[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











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               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

                              ----------                              

                               STATEMENTS

                                                                   Page

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

                               APPENDIXES
                               Appendix I

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

                              Appendix II

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

 
                           RESOLUTION COPPER

                              ----------                              


                       THURSDAY, FEBRUARY 9, 2012

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

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

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

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

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


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

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

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

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

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

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

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

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

    My colleague, Senator Kyl, and I first introduced this bill in 
2005, seven years ago, and today marks the bill's sixth hearing before 
a Congressional Committee. At every hearing, the project's tremendous 
economic and environmental values are reaffirmed, and yet at each 
hearing we see the same agitators trotted out to play the tired role of 
the industry obstructionist. This vocal minority is so philosophically 
opposed to any mining in Arizona that they are willing to throw away 
the future of young families along with the best hope for long-term 
prosperity in the Town of Superior, Arizona, and on the San Carlos 
Apache Indian Reservation.
    Unfortunately, Mr. Chairman, today's testimony by the 
Administration includes no meaningful recognition of the Mine's 
national importance aside from passively mentioning, quote, ``potential 
economic and employment benefits.'' Instead, the Administration's 
testimony feeds unsubstantiated claims that the Mine imminently 
threatens the area's environment quality and cultural resources. This 
Committee has spent years analyzing, discussing, and evaluating this 
land exchange. We've had representatives of the Administration, 
including Interior Secretary Ken Salazar, visit the proposed mine site. 
The Forest Service began conducting preliminary evaluations of mine 
area as far back as 2004. The Resolution Copper Company has invested 
$750 million to collect engineering data to develop its Mine Plan of 
Operation which is now nearly complete. And yet no ``compromise'' is 
acceptable to the opponents who continue to demand more tribal 
consultation and more environmental study.
    Mr. Chairman, for all of today's talk about the importance of 
tribal consultation, I want to point out that the leaders of the San 
Carlos Apache Tribe have never met with Resolution Copper to learn 
about the project or discuss their cultural concerns. Attempts by the 
company to reach out to the tribe have continuously been ignored. On 
multiple occasions, I've personally asked the Chairman of the Tribe to 
be briefed on the project and to engage in constructive dialogue, and 
each time my request has been declined.
    So are we to believe that the mining opponents genuinely want 
tribal consultation? Are we to assume that in light of the Keystone 
Pipeline issue, this Administration won't delay or ultimately reject 
the project in the name of more study and more tribal input? The 
Administration's apathetic view of the Mine is disgraceful and 
frustrating, and should trouble every member of this body who has land 
exchange legislation pending before this Committee.
    Mr. Chairman, it's time for Congress to put an end to these delay 
tactics. The people in my state are hurting for jobs and this Mine is 
an economic opportunity that must not be squandered. I wish to submit 
for the record several resolutions and letters of support for this land 
exchange issued from dozens of local governments and officials, 
including the Governor of Arizona.
    Congress is long overdue in moving forward with this proposal, and 
I urge my colleagues to support this land exchange. I thank the 
Chairman and the Committee for their attention to this issue.
                                 ______
                                 
     Prepared Statement of Hon. Jon Kyl, U.S. Senator From Arizona
    Chairman Bingaman, Ranking Member Murkowski, and members of the 
committee, thank you for the opportunity to appear before you today to 
discuss the Southeast Arizona Land Exchange and Conservation Act with 
you.
    As many of you know, I am disappointed that the chairman noticed 
this hearing to consider not just the recently House-passed H.R. 1904, 
but also a bill before this committee two years ago. That old text was 
a committee amendment in the nature of a substitute adopted by this 
committee in March 2010. The Senate did not act on S. 409, as amended, 
and when the 111th Congress ended, the bill died. The committee text 
has not been introduced as a bill in this Congress and, therefore, is 
not even before the Senate.
    That said, however, I plan to cover both the House-passed H.R. 1904 
and the committee-reported text of S. 409 in my testimony.
  h.r. 1904, the southeast arizona land exchange and conservation act
    I support H.R. 1904 as passed by the House of Representatives. The 
bill's sponsor, Representative Paul Gosar, has crafted a bill that 
enjoys strong support in our home state of Arizona. H.R. 1904 directs a 
land exchange in southeastern Arizona between Resolution Copper Mining, 
LLC (Resolution Copper), the secretary of agriculture, and the 
secretary of the interior. Specifically, the bill directs the secretary 
of agriculture to convey a 2,422-acre parcel of land located on the 
Tonto National Forest, in a known mining district called the ``Copper 
Triangle'' to Resolution Copper. The federal parcel, commonly called 
``Oak Flat'' after the primitive camping site located there, will be 
traded to Resolution Copper to facilitate future exploration and 
development of what has been characterized as the largest copper-ore 
deposit ever discovered in North America, which is located some 7,000 
feet below the surface.
    Oak Flat is intermingled with, or abuts, private lands already 
owned by Resolution Copper Company. Resolution Copper's unpatented 
mining claims blanket the parcel except for the 760-acre area that 
includes the Oak Flat Campground. Oak Flat Campground was withdrawn 
from mining in 1955 by Public Land Order (PLO) 1229 along with 24 other 
campgrounds, lookouts, roadside zones, and administrative sites on 
National Forest lands. Oak Flat and these other sites were withdrawn to 
protect the federal capital investment in those sites--not because of 
any unique resource values. It is common practice to lift a PLO in a 
legislated land exchange.
    Given the ownership patterns, the public safety issues that may be 
associated with the mining activities, and the significant investment 
Resolution Copper must make to develop this mine (more than $6 
billion), it is important for Resolution Copper to own, in fee, the 
entire mining area.
    In return for conveying the federal parcel to Resolution Copper, 
the Forest Service and Bureau of Land Management will receive eight 
parcels of private land totaling 5,344 acres. These parcels have been 
identified by--and are strongly endorsed for acquisition by--numerous 
conservation organizations, as well as these very two agencies 
themselves. They include lands along the San Pedro River--an important, 
internationally recognized migratory bird corridor, riparian, and 
wetland habitat for threatened and endangered animal and plant species, 
including the southwestern willow flycatcher and the hedgehog cactus. 
These lands also include important recreational areas, cultural 
resources, and magnificent canyons and forests that are home to big 
game species. Most of the parcels are inholdings that will allow more 
effective management of the federal land. I would be remiss if I did 
not point out that this bill actually adds 110 acres of private land to 
the federally controlled Apache Leap, a cliff formation above the Town 
of Superior that is considered culturally and historically significant 
to several Indian tribes. There is no doubt that it is in the public 
interest to bring these lands into federal ownership for the enjoyment 
of future generations.
    Although the bill focuses primarily on the land exchange I just 
mentioned, H.R. 1904 also includes provisions that would permit the 
conveyance of federal lands to the Town of Superior. These lands 
include the town cemetery, lands around the town airport, and a federal 
reversionary interest that exists at the airport site. These lands are 
included in the proposed exchange to assist Superior in providing for 
its municipal needs, as well as in expanding and diversifying its 
economic development.
    The mine project this bill seeks to facilitate would open up the 
third-largest undeveloped copper resource in the world, making a major 
contribution to our nation's mineral production. According to a January 
2011 U.S. Geological Survey (USGS) report, the United States currently 
imports more than 30 percent of our national copper demand. Not only is 
it estimated that the mine project could produce enough copper to equal 
as much as 25 percent of current U.S. demand, but our demand is only 
expected to increase in coming years. This is so because of copper's 
status as a critical metal in alternative energy infrastructure and 
vehicles; so the need for this mine project is clear.
    The project would also have a tremendous economic impact in Arizona 
and our nation at large in the form of both jobs and revenue. The mine 
is expected to create 3,700 mining-related jobs alone, not to mention 
the hundreds more it will create in related sectors. I do not need to 
remind this committee of the need for more jobs in our country; 
moreover, many of the mining-related jobs would be created in an area 
of the state with some of Arizona's highest unemployment rates. Over 
the life of the mine, the project is expected to contribute more than 
$61 billion to the economy, including $19 billion in tax revenues to 
federal, State and local government coffers.\1\
---------------------------------------------------------------------------
    \1\ Pollack & Associates, Resolution Copper Company Economic and 
Fiscal Impacts Report Superior, Arizona, (September 2011).
---------------------------------------------------------------------------
    Despite the fact that this bill is overwhelmingly supported in 
Arizona, there is a vocal minority that is now resorting to scare 
tactics in an effort to kill this bill. They say that allowing this 
project to go forward would circumvent environmental review, destroy 
cultural resources, and give away a valuable mineral resource. I want 
to assure everyone here today that none of this is true.
                        environmental compliance
    Environmental compliance is a critical element of this project. In 
2008, Resolution Copper submitted to the Forest Service a pre-
feasibility activities plan of operations. Those activities included 
exploration drill sites on the federal parcel that would be conveyed to 
Resolution Copper as part of the exchange. In 2010, after a full NEPA 
review that concluded with a Finding of No Significant Impact, not to 
mention an appeal by many of the vocal minority I mentioned earlier, 
the Forest Service approved the plan. Under House-passed H.R. 1904, 
Resolution Copper would be required to take the next step and submit a 
mining plan of operations to the Forest Service that would be the basis 
for an Environmental Impact Statement (EIS). That EIS would have to be 
completed prior to commencing production in commercial quantities of 
any valuable minerals. Resolution Copper has already started the 
development of the mining plan of operations and expects to submit it 
later this year, beginning this process. Additional environmental 
compliance requirements in federal and state law would also have to be 
addressed in order for the necessary permits to be obtained that would 
allow development of the mine. Resolution Copper is also active in 
sustainable development efforts that include voluntarily reclaiming and 
remediating impacts of historic mining in the area.
               tribal consultation and cultural resources
    Tribal consultation, protection of cultural resources, and respect 
for Native American customs and traditions in the land exchange area 
are a priority. The bill contains an entire section that would 
permanently protect Apache Leap; it also requires, as a condition 
precedent to the land exchange, that Resolution Copper surrender to the 
United States, without compensation, the rights it holds under law to 
commercially extract minerals under Apache Leap.
    It is important to note that there appear to be some inconsistences 
in the Forest Service's testimony and the realities on the ground in 
terms of tribal consultation. It is my understanding, based on past 
testimony by the Forest Service before this committee, that 
consultation with the tribes began on a formal and informal basis as 
early as 2004.\2\ In addition, the Forest Service consulted with the 
tribes more than two years before approving the pre-feasibility plan of 
operations in the land exchange area in 2010.\3\ On appeal, the 
reviewing officer found that a good faith government-to-government 
consultation with the tribes had occurred and should continue.\4\ 
Nothing in this legislation will short-circuit required tribal 
consultation under applicable law.
---------------------------------------------------------------------------
    \2\ Honorable Mike Johanns, Secretary of the Department of 
Agriculture, Answers to Senator Bingaman on S. 2466--the Southeast 
Arizona Land Exchange (2006).
    \3\ U.S. Forest Service, Decision Notice and Finding of No 
Significant Impact, Resolution Copper Mining Pre-Feasibility Activities 
Plan of Operations. http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/
stelprdb5200237.pdf
    \4\ Decision on Appeal #10-03-00-0020-A215, Resolution Copper 
Mining Pre-Feasibility Activities Plan of Operations, Tonto National 
Forest, August 20, 2010. http://www.fs.fed.us/appeals .
---------------------------------------------------------------------------
                 fair value exchange for the taxpayers
    Ensuring this is a fair value exchange for the American taxpayer is 
an obvious prerequisite. For this reason, the bill requires that 
appraisals be conducted in accordance with the Uniform Appraisal 
Standards for Federal Land Acquisitions issued by the Department of 
Justice, as well as the Uniform Standards of Professional Appraisal 
Practice issued by the U.S. Appraisal Foundation. To ensure that 
Resolution Copper does not receive any minerals that were not 
anticipated in the appraisal, Section 6(b) of H.R. 1904 requires 
Resolution Copper to pay the United States an annual cash payment 
called a ``value adjustment payment'' on any production from the mine 
that exceeds the production assumed in the appraisal.
              text of s. 409, as reported by the committee
    Now I will turn to the text of S. 409, the bill the committee 
worked on in the last session. I have two primary concerns: (1) the 
delegation of the public interest determination from Congress to the 
Department of Agriculture and (2) the pre-exchange NEPA requirement.
Public Interest Determination
    In Section 3 of the committee amendment to S. 409, there is a 
provision that would delegate to the secretary of agriculture the 
determination as to whether this land exchange is in the public 
interest. Only if the secretary determines that the public interest 
will be well served by making the exchange can it go forward. 
Importantly, this provision is not in H.R. 1904--and with good reason. 
It, in effect, cedes Congress' constitutional authority to make 
decisions about whether a land exchange is in the public interest to an 
unelected political appointee--giving this one person final say over 
the exchange.
    A public interest determination is a requirement applicable to 
administrative land exchanges processed by the secretaries of the 
interior and agriculture under the limited authority they were granted 
by Congress in the Federal Land Policy and Management Act (FLPMA). It 
does not, and should not, apply in congressionally legislated land 
exchanges. Supporters of this provision claim that the provision is 
necessary in this land exchange because, in their judgment, Congress 
does not have the information or the expertise to determine whether the 
public interest would be well served by making this exchange.
    This is a shocking assertion. Congress is and always has been the 
ultimate arbiter of what is in the public interest. Congress, as 
representatives of the people, renders its final judgment on what is in 
the public interest through its passage or rejection of legislation. 
This is the very job we were elected to do, after all. Congress is and 
has always legislated land exchanges and, as elected officials, we use 
our best judgment to decide which land exchanges are in the public 
interest. We can delegate our plenary power to an administrative 
official, but need not do so. If the parties believed an administrative 
exchange was suitable, they could have gone that route. It is their 
right to ask Congress to exercise its superior authority to affect the 
exchange.
    In a legislative land exchange, Congress uses the legislative 
process to determine whether the exchange is in the public interest. 
That process, as you know, begins even before a bill is introduced. 
Legislated land exchanges are considered in hearings, markups, and 
other proceedings in both the House and Senate. In most cases, 
testimony from the administration, public, and other stakeholders is 
provided, along with CBO analysis. Town halls and fact-finding field 
visits are often conducted as well. Moreover, the public has 
opportunities to communicate with Congress throughout the entire 
legislative process via meetings, email, telephone calls, and letters. 
I would assert that this process is more transparent and thorough than 
anything the secretary would do on his own, without the public scrutiny 
inherent in Congressional action.
    According to the Government Accountability Office, the agencies' 
land exchange programs are plagued with problems. In 2000, GAO 
characterized the administrative land exchange process as a game of 
insider trading, and called on Congress to consider halting all 
administrative land exchange programs\5\. In a subsequent review in 
2009, GAO noted some improvements in the agencies' administrative land 
exchange programs, but still found that significant problems existed. 
One of those problem areas remained in the public interest 
determination. In GAO's sample of 31 land exchanges, it found that a 
third of the exchanges had a documented problem in the agency's public 
interest determination.\6\
---------------------------------------------------------------------------
    \5\ G.A.O., BLM and the Forest Service: Land Exchange Need to 
Reflect Appropriate Value and Serve the Public Interest, http://
www.gao.gov/archive/2000/rc00073.pdf (June 2000).
    \6\ G.A.O., BLM and the Forest Service Have Improved Oversight of 
the Land Exchange Process, but Additional Actions are Needed, http://
www.gao.gov/assets/300/290765.pdf (June 2009).
---------------------------------------------------------------------------
    Over the last seven years, Congress has reviewed every aspect of 
this land exchange proposal. Legislation has been introduced and 
considered in both the Senate and House. There have been multiple 
public hearings (six including this one, four in which the chairman has 
participated) and numerous town halls, including one in the last 
Congress with Secretary Salazar that also included field visits to the 
mine and land exchange area. We have also heard input from all 
concerned stakeholders: state and local officials, tribes, federal 
agencies, conservation groups, and the public at large, both those for 
this exchange and those against it. In my judgment, this land exchange 
is quite clearly in the public interest.
    The fact is, the U.S. Constitution gives Congress plenary authority 
``to dispose of and make all needful rules and regulations'' concerning 
federal lands.\7\ Pursuant to this authority Congress has routinely 
legislated land exchanges including some that do not necessarily adhere 
to all of the specific requirements that bind the land management 
agencies. House-passed H.R. 1904 is the norm in legislative land 
exchanges, as it is grounded in Congress' plenary authority.
---------------------------------------------------------------------------
    \7\ Article 4, Section 3, Clause 2 of the U.S. Constitution gives 
Congress ``plenary'' authority to make decisions on the public lands. 
Under that authority, Congress has routinely passed laws directing non-
discretionary public land actions including land exchanges.
---------------------------------------------------------------------------
Pre-exchange NEPA
    Both House-passed H.R. 1904 and the old committee text include 
provisions that impose National Environmental Policy Act (NEPA) 
compliance requirements. While the old committee text applies the NEPA 
to the land exchange itself, H.R. 1904 instead requires the company to 
submit to the secretary of agriculture a proposed mine plan of 
operations, and requires it to conduct an environmental analysis for 
any federal actions or authorizations related to the proposed mine and 
mine plan of operations.
    This difference is rooted in the amount of discretion afforded to 
the agency regarding the land exchange. Since the old text would 
essentially legislate an administrative exchange, the land exchange 
decision is completely discretionary. Discretionary decisions of a 
federal agency are subject to a full review under the NEPA. In the case 
of House-passed H.R. 1904 and most other legislated land exchanges, 
Congress directs the land exchange, thereby limiting the agency's 
discretion and the NEPA review on the exchange itself. This makes 
sense. Why would Congress have the agency go through the NEPA process 
of developing a range of alternatives to the land exchange when it has 
already made the decision to consummate the exchange? Besides, the 
exchanging of lands does not have a significant environmental impact. 
This provision's only real purpose is to significantly delay the 
exchange. After all, the NEPA itself imposes no substantive 
environmental obligations--it is simply a procedural statute.\8\
---------------------------------------------------------------------------
    \8\ Robertson, Chief of the Forest Service, et al. v. Methow Valley 
Citizens Council et al., 490 U.S. 332, at 349.
---------------------------------------------------------------------------
    The NEPA compliance requirements in H.R. 1904 focus on the federal 
actions and authorizations related to the proposed mine and mine plan 
of operations that would be made after the land exchange. The Forest 
Service, in its testimony on H.R. 1904, has acknowledged that these 
provisions are consistent with existing NEPA requirements.\9\
---------------------------------------------------------------------------
    \9\ Statement of Mary Wagner, Associate Chief, U.S. Forest Service, 
U.S. Department of Agriculture, Before the Subcommittee on National 
Parks, Forests and Public Lands, Natural Resources Committee, U.S. 
House of Representatives (June 14, 2011).
---------------------------------------------------------------------------
    It is important to note that there are numerous other substantive 
federal, state, and local environmental laws that the mine project 
would have to comply with before it could be permitted to operate. H.R. 
1904 does not waive the application of any of these environmental laws.
                               conclusion
    In conclusion, Mr. chairman, I think the rationale for this land 
exchange is clear.
    By transferring the land it currently holds to the federal 
government, Resolution Copper will help to conserve some of Arizona's 
most vulnerable natural wonders and enable future generations of 
Americans to experience their immense beauty for years to come. In 
effect, the transfer of the land Resolution currently holds constitutes 
an investment in the environment and in our future.
    Likewise, by transferring the land it holds to Resolution, the 
federal government is making an investment in our country's most 
immediate economic development. The significant jobs and revenue impact 
of this mine project will help Americans who are desperately seeking 
employment today. Moreover, it will help cash-strapped state and local 
governments provide those public services that have never been more in 
demand. I think it also goes without saying, Mr. chairman, that the 
federal government could use a few extra dollars these days too.
    So, now we face a choice. This land exchange has been vetted and 
debated, it has been reviewed and revised. Every feasible stakeholder 
has had his say. I think it's time to wrap up the debate and simply 
state the obvious: this proposed exchange is quite firmly in the public 
interest. Indeed, if this one is not, then what exchange could ever 
hope to be? I doubt there is a more thorough process we could design if 
we tried, Mr. chairman.
    Punting this exchange proposal to an unelected official for yet 
another review process and unilateral decision is not the answer. We 
were elected by our constituents to determine, on their behalf, what 
constitutes the public interest. We do it every day--on a myriad of 
issues, many more difficult and even more important than this land 
exchange. If we cannot even perform that most basic a function, then 
what exactly are we all doing here in Washington anyway?
    Let's do our duty. I urge your support for House-passed H.R. 1904.

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

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

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

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

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

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

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

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

   3,050 acres along the lower San Pedro River near Mammoth, 
        Arizona;
   160 acres within the Dripping Springs area near Kearny, 
        Arizona; and
   the 940-acre Appleton Ranch parcel adjacent to the Las 
        Cienegas National Conservation Area near Sonoita, Arizona.

    The lower San Pedro parcel is east of the town of Mammoth, Arizona, 
and straddles the San Pedro River. The acquisition of these lands would 
enhance key migratory bird habitat along the San Pedro River. The bills 
provide for the lower San Pedro parcel to be managed as part of the 
BLM's existing San Pedro Riparian National Conservation Area (NCA) 
designated by Public Law 100-696. The lower San Pedro parcel lies along 
the same riparian corridor as the NCA, but it is at least 60 miles 
downstream (north) of the existing NCA and has substantially different 
resource issues and needs. If this parcel is conveyed to the Secretary 
of the Interior and incorporated into the NCA, the Department 
recommends that the existing 80 acres of adjacent BLM-managed public 
land likewise be included within the NCA to facilitate the efficient 
and effective management of this important riparian corridor.
    The legislation also proposes to transfer 160 acres in the Dripping 
Springs area near Kearny, Arizona, to the Secretary of the Interior. 
This private parcel is an inholding within a larger block of public 
lands and has important resource values, including sensitive Desert 
Tortoise habitat.
    Finally, the bills provide for the transfer of the 940-acre 
Appleton Ranch parcel to the Secretary of the Interior. This parcel is 
located on the southern end of the BLM's Las Cienegas NCA. These lands 
lie within the ``Sonoita Valley Acquisition Planning District'' 
established by Public Law 106-538, which designated the Las Cienegas 
NCA. That law directs the Department to acquire lands from willing 
sellers within the planning district for inclusion in the NCA to 
further protect the important resource values for which the Las 
Cienegas NCA was designated. These lands are part of a significant 
wildlife corridor. The acquisition of these lands advances important 
conservation goals associated with this unique and special natural 
resource.
                            general concerns
    The Administration has several concerns with the Southeast Arizona 
Land Exchange and Conservation Act and cannot support the bills as 
written. The Administration's principal concern with H.R. 1904 is the 
requirement for the Forest Service to prepare an environmental review 
document under the National Environmental Policy Act (NEPA) after the 
land exchange is completed rather than in advance of the exchange as 
provided in S. 409 as reported. It is this Administration's policy that 
NEPA be fully complied with to address all federal actions and 
decisions, including those necessary to implement congressional 
direction. In addition, concerns have been raised by Indian tribes that 
the legislation is contrary to laws and policies and Executive Orders 
that direct Federal land management agencies to engage in formal 
consultation with interested Indian tribes, and to protect and preserve 
sites sacred to Native Americans.
    Many of the lands to be exchanged in both bills hold significant 
cultural value to Indian tribes. In particular, the Apache Leap area, 
the Oak Flat Campground, and Devil's Canyon are culturally significant 
to the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation. 
There are also other neighboring tribes with cultural interests in the 
area. The Administration is concerned that any consultations under H.R. 
1904 would not be meaningful under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments,'' 
because the Secretary of Agriculture's discretion regarding the land 
exchange is limited. The tribal consultation provision in section 3(d) 
of S. 409 is significantly better than section 4(c) of H.R. 1904. The 
Senate bill requires government-to-government consultation prior to 
making a determination as to whether the exchange is in the public 
interest. The Administration believes that the timing of government-to-
government consultation prior to the Secretary of Agriculture's public 
interest determination would allow for meaningful consultation and 
coordination with interested tribes. This Administration is committed 
to work with Tribes to ensure that views and values are seriously heard 
and considered.
    Section 4(i) of H.R. 1904 expresses the intent of Congress that the 
exchange be completed within one year. This provision most notably 
differs from section 3(i) of S. 409, which provides for a three-year 
period to complete the environmental reviews and public interest 
determination on the land exchange. Based on our experience with 
exchanges, we believe the amount of time provided in H.R. 1904 is 
insufficient to review and finalize the necessary environmental 
documents, mineral report, and appraisals, as well as to conduct the 
final verification and prepare title documents. We are also concerned 
that one year may not be sufficient to complete analysis of any 
historic and sacred sites in the exchange area as required by the 
Native American Graves Protection Act and the National Historic 
Preservation Act. The three-year completion period included in S. 409 
provides a more reasonable timeframe for completing the necessary 
analyses and documentation.
    Preparation of a mineral report is a crucial first step toward an 
appraisal of the Federal parcel because the report provides important 
information about the Federal mineral deposit. Neither H.R. 1904 nor S. 
409 addresses access to confidential exploration and development data 
and company analyses on the mineral deposits underlying the Federal 
land in order to ensure a timely and accurate appraisal. Such 
information is essential for the mineral report, particularly in the 
context of this exchange, because of the size of the proposed mining 
operation and the proposed mining technique.
    Section 6 of both H.R. 1904 and S. 409 provides for an annual value 
adjustment payment to the United States if the cumulative production of 
locatable minerals exceeds the projected production used in the 
appraisal required by section 4 and section 3, respectively. These 
provisions recognize that an accurate projection of future production 
as part of the appraisal process will be difficult to develop, and 
provide a mechanism for additional payments to the United States if the 
actual production exceeds the projected production. The Department 
generally defers to the FS on the specific provisions of section 6 of 
both bills. However, we note that section 6(d)(1) of H.R. 1904 creates 
a new fund in the U.S. Treasury for the deposit of these value 
adjustment payments. In contrast, section 6(d) of S. 409 requires that 
these payments be deposited into the account established under the Sisk 
Act (Public Law 90-171). The Department supports the Senate bill's 
approach for the use of these funds. We believe that these funds should 
be dedicated to Federal land acquisition in the same manner as the 
initial land equalization payments provided for in section 4(e)(2)(C) 
of H.R. 1904. Because these funds are to compensate for a possible 
initial inadvertent under-appraisal of land values, it is appropriate 
that the value when captured be used in the same manner as if it had 
been included in the initial appraisal.
    Finally, there are a number of issues of a more technical nature, 
including appropriate map references, which we would welcome the 
opportunity to discuss as this legislation moves forward.
                               conclusion
    Thank you for the opportunity to testify. The exchange proposed in 
H.R. 1904 and S. 409 is complex. The Departments of Agriculture and of 
the Interior seek to assure that the Federal Government's interest is 
appropriately protected in any final legislation.

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

  STATEMENT OF JON CHERRY, VICE PRESIDENT, RESOLUTION COPPER 
                            COMPANY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

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

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

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

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

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

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

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



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

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

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

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

    Answer. The Administration believes that formal consultation with 
the tribes before the land exchange is completed, rather than following 
completion (as envisioned under H.R. 1904), provides for more 
meaningful consultation and coordination.
                                 ______
                                 
      Responses of Shan Lewis to Questions From Senator Murkowski
    In your testimony, you state that ITCA's opposition to land 
exchange is largely premised on the lack of ``meaningful'' government 
to government consultation with the tribes. Section 3(d) in the text of 
S. 409, from the last Congress includes a provision requiring 
government to government consultation before the Secretary makes a 
public interest determination.
    Question 1a. Would this provision from S. 409 provide the 
``meaningful'' government to government consultation the tribes seek? 
Why or why not?
    Answer. To clarify, ``lack of ``meaningful'' government to 
government consultation'' is not the primary reason for ITCA's 
objections. ITCA opposes both H.R. 1904 and S. 409 for a number of 
reasons as expressed in ITCA's testimony, including the lack of 
meaningful government-to-government consultation with affected Indian 
tribes, nations and communities (see answer to question 3 below). ITCA 
is joined in this concern by numerous tribes and tribal organizations 
from across the country because the precedent H.R. 1904 could set with 
regard to Congress' protections of Tribal sacred sites. Tribal 
opponents who have passed Resolutions and sent in written opposition to 
H.R. 1904 include the National Congress of American Indians, the All 
Indian Pueblo Council, the Inter Tribal Council of Nevada, the 
Affiliated Tribes of Northwest Indians, the Great Plains Tribal 
Chairman's Association, the Eight Northern Indian Pueblos Council, the 
United South and Eastern Tribes, the Mescalero Apache Tribe, the Navajo 
Nation, the Jicarilla Apache Nation, the Pueblo of Tesuque, the 
Susanville Indian Rancheria, the Shoshone-Bannock Tribes, the 
Confederated Tribes of Siletz Indians, and the Puyallup Tribe.
    As you know, the United States' obligation to engage in government-
to-government consultation with affected Indian tribes stems not only 
from language of E.O. 13175 pertaining to ``sacred sites'', but rather 
arises out of a broader trust obligation of the United States under the 
U.S. Constitution, certain statutes such as Section 106 of the National 
Historic Preservation Act, and other executive orders, presidential 
memoranda, regulations, department policies and manuals--all of which 
acknowledge the broad obligation of the United States to engage in 
meaningful government-to-government consultation on matters affecting 
Tribal interests, including the religious, cultural, historical and 
traditional interests of Indian tribes in Oak Flat.
    To further clarify, for consultation to be meaningful, it must be 
informed and it should take place with appropriate members of the 
United States government whom are involved in the decision making 
process. Thus, both parties should have sufficient information (such as 
the requested studies) to understand as best as possible the potential 
consequences of the action--here the potential enactment of legislation 
in the form of H.R. 1904 or S. 409 and the potential development of a 
large scale block cave mine at Oak Flat. Consultation also cannot be 
segmented and conducted on a piecemeal basis, but rather to be 
meaningful should involve consideration of the whole action to be 
undertaken. That is the intent behind the numerous executive orders, 
memoranda, Congressional Acts, etc.
    For a number of years, the ITCA, the San Carlos Apache Tribe and 
the Fort McDowell Yavapai Nation have requested that the United States 
perform advanced studies to determine the potential impacts of the mine 
on the water supplies of the region, the stability of the Earth's 
surface and the potential for surface collapse resulting from block 
cave mining at this place. These studies are also needed to understand 
the impact on federal reserved water rights for tribes and federal 
lands. Protecting the integrity of Oak Flat as a holy and sacred site 
requires this much. We believe Congress should ask the cognizant 
agencies and department to answer these questions through the necessary 
studies and analysis before Congress takes action on either H.R. 1904 
or S.409.
    Advanced consultation means that consultation should not come after 
the fact or so late in the process that input from the tribes will have 
little to no substantive impact on the outcome. Nor can they be 
meaningful if only parts of this legislation are consulted on and the 
timing is dictated by Congress as to specific inclusions and exclusions 
as to when Tribes should be consulted. Because this is a 
Congressionally mandated directed exchange meaningful consultation is 
cannot occur. This point was brought out in ITCA's recent testimony and 
in Tribal testimonies. Thus, consultation is only meaningful when the 
outcome is not pre-determined and the consultation process is conducted 
in good faith, where the concerns of the affected Indian tribes are 
considered and incorporated by the decision maker. ITCA does not 
believe that S.409 offers sufficient protections for the consultation 
process, in particular because consultation is only required after 
Congress has enacted legislation, not before, and because this 
legislation directs consultation in a segmented fashion at only certain 
steps in the process, for example only during the ``best interest 
determination'' pertaining to the land exchange (and not necessarily 
the mining project), and not with regard to the Resolution Copper's 
exploration of the Oak Flat Withdrawal after S.409 is potentially 
enacted under Sec. 3(g) of S. 409.
    Question 1b. What kind of government to government tribal 
consultation would the tribes deem adequate for this land exchange to 
be consummated?
    Answer. Please see ITCA Answer 1.a, above.
    Question 2a. It is my understanding that the U.S. Forest Service, 
through the Tonto National Forest, has been engaged in tribal 
consultation, both on a formal and informal basis, regarding the 
Resolution Copper mine project and activities in the land exchange area 
since as early 2004, and that this consultation continues. Formal 
Consultation was formally documented by the Forest Service from 2008 to 
2010 on Resolution Copper's Pre-Feasibility Activities Plan of 
Operations.
    Do the tribes challenge this consultation as a failure to meet 
tribal consultation requirements under applicable law? Please explain.
    Answer. The U.S. Forest Service, through the Tonto National Forest 
(``TNF''), has not engaged in meaningful ``tribal consultation'' with 
the ITCA regarding any legislation pending in Congress, including H.R. 
1904. Indeed, in a letter written from Secretary Vilsack to the ITCA, 
dated June 27, 2011, Secretary Vilsack explained that the Forest 
Service did not believe that Tribal Consultation over H.R. 1904 was 
called for saying, ``The Forest Service has not proposed the new 
legislation, and Executive Order 13175 does not require consultation at 
this time.''
    The ITCA is unaware of the details pertaining to your suggestion 
that the TNF may have engaged in ``formal or informal'' consultation 
regarding the ``Resolution Copper mine project'' with any of ITCA's 
Member Tribes. ITCA is aware that TNF has taken the position that it 
engaged in ``formal'' consultation with the San Carlos Apache Tribe 
with regard to Resolution Copper's Pre-Feasibility Plan of Operations 
for the approval of the certain exploratory activities within the holy 
and sacred site of Oak Flat. We are also aware that the San Carlos 
Apache Tribe and the Fort McDowell Yavapai Nation appealed TNF's 
approval of this Plan in part, on the grounds that the TNF did not, in 
fact, engage in true and meaningful consultation with the Apache Tribe 
about this project. Further, the Environmental Assessment prepared by 
the TNF failed to consider the direct, indirect or cumulative impacts 
of the mining companies Pre-Feasibility Activities on the integrity of 
Oak Flat as a Traditional Cultural Property under the National Historic 
Preservation Act, and it denied any impact on the Oak Flat area as a 
holy and sacred site within the meaning of Executive Order 13007. 
Finally, consultation by the TNF over Resolution Copper's proposed pre-
feasibility activities at Oak Flat cannot be equated to consultation 
regarding H.R. 1904 or S. 409 or with respect to the proposed mining 
activities at Oak Flat.
    Question 3a. In your testimony you described in great detail the 
block cave method that you expect Resolution Copper Company will use to 
develop the mine and in your view what will happen to the Oak Flat area 
if that method is used to mine the copper ore body. Yet you also 
indicated in your testimony that the tribes have never received a 
technical briefing from Resolution Copper Company about the mine 
project.
    Please explain the basis for your assertions about the block cave 
mining method and how it will be used to develop the Resolution Copper 
mine?
    Answer. Resolution Copper and Rio Tinto has repeatedly acknowledged 
that they intend to conduct a block cave mine at Oak Flat. See, e.g., 
http://resolutioncopper.com/project-overview.php. The techniques 
utilized in block cave mining and the general impacts from this type of 
mining referenced in ITCA's testimony have been documented by mining 
companies all over the world for many years. Resolution Copper has also 
publicly acknowledged that this form of mining will likely result in 
subsidence at Oak Flat. They also acknowledge that they have already 
had to dewater many billions of gallons of water from Shaft No. 9 and 
that they have removed these waters from the regional system by means 
of a pipeline. It is also understood that additional mine dewatering 
will be required at Oak Flat over the life of the mine. These basic 
facts, as well as the general depth and location of the ore body as 
discussed in ITCA's testimony are not and have not been disputed by 
Resolution Copper.
    However, with this said, the specific and full extent of the 
impacts resulting from a block came mine at Oak Flat have not been 
independently studied. As noted above, for a number of years, the ITCA, 
the San Carlos Apache Tribe and the Fort McDowell Yavapai Nation have 
requested that the United States perform advanced studies to determine 
the potential impacts of the mine on the water supplies of the region, 
the stability of the Earth's surface and the potential for surface 
collapse resulting from block cave mining at this place. We think 
Congress should ask these questions and the American people have the 
right to know the answers to these questions before the land is 
exchanged to Resolution Copper for mining purposes.
    In fact, if the United States had conducted these studies when we 
requested them, they could easily have been completed by now and 
Congress would have this information before it today so that it could 
make a more informed decision on this or other related bills.
    Again, as noted above, independent studies of the type requested by 
ITCA and other tribes are needed for the United States to engage in 
meaningful government-to-government consultation with tribes. For 
consultation to be truly meaningful, we need to understand the 
potential impacts of the mine on the water supplies of the area, and 
its impact to the land surface and the environment because each of 
these aspects of the ecosystem found at Oak Flat support the integrity 
of Oak Flat as a holy and sacred place and as a traditional cultural 
property for Indian tribes. Indeed, if Resolution Copper was required 
to conduct this land exchange under the normal administrative 
procedures required by Federal Law, rather than through Congress, the 
National Environmental Policy Act and other laws would require at least 
some advanced studies on the impact of the mine. Resolution Copper 
seeks to be exempted from requirements of the law that other land 
exchange proponents are required to follow.
                                 ______
                                 
       Responses of Jon Cherry to Questions From Senator Bingaman
    Question 1. Has Resolution Copper conducted any evaluations on 
whether to mine the deposit around the Oak Flat withdrawal area without 
mining within the withdrawal area?
    Answer. Based on our studies to date RCC strongly suspects that 
exploration of the underground resource within the withdrawal area will 
demonstrate that this area contains ore that should be mined. 
Furthermore, we have structured our planning to date to facilitate the 
logical extension of mining into the withdrawal area.
    Question 2. Has Resolution Copper determined whether it is 
technically and economically feasible to mine the deposit around the 
Oak Flat withdrawal area without mining within the withdrawal area?
    Answer. Resolution does not believe that a mine should be developed 
that does not include the withdrawal area. However, due to the passage 
of time and inaction on the exchange legislation, RCC is at a point 
where it must move forward to develop the mine consistent with existing 
Federal law, regulation, and policy. The Mine Plan of Operation has 
been structured to facilitate the logical extension of mining under the 
withdrawal area.
    Question 3. Is it potentially technically and 
economically.feasible.for Resolution Copper to develop a mine if it 
received title to the Federal land without applying to the Forest 
Service for any rights-of-way that would be essential to the 
development of the mine?
    Answer. No, it would not be feasible. The Federal parcel proposed 
for acquisition is virtually surrounded by public National Forest and 
State of Arizona land. Based on current engineering and mining 
planning, it is not technically or economically feasible for Resolution 
Copper to develop a mine if it received title to the Federal land 
without applying to the Forest Service for any rights-of-way. This is 
based on the fact that the Federal land in the exchange is not suitable 
to construct a mill and tailings storage area and other related 
ancillary facilities. The areas that have been studied and identified 
as suitable areas for a mill site and tailings site, for instance, 
require conveyors and/or pipeline utility corridors across Federal land 
managed by the US Forest Service. No technically and economically 
feasible routes to the mill and tailings site have been identified that 
do not cross Federal land managed by the US Forest Service.
    Question 4. Please provide the Committee with a copy of each 
evaluation of the potential impacts of the proposed mine on water and 
on the structural integrity of Apache Leap that Resolution Copper has 
conducted, contracted for, or otherwise commissioned.
    Answer. Various studies are currently underway and/or complete. 
Copies of these studies and reports will be provided to the US Forest 
Service as part of the Mine Plan of Operations as required in Section 
(4)(j)(1)
    Question 5. In 2008, Resolution Copper testified before this 
Committee that without access to determine the extent and nature of the 
ore body underneath the Oak Flat Campground, it ``would not be able'' 
to develop a mine plan of operations. At the February 9, 2012 hearing, 
you testified that Resolution Copper nevertheless is preparing to file 
a mine plan of operations in the second quarter of this year ``over the 
entire project area including the area of the subject exchange,'' 
despite the fact that it has not had access to the ore body within the 
withdrawal area. Can you explain the apparent contradiction in the 
testimony?
    Answer. Please see responses to questions number 1 and 2 above. 
Since 2008, Resolution Copper has spent over $300 million additional 
dollars on exploration, mining planning, environmental studies and 
exploration to obtain more knowledge about the ore deposit. Based on 
that additional information and current economic conditions, we have 
been able to develop a mine plan that begins outside of the Oak Flat 
withdrawal area but, upon the receipt of appropriate approvals and 
completion of necessary studies and modifications of the mine plan 
within a reasonable period of time, still provides an opportunity to 
mine within the withdrawal area. It is also important to point out that 
lack of access to ore that may exist underneath the Oak Flat withdrawal 
area would preclude the economic benefits from that ore to both the 
United States as well as to Resolution Copper.
    Question 6. In 2008, Resolution Copper testified before this 
Committee that without access to determine the extent and nature of the 
ore body underneath the Oak Flat Campground, ``it would not he 
advisable'' to move forward with the mine development. Could Resolution 
Copper move forward with development of a mine without first having 
access to determine the extent and nature of the ore body in the 
withdrawal area?
    Answer. Please see responses to questions 1 and 2 above. Since 
2008, Resolution Copper has spent $300 million additional dollars on 
exploration, mining planning, environmental studies and exploration to 
obtain more knowledge about the ore deposit. The Mine Plan of Operation 
has been structured to facilitate a logical extension of mining under 
the withdrawal area.
    Question 7. On what date did Resolution Copper determine that it 
was technically and economically feasible to proceed with the mine?
    Answer. There is not an exact date at which Resolution Copper 
determined ``that it was technically and economically feasible to 
proceed with the mine.'' Rather it was the culmination of additional 
exploration and many environmental and engineering studies that were 
pointing in that direction. By late 2010, it was becoming apparent that 
it was technically and economically feasible to proceed with the mine.
    Question 8. What is your best estimate of the date on which the 
pre-feasibility activities authorized by the Forest Service in 2010 
will be complete?
    Answer. In 2010 Resolution submitted a ``Pre-Feasibility Actives 
Plan of Operations #03-12-02-0006'' to the US Forest Service which was 
approved in October of that year. We expect that the related activities 
approved as part of this plan by the Forest Service in 2010 are 
anticipated to be completed by the end of 2014, while access for 
groundwater testing and monitoring would he maintained through 2025. 
However, the activities completed to date under the Forest Service's 
2010 authorization and other studies have provided us sufficient 
information for the likely submittal of a proposed Mine Plan of 
Operations in the second quarter of 2012.
    Question 9. Do you interpret section 8 of H.R. 1904 to permit the 
Secretary of Agriculture to impose restrictions on Resolution Copper's 
mining activities on land adjacent to Apache Leap to the extent those 
restrictions are necessary to ensure the preservation of the natural 
character of Apache Leap?
    Answer. As stated in Section 8(a)(1), Resolution Copper agrees that 
``The Secretary shall manage apache Leap to preserve the natural 
character of Apache Leap to protect archeological and cultural 
resources located on Apache Leap''. Resolution Copper also agrees with 
Section 8(c)(1) that ``The provisions of this section [8] shall not 
impose additional restrictions on mining activities carried out by 
Resolution Copper adjacent to, or outside of, the Apache Leap area 
beyond those otherwise applicable to mining activities on privately 
owned land under Federal, State and local laws, rules and regulations. 
Therefore, Resolution Copper interprets Section 8 of H.R. 1904 to 
permit the Secretary of Agriculture to impose reasonable restrictions 
on Resolution Copper's mining activities on land adjacent to Apache 
Leap to the extent that those requirements do not go beyond what is 
otherwise applicable under Federal, State and local laws to mining 
activities on privately owned land in similar circumstances.
    Question 10. For example, relying on the authority under section 
8(a), could the Secretary restrict the areas in which Resolution Copper 
could mine adjacent to Apache Leap? Could the Secretary restrict the 
extent of block-caving conducted by Resolution Copper on land adjacent 
to Apache Leap?
    Answer. As noted above, Resolution Copper is committed to 
protecting Apache Leap and believes that Section 8 is a very important 
tool for the Secretary to manage and protect Apache Leap. However, 
Resolution Copper does not believe that the Secretary has authority 
under Section 8(a) to restrict the extent of, or method of block-caving 
conducted by Resolution Copper on private land adjacent to Apache Leap 
(see Section 8(c)).
    Question 11. Does Resolution Copper remain unequivocally committed 
to the protection of Apache Leap?
    Answer. Yes. From the very beginning of this project Resolution 
Copper has been and continues to be on record as being committed to the 
protection of Apache Leap. That is part of the reason why over 110 
acres of private land that Resolution Copper currently owns adjacent to 
the mine site and Apache Leap is being offered as part of the land 
exchange that would be conveyed to the US government.
    Mining will commence at a point that is measured at more than 1.3 
miles to the east of Apache Leap. After several years of mining, 
subsidence will be seen on surface. As mining continues, the edge of 
the subsidence zone will slowly progresses towards Apache Leap at an 
overall rate of 180 feet per year, and after 10 years of mining the 
subsidence zone will be 4,000 feet from Apache Leap, but only 1,400 
feet away from RCM production and ventilation shafts. This means that 
if our predictions for subsidence are wrong, then our own critical 
infrastructure necessary for mine operations will be impacted prior to 
Apache Leap. We will not jeopardize the significant investment in this 
infrastructure or the project itself.
    Question 12. What is the purpose of section 4(h) of H.R. 1904? Do 
you interpret that provision as making the Federal land available to 
Resolution Copper for mining and related activities prior to any 
conveyance of the Federal land to Resolution Copper?
    Answer. The intent of section 4(h) was to clearly state the 
intended uses for the land and does not make the land available for 
mining prior to conveyance. The only activities authorized prior to 
conveyance are covered in section 4(f) which would allow mineral 
exploration activities in the withdrawal area under a special use 
permit issued by the Secretary.
    Question 13. During the House floor debate on H.R. 1904, there was 
considerable discussion about Rio Tinto 's partnership with the Iranian 
Foreign Investment Company at the Rossing Uranium mine in Namibia. Is 
Rio Tinto still the majority shareholder at that mine, and is the 
Iranian Foreign Investment Company still a partner?
    Answer. Rio Tinto and Rossing Uranium Limited (Rossing) have 
actively sought to address the issues Rossing faces as a result of the 
Iranian Foreign Investment Company's (IFIC) 15 percent interest in the 
company. IFIC acquired and continues to own its shareholding in Rossing 
in accordance with Namibian law. However, Rossing has taken and will 
continue to take steps to ensure that IFIC is solely a passive investor 
in Rossing. Rossing does not sell uranium to Iran. IFIC has no access 
to technology from Rossing. Rio Tinto has kept the State Department 
apprised of the situation.
    Rossing operates a uranium mine located in Namibia. Rio Tinto is 
the parent company of the majority shareholder of Rossing Uranium 
Limited, with 69 percent of the shares. IFIC owns a 15 percent stake in 
Rossing, which it acquired in 1975 prior to the Iranian Revolution. Rio 
Tinto manages the mine and controls the marketing and distribution of 
100 percent of its production. The other shareholders do not have the 
right to any portion of production.
      Responses of Jon Cherry to Questions From Senator Murkowski
    Mr. Cherry, it is clear to me from the testimony of the 
Administration that they believe you should not carry forward with 
fault-block mining of this copper deposit.
    Question 1. Can you tell me how much of the deposit would be left 
in the earth if you developed the underground portion of the mine using 
alternative mining technologies?
    Answer. Resolution Copper has spent more than $750 million on this 
project to date, including various environmental, economic and 
engineering studies. As a result, we have determined that the only 
mining method that is economically feasible is block cave mining 
because of the size and depth of the ore body located between 5000 and 
7000 feet underground. Based on this information, if block caving is 
not permitted, the entire resource would be left in the earth. Without 
this project, the State of Arizona would not benefit from a $61 billion 
economic impact, over 3700 full time jobs would not be created and over 
$19 billion in tax revenue would not be generated.
    Question 2. Would your company even recommend developing the 
deposit if such restriction where to be imposed by a Public Interest 
Determination?
    Answer. Resolution Copper would not recommend developing this 
resource if such a restriction were to be put in place. Furthermore, it 
would be very unlikely that Resolution Copper or any other entity would 
be able to secure the $6 billion in financing or investment to build 
this mine if block caving were not the selected mining method.
    Question 3a. I recognize that every mine that is developed is 
unique and the mining method selected must fit the circumstances of the 
project. It has been reported that Resolution Copper will employ the 
mining technique called panel caving, a subset of block caving, to mine 
the copper ore body.
    Can you explain how panel caving works, why the company has chosen 
this mining method and whether the company could/would mine this ore 
body using another method?
    Answer. Block cave mining is a well recognized, large scale, bulk 
mining method that uses the force of gravity to fracture an orebody, 
allowing it to be extracted through constructed drawpoints (funnel 
shaped excavations) at the bottom of the deposit by specialized mining 
equipment. As additional rock is removed from the drawpoints, the 
overlying ore continues to break and cave by gravity. This process 
continues until all of the ore has been vertically extracted from the 
drawpoints. Typically, this mining method is applied to massive, low-
grade orebodies with large horizontal and vertical dimensions and with 
rock properties that behave properly, breaking into blocks of 
manageable size. In the United States, there are several block cave 
mines, such as the Henderson Molybdenum Mine in Colorado, and the older 
style Climax Mine (which also has an open pit for the near surface 
ore), also in Colorado. Furthermore Rio Tinto currently operates block 
cave mines in South Africa and Australia and is in the process of 
constructing a very large block cave mine in Mongolia.
    Ore bodies that are mined by the block caving mining method, but 
are exceptionally large, must be broken up into a series of smaller, 
manageable, mining blocks called panels. As these panels are mined, a 
caving front advances across the orebody, continuously opening up new 
production areas as the earlier caved sections of the mine are 
exhausted. Once a mining panel has been completed, another panel 
commences production and this process continues until the end of mine 
life.
    The mining method chosen for the Resolution Copper deposit is Panel 
Caving. The selection of the mining method and associated production 
rate is based largely on the following design criteria:

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

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

              Additional Material Submitted for the Record

                              ----------                              

Prepared Statement of Michael Schennum, Staff Photographer, The Arizona 
       Republic, and Adjunct Professor, Arizona State University
    As you know this coming Tuesday is Arizona's Centennial. We have a 
lot to celebrate in this great state. For one, our natural wonders, 
such as the Grand Canyon, Sedona and Queen Creek Canyon to name a few.
    What then will we celebrate in another 100 years? Sections of the 
Grand Canyon? A few non-privatized areas in the red rocks of Sedona? A 
huge pit where Queen Creek's Oak Flats used to be?
    We should not exploit our natural resources at the expense of what 
this state is famous for. Queen Creek offers camping, rock climbing, 
hiking, bird watching, and vehicular recreation. If it is gone, and the 
copper all mined out, what will be left for our children and our 
children's children? What will this great state be known for?
                                 ______
                                 
 Prepared Statement of Linda S. White, Native of Arizona, Maricopa, AZ
    For the last six years Resolution Copper Mining (RCM) has attempted 
to gain control of approximately 2,400 acres of land in the Tonto 
National Forest including the 760 acre Oak Flat Recreation area, which 
has been specifically withdrawn from all mining activity. These efforts 
have been via several legislative land exchange bills, in part because 
this particular form of land exchange would overturn the executive 
order (PLO 1229) that has been in place since 1955 that specifically 
prohibits mining activities in the Oak Flat area and because it would 
effectively serve as a mechanism to bypass the full regulations 
mandated by the National Environmental Policy Act.
    Forest Service records clearly state that an important criteria for 
selecting various recreational areas to be protected in 1955 was the 
reasonable expectation of future conflict. This is a critical and often 
overlooked point because it means that when the Oak Flat area was 
withdrawn from mining appropriation in 1955 it was actually foreseen 
that some mining company would eventually propose mining there and in 
spite of this, the area was deserving of protection. Information 
uncovered via a FOIA request has revealed that when the NFS was asked 
by Asarco in 1972 about the possibility of lifting the mining 
prohibition at Oak Flat, the NFS replied that Oak Flat was still in use 
as a recreational area and thus the reasons for preserving that area 
were just as valid then as in 1955. That is certainly still the case 
today.
    Sen. Mccain and Rep. Gosar have been saying this is a Jobs Bill for 
Arizona, in which the numbers of those jobs keep changing. According to 
Resolution Copper, most of the jobs will be done by robotics. Locals 
have only seen a small percent of subcontracted work.
    This is bill is not good for Arizonians. Our public land will be 
destroyed along with all the issues that will result: Loss of Native 
Sacred lands, Recreational Land loss, Environmental loss, etc. The 
method this Company wants to use is Block-Cave Mining and it will 
result in subsidence of this land that is dear to many of us.
    Thus we respectfully suggest that removing over 50 years of federal 
land protection, in favor of this land exchange, represents not only a 
poor outcome for recreationalists and the environment, but may also be 
unwise from an overall economic perspective. In our view, a much better 
solution would be a compromise scenario that would allow responsible 
mine development to occur but would also maintain the spirit of PLO 
1229 and would thus guarantee the continued recreational, cultural and 
religious use of the Oak Flat area in perpetuity.
    Please don't allow this Land Exchange through the Senate. We need 
you to protect this land and hold Resolution Copper/Rio Tinto 
accountable for their actions.
                                 ______
                                 
                 Prepared Statement of Catherine Conner
    I write in opposition to H.R. 1904, the Southeast Arizona Land 
Exchange and Conservation Act of 2011, and S. 409, the Southeast 
Arizona Land Exchange and Conservation Act of 2009, as reported by the 
Committee during the 111th Congress. I am a concerned citizen who 
opposes this proposal on behalf of myself, the large entity of other 
user groups that oppose this bill, the environment, and creatures and 
plant life that inhabit this land and can't defend themselves. This 
legislation would direct the Secretary of Agriculture to convey the 
highly popular public recreational & environmental resource at Oak 
Flat, Arizona for use as an underground copper mine, effectively 
reducing it to a large concave sink-hole in the ground.
    Native Americans, Birders, climbers, campers, canyoneers, bikers, 
hikers, and the public in general, enjoy the area throughout the year, 
all of whom would be greatly harmed if these lands were forever taken 
from public access, not to mention the flora and fauna that can't speak 
to this. Native Americans have traditionally used the area for 
cultural, spiritual purposes, and for sustenance. All Arizona Indian 
tribes oppose the Land Exchange. The National Congress of American 
Indians passed a unanimous resolution in June of 2009 opposing all 
legislation that would allow mining at Oak Flat. In addition, the 
Concerned Citizens and Retired Miners Coalition in Superior, AZ is 
opposed to the land exchange and testified in Washington, DC against S. 
409 in 2009.Everyone will suffer a huge environmental, spiritual & 
sacred, historical, and recreational loss if this area is destroyed by 
mining activities. Oak Flat area stands to subside into an enormous 
crater if Resolution Copper Mining (RCM) is allowed to proceed, and 
this would be a terrible travesty.
    It has also come to light that The Southeast Arizona Land Exchange 
and Conservation Act of 2011 fails to require any meaningful 
environmental analysis prior to the transfer of public land to RCM. 
This bill would circumvent the public process mandated under the 
National Environmental Policy Act (NEPA) for prior analysis of any 
major federal action on public land. Such an analysis would assess the 
impact mine operations would have on the health of nearby residents, 
water quality, air quality, cultural resources, transportation, and the 
overall environment. H.R. 1904 unreasonably requires the exchange to be 
completed within one year. Such a rushed timetable will eliminate any 
meaningful analysis of this project and limit a real determination 
whether this mine is in the public's interest. Because the provisions 
in H.R. 1904 virtually ensure the development of this mine, and the 
public has very little information on the environmental implications of 
this mine, this exchange is not in the public's interest.?
    The H.R. 1904 bill is being purported as a ``jobs bill''. But after 
reading the article ``Rio Tinto says mine automation benefits outweigh 
costs'' in which it is stated ``In iron-ore, we are introducing 
automated trucks, blast-hole drill rigs, sorting machines and trains, 
all of which are capable of being controlled by our operations center 
in Perth (Australia), which already integrates our port, rail and mine 
logistics,'' said McGagh. Also to note, previously, there were 
amendments offered to the House Bill by Rep. Raul Grijalva to make sure 
that the jobs that Rio/RCM was projecting/promising would be located in 
the local vicinity. This amendment was rejected by the majority in 
power in the House. Claiming this is a ``jobs bill'' is only accurate 
in a short sited vision. This bill doesn't benefit Americans in the 
long term, except only perhaps in the short term future. With the 
automation of many supposed jobs, the number of new jobs is 
questionable, along with the longevity of said jobs. When the company 
leaves, the environment has been exploited and destroyed, and the 
foreign interests profit incredibly with no sense of loss once they 
leave.
    RCM plans to mine using the block-cave method, a block-cave mine is 
designed to ultimately result in the subsidence of the surface, the end 
result, a giant sink-hole, land rendered a concave, featureless 
wasteland. One of the great problems of this bill is the lack of 
demanding RCM to use a different mining method (which exist) in which 
the environment is not destroyed, and the mining could occur 
simultaneously. I say to these large foreign companies to mine in this 
manner is an example of ``just because you can, doesn't mean you 
should.'' This bill should be re-written so that the environment can 
remain intact, the mine required to put our (the public and 
environment) interests parallel to the mining interests, regardless of 
the possibility of slightly less profits. The mine should have to be 
accountable to its American hosts for how they impact our environment, 
not simply have ownership & free reign of this, our public land.
    As a taxpaying concerned Arizona citizen, as this bill is currently 
written, I am opposed. Please find a way to preserve this public land 
that was set aside by President Eisenhower for all Americans to enjoy. 
It and the surrounding lands including Apache Leap, Gaan Canyon, and 
Queen Creek Canyon must be preserved from the large foreign mining 
companies that threaten to take public ownership away and destroy the 
land.
    For the past 6 years, these companies have unsuccessfully asked the 
US Congress to pass legislation giving away these lands. If this bill 
passes, we will lose a priceless piece of our natural and historic 
heritage. I ask that you deny this request until the proposal does not 
destroy this land, and the foreign mining companies are accountable to 
America, the EPA, NEPA, we the people, and the diverse living creatures 
& plant life that inhabit this area.
                                 ______
                                 
 Prepared Statement of Curt Shannon, The Concerned Climbers of Arizona
    I was present in Washington for the senate hearing on February 9th 
and appreciate the opportunity to now formally express the views of The 
Concerned Climbers of Arizona on H.R. 1904 and S. 409 (Southeast 
Arizona Land Exchange and Conservation Act.) Our group is fully opposed 
to the passage of either H.R. 1904 and S. 409 for a multitude of 
reasons primarily related to the unprecedented loss of recreational 
resources that would occur, should either of these two bills become 
law.
                               background
    Since 2005 Resolution Copper Mining (RCM) has attempted to gain 
control of approximately 2,400 acres of land in the Tonto National 
Forest including the 760 acre Oak Flat Recreation area, which has been 
specifically and purposefully withdrawn from mining activities since 
1955. RCM's efforts to date have been via a series of legislative land 
exchange bills, in part because that form of land exchange effectively 
vacates executive order (PLO 1229) that has been in place for over 50 
years and because such an exchange would effectively serve as a 
mechanism to bypass the full regulations mandated by the National 
Environmental Policy Act.
    Forest Service records state that an important criteria for 
selecting recreational areas to be protected in 1955 was the reasonable 
expectation of future conflict. This is a critical and often overlooked 
point because it means that when the Oak Flat area was withdrawn from 
mining appropriation in 1955 it was actually foreseen that some mining 
company would eventually propose mining at that location--and in spite 
of this, it was determined that the area was deserving of protection 
for recreational purposes.
    Information uncovered via FOIA request has also shown that when the 
NFS was asked by Asarco in 1972 about the possibility of lifting the 
mining prohibition at Oak Flat, NFS replied that Oak Flat was still in 
use as a recreational area and thus the reasons for preserving that 
area were just as valid then as in 1955. This is certainly still the 
case today.
                             climber issues
    Rock climbers are the largest recreational user group of the Oak 
Flat area, and will thus be the most impacted and displaced user group 
if H.R. 1904 should become law. If RCM establishes the huge block-cave 
mine under the Oak Flat parcel that it currently intends to, this will 
result in the largest loss of rock climbing resources in the history of 
the United States.
    In this regard and in spite of all the good faith discussions that 
numerous rock climbing constituencies have had with RCM over the years, 
H.R. 1904 is certainly the worst bill yet to be introduced in congress, 
as all acknowledgment or attempt to mitigate the huge loss of climbing 
resource has been omitted from this latest version of the legislation. 
Climbers get absolutely nothing in H.R. 1904. In addition, the 
treatment of environmental review in H.R. 1904 is substantially flawed 
as it calls for the public land in question to be exchanged prior to 
any reasonable public interest determination being made. To be clear, 
we do not question the right of congress to make the public interest 
determination with regard to this legislation, but we do question the 
wisdom of congress doing so without having access to the kind of 
relevant information that only a NEPA review can produce. In our view, 
H.R. 1904 puts the ``cart in front of the horse'' and calls for 
conveyance of the Oak Flat parcel to RCM without factually and 
empirically demonstrating whether or not this exchange is truly in the 
public interest. Congress will truly be flying blind in making this 
sort of premature determination.
                               economics
    A large new copper mine in Arizona does have the potential to bring 
some economic relief to the communities in the immediate region. It 
must be noted however that this economic relief is by definition 
temporary in nature--as every new mine will eventually close and become 
abandoned. Recreation, on the other hand represents a renewable and 
ongoing source of revenue to the state of Arizona and to the local 
communities.
    According to a recent study (attached)* called Sustainable Economic 
Benefits of Human-Powered Recreation to the State of Arizona, ``the 
Arizona active outdoor (human-powered) recreation economy supports an 
estimated 86,920 annual jobs, generates nearly $371 million in annual 
state tax revenue, and produces almost $5.3 billion annually in retail 
sales and services across Arizona. This popular industry is responsible 
for 12% of Arizona's retail economy each year.''
---------------------------------------------------------------------------
    * Document has been retained in committee files.
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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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    Based on the history of Rio Tinto's business relations with Iran 
and China and in light of the U.S. recent sanctions against Iran, it 
would be inappropriate to trade U.S. soil to a questionable foreign 
mining company.
         h.r. 1904 is a give-away to foreign, special interests
    Under the current mining laws, the land exchange would result in a 
give-away of American wealth. Based upon RCM's own calculation of the 
ore body at modest prices of copper of $2.00 per pound and molybdenum 
at $10.00 per pound would result in a give away to two foreign mining 
companies in excess of $7 billion. Under today's copper prices, the 
saleable copper extracted from Oak Flat would have a value of about 
$185.6 billion.
    The appraisal requirements of H.R. 1904 do not adequately ensure 
that the public will receive fair value. RCM and its foreign corporate 
parents would not pay for the true costs of environmental compliance. 
As a result, American taxpayers would be left without any revenue and 
on the hook for the future cost of any environmental remediation.
 any jobs benefits from h.r. 1904 are dwarfed by enormous economic and 
                ecological costs to arizona and america
    RCM and its proponents tout local job creation as the primary 
justification for this land exchange. However, if H.R. 1904 were to be 
enacted, it would come at the expense of all Americans, including 
Indians and Arizonans. RCM claims that the mine at Oak Flat will 
produce a wide variety of jobs, from 1,000 to as many as 3,700. This 
last estimate comes from RCM's hired expert and not from an independent 
analysis. In reality, the number of jobs is highly speculative; the 
majority of these jobs (assuming they were created) would not appear 
until a number of years from now, offering little to help today's 
economy. Furthermore, Rio Tinto plans to make the RCM mine highly 
automated and to be able to operate it from remote locations, 
potentially rendering local job creation meaningless.
    Other mining companies in the area such as Freeport McMoRan and 
Teryl Resources recruit employees from as far away as Phoenix and 
Tucson, and even outside the State. As a result of recent increases in 
copper prices, unemployment in the Superior--Globe region has fallen 
well below the national average.
    While some jobs will be created by the proposed mine, it is certain 
that H.R. 1904, if enacted, will result in tragic consequences that RCM 
seeks to downplay, if not avoid. Any economic benefit that may exist 
will be negated by the very real, long-term impacts to the regional 
water supply and environmental and the economic cleanup costs that 
American taxpayer cannot afford.
    There has been no credible cost benefit or other analysis of 
certain environmental impacts. Once Congress permits Oak Flat to be 
traded to the private ownership of RCM, RCM would be able to develop 
and operate its mine with only limited environmental permitting, water 
quality requirements, cultural protections or financial assurances 
required under Federal law. As a limited liability corporation, RCM 
could simply walk away from potentially billions of dollars in 
environmental and infrastructure damages. Indeed, it is very likely 
that H.R. 1904 will assure the creation of a future Superfund Cleanup 
site. We all have to ask ourselves why H.R. 1904 does not provide 
assurances that a future environmental catastrophe will be remediated. 
Who will pay that cost? Certainly not RCM; instead, the American 
taxpayer will be left on the hook.
    The Tribe has been mischaracterized as being philosophically 
opposed to mining. To the contrary, we support responsible mining. We 
recognize that mining is an essential part of Arizona's economy. Many 
Apaches are miners. However, we must agree that any mining should be 
carried out responsibly and that it should not destroy our holy sites.
    What is proposed here is the highly destructive block and cave 
mining method. Block cave mining consumes massive amounts of water that 
will severely shrink the water supply of an already drought stricken 
region. The mine will most certainly generate gigantic amounts of waste 
and tailings piles that may poison the region's water supply, and it 
remains uncertain even today where the ore will be processed and where 
the mountains of tailings and development and waste rock for this mine 
will be dumped. RCM has publicly admitted that its proposed block 
caving mine would create significant land subsidence and collapse of 
large portions of the Oak Flat area. Despite these facts, H.R. 1904 
removes all administrative discretion and decision-making authority, 
rendering tribal consultation useless, and provides no protections to 
the lands, water or integrity of holy, sacred and cultural sites.
    No independent assessment has been made available to the public 
regarding the proposed mine's impact on the water resources, 
environment, natural ecosystems or the landscape of the Oak Flat area. 
No provision in H.R 1904 offers any protections for the large-scale 
water depletions and environmental scarring and toxins that will result 
from the mine. The absence of requirements for independent assessment 
or NEPA review in H.R. 1904 before the land exchange ensures that the 
public will never know the true impacts of the proposed mining 
operation until it is too late.
    Of particular concern is the fact that the mine's dewatering would 
substantially deplete groundwater aquifers that supply the Globe-
Superior region. The cumulative impact of RCM's mine and the other 
mines already operating in the area on the region's water supplies and 
quality will never be assessed because of the lack of NEPA review. The 
mine will likely dry up and otherwise contaminate surface flows, 
springs, seeps and other water features within the Oak Flat area--all 
of which are fundamental to the integrity of the area as a holy site 
and traditional cultural property for the Tribe. Adverse impacts will 
occur through the depletion of groundwater aquifers and surface 
supplies that support the base flows in Queen Creek and the perennial 
pools in Gaan Canyon. The loss to the local aquifers cannot be 
remediated by banking Central Arizona Project water elsewhere.
    At present, no water management plan exists for this already 
drought stricken region. RCM has not volunteered its studies. No 
independent study has assessed the potential impact of the proposed 
mine on the region's water supply. No independent study been made of 
the amount of toxins or other contaminants that will be produced by the 
mine. H.R. 1904 guarantees that no such independent reviews will ever 
be carried out. The potential costs of the proposed mine to the 
environment, the Apache's holy site, and the region's water supply will 
certainly outstrip any economic benefits of any jobs.
          h.r. 1904 allows a land exchange without nepa review
    The public should be made aware of the potential impacts stemming 
from this proposed land exchange. However, Sec. 4(i) of H.R. 1904 
mandates that the exchange occur within one year of enactment. This 
provision effectively prohibits compliance with NEPA.
    NEPA requires the government to study, develop, and describe 
appropriate alternatives to courses of action for any proposal that 
involves unresolved conflicts concerning uses of available resources. 
42 U.S.C. Sec.  4332(2)(E). The NEPA process also must be integrated 
with other planning at the earliest possible time in order to ensure 
that decisions reflect environmental values and head off potential 
conflicts. 40 C.F.R. Sec.  1501.2.
    H.R. 1904 fails to protect the public because: (1) it does not 
require or even permit the Secretary of Agriculture to take a ``hard 
look'' at the land exchange before the exchange is consummated; (2) it 
fails to vest any discretion in the Secretary of Agriculture to 
consider appropriate alternatives; (3) it does not provide or permit 
mitigation of impacts related to the exchange and/or the mining 
project; and (4) it would not permit the Secretary to reject the 
exchange if the Secretary finds that the exchange is a bad deal for the 
American taxpayer or public.
    Contrary to what proponents of H.R. 1904 contend, the bill waives 
the requirement of a NEPA analysis before the exchange. H.R. 1904 
further waives the Federal Land Policy and Management Act and other 
critical laws that guide land exchanges and protect the American 
public. Because of these waivers, there can be no independent 
determination of what is in the public interest. Nor will there be any 
disclosure of environmental impacts. Indeed, under H.R. 1904, even if 
the Secretary finds adverse impacts to religious interests or 
environmental, cultural, water or other harms, nothing can be done. The 
land will already be owned by RCM and most federal laws would not 
apply.
    S. 409, as reported, did provide some protections prior to 
decisions on conveyance by requiring a more active involvement by the 
Secretary and limited consultation with tribes; however, we oppose S. 
409, as reported, because it (among other things) fails to acknowledge 
the importance of Oak Flat to the religion, traditions and culture of 
the Apache and Yavapai People and because it contains no guarantees 
that the integrity of Oak Flat as a Apache holy site and traditional 
cultural property would be protected after transfer to RCM. While both 
bills are unacceptable to the Apache Tribe, H.R. 1904 is even worse 
than S. 409, as it completely removes most of the Secretary's 
discretion and consultation functions. Sec. 4(i) of H.R. 1904 removes 
the rights that the Tribe or other concerned citizens would normally 
have under the law before the exchange becomes final. So, even if the 
Secretary's NEPA efforts after the exchange were found flawed, it is 
likely to be argued that no one can seek review from government 
agencies or the courts.
      h.r. 1904's nepa requirements after the exchange are hollow
    Under Sec. 4(j) of H.R.1904, the Secretary of Agriculture has no 
discretion to exercise any meaningful authority over RCM's plan of 
operations or its mining activities on private land absent a federal 
nexus. Once federal lands are transferred to private ownership under 
H.R. 1904, RCM may contend that it is able to mine without having to 
comply with federal law.\4\ RCM will only have to submit a plan of 
operation in advance of producing commercial quantities of minerals. 
However, the Secretary of Agriculture has no authority to reject the 
plan of operations if the information is insufficient to conduct the 
review called for under Sec. 4(j)(2).
---------------------------------------------------------------------------
    \4\ Lands in private ownership are exempt from most of the normal 
process for mining on federal lands, which includes jurisdiction of the 
federal government under the Federal Land Policy Management Act of 
1976, 43 U.S.C. Sec. Sec.  1701-1785; the Multiple-Use Sustained-Yield 
Act of 1960, 16 U.S.C. Sec. Sec.  528-531; NEPA, 42 U.S.C. Sec. Sec.  
4321-4347; and 36 C.F.R Subparts A and B. H.R. 1904 further bypasses 
the National Forest Management Act (16 U.S.C. Sec.  1600) and the 
Endangered Species Act (16 U.S.C. Sec.  1531).
---------------------------------------------------------------------------
    Under H.R. 1904, no interim exploratory activities, pre-feasibility 
and feasibility operations, or facility construction will be given 
federal scrutiny before production. Completion of the exchange prior to 
an Environmental Impact Statement negates the utility of the EIS 
process and eviscerates NEPA protection. As a result, RCM's activities 
will be subject merely to the limited and inadequate provisions of 
Arizona law.
    Many mining companies have a long history of complying with federal 
laws and regulations. Public input and close scrutiny under NEPA 
provides assurances that the public interest will be served. NEPA 
provides a vital, structured process to assess the impacts of the mine 
on the land, water, cultural resources, animals and plants, while also 
assessing the extent, quality and value of the ore body to be conveyed 
to foreign mining companies. Only then can the American people fully 
understand the amount of taxpayer wealth being transferred by the 
Government.
    It is only because of the federal laws which are in place that 
other miners in Arizona and throughout the country are examples of 
environmental responsibility. RCM and its proponents have completely 
failed to articulate any credible reason why the NEPA process and other 
federal laws should be bypassed and circumvented by H.R. 1904.
  responsible stewardship for apaches, arizonans, and other americans
    H.R. 1904 would lead to irresponsible development with disastrous 
consequences. In the words of Theodore Roosevelt: ``To waste, to 
destroy, our natural resources, to skin and exhaust the land instead of 
using it so as to increase its usefulness, will result in undermining 
in the days of our children the very prosperity which we ought by right 
to hand down to them.'' Theodore Roosevelt was a champion of Edmund 
Burke's ideal that a moral partnership exists between the living, the 
dead and those to be born. That view helped instruct his passion for 
conserving America's natural resources. That view in some aspects also 
parallels the Apache way of life. We should all honor this vision.
    Oak Flat should be preserved for future generations of Americans, 
Arizonans and Apaches and other Indian Tribes. Theodore Roosevelt also 
observed that: ``Conservation means development as much as it does 
protection. I recognize the right and duty of this generation to 
develop and use the natural resources of our land; but I do not 
recognize the right to waste them, or to rob, by wasteful means, the 
generations that come after us.'' That sentiment is reflected in the 
San Carlos Apache Tribe's opposition to this legislative land exchange. 
That sentiment is shared by a substantial coalition of Americans.
    RCM's proposed mine would waste natural resources and would rob 
generations yet to come. It should not be permitted to happen by those 
entrusted with the solemn trust responsibilities for Indians and all 
Americans.
 tribes, arizonans, and other americans need protections from h.r. 1904
    The Tribe has been joined by the 20 member Tribes of the Inter 
Tribal Council of Arizona, local community organizations, miners, 
environmentalists and dozens of others in its opposition to H.R. 1904 
and any other legislation that would convey or otherwise negatively 
harm the Oak Flat area. I respectfully submit that H.R. 1904 should not 
move out of the Committee for the following reasons:

          1. Government-to-government consultation must occur with all 
        interested tribes throughout the land exchange process and 
        proposed uses;
          2. H.R. 1904 offers no protections for Oak Flat area as a 
        Traditional Cultural Property, pursuant to Section 106 of the 
        NHPA or, alternatively, exclusion from transfer to RCM under 
        the legislation;
          3. There are no guarantees of continued access for tribal 
        members to the Oak Flat area;
          4. Certain restrictive covenants should be developed by the 
        Secretaries of Agriculture, Interior and State in consultation 
        with affected Indian tribes, for the Oak Flat area due to its 
        significant tribal archaeological, religious, historical and 
        cultural significance;
          5. H.R. 1904 does not include critical water balance measures 
        to ensure protections for the region's future water supply;
          6. RCM does not have to comply with applicable federal laws 
        and regulations before any decisions on whether to convey 
        federal land and wealth, including comprehensive NEPA, FLPMA 
        and CEQ review;
          7. H.R. 1904 does not require federal environmental 
        compliance; and
          8. There are no meaningful sanctions in H.R. 1904 if RCM 
        violates federal laws.
                               conclusion
    In 1871, the United States established our Reservation. Within just 
a few years, some of the most productive lands within the boundaries of 
the Reservation were taken away by the United States and conveyed to 
settlers and miners for their sole benefit. That was repeated five more 
times over the years. Our burial sites, living areas and farmlands on 
our Reservation were flooded to make way for a federal dam for the 
benefit of others. It is in this historical context that we assess the 
mining proposal and this land exchange.
    H.R. 1904 and S. 409, as reported, do not provide the requisite 
transparency to address many of the fundamental concerns mining 
projects like these present. The billions of dollars which RCM and its 
foreign corporate parents would realize in mining profits and avoidance 
costs for environmental compliance by the premature passage of these 
bills are staggering. There is no unbiased analysis of the potential 
economic benefits or costs of potential environmental damages and 
impacts on the region's water supply.
    The proposed mine presents an untenable threat to the security and 
sustainability of Oak Flat and all it contains, which would be an 
incalculable cultural loss. Under the bills, there is an absence of 
quantifiable royalties for the American treasure that would be given to 
foreign entities in exchange for our ancestral lands.
    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to express our opposition to H.R. 1904 and S. 409 as 
reported.
                                 ______
                                 
                             Tonto National Forest,
                                     Globe Ranger District,
                                       Globe, AZ, February 6, 2012.
Tonto National Forest Supervisor,

    This letter is to inform you that we and our families are very 
proud to announce the dates of our upcoming Apache Sunrise ceremonial 
dance which is to be held at Oak flat. The dates we have scheduled are 
May 2 through May 16, 2012, We are requesting to meet with you and your 
office as soon as possible to discuss arrangements so that our use of 
Oak flat is a priority among any and all requests that may be submitted 
for the area.
    As you are aware, Oak flat was and has always been the home to us, 
Apaches, as well as being a sacred place that Usen(God) had blessed the 
world in the beginning of time. History, both written and oral, tell of 
the wrongs that took place, the extermination and removal of our people 
to the reservation as prisoners of war, this being mandated because of 
federal policies to remove us from this place. Our Sunrise dance is one 
of the oldest religious practices in North America which celebrates a 
young woman coming of age. The ceremony brings teaching of life's 
blessings for the girl, and for all people, it brings blessings, 
healing and visions of things to come. The ancient songs are sung to 
communicate with all God's creations. We are very fortunate, and 
blessed that the religion was able to survive and overcome all the 
obstacles and forces that were against it. We commend those before us 
who made every effort in keeping and preserving Oak flat as a sacred 
place, those who prayed, those who came for blessings, the holy--
people, the medicine men, the elders, and the Mount Graham sacred 
runners.
    So this is to notify you that we will be in Oak flat to exercise 
our religious rights and human rights, as your forefathers claimed for 
all U.S. citizens. We appreciate your assistance in advance.
            Respectfully,
                                            Loren Pina, Sr.
                                          Michelle Randall.
                                             Vansler Nosie.
                                              Elaina Nosie.
                                 ______
                                 
                     National Congress of American Indians,
                                  Washington, DC, February 3, 2012.
Hon. Jeff Bingaman,
Chairman, Senate Energy and Natural Resources Committee, 304 Dirksen 
        Senate Building, Washington, DC.
Re: NCAI Opposition to H.R. 1904, the Southeast Arizona Land Exchange 
and Conservation Act of 2011

    Dear Senator Bingaman,

    On behalf of the National Congress of American Indians (NCAI), I 
write to express our strong opposition to H.R. 1904, the Southeast 
Arizona Land Exchange and Conservation Act of 2011. We call upon the 
Senate Energy and Natural Resources Committee to ensure that H.R. 1904 
is not enacted into law.
    H.R. 1904 would direct the Secretary of Agriculture to transfer 
over 2,400 acres of federal lands in southwest Arizona in an area known 
as Oak Flat to a private, foreign-owned mining company called 
Resolution Copper. In 1955, President Eisenhower recognized the unique 
properties of this area and issued an Executive Order setting the land 
aside as a protected area.
    The federal lands proposed for transfer under H.R. 1904 are of deep 
religious, cultural, archeological, historical, and environmental 
significance to the Apaches, Yavapais, and other tribes in the region. 
By collapsing the surface of the earth and depleting and contaminating 
nearby water resources, the proposed mining will destroy the religious, 
cultural, and traditional integrity of Oak Flat for these tribes, as 
well as cause permanent environmental damage. Even in its minimal 
exploration of the region, the mining company has already begun to 
leave a destructive footprint on culturally significant areas and 
precious natural resources in and around Oak Flat.
    The United States government has legal and moral responsibilities 
to manage traditional cultural territories in a way that respects the 
places that hold cultural, historical, spiritual, and religious 
importance to Native nations and their quality of life. H.R. 1904 
breaks these obligations by transferring a known sacred site into the 
private ownership of a foreign mining company and by destroying the 
very elements of this place that make it a sacred site to Native 
peoples.
    We look forward to working with you to ensure that H.R. 1904 is not 
enacted into law. If you have any questions, please contact Robert 
Holden, NCAI Deputy Director, at [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.
---------------------------------------------------------------------------
    \1\ See attached a summary* of the popular public climbing 
resources in the area affected by this land exchange.
    * Document has been retained in committee files.
---------------------------------------------------------------------------
    Since 2004, the Access Fund has worked with a variety of climbing 
groups in Arizona, conservation organizations, officials from local and 
federal government, and Resolution Copper Mining to address the severe 
impacts that this bill would cause to Oak Flat and the recreation 
community in central Arizona. Reasonable minds may differ on the best 
approach to conserve the environment and climbing opportunities if a 
mine is to go forward. For example, the Concerned Climbers of 
Arizona\2\ seek to minimize surface disturbance at Oak Flat and 
advocate for the co-existence of mining and recreational activities 
(and are thus opposed to both H.R. 1904 and S 409), while Queen Creek 
Coalition (QCC)\3\ seeks to ``maximize rock climbing resources in the 
Queen Creek Region'' through direct negotiations with RCM. However, on 
January 16, 2012, the QCC reported that negotiations were not going 
well and that ``Queen Creek Coalition is and likely will remain opposed 
to Resolution's proposed land exchange.'' While RCM has expressed an 
interest in upholding their commitments to the climbing community, QCC 
reports that RCM's latest offer ``fell far short of providing either 
reasonable access to Queen Creek climbing or compensation for the 
anticipated loss of much of the Queen Creek climbing area.''\4\
---------------------------------------------------------------------------
    \2\ http://www.concernedclimbers.com/
    \3\ http://www.theqcc.org/
    \4\ Id.
---------------------------------------------------------------------------
    The Access Fund has long had a strong interest and played a 
significant role in the negotiations related to the recreational 
impacts of this land exchange. This mine will destroy thousands of 
specific climbing routes and represent the single largest loss of 
climbing ever. Accordingly, climbers should at least receive the level 
of compensation promised in past versions of this bill. Also, before 
proceeding it is critically important for the US Forest Service and 
general public to more fully understand the scope and impacts of this 
proposed project. The Access Fund also believes strongly that this bill 
should require a pre-exchange environmental analysis as required by the 
National Environmental Policy Act. This common process would 
responsibly foresee and mitigate potentially significant environmental 
issues and would best serve the public interest.
    Because provisions favorable to climbers have been removed from 
H.R. 1904, new environmental concerns have emerged, and climbers have 
yet to complete an agreement with RCM to address the loss of climbing 
resources, the Access Fund opposes H.R. 1904 while these issues remain 
unresolved.
                          oak flat recreation
    Located near Queen Creek Canyon in the Tonto National Forest, the 
Oak Flat Campground and the abundant climbing resources therein and 
surrounding area would be transferred through this bill to Resolution 
Copper Mining (RCM) who plans to mine the area by using the extremely 
destructive yet highly profitable ``block-cave'' mining method. The 
value of the Oak Flat area as a recreational resource has been 
officially acknowledged since the 1950s. The Eisenhower Administration 
foresaw this exact threat of mining to Oak Flat when in 1955 it issued 
Public Land Order 1229 and specifically placed this land off-limits to 
all future mining activity. The Nixon Administration subsequently 
issued PLO 5132 in 1972 to modify PLO 1229 and allow ``all forms of 
appropriation under the public land laws applicable to national forest 
lands except under the US mining laws.'' Various attempts over the 
years by mining companies to lift this protection have failed. This 
proposed law would lift those longstanding protections.
    For decades climbers have frequented the Oak Flat/Queen Creek 
Canyon area in Central Arizona to scale the vast assortment of cliffs, 
canyons, and boulders.\5\ Climbing at Oak Flat--one of the country's 
few areas widely visited during winter months--has become so popular 
that for years the area hosted the Phoenix Bouldering Contest which 
eventually became the world's largest such event.
---------------------------------------------------------------------------
    \5\ See a sample of the climbing resources found in the Oak Flat 
and Queen Creek area here: http://www.mountainproject.com/v/queen-
creek-canyon/105788089
---------------------------------------------------------------------------
        compensation promised to climbers removed from h.r. 1904
    Despite climbers losing the extensive and longstanding public 
recreation resource at Oak Flat, H.R. 1904 provides no compensation in 
the form of a ``replacement'' climbing area or any other means. Many of 
the previous commitments of compensation to climbers--in former bills 
(S. 1122, H.R. 4880, S. 409) and promises by RCM--are now missing. 
These include:

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

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

    Finally, the conclusory statement in section 2 (A)(2) of H.R. 1904 
that ``the land exchange is, therefore, in the public interest'' is 
without merit absent a meaningful environmental review of this massive 
mining project with full opportunities for public involvement. Because 
the provisions in H.R. 1904 virtually ensure the development of this 
mine, and the public has very little information on the environmental 
implications of this mine, this exchange is not in the public's 
interest.
    For these reasons stated herein, the Access Fund opposes H.R. 1904. 
Thank you for your attention to this important matter.
                                 ______
                                 
   Prepared Statement of the National Association of Tribal Historic 
                         Preservation Officers
    The National Association of Tribal Historic Preservation Officers 
(NATHPO), which represents tribal historic and cultural preservation 
interests on-and off-tribal lands, respectfully opposes H.R. 1904, the 
Southeast Arizona Land Exchange and Conservation Act of 2011. H.R. 1904 
would transfer more than 2,400 acres of public land to a privately 
owned mining company without assurances that unique and irreplaceable 
historic and cultural resources will be protected. Resolution Copper 
Mining, the primary beneficiary of the transfer, intends to remove the 
ore beneath Oak Flat, a popular campground and site of significance to 
several area Tribes, through block mining. The drill pads, mine shafts 
and tunnels, roads and other human created disturbances generated by 
the mine will have devastating consequences on the area's ecosystem, 
thereby severely affecting its religious and cultural integrity. H.R. 
1904 also proposes to exempt the transfer from federal law, thus 
removing the Federal government's responsibility to consult with Indian 
tribes, as well as limit the public's opportunity to comment during the 
environmental review process.
   the national association of tribal historic preservation officers
    NATHPO is a national not-for-profit membership association of 
tribal governments that are committed to preserving, rejuvenating, and 
improving the status of tribal cultures and cultural practices by 
supporting Native languages, arts, dances, music, oral traditions, 
cultural properties, tribal museums and cultural centers, and tribal 
libraries. NATHPO assists tribal communities to protect their cultural 
properties, whether they are naturally occurring in the landscape or 
are manmade structures. In addition to members who serve as the Tribal 
Historic Preservation Officer (THPO) for their respective tribe, our 
membership includes many other tribal government officials who support 
our mission and goals. NATHPO provides technical assistance, training, 
timely information, original research, and convenes an annual national 
meeting of tribal representatives, preservation experts, and federal 
agency officials.
    In 1998, the initial cohort of 12 officially recognized Tribal 
Historic Preservation Officers (THPOs) created NATHPO. In 2012, there 
are now 131 officially recognized THPOs whose tribal governments are 
responsible for managing over 50 million acres spanning 30 states. In 
addition to convening training workshops and national meetings, NATHPO 
provides technical assistance and conducts original research.
    Several Arizona Indian tribes are members of the NATHPO. NATHPO 
supports the tribe's expressed concerns and opposition to this land 
exchange.
                         areas of significance
    The area proposed to be transferred out of federal control includes 
a popular campground called Oak Flat, set aside by President Eisenhower 
in 1955 specifically for recreational purposes. Oak Flat is also a 
place of profound religious, cultural, and historic significance to 
many Indian tribes, including the San Carlos Apache Tribe, the White 
Mountain Apache Tribe, the Yavapai-Apache Nation, the Tonto Apache 
Tribe, the Fort McDowell Yavapai Nation, the Hualapai Tribe, Jicarilla 
Apache Nation, the Mescalero Apache Tribe, the Pueblo of Zuni among 
others. See Hearing before the Subcommittee on Public Lands and Forests 
of the Committee on Energy and Natural Resources, United States Senate 
on S.409, 111th Cong., S. Hrg. 111-65 (June 17, 2009).
    H.R. 1904, as passed by the House of Representatives on October 26, 
2011, would allow Resolution Copper Mining (RCM)--a joint venture of 
foreign mining giants Rio Tinto and BHP Billiton--to secure private 
ownership of over 2,400 acres of U.S. Forest Service lands and the ore 
and other minerals located underneath these lands in order to 
facilitate an unprecedented large-scale block cave copper mine in the 
Oak Flat region (collectively called ``Oak Flat''), which is bounded by 
portions of Apache Leap (referred to as Gohwhy Gah Edahpbah by the 
Yavapai) and Gaan Canyon (also referred to inappropriately as ``Devil's 
Canyon'' by non-Indians mistaking the Apache Angel dancers as devil 
dancers), and contains the 760-acre Oak Flat Withdrawal. Oak Flat is 
located within the aboriginal lands of, among others, the Western 
Apache and Yavapai tribes. Oak Flat has always been and continues to be 
a place of profound religious, cultural, and historic significance to 
the San Carlos Apache Tribe, the White Mountain Apache Tribe, the Fort 
McDowell Yavapai Nation, the Yavapai-Apache Nation, the Tonto Apache 
Tribe, and many other Native Nations.
                        concerns with h.r. 1904
I. NEPA Exemption
    The H.R. 1904 requires review under National Environmental Policy 
Act (NEPA), 42 U.S.C. Sec.  4332, only after the land transfer is 
complete. Such ex post facto review is clearly contrary to the spirit 
and intent of NEPA which requires that federal agencies analyze 
alternatives prior to making decisions that would affect the 
environment.\1\ The U.S. Forest Service has stated this portion of the 
legislation as its ``principal concern'' since ``[a]n environmental 
review document after the exchange would preclude [USFS]. . .from 
developing a reasonable range of alternatives to the proposal and 
providing the public with opportunities to comment.'' Southeast Arizona 
Land Exchange and Conservation Act of 2011: Hearing on H.R. 1904 Before 
the Subcomm. on National Parks, Forests, and Pub. Lands of the H. Comm. 
on Natural Res., 112th Cong. (2011) (statement of Mary Wagner, 
Associate Chief, U.S. Forest Service). We agree. NEPA review after land 
has been removed from federal control is clearly too little, too late 
and not in the public interest.
---------------------------------------------------------------------------
    \1\ See, Center for Biological Diversity v. U.S. Dept of Interior, 
623 F.3d 633 (9th Cir. 2010)(holding that BLM violated NEPA by not 
taking a hard look at the environmental consequences of transferring 
public land to a private copper mining corporation in Arizona.)
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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.
---------------------------------------------------------------------------
                        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.




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