[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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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
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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
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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\
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\1\ Pollack & Associates, Resolution Copper Company Economic and
Fiscal Impacts Report Superior, Arizona, (September 2011).
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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 .
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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\
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\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).
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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.
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\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.
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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.
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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\
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\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).
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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.
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* Figures 1-5 have been retained in committee files.
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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:
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* 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.''
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* Document has been retained in committee files.
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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.
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\1\ Treaty with the Apache, 10 Stat. 979 (July 1, 1852), ratified
March 23, 1853, proclaimed March 25, 1853.
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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.
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\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.
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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).
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\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).
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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 [email protected] 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.
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\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\
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\2\ http://www.concernedclimbers.com/
\3\ http://www.theqcc.org/
\4\ Id.
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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.
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\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/.
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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.
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\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,*
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* Additional signatures have been retained in committee files.
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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.