federal land,
    to Resolution Copper. For consultations to be effective, the tribes and
    the United States need to have objective information about the proposed
    mining activities and its impacts. To date we do not have this
    information. Further, the United States has a responsibility to protect
    sacred sites located on federal lands. Tribes ceded millions of acres,
    including Oak Flat, to the United States in return for protections set
    forth in treaties.
        Because of its continued importance to Indian tribes, nations and
    communities, Oak Flat, as well as specific places within Oak Flat, are
    eligible for inclusion in, and protection under, Section 106 of the
    National Historic Preservation Act, 16 U.S.C. Sec.  470 et seg.
    (``NHPA''). Further, Oak Flat meets the criteria as a ``sacred site''
    within the meaning of Executive Order 13007, Indian Sacred Sites, May
    24, 1996, 61 Fed. Reg. 26771 (``E.O. 13007''), as well as pursuant to
    the American Indian Religious Freedom Act, 42 U.S.C. Sec.  1996, et.
    seq. (``AIRFA''), and related laws, regulations and policies.
        Indeed, as recently as June 2011, in testimony before the House
    Natural Resources Subcommittee on National Parks, Forests and Public
    Lands on H.R. 1904, the Deputy Director of the Bureau of Land
    Management, Ms. Marcilynn Burke, stated that BLM ``could not support
    the bill as written,'' noting that ``[m]any of the lands to be
    exchanged in the bill hold significant cultural value to Indian
    Tribes.'' Deputy Director Burke went on to state her understanding that
    ``the Apache Leap area, the Oak Flat Campground, and Devil's Canyon are
    culturally significant to the San Carlos Apache Tribe and the Fort
    McDowell Yavapai Nation.'' USDA Secretary Vilsack has also acknowledged
    the importance of Oak Flat and the threat that block and cave mining
    would bring to this special place in his letter to ITCA dated June 27,
    2011: ``I understand your concerns related to the potential effects of
    block cave mining on the religious, cultural, historic, and
    environmental character of Oak Flat. Clearly, this area is vitally
    important as a traditional and cultural site to the Apache people and
    Arizona Tribes.''
        Oak Flat should remain under federal jurisdiction for continued
    protection. Transfer of these federal lands located in the Tonto
    National Forest to RCM for mining purposes is almost certain to deplete
    and contaminate water resources from nearby watersheds and aquifers.
    These water sources play a critical role in Apache and Yavapai religion
    and religious ceremonies. According to the Tonto National Forest's
    website, it was created in 1905 to protect the watersheds around
    reservoirs. The website also states, ``the forest produces an average
    of 350,000 acre feet of water each year. Six major reservoirs on the
    forest have the combined capacity to store more than 2 million acre-
    feet of water. Management efforts are directed at protecting both water
    quality and watershed and riparian area conditions.'' H.R. 1904 would
    harm these valuable watersheds, violating the very purpose of the
    forest. Also, the mining activities will result in the collapse of the
    Earth, irrevocably damaging the landscape of Oak Flat, and the
    wildlife, plants and other natural features of its ecosystems and,
    thereby, the very integrity of Oak Flat relative to its crucial and
    continued role in American Indian religion, traditions, and culture.
        H.R. 1904 would lift the Oak Flat Withdrawal Order, which has
    protected these publicly owned lands for all Americans since 1955 when
    President Eisenhower first signed BLM Public Land Order 1229. This
    Order specifically put Oak Flat off-limits to all future mining
    activity, despite its presence in a known mining district. In fact,
    even when President Nixon issued BLM Public Land Order 5132 in 1971 to
    modify PLO 1229, he expressly precluded any form of appropriation of
    Oak Flat ``under the U.S. mining laws.''
          cultural and religious impact on free exercise of religion
                            of the proposed exchange
        Congress has enacted laws to protect the religious and cultural
    integrity of Indian people. This was to ensure (among other things)
    that the policies and procedures of various Federal agencies, as they
    may impact the exercise of traditional Indian religious practices, are
    brought into compliance with the constitutional injunction that
    Congress shall make no laws abridging the free exercise of religion.
        American Indians' right of continued access to Oak Flat and their
    right to maintain the religious and cultural freedoms that Oak Flat
    supports is also recognized in the United Nations Declaration on the
    Rights of Indigenous Peoples. See, e.g., Article 12 (recognizing that
    ``[i]ndigenous peoples have the right to manifest, practice, develop
    and teach their spiritual and religious traditions, customs and
    ceremonies: the right to maintain, protect, and have access in privacy
    to their religious and cultural sites''); Article 19 (requiring 'free,
    prior and informed consent'' of indigenous peoples where the United
    States adopts or implements legislative or administrative measures
    which may affect them); Article 24 (clarifying that indigenous peoples
    have ``the right to their traditional medicines and to maintain their
    health practices, including the conservation of their vital medicinal
    plants, animals and minerals.''); Article 25 (emphasizing ``the right
    of indigenous peoples to maintain and strengthen their distinctive
    spiritual relationship with their traditionally owned or otherwise
    occupied and used lands, territories, waters and coastal seas and other
    resources ....'').
        The religious and cultural importance of the Oak Flat area does not
    only reside in isolated spots or particular locations or archeological
    sites, but rather in the integrity of the ecosystem and environment of
    the area as a whole. Thus, impacts to any part of Oak Flat have an
    impact on the religious and cultural integrity of the area as a whole--
    both as a holy and religious place and as a place of continued
    traditional and cultural importance to Apache, Yavapai, and other
    indigenous people.
        For example, Apache People call Oak Flat ``Chich'il Bildagoteel,''
    or ``a Flat with Acorn Trees'' and it lies at the heart of T'iis Tseban
    Country, which is associated with at least eight Apache clans and two
    Western Apache bands--the Pinal Band and the Aravaipa Band. Oak Flat is
    called Gaan by the Yavapai people. Oak Flat has, for generations,
    played a crucial role in the exercise of their religious, traditional,
    and cultural practices, and these practices continue to this day. Oak
    Flat has long been used--and is used today--for religious ceremonies
    and its existence continues to enhance the lives of Apaches and
    Yavapais. See attached February 2, 2012 letter regarding an upcoming
    Apache Sunrise ceremonial dace to be held at Oak Flat May 2-6, 2012.
        The oak groves at Oak Flat have always provided an abundant source
    of acorns that serve as an important food source for the Apache people.
    There are also hundreds of traditional Apache plants and other living
    things in the Oak Flat area that are crucial to Apache religion and
    culture. Some of these plants are common and some are among the holy
    medicines known to and harvested by only gifted Apache herbalists.
    Similarly, Yavapais also have relied on the abundance of Oak Flat for
    physical and spiritual sustenance. While these plants can be gathered
    in other areas, only the plants within the Oak Flat area are imbued
    with the unique power of this area.
        Allowing RCM to conduct block cave mining at Chich'il Bildagoteel
    (Oak Flat) will destroy the living things and ecosystems that are
    associated with the Holy Beings that Apaches depend on, in particular a
    certain kind of Gaan--all powerful Mountain Spirits--with whom the Oak
    Flat area is associated. It is believed that these Holy Beings, these
    Angels, are among the most powerful, and they must be respected if the
    Apache people are to receive their power. Without their power, the
    Apache people cannot conduct their ceremonies and they become
    vulnerable to a wide variety of illness. Similar concerns exist for the
    Yavapai people as well.
    oak flat should not be sacrificed in exchange for other lands selected
                    by rmc and offered to the united states
        RCM proposes to convey a handful of parcels in southern Arizona as
    part of the land exchange set forth in H.R. 1904. While some of these
    offered lands may have value for the American public, none of these
    parcels have been recognized as important as Oak Flat. The parcels that
    RCM would convey have not been subject to previous withdrawals by
    Executive Order and do not possess the totality of values as a sacred
    site or traditional cultural property recognized by American Indians.
        Moreover, if the offered parcels are as meritorious and deserving
    of conversation and public use, those who seek the conservation of
    these parcels should look for funding help from such potential
    resources as the Land and Water Conservation Fund, The Conservation
    Fund, The Nature Conservancy, The Trust For Public Lands, the Paul
    Allen Foundation and others--not by sacrificing lands at Oak Flat. No
    one should attempt to, nor can they, put a price on the protection of
    spiritual, religious, cultural, and archeological values. The United
    States, as Trustee for all American Indians should not trade away these
    priceless values in order to facilitate the cheapest method of mining,
    which has as its sole purpose the exclusive goal of benefiting Rio
    Tinto and BHP and their shareholders and investors, including China.
        It is highly disappointing, and indeed disturbing, that H.R. 1904
    and S.409 from the 111th Congress would simply cast aside the valid
    concerns of American Indians regarding the need to protect the
    religious, cultural and traditional relationship of indigenous peoples
    to the Oak Flat region.
        block cave mining collapse and destruction of the oak flat area
        RCM has stated that block and cave mining is ``cheaper.'' While
    bottom line considerations are clearly important to RCM, the United
    States, as our Trustee, must not let such factors pressure it into
    agreeing to destructive practices--mining to unprecedented great depths
    and block and cave mining with unproven technology. There is no
    assurance once the ground starts subsiding in a block and cave mining
    operation that it will not collapse from the bottom of the operation up
    to the surface. In fact, substantial surface collapses have been
    witnessed in block and cave mining operations around the world,
    sometimes leaving large pits and craters dotting the landscape which
    often suffer the same pit lake problems as open pit mines.
        Under the normal requirements for a land exchange in accordance
    with the National Environmental Policy Act (``NEPA'') and the Federal
    Land Policy Management Act (``FLPMA''), decision makers would be
    required to conduct interdisciplinary studies and closely scrutinize
    the inevitable and destructive impacts of the mining project to the
    region, including to nearby Apache Leap, Gaan Canyon, Queen Creek and
    the Oak Flat Withdrawal area. They would be required to consult with
    the American Indian Tribes and interested members of the public
    throughout the process and would have the obligation to consider the
    impacts of a potential surface collapse from a mine on Oak Flat. As
    part of this process, the federal decision makers would also be
    required to evaluate the depletion and potential contamination of the
    region's water supplies, as well as the resulting damage to the
    integrity of Oak Flat as a sacred site and traditional cultural
    property. Yet, in H.R. 1904, RCM seeks to have Congress exempt it from
    virtually all these important requirements of the federal law and
    instead turn these lands over to RCM in private ownership, where almost
    no protections exist for Oak Flat under the laws of the State of
    Arizona.
        Apache Leap is not adequately protected by H.R. 1904 even though
    H.R. 1904 appears, on its face, to exclude it from this land exchange.
    Neither, of course, is the rest of the Oak Flat area. It should also be
    noted that while H.R. 1904 would purport to prohibit ``commercial
    mineral extraction'' from under Apache Leap, it does not prohibit RCM
    from tunneling under Apache Leap or from conducting other below ground
    operations directly below the escarpment. Furthermore, because the
    purported protections for Apache Leap under H.R. 1904 are subject to
    all ``valid existing rights,'' there is nothing in H.R. 1904 that would
    prohibit the commercial extraction of minerals and the destruction of
    Oak Flat by other claim holders, perhaps even including those who might
    be in partnership with RCM, Rio Tinto, or BHP. Given the existence of
    numerous mining claims to the Apache Leap area, this is almost certain
    to be the case, despite the promises of protection outlined in H.R.
    1904.
        In addition, nothing in H.R. 1904 or in the ``NEPA'' like review of
    RCM's ``mining plan of operations'' would require RCM to cease its
    mining operations and block caving activities at Oak Flat should these
    operations and activities show signs of a more extensive surface
    collapse than anticipated, including the potential damage or violation
    of Apache Leap. Indeed, this is likely to be quite difficult, if not
    impossible, once RCM acquires Oak Flat and the copper and other
    deposits beneath the surface of this land.
        Apache Leap is part of the larger holy and sacred site that is
    encompassed by Oak Flat. Under this proposed legislation, even if
    Apache Leap were to be protected from harm, it would eventually be
    bordered by thousands of acres of land that have been irretrievably
    harmed and defiled by the proposed mining project. This is not
    acceptable to the members of the Inter Tribal Council of Arizona, and
    it should not be acceptable to this Congress.
      the mining project will dangerously deplete groundwater and surface
                      water supplies throughout the region
        Water is a source of life for all people. The existence of water at
    Oak Flat, including life-giving springs, seeps and surface supplies, is
    fundamental to the health of Oak Flat's ecosystems and therefore, to
    the religion, culture and very identity of both the Apache and the
    Yavapai people. Water is fundamental to, indeed holds the survival of
    the economic future of Globe, Superior and Miami and other adjacent
    communities.
        As noted briefly above, however, the massive mining operation to be
    facilitated by H.R. 1904, threatens to dangerously deplete surface and
    groundwater supplies and federally reserved water rights, and ground
    water sources beneath Globe, Superior and Miami and throughout the
    region--water supplies that are already relied upon and desperately
    needed by others in Arizona. H.R. 1904 does not require Rio Tinto to
    perform any modeling or proper studies of the impact of their project
    on the regional water supply and hydrology, despite the fact that the
    Inter Tribal Council and other Arizona tribes and nations, including
    the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation, have
    repeatedly requested that an independent agency of the federal
    government, like the U.S. Geological Survey or another federal agency
    or department, conduct such studies.
        The copper ore body at Oak Flat is estimated at its highest point
    to be located 7,000 feet below the surface of the Earth or
    approximately 3,000 feet below sea level. Given the depth of the ore
    body, as well as its immense size, throughout the 40 plus years of the
    mining project, RCM will have to aggressively conduct extensive
    ``dewatering'' activities in order to continually pump and remove the
    surface water and the groundwater from both the shallow alluvial
    aquifer at Oak Flat and the deeper aquifers in the area whose water
    supplies will increasingly migrate into the enormous cavity created by
    the removed ore and waste rock (and the extensive tunnel system needed
    for the mine), nearly all of which will be located well below the
    elevation of the streams in the region, and will cut through the
    region's groundwater aquifers.
        Surface water, tributary groundwater, and aquifers that are located
    where the copper ore body would be excavated and where the mining
    tunnels would be located. Thus, throughout the mining process, water
    will constantly migrate to and from the vacant ore body and mining
    tunnels. As this process continues over the decades long life of the
    project, the necessary mine dewatering process will deplete many
    billions of gallons of water from the surface water and groundwater
    throughout the region, resulting in the loss of important seeps,
    springs and other surface water features, and resulting in the gross
    depletion (and likely contamination) of important and unique perennial
    pools in Gaan Canyon, (referred to as Devil's Canyon) flows to Queen
    Creek and other surface water features--all of which is crucial to
    maintain the healthy ecosystem of Oak Flat and the surrounding area,
    and, therefore, the integrity of this place as a sacred site and
    traditional cultural property. RCM does not have the legal right to
    disrupt, deplete or contaminate this water under any law.
        Further, the alteration of both the subsurface and the surface
    geological structure of this area as the result of the block caving
    process and imminent surface collapse will alter the natural state of
    the aquifers and surface drainage of the watersheds throughout the
    region forever. Despite the fact that this legislation has been
    introduced in the Congress over the past seven years, to date ITCA has
    never seen any meaningful studies conducted by the federal government
    or independent agency regarding potential impacts to the water supplies
    of the region. Instead, for over seven years, RCM has claimed that it
    is urgent for Congress to pass this legislation and that there is no
    time for studies. Studies could have been done by now but for the fact
    that RCM adamantly opposes such studies.
        In fact, in the USDA/Forest Service's prior testimony on H.R. 1904
    in the House Subcommittee on National Parks, Forests and Public Lands,
    Associate Chief of the Forest Service, Mary Wagner, observed that the
    Forest Service lacked ``an understanding of the impacts the proposed
    mine will have on local and regional water supplies, water quality, or
    possible dewatering of the area. `` Ms. Wagner also warned that there
    had yet to be any ``studies or assessments'' of the water supplies,
    though she noted that this is information that the Forest Service would
    require under NEPA if NEPA were properly utilized before the exchange.
    However, Ms. Wagner warned that, under H.R. 1904, ``NEPA analysis after
    the exchange would not allow the Forest Service to recommend
    alternatives since the exchanged parcel would already be in private
    ownership.''
        The gross depletion of the local aquifers and the local springs,
    seeps and other water supplies of the Oak Flat area and neighboring
    communities of Globe, Superior, Miami and others, cannot be remediated
    by ``banking'' Central Arizona Project water elsewhere, including in
    storage facilities near Phoenix and in Pinal County.
        Ironically, at the same time that ITCA and other Indian tribes,
    nations and communities have raised these and related concerns before
    Congress, RCM has maneuvered and manipulated political interests in
    Arizona to change laws and regulations which have been in place for
    decades in order to except itself from vital public safeguards and
    conditions normally used to protect Arizona's water supplies. See,
    e.g., H.B. 2289, 49th Leg., 2d Reg. Sess. (Ariz. 2010); H.B. 2617, 49th
    Leg., 2d Reg. Sess. (Ariz. 2010); S.C.R. 1046, 49th Leg., Reg. Sess.
    (Ariz. 2010).
        This Committee should oppose H.R. 1904. The United States should
    maintain federal ownership of these lands and exercise its federal
    control necessary to ensure that the surface water and ground water
    supplies of this region are protected in both quantity and quality, and
    that federal, tribal, private, and public water rights are protected in
    perpetuity from the interference, diminishment and degradation
    presented by this massive mining project.
          h.r. 1904 requires a mandatory conveyance of federal lands
                           circumventing federal laws
        H.R. 1904 dictates that the Secretary of Agriculture convey the
    federal lands to RCM within one year of enactment of the Act after
    which time a vast majority of federal laws will no longer apply because
    the lands will become private lands, not federal lands. Section 4(i) of
    the bill states, ``the land exchange directed by this Act shall be
    consummated not later than one year after the date of enactment of this
    Act. `` (Emphasis added). Similarly, Sec.4(a) states, ``the Secretary
    is authorized and directed to convey to Resolution Copper, all right,
    title, and interest of the United States in and to the Federal land''
    when RCM offers to convey the non-federal lands to the United States.
        There is nothing in H.R. 1904 that calls for Congress or the USDA/
    Forest Service to review the proposed land exchange itself, prior to
    RCM's acquisition of the Oak Flat lands. H.R. 1904 fails to require or
    even permit the Secretary to take a ``hard look'' at the land exchange
    itself under NEPA or other laws, before the exchange is consummated,
    and seemingly fails to vest any discretion in the Secretary of
    Agriculture to consider possible alternatives to the exchange. H.R.
    1904 also does not call for or permit the mitigation of impacts related
    to the land exchange and it would not permit the Secretary to avoid
    consummating the exchange should the Secretary determine, under FLPMA
    and other laws, that the exchange is a bad deal for the American
    taxpayer or the American public or in the event he finds that the
    religious, environmental, cultural, water supply and other harms of the
    mining project are simply too great.
        Further, HR. 1904 is contrary to various laws, policies, and
    Executive Orders, such as Executive Order 13175, that direct federal
    land managing agencies to engage in meaningful formal consultation with
    interested Indian tribes and that protect and preserve sites that are
    sacred to American Indians, such as the First Amendment of the United
    States Constitution, the Religious Freedom Restoration Act, the
    American Indian Religious Freedom Act, the Archeological Resources
    Protection Act, the National Historic Preservation Act, the American
    Indian Graves Protection and Repatriation Act, and Executive Order
    13007. None of these laws, policies, or Executive Orders would apply
    after the federal lands are conveyed to RCM under H.R. 1904.
          h.r. 1904 contains sham nepa requirements after the exchange
        The limited ``NEPA'' process outlined by Sec. 4(j) of H.R. 1904
    (which is to be conducted only after the lands are exchanged) is little
    more than a futile exercise on the part of the Secretary. Under H.R.
    1904, the Secretary would have no discretion to exercise any meaningful
    authority over RCM's mining plan of operations or mining activities on
    private land after an the exchange, absent a federal nexus. There is
    also no requirement in the bill for the Secretary to examine the
    direct, indirect and cumulative impacts of interim exploratory
    activities, pre-feasibility and feasibility operations, or mine
    facility construction that will be conducted by Rio Tinto after the
    exchange, but before production of commercial quantities of minerals.
    Sec. 4(f) mandates that the Secretary ``shall'' provide RCM with a
    special use permit within 30 days of enactment of the Act to engage in
    mineral exploration activities underneath the 760-acre Oak Flat
    Withdrawal and, within 90 days, the Secretary is required to allow RCM
    to begin mineral explorations within the Oak Flat Withdrawal itself.
        In fact, under H.R. 1904, the integrity of Oak Flat could be harmed
    so substantially by exploratory activities before the limited NEPA
    requirements found in Sec. 4(j)(2) are triggered, that any NEPA review
    conducted upon the submission of the mining plan of operations would
    have little to no benefit in any event. Similarly, the Secretary would
    also seemingly lack any authority under this bill to even consider
    alternatives to these interim activities, which may include
    alternatives necessary to protect the integrity of Oak Flat as a
    traditional cultural property and sacred site, including its water
    resources, landscape, plants and ecosystems. Allowing the immediate
    exploration on and under Oak Flat prior to the NEPA review contemplated
    by Sec. 4(j) will constitute an ``irretrievable commitment of
    resources'' in contravention to NEPA.
        Under H.R. 1904, there is no definition of ``mining plan of
    operations'', and there is nothing to make clear what form the ``plan
    of operations'' required by Sec. 4(j)(1) of the bill would take, as
    this term is not tied to the requirements of 36 C.F.R. Part 288. There
    are no guarantees that the ``plan of operations'' provided by RCM will
    be sufficiently detailed or contain a complete description of the type
    of mining to be conducted on the lands, the subsurface information for
    the area, the length of operations, or the measures that RCM will take
    to meet the environmental and cultural resources protections that would
    normally be required by the law if these lands were not exchanged into
    private ownership.
        Deputy Chief of the U.S. Forest Service, Joel Holtrop, has warned,
    in response to prior legislation for this land exchange, that a plan of
    operations which contains, in particular., subsurface information is
    ``essential in order to assess environmental impacts, including
    hydrological conditions, subsidence, and other related issues.'' See
    Deputy Chief of the U.S. Forest Service, Joel Holtrop, August 2009,
    written response to questions by the Senate Subcommittee on Public
    Lands and Forests on S. 409. However, H.R. 1904 would not provide the
    Secretary with sufficient discretion or authority to reject the plan of
    operations submitted by RCM if the information contained in the plan is
    insufficient to conduct even the limited review called for under Sec.
    4(j)(2) of the bill. Similar concerns were expressed by the U.S. Forest
    Service in their testimony on H.R. 1904 on June 14, 2011, when
    Associate Chief of the Forest Service, Mary Wagner, noted that the
    Department could not support the bill as written because, among other
    flaws, H.R. 1904 ``limited the discretion'' of the Forest Service under
    NEPA and because it would ``preclude the Forest Service from developing
    a reasonable range of alternatives to the proposal and providing the
    public with opportunities to comment on the proposal.'' These concerns
    were echoed during this same hearing by BM Deputy Director Burke.
        The Secretary is also only given 3 years under H.R. 1904 to conduct
    his review after submission of a ``plan of operations.'' Under this
    limited time frame, the Secretary would have little time to demand that
    Rio Tinto refine its plan, even if this was necessary to conduct a
    meaningful review, rendering this provision a de facto waiver for RCM
    to comply with federal laws.
        Indeed, USDA Secretary Vilsack has previously objected to similar
    sham NEPA provisions contained in previous legislation for this land
    exchange (S.409, 111th Congress), warning:

              The purpose of a requirement [in S.409] that the agency
            prepare the EIS after the exchange, when the land is in private
            ownership, is unclear because the bill provides the agency with
            no discretion to exercise after completing the EIS. If the
            objective of the environmental analysis is to ascertain the
            impacts of the potential commercial mineral production on the
            parcel to be exchanged, then the analysis should be prepared
            before an exchange, not afterwards, and only if the agency
            retains the discretion to apply what it learns in the EIS to
            its decision about the exchange. It seems completion of the
            exchange prior to the EIS would negate the utility of the EIS.
            (Emphasis added).

        Finally, H.R. 1904 does not allow for the preparation of a
    supplemental EIS document if additional review is called for in order
    to examine the direct, indirect and cumulative impacts of future
    activities by RCM. Sec. 4(j)(2) makes clear that the Secretary may only
    use the single environmental review document which is to be prepared
    within 3 years of the plan of operations as the basis for all future
    ``decisions under applicable Federal laws, rules and regulations
    regarding any Federal actions or authorizations related to the proposed
    mine or plan of operations.''
        In sum, the ``NEPA'' provisions contained in H.R. 1904, do not
    comply with the purposes of NEPA and they fail to vest any real
    discretion in the Secretary of Agriculture to address (or even
    meaningfully consider) the many concerns presented by the block cave
    mining operation proposed for this place.
     the rcm promise of significant jobs creation in the local economy is
                     not worth the destruction of oak flat
        The ITCA, like all Americans in today's difficult economy,
    recognizes the need for job creation; and, while ITCA member tribes are
    working hard to create jobs and other economic opportunities on their
    Reservations and for the benefit of their surrounding communities, the
    ITCA understands that leaders of the San Carlos Apache Tribe and the
    Fort McDowell Yavapai Nation (among others) have been told by their
    Elders that any job opportunities that might be created by the proposed
    mine are not worth watching the destruction of Oak Flat, especially
    given that preservation of tribal religion, culture, and sacred sites
    is directly tied to preserving tribal identity and health. Further, the
    promise of jobs (especially the ``boom and bust'' jobs mining provides
    in the region) is also not worth risking the potential harm this
    massive mine presents to the drinking and groundwater supplies of the
    region--in particular the groundwater supplies that support the western
    side of the San Carlos Apache Reservation. Without a source of clean
    and healthy water, the Apache People will lose a means to sustain their
    lives and livelihoods on the Reservation as a permanent homeland.
    Neighboring communities of Globe, Superior, Miami and others could not
    survive the loss of this water supply needed to sustain the local
    economy and support local jobs.
        We also understand that the proposed mine is likely to be highly
    automated, require advanced degrees to work there, and likely will be
    run from a remote operating center far away from the San Carlos Apache
    Reservation or the Town of Superior, making the promise of jobs in
    exchange for the destruction of Oak Flat questionable at best. Further,
    RCM admits that it does not even have the technology it needs to
    extract the ore given how deep beneath the Earth the ore is and that it
    may take at least a decade to develop this technology. Thus, RCM's
    claims that significant number of jobs will be created in the region in
    the short-term are questionable.
        If RCM does build and operate the mine as they propose, the
    potential negative impact to the local economy (including on the nearby
    San Carlos Apache Reservation) through a loss in recreation and
    tourism, particularly ecotourism and heritage tourism, could be
    substantial, as the area of Oak Flat and the surrounding lands of the
    Tonto National Forest will be destroyed by the mine. In 2009 alone,
    detailed direct travel impact estimates for Pinal County totaled $421
    million dollars, with over $16 million spent by those visiting the
    nearby campground areas. See Arizona Travel Impacts 1998-2009p, July
    2010 Report, Arizona Office of Tourism, Phoenix, Arizona. Many of these
    dollars were spent in and around the area of this proposed mine.
        The loss to the economy could be even greater as the mine is likely
    to deplete and contaminate billions of gallons of water from the
    Superior area and potentially the San Carlos Reservation, leaving these
    nearby communities with a limited water supply, without which, any hope
    of future economic development will have little chance.
        past environmental and human rights record of rio tinto and bhp
       billiton provide a frightening window into the future conduct of
                               resolution copper
        The sub-standard environmental track record and history of shameful
    human and labor rights practices by Rio Tinto and BHP Billiton are well
    known. Resolution Copper Mining (RCM) is a joint venture of foreign
    mining giants Rio Tinto and BHP Billiton.
        Both companies' operations over the years have left a wake of
    environmental destruction, human rights complaints, and lawsuits filed
    worldwide. Here in the United States, the Greens Creek Mine in Alaska
    (owned by Rio Tinto and two other companies) is alleged to be that
    state's second largest discharger of toxic waste, releasing 59 million
    pounds of toxic chemicals in one year, and violating the Clean Water
    Act 391 times. In the United Kingdom, Rio Tinto's Capper Pass smelter
    dropped an estimated 1.3 pounds of lead and other emissions on area
    residents each week during its operation, leading to a settlement
    agreement with hundreds of claimants in which the company refused to
    accept blame, but provided compensation to those with cancer and other
    illnesses.
        On the other side of the world, current and former residents of
    Papua New Guinea were compelled to file suit in federal court against
    Rio Tinto, alleging violations of international law, including war
    crimes and crimes against humanity in Rio Tinto's operation of a large-
    scale mine in that country. Just last fall, the United States Ninth
    Circuit Court of Appeals revived this lawsuit when it reversed a lower
    court's dismissal of certain of these claims, including those related
    to the complaint's allegations of ``purposeful conduct undertaken by
    Rio Tinto with the intent to assist in the commission of violence,
    injury, and death, to the degree necessary to keep its mines open.''
        In relation to another mining operation in Papua New Guinea,
    villagers sued BHP Billiton for more than $4 billion in damages for the
    destruction of the Ningerum people's traditional lands in which they
    have lived since time immemorial. BHP Billiton eventually was forced to
    abandon the destructive mining project after studies showed that the
    operation was causing great environmental harms, but the company is
    accused of failing to oversee that the project was properly managed
    upon its departure. Villagers may no longer be able to safely eat
    locally harvested fish or food grown from their own gardens. It is
    estimated that it will take 300 years to clean up the area.
        More recently, Rio Tinto locked out 570 miners from its borates
    mine in Boron, California. For 107 days, the miners and their families
    struggled to make ends meet without a paycheck from Rio Tinto. The
    company allegedly locked out the miners in retaliation for their
    refusal to agree to a contract that threatened to turn decent, family
    and community-supporting jobs into part-time, temporary or contracted
    jobs. Rio Tinto brought in replacement workers to do the jobs of
    longtime, experienced miners, some of whom have worked at the mine and
    processing plant for 30 to 40 years. It appeared that Rio Tinto was
    simply using the replacement workers to help the company starve out the
    locked-out families. However, after Rio Tinto got word that their
    product would not be shipped out of the docks because it was ``scab''
    cargo, they decided to negotiate with the miners and on May 24, 2010,
    the miners returned to work. And finally, in the House of
    Representatives Hearing on H.R.1904, serious concerns were voiced over
    potential Rio Tinto connections to Iran. These connections need to be
    clarified.
        It is often stated that history is prophecy. In this case, the
    historical conduct of Rio Tinto and BHP Billiton is the best predictor
    of future behavior, and certainly this conduct provides no assurances
    that these companies will keep their promise to protect Oak Flat,
    Apache Leap and the water supplies and ecosystems of this region or to
    preserve the environment and respect the traditional culture and
    religious values of American Indians. Indeed, there are no enforcement
    provisions in H.R.1904 to force these companies to keep their promises,
    such as bonding provisions, stiff penalties, or statutory causes of
    action.
    the 20 member tribes of the itca oppose h.r. 1904, s. 409, and any and
        all legislation that would trade these lands to rcm for mining
                                   interests
        ITCA continues to oppose H.R. 1904, S. 409, or any other
    legislation that would convey Tribal ancestral lands at Oak Flat to a
    private company that will destroy a holy and sacred site of ITCA member
    Tribes.
        ITCA also understands that the purpose of the current hearing is to
    consider the text of S. 409, as reported by the Committee during the
    111th Congress. The 20 member Tribes of the ITCA also opposed S. 409,
    as marked up in the 111th Congress, for the following reasons: (1) S.
    409 did not contain any guaranteed protections for areas of significant
    religious, historical, cultural, and archeological value to Indian
    tribes and Indian people located on the federal lands even if the
    Secretary makes a determination to convey the lands to RCM; (2) S. 409
    did not make it explicit that the Secretary must consider, in USDA's
    public interest determination, laws and policies critical to protecting
    sacred sites; (3) S. 409 did not contain any provisions to protect
    water sources in the area even if the Secretary makes a determination
    to convey the lands to RCM; (4) S. 409 did not contain any provisions
    allowing for continuing government-to-government consultation after
    conveyance; (5) S. 409 did not provide any protections from impacts
    from mining activities for areas adjacent to the federal lands, such as
    Apache Leap, Gaan Canyon, and Queens Creek; (6) S. 409 did not provide
    for any penalty or bonding provisions in the event damages occur due to
    RCM's activities and did not contain a cause of action for suit in the
    event there is harm to the land, water, or sacred sites due to RCM's
    mining activities; and (7) S. 409 was unclear on whether RCM's mining
    plan of operation must be submitted for NEPA and other environmental
    review and whether mitigation would be required.
                                   conclusion
        We appreciate this opportunity to provide testimony to the
    Committee. Again, ITCA continues to oppose S. 409, H.R. 1904, and any
    other legislation that would convey the Tribal ancestral lands commonly
    referred to as ``Oak Flat'' to RCM for mining that would destroy a
    sacred site of tribes and Indian people. If enacted, H.R. 1904 will
    permanently destroy Oak Flat and possibly surrounding areas of
    importance to tribes and Indian people. The area will never recover
    from RCM's mining activities. In other words, H.R. 1904 is like
    Pandora's Box. Once you open it, you can not undue it.
        With the Committee's permission, I would like to submit for the
    hearing record all the letters and resolutions we have received from
    tribes and tribal organizations across the country opposing H.R. 1904.
                                  attachment 1
                                                      February 6, 2012.

    Tonto National Forest,
    Globe Ranger District, 7680 S. Six Shooter Canyon Rd., Globe, AZ.
        Tonto National Forest Supervisor,

        This letter is to inform you that we and our families are very
    proud to announce the dates of our upcoming Apache Sunrise ceremonial
    dance which is to be held at Oak flat. The dates we have scheduled are
    May 2 through May 16, 2012. We are requesting to meet with you and your
    office as soon as possible to discuss arrangements so that our use of
    Oak flat is a priority among any and all requests that may be submitted
    for the area.
        As you are aware, Oak flat was and has always been the home to us,
    Apaches, as well as being a sacred place that Usen(God) had blessed the
    world in the beginning of time. History, both written and oral, tell of
    the wrongs that took place, the extermination and removal of our people
    to the reservation as prisoners of war, this being mandated because of
    federal policies to remove us from this place. Our Sunrise dance is one
    of the oldest religious practices in North America which celebrates a
    young woman coming of age. The ceremony brings teaching of life's
    blessings for the girl, and for all people, it brings blessings,
    healing and visions of things to come. The ancient songs are sung to
    communicate with all God's creations. We are very fortunate, and
    blessed that the religion was able to survive and overcome all the
    obstacles and forces that were against it. We conunend those before us
    who made every effort in keeping and preserving Oak flat as a sacred
    place, those who prayed, those who came for blessings, the holy people,
    the medicine men, the elders, and the Mount Graham sacred runners.
        So this is to notify you that we will be in Oak flat to exercise
    our religious rights and human rights, as your forefathers claimed for
    all U.S. citizens. We appreciate your assistance in advance.
                Respectfully,
                                                Loren Pina, Sr.
                                              Michelle Randall.
                                                 Vansler Nosie.
                                                  Elaina Nosie.
                                  attachment 2
    TRIBAL NATIONS & ORGANIZATIONS, and other Groups that oppose H.R. 1904,
            the Southeast Arizona Land Exchange and Conservation Act of
            2011 (as of 2.8.12)
    1. National Congress of American Indians
    2. Inter Tribal Council of Arizona, Inc.
    3. San Carlos Apache Tribe
    4. United Southern and Eastern Tribe, Inc.
    5. Jicarilla Apache Nation
    6. Pueblo of Tesuque
    7. Pueblo of Zuni
    8. White Mountain Apache Tribe
    9. Pascua Yaqui Tribe
    10. Yavapai-Apache Nation
    11. Susanville Indian Rancheria
    12. Ft. McDowell Yavapai Nation
    13. Arizona Mining Coalition
    14. Concerned Citizens and Retired Miner's Coalition
    15. Religious and Human Rights Organizations
    16. Concerned Climbers of Arizona
    17. Mescalero Apache Nation
    18. All Indian Pueblo Council
    19. Eight Northern Indian Pueblos
    20. Hopi Tribe
    21. Save the Scenic Santa Ritas Association
    22. Tohono O'odham Nation
    23. Azee Bee Nahagha of Dine Nation
    24. Karuk Tribe
    25. Affiliated Tribes of the Northwest Indians
    26. Navajo Nation
    27. Inter-Tribal Council of Nevada, Inc.
    28. Great Plains Tribal Chairman's Association
    29. Picuris Pueblo
    30. Ramona Band of Cahuilla

        The Chairman. Thank you very much. Let me start with a few
    questions.
        Mr. Cherry, has Resolution Copper made a determination as
    to whether the development of the mine is technically and
    economically feasible, or, if not, when would you expect to be
    able to make that determination?
        Mr. Cherry. Based on the studies that we have conducted
    over the last 7 or 8 years, the $750 million that we have
    spent, we believe that this project is technologically and
    economically feasible.
        The Chairman. All right. You indicated you are preparing to
    file your plan of operation or mine plan. Is that correct?
        Mr. Cherry. Correct. We are nearing the completion of our
    studies, and by the second quarter of this year, we will be
    prepared to submit a mine plan of operations for the entire
    project site and area, including the area of the land exchange.
        The Chairman. Right. That would be submitted to the Forest
    Service----
        Mr. Cherry. That is correct.
        The Chairman [continuing]. For consideration? Then what
    authority do they have once that is submitted, as you
    understand?
        Mr. Cherry. That is the formal NEPA EIS environmental
    impact statement permitting process that they go through. So,
    under the National Environmental Policy Act, whatever authority
    they have under that act to follow a NEPA permitting process,
    that is the process that we are entering into.
        The Chairman. OK. But you are not willing to enter into
    that same process with regard to the land that is the subject
    of this legislation, as I understand it. You would like to have
    this land transferred to the company without NEPA having been
    complied with, and then go ahead and do a NEPA process on the
    remainder of the land that is required for the mining
    operation? Is that right?
        Mr. Cherry. We need the certainty that comes with a
    directed exchange, not an administrative decision down the
    road. In order to invest that much money, we need that business
    certainty. We are not trying to sidestep NEPA or any other
    environmental provisions.
        The legislation is clear. It does not waive any other
    environmental statutes or provisions that are on the books
    right now. We intend to fully comply with all those. They are
    still applicable, including section 106 consultation. That is
    all still there. That all still needs to happen.
        The Chairman. I guess that the part that I am not able to
    sort of comprehend very well is that NEPA, the way Congress
    enacted NEPA requires the preparation of an environmental
    impact statement before any ``irreversible and irretrievable
    commitment of resources.'' The thought was that that would be
    an appropriate thing to have done, that environmental
    assessment or analysis, before the transfer of the property.
    But you say that is not an acceptable course. You think the
    property needs to be transferred and become privately owned by
    the company before NEPA should be invoked.
        Mr. Cherry. Correct. The way we look at this is that by the
    simple act of exchanging properties, there is not an
    environmental impact of switching ownership on those
    properties. But that is the certainty we need to make the
    investments to go forward.
        Nevertheless, going through the NEPA process to construct
    and operate that mine, we have to do that. We fully expect to
    do that, and we need to make sure that we do that in the right
    way. We are very confident we can do that and receive the
    authorization to move the mine forward under NEPA on the mine
    project.
        The Chairman. If you are confident that you can do that and
    persuade the Secretary, the Forest Service, to go ahead once
    the NEPA analysis has been done, why would you not be confident
    that you could persuade the Secretary similarly with regard to
    this transfer of property?
        Mr. Cherry. It is as Senator Murkowski mentioned. It is a
    function of time. We have been at this a long time. We can do
    certain things in parallel with additional engineering studies
    and some construction in some areas while we are doing this.
    But dragging that exchange--excuse me, dragging that public
    interest determination out for an unknown period of time with
    an uncertain outcome does not give us the confidence we need to
    make that investment.
        The Chairman. But now, you are not able to, as you
    understand it, you are not going to be able to proceed to do
    any mining unless you are successful in completing the NEPA
    analysis and persuading the Secretary that this is an
    environmentally acceptable thing to do. Is that right?
        Mr. Cherry. That is correct. The project site will still
    have to--it is essentially surrounded by Forest Service land.
    In order to connect conveyors and pipelines and utilities,
    there will be connected actions that will still have to be
    approved by the Forest Service. Until those can be completed,
    we would not be able to move the--to actually begin production
    of the ore.
        The Chairman. It just seems to me that if that is the case,
    that you are confident you can gain that acceptance down the
    road. You are confident you can persuade the Secretary of
    Agriculture that this is in the public interest to proceed. It
    would seem you would have the same confidence that you could
    persuade the Secretary of Agriculture to proceed with the
    exchange. I am missing something obviously there.
        Mr. Cherry. Maybe the way to look at this is from the NEPA
    perspective. There is a process that you go through, and you
    can make your points, go through the process, have the
    hearings, everything you need to do, and you get to an end
    point in that, whereas the public interest determination, to a
    great extent, ends up being an arbitrary decision by a
    political appointee, and that is a risk that we just cannot
    afford.
        The Chairman. Let me try to understand that answer, and I
    will defer to Senator Murkowski while I am thinking about it.
    Thanks.
        Senator Murkowski. Let me just continue on with that, Mr.
    Cherry. You have been in this process for some time. You were
    aware that in the last Congress, if the Senate bill had passed,
    you would have been in a situation where you would have been
    subject to an arbitrary decision in terms of the process. I
    should not say it is an arbitrary decision, but in terms of
    certainty with the process, it clearly is not there when you go
    the administrative route.
        I asked Ms. Wagner this, how long it would take if you go
    through that process for the determination of the public
    interest finding. She indicated it could be a couple of years,
    maybe a few years. What did you estimate it would take in terms
    of timing?
        Mr. Cherry. We thought it would be at least 2 or 3 years to
    do that. But since that time we have learned more about our ore
    body. We have learned more about our project. We spent that
    additional funding, and based on what we know and how we want
    to move forward in this project, we absolutely need that
    certainty.
        I guess a specific example would be to the south of us by
    roughly 10 miles is the ASARCO Ray Mine. They have been
    pursuing an administrative land exchange to expand their mine
    for nearly 14 years and have not been able to get a
    determination to move that forward.
        Senator Murkowski. Fourteen years.
        Mr. Cherry. That is what scares us.
        Senator Murkowski. Yes, 14 years, and that is not only
    time, but as I mentioned earlier, that is considerable
    resources.
        Other than the administrative withdrawal of the Oak Flat
    campground land, am I correct that Resolution Copper could
    pursue this mine without legislation, without going this route,
    given that you--the extent of the patent and mining claims that
    you hold within the area? Is that correct that you could
    proceed without legislation?
        Mr. Cherry. Yes, there is that possibility.
        Senator Murkowski. Then if that were to proceed, what would
    happen to--and we got the nice brochure here that details the
    protections for Apache Leap and the surrounding areas. If you
    were to give up on this, if the Arizona delegation would say,
    look, this just is not worth it, or you all would say that is
    not worth it, what happens to these lands that have been
    singled out for protection then?
        Mr. Cherry. Essentially the company would be under no
    obligation to divest those properties. We would hang on to
    those properties for whatever purpose that we would need.
        Senator Murkowski. So, we would not then--we, the American
    public, would not see that benefit there in terms of----
        Mr. Cherry. That is correct.
        Senator Murkowski [continuing]. Having exchange for public
    lands. So, those would remain with the company to do whatever
    the company would want to do with it----
        Mr. Cherry. Yes.
        Senator Murkowski [continuing]. Is what you are saying.
        Mr. Chairman, I do not have any further questions. Yes, I
    do.
        Mr. Lewis, Senator McCain in his statement was really quite
    direct in terms of his frustration, I guess I will--I hate to
    use--put words in his mouth, but he appeared to me to be
    frustrated, and he specifically singled out the lack of
    willingness to sit down by the tribes with--I do not whether it
    is individuals such as Mr. Cherry or others with Resolution
    Copper. Can you just speak very quickly to what efforts have
    been made to sit down and try to work through some clearly
    controversial issues?
        Mr. Lewis. Sure. As you know, the trust responsibility of
    the United States as implemented through numerous Federal law,
    the executive orders, policies, calls for advanced government
    to government consultation on matters that impact Indian
    tribes. In regards to sitting down with Resolution Copper,
    Resolution Copper is a private company or vendor that wants
    what they want. They have no obligation to San Carlos or any
    other tribe.
        So, we are focusing on our government to government
    relationship, consultation trust responsibility with the U.S.
    Government to get these independent studies done that we have
    been asking for over the last several years. So, that is kind
    of why there has not been that direct relationship.
        Senator Murkowski. So, the tribes have not sat down with
    Resolution Copper.
        Mr. Lewis. No.
        Senator Murkowski. OK. I think that that is unfortunate,
    and I clearly understand that trust relationship, believe me.
    On so many of Alaska's issues, whether we are trying to advance
    development, it always comes down to consultation. Clearly you
    have got to have all the parties at the table. But it does
    sound to me like this is one area where if we could everybody
    at the same table, including Resolution Copper, including the
    tribes, perhaps we could work through some of these concerns
    here.
        Thank you, Mr. Chairman.
        The Chairman. Thank you.
        Senator Franken.
        Senator Franken. I guess I would kind of like to follow up
    on the ranking member's question. We both sit on the Indian
    Affairs Committee, an appointment I requested because of the
    value I place on protecting the rights of native peoples.
        This land exchange concerns me for a number of reasons. One
    major concern is the fact that it authorizes immediate mining
    exploration in an area that is considered sacred by Indian
    tribes. If this were not reason enough for concern, H.R. 1904
    would authorize this land exchange without meaningful
    government to government consultation between the U.S.
    Government and the affected Indian tribes. Such consultation
    was ordered, was promised, to fully recognize Indian tribes
    under Executive Order 13175, Consultation and Coordination with
    Indian Tribal Governments.
        I would be interested in hearing from Mr. Cherry why his
    company thinks that your land exchange is a special case that
    does not warrant meaningful consultation between governments,
    or is this setting a precedent for cutting out tribal
    governments from contentious decisions in the future?
        Mr. Cherry. My understanding of H.R. 1904 is that it does
    not waive any applicable statutes that are out there. So, under
    the National Historic Preservation Act, section 106, which is
    the consultation, the government to government consultation,
    that would still occur prior to the exchange happening.
        Senator Franken. That is not our reading, but, if the
    Secretary of Agriculture has absolutely no discretion over the
    land exchange, I am not sure how that would be a meaningful
    consultation. The Secretary cannot even negotiate alternate
    terms to the exchange that are not already outlined in the
    bill. The consultation, I think you are referring to in H.R.
    1904, is essentially just the U.S. Government telling the
    Indian tribes, this is how it is going to be. Is that your
    understanding, Mr. Lewis?
        Mr. Lewis. Yes. We think meaningful consultation with the
    government that would provide these independent studies that
    would be needed for the meaningful government to government
    consultation are in order here. Without those studies, without
    those independent studies, without looking into the economic
    impact, without looking into the environmental issues that may
    come with this type of project, it is hard to determine. It is
    hard to sit down and talk about, you know, what impacts this
    mining company would bring.
        Senator Franken. You know, look, I think we can all agree
    that creating American jobs is a good thing. Reducing our
    dependence on foreign minerals is a good thing. But we must do
    these things in the responsible way, and it baffles me that
    anyone could think it is a good idea to move ahead with a
    mining project without gathering the necessary information to
    make an informed decision and understand any potential
    consequences.
        Mr. Cherry, it is my understanding the Resolution Copper
    supported S. 409 when it came before this committee last
    Congress. You supported the idea of performing a NEPA study
    before going forward with the land exchange. If I understand
    you correctly, now you do not want a NEPA study prior to the
    exchange because you have invested more money in the project
    since 2009. You want certainty that the project will continue
    and nothing will slow or halt it, such as an unfavorable NEPA
    study. Is that correct?
        Mr. Cherry. The company did not oppose the requirements in
    S. 409 when it was before the committee last year. We are at a
    different place now. We are a couple more years down the road.
    We have spent an additional $300 million since then. We have
    learned more about the project, and as we get closer to the
    decision point to invest the $6 billion in this project, we
    need the certainty of that land tenure.
        We learned that a mine not that far from us had been trying
    to acquire a land exchange, and administrative exchange, for
    over 14 years and is still at it, that gives us not a lot of
    confidence in that process and in the public interest
    determination.
        Senator Franken. OK. But the purpose of a NEPA study is to
    use that information to make an informed decision, and then
    once it is done then you will have the information from the
    NEPA study that you can use.
        But I take it then essentially the answer to my question is
    yes. So, and I understand. Thank you. I really appreciate that,
    and I appreciate both your testimony. Thank you both, Mr.
    Cherry and Mr. Lewis.
        The Chairman. I think maybe Senator Risch is coming back, I
    am not sure. But while we are waiting, let me ask a couple more
    questions.
        Mr. Cherry, let me just be clear in my own mind. You are
    getting ready to file a mine plan with the Department of
    Agriculture, with the Forest Service, and this will be in the
    next few months. Is that accurate?
        Mr. Cherry. We are targeting the second quarter of this
    year for that plan.
        The Chairman. The second quarter? So, the 1st of April to
    the 1st of July, sometime in there you will file a mining plan.
    If the Secretary of Agriculture does the NEPA analysis, which
    will be required under that, and determines that there is a
    problem, and that it is not in the public interest to give you
    the rights of way you need to run lines and pipes or whatever
    you need to operate that, then presumably that would become a
    problem for your future plans for mining this area. Am I right
    so far in that?
        Mr. Cherry. Yes, but there is a process to address those
    concerns under NEPA.
        The Chairman. I guess the question is, you do not think
    there is a similar process to address concerns that might arise
    in a NEPA analysis related to the exchange of the land?
        Mr. Cherry. We believe that our environmental designs for
    this project will support the project moving forward. We have
    no problem with NEPA. Our concern is the public interest
    determination, the uncertainty that is created by that
    determination.
        The Chairman. But is there not a public interest
    determination made as part of the NEPA process that follows the
    review of your entire mine plan?
        Mr. Cherry. My understanding is, yes, there is. But it is
    the acquisition of the land tenure that gives us the confidence
    to move forward into that process and the NEPA for the entire
    mining project.
        The Chairman. Let me ask you about when we had our hearings
    before on this, in 2009, we asked about the impact the mine
    might have on the water in the area. Resolution Copper at that
    point responded that it was continuing to collect baseline
    information. It was seeking to install some additional
    monitoring wells on national forest land to gather the
    information necessary to complete the studies. Can you tell us
    when those wells were drilled, when you would expect those pre-
    feasibility groundwater studies to be complete, or maybe they
    are complete. What is the status of that?
        Mr. Cherry. A couple of answers to your question. That is a
    lot of the work we have been doing the last couple of years.
    The money that we spent is directed toward environmental and
    engineering studies on the project. So, we believe that we will
    have pulled together enough data, studies, modeling results, et
    cetera, to put together this mine plan of operations and submit
    that so everyone can see the data and the modeling and offer
    their opinion or their critique or support of that application.
        So, we have essentially completed the well installations.
    We are gathering data. We are going to continue to gather data
    from those wells for decades. But we have enough information
    now to move the permitting process forward. That is kind of on
    the front end.
        The other thing that I would like to note because I know
    there have been some concerns expressed about water quantity
    issues. Our goal on the project is to have enough water banked
    in hand before we start this mining project. We have already
    barred 50 percent of our long-term water needs for the 40-year
    life of the mine.
        The Chairman. Let me ask you on this Apache Leap issue,
    this provision that I referred to before in the House passed
    bill, H.R. 1904, that says that it exempts Resolution Copper's
    mining activities. As I understand, it exempts those from the
    protections of Apache Leap. What is your understanding of that,
    Mr. Cherry?
        I asked Ms. Wagner about this, and she was saying that
    there are protections so that even if the company were to
    acquire this land and become a private land holder of this
    land, it would be limited in what it might do that could impact
    Apache Leap.
        My understanding is that Resolution Copper would be subject
    to civil liability for damages that it did, but there would be
    no ability on the part of the Forest Service or the Federal
    Government to in any way restrict what the company could do on
    its private land prior to those damages occurring. Am I wrong
    about that?
        Mr. Cherry. My interpretation of this particular section,
    it applies to things such as hours of operation, for example.
    There can be a constraint put on the hours of operation for the
    mine site out there, those type of activities.
        The Chairman. So, your thought is that it is not intended
    to convey the idea that the mining operations could go ahead
    and damage Apache Leap. You are saying that that would still be
    prohibited.
        Mr. Cherry. Absolutely. We would not--we have committed to,
    and that is part of the reason why we included that 110 acres
    of our own private land to be added to Apache Leap. We fully
    intend to protect Apache Leap. Even our mine design where we
    are starting with the mining activities as far away from Apache
    Leap and slowly moving in that direction so that we can control
    and manage those to ensure that protection.
        The Chairman. Let me ask Mr. Lewis, there is language in
    H.R. 1904 that requires the Secretary of Agriculture to engage
    in government to government consultations with affected tribes
    concerning issues related to the land exchange within 30 days
    of enactment of the statute of H.R. 1904. Does that give you
    any confidence that you are going to be adequately consulted?
    Have you focused on that provision?
        Mr. Lewis. I do not think as president of Inter Tribal
    Council of Arizona and the 20 tribes that that represents, I
    think that question would probably be best under the
    consultation process be for San Carlos Apache, which is, you
    know, the tribe that is being affected. Obviously 30 days at
    that point concerns tribes as not being an adequate amount of
    time.
        The Chairman. OK. I guess the other concern that I had in
    reading that was even if the Secretary is directed to consult
    with you, the Secretary, upon the enactment of this
    legislation, would have no authority to in any way change the
    conditions of the transfer of the land. So, it would not really
    matter a whole lot what San Carlos raised by way of objections
    at that point. Is that your thinking?
        Mr. Lewis. I believe that would be our thinking. Once that
    land is transferred, privatized and taken away, those Federal
    protections that when it is under the Federal guidelines would
    be diminished.
        The Chairman. All right. Mr. Cherry, I did have another
    question, which I may just submit for the record and see if you
    could get us an answer back. It's related to an issue that was
    raised in the House of Representatives with regard to Rio
    Tinto's partnership with an Iranian foreign investment company
    in a mine in Namibia. I do not think that is central to our
    hearing today, but it is one that our Banking Committee, I
    think, has been focused on somewhat. So, I wanted to just
    submit a question for the record, and maybe you could get us an
    answer back on that.
        Mr. Cherry. We would be happy to clarify that for you.
        The Chairman. All right. That would be helpful.
        Senator Franken, did you have additional questions?
        Senator Franken. No, thank you.
        The Chairman. All right. I gather that Senator Risch may
    have left, so why don't we conclude the hearing? Thank you both
    very much for being here. I think it has been a useful hearing.
        Mr. Lewis. Thank you.
        [Whereupon, at 11 a.m., the hearing was adjourned.]
                                   APPENDIXES

                                  ----------

                                   Appendix I

                       Responses to Additional Questions

                                  ----------

          Responses of Mary Wagner to Questions From Senator Murkowski
        Question 1. Would you have your lands staff develop a spreadsheet
    of every administrative land exchange proposal received hy the agency
    over the last decade and provide the following information: 1) when
    (what month and year) the agency first received the exchange proposal;
    2) where each of those administrative exchanges are in your process;
    and if completed the monthand date the lands in each exchange were
    transferred to the receiving parties.
        Answer. See Attached Spreadsheet.
        Question 2. Would you have your lands staff develop a spreadsheet
    of every legislated land exchange signed into law by Congress in the
    last two decades and provide the following information: 1) when (what
    month and year) Congress directed, or authorized each land exchange
    addressed in each lands related bill it passed; 2) where each of those
    exchanges are in your process; and if completed the month and date the
    lands in each exchange were transferred to the receiving parties. Also,
    please indicate whether the exchange was directed or authorized.
        Answer. See Attached document: Forest Service Land Exchanges and
    Conveyances by Public Law (1990 to 2012).
        Question 3. In your testimony under general concems you state that:
    ``It is the Administration's policy that NEPA be fully complied with to
    address all federal actions and decisions, including those necessary to
    implement Congressional direction.''
        Are you suggesting that if Congress makes a decision on public
    lands that this Administration should have the right to modify or
    qualify that decision under NEPA?
        Answer. In those situations where the decision made by Congress
    requires further Federal agency decisions to implement the
    Congressional direction, those subsequent agency implementation
    decisions would determine the scope of any Federal agency review and
    consider the statutory requirements and the need for any implementing
    conditions.
        Question 4. Are you saying that NEPA, which is the law that we in
    Congress wrote, is somehow superior to Congresses constitutional
    authority to legislate on the public lands?
        Answer. No
        Question 5. Is it your belief that NEPA applies to Acts of
    Congress? Could provide this Committee with the specific language from
    the CEQ regulation that you believe imposes NEPA on laws passed by
    Congress?
        Answer. NEPA applies to Federal agencies and not to Congress--the
    CEQ Regulations Implementing NEPA at 40 C.F.R. Sec.  1508.12 clearly
    state that NEPA does not apply to Congress. However, a Federal agency
    is required by law to analyze the impacts of a federal action as part
    of the process of implementing congressional direction unless Congress
    provides otherwise.
        Question 6. The land exchange process, as contemplated in the old
    text to S. 409, would give the Secretary the responsibility to
    determine if the exchange contemplated by the bill serves the public
    interest. The Secretary may only complete the exchange if a
    determination is made that the public interest will be well served. It
    is my understanding that the agencies typically apply the Federal Land
    Policy and Management Act and its implementing regulations at 36 CFR
    254.3(b)(l) to determine whether a land exchange is in the public
    interest.

              a. Would this Administration apply FLPMA and its implementing
            regulations to the Secretary of Agriculture's public interest
            determination on this land exchange?

        Answer. Yes. The language in section 206 of the Federal Land Policy
    and managment Act (FLPMA) (P.L. 94-579 as amended) specifically
    requires the Secretary to determine that the public interst would be
    well served. Therefore, 36 CFR 254.3 is required and the Secretary
    shall carry out the exchange in accordance of Sec 206 of FLPMA,
    therefore all steps of the exchange process are to be followed,
    including NEPA.
        Question 6b. There is a non-exclusive list of public objectives and
    resource factors to be considered in making the public interest
    determination at 36 CFR 254.3(b)(1). Please explain how the Secretary
    of Agriculture would apply the non-exclusive list of public objectives
    and factors, the relative weight the Secretary would assign to each
    objective or factor, and what other factors, if any, would the
    Secretary apply to make this determination?
        Answer. Land exchanges are very expensive and time consuming due to
    the conveyance of public land. The intent of the public interest
    determination is to conduct a preliminary analysis of the resource
    effects of a land exchange and the benefits to the public as a whole
    versus a sole benefit to the proponent. Evaluating the factors and
    related issues helps the agency determine the worthiness of exchange
    and committing the resources to proceed with the proposal. Questions to
    be considered would include:

              1) Would the land exchange be in compliance with the
            applicable forest land and resource management plan?
              2) What are the resource benefits of the land coming into
            federal ownership equal or enhance the resources leaving
            federal ownership?
              3) Does consolidation of Federal ownership and overall
            reduction of boundary management produce a cost savings?
              4) Is there overall public/political/Tribal and local
            government support?
              5) Are title and the description of the estates clean?
              6) Are there adequate funds and staffing to process the
            exchange?
              7) Does a preliminary market valuation estimate that if the
            proposed properties to be exchanged are close to being equal in
            value?

        Another key factor is in 36 CFR 254.3 (2) (ii) the intended use of
    the conveyed Federal land will not substantially conflict with
    established management objectives on adjacent Federal lands, including
    Indian Trust lands. The agency would need to evaluate these factors to
    determine if the public interest is well served by conducting the
    Southeast Arizona Land Exchange.
        Question 7. During the bearing there seemed to be some confusion
    about compliance with the National Environmental Policy Act and making
    a determination that the public interest will be well-served by the
    exchange or as proposed in

              a. Is it the Administration's position that a decision
            arrived at through an environmental analysis under NEPA, is the
            ``same as'' a public interest determination in a land exchange?
            If so, please explain the basis for that assertion. If not,
            please explain bow the two are different

        Answer. No. To the extent that a land exchange could potentially
    have significant environmental impacts, the public interest
    determination in a land exchange would include consideration of
    environmental, economic, and social consequences. No public interest
    determination is the same as a NEPA review and a NEPA review can inform
    the broader public interest determination. Thepurpose of NEPA is to
    ``insure the integrated use of the natural and social sciences and the
    environmental design arts in planning and in decision-making which may
    have an impact on man's environment;'' (Sec. 102 (A), 42 Sec.  4332)

                                     ______

         Responses of Ned Farquhar to Questions From Senator Murkowski
        Mr. Farquhar, in your testimony under general concerns you state
    that: ``It is the Administration's policy that NEPA be fully complied
    with to address all federal actions and decisions, including those
    necessary to implement Congressional direction.''
        Question 1. Are you suggesting that if Congress makes a decision on
    public lands that this Administration should have the right to modify
    or qualify that decision under NEPA?
        Answer. The BLM is required by law to analyze the impacts of the
    federal action as part of the process of implementing the congressional
    direction unless Congress provides otherwise.
        Question 2. Are you saying that NEPA, which is the law that we in
    Congress wrote, is somehow superior to Congresses constitutional
    authority to legislate on the public lands?
        Answer. No.
        Question 3. Is it your belief that NEPA applies to Acts of
    Congress? Could you provide this Committee with the specific language
    from the CEQ regulation that you believe imposes NEPA on laws passed by
    Congress?
        Answer. The BLM is required by law to analyze the impacts of the
    federal action as part of the process of implementing the congressional
    direction unless Congress provides otherwise.
        Question 4. You state in your testimony, that many of the lands to
    be exchanged hold significant cultural value to Indian Tribes. You then
    list the Apache Leap, the Oak Flat Campground and Devil's Canyon as
    those culturally significant lands.

              a. You do understand, that Devil's Canyon is not part of the
            exchange and 110-acres of private land are being added to
            Apache Leap which is being retained in federal ownership,
            correct?

        Answer. It is our understanding that the tribes are concerned about
    the implications of mining on adjacent land and the effect that could
    have on Devil's Canyon.
        Question 5. You state in your testimony the numerous concerns the
    Tribes have raised that the ``legislation'' is contrary to laws and
    policies that direct the federal land management agencies to engage in
    formal consultation with Indian Tribes.

              a. In the opinion of this Administration are these concerns
            valid? Does the Administration share these concerns?

        Answer. The Administration believes that formal consultation with
    the tribes before the land exchange is completed, rather than following
    completion (as envisioned under H.R. 1904), provides for more
    meaningful consultation and coordination.
                                     ______

          Responses of Shan Lewis to Questions From Senator Murkowski
        In your testimony, you state that ITCA's opposition to land
    exchange is largely premised on the lack of ``meaningful'' government
    to government consultation with the tribes. Section 3(d) in the text of
    S. 409, from the last Congress includes a provision requiring
    government to government consultation before the Secretary makes a
    public interest determination.
        Question 1a. Would this provision from S. 409 provide the
    ``meaningful'' government to government consultation the tribes seek?
    Why or why not?
        Answer. To clarify, ``lack of ``meaningful'' government to
    government consultation'' is not the primary reason for ITCA's
    objections. ITCA opposes both H.R. 1904 and S. 409 for a number of
    reasons as expressed in ITCA's testimony, including the lack of
    meaningful government-to-government consultation with affected Indian
    tribes, nations and communities (see answer to question 3 below). ITCA
    is joined in this concern by numerous tribes and tribal organizations
    from across the country because the precedent H.R. 1904 could set with
    regard to Congress' protections of Tribal sacred sites. Tribal
    opponents who have passed Resolutions and sent in written opposition to
    H.R. 1904 include the National Congress of American Indians, the All
    Indian Pueblo Council, the Inter Tribal Council of Nevada, the
    Affiliated Tribes of Northwest Indians, the Great Plains Tribal
    Chairman's Association, the Eight Northern Indian Pueblos Council, the
    United South and Eastern Tribes, the Mescalero Apache Tribe, the Navajo
    Nation, the Jicarilla Apache Nation, the Pueblo of Tesuque, the
    Susanville Indian Rancheria, the Shoshone-Bannock Tribes, the
    Confederated Tribes of Siletz Indians, and the Puyallup Tribe.
        As you know, the United States' obligation to engage in government-
    to-government consultation with affected Indian tribes stems not only
    from language of E.O. 13175 pertaining to ``sacred sites'', but rather
    arises out of a broader trust obligation of the United States under the
    U.S. Constitution, certain statutes such as Section 106 of the National
    Historic Preservation Act, and other executive orders, presidential
    memoranda, regulations, department policies and manuals--all of which
    acknowledge the broad obligation of the United States to engage in
    meaningful government-to-government consultation on matters affecting
    Tribal interests, including the religious, cultural, historical and
    traditional interests of Indian tribes in Oak Flat.
        To further clarify, for consultation to be meaningful, it must be
    informed and it should take place with appropriate members of the
    United States government whom are involved in the decision making
    process. Thus, both parties should have sufficient information (such as
    the requested studies) to understand as best as possible the potential
    consequences of the action--here the potential enactment of legislation
    in the form of H.R. 1904 or S. 409 and the potential development of a
    large scale block cave mine at Oak Flat. Consultation also cannot be
    segmented and conducted on a piecemeal basis, but rather to be
    meaningful should involve consideration of the whole action to be
    undertaken. That is the intent behind the numerous executive orders,
    memoranda, Congressional Acts, etc.
        For a number of years, the ITCA, the San Carlos Apache Tribe and
    the Fort McDowell Yavapai Nation have requested that the United States
    perform advanced studies to determine the potential impacts of the mine
    on the water supplies of the region, the stability of the Earth's
    surface and the potential for surface collapse resulting from block
    cave mining at this place. These studies are also needed to understand
    the impact on federal reserved water rights for tribes and federal
    lands. Protecting the integrity of Oak Flat as a holy and sacred site
    requires this much. We believe Congress should ask the cognizant
    agencies and department to answer these questions through the necessary
    studies and analysis before Congress takes action on either H.R. 1904
    or S.409.
        Advanced consultation means that consultation should not come after
    the fact or so late in the process that input from the tribes will have
    little to no substantive impact on the outcome. Nor can they be
    meaningful if only parts of this legislation are consulted on and the
    timing is dictated by Congress as to specific inclusions and exclusions
    as to when Tribes should be consulted. Because this is a
    Congressionally mandated directed exchange meaningful consultation is
    cannot occur. This point was brought out in ITCA's recent testimony and
    in Tribal testimonies. Thus, consultation is only meaningful when the
    outcome is not pre-determined and the consultation process is conducted
    in good faith, where the concerns of the affected Indian tribes are
    considered and incorporated by the decision maker. ITCA does not
    believe that S.409 offers sufficient protections for the consultation
    process, in particular because consultation is only required after
    Congress has enacted legislation, not before, and because this
    legislation directs consultation in a segmented fashion at only certain
    steps in the process, for example only during the ``best interest
    determination'' pertaining to the land exchange (and not necessarily
    the mining project), and not with regard to the Resolution Copper's
    exploration of the Oak Flat Withdrawal after S.409 is potentially
    enacted under Sec. 3(g) of S. 409.
        Question 1b. What kind of government to government tribal
    consultation would the tribes deem adequate for this land exchange to
    be consummated?
        Answer. Please see ITCA Answer 1.a, above.
        Question 2a. It is my understanding that the U.S. Forest Service,
    through the Tonto National Forest, has been engaged in tribal
    consultation, both on a formal and informal basis, regarding the
    Resolution Copper mine project and activities in the land exchange area
    since as early 2004, and that this consultation continues. Formal
    Consultation was formally documented by the Forest Service from 2008 to
    2010 on Resolution Copper's Pre-Feasibility Activities Plan of
    Operations.
        Do the tribes challenge this consultation as a failure to meet
    tribal consultation requirements under applicable law? Please explain.
        Answer. The U.S. Forest Service, through the Tonto National Forest
    (``TNF''), has not engaged in meaningful ``tribal consultation'' with
    the ITCA regarding any legislation pending in Congress, including H.R.
    1904. Indeed, in a letter written from Secretary Vilsack to the ITCA,
    dated June 27, 2011, Secretary Vilsack explained that the Forest
    Service did not believe that Tribal Consultation over H.R. 1904 was
    called for saying, ``The Forest Service has not proposed the new
    legislation, and Executive Order 13175 does not require consultation at
    this time.''
        The ITCA is unaware of the details pertaining to your suggestion
    that the TNF may have engaged in ``formal or informal'' consultation
    regarding the ``Resolution Copper mine project'' with any of ITCA's
    Member Tribes. ITCA is aware that TNF has taken the position that it
    engaged in ``formal'' consultation with the San Carlos Apache Tribe
    with regard to Resolution Copper's Pre-Feasibility Plan of Operations
    for the approval of the certain exploratory activities within the holy
    and sacred site of Oak Flat. We are also aware that the San Carlos
    Apache Tribe and the Fort McDowell Yavapai Nation appealed TNF's
    approval of this Plan in part, on the grounds that the TNF did not, in
    fact, engage in true and meaningful consultation with the Apache Tribe
    about this project. Further, the Environmental Assessment prepared by
    the TNF failed to consider the direct, indirect or cumulative impacts
    of the mining companies Pre-Feasibility Activities on the integrity of
    Oak Flat as a Traditional Cultural Property under the National Historic
    Preservation Act, and it denied any impact on the Oak Flat area as a
    holy and sacred site within the meaning of Executive Order 13007.
    Finally, consultation by the TNF over Resolution Copper's proposed pre-
    feasibility activities at Oak Flat cannot be equated to consultation
    regarding H.R. 1904 or S. 409 or with respect to the proposed mining
    activities at Oak Flat.
        Question 3a. In your testimony you described in great detail the
    block cave method that you expect Resolution Copper Company will use to
    develop the mine and in your view what will happen to the Oak Flat area
    if that method is used to mine the copper ore body. Yet you also
    indicated in your testimony that the tribes have never received a
    technical briefing from Resolution Copper Company about the mine
    project.
        Please explain the basis for your assertions about the block cave
    mining method and how it will be used to develop the Resolution Copper
    mine?
        Answer. Resolution Copper and Rio Tinto has repeatedly acknowledged
    that they intend to conduct a block cave mine at Oak Flat. See, e.g.,
    http://resolutioncopper.com/project-overview.php. The techniques
    utilized in block cave mining and the general impacts from this type of
    mining referenced in ITCA's testimony have been documented by mining
    companies all over the world for many years. Resolution Copper has also
    publicly acknowledged that this form of mining will likely result in
    subsidence at Oak Flat. They also acknowledge that they have already
    had to dewater many billions of gallons of water from Shaft No. 9 and
    that they have removed these waters from the regional system by means
    of a pipeline. It is also understood that additional mine dewatering
    will be required at Oak Flat over the life of the mine. These basic
    facts, as well as the general depth and location of the ore body as
    discussed in ITCA's testimony are not and have not been disputed by
    Resolution Copper.
        However, with this said, the specific and full extent of the
    impacts resulting from a block came mine at Oak Flat have not been
    independently studied. As noted above, for a number of years, the ITCA,
    the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation have
    requested that the United States perform advanced studies to determine
    the potential impacts of the mine on the water supplies of the region,
    the stability of the Earth's surface and the potential for surface
    collapse resulting from block cave mining at this place. We think
    Congress should ask these questions and the American people have the
    right to know the answers to these questions before the land is
    exchanged to Resolution Copper for mining purposes.
        In fact, if the United States had conducted these studies when we
    requested them, they could easily have been completed by now and
    Congress would have this information before it today so that it could
    make a more informed decision on this or other related bills.
        Again, as noted above, independent studies of the type requested by
    ITCA and other tribes are needed for the United States to engage in
    meaningful government-to-government consultation with tribes. For
    consultation to be truly meaningful, we need to understand the
    potential impacts of the mine on the water supplies of the area, and
    its impact to the land surface and the environment because each of
    these aspects of the ecosystem found at Oak Flat support the integrity
    of Oak Flat as a holy and sacred place and as a traditional cultural
    property for Indian tribes. Indeed, if Resolution Copper was required
    to conduct this land exchange under the normal administrative
    procedures required by Federal Law, rather than through Congress, the
    National Environmental Policy Act and other laws would require at least
    some advanced studies on the impact of the mine. Resolution Copper
    seeks to be exempted from requirements of the law that other land
    exchange proponents are required to follow.
                                     ______

           Responses of Jon Cherry to Questions From Senator Bingaman
        Question 1. Has Resolution Copper conducted any evaluations on
    whether to mine the deposit around the Oak Flat withdrawal area without
    mining within the withdrawal area?
        Answer. Based on our studies to date RCC strongly suspects that
    exploration of the underground resource within the withdrawal area will
    demonstrate that this area contains ore that should be mined.
    Furthermore, we have structured our planning to date to facilitate the
    logical extension of mining into the withdrawal area.
        Question 2. Has Resolution Copper determined whether it is
    technically and economically feasible to mine the deposit around the
    Oak Flat withdrawal area without mining within the withdrawal area?
        Answer. Resolution does not believe that a mine should be developed
    that does not include the withdrawal area. However, due to the passage
    of time and inaction on the exchange legislation, RCC is at a point
    where it must move forward to develop the mine consistent with existing
    Federal law, regulation, and policy. The Mine Plan of Operation has
    been structured to facilitate the logical extension of mining under the
    withdrawal area.
        Question 3. Is it potentially technically and
    economically.feasible.for Resolution Copper to develop a mine if it
    received title to the Federal land without applying to the Forest
    Service for any rights-of-way that would be essential to the
    development of the mine?
        Answer. No, it would not be feasible. The Federal parcel proposed
    for acquisition is virtually surrounded by public National Forest and
    State of Arizona land. Based on current engineering and mining
    planning, it is not technically or economically feasible for Resolution
    Copper to develop a mine if it received title to the Federal land
    without applying to the Forest Service for any rights-of-way. This is
    based on the fact that the Federal land in the exchange is not suitable
    to construct a mill and tailings storage area and other related
    ancillary facilities. The areas that have been studied and identified
    as suitable areas for a mill site and tailings site, for instance,
    require conveyors and/or pipeline utility corridors across Federal land
    managed by the US Forest Service. No technically and economically
    feasible routes to the mill and tailings site have been identified that
    do not cross Federal land managed by the US Forest Service.
        Question 4. Please provide the Committee with a copy of each
    evaluation of the potential impacts of the proposed mine on water and
    on the structural integrity of Apache Leap that Resolution Copper has
    conducted, contracted for, or otherwise commissioned.
        Answer. Various studies are currently underway and/or complete.
    Copies of these studies and reports will be provided to the US Forest
    Service as part of the Mine Plan of Operations as required in Section
    (4)(j)(1)
        Question 5. In 2008, Resolution Copper testified before this
    Committee that without access to determine the extent and nature of the
    ore body underneath the Oak Flat Campground, it ``would not be able''
    to develop a mine plan of operations. At the February 9, 2012 hearing,
    you testified that Resolution Copper nevertheless is preparing to file
    a mine plan of operations in the second quarter of this year ``over the
    entire project area including the area of the subject exchange,''
    despite the fact that it has not had access to the ore body within the
    withdrawal area. Can you explain the apparent contradiction in the
    testimony?
        Answer. Please see responses to questions number 1 and 2 above.
    Since 2008, Resolution Copper has spent over $300 million additional
    dollars on exploration, mining planning, environmental studies and
    exploration to obtain more knowledge about the ore deposit. Based on
    that additional information and current economic conditions, we have
    been able to develop a mine plan that begins outside of the Oak Flat
    withdrawal area but, upon the receipt of appropriate approvals and
    completion of necessary studies and modifications of the mine plan
    within a reasonable period of time, still provides an opportunity to
    mine within the withdrawal area. It is also important to point out that
    lack of access to ore that may exist underneath the Oak Flat withdrawal
    area would preclude the economic benefits from that ore to both the
    United States as well as to Resolution Copper.
        Question 6. In 2008, Resolution Copper testified before this
    Committee that without access to determine the extent and nature of the
    ore body underneath the Oak Flat Campground, ``it would not he
    advisable'' to move forward with the mine development. Could Resolution
    Copper move forward with development of a mine without first having
    access to determine the extent and nature of the ore body in the
    withdrawal area?
        Answer. Please see responses to questions 1 and 2 above. Since
    2008, Resolution Copper has spent $300 million additional dollars on
    exploration, mining planning, environmental studies and exploration to
    obtain more knowledge about the ore deposit. The Mine Plan of Operation
    has been structured to facilitate a logical extension of mining under
    the withdrawal area.
        Question 7. On what date did Resolution Copper determine that it
    was technically and economically feasible to proceed with the mine?
        Answer. There is not an exact date at which Resolution Copper
    determined ``that it was technically and economically feasible to
    proceed with the mine.'' Rather it was the culmination of additional
    exploration and many environmental and engineering studies that were
    pointing in that direction. By late 2010, it was becoming apparent that
    it was technically and economically feasible to proceed with the mine.
        Question 8. What is your best estimate of the date on which the
    pre-feasibility activities authorized by the Forest Service in 2010
    will be complete?
        Answer. In 2010 Resolution submitted a ``Pre-Feasibility Actives
    Plan of Operations #03-12-02-0006'' to the US Forest Service which was
    approved in October of that year. We expect that the related activities
    approved as part of this plan by the Forest Service in 2010 are
    anticipated to be completed by the end of 2014, while access for
    groundwater testing and monitoring would he maintained through 2025.
    However, the activities completed to date under the Forest Service's
    2010 authorization and other studies have provided us sufficient
    information for the likely submittal of a proposed Mine Plan of
    Operations in the second quarter of 2012.
        Question 9. Do you interpret section 8 of H.R. 1904 to permit the
    Secretary of Agriculture to impose restrictions on Resolution Copper's
    mining activities on land adjacent to Apache Leap to the extent those
    restrictions are necessary to ensure the preservation of the natural
    character of Apache Leap?
        Answer. As stated in Section 8(a)(1), Resolution Copper agrees that
    ``The Secretary shall manage apache Leap to preserve the natural
    character of Apache Leap to protect archeological and cultural
    resources located on Apache Leap''. Resolution Copper also agrees with
    Section 8(c)(1) that ``The provisions of this section [8] shall not
    impose additional restrictions on mining activities carried out by
    Resolution Copper adjacent to, or outside of, the Apache Leap area
    beyond those otherwise applicable to mining activities on privately
    owned land under Federal, State and local laws, rules and regulations.
    Therefore, Resolution Copper interprets Section 8 of H.R. 1904 to
    permit the Secretary of Agriculture to impose reasonable restrictions
    on Resolution Copper's mining activities on land adjacent to Apache
    Leap to the extent that those requirements do not go beyond what is
    otherwise applicable under Federal, State and local laws to mining
    activities on privately owned land in similar circumstances.
        Question 10. For example, relying on the authority under section
    8(a), could the Secretary restrict the areas in which Resolution Copper
    could mine adjacent to Apache Leap? Could the Secretary restrict the
    extent of block-caving conducted by Resolution Copper on land adjacent
    to Apache Leap?
        Answer. As noted above, Resolution Copper is committed to
    protecting Apache Leap and believes that Section 8 is a very important
    tool for the Secretary to manage and protect Apache Leap. However,
    Resolution Copper does not believe that the Secretary has authority
    under Section 8(a) to restrict the extent of, or method of block-caving
    conducted by Resolution Copper on private land adjacent to Apache Leap
    (see Section 8(c)).
        Question 11. Does Resolution Copper remain unequivocally committed
    to the protection of Apache Leap?
        Answer. Yes. From the very beginning of this project Resolution
    Copper has been and continues to be on record as being committed to the
    protection of Apache Leap. That is part of the reason why over 110
    acres of private land that Resolution Copper currently owns adjacent to
    the mine site and Apache Leap is being offered as part of the land
    exchange that would be conveyed to the US government.
        Mining will commence at a point that is measured at more than 1.3
    miles to the east of Apache Leap. After several years of mining,
    subsidence will be seen on surface. As mining continues, the edge of
    the subsidence zone will slowly progresses towards Apache Leap at an
    overall rate of 180 feet per year, and after 10 years of mining the
    subsidence zone will be 4,000 feet from Apache Leap, but only 1,400
    feet away from RCM production and ventilation shafts. This means that
    if our predictions for subsidence are wrong, then our own critical
    infrastructure necessary for mine operations will be impacted prior to
    Apache Leap. We will not jeopardize the significant investment in this
    infrastructure or the project itself.
        Question 12. What is the purpose of section 4(h) of H.R. 1904? Do
    you interpret that provision as making the Federal land available to
    Resolution Copper for mining and related activities prior to any
    conveyance of the Federal land to Resolution Copper?
        Answer. The intent of section 4(h) was to clearly state the
    intended uses for the land and does not make the land available for
    mining prior to conveyance. The only activities authorized prior to
    conveyance are covered in section 4(f) which would allow mineral
    exploration activities in the withdrawal area under a special use
    permit issued by the Secretary.
        Question 13. During the House floor debate on H.R. 1904, there was
    considerable discussion about Rio Tinto 's partnership with the Iranian
    Foreign Investment Company at the Rossing Uranium mine in Namibia. Is
    Rio Tinto still the majority shareholder at that mine, and is the
    Iranian Foreign Investment Company still a partner?
        Answer. Rio Tinto and Rossing Uranium Limited (Rossing) have
    actively sought to address the issues Rossing faces as a result of the
    Iranian Foreign Investment Company's (IFIC) 15 percent interest in the
    company. IFIC acquired and continues to own its shareholding in Rossing
    in accordance with Namibian law. However, Rossing has taken and will
    continue to take steps to ensure that IFIC is solely a passive investor
    in Rossing. Rossing does not sell uranium to Iran. IFIC has no access
    to technology from Rossing. Rio Tinto has kept the State Department
    apprised of the situation.
        Rossing operates a uranium mine located in Namibia. Rio Tinto is
    the parent company of the majority shareholder of Rossing Uranium
    Limited, with 69 percent of the shares. IFIC owns a 15 percent stake in
    Rossing, which it acquired in 1975 prior to the Iranian Revolution. Rio
    Tinto manages the mine and controls the marketing and distribution of
    100 percent of its production. The other shareholders do not have the
    right to any portion of production.
          Responses of Jon Cherry to Questions From Senator Murkowski
        Mr. Cherry, it is clear to me from the testimony of the
    Administration that they believe you should not carry forward with
    fault-block mining of this copper deposit.
        Question 1. Can you tell me how much of the deposit would be left
    in the earth if you developed the underground portion of the mine using
    alternative mining technologies?
        Answer. Resolution Copper has spent more than $750 million on this
    project to date, including various environmental, economic and
    engineering studies. As a result, we have determined that the only
    mining method that is economically feasible is block cave mining
    because of the size and depth of the ore body located between 5000 and
    7000 feet underground. Based on this information, if block caving is
    not permitted, the entire resource would be left in the earth. Without
    this project, the State of Arizona would not benefit from a $61 billion
    economic impact, over 3700 full time jobs would not be created and over
    $19 billion in tax revenue would not be generated.
        Question 2. Would your company even recommend developing the
    deposit if such restriction where to be imposed by a Public Interest
    Determination?
        Answer. Resolution Copper would not recommend developing this
    resource if such a restriction were to be put in place. Furthermore, it
    would be very unlikely that Resolution Copper or any other entity would
    be able to secure the $6 billion in financing or investment to build
    this mine if block caving were not the selected mining method.
        Question 3a. I recognize that every mine that is developed is
    unique and the mining method selected must fit the circumstances of the
    project. It has been reported that Resolution Copper will employ the
    mining technique called panel caving, a subset of block caving, to mine
    the copper ore body.
        Can you explain how panel caving works, why the company has chosen
    this mining method and whether the company could/would mine this ore
    body using another method?
        Answer. Block cave mining is a well recognized, large scale, bulk
    mining method that uses the force of gravity to fracture an orebody,
    allowing it to be extracted through constructed drawpoints (funnel
    shaped excavations) at the bottom of the deposit by specialized mining
    equipment. As additional rock is removed from the drawpoints, the
    overlying ore continues to break and cave by gravity. This process
    continues until all of the ore has been vertically extracted from the
    drawpoints. Typically, this mining method is applied to massive, low-
    grade orebodies with large horizontal and vertical dimensions and with
    rock properties that behave properly, breaking into blocks of
    manageable size. In the United States, there are several block cave
    mines, such as the Henderson Molybdenum Mine in Colorado, and the older
    style Climax Mine (which also has an open pit for the near surface
    ore), also in Colorado. Furthermore Rio Tinto currently operates block
    cave mines in South Africa and Australia and is in the process of
    constructing a very large block cave mine in Mongolia.
        Ore bodies that are mined by the block caving mining method, but
    are exceptionally large, must be broken up into a series of smaller,
    manageable, mining blocks called panels. As these panels are mined, a
    caving front advances across the orebody, continuously opening up new
    production areas as the earlier caved sections of the mine are
    exhausted. Once a mining panel has been completed, another panel
    commences production and this process continues until the end of mine
    life.
        The mining method chosen for the Resolution Copper deposit is Panel
    Caving. The selection of the mining method and associated production
    rate is based largely on the following design criteria:

       Geometry (dimensions, shape, orientation)
       Location (geography, depth)
       Rock properties (ore + surrounding rock)
       Value of orebody (tons and grade)
       Mining and development costs
       Other site specific factors

        For the Resolution Copper deposit, the geometry (size and shape),
    the rock properties and the grade of the deposit make it ideal for
    panel caving. Figure 1* shows the relative geometries and the tonnage
    and grade associated with the Resolution deposit, as well as the Magma
    deposit which was the mine that was active near Superior, Arizona until
    the 1990's. It can be seen that Magma mined approximately twenty-five
    million tons at a grade of nearly five percent copper and operated for
    nearly one-hundred years. The Magma Mine utilized the cut and fill and
    longhole stoping mining methods, which have lower production rates and
    significantly higher operating costs, and which are not suitable for
    the grade or character of the Resolution deposit. The Resolution
    deposit is in excess of 1.6 billion metric tons with an average grade
    of 1.47 % copper and is located at more than 5,000 to 7,000 feet below
    the surface.
    ---------------------------------------------------------------------------
        * Illustration has been retained in committee files.
    ---------------------------------------------------------------------------
        Fundamentally, the same factors that make Resolution Copper
    amenable to panel caving also make it unsuitable to other mining
    methods. Specifically, size and geometry of the orebody, the lower
    grade, the engineering properties of the rock, and the location of the
    deposit really require a mining method that has economies of scale to
    offset the significant capital investment required to bring this
    project to fruition. As part of the study of this project other mining
    methods have been considered, but none are economically viable.
        Question 4. Please describe why the Resolution Copper Company is
    confident that its mine operations will not impact Apache Leap?
        Answer. Over the history of the project, significant quantities of
    geological and engineering data have been collected over the Resolution
    Project areas. This data has been used in both numerical and empirical
    engineering analysis to help determine the impacts that the overall
    mining process and subsequent subsidence will induce in the project
    area and to Apache Leap. These various analyses have consistently shown
    that our plans will be protective of Apache Leap. Resolution Copper is
    continually improving these predictions as our understanding of the
    geology and rock properties improves through ongoing and future study
    programs.
        Mining will commence at a point that is measured at more than 1.3
    miles to the east of Apache Leap. After several years of milling,
    subsidence will be seen on surface. As mining continues, the edge of
    the subsidence zone will slowly progresses towards Apache Leap at an
    overall rate of 180 feet per year, and after 10 years of mining the
    subsidence zone will be 4,000 feet from Apache Leap, but only 1,400
    feet away from RCM production and ventilation shafts. This means that
    if our predictions for subsidence are wrong, then our own critical
    infrastructure necessary for mine operations will be impacted prior to
    any jeopardy to Apache Leap. As noted, our very expensive key
    production and ventilation shafts are located in an area that likely
    would be impacted by the block cave long before the structural
    integrity of the Apache Leap would be affected and we do not intend to
    let that happen and we will not jeopardize the significant investment
    in this infrastructure or the project itself.
        Given the risk to the mine infrastructure and Resolution Copper's
    commitment to protecting Apache Leap, the Company will invest in all
    extensive monitoring system to collect data that will be continually
    used to test and improve on our predictions of subsidence. This will
    allow us to identify potential threats to either Apache Leap or our
    infrastructure long before the impacts would be realized. If our
    predictions on subsidence are incorrect, we will be able to adjust our
    mining plan accordingly to protect Apache Leap, even if this requires
    the loss of mine resource.
                                  Appendix II

                  Additional Material Submitted for the Record

                                  ----------

    Prepared Statement of Michael Schennum, Staff Photographer, The Arizona
           Republic, and Adjunct Professor, Arizona State University
        As you know this coming Tuesday is Arizona's Centennial. We have a
    lot to celebrate in this great state. For one, our natural wonders,
    such as the Grand Canyon, Sedona and Queen Creek Canyon to name a few.
        What then will we celebrate in another 100 years? Sections of the
    Grand Canyon? A few non-privatized areas in the red rocks of Sedona? A
    huge pit where Queen Creek's Oak Flats used to be?
        We should not exploit our natural resources at the expense of what
    this state is famous for. Queen Creek offers camping, rock climbing,
    hiking, bird watching, and vehicular recreation. If it is gone, and the
    copper all mined out, what will be left for our children and our
    children's children? What will this great state be known for?
                                     ______

     Prepared Statement of Linda S. White, Native of Arizona, Maricopa, AZ
        For the last six years Resolution Copper Mining (RCM) has attempted
    to gain control of approximately 2,400 acres of land in the Tonto
    National Forest including the 760 acre Oak Flat Recreation area, which
    has been specifically withdrawn from all mining activity. These efforts
    have been via several legislative land exchange bills, in part because
    this particular form of land exchange would overturn the executive
    order (PLO 1229) that has been in place since 1955 that specifically
    prohibits mining activities in the Oak Flat area and because it would
    effectively serve as a mechanism to bypass the full regulations
    mandated by the National Environmental Policy Act.
        Forest Service records clearly state that an important criteria for
    selecting various recreational areas to be protected in 1955 was the
    reasonable expectation of future conflict. This is a critical and often
    overlooked point because it means that when the Oak Flat area was
    withdrawn from mining appropriation in 1955 it was actually foreseen
    that some mining company would eventually propose mining there and in
    spite of this, the area was deserving of protection. Information
    uncovered via a FOIA request has revealed that when the NFS was asked
    by Asarco in 1972 about the possibility of lifting the mining
    prohibition at Oak Flat, the NFS replied that Oak Flat was still in use
    as a recreational area and thus the reasons for preserving that area
    were just as valid then as in 1955. That is certainly still the case
    today.
        Sen. Mccain and Rep. Gosar have been saying this is a Jobs Bill for
    Arizona, in which the numbers of those jobs keep changing. According to
    Resolution Copper, most of the jobs will be done by robotics. Locals
    have only seen a small percent of subcontracted work.
        This is bill is not good for Arizonians. Our public land will be
    destroyed along with all the issues that will result: Loss of Native
    Sacred lands, Recreational Land loss, Environmental loss, etc. The
    method this Company wants to use is Block-Cave Mining and it will
    result in subsidence of this land that is dear to many of us.
        Thus we respectfully suggest that removing over 50 years of federal
    land protection, in favor of this land exchange, represents not only a
    poor outcome for recreationalists and the environment, but may also be
    unwise from an overall economic perspective. In our view, a much better
    solution would be a compromise scenario that would allow responsible
    mine development to occur but would also maintain the spirit of PLO
    1229 and would thus guarantee the continued recreational, cultural and
    religious use of the Oak Flat area in perpetuity.
        Please don't allow this Land Exchange through the Senate. We need
    you to protect this land and hold Resolution Copper/Rio Tinto
    accountable for their actions.
                                     ______

                     Prepared Statement of Catherine Conner
        I write in opposition to H.R. 1904, the Southeast Arizona Land
    Exchange and Conservation Act of 2011, and S. 409, the Southeast
    Arizona Land Exchange and Conservation Act of 2009, as reported by the
    Committee during the 111th Congress. I am a concerned citizen who
    opposes this proposal on behalf of myself, the large entity of other
    user groups that oppose this bill, the environment, and creatures and
    plant life that inhabit this land and can't defend themselves. This
    legislation would direct the Secretary of Agriculture to convey the
    highly popular public recreational & environmental resource at Oak
    Flat, Arizona for use as an underground copper mine, effectively
    reducing it to a large concave sink-hole in the ground.
        Native Americans, Birders, climbers, campers, canyoneers, bikers,
    hikers, and the public in general, enjoy the area throughout the year,
    all of whom would be greatly harmed if these lands were forever taken
    from public access, not to mention the flora and fauna that can't speak
    to this. Native Americans have traditionally used the area for
    cultural, spiritual purposes, and for sustenance. All Arizona Indian
    tribes oppose the Land Exchange. The National Congress of American
    Indians passed a unanimous resolution in June of 2009 opposing all
    legislation that would allow mining at Oak Flat. In addition, the
    Concerned Citizens and Retired Miners Coalition in Superior, AZ is
    opposed to the land exchange and testified in Washington, DC against S.
    409 in 2009.Everyone will suffer a huge environmental, spiritual &
    sacred, historical, and recreational loss if this area is destroyed by
    mining activities. Oak Flat area stands to subside into an enormous
    crater if Resolution Copper Mining (RCM) is allowed to proceed, and
    this would be a terrible travesty.
        It has also come to light that The Southeast Arizona Land Exchange
    and Conservation Act of 2011 fails to require any meaningful
    environmental analysis prior to the transfer of public land to RCM.
    This bill would circumvent the public process mandated under the
    National Environmental Policy Act (NEPA) for prior analysis of any
    major federal action on public land. Such an analysis would assess the
    impact mine operations would have on the health of nearby residents,
    water quality, air quality, cultural resources, transportation, and the
    overall environment. H.R. 1904 unreasonably requires the exchange to be
    completed within one year. Such a rushed timetable will eliminate any
    meaningful analysis of this project and limit a real determination
    whether this mine is in the public's interest. Because the provisions
    in H.R. 1904 virtually ensure the development of this mine, and the
    public has very little information on the environmental implications of
    this mine, this exchange is not in the public's interest.?
        The H.R. 1904 bill is being purported as a ``jobs bill''. But after
    reading the article ``Rio Tinto says mine automation benefits outweigh
    costs'' in which it is stated ``In iron-ore, we are introducing
    automated trucks, blast-hole drill rigs, sorting machines and trains,
    all of which are capable of being controlled by our operations center
    in Perth (Australia), which already integrates our port, rail and mine
    logistics,'' said McGagh. Also to note, previously, there were
    amendments offered to the House Bill by Rep. Raul Grijalva to make sure
    that the jobs that Rio/RCM was projecting/promising would be located in
    the local vicinity. This amendment was rejected by the majority in
    power in the House. Claiming this is a ``jobs bill'' is only accurate
    in a short sited vision. This bill doesn't benefit Americans in the
    long term, except only perhaps in the short term future. With the
    automation of many supposed jobs, the number of new jobs is
    questionable, along with the longevity of said jobs. When the company
    leaves, the environment has been exploited and destroyed, and the
    foreign interests profit incredibly with no sense of loss once they
    leave.
        RCM plans to mine using the block-cave method, a block-cave mine is
    designed to ultimately result in the subsidence of the surface, the end
    result, a giant sink-hole, land rendered a concave, featureless
    wasteland. One of the great problems of this bill is the lack of
    demanding RCM to use a different mining method (which exist) in which
    the environment is not destroyed, and the mining could occur
    simultaneously. I say to these large foreign companies to mine in this
    manner is an example of ``just because you can, doesn't mean you
    should.'' This bill should be re-written so that the environment can
    remain intact, the mine required to put our (the public and
    environment) interests parallel to the mining interests, regardless of
    the possibility of slightly less profits. The mine should have to be
    accountable to its American hosts for how they impact our environment,
    not simply have ownership & free reign of this, our public land.
        As a taxpaying concerned Arizona citizen, as this bill is currently
    written, I am opposed. Please find a way to preserve this public land
    that was set aside by President Eisenhower for all Americans to enjoy.
    It and the surrounding lands including Apache Leap, Gaan Canyon, and
    Queen Creek Canyon must be preserved from the large foreign mining
    companies that threaten to take public ownership away and destroy the
    land.
        For the past 6 years, these companies have unsuccessfully asked the
    US Congress to pass legislation giving away these lands. If this bill
    passes, we will lose a priceless piece of our natural and historic
    heritage. I ask that you deny this request until the proposal does not
    destroy this land, and the foreign mining companies are accountable to
    America, the EPA, NEPA, we the people, and the diverse living creatures
    & plant life that inhabit this area.
                                     ______

     Prepared Statement of Curt Shannon, The Concerned Climbers of Arizona
        I was present in Washington for the senate hearing on February 9th
    and appreciate the opportunity to now formally express the views of The
    Concerned Climbers of Arizona on H.R. 1904 and S. 409 (Southeast
    Arizona Land Exchange and Conservation Act.) Our group is fully opposed
    to the passage of either H.R. 1904 and S. 409 for a multitude of
    reasons primarily related to the unprecedented loss of recreational
    resources that would occur, should either of these two bills become
    law.
                                   background
        Since 2005 Resolution Copper Mining (RCM) has attempted to gain
    control of approximately 2,400 acres of land in the Tonto National
    Forest including the 760 acre Oak Flat Recreation area, which has been
    specifically and purposefully withdrawn from mining activities since
    1955. RCM's efforts to date have been via a series of legislative land
    exchange bills, in part because that form of land exchange effectively
    vacates executive order (PLO 1229) that has been in place for over 50
    years and because such an exchange would effectively serve as a
    mechanism to bypass the full regulations mandated by the National
    Environmental Policy Act.
        Forest Service records state that an important criteria for
    selecting recreational areas to be protected in 1955 was the reasonable
    expectation of future conflict. This is a critical and often overlooked
    point because it means that when the Oak Flat area was withdrawn from
    mining appropriation in 1955 it was actually foreseen that some mining
    company would eventually propose mining at that location--and in spite
    of this, it was determined that the area was deserving of protection
    for recreational purposes.
        Information uncovered via FOIA request has also shown that when the
    NFS was asked by Asarco in 1972 about the possibility of lifting the
    mining prohibition at Oak Flat, NFS replied that Oak Flat was still in
    use as a recreational area and thus the reasons for preserving that
    area were just as valid then as in 1955. This is certainly still the
    case today.
                                 climber issues
        Rock climbers are the largest recreational user group of the Oak
    Flat area, and will thus be the most impacted and displaced user group
    if H.R. 1904 should become law. If RCM establishes the huge block-cave
    mine under the Oak Flat parcel that it currently intends to, this will
    result in the largest loss of rock climbing resources in the history of
    the United States.
        In this regard and in spite of all the good faith discussions that
    numerous rock climbing constituencies have had with RCM over the years,
    H.R. 1904 is certainly the worst bill yet to be introduced in congress,
    as all acknowledgment or attempt to mitigate the huge loss of climbing
    resource has been omitted from this latest version of the legislation.
    Climbers get absolutely nothing in H.R. 1904. In addition, the
    treatment of environmental review in H.R. 1904 is substantially flawed
    as it calls for the public land in question to be exchanged prior to
    any reasonable public interest determination being made. To be clear,
    we do not question the right of congress to make the public interest
    determination with regard to this legislation, but we do question the
    wisdom of congress doing so without having access to the kind of
    relevant information that only a NEPA review can produce. In our view,
    H.R. 1904 puts the ``cart in front of the horse'' and calls for
    conveyance of the Oak Flat parcel to RCM without factually and
    empirically demonstrating whether or not this exchange is truly in the
    public interest. Congress will truly be flying blind in making this
    sort of premature determination.
                                   economics
        A large new copper mine in Arizona does have the potential to bring
    some economic relief to the communities in the immediate region. It
    must be noted however that this economic relief is by definition
    temporary in nature--as every new mine will eventually close and become
    abandoned. Recreation, on the other hand represents a renewable and
    ongoing source of revenue to the state of Arizona and to the local
    communities.
        According to a recent study (attached)* called Sustainable Economic
    Benefits of Human-Powered Recreation to the State of Arizona, ``the
    Arizona active outdoor (human-powered) recreation economy supports an
    estimated 86,920 annual jobs, generates nearly $371 million in annual
    state tax revenue, and produces almost $5.3 billion annually in retail
    sales and services across Arizona. This popular industry is responsible
    for 12% of Arizona's retail economy each year.''
    ---------------------------------------------------------------------------
        * Document has been retained in committee files.
    ---------------------------------------------------------------------------
        In conclusion, we respectfully suggest that removing 50+ years of
    federal land protection to facilitate this land exchange represents not
    only a poor outcome for recreationalists and the environment, but may
    also be unwise from an overall, long term economic perspective. In our
    view, a much better solution would be a compromise scenario--involving
    sustainable and responsible mining techniques that would maintain the
    integrity of the surface of the ground in the Oak Flat area. This
    approach maintains the spirit of PLO 1229 and could thus guarantee the
    continued recreational, cultural and religious use of the Oak Flat area
    in perpetuity.
        For these reasons we must oppose H.R. 1904 and S. 409.
                                     ______

     Prepared Statement of Terry Rambler, Chairman, San Carlos Apache Tribe
        My name is Terry Rambler and I am the Chairman of the San Carlos
    Apache Tribe (the ``Tribe''). Thank you for the opportunity to submit
    testimony to the Senate Committee on Energy and Natural Resources
    concerning H.R. 1904 and S. 409 as reported in the 111th Congress.
        Since 2005, the Tribe has consistently opposed legislation that
    would convey an area called Oak Flat in Arizona's Tonto National Forest
    to Resolution Copper Mining (RCM). The Tribe's opposition is multi-
    faceted. As Apaches, our opposition is based upon cultural, social, and
    religious grounds. As Arizonans, our opposition stems from the adverse
    impacts of this mining operation on the future of Arizona, including
    its limited water resources. As Americans, our opposition is based upon
    the depletion of our nation's treasure and threats to national security
    with no commensurate advantage to our nation or the American people.
        Under H.R. 1904, the Secretary of Agriculture is directed to convey
    over 2,400 acres of U.S. Forest Service land in southeast Arizona to
    RCM to facilitate the development and operation of an unprecedented,
    large-scale block cave copper mine. RCM is a subsidiary of two foreign
    mining giants--Rio Tinto, PLC (United Kingdom) and BHP Billiton, Ltd
    (Australia), whose owners include the country of China. Rio Tinto
    partners with the Iranian government in a uranium mine in Namibia.
        Of principal concern to the Tribe are the devastating impacts the
    mine will have on the Oak Flat area. The mine will swallow giant swaths
    of the land above ground, including the Oak Flat area, which contains
    one of the holiest of Apache sites. When the land under Oak Flat
    collapses into an enormous sinkhole, the nature of the land and its
    ecology will be destroyed forever, and an area of profound religious
    and cultural significance to the Tribe, Yavapais and other Native
    Americans will be permanently desecrated and lost.
        In considering H.R. 1904 and S. 409, I respectfully request that
    you question the merits of this legislation. This legislation is a
    special interest give-away to a foreign owned entity with no attachment
    to our country. The legislation fails to protect Indians, Arizonans,
    other Americans, and future generations.
        For these reasons, the San Carlos Apache Tribe has joined with the
    Inter Tribal Council of Arizona, other tribes throughout the nation,
    mineworkers, environmentalists, and residents of Superior, Miami and
    Globe, to oppose this legislation. Our specific concerns follow.
                 the oak flat region is a holy and sacred site
        Throughout our history, Oak Flat continues as a vital part of the
    Apache religion, traditions, and culture. In Apache, our word for the
    area of Oak Flat is Chich'il Bildagoteel (a ``Flat with Acorn Trees'').
    Oak Flat is a holy and sacred site, and a traditional cultural property
    with deep religious, cultural, archaeological, historical and
    environmental significance to Apaches, Yavapais and other tribes. At
    least eight Apache Clans and two Western Apache Bands have documented
    history in the area. Apache clans originated from this area and Apaches
    on the Reservation have ancestors who came from the Oak Flat area
    before they were forced to Old San Carlos. Tribal members' ancestors
    passed their knowledge about Oak Flat to their descendants who are
    alive today.
        A number of Apache religious ceremonies will be held at Oak Flat
    this Spring, just as similar ceremonies and other religious and
    traditional practices have been held for as long as Apaches can recall.
    We do so because Oak Flat is a place filled with power, a place Apaches
    go: for prayer and ceremony, for healing and ceremonial items, or for
    peace and personal cleansing. The Oak Flat area and everything in it
    belongs to powerful Diyin (Medicine Men) who we respect, and the home
    of a particular kind of Gaan--powerful Mountain Spirits and Holy Beings
    on whom Apaches depend for our well-being.
        The Oak Flat area is bounded on the west by portions of the large
    escarpment known as Dibecho Nadil (Apache Leap), to the east by Gaan
    Bikoh (Crown Dancer's, Mountain Spirit's, or Gaan Canyon and known as
    Devil's Canyon), and is intersected to the north by Gaan Daszin (Crown
    Dancer's or Mountain Spirits Standing, and known as Queen Creek
    Canyon).
        In the Oak Flat area, there are hundreds of traditional Apache
    species of plants, birds, insects and many other living things in the
    Oak Flat area that are crucial to Apache religion and culture. Some of
    these species are among the holiest of medicines--medicines that are
    only known to and harvested by gifted Apache spiritual or healing
    practitioners. Only the species within the Oak Flat area are imbued
    with the unique power of this area. The ancient oak groves provide an
    abundant source of acorns that for many centuries and today serve as an
    important traditional food source for the Apache people.
        Any mining on Oak Flat will adversely impact the integrity of the
    area as a whole--both as a holy and religious place and as a place of
    continued traditional and cultural importance to Apaches and other
    tribal people. There are no human actions or steps that can ever make
    this place whole again or restore to the Apache what will be lost.
    Mining on Oak Flat will desecrate our Gaan's home and could greatly
    diminish the power of this place, as well as our ability to most
    effectively conduct our ceremonies. The destruction of Oak Flat will
    add to the many problems and sufferings that our community already
    faces. We will become vulnerable to a wide variety of illness, and our
    Apache spiritual existence will be threatened.
        The unique nature of the Oak Flat area has long been recognized,
    and not just by the Apache. Oak Flat was expressly set aside from
    appropriation under the public laws, including the mining laws, by
    President Eisenhower and reaffirmed by President Nixon. Public Land
    Orders 1229 (1955) and 5132 (1971). Secretary Vilsack recently
    acknowledged Oak Flat as a ``special place'', one that should be
    protected from harm ``for future generations''. See Secretary Vilsack
    letter to Senator Wyden, dated July 13, 2009. Oak Flat and other nearby
    locations are also eligible for inclusion and protection under the
    National Historic Preservation Act of 1966, as well as other laws and
    policies.
        Article 11 of the Apache Treaty of 1852, requires the United States
    to ``legislate and act to secure the permanent prosperity and
    happiness'' of the Apache people.\1\ H.R. 1904 fails to live up to this
    promise. While the Oak Flat Withdrawal and its surrounding lands stand
    outside of the physical boundaries of the San Carlos Apache Indian
    Reservation, this area is part of our and other Western Apaches'
    aboriginal lands, and it has always played an essential role in the
    Apache religion, traditions, and culture.
    ---------------------------------------------------------------------------
        \1\ Treaty with the Apache, 10 Stat. 979 (July 1, 1852), ratified
    March 23, 1853, proclaimed March 25, 1853.
    ---------------------------------------------------------------------------
     h.r. 1904 fails to require meaningful consultation with indian tribes
        Numerous laws, executive and secretarial orders and policies of the
    United States require meaningful government-to-government consultation
    with Indian tribes. The United States' obligation to engage in good
    faith consultation with Indian tribes arises from the unique legal,
    political and trust relationships that the Government owes to tribes
    under the Constitution, treaties, statutes, and judicial decisions.
        Congress has understood and articulated the importance of
    consultation as a matter of law. The respect for tribal cultural
    beliefs, especially for sacred sites, has become an essential component
    of consultation process and reflects the Government's trust
    relationship with Indian tribes. The National Historic Preservation Act
    (NHPA) requires that federal agencies consult at all stages with any
    ``Indian tribe . . . that attaches religious and cultural
    significance'' to traditional cultural properties, such as the Oak Flat
    area. 16 U.S.C. Sec. 470(a)(d)(6)(B). Federal regulations require that
    the Government assess the impacts of H.R. 1904 and the mining project
    on Oak Flat because it is an eligible historic property. 36 C.F.R.
    Sec. 800.5. Avoidance and mitigation of adverse effects are called for
    under NPHA and its regulations.
        Executive Order 13175 requires executive departments to conduct
    tribal government-togovernment consultation with Indian tribes when
    proposed legislations have substantial direct effects on one or more
    Indian Tribes. 59 Fed. Reg. 22951 (April 29, 1994). Secretary of
    Agriculture Vilsack has acknowledged ``it is important that this bill
    engage in a process of formal tribal consultation to ensure both tribal
    participation and the protection of this site.'' See Secretary Vilsack
    Letter dated July 13, 2009, above. President Obama stated in his 2009
    Memorandum issuing E.O. 13175, that ``[h]istory has shown that failure
    to include the voices of tribal officials in formulating policy
    affecting their tribal communities has all too often led to undesirable
    and, at times, devastating and tragic results.'' 74 Fed. Reg. 57881
    (November 5, 2009).
        Nothing in H.R. 1904 requires informed and advanced government-to-
    government consultation with affected Indian tribes, such as the San
    Carlos Apache Tribe, as contemplated by the United States' trust
    responsibility and the laws and policies described above. To the
    contrary, Sec. 4(c) only requires consultation after enactment of the
    H.R. 1904, and not before, rendering the act of consultation a mere
    formality.
        Section 4(c) would circumvent Executive Order 13007 which directs
    Federal agencies to manage Federal lands in a manner that accommodates
    Native American religious practitioners' access to and ceremonial use
    of Native American sacred sites and to ``avoid adversely affecting the
    physical integrity of such sacred sites.'' 61 Fed. Reg. 26771 (May 29,
    1996).
        Meaningful government-to-government consultation assumes knowledge.
    The San Carlos Apache Tribe, the Inter Tribal Council of Arizona, the
    Fort McDowell Yavapai Nation, and others have repeatedly requested that
    the United States undertake advanced studies to better understand the
    impact of the proposed mine on the water supplies, landscape and
    environment of this region. Such studies are needed for informed
    consultation. This policy is circumvented by the land exchange
    conveyance mandated by H.R. 1904.
        Proponents of H.R. 1904 have criticized the Tribe for not having
    met and consulted with RCM. However, the trust relationship rests not
    with RCM but with the United States.
        There continues to be sufficient time to engage in meaningful
    consultations with the Tribe and other affected Indian tribes before
    any decisions are made whether to convey Oak Flat to RCM. To do
    otherwise, as H.R. 1904 mandates, would seriously undermine the intent
    of NHPA and other federal laws, and even the trust relationship of the
    United States to Tribes.
               rio tinto has questionable ties to china and iran
        Nine percent of RCM's controlling partner, Rio Tinto, is currently
    owned by China through its state-controlled Aluminum Corporation of
    China. If this land exchange goes through, China will end up holding a
    4.5% interest in Arizona's Tonto National Forest and our ancestral
    lands. Rio Tinto is also a partner with Iran in the Rossing Uranium
    Ltd. mine in Namibia. While RCM seeks to minimize its connections to
    Iran, Rio Tinto remains on the State Department's list of foreign
    corporations in the supply chain of strategic minerals to hostile
    governments, including North Korea and Iran.
        Under the President's recent Executive Order on Iran sanctions,
    including measures to implement section 1245 of the National Defense
    Authorization Act (NDAA), the U.S. Department of Treasury is issuing
    general licenses to maintain existing authorizations for certain
    transactions involving the Government of Iran. Resolution Copper will
    need to apply.
        Executive Order 13175 requires executive departments, including the
    Department of State, to conduct tribal consultations based on the
    Tribe's concern regarding the business relations of Resolution Copper
    and its parent companies with Iran and China. The Tribe is aware of
    recent U.S. actions at the United Nations Security Council (UN
    Resolution 1929) and Presidential Executive Order 12957, including the
    Comprehensive Iran Sanctions, Accountability, and Divestment Act of
    2010 (CISADA), which strengthens the support of U.S. sanctions with
    respect to the Iranian energy industry. As a result of Iran's continued
    intransigence, the U.N.'s resolution is the most extensive package of
    sanctions against Iran. U.S. officials have adamantly reiterated that
    Iran be held accountable for its nuclear program and continued human
    rights violation.
        Currently, the U.S. is conducting official talks about
    transnational criminal organizations and global efforts to increase
    pressure on the Iranian regime and isolate Iran from the international
    financial system. There are also two primary federal statutes governing
    reporting by foreign investors about investments made in the United
    States, which RCM may not have complied with as of yet: the
    International Investment and Trade in Services Survey Act; \2\ and, the
    Agricultural Foreign Investment Disclosure Act.\3\ The Tribe does not
    have any means to fully investigate a foreign company or its
    affiliations, but it understands that the Congress and federal agencies
    can investigate these matters.
    ---------------------------------------------------------------------------
        \2\ (22 U.S.C. Sec. 3101 et seq.)(``IITSA''). The Bureau of
    Economic Analysis (BEA) of the Department of Commerce administers
    IITSSA; see 15 C.F.R. 806. The IITSSA requires reports of all foreign
    investment in a U.S. business enterprise in which a foreign person or
    corporation owns 10% or more of the voting interest, unless the
    investment is under $1 million, is under 200 acres, or is real estate
    intended for personal use.
        \3\ (7 U.S.C. Sec. 3501 et seq.) (``AFIDA''). AFIDA is administered
    by the U.S. Department of Agriculture; see Regulations at 7 C.F.R.
    Sec. 781. If agricultural land is acquired by or has title transferred
    to a foreign individual or corporation, AFIDA requires the individual
    to submit a report (Form FSA-153, Agriculture Investment Disclosure Act
    Report) to the Secretary of Agriculture within 90 days of the
    transaction. Exceptions to this requirement include transactions
    involving: security interests; leaseholds under 10 years; contingent
    future interests; non-contingent future interests that do not become
    possessory upon termination of the present possessory estate; easements
    and rights of way (surface or sub-surface) unrelated to agricultural
    production; interests solely in mineral rights. In the event of an
    exchange, RCM would have to comply.
    ---------------------------------------------------------------------------
        Based on the history of Rio Tinto's business relations with Iran
    and China and in light of the U.S. recent sanctions against Iran, it
    would be inappropriate to trade U.S. soil to a questionable foreign
    mining company.
             h.r. 1904 is a give-away to foreign, special interests
        Under the current mining laws, the land exchange would result in a
    give-away of American wealth. Based upon RCM's own calculation of the
    ore body at modest prices of copper of $2.00 per pound and molybdenum
    at $10.00 per pound would result in a give away to two foreign mining
    companies in excess of $7 billion. Under today's copper prices, the
    saleable copper extracted from Oak Flat would have a value of about
    $185.6 billion.
        The appraisal requirements of H.R. 1904 do not adequately ensure
    that the public will receive fair value. RCM and its foreign corporate
    parents would not pay for the true costs of environmental compliance.
    As a result, American taxpayers would be left without any revenue and
    on the hook for the future cost of any environmental remediation.
     any jobs benefits from h.r. 1904 are dwarfed by enormous economic and
                    ecological costs to arizona and america
        RCM and its proponents tout local job creation as the primary
    justification for this land exchange. However, if H.R. 1904 were to be
    enacted, it would come at the expense of all Americans, including
    Indians and Arizonans. RCM claims that the mine at Oak Flat will
    produce a wide variety of jobs, from 1,000 to as many as 3,700. This
    last estimate comes from RCM's hired expert and not from an independent
    analysis. In reality, the number of jobs is highly speculative; the
    majority of these jobs (assuming they were created) would not appear
    until a number of years from now, offering little to help today's
    economy. Furthermore, Rio Tinto plans to make the RCM mine highly
    automated and to be able to operate it from remote locations,
    potentially rendering local job creation meaningless.
        Other mining companies in the area such as Freeport McMoRan and
    Teryl Resources recruit employees from as far away as Phoenix and
    Tucson, and even outside the State. As a result of recent increases in
    copper prices, unemployment in the Superior--Globe region has fallen
    well below the national average.
        While some jobs will be created by the proposed mine, it is certain
    that H.R. 1904, if enacted, will result in tragic consequences that RCM
    seeks to downplay, if not avoid. Any economic benefit that may exist
    will be negated by the very real, long-term impacts to the regional
    water supply and environmental and the economic cleanup costs that
    American taxpayer cannot afford.
        There has been no credible cost benefit or other analysis of
    certain environmental impacts. Once Congress permits Oak Flat to be
    traded to the private ownership of RCM, RCM would be able to develop
    and operate its mine with only limited environmental permitting, water
    quality requirements, cultural protections or financial assurances
    required under Federal law. As a limited liability corporation, RCM
    could simply walk away from potentially billions of dollars in
    environmental and infrastructure damages. Indeed, it is very likely
    that H.R. 1904 will assure the creation of a future Superfund Cleanup
    site. We all have to ask ourselves why H.R. 1904 does not provide
    assurances that a future environmental catastrophe will be remediated.
    Who will pay that cost? Certainly not RCM; instead, the American
    taxpayer will be left on the hook.
        The Tribe has been mischaracterized as being philosophically
    opposed to mining. To the contrary, we support responsible mining. We
    recognize that mining is an essential part of Arizona's economy. Many
    Apaches are miners. However, we must agree that any mining should be
    carried out responsibly and that it should not destroy our holy sites.
        What is proposed here is the highly destructive block and cave
    mining method. Block cave mining consumes massive amounts of water that
    will severely shrink the water supply of an already drought stricken
    region. The mine will most certainly generate gigantic amounts of waste
    and tailings piles that may poison the region's water supply, and it
    remains uncertain even today where the ore will be processed and where
    the mountains of tailings and development and waste rock for this mine
    will be dumped. RCM has publicly admitted that its proposed block
    caving mine would create significant land subsidence and collapse of
    large portions of the Oak Flat area. Despite these facts, H.R. 1904
    removes all administrative discretion and decision-making authority,
    rendering tribal consultation useless, and provides no protections to
    the lands, water or integrity of holy, sacred and cultural sites.
        No independent assessment has been made available to the public
    regarding the proposed mine's impact on the water resources,
    environment, natural ecosystems or the landscape of the Oak Flat area.
    No provision in H.R 1904 offers any protections for the large-scale
    water depletions and environmental scarring and toxins that will result
    from the mine. The absence of requirements for independent assessment
    or NEPA review in H.R. 1904 before the land exchange ensures that the
    public will never know the true impacts of the proposed mining
    operation until it is too late.
        Of particular concern is the fact that the mine's dewatering would
    substantially deplete groundwater aquifers that supply the Globe-
    Superior region. The cumulative impact of RCM's mine and the other
    mines already operating in the area on the region's water supplies and
    quality will never be assessed because of the lack of NEPA review. The
    mine will likely dry up and otherwise contaminate surface flows,
    springs, seeps and other water features within the Oak Flat area--all
    of which are fundamental to the integrity of the area as a holy site
    and traditional cultural property for the Tribe. Adverse impacts will
    occur through the depletion of groundwater aquifers and surface
    supplies that support the base flows in Queen Creek and the perennial
    pools in Gaan Canyon. The loss to the local aquifers cannot be
    remediated by banking Central Arizona Project water elsewhere.
        At present, no water management plan exists for this already
    drought stricken region. RCM has not volunteered its studies. No
    independent study has assessed the potential impact of the proposed
    mine on the region's water supply. No independent study been made of
    the amount of toxins or other contaminants that will be produced by the
    mine. H.R. 1904 guarantees that no such independent reviews will ever
    be carried out. The potential costs of the proposed mine to the
    environment, the Apache's holy site, and the region's water supply will
    certainly outstrip any economic benefits of any jobs.
              h.r. 1904 allows a land exchange without nepa review
        The public should be made aware of the potential impacts stemming
    from this proposed land exchange. However, Sec. 4(i) of H.R. 1904
    mandates that the exchange occur within one year of enactment. This
    provision effectively prohibits compliance with NEPA.
        NEPA requires the government to study, develop, and describe
    appropriate alternatives to courses of action for any proposal that
    involves unresolved conflicts concerning uses of available resources.
    42 U.S.C. Sec.  4332(2)(E). The NEPA process also must be integrated
    with other planning at the earliest possible time in order to ensure
    that decisions reflect environmental values and head off potential
    conflicts. 40 C.F.R. Sec.  1501.2.
        H.R. 1904 fails to protect the public because: (1) it does not
    require or even permit the Secretary of Agriculture to take a ``hard
    look'' at the land exchange before the exchange is consummated; (2) it
    fails to vest any discretion in the Secretary of Agriculture to
    consider appropriate alternatives; (3) it does not provide or permit
    mitigation of impacts related to the exchange and/or the mining
    project; and (4) it would not permit the Secretary to reject the
    exchange if the Secretary finds that the exchange is a bad deal for the
    American taxpayer or public.
        Contrary to what proponents of H.R. 1904 contend, the bill waives
    the requirement of a NEPA analysis before the exchange. H.R. 1904
    further waives the Federal Land Policy and Management Act and other
    critical laws that guide land exchanges and protect the American
    public. Because of these waivers, there can be no independent
    determination of what is in the public interest. Nor will there be any
    disclosure of environmental impacts. Indeed, under H.R. 1904, even if
    the Secretary finds adverse impacts to religious interests or
    environmental, cultural, water or other harms, nothing can be done. The
    land will already be owned by RCM and most federal laws would not
    apply.
        S. 409, as reported, did provide some protections prior to
    decisions on conveyance by requiring a more active involvement by the
    Secretary and limited consultation with tribes; however, we oppose S.
    409, as reported, because it (among other things) fails to acknowledge
    the importance of Oak Flat to the religion, traditions and culture of
    the Apache and Yavapai People and because it contains no guarantees
    that the integrity of Oak Flat as a Apache holy site and traditional
    cultural property would be protected after transfer to RCM. While both
    bills are unacceptable to the Apache Tribe, H.R. 1904 is even worse
    than S. 409, as it completely removes most of the Secretary's
    discretion and consultation functions. Sec. 4(i) of H.R. 1904 removes
    the rights that the Tribe or other concerned citizens would normally
    have under the law before the exchange becomes final. So, even if the
    Secretary's NEPA efforts after the exchange were found flawed, it is
    likely to be argued that no one can seek review from government
    agencies or the courts.
          h.r. 1904's nepa requirements after the exchange are hollow
        Under Sec. 4(j) of H.R.1904, the Secretary of Agriculture has no
    discretion to exercise any meaningful authority over RCM's plan of
    operations or its mining activities on private land absent a federal
    nexus. Once federal lands are transferred to private ownership under
    H.R. 1904, RCM may contend that it is able to mine without having to
    comply with federal law.\4\ RCM will only have to submit a plan of
    operation in advance of producing commercial quantities of minerals.
    However, the Secretary of Agriculture has no authority to reject the
    plan of operations if the information is insufficient to conduct the
    review called for under Sec. 4(j)(2).
    ---------------------------------------------------------------------------
        \4\ Lands in private ownership are exempt from most of the normal
    process for mining on federal lands, which includes jurisdiction of the
    federal government under the Federal Land Policy Management Act of
    1976, 43 U.S.C. Sec. Sec.  1701-1785; the Multiple-Use Sustained-Yield
    Act of 1960, 16 U.S.C. Sec. Sec.  528-531; NEPA, 42 U.S.C. Sec. Sec.
    4321-4347; and 36 C.F.R Subparts A and B. H.R. 1904 further bypasses
    the National Forest Management Act (16 U.S.C. Sec.  1600) and the
    Endangered Species Act (16 U.S.C. Sec.  1531).
    ---------------------------------------------------------------------------
        Under H.R. 1904, no interim exploratory activities, pre-feasibility
    and feasibility operations, or facility construction will be given
    federal scrutiny before production. Completion of the exchange prior to
    an Environmental Impact Statement negates the utility of the EIS
    process and eviscerates NEPA protection. As a result, RCM's activities
    will be subject merely to the limited and inadequate provisions of
    Arizona law.
        Many mining companies have a long history of complying with federal
    laws and regulations. Public input and close scrutiny under NEPA
    provides assurances that the public interest will be served. NEPA
    provides a vital, structured process to assess the impacts of the mine
    on the land, water, cultural resources, animals and plants, while also
    assessing the extent, quality and value of the ore body to be conveyed
    to foreign mining companies. Only then can the American people fully
    understand the amount of taxpayer wealth being transferred by the
    Government.
        It is only because of the federal laws which are in place that
    other miners in Arizona and throughout the country are examples of
    environmental responsibility. RCM and its proponents have completely
    failed to articulate any credible reason why the NEPA process and other
    federal laws should be bypassed and circumvented by H.R. 1904.
      responsible stewardship for apaches, arizonans, and other americans
        H.R. 1904 would lead to irresponsible development with disastrous
    consequences. In the words of Theodore Roosevelt: ``To waste, to
    destroy, our natural resources, to skin and exhaust the land instead of
    using it so as to increase its usefulness, will result in undermining
    in the days of our children the very prosperity which we ought by right
    to hand down to them.'' Theodore Roosevelt was a champion of Edmund
    Burke's ideal that a moral partnership exists between the living, the
    dead and those to be born. That view helped instruct his passion for
    conserving America's natural resources. That view in some aspects also
    parallels the Apache way of life. We should all honor this vision.
        Oak Flat should be preserved for future generations of Americans,
    Arizonans and Apaches and other Indian Tribes. Theodore Roosevelt also
    observed that: ``Conservation means development as much as it does
    protection. I recognize the right and duty of this generation to
    develop and use the natural resources of our land; but I do not
    recognize the right to waste them, or to rob, by wasteful means, the
    generations that come after us.'' That sentiment is reflected in the
    San Carlos Apache Tribe's opposition to this legislative land exchange.
    That sentiment is shared by a substantial coalition of Americans.
        RCM's proposed mine would waste natural resources and would rob
    generations yet to come. It should not be permitted to happen by those
    entrusted with the solemn trust responsibilities for Indians and all
    Americans.
     tribes, arizonans, and other americans need protections from h.r. 1904
        The Tribe has been joined by the 20 member Tribes of the Inter
    Tribal Council of Arizona, local community organizations, miners,
    environmentalists and dozens of others in its opposition to H.R. 1904
    and any other legislation that would convey or otherwise negatively
    harm the Oak Flat area. I respectfully submit that H.R. 1904 should not
    move out of the Committee for the following reasons:

              1. Government-to-government consultation must occur with all
            interested tribes throughout the land exchange process and
            proposed uses;
              2. H.R. 1904 offers no protections for Oak Flat area as a
            Traditional Cultural Property, pursuant to Section 106 of the
            NHPA or, alternatively, exclusion from transfer to RCM under
            the legislation;
              3. There are no guarantees of continued access for tribal
            members to the Oak Flat area;
              4. Certain restrictive covenants should be developed by the
            Secretaries of Agriculture, Interior and State in consultation
            with affected Indian tribes, for the Oak Flat area due to its
            significant tribal archaeological, religious, historical and
            cultural significance;
              5. H.R. 1904 does not include critical water balance measures
            to ensure protections for the region's future water supply;
              6. RCM does not have to comply with applicable federal laws
            and regulations before any decisions on whether to convey
            federal land and wealth, including comprehensive NEPA, FLPMA
            and CEQ review;
              7. H.R. 1904 does not require federal environmental
            compliance; and
              8. There are no meaningful sanctions in H.R. 1904 if RCM
            violates federal laws.
                                   conclusion
        In 1871, the United States established our Reservation. Within just
    a few years, some of the most productive lands within the boundaries of
    the Reservation were taken away by the United States and conveyed to
    settlers and miners for their sole benefit. That was repeated five more
    times over the years. Our burial sites, living areas and farmlands on
    our Reservation were flooded to make way for a federal dam for the
    benefit of others. It is in this historical context that we assess the
    mining proposal and this land exchange.
        H.R. 1904 and S. 409, as reported, do not provide the requisite
    transparency to address many of the fundamental concerns mining
    projects like these present. The billions of dollars which RCM and its
    foreign corporate parents would realize in mining profits and avoidance
    costs for environmental compliance by the premature passage of these
    bills are staggering. There is no unbiased analysis of the potential
    economic benefits or costs of potential environmental damages and
    impacts on the region's water supply.
        The proposed mine presents an untenable threat to the security and
    sustainability of Oak Flat and all it contains, which would be an
    incalculable cultural loss. Under the bills, there is an absence of
    quantifiable royalties for the American treasure that would be given to
    foreign entities in exchange for our ancestral lands.
        Mr. Chairman and Members of the Committee, thank you for the
    opportunity to express our opposition to H.R. 1904 and S. 409 as
    reported.
                                     ______

                                 Tonto National Forest,
                                         Globe Ranger District,
                                           Globe, AZ, February 6, 2012.
    Tonto National Forest Supervisor,

        This letter is to inform you that we and our families are very
    proud to announce the dates of our upcoming Apache Sunrise ceremonial
    dance which is to be held at Oak flat. The dates we have scheduled are
    May 2 through May 16, 2012, We are requesting to meet with you and your
    office as soon as possible to discuss arrangements so that our use of
    Oak flat is a priority among any and all requests that may be submitted
    for the area.
        As you are aware, Oak flat was and has always been the home to us,
    Apaches, as well as being a sacred place that Usen(God) had blessed the
    world in the beginning of time. History, both written and oral, tell of
    the wrongs that took place, the extermination and removal of our people
    to the reservation as prisoners of war, this being mandated because of
    federal policies to remove us from this place. Our Sunrise dance is one
    of the oldest religious practices in North America which celebrates a
    young woman coming of age. The ceremony brings teaching of life's
    blessings for the girl, and for all people, it brings blessings,
    healing and visions of things to come. The ancient songs are sung to
    communicate with all God's creations. We are very fortunate, and
    blessed that the religion was able to survive and overcome all the
    obstacles and forces that were against it. We commend those before us
    who made every effort in keeping and preserving Oak flat as a sacred
    place, those who prayed, those who came for blessings, the holy--
    people, the medicine men, the elders, and the Mount Graham sacred
    runners.
        So this is to notify you that we will be in Oak flat to exercise
    our religious rights and human rights, as your forefathers claimed for
    all U.S. citizens. We appreciate your assistance in advance.
                Respectfully,
                                                Loren Pina, Sr.
                                              Michelle Randall.
                                                 Vansler Nosie.
                                                  Elaina Nosie.
                                     ______

                         National Congress of American Indians,
                                      Washington, DC, February 3, 2012.
    Hon. Jeff Bingaman,
    Chairman, Senate Energy and Natural Resources Committee, 304 Dirksen
            Senate Building, Washington, DC.
    Re: NCAI Opposition to H.R. 1904, the Southeast Arizona Land Exchange
    and Conservation Act of 2011

        Dear Senator Bingaman,

        On behalf of the National Congress of American Indians (NCAI), I
    write to express our strong opposition to H.R. 1904, the Southeast
    Arizona Land Exchange and Conservation Act of 2011. We call upon the
    Senate Energy and Natural Resources Committee to ensure that H.R. 1904
    is not enacted into law.
        H.R. 1904 would direct the Secretary of Agriculture to transfer
    over 2,400 acres of federal lands in southwest Arizona in an area known
    as Oak Flat to a private, foreign-owned mining company called
    Resolution Copper. In 1955, President Eisenhower recognized the unique
    properties of this area and issued an Executive Order setting the land
    aside as a protected area.
        The federal lands proposed for transfer under H.R. 1904 are of deep
    religious, cultural, archeological, historical, and environmental
    significance to the Apaches, Yavapais, and other tribes in the region.
    By collapsing the surface of the earth and depleting and contaminating
    nearby water resources, the proposed mining will destroy the religious,
    cultural, and traditional integrity of Oak Flat for these tribes, as
    well as cause permanent environmental damage. Even in its minimal
    exploration of the region, the mining company has already begun to
    leave a destructive footprint on culturally significant areas and
    precious natural resources in and around Oak Flat.
        The United States government has legal and moral responsibilities
    to manage traditional cultural territories in a way that respects the
    places that hold cultural, historical, spiritual, and religious
    importance to Native nations and their quality of life. H.R. 1904
    breaks these obligations by transferring a known sacred site into the
    private ownership of a foreign mining company and by destroying the
    very elements of this place that make it a sacred site to Native
    peoples.
        We look forward to working with you to ensure that H.R. 1904 is not
    enacted into law. If you have any questions, please contact Robert
    Holden, NCAI Deputy Director, at rholden@ncai.org or (202) 466-7767.
                Sincerely,
                                                Jefferson Keel.
                                     ______

     Prepared Statement of Robert Witzeman, Conservation Chair, Maricopa,
                                Audubon Society
        H.R.1604, or the U.S. Senate version of it, would be a grave
    affront to our nation's environmental and cultural protection laws. It
    greatly weakens standard U.S. environmental, cultural, Native American
    and historical oversight laws such as NEPA and NHPA. It incorporates a
    truncated 36-mos. NEPA oversight review process for what would be one
    of the largest, if not the largest, copper mine in North America. Such
    a curtailed review and oversight process for a mine which the
    Resolution Copper Company states may take some ten to fifteen years to
    build is unwarranted. Essentially all U.S. mine's (some 182 of them
    since NEPA was passed in 1969) have undergone full, unabbreviated NEPA-
    oversight and public input and review-a process RCC now lobbies to
    abbreviate and short-cut.
        This proposed Resolution Copper Company mine special land exchange
    legislation would destroy some 2400 acres of irreplaceable U.S. Forest
    Service land along with a priceless adjacent Sonoran Desert riparian
    (Devil's or GAAN Canyon) ecosystem as well as areas of cultural and
    historical significance to Native Americans in the area.
        As currently written, it would accrue to the benefit a British/
    Australian mining consortium, namely, the Resolution Copper Company
    (RCC), at the expense of those established laws which protect American
    and Native American people. It could circumvent, short-cut, and vitiate
    one of our nation's most important environmental protection laws,
    namely the National Environmental Policy Act (NEPA). It could destroy
    one of Arizona's most ecologically rich Sonoran Desert riparian
    ecosystems, Devil's Canyon. That canyon supports a stunning array of
    Fremont Cottonwood, Goodding Willow, Arizona Black Walnut, Velvet Ash,
    at least four species of oak, Arizona Alder, Arizona Sycamore, New
    Mexico Locust and Arizona Cypress. Black Hawks, Zone-tailed Hawks,
    Peregrine Falcons, and other unique Sonoran Desert birds make their
    home there as do a variety of reptiles and desert plants including the
    endangered, uniquely endemic, Arizona Hedgehog Cactus, Echinocereus
    triglochidiatus arizonicus.
        This legislation, besides potentially being written to short-cut,
    truncate or circumvent NEPA, weakens the Endangered Species Act and
    Native American cultural protections of the endangered biota as well as
    the sacred/historic cultural sites found there. The two foreign mining
    companies composing RCC, BHP (Australian) and Rio Tinto (British/
    Australian) have horrendous third world environmental and human rights
    records. All Arizona tribes have formally opposed this mine. It
    threatens sacred sites, not the least important of which is Apache
    Leap, a historic/sacred site where Apache and Yavapai leapt to their
    deaths rather than surrender to the U.S. Army.
        The passage of the proposed land exchange would assure the
    dewatering and destruction of the irreplaceable riparian biodiversity
    of Devil's Canyon. To obtain the copper ore Resolution would first have
    to remove and is currently removing the groundwater aquifers which
    supply and lie above and adjacent to the Devil's Canyon's riparian
    habitat. Since the mine is thousands of feet deeper than the canyon, it
    would render Devil's Canyon's life-giving aquifer bone dry.
    Additionally, this land exchange bill would give away an ecologically
    and historically priceless USFS campground of riparian willows,
    cottonwoods, and oaks. The oaks have been and are being used by Native
    Americans (for centuries) as a traditional acorn food source. Those
    acorn trees currently overly what would become a vast one-mile diameter
    cavernous block-cave mine hole one and 1/3 times deeper than the Empire
    State Building at its top floor. The area is also well recognized as a
    site of burials, historic artifacts and prayer locations of the
    indigenous peoples (Apache) of this area.
        This area was considered so unique by Presidents Eisenhower and
    Nixon that in separate Executive Orders it was decreed that this USFS
    land should remain permanently off limits to mining because of its
    unique natural attributes.
        Devil's Canyon is a Sonoran Desert riparian masterpiece of springs,
    wetlands, limpid pools and cascading waterfalls. Some 90% of Arizona's
    riparian wetlands, so vital to survival of Sonoran Desert birds and
    wildlife, have already been destroyed by dams, stream diversions,
    mining, groundwater pumping, etc.
        The Resolution Copper consortium, under their past recent proposed
    NEPA-exempt legislation, would not have to reveal to the public where
    they will dispose of their toxic mine wastes or how or where they will
    process their ore. It is variously considered they propose to dump
    their toxic wastes into a notorious BHP copper mine site east of
    Resolution Copper's proposed mine site. BHP's levies have ruptured and
    spilled their toxic products twice in recent years (1993, 1997). The
    spills cost millions of dollars to clean up. The toxic, heavy metal
    mine waste products potentially end up in Roosevelt Lake, a source of
    Phoenix' drinking water and an irreplaceable fish and wildlife
    resource. Other proposed dump areas would be in the Superstition
    vistas/Gold Canyon area to the northwest.
        RCC's land exchange ``swap'' properties are almost entirely run-
    down, overgrazed, abandoned USFS inholdings, having few riparian
    attributes. The few remaining tattered riparian fragments are overrun
    by trespass cattle. The bill provides no funds for Resolution Copper to
    fence or halt the ongoing cattle trespass, soil erosion, and property
    desertification. Here cattle devour the very few remaining cottonwood,
    willow etc. sapling and seedlings. In conclusion, cottonwood, willow,
    and other broad-leaved riparian trees have no recruitment capabilities,
    as these are non-maintained, broken-fenced ``exchange'' properties. The
    bill contains no provision for fencing maintenance of the exchange
    properties. Trespass livestock browse the seedlings and saplings of the
    few riparian trees as if they were ``ice cream.'' Hence, these non-
    guarded, abandoned land swap in-holding properties are ecologically
    valueless to the American public. Any merit of these ``swap''
    properties is a cruel hoax to the American public.
        The above photo of the BHP-owned San Pedro 7B cattle ranch photo is
    erroneously described by Resolution Copper as having significant
    riparian value. In fact, it is a bone-dry riverbed devoid of the
    classic cottonwood/willow riparian galleries vital to and
    characteristic of the San Pedro riparian ecosystem. Its adjacent
    mesquite bosque has no value as habitat for endangered Willow
    Flycatchers, Yellow-billed Cuckoos, or other flagship San Pedro River
    avifauna such as its unique Black, Zone-tailed, and Gray Hawks. These
    are keystone species which the San Pedro is known to benefit.
        Of grave concern here is that Resolution's BHP partner will dewater
    and lower the depth of the Lower San Pedro River's water table by
    building a 35,000-unit real estate development upstream at their
    defunct San Manuel copper mine. This will dry up and terminate the 7B's
    upland, mesquite ``bosque.'' More significantly, the BHP development
    would dewater and adversely impact much of the entire Lower San Pedro
    cottonwood/willow habitat water table with its endangered species and
    unique birdlife.
                                     ______

    Prepared Statement of Brady Robinson, Executive Director, Access Fund,
                                  Boulder, CO
        Dear Chairman Bingaman and Members of the United States Senate
    Committee on Energy and Natural Resources:

        The Access Fund, America's largest national climbers organization,
    is pleased to submit this testimony for inclusion into the public
    record regarding H.R. 1904, the Southeast Arizona Land Exchange and
    Conservation Act of 2011, and S. 409, the Southeast Arizona Land
    Exchange and Conservation Act of 2009, as reported by the Committee
    during the 111th Congress. Since 2004, the Access Fund has been an
    interested party and involved stakeholder to the various versions of
    this proposed federal land exchange, and has met dozens of times with
    Congressional staff about this proposed law that would direct the
    Secretary of Agriculture to convey highly popular public recreational
    rock climbing resources on federal land for use as a massive
    underground copper mine. The Access Fund opposes this bill because it
    destroys public climbing resources, lacks meaningful environmental
    analysis, and is a massive giveaway of public wealth to a foreign-owned
    private mining company.
        This testimony addresses specific problems and suggested solutions
    related to H.R. 1904 and S. 409 that will better serve the public
    interest. If the Southeast Arizona Land Exchange and Conservation Act
    becomes law, Congress should 1) recognize the importance of the
    recreational resource at Oak Flat by requiring specific and significant
    mitigation to compensate for the loss of climbing (as included in
    previous bills authorizing this land exchange), and 2) require
    responsible environmental analysis before this massive mining project
    is allowed to consume public resources and potentially affect the
    environment far beyond the footprint of this proposed mine. These
    elements were supported by both Arizona's US Senators and nearly the
    entire Arizona US House of Representatives delegation in several
    previous land exchange bills involving this area, and it's appropriate
    that these elements remain in the current bill.
                   the access fund and our stake in oak flat
        The Access Fund is a 501(c)3 non-profit advocacy group representing
    the interests of approximately 2.3 million rock climbers and
    mountaineers in the United States. We are America's largest national
    climbing advocacy organization with over 10,000 members and affiliates.
    The Access Fund's mission is to keep climbing areas open and to
    conserve the climbing environment. Preserving the opportunity to climb
    and the diversity of the climbing experience are fundamental to our
    mission. Arizona is one of our largest member states. For more
    information about the Access Fund, log on to www.accessfund.org.
        Rock climbers are numerically the largest recreation group that
    uses the Oak Flat/Queen Creek area, and we also stand to suffer the
    largest loss if this area is destroyed by mining activities. There are
    over one thousand established rock climbs in the Oak Flat area\1\ that
    will subside into an enormous crater if Resolution Copper Mining (RCM)
    is allowed to proceed with their present plan to ``block cave'' mine
    the underlying ore deposit.
    ---------------------------------------------------------------------------
        \1\ See attached a summary* of the popular public climbing
    resources in the area affected by this land exchange.
        * Document has been retained in committee files.
    ---------------------------------------------------------------------------
        Since 2004, the Access Fund has worked with a variety of climbing
    groups in Arizona, conservation organizations, officials from local and
    federal government, and Resolution Copper Mining to address the severe
    impacts that this bill would cause to Oak Flat and the recreation
    community in central Arizona. Reasonable minds may differ on the best
    approach to conserve the environment and climbing opportunities if a
    mine is to go forward. For example, the Concerned Climbers of
    Arizona\2\ seek to minimize surface disturbance at Oak Flat and
    advocate for the co-existence of mining and recreational activities
    (and are thus opposed to both H.R. 1904 and S 409), while Queen Creek
    Coalition (QCC)\3\ seeks to ``maximize rock climbing resources in the
    Queen Creek Region'' through direct negotiations with RCM. However, on
    January 16, 2012, the QCC reported that negotiations were not going
    well and that ``Queen Creek Coalition is and likely will remain opposed
    to Resolution's proposed land exchange.'' While RCM has expressed an
    interest in upholding their commitments to the climbing community, QCC
    reports that RCM's latest offer ``fell far short of providing either
    reasonable access to Queen Creek climbing or compensation for the
    anticipated loss of much of the Queen Creek climbing area.''\4\
    ---------------------------------------------------------------------------
        \2\ http://www.concernedclimbers.com/
        \3\ http://www.theqcc.org/
        \4\ Id.
    ---------------------------------------------------------------------------
        The Access Fund has long had a strong interest and played a
    significant role in the negotiations related to the recreational
    impacts of this land exchange. This mine will destroy thousands of
    specific climbing routes and represent the single largest loss of
    climbing ever. Accordingly, climbers should at least receive the level
    of compensation promised in past versions of this bill. Also, before
    proceeding it is critically important for the US Forest Service and
    general public to more fully understand the scope and impacts of this
    proposed project. The Access Fund also believes strongly that this bill
    should require a pre-exchange environmental analysis as required by the
    National Environmental Policy Act. This common process would
    responsibly foresee and mitigate potentially significant environmental
    issues and would best serve the public interest.
        Because provisions favorable to climbers have been removed from
    H.R. 1904, new environmental concerns have emerged, and climbers have
    yet to complete an agreement with RCM to address the loss of climbing
    resources, the Access Fund opposes H.R. 1904 while these issues remain
    unresolved.
                              oak flat recreation
        Located near Queen Creek Canyon in the Tonto National Forest, the
    Oak Flat Campground and the abundant climbing resources therein and
    surrounding area would be transferred through this bill to Resolution
    Copper Mining (RCM) who plans to mine the area by using the extremely
    destructive yet highly profitable ``block-cave'' mining method. The
    value of the Oak Flat area as a recreational resource has been
    officially acknowledged since the 1950s. The Eisenhower Administration
    foresaw this exact threat of mining to Oak Flat when in 1955 it issued
    Public Land Order 1229 and specifically placed this land off-limits to
    all future mining activity. The Nixon Administration subsequently
    issued PLO 5132 in 1972 to modify PLO 1229 and allow ``all forms of
    appropriation under the public land laws applicable to national forest
    lands except under the US mining laws.'' Various attempts over the
    years by mining companies to lift this protection have failed. This
    proposed law would lift those longstanding protections.
        For decades climbers have frequented the Oak Flat/Queen Creek
    Canyon area in Central Arizona to scale the vast assortment of cliffs,
    canyons, and boulders.\5\ Climbing at Oak Flat--one of the country's
    few areas widely visited during winter months--has become so popular
    that for years the area hosted the Phoenix Bouldering Contest which
    eventually became the world's largest such event.
    ---------------------------------------------------------------------------
        \5\ See a sample of the climbing resources found in the Oak Flat
    and Queen Creek area here: http://www.mountainproject.com/v/queen-
    creek-canyon/105788089
    ---------------------------------------------------------------------------
            compensation promised to climbers removed from h.r. 1904
        Despite climbers losing the extensive and longstanding public
    recreation resource at Oak Flat, H.R. 1904 provides no compensation in
    the form of a ``replacement'' climbing area or any other means. Many of
    the previous commitments of compensation to climbers--in former bills
    (S. 1122, H.R. 4880, S. 409) and promises by RCM--are now missing.
    These include:

              1. Access license to RCM properties with climbing
            resources.--Previous bills directed RCM to execute a
            recreational use agreement that permitted continued public use
            of Oak Flat for a period after the land exchange (before safety
            considerations required closure of these popular areas), and
            access to specific climbing areas owned by RCM. Although RCM
            executed a recreational use license with the Access Fund in
            2006 (unilaterally revocable by RCM), which was subsequently
            transferred to the QCC, this short-term license has expired.\6\
            Accordingly, The Mine Area and Euro Dog Valley climbing areas,
            as well as the Magma Mine Road (which provides access to these
            areas and to the Lower Devil's Canyon climbing area) could be
            closed almost immediately, access to The Pond and Atlantis
            climbing areas in Queen Creek Canyon is not secured, and RCM
            has yet to guarantee access to Upper Devil's Canyon, Lower
            Devil's Canyon (AKA Gaan Canyon), or Apache Leap.
    ---------------------------------------------------------------------------
        \6\ See http://www.theqcc.org/.
    ---------------------------------------------------------------------------
              2. Climbing park at Tam O'Shanter Peak.--Previous agreements
            to compensate the climbing community for the loss of Oak Flat
            promised the creation of a new 2,000-acre state park focused on
            rock climbing in the vicinity of Tam O'Shanter Peak (``Tamo'')
            near Hayden, Arizona that would ``replace'' the climbing and
            bouldering areas eventually mined at Oak Flat. The State of
            Arizona declined RCM's offer to acquire and incorporate
            ``Tamo'' into its state park system primarily because of the
            high maintenance costs associated with the access roads
            combined with severe limits in the state budget. Access to Tamo
            (most of which is already public BLM land) is now not included
            in any compensation for Arizona's rock climbing community. The
            access road to Tamo remains complicated by private property
            access restrictions, requires high-clearance vehicles, and is
            much further from Phoenix where most Oak Flat and Queen Creek
            climbers live.
              3. The Pond property transferred to the US Forest Service.--
            Another piece of compensation to the climbing community
            initially written into previous versions of the land exchange
            bill was for RCM to transfer ``The Pond'' property, perhaps the
            most popular climbing area in the larger Oak Flat/Queen Creek
            area, to the US Forest Service to be managed for dispersed
            recreation. Despite inclusion into previous land exchange
            bills,\7\ The Pond parcel was also pulled from H.R. 1904. We
            believe that the transfer of RCM's ``Pond'' parcel to the US
            Forest Service or other entity--or the creation of an access
            easement for climbers--is a de minimus form of compensation for
            the loss of the popular and highly valued public recreation
            resource at Oak Flat.
    ---------------------------------------------------------------------------
        \7\ S. 409 and H.R. 4880 from the 111th Congress.
    ---------------------------------------------------------------------------
              4. Financial support for dispersed recreation.--Previous
            bills transferring Oak Flat out of the public domain required
            RCM to provide financial compensation dedicated to recreation
            facility development and management.\8\ This financial
            compensation is also now absent from H.R. 1904.
    ---------------------------------------------------------------------------
        \8\ Id.
    ---------------------------------------------------------------------------
              5. No campground replacement.--While previous versions of
            this bill required a new campground be constructed for the loss
            of the Oak Flat Campground (currently protected from mining
            activities by Public Land Order 1229), H.R. 1904 includes no
            mandate to compensate for the loss of this decades-long
            recreation resource protected by executive order since the
            Eisenhower Administration.
    h.r. 1904 lacks meaningful environmental analysis and fails the public
                                 interest test
        The Southeast Arizona Land Exchange and Conservation Act of 2011
    fails to require any meaningful environmental analysis prior to the
    transfer of public land to RCM. This bill would circumvent the public
    process mandated under the National Environmental Policy Act (NEPA)
    requiring prior analysis of any major federal action on public land.
    Such an analysis would assess the impact mine operations would have on
    the health of nearby residents, water quality, air quality, cultural
    resources, recreation, transportation, and the overall environment. A
    pre-exchange NEPA review is good policy, was included in previous
    versions of this land exchange bill, and should be included in H.R.
    1904 if this law is passed. The Access Fund believes that NEPA must be
    fully complied with to address all federal actions and decisions,
    including those necessary to implement Congressional direction such as
    this highly consequential land exchange.
        As is evident elsewhere around Arizona, state and local permitting
    of mine operations has proven ineffective to ensure the prevention of
    significant impacts to human health, water, and other sensitive
    resources.\9\ Further, it is bad policy to waive the requirement that a
    range of alternatives be considered before RCM obtains title of the
    property and that decisions are appropriately informed, especially for
    controversial and highly consequential issues such as this land
    exchange. Likewise there will be no meaningful opportunities for public
    involvement. NEPA requires that, before taking a discretionary
    decision, the federal agency consider the environmental impacts of a
    proposed major federal action.
    ---------------------------------------------------------------------------
        \9\ See for example: Copper Facilities Release Most Toxic Chemicals
    In Arizona at http://www.azpm.org/arizona.copper/.
    ---------------------------------------------------------------------------
        The environmental review process outlined in H.R. 1904 is a sham
    because it fails to require a NEPA analysis of mining impacts at Oak
    Flat prior the transfer of title to RCM. While the 2009 version of this
    bill (S. 409) at least required the Secretary of Agriculture to
    ``complete any necessary environmental reviews and public interest
    determination on the land exchange not later than 3 years after the
    date Resolution Copper submits a mining plan of operation,''\10\ such
    NEPA review was to be complete before title of Oak Flat was transferred
    to RCM. Conversely, H.R. 1904 only requires a NEPA analysis within 3
    years of a proposed mine plan of operations being submitted and after
    the Federal land has already been conveyed to RCM. Once the land
    exchange is consummated and these lands are in the private ownership of
    RCM, the Secretary of Interior will have virtually no discretion to
    require a full range of planning and management alternatives. No one
    truly believes that the Federal government would have any means to
    significantly influence mining operations once title to Oak Flat is
    conveyed to RCM.
    ---------------------------------------------------------------------------
        \10\ An exchange agreement would then be executed ``no later than
    90 days after the date of the public interest determination.''
    ---------------------------------------------------------------------------
        A better approach for this bill is to follow NEPA procedures as
    required as if this land exchange was evaluated through the normal
    administrative process. An administrative land exchange would require
    an environmental impact statement pursuant to NEPA prior to
    consummating the land exchange itself (as done with two major Arizona
    land exchanges involving mining: the Ray Mine and the Safford land
    exchanges). Such an analysis would require a mining plan of operations,
    a hard look at environmental and cultural impacts, an analysis of
    cumulative impacts to sensitive resources, and possible requirements
    for impact mitigation. Significantly, a full NEPA review would require
    an examination of a full range of alternatives including whether a
    potentially a less environmentally harmful--yet economically feasible--
    mining alternative could be employed underneath Oak Flat for this mine
    which did not cause surface subsidence.
        H.R. 1904 also unreasonably requires the exchange to be completed
    within one year. Such a rushed timetable will eliminate any meaningful
    analysis of this project and limit a real determination whether this
    mine is in the public's interest. At least two to three years are
    needed to complete environmental reviews, appraisals, title documents,
    and tribal consultations to understand whether this land exchange and
    subsequent mine is truly in the public interest as required by Section
    206 of the Federal Land Policy and Management Act. The current language
    in H.R. 1904 would provide no teeth requiring that the public is
    informed about the consequences of this proposal, including:

       What is the scope of the crater that will result when the
            surface of Oak Flat subsides and how will this affect water
            quantity and quality?
       How will RCM process the ore and where will the mining waste
            be transported and deposited?

        Finally, the conclusory statement in section 2 (A)(2) of H.R. 1904
    that ``the land exchange is, therefore, in the public interest'' is
    without merit absent a meaningful environmental review of this massive
    mining project with full opportunities for public involvement. Because
    the provisions in H.R. 1904 virtually ensure the development of this
    mine, and the public has very little information on the environmental
    implications of this mine, this exchange is not in the public's
    interest.
        For these reasons stated herein, the Access Fund opposes H.R. 1904.
    Thank you for your attention to this important matter.
                                     ______

       Prepared Statement of the National Association of Tribal Historic
                             Preservation Officers
        The National Association of Tribal Historic Preservation Officers
    (NATHPO), which represents tribal historic and cultural preservation
    interests on-and off-tribal lands, respectfully opposes H.R. 1904, the
    Southeast Arizona Land Exchange and Conservation Act of 2011. H.R. 1904
    would transfer more than 2,400 acres of public land to a privately
    owned mining company without assurances that unique and irreplaceable
    historic and cultural resources will be protected. Resolution Copper
    Mining, the primary beneficiary of the transfer, intends to remove the
    ore beneath Oak Flat, a popular campground and site of significance to
    several area Tribes, through block mining. The drill pads, mine shafts
    and tunnels, roads and other human created disturbances generated by
    the mine will have devastating consequences on the area's ecosystem,
    thereby severely affecting its religious and cultural integrity. H.R.
    1904 also proposes to exempt the transfer from federal law, thus
    removing the Federal government's responsibility to consult with Indian
    tribes, as well as limit the public's opportunity to comment during the
    environmental review process.
       the national association of tribal historic preservation officers
        NATHPO is a national not-for-profit membership association of
    tribal governments that are committed to preserving, rejuvenating, and
    improving the status of tribal cultures and cultural practices by
    supporting Native languages, arts, dances, music, oral traditions,
    cultural properties, tribal museums and cultural centers, and tribal
    libraries. NATHPO assists tribal communities to protect their cultural
    properties, whether they are naturally occurring in the landscape or
    are manmade structures. In addition to members who serve as the Tribal
    Historic Preservation Officer (THPO) for their respective tribe, our
    membership includes many other tribal government officials who support
    our mission and goals. NATHPO provides technical assistance, training,
    timely information, original research, and convenes an annual national
    meeting of tribal representatives, preservation experts, and federal
    agency officials.
        In 1998, the initial cohort of 12 officially recognized Tribal
    Historic Preservation Officers (THPOs) created NATHPO. In 2012, there
    are now 131 officially recognized THPOs whose tribal governments are
    responsible for managing over 50 million acres spanning 30 states. In
    addition to convening training workshops and national meetings, NATHPO
    provides technical assistance and conducts original research.
        Several Arizona Indian tribes are members of the NATHPO. NATHPO
    supports the tribe's expressed concerns and opposition to this land
    exchange.
                             areas of significance
        The area proposed to be transferred out of federal control includes
    a popular campground called Oak Flat, set aside by President Eisenhower
    in 1955 specifically for recreational purposes. Oak Flat is also a
    place of profound religious, cultural, and historic significance to
    many Indian tribes, including the San Carlos Apache Tribe, the White
    Mountain Apache Tribe, the Yavapai-Apache Nation, the Tonto Apache
    Tribe, the Fort McDowell Yavapai Nation, the Hualapai Tribe, Jicarilla
    Apache Nation, the Mescalero Apache Tribe, the Pueblo of Zuni among
    others. See Hearing before the Subcommittee on Public Lands and Forests
    of the Committee on Energy and Natural Resources, United States Senate
    on S.409, 111th Cong., S. Hrg. 111-65 (June 17, 2009).
        H.R. 1904, as passed by the House of Representatives on October 26,
    2011, would allow Resolution Copper Mining (RCM)--a joint venture of
    foreign mining giants Rio Tinto and BHP Billiton--to secure private
    ownership of over 2,400 acres of U.S. Forest Service lands and the ore
    and other minerals located underneath these lands in order to
    facilitate an unprecedented large-scale block cave copper mine in the
    Oak Flat region (collectively called ``Oak Flat''), which is bounded by
    portions of Apache Leap (referred to as Gohwhy Gah Edahpbah by the
    Yavapai) and Gaan Canyon (also referred to inappropriately as ``Devil's
    Canyon'' by non-Indians mistaking the Apache Angel dancers as devil
    dancers), and contains the 760-acre Oak Flat Withdrawal. Oak Flat is
    located within the aboriginal lands of, among others, the Western
    Apache and Yavapai tribes. Oak Flat has always been and continues to be
    a place of profound religious, cultural, and historic significance to
    the San Carlos Apache Tribe, the White Mountain Apache Tribe, the Fort
    McDowell Yavapai Nation, the Yavapai-Apache Nation, the Tonto Apache
    Tribe, and many other Native Nations.
                            concerns with h.r. 1904
    I. NEPA Exemption
        The H.R. 1904 requires review under National Environmental Policy
    Act (NEPA), 42 U.S.C. Sec.  4332, only after the land transfer is
    complete. Such ex post facto review is clearly contrary to the spirit
    and intent of NEPA which requires that federal agencies analyze
    alternatives prior to making decisions that would affect the
    environment.\1\ The U.S. Forest Service has stated this portion of the
    legislation as its ``principal concern'' since ``[a]n environmental
    review document after the exchange would preclude [USFS]. . .from
    developing a reasonable range of alternatives to the proposal and
    providing the public with opportunities to comment.'' Southeast Arizona
    Land Exchange and Conservation Act of 2011: Hearing on H.R. 1904 Before
    the Subcomm. on National Parks, Forests, and Pub. Lands of the H. Comm.
    on Natural Res., 112th Cong. (2011) (statement of Mary Wagner,
    Associate Chief, U.S. Forest Service). We agree. NEPA review after land
    has been removed from federal control is clearly too little, too late
    and not in the public interest.
    ---------------------------------------------------------------------------
        \1\ See, Center for Biological Diversity v. U.S. Dept of Interior,
    623 F.3d 633 (9th Cir. 2010)(holding that BLM violated NEPA by not
    taking a hard look at the environmental consequences of transferring
    public land to a private copper mining corporation in Arizona.)
    ---------------------------------------------------------------------------
    II. NHPA Exemption
        Further, H.R. 1904 exempts the Forest Service from its
    responsibility to comply with Section 106 of the National Historic
    Preservation Act (NHPA), 16 U.S.C. Sec.  470f. Section 106 requires
    federal agencies to consider the effects of their actions on historic
    resources before taking action which may affect historic properties.
    The Section 106 regulations make clear that the ``[t]ransfer, lease, or
    sale of property out of Federal ownership or control without adequate
    and legally enforceable restrictions or conditions to ensure long-term
    preservation of the property's historic significance'' is an adverse
    impact for which the Forest Service is required to consult with
    stakeholders including Tribes which attach spiritual significance to
    the site. 36 C.F.R. Sec.  800.5(a)(2)(vii).
        While making some effort to involve interested stakeholders after
    the land is transferred to Resolution Copper, the legislation clearly
    circumvents any meaningful consultation process. For instance,
    consultation could start as late as 30 days from the date of enactment.
    See H.R. 1904, Sec.  4(c), yet, ironically, if requested by RCM, the
    Secretary is mandated to begin issuing permits for mineral exploration
    activities underneath the Oak Flat Withdrawal Area, from platforms
    outside the area, starting thirty (30) days after the enactment of H.R.
    1904. See id. Sec.  4(f)(1)(A). This allows for the initiation of
    activities which could disrupt the historical and cultural integrity of
    the site before any meaningful consultation was mandated. Then, ninety
    (90) days after enactment, by special use permit, exploration
    activities could be conducted inside the Oak Flats Withdrawal area
    itself, if requested by RCM. See id. Sec.  4(f)(1)(B). The true extent
    of these activities cannot be known as no map is available for the
    public until enactment of H.R. 1904. See id. at Sec.  10(b)(3).
    III. Violation of Fiduciary Duty to Tribes
        H.R. 1904 directly contradicts numerous statutes and regulations
    Congress has passed with the intent of protecting the religious,
    cultural, social integrity of Indian tribes to ensure that the policies
    and procedures of federal agencies do not impede the exercise of
    traditional religious practices. Most critically, H.R. 1904 circumvents
    the Forest Service's fiduciary duty to the Tribal community to engage
    in meaningful government-to-government consultation. See, Pit River
    Tribe v. U.S. Forest Serv., 469 F.3d 768, 788 (9th Cir.2006).
        Under the United States Constitution, treaties, federal law, and
    executive orders, the United States has a trust responsibility to
    consult with tribes on a government-to-government basis about federal
    actions that impact tribes. The United States must consult with tribes
    before making any decision on whether to convey Oak Flat, federal land,
    to Resolution Copper. For consultations to be effective, the tribes and
    the United States need to have objective information about the proposed
    mining activities and its impacts. To date we do not have this
    information. Further, the United States has a responsibility to protect
    sacred sites located on federal lands. Tribes ceded millions of acres,
    including Oak Flat, to the United States in return for protections set
    forth in treaties.
    IV. Tribal Sacred Site
        Congress has enacted laws to protect the religious and cultural
    integrity of Indian people. This was to ensure that the policies and
    procedures of various Federal agencies that may impact the exercise of
    traditional Indian cultural practices are brought into compliance with
    the constitutional injunction that Congress shall make no laws
    abridging the free exercise of religion. The religious and cultural
    importance of the Oak Flat area does not only reside in isolated spots
    or particular locations or archeological sites, but rather in the
    integrity of the ecosystem and environment of the area as a whole.
    Thus, impacts to any part of Oak Flat have an impact on the religious
    and cultural integrity of the area as a whole--both as a holy and
    religious place and as a place of continued traditional and cultural
    importance to Apache, Yavapai, and other indigenous people.
        Because of its continued importance to Indian tribes, nations and
    communities, Oak Flat, as well as specific places within Oak Flat, are
    eligible for inclusion in, and protection under, Section 106 of the
    National Historic Preservation Act, 16 U.S.C. Sec.  470 et seq.
    (``NHPA''). Further, Oak Flat meets the criteria as a ``sacred site''
    within the meaning of Executive Order 13007, Indian Sacred Sites, May
    24, 1996, 61 Fed. Reg. 26771 (``E.O. 13007''), as well as pursuant to
    the American Indian Religious Freedom Act, 42 U.S.C. Sec.  1996, et.
    seq. (``AIRFA''), and related laws, regulations and policies.
                                   conclusion
        We appreciate this opportunity to provide testimony to the
    Committee. NATHPO opposes H.R. 1904 and any other legislation that
    would convey the Tribal ancestral lands commonly referred to as ``Oak
    Flat'' to RCM for mining that would destroy a sacred site of tribes and
    Indian people. If enacted, H.R. 1904 will permanently destroy Oak Flat
    and possibly surrounding areas of importance to tribes and Indian
    people. The area will never recover from RCM's mining activities.
                                     ______

                                                     February 22, 2012.
    U.S. Senate,
    Energy and Natural Resources Committee, Washington, DC.
        Dear Senator,

        We are organizations representing millions of Americans who are
    opposed to H.R. 1904, ``the Southeast Arizona Land Exchange and
    Conservation Act of 2011,'' which passed out of the House of
    Representatives last October and S. 409, ``the Southeast Arizona Land
    Exchange and Conservation Act of 2009'', which died at the end of the
    111th Congress. Both bills would allow Resolution Copper Mining (RCM)
    to privatize 2,422 acres of public lands in the Tonto National Forest
    that are sacred to Native Americans, ecologically significant, and
    highly valued by recreationalists. Resolution Copper is a project of
    two foreign companies, Rio Tinto--55% owner--headquartered in the
    United Kingdom, and BHP--Billiton--45% owner--headquartered in
    Australia. Resolution Copper plans to turn the land into a large
    underground copper mine by using a process which would create a crater
    threequarters of a mile wide and 300-400 feet deep. Part of this area
    was set aside from mineral exploration and extraction for public use by
    President Eisenhower by Public Land Order 1229, an order that was
    reinforced by President Nixon. Overturning the executive order for the
    benefit of foreign mining companies sets a dangerous precedent for
    religious freedom and public lands protection.
        H.R. 1904 allows RCM to bypass complying with the National
    Environmental Policy Act (NEPA), as would be required if this land
    exchange was evaluated through the administrative process. The
    legislation under consideration by Congress would require the land
    exchange to happen before going through the legally required steps of
    an administrative exchange. An administrative exchange requires a NEPA
    Environmental Impact Statement on the exchange itself, including a
    Mining Plan of Operations, an examination of alternatives, the
    environmental and cultural impacts, the cumulative impacts (including
    past and anticipated impacts in the area), and possible mitigation of
    the impacts, as well as formal consultation with Native American
    tribes. If this bill were to become law, the public would be denied
    their right to offer input through the NEPA process, and agencies would
    be deprived of their ability to effectively protect communities and the
    environment by making it impossible to make timely and informed
    decisions that are in the public interest.
        S. 409 has significant problems, but at least requires NEPA
    analysis prior to the land exchange as well as a determination from the
    Secretary of Agriculture that the exchange is in the public interest.
    S. 409 would immediately allow Resolution Copper Mining to do
    exploration under the Oak Flat Campground withdrawn area. It includes
    no mandate for a replacement campground for Oak Flat, and it leaves
    tremendous wiggle room for the appraisal process, which would likely
    mean a bad deal for the US taxpayer regarding fair payment for the
    tremendous natural and mineral resources we would lose.
        Both bills are opposed by conservationists, preservationists,
    recreationalists, and people who live in communities near the proposed
    mine, and are strongly opposed by Native American tribes across the
    country. Just recently, the Navajo Nation tribal council unanimously
    passed a resolution in opposition to H.R. 1904. Other Indian tribes,
    nations and pueblos have also expressed strong opposition to both
    bills, including but not limited to tribes throughout Arizona, New
    Mexico and California, as well as tribal organizations including among
    others the Inter Tribal Council of Arizona, the National Congress of
    American Indians, the All Indian Pueblo Council, the United South
    Eastern Tribes and the Inter Tribal Council of Nevada.
        Both versions of the Southeast Arizona Land Exchange and
    Conservation Act would privatize public sacred lands which are of
    incalculable value to Native Americans, birders, rock climbers, and
    endangered species. They would do so by sidestepping the formal
    channels of approval that all mines using federal public lands go
    through, only to benefit the interests of a foreign mining corporation.
    We ask that you oppose these bills and allow these contentious and
    critical issues to be worked through by the normal transparent public
    administrative process.
                Sincerely,*
    ---------------------------------------------------------------------------
        * Additional signatures have been retained in committee files.
    ---------------------------------------------------------------------------
                            Brady Robinson, Executive Director.
                                                       The Access Fund.
                       L. Penn Burris, CFO/Membership Director,
                                              The American Alpine Club.
                                  Roger Featherstone, Director,
                                       Arizona Mining Reform Coalition.
                                 William Snape, Senior Counsel,
                                       Center for Biological Diversity.
                                     ______

           Prepared Statement of the Society for American Archaeology
        The Society for American Archaeology (SAA) thanks the Committee for
    holding this hearing on H.R. 1904, and the Southeast Arizona Land
    Exchange Act. We appreciate the opportunity to provide comments on this
    important bill.
        SAA is an international organization that, since its founding in
    1934, has been dedicated to the research about and interpretation and
    protection of the archaeological heritage of the Americas. With nearly
    7,000 members, SAA represents professional archaeologists in colleges
    and universities, museums, government agencies, and the private sector.
    SAA has members in all 50 states as well as many other nations around
    the world.
        H.R. 1904 would direct the U.S. Forest Service to accept more than
    1100 acres, and the Bureau of Land Management to accept more than 4000
    acres, of non-federal land in the Arizona counties of Yavapai, Pinal,
    Gila, Maricopa, Coconino, and Santa Cruz, from Resolution Copper (RC).
    In exchange, RC would receive more than 2,400 acres of federal land in
    Pinal County. Included in the land deeded to RC would be the Oak Flat
    Campground, in which mining activity is prohibited. In 2009, during the
    111th Congress, SAA testified in opposition to an earlier version of
    H.R. 1904 on the grounds that the proposed exchange did too little to
    protect the cultural resources contained within and upon the federal
    lands to be disposed of, especially considering how important these
    places are to several Native American tribes. We can see little, if
    any, improvement in this regard with H.R. 1904, and thus oppose the
    measure in its current form.
        It is our understanding that under the bill, RC would be able to
    conduct subsurface mineral exploration and potential extraction
    activities beneath the surface of the Oak Flat Campground. Further, RC
    could seek special use permits to conduct ``underground activities'' at
    Apache Leap itself. Protecting the surface of these sensitive areas,
    while useful, does nothing to ensure the preservation of sites that lie
    below the top layers of ground. H.R. 1904 would also effectively turn
    the environmental review process under the National Environmental
    Policy Act into a time-limited rubber-stamp of RC's proposed plan of
    mining operations. The review would take place only after RC had
    conducted exploratory and pilot mining activities, presenting the
    federal government with an additional disincentive to delay extraction.
        The significance of Apache Leap and Oak Flat to the San Carlos
    Apache, the Zuni, and other tribes, cannot be overstated. These lands
    play vital cultural, historic, and religious roles in the lives of
    their peoples. There are few areas of greater significance,
    archaeologically-speaking, in the entire Southwest. The numerous known
    and as-yet unknown sites and resources, located both above and below
    the surface of the earth, currently enjoy protection under numerous
    federal statutes, including the National Historic Preservation Act, the
    Archaeological Resources Protection Act, and the Native American Graves
    Protection and Repatriation Act, among others. By transferring these
    lands out of federal ownership, H.R. 1904 would remove this protection
    and replace it with a wholly-inadequate substitute that places
    virtually no priority on the preservation of cultural and heritage
    resources. While the lands to be gained by the government under the
    exchange detailed in H.R. 1904 contain substantial natural and
    culturally-significant assets, this in no way justifies the degradation
    of Oak Flat.
        SAA understands that the difficult economic conditions that faced
    the residents of south-east Arizona and the nation in 2009 persist
    today. As stated in its testimony at that time, SAA does not oppose any
    and all economic development on federal land out of hand. It needs to
    be reiterated, however, that cultural and historic resources are non-
    renewable, and that federal law has, since 1906, recognized the need
    for measures to prevent or mitigate damage to such resources when other
    activities are going on. Economic development and cultural resources
    protection does not have to be a zero-sum game. H.R. 1904 rejects the
    balancing of priorities that is envisioned in current law and
    regulation in favor of a carve-out that will force the government to
    abjure many of its responsibilities to the public. As such, SAA opposes
    this legislation, and urges the Committee to find another approach.
        Thank you very much for your consideration of this important
    matter.
                                     ______

       Prepared Statement of Clinton M. Pattea, President, Fort McDowell
                                 Yavapai Nation
        Mr. Chairman and members of the Committee, on behalf of Fort
    McDowell Yavapai Nation (herein `Nation' or `Fort McDowell'), I
    respectfully provide our serious concerns and describe how the Yavapai
    People are affected by H.R. 1904 (herein `Bill' or `'Legislation') that
    authorizes and directs the exchange and conveyance of National Forest
    and other land in central and southeast Arizona. A hearing was held on
    June 14, 2011 on this legislation by the U.S. House of Representatives,
    Natural Resources Committee Subcommittee on National Parks and Public
    Lands. The stated purpose of this bill is ``to facilitate the efficient
    extraction of mineral resources in southeast Arizona by authorizing and
    directing an exchange of Federal and non-Federal land, and for other
    Purposes.'' The other purported purposes are ``promoting significant
    job and other economic opportunities,'' ``significantly enhancing
    Federal, State, and local revenue collections,'' ``securing Federal
    ownership and protection of lands,'' ``protecting the cultural
    resources and other values of the Apache Leap,'' ``facilitating the
    development of a world class domestic copper deposit capable of meeting
    a significant portion of the annual United States demand.'' My
    testimony specifically addresses these claims and to provide evidence
    as to why this proposed mining operation does not meet these criteria.
        The stated purpose of this February 9th hearing was to compare and
    contrast H.R. 1904 with the text of this Committee's Substitute to S.
    409 (herein `Bill' or `'Legislation') reported to the Senate in March
    2010 under the previous Congress. The Nation's testimony cannot compare
    and contrast these two bills for one simple reason; it would be
    attempting to compare the lesser of two evils. However, I will address
    how both bills sacrifice our holy land by; 1) directing a trade and
    ownership of federal land that is currently protected from mining and
    mining activities to foreign private interests and countries and 2)
    condoning destructive mining activities that will desecrate the entire
    region. Additionally, the legislative title is the ``Southeast Arizona
    Land Exchange and Conservation Act...'' but the federal land to be
    traded is hardly conserved. The conservation connotation is
    disingenuous at best and should be stricken. My comments specifically
    address and provide evidence as to why this proposed mining operation
    causes great concern to my People.
                       who and what is resolution copper?
        At issues is a large undisturbed ore body beneath the original
    Magma Mine and about 7000 ft. below Apache Leap (1000 ft. below sea
    level), as well as Oak Flat and Devil's Canyon, just east of Superior,
    AZ. Resolution Copper Mine LLC (herein `RCM'), a joint venture between
    foreign mining multinationals Rio Tinto plc/Rio Tinto Limited (herein
    `Rio Tinto') and BHP Billiton (herein `BHP'), are exploring the
    feasibility of mining a deposit with an uncorroborated future `value.'
    Since Rio Tinto is the major stakeholder and has taken the lead in this
    legislation we acknowledge this legislation as Rio Tinto's as well as
    its subsidiary RCM. RCM, is a Delaware based Limited Liability Company.
    Delaware LLC's do not require the formalities of a Corporation, they
    can be formed from anywhere in the world, no minimum investment is
    required, no annual report is required only a payment of an annual tax
    of $250.00. Congressional legislation is intended to accommodate and
    benefit Rio Tinto and its foreign investors by directing the Secretary
    of Agriculture to convey and dispose of 2406 acres of public lands
    within the National Forest (herein `FS') including the federally
    Protected and culturally sacred Oak Flat area. The mine will result in
    permanent destruction of beloved lands that were once inhabitant by the
    Yavapai People. These traditional lands were and remain today
    fundamentally important, culturally significant, highly spiritual and
    religious to the Yavapai. Notably, nine percent of Rio Tinto is owned
    by the state-controlled Aluminum Corporation of China, also known as
    Chinalco. More specifically; ``Shining Prospect Pte. Ltd, a Singapore
    based entity owned by Chinalco acquired 119,705,134 Rio Tinto plc
    shares on 1 February 2008. Through the operation of Corporations Act as
    modified, this gives these entities and their associates voting power
    of 9.32 per cent in the Rio Tinto Group on a joint decision matter,
    making them ``substantial shareholders of Rio Tinto Limited as well as
    of Rio Tinto plc'' (emphasis added) (Rio Tinto, 2010 annual report).
    Thus, a significant portion of the federal lands to be exchanged,
    including mineral and other natural resources, would be held by China
    through its ownership stake in Rio Tinto. In the June hearings, when
    questioned by both Congressman Bishop and Grijalva on China's role in
    the company, Rio Tinto attempted to marginalized their role.
       the logic presented in defense of h.r. 1904 or other legislation
        concerning this mine is not rational or defensible on any level
        On February 9th, Rio Tinto's Jon Cherry stated in his testimony
    that ``Minerals are where you find them and we believe that when a
    critical mineral deposit of this magnitude is discovered, there are
    appropriate and compelling reasons for the Congress to make Federal
    land use decisions to facilitate their development as you have on many
    other issues in the past.'' Unfortunately, Mr. Cherry and Rio Tinto's
    perception is that money and profits are the only compelling reasons to
    determine the necessity of the exchange and subsequent mining of this
    sacred site. This is their sole rational for RCM. Whereas, Senator
    Bingaman began the hearing stating that under H.R. 1904 ``there are
    issues that obviously need to be reviewed and answered to be before the
    exchange takes place'' and that there will be ``significant impact on
    the land.'' He further stated that there are ``disagreement on cultural
    resources and sacred sites.'' We concur with the Senator's statements
    and will address each these issues throughout our testimony.
        One of the Nation's principal concerns is what Rio Tinto has
    assured themselves--the intentional limited role of the federal
    government to make scientific, sound determinations, and what is in the
    best interest to the United States as to: 1) whether there is a direct
    benefit or the level of that benefit to the United States; 2)
    corroboration of Rio Tinto's job related and economic assertions; 3)
    the extent of environmental damages and mitigation of those damages; 4)
    addressing Tribal concerns; and 5) mine sustainability or viability. It
    is also irrationally to intentionally restrain the federal government's
    ability to regulate, provide instruction, or make recommendations, as
    to the safety of the proposed mine. These hearings have clearly
    illuminated these uncertainties. In fact, these concerns are also
    shared by the Chair of this committee, Senator Bingaman, stating one of
    his primary worries of H.R. 1904 is that:

              ``it does not allow for the federal government's ability to
            modify the terms and conditions of exchange brought to light in
            those reviews''

        The Senator further went on, ``a principal concern of H.R. 1904''
    that he `flagged' is that ``it provides for a directed land exchange
    and does not allow for the analysis of potential impacts of the
    exchange prior to that exchange being conducted.''
        In other words, making the exchange mandatorily prior to discovery
    thereby dictating mandatory inaction by the U. S. due to the directed
    exchange. This is akin to watching a deadly car crash and having the
    full ability to stop it, but being congressionally mandated not to
    regardless of the outcome. Why would Congress render the United States
    helpless? Because, the foreign mining companies and foreign interests
    who own this mine do not want the U.S. to comprehend, evaluate, or have
    a voice on this area's vulnerability as to the inevitable dangers RCM
    will bring to this area. Yes, this areas richness and history belong to
    every U.S. citizen.
        We have previously asked if the great insecurity by Rio Tinto to
    not move forward in an administrative process is founded in a knowledge
    that the federal government does not currently hold. We believe this
    question has been answered and that answer is affirmative. Under
    questioning, by Senator Bingaman to Mr. Cherry, the Senator stated that
    Rio Tinto did not oppose the Committee-reported version of S. 409 in
    the last Congress. However, Mr. Cherry stated that: ``...the
    circumstances at that time, however, were very different than they are
    today (emphasis added).'' This means, they now know that damages will
    occur and the extent of those damages will be severe and irreversible.
    Rio Tinto has constantly down played damage. For example, in 2007, they
    insisted that subsidence would occur. Now their website readily admits,
    albeit downplays, substantial subsidence will occur. In fact, not only
    has Rio Tinto admittedly stated there will be environmental damage and
    subsidence, Senator Kyl in his Senate testimony admitted the
    possibility of subsidence. Under normal circumstances, uncertainty
    regarding risks on federal lands that are left unanswered by a mining
    company directly reverts back to the federal government to answer. But,
    Rio Tinto's hand crafted bill hamstrings the U.S. ability to perform
    studies and investigations. We have asked, `Why not pull this bill and
    instead refer this land exchange and mining project through
    administrative processes mandated by Congress under the National
    Environmental Policy Act (NEPA) and other federal laws?' Because, Rio
    Tinto doesn't want the elephant in the room examined.
                            decision point rational
        In the hearing, when questioned by Senator Bingaman on their
    refusal to continue their support S. 409, Mr. Cherry added that Rio
    Tinto has made financial investments and that the ``project is at a
    significant decision point.'' However, as discussed throughout this
    testimony, this logic is irrational for several reasons. First let's
    discuss this `decision point.' The outcome of S. 409 would not have
    changed a `decision point' in time. As discussed in more detail below,
    the fact is the mine is not yet ready to be developed as the technology
    to mine at 7,000 ft is not in existence. Rio Tinto has enjoyed the
    privilege of proceeding with their explorations unopposed by the
    federal government. The expressed immediacy to passage legislation and
    what this `decision point' means has not been made clear as Rio Tinto
    has specified that production capabilities are ``at least 10 years
    away'' and technology to mine one mile below the earth's crust is ``not
    currently in existence'' but is ``under development'' (quoted in
    numerous documents, testimonies, and websites). It should be noted, any
    deep mine technology that will be developed in conjunction with these
    forging mining companies will not solely be used for this potential
    operation. Both RCM's parent companies will be benefactors of new
    technologies as they have multiple interests in deep mines (or future
    interests in mines) around the globe and will therefore recoup on any
    vested technology. Why is exchange legislation mandated if the other
    issues described herein are not dealt with first? We can only assume
    that Rio Tinto requires this `special' legislation: before
    uncertainties are revealed; before meaningful consultations are
    conducted with Tribes; before impacts are fully known, addressed, and
    mitigated; and before the legal standard to evaluate the federal
    property catches up to what is revealed in the eventual, final, and
    realistic Mining Plan of Operation (herein `MPO') as opposed to one
    that is being proposed, clearly for theatrical purposes.
                           irrational financial logic
        Mr. Cherry sited financial reasons for necessity of a directed
    exchange (as opposed to an administrative procedure) stating how much
    they have invested since 2009. However, Rio Tinto well understands
    risks on it investments and returns on investments. They say as much on
    their SEC statements, Annual Reports, investment strategies, etc. For
    example, in 2007, Rio Tinto risked $38.1 billion in their takeover of
    Canadian's aluminum Alcan Inc. However, Rio Tinto announced in its 2011
    financial annual report that it wrote down a total $9.3 billion of
    assets, including impairments related to its diamond business. The
    acquisition of Alcan loaded their company with about $38 billion of
    debt that threatened to topple the entire company because of their
    underestimate of demand, scoring operational costs, and price
    fluctuations, and overestimations on this investment. It is important
    to note that Rio Tinto knew that Alcan understood where ore was
    located, had the technologies and knew how to mine it--quite different
    than the proposed RCM. Given Rio Tinto's grand risk miscalculations in
    combination with the fact that there are no minerals readily available
    to mine due to the lack of technologies at 7,000 ft., what is really
    behind the push to proceed with this directed land exchange? Is it
    based on some secret internal financial matters that the government or
    the general public is not aware of?
        Rio Tinto is no different than any other mining company who would
    similarly invest in exploring and determining the risks and benefits of
    such a project. In fact, Rio Tinto is very aware of associated
    financial and other risks with mining as noted in their corporate
    ``Forward-thinking' statement (e.g., from Rio Tinto website and SEC
    filings):

              ''.. involve known and unknown risks, uncertainties and other
            factors which may cause the actual results, performance or
            achievements of Rio Tinto, or industry results, to be
            materially different from any future results, performance or
            achievements expressed or implied by such forward-looking
            statements. . .'' But, they play down risks by stating: ``Rio
            Tinto expressly disclaims any obligation or undertaking to
            release publicly any updates or revisions to any forward-
            looking statement. . . to reflect any change in Rio Tinto's
            expectations with regard thereto or any change in events,
            conditions or circumstances on which any such statement is
            based.''(IBID.)

        We understand there is a foreign corporate financial investment by
    Rio Tinto and its substantial shareholder China, along with BHP, but
    this question of `financial investment' only subverts the question as
    to `why is the administrative process summarily dismissed by Rio Tinto
    and why remove Federal oversight and cede exclusive control of these
    lands and the full value of its resources.' Conclusion, they understand
    that the risk to the environment and surrounding area is so great that
    proposing a mine under the administrative process, the United States
    would ultimately not permit this mine to operate on this federal land--
    enter the directed exchange.
        H.R. 1904 is a `directed exchange' and mandates that the exchange
    to occur within one year [Section 4(i)]. Thus, the decision point is
    tempered by the fact that Rio Tinto does not want to invest foreign
    shareholders money, including their largest investor China, to develop
    this mine without first obtaining exclusive control and an all-
    encompassing guarantee of full ownership over these lands and the value
    of the resources they contain before any federally directed
    environmental risk analysis, consultations, or federally defined
    monetary evaluations are completed. Rio Tinto contends if the land
    remains under federal ownership, any condition placed by the federal
    government that protect the environment, water, and sacred sites in the
    area will be non-starter. Will only a clear title to this land make
    Rio's investors and foreign Nation co-owners willing to continue
    investing because they know that this land the must be destroyed in
    order to mine the ore and the federal government would either place
    restrictions or not be willing to move forward with the project due to
    the extreme associated risk? Are all these the changing financial
    circumstances and the rational for the aforementioned Rio Tinto
    statement ``The circumstances at that time, however, were very
    different than they are today.''?
    irrational logic as to the need for copper in u.s. economic growth vs.
                  using u.s. copper to support foreign growth
        In the Senate hearings, Senator McCain stated that ``we can get
    this copper from this mine Mr. Chairman or we can import it from
    someplace overseas. There will be a continued demand for copper in our
    economy.'' However, reports performed by the federal government do not
    concur with this assertion. Recent assessments of copper resources
    indicate 550 million tons of copper remaining in identified and
    undiscovered resources in the United States [U.S. Geological Survey
    (herein `USGS') National Mineral Resource Assessment Team, 2000, 1998
    assessment of undiscovered deposits of gold, silver, copper, lead, and
    zinc in the United States: USGS Circular 1178, 21 p]. Essentially,
    there is more copper left to discover than has already been discovered.
    USGS also state that the U.S. is not importing copper but is self-
    sufficient based on minable copper reserves (``Copper: Statistics and
    Information,'' U.S. Geological Survey, 2009, available at http://
    minerals.usgs.gov/minerals/pubs/commodity/copper/ as of January 22,
    2010). Moreover, since 2007, U.S. mine and refinery production has
    continued to decline owing to mine cutbacks instituted at yearend 2008
    and domestic mine production of copper in 2010 declined by about 5% to
    1.12 million tons but its value rose to about $8.4 billion. (USGS,
    Mineral Commodity Summaries, January 2011). Due to numerous factors,
    but more than all other variables, China is attributed as the principal
    reason for the enormous world-wide copper price increase not U.S.
    demand--this is known by every economic forecaster and investor trading
    on copper. As a result of China (and to a lesser extent India),
    starting in the earlier 2000's, copper price increases resurrected the
    mining industry and fostered interest in deposits previously deemed
    unprofitable. Thus, the question is now, who is this mine be really
    providing favor to?
        There is sufficient evidence to reasonably assume that most of
    mineral deposits as well as profits will be shipped off-shore and not
    held within the United States based on these companies mining
    operations, holdings, and performance. To understand this connection, a
    discussion of China's copper demand is warranted. Economic Analysis by
    Chilean Copper Commission states that the U.S. will not be a major
    driver in copper demand whereas China and India will make up over 60 %
    followed by Central America and Russia. (Erik Heimlich, Chilean Copper
    Commission report, Tianjin, November 2010). What is a fact is that
    China is the world's largest copper consumer and America's best copper
    customer (Economy Statistics, Trade With U.S., U.S. Copper Exports
    (most recent) by Country,'' Nation Master, http://www.nationmaster.com/
    graph/eco_tra_wit_us_us_exp_of_cop-economy-trade-us-exports-copper ).
    China has also recently been buying up the metal in quantities that
    exceed its current need (from, Melinda Peer, ``Is China Hoarding
    Copper,'' Forbes, April 15, 2009, and National Center for Public Policy
    Research in Washington, D.C., 612, October 2010). Nobu Su, CEO of
    eastern shipping giant Taiwan Marine Transport, explained the strategy
    to the UK Telegraph, ``China has woken up. . .the next industrial
    revolution is going to be led by hybrid cars, and that needs copper.
    You can see the subtle way that China is moving into 30 or 40 countries
    with resources.'' (Ambrose Evans-Pritchard, ``A `Copper Standard' for
    the World's Currency System,'' The UK Telegraph, April 15, 2009).
        China's need for copper is insatiable and Rio Tinto and it
    creditors are well aware of this fact. Tobias Merath, the Zurich-based
    head of global commodity research at Credit Suisse AG, wrote in a note;
    ``latest numbers from China show that the country is drawing down its
    domestic inventories rapidly. . . China will have to step up its
    imports in the coming months'' (Chinamining.org, 6/1/2011). Li Yihuang,
    chairman of Jiangxi Copper, ``We will participate in more copper mining
    venture investment projects overseas to meet our demand for copper raw
    materials, which are needed as we expand the business over the next
    eight to 10 years'' (China Daly 6/7/2011). Rio Tinto's International
    Copper Study Group has forecasted a 377,000-ton global shortage in this
    year alone. One such member, Diego Hernandez, Codelco's chief executive
    officer stated on June 8, 2011that high prices will last ``a
    substantial amount of years'' on demand from China (Bloomberg News, 6/
    15/2011). China's copper mining ventures with Rio Tinto can be found in
    dozens of annual reports, news releases, summary statements, investor
    road shows, professional presentations, SEC statements, etc. Rio Tinto
    has repeatedly stated that China is the sector that Rio Tinto will
    continue to direct marketing and supplying their mined copper and other
    ores to meet China's needs. RCM is no exception -this is
    unquestionable. Countless statements from Rio Tinos' executives have
    been made that RCM copper will meet China's needs. For example, early
    discussions on RCM minerals, Rio Tinto's Bret Clayton, stated their
    copper operations:

              ''..are well positioned to take advantage of strong global
            demand, driven by continued growth in China..'' (Reuters, 8/8/
            2008). John McGagh, head of innovation at Rio Tinto recently
            stated: ``China needs to build 3 cities larger than Sydney
            every year until 2030 to accommodate rural to urban migration''
            (ASEG conference, August 2010). RCM mine will help to meet this
            need.

        What is even more conclusive (to the China connection) is the
    deductive reasoning presented in the House hearing during questioning
    as to whether material from this RCM's mine will go overseas, including
    China. In that hearing Mr. Cherry attempted to deflect the questions
    stating:

              ``..copper is a commodity traded like any other metal.'' When
            further pressed he added ``..copper concentrate will then go to
            smelters to produce pure metal. . .'' and in referring to RCM
            ``our projections are they will produce enough concentrate
            exceed smelting capacities in the U.S. and potentially oversee
            for smelters.''

        He stated this will occur ``probably 10 years from now.'' This mine
    projected to open in 10 years from now, ergo, the material from RCM
    will be shipped to overseas smelters because capacity here in the U.S.
    will not be available! In other words, shipped to foreign countries,
    namely China.
        This need is also well understood throughout the halls of Congress.
    Even Senator McCain stated back in 2005, ``Why is the price of copper
    at an all-time high? The Chinese are buying every scrap of copper
    that's available. Supply and demand.'' (Transcript of John McCain's
    Roundtable Discussion with Star Editors, Arizona Daily Star website,
    Aug. 28, 2005). Moreover, in July 2011 alone, China took 99,513 tons
    from US suppliers in July, accounting for 79.6 percent of total copper
    scrap exports, up 10.1 percent from 90,393 tons (74.9 percent of total
    exports) the previous month. ``There's no question (China) is the big
    gorilla in the scrap market,'' one domestic trader stated. ``As the
    Chinese build infrastructure and the population looks to have the same
    amenities that the European and U.S. economies have--air conditioning,
    automobiles and so forth--there's more potential for growth there than
    anywhere else.'' (Metalbulletin.com China drives 6th monthly US copper
    scrap export gain, 9/15/11) Thus, this mines copper production is not
    for U.S. demand, but will meet the Asian appetite.
       foreign companies and foreign countries benefit by the unfair and
                            unequal exchange values
        During the House hearing on H.R. 1904, Congressman Grijalva noted
    the existence of lingering uncorroborated facts and unanswered
    questions regarding, among other things, the overall economic
    feasibility and benefit of this exchange to the American taxpayer.
    Regardless of which legislation being contemplated, it appears that
    both the sponsors of the legislation and Rio Tinto believe the exchange
    is one of fair value. However, this is not the case. Regardless of
    which legislation, Federal agencies were minimally consulted and Tribes
    were not involved in determining what other specific, higher priority
    parcels or land bases should have been or should also be included in
    the exchange. Legally, under FLPMA, exchanges are on a ``value-for-
    value'' basis and the exchanged land acquired by the United States is
    determined to be in their best interest. The `value' of the federal
    land in this legislation is unquestionably worth more than the mere
    lands being offered. FLPMA requires the value of the lands to be
    exchanged to be equal, or if they are not equal, they are to be
    equalized by the payment of money up to 25% of the value of the federal
    lands conveyed in the exchange (43 C.F.R. PART 2200, Sec.  2201.6 Value
    equalization; cash equalization waiver). According to the FS, land is
    appraised based on its ``highest and best use'' (HBU) market value, as
    determined and documented by a professional appraiser. Sometimes, as in
    this case, parcels have significant differences in assessment due to
    different HBU's or various other intrinsic values such as existence of
    ore bodies (see below). Since FS land exchanges are completed on an
    equal value basis, if one parcel is of higher value, the difference can
    be made up in cash, but again, it is not to exceed 25% of the value of
    the Federal land. This limit was developed for specific and obvious
    reasons. However, language in H.R. 1904 alters this federal law
    allowing for the additional land/dollars to be exchanged above the
    current limit of 25%. But, the short time frame for the exchange and
    timing and restrictions made in H.R. 1904 regarding other analysis/
    reports/plans will not allow for an accurate appraisal of the true and
    accurate `worth' of the federal land. This will thereby preclude the
    U.S. from ever receiving a `fair market value' and sufficient private
    land to be exchanged and taken into trust.
        In examining the royalty provisions found in either legislation, it
    is highly likely that trading these federal lands into RCM's private
    ownership will result in unquantifiable, inequitable, and effectively
    zero royalties being provided to the U.S. Suggestions on a valuation of
    the ore by multiplying an assumed quantity of mineral reserves by a
    unit price is almost universally disapproved by the courts [see
    Cloverport Sand & Gravel Co., Inc. v. U.S., 6 Cl. Ct. 178, 188, (1984)]
    and also not acceptable. H.R. 1904 calls for an appraisal report that
    would include a royalty income approach analysis, in accordance with
    the Uniform Appraisal Standards for Federal Land Acquisition (UASFLA),
    of the market value of the Federal land. However, this approach often
    requires the appraiser to use a multitude of indicators, facts, and
    variables, the accuracy of which cannot clearly and easily be
    demonstrated by direct market data [See Foster v. United States, 2 Cl.
    Ct. 426 (1983)]. As prescribed in law as to a `dollar' evaluation, the
    ``Market value'' of the land to be exchanged means the most probable
    price in cash, or terms equivalent to cash, that lands or interests in
    lands should bring in a competitive and open market under all
    conditions requisite to a fair sale, and the price is not affected by
    undue influence (see: 43 C.F.R. Sec.  2200.0-5). In this case, the
    offer on the table has always been directed by foreign mining companies
    who own private lands and/or wish to dispose of parcels for this
    invaluable federal land without consideration to the Yavapai or the
    citizens of the United States as a whole. The unfairness to the
    taxpayer and influence by RCM is further demonstrated by restrictions
    placed on the federal government under SEC 4. (d)(2)(B)(ii), where:

              ``after the final appraised values of the Federal land and
            non-Federal land are determined and approved by the Secretary,
            the Secretary shall not be required to reappraise or update the
            final appraised value. . . at all (emphasis added)....after an
            exchange agreement is entered into by Resolution Copper and the
            Secretary.''

        In other words, given the directed exchange (SEC 4 (i)), even if
    the MPO demonstrates there are significant locatable reserves (not
    resources) years later, this land cannot be subject to further
    financial appraisals by the U.S. This is not common business sense by
    any means.
        In regard minerals on the federal land and market value, fair
    return, equalization, appraisal etc. there are several direct
    questions. For example, what are the comparables to this land? RCM has
    claimed it is the `largest ore body' unlike anywhere else in the United
    States. How can `minerals' at 7,000 ft. belowground that are undefined,
    undescribed, nonlocatable, unquantifiable, and of unknown quality that
    are far from economically viable for extract be considered an
    appraisal? They can't. Appraisers cannot qualify and put a price on the
    unknown because these undefined resources and not reserves and
    therefore cannot be a part of any appraisal. There minerals are
    speculative resources. To demonstrate this point, Rio Tinto's 2008
    Annual report:

              ``Estimates of ore reserves are based on certain assumptions
            and so changes in such assumptions could lead to reported ore
            reserves being restated. There are numerous uncertainties
            inherent in estimating ore reserves (including subjective
            judgments and determinations based on available geological,
            technical, contracted and economic information) and assumptions
            that are valid at the time of estimation may change
            significantly when new information becomes available.''
            (emphasis added)

        It should be noted that their cause for concern is directed at
    documented `reserves' not `speculative undocumented resources' such as
    those that may be found in the federal land. They do denote that
    geological, technical, contracted and economic information are needed.
    This should send reverberating messages on H.R. 1904 where a mandatory
    one year exchange, undefined resources, lack of any credible MPO (e.g.,
    if the technologies and science are not yet developed to mine at 7,000
    ft. the MPO is meaningless), and no federal studies and analysis have
    been performed that answers questions and these uncertainties.
        The questionable accuracy on such appraisals is particularly
    underscored when discounted cash flow (DCF) analysis or other forms of
    yield capitalization are employed in the analysis. Furthermore, within
    the UASFLA there are several specific requirements to assess values,
    including the need for a detailed mining plan for the property. UASFLA
    requires that production level estimates should be supported by
    documentation regarding production levels achieved in similar
    operations. The annual amount of production and the number of years of
    production are more difficult (and speculative) to estimate, and
    require at a minimum, not only physical tests of the property to
    determine the quantity and quality of the mineral present, but also
    market studies to determine the volume and duration of the demand for
    the mineral in the subject property. However, it is unknown at this
    time what the true production estimates are as specific mining plan
    details have not been forthcoming from RCM. In addition, the true
    quality or quantity of the material is unknown and the extraction
    technology for this mining operation at a 7000 ft. depth has not been
    developed and thus not currently available. This fact is further
    underscored by the lack of available information on production levels
    being consistent with an (unknown) mining plan's labor and equipment.
    Significantly, all of this information is required for a meaningful and
    accurate appraisal.
        In further examining UASFLA, the royalty income approach also
    requires several economic predictions including a cash-flow projection
    of incomes and expenses over the life-span of the project and a
    determination of the Net Present Value (NPV), including the NPV of the
    profit stream, based on a discount factor. The NPV of a future income
    is always lower than its current value because an income in the future
    assumes risk. The actual discount factor used depends on this assumed
    risk. A proven technology carries a lower risk of non-performance
    (thus, a lower discount rate) than a technology being applied for the
    first time.
        Given inadequacies described above, regardless of which
    legislation, the evaluation standards prescribed by the UASFLA, coupled
    with the lack of factual data and uncertainty of the technology, the
    final appraisal of this massive ore body could ultimately net zero,
    meaning that the valuation of the federal lands exchanged for the
    benefit of RCM would not reflect the value of the copper and other
    saleable minerals these lands contain. The American taxpayer would once
    again be short-changed. RCM must be required to provide additional
    information and pay for additional research in order to generate an
    appraisal that is fair and equitable to the people of the United
    States. Moreover, since the Federal government has yet to perform a
    substantive economic evaluation of the lands along with the copper and
    other minerals to be exchanged to RCM. The public interest requires
    that a complete and fully informed appraisal and equalization of values
    be performed prior to Congressional passage of H.R. 1904, not after.
    RCM asserts that there may be over 1.34 billion tons, containing 1.51
    percent copper and 0.040 percent molybdenum to be removed over the 66
    years of mine life. Although the current value of all minerals present
    on these federal lands are not provided by RCM, estimates have ranged
    from $100 to $200 billion. Thus, even RCM's own self-evaluation of the
    ore body underlying these public lands is orders of magnitude greater
    in value than that of the non-federal parcels offered in exchange by
    RCM.
        In H.R. 1904, SEC 4. (i) of the legislation requires that the
    exchange and other critical documentation be completed within one year
    after congressional passage. Given the rationalizations above regarding
    the complexity of such analysis, it is incredulous that one year would
    be sufficient time for the completion, and subsequent thorough
    examination, and to review of all reports and appraisals. Indeed,
    current and former FS as well as BLM's, Minerals & Realty Management
    personnel who provided previous testimony along with FS and BLM's
    current testimony on this matter believe a one year provision is
    insufficient time for the completion and review of a mineral report,
    completion and review of the appraisals, and final verification and
    preparation of title documents. Yet, the sponsors of this bill have
    chosen not to heed the government's own experts' advice and counsel on
    mineral appraisals. Why? Once RCM has completed its evaluation and
    analysis, the Fort McDowell Yavapai Nation urges Congress to require an
    independent, third party review of the all reports, including the
    engineering report, for this operation. This must be accomplished in
    consultation with all affected parties, including between the Federal
    government and the Yavapai Nation, prior to this legislation moving
    forward. At this time, relying on the RCM current engineering and other
    reports is insufficient. On a monetary level, one can clearly see that
    RCM financially recoups all mineral profits at the expense of the
    public making such an exchange grossly disproportionate.
      legislation fails to protect cultural and religious concerns of the
      yavapai people allowing foreign interests to control land and strip
                    away native american rights and dignity
        During the Senate hearings, Senator McCain stated that: ``At every
    hearing, this projects tremendous environment and economic values are
    reaffirmed yet at each hearing we see these same agitators (emphasis
    added) trotted out to play the tired role of Industry obstructionists
    (emphasis added)....'' It appears that the Senator is referring to
    Indian Nations as agitators and obstructionist. I take offense to this
    label. Frankly, a land for land exchange and specifically is this case,
    sacred land, cannot be traded for land that is not sacred. It isn't
    mining we are objecting to, but the destructive block cave mining
    activities and exchange of this sacred site. Let me be clear, this land
    is currently and equally important today as it was to our ancestors.
    Since time immemorial the Yavapai have exercised our religious rights,
    traditions, cultural practices, and teachings. Although this land is
    now in federal ownership, it can still be visited, touched, and
    cherished. The spirits remain and we still feel their presence. RCM
    operation will cause irreparable damage to the environment of this area
    whose resources are inextricably linked to sacred sites, archeological,
    and the cultural and religious heritage of the Yavapai People. Thus, as
    a Tribal Nation, the Yavapai are not just an effected or aggrieved
    `party' but a People who will be significantly injured by what will
    materialize should this bill move forward.
        In referring to the federal parcel to be exchanged, Senator Kyl
    stated that ``all it is, is just an undeveloped campground for the
    Forest Service.'' And what will be exchanged for this land is ``5,000
    incredibly strong environmental land transferred to the federal
    government.'' He further stated that all the environmental groups are
    in favor of acquiring the land to be exchanged. In speaking with many
    of these groups, I believe this statement to be untrue. He also stated
    that the area to be exchanged is near the area of Clear Creek that was
    featured an Arizona highways magazine. He said that this is `the kind
    of land that will be exchanged.' However, also previously featured by
    Arizona highways as ``the Best Place to Go Camping Without a Tent
    Bouldering is at Oak Flat Campground'' in which you will be ``caught
    between a rock and a hard place. That is, you'll be surrounded by the
    rocky, rolling hills of Devil's Canyon--the perfect setting for
    scrambling, climbing and bouldering. In the springtime, it's also a
    great place to see wildflowers. The campground itself is speckled with
    huge, shady oak trees and is home to a variety of wildlife. . .''
    Devils Canyon the remarkable beauty, remoteness, and described the
    importance of this area was also featured in another volume. The FS
    promotes the area as having abundant oak trees, seasonal but clear
    running creek, and natural defenses..'' Countless others have described
    the environmental benefits, including home to endangered and threatened
    species, of this area. What seems so counterproductive, the sponsors of
    this bill advocate the preserving of riparian habitat in Arizona yet
    the mine dewatering of the entire region including that of Devil's
    Canyon will destroying the precious riparian habitat. Thus, Oak Flat
    and surrounding area also has `incredibly strong environment land'
    along with other intrinsic and intangible values!
        The Nation discussed this land trade directly with Senator Kyl and
    informed him of the environmental and cultural importance of this area.
    It is not `just' a campground. The aboriginal Yavapai Indians named the
    Oak Flat and Apache Leap area Gohwhy Gah Edahpbah. In the 1860's the
    Yavapai's lived in this area and their traditional ways of life until
    the discovery of gold and other mineral ores. What resulted was a
    significant invasion of non-Indians treaties that laid claim on the
    territory of the Yavapai Indians. Thus, the Yavapai have been displaced
    because of ore bodies this is not new. This direct incursion by foreign
    mining entities on this sacred land is akin to how we were treated in
    the past. It is astounding is that this is the 21st century in a
    Country, in a more enlightened society; this type of invasion can still
    occur and ugly labels placed on Native Peoples who object to their
    constantly held scared sites being desecrated.
        What is apparent, those supporting the mine fail to recognize that
    issues this mine will bring affect many Tribes, not just the San Carlos
    Apaches. Congress has not meaningfully consulted Tribes and the
    administration has not meaningfully consulted with the requisite
    studies/analysis and results this mine possess. Senator McCain stated
    that at his and Senator Kyl's constant urging that. . . ``tribe just
    sit down.. just listen to the Resolution Copper, they refuse to do it.
    They refuse to sit down and at least listen and let the copper company
    make a presentation. Yet, they will urge Tribal Consultation.'' He
    later stated that by not meeting with Resolution Copper ``it is not
    what America is supposed to be all about...'' He further intimated that
    monetary issues should outweigh any other Tribal issue. Thus, it is
    difficult to explain the importance of this areas religious, spiritual,
    and cultural, and environmental significance to someone whose
    predominate motivating factor for moving forward (without meaningful
    requisite NEPA and Tribal Consultations) is monetary in nature.
    However, through this testimony I hope I have provided information to
    being this dialog.
        The fact is meaningful consultation has not occurred even at the
    highest levels of government. In a June 27, 2011 in a letter to the
    ITCA from Secretary Vilsack, the Secretary explained that the Forest
    Service did not believe that Tribal Consultation over H.R. 1904 was
    called for saying, ``The Forest Service has not proposed the new
    legislation, and Executive Order 13175 does not require consultation at
    this time.'' Moreover, during similar hearings on analogous
    legislation, the Yavapai were told by certain members of Congress that
    it would be `easier' if we met with RCM to work out our differences. In
    fact, during the House hearings on H.R. 1904, Congressman Gosar asked
    each of the invited panelists who supported H.R. 1904 if they
    `consulted' with Tribes. However, the onus to consult is not on RCM or
    any other non-federal entity but on the federal government. The legal
    obligation of Federal Agencies to consult with Tribes on a government-
    to-government basis begins in the Constitution, in Article I Section 8
    (the Commerce Clause), where Congress is empowered to regulate commerce
    with foreign governments, between the states and with the Indian
    Tribes. The government of the United States has an obligation to
    consult with Tribes as sovereign nations on matters of interest and
    concern to Tribes. Furthermore, Federal agencies programs and
    activities must be consistent with and respect Indian treaty rights and
    fulfill the Federal government's legally mandated trust responsibility
    with Tribes. Presidential Orders including 12875, 12898, 13084, 13175,
    13007 and Presidential memoranda along with Congressional and
    Constitutional mandates are expressed in statutes and the policies of
    the several Federal Agencies that relate to Tribal matters. The
    Departments of Agriculture and Interior are mandated to interact with
    Tribes on a government-to-government basis. Tribal Government
    Consultation and Coordination Requirements, documenting the authority,
    whom to contact, subject matter, and time frame in which to complete
    the necessary consultation are defined and outlined in each agency. The
    aforementioned mandates that these agencies must abide by include;
    American Indian Religious Freedom Act of 1978, Archeological Resources
    Protection Act of 1979, as amended and implementing regulations,
    Federal Land Policy and Management Act of 1976 and implementing
    regulations, NFMA--National Forest Management Act of 1976, as amended
    and implementing regulations, NAGPRA--Native American Graves Protection
    and Repatriation Act of 1990, as amended, NEPA--National Environmental
    Policy Act of 1969, as amended (and CEQ regulations at 40 CFR parts
    1500-1508), NHPA--National Historic Preservation Act of 1996, as
    amended, RFRA--Religious Freedom Restoration Act of 1993. Thus, as a
    sovereign government, the United States has an obligation to engage in
    meaningful consultation with the Nation on this matter. This
    requirement for consultation has been echoed by several members of
    Congress and administration. Although we were promised at the 2007
    hearing that consultations would transpire, to date no formal federal
    consultations have occurred between Fort McDowell and any `appropriate
    level' agency personnel or Department in the Federal Government that
    include the necessary supporting documents and studies we have
    requested.
        As written, this bill eviscerates aforementioned federal mandates
    on Government-to-Government consultations with Indian Tribes. The
    aforementioned laws, Presidential Orders, congressional mandates and
    statutes, and federal policies regarding these consultations are
    meaningless due to the direct and mandated exchange (i.e., see H.R.
    1904, SEC 4 (i)). Tribal input is after-the-fact making any timely or
    meaningful consultation part of a check list--just a formality--rather
    than lawful. This is in direct contrast to Senator Kyl's statement that
    ``nothing ion this bill circumvents consultation.'' In fact, given the
    mandatory exchange language, the Secretary hands are tied to
    incorporate any Tribal input into NEPA or an EIS because the land
    exchange is completed before the majority of analysis or consultation
    is concluded. Rio Tinto is keenly aware of this fact and may be
    attributed to their rational for not proceeding through the
    administrative process.
       legislation relies on rio tinto's job analysis without credible,
              unbiased detailed analysis by the federal government
        During the Senate hearings, Senator McCain stated that: ``At every
    hearing, this projects tremendous environment and economic values are
    reaffirmed..'' But, whose studies reaffirm this? He further stated that
    it was unfortunate that the administration's testimony gave no
    meaningful recognition of the mines National importance beside the
    passive way they discussed potential economic and employment benefits.
    The Senator states ``facts on the ground'' have not been realized--but
    whose facts? It is unfortunate that the sponsors of this bill do not
    admit that there are no federal studies to support the many years of
    the unsubstantiated and disparate economic and job numbers purported by
    Rio Tinto--no affirmations just Rio Tinto propaganda.
        Senator McCain stated that ``[a]ll these people what is a chance to
    work.'' But, this mine is far from a financial panacea for the region's
    economic woes. The supposed rational and quintessential factor for
    passage of this legislation is to promote immediate and significant job
    opportunities in the Superior area. Rio Tinto has espoused various
    predictions on job numbers and financial impacts to the local economy.
    However, these numbers are speculative and lack credibility because
    they are not supported with a realistic and final MPO, impartial
    economic documentation, and have not been scrutinized by federal
    authorities (or other 3rd party, non-company representatives). In fact,
    nowhere within H.R. 1904 or other related legislation is there any
    written or legal commitment from Rio Tinto or BHP to create jobs, types
    of the jobs to be created, location of those jobs, workforce pool to be
    utilized, educational requirements, etc. Job creation in the region is
    vital--we appreciate this need. But, supporters of this mine are
    notably unspoken as to what type of jobs will be created, where and
    when they will be available, and who will actually fill them. The
    sponsors of these bills state that jobs will be available for the
    people of Superior and Native Americans. However, to understand the
    furtiveness behind Rio Tino's supposed jobs opportunities one only
    needs to look at how the mine is being designed. What is being proposed
    it is not the mine of the past that most are familiar with rather it is
    what Rio Tinto coins the ``Mine of the Future'' (riotinto.com. Rio
    Tinto, n.d. Web., 2011). This ``Mine of the Future'' offers little in
    the way of mining and subsequent employment as currently recognized.
    Rio Tinto openly boasts and is proud to tout that RCM will use
    automated technologies similar to the fully automated ``Mine of the
    Future'' in the Australia's Pilbara mine:

              ``. . .mining processes that include unprecedented levels in
            automation, and remote operations that will revolutionize the
            way mining...'' (IBID.)

        This ``Mine of the Future'' changing the way mines operate
    utilizing robotized drilling, driverless ore trains, driverless
    ``intelligent'' truck fleet, etc. (e.g., Rio Tinto Adds Driverless
    Trucks To Pilbara Iron Ore Operation, Dow Jones Newswires, 6/8/2011).
    In fact, in Rio Tinto's 2010 Sustainable Development Report, they
    stated that based upon:

              ``today's improved understanding of caving processes and
            advanced technology,'' Resolution Copper will be able to
            ``employ more automation and mechanization than were available
            in the past.''

        In other words, increase their foreign corporate bottom line by
    decreasing their labor cost in eliminating the very people who seek
    mining jobs. Have local workers or others been privy to this
    information? Is this one of the reasons that this bill mandates the
    land exchange prior to the benefit and knowledge contained in an MPO or
    other information (SEC.4 (i) and (j)) that would define proven mining
    technologies and actual job creation that are in line with these
    operations? If the supporters of this bill believe the mine proposal
    will provide job and economic benefits as well as follow federal
    procedures; allow it to be approved and permitted by the United States
    through administrative process (without a trade). The purported `jobs'
    would not be affected by an administrative process and the land
    exchange itself would not be required to proffer jobs.
        The trend toward automated technology across the mining sector,
    from transport to drill rigs, allows more mining processes to be
    operated remotely. Recently, the Sydney Morning Herald quoted
    Construction, Forestry, Mining and Energy Union leader Gary Wood stated
    that..``in the long run automation will mean serious job losses.'' He
    went on to state in that article that ``People talk about reskilling
    but you don't need a team of truck drivers to sit and operate one
    computer. . . . . . Over 10 or 20 years we are going to see a
    significant demise of these lesser skilled job opportunities. (from
    Driverless Trains and the `Mine of the Future': Are Workers Becoming
    Obsolete?, By Kari Lydersen, In These Times, 2/282012). In the House
    hearings, Mr. Cherry referenced jobs but what he did not say was who
    was being hired, are they being transferred from other sections of Rio
    Tinto or BHP, are they direct employees of Rio Tinto or BHP that will
    be transferred back to these parent companies, are they temporary
    workers, where are these individuals or companies being recruited from
    (outside Arizona or in the U.S.), where are their actual location(s)
    and home base(s), what types of jobs are they performing, are lobbyists
    included in these numbers, etc.? In relation to RCM's operations, Rio
    Tinto previously addressed this question:

              ``These types of projects also require significant and
            diverse skill sets, not always immediately available off the
            shelf. Direct experience at Palabora in South Africa and
            Northparkes in Australia and our joint venture relationship at
            Grasberg are positioning Rio Tinto with what I believe is a
            unique capability matched with our organizational depth and
            breadth. (Tom Albanese, Chief ex., Copper & Exploration, SEG
            2006 Conf., Keystone, CO, 5/14/2006).

        In other words, shifting highly educated, specific internal company
    based knowledgeable Rio Tinto employees to work concomitantly in RCM
    operations. We also appreciate the immediate need for job creation.
    But, this legislation does not provide assurances or guarantees from
    the company on the timing of the technology or whether it can be
    developed to mine at this depth utilizing automated block cave `future'
    methodologies. In the hearings, Superior's Mayor Hing stated that
    Superior has seen its share of boom and bust cycles in relation to
    mining and that its population has decreased nearly 60%. He declared
    this bill will bring immediate jobs to the area. However, job creation
    as described by Rio Tinto will not be instantaneous. By Rio Tinto's own
    admission, this mine will not be in full operation for at least 10
    years a fact no one has cared to address particularly since the
    automated technology to mine is not yet developed. That is if the
    technology will be successfully advanced--it is taken for a fact that
    Rio Tinto will successfully develop these technologies in short order.
    But, to call attention to this point, Rio Tinto's 2008 Annual report
    stated:

              ``Some of the Group's technologies are unproven (emphasis
            added) and failures could adversely impact costs and/or
            productivity. . ... The Group has invested in and implemented
            information systems and operational initiatives. Some aspects
            of these technologies are unproven and the eventual operational
            outcome or viability cannot be assessed with certainty.''
            (emphasis added) Automation also comes with technology that
            requires a greater specificity. It eliminates the types of jobs
            that typical copper mining operations would normally offer as
            it substantially reduces the need for skilled and unskilled
            workers. Rio Tinto fully acknowledges this:

              ``the future miner will be required to have a higher degree
            of education in mechatronics, supercomputing or artificial
            intelligence..'' (J. Cribb, Rio Tinto. Miners of the Future.
            Review. September 2008). They also state; ``Humans will no
            longer need to be hands on as all this equipment will be
            `autonomous'--able to make decisions on what to do based on
            their environment and interaction with other machines.'' (Rio
            Tinto. Rio Tinto chief executive unveils vision of ``mine of
            the future,''1/18/ 2008, riotinto.com/media/5157_7037.asp).

        Additionally, H.R. 1904 does not garner any guarantees or promises
    from these multinational corporations that it will actually `operate'
    the mine in Superior (or regionally) as technology would allow Rio
    Tinto to operate the mine from anywhere in the world. At the hearings
    this concept was scoffed at. However, taken from aforementioned Rio
    Tinto materials the future mine Remote Operation Centers (ROC) will:

              ``operate and optimize the use of key assets and processes,
            including all mines, processing plants, the rail network, ports
            and power plants. They continue, ``Operational planning and
            scheduling functions will also be based in the ROC. ROC-based
            management would oversee pit and plant control, as well as
            manage the most effective use of power distribution and support
            activity such as maintenance planning.'' Furthermore, Rio Tinto
            stated the ROC in Pilbara is ``an operational control room,
            office block and supporting infrastructure, and allow for
            potential significant expansions beyond its initial scale.''

        Thus, mines of the future are operational from hundreds of miles
    away from the actual mine. In fact, as stated in Rio Tinto's `Mine of
    Future'' documents, eleven mines in aforementioned Pilbara are
    controlled from an operations center 800 miles away. Moreover,
    according to Rio Tinto, one of the major goals of their prototype
    automation mine is to consolidate workers as well as reduce the numbers
    of workers. ``Operators will oversee the equipment from the ROC (Remote
    Operation Centers).'' (IBID.)
        RCM operation is the future and to underscore this points, Rio
    Tinto has called RCM not just the `mine of the future' but the `super
    mine of the future' due to the yet developed but boasted `automated
    technologies' it will require (John McGagh, Rio Tinto and step-change
    innovation, Sydney Convention and Exhibition Centre (ASEG), Australia,
    8/23/2010; Rio Tinto Website). Rio Tinto's ROC centers are actively
    being expanded upon. Thus, why would RCM operate in this region when it
    can be operated anywhere these ROC's currently exit (e.g., Salt Lake
    area), where employed well-trained, highly technical staff already
    reside? If and when RCM develops in Superior--Rio Tinto clearly knows
    it would not only have fewer jobs than typical mines but the type of
    jobs will not be ones that will benefit the majority of the good people
    in this region. In June hearings, Mayor Hing stated that he would not
    be in favor if the project were mined as described above. The reason,
    this type of mining does little to benefit the local economy or provide
    jobs. It will, however, help foreign conglomerates and their
    stakeholders. It will not help the people of the U.S., particularly
    those in our region, and it certainly will not save the area for Native
    Americans to continue their religious and cultural ceremonies. Thus,
    without unbiased analysis/verification by federal authorities to
    examine their jobs claims, the immediacy of job creation and its impact
    on the region is merely an unmet expectation in order to sway passage
    of this bill.
    legislation does not require nepa or other neutral, independent studies
    on risks, allows mining activities on protected areas, and inability to
                    apply federal regulations post enactment
        Senator McCain criticized the administration for ``feeds
    unsubstantial claims that mine will eminently affect the environmental
    quality and cultural resources.'' Senator McCain referred to the years
    ``discussing and analyzing this land exchange.'' But for all these
    discussions, what federal analysis, such as NEPA, has been performed on
    the entire mining operation that guarantees the environmental quality
    and cultural resources will remain intact? NONE. Under a proposed
    federal action, NEPA requires all Federal agencies: 1) to assess the
    environmental impacts of major Federal projects, decisions such as
    issuing permits, spending Federal money, or actions on Federal lands;
    2) Consider the environmental impacts in making decisions, 3) Disclose
    the environmental impacts to the public, and 4) Consult with tribal
    governments that would include an affected tribe as a ``cooperating
    agency.'' NEPA would also require the preparation of a detailed
    `Environmental Impact Statement' (EIS) for any major Federal action as
    the mine would ``significantly affecting the quality of the human
    environment.'' With respect to this proposed mine, multiple Federal
    agency have jurisdiction, by law and special expertise, and must
    examine the extensive set of factors and issues this mine presents.
    These agencies have the broad suite of responsibilities and expertise
    making them virtually impossible to exclude during the NEPA process and
    development of the required EIS. These agencies must be given the
    discretion to study, review and analyze materials/data/etc. along with
    input and consultation with Tribes, and other independent agencies (not
    associated with Rio Tinto) as to the viability, feasibility, financial
    implications and impacts to U.S. natural resources. An EIS does not
    dictate the substance of regulatory decisions rather it forces the
    agency to take a ``hard look'' at the relevant factors [See Robertson
    v. Methow Valley Citizens Council, 490 U.S. 332 (1989)]. The cost
    connected with these analysis and studies should be completely borne on
    Rio Tinto. Departments of Interior and Agriculture who would take part
    in this process have stated, in multiple forums, that this process
    takes, on average two to four years with complicated cases taking
    additional time for the proper due diligence. With neutral and
    independent studies performed prior to the enactment of an exchange,
    only then can Congress objectively evaluate the impacts, costs,
    benefits, and risks. Intuitively, without such analysis, this
    legislation cannot satisfactorily serve in the best interest of the
    U.S. This complete, unbiased analysis is what supporters of this mine
    are uncomfortable with.
        Senator McCain has stated he is a ``strongly support NEPA's goal of
    informing officials, stakeholders, and the public about the
    environmental implications of significant projects proposed to be
    undertaken by the federal government. (Natural Resources & Environment,
    Volume 23, Number 2, Fall 2008). Moreover, the U.S. Institute for
    Environmental Conflict Resolution created under the Federal Advisory
    Committee Act whose chief sponsor of the legislation creating the
    Institute, Senator John McCain, explained that its purpose was ``to
    promote our nation's environmental policy objectives by reaching out to
    achieve consensus rather than pursuing resolution through adversarial
    processes.'' (2005, National Environmental Conflict Resolution Advisory
    Committee, Final report, to the U.S. Institute for Environmental
    Conflict Resolution.) However, with legislation on this mine, the
    proponents of this legislation will not allow for the administrative
    process or the requisite NEPA thereby, creating an adversarial
    position.
        Rio Tinto testimony states, ``Resolution Copper has always
    recognized that such a review under NEPA will be required prior to
    commercial mining and have committed to do so.'' However, the real
    meaning of the written legislation states otherwise (see below). There
    is nothing in any proposed legislation as to RCM binding long-term
    agreement with any federally directed study outcome, analysis,
    mitigation, compliance requirements, changes to mining plans, etc. as
    it relates to the federal parcel. Nor would they be willing to be under
    the direction of the federal government as to the mandated federal
    compliances related to federal lands post enactment. That is why they
    want the land transferred into private ownership within one year and
    allowed to mining in this area immediately after passage of the
    legislation. In doing so, Rio Tinto marginalizes risks that would be
    discovered under scientific measurements and quantification of
    uncertainties regarding environmental risks. This stealth `special'
    legislation is specifically structured to circumvent a variety of
    federal laws, statues, policies and procedures including the NEPA and
    effectually negates any opportunity for public involvement and Tribal
    consultation required, disclosure of environmental impacts, including
    cumulative impacts and obfuscates affected parties and decision-makers
    to review and comprehend the risk assessment. In this case, NEPA is
    merely a pro forma and perfunctory at best as land is traded before
    NEPA is completed and before a credible MPO is developed. This point is
    incontrovertible. This is not only our analysis, but the understanding
    by Senator Bingaman and the FS and Bureau of Land Management (herein
    `BLM') as related to testimonies on H.R. 1904 in both House and Senate
    and BLM and FS testimonies during Senate hearing on S. 409. Yet,
    supporters continue to misstate that NEPA is a condition of this
    legislation. For example, Senator Kyl incorrectly said that ``Nothing
    can be done without completion of all environmental laws'' (emphasis
    added). During the June 14th 2011 hearing, Congressman Gosar made a
    number of statements on H.R. 1904 declaring:

              ``inaccurate assertion that my legislation circumvents
            environmental law.'' Furthermore, ``Sections 4. (i) and 4. (j)
            address explicitly and implicitly compliance with Federal
            environmental laws and regulations pertaining to conveyances of
            Federal land and approval of mine plan of operations. The
            partners must comply with other applicable Federal laws and
            regulations prior to the conveyance of lands. Thus, the
            exchange will not go forward until major environmental
            requirements under the National Historic Preservation Act,
            Endangered Species Act, Executive Orders pertaining to wetlands
            and floodplains, and Hazardous Materials Surveys are met...''
            And, ``With regards to the Mine Plan of Operations, HR 1904 is
            clear that this plan can only be approved following preparation
            of a full EIS that is in accordance with NEPA and all other
            applicable Federal laws and regulations. Additional
            environmental compliance requirements will also have to be
            addressed at the state and local levels in order for this mine
            to be developed. This legislation promotes economic development
            in an environmentally responsible way.''

        However, these assertions are not congruent with the intent or
    wording of this bill. The legislation does state the following, SEC
    4(i) states the intent of Congress is ``that the land exchange directed
    by this Act shall be consummated not later than one year after the date
    of enactment of this Act'' (emphasis added). Whereas, SEC 4 (j)(1)
    states that compliance with the requirements of the NEPA under this Act
    shall be dictated only under ``Prior to commencing production in
    commercial quantities (emphasis added) of any valuable mineral from the
    Federal land conveyed to Resolution Copper (emphasis added) under this
    Act (except for any production from exploration and mine development
    shafts, adits, and tunnels needed to determine feasibility and pilot
    plant testing of commercial production or to access the ore body and
    tailing deposition areas), Resolution Copper shall submit to the
    Secretary a proposed mine plan of operations.'' Additionally, SEC 4
    (j)(2) states ``The Secretary shall, within 3 years of such submission,
    complete preparation of an environmental review document in accordance
    with section 102(2) of NEPA (1969, 42 U.S.C. 4322(2)) which shall be
    used the basis for all decisions under applicable Federal laws, rules
    and regulations regarding any Federal actions or authorizations related
    to the proposed mine and mine plan of operations of Resolution Copper,
    including the construction of associated power, water, transportation,
    processing, tailings, waste dump, and other ancillary facilities.''
    But, this is not in relation to RCM site but areas outside the federal
    parcel to be traded. Senator Kyl stated there are `no waivers.'
    However, HR 1904 SEC 4 (f)(1)(A) specifically instructs the Secretary,
    upon enactment of this Act, ``[s]hall issue to Resolution Copper a
    special use permit to carry out mineral exploration activities under
    the Oak Flat Withdrawal Area'' AND ``[a] special use permit to carry
    out mineral exploration activities within the Oak Flat Withdrawal
    Area...'' SEC 4 (h) specifically separates off the federal land by
    stating the Federal land is not under federal control but private
    control stating that the land to be conveyed ``[s]hall be available to
    Resolution Copper for mining and related activities subject to and in
    accordance with applicable Federal, State, and local laws pertaining to
    mining and related activities on land in private ownership'' (emphasis
    added). In other words, the land is conveyed to RCM with one year, yet
    immediately allowing destructive mining activities to commence prior to
    extraction of ``commercial quantities'' (note, ``commercial
    quantities'' are conveniently undefined) [SECS 4 (i)(j); 6 (a)(1)(A)].
    Thus, rendering mining operations to occur without oversight and
    intervention from federal authorities. Then within a three year period,
    will NEPA and other mining concerns be addressed. But, this occurs
    AFTER the land is privatized! I believe this not only is a waiver, but
    `special' legalization.
        Regardless of any legislation, supporters also quip that an MPO
    will be approved by the government. However, in regard to applicable
    federal governing law and jurisdiction, the federal government has no
    such `approval' process of an MPO on private mining lands or has the
    ability to regulate the land under an MPO that would be provided now to
    be governed on private hands. Thus, any MPO produced is now, under
    present language, is meaningless because the mining plans will change
    once the land is in private and no longer subject to NEPA governmental
    review and oversight [e.g., HR 1904 SEC 4 (h)]. Senator Kyl believes
    that ``NEPA is fully satisfied.'' The fact is, regardless of which
    legislation, once privatized, this land is effectively exempt from
    nearly all requirements of federal law and outside review and scrutiny
    due to the mandatory one year trade provision. In fact, it will not be
    subject to the requirements of the Mining Law of 1872. These points
    were underscored in both BLM and FS testimonies and by Senator Bingaman
    in his questioning of witnesses. It is unclear why these facts are not
    be realized by RCM supporters. Once these lands are transferred to Rio
    Tinto, any opportunity for Tribal involvement will be marginalized at
    best. Supporters of this bill say this is not true. But, sadly it is
    true. If additional reports, examinations, scientific analysis, Tribal
    information etc. come forward and demonstrate significant impacts after
    the trade takes place, the federal government can no longer exert the
    type of jurisdiction on private land as it does on public land, it can
    no longer mitigate, or provide guidance on how to remedy environmental
    consequences. If RCM truly believes otherwise, then the Fort McDowell
    Yavapai Nation challenges this foreign conglomerate to allow this to
    proceed through the administrative process. If the compulsory reduction
    of federal oversight to this land and meaningless post-trade
    compliances are not the intent of Congress, then rewording and
    mandating studies and consolations to occur yielding results before an
    exchange is contemplated.
        The Nation is left to believe that land and water held in trust for
    all people, the environment, and for our cultural and religious
    purposes will be ultimately scarified for Rio Tinto and their foreign
    investors. Subsidence, water quality and quantity concerns, air quality
    concerns, tailings and overburden placement and storage, acid mine
    drainage and subsequent pollution, and a host of other damages yet to
    be determined as a result of this automated massive deep block cave
    mining operation are not sufficiently addressed in this bill. Where is
    it written in legislation holding RCM responsible when mining destroys
    the sacred places of Apache Leap, Oak Flat and surrounding region, and
    the important cultural resources these places provide? As past stewards
    of this land, we are deeply concerned that the RCM will cause
    irreparable harm to the environment including, but not limited to,
    contaminating scarce water supplies, permanent dewatering nearby
    surface water and sacred springs, loss of cultural resource materials,
    decimating the land base directly through mining practices, mining and
    post mining subsidence, and permanently destroying habitat for all
    fauna and flora.
        Devil's Canyon, located near the proposed mine is of great
    importance and of critical concern to the Yavapai people. Without
    providing sacred details, Congress should be cognizant of the fact that
    the Yavapai perform and have performed numerous religious and cultural
    ceremonies at Devil's Canyon since time immemorial. The hydrology is a
    critical element that makes this region significant to the Yavapai
    People. Perpetual dewatering throughout the life of the mine through
    groundwater pumping, mine dewatering, pollution, and other mining
    activities will cause these springs to be lost forever. This is an
    irrefutable scientific fact and not addressed within the proposed
    legislation. Safeguards mandated to prevent contamination, decrease in
    quality or quantity of the surrounding area that will result due to
    either direct or indirect discharges as also lacking. Will the surface
    flows and aquifer configurations be drastically altered by block-cave
    miming that the areas water supply be altered and negatively changed
    forever? We request that the Secretaries of Agriculture and Interior be
    directed to commission an independent, such as USGS, analysis of the
    hydrologic and engineering reports that evaluate potential impacts on
    the entire area including Devil's Canyon and Apache Leap now. This
    analysis must be in direct consultation with the Fort McDowell Yavapai
    Nation. Another paramount concern is where and how will the tailings be
    re-located? In consulting with geologists and geomorphologists, it does
    not appear that there are sufficient, previously abandoned surface mine
    pits that could either temporarily or permanently house the predicted
    hundreds of thousands of tons of material generated per day for the 40
    or more years of mining. Much of this material will contain an array of
    toxic substances. Will unspoiled canyons be sacrificed to store this
    material?
        Basically, NEPA is a postscript--a broken promise to Native
    Americans-after the damages begin, backward to the legal and federally
    approved process and the intent of NEPA. The legislation mandates the
    exchange regardless of the outcome of any federal studies or public
    interest determinations. In truth, if allowed to go forward, the
    federal analysis would, in all likelihood, determine that this project
    simply possess too great of an environmental risk or undeniable
    cultural and religious desecration such that it would be deemed
    unfeasible, and not in the public interest. It appears that these risks
    and outcomes are the primary reasons why Rio Tinto has deliberately
    tried to outwit and circumvent the administrative process by seeking
    this directed legislative land exchange. In essence, both bills, albeit
    on differing scales, request Congress to accept incalculable risks in
    exchange for other private lands scattered throughout Arizona in an
    attempt to `mitigate' damages resulting from Rio Tinto's mining of
    these sacred federal lands near Superior. The Yavapai People do not and
    cannot accept this rational.
                apache leap remains without any real protections
        In H.R. 1904, SEC 5 (a)(1)(E) and SEC 4(d) in S. 409 outline the
    exchange of Apache Leap. Noticeably absent are provisions for a
    conservation easement included in previous versions. In referring to
    Apache Leap, Senator Kyl mistakenly stated that this section ``totally
    protects it, so there is no issue there.'' However, in converting
    portions of Apache Leap for the `public' does not protect them from
    mining activities. If mining on the federal lands is to occur despite
    significant objections, when catastrophic disturbances, such as
    subsidence, fissures, etc., cause destruction on, under, or around
    Apache Leap transpires, detailed provisions are not in place as to the
    restoration/reclamation activities. Who will be the responsible party
    to provide for those restoration activities and their associated costs?
    There are no provisions as to how to evaluate, monitor or stop either
    short-or long-term impacts of mining activities, or to stop or prevent
    the destruction of irreplaceable cultural and religious resources of
    Apache Leap. Both pieces of legislation allow Rio Tinto to ``carry out
    underground activities'' as these activities are ``Subject to valid
    existing rights'' [i.e., mining claims, see H.R. 1904, SEC 7 and S.
    409, SEC 4 (d)(2)]. Although, commercial extraction of minerals under
    the surface of Apache Leap is prohibited, there will be very
    destructive activities or operations that will occur immediately
    following passage of this legislation. Conveniently, these activities
    are not listed. In fact, overall protections of Apache Leap are
    seriously undermined by language in H.R. 1904, SEC 8 or S. 409, 409,
    SEC 4 (d)(2), as it provides for substantial mining activities and
    operations both on top of an under the Apache Leap that will result in
    its subsidence. For example, in H.R 1904, SEC. 8. (a)(2) RCM will be
    granted special use permits by the Secretary to begin ``underground
    activities,'' in other words mining operations without any scientific
    evaluations, government analysis/determinations (e.g., NEPA), or
    subsequent government intervention. This is understood to including
    drilling or locating any tunnels, shafts, or other facilities relating
    to mining, monitoring, or collecting geological or hydrological
    information) that do not involve `commercial' mineral extraction but
    allows for extraction nonetheless under Apache Leap (per S. 409).
    Moreover, it is very likely that RCM dewatering activities is necessary
    for their deep underground tunnel system used for its mining
    activities. A serious drawdown in the water table of the region and
    will result in subsidence in and around the Apache Leap but not
    addressed in H.R. 1904. SEC 8. (a)(3) further permits surface and
    subsurface disturbance allowing ``monitoring devices'' that may, in
    fact, result in damage to Apache Leap without a benefit of NEPA or an
    EIS determinations negating the few ``protections'' intended to
    preserve its natural character. These undefined monitoring devices are
    understood to mean, at minimum, monitoring wells and other devices,
    instruments, to achieve multiple purposes including other appropriate
    administrative purposes (per S. 409). But, these activities are
    contraindicated in this section as it prohibits disturbance of
    ``..surface of Apache Leap.'' Notably, activities that would affect
    subsurface do not have prohibitions as only `surface disturbances' are
    stated here. In other words, Rio Tinto is given a pass to destroy this
    sacred area not conserve it. We find this windfall to Rio Tinto to be
    particularly egregious.
        Any implication that Apache Leap will be protected through the
    development of a ``management plan'' is also misplaced. A plain reading
    of Section 8 of either pieces of legislation reveals little in the way
    of specifics. Indeed, while legislation directs the Secretary of
    Interior to ``prepare'' a management plan for this important and sacred
    place, the bill contains absolutely no requirements for the plan and
    provides no substantive direction to the Secretary as to what the plan
    should entail or the federal cost associated with this plan. The final
    terms of the plan are left to the discretion of the Secretary, without
    guidance from Congress or federal appropriation. Thus, there is little
    assurance that a plan for the ``permanent protection'' of the cultural,
    historic, educational, and natural resource values of Apache Leap will
    be developed.
        What is also evident, there is no connection or coordination in
    H.R. 1904 between the development of the management plan and RCM's
    overall mining planning/activities throughout the larger area,
    including its subsurface activities below Apache Leap. In this case,
    the management plan of Apache Leap is separate and distinct from any
    operations or mining plans. Furthermore, while SEC 8. (b)(1) of each
    bill calls for ``consultation'' with the Indian Tribes regarding the
    management plan for Apache Leap, there are no provisions in the bill
    for consultation with the Yavapai Nation regarding RCM's unrestricted
    mining activities in the area surrounding Apache Leap as well as its
    operations and activities under the Leap. Yet, it is these activities,
    including the deep underground block caving operation itself, that
    present the greatest threat to the cultural, historic, educational, and
    natural resource values and continued integrity of Apache Leap. Without
    any protection or funding assurances, such as substantial bonding,
    should damage to Apache Leap result from mining activities we ask, who
    is responsible for the damage? As written, both RCC and the Federal
    government appear to have circumvented any responsibility for injury to
    Apache Leap caused either directly or indirectly by RCM's mining
    activities or operation. Because legislation does not provide provision
    or other guidance in this matter, it can be truly said that this bill
    is silent on the true protection for Apache Leap. The Yavapai must be
    consulted on including, but not limited to, regarding if, and to what
    extent, any disturbance or activity to the surface/subsurface of Apache
    Leap is acceptable, mining operations needed to carry out all mining
    activities in and around Apache Leap, and the management plan of Apache
    Leap.
                                   conclusion
        To conclude my testimony, numerous studies have shown that impacts
    from the type of mining being proposed will occur for many years after
    the completion of mining. Subsidence effects at underground hardrock
    mines using block caving cannot be mitigated, particular on such a
    grant scale being proposed. The area is currently protected by the
    Native American Graves Protection and Repatriation Act (Public Law 101-
    601) or any provision of the American Indian Religious Freedom Act (42
    U.S.C. 1996), the National Historic Preservation Act (6 U.S.C. 4701 et
    seq.), and the Religious Freedom Restoration Act of 1993 (42 U.S.C.
    2000bb et seq.). These laws are designated to protect areas important
    to Native American's but will be inapplicable and unenforceable as a
    result of any legislation brought forward. Misquotes or
    misunderstanding of this exchange have been expressed by sponsors of
    this bill. For example, in the House hearing on HR 1904, Congressman
    Gosar stated that ``the exchange will not go forward until major
    environmental requirements under the National Historic Preservation Act
    . . . are met.'' However, this is unequivocally incorrect. As stated
    earlier, these mandates cannot be met due to the timing of the
    mandatory exchange and post-exchange analysis. Furthermore, these
    federal mandates cannot be enforced once in private land once conveyed
    to Rio Tinto. The scale of destruction that is proposed with this mine,
    dewatering, land subsidence, polluting of the land and water will
    desecrate this sacred area. No amount of reclamation and restoration
    can reverse the damage that will occur on such an imposing and
    unprecedented scale. I cannot express in words how deeply felt this
    land is to the Yavapai--it simply transcends words. Damages to this
    area resulting from this mining project cannot be mitigated away.
    Simply placing a dollar value on the land or exchanging it for some
    other land that is far from the area of concern and does not have the
    same value to us is not acceptable. The Tonto National Forest has
    discovered at least a dozen archeological sites in and around Oak Flat.
    Therefore, the Nation requests the opportunity to evaluate all data in
    internal and external reports for the entire area, including data that
    were not included in the final version of these reports. Fort McDowell
    also request answers to the specific questions we have in regard to how
    Rio Tinto and the Federal government will protect the religious and
    cultural resources of the area.
        It is well understood that in a land exchange, the intended use of
    conveyed federal lands should not conflict significantly with
    management of adjacent federal and Indian trust lands (43 C.F.R.
    Sec. 2200.0-6(b)). This trade is not consistent with well-established
    laws on this matter (e.g., NEPA). Cultural resource consideration and
    Tribal input into the land `value' must be part of this process at the
    on-set--before the exchange and land evaluation process. But, even if
    we are allowed to participate-how will the United States evaluate our
    `values' to the land as these `values' are so critical to the very
    culture and spirit of the Tribes, including the Yavapai People? The
    `value' of this land to the Yavapai does not simply equate to a dollar
    amount on a price tag. Its assets are more than words can translate or
    dollars can calculate -they cannot be simply traded away for lands that
    foreign mining companies own. Thus, going into this exchange, the
    evaluation of all lands, by legal standards and by the Yavapai People,
    has not been legally `appraised' or `assessed' as to their true worth
    and significance to Tribes.
        In the hearings, President Shan Lewis of ITCA noted Tribes and
    Tribal organization from all over the country have expressed their
    opposition to this bill because threats to our sacred sites in Arizona
    present a threat to all sacred sites. It is disturbing that this land
    exchange would take place and forego the United States Trust
    responsibility to Native Americans. While it may be difficult for non-
    Indians to understand, it is equally difficult for us to convey the
    profound importance of this area. Thus, it is indeed deplorable that
    without consultation Congress would allow our ancestral lands to be
    wholly owned by foreign interests who have no conception of Native
    American religious values, culture and history. The basic questions
    have yet to be answered regarding the proposed exchange and the
    benefits to the public interest remain uncertain. Moreover, questions
    regarding the magnitude of this mining operation's effect on this areas
    cultural and religious importance must be fully and fairly analyzed
    through the administrative process prior to congressional action. Only
    through the administrative process can these serious concerns be
    adequately considered. Only through the administrative process would
    the Nation be provided an opportunity for a meaningful government-to-
    government consultation that is required by the United States trust
    responsibility to the Yavapai Nation and guaranteed under federal law.
    However, at the hearings, Senator Kyl does not believe that a TRUE
    public interest determination such is this is necessary. The Nation
    will be happy to consult on issues related to legislation that define
    or provide the requisite transparency to address many of our
    fundamental concerns including, but not limited to studies/assessments
    that address or provide: 1) unbiased analysis on the potential job and
    economic benefits; 2) a mineral report and appraisal of the Federal
    parcel to assure the parity of the land exchange and justifiable
    royalty provisions; 3) the feasibility of the mine and mining
    operations; 4) assessment and mitigation of environmental damages,
    untenable security and sustainability of the ecosystem including
    effects on groundwater, surface water, land disturbance, pollution, and
    subsidence issues; 5) the need NEPA and third party, independent EIS on
    the entire mining operation; 6) ) extensive mining plan, reclamation
    protocol, assurances and guarantees made by either the federal
    government, Rio Tinto, or BHP; 7) how to mitigate the incalculable
    cultural losses caused by foreign interests taking and destroying land
    that is critically important ancestral territory of the Yavapai People
    that is still a very sacred; 8) federal environmental and cultural
    protections afforded public lands rendered inapplicable once the land
    is conveyed; 9) protection to Apache Leap and lack of appropriated
    federal monies to plan and protect this area: and, 10) meaningful
    consultation with Fort McDowell as a sovereign nation that is required
    by the United States' trust responsibility to the Yavapai Nation and
    guaranteed under federal law. It is imperative that the Nation provide
    input as to Rio Tinto's impact on and the (irreplaceable) `value' this
    area holds to the Yavapai People. We also have additional concerns but
    they are not addressed here. Thus, at this time, we believe there are
    too many unresolved serious issues that must be fully addressed prior
    to congressional approval.
        Mr. Chairman, members of the Committee, on behalf of the Fort
    McDowell Yavapai People, I thank you for the opportunity to express our
    deep concerns regarding this proposed legislation.
                                     ______

                                    Arizona Mining Association,
                                         Phoenix, AZ, October 21, 2011.
    Hon. Paul Gosar,
    U.S. House of Representatives, 504 Cannon House Office Building,
            Washington, DC.
    Re: H.R. 1904: Southeast Arizona Land Exchange and Conservation Act of
    2011

        Dear Representative Gosar, The Arizona Mining Association supports
    the passage of H.R. 1904. By permitting the exchange of lands, this
    measure would secure the requisite lands necessary for Resolution
    Copper to develop this ore body.
        Copper is a vital element of America's resource base, and
    represents an essential building block for economic growth and
    modernization around the world. Industry in the United States needs
    copper to build houses, offices, cars, appliances, and electronics.
    Additionally, the majority of green energy initiatives need more copper
    than ever before to be successful. For example, the construction of one
    wind turbine requires 4. 7 tons of copper, the average hybrid car
    requires twice the amount of copper as a non-hybrid, and solar energy
    production is supported by copper.
        In 2010, Arizona copper mines produced nearly 800,000 tons of
    copper or 63 percent of the nation's copper production. Even with
    Arizona's significant copper production, the United States continues to
    be a net importer of copper and is becoming more and more dependent on
    other countries for this strategic metal. Our military relies on this
    metal for everything from bullets to the components of precision
    guidance systems. If we do not continue to develop our resources at
    home, we could find ourselves reliant upon copper from other nations in
    the same way we are now reliant upon other nations for rare earth
    minerals and crude oil. At its peak, the Resolution Copper Project
    could produce 25 to 30 percent of our nation's copper needs; thereby
    substantially reducing this great nation's needs for imported copper.
        On behalf of the Arizona Mining Association, we thank you for your
    vision and leadership on this matter.
                Sincerely,
                                          Robert E. Quick, Jr.,
                                                             President.
                                     ______

              Arizona Chamber of Commerce and Industry,
                                 Arizona Manufacturers Council,
                                          Phoenix, AZ, October 6, 2011.
    Hon. John A. Boehner,
    U.S. House of Representatives, 1011 Longworth House Office Building,
            Washington, DC.
        Dear Speaker Boehner: The Arizona Chamber of Commerce and Industry
    urges the House of Representatives to immediately consider HR 1904, the
    Southeast Arizona Land Exchange and Conservation Act of 2011, on the
    Floor of the House. This legislation will provide a huge stimulus to
    both US and Arizona economies without an infusion of any federal funds.
        We understand the mine project, which depends on the passage of HR
    1904, will create 3,700 direct and indirect jobs for Arizonans and
    others across America, and it will inject $61.4 billion into the
    Arizona economy over the life of the mine. Beyond the impact to the
    Arizona economy, the federal government stands to benefit greatly from
    this endeavor. According to an economic impact study prepared by
    Elliott D. Pollack & Company in September, 2011, ``An estimated $14.1
    billion is expected to be paid to the federal government in the form of
    income taxes.'' That figure reflects the total receipts over the life
    of the mine. Combine that with the tremendous natural resource of
    copper to our nation and the tremendous benefit to state and local
    governments (which stand to bring in $5.8 billion in tax revenues over
    the life of the mine), and it is clear that this legislation must move
    through the House swiftly in hopes that the Senate will take action and
    send it to the President for his signature.
        Passage of this legislation will not only convey 5,344 acres of
    high-value conservation lands to the federal government, but it will
    transfer ownership of a federal parcel that was withdrawn from mining
    to Resolution Copper Mining. This transfer will allow for the full
    development of what we understand to be the largest copper deposit in
    North America--a deposit that provides high-paying jobs for at least
    40-years and will produce over 20 percent of the annual US demand for
    copper.
        We appreciate the tremendous amount of work Congress has to do each
    and every year. We ask, however, that you place the passage of HR 1904
    at the top of your list of critical job-creation legislation. You have
    the opportunity to make an enormous difference in the lives of
    Arizonans and, ultimately, the American public by creating jobs,
    promoting sustainable mining operations, harvesting a vital natural
    resource, protecting critical conservation lands, and revitalizing
    Arizona's economy--all without spending one cent of taxpayer money.
        Thank you for your consideration.
                Sincerely,
                                                   Glenn Hamer,
                                                       President & CEO.
                                     ______

                 National Association of Manufacturers,
                                   Energy and Resources Policy,
                                      Washington, DC, October 25, 2011.
    Hon. Paul Gosar,
    Member of Congress, U.S. House of Representatives, 504 Cannon House
            Office Building, Washington, DC.
        Dear Representative Gosar: On behalf of the National Association of
    Manufacturers (NAM), thank you for your efforts to address the
    important issue of domestic natural resources, in particular copper. As
    you know, copper is used in a number of manufacturing applications
    which include alternative energy infrastructure, renewable energy
    products, consumer electronics and hybrid cars among others; and
    therefore, its availability is important to manufacturers and the
    manufacturing process.
        By way of background, the NAM is the largest industrial trade
    association in the U.S., representing over 11,000 small, medium and
    large manufacturers in all 50 states. We are the leading voice in
    Washington, D.C. for the manufacturing economy, which provides millions
    of high wage jobs in the U.S. and generates more than $1.6 trillion in
    GDP. In addition, two-thirds of our members are small businesses, which
    serve as the engine for job growth.
        This legislation will be the first step in helping the United
    States to meet more of our domestic demand for copper. In fact, the
    proposed mine would produce enough copper to meet about 25% of the
    current U.S. demand. In doing so, it will also create jobs and generate
    nearly $20 billion in federal, state, county and local tax revenue.
        We thank you for your efforts and recognition of this important
    issue and the impact it has on U.S. manufacturers.
                Sincerely,
                                                  Paul A. Yost,
                                                        Vice President.
                                     ______

                                            Dowding Industries,
                                  Eaton Rapids, MI, September 29, 2011.
    Hon. John A. Boehner,
    U.S. House of Representatives, 1011 Longworth House Office Building,
            Washington, DC.
    Re: Support for HR1904, Southeast Arizona Land Exchange and
    Conservation Act 2011

        Dear Speaker Boehner: U.S. manufacturers once again see
    opportunities to re-affirm our nation's position as the global leader
    in technology innovation and manufacturing, while growing the economy,
    creating well-paying jobs, and improving standards of living. Many of
    us believe that our success lies in the ability--and will--of the U.S.
    to take command of our own future, by becoming more reliant on our own
    resources, resourcefulness, and expertise.
        That is why I am writing today.
        Dowding Industries, with national manufacturing operations in Iowa
    and Michigan, supports HR 1904, introduced by Congressman Gosar to
    facilitate domestic production of copper and other critical minerals in
    his state of Arizona by authorizing the exchange of federal lands for
    this purpose.
        The land exchange would result in Resolution Copper Company
    conveying privately held land of high habitat and conservation value to
    the government, and enable the company to conduct safe, responsible
    mining operations. Passage of this bill would also allow the creation
    of 3700 jobs, $16 billion in federal tax revenue and over $61 billion
    in overall economic impact without a single dollar of federal stimulus.
        Mineral production is fundamental to manufacturing, and to the
    competitive economic strength of U.S. manufacturers and our products.
    Minerals are fundamental to innovations and technologies we recognize
    today as commonplace--like smart phones, (Pads, and airliners, and
    others we recognize as the way of the future--like advanced energy
    technologies. We also recognize that domestic metals production--as
    with domestic manufacturing--is a matter of economic national security.
        Dowding Machining is developing new technologies that could
    revolutionize the alternative energy industry. The company is working
    to design and manufacture state-of-the-art machine tools to make
    massive wind-turbine components with reduced time and cost, and build a
    new generation of wind turbine blades. Dowding Industries is a
    precision metals fabricator; we specialize in custom machining for the
    energy, mass transportation, and industrial equipment sectors. In all
    cases, metal, and the key minerals that comprise them, are at the heart
    of our business units.
        We understand the land exchange would enable Resolution Copper to
    access what may be one of the largest copper ore bodies ever identified
    in North America. Mining operations will benefit the local, state, and
    national economies for many years to come. Technology industries, of
    which Dowding Industries is a part, will benefit from the economic
    impact of this very sizeable domestic raw material production.
        I commend your vision for ensuring the economic strength of our
    nation and its manufacturing sector, and your leadership role in
    advancing the Southeast Arizona Land Exchange and Conservation Act for
    achieving this vision.
        Thank you.
                Sincerely,
                                                    Jeff Metts,
                                                             President.
                                     ______

                                      State of Arizona,
                                               Exeutive Office,
                                         Phoenix, AZ, February 6, 2012.
    Hon. Jeff Bingaman,
    Chairman, Senate Energy and Natural Resources Committee, 304 Dirksen
            Senate Building, Washington, DC.
        Dear Chairman Bingaman, As the Governor of the State of Arizona, I
    am pleased that we are closer than ever to the passage of legislation
    that will help generate $16 billion in revenues to the federal
    government, creating 3,700 jobs, adding an additional 3,000 jobs during
    a nine-year construction effort, and attracting over $6 billion in
    private investment. All this would be done without stimulus funds and
    would preserve thousands of acres of pristine lands.
        I write to express my desire for the immediate enactment of this
    critical legislation--HR 1904, the Southeast Arizona Land Exchange and
    Conservation Act. As you know, this legislation passed the U.S. House
    of Representatives on October 26, 2011, and I am pleased that you have
    already begun its consideration in the US Senate. I urge you to swiftly
    move this legislation so that we can, together, remove impediments to
    private sector job creation and stimulate our economy.
        Passage of this legislation will convey 5,344 acres of high-value
    conservation lands to the federal government for management. These non-
    federal parcels of land that would be preserved by passage of HR 1904
    hold significant cultural, historic, and environmental value. By
    preserving these lands, the federal government will be better able to
    manage and protect the forest lands, riparian habitat areas, and
    watersheds contained therein.
        In exchange for these parcels, the federal government will transfer
    ownership of a federal parcel that was withdrawn from mining to
    Resolution Copper Mining. This transfer will allow for the full
    development of what we understand to be the largest copper deposit in
    North America--a deposit that provides high-paying jobs for at least 40
    years and will produce over 20 percent of the annual U.S. demand for
    copper.
        This bill will not cost taxpayers one cent, and yet will bring
    private investment; provide jobs and economic growth to a severely
    challenged area in my state; provide significant revenues to local,
    state and federal coffers; and will protect valuable lands by
    conferring them to the federal government.
        I have had the opportunity to learn about and personally visit
    Resolution Copper and have spent time with members of the community
    throughout the ``Copper Basin.'' I am impressed by the patience and
    resolve of the community. Further, I am heartened by Resolution's
    commitment to addressing concerns related to the local communities, the
    environment, and the multitude of stakeholders that have been part of
    the development of this legislation for the past several years.
        I urge your support of this legislation for real and sustainable
    job creation.
                Sincerely,
                                              Janice K. Brewer,
                                                              Governor.
                                     ______

                                              Town of Superior,
                                        Superior, AZ, February 3, 2012.
    Hon. Jon Kyl,
    U.S. Senate, 730 Hart Senate Office Building, Washington, DC.
        Dear Senator Kyl: The Superior Town Council wants to reaffirm its
    support for the Southeast Arizona Land Exchange and Conservation Act
    and the Resolution Copper project.
        With the financial challenges our nation and particularly our state
    face, we recog1iizt that the Resolution Copper project would provide
    much needed economic development opportunities for our local community
    as well as Phial County and the State of Arizona. Specifically, this
    project has the potential to generate many jobs for those in and around
    our community and it has the ability to strengthen revenue potential
    for businesses. We have already seen a large increase of contractors
    and their work force in and around the area and anticipate this growth
    to continue.
        Superior has a rich history of mining for over 100 years. We
    recognize that mining is one of our cornerstone industries, and we
    support continued operations in and around our Town. As elected
    officials who are concerned regarding positive impacts to our community
    both now and in the future, it is our desire and expectation that
    compliance with the National Environmental Policy Act, sustainable
    water resources and other environmental issues and impacts be
    adequately addressed. Resolution Copper has made that commitment to me,
    the Town Council and the community.
        We believe that the Resolution Copper project is a solid investment
    in our community. As Mayor, I recognize the work that Resolution Copper
    has undertaken to improve environmental conditions in Superior; and I
    anticipate that work will continue.
        On behalf of the Superior Town Council, I respectfully request that
    you make the Southeast Arizona Land Exchange and Conservation Act your
    top priority. I cannot stress enough how important your leadership on
    this important issue is needed.
                Sincerely,
                                              Jayme Valenzuela,
                                                                 Mayor.
                                     ______

                             The Trust for Public Land,
                                               Federal Affairs,
                                      Washington, DC, February 3, 2012.
    Hon. Jeff Bingaman,
    Chairman, Committee on Energy and Natural Resources, SD-304 Dirksen
            Senate Office Building, Washington, DC.
        Dear Mr. Chairman: It is my understanding that the Senate Committee
    on Energy and Natural Resources has scheduled a hearing on H.R. 1904,
    the Resolution Copper exchange proposal. The Trust for Public Land does
    not have a position on the merits of the exchange as a whole, but we
    can attest to the merits of the East Clear Creek property and our
    belief that it deserves public protection through inclusion in the
    Coconino National Forest.
        The Trust for Public Land (TPL) is a national land conservation
    organization that protects land for people across the country. Founded
    in 1972, TPL has protected more than three million acres in 47 states.
    In Arizona, we have worked with the Forest Service over many years to
    convey into public ownership key lands in the Coconino National Forest.
        In the course of this work, TPL was offered the opportunity to
    acquire the East Clear Creek property, which is now included in the
    Resolution Copper exchange legislation being considered by the Energy
    and Natural Resources Committee. We initially hoped that the Land and
    Water Conservation Fund would provide the means for the Forest Service
    to acquire this land, but it became clear LWCF funds would not be
    forthcoming in a reasonable time frame. In 2005, the possibility arose
    to make this property available for the exchange, and TPL pursued that
    opportunity because we believed it was important that the East Clear
    Creek land ultimately be conveyed to Forest Service ownership.
        The property comprises 640 acres, one complete section, along East
    Clear Creek in the Mogollon Rim Ranger District of the Coconino
    National Forest. The parcel is among the largest single blocks of
    private inholdings within the forest. The creek itself flows through it
    for more than two miles and may provide habitat for several native fish
    species known to occur in the East Clear Creek system. These include
    Little Colorado spinedace (listed as a threatened species by the
    USFWS), Chiricahua leopard frog (also a threatened species), northern
    leopard frog, roundtail chub (a candidate species), and Little Colorado
    sucker. The upper ridges are dominated by Ponderosa pine forest, with
    interspersed oak and aspen woodlands. This area provides habitat for a
    variety of wildlife, including big-game species like Rocky Mountain
    elk, mule deer, turkey, and black bear. In addition, the U.S. Forest
    Service has identified key areas as protected and restricted habitat
    for the Mexican spotted owl.
        East Clear Creek Canyon and several side canyons cross the property
    and serve as wildlife transition zones between the upper plateaus and
    riparian corridor of East Clear Creek. Numerous wildlife trails and
    raptor nesting sites occur along the canyon walls. Permanent protection
    of this property will also provide the public with opportunities to
    enjoy the natural beauty of this area through a variety of recreational
    activities.
        In 2005 there was significant encroachment of new homes being built
    in the vicinity, and this property would likely have been developed had
    The Trust for Public Land not acquired it with the intention of seeing
    it eventually conveyed to the U.S. Forest Service.
        As the Committee considers the merits of H.R. 1904, I hope the
    information contained in this letter will prove useful.
        Thank you.
                Sincerely,
                                                Kathy DeCoster,
                                                        Vice President.
                                     ______

                                The Nature Conservancy,
                                   Phoenix Conservation Center,
                                         Phoenix, AZ, February 7, 2012.
    Senate Committee on Energy & Natural Resources,
    ATTN: David Brooks & Frank Gladics, Washington, DC.
        Dear Mr. Brooks & Mr. Gladics: Thank you for the opportunity to
    comment on H.R. 1904, the Southeast Arizona Land Exchange and
    Conservation Act of 2011 (hereinafter ``bill''). The Nature Conservancy
    has no formal position on this legislation. Instead, this letter is
    meant to outline the important conservation value of ``the
    approximately 3,050 acres of land located in Pinal County, Arizona'',
    known as ``Seven B'', as part of the federal acquisition for
    conservation purposes.
        The Nature Conservancy is an international, nonprofit organization
    dedicated to the conservation of biological diversity. Our mission is
    to preserve the plants, animals and natural communities that represent
    the diversity of life on Earth by protecting the lands and waters they
    need to survive. Our on-the-ground conservation work is carried out in
    all 50 states and in more than 30 foreign countries and is supported by
    approximately one million individual members. We have helped conserve
    nearly 15 million acres of land in the United States and Canada and
    more than 102 million acres with local partner organizations globally.
        The Conservancy owns and manages approximately 1,400 preserves
    throughout the United States--the largest private system of nature
    sanctuaries in the world. We recognize, however, that our mission
    cannot be achieved by core protected areas alone. Therefore, our
    projects increasingly seek to accommodate compatible human uses, and
    especially in the developing world, to address sustained human well-
    being.
        In Arizona, The Nature Conservancy has created a dozen nature
    preserves and developed new funding sources for conservation throughout
    the state. One main focus of our work has been to protect one of the
    last few remaining undammed rivers in the State of Arizona, the San
    Pedro River.
        The ``Seven B'' property contains nearly 7 miles of the lower San
    Pedro River as well as over 800 acres of ancient intact mesquite bosque
    representing what is probably the largest old-growth mesquite forest
    remaining in Arizona. As early as 1974, an Arizona Academy of Science
    report called for preserving the bosque as a scientific and educational
    natural area, and subsequent analyses by The Nature Conservancy and
    others have affirmed its conservation value. In addition to the
    mesquite bosque and river corridor, the Seven B contains an artesian
    well that has the potential for providing a recovery site for
    endangered desert fish species. Therefore, we support the federal
    acquisition of this parcel for conservation purposes.
        Furthermore, the bill expands the San Pedro National Conservation
    Area to include the Seven B on the lower San Pedro River. It will
    greatly assist the parties that share a vision for the long-term
    protection and enhancement of the river's natural values.
        However, the conservation values of the ``Seven B'' property exist
    only in the context of an ability to maintain the natural functioning
    of the larger San Pedro River ecosystem.
        We thank Resolution Copper for opening a dialogue with its partner
    on the mine, BHP Billiton, to discuss the future of the lands owned by
    BHP Billiton adjoining the ``Seven B'' to ensure their permanent
    protection. These discussions are ongoing. As well, Resolution Copper
    has brought together other nearby landowners on lower San Pedro River
    to discuss long-term strategies for the health of the river.
        In addition, we support the inclusion in Sec. 6(d)(2) the ability
    to provide funding for the management and protection of lands acquired
    by the federal government by this legislation. We believe this is
    important for the lands provided to the federal government by this
    legislation to have an endowment to provide for their management. It is
    not uncommon to have such a practice in administrative transactions
    with the federal government.
        We must point out one item that needs further clarity in HR 1904.
    On page 8 of House Report 112-246 for the bill, it states the addition
    of the Seven B ``. . . would fully complete the San Pedro Conservation
    area.'' This is not a correct statement and we request a technical
    correction of the report to reflect this inaccuracy.
        Thank you again for the opportunity for us to discuss the
    conservation values associated with the legislation. We do have an open
    dialogue with Resolution Copper and Members of the Arizona
    Congressional Delegation. We look forward to continuing to discuss the
    items outlined in this letter as this important legislation continues
    in the U.S. Congress.
        Please do not hesitate to contact me if you have any questions.
                Sincerely,
                                                Patrick Graham,
                                                        State Director.