[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
H.R. 1884, ``SAVE OAK FLAT ACT''
-------------------------------------
LEGISLATIVE HEARING
before the
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
Tuesday, April 13, 2021
Serial No. 117-2
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
44-244PDF WASHINGTON : 2022
COMMITTEE ON NATURAL RESOURCES
RAUL M. GRIJALVA, AZ, Chair
JESUS G. ``CHUY'' GARCIA, IL, Vice Chair
GREGORIO KILILI CAMACHO SABLAN, CNMI, Vice Chair, Insular Affairs
BRUCE WESTERMAN, AR, Ranking Member
Grace F. Napolitano, CA Don Young, AK
Jim Costa, CA Louie Gohmert, TX
Gregorio Kilili Camacho Sablan, Doug Lamborn, CO
CNMI Robert J. Wittman, VA
Jared Huffman, CA Tom McClintock, CA
Alan S. Lowenthal, CA Paul A. Gosar, AZ
Ruben Gallego, AZ Garret Graves, LA
Joe Neguse, CO Jody B. Hice, GA
Mike Levin, CA Aumua Amata Coleman Radewagen, AS
Katie Porter, CA Daniel Webster, FL
Teresa Leger Fernandez, NM Jenniffer Gonzalez-Colon, PR
Nydia M. Velazquez, NY Russ Fulcher, ID
Diana DeGette, CO Pete Stauber, MN
Julia Brownley, CA Thomas P. Tiffany, WI
Debbie Dingell, MI Jerry L. Carl, AL
A. Donald McEachin, VA Matthew M. Rosendale, Sr., MT
Darren Soto, FL Blake D. Moore, UT
Michael F. Q. San Nicolas, GU Yvette Herrell, NM
Jesus G. ``Chuy'' Garcia, IL Lauren Boebert, CO
Ed Case, HI Jay Obernolte, CA
Betty McCollum, MN Cliff Bentz, OR
Steve Cohen, TN
Paul Tonko, NY
Rashida Tlaib, MI
Doris O. Matsui, CA
Lori Trahan, MA
David Watkins, Staff Director
Sarah Lim, Chief Counsel
Vivian Moeglein, Republican Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE FOR INDIGENOUS PEOPLES OF THE UNITED STATES
TERESA LEGER FERNANDEZ, NM, Chair
DON YOUNG, AK, Ranking Member
Ruben Gallego, AZ Jay Obernolte, CA
Darren Soto, FL Aumua Amata Coleman Radewagen, AS
Betty McCollum, MN Jerry L. Carl, AL
Michael F. Q. San Nicolas, GU Matthew M. Rosendale, Sr., MT
Ed Case, HI Lauren Boebert, CO
Alan S. Lowenthal, CA Cliff Bentz, OR
Jesus G. ``Chuy'' Garcia, IL Bruce Westerman, AR, ex officio
Raul M. Grijalva, AZ, ex officio
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CONTENTS
----------
Page
Hearing held on Tuesday, April 13, 2021.......................... 1
Statement of Members:
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 4
Prepared statement of.................................... 5
Leger Fernandez, Hon. Teresa, a Representative in Congress
from the State of New Mexico............................... 2
Prepared statement of.................................... 3
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 6
Statement of Witnesses:
Besich, Mila, Mayor, Town of Superior, Arizona............... 38
Prepared statement of.................................... 40
Questions submitted for the record....................... 42
Lewis, Hon. Shan, President, Inter Tribal Council of Arizona,
Phoenix, Arizona........................................... 7
Prepared statement of.................................... 8
Sharp, Hon. Fawn, President, National Congress of American
Indians, Washington, DC.................................... 12
Prepared statement of.................................... 14
Questions submitted for the record....................... 18
Wells, James, PhD, Chief Operating Officer, L. Everett &
Associates, Santa Barbara, California...................... 23
Prepared statement of.................................... 24
Questions submitted for the record....................... 33
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 115
Submissions for the Record by Representative Leger Fernandez
Advisory Council on Historic Preservation--Testimony on
H.R. 1884.............................................. 55
Chairman Rambler, San Carlos Tribe--Statement for the
Record................................................. 62
Navajo Nation--Letter to Rep. Leger Fernandez dated April
12, 2021............................................... 69
Submissions for the Record by Representative Stauber
Arizona Governor Ducey--Letter to Secretary Vilsack dated
March 16, 2021......................................... 75
Arizona State Building & Construction Trades Council--
Letter to Sen. Kelly dated March 31, 2021.............. 76
Arizona State Building & Construction Trades Council--
Letter to Secretary Vilsack dated April 2, 2021........ 77
Arizona Mayors and County Supervisors of Gila and Pinal
Counties--Letter to the President dated March 17, 2021. 78
Arizona State Senator Shope--Letter to Advisory Council
on Historic Preservation dated February 25, 2021....... 79
Arizona Leadership Groups--Letter to Secretary Vilsack
dated March 23, 2021................................... 80
Boilermakers Local 627--Press Release Regarding
Resolution Copper Mining Project....................... 81
City of Apache Junction--Letter to Advisory Council on
Historic Preservation dated February 22, 2021.......... 82
Cody Elgo, San Carlos Apache Tribal Member--Letter to
Resolution Copper EIS Comments dated July 18, 2016..... 83
Community Working Group--Letter to Advisory Council on
Historic Preservation dated February 23, 2021.......... 84
Copper Corridor Economic Development Coalition--Letter to
Advisory Council on Historic Preservation dated
February 25, 2021...................................... 87
Eastern Arizona Counties Organization--Letter to Advisory
Council on Historic Preservation dated February 22,
2021................................................... 88
Gila County, Supervisor of District I--Letter to Advisory
Council on Historic Preservation dated February 22,
2021................................................... 89
Gila County, Supervisor of District II--Letter to
Advisory Council on Historic Preservation dated
February 23, 2021...................................... 90
Gila County, Supervisor of District III--Letter to
Advisory Council on Historic Preservation dated
February 22, 2021...................................... 91
Gila County, County Manager--Letter to Advisory Council
on Historic Preservation dated February 24, 2021....... 92
Greater Phoenix Leadership--Letter to Secretary Vilsack
dated April 7, 2021.................................... 93
Laura E. Skaer, Natural Resources Policy Advisor--Letter
to Advisory Council on Historic Preservation........... 94
Mila Besich, Mayor of Superior--Statement for the Record. 95
Oddonetto Construction--Statement for the Record......... 97
Pamela Dalton-Rabago, Resident--Letter to Advisory
Council on Historic Preservation dated February 22,
2021................................................... 97
Pinal County Board of Supervisors--Letter to President
Biden dated March 24, 2021............................. 98
Pinal County, Supervisor, District 2--Letter to Advisory
Council on Historic Preservation....................... 99
Pinal County Supervisor, District 5--Letter to Advisory
Council on Historic Preservation dated February 19,
2021................................................... 100
Queen Creek Coalition--Testimony on H.R. 1884............ 101
Resolution Copper--Appendix S. Consultation History...... 101
Resolution Copper--Final EIS Programmatic Agreement
Summary--Process & Commitments......................... 102
Southern Arizona Business Coalition--Letter to Advisory
Council on Historic Preservation....................... 104
Sue Anderson, Local Business Owner--Letter to Advisory
Council on Historic Preservation dated February 24,
2021................................................... 105
Town of Superior--Letter to Advisory Council on Historic
Preservation dated February 23, 2021................... 106
U.A. Local Union 469--Letter to Rep. Gallego dated April
9, 2021................................................ 107
United Steelworkers--Letter to Reps. Leger Fernandez and
Young dated April 13, 2021............................. 108
White Mountain Apache Tribe--Letter to United States
Forest Service dated November 6, 2019.................. 109
Women's Mining Coalition--Testimony on H.R. 1884......... 110
Yavapai-Apache Nation--Letter to Tonto National Forest
dated November 7, 2019................................. 112
Yavapai-Apache Nation--Letter to Tonto National Forest
dated September 17, 2020............................... 112
Yavapai-Apache Nation--Letter to Tonto National Forest
dated December 13, 2019................................ 113
LEGISLATIVE HEARING ON H.R. 1884, TO REPEAL SECTION 3003 OF THE CARL
LEVIN AND HOWARD P. ``BUCK'' MCKEON NATIONAL DEFENSE AUTHORIZATION ACT
FOR FISCAL YEAR 2015, AND FOR OTHER PURPOSES, ``SAVE OAK FLAT ACT''
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Tuesday, April 13, 2021
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 1:01 p.m., via
Webex, Hon. Teresa Leger Fernandez [Chairwoman of the
Subcommittee] presiding.
Present: Representatives Leger Fernandez, Gallego, Soto,
McCollum, Lowenthal, Garcia, Grijalva (ex officio); Young,
Obernolte, Rosendale, Bentz, and Westerman (ex officio).
Also present: Representative Stauber.
Ms. Leger Fernandez. Good afternoon. The Subcommittee for
Indigenous Peoples of the United States will now come to order.
Before we begin, I do want to express my profound
condolences to the family and co-workers of Alexander Lofgren.
I know it must be heartbreaking to have that loss, and so for
the Chairman and those staff who have worked with him, my
blessings go out to you.
Mr. Grijalva. Thank you. Thank you very much.
Ms. Leger Fernandez. The Subcommittee is meeting today to
hear testimony on H.R. 1884, the ``Save Oak Flat Act,''
introduced by Representative Raul M. Grijalva of Arizona. Under
Committee Rule 4(f), any oral opening statements at hearings
are limited to the Chair and the Ranking Minority Member. This
will allow us to hear from our witnesses sooner and help
Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements be made part of the hearing record if they
are submitted to the Clerk by 5 p.m. today or the close of the
hearing, whichever comes first.
Hearing no objection, so ordered.
Without objection, the Chair may also declare a recess
subject to the call of the Chair.
Hearing no objection, so ordered.
As described in the hearing notice, statements, documents,
or motions must be submitted to the electronic repository at
[email protected].
Additionally, please note that as with in-person meetings,
Members are responsible for their own microphones. As within
our in-person meetings, Members can be muted by staff only to
avoid inadvertent background noise.
Finally, Members or witnesses experiencing technical
problems should inform Committee staff immediately.
I also ask unanimous consent that Representative Stauber
from Minnesota be allowed to join us on the virtual dais today.
Hearing no objection, so ordered.
I will begin by recognizing myself for my opening
statement.
STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF NEW MEXICO
Ms. Leger Fernandez. I want to welcome our witnesses to our
virtual hearing today. This legislative hearing will be on H.R.
1884, the ``Save Oak Flat Act,'' a bill that will prohibit the
Oak Flat Federal Parcel transfer to foreign mining
corporations. The 2,422-acre parcel includes the Chi'Chil
Bildagoteel Historic District, known as Oak Flat, located in
the Tonto National Forest.
This area is considered sacred by many Tribal Nations,
including the San Carlos Apache Tribe, the Tonto Apache Tribe,
the White Mountain Apache Tribe, the Yavapai Apache Nation, the
Yavapai-Prescott Indian Tribe, the Gila River Indian Community,
the Salt River Pima-Maricopa Indian Community, the Hopi Tribe,
and the Pueblo of Zuni, many of whom continue to conduct
ceremonies and gather traditional medicines and food in the
area.
The National Park Service has recognized this land's sacred
status by listing Oak Flat on the National Register of Historic
Places in 2016.
You might be wondering why land listed on the National
Register of Historic Places is ripe for mining. In 2014, a
rider on the National Defense Authorization Act authorized a
land exchange giving Oak Flat to a multi-national mining
conglomerate called Resolution Copper, owned by Rio Tinto and
BHP.
The NDAA language required the Forest Service to produce an
EIS to evaluate the mining plan's effects before this exchange
occurred. The NDAA language also stipulated the land should be
removed from the Forest Service's jurisdiction and placed into
the hands of Resolution Copper within 60 days after completing
the EIS, regardless of the findings.
A little over a year ago, in the 116th Congress, this
Subcommittee held an oversight hearing examining the draft EIS
published by the Trump administration. The draft EIS identified
the tribal, soil, water, wildlife, recreation, public health,
and livestock impacts mining would have on this area.
Analyses show that ancestral burial grounds for the Native
communities in the region will also inevitably be disturbed and
destroyed. The crater expected to be created is projected to
start to appear in Year 6 of active mining and will ultimately
be between 800 and 1,115 feet deep, and roughly 1.8 miles
across. The Emory oak groves, which have been visited and
utilized by tribal members for millennial, will be adversely
affected, and one or more of those groves will likely be lost
altogether. Wellfield pumping will also incrementally
contribute to the lowering of groundwater levels and
cumulatively reduce overall groundwater availability in the
local area.
Although the draft EIS process to the Final Environmental
Impact Statement usually takes time, on January 15, the
previous administration released a final FEIS, which was
released without proper consultation with tribes and did not
address the myriad concerns identified in the draft EIS.
In March 2021, the Biden administration withdrew the FEIS
to further consult with tribes and thoroughly conduct an
environmental impact statement that fully implies with the law.
Since 2015, Chair Grijalva has introduced the Save Oak Flat
Act to protect the Chi'Chil Bildagoteel Historic District from
detrimental mining. This bill will repeal Section 3003 of the
NDAA and protect the sacred site for future generations.
[The prepared statement of Ms. Leger Fernandez follows:]
Prepared Statement of the Hon. Teresa Leger Fernandez, a Representative
in Congress from the State of New Mexico
Good afternoon. I want to welcome our witnesses to our virtual
hearing today. This legislative hearing will be on H.R. 1884--the Save
Oak Flat Act, a bill that will prohibit the Oak Flat Federal Parcel
transfer to foreign mining corporations.
The 2,422-acre parcel includes the Chi'chil Bildagoteel Historic
District, known as Oak Flat, located in the Tonto National Forest.
This area is considered sacred by many tribal nations, including
the San Carlos Apache Tribe, the Tonto Apache Tribe, the White Mountain
Apache Tribe, the Yavapai-Apache Nation, the Yavapai-Prescott Indian
Tribe, the Gila River Indian Community, the Salt River Pima-Maricopa
Indian Community, the Hopi Tribe, and the Pueblo of Zuni. Many of whom
continue to conduct ceremonies and gather traditional medicines and
food.
The National Park Service has recognized this land's sacred status
by listing Oak Flat on the National Register of Historic Places in
2016.
You may be wondering why land listed on the National Register of
Historic places is ripe for mining. In 2014, a rider on the National
Defense Authorization Act authorized a land exchange giving Oak Flat to
a multinational mining conglomerate called Resolution Copper, owned by
Rio Tinto and BHP.
The NDAA language required the Forest Service to produce an
Environmental Impact Statement--or ``EIS''--to evaluate the mining
plan's effects before the exchange occurred.
The NDAA language also stipulated the land should be removed from
the Forest Service's jurisdiction and placed into the hands of
Resolution Copper within 60 days after completing the EIS, regardless
of the findings.
A little over a year ago, in the 116th Congress, this Subcommittee
held an oversight hearing examining the draft EIS, published by the
Trump administration. The draft EIS identified the tribal, soil, water,
wildlife, recreation, public health, and livestock impacts mining would
have on this area.
Ancestral burial grounds for the Native communities in the region
will also inevitably be disturbed and destroyed. The crater is
projected to start to appear in year 6 of active mining and will
ultimately be between 800 and 1,115 feet deep and roughly 1.8 miles
across. The Emory oak groves, which have been visited and utilized by
tribal members for millennia, will be adversely affected and one or
more of these groves will likely be lost altogether. Wellfield pumping
will incrementally contribute to the lowering of groundwater levels and
cumulatively reduce overall groundwater availability in the local area.
Although the draft EIS process to the final Environmental Impact
Statement or ``FEIS'' usually takes time--on January 15, the previous
administration released a final environmental impact statement (FEIS).
The FEIS was released without proper consultation with tribes and did
not address the myriad of concerns identified in the draft EIS.
In March 2021, the Biden administration withdrew the FEIS to
further consult with tribes and thoroughly conduct an environmental
impact statement that fully complies with the law.
Since 2015, Chair Grijalva has introduced the Save Oak Flat Act to
protect the Chi'chil Bildagoteel Historic District detrimental mining.
This bill will repeal section 3003 of the NDAA and protect this sacred
site for future generations.
Thank you again for being here virtually. I look forward to hearing
our witness testimony today.
______
Ms. Leger Fernandez. I want to thank our witnesses for
being here today virtually and I look forward to hearing your
testimony. I would like to now recognize the esteemed Ranking
Member, Mr. Young, for any opening remarks.
Congressman Young? Is Congressman Young on?
Congressman Young is having technical issues.
Is Mr. Westerman with us today?
When Congressman Young is able to participate, I will make
sure I go back to him. In the meantime, I would like to give
any sponsoring Members of Congress the opportunity to speak on
behalf of the legislation.
The Chair now recognizes the Chair of the Full Committee,
Chair Grijalva, for a statement on his legislation.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Madam Chair, and I
appreciate you having this hearing on the legislation, H.R.
1884. I think your summation in your opening statement
basically deals with the issue, and rather than being
repetitive, let me point out a couple other issues.
I think it is important to note that, yes, it passed on a
must-pass piece of legislation, the Section 3003 of the
National Defense Authorization Act of 2015. It was a must-pass
piece of legislation, and as such, passed the House, passed the
Senate, and was signed into law.
It should be noted that since 2005, this particular Section
3003 and other iterations as stand-alone legislation repeatedly
failed to receive support in the House of Representatives and
in the U.S. Senate as a stand-alone piece of legislation. And
since 2015, I have been introducing the Save Oak Flat Act to
uphold what I believe is essential, the Indigenous peoples'
rights to protect the lands and these lands that many tribes in
Arizona and outside of Arizona consider sacred.
As the Chair indicated, the historic site, known as Oak
Flat, has deep significance. It was placed in the National
Register in 2016 with extensive consultation with the San
Carlos Apache Tribe. This area has been utilized and occupied
for the past 1,500 years from the Pre-Classic Hohokam to the
present.
Resolution Copper is owned by a multi-national corporation,
Rio Tinto and BHP, and plans on developing and extracting this
sacred ecosystem for profits that will only last a lifetime,
destroying what we already know is a profoundly religious and
sacred site for generations and generations.
Unfortunately, the track record of Rio Tinto--and some of
the witnesses will deal with that--in unearthing sacred sites
is not new. Just last year, the foreign mining giant blew up a
46,000-year-old Aboriginal cave in Australia, and the
difference between the two is that members of this Subcommittee
have the opportunity to right that wrong and not allow that to
happen.
We have a chance to protect the site that many tribes use
for spiritual and traditional purposes. The environmental
damage Resolution Copper can have on the area impacts tribes in
Arizona and the water resources of local communities.
Let me just say, there are two issues also as well, the
issue of water. The drought in Arizona and in other parts of
the Southwest is ongoing and is not abating. The depletion of
the Colorado River, the 40 percent reduction in Lake Mead and
Lake Powell in terms of the reservoirs that the Grand Canyon
provides for Arizona and other states and over 40 million
Americans in those areas is an emergency setting, and emergency
water reduction in allocations are imminent if we don't take
better care, usage, and protection of that water resource.
The other issue is the royalty issue. Mining extraction
provides no royalties for the extraction of private land. And
this trade, this land exchange, under normal circumstances
would have required a process, not only NEPA, but full
environmental impact consultation, as required by law,
government-to-government consultations with affected tribes,
and none of that has occurred to the degree where the tribes
and others who want this area protected feel that this process
has been fair, upfront, transparent, and accountable.
This is a sweetheart deal, and it has been a sweetheart
deal since it was first introduced as legislation in 2005, and
it continues to be a sweetheart deal for the company as of 2015
when it passed as part of the National Defense Authorization
Act.
I look forward to the witnesses, Madam Chair. Thank you
very much for holding the hearing. And as this legislation
moves along, I want to invite you and other Members to have
input into the legislation as to both content and any
recommendations that you might have.
With that, let me yield back and thank you once again,
Madam Chair, for your courtesy. And let me say, the loss of our
esteemed colleague here, Alex Lofgren, thank you for mentioning
that. It is a tragedy and a very sad experience for all of us
that knew the young man, and those people that did not know
him, a loss for them as well. So, thank you for mentioning
that. That was very kind of you, and I appreciate the courtesy.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Chair, Committee on
Natural Resources
Good afternoon. I want to thank the Subcommittee Chair for having
this important hearing on my bill--H.R. 1884--the Save Oak Flat Act.
This bill was created in response to Section 3003 of the NDAA that
passed for FY 2015. It is important to know that since 2005 section
3003 was a bill that repeatedly failed to receive support from both
chambers.
Since this occurred, I have introduced the Save Oak Flat Act in the
following Congress to uphold Indigenous peoples' rights and protect the
lands many tribes in Arizona consider sacred.
The Chi'chil Bildagoteel Historic District has a rich cultural
significance and placed on the National Register of Historic Places in
2016 with extensive consultations with the San Carlos Apache Tribe.
This area was utilized and occupied for the past 1,500 years from the
pre-Classic Hohokam to the present.
Resolution Copper, a company owned by Rio Tinto and BHP, plans on
developing and extracting this sacred ecosystem for profits that will
only last a lifetime--destroying a profoundly religious and sacred site
for generations and generations.
I only wish that these companies would have considered the
detrimental impacts of their actions before sponsoring a provision that
was clearly an industry favor.
Unfortunately, the track record for Rio Tinto and unearthing sacred
sites is not new. Just last year, the foreign mining giant blew up a
46,000-year-old Aboriginal cave in Australia. Similar to what we are
witnessing today with Oak Flat.
The difference between the two is that--members of this
Subcommittee have the opportunity to right a wrong.
We have the chance to protect this sacred land that many tribes use
for spiritual and traditional purposes. The environmental damage
Resolution Cooper can have on this area impacts tribes in Arizona and
the water sources of the local community.
Lastly, one should not underestimate the precedent this type of
land exchange will have on Indigenous sacred sites' protections in the
future. We have witnessed this foreign mining company destroy an
Indigenous sacred site in Australia.
H.R. 1884--Save Oak Flat Act is proof that the destruction of
foreign mining companies on religious and sacred sites does not stop at
our country's borders.
______
Ms. Leger Fernandez. Thank you. And, once again, our
condolences, blessings, and prayers for Mr. Lofgren and his
family.
Now, I would like to recognize our Ranking Member,
Congressman Young. I understand he is available. Congressman
Young.
STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALASKA
Mr. Young. Thank you, Madam Chair.
And thank you to the Chairman of the Full Committee for the
comments, and I agree with what he said about his staffer. It
is unfortunate. When you adventure, sometimes accidents happen,
and it is sad when it does occur.
I have been involved in this legislation for a long time. I
know there has been some progress made. I will not repeat
everything that you have said, or the Chairman have said. I
would suggest that we listen to the witnesses and we look and
see, is there a way to make this possible, as it should be
done, as the, I call, the rules.
I am anxious to listen to the witnesses, find out what they
have to say. And I will say that I am a little frustrated when
everybody says no to everything, but there is some legitimacy
in the complaints, as the Chairman said, about this being a
sacred area. So, let's listen to the witnesses. Let's go
through, as the legislation goes by, let's see if there isn't a
way we can arrive at a solution to a very serious problem,
because there is a law in place.
We did pass that law. It wasn't done by due order, but it
was also done, and when you repeal a law, we have to look at
the process in which we do it. And I know there will be some
legal cases if we don't, so let's do the job right, Madam
Chair. I am sure we will.
And when you get time, I need to talk to you personally on
another bill, which I hope I have your support of introducing.
With that, I yield back.
Ms. Leger Fernandez. Thank you, Congressman Young, and I
always look forward to speaking with you.
Congressman Westerman, would you like to speak to the
Committee today?
I am not hearing from Congressman Westerman. I understood
he was on, but we will now move to the witnesses.
Under our Committee Rules, oral statements are limited to 5
minutes, but you may submit a longer statement for the record
if you choose. When you begin, the on-screen timer will begin
counting down and will turn orange when you have 1 minute
remaining.
I recommend that Members and witnesses joining remotely
lock the timer on their screen. When you go over the allotted
time, I will ask you to please wrap up your statement. After
your testimony is complete, please remember to mute yourself to
avoid any inadvertent background noise. I will allow the entire
panel to testify before we question the witnesses.
The Chair now recognizes the Honorable Shan Lewis,
President of the Inter Tribal Association of Arizona.
STATEMENT OF THE HONORABLE SHAN LEWIS, PRESIDENT, INTER TRIBAL
COUNCIL OF ARIZONA, PHOENIX, ARIZONA
Mr. Lewis. Good afternoon, Chairman Grijalva, Chairperson
Fernandez, Ranking Member Young, Vice Ranking Member Obernolte,
Representative Gallego, and members of the Subcommittee.
My name is Shan Lewis. I am the Vice Chairman of the Fort
Mojave Indian Tribe and President of the Inter Tribal
Association of Arizona. On behalf of our 21 Member Tribes, we
appreciate this opportunity to speak today in support of the
Save Oak Flat Act.
The survival of Oak Flat is at a critical moment. Passage
of the Save Oak Flat bill would respect the religious and
cultural practices and values of our Member Tribes and protect
the water resources of Arizona. We urge that you act now and
Save Oak Flat for all of us and for future generations.
Oak Flat is located in the Tonto National Forest. It is a
place of profound religious, cultural, and historic
significance to Western Apache and Yavapai people, as well as
many other tribes in the region. It is a place for prayer and
for ceremonies, like the Sunrise Ceremony, a coming-of-age
ceremony for young women, and for gathering water, medicinal
plants, and important foods like acorns that are abundant in
this area due to the ancient oak trees that shelter Oak Flat.
Oak Flat has been a sacred place since time immemorial. It
is culturally significant to many tribes. The recent work of
anthropologist T.J. Ferguson, done in cooperation with the
Forest Service, also confirms Oak Flat's importance to at least
nine Arizona tribes. It is our understanding that Dr. Ferguson
has submitted testimony for today's hearing, and we urge you to
review it.
In recognition of Oak Flat's importance, Oak Flat is listed
on the National Register of Historic Places. Yet, if Congress
doesn't act, over 2,400 acres of tribal ancestral lands at Oak
Flat will be traded away for one of the most destructive mines
we have ever seen, destroying in turn the religious freedoms
and cultural practices of many of our Member Tribes. It is for
this reason, the Inter Tribal Association of Arizona has
opposed this land exchange and mine from the beginning.
If developed, the Forest Service's own documents say the
mine will cause a massive crater at the heart of Oak Flat,
which will be almost 2 miles wide and at least 1,000 feet deep,
as deep as the Empire State Building is tall. The ancient oak
trees that have provided subsistence to tribal people for
generations will be destroyed by this mine, along with the
surrounding medicinal plants that have provided the health of
Indigenous people for centuries. These oak trees and these
plants cannot be replaced, and there is no mitigation that will
reduce the harm caused by the destruction of Oak Flat.
Arizona tribes remain in control of approximately 28
percent of the state, and while we have endured many challenges
in maintaining control over our land, our sacred sites, and our
status as sovereign nations, we know water is the most
important life-giving resource of all.
Forest Service documents say the mine will use billions of
gallons of water, both from the mine site at Oak Flat and from
Wellfield just outside of Phoenix. If allowed to move forward,
the mine at Oak Flat will destroy countless springs and water
resources. Once gone, there will be no mitigation for this
loss.
Almost every part of Arizona is under extreme or
extraordinary drought, and we are hearing news of impending
shortages on the Colorado River. At the same time, people are
moving here in record numbers. Yet, this single-mine project
would deplete massive amounts of water for Arizona's water
supply. How can all of this fit in Arizona's long-term water
future? The answer is, it can't.
Perhaps the mine could bring a handful of short-term jobs
to the area, but at what cost? As tribal leaders, we must think
about future generations and the negative impact the mine would
have over the long term. The United States also should not
violate its trust responsibility and constitutional obligations
by trading away Oak Flat and the religious freedoms of
Indigenous people.
Without action, Oak Flat will be traded away and destroyed
after the Forest Service re-issues the final EIS, which we
expect sometime this year. As elected leaders of our Tribal
Nations, it is our responsibility to protect sacred sites, and
so, respectfully, we urge Congress to pass the Save Oak Flat
Act.
Thank you again for this opportunity to provide testimony.
I would be glad to answer any questions you might have. Thank
you.
[The prepared statement of Mr. Lewis follows:]
Prepared Statement of Mr. Shan Lewis, President, Inter Tribal
Association of Arizona and Vice-Chairman, Fort Mojave Indian Tribe
Chairman Grijalva, Chairperson Fernandez, Representative Gallego,
and members of the Subcommittee, thank you for the opportunity to
testify today. My name is Shan Lewis, Vice Chairman of the Fort Mojave
Indian Tribe, and President of the Inter Tribal Association of Arizona
(``Inter Tribal Association'' or ``ITAA''). My Tribe is a member of the
Inter Tribal Association of Arizona.
On behalf of our 21 Member Tribes, we appreciate the opportunity to
speak today in support of the Save Oak Flat Act (H.R. 1884). The future
existence of Oak Flat is at a critical moment. This important bill
would repeal the land exchange legislation and save Oak Flat from being
lost forever. This bill would permanently protect Oak Flat, located in
the Tonto National Forest in eastern Arizona, from destruction by
mining. Oak Flat, also known traditionally as Chi'chil Bildagoteel, is
a place of profound religious, cultural, and historic significance to
certain Western Apache and Yavapai people, as well as other Tribal
cultures across the region. Given its profound importance to Tribal
people, Oak Flat is listed as a Traditional Cultural Property (TCP) on
the National Register of Historic Places.
For the Western Apache including the San Carlos Apache Tribe, Oak
Flat is a place for prayer, for coming-of-age (Sunrise) and other
ceremonies, for collecting water and gathering medicinal plants for
ceremonies, for gathering acorns and other foods, and honoring the
departed who are buried there. The Yavapai also have a long history and
traditional historical relationship with Oak Flat, and have used its
free-flowing waters, plants and materials grown there for food as well
as for ceremonial and cultural purposes. Indeed, in work supervised by
the Tonto National Forest, anthropologists Maren P. Hopkins and T.J.
Ferguson conducted extensive fieldwork and ethnographic interviews with
elders from multiple tribes regarding their relationship with Oak Flat
to develop a report in 2015 entitled ``Ethnographic and Ethnohistoric
Study of the Superior Area, Arizona''. This exhaustive report noted
that Oak Flat is an important cultural site for nine tribes in Arizona.
It is our understanding that Dr. Ferguson has submitted prepared
testimony for today's subcommittee hearing. While different Tribal
peoples may regard and use Oak Flat in different ways, the underlying
traditional and historical relationships of the many various Tribal
cultures to the ancestral lands here has existed since time immemorial.
This absolutely must be respected.
If the land exchange legislation is not repealed, approximately
2,400 acres of public land, including the Oak Flat, will be transferred
into private ownership and control of two foreign mining companies, Rio
Tinto and BHP Billiton, that operate in Arizona under the name
Resolution Copper. Once transferred, Resolution Copper will have the
authority to forever prevent current and future generations of Tribal
people and other users from entering Oak Flat to perform prayers,
engage in ceremony, and to gather acorns and other important plants
that have sustained Tribal people for countless generations. And, of
course, the goal of the transfer is to facilitate the development of a
massive copper mine that will destroy Oak Flat, leaving a crater almost
2 miles wide, and a thousand feet deep at its heart. The mine will also
deplete billions of gallons of water, destroy sacred springs, and leave
the natural world irreparably harmed, along with the religious freedoms
and practices of those Tribal people who have relied upon the existence
and health of Oak Flat for generations upon generations.
These actions would violate the religious freedoms of current and
future generations of Tribal people and directly contradict the
protections provided by the First Amendment to the United States
Constitution, the American Indian Religious Freedom Act (42 U.S.C.
Sec. 1996), and the Religious Freedom Restoration Act (42 U.S.C.
Sec. 2000bb-2000bb-4), among other laws.
Tribal religious and cultural practices must be respected and
treated by the United States Government on par with the religious
freedoms of other citizens of this country. Doing anything less
undermines the very foundation of who we all are as Americans.
For these reasons, ITAA strongly supports the Save Oak Flat Act
(H.R. 1884). This is the only way to achieve the long-term, permanent
protection of Oak Flat. ITAA does not oppose all mines, however, some
places just should not be mined. Oak Flat is one of these areas.
background on the inter tribal association of arizona
The Inter Tribal Association of Arizona, Inc. is a non-profit,
inter tribal consortium of 21 federally recognized Indian Tribes,
nations, and communities with lands located across the State of
Arizona, as well as in New Mexico, California, and Nevada.\1\ ITAA's
Member Tribes have worked together since 1952 to provide a united voice
for Tribal governments located in the State of Arizona on matters of
common interest and concern. The representatives of ITAA are the
highest elected Tribal officials from each Tribe, including
chairpersons, presidents, and governors.
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\1\ The ITAA's Member Tribes are 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, San Juan Southern
Paiute Tribe, Tohono O'odham Nation, Tonto Apache Tribe, White Mountain
Apache Tribe, Yavapai-Apache Nation, and the Yavapai Prescott Indian
Tribe.
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itaa's 21 member tribes are unified in opposition to the transfer of
oak flat to foreign mining interests
Since the current mining proposals at Oak Flat arose nearly two
decades ago, ITAA and our sister organization, the Inter Tribal Council
of Arizona, Inc. (ITCA), as well as numerous individual Member Tribes
have passed multiple resolutions, written countless letters, submitted
statements, and testified before Congress (including before this
subcommittee) on multiple occasions, adamantly opposing the transfer of
their ancestral lands at Oak Flat to foreign mining interests and
raising specific, detailed concerns about the many likely and
inevitable impacts of this mine.
The 21 Member Tribes of ITAA/ITCA, as well as many of our
individual Member Tribes, have passed resolutions opposing the
destruction of Oak Flat and/or supporting the legislation to repeal the
exchange legislation. The Navajo Nation, Arizona's 22nd federally
recognized tribe, has also passed a resolution in opposition to the
Resolution Copper Mine and Land Exchange.
In 2008, I traveled to Washington to testify on behalf of our 21
Member Tribes before Congress on this issue. Again in 2009, President
Norman Cooeyate of the Zuni Tribe traveled to Washington to testify for
us. Throughout subsequent sessions of Congress, we have consistently
and adamantly expressed unified Tribal opposition to the Resolution
Copper Mine and Land Exchange on behalf of our 21 Member Tribes. Over
the years, our tribal leaders including former San Carlos Apache Tribal
Chairman Wendsler Nosie Sr. and current Chairman Terry Rambler, and
leaders from the Fort McDowell Yavapai Nation, the Zuni Tribe, and the
Hualapai Tribe, have testified before Congress or submitted testimony
for the record in firm opposition to the Resolution Copper Mine and
Land Exchange. In addition, countless letters have been sent to
Congress opposing this mine and land exchange from ITAA, and from our
individual Member Tribes.
ITAA and its Member Tribes have been joined in this opposition by
many other tribes and inter tribal organizations across the United
States including by the National Congress of American Indians (NCAI),
who is testifying here today. NCAI has also voted on and passed
resolutions opposing this mine and land exchange. Even indigenous
organizations from as far away as Australia have expressed their
concerns with the Rio Tinto's plans to develop a mine at Oak Flat
following Rio Tinto's tragic destruction of the culturally and
historically significant Juukan Gorge cave rockshelters in the Pilbara
Region of Australia as part of a mining project in May 2020. Indigenous
people warned of Rio Tinto's destructive plans and urged Rio Tinto not
to destroy the rockshelters, but Rio Tinto blasted these structures
anyway, destroying them forever. Despite Rio Tinto's promises made in
the aftermath of this blatant destruction to never let this happen
again, in fact, Rio Tinto plans to do the very same thing at Oak Flat.
But, in this case, Congress can take action and pass the Save Oak Flat
Act and protect this sacred place and well-documented religious and
culturally important landscape before it can be demolished to benefit
the commercial interests of Rio Tinto.
The ITAA stands firmly with all of our Member Tribes who have
fought for many years to protect the historic properties, religious
places, and sacred sites found within the Oak Flat area including
Chi'chil Bildagoteel from being exchanged to and ultimately destroyed
by foreign mining interests. The Tribal Leaders of ITAA will always
stand shoulder-to-shoulder when it comes to protecting our ancestral
lands, and the integrity of historic properties, religious places, and
sacred sites located within those lands.
irreparable impacts of the proposed resolution copper mine
Last year on March 12, 2020, this subcommittee held a hearing to
discuss the numerous impacts of the proposed Resolution Copper mine
(titled The Irreparable Environmental and Cultural Impacts of the
Proposed Resolution Copper Mining Operation). Our prior prepared
statement submitted for that hearing record detailing these numerous
harms is incorporated here by reference.
If the Save Oak Flat Act is not passed, upon the completion of a
legally compliant and final environmental impact analysis,
approximately 2,400 acres of Tribal ancestral land will be exchanged,
so that Resolution Copper can construct and operate a block-cave mining
operation to blast and remove 1.4 billion tons of rock from beneath Oak
Flat. This would leave a subsidence crater at almost 2 miles wide and
over 1,000 feet deep, collapsing the Oak Flat area including the NRHP-
listed Chi'chil Bildagoteel (Oak Flat) Historic District and the
archaeological, cultural, historic, and sacred sites within the area
including burial sites and petroglyphs. Among the impacts are:
The Forest Service estimates that over the life of the
mine, this mine will deplete at least 87,000 acre-feet of
water from the Oak Flat area (1 acre-foot is 325,851
gallons of water). Dewatering and destroying riparian
seeps, springs, and streams in and around Oak Flat that
support ecosystems and habitats for a wide variety of
species including the endangered Sonoran ocelot, black
bear, mountain lion, bobcat, coatimundi, javelina, ring-
tailed cat, all four native Arizona species of skunk. Oak
Flat is also a critical area for resident and migrating
bird species including Bald and Golden Eagles (which have
religious and cultural significance to ITAA Member Tribes).
The Forest Service also estimates that over the life of
the mine, this mine will deplete at least 550,000 acre-feet
of water from the east Salt River Valley just outside of
Phoenix. Extensive dewatering of ground and surface water
supplies would also add more strain on the desperately
needed and already thin water supplies of Arizona
residents.
More than half a million acre-feet of groundwater would be
pumped for this mine from central Arizona, an area which
has already seen subsidence and fissures in the earth from
over-pumping. The Pinal AMA in this region alone already
faces an 8.1 million acre-foot shortfall between available
supplies and demand over the next century. Moreover, it is
anticipated that the agricultural users in this same region
will be hit hardest by additional predicted substantial
cuts in Colorado River water supplies, forcing them to
deepen their wells and compete with the mine for scarce
water resources.
The Forest Service also estimates that approximately 1.37
billion tons of toxic mine waste (tailings) would be
deposited from this mine. This would be left forever only a
few short miles from the Gila River. This presents threats
of water and environmental contamination, spillage, and
human health concerns that have not been adequately
addressed by the Forest Service or the mine. In fact, none
of the short-term or long-term environmental threats posed
by this sprawling mine, including from its tailings slurry,
concentrate slurry, toxic pit lake in the subsidence
crater, and other facets of the mine have ever been fully
addressed.
The construction of many additional miles of
infrastructure, pipelines, power lines, roads, wells,
railways will also have innumerable and widespread
environmental impacts. For example, pipelines transporting
slurried toxic mine waste to the tailings site would be
placed underneath Mineral Creek (critical habitat to the
endangered Gila Chub, and proposed critical habitat for the
Yellow-Billed Cuckoo). Transmission lines and pipeline
corridors will be bladed or blasted through miles and miles
of Forest lands, including through the nearby King's Crown
Peak mountain.
The COVID-19 pandemic has placed a magnifying glass on the
fundamental need to protect and preserve healthy water supplies. Yet,
the egregious amount of water required by the mine and its threat to
water quality and the environment is a matter of serious concern to
ITAA's Member Tribes. Dr. James Wells, Ph.D. of L. Everett & Associates
is also here presenting testimony today to this Subcommittee in greater
detail on the specific and profound water impacts of this project. The
severe and ongoing drought which has stricken the southwestern United
States and the State of Arizona for many decades would be made much
worse by the staggering amounts of water this mine would consume. Water
is necessary to sustain life. It is therefore important for our
survival to understand and think about what the long-term impacts on
water this project will have 10, 20, and even 100 years from now.
In sum, the destructive legacy of this project would be staggering
and forever leave a stain on eastern Arizona. It would also leave a
stain on who we are as Americans, since we would be exchanging the
religious freedoms of Tribal people for a promise of jobs and profit
offered by foreign mining interests. The exchange would also create an
unacceptable precedent--that is, the exchange of a well-documented
Traditional Cultural Property recognized under the National Historic
Preservation Act to two foreign mining interests to facilitate its
destruction. And, all of Arizona's residents including tribal members
of ITAA's Member Tribes would suffer the cultural, social,
environmental and other consequences for years to come.
permanent protection of oak flat (``save oak flat act'') is still
needed
In December 2014, despite our strong protests, and despite failing
for many years to pass as a standalone bill on its own merits, the
highly controversial Resolution Copper Mine and Land Exchange was
included in the 2015 National Defense Authorization Act and enacted
into law. Among other things, this provision required a full and
legally compliant Final Environmental Impact Statement (FEIS) on the
project. Publication of an FEIS triggers a 60-day clock, by the end of
which Oak Flat lands would be exchanged to Resolution Copper for
eventual destruction.
The Forest Service had originally anticipated publishing the FEIS
in December 2021. But in the waning days of the prior administration,
the Forest Service hurriedly published an incomplete, fatally flawed
FEIS for the Resolution Copper Mine Project and Land Exchange on
January 15, 2021, just 5 days before the Presidential inauguration. The
document was glaringly incomplete and fell far short of a full NEPA
analysis, failing in countless instances to consider direct, indirect
and cumulative project impacts and mitigation measures.
On March 1, 2021, USDA directed the Forest Service to rescind the
FEIS and Draft Record of Decision, citing the need for more time to
more fully understand Tribal and public concerns in accordance with the
recent Presidential Memorandum on Tribal Consultation (dated January
26, 2021), as well as project impacts and to ``ensure the agency's
compliance with federal law.''
Rescission of the FEIS and Draft Record of Decision was welcome
news as it halted the 60-day clock, temporarily saving Oak Flat.
Nevertheless, the USDA and Forest Service are still estimating that
another final EIS will be published at some point in the future,
perhaps even later this year. If the land exchange legislation is not
repealed, then upon publication of another FEIS, the 60-day clock would
restart, and Oak Flat will be transferred from the Tonto National
Forest into the private hands of Resolution Copper no later than 60
days after that FEIS is published. This outcome is not acceptable to
ITAA. And should not be acceptable to Congress.
Long-term and permanent protections for Oak Flat are critically
needed. Passage of H.R. 1884, the Save Oak Flat Act, would undo the
original land exchange legislation and provide this protection.
conclusion
We welcome the recently signed Memorandum on Tribal Consultation
and Strengthening Nation-to-Nation Relationships signed by President
Biden on January 26, 2021, making regular, meaningful and robust
consultation with Tribal Nations one of the priorities of his
administration. ITAA urges Congress to live up to these values as well,
and consider the united Tribal concerns opposing this land exchange and
mine which have been consistent, united, and unwavering since the
beginning. To do this, we urge you to pass the Save Oak Flat Act to
provide long-term, permanent protection to Oak Flat.
Thank you for providing an opportunity on the part of the Inter
Tribal Association of Arizona and our 21 Member Tribes to submit this
testimony.
______
Ms. Leger Fernandez. Thank you so very much, President
Lewis.
The Chair now recognizes the Honorable Fawn Sharp,
President of the National Congress of American Indians.
STATEMENT OF THE HONORABLE FAWN SHARP, PRESIDENT, NATIONAL
CONGRESS OF AMERICAN INDIANS, WASHINGTON, DC
Ms. Sharp. [Speaking native language.] Good afternoon. My
name is Fawn Sharp. I serve as President of the National
Congress of American Indians. Founded in 1944, NCAI is the
oldest, largest, and most representative organization comprised
of Tribal Nations and their citizens.
Chair Leger Fernandez, Ranking Member Young, and members of
the Subcommittee, on behalf of the National Congress for
American Indians, we thank you for this opportunity to provide
testimony on a critically important issue----
Ms. Leger Fernandez. Excuse me, if we could hold the timer
just a bit. You are not coming through very clear on my
computer, so maybe getting it a little closer so we can all
hear you well.
Ms. Sharp. Can you hear me OK now?
Ms. Leger Fernandez. That is better. Thank you. Go on.
Ms. Sharp. I am a case-in-point for the need of broadband
in Indian Country.
Today, my testimony addresses Congress' fiduciary
obligations to protect tribal resources, the documented
historical and cultural resources within the Oak Flat area, and
highlights the long-standing national opposition to this land
transfer.
Tribal Nations have a unique legal and political
relationship with the United States that is defined in the
United States Constitution, treaty, statutes, court decisions,
and executive orders. Through its acquisition of tribal lands,
the United States has formed a trust relationship with Tribal
Nations. Part of this trust obligation is to safeguard tribal
rights, lands, resources, cultural practices, and sacred sites.
For example, the American Indian Religious Freedom Act
states, ``It shall be the policy of the United States to
protect and preserve for American Indians their inherent right
of freedom to believe, express, exercise traditional religions,
including but not limited to access to sacred sites.''
Similarly, the National Historic Preservation Act states
that it is the policy of the Federal Government in cooperation
with other nations and in partnership with Indian tribes to
provide leadership in the preservation of the prehistoric and
historic resources of the United States.
As part of its trust responsibility and trust relationship,
the Federal Government has recognized the historic and cultural
uniqueness of Oak Flat. Beginning with President Eisenhower, in
1955, the Federal Government has recognized the importance of
Oak Flat and protected it from mining activities. More
recently, in 2016, Oak Flat was placed on the National Register
of Historic Places as a traditional cultural property.
Article 8 of the U.N. Declaration on the Rights of
Indigenous Peoples, which was endorsed by the United States in
2010, protects the right of Tribal Nations. Among other
enumerated rights protecting Indigenous cultural expressions,
Article 8 protects the right of Tribal Nations not to be
subject to forced destruction of their culture and specifically
requires state parties to provide mechanisms for the prevention
and redress.
Here Tribal Nations have been provided no avenues to
prevent the destruction of an irreplaceable sacred site. The
proposed transfer of Oak Flat would set a dangerous precedent
and violate international law and the Federal trust
responsibility to which the United States has charged itself
with moral obligations of the highest responsibility.
Lastly, there is a long-standing opposition to the
destruction of Oak Flat from Indian Country and Congress. Since
2009, NCAI has passed seven resolutions, specifically opposing
legislation that would transfer the Oak Flat area to Resolution
Copper. More recently, Resolution No. ABQ-19-062 expresses
support for repeal of Section 3003 of the 2015 NDAA due to its
circumvention of Federal laws that protect tribal sacred places
from destruction and harm.
Both the House and the Senate have previously rejected the
destruction of the sacred site. Since 2005, there have been 13
failed attempts to pass legislation that would transfer the Oak
Flat area to Resolution Copper. Only the late rider to a must-
pass piece of legislation succeeded.
I also want to draw your attention to the fact that while
Tribal Nations all across this country have relinquished
millions of acres of vast and pristine lands across this
country, we have never relinquished our spiritual connection to
these very sacred places. And the younger generations that are
coming up, who would go to Oak Flat for coming-of-age
ceremonies, for songs, for dance, for prayer, they too are
exercising a right that Tribal Nations have exercised for
millennia.
We urge support, and we thank you for holding this hearing
on H.R. 1884, a bill that would address an extraordinary threat
to the religious practices of American Indians and tribal
environmental, historic, and cultural resources. With that,
NCAI urges passage of H.R. 1884, because the land transfer of
Oak Flat violates the Federal trust responsibility.
[Speaking native language.]
[The prepared statement of Ms. Sharp follows:]
Prepared Statement of Fawn Sharp, President, National Congress of
American Indians
On behalf of the National Congress of American Indians (NCAI),
thank you for holding this hearing. My name is Fawn Sharp, and I serve
as President of the National Congress of American Indians (NCAI). I
look forward to working with members of this Subcommittee and other
Members of Congress to protect tribal sacred sites, which includes Oak
Flat.
Founded in 1944, NCAI is the oldest, largest, and most
representative national organization comprised of Tribal Nations and
their citizens. Tribal leaders created NCAI in response to termination
and assimilation policies that threatened the existence of American
Indian and Alaska Native Tribal Nations. Since then, NCAI has fought
tirelessly to preserve the trust, treaty, and sovereign rights of
Tribal Nations, advance the government-to-government relationship, and
remove historic structural impediments to tribal self-determination.
Core to NCAI's mission is a tireless commitment to securing tribal
traditional cultures and ways of life for present and future
generations.
Federal, state, and private lands are carved from the ancestral
territories of Tribal Nations. In spite of this significant land loss,
Tribal Nations and their citizens are place-based peoples that maintain
deep and ongoing religious, social, and cultural connections to their
sacred places within their ancestral territories. Sacred and cultural
landscapes are places for Tribal Nations and their citizens to pray,
hold ceremonies, and gather traditional and medicinal plants. They also
are places where tribal cultures, religions, and ways of life are
preserved, protected, and passed on to the next generation through oral
tradition and traditional acts of cultural and religious observance.
The United States government has a legal and moral obligation to
ensure tribal peoples have access to their ancestral lands and to
protect their traditional cultural territories in a manner that
respects and preserves their tribal cultural, historical, spiritual and
religious importance. Despite this established obligation, in a late
rider to the National Defense Authorization Act of 2015 (2015 NDAA),
Congress authorized a land exchange that transferred all right, title,
and interest of the United States in approximately 2,242 acres of
public lands in the Tonto National Forest, commonly known as Oak Flat,
to Resolution Copper, a subsidiary of private, foreign-owned mining
corporations. The purpose of the land transfer is to provide Resolution
Copper with the ability to construct and operate a block-cave copper
mine.
If the transfer were to take place, it would result in an
unparalleled destruction and degradation of tribal cultural places
within the Oak Flat Area. The project proposes to remove copper ore
through a technique called block-cave mining. This is a type of mining
that digs deep below the earth's surface to extract ore as the earth
above collapses from the void created. If permitted, Resolution Copper
would create one of the largest and deepest copper mines in the United
States.\1\ Resolution Copper proposes to extend mine workings
approximately 7,000 feet below the surface of the earth \2\ and remove
approximately 1.4 billion tons of ore to produce 40 billion pounds of
copper.\3\ The result of removing ore from below ground would cause a
subsidence of roughly 6,951 acres, or 11 square miles, approximately
1.8 miles wide and 800 to 1,115 feet deep.\4\
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\1\ See, Draft Environmental Impact Statement: Resolution Copper
Project and Land Exchange, at p. 3.
\2\ Id.
\3\ Id. Executive Summary, at ES-3; see also Draft Environmental
Impact Statement: Resolution Copper Project and Land Exchange, at p. 6.
\4\ Final Environmental Impact Statement: Resolution Copper Project
and Land Exchange, Volume 2, January 2021, at ES-3; supra note, 33, at
p. 26.
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This testimony addresses Congress's fiduciary obligation to protect
tribal resources; details the documented historical and cultural
resources within the Oak Flat Area; and highlights Indian Country's
united opposition to this land transfer, which will irrevocably destroy
the resources within this sacred area.
congress has a trust responsibility to protect tribal historical and
cultural resources
Tribal Nations are members of the original family of American
governments and have a unique legal and political relationship with the
United States as defined by the U.S. Constitution, treaties, statutes,
court decisions, and executive orders. The Supreme Court has long
recognized that Tribal Nations are distinct political entities that
pre-date the existence of the United States and that have retained
inherent sovereign authority over their lands and people. Through its
acquisition of tribal lands and resources, the United States formed a
fiduciary relationship with Tribal Nations whereby it recognized a
trust obligation to safeguard tribal rights, lands, and resources.\5\
In fulfillment of this trust relationship, the United States ``charged
itself with moral obligations of the highest responsibility and trust''
toward Tribal Nations.\6\
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\5\ See e.g., Johnson v. M'Intosh, 21 U.S. 543 (1823); Cherokee
Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S.
515 (1832) (collectively called the ``Marshall Trilogy'').
\6\ Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
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Congress expressly and continuously recognizes its fiduciary
responsibilities as reflected in the fact that ``[n]early every piece
of modern legislation dealing with Indian tribes contains a statement
reaffirming the trust relationship between tribes and the federal
government.'' \7\ An essential component of this fiduciary
responsibility is the preservation of sacred places, objects, and
cultural landscapes, as provided for in numerous statutes, executive
orders, departmental policies, and inter-departmental memoranda.\8\
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\7\ Cohen's Handbook of Federal Indian Law Sec. 5.04[3][a] (Nell
Jessup Newton ed., 2012).
\8\ See e.g., The Native American Religious Freedom Act of 1978, 42
U.S.C. Sec. 1996; ``Special Message on Indian Affairs, July 8, 1970,''
Public Papers of the Presidents of the United States: Richard Nixon,
1970, pp. 564-567, 576; National Historic Preservation Act, 16 U.S.C.
470 et seq.; Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001 et. seq.; Executive Order No. 13,007, ``Indian Sacred
Sites,'' (1996); Memorandum of Understanding Among: U.S. Department of
Defense, U.S. Department of the Interior, U.S. Department of
Agriculture, Department of Energy, Advisory Council on Historic
Preservation on Interagency Coordination and Collaboration for the
Protection of Indian Sacred Sites.
---------------------------------------------------------------------------
Since at least the early 20th Century, Congress has codified its
policy to protect tribal cultural sites \9\ and religious practices as
part of its trust responsibility to Tribal Nations.\10\ For example,
the American Indian Religious Freedom Act states, ``it shall be the
policy of the United States to protect and preserve for American
Indians their inherent right of freedom to believe, express, and
exercise . . . traditional religions . . . including, but not limited
to access to sites . . . and the freedom to worship through ceremonials
and traditional rites.'' \11\ Congress further recognized the federal
responsibility to protect historic and cultural sites as well as engage
in a process of formal consultation with Tribal Nations in the National
Historic Preservation Act (NHPA).
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\9\ Antiquities Act of 1906, 16 U.S.C. Sec. Sec. 431-433; see also,
Ronald F. Lee, The Antiquities Act of 1906 (1970).
\10\ The Native American Religious Freedom Act of 1978, 42 U.S.C.
Sec. 1996.
\11\ Id.
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The NHPA established formal procedures for identifying and
protecting tribal cultural sites and landscapes and engaging in
government-to-government consultation.\12\ Specifically, the NHPA
states that it is the policy of the federal government, ``in
cooperation with other nations and in partnership with . . . Indian
tribes . . . [to] provide leadership in the preservation of the
prehistoric and historic resources of the United States.'' \13\ Lastly,
Executive Order 13007 directs that ``in managing federal lands, each
executive branch agency with statutory or administrative responsibility
. . . shall, [to] the extent practicable . . . avoid adversely
affecting the physical integrity of such sacred sites.'' \14\
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\12\ 16 U.S.C. Sec. 470f; 36 C.F.R. Sec. 800.
\13\ 16 U.S.C. Sec. 470-1(2).
\14\ Executive Order No. 13,007, ``Indian Sacred Sites,'' (1996).
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The right of Tribal Nations to their culture practices and sacred
places is also recognized in the United Nations Declaration on the
Rights of Indigenous Peoples, which was endorsed by the United States
in 2010. Among other enumerated rights, Article 8 of the UN Declaration
protects the right of Tribal Nations not to be subject forced
destruction of their culture and specifically requires state parties to
provide mechanisms for prevention and redress for ``any action which
have the aim or effect of dispossessing them of their lands,
territories, or resources.'' \15\
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\15\ United Nations Declaration on the Rights of Indigenous
Peoples, Article 8 (adopted 2007).
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The proposed land transfer of the Oak Flat Area to Resolution
Copper, contravenes the UN Declaration on the Rights of Indigenous
Peoples, the federal trust responsibility, and Congress' longstanding
intent to protect and preserve tribal historical and cultural places
and items by placing them in imminent threat of destruction.
the federal government recognizes the historical and cultural
importance of oak flat
In 1955, President Dwight D. Eisenhower recognized the importance
of the Oak Flat Area when he signed Public Land Order 1229. This order
withdrew the Oak Flat Picnic and Camp Ground from future mining
activities. Later, in 1971, the Nixon Administration's Department of
the Interior again acknowledged the importance of this area when it
retained the mining ban.\16\ In March 2016, the Oak Flat area was
placed on the National Register of Historic Places (National Register)
as a Traditional Cultural Property (TCP).\17\
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\16\ Lydia Millet, ``Selling off Apache Holy Land,'' https://
www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html.
\17\ On January 15, 2021, the U.S. Forest Service (USFS) released
its six volume Final Environmental Impact Statement. See, ``Final
Environmental Impact Statement: Resolution Copper Project and Land
Exchange'' (https://www.resolutionmineeis.us/documents/final-eis). On
March 1, 2021, the USDA directed the USFS Service to withdraw the Final
Environmental Impact Statement. See, ``United States Department of
Agriculture, Tonto National Forest, Project Update: March 1, 2021.''
(https://www.resolutionmineeis.us/).
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A TCP is a type of property that is eligible for inclusion on the
National Register based on its associations with cultural practices,
traditions, beliefs, lifeways, arts, crafts, or social
institutions.\18\ Properties may be nominated to the National Register
by a State Historic Preservation Officer,\19\ Tribal Historic
Preservation Officer,\20\ or federal agencies.\21\ Importantly, TCPs
may also be identified as part of an agency's responsibilities to
prepare a draft environmental impact statement,\22\ determine
categorical exclusions,\23\ or prepare an environmental assessment
under the National Environmental Policy Act.\24\
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\18\ ``National Register of Historic Places--Traditional Cultural
Properties (TCPs): A Quick Guide for Preserving Native American
Cultural Resources,'' U.S. Department of the Interior, National Park
Service, American Indian Liaison Office.'' https://www.nps.gov/history/
TRIBES/Documents/TCP.pdf (last visited, Mar. 10, 2020).
\19\ 36 C.F.R. Sec. 60.6.
\20\ Id.
\21\ 36 C.F.R. Sec. 60.9.
\22\ 40 C.F.R. Sec. 1502.25.
\23\ 36 C.F.R. Sec. 800(b).
\24\ 36 C.F.R. Sec. 800.8(c).
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Once determined to be eligible for listing on the National
Register, a TCP is considered a ``historic property'' within the
meaning of the NHPA.\25\ As such, any agency undertakings that may
affect that property is required to engage in what is commonly known as
a Section 106 review.\26\ Section 106 of the NHPA directs federal
agencies to take into account the effect of their actions on properties
included in or eligible for inclusion in the National Register.\27\ The
regulations for section 106 clarify how agencies are to meet their
statutory responsibilities--from initiating the Section 106 process and
identifying historic properties to resolving adverse effects. Central
to the entire process is consultation with affected Tribal Nations or
their representatives, including Tribal Historic Preservation
Officers.\28\ Specifically, the NHPA requires the agency to consult
with Tribal Nations that attach religious and cultural significance to
historic properties that may be affected by an undertaking,\29\ assess
adverse effects,\30\ and continue tribal consultation to resolve any
adverse effects.\31\ If no resolution is reached, the Advisory Council
on Historic Preservation (ACHP) provides comments to the head of the
agency that must be taken into account as part of the final agency
decision.\32\
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\25\ 36 C.F.R. Sec. 800.16(l)(1) (Historic Properties are any
prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register of
Historic Places).
\26\ 36 C.F.R. Sec. 800.1(a).
\27\ 54 U.S.C. 306108.
\28\ 36 C.F.R. Sec. 800.2(a)(4).
\29\ 36 C.F.R. Sec. 800.2(c)(2)(ii).
\30\ 36 C.F.R. Sec. 800.5.
\31\ 36 C.F.R. Sec. 800.6.
\32\ 36 C.F.R. Sec. 800.7. On February 11, 2021, ACHP terminated
Section 106 consultation. On March 29, 2021, pursuant to 36 C.F.R.
Sec. 800.7(c), the ACHP sent Secretary of Agriculture Vilsack its final
comments regarding the proposed land exchange Advisory Council on
Historic Preservation. In that letter, the ACHP stated, ``the historic
significance of Oak Flat cannot be overstated and neither can the
enormity of the adverse effects that would result to this property for
the undertaking.'' ACHP letter to Secretary Vilsack, Resolution Copper
Mining Project and Land Exchange Tonto National Forest, Pinal County,
Arizona (March 29, 2021).
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The placement of the Oak Flat Area on the National Register is the
product of lengthy historical and archaeological analysis. It
demonstrates the federal government's explicit recognition of this
landscape's national historical and cultural significance and trust and
statutory obligations to preserve it. The proposed transfer of the Oak
Flat area, to Resolution Copper violates the original purpose of the
NHPA; that certain historic properties are so significant to our
national heritage that ``the preservation of this irreplaceable
heritage is in the public interest so that its vital legacy of
cultural, educational, aesthetic, inspirational, economic, and energy
benefits will be maintained and enriched for future generations of
Americans.'' \33\
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\33\ 16 U.S.C. Sec. 470.
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there is long-standing opposition to the destruction of oak flat
In addition to being listed on the National Register as a TCP, this
area is home to hundreds of additional sites eligible for inclusion in
the National Register that are culturally important to Tribal Nations
in the area.\34\ Degradation and destruction of these places and the
larger landscape is unacceptable. Since 2001, NCAI has passed over 60
resolutions that speak to the broad concerns of Tribal Nations and
their citizens regarding the need to protect cultural and historic
resources. Since 2009, NCAI membership, which is comprised of Tribal
Nations from across the country, has passed seven resolutions directly
opposing legislation that would transfer the Oak Flat area to
Resolution Copper.\35\ Most recently, NCAI passed Resolution #ABQ-19-
062, titled ``Support for the Protection of Oak Flat and Other Native
American Sacred Spaces from Harm.'' This resolution expresses NCAI's
support for repeal of Section 3003 of the 2015 NDAA due to its
circumvention of federal laws that protect tribal sacred places from
destruction and harm.
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\34\ Final Environmental Impact Statement: Resolution Copper
Project and Land Exchange, Volume 2, January 2021, at p. 778 (noting a
total of 644 archaeological sites in the area, of which 506 are
National Register eligible). See also, Draft Environmental Impact
Statement: Resolution Copper Project and Land Exchange, at p. 628,
(``Within the direct impacts analysis area, 721 archaeological sites
have been recorded . . . Of the 721 sites, 523 are recommended or
determined eligible for the NRHP [National Register of Historic
Places]. . ..'').
\35\ See, e.g., NCAI Resolutions #NGF-09-001, ``To Protect Oak Flat
and Apache Leap in Arizona from Mining''; #MKE-11-002, ``Opposition to
Legislation Proposing a Land Exchange in Southeastern Arizona for the
Purpose of Mining Operations''; #PDX-11-001, ``Opposition to H.R. 1904,
Southeast Arizona Land Exchange and Conservation Act of 2011, Which
Would Transfer Federal Land for a Massive Block Cave Mine that Would
Destroy Native American Sacred and Cultural Sites''; #SAC-12-006,
``Opposition to H.R. 1904, Southeast Arizona Land Exchange and
Conservation Act of 2011, Which Would Transfer Federal Land for a
Massive Block Cave Mine that Would Destroy Native American Sacred and
Cultural Sites''; #REN-13-019, ``In opposition to the Conveyance of
Federal Lands to Foreign Mining Interests with Sacred and Cultural
Significance to Tribes, Including H.R. 687 and S. 339''; and #MSP-15-
001, ``Support for Repeal of Section 3003 of the FY 15 National Defense
Authorization Act, the Southeast Arizona Land Exchange.''
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Section 3003 of the 2015 NDAA is an affront to the 65-year history
of federal administrative actions that acknowledge and actively protect
the deep historical and cultural significance of the Oak Flat Area. It
is also an abrogation of the federal trust responsibility and a
violation of the United States' obligations under the UN Declaration on
the Rights of Indigenous Peoples. Due to the problematic nature of how
the land transfer occurred, tribal opposition, and broad Congressional
opposition since 2005, there have been 13 failed attempts to pass
legislation that would transfer the Oak Flat area to Resolution
Copper.\36\ The late rider to the 2015 NDAA circumvented what had been
long-standing Congressional acknowledgement of its trust obligation to
Tribal Nations.
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\36\ Only H.R. 1904 passed the House during the 112th Congress.
(https://www.congress.gov/bill/112th-congress/house-bill/
1904?q=%7B%22search%22%3A%5B%22%5C%22oak+flat%5C%22%22
%5D%7D&s=3&r=17).
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If finalized, the Southeast Land Exchange would be unprecedented
not only in its destruction of tribal religious, cultural,
archeological, historical, and natural resources. It would be the first
time the United States actively sought to relinquish control of federal
property to a foreign entity that would knowingly destroy the sacred
places of peoples to whom it has a trust responsibility.
conclusion
On behalf of NCAI, I again thank you for the opportunity to submit
testimony and holding this legislative hearing on H.R. 1884. Prior to
the late addition of Section 3003 to the 2015 NDAA, Congress
consistently rejected legislation transferring the Oak Flat Area to
Resolution Copper. Given the clear cultural and environmental
destruction that this land transfer will cause, and given the untenable
impact this land transfer would have on Indian religious practices,
NCAI calls on Congress to affirm its trust obligation, pass H.R. 1884,
and permanently protect Oak Flat.
______
Questions Submitted for the Record to the Hon. Fawn Sharp, President,
National Congress of American Indians
Questions Submitted by Representative Grijalva
Question 1. You note in your testimony the long-standing opposition
to the Southeastern Arizona Land Exchange (by both NCAI and tribal
governments across the country) prior to its inclusion in the FY15 NDAA
as a last-minute rider, without having passed the House or Senate that
Congress. Can you talk about Congress' responsibility to tribes, as
well as Indian Country's response to the inclusion of Sec. 3003 in a
``must-pass'' bill with no opportunity to remove the provision by
amendment?
Answer. Federally recognized Tribal Nations have a unique legal and
political relationship with the United States. This relationship is
defined by the U.S. Constitution, executive orders, treaties, statutes,
court decisions, and Departmental policy. For example, the Supreme
Court determined that the United States assumed a fiduciary obligation
to Tribal Nations in exchange for the historic taking of the immense
lands that are home to tribal cultural places, and natural resources
necessary to establish the United States.\1\
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\1\ Cherokee Nation v. Georgia, 20 U.S. 1 (1831). See also, Indian
Tribal Justice Support Act of 1993, 25 U.S.C. Sec. Sec. 3601-31
(stating, ``The United States has a trust responsibility to each tribal
government that includes the protection of the sovereignty of each
tribal government''); United States v. Mitchell, 463 U.S. 206, 225
(1983), (reiterating ``the undisputed existence of a general trust
relationship between the United States and the Indian People''); United
States v. Navajo Nation, 537 U.S. 488 (2003).
---------------------------------------------------------------------------
Consequently, the United States acts as trustee for tribal rights
and interests. These responsibilities include protecting tribal
cultural heritage when developing and implementing federal policies or
actions. The National Historic Preservation Act, Executive Order 13175,
and the American Indian Religious Freedom Act, for example, reaffirm
the trust responsibility and require full and meaningful consultation
as a method for meeting this obligation. When Tribal Nations are not
given the opportunity to contribute to the development and
implementation of policies, including proposed federal legislation,
that have substantial and direct effects on their interests, the
Federal Government has not met its fiduciary obligation; an obligation
of the highest moral responsibility.\2\
---------------------------------------------------------------------------
\2\ Seminole Nation v. U.S., 316 U.S. 286 (1942).
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Since 2009, NCAI membership, which is a strong representation of
the many Nations, villages, communities, and individuals that
constitute the whole of Indian Country, has passed seven resolutions
directly opposing legislation that would transfer the Oak Flat area to
Resolution Copper.\3\ Most recently, NCAI passed Resolution #ABQ-19-
062, titled ``Support for the Protection of Oak Flat and Other Native
American Sacred Spaces from Harm.'' \4\ This resolution expresses
NCAI's support for the repeal of Section 3003 of the 2015 NDAA due to
its circumvention of federal laws that protect tribal sacred places
from destruction and harm.
---------------------------------------------------------------------------
\3\ See, NCAI Resolutions #NGF-09-001, ``To Protect Oak Flat and
Apache Leap in Arizona from Mining''; #MKE-11-002, ``Opposition to
Legislation Proposing a Land Exchange in Southeastern Arizona for the
Purpose of Mining Operations''; #PDX-11-001, ``Opposition to H.R. 1904,
Southeast Arizona Land Exchange and Conservation Act of 2011, Which
Would Transfer Federal Land for a Massive Block Cave Mine that Would
Destroy Native American Sacred and Cultural Sites''; #SAC-12-006,
``Opposition to H.R. 1904, Southeast Arizona Land Exchange and
Conservation Act of 2011, Which Would Transfer Federal Land for a
Massive Block Cave Mine that Would Destroy Native American Sacred and
Cultural Sites''; #REN-13-019, ``In opposition to the Conveyance of
Federal Lands to Foreign Mining Interests with Sacred and Cultural
Significance to Tribes, Including H.R. 687 and S. 339''; and #MSP-15-
001, ``Support for Repeal of Section 3003 of the FY 15 National Defense
Authorization Act, the Southeast Arizona Land Exchange.''
\4\ NCAI Resolution, #ABQ-19-062, ``Support for the Protection of
Oak Flat and Other Native American Sacred Spaces from Harm.''
---------------------------------------------------------------------------
Questions Submitted by Representative Gosar
Question 1. NCAI long supported the Sealaska land exchange bill
(Southeast Alaska Native Land Entitlement Finalization & Jobs
Protection Act), which was also part of the 2015 NDAA. It transferred
70,000 acres from the Tongass National Forest for timber harvesting
that would result in economic development from Timber harvesting. As
you know, the lands package in the 2015 NDAA is considered a major
public lands compromise after 5 years of complete inaction. It included
new parks, wilderness area and river protections, such as the
Blackstone River Valley National Historical Park in Rhode Island,
expanding the Alpine Lakes Wilderness in Washington state, turning the
Valles Caldera National Preserve in New Mexico into a national park.
All of these were considered ``late riders'' into the defense
authorization bill, all had been proposed for multiple congresses and
all had opposition. The Southeast Arizona Land Exchange was the only
one that required a NEPA analysis and additional consultation before
the land exchange could take place. Since this bill was included in the
NDAA, key aspects of which NCAI supported, with additional requirements
that were the result of compromise, why do you single out this bill as
having been added to the NDAA as a ``late night rider'' when in
reality, the entire lands package that was added into the NDAA was a
broad bipartisan late-night compromise agreement?
Answer. Federally recognized Tribal Nations have a unique legal and
political relationship with the United States. This relationship is
defined by the U.S. Constitution, executive orders, treaties, statutes,
court decisions, and Departmental policy. For example, Supreme Court
case law has long recognized that Tribal Nations are distinct political
entities that pre-date the existence of the United States and have
retained inherent sovereignty over their lands and people since time
immemorial.\5\ Furthermore, the Supreme Court determined that the
United States assumed a fiduciary obligation to Tribal Nations in
exchange for the historic taking of the immense lands that are home to
tribal cultural places, and natural resources necessary to establish
the United States.\6\
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\5\ Worcester v. Georgia, 31 U.S. 515 (1832).
\6\ Cherokee Nation v. Georgia, 20 U.S. 1 (1831). See also, Indian
Tribal Justice Support Act of 1993, 25 U.S.C. Sec. Sec. 3601-31
(stating, ``The United States has a trust responsibility to each tribal
government that includes the protection of the sovereignty of each
tribal government''); United States v. Mitchell, 463 U.S. 206, 225
(1983), (reiterating ``the undisputed existence of a general trust
relationship between the United States and the Indian People''); United
States v. Navajo Nation, 537 U.S. 488 (2003).
---------------------------------------------------------------------------
Consequently, the United States acts as a trustee for tribal rights
and interests. These responsibilities include protecting tribal
cultural heritage when developing and implementing federal policies or
actions. The National Historic Preservation Act, Executive Order 13175,
and the American Indian Religious Freedom Act, for example, reaffirm
the trust responsibility and require full and meaningful consultation
as a method for meeting this obligation.
Here, Tribal Nations were not provided the opportunity to
contribute to the development and implementation of policies, including
proposed federal legislation that will have substantial and direct
effects on their interests, as directed by Executive Order 13175. Nor
was Section 3003 of the Carl Levin and Howard P. ``Buck'' McKeon
National Defense Authorization Act for Fiscal Year 2015 supported by a
majority of members from either the House of Representatives or the
Senate.\7\ With respect to tribal participation, the Federal Government
has not met its fiduciary obligation; an obligation of the highest
moral responsibility.\8\
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\7\ The Save Oak Flat Act, H.R. 1884 Sec. 2, para. 5, as
introduced.
\8\ Seminole Nation v. U.S., 316 U.S. 286, 296-97 (1942).
Question 2. Were you aware that the following studies were
conducted for the Resolution Land Exchange: an ethnographic/
ethnohistoric study, 100% class III cultural resources survey, Native
Pant survey and tribal perspectives surveys--tribal members worked on
the ground alongside experts for job training and employment to cover
over 60,000 acres with millions in employment benefits spanning 3
years? Yes or no? Why does NCAI not support these requirements as part
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of the land exchanges you have pushed Congress to approve?
Answer. Since 2001, NCAI has passed over 60 resolutions that speak
to the broad concerns of Tribal Nations and their citizens regarding
the need to protect cultural and holy places, ancestral remains, and
historic resources. For example, in 2008, NCAI passed Resolution #PHX-
08-069c, entitled, ``NCAI Policy Statement on Sacred Places.'' This
Resolution calls for, among other things, the Federal Government to
establish a policy requiring cultural surveys prior to any transfer or
issuance of a federal land-use permit; that the cultural survey be
undertaken in consultation with Tribal Nations as part of the initial
stages of any federally mandated identification process; and that the
policy affirm the inherent rights of Tribal Nations and their citizens
to access to and protect their historic, cultural, holy and sacred
places; cultural patrimony; and ancestors.\9\ More recently, in 2017,
NCAI passed Resolution #MKE-17-008, ``To Support Moratorium on Leasing
and Permitting In Greater Chaco Region.'' Among other things, this
Resolution calls for an ethnographic study of cultural landscapes
within the Greater Chaco Region prior to the issuance of additional oil
and gas leases.\10\
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\9\ NCAI Resolution #PHX-08-069c: ``NCAI Policy Statement on Sacred
Places.''
\10\ NCAI Resolution #MKE-17-008: ``To Support Moratorium on
Leading and Permitting in Greater Chaco Region.''
---------------------------------------------------------------------------
NCAI has long supported the completion of comprehensive cultural
surveys of U.S. lands prior to any federal action that may affect their
cultural and historic places and that these surveys be done in close
and meaningful consultation with Tribal Nations.
Question 3. Chairwoman Sharp, you mention in your testimony that
the Oak Flat Area was placed on the National Register of Historic
Places in 2016, but this nomination and process seems to have been in
direct response of the passage of the Southeast Arizona Land Exchange
bill. The nomination as TCP has a very odd shape as it follows sharp
angular boundaries that directly align to the land exchange boundary
and unpatented mining claims held by Resolution Copper, yet
specifically excludes and carves out private land holdings of
Resolution Copper in the middle and State Land within and surrounding
the nomination. Why is the nomination area such a strange shape--
historically did Native American Tribes follow sharp, odd, shaped
boundaries to define sacred areas within a common landscape?
Answer. A ``Historic Property,'' as defined in the National
Historic Protection Act,\11\ may be nominated to the National Register
of Historic Places by a Tribal Historic Preservation Officer,\12\ State
Historic Preservation Officer,\13\ or a Federal Preservation
Officer.\14\ The National Congress of American Indians does not have
the statutory authority to function as a Tribal Historic Preservation
Office, State Historic Preservation Office, or a Federal Preservation
Office. NCAI supports the inherent right of Tribal Nations to define
what is sacred to them, protect the confidentiality of information and
traditional knowledge used to make that decision, and manage their
traditional territories.\15\
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\11\ 36 C.F.R. Sec. 800.16(l)(1).
\12\ 54 U.S.C. Sec. 302702; 36 C.F.R. Sec. 60.6.
\13\ 36 C.F.R. Sec. 60.6.
\14\ 36 C.F.R. Sec. 60.9.
\15\ See e.g., NCAI Resolution #SD-02-027, ``Essential Elements of
Public Policy to Protect Native Sacred Places,'' NCAI Resolution #PDX-
20-070, ``NCAI Initiative on Sacred Places and Cultural Rights Laws and
Developing Legislation.''
Question 4. Chairwoman Sharp, you mentioned that the U.S.
Government has ``a legal and moral obligation to ensure tribal peoples
have access to their ancestral lands to practice traditional religious
freedoms, you even site religious freedom. In a February 2021 press
release, Resolution Copper asserted once again that they ``will
maintain public access to areas within Oak Flat including the
campground and recreational trails and climbing, after completion of
the land exchange.'' This was also mandated in the land exchange bill.
The land exchange bill also mandated a number changes per testimony by
Wendsler Nosie and Chairman Rambler including the permanent protection
of Apache Leap through the creation of a special management area, the
completion of a final EIS prior to the exchange of title and enhanced
consultation provisions. The USFS has over 550 documented consultations
over the last decade (FEIS Appendix S). Based on this, how is the
---------------------------------------------------------------------------
government not meeting its legal and moral obligations?
Answer. Tribal Nations have a unique legal and political
relationship with the United States as defined by the U.S.
Constitution, treaties, statutes, court decisions, and executive
orders. In fulfillment of this trust relationship, the United States
``charged itself with moral obligations of the highest responsibility
and trust'' toward Tribal Nations.\16\ Congress expressly and
continuously recognizes its fiduciary responsibilities as reflected in
the fact that ``[n]early every piece of modern legislation dealing with
Indian tribes contains a statement reaffirming the trust relationship
between tribes and the federal government.'' \17\ Additionally, the
American Indian Religious Freedom Act states, ``it shall be the policy
of the United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise . . .
traditional religions . . . including, but not limited to access to
sites . . . and the freedom to worship through ceremonials and
traditional rites.'' \18\ Similarly, right of Tribal Nations to their
culture practices and sacred places is also recognized in the United
Nations Declaration on the Rights of Indigenous Peoples. Specifically,
Article 19 requires that ``States shall consult and cooperate in good
faith with the indigenous peoples concerned through their own
representative institutions in order to obtain their free, prior and
informed consent before adopting and implementing legislative or
administrative measures that may affect them.'' \19\ The voices of
Tribal Nations must not only be heard, they must be heeded.
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\16\ Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942).
\17\ Cohen's Handbook of Federal Indian Law Sec. 5.04[3][a] (Nell
Jessup Newton ed., 2012).
\18\ Id.
\19\ United Nations Declaration on the Rights of Indigenous
Peoples, A/RES/61/259 art. XIX (Oct. 2, 2007).
Question 5. Chairwoman Sharp, you also refer to obligations under
Section 106, specifically that consultation with affected Tribal
Nations or their representatives is essential. Most of the other tribes
meaningfully participated in good faith, in hundreds of consultations
and have considerably influenced activities resulting in the complete
relocation of facilities off National Forest System Lands, and the
protection of specific TCPs, avoidance of medicinal plants, seeps,
springs and ancestral sites, the implementation of a tribal monitoring
program that has resulted in the employment of over 30 tribal members,
and the creation of a program to protect and restore Emory oak groves.
Additionally, compensatory funds for Native American tribes were
developed in response to tribal consultation efforts between the
affected tribes and the Tonto National Forest. The purpose of the funds
is to support the exiting tribal monitoring program, the emory oak
collaborative restoration initiative, tribal youth programs, tribal
higher education programs, and a tribal cultural preservation program.
The San Carlos Apache Tribe did not participate in this dialogue, but
other Tribes did. Was their time wasted? Does their input and voice not
---------------------------------------------------------------------------
matter?
Answer. In light of Appendix S of the FEIS, which charts the tribal
consultation events for this project, and the extensive documentation
of the San Carlos Apache Tribe's participation in consultation, it is
unclear as to what is being asked.
Question 6. A number of San Carlos Apache members also depend on
Resolution Copper for employment, directly or through local
contractors--don't they matter?
Answer. Through treaties, statutes, executive orders, and legal
decisions, the United States has undertaken a trust obligation in
exchange for hundreds of millions of acres of homelands. Yet the
Federal Government has not sufficiently met these obligations to
provide essential services, programs and benefits to Native people.
Tribal Nations invest in and develop economies within their local and
regional communities in order to create infrastructure and
opportunities that self-sustain the general welfare of their citizens
and fill gaps left by the Federal Government. Tribal Nations face
unique challenges in attracting and leveraging private sector
investment, creating jobs, and increasing economic activity due to
unique jurisdictional and property law complexities of tribal lands. At
the same time, Native small business owners and entrepreneurs lack
support and incentives to invest in businesses on tribal lands, and
struggle to find opportunities to gain expertise, business acumen, and
advantageous partnerships to help develop economies within their
communities. NCAI is committed to supporting the efforts of Tribal
Nations to develop their economies and support their citizens.\20\
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\20\ See e.g., NCAI Resolution #MSP-15-045, ``Calling on Congress
to Create Tribal Empowerment Zones.''; NCAI Resolution #MSP-15-005,
``Calling on the President to Issue a New Executive Order on Native
Nations.''
Question 7. After a decade of opposition from the Carlos Apache
Tribe to a new open pit mine and land exchange a few miles from the
eastern border of the San Carlos Apache Reservation (Dos Pobres/San
Juan), the San Carlos Apache Tribe and Freeport McMoran found a path
forward through sales of San Carlos Apache water from the Black River
and job/skills training. A recent expansion of that mine (Lone Star
EIS) with a new open pit mine, waste rock dumps and a new leach
facility was completed in less than 3 years with no opposition from the
San Carlos Apache Tribe (or ITAA or other mine opposition groups). We
see this as a positive example where mines and Tribes can work together
for mutual benefit--Chairwoman Sharpe would you be willing to help
bring the two sides together to initiate a mutually beneficial dialogue
---------------------------------------------------------------------------
on how to shape this mine?
Answer. The duty to consult and resolve disputes is a federal
responsibility. For example, the NHPA states that federal agencies
``shall consult with any Indian tribe and Native Hawaiian organization
that attaches religious or cultural significance'' to properties that
might be affected by a federal undertaking.\21\ The NHPA also
contemplates the challenges of consultation and provides a process for
assessing, resolving, and failing to resolve adverse effects on
``historic properties.'' \22\ As part of this process, in a letter
dated February 11, 2021, and pursuant to its authority under 36 C.F.R.
Sec. 800.7(a)(4), the Advisory Council on Historic Preservation
terminated the consultation process because it determined additional
consultation would not be productive. In a letter dated March 29, 2021,
the Advisory Council on Historic Preservation communicated its final
comments regarding the Resolution Copper mine to the Secretary of
Agriculture. Pursuant to 36 C.F.R. 800.7(c)(4), the Secretary of
Agriculture has a non-delegable responsibility to respond.
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\21\ 54 U.S.C. Sec. 307706(b) (emphasis added).
\22\ 36 C.F.R. Sec. 800.5; 36 C.F.R. Sec. 800.6; 36 C.F.R.
Sec. 800.7.
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NCAI supports the inherent right of Tribal Nations to define what
is sacred to them, protect the confidentiality of information and
traditional knowledge used to make that decision, and manage their
traditional territories.\23\ Here, a number of Tribal Nations oppose
the citing of the Resolution Copper mine in the Oak Flat area and have
made it clear that they did not consent to Section 3003 of the 2015
NDAA.\24\ NCAI recognizes and supports the sovereign decisions and
position of these Tribal Nations.
---------------------------------------------------------------------------
\23\ See e.g., NCAI Resolution #SD-02-027, ``Essential Elements of
Public Policy to Protect Native Sacred Places,'' NCAI Resolution #PDX-
20-070, ``NCAI Initiative on Sacred Places and Cultural Rights Laws and
Developing Legislation.''
\24\ NCAI Resolution #MOH-17-001, ``A Call on Congress to Enact
Legislation that Will Ensure Uniform, Effective and Meaningful
Consultation with Indian Nations and Tribes whenever Federal Activities
have Tribal Impacts.''
Question 8. In 2017, NCAI Resolution MOH-17-053 `Continued Support
for the Paris Climate Agreement and Action to Address Climate Change'
was passed resolving that NCAI will continue to support and advocate
for initiatives intended to reduce greenhouse gas emissions and promote
climate resiliency including increased investment and use of renewable
energy resources. In 2021, NCAI passed Resolution #PDX-20-30
`Development of a 2021 Tribal Climate Crisis Action Plan' finding that
``federal action must be taken to support the efforts of [American
Indians and Alaska Natives] to adapt to climate change impacts and to
reduce their carbon footprints through a range of mitigation
approaches, including renewable energy development and energy
efficiency.'' Given that Resolution Copper will produce copper and
tellurium for renewable energy production here in the United States,
how does NCAI reconcile the resolutions supporting clean energy and the
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resolutions opposing the development of the Resolution Copper Project?
Answer. NCAI supports the sovereign right of tribal governments to
determine how they manage their own resources. For some Tribal Nations,
there is a complicated history that makes traditional energy resources
the best--and in some cases only--way to generate the funds to provide
governmental services to their citizens. In other cases, Tribal Nations
have made a conscious, and sometimes economically disadvantageous
choice to forego extracting valuable mineral resources on their lands.
NCAI recognizes that governance is difficult; that ultimately, Tribal
Nations have the sovereign right to manage their own resources. As
tribal leaders often and poignantly state, we have lived here forever,
we know how to manage our lands.
______
Ms. Leger Fernandez. Thank you, President Sharp.
The Chair now recognizes Dr. James Wells, the Chief
Operating Officer at L. Everett & Associates.
STATEMENT OF DR. JAMES WELLS, PHD, CHIEF OPERATING OFFICER, L.
EVERETT & ASSOCIATES, SANTA BARBARA, CALIFORNIA
Dr. Wells. Thank you for inviting me to testify today on
H.R. 1884, the Save Oak Flat Act. My name is Jim Wells. I have
been a practicing environmental geologist for more than 30
years. For the last 7 years, I have advised the San Carlos
Apache Tribe on environmental and water resource matters. And
at the invitation of the Forest Service, I served on the
groundwater working groups advising Tonto National Forest on
the draft and final EIS for the Resolution Copper Mine, which
is a joint venture of foreign mining giants, Rio Tinto and BHP.
I urge Congress to pass this bill because of the
devastating and irreparable cultural and environmental impacts
that would ensue if this mine were developed. I am not anti-
mining. I have worked as a mineral exploration geologist. We
need copper and other metals. However, we do not need to green
light every mining project if the cultural and environmental
costs are too high, as they are for this project.
This mine will consume enough water to supply a city of
140,000 people every year for 50 years. This represents a
massive new water demand in a region already experiencing water
shortage. The final EIS says this mine will use at least 250
billion gallons of water. That is a lot of water. To provide a
visual, this mine would need a tank the size of a football
field 147 miles high to hold all that water.
Most of this water will be pumped from the East Salt River
Valley. The proposed wellfield is in the Phoenix Active
Management Area, or AMA, and is just north of the Pinal AMA,
where there is already an 8.1 million acre-foot groundwater
shortfall. Tens of thousands of people in Pinal County rely on
groundwater for their water supplies, and already wells are
drying up. There is really just not enough groundwater to go
around in this part of Arizona.
EIS computer modeling acknowledged that cumulative effects
of Resolution's pumping along with other known demands will
drop groundwater levels about 450 feet. This outcome is
contrary to Arizona's long-stated goal to achieve safe yield in
this groundwater basin and avoid depleting the aquifer.
There is no serious analysis in the EIS of mitigation
measures for the impact on the state's water resources. The EIS
claims that Resolution's water use adheres to Arizona's norms
and values, but depleting groundwater aquifers is the exact
opposite of Arizona's values.
Even the Arizona State Land Department objected that
Resolution's groundwater withdrawals would cause a loss of
development potential for more than 3,000 acres of state trust
land in the Superstition Vistas Planning Area for a loss of
$536 million. After Resolution takes all the groundwater it
needs, there is simply less water for other users.
Now, Resolution chooses to employ block cave mining because
that is the cheapest way to mine this deep, low-grade ore body
causing a 1.8 mile wide crater 1,000 feet deep. The copper is
7,000 feet below Oak Flat, but Resolution would destroy Oak
Flat anyway. The EIS acknowledges that sacred perennial springs
will be eradicated, and at least 18 different groundwater
dependent ecosystems will be impacted.
So, in summary, this mine would have profound and
irreversible impacts on the citizens of Arizona and the
environment. For these reasons, I urge the Committee to advance
the Save Oak Flat Act to stop this mine from going forward.
Thank you.
[The prepared statement of Dr. Wells follows:]
Prepared Statement of James Wells, PhD, Environmental Geologist, L.
Everett & Associates, Environmental Consultants
I would like to thank Chair Grijalva, Chair Fernandez, and members
of the House Subcommittee for Indigenous Peoples of the United States
for inviting me to testify at this hearing about the Save Oak Flat Act,
H.R. 1884. I urge Members of Congress to support this legislation
because of the profound and irreparable cultural and environmental
impacts that would ensue if the proposed Resolution Copper Mine were
allowed to be developed. I also urge USDA to fully withdraw the current
EIS for this project so a more complete analysis of alternatives can be
performed. I am not anti-mining. However, copper is not a particularly
rare commodity. We do not need to green-light every mining project if
the cultural and environmental costs are too high, as they are for this
project.
This is a project that could not meet the rather low bar required
for mining on federal lands. For 150 years, the United States has
promoted mining on federal lands. The 1872 Mining Law was written to
encourage development of the West. It contains substantial incentives
for private companies to mine on federal lands, including charging no
royalties for extracting these public resources and generally defining
hardrock mining as the ``highest and best use'' of public lands
regardless of competing land uses such as recreation, logging, hunting,
grazing, or cultural uses. Special legislative action was needed to
make this project possible in the form of Section 3003 of the Carl
Levin and Howard P. ``Buck'' McKeon National Defense Authorization Act
for Fiscal Year 2015 (NDAA). The Save Oak Flat Act would reverse
special treatment for the international mining companies, Rio Tinto and
BHP through their joint venture limited liability company, Resolution
Copper, and restore protections for Oak Flat that had been in place for
over 65 years.
As technologies advance, we ask auto companies to build cleaner
cars. We ask power plants to reduce emissions. Shouldn't we be asking
the same of mining? A mine like Resolution will have greater impacts on
the environment compared to most copper mines in the U.S. due to the
choice of mining methods. As shown on Figure 1, in addition to tailings
(which are inevitable regardless of mining method employed), Resolution
is insisting on destroying a vastly greater amount of Arizona landscape
(including Oak Flat). This huge volume of rock and its aquifer would be
disturbed and a large swath of landscape would be destroyed, not
because this material has any value to Resolution, but rather because
it is more convenient and more profitable to use block caving.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsFigure 1. Relative volumes of copper, tailings and material
above are deposit that would be disturbed due to block caving at the
Resolution Mine. US Capitol is shown for scale.
background and qualifications
I am a Registered Geologist and I have been a practicing
environmental geologist for nearly 30 years. My Bachelor's Degree is
from Dartmouth College and my Masters' and PhD degrees are from the
University of Washington in Seattle, all in Geological Sciences. For
the last 7 years, I have advised the San Carlos Apache Tribe on
environmental and water resource matters related to the proposed
Resolution Copper Mine, as well as other matters.
At the invitation of the US Forest Service, I served on the
Groundwater Modeling Workgroup which advised Tonto National Forest on
its preparation of the Draft Environmental Impact Statement (DEIS),
using complex groundwater modeling methods to predict water and
ecosystem impacts from the proposed mine. The working group consisted
of Forest Service and Resolution Copper personnel, as well as
professionals from stakeholder agencies such as US Environmental
Protection Agency, US Geological Survey, Arizona Game and Fish, and
Arizona Department of Environmental Quality. Also, at the invitation of
Tonto National Forest, I was also a member of the Resolution Copper
Mine Water Resources Working Group which advised the Forest Service on
its efforts to respond to public comments on the DEIS. For context, of
roughly 30,000 comments submitted to the Forest Service on the DEIS
during the public comment period, approximately 20% of the substantive
comments related to water resources or water quality, demonstrating the
public's deep concern about this issue.
The EIS prepared by Tonto National Forest identifies a number of
profound environmental impacts from this project that cannot be
mitigated. The scale of this project is hard to fathom and
unfortunately the Forest Service fell short of its obligation under
NEPA to take a hard look and ensure scientific integrity in its
evaluation of these environmental impacts.
mine would create massive new water demand in desert region already
experiencing water shortages
The mine will consume enough water to supply a city of 140,000
people every year for 50 years. This is a vast new water demand for an
area of the southwest that is already experiencing water shortages.
Resolution's water use could be much higher than they are disclosing.
The current estimate (accepted at face value by the Forest Service)
promises that this mine will use about 1/3 of the average water (per
ton of ore) as existing copper mines in the United States. This highly
optimistic estimate is largely based on Resolution's assurances that it
can implement significant and unproven water-saving procedures in its
ore processing and tailings handling operation.
Even if one accepts Resolution's highly optimistic estimate for
water usage, the mine will use about 775,000 acre feet of water over
the life of the mine,\1\ of which approximately 70% will be pumped from
a large network of new extraction wells in the East Salt River Valley.
775,000 acre feet equals 250 billion gallons of water. It is hard to
visualize the immensity of this amount of water. A football field
covers about one acre, so if the water Resolution plans to use was
stored in a tank the dimensions of a football field, such a tank would
need to be 147 miles high to accommodate all the water. The Salt River
upstream of Phoenix is about 100 feet wide and 5 feet deep. For a river
the size of the Salt River to hold the amount of water required by this
mine, it would need to be more than 12,000 miles long, extending
halfway around the world.
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\1\ FEIS, Appendix H, Table H-3. This is the volume of water
estimated to be needed over the life of the mine for TSF Alternative 6,
Skunk Camp, which is the Forest Service's preferred alternative.
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Arizona does not have enough water to accommodate this large new
demand. Resolution's proposed Desert Wellfield is in the Phoenix Active
Management Area (AMA) and is just north of the Pinal AMA. Active
Management Areas were created by the state to better manage aquifers in
parts of the state that were experiencing depleted groundwater
resources. In an October 2019 study of the Pinal AMA, Arizona
Department of Water Resources (ADWR) identified a future unmet demand
of 8.1 million acre-feet.\2\ Tens of thousands of people in Pinal
County rely on groundwater for their water supply and already, private
wells are drying up.\3\
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\2\ Arizona Department of Water Resources, 2019 Pinal Model and
100-Year Assured Water Supply Projection Technical Memorandum.
\3\ ABC15 News, Private Wells Running Dry in Pinal County, Oct. 24,
2019; https://www.abc15.com/news/region-central-southern-az/private-
wells-running-dry-in-pinal-county.
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There is simply not enough water to go around. In the Phoenix AMA,
there are many municipalities and commercial operations that rely on
groundwater from the very same basin that Resolution will be pumping
from, including Phoenix, Scottsdale, Tempe, Mesa, Gilbert, Chandler,
Apache Junction and other towns. Arizona's goal for the Phoenix AMA is
to achieve safe yield by 2025. For a groundwater basin, ``safe yield''
means achieving a long-term balance between the annual amount of
groundwater withdrawn and the annual amount of recharge, thus avoiding
depletion of the aquifer. Even without Resolution's pumping, the
Phoenix AMA has not achieved safe yield and cannot meet the 2025 goal.
In its latest study, the Arizona Department of Water Resources
predicted demand to exceed supply into the foreseeable future for this
basin and also predicted irreversible loss of aquifer capacity due to
overpumping.\4\
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\4\ Arizona Department of Water Resources, 2010, Modeling Report
#22, A Salt River Valley Groundwater Flow Model Application. 100-Year
Predictive Scenarios Used for the Determination of Physical
Availability in the Phoenix Active Management Area.
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The Arizona State Land Department has determined that Resolution's
groundwater withdrawals in the East Salt River Valley would cause a
loss development potential for 3,440 acres of State Trust Land in the
Superstition Vistas Planning Area, representing a ``minimum potential
loss to the Trust of at least $536,640,000 in revenue.'' \5\ The reason
for these profound losses is that other entities wishing to use
groundwater in the Phoenix AMA must demonstrate a 100-year Assured
Water Supply in order to secure project approval. After Resolution
takes all the groundwater it needs, there is less groundwater in
storage for other potential users. By green-lighting this mine, the
people of Arizona are embarking on an uncontrolled experiment on social
priorities pitting the state's agricultural, municipal and tribal
interests against those of a multinational mining company and the
mining company is winning.
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\5\ Arizona State Land Department, November 7, 2019 Letter to Neil
Bosworth, Tonto National Forest. (Reproduced on p. R-43 of FEIS).
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rush to finalize the environmental impact statement
The FEIS was published on January 15, 2021, but Tonto National
Forest later withdrew it on a temporary basis on March 1, 2021. The
Forest Service chose to focus the EIS on evaluating different locations
for the waste tailings. Considering this focus, it was surprising that
the DEIS was issued without a competent evaluation of the geotechnical
suitability and water quality impacts of Skunk Camp, the preferred
Tailings Storage Facility (TSF) site. To make up for these omissions,
Resolution embarked on substantial field investigations and computer
modeling efforts, generating a large body of new information after the
Forest Service issued the DEIS. This new information consisted of at
least a dozen new studies and reports totaling thousands of pages that
are relevant to environmental concerns. In particular, there is
substantial new groundwater modeling work to evaluate the cumulative
impacts to groundwater resources in the East Salt River Valley, site of
the proposed Desert Wellfield where much of the water required by the
mine would be pumped. Additionally, voluminous new studies of water
quality impacts from the Skunk Camp TSF and a brand new assessment of
possible surface water discharges from the mine operations under
Resolution's AZDEPES permit have been prepared. All of this information
was developed after publication of the DEIS, was not subject to public
review or comment, and was not adequately analyzed by Tonto National
Forest to determine whether this new information could impact the
preferred alternatives or mitigation measures set forth by Tonto
National Forest in its FEIS.
Computer modeling in the EIS acknowledges that cumulative effects
of Resolution's pumping along with other known demands in the East Salt
River Valley are likely to result in a drop in groundwater levels of
approximately 450 feet in parts of the Phoenix AMA. The computer
modeling did not include any of the water demands resulting from future
development in the Superstition Vistas Planning Area. This outcome
would be profoundly contrary to the long-stated goal of the state to
achieve safe yield in this groundwater basin. There is no serious
analysis in the FEIS of potential mitigation measures from this impact
on the state's water resources. Instead, the Forest Service noted that
the state was likely required to grant Resolution a permit to withdraw
groundwater for mineral extraction, as this is a non-discretionary
permit under Arizona law provided certain conditions are met.\6\ The
EIS further stated that ``By definition, Resolution Copper's legally
permitted use of water adheres to the norms and values placed on water
by the State of Arizona.'' This is hardly the ``hard look'' at
environmental impacts that is required under NEPA. Arguably, it is not
adhering to the values of the State of Arizona to greenlight a project
that is guaranteed to deplete scarce groundwater resources in the East
Salt River Valley.
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\6\ FEIS, p. 971.
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In addition to the failure to analyze cumulative impacts to water
resources, Section 3003 of the FY15 NDAA created special requirements
for the environmental review of this project. Specifically, it called
for a single environmental impact statement and it required the USDA
Secretary to engage in a collaborative process with affected Indian
tribes to ``(i) address the concerns of the affected Indian tribes and
(ii) minimize the adverse effects on the affected Indian tribes
resulting from mining and related activities.'' \7\ Considering that
the end result of this process would be the ``eradication'' of sacred
springs and destruction of Oak Flat, it is legitimate to say that this
requirement of Section 3003 has not been met. To fully comply with NEPA
and the special requirements imposed in Section 3003 of the NDAA, the
current EIS for this project needs to be withdrawn and the EIS process
needs to start anew.
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\7\ NDAA, Section 3003, (c)(3)(A) and (c)(3)(B).
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Without the Save Oak Flat Act, the Land Exchange will take place
and Resolution Mine will be built. Some of the irreversible impacts
from this project are summarized below.
cumulative impacts on water resources
Resolution Copper Mine will obviously require a vast amount of
water in a desert region that is already experiencing water shortages.
Arizona water law grants exceptional leeway to mines, which are
essentially unregulated water users. As such, Resolution Copper may be
entitled to develop a virtually unlimited number of wells and pump an
unlimited amount of water from the East Salt River Valley. The Forest
Service's preferred alternative TSF locating the tailings dump at Skunk
Camp calls for pumping about 775,000 acre-feet of water over the life
of the mine \8\ (of which 540,000 acre-feet would be from the Desert
Wellfield and the remainder would mostly be supplied from dewatering of
the mine site itself). The water proposed for withdrawal from the
Desert Wellfield is a substantial amount of pumping, representing about
6.7 percent of the total available groundwater in the East Salt River
valley subbasin.\9\ The EIS analysis of past, present and reasonably
foreseeable future regional water impacts is inadequate. In some ways,
disclosures in the FEIS are even less informative than the DEIS. In the
DEIS, the Forest Service acknowledged that ``groundwater demand is
substantial and growing'' and ``total demand on the groundwater
resources in the East Salt River Valley is substantial and could be
greater than the estimated amount of physically available groundwater''
(DEIS, p. 342). These sober assessments inexplicably do not appear in
the FEIS.
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\8\ FEIS, p. 48.
\9\ FEIS, p. 418.
As shown on Figure 2, the Forest Service's own research shows that
Arizona has experienced moisture deficits even when averaged over the
last 100 years. Colorado and other parts of the desert Southwest remain
in an almost perpetual drought. A 2017 Report to Congress noted that
the Colorado River, source of critical water supplies to Arizona via
the Central Arizona Project or ``CAP'', has experienced lower-than-
normal flows for the past 16 years, with some of the lowest annual
flows in 900 years. The Report to Congress also noted that recent
studies on the effects of climate change suggest that ``a transition to
a more arid average climate in the American West'' may be under way.
Likely consequences of climate change include higher temperatures in
the West, higher evapotranspiration, reduced precipitation, and
decreased spring runoff.\10\
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\10\ Congressional Research Office, November 9, 2017, Drought in
the United States: Causes and Current Understanding, pp. 14-15.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsFigure 2. USDA 100-year moisture index, showing much of Arizona
has a moisture deficit, even when averaged over 100 years. Source,
USDA, 2012, Forest Health Monitoring: National Status, Trends and
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Analysis.
The FEIS fails to evaluate ``reasonably foreseeable future''
Colorado River shortages and cuts, as well as the events that will be
triggered under the Drought Contingency Plan once the inevitable
shortages occur. It also fails to look at the project's impact on
regional water resources when combined with these shortages.
regional groundwater impacts
Resolution's own assessment acknowledges that groundwater will be
depleted by at least 10 feet (and in some places, more than 1,000 feet)
over an area covering about 300 square miles. As shown on Figure 3,
this is a consequence of dewatering at the mine site as well as massive
amounts of pumping that will occur in the East Salt River Valley, about
15 miles west of the mine. No one knows how long it will take for the
aquifers to recover after the mine closes, but Resolution once
estimated that it would take about 1,000 years. According to the Forest
Service, ``Analysis of the economic value of the water used by
Resolution Copper, the other beneficial uses to which water could be
put, or extrapolation of economic harm to other entities due to
Resolution Copper's legally permitted use of water, is outside the
scope of analysis of this EIS.'' \11\
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\11\ FEIS, p. 813.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsFigure 3. Map showing predicted groundwater drawdown from mine
dewatering and from the Desert Wellfield. Sources: Base Map: DEIS,
Figure ES-2; Desert Wellfield drawdown contours redrawn from DEIS,
Figure 3.7.1-2 (Desert Wellfield modeling analysis area and maximum
modeled pumping impacts); Mine model contours redrawn from WSP, October
31, 2018, Memo: Resolution Copper Groundwater Flow Model--Predictive
Results, Figure 5 (Regional Groundwater Model Predicted Drawdown-
Proposed Action Post Closure (Year 200); Faults are redrawn from WSP,
February 2019, Resolution Copper Groundwater Flow Report, Figure 2.1
---------------------------------------------------------------------------
(Regional Geology Map).
land subsidence in east salt river valley due to groundwater pumping
The Forest Service did not conduct an analysis in the DEIS of land
subsidence resulting from groundwater withdrawal, claiming such
analysis was not feasible. However, in the FEIS, there is an analysis
of land subsidence, noting that ``drawdowns associated with the Desert
Wellfield likely would result in subsidence of roughly 24 to 52
inches.'' \12\ This information was not disclosed in the DEIS and was
not subject to public review and comment. This newly quantified
environmental impact is important because land subsidence due to
groundwater pumping causes a permanent reduction in the storage
capacity of an aquifer. This means that even after the drawdown
recovers from Resolution's pumping, that portion of the aquifer in the
East Salt River Valley will never hold as much groundwater again, thus
constituting an unmitigable impact. Or, as admitted by the Forest
Service, ``An important aspect of subsidence is that it is
irreversible; once sediment layers collapse when dewatered, they remain
collapsed even if water levels recover.'' \13\ As scientists and public
officials know from other parts of the Salt River Basin as well as
places like the Central Valley of California, land subsidence from
groundwater pumping also causes harm to public infrastructure such as
roads, pipelines and utility lines, as well as harming homes and other
structures.
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\12\ FEIS, p. 412.
\13\ FEIS, p. 412.
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impacts to springs and streams
The EIS acknowledges that ``Sacred springs would be eradicated by
subsidence or construction of the tailings storage facility, and
affected by groundwater drawdown.'' \14\ In the arid southwest, springs
and perennial streams are extremely rare and constitute irreplaceable
habitat. Use of groundwater that impacts springs and streams is
contrary to Tonto National Forest's groundwater policy:
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\14\ FEIS, p. 856.
``Groundwater shall be managed for the long-term protection and
enhancement of the Forest's streams, springs and seeps, and
associated riparian and aquatic ecosystems. Development and use
of groundwater for consumptive purposes shall be permitted only
if it can be demonstrated that such proposals will adequately
protect Forest resources.'' \15\
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\15\ Martin and Loomis, Keeping Our Streams Flowing: Tonto National
Forest Groundwater Policy, in: Furniss, Clifton and Ronnenberg, eds.,
2007, Advancing the Fundamental Sciences: Proceedings of the Forest
Service National Earth Science Conference, October 2004, PNW-GTR-689,
USDA, Forest Service, Northwest Research Station.
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impacts from block cave mining
Resolution chose to employ block cave mining because that's the
cheapest way to mine this deep ore body. A consequence of this mining
method is that reclamation or restoration is simply impossible: just a
sturdy fence and maybe some ``no trespassing'' signs.
Once mining commences, the formation of a subsidence crater becomes
inevitable and unstoppable. Even Resolution Copper cannot stop this
process once it has begun. Further, after the land surface collapses
into Resolution's mine, creating the 1.8-mile wide subsidence crater,
the Apache Leap Tuff Aquifer will be altered forever, irreversibly and
permanently altering the region's water resources. This is the very
definition of an irreparable harm. As stated in the FEIS, ``The deep
groundwater system is being and would continue to be actively
dewatered, and once block caving begins the Apache Leap Tuff would
begin to dewater as well.'' \16\
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\16\ FEIS, p. 369.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsThe Apache Leap Tuff Aquifer is a critical source of water for
springs and creeks, many of them sacred to Western Apaches. This
permanent impact would not occur if alternative underground mining
methods were employed, but the Forest Service did not conduct an
adequate analysis of alternative mining methods largely because it
accepted Resolution's assertion that any method other than block cave
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mining would be too expensive.
[[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsThe EIS disclosed a number of profound impacts due to the
collapse crater that cannot be mitigated, including to scarce water
resources. By failing to conduct an acceptable and competent evaluation
of project alternatives that could avoid the impacts caused by the
collapse zone, the Forest Service is allowing one factor (cost of
mining: i.e., Resolution's profitability) to outweigh all environmental
and social factors combined.
mitigation of impacts to groundwater dependent ecosystems
The FEIS concludes that the Resolution Copper Mine project will or
is likely to deplete water supplies and harm or destroy the streams,
springs, seeps and other water features in Oak Flat, Ga'an Canyon
(Devil's Canyon), Mineral Creek and Queen Creek: ``Dewatering or direct
disturbance would impact between 18 and 20 groundwater dependent
ecosystems (GDEs), mostly sacred springs. While mitigation would
replace water, impacts would remain to the natural setting of these
places.'' \17\ The proposed mitigation for GDEs is inadequate.
Mitigation plans are outlined in a September 2020 report.\18\ This
report calls for replacing water flows in springs and creeks by pumping
water from nearby wells (i.e., tapping groundwater from deeper in the
aquifer), storing water in tanks and piping the water to the creek or
stream or by constructing various water-collecting devices such as so-
called ``guzzlers,'' surface water capture systems or even trucking
water in from alternative sources. Replacing a natural system with a
manufactured facsimile of the system is not the intention of mitigation
under NEPA. Just as it would not be permissible to replace the real
Half Dome with a plaster model of Half Dome, it is not permissible to
replace lost GDEs with artful but artificial copies of natural systems.
It was not the intention of NEPA to replace nature with theme park-like
imitations of nature.
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\17\ FEIS p. 156.
\18\ Montgomery & Associates, 2020, ``Monitoring and Mitigation
Plan for Groundwater Dependent Ecosystems and Water Wells.''
---------------------------------------------------------------------------
The monitoring plan for GDEs is also inadequate because its
discussion of triggers (i.e., occurrences or observations that would
trigger mitigation activities) is vague and incomplete. The Montgomery
Report \19\ reveals that Resolution has built in (and the Forest
Service has bought into) any number of ways to avoid actually
implementing mitigation measures for GDEs. In particular, the Plan
explains that Resolution will somehow differentiate the impacts from
its dewatering from other variables such as ``changes in weather and/or
climate, impacts to the regional and/or local groundwater system from
other human causes, landscape changes such as landslides and fires,
natural succession of the GDE into a new presentation such as an
increase in phreatophytic plants coincident with a reduction in spring
flow rates, or other reasons not included in this document.'' Other
than noting that Resolution will employ ``multiple lines of evidence''
there is no quantitative or qualitative discussion of how Resolution
will accomplish this difficult task. Considering that most of the GDEs
covered by the monitoring plan have already been identified as likely
to be severely impacted by mine dewatering, Resolution's methodology
for identifying impacts to GDEs is unworkable and is inadequate under
NEPA.
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\19\ Montgomery & Associates, 2020, ``Monitoring and Mitigation
Plan for Groundwater Dependent Ecosystems and Water Wells.''
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water quality impacts-acid rock drainage
As noted in the DEIS, ``The deposit is associated with hydrothermal
alteration and includes a strong pyrite ``halo'' in the upper areas of
the deposit, containing up to 14 percent pyrite. This mineralization
has ramifications for water quality, as sulfide-bearing minerals such
as pyrite have the potential to interact with oxygen and cause water
quality problems (acid rock drainage)''.\20\ Much of the mineralized
halo (i.e., rocks with abundant sulfide minerals but a lower grade of
copper) will not be mined out, rather it will become a permanent part
of the collapse zone.
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\20\ FEIS p. 173.
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The FEIS makes the unsupported assumption that the mineralized,
fractured rock in the collapse zone will not be in contact with oxygen,
thus will not form acid rock drainage. This is a highly optimistic
conclusion that defies common sense. As the collapse zone forms, the
rock will dewater as it is transformed into a giant rubble heap,
increasing its hydraulic conductivity many orders of magnitude. For the
purposes of groundwater modeling, Resolution assumes that the hydraulic
conductivity \21\ of rock in the cave zone will increase by as much as
a factor of a million: ``Maximum hydraulic conductivity values were
altered by a multiplier of 1E+6 or to a hydraulic conductivity of 100
ft/day, whichever occurs first . . . The maximum hydraulic conductivity
value of 100 ft/day was selected because it is much higher than the
natural, un-altered bedrock, but higher values caused the model to
become unstable.'' \22\ This statement highlights another deficiency of
the groundwater model: hydraulic conductivity of rock in the collapse
zone was arbitrarily limited to 100 ft/day because the model would
crash if higher (i.e., more realistic) values were used.
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\21\ Hydraulic conductivity is a measure of how groundwater flows
through an aquifer. This, in turn, affects the groundwater velocity
through the aquifer. Solid rock has a very low hydraulic conductivity;
sandstone has a higher hydraulic conductivity and very coarse grained
sediments like gravels have even higher hydraulic conductivity.
\22\ WSP, February 2019, Resolution Copper Groundwater Flow Report,
pp. 37-38.
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Atmospheric air will easily penetrate the dewatered fracture zone,
supplying oxygen into a subsurface environment that has been devoid of
oxygen for thousands if not millions of years. This assumption (no
oxygen thus no acid-generating reactions in to collapse zone) is
incorrect and understates the environmental risks from acid rock
drainage within the mine and in ore stockpiles. This assumption is also
broadly inconsistent with Resolution's treatment of potentially acid
generating (PAG) material in the tailings. In the tailings, Resolution
acknowledges that PAG needs to be submerged under a layer of water to
prevent contact with oxygen and minimize acid rock drainage. However,
in the collapse pit, no such protection will exist, yet Resolution
somehow concludes (and the Forest Service believed it) that acid rock
drainage will not occur.
water quality impacts from the tailings storage facility
The scale of this project is hard to grasp, but the volume of
tailings produced by Resolution Copper would fill the Rose Bowl to its
brim, not once but nearly 1,800 times. This vast volume of waste
material will permanently disturb 16,000 acres of land of which nearly
8,000 acres is Arizona State Land. The principal accomplishment of the
EIS seems to be to propose a new location for the mine's 1.37 billion
tons of tailings. Water quality impacts from the tailings is one of the
most profound and concerning environmental issues for a mine of this
size, yet there remains great uncertainty about the magnitude of water
quality impacts from the TSF.
tailings dam risk of failure
Tailings would be transported through about 20 miles of pipeline
across sensitive habitat--including Ga'an Canyon--to the Skunk Camp TSP
in Dripping Springs Wash, a tributary of the Gila River. Over the life
of the mine, the TSF would grow to cover 3,995 acres \23\ of this
watershed behind a 3 mile long earthen dam and tower as much as 500
feet--about as high as the Washington Monument--above the natural land
surface.\24\ A failure of the tailings dam would put downstream lives
at risk and would undoubtably contaminate the Gila River. The magnitude
of impacts from large tailings dam failures can be immense. The
tailings dam at the Fundao Dam in Brazil was much smaller than the
proposed Resolution dam (about 300 feet tall compared to 500 feet at
Resolution; Resolution TSF will ultimately have nearly 20 times greater
volume of tailings). The 2015 Fundao tailings dam failure killed 19
people and contaminated hundreds of miles of the Doce River, eventually
spewing a toxic plume of tailings into the Atlantic Ocean, more than
400 miles downstream of the dam.
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\23\ The direct footprint of the TSF would be 3,995 acres however,
according to the FEIS, a total of 8,647 acres would be off-limits to
the public due to tailings operations.
\24\ FEIS, p. ES-21.
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impacts to apache leap special management area
There is a high degree of uncertainty in Resolution's subsidence
predictions, but the public has been assured that the subsidence crater
will not extend into the Apache Leap Special Management Area. True or
not, it is certain that the subsidence zone will creep up the eastern
slope of Apache Leap and profoundly degrade the quality of this
theoretically protected place. In 75 years, if we could stand together
on the crest of Apache Leap, instead of the world-class view across Oak
Flat, we would see a massive pit of collapsed rock, just a couple
hundred meters away, devoid of life and gradually filling with toxic
mine water. Imagine standing on the stairs of the US Capitol and seeing
nothing but a 1,000-foot deep rocky pit, starting at the Capitol
reflecting pool, swallowing not only the Smithsonian Museums and the
Washington Monument, but extending all the way to the Lincoln Memorial.
That's how immense this subsidence crater will be.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsconclusions
Passage of the Save Oak Flat Act, H.R. 1884, is critical to stop
this project that promises big profits to multinational mining
companies, while imposing irreversible harm to the people and
environment of Arizona. This mining project will have long-term
consequences to the groundwater resources in Arizona as a whole and the
Phoenix AMA,in particular, and, in some cases, permanent consequences.
By pumping 176 billion gallons of groundwater from the East Salt River
Valley, this project would make Arizona's goal for stewardship of its
scarce groundwater resources all the more unreachable. Considering the
effects of ongoing drought conditions and likely reductions in
deliveries of Colorado River water to Arizona via the CAP, it is nearly
certain that the new demand from Resolution's pumping of groundwater
from the East Salt River Valley will lead to water shortages among the
many users of this groundwater basin. Even more certain is the
irreversibility of Resolution Copper's impacts to Oak Flat and the
Apache Leap Tuff Aquifer which will be destroyed forever by the
subsidence crater: permanently altering the region's water resources,
causing local streams and springs to be ``eradicated,'' \25\ many of
which are sacred to Arizona Tribes.
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\25\ FEIS, p. 856.
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______
Questions Submitted for the Record to Dr. James Wells, PhD, Chief
Operating Officer, L. Everett & Associates
Questions Submitted by Representative Grijalva
Question 1. Your testimony quotes the FEIS that as a result of this
project's groundwater pumping in the East Salt River Valley that the
land there will actually subside 24 to 52 inches. Can you explain what
this will mean for infrastructure in the area and the aquifer?
Answer. Land subsidence is a permanent consequence of overpumping
groundwater. Land subsidence occurs when water is pumped out of the
aquifer and the now empty pore spaces collapse. This not only leads to
land subsidence, but the storage capacity of the aquifer is permanently
reduced. In other words, even if water becomes available in the future
to recharge the depleted aquifer, it will never hold as much
groundwater as before. The maximum land subsidence predicted in the
FEIS is 52 inches, which is more than 4 feet. Imagine what would happen
to your home if one corner dropped 4 feet. As we have already seen in
parts of the East Salt River Valley as well as places like the Central
Valley of California, land subsidence from overpumping can cause
dangerous and expensive damage to private homes, as well as public
infrastructure like roads and power lines. Even the Central Arizona
Project (CAP) is at risk from the predicted subsidence, as Resolution's
proposed Desert Wellfield is only a few miles from the CAP canal.
Question 2. You note in your testimony that FEIS states that as a
result of groundwater pumping for the mine and other known demands the
groundwater levels will drop in some areas by 450 feet. What will this
mean for the future of the people who live and work in this area?
Answer. This is a very long term consequence reported in the FEIS
of the cumulative effects of Resolution's groundwater withdrawals in
the East Salt River Valley as well as all other known water demands.
This is a profound finding because it lays bare the fact that the State
of Arizona's goal of ``safe yield'' (dating back to 1980 with the
creation of groundwater Active Management Areas or AMAs) is being
undermined--in part--because of mining operations' free reign to take
groundwater from otherwise highly managed aquifers. For a groundwater
basin, ``safe yield'' means achieving a long-term balance between the
annual amount of groundwater withdrawn and the annual amount of
recharge, thus avoiding depletion of the aquifer. A predicted drop of
450 feet in the East Salt River Valley aquifer is simply a stark
indicator that Arizona is far off track in achieving its goal of safe
yield. In practical terms, this finding means that folks with wells
shallower than 450 feet will eventually see their wells dry up. Those
who can afford it will drill deeper wells. Those who cannot afford it
will probably need to move away, since a property without water is not
habitable. In the very long term, this trend suggests that without
better management, the aquifer in the East Salt River Valley will
gradually dry out completely and all wells will dry out. Agriculture
would probably not be feasible without a groundwater resource and
municipal and industrial users would need to scramble to make up for
this loss of groundwater.
Question 3. According to the FEIS, the dewatering and ground
pumping of the mine will result in impacts on at least 18 groundwater
dependent ecosystems. Can you explain what this will mean in practice
on the ground for local habitat? And can you talk about why the
mitigation measures proposed are inadequate?
Answer. One of the most important tasks of the groundwater modeling
effort supporting the EIS was to assist Tonto National Forest (TNF) in
evaluating future impacts to springs and perennial streams that support
groundwater-dependent ecosystems (GDEs). Many people were disappointed
in the lack of precision in the TNF's analysis of impacts to GDEs in
the EIS. Unfortunately, the computer model used to evaluate this issue
does not quantitatively simulate groundwater-surface water
interactions. Instead, it was decided that a finding of hydrogeological
``impact'' would only be identified if the model predicted at least a
10-foot drop in the groundwater elevation in the immediate vicinity of
a GDE. As stated in the FEIS,
``Based on combined professional judgment, the Groundwater
Modeling Workgroup determined that to properly reflect the
level of uncertainty inherent in the modeling effort, results
less than 10 feet should not be disclosed or relied upon, as
these results are beyond the ability of the model to predict.''
(FEIS, p. 375).
In short, TNF acknowledged that its scientific methodology
(groundwater modeling) had a limit of precision of plus or minus 10
feet. TNF did not scientifically conclude that 10 feet or more of
groundwater drawdown is needed to cause an impact on GDEs, this is just
an arbitrary number based on limitations of the method of analysis, not
some scientific principle. Indeed, common sense would suggest that if a
spring is fed by shallow groundwater and someone caused the water table
to drop 8 or 9 feet, the spring will probably dry out.
A consequence of the modeling issues discussed is that TNF probably
underestimated the magnitude of loss, they do acknowledge that these
impacts represent an ``Irreversible and Irretrievable Commitment of
Resources,'' and that ``Sacred springs would be eradicated by
subsidence or tailings storage facility construction and affected by
groundwater drawdown.'' \1\
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\1\ FEIS, p. 790, emphasis added.
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In my opinion, there are three main problems with the mitigation
measures. First, it is not clear that Resolution will need to follow
the mitigation measures once the land exchange occurs and much of the
mine site becomes private property. Second, the mitigation measures do
not protect or restore natural systems, they replace natural systems
with artificial water features. TNF acknowledged this problem in the
EIS: ``Although mitigation would replace water, impacts would remain to
the natural setting of these places.'' (p. ES-27).
Finally, the monitoring plan for GDEs is also inadequate because it
incorporates vague and incomplete triggers (i.e., occurrences or
observations that would trigger implementation of mitigation
activities) which provide Resolution with ways to avoid mitigation even
if springs do start drying out. In particular, the mitigation plan
explains that Resolution will somehow differentiate the impacts from
its dewatering from other variables such as ``changes in weather and/or
climate, impacts to the regional and/or local groundwater system from
other human causes, landscape changes such as landslides and fires,
natural succession of the GDE into a new presentation such as an
increase in phreatophytic plants coincident with a reduction in spring
flow rates, or other reasons not included in this document.'' Other
than noting that Resolution will employ ``multiple lines of evidence''
there is no substantive explanation of how Resolution will accomplish
this difficult task. Considering that most of the GDEs covered by the
monitoring plan have already been identified as likely to be severely
impacted by mine dewatering, TNF's methodology for identifying impacts
to GDEs is unworkable and is inadequate under NEPA.
Question 4. The Resolution Copper Mine needs at least 775,000 acre
feet of water in order to be able to slurry both ore concentrate X
miles and the toxic waste X miles through pipelines that need to be
built across parts of Tonto National Forest not in the land exchange
and other lands. This toxic waste will be dumped into tailings waste
storage facility that will ultimately cover nearly 4,000 acres and
stand nearly 500 feet tall. Can you explain more about the possible
water quality problems as a result of this massive toxic dump?
Answer. The FEIS provides a brand new analysis of potential water
quality impacts that was missing from the DEIS. Many people are
surprised to learn that tailings storage facilities seldom contain
liners, as would be required of a new municipal landfill. Thus, as
rainwater soaks into the waste, picks up heavy metals and eventually
reaches the bottom of the tailings. At this point, the contaminated
water (or ``leachate'') infiltrates into the native ground and impacts
the underlying groundwater. Since there is no liner to prevent
infiltration of leachate, this is an expected consequence of the
tailings facility. None of this new work was subject to public review
or comment. The FEIS finds that significant groundwater contamination
will occur at Skunk Camp even with a seepage retention pond and
downgradient interceptor wells to capture contaminated groundwater.
Eventually, the groundwater plume is predicted to extend all the way
down Dripping Springs Wash to the Gila River, which is approximately 13
miles from the proposed TSF.
Questions Submitted by Representative Gosar
Question 1. In your testimony, you write that Special legislative
action was needed to make this project possible in the form of Section
3003 of the Carl Levin and Howard P. ``Buck'' McKeon National Defense
Authorization Act for Fiscal Year 2015 (NDAA). Are you aware that the
2015 NDAA included a full lands package compromise that as you say
received ``special treatment'' ?
Answer. Other than Section 3003 which relates to Oak Flat, I do not
have an opinion about other components of the NDAA for FY 2015.
Question 2. Were you aware that for 5 years, from March 2009 to
March 2014, Congress did not add a single new wilderness area--a
stretch that included the entire 112th Congress, marking the first time
a Congress had not created a wilderness area since passage of the
Wilderness Act in 1964. And that the Southeast Arizona land exchange
was part of a 169 pages of energy and public lands provisions that were
tucked into the must-pass defense bill in 2014. A package that also
created nearly 250,000 acres of wilderness in Colorado, Montana,
Nevada, New Mexico and Washington state, and protected about 140 miles
of rivers. It added or expanded more than a dozen national parks and
put mineral development off limits on hundreds of thousands of acres of
federal land. Were you aware of that?
Answer. I am aware that Section 3003 of the FY 2015 NDAA was part
of Title XXX of the Act which is described as ``Natural Resources
Related General Provisions.''
Question 3. Dr. Wells, it is my understanding that the FEIS, which
you testified to extensive participation, is a reflection of a myriad
of experts that analyzed all impacts and mitigations over a 7-year
period. The Forest Service led this process and published a consensus
view. What is the reason we should regard your dissenting opinion and
ignore the extensive analysis that was done by dozens of experts and
reflected in the FEIS?
Answer. The data I discussed in my testimony comes from the FEIS. I
am not aware of any participating hydrogeology experts who disagree
with the descriptions in the FEIS of the general magnitude of the
disclosed impacts, although there were robust discussions in the
working groups about the accuracy and precision of future predictions.
The issue I am helping to raise is whether these impacts are
acceptable. Perhaps because of the unusual nature of the environmental
review process mandated by Section 3003 of the FY 2015 NDAA, the FEIS
does not address this question.
I disagree with your premise that the FEIS represents a consensus
view of all experts. It is true that TNF convened advisory groups of
experts, including the two I participated in: the Groundwater Modeling
Working Group (advising TNF on groundwater computer modeling matters
during preparation of the DEIS) and the Water Resources Working Group
(advising TNF on its responses to water-related public comments during
preparation of the FEIS). This was laudable. However, TNF made final
decisions about how to analyze impacts and how to disclose them in the
EIS. There were numerous disagreements among working group members. For
example, US EPA issued a memo to the Water Resources Working Group
questioning the adequacy of the water quality analysis for the Skunk
Camp tailings storage facility (TSF).
Another example of an absence of consensus is the fact that TNF's
own consultant, BGC Engineering USA, Inc., issued a report highly
critical of the new Skunk Camp groundwater modeling effort (new work
which was completed after publication of the DEIS) and those criticisms
and suggestions were not addressed in the FEIS. Predictions of water
quality impacts from new modeling efforts differ substantially from the
information contained in the DEIS. TNF made the unusual decision of
including both the old and new modeling results for Skunk Camp in the
FEIS.\2\ These results are profoundly different from one another: the
decision to include two incompatible analyses of the same phenomenon
muddies the waters with respect to disclosure of impacts and is
arguably impermissible under NEPA.
---------------------------------------------------------------------------
\2\ ``we chose to present the results of both the DEIS water
quality model AND the FEIS water quality model, not solely the FEIS
water quality model (which does show lower concentrations).'' Chris
Garrett (SWCA), December 11, 2020 email to Water Resources Working
Group. (SWCA is TNF's EIS consultant.)
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The BGC review contains numerous criticisms of the model and
suggestions for improvement. TNF did not incorporate the suggestions
into the model or into the Final EIS. BGC also noted how different
these modeling results are when compared to the earlier analysis
disclosed in the DEIS. The DEIS determined that Resolution would only
be able to ensure acceptable water quality at the Gila River if it was
able to capture 90% of the contaminated groundwater seepage emanating
from the Skunk Camp TSF (DEIS, p. 113). The new model finds that only
24% of the TSF seepage needs to be captured to avoid water quality
exceedances. This is a significant change in the analysis of impacts
that was incorporated into the FEIS without the benefit of public
review and comment and is an example of a finding in the EIS that did
not reflect a consensus opinion among participating experts.
One consequence of this situation is that the basis for comparing
the alternative TSF sites for relative impacts to water quality has
been compromised. Despite the TNF claim that the new Skunk Camp model
can be used for comparison between the different TSF and mitigation
alternatives,\3\ this is not the case. Predictions of the other TSF
alternatives are still based on the earlier modeling efforts reported
in the DEIS, which BGC has described as inferior to the new Skunk Camp
analysis.\4\ As shown by the work at Skunk Camp, the new modeling
effort gives vastly different results than the previous GoldSIM
modeling. It appears that the methodology utilized in the DEIS was
terribly inaccurate. Instead of applying the new methodology to all TSF
alternative sites, TNF only updated Skunk Camp. This is a classic case
of comparing apples to oranges. While the new modeling methodology is
undoubtedly an improvement for the Skunk Camp analysis (although it
could and should be further improved by responding to BGC's findings
and EPA's comments), the water quality analyses for the other
alternative TSF sites are unreliable. It would not be scientifically
sound to compare the new Skunk Camp modeling results against the old
modeling results (which used different methodologies) for the other TSF
alternatives, thus we must conclude that the FEIS will be unable to
reliably compare water quality impacts between alternative TSF sites.
This in turn, leads to the conclusion that the FEIS will not be capable
of justifying the selection of a preferred alternative, from the
perspective of water quality impacts.
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\3\ ``Alternatives are `the heart of NEPA', and the analysis must
allow us to compare those alternatives. So a third goal [of TSF water
quality modeling] is to inform the decision-maker by comparing the
outcomes from the different alternatives.'' (Chris Garrett, December
11, 2020 email to Water Resources Working Group).
\4\ ``GoldSim mass balance model [the methodology used in the DEIS]
was improved upon through a numerical model utilizing Modflow-USG [the
methodology developed after the DEIS] for Alternative 6--Skunk Camp''
(BGC, p. 10, emphasis added).
---------------------------------------------------------------------------
Another consequence of this situation is that Arizona Department of
Environmental Quality (ADEQ) now lacks the information it needs to make
a Clean Water Act Section 401 Water Quality Certification that the
Resolution project will not cause exceedances of water quality
objectives. For the TSF, this certification will rely solely on
Montgomery/Resolution's criticized groundwater model. It is hard to see
how ADEQ can make a reliable determination that quantitative, numerical
water quality objectives will not be exceeded from a model that TNF
itself has described as a ``screening level model'' and that ``model
results should only be considered an estimate.'' \5\
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\5\ Chris Garrett (SWCA) December 11, 2020 email to Water Resources
Working Group.
Question 4. Dr. Wells, you site that the public comments received
in the DEIS of 30,000, 20 percent were regarding water concerns (6,000
comments). But the FEIS endeavored to address those concerns and after
45 days of public comment received only 13 total objections. Does this
---------------------------------------------------------------------------
not reflect significant process in addressing concerns?
Answer. To my knowledge, there was no public comment period for the
FEIS. One of my concerns--shared by many other parties--is that
substantial new information was included in the FEIS that had not been
previously disclosed in the DEIS and the public was denied an
opportunity to review and comment on this new information.
Question 5. Dr Wells, you testify extensively to the impacts on
water of this mine. The FEIS discloses that adequate groundwater exists
for committed regional demands, including Resolution Copper's needs
over the next 100 years. This was based on assessments by third-party
water experts, with input from federal and state agencies. Can you
explain why your view is so vastly different from so many independent
water experts and federal and state agencies?
Answer. The FEIS assumes that Resolution has a legal right to
however much water it needs and finds that Resolution will be able to
physically pump the water it needs before the East Salt River Valley
aquifer goes totally dry. However, the FEIS is very clear that this is
not a sustainable situation and the groundwater resource will be
progressively depleted.
In the DEIS, TNF acknowledged that ``groundwater demand is
substantial and growing'' in the East Salt River Valley and ``total
demand on the groundwater resources in the East Salt River Valley is
substantial and could be greater than the estimated amount of
physically available groundwater'' (DEIS, p. 342, emphasis added).
These sober assessments inexplicably do not appear in the FEIS.
Question 6. You also refer to issues raised by the Arizona State
Land Department, but I have a copy of a letter from ASLD that states
clearly that their views have been mischaracterized and they do not
have unaddressed issues with the project. As a matter fact they signed
the programmatic agreement as part of the FEIS and states clearly they
would not do so if they felt they could not mitigate impacts to State
Trust lands. Were you aware of this?
Answer. My statement about the Arizona State Land Department (ASLD)
was an accurate summary of a November 7, 2019 comment letter from ASLD
to TNF which is reproduced in Appendix R of the FEIS. The FEIS does not
describe this as a withdrawn or resolved concern. I am not aware of a
subsequent letter from ASLD withdrawing these comments.
Question 7. You know the line about repeating a lie enough times
people will believe it is true. Well, that is how I feel about this
statement from Dr. Wells testimony. Your testimony asserts that the
1872 Mining Law was written to encourage development of the West. But
there is nothing in legislative history to indicate that. The purpose
was to incentivize private investment in a highly risky endeavor to
supply the growing Nation with the minerals needed without risking
taxpayer dollars. The Law recognizes that economically viable mineral
deposits are rare and hard to find. The ownership of the minerals
discovered is the reward for taking the risk. Everyone benefited, the
discoverer and society. Development of the West was a consequence of
discovering minerals in the West, not the purpose of the Law, unlike
The Homestead Act. It seems that we face some similar issues today
where we need to encourage these risky investments to ensure we have
security of supply and can advance the low carbon future. Would you not
agree that it is an imperative today as it was when the 1872 Mining Law
was enacted?
Answer. As I stated in my testimony, the United States does need
copper and other metals. However, we do not need to green-light every
mining project if the cultural and environmental costs are too high, as
they are for this project.
Question 8. My understanding is that USDA has withdrawn the EIS to
ensure that the consultation requirements were met. The additional
requirements called for in the NDAA bill were separate and additive to
the NEPA process to ensure consultation on the land exchange. Why would
that require an EIS process starting anew after 7 years of consultation
and analysis?
Answer. My testimony was in support of H.R. 1884, the Save Oak Flat
Act, which (if passed) would render the EIS moot. However, starting
anew with the EIS process does not mean discarding all the data and
analysis that have already been collected. It does mean (at minimum)
conducting adequate tribal consultations; adequately collecting and
analyzing new information to address the many areas not properly
evaluated in the FEIS; and allowing public review and comment on the
substantial new analyses that were conducted and data that was
collected after issuance of the DEIS that are important components of
the overall record and would assist the public in understanding TNF's
assessment of alternatives and disclosure of impacts. In situations
like this, it is customary to at least issue a Supplemental DEIS to
allow for additional public review and comment. In particular, 40 CFR
Sec. 1502.9 requires that agencies ``shall'' prepare supplements if
``There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its
impacts.'' TNF has an opportunity to accomplish these things now that
USDA has withdrawn the FEIS.
Question 9. Mr. Wells, as a water expert, you understand that solar
production in desert areas requires significant water usage, in fact
DOE estimates suggest that solar farms demand between 865 gallons per
MWh and 1,057 gallons per MWh. Do you believe that large scale solar
farms are a threat to groundwater resources in Arizona?
Answer. A more accurate estimate of water use for photovoltaic
solar farms is 20 gallons per MWh. For a 1 MW solar farm, this
corresponds to about \1/2\ an acre foot of water per year which is
thousands of times less water than would be used by Resolution Copper
in a year. Regarding competing demands for a finite supply of water, I
would say that all water demands--mining, solar farms, ecological,
agricultural, municipal and commercial--must be understood, evaluated
and allocated against the sustainable supply. I agree that hard choices
are needed because this part of Arizona does not have enough
groundwater to sustainably meet all of the competing demands.
______
Ms. Leger Fernandez. Thank you very much, Mr. Wells.
The Chair now recognizes the Honorable Mila Besich, the
Mayor of the Town of Superior, Arizona.
STATEMENT OF MILA BESICH, MAYOR, TOWN OF SUPERIOR, ARIZONA
Ms. Besich. Good afternoon Chairman Grijalva, Ranking
Member Westerman, Subcommittee Chair Leger Fernandez, Ranking
Member Young, and members of the Committee. I am Mila Besich,
Mayor of the Town of Superior, a small community located 60
miles east of Phoenix, Arizona, and the closest community next
to the Resolution Copper project.
Thank you for the opportunity to come before you today to
tell you about my town and its history. Superior is a close-
knit community with a long and rich history in mining that
dates back to 1875. The town evolved as a center for commerce
serving the mining industry throughout Arizona.
H.R. 1884, if passed, will be devastating for my community.
The population of Superior is just over 3,000 residents and has
grown by 8 percent since 2010. About 40 percent of the
residents have lived in the town for more than 20 years, and
there are a number of multi-generational families. The median
age of residents is 45.4 years old, which is well above the
state and national median age.
We need to create job and business opportunities for our
youth and working adults so that our community remains viable
for generations to come. Many of the employed residents of
Superior commute to jobs in Phoenix or other parts of the East
Valley. Only about 15 percent of residents work in the local
community because our business space and areas for business and
commercial opportunities are land limited.
Superior is located at the base of Apache Leap Mountain and
is surrounded by the Tonto National Forest, which is the fifth
largest National Forest, and we are in the Globe Ranger
District on the Tonto, which is one of the most mined districts
in the lower 48 states.
The areas surrounding Superior offers a diversity of
climate zones from desert vistas to mountainous areas with snow
and waterfalls. This stunning natural landscape creates a
perfect setting for world-class outdoor recreation. The
combination of scenery, rich cultural experiences, and
gastronomy make for our community to be lively and diverse.
My family has been in this area for five generations. Many
of my friends and neighbors in Superior have roots tracing back
seven or eight generations. When I graduated from Superior High
School in the 1990s, opportunities were limited, and, in fact,
my formative years did not include any hint of bright days of a
mining boom.
As a community, we truly understand the booms, busts, and
risks associated with mining. We have also learned how
critically important it is to participate in these important
permitting processes and follow up on all environmental
regulations. Mining will always be part of our economic DNA.
The Resolution Copper project presented a unique
opportunity to help us build Superior's future and develop a
diversified economy. We are a town with a mine. This includes
working with the mining industry and government officials to
ensure that an operational copper mine is a net positive for
Superior, our region, and our state.
Superior remained at the table and actively participated in
the FEIS process. To start over would be counter to the best
interest of the people of Superior. We strongly support the
rights of our Apache neighbors, that their voices be heard. But
what has been overlooked in recent media reports is that
through the entire EIS process the Forest Service and
interested parties have worked and consulted with the tribes.
The EIS process was long and laborious, but it achieved
exactly what was intended: An intense process that has taken
all of the stakeholders' concerns and melded it into one
document to address these diverse and divergent views.
Superior needs jobs and private capital investment so we
can continue to thrive. And while this may be an unintended
consequence, it is real. H.R. 1884 will repeal the land
exchange that was enacted by Congress in December 2014. The
land exchange is mission critical to Superior's ability to
attract housing and economic development opportunities.
Enactment of H.R. 1884 will essentially deprive Superior of the
ability to build a more diverse economy and prosperous future
for our children, youth, and families.
Chairman Grijalva, you have been a champion for Arizona,
and your long tenure and honorable service to our great state
are respected and appreciated. However, our town's future is
highly dependent on this mine opening; therefore, we
reluctantly oppose your bill and ask that Secretary Vilsack
approve the FEIS in a timely fashion so that we can get our
project back on track to protect Superior and the Copper
Corridor region.
Thank you for the opportunity to testify, and I would like
to invite you to visit Superior and the Copper Corridor. I am
happy to address any comments or questions you or the members
of the Committee might have.
[The prepared statement of Ms. Besich follows:]
Prepared Statement of Mayor Mila Besich, Town of Superior, Arizona
Good afternoon Chairman Grijalva, Ranking Member Westerman,
Subcommittee Chair Leger Fernandez, Ranking Member Young and members of
the Committee. I am Mila Besich, Mayor of the Town of Superior, a small
community located 60 miles east of Phoenix, Arizona.
Thank you for the opportunity to come before you today to tell you
about my Town and its history. Superior is a close-knit community with
a long and rich history in mining that dates back to the first mining
claim in the region in 1875. The Town evolved as a center of commerce
serving the mining industry in the Copper Corridor of southeastern
Arizona. However, copper mining is a volatile industry that has gone
through numerous boom and bust cycles since the 1870s, turning many
former mining communities into ghost towns.
The population of Superior is currently reported at 3,063 and has
grown by about 8 percent since 2010. About 40 percent of the residents
have lived in the town for more than 20 years and there are a number of
multi-generational families. The median age of residents is 45.4 years
and about 19 percent of residents are over the age of 65, which is
slightly above the state average, but similar to Pinal County overall.
Many of the employed residents of Superior commute to jobs in
Phoenix or other parts of the East Valley. Only about 15 percent of
residents work in the local community. However, tourism could create
small business opportunities that would allow more residents to work
closer to home and could provide second income opportunities for
families.
In Superior, we are proud to say that we're a town where mining is
one of the major industries but not the only industry and thus the need
to diversify our local communities with other economic opportunities.
My Town is located at the base of Apache Leap Mountain in the high
desert and is surrounded by the Tonto National Forest, which is the
fifth largest national forest in the country covering close to 2.9
million acres in northeastern Arizona, extending north from Superior to
the Mogollon Rim. The area surrounding Superior offers a diversity of
climate zones from desert vistas to mountainous areas with snow and
waterfalls. This stunning natural landscape creates the perfect setting
for tourism related to hiking, camping, birding, hunting and other
outdoor activities. Three local segments of the Legends of Superior
Trail (LOST) were recently completed making Superior an Arizona
National Scenic Trail Gateway community. The combination of scenery,
rich cultural experiences and gastronomy make for a lively and diverse
town.
My family has been in this area for five generations and my
children are part of that fifth generation. They are seeing a new
future of opportunity for Superior and for our Copper Corridor region.
Many of my friends and neighbors in Superior have roots tracing back
seven or eight generations. When I graduated from Superior High School
in the 1990s, opportunities were extremely limited and, in fact, my
formative years did not include any hint of the bright days of a mining
boom. My family has been actively involved in community leadership
throughout all our generations, and I have served as Mayor of Superior
since 2016.
For the past 20 years, leaders in Superior have been tasked with
developing a diversified economy, but we would be remiss to think that
mining would not be part of this plan with rich copper reserves and a
long history of mining, these rich copper ore deposits are not going to
magically disappear and we must figure out solutions to how the these
mines will work within our communities without our communities becoming
solely reliant on the extraction industry. We have used the Resolution
Copper project as a unique opportunity to help us build Superior's
future. This includes working with the mining industry and the
Resolution Copper EIS to ensure that the Resolution Copper Project is a
net positive for Superior and our region. The Town of Superior has been
actively involved in the FEIS process and to start over again is not in
the best interest of the people of Superior and not fair to all of
those stakeholders, including our Town, who will benefit greatly from
this process and have actively participated in this arduous process.
On March 1, 2021, the U.S. Department of Agriculture directed the
Forest Service to withdraw the Notice of Availability and rescind the
Final Environmental Impact Statement (FEIS) and draft Record of
Decision. This action has paused the many years of consultation by the
Forest Service and the numerous stakeholders and the public--folks that
participated and were at the table. We are hopeful that the
Administration will move forward with the process and release the FEIS
and Draft Record of Decision after consulting with all of the relevant
stakeholders.
In order to survive and grow, Superior needs jobs and private
investment. This mine is critical to the economic viability of our Town
and region. In short, we need this mine to open with the full
permitting in place as soon as possible. And yes, we need it to be done
in a way that preserves not only the economy of the region, but also
respects the cultural and environmentally sensitivity of the region and
the tribes. And while we strongly support the rights of our Apache
neighbors' voices to be heard, the fact remains that Resolution Copper
and the Forest Service, through the EIS process, have worked and
consulted with the tribes throughout this process. The EIS process was
a long and laborious but it achieved exactly what was intended: an
intense process that has taken all of the stakeholders concerns and
melded it into one document to address these diverse and divergent
views.
While we like to say that Superior is a town with a mine--and not a
mining town--mining is in our DNA and the Resolution Copper mine will
be a huge boost to our economy. More than half of the 600 workers on-
site will live within 40 miles of the mine. The mine is expected to
support 3,700 direct and indirect jobs for Arizonans, creating 2,600
jobs in Pinal County alone and adding an estimated $60 billion to the
state's economy over the 60-year life of the mine. Resolution Copper
will also be purchasing around $546 million per year in goods and
services from local businesses.
As the nation looks to build a clean energy future, where copper
will be an essential building block, Arizona's Copper Corridor holds
the equivalent of Yukon gold. Some of the richest and most accessible
copper ore deposits are found here in eastern Pinal and southern Gila
counties. Two of the three copper smelters left in the United States
operate in our region. Mining is vital to the economy in this part of
Arizona, and it can be done responsibly while protecting the
environment and the beautiful landscape that we love and cherish.
The land exchanged in the legislation that this bill will repeal
will directly benefit Superior. For instance, we will obtain land south
of the airport that will allow us to build new housing, retail and
other development. This will allow us to provide housing for the
expected doubling of our population because of this new mine and
economic opportunities. Ironically, it will also prevent future mining
claims in this area that several companies currently hold. Mr.
Chairman, I'm sure this is something that you support.
This new mine will also allow Superior to diversify our economy. We
have plans to build a new multi-generational center and new business
incubator with an emphasis on bringing new tech companies and jobs to
the area. These can only be realized by the opportunities this new mine
will present.
Chairman Grijalva, you have been a champion for Arizona and your
long tenure and service to our great state are appreciated. However,
our Town's future is highly dependent on this mine opening. Therefore,
we reluctantly oppose your bill and ask that Secretary Vilsack approve
the FEIS in a timely fashion so we can get this project back on track
and protect the future of Superior and the Copper Corridor region.
Thank you for the opportunity to testify today. I would be happy to
address any comments or questions you or members of the Committee might
have.
______
Questions Submitted for the Record to Mila Besich, Mayor of the Town of
Superior, Arizona
Questions Submitted by Representative Gosar
Question 1. How long has the NEPA process taken?
Answer. The NEPA process to open a mine in America begins the day
an extraction company determines it will need to access federal lands
to construct its operations in order to mine the ore deposit. These
extraction companies conduct years of study, data gathering and
analysis before determining if it is feasible to begin the federal
permitting process. That initial data is often used as a baseline for
the NEPA requirements.
Environmental Impact Statements (EIS) can vary in length depending
on the magnitude of the project. For the Resolution Copper project,
discussions on the permits required for the construction of the project
on their property and the federal lands have been taking place for well
over 20 years. The timeline for the actual EIS development began when
Resolution Copper submitted its official mine plan of operations in
2013. During this ensuing 8-year period, there have been countless
public meetings and comment periods.
Question 2. How many different changes has the mine project
undergone--to both the scope and because of tribal and public input?
Answer. During the 26-year history of the development timeline of
the Resolution Copper Mine, there have been numerous changes. For
instance, the location of the tailings sites has changed at least three
times. As further study had been completed, there have been changes to
where Resolution Copper will place the filtration plant and
concentrator.
As for public input, the project has evolved over the years to
allow for access to Oak Flats for as long as possible. Early on, it was
proposed that as soon as the lands were exchanged, the public would
lose access to the Oak Flats Campground. At this point, it is planned
that the public will have access to the Oak Flats Campground as long as
it is determined to be safe.
The tailings location is another example of public participation
affecting the location of this one aspect of their footprint. When
Resolution Copper no longer had the opportunity to pipe tailings to the
then-shuttered Pinto Valley mine, they returned to the drawing board to
find a different tailings location. The company studied its options and
presented them to the Community Working Group (CWG). The CWG is
comprised of local stakeholders that have worked together for years to
study critical impacts of the mine, and then communicate their findings
to the public as well as to the company. Resolution Copper funds a
contracted facilitator to work with the CWG, and this has been very
helpful given the complexity of the issues associated with a mining
operation on the scale of this proposed mine.
Question 3. Could you talk about some of the concessions made
throughout the consultation process to mitigate the impacts of the
mine?
Answer. I can speak specifically for the Town of Superior. When the
Draft Final Environmental Impact Statement (DEIS) was released, we
quickly learned that the impacts to our Town infrastructure,
socioeconomics, police and emergency services by Resolution Copper
would cost the Town of Superior upwards of $1 million annually. The
DEIS reported that the Resolution Copper project would only generate
$350,000 in actual revenue to the Town. Clearly, just based solely on
this economic data, we understood that the proposed project--without
appropriate mitigations--would be a net negative for Superior. We
utilized the comment period to address our concerns with the Forest
Service and Resolution Copper. As a result of our focused advocacy, we
were able to negotiate agreements to put measures into place that would
mitigate the adverse impacts to our citizens and the Town's financial
stability.
The issues of water usage for the Resolution Copper Mine are very
complex and involve the layered complexity of state and federal law, as
well as the entrenched positions of key water rights owners. No water
in the Southwest goes unclaimed and the mine will have to purchase most
of their water on this open market. The market itself will regulate the
availability of the water rights and the market will balance the
competing interests. The physical availability of the water is a
separate issue, and we and our water provider Arizona Water company
have worked with Resolution Copper to develop mitigation measures to
assure that groundwater in the desert well field area, that supplies
the Town, remains available indefinitely.
The effects of mine dewatering on Queen Creek exacerbate cumulative
impacts caused by over 130 years of mining under the creek. Water that
would normally flow down the creek seeps through the fractures caused
by this mining activity and into old mine workings that eventually lead
to the current workings. It is then pumped out to irrigate crops
elsewhere, or for mine operations. Resolution Copper has contracted
with the Town to study this problem and work to restore the Creek's
natural flow. They have committed to provide baseline flows and to
complete a hydrological study to determine how much water is lost to
dewatering and to provide replacement water. In addition, they will
place a conservation easement through the Town to restore the Creek.
While this involves a small fraction of the water the mine will use
over its life span, this impact is very important to the Town's
survival and ability to maximize tourism as a part of a diversified
economy.
Question 4. Could you talk about the community investments that
have been made in anticipation of the project?
Answer. Resolution Copper has been a key community partner from
their early days providing support to our local non-profits and the
school district, as well as providing funds for strategic planning that
allows the Town of Superior to diversify our local economy. In 2019,
the Town of Superior, Superior Unified School District, Rebuild
Superior Inc. and the Superior Chamber of Commerce signed multi-year
funding agreements. These agreements invested private dollars from Rio
Tinto (the parent company of Resolution Copper) into community and
economic development programs, the Multi-Generational Center, education
infrastructure for our school district and capacity-building funding
for the Superior Chamber of Commerce and Rebuild Superior Inc. The
Superior Chamber of Commerce and Rebuild Superior Inc. both provide
important programs and services that advance the economic and community
development for Superior.
Question 5. As part of the land exchange legislation in 2014, the
Town of Superior was authorized purchase some parcels of land. How
would the inability to purchase these lands impact Superior?
Answer. When the land exchange was proposed, a provision in the
bill allowed the Town of Superior to purchase 546 acres of federal
lands adjacent to our Town boundaries, which includes the reversionary
rights to the Superior Municipal Airport and the Fairview Cemetery.
This would at least double the amount of land available in Superior for
possible future development, and some of the property is uniquely
suited to the highest and best uses for the future of the community.
The purchase of the reversionary right for our airport will mean
that Superior will finally be able to legally subdivide the property
and fully develop the airport and the airport contiguous properties.
Superior desperately needs this land to be able to increase available
lands for economic development and housing. Without the ability to
purchase these lands, Superior will not be able to increase housing
availability, create economic development and job opportunities, expand
our industrial park or develop our airport.
We are also under a tight time frame. At this time, we have less
than 18 months left in our agreement with the Department of the
Interior to purchase these lands before another mining company could
start developing additional drill sites to explore for copper in this
area. This proposed drilling plan is not in the best interest of the
Town of Superior or the Boyce Thompson Arboretum. In fact, this other
mining company will most likely begin its drilling for copper ore along
the scenic and beautiful US 60, creating great harm to our budding
visitor/tourism industry.
Question 6. In your testimony you mention the Town of Superior is
seeking to expand its recreational economy. Can you talk a bit about
how Resolution Copper and recreational users interact now? Do you
believe mining and recreation can co-exist into the future?
Answer. I absolutely believe that mining and recreation can co-
exist and in a mutually beneficial manner. Over the past decade,
Resolution Copper has helped to support key projects such as the
development of the Legends of Superior Trails (LOST), which is the
first gateway community connector trail to be constructed along the
Arizona National Scenic Trail. We are proud of this accomplishment.
Specifically, the Queen Creek Canyon segment of the LOST trail is
located on Resolution Copper property. Access and use agreements have
allowed residents and visitors to access this segment of trail and most
recently it has become an important attraction to our downtown due to
the proximity of the trail head to the heart of Superior.
Resolution Copper has also developed additional agreements with the
Queen Creek Climbers Coalition and REI to allow for bouldering and rock
climbing on their property. The rock climbing in our region is world
renowned and I am pleased the Resolution Copper has remained committed
to allowing access. Their predecessor, Magma Copper, never tried to
restrict access to these climbing locations or the Queen Creek trail,
so there is precedence that these are important recreation areas.
To help further develop our recreation economy, Resolution Copper
has funded facilitation of many outdoor recreation groups that recreate
in and around Superior on the Tonto National Forest. This group has
been named the Recreation Users Group (RUG) and they have been meeting
for the past 8 years to develop a planned system of trails within the
Tonto National Forest that also connect into the local Superior LOST
trail system. The RUG plan was approved by the multi-member group and
submitted into the EIS. The plan would help to build upon the existing
trails and roads and improve recreation access for both residents and
visitors to the area.
Furthermore, Resolution Copper has committed to replacing the Oak
Flats Campground with a new modern campground with facilities at the
Castleberry Ranch which is actually located in our Town's municipal
boundaries. Resolution has committed to funding the construction of
this campground, within 6 months of the Record of Decision being
signed, as per our mitigation agreements. We urgently need this
campground sooner rather than later. Recreational demand continues to
grow in our area. In 2014, the Apache Stronghold organization was
allowed to permanently set up their encampment at Oak Flats making it
often difficult for those not associated with their organization to
enjoy Oak Flats. Any further delay in settling this FEIS is affecting
our ability to improve and increase outdoor recreation amenities to our
community.
Question 7. Have you or your staff had an opportunity to review the
Final Environmental Impact Statement in detail, yes or no? Do you
believe the outcome is thorough and should proceed? Have you been able
to work with Resolution Copper to find solutions for issues outside of
the EIS scope?
Answer. Superior's Town Manager Todd Pryor read the Draft EIS in
its entirety--all 1,400 pages--twice. After his study period, he
prepared ``homework'' for our Town Council to reference the pages in
the document where it was essential that our elected officials needed
to review, provide input and fully understand the policy, economic and
societal implications of the proposed operations. Working with our Town
Manager and others, the Town Council not only developed positions and
policies on the proposed mining operations and its impacts, we also
hosted our own public meeting regarding our findings within the EIS
seeking more public input. Through this study session, we then
finalized our comment letter. We used this study session and comment
letter to inform our local residents of the mitigations we were seeking
to ameliorate or neutralize the adverse impacts of the proposed mine.
We have read through the Final EIS to ensure our requests for
mitigations were included and we have not found any discrepancy. The
Town has not filed any objections to the FEIS. However, the Recreation
Users Group and the Legends of Superior Trails Inc. did submit an
objection that the miles of trails that would be constructed by
Resolution Copper as mandated by the FEIS were significantly less than
were proposed in the DEIS.
Question 8. In your opinion what would it mean to your community
and surrounding region if the Land Exchange were to be repealed, or if
the FEIS is not re-published.
Answer. If the Land Exchange were to be repealed or the FEIS not be
re-published, it would be devastating for our community. Superior and
its residents have been waiting for well over a decade for the
opportunity to purchase this land in order to expand opportunities for
housing, economic development and jobs, which at present are severely
limited. Our mitigation agreements with Resolution Copper are staged to
go into force at various points in time. For instance, when the Record
of Decision is signed, Resolution Copper will fund the construction of
the new Castleberry Campground and new trail system, which are vitally
important community amenities. Further delays will create more hardship
for the Town and for outdoor enthusiasts from Arizona and beyond who
want to avail themselves of these facilities.
If we cannot purchase our land exchange parcels, prior to our
agreement with the Department of the Interior, expiring, there is a
chance we will never be able to purchase these lands and Superior will
be forced to have significant mining operations on our western
boundary. Those operations will create far more damage to our community
and aquifers, as those operations will likely need to be open pit
mines. This is not in the best interests of Superior.
Our Town leadership has been participating in this arduous and
extensive process and if we were forced to start over, it would be a
significant financial burden to the town. Our administrative staff
consists of a Town Manager, Town Clerk, Finance Clerk and an
Administrative Assistant. Actively participating in these permitting
processes is part of our accountability to our residents; however,
these protracted multi-year processes require an inordinate amount of
time, resources and effort to effectively navigate through their
complexities.
______
Ms. Leger Fernandez. Thank you so much, Mayor Besich, for
your witness testimony.
We will now turn to questions from our Members. We will
begin with Chairman Grijalva.
Mr. Grijalva. [inaudible] the Oak Flat transfer. More
importantly, if tribal consultation had been codified at the
time of Section 3003's insertion into the NDAA in 2015, could
this land transfer have been prevented?
And the other thing is, you briefly mentioned traditional
cultural properties, and I would really like you to elaborate
on those and explain their importance.
And thank you, Madam President.
Ms. Leger Fernandez. Chairman Grijalva, is that question
directed to President Sharp? You were cut off at the beginning,
I believe.
Mr. Grijalva. Oh, I am sorry. Yes, it is. Thank you. Would
you like me to repeat that?
Ms. Sharp. Yes, please. I couldn't hear the beginning of
the question. Thank you.
Mr. Grijalva. The issue of tribal consultation and the role
that it would have played in the creation of legislation that
mandated this land transfer in Oak Flat. If tribal consultation
was codified at the time this section was inserted into the
2015 National Defense Act, could the land transfer have been
prevented?
And then I think the point that you mentioned about
traditional cultural properties, just to elaborate on that and
explain their importance. With that, I turn it over to you, and
sorry about the glitch there.
Ms. Sharp. Yes. Thank you, Chairman. I really appreciate
that question.
The issue of consultation for Tribal Nations, it is one
that ensures that we have political equality with another
sovereign, with our trustee, the United States. When we don't
have consultation, we are vulnerable to another sovereign
taking unilateral action against our lands, territories, and
resources, not only without hearing our voice, but we think
that we need to have consent in those relationships.
None of that was accomplished here, and what it meant was
this bill was passed without the knowledge, the wisdom, the
timeless honored traditions of the San Carlos Apache people and
was done unilaterally. So, the legislation itself was entirely
void of any of that connection with the San Carlos Apache
people.
And to your point about tribal traditional, cultural
properties, that too is an important point to mention, that not
only is it important to recognize those areas where there is a
geographical footprint, but there are traditions and there are
connections to sacred sites and lands that can only be
understood by consulting with Tribal Nations and in hearing
from our perspective. These are things that you cannot find on
the internet, study in a book, or any other environmental
study. So, it is absolutely important that we be directly
engaged and consulted with, and I appreciate the question.
[Speaking native language]
Mr. Grijalva. Thank you.
Dr. Wells, if I may, your testimony mentions that you are
part of a groundwater modeling work group for environmental
review process. From your participation in this process, do you
believe the citizens of nearby communities in Pinal County and
others of the state should be concerned about the water
scarcity if Resolution Copper moves forward, and if so, why?
Dr. Wells. Thank you, Chairman, for that question. The
answer is unreservedly, yes. Nearby communities need to be
concerned about water scarcity, frankly, even without
Resolution, and this only makes it worse.
Another thing to keep in mind is the other major source of
water for the state is the CAP, the Central Arizona Project,
which brings in water from the Colorado River. And as a Member
mentioned earlier, if the water levels in Lake Powell decline
to a certain level, there will be automatic restrictions, which
would result in very large reductions in Arizona's delivery of
Colorado River water. And according to the Bureau of
Reclamation's most recent estimates, there is almost a 50
percent chance of that happening just in the next 2, 3, or 4
years.
Mr. Grijalva. Thank you.
And, President Lewis, it is good to see you. Can you talk
about what it would mean--well, let me go to the other point
that you made in your written testimony. You mentioned Rio
Tinto's actions that destroyed Indigenous rock shelters in
Australia, and I mentioned it as well. What has Rio Tinto's
response been to that devastation at the gorge, and how does
that parallel with Oak Flat?
Ms. Leger Fernandez. Chairman Grijalva, given the technical
difficulties, I will allow an extra 30 seconds for this. So,
President Lewis?
Mr. Lewis. Yes.
Mr. Grijalva. Thank you.
Mr. Lewis. Like in the testimony, just the destruction of
sacred sites, obviously they are irreplaceable, and I think
that is what the main concern for tribes is. Once these sacred
sites are lost, they cannot be brought back, they cannot be
mitigated, they cannot be replaced.
So, I think that is what we got the most out of looking at
that other sacred site issue that happened over there, is that
it is irreplaceable. And as we know, tribes are limited in
their sacred sites, and that is what I feel about that.
Ms. Leger Fernandez. Thank you very much.
Mr. Grijalva. I yield back.
Ms. Leger Fernandez. Thank you, Chairman Grijalva.
Ranking Member Westerman is now with us and has asked that
he be allowed to give his opening statement at this time. I
will recognize Ranking Member Westerman for his opening
statement, and then I will also recognize him to ask his
questions at this time.
Congressman Westerman, are you with us?
If he is not here, I will now turn to Congressman Young.
Mr. Young. Thank you, Madam Chair. And I thank the
witnesses again. This is a very controversial issue, and I am
always interested in the conflict. But to Mayor Besich, how
long did it take? Do you think the NEPA analysis was rushed, or
do you think it took some time?
Ms. Besich. This has been an incredibly long process for
everyone involved. Since the land exchange was approved, we
have been in a permitting process for probably a decade, at
least going through developing the draft EIS and coming to the
final EIS that was released in January.
Mr. Young. OK. Do you think the Forest Service did an
adequate job?
Ms. Besich. They did a more than adequate job. They were
very thorough and provided all of the partners opportunities to
consult and interact with them and the process.
Mr. Young. Has Rio Tinto been asked about--instead of the
cliff-type mining, about the possibility of undersurface
mining? Has that been discussed at all in this consultation?
Ms. Besich. I believe that Rio Tinto has suggested how they
are planning on mining this ore body, but I am not aware of any
other further consultations with the Forest Service and Rio
Tinto.
Mr. Young. OK. Because that is one thing that interests me.
I understood the religious concept and the sacred ground, but I
would wonder if there would be opposition, in fact, if it was
underground mining, because this ore is quite deep, the way I
understand it, and that is something we may consider.
I am open minded on this. I was part of this program. I
have gone through every hearing on it, and I want to listen to
the author of the bill. But we keep talking about it, I talked
with the President yesterday, about modern technology and it
all includes copper, and if there is a way, I would just as
soon make sure we can do it safely here, rather than buying it
from Australia or some other country. So, I think we all ought
to take that into consideration.
And, Madam Chair, with that, I am going to yield back. I
have another appointment. I will say I am sorry for Ranking
Member Westerman. I don't know where he is. This Zoom stuff
drives me crazy. But thank you, Madam Mayor. I was a mayor,
hardest job I ever had, so I don't envy you.
Ms. Besich. Thank you, Congressman.
Ms. Leger Fernandez. Thank you, Congressman Young.
The Chair will now recognize Congressman Gallego for 5
minutes.
Mr. Gallego. Excellent. Can you hear me? Thank you.
First question is for Mr. Wells. You, I think, describe
what happens in case we have to go through a drought
contingency where we fall to certain levels, which means that
people will have to stop using water, farmers, some
municipalities. Would the mine be exempt from that situation,
let's say that if the state has to go through some type of
drought contingency?
Dr. Wells. Thank you, Congressman. I am just a geologist
and not a lawyer, but I will tell you what I think. I think the
answer is, the mine would be exempt from that because the
drought contingency plan describes how water from the Colorado
River would be allocated, and the mine would be pulling
groundwater from the East Salt River Valley.
So, it is my understanding that, yes, they would
essentially be exempted from any water use reductions.
Mr. Gallego. OK. We should probably get some clarification
on that.
President Lewis, back on water, your testimony pointed out
the estimate that the proposed amount will deplete at least
87,000 acre-feet of water in the Oak Flat area and pump more
than .5 million acres from your groundwater from central
Arizona. So, we know how this impacts obviously the valley
where I am in central Phoenix, or south Phoenix, I should say.
But how does this really impact Tribal Nations, which I think
don't necessarily have as much of the water infrastructure that
would be helpful when we are dealing with droughts?
Mr. Lewis. Yes, Congressman. Well, as we know, water is
life. Obviously, if water were to be depleted from a
reservation, obviously it takes away the life of the
reservation. There are many tribes in Arizona. We are spread
out. We have tribes on the Colorado River. We have tribes like
San Carlos that are up in the mountains. We have desert tribes.
So, water is very important to tribes, obviously. And I
think the protection of water, especially in Arizona, has been
seen through the drought contingency plan of tribes being at
the table with all of those different things that are going on
with this looking at this drought contingency plan in the
future of what is going to happen.
And I think that is what is most important to this with
tribes. If they lose their water, obviously they lose their
cultural resources, they lose things like that. So, that is
really what is important. Water is life.
Mr. Gallego. Thank you. I yield back.
Ms. Leger Fernandez. Thank you, Congressman Gallego.
The Chair would now recognize Mr. Obernolte for 5 minutes.
Mr. Obernolte. Thank you, Madam Chairman, and thank you
very much for holding this hearing. I think this is an
incredibly important topic, because when we consider the wide
variety of land that is held by the Federal Government and the
competing demands on that land, I think Congress exercises a
really unique responsibility to recognize those competing
interests.
On the one hand, we have here the tribal interests, the
sacred lands, the concern about resources like water; and on
the other hand, we have the desire to have strategic minerals
mined here in the United States, the recognition that that has
to happen somewhere, and the jobs and the prosperity that that
is going to bring to a very rural region of the country. So, I
think this is very appropriate for us to be discussing this
topic.
I had a question for Mr. Lewis. Following up on the
comments of Ranking Member Young, he was asking about whether
or not there might be a compromise here, whether or not the
areas of tribal significance could be avoided, whether or not
different mining technologies could be used to extract that
copper from one of the richest deposits of copper in the world.
So, Mr. Lewis, is there some kind of compromise here that
would preserve the aspects of this land that you are concerned
about and yet still allow the copper to be extracted?
Mr. Lewis. So, I think I can't fully answer that. I think
the San Carlos Apache could better answer that question.
Obviously, tribes aren't against mining, but with this type of
mining and the potential destruction of the sacred sites and
the depleting of water, I think that is more of a technical
issue for the San Carlos Apache to be able to answer as far as
mitigation. But at the end of the day, this type of mining
would destroy sacred sites. So, I would probably refer that
back to the San Carlos Apache, who actually live in the area.
Mr. Obernolte. OK. So, Ms. Sharp, same question to you. Is
there a half a loaf here that can satisfy the desire to get
access to these minerals on Federal land and yet still respect
those tribal rights that I think we all very much appreciate?
Ms. Sharp. I believe if the United States truly honored its
trust and treaty obligations and understood what sacred sites
and religious freedom meant to the rights of Indigenous
peoples, it would be quite clear that the United States is not
even in a position to ask that question and make that calculus.
If a Tribal Nation says we have a sacred site, this is
where we have an identity, the United States must honor that.
It must honor the right of Indigenous people, to them
practicing religious freedoms for millennia in a place that is
not only essential to their spiritual health but their very
core of their identity. It is wrong to even ask that question,
to make a calculus.
It would be like saying, if there was a copper mine
discovered underneath the Vatican, would it be OK to desecrate
the Vatican to access rich resources? I think the answer would
be no.
Mr. Obernolte. Thank you. I think I am--Ms. Sharp?
Ms. Sharp. Hello? You cut out at the beginning of that, and
I couldn't hear the question. You are buffering.
Mr. Obernolte. OK. Let me state it again. I think I
understand the point that you are making. Forgive my ignorance
here though, is the entire site a sacred site or just portions
of it?
Ms. Sharp. I couldn't answer that definitively. I know that
there are sacred sites in that space. I have seen a map of it.
It is quite a large footprint. And I would imagine that whole
area, just like in our area here at Quinault, we have sacred
sites in certain places.
But there is a geographical area that represents our
ancestral homelands, and accessing it and being able to not
only practice in certain spaces but the ability to access those
entails a whole geographical area. And I just couldn't speak
directly to that, about how encompassing that is for the San
Carlos Apache people to not only practice their religious
freedoms but to access it.
Mr. Obernolte. All right. Well, thank you. I will yield
back. Let me just say that, like the Ranking Member, I am
hopeful that maybe there is a compromise that can respect the
rights that I think we all want to respect and still allow
Federal land to be used for a purpose that I think benefits----
Ms. Leger Fernandez. Mr. Obernolte, you are buffering. I
want to see if we can hear your statement. Can you hold on just
a second because I would like to hear your statement, but you
seem to be cutting out.
Mr. Obernolte, I will give you time to complete your
statement because you did cut out, and I believe you were
trying to make an important closing to your questioning. I will
give you time to do that right now.
Mr. Obernolte. We are having mutual technical difficulties
here. But I just want to reiterate what the Ranking Member was
talking about--about perhaps finding a compromise here that
respected both tribal rights and the vested public interest in
extracting a strategic mineral from within the Continental
United States.
Thank you, Madam Chair, and I yield back.
Ms. Leger Fernandez. Thank you, Mr. Obernolte.
The Chair will now recognize Congresswoman McCollum.
Ms. McCollum. Thank you, Madam Chair. I am going to make an
observation. We have talked a lot about mining, but there is
another way we can mine and it is recycling. And we do know
that people will go through abandoned buildings or homes that
are left unoccupied, businesses to strip the copper out.
So, it is valuable, and we should be looking at doing more
as a government for recycling these precious minerals and
reusing and reducing the amount of disruption we do to our
environment.
Water has been discussed. Water has great value. As several
people have pointed out, you can't live without the essence of
water; yet, we don't place a dollar value on it, and because it
doesn't have a dollar value it goes up against things that do
have dollar values.
So, with that, Madam Chair, I do have something I would
like to ask President Lewis. I want to thank you for your
testimony on behalf of fellow tribal leaders in Arizona. You
shared some very powerful words about the value of the sacred
Oak Flat area to the Western Apache people. This was their
land, and this still is your land, and I would like to
highlight one part of your testimony because I think it is
incredibly important.
When I served as a state legislator in Minnesota, I worked
in the general legislative committee, and we dealt a lot with
cemetery laws and places where there were burials and sacred
sites and that. We did everything in our power to respect that,
and so I bring that value and that ethic with me here.
But, sir, you stated in your testimony, and it was very
moving, and I quote from it, ``It will leave a stain on who we
are as Americans since we would be exchanging the religious
freedoms of tribal people for a promise of jobs and profit
offered by a foreign mining interest.'' And I couldn't agree
with you more.
But for those who might like some more education and
understanding of tribal tradition and religion, could you maybe
talk a little more about the precedent that this would be
setting to exchange Federal land that is currently protected, a
known traditional, cultural property to a foreign--and I want
to stress this--to a foreign mining company whose activities
will destroy this sacred site. Mr. Lewis, could you tell us
some more of what you would like us to know?
Mr. Lewis. Thank you for those words.
What I know about tribes in Arizona, there are 22 tribes in
Arizona. Each one of them has its own beliefs. Each one of them
has its own sacred rituals, all the way down to, like you
mentioned, burial rituals.
So, I don't want to speak for how another tribe does it,
but every tribe has its own unique way of doing things. And
what is important to know in this case is that if something is
lost, like a sacred site or a burial site, for instance, here
in San Carlos, once it is gone, it is gone forever. There is no
way of bringing it back or mitigating it or doing anything to
right that wrong. And I think that is what is important here
and what we are trying to get across is once that is gone, you
can't bring it back.
And as far as San Carlos is obviously being against the
mine, you could probably--I don't want to speak for them, I
don't want to say exactly what it means to them.
Ms. McCollum. I appreciate that. Thank you for that.
I just want to refresh everybody. There was a great vocal
opposition to this, and the Southeast Land Exchange was pushed
through in a last-minute rider on the Fiscal Year 2015 NDAA, a
defense bill, without allowing a vote in the House or the
Senate. So, we have never had a clear vote on this. We have
never been given that opportunity. And I remember the shock and
anger I felt by the use of that tactic was outrageous, and I
also remember rallying with you, Chairman Grijalva, as tribal
leaders and Native youth came to our Capitol lawn that summer,
and I said I would stand with them.
So, Madam Chair, I am so glad you are having this hearing
today, and I thank you for the opportunity to ask a question.
Ms. Leger Fernandez. Thank you very much.
The Chair will now recognize Congressman Rosendale for 5
minutes.
Mr. Rosendale. Thank you, Madam Chair, for the hearing
today. And, Chair Grijalva, please accept my condolences for
you and your staff. Thank you very much to the panel also, the
entire panel, for joining us today.
As you may know, Montana is a leader of copper production,
with copper being the second most produced mineral in Montana.
It accounts for a significant percentage of the state's GDP. In
2020, the United States saw a decrease in copper production by
5 percent, and the United States imported 50 percent of its
nonfuel mineral commodities.
I find these statistics deeply troubling as we enter an era
marked by innovation and global competition for
telecommunications, electronics, and renewable energy
technologies. The United States is the safest, most
environmentally friendly country for mineral production. We
have regulations in place to ensure stringent environmental
standards are met, and much greater protections for our workers
than anyplace else. U.S. mineral import dependence and the
concentration of mineral supply from certain countries is a
growing threat to economic growth, competitiveness, and
national security.
All that being said, Mayor Besich, could you please talk
about the community investments that have been made in
anticipation of this project?
Ms. Besich. Thank you, Representative Rosendale.
Resolution Copper has been making significant investments.
Prior to the draft EIS coming out, we developed several
agreements, one for education where they fund our schools in a
5-year increment for $300,000. We have a multi-generational
center agreement, which is helping us to recession-proof our
community services, such as our senior center, library, and, in
addition to our multi-gen center, we will also add an
entrepreneurial and innovation center, which will grow and help
support future entrepreneurs and existing entrepreneurs in our
community.
They have also funded our Chamber of Commerce to help us
with promoting Superior and helping our existing business
community grow, and also rebuild Superior, where we have been
working on housing redevelopment, and really making sure that
Superior is ready to support this monolithic mining operation.
Mr. Rosendale. Excellent, excellent.
What impact would this legislation and the repeal of this
land exchange have on your community?
Ms. Besich. We are very concerned if the land exchange is
repealed because our opportunity for growth and economic
diversification is tied to this land exchange. The Town of
Superior will be able to purchase 546 acres of Federal Forest
Service land, so we can develop additional housing and
commercial and business opportunities. If this land exchange is
further delayed and/or rescinded, we have to start at the
drawing board. This has been an incredibly arduous process for
the Town of Superior to actively participate. So, it would be
devastating for us to start all over again.
Mr. Rosendale. So, clearly, you wouldn't have the resources
available to continue this work for your education, to take
care of your seniors, and to develop this housing for your
housing needs?
Ms. Besich. Absolutely not. This would really set us back
probably two decades at this point if we had to start all over
again.
Mr. Rosendale. And, finally, as part of the land exchange
legislation in 2014, the Town of Superior was authorized to
purchase some parcels of land. How would the inability to
purchase those lands impact Superior?
Ms. Besich. Quite frankly, we will not be able to grow or
expand. We are already in a pinch for needing affordable
housing and additional business opportunity. Without this land,
Superior will be held in a holding pattern probably
indefinitely.
Mr. Rosendale. OK. Thank you so much for your testimony
today.
Madam Chair, I would yield back my time. Thank you.
Ms. Besich. Thank you.
Ms. Leger Fernandez. Thank you, Mr. Rosendale.
The Chair will now recognize Representative Lowenthal for 5
minutes.
It appears Mr. Lowenthal is not with us right now, so the
Chair will now recognize Mr. Garcia for 5 minutes.
Mr. Garcia. Thank you, Madam Chair and Ranking Member, and,
of course, to all of the witnesses that we have heard from.
Last year, I met with a young girl named Vanessa from the
San Carlos Apache Tribe. She talked about the importance of Oak
Flat and what the sacred site means in a young woman's coming-
of-age ceremony. And now Oak Flat, a sacred site to many Tribal
Nations for the past 1,500 years, is at risk of being destroyed
for a mining operation. It may not be our religion, but to
Vanessa's family, the death of the lands is the death of their
daughter, who will be unable to become one with the earth.
Plain and simple, this is a violation of the sanctity of
ancestral lands of Indigenous peoples. You destroy it, and it
is gone forever.
A question for President Lewis, thank you for your
testimony and for joining us today. You state in your testimony
that moving forward with this project would also leave a stain
on who we are as Americans, since we would be exchanging the
religious freedoms of tribal people for a promise of jobs and
profit offered by foreign mining interests.
Can you talk about the precedent of exchanging a known
traditional cultural property to foreign mining companies who
will destroy it, that this would establish here in our country?
Mr. Lewis. Thank you for the question, Representative
Garcia.
Again, looking at the impact that this would have on tribes
as setting a precedent would be the impact of destroying of a
sacred site. As we know, and I think you made your statement
earlier, that the destruction of a sacred site is
irreplaceable. And to tribes, I think I agree with you, the
importance of that may be more important to the tribes than
people that aren't familiar, but the destruction of a sacred
site, and the irreplaceable act of doing that is what is
probably the most important thing to the tribes.
Mr. Garcia. Thank you, President Lewis.
You mentioned the destruction of 46,000-year-old Indigenous
rock shelters in Australia. What has been Rio Tinto's response
to that devastation of Juukan Gorge? And how does this parallel
Oak Flat?
Mr. Lewis. Not to be totally familiar of how that exchange
went, but the irreplaceable sacred site is, I think, what is
most important. And to think that you can replace a sacred site
with jobs or money, that is not acceptable to Tribal Nations.
Mr. Garcia. Thank you, sir.
In closing, I would just ask my colleagues, if Oak Flat
were a Christian holy site, would we even be having this
discussion? As we consider the harmful impacts of bulldozing
through and desecrating sacred sites, let us not forget that
this is ultimately about profits. The poorly vetted proposal
from Resolution Copper, a joint venture run by foreign mining
companies, will come at a great cost to the communities closest
hit, all of which was done with little consultation with
tribes, and all of which is happening because of the midnight
rider that is giving our public lands, the sacred lands of
tribes, to a corporation.
I yield back, Madam Chair.
Ms. Leger Fernandez. Thank you, Mr. Garcia.
The Chair will now recognize Mr. Bentz for 5 minutes.
Mr. Bentz. Thank you, Madam Chair, and thank everyone for
their most interesting testimony.
A couple of remarks about the need for copper. The first,
perhaps people should be reminded that a current automobile,
conventional car, uses between 18 pounds and 49 pounds of
copper; a hybrid vehicle, about 85 pounds of copper; a plug-in
vehicle about 132 pounds of copper; and a battery electric
vehicle about 183 pounds of copper.
So, as we look into our future, which I think is going to
be electric, we need four times as much copper for each car.
This is nothing to be argued over. It is just the facts.
And we also recently became aware, because of the COVID
challenge, of the fragility of our supply chains when we are
trying to import this precious metal from other countries, and
the incredible risk we face if we rely upon countries that
don't share our interests in protecting our Indigenous peoples.
Why would we want to put our fate in their hands?
I place this situation before President Sharp, as I am now
going to ask her a question about how we balance, given the
existential challenge that we face with these climate issues.
How are we going to meet these challenges and balance against
them the important religious issues we have now been hearing
about?
Would you please address that? Thank you.
Ms. Sharp. Yes, absolutely, and I appreciate that question.
The first point I would make is, and it goes back to my
remark earlier, that the ability for a Tribal Nation to
exercise its religious freedom is something that was gifted to
us by our Almighty Creator. These are things that are
absolutely central to our identity, central to our spiritual
health, and the cost that a question of balancing interests, it
is unconscionable to think that we are even having that
question.
When I hear the Mayor talk about the toll that the
potential of not passing this bill would wreak on her
community, that is a direct result of the failure of the United
States to honor the basic human and civil rights of Indigenous
peoples to begin with.
So, that is one price that will be paid. There is another
price for desecrating the spiritual health and well-being of
the San Carlos Apache for which there is no way to bring that
back. There is no way to fund that. There is no way to, in any
way, monetize that.
So, to even begin to analyze the question of balancing, I
can't even let my mind go to that place, because this is
something that is so central to who we are, and the precedent
that this would create, not only at San Carlos Apache, but all
across Indian Country, if we can monetize our spiritual health,
if we can monetize that which the Creator gifted to us, if we
can monetize our very identity, clearly that would create a
path where all Indigenous peoples risk even surviving another
generation. I can't even get to that place.
Mr. Bentz. Thank you, President Sharp.
And a question for Dr. Wells. I just want probative
perspective, the 13,000 acre-feet of water this project would
use each year, those are my numbers, and my understanding is
that, under the Colorado River Compact, Arizona is to end up
with 2.8 million acre-feet of water a year, and I know that
could go down; but to put that in perspective, this project
would use 13,000 acre-feet. The Colorado project allocates 2.8
million acre-feet to Arizona.
I just want to cull that out and suggest that the
hypotheticals that we are using trying to show how much 13,000
acre-feet is is interesting, but it needs to be played both
directions.
And with that, Madam Chair, I yield back.
Ms. Leger Fernandez. Thank you very much, Congressman
Bentz.
I will now recognize myself for 5 minutes.
I really understand the delicate needs that we are trying
to grapple with this hearing, the need for copper and the
certain level of independence. But I am struck by two comments.
One is, once it is gone, it is gone forever, as we heard from
President Lewis. And I am thinking about the comment that we
heard at our last Subcommittee hearing where we were encouraged
to use Indigenous women, wisdom from a wonderful Hawaiian
woman, and that is the need to protect our planet while we move
forward on developing our future. And it is really important
that we learn the lesson of placing long-term protections over
short-term prospects.
And I think some of those concerns were reflected in
several letters that we received, including from the San Carlos
Apache Tribe, the Navajo Nation, and the Advisory Council on
Historic Preservation, outlining their concerns with the
transfer of Oak Flat. And I ask unanimous consent to submit
these to the record.
[The information follows:]
Advisory Council on Historic Preservation
Washington, DC
March 29, 2021
Hon. Tom Vilsack
Secretary of Agriculture
1400 Independence Avenue SW
Washington, DC 20250
Re: Resolution Copper Mining Project and Land Exchange, Tonto National
Forest, Pinal County, Arizona
Dear Mr. Secretary:
In accordance with Section 106 of the National Historic
Preservation Act (54 USC Sec. 306108) (NHPA) and its implementing
regulations, ``Protection of Historic Properties'' (36 CFR Part 800), I
am conveying to you the final comments of the Advisory Council on
Historic Preservation (ACHP) regarding the U.S. Department of
Agriculture (USDA) Forest Service (FS) Tonto National Forest's (TNF)
proposed Resolution Copper Project and Southeast Arizona Land Exchange.
On February 11, 2021, the ACHP terminated Section 106 consultation,
having determined that further consultation to reach an agreement would
be unproductive. I would again like to express the ACHP's appreciation
for USDA's intervention on March 1, 2021, halting the statutory
timeline to transfer the land for the project as this will allow you
more time to consider our comments at this critical juncture. In
accordance with 36 CFR Sec. 800.7(c), the ACHP is providing these
comments, which you must consider and respond to before reaching a
final decision on the undertaking.
Background
On December 19, 2014, President Barack Obama signed into law the
Carl Levin and Howard P. ``Buck'' McKeon National Defense Authorization
Act for Fiscal Year 2015 (Public Law 113-291) (NDAA), which directed a
land exchange between the U.S. Government (USDA and Department of the
Interior) and Resolution Copper Mining, LLC (Resolution Copper) for the
purposes of extracting copper deposits known to be present in lands
within the TNF. In the exchange, Resolution Copper would receive 2,422
acres of National Forest System (NFS) land known as the Oak Flat
Federal Parcel in return for 5,344 acres of private land owned by
Resolution Copper. The land exchange would facilitate Resolution
Copper's proposed copper mine by removing the Oak Flat parcel from
federal ownership, therefore eliminating the mining restrictions put in
place by Public Land Order 1229.
As the agency required by law to transfer the property, the FS is
responsible for carrying out the Section 106 review and consultation
regarding both the proposed Resolution Copper Project and the Southeast
Arizona Land Exchange (jointly, the undertaking). The NDAA did not
modify the Section 106 requirements for this undertaking. However,
because the NDAA requires specific actions be taken by the FS, the
parties to the Section 106 review were unable to consider alternatives
that would avoid all adverse effects to historic properties. Further,
the NDAA placed additional requirements on the FS and Resolution Copper
regarding consultation with Indian tribes and impacts on cultural and
archaeological resources. This included seeking ``to find mutually
acceptable measures to--(i) address the concerns of the affected Indian
tribes; and (ii) minimize the adverse effects on the affected Indian
tribes resulting from mining and related activities on the Federal land
conveyed to Resolution Copper'' and, as part of the agency's analysis
under the National Environmental Policy Act (NEPA), identifying
``measures that may be taken, to the extent practicable, to minimize
potential adverse impacts on those resources, if any.'' These NDAA
requirements are independent of the standard Section 106 procedural
requirements, adding further complexity to the consultation process.
The Programmatic Agreement (PA) that was being negotiated under Section
106 referenced the agency's concurrent compliance with these measures
in the NDAA. The NDAA also established a timeline for the land
exchange, requiring it to occur no later than 60 days of the FS
issuance of the Final Environmental Impact Statement (FEIS).
Undertaking
The undertaking consists of the General Plan of Operations (GPO) to
be approved by TNF for an underground copper mine submitted by
Resolution Copper on land currently administered by the TNF, the
Arizona State Land Department (ASLD), and private landowners, and the
exchange of lands between Resolution Copper and the United States as
directed by the NDAA. The GPO to conduct mining operations includes the
mine site, associated infrastructure, a transportation corridor, and a
tailings storage facility. Resolution Copper proposes to conduct mining
using a technique known as panel caving, which uses a network of shafts
and tunnels constructed below the ore body located within the Oak Flat
Parcel. While the proposed mining would occur underground, the removal
of the ore would cause the ground surface to collapse, creating a
subsidence area at the Oak Flat Federal Parcel that would result in a
crater between 800 and 1,115 feet deep and roughly 1.8 miles across.
Additionally, several alternatives are being considered for the
permanent disposal and management of the mine tailings, including an
alternative on Bureau of Land Management (BLM) administered lands. The
undertaking spans the life of the mine, which is envisioned to occur in
three distinct phases: construction, operations, and reclamation,
spanning roughly 56 years. At the end of operations, facilities would
be closed and reclaimed in compliance with permit conditions.
Historic Properties and Effects
The TNF made an extensive effort to identify historic properties,
including the development of a comprehensive area of potential effects
(APE) to guide identification efforts. The APE divides the effects of
the undertaking to three zones--physical effects within the project
footprint and Oak Flat Federal Parcel; auditory effects within two
miles of the project footprint and Oak Flat Federal Parcel; and visual/
atmospheric/socioeconomic effects within six miles of the project
footprint, including the historic districts of Globe and Miami,
Arizona. To support identification efforts within the APE, the TNF,
with the assistance of Resolution Copper, also implemented a tribal
monitoring program that utilized inventories/survey efforts conducted
with tribal monitors and tribal field visits to identify historic
properties of traditional religious and cultural importance within the
APE. These efforts were used to expand and augment existing and ongoing
identification efforts including past surveys and ethnographic studies
conducted by and in consultation with Indian tribes.
Early on in the consultation process, the TNF determined that the
undertaking would result in adverse effects to numerous identified
historic properties, including the National Register of Historic
Places-listed Chi'chil Bildagoteel Historic District, known also as Oak
Flat. The TNF identified Oak Flat as a historic property of religious
and cultural significance to Indian tribes and a Traditional Cultural
Property (TCP) significant to multiple Apache tribes. The TNF
previously recognized the site as having physical and spiritual
integrity essential to the continuation of traditional Western Apache
cultural practices, particularly to the San Carlos Apache Tribe. On
March 4, 2016, the National Park Service listed Oak Flat on the
National Register as a historic district and TCP under Criteria A, B,
C, and D with particular emphasis on its association with Apache oral
history and as a venue for ongoing Apache participation in traditional
social activities. As part of the undertaking, Chi'chil Bildagoteel
Historic District would be directly and permanently damaged by the
subsidence area proposed for the Oak Flat transfer parcel.
At the time of the release of the final draft PA, the TNF had
identified 644 archaeological sites in the portions of the APE that
included the Oak Flat Federal Parcel, GPO project areas, and the
proposed tailings locations. Of these, 506 sites were determined
eligible for the National Register, 22 required further evaluation, one
was a natural gas line exempt from further Section 106 review, and 116
sites were determined not eligible for the National Register. Forty-two
of these eligible sites would leave federal ownership, along with the
Chi'chil Bildagoteel Historic District, as part of the land exchange
and would be permanently damaged by proposed mining operations. Another
377 of these sites would be affected by the TNF's proposed preferred
alternative for the processing and disposal of mine tailings, which
would occur on state and private lands.
In addition to these identified historic properties and known
adverse effects, the TNF also identified several other properties of
traditional religious and cultural importance within the APE that would
require further evaluation. The TNF determined that further
identification efforts would be required for various portions of the
APE, specifically those zones related to auditory, visual, atmospheric,
and socioeconomic effects. To address this, the TNF proposed to phase
the identification of additional historic properties. The TNF had
further determined that the undertaking would result in numerous
potential auditory, visual, and atmospheric effects to known and yet to
be identified historic properties.
Section 106 Process
The ACHP recognizes that this consultation posed unique challenges
for all parties involved. The constraints placed on the consultative
process due to the legislated nature of a substantial portion of the
undertaking juxtaposed with the magnitude of the adverse effects to
historic properties severely restricted the TNF's ability to consider
alternatives to avoid or minimize those effects. Further, attempting to
resolve adverse effects to historic properties as immensely important
as Oak Flat, a property of religious and cultural significance to
Indian tribes, in addition to potentially affecting more than 500 other
sites eligible for listing on the National Register, made reaching
agreement on appropriate steps to resolve these effects very difficult.
Based on the documentation provided, the TNF appears to have
initiated consultation with Indian tribes for the undertaking in 2015
following passage of the NDAA, though these efforts were not
consistently characterized as Section 106 consultation. Records
provided to the ACHP also suggest that as early as 2003, the TNF had
carried out preliminary discussions with affected Indian tribes
concerning the potential land exchange, exploratory activities by
Resolution Copper, and the development of historic property inventories
and ethnographic surveys. It is not clear whether any of these
interactions were characterized as Section 106 consultation. On March
31, 2017, the TNF initiated consultation with the Arizona State
Historic Preservation Officer (SHPO). On December 7, 2017, the TNF
notified the ACHP of its finding of adverse effect for this
undertaking, and on December 21, 2017, the ACHP informed the TNF that
it would participate in the consultation.
Consultation has included the SHPO; the Fort McDowell Yavapai
Nation, the Gila River Indian Community, the Hopi Tribe, the Mescalero
Apache Tribe, the Pueblo of Zuni, the Salt River Pima-Maricopa Indian
Community, the San Carlos Apache Tribe, the Tonto Apache Tribe, the
White Mountain Apache Tribe, the Yavapai-Apache Nation, the Yavapai-
Prescott Indian Tribe, the Ak-Chin Indian Community, the Fort Sill
Apache Tribe, the Pascua Yaqui Tribe, and the Tohono O'odham Nation;
and other consulting parties, including Archaeology Southwest, Arizona
Mining Reform Coalition, Boyce Thompson Arboretum, Inter Tribal
Association of Arizona and others, and resulted in the development of a
draft PA that would provide a mechanism for further identification and
evaluation of historic properties as the undertaking was implemented,
as well as a broad array of measures to attempt to resolve identified
adverse effects. Because of the size and complexity of the undertaking
and the scale of the adverse effects, the PA included a suite of
proposed mitigation measures. These measures included treatment plans
for data recovery efforts for the numerous historic properties that
would be physically destroyed or damaged as part of the undertaking,
including a specific plan developed solely for the Oak Flat Parcel. The
agreement also featured a variety of off-site measures in the form of
mitigation funds that would support tribal initiatives, including
cultural resources, education, and youth programs; archaeological
database funding; and development funds for historic properties in the
local community. While initially these measures were vaguely defined,
the TNF, through consultation and clarifying communication with
Resolution Copper, refined and clarified them in the draft PA.
On July 9, 2020, Terry Rambler, Chairman of the San Carlos Apache
Tribe, requested that the ACHP support the prompt completion of the PA
and that it review and report on whether the TNF has complied with
Section 106 regarding this consultation. On July 21, 2020, the ACHP
responded to Chairman Rambler with its recommendations on moving the
consultation process forward as well as committing to review and
provide an advisory opinion on the TNF's compliance with Section 106
for this project pursuant to 36 CFR Sec. 800.9(a). The ACHP undertook
this assessment following its review of the revised PA in September
2020 and outreach to the San Carlos Apache Tribe, the TNF staff, and
other consulting parties. Based upon the ACHP's ongoing participation
in consultation, the ACHP was able to utilize many existing records and
ongoing correspondence. On December 15, 2020, the ACHP provided its
observations and recommendations to the TNF on how to continue moving
the Section 106 consultation process forward. The letter recommended
TNF provide consulting parties with a summary of responses to comments
received on the latest version of the PA, respond to the ACHP's
recommendations on improving transparency in communication and
consultation, and consider hosting a final meeting of consulting
parties to discuss how the TNF responded to comments and its intent to
finalize and execute the PA. Additionally, the ACHP provided two
recommendations to the TNF that were focused on broader, long-term
efforts to improve Section 106 consultation within the Southwestern
Region.
On December 23, 2020, the TNF responded to the ACHP's letter, and
on December 29 released the final version of the PA, indicating its
intent to move forward with its execution. On January 8, 2021, to
inform the ACHP's decision on whether to sign the proposed PA, the ACHP
again requested the TNF provide clarification on several items,
including its coordination of the Section 106 review with the
development of the FEIS under NEPA. On January 15, 2021, the TNF
released the FEIS, which included an unsigned version of the PA. The
issuance of the FEIS triggered the statutory timeline in the NDAA,
requiring the TNF to execute the land transfer within 60 days.
On January 26, 2021, the TNF responded to the ACHP's January 8
letter. The TNF's response included correspondence from the Regional
Forester regarding the ACHP's long-term recommendations. The same day,
the TNF provided a copy of the final PA for the ACHP's signature. All
other Signatories (the TNF and SHPO) and Invited Signatories (the BLM,
U.S. Army Corps of Engineers, Resolution Copper, Salt River Project,
Arizona State Land Department, and Arizona State Museum) had signed the
agreement. On February 11, 2021, the ACHP terminated consultation
pursuant to 36 CFR Sec. 800.7(a)(4) and notified Acting TNF Supervisor
Tom Torres accordingly. On March 1, 2021, the FS announced that USDA
had directed the TNF to withdraw the Notice of Availability and rescind
the FEIS and draft Record of Decision for the Resolution Copper Mining
Project and Land Exchange. Following discussions with FS staff, the
ACHP learned that the decision to withdraw the FEIS halted the
statutory timeline to transfer the land for the project following the
publication of the FEIS.
Execution and implementation of the proposed PA for this
undertaking would have been one way for the TNF to fulfill its Section
106 responsibilities for this undertaking. Because the ACHP terminated
consultation in this case, however, it is now your responsibility, as
the head of the agency, to consider and respond to these advisory
comments in reaching your decision on the undertaking in order to
complete the Section 106 process. In accordance with the statute, you
may not delegate this responsibility. 54 U.S.C. Sec. 306114.
To inform the development of these comments to you, the ACHP
solicited input from consulting parties and the public. The ACHP
received more than 500 comments regarding the proposed undertaking and
its potential effects to historic properties from consulting parties
and members of the public. The ACHP submits the following findings and
recommendations to you for your consideration in making your final
decision on this undertaking.
ACHP Findings
Chi'chil Bildagoteel (Oak Flat) is a historic property of
profound importance to multiple Indian tribes and plays a
significant role in their religious and cultural traditions,
and the proposed measures in the PA are not sufficient
considering the severity of adverse effects to this property
and numerous other historic properties.
The historic significance of Oak Flat cannot be overstated and
neither can the enormity of the adverse effects that would result to
this property from the undertaking. Oak Flat would be directly and
permanently damaged with a substantial portion of the property being
destroyed through subsidence. In addition, hundreds of other historic
properties would be destroyed or otherwise adversely affected by the
undertaking. The ACHP recognizes the intent of the PA's mitigation
measures to account for the loss of these historic sites. While the
ACHP routinely advises agencies to seek creative ways to mitigate
adverse effects where possible, it finds the mitigation measures within
the PA to be wholly inadequate in light of the magnitude of adverse
effects to this and other historic properties of such significance to
numerous Indian tribes. The importance of attempting to develop
adequate measures to resolve adverse effects in this case is further
underscored by Section 110(a) of the NHPA, which requires the agency to
give special consideration to preserving the historic and cultural
values of the nationally significant Oak Flat (54 U.S.C.
Sec. 306102(b)(2)).
The Tonto National Forest was frequently challenged to
effectively and consistently consult Indian tribes on the
resolution of adverse effects and in the development of the PA.
Multiple Indian tribes notified the ACHP of their concerns that the
TNF's consultation with them was inadequate, and the delay in TNF
addressing these concerns diminished the effectiveness of its early
efforts to consult. The TNF struggled to manage its consultation
efforts with Indian tribes and to ensure that consultation informed the
overall Section 106 review for this undertaking. It is clear that the
TNF intended to carry out tribal consultation, including government-to-
government consultation, and solicit tribal input. However, the TNF's
records show the undertaking was not fully defined for Indian tribes at
the outset of the Section 106 review process and that the agency's
early outreach efforts to tribes often lacked transparency and
consistency. The ACHP recognizes the TNF undertook efforts later in the
process that worked to improve consultation, such as the development of
the tribal consultation plan.
The Tonto National Forest had difficulty managing the pace of
consultation and coordinating the Section 106 process with
other federal environmental reviews.
As previously observed in the ACHP's assessment provided to the TNF
on December 15, 2020, pursuant to 36 CFR Sec. 800.9(a), the TNF was
inconsistent in managing the pace of consultation and coordinating the
Section 106 process with other federal environmental reviews and the
concurrent requirements of the NDAA. The TNF's communication on the
purpose of, and audience for, consultation meetings was often irregular
and erratic. There was a general lack of clarity delineating the
Section 106 consultation from the NEPA review process and public
outreach. This confusion was further exacerbated by the TNF's efforts
to meet the requirements of the NDAA regarding consultation with Indian
tribes and measures to minimize impacts on cultural and archaeological
resources. The ACHP recognized the improvements made by TNF in the
Section 106 consultation process but also noted that valuable time was
lost due to miscommunications during earlier consultation. Lastly, the
publication of the FEIS, which started the statutory 60-day time limit
for the land transfer, challenged the TNF's ability to conclude the
Section 106 review for this undertaking within the stated timelines.
Due to its controversial nature and the high level of public
interest in this undertaking and its effects, the Tonto
National Forest would have benefited from expertise within the
Region and Washington Office to assist it in managing this
consultation.
Throughout the Section 106 review, the ACHP highlighted the
challenges faced by the TNF during this consultation, including the
inability of the TNF staff to commit to certain measures and persistent
confusion regarding the timeline for completing the Section 106
process. The ACHP recognizes the concerted efforts of the TNF's
Heritage, Tribal Relations, and Environmental Program staff as they
sought to manage and maintain the consultation process along with the
other concurrent reviews. However, the scope and magnitude of this
undertaking exhibited the clear need for stronger agency support to the
TNF to respond to consulting party questions and concerns, specifically
those of Indian tribes. Efforts such as the dedicated Heritage staff
assignment from the Region would have been more beneficial to this
consultation had it occurred sooner and would have been strengthened by
parallel assignments across the Tribal Relations and NEPA programs as
well. While recognizing consultation was centered at the TNF, the ACHP
encouraged more direct avenues for the TNF to seek support and
resources from the Region, including such things as facilitation
support for consultation meetings. The need for this support was
further emphasized by the complex role Regional and Washington
leadership appear to have had in the management of the FEIS schedule
(which due to its implications on the timing of the land exchange
further complicated and constrained the management of the Section 106
process). The ACHP believes more outwardly visible and transparent
communication on the role the FS leadership had in this decision
process and the constraints placed on the TNF would have aided the TNF
in communicating with consulting parties on its decision process.
Undertaking Recommendations
USDA should work with the Administration and Congress to take
immediate steps to amend or repeal the legislation directing
the transfer or otherwise prevent it from happening as
proposed.
The ACHP was encouraged by the USDA's decision on March 1, 2021, to
direct the TNF to withdraw the Notice of Availability and rescind the
FEIS and draft Record of Decision (ROD) for the project. It is also
encouraged by the FS' commitment to consult Indian tribes and other
stakeholders further on the effects of this undertaking on, among other
resources, historic properties. The ACHP urges the FS to explore
directly with the Administration and Congress, and in consultation with
other stakeholders, any and all opportunities to amend or repeal the
exchange portion of the NDAA. It is evident that legislative action in
this situation to stop this exchange would provide the most complete
and appropriate protection of Oak Flat and the hundreds of other
historic properties that stand to be affected by the transfer and
subsequent mining activities.
USDA should use further discussions with Indian tribes and
other stakeholders to develop and evaluate alternatives and
further modifications to the undertaking that might avoid
adverse effects while also pursuing additional steps to modify
or prevent the land transfer.
As part of its efforts to conduct additional consultation with
Indian tribes and evaluate its required environmental, cultural, and
archaeological analyses for the project, the TNF, with the support of
FS leadership, should take further steps in discussions with all
stakeholders to develop and reevaluate any alternatives or
modifications to the undertaking that could avoid or minimize adverse
effects to historic properties. Such efforts should include a
reassessment of alternative and more sustainable mining techniques in
an effort to prevent subsidence at Oak Flat, including, if feasible,
those techniques that were previously considered and rejected by the FS
and Resolution Copper. Further, USDA should employ all measures at its
disposal to incentivize the consideration of such alternatives.
If USDA chooses to proceed with the undertaking as described,
the Forest Service should commit to carrying out mitigation
measures in the proposed PA, in consultation with the
consulting parties.
If USDA decides to proceed with the undertaking as described, the
ACHP recommends the FS commit to implementing the terms of the PA,
including but not limited to the phased identification process, the
historic property treatment plans, and the listed mitigation measures
in cooperation with Resolution Copper and the other invited signatories
and in consultation with the consulting parties. These terms could be
incorporated in to the final ROD and/or as part of other agreements
made with Resolution Copper and other signatories. As stated earlier,
the NDAA includes independent requirements that the FS must meet (e.g.,
to address the concerns of Indian tribes and minimize the adverse
effects on the affected Indian tribes resulting from mining and related
activities) that extend beyond and in addition to the procedural
requirements of Section 106. The ACHP encourages USDA to exercise its
authority to the fullest extent to fulfill these requirements alongside
the proposed measures in the PA. Furthermore, the ACHP recommends the
TNF, Resolution Copper, Indian tribes, and other consulting parties
continue to consult over the life of the project to continue to
evaluate and seek ways that might minimize adverse effects to historic
properties as mining progresses both through the utilization of new
mining techniques and in response to mine production. Given the FS'
renewed commitment to consultation with Indian tribes, the ACHP
recommends their efforts occur at a government-to-government level,
with senior FS leadership, utilizing the full breadth of the FS'
resources to support such consultation.
General Recommendations
The Forest Service should evaluate how the Regional and
Washington Offices can provide more timely guidance and support
for controversial or challenging Section 106 consultations.
USDA should allocate resources within the FS for identifying and
supporting complex Section 106 reviews early in the planning process
that, while maintaining the individual Forest Unit's autonomy, could
strengthen the agency's ability to carry out the consultation process.
This is particularly salient given the frequent pressure placed on the
FS Heritage Programs for large scale and complex undertakings. Such
resources could include providing project-specific consultation
support, including but not limited to additional staffing, facilitation
support, and funding for travel to assist consulting party attendance
at meetings. The identification of such consultations earlier on and
the engagement of Regional and Washington Offices would allow these
offices to convey best practices and lessons learned from other similar
consultations and even consider detailing more experienced Heritage
Staff to assist in certain consultations. The FS should leverage its
existing network of heritage professionals to create a mechanism to
direct knowledge, support, and resources to individual Forest Units
when a controversial or challenging Section 106 consultation is
identified.
The Forest Service should work to identify and implement
opportunities to better coordinate environmental and historic
preservation reviews for large-scale projects.
USDA and the FS should work with stakeholders to evaluate the
existing guidance on consultation on mining activities in NFS lands,
and to identify internal and Administration-driven improvements that
might be pursued, particularly in how the various environmental reviews
are managed as a part of this process. This consultation was emblematic
of many of the challenges and constraints affecting previous and
ongoing consultations regarding mining-related undertakings. The FS
should seek perspectives from a broad array of stakeholders, including
SHPOs, Tribal Historic Preservation Offices, Indian tribes, industry
representatives, and other interested parties. These discussions should
aim to assist the FS in developing a more collaborative approach, in
keeping with the FS' policy regarding Heritage Management, which seeks
to ``[f]ully integrate opportunities for preservation, protection, and
utilization of cultural resources into land use planning and
decisions,'' by identifying and fostering the implementation of more
sustainable mining activities on NFS lands (Forest Service Manual-
Chapter 2360 Heritage Program Management).
The Forest Service should pursue initiatives to strengthen
early coordination with Indian tribes in this Region regarding
proposed mining activities.
USDA should continue to leverage and expand upon the FS initiatives
such as the ``Tribal Cultural Sensitivity Training'' under development
in the Southern Region and the annual ``To Bridge a Gap'' conference
that includes participants from the Southern and Eastern Regions. These
and other such efforts represent innovative measures to develop and
improve relationships with Indian tribes, and through these
relationships, work to improve the Section 106 consultation process.
The ACHP's previous recommendation to consider establishing an advisory
board comprised of representatives from Indian tribes with an interest
in the protection of historic properties of religious and cultural
significance on FS-managed lands was born out of the benefits the ACHP
has seen from Region-wide initiatives by the FS to engage in long-term
consultation relationships with Indian tribes. The ACHP recommends the
FS leverage the extensive resources available within the Offices of
Tribal Relations and Heritage Resources to implement expanded
consultation with Indian tribes.
Conclusion
Given the potential magnitude of impacts to highly significant
historic properties, the ACHP urges USDA to carefully consider and
carry out these recommendations. Section 800.7(c)(4) of the Section 106
regulations requires you, as the head of the agency, to take these
comments into account in reaching a final decision on the undertaking.
As mentioned above, per Section 110(l) of the NHPA (54 USC
Sec. 306114), you may not delegate this responsibility. A summary of
your decision regarding the undertaking that contains the rationale for
the decision and evidence of consideration of the ACHP's comments must
be provided to the ACHP before making a final decision on the
undertaking and shared with the Section 106 consulting parties and the
public.
As the USDA and FS continue to consult on the potential effects of
the proposed undertaking, the ACHP may provide additional advisory
comments or technical assistance based on its responsibilities pursuant
to the NHPA. If, however, the proposed undertaking and the potential
effects to historic properties change, TNF should reinitiate the
Section 106 review process with all consulting parties including the
ACHP, to take into account the potential effects of the modified
undertaking.
As the heads of federal agencies, we have a responsibility to
exercise leadership in the preservation of the Nation's irreplaceable
cultural heritage. In that spirit, I hope you will see these
recommendations as a wise path forward.
I look forward to your response.
Sincerely,
Rick Gonzalez, AIA
Vice Chairman
______
Statement for the Record
SAN CARLOS APACHE TRIBE
Terry Rambler, Chairman
on H.R. 1844, the Save Oak Flat Act
April 11, 2021
My name is Terry Rambler. I am the Chairman of the San Carlos
Apache Tribe (``Tribe''), representing 16,900 tribal citizens. The
United States entered into the ratified Apache Treaty of Santa Fe in
1852 to end hostilities. The original San Carlos Apache Reservation
boundaries were established by President Grant on November 9, 1871. The
current Reservation boundaries span 1.8 million acres. The U.S.
Calvary, through brutal military campaigns, forcibly removed Apache
bands to the Reservation in the latter half of the 1800s. The San
Carlos Apache people remain deeply connected to our traditions, our
ancestral homelands, and the Reservation that we have called home since
we were first put here.
On behalf of the San Carlos Apache Tribe, I want to thank Rep.
Grijalva and the bill's co-sponsors for introducing H.R. 1884, the Save
Oak Flat Act, which would repeal Section 3003 of the National Defense
Authorization Act for Fiscal Year 2015 (``FY15 NDAA''). If enacted, the
Save Oak Flat Act will restore federal protections to the area,
preventing it from disposal or mining. In so doing, the bill will
preserve our Apache cultural resources, religious activities, and way
of life. H.R. 1884 will also protect our region's water and
environment. The Save Oak Flat Act represents a true act of
environmental justice and aligns with President Biden's promise to
employ an ``all-of-government'' approach to ensure that environmental
justice is a consideration in decision-making across the federal
government.
Background and Summary
The Resolution Copper Mine (``Project'') will destroy Chi'chil
Bildagoteel (Oak Flat), a traditional cultural property (``TCP'')
listed on the National Register of Historic Places and other cultural
resources of the San Carlos Apache Tribe and other tribes. If Oak Flat
is transferred and the Project is approved, it will destroy with this
sacred place our religion and way of life. My people will no longer be
able to access the area for ceremonies, or to pray, or to gather our
medicinal plants and traditional foods. As acknowledged in the Trump
Administration's rushed Final Environmental Impact Statement
(``FEIS''), Chi'chil Bildagoteel (Oak Flat) will cease to exist. In its
place will be a 1,000-foot deep by 1.8-mile-wide crater.\1\ The Project
will also cause severe impacts on the already depleted water resources
of the entire region, harm local ground and surface waters, and cause
irreparable damage to the environment.
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\1\ Final Environmental Impact Statement (``FEIS'') for Resolution
Copper Project and Land Exchange, p. ES-3 (Rescinded on March 1, 2021).
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To move forward, the project required the United States to transfer
Oak Flat and with it 2,422 acres of federal lands located within the
Tonto National Forest (``TNF'') to Resolution Copper Mining, a joint
venture of foreign-owned mining corporations Rio Tinto (United Kingdom/
Australia) and BHP Billiton, Ltd. (Australia). Rio Tinto began lobbying
for legislation to accomplish the land transfer in the early 2000s. The
legislation, known as the Southeast Arizona Land Exchange, was first
introduced in 2005. That bill and more than a dozen similar bills
introduced after 2005 drew nationwide opposition from Tribal
governments, Tribal organizations, religious groups, local citizen
groups, and recreational and environmental groups, and failed to
advance in Congress. Tribes nationwide opposed the bill because of the
dangerous precedent that it would set by being the first and only Act
of Congress that would transfer a known Native sacred place to a
foreign-owned mining corporation for that corporation's sole
benefit.\2\
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\2\ In addition to the significant concerns raised in this hearing,
the entire Project should raise serious strategic foreign policy
concerns. Rio Tinto's single largest investor is Chinalco, China's
state-owned aluminum producer. Rio Tinto held the controlling stake in
the Rossing Uranium Mine in Namibia, partnering with the Iran Foreign
Investments Company. In 2018, Rio Tinto sold its stake in Rossing to
the state-owned China National Uranium Corporation.
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The most recent version of the bill, H.R. 687, was pulled from the
House floor twice in the 113th Congress due to lack of support. The
Senate companion bill, S. 339, did not have the votes to even move out
of the Senate Committee on Energy and Natural Resources.
Despite this lack of support in Congress, the Southeast Arizona
Land Exchange Act was attached as a rider (Section 3003) to the FY15
NDAA in December 2014. Rep. Tom Cole and Rep. Betty McCollum championed
an amendment in the Rules Committee to strike Section 3003 from the
NDAA. However, no amendments were ruled in order and no further debate
or consideration could be made. The FY15 NDAA was enacted into law on
December 19, 2014.
Section 3003 was written to maximize profit to the foreign-owned
mining corporate beneficiary, while limiting public input, and
minimizing accountability on the part of the corporate mining
beneficiary. The provision mandates that USDA transfer Oak Flat and
2,422 acres of TNF lands to Resolution Copper within 60 days of
publication of a legally compliant Final Environmental Impact
Statement.\3\ Section 3003(c)(9)(B) expressly states that:
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\3\ Section 3003(c)(10).
Prior to conveying Federal land under this section, the
Secretary shall prepare a single environmental impact statement
under the National Environmental Policy Act of 1969 . . . which
shall be used as the basis for all decisions under Federal law
related to the proposed mine and the Resolution mine plan of
operations and any related major Federal actions significantly
affecting the quality of the human environment, including the
granting of any permits, rights-of-way, or approvals for the
construction of associated power, water, transportation,
processing, tailings, waste disposal, or other ancillary
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facilities.
As noted above, the Project includes: the construction and
operation of the largest and deepest underground copper mine in North
America; and development of a tailings waste dump, a pipeline corridor,
and electrical transmission lines that would cross national forest
land. The limited analysis that led to the FEIS confirms that the
Project will destroy a Traditional Cultural Property listed on the
National Register of Historic Places and cause significant adverse
impacts on the water and environment in the Forest and throughout the
region. Any federal action of this magnitude requires a comprehensive
review before moving forward. However, the Trump administration
attempted to cut short the analysis and rush the legally required
environmental review, publishing the FEIS on January 15, 2021, days
before Inauguration Day.
On February 11, 2021, the Advisory Council on Historic Preservation
(``ACHP'') terminated consultation with TNF pursuant to the National
Historic Preservation Act (``NHPA''). ACHP noted that ``it is clear
that the proposed undertaking would destroy significant historic
properties, including the highly significant Oak Flat, and the measures
in the PA are not sufficient to adequately resolve those adverse
effects. The ACHP believes that further consultation in this case would
be unproductive.'' In terminating the NHPA consultation, ACHP refused
to sign the programmatic agreement with TNF, which would have
documented the Forest Service's compliance with the NHPA and its
implementing regulations.
On February 19, 2021, Chairman Grijalva with 23 Members of Congress
sent a letter to then-Acting Secretary of Agriculture Shea,
highlighting the significant legal and procedural deficiencies in the
FEIS, and urging him to ``withdraw the FEIS and thoroughly review and
address its numerous flaws, including several federal Special Use
Permits required for the proposed mine.'' \4\
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\4\ Letter from the House Committee on Natural Resources to Acting
Secretary of Agriculture Shea (Feb. 19, 2021) (https://
naturalresources.house.gov/imo/media/doc/2021-02-19%20HNRC
%20to%20USDA%20re%20Oak%20Flat%20FEIS.pdf).
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On March 1, 2021, USDA directed the Forest Service to withdraw the
Notice of Availability and rescind the FEIS and draft Record of
Decision (``DROD''). The Department's stated purpose for rescinding the
FEIS is to provide an opportunity for the agency to conduct a more
thorough review of the Project's impacts and ensure the agency's
compliance with federal law.
The Biden Administration's withdrawal of the FEIS was welcome news.
However, the announcement also noted that it will likely require an Act
of Congress to stop the Resolution Copper Mine and save the Apache
religion, our culture and way of life, and the region's water supply
for future generations. H.R. 1884 would accomplish this goal, and we
urge this Committee to approve the bill and advance it to final passage
this year.
In addition to advancing H.R. 1884, we urge you to work with and
encourage the Biden Administration to address the significant
deficiencies in the rescinded FEIS. We encourage the Administration to:
(1) fully examine and analyze the significant impacts of the entire
Project (including the mine site, associated infrastructure,
transportation corridor, and proposed tailings storage facility) on
areas of cultural significance and on the region's water and
environment; (2) with the developed record of impacts, conduct
meaningful government-to-government consultation with all impacted
Tribal governments; and (3) seriously consider alternatives to
proposals listed in the rescinded FEIS as well as methods to mitigate
the adverse impacts of the Project before consideration of reissuing an
FEIS that complies with all federal laws and regulations.
The Known Impacts of the Project Support Passage of H.R. 1884
While the Trump Administration's rushed review and publication of
the FEIS (now rescinded) was legally and procedurally deficient, even
the limited information uncovered about the Project's significant
impacts provide ample evidence to support the enactment of H.R. 1884,
which would fully repeal Section 3003 and stop the Project.
The FEIS, while flawed and unfinished, confirms many of the
significant impacts that the Tribe has warned of for years: the Project
will result in the certain destruction of Oak Flat and will adversely
impact the water resources throughout the region for generations to
come. The impacts of the Project cannot be overstated: (1) Chi'chil
Bildagoteel (Oak Flat), a TCP listed on the National Register of
Historic Places, burial sites, spiritual areas, cultural landscapes,
sacred springs and other water resources, food and medicinal plants,
and hunting, fishing, and gathering areas will be forever destroyed;
\5\ (2) the water, groundwater, and related resources of the area will
impact the region's water resources for generations to come, even
accepting Rio Tinto's optimistic estimate for water usage at face
value--the mine will use 775,000 acre feet of water,\6\ of which
approximately 70 percent will be pumped from new extraction wells in
the East Salt River Valley; and (3) the Project's infrastructure will
leave its dark footprint on the Tonto National Forest and nearby lands,
encompassing 39,272 acres (over 61 square miles), including the 2,422-
acre Oak Flat Federal parcel, 1,861-acre subsidence area, 953-acre West
Plant Site and Silver King Road realignment, 7 mile transmission line,
685-acre railroad corridor and adjacent components, 553-acre filter and
loadout facility, a 9,611 acre tailings waste dump storage facility and
certain to be Superfund Site in the future, as well as mitigation
areas.\7\
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\5\ FEIS at 824.
\6\ FEIS, Appendix H, Table H-3.
\7\ FEIS at 821 (Additional indirect and atmospheric areas will
require creation of a 6-mile buffer around all project and alternative
components of the Project).
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The following pages detail the Project's destruction unveiled in
the deficient and now rescinded FEIS.
Desecration and Destruction of a Native American Religion
The FEIS confirms what we have warned for years. The dangerous
precedent set by slipping Section 3003 into the FY15 National Defense
Authorization Act, authorizing the transfer of a known Native American
sacred place and with it hundreds of traditional cultural resources to
a foreign-owned mining corporation will result in certain destruction.
As laid out in the FEIS:
The direct impacts on TCPs and special interest areas from
construction of the mine and associated facilities constitute
an irreversible commitment of resources . . . Sacred springs
would be eradicated by subsidence or construction of the
tailings storage facility, and affected by groundwater
drawdown. Changes that permanently affect the ability of tribal
members to access TCPs and special interest areas for cultural
and religious purposes also consist of an irreversible loss of
resources. For uses such as gathering traditional materials
from areas that would be within the subsidence area or the
tailings storage facility, the project would constitute an
irreversible loss of resources.\8\
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\8\ FEIS at 856.
The Project will result in a 1,000-foot deep by 1.8-mile-wide
crater. This will destroy Chi'chil Bildagoteel (Oak Flat) with no
chance of ever restoring the damage. The Apache people will no longer
be able to access our holy place. The impacts of the Project go far
beyond Oak Flat. The nearly 40,000-acre footprint of the Project will
also destroy dozens of sacred springs, and hundreds of other
traditional cultural properties, including burial sites, petroglyphs,
cultural landscapes, food and medicinal plants, and more.
For hundreds of years, the Oak Flat area, known in Western Apache
as Chi'chil Bildagoteel meaning ``a broad flat of Emory oak trees'',
has been a place of cultural and religious significance to our people.
Oak Flat is not only a sacred area for the San Carlos Apache Tribe, but
as noted by the ethnographic study prepared for TNF, 9 other tribes
have traditional ties to the area.\9\ These tribes have cultural
resources on and maintain strong cultural ties to this land.
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\9\ Ethnographic and Ethnohistoric Study of the Superior Area,
Arizona, Hopkins, Colwell, Ferguson, and Hedquist, p. iii.
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The Tonto National Forest encompasses Oak Flat. Like the vast
majority of federal lands, TNF is carved out of the ancestral homelands
of Indian tribes. Our historical and spiritual connection to these
lands was never extinguished. Instead, our connection, ability to
access these federal lands for religious purposes is guaranteed through
treaties, federal court decisions, Executive Orders, laws, and
regulations.\10\
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\10\ Federal laws acknowledge legal rights of Native Americans to
access to federal lands of religious significance. E.O. 13007, Indian
Sacred Sites, requires federal agencies to provide access to and
ceremonial use of Indian sacred sites by religious practitioners and to
avoid adversely affecting the physical integrity of such sacred sites.
The American Indian Religious Freedom Act (AIRFA), the Archaeological
Resources Protection Act (ARPA), the Native American Graves Protection
and Repatriation Act (NAGPRA), the Religious Freedom Restoration Act
(RFRA), and the National Historic Preservation Act (NHPA) all seek to
protect Native sacred places located on federal lands.
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Apaches on the Reservation have ancestors who came from the Oak
Flat area before being forced to Old San Carlos. Tribal members'
ancestors passed their knowledge to their descendants who are alive
today. Our people have lived, prayed, and died in the Oak Flat area for
centuries before this mining project was conceived. Oak Flat is a place
filled with power--a place where Apaches conduct ceremonies such as
Holy Ground and the Sunrise Dance that celebrates a young woman's
coming of age, to gather medicines and ceremonial items, and to seek
and obtain peace and personal cleansing. Oak Flat is the goiii' (home)
of our diyi'n (sacred power), visited by our ga'an (spiritual beings)
who provide us with healing and spiritual services. Oak Flat is the
foundation of our religious beliefs.
Tonto National Forest officials have been aware that Oak Flat
encompasses a place of cultural and spiritual importance to the San
Carlos Apache Tribe and other tribes for many years. In January 2012,
the TNF began the formal consultation process with tribes regarding the
nomination of Chi'chil Bildagoteel to the National Register of Historic
Places. This exhaustive process included archival research, interviews
with Apache elders, and fieldwork to identify cultural sites. By July
2014, the TNF sent a draft nomination to the Arizona State Historical
Preservation Office for comment and followed up with others seeking
comment. In December 2015, TNF formally submitted the nomination to the
National Park Service.
Recognizing its historical and cultural importance, and after over
four years of documenting the cultural importance of Oak Flat and going
through the proper federal agency process, on March 4, 2016, the
National Park Service listed Chi'chil Bildagoteel/Oak Flat on the
National Register as a historic district and Traditional Cultural
Property, emphasizing its association with Apache oral history and as a
venue for ongoing Apache participation in traditional social
activities.
The Advisory Council on Historic Preservation, in its NHPA Section
106 comments to Secretary Vilsack, confirmed these facts.\11\ The ACHP
found that:
---------------------------------------------------------------------------
\11\ See ACHP letter to USDA Secretary Vilsack (March 29, 2021)
(https://www.achp.gov/sites/default/files/2021-03/
VilsackResolutionCopperLTR20210329.pdf).
Chi'chil Bildagoteel (Oak Flat) is a historic property of
profound importance to multiple Indian tribes and plays a
significant role in their religious and cultural traditions . .
. The historic significance of Oak Flat cannot be overstated,
and neither can the enormity of the adverse effects that would
result to this property from the undertaking. Oak Flat would be
directly and permanently damaged with a substantial portion of
the property being destroyed through subsidence. In addition,
hundreds of other historic properties would be destroyed or
---------------------------------------------------------------------------
otherwise adversely affected by the undertaking.
To address concerns posed by the Project, ACHP urged ``the Forest
Service to explore directly with the Administration and Congress, and
in consultation with other stakeholders, any and all opportunities to
amend or repeal the exchange portion of the NDAA.''
We are in full agreement with ACHP. The very opportunity to save
our religion, culture, and way of life is through passage of H.R. 1884.
Devastating Impacts on the Region's Water Resources
In addition to the certain destruction of our holy place, Chi'chil
Bildagoteel, our sacred springs, burial sites, petroglyphs, and
cultural landscapes, the flawed FEIS confirms that our desert region
cannot afford the Project's massive water demands. Simply put, Arizona
does not have enough water to accommodate the demands of the Project.
These findings further support the passage of H.R. 1884.
Prior to passage of the land exchange, Resolution Copper and other
supporters of the mine insisted that there would be no impact on water
supplies or water quality. In 2011, Resolution Copper President John
Cherry testified, ``Resolution Copper has already spent more than $33
million to date studying the hydrogeology in and around the mine
project, and has drilled more than 30 holes in the area to assess the
water resources. These activities so far show little if any impact to
local water quantity or quality from the new operations . . .'' \12\
Although it underestimates the impacts on water resources, the FEIS
confirms that this could not be any further from the truth. In fact,
there will be substantial impacts to water quantity and quality for the
entire region for generations to come.
---------------------------------------------------------------------------
\12\ House Committee on Natural Resources Hearing, 112-40, p. 47.
---------------------------------------------------------------------------
Since 2009, Resolution Copper has engaged in mine dewatering
activities on their land near Oak Flat that has caused groundwater
levels below Oak Flat to drop over 2,000 feet, and near Superior, water
levels to decline roughly 20 to 90 feet.\13\ This is even before the
land exchange and actual mining project begins.
---------------------------------------------------------------------------
\13\ Draft Environmental Impact Statement (DEIS), at 312.
---------------------------------------------------------------------------
The FEIS concludes that the Project will harm or destroy the
region's natural waters, streams, springs, seeps and other water
features in Oak Flat: ``Dewatering or direct disturbance would impact
between 18 and 20 groundwater dependent ecosystems (GDEs), mostly
sacred springs. While mitigation would replace water, impacts would
remain to the natural setting of these places.'' \14\
---------------------------------------------------------------------------
\14\ FEIS at 156.
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In addition, even under Resolution Copper's optimistic estimate
(fully accepted by TNF), the mine will use 775,000-acre feet of
water.\15\ The majority of the water (70 percent) will need to be
pumped from a large network of new extraction wells in the East Salt
River Valley where tens of thousands of people already rely on
groundwater for their water supply. I refer the Committee to the
testimony of James T. Wells for a full detailed examination of the
Project's water demands on the East Salt River Valley, the irreversible
loss of aquifer capacity, and resulting impacts the citizens of
Phoenix, Scottsdale, Tempe, Mesa, Gilbert, Chandler, Apache Junction
and other towns.
---------------------------------------------------------------------------
\15\ FEIS, Appendix H, Table H-3.
---------------------------------------------------------------------------
The Arizona State Land Department (ASLD) shared its concerns
regarding the Project's water demands and impacts on the East Salt
River Valley. ASLD, in a letter to TNF dated November 7, 2019, warned
that the Resolution Copper's heavy groundwater pumping, ranging from
180,000 acre-feet to 600,000 acre-feet over the life of the mine, will
result ``in the loss of the development of at least 3,440 acres of
State Trust land'' in the Superstition Vistas Planning Area. Nearby
State Trust land was recently auctioned to a developer for $156,000 an
acre. ASLD concluded that Resolution's ``negative impact of the
proposed ground water consumption sourced from Superstition Vistas
Planning Area far outweighs the estimated financial benefits to the
Trust resulting from other aspects of the project by a factor of
20:1,'' with a ``minimum potential loss to the Trust of at least
$536,640,000 in revenue.'' \16\
---------------------------------------------------------------------------
\16\ Arizona State Land Department, November 7, 2019 Letter to Neil
Bosworth, Tonto National Forest. (Reproduced on p. R-43 of FEIS).
---------------------------------------------------------------------------
An acre-foot of water equals roughly 325,851 gallons. Under even
the most conservative estimates, the mine would consume at least 256
billion gallons of water--enough water for up to 168,000 homes over 40
years. Resolution Copper admits that at least 550,000-acre feet of
water coming from East Salt River Valley groundwater will be required
to slurry toxic waste through over 20 miles of pipelines to Skunk Camp,
the area Resolution Copper seeks to dump 1.37 billion tons of toxic
waste across 2,300-5,900 acres that will be higher than the 40-story
Chase Tower, the tallest building in Arizona. This groundwater pumping
will result in water levels being drawn down 199 feet in some areas,
which, in turn, could cause the land to subside by as much as 52 inches
and impact the Central Arizona Project canal, municipal infrastructure,
and agricultural infrastructure.
Of equal importance to the San Carlos Apache Tribe is the
devastating impacts that the ill-conceived Resolution Copper Mine
project will have on the region and state's surface and groundwater.
The demands of the Project will deplete, destroy and poison
substantial, limited and precious surface and groundwater resources for
the region.
Based on ASDL's stark assessment, it is clear the Resolution Copper
project would seriously and negatively impact State Trust land and
therefore its beneficiaries, including K-12 public schools and
Arizona's three state universities.
Again, even the cursory review of the Project's water demands
included in the rescinded FEIS support the expeditious passage of H.R.
1884.
American Copper is Destined for China
Throughout its consistent shell game, Resolution Copper has
repeatedly claimed that this Project will supply up to 25 percent of
United States' domestic copper demands.
First, the United States is not facing a shortage of domestically
produced copper concentrate. In fact, in 2019, the U.S. was the fifth
largest exporting nation in the world shipping $2.3 billion of copper
ore abroad. More to the point, the copper that would be produced from
this project will never move through the doors of U.S. manufacturers.
Instead, Resolution's copper concentrate production is most likely
bound for export markets as the United States has only three operating
copper smelters.
Resolution Copper has never publicly stated where its copper
concentrate will be refined. Arizona's two smelters are owned and
operated by competitors including Freeport-MacMoRan's Miami smelter and
Grupo Mexico's Hayden smelter. Rio Tinto operates the third U.S.
smelter in Garfield, UT, where it processes concentrate from the
Bingham Mine and appears to have limited excess capacity.
More likely, Resolution's copper concentrate is bound for China,
which is by far the world's largest importer of copper ore. As noted
above, Rio Tinto's single largest investor is the government of China
through Chinalco Mining Corporation International. This one fact makes
the entire Project a strategic foreign policy concern, one that must be
approached with caution and revisited.
Resolution Copper fought against any amendments to the Southeast
Arizona Land Exchange that would have required the company to keep any
copper produced from the Project in the United States. During House
floor debate on the Land Exchange, Chairman Grijalva pointed out that
``Rio Tinto has a long-established partnership to supply copper to
China--they repeatedly stated--and at a hearing refused to say what
percentage of the copper generated from Federal lands would be retained
and processed in the United States.'' \17\ At the close of this debate
on H.R. 687, the bill was pulled from the House floor by the Republican
majority because it lacked the votes for passage.
---------------------------------------------------------------------------
\17\ Congressional Record, H5853 (September 26, 2013).
---------------------------------------------------------------------------
The Administration Must Cure the Legally Deficient FEIS
As noted above, Tribal governments nationwide applaud the USDA's
March 1, 2021 decision to rescind the FEIS and DROD to provide an
opportunity for the agency to conduct a more thorough review of the
Project's impacts and ensure the agency's compliance with federal law.
However, the next steps taken by the Administration are equally
critical. The Biden Administration must correct the significant legal
and procedural deficiencies in the rescinded FEIS. This should require
re-development of a Draft EIS that provides a fully informed record.
With an informed record, the Administration must then conduct full and
meaningful government-to-government consultation with all interested
Tribal governments, utilizing these consultations and related
discussions to develop and evaluate alternatives and modifications for
the Project to avoid and mitigate adverse impacts.
While the FEIS confirmed much of the destruction that the Tribe
warned about for years, the FEIS understates certain impacts, and
completely fails to consider reasonable alternatives to mitigate the
certain damage on tribal cultural resources, the region's water, and
the environment. In some cases, the FEIS makes assumptions about
baseline models that skew the results, and in other cases, the models
themselves are not accurate enough to be used to fully understand all
of the impacts. In sum, these deficiencies prevent a full understanding
of the environmental impacts of the Project.
The most glaring omission in the FEIS involves its failure to fully
examine the adverse impacts of the Project's water demands. The FEIS
estimates that the total quantity of external water needed for the life
of the mine is 590,000-acre feet.\18\ The Forest Service notes this
water use amount is in addition to the approximate 87,000 acre feet of
water that will be dewatered to serve the Project's tunnels, shafts,
and underground infrastructure.\19\ In fact, Resolution Copper's GPO
shows that the total water usage over the life of the Mine will be
closer to 786,626 acre feet. The Administration must address this
discrepancy in future examinations as it works to cure the deficiencies
in the rescinded FEIS.
---------------------------------------------------------------------------
\18\ FEIS at ES-25.
\19\ FEIS at 405.
---------------------------------------------------------------------------
I again refer the Committee to the testimony of James T. Wells for
a more detailed description of the failures of the FEIS to adequately
evaluate the geotechnical suitability and water quality impacts of
Skunk Camp, the preferred Tailings Storage Facility (TSF) site, as well
as the flawed models used to determine the cumulative effects of
Resolution's pumping and other known demands in the East Salt River
Valley.
Another glaring oversight on the water demands is the FEIS' failure
to determine the source of the water needed for the Project. The Forest
Service states that ``the entire amount of makeup water needed for the
mine was assumed to be physically pumped from the Desert Wellfield.''
\20\ However, the FEIS fails to determine how and where all this
mitigation water will come from. The FEIS instead relies on future
Arizona state water permitting processes. As a result, the FEIS fails
to analyze the physical availability of Arizona's water resources on a
local, regional, or state-wide basis that will be consumed for the
Project.
---------------------------------------------------------------------------
\20\ FEIS at 969.
---------------------------------------------------------------------------
Instead, the rescinded FEIS admits that the actual water use by the
Project would be determined by the Arizona Department of Water
Resources at some time in the future, long after the Section 3003
environmental review has been completed. This includes a determination
of the ``unavoidable impacts'' and related mitigation measures
associated with the massive dewatering of the East Salt River valley
stemming from Resolution Copper's Desert Wellfield.\21\ This is
unacceptable. The Biden Administration must work to fully determine the
extent of these ``unavoidable impacts'', analyze them, and subject the
findings to full public review before it considers revisiting a Section
3003 FEIS.
---------------------------------------------------------------------------
\21\ FEIS at 422.
---------------------------------------------------------------------------
A determination of all sources of water, including the availability
of the water supply, as well as the location, rate of pumping, and the
governing legal authorities must be examined, and be subject to public
review and input before inclusion in any future FEIS.
Finally, the Forest Service has failed to include any information
or opportunity to comment on the appraisals required pursuant to
Section 3003. Despite repeated requests from the public and
stakeholders to provide this mandatory public review of the appraisals,
the prior Administration refused to provide any meaningful information
on the appraisals to the public before it published the now rescinded
FEIS.
Section 3003 includes a unique appraisal requirement designed to
maximize profits for the foreign-owned mining corporations that will
benefit from the Project. In floor debate on the Southeast Arizona Land
Exchange, Rep. Peter DeFazio, highlighted the ``bizarre . . . payment
scheme, which would be controlled entirely by the company using
proprietary information.'' He noted that the provision, later included
as Section 3003, will ``trade away a multi-billion asset for a few
thousand acres of recreation land.'' \22\
---------------------------------------------------------------------------
\22\ Congressional Record, H5851 (September 26, 2013).
---------------------------------------------------------------------------
Before reconsideration of the required environmental review
pursuant to Section 3003, the Biden Administration must put forth the
mandatory public review of the appraisals also required under this
dangerous provision.
Conclusion
For centuries, Oak Flat, Chi'chil Bildagoteel, has been a sacred
place for Apaches and other tribes. It is a place of power, a holy
place where we practice our religion, gather our medicinal plants and
Emory oak acorns. The United States recognized the spiritual importance
of Oak Flat, listing the area as a traditional cultural property on the
National Register of Historic Places. The RCM project will destroy
Chi'chil Bildagoteel. There is no mitigation that can be done, no
replacing Chi'chil Bildagoteel once it is gone. We cannot build it
somewhere else.
I testified several times before Congress in opposition to the Land
Exchange/Project. The objections raised prior to adding Section 3003 as
a last-minute rider to the FY15 NDAA ring as true today as they did
then. Resolution Copper/Rio Tinto crafted Section 3003 (the Southeast
Arizona Land Exchange) to mandate the land transfer regardless of the
findings of the environmental analysis, knowing that the level of
destruction and environmental damage that will result from the Project
would disqualify it from gaining approval under any other process. The
result is a special interest give-away of unprecedented proportions to
a foreign owned entity with no attachment to our nation. Simply put,
the American public cannot afford this deal.
To stop the certain destruction of Chi'chil Bildagoteel (Oak Flat),
our religion, and way of life, we respectfully urge the Committee to
advance H.R. 1884. In addition, we ask that you work with the Biden
Administration to ensure that the many legal and procedural
deficiencies in the rescinded Section 3003 FEIS are cured, and with a
fully informed record that the Administration engage in full and
meaningful government-to-government consultation with all impacted
Tribal governments. Too much is at stake to advance the Project without
fully understanding its impacts.
______
THE NAVAJO NATION
Window Rock, AZ
April 12, 2021
Hon. Teresa Leger Fernandez, Chair
U.S. House of Representatives
Subcommittee for Indigenous Peoples of the United States
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 1884 the Save Oak Flat Act
Dear Chairwoman Fernandez:
First and foremost, we thank you for your support and sponsorship
of H.R. 1884--the Save Oak Flat Act. As this bill is considered by the
Subcommittee for Indigenous Peoples of the United States, we
respectfully request the support of the Subcommittee for the long-term
protection of Oak Flat.
Chi'chil Bildagoteel, known as Oak Flat, is a Traditional Cultural
Property listed on the National Register of Historic Places located in
the Tonto National Forest (TNF) in southeastern Arizona. The Oak Flat
area plays a vital role in tribal religion, tradition, and culture.
Since time immemorial, Native American people have set foot at Oak Flat
to conduct ceremonies, to offer prayers, to gather medicines and
ceremonial items, and to seek and obtain peace and personal cleansing.
Tribal leaders and allies have been working for over 18 years to
protect the Oak Flat area from foreign mining conglomerates--Rio Tinto
and BHP Billiton--who, through their joint venture Resolution Copper
Mining, LLC, seek to develop the largest and deepest copper mine in
North America. As part of a closed-door deal during the last days of a
lame-duck Congress in December 2014, the Southeast Arizona Land
Exchange (land exchange) was included as Section 3003 of the FY15 NDAA,
P.L. 113-291. The land exchange transfers 2,422 acres of TNF land,
including the sacred Oak Flat area, to Resolution Copper in exchange
for Resolution Copper-owned parcels that will go to the Department of
the Interior and the U.S. Forest Service.
As part of the legislation, the land exchange is subject to NEPA
(Sec. 3003(c)(9)) as well as appraisals of the lands to be exchanged
and public review of the appraisals (Sec. 3003(c)(4)). However, TNF
failed to comply with NEPA and other applicable federal laws, and they
failed to complete the required appraisals of the lands to be
exchanged. Instead, TNF rushed to publish the Final EIS on Jan. 15,
2021, to artificially start a 60-day clock under Section 3003(c)(10) to
give away sacred Oak Flat to Resolution Copper to pave the way for its
mine that will destroy Oak Flat, large swaths of TNF, and other
surrounding areas with no simultaneous commensurate conveyances of
Resolution Copper-owned land to the federal government. On February 11,
the Advisory Council on Historic Preservation (ACHP) declined to sign
the Programmatic Agreement under the National Historic Preservation Act
(NHPA) Section 106 process preventing its execution, stating ``[i]t is
clear that the proposed undertaking would destroy significant historic
properties, including the highly significant Oak Flat, and the measures
in the PA are not sufficient to adequately resolve those adverse
effects.''
On March 1, 2021, USDA directed the Forest Service to withdraw the
Notice of Availability and rescind the FEIS and draft Record of
Decision. USDA noted that rescinding the FEIS will ensure the Forest
Service complies with ``the environmental, cultural, and archaeological
analyses required'' and concluded that ``additional time is necessary
to fully understand concerns raised by Tribes and the public and the
project's impacts to these important resources and ensure the agency's
compliance with federal law.'' Importantly, USDA noted that because the
land exchange was directed under the FY15 NDAA that ``long term
protection of the site will likely require an act of Congress.''
Although flawed, the withdrawn FEIS acknowledged that Resolution
Copper's proposed mining activities will directly, adversely, and
permanently affect numerous sacred springs, traditional areas, burial
locations, and other cultural places and experiences of high spiritual
and cultural value. The massive mine will also cause irreversible
destruction to thousands of acres of public lands and contaminate
already scarce water sources. The block-cave mining technique will
create a 1.8-mile-wide crater (from the Capitol to the Lincoln
Memorial) over a thousand feet deep. The mine will consume more than
637,000 acre-feet of water and require over 40 miles of pipeline
through large parts of the TNF to slurry out toxic waste and ore
concentrate. It will also require the construction of massive utility
and road corridors that could potentially span 500 feet in width. This
mine will deplete and contaminate precious water resources in the
region and result in a toxic waste dump that will be taller than the
Washington Monument and potentially span over 15,000 acres.
The Save Oak Flat Act will repeal Section 3003 and withdraw the Oak
Flat area from mining laws to permanently protect this sacred area. We
respectfully request that you co-sponsor the Save Oak Flat Act.
Protecting tribal sacred areas and cultural resources is essential to
upholding the federal trust responsibility.
We appreciate your consideration of H.R. 1884. We stand with the
San Carlos Apache Tribe and many others who support the long-term
protection of Oak Flat. Should you require additional information or
need to contact our office, please reach out to Santee Lewis, Executive
Director, Navajo Nation Washington Office, [email protected] or (202)
981-4331. Thank you.
Respectfully,
Jonathan Nez, Myron Lizer,
President Vice President
______
Ms. Leger Fernandez. I want to begin with this concern
about water. And, Dr. Wells, your testimony about a 450-foot
drop in the water table is quite alarming. As somebody who once
had a domestic well and helped others build wells for their
smaller communities, this is quite alarming.
So, I would like to ask you about the Trump
administration's rush to complete the FEIS and publish it just
5 days before the end of their administration. Now, the Biden
administration rescinded the FEIS, but can you explain some of
the most significant deficiencies of the FEIS as it relates to
water resources?
Dr. Wells. Yes, Chairwoman. Thank you for that question.
I believe that the biggest deficiency in the EIS process
with respect to water resources was taking a hard look, as NEPA
requires, of the cumulative impacts on groundwater resources in
Arizona, and in particular, the East Salt River Valley.
Another thing I will point out is that after the draft EIS
was published, there were major new studies that were completed
and incorporated into the final EIS without public input, and
the opportunity for public comment, and that included some
really fundamental things, like water quality impacts at Skunk
Camp, which is where the tailings dump would be, and none of
this was subject to public review and comment because the final
was rushed to publication.
Ms. Leger Fernandez. Thank you.
And, Mayor Besich, I share so many of your concerns about
creating economic opportunities in our rural communities. I
think that is basically a big job and task of us as public
servants. But I am also concerned about the way in which the
proposed mine may hinder other economic opportunities. I would
like, and I will be pursuing, I can assure you, the need to
invest in those communities like yours, which may have relied
on mining, or fossil fuels in the past, and the importance of
creating the infrastructure that we need, rather than, perhaps,
depending on foreign companies to help keep our kids in school,
I will pursue making sure that we have adequate funding for
education, which is what we are trying to do with the new
infrastructure bill.
Dr. Wells, though, I want to ask you a quick question about
your testimony, about there was acid rock drainage. What is
acid rock drainage? And how might that impact recreational
opportunities in an area?
Dr. Wells. I have an hour-long lecture on that.
Ms. Leger Fernandez. You know what, I only have 20 seconds
left.
Dr. Wells. OK.
Ms. Leger Fernandez. Maybe you can cite your lecture.
Dr. Wells. Mining waste includes sulfide minerals, like
pyrite. When that is exposed to air and water, it oxidizes, it
rusts, it releases sulfuric acid. That, in turn, leeches toxic
metals out of the rock, and that gets into our surface and
groundwater, and it is really about the most significant
environmental impact worldwide from mining.
Ms. Leger Fernandez. Thank you very much for completing
that so quickly.
In that case, the Chair will--I understood that Congressman
Westerman had, indeed, joined us.
Mr. Westerman. Madam Chair, I am sorry, I didn't hear you.
I think your microphone muted earlier, so I didn't hear you
call on me. Sorry about that.
Ms. Leger Fernandez. Well, it is nice to have you with us.
The Chair now recognizes you, Congressman Westerman.
Mr. Westerman. Thank you, Madam Chair.
I have been hearing a lot of talk about a rushed process,
but looking at the data, this process has taken 20 years, with
130,000 submitted comments, 35,000 submitted comments from the
draft EIS, and there are only 13 objections during the period
for the final EIS, and only one was from an Indian tribe, which
was the San Carlos Apache Tribe.
Mayor Besich, do you think it is necessary for the Forest
Service to throw away 20 years' of work, and a nearly 3,000-
page environmental impact statement and, quote, ``start over''
as some other witnesses are calling for?
Ms. Besich. No, it is not necessary. Their work has been
adequate and complete, and it would be devastating for Superior
and the surrounding area for this process to start over.
Mr. Westerman. Thank you, Mayor.
Dr. Wells, you testified extensively to the impacts on
water from this mine. If the EIS discloses that adequate
groundwater exists for committed regional demands, including
Resolution Copper's needs over the next 100 years, further
Resolution Copper has proactively stored more than 50 percent
of predicted water needs from renewable sources, the EIS impact
statement discloses the effects of withdrawing those renewable
sources and additional water needs along with current and
future water users. This was based on assessments by third-
party water experts, with input from Federal and State
agencies.
Can you explain why your view is so vastly different from
so many water experts and Federal and State agencies?
Dr. Wells. Thank you for that question, Congressman.
I served on the Tonto National Forest Groundwater Working
Group for the draft and final EIS, and I can tell you that
there are a number of hydrology experts that express the same
concerns that I have. There is not enough water in the East
Salt River Valley for all of the competing uses.
With regard to the groundwater that Resolution has banked--
and that is correct, they have banked a lot of water from the
Central Arizona Project--through kind of a fluke of Arizona
law, it is not even stored in the same place where Resolution
will be pumping their water from. So, in that area where
Resolution will be pumping from--it is an area called the
Desert Wellfield--there will be quite substantial impacts due
to that pumping.
Mr. Westerman. Thank you, sir.
And, Madam Chair, I can't see the timer, but I will go into
the next questions here, and just cut me off if I go past.
Resolution Copper is in the Copper Triangle, where there
are many operations between the proposed site and the San
Carlos Apache Reservation. I understand there are at least 11
tribes that have taken part in the consultation process. The
majority of them are actively participating in the NEPA process
in consultation with the U.S. Forest Service.
Ms. Sharp, what is San Carlos' position more broadly with
active mining? I understand that there is active mining
immediately adjacent to the reservation, that water from the
reservation is provided for use in those operations.
Ms. Sharp. Yes. Thank you for the question, Congressman.
I can't speak directly to their position on other mining
interests, but I can speak in general to the San Carlos Apache
position, with respect to tribal consultation and the ability
for them to voice their concerns, raise issues in a
consultation process, and I think what we are witnessing and
what you described as the 20 years of well-documented work,
that is, again, a direct result of the failure to consult at
the front end, and we are paying for the price.
So, it is necessary to re-engage and honor the relationship
that the United States has with the Tribal Nations going
forward if we are going to continue to work through this issue
in a way that ensures the trust responsibility is upheld.
Mr. Westerman. And my understanding is that the Apache
Leap, which is of religious significance, an additional acreage
was given a special management area designation, will these
areas be affected by the subsidence that may occur over the
life of the project?
Ms. Sharp. Just from my personal perspective, and what I
recall from when the original legislation was passed in the
NDAA, I recall a press release that a company did, and it
assured the San Carlos Apache people they would be able to
exercise their religion and their spiritual health and well-
being in these places, but what caught my attention was there
was a provision that said so long as it is safe.
So, that told me that in 2015, there was an idea that at
some point in the future, it was not going to be safe for the
San Carlos Apache people, and it was a springing expectation at
some point in the future.
So, I would say that if there isn't an entire ability for
religious freedom, it is not religious freedom.
Ms. Leger Fernandez. Thank you very much, President Sharp.
And, yes, we have gone over about a minute, so we will now
move, and the Chair will recognize Congressman Stauber if he is
here. Congressman Stauber.
Mr. Stauber. Thank you very much, Madam Chair.
I would just like to make a few comments. I would like to
make a comment about the bill history itself regarding the Oak
Flat Land Exchange. The Southeast Arizona Land Exchange and
Conservation Act was debated for nearly a decade in Congress
before it was enacted. The exchange was part of a 56-bill
bipartisan compromise package that was included in the Fiscal
Year 2015 NDAA and not a lone midnight rider that some allege.
And thank you, Chairman Grijalva and Ranking Member Young,
for allowing me to join today to discuss a mining project
seeking to extract the critical minerals needed for renewable
energy, national security, and everyday life. It undergoes a
rigorous review process for decades, receives hundreds of
thousands of comments, makes adjustments, puts a plan together,
and moves forward. The company signs a project labor agreement
with the local building trades union committing to high-wage
union labor.
Democrats then take the presidency and Congress, ignore
pledges made to domestically sourced critical minerals and hire
union labor, and then attempt to undermine workers and local
officials to appease activist groups with armies of lawyers and
deep pockets.
No, I am not talking about mining in my great state of
northern Minnesota. Today, we are talking about Resolution
Copper.
Mayor Besich, the iron range mayors in my district in
northern Minnesota want mining in northern Minnesota because
they are proud of their resources and they want the investment
in their communities and schools just like you. Could you
discuss what it means to have 1,500 direct jobs in a small town
like yours that have high-quality, family sustaining wages?
Ms. Besich. Representative, thank you very much for your
question. And I applaud the efforts of your iron range mayors
in Minnesota. I have actually followed some of the techniques
that they have used to ensure that the extraction industry
funds important and critical things like infrastructure,
education, and economic development, because I think we all
understand that we are proud of our extraction-based industry,
but we also know we have to diversify.
Having these types of jobs in our community will give us a
new opportunity to sustain our community for additional
generations. As I stated in my testimony, my children are the
fifth generation of our family. They have the opportunity to
grow up here and consider mining as the opportunity, or to be
entrepreneurs or support other tech-based jobs that we are
trying to attract here in our community, because we are
thinking outside of the box and oftentimes, following our
predecessors in northern states that are making policies that
are good for mining communities.
Thank you.
Mr. Stauber. Thank you for your comments, Mayor.
So, to close, I would like to share two quotes: First, from
the Boilermakers Local 627, President Jacob Evenson, about the
Biden administration's FEIS reversal. ``The USDA's decision
means our members, most of which are Navajo and Apache tribal
members, will continue to hope and wait for the day when they
can clothe their families, feed their parents, and put shoes on
little feet.''
And then the second from the Arizona Building and
Construction Trades Council, President Aaron Butler, regarding
the companion bill to H.R. 1884. Quote, ``On behalf of
Arizona's workers and families, I ask that you not support
Senate 915, a shortsighted bill that will do long-term harm to
Arizona's skilled workforce and economy.''
So, in closing, I would like to enter the following letters
into the record: The first is the commitment made by Resolution
Copper to the community in the EIS, and also, the consultation
record in the EIS for Resolution Copper, which is close to 70
pages.
And union support letters, support letters from the Arizona
Building & Construction Trades Council, UA Local 469 Plumbers
and Pipefitters Union; United Steelworkers Union; and
Boilermakers Local 627.
And tribal support letters thanking the Forest Service for
the consultation process; San Carlos Apache Tribal Member Cody
Elgo; Jerome Kasey, the Vice Chairman of the White Mountain
Apache Tribe; and John Huey, Chairman of the Yavapai-Apache
Nation.
And local business and stakeholder support letters: Arizona
Chamber of Commerce; Greater Phoenix Economic Council; Greater
Phoenix Leadership; Valley Partnership; Superior County Chamber
of Commerce; Copper Corridor Economic Development Coalition;
Southern Arizona Business Coalition; Laura Skaer; Women's
Mining Coalition; Oddonetto Construction, Queen Creek
Coalition, and Resolution Copper.
And, then, the state and local support letters: Governor
Ducey of Arizona; State Senator Shope of Arizona, District 8;
Pinal County District Leaders; Gila County District Leaders;
Towns of Superior, Kearny, Miami, Winkleman, and Hayden; City
of Apache Junction; Greater Phoenix Leadership, Eastern Arizona
Counties Organization; and the Community Working Group.
Madam Chair, I request unanimous consent to have these in
the record.
And to Mayor Besich, I will just tell you, stay in the
fight. We need these critical minerals. They are a part of our
strategic national security, and we are blessed to have these
minerals in our earth in this great country.
Madam Chair, I yield back.
Ms. Leger Fernandez. Yes. Without objection, so ordered.
[The information follows:]
STATE OF ARIZONA
Office of the Governor
March 16, 2021
The Honorable Tom Vilsack, Secretary
U.S. Department of Agriculture
1400 Independence Avenue, S.W.
Washington, DC 20250
Dear Secretary Vilsack:
I was very disappointed by the Department of Agriculture's
(Department) actions on March 1st to direct the U.S. Forest Service
(USFS) to reverse completed federal actions for the Resolution Copper
Mine and Land Exchange Project.
Resolution Copper is a vital project for economic development that
will also ensure a reliable supply of copper and other critical
minerals for the nation. The project is estimated to be able to supply
up to 1 billion pounds of copper annually, which represents 25% of the
U.S. domestic demands. The Draft Environmental Impact Statement (EIS)
prepared by the U.S. Forest Service (USFS) estimates that the total
direct and indirect economic impacts to the State of Arizona will total
$1 billion per year.
Arizona state agencies have been closely involved in the lengthy
and thorough process that produced the Final Environmental Impact
Statement (FEIS) and Draft Record of Decision. I have high confidence
in the process and the resulting documents. The unprecedented
retroactive step of rescinding a FEIS is very troubling and has
implications beyond this single project. The vast amount of Federal
land in Arizona means that federal actions, such as the completion of
an EIS, are a fact of life for many large and important projects in our
state. Discretionary retroactive decisions such as this one will cast a
shadow on any large infrastructure project in the state and create
uncertainty for these projects. Such actions cannot continue.
I respectfully request an opportunity to discuss with you the
timeline for the Department to get the project back on track, as well
as how the Department will treat other existing permits and projects in
Arizona. Thank you for your consideration.
Sincerely,
Douglas A. Ducey,
Governor
______
Arizona State Building & Construction Trades
Council
Phoenix, Arizona
March 31, 2021
Hon. Senator Mark Kelly
United States Senate
Dirksen Senate Office Building, Suite B40B
Washington, DC 20510
Re: Request to Withhold/Abstain Support--Senate Bill 915
Dear Senator Kelly:
As the President of the Arizona State Building and Construction
Trades Council (AZBTC), I represent thousands of professional
craftspeople who are members of our 15 building trade-affiliated
unions. I write to you today to respectfully request that you make
Arizona's workers and their families a priority and withhold support
for Senate Bill 915, reintroduced by Sen. Bernie Sanders on March 23,
2021, and not co-sponsor this detrimental bill.
Senate Bill 915 repeals section 3003 of the National Defense
Authorization Act for Fiscal Year 2015, effectively reversing the land
exchange agreement between the federal government and Resolution Copper
Mining, LLC. This would shut down the proposed Resolution Copper Mine
project near Superior, denying thousands of Arizonans high-paying,
quality jobs and suppressing millions of dollars in much-needed
economic investment in our region's economy.
Passage of SB 915 would be a huge step backward in our country's
efforts to implement progressive energy policies and mitigate the
impact of climate change. Arizona workers support the Biden
Administration's Build Back Better initiatives and the ``Buy Clean, Buy
American'' sentiment that goes with it. Copper mining and production
are essential to manufacturing of electronics and medical equipment, as
well as the implementation of green technologies and proposed clean
energy projects. Our country's future depends on copper, and Arizona,
with its rich copper deposits, is poised to play its role to create a
cleaner future for our children and grandchildren. Arizona's union
workers are trained and ready to be part of these green solutions.
Arizona's workers deserve quality jobs that provide livable wages
and benefits, and SB 915 would take jobs away from the hardworking
union members of our state. AZBTC and Resolution Copper Mines have
signed a Memorandum of Understanding that ensures that union labor will
be used during the construction, operation and shut-down phases of the
mine over the next 50 years. A properly trained and experienced
workforce is critical to economic growth, and by partnering with AZBTC,
Resolution Copper Mining is demonstrating its commitment to generations
of Arizona's highly skilled workers. The mine will create more quality
jobs for residents of the Copper Triangle, including those with tribal
affiliations and armed services veterans. Resolution Copper Mine will
employ nearly 5,000 tradespersons during its 10-year construction and
ramp-up phases. Once completed, the mine will employ 1,500 during its
projected 40 years of operation, paying an estimated $134 million in
wages and benefits each year. Many of these jobs will be staffed by
union members who have highly specialized training and experience that
prioritizes safety, efficiency and quality craftsmanship.
Senate Bill 915 ignores the will of workers whose skills and
expertise will be vital to the construction and operation of the mine.
Resolution Copper Mining has actively engaged the public in every step
of this seven-year planning and permitting process, which started under
the Obama administration and garnered bipartisan support including that
of late Senator John McCain. Because of public input, this project
includes protections for tribal sacred sites and sensitive ecosystems
to ensure that the land and its history are preserved for generations
to revere and enjoy. The building trades community, which includes
members who live in Southeastern Arizona and have tribal affiliations,
have added their voices in support of this project because they know
that it will provide opportunities for generations of workers, and
enable them to stay close to their families and communities. The mine
will create an additional 2,200 indirect and induced jobs in the
surrounding communities, which will benefit the workers' families and
tribes in the area. These investments will revitalize small towns,
boost the tax base to support schools and infrastructure, and grow the
local economy to lift up the middle class.
On behalf of Arizona's workers and their families, I ask that you
not support SB 915, a short-sighted bill that will do long-term harm to
Arizona's skilled workforce and economy.
Sincerely,
Aaron Butler,
President
______
Arizona State Building & Construction Trades
Council
Phoenix, Arizona
April 2, 2021
Secretary Tom Vilsack
U.S. Department of Agriculture
1400 Independence Ave., S.W.
Washington, DC 20250
Re: Request to Complete and Publish the EIS for Resolution Copper
Mining in Arizona
Dear Secretary Vilsack:
As the President of the Arizona State Building and Construction
Trades Council (AZBTC), I represent thousands of professional
craftspeople who are members of our 15 building trade-affiliated
unions. I write to you today to respectfully request that the USDA and
the USFS complete and publish the Environmental Impact Statement for
the land exchange for the Resolution Copper Project in Arizona.
Delaying the land exchange for the Resolution Copper Mine project
near Superior denies thousands of Arizonans high-paying, quality jobs
and suppresses millions of dollars in much-needed economic investment
in our region's economy.
The Resolution Copper Mine is a big step forward in our country's
efforts to implement progressive energy policies and mitigate the
impact of climate change. Arizona workers support the Biden
Administration's Build Back Better initiatives and the ``Buy Clean, Buy
American'' sentiment that goes with it. Copper mining and production
are essential to manufacturing of electronics and medical equipment, as
well as the implementation of green technologies and proposed clean
energy projects. Our country's future depends on copper, and Arizona,
with its rich copper deposits, is poised to play its role to create a
cleaner future for our children and grandchildren. Arizona's union
workers are trained and ready to be part of these green solutions.
Arizona's workers deserve quality jobs that provide livable wages
and benefits, and delaying or denying the land exchange would take jobs
away from the hardworking union members of our state. AZBTC and
Resolution Copper Mines have signed a Memorandum of Understanding that
ensures that union labor will be used during the construction,
operation and shut-down phases of the mine over the next 50 years. A
properly trained and experienced workforce is critical to economic
growth, and by partnering with AZBTC, Resolution Copper Mining is
demonstrating its commitment to generations of Arizona's highly skilled
workers. The mine will create more quality jobs for residents of the
Copper Triangle, including those with tribal affiliations and armed
services veterans. Resolution Copper Mine will employ nearly 5,000
tradespersons during its 10-year construction and ramp-up phases. Once
completed, the mine will employ 1,500 during its projected 40 years of
operation, paying an estimated $134 million in wages and benefits each
year. Many of these jobs will be staffed by union members who have
highly specialized training and experience that prioritizes safety,
efficiency and quality craftsmanship.
Resolution Copper Mining has actively engaged the public in every
step of this seven-year planning and permitting process, which started
under the Obama administration and garnered bipartisan support
including that of late Senator John McCain. Because of public input,
this project includes protections for tribal sacred sites and sensitive
ecosystems to ensure that the land and its history are preserved for
generations to revere and enjoy. The building trades community, which
includes members who live in Southeastern Arizona and have tribal
affiliations, have added their voices in support of this project
because they know that it will provide opportunities for generations of
workers, and enable them to stay close to their families and
communities. The mine will create an additional 2,200 indirect and
induced jobs in the surrounding communities, which will benefit the
workers' families and tribes in the area. These investments will
revitalize small towns, boost the tax base to support schools and
infrastructure, and grow the local economy to lift up the middle class.
I am proud to be the voice of Arizona's workers and their families,
especially on a matter that is so very important to the future of
Arizona's workforce and economy. I would like to request a meeting with
you and your staff to further discuss the Resolution Copper Mine
project.
Sincerely,
Aaron Butler,
President
______
March 17, 2021
The President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Dear Mr. President:
As the Mayors of the municipalities in Arizona's Copper Corridor
and County Supervisors of Gila and Pinal Counties, we are writing to
you about a matter of critical importance: the completion and
publication of the Final Environmental Impact Statement (FEIS) for the
Resolution Copper Mine. We, along with many tribes and stakeholders in
the region most affected by this proposed new mine, strongly support
the long and arduous process that resulted in the publication of the
FEIS in the Federal Register on January 15, 2021.
We are gravely concerned that any delay in completion and issuance
of the FEIS for Resolution Copper will cause irreparable harm to our
region and the precious way of life that we have always known. Further,
we are equally concerned about the delay in the release of the Capstone
Pinto Valley FEIS, for the same reason.
As leaders in Arizona's Copper Corridor, we are keenly aware of the
role this industry serves in developing clean energy and continued
technological advancement. We also have first-hand experience in
navigating through the boom-and-bust cycles of the mining industry. We
all have worked hard to create more resilient and economically diverse
communities, and to become less dependent on the extraction industry.
The mining industry is important to our region and state, not only
through the private capital investment and jobs that it generates, but
also the other direct and indirect benefits that accrue to communities
where it is based.
With respect to the Resolution Copper project, the FEIS and
resulting land exchange will have a lasting effect on all of our
communities, and in particular, in Superior where the mining operations
will take place. We have actively participated in the process from the
moment legislation was signed into law in 2014 as did every community
and stakeholder in the region.
Ten of the 11 tribes in the region actively participated in the
process as well. One tribe chose not to participate in the process and
most likely has no intention of doing so. But, because they have
objected vociferously and garnered sympathy from many individuals and
the media in the U.S. and around the world who have never been to our
region, this process has been halted. This is patently unfair to those
communities, tribes and stakeholders that worked tirelessly to forge an
agreement with the mine to mitigate many of the impacts from this
activity.
Let us be clear: we love and honor our Native American brethren and
sisters. Their voices must be heard and respected. They deserve a seat
at the table. Ten tribes participated in this process and their voices
need to be heard and respected too. And, so do the voices of small
communities and stakeholders such as ours who see this new mine as an
economic lifeline to our economically challenged communities.
We are acutely aware that no negotiation or process is perfect.
However, the FEIS process did exactly what it was supposed to do by
forcing all stakeholders to the table to negotiate the best outcomes
for all involved. Delaying the release of these FEIS and including
additional tribal consultation will only create more consternation in a
process that has entailed more than seven years of earnest and arduous
work. The mitigations that have been put into place through this
process will provide our communities with the means to advance our
economic development and achieve greater economic diversity.
With respect, we urge you to direct the immediate release of the
Resolution Copper and Capstone Pinto Valley FEIS, consummate the
Resolution Copper land exchange as required by law, and move this
process forward for the benefit of the tribes and communities that
fought hard to strengthen their communities.
Thank you, Mr. President, for your attention to these matters which
are of critical importance to us all.
Most respectfully,
Mila Besich, Mayor, Jamie Ramsey, Mayor,
Town of Superior Town of Kearny
Sammy Gonzales, Mayor, Dean Hetrick, Mayor,
Town of Miami Town of Hayden
Louis C. Bracamonte, Mayor, Kevin Cavanaugh, Supervisor,
Town of Winkelman Pinal County
Woody Cline, Supervisor, Jeff Serdy, Supervisor,
Gila County Pinal County
______
Arizona State Senate
Phoenix, Arizona
February 25, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
As a member of the Arizona State Senate, representing District 8, I
reach out to you on behalf of not only the individuals directly
involved, but the thousands of people whose lives will benefit from the
Resolution Copper project and Programmatic Agreement. Born and raised
in Florence, Arizona, I have been fortunate enough to see the
development and growth that has evolved throughout our desert oasis
firsthand. Additionally, as an Arizona native, I have a personal
attachment and appreciation for the unique beauty and culture our
desert has to offer our great State. Now, as an Arizona State Senator,
it is of the upmost importance that Arizona continues to succeed while
upholding and cherishing our native roots. With the best interest of
the communities of Arizona in mind, I strongly encourage ACHP to
support and sign off for the Resolution Copper project.
This project is set to bring remarkable economic growth and
development to Pinal County and the communities surrounding it. The
copper mine is not only an opportunity for economic growth, millions of
dollars in wages, and support of small businesses, the project
represents Arizona's longstanding mining heritage. Furthermore, the
Programmatic Agreement in complete alignment with Section 106
requirements considers years of consultation with Native American
tribes and communities to ensure every person's voice has been heard.
The Programmatic Agreement specifically spells out imperative measures
to conserve the cultural heritage among our communities. Such measures
include the Emory Oak Collaborative Tribal Restoration Initiative,
Copper Triangle Cultural Heritage Preservation Fund, the development of
an alternative Oak Flat Campground, and that is just the beginning.
Further, the Final Record of Decision will trigger the preservation,
development, and conservation of our beloved communities. Thus, the
Resolution Copper Programmatic Agreement clearly represents the values
of the Arizona people--development and growth while cherishing our
cultural heritage.
Representing not only the countless groups and stakeholders
supporting the project for years, but each community member of Arizona,
I undoubtedly believe the Resolution Copper project is in the best
interest of Arizona. I strongly request ACHP to reconsider its position
on the Resolution Copper Programmatic Agreement and am hopeful ACHP
will join the other signatories.
Sincerely,
Senator T.J. Shope,
State Senator of Arizona, District 8
______
March 23, 2021
Hon. Tom Vilsack, Secretary of Agriculture
United States Department of Agriculture
1400 Independence Avenue SW
Washington, DC 20250
Dear Secretary Vilsack:
For more than four decades, key business organizations in Arizona
including the Arizona Chamber of Commerce, Greater Phoenix Economic
Council, Valley Partnership and Greater Phoenix Leadership among others
have made it our mission to improve the greater Phoenix area and the
State of Arizona by bringing together talent, resources and leadership
to create action on priority issues. We represent Arizona business
leaders and their employees across a diverse range of industries.
Together, we work to advance initiatives, public policy and projects
that will strengthen the future of Arizona.
We are writing to express our concern over the USDA's recent
decision to rescind the Final Environmental Impact Statement (EIS) and
Draft Record of Decision from the Resolution Copper project near
Superior, AZ after years of thorough, independent, meaningful public
consultation by the Forest Service that started in the Obama
administration. This decision now unnecessarily delays significant
benefits the project would bring to citizens in our region after they
participated in good faith along with the Forest Service and almost a
dozen other taxpayer funded federal and state agencies. The USDA has
undermined the good work by the career-level staff within the Forest
Service and tells every member of the public their time and effort was
wasted. The decision to rescind the Final EIS will have a chilling
effect on future decisions by businesses to invest in our state.
As you know, Resolution Copper is developing one of the world's
most significant untapped domestic sources of copper in Arizona's
Copper Triangle, an area with a long and rich history of mining. It is
one of the single largest private investments in Arizona's history.
This project is a crucial part of America's clean energy future.
Once in operation, the mine could supply up to one-quarter of the
nation's copper demand. That's vital fuel for American innovation.
Copper is an essential component in electric vehicles, battery storage,
wind turbines, solar panels and other clean energy technologies.
With demand for copper growing exponentially worldwide, the
Resolution Copper project will bring enormous economic benefits to our
state at a time when we need such investment more than ever to rebound
from the severely negative economic impacts of COVID-19. The mine will
employ about 1,500 workers and will pay approximately $134 million per
year in total compensation when fully operational, primarily to a
workforce that lives within 40 miles of the project. The project will
also generate an estimated 2,200 additional indirect jobs. And it has
won strong support from local labor leaders. All told, Resolution
Copper could contribute $1 billion in economic value for Arizona
annually over the project's 60-year estimated life. It will boost state
and local tax revenues by between $88 million and $113 million each
year of operations, while the federal government could see an extra
$200 million in tax revenues per year.
As leaders from some of Arizona's most prominent companies, we know
what factors into decisions about whether or not to invest in a state.
That is why we are so troubled by the USDA's last-minute decision
concerning Resolution Copper, which the agency did without consultation
with local leaders and communities.
After all, legislation to facilitate the land exchange between the
Tonto National Forest and Resolution Copper passed Congress with
bipartisan support in December 2014 and was signed into law by
President Obama. The Final EIS issued by the Forest Service in January
reflects a decade of formal consultation with Native American tribes
and community stakeholders. It outlines detailed plans to address and
mitigate community concerns about the project's impact, while
delivering lasting benefits to the region.
The federal permitting process was nearly unprecedented in both its
scope and its length. Entrenched voices of opposition who routinely
oppose any and all development have been heard. Their voices, however,
should not cast permanent doubts about this future investment in our
state. Arizona is a state that relies so heavily upon mining, when it
is required that businesses submit to lengthy and complex federal
permitting and EIS review processes, then we must ensure that process
is followed and respected.
Now is not the time to play politics with Arizona's economic
future. We urge you to review the facts, reaffirm trust in the
extensive independent EIS process and allow the Resolution Copper
project to move forward so that all Arizona citizens may realize the
benefits.
Sincerely,
Garrick Taylor, Chris Camacho,
Interim President & CEO President & CEO
Arizona Chamber of Commerce
& Industry Greater Phoenix Economic Council
Neil Giuliano, Cheryl Lombard,
President & CEO President & CEO
Greater Phoenix Leadership Valley Partnership
______
PRESS RELEASE
International Brotherhood of Boilermakers--Lodge 627
PHOENIX--Today the Resolution Copper project was put on hold by an
order from the United States Department of Agriculture. This mine
located near Superior, Arizona, will bring thousands of new jobs to
rural Arizona and put hundreds of Boilermakers to work. Boilermakers
Local 627 Business Manager and Secretary Treasurer Jacob Evenson
released the following statement in response to the project setback:
``I am extremely angry and disappointed in the USDA's decision today.
This mine will put hundreds of Boilermakers from Local 627 to work at a
facility that needs a skilled and trained workforce. Every time
decisions like this are made by DC bureaucrats, our Boilermakers are
out of a job. The USDA's decision means our members, most of which are
Navajo and Apache tribal members, will continue to hope and wait for
the day when they can clothe their families, feed their parents, and
put shoes on little feet.''
``The process by which the land exchange occurred was legal and proper.
Throughout this process, Resolution Copper consulted with multiple
tribal nations throughout the state of Arizona. Hundreds of our
Boilermakers that are also tribal members have been at the table
helping shape the vision of the Resolution Copper mine. To have a clean
energy revolution, we need copper to power our windmills, move electric
cars, and operate solar panels. We demand the USDA reissue the Final
Environmental Impact Statement without delay and continue progress
toward construction. Our members, which number in the tens of
thousands, are watching and will remember.''
In Solidarity Local 627
Jacob Evenson
Business Manager/Secretary Treasurer
______
City of Apache Junction
Apache Junction, Arizona
February 22, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
As the Mayor of Apache Junction, I have spent years of my life
dedicated to the preservation and success of not only Apache Junction,
but the communities surrounding us. To ensure only the best for our
communities, other community leaders and I have devoted our lives to
listening to our people and having their desires be heard. Along with
this continued support, we continue to stand behind our culture, and
preserve the heritage and treasures the desert gives to us. To further
the success of our communities, I have been involved in and supportive
of the Resolution Copper project for several years. The Resolution
Copper project not only will have a substantial impact on Pinal County,
but the many communities surrounding it.
After tirelessly working for the past several years to have this
project see its end, it was heart breaking to hear the White House
Advisory Council decided to terminate their consultation on the
Programmatic Agreement after involvement with the project for several
years and months of commitment. It was quite shocking to hear that ACHP
had such a substantial change of heart, as most of the interested
parties and stakeholders have continuously supported the Resolution
Copper project. The imperative impacts of the Resolution Copper project
are monumental for the communities surrounding Pinal County.
Specifically, the project spells out measures to address the cultural
heritage surrounding the Native American Tribes and local Copper
Communities by including ways we can preserve such communities moving
forward. Such examples of preservation from the Programmatic Agreement
itself include a Native American Education Endowment, Native American
Tribal Endowment, and additional preservation funds and initiatives.
Further, FEIS mitigations triggered by a Final Record of Decision
include community development funds, preservation of communities, and
constructing new trails to embrace our beautiful desert. These measures
are just the beginning of the positive impacts the Programmatic
Agreement and Final Record of Decision will bring to our communities.
With the support of the leaders and communities behind this
project, including myself, I am hopeful and confident ACHP will change
its position on the Resolution Copper Programmatic Agreement and join
all other required signatories on the Programmatic Agreement. Thank you
for your consideration and the opportunity for our communities to be
heard.
Sincerely,
Chip Wilson,
Mayor of Apache Junction
______
SAN CARLOS APACHE TRIBE
July 18, 2016
Resolution EIS Comments
P.O. Box 34468
Phoenix, AZ 85067-4468
To Whom It May Concern:
My name is Cody Elgo, I am a member of the San Carlos Apache Tribe
who works for a contractor that provides services to Resolution Copper.
I have to be honest with you, at first I did not want to write this
letter but the more I hear some of my tribal leaders speak against the
Resolution Copper project, the more I begin to think that they are
interfering with my livelihood. Before my employment, I had a very
tough time looking for a job in San Carlos. You see, there are very few
jobs available so the job pool is highly competitive. Hence, I write
because I have experienced firsthand how difficult it is to get a job
in the area and how important it is to hold on to local employment
opportunities because I want to live and work near my family and
community. I want to make a difference that will help other tribal
members get a job, learn a trade, participate in training, and have the
ability to provide for their families like I do.
Because I have heard that the Forest Service will be consulting
with my tribal council on the Resolution Project, please consider:
1. an employment plan for Resolution Copper to hire and retain San
Carlos Apaches as direct employees and indirect employees
working for contractors.
2. a plan to train and provide educational opportunities for San
Carlos members in the various jobs that will be required at
Resolution Copper either as full time or contract.
3. a plan with Resolution Copper to work with and further increase
the ability of San Carlos tribal businesses that can
provide services to the Resolution Copper project.
Furthermore, I have heard that Resolution Copper will be the mine
of the future, different than the historic mining that has happened in
the area, with new technology combined with the current environmental
regulations. How is the proposed mine different from existing mining
methods in the Copper Triangle and what are the positions needed to be
filled when in construction and production phase? Can the EIS please
describe the modern mining technology, the new regulations for
protection of the environment and the kind of positions and jobs needed
when in construction and production as these jobs will require a skill
that can be used outside of mining?
Thank you for taking the time to address my inquiries. I want to
make sure that there is a clear path for everyone to benefit from this
company because I believe there is true opportunity for people to
benefit and applaud Resolution Copper for the good deeds they have done
thus far. I support this project and hope to see it through to
production.
Sincerely,
Cody Elgo,
San Carlos Apache Tribal Member
______
COMMUNITY WORKING GROUP
Phoenix, Arizona
February 23, 2021
Mr. Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for ACHP and USFS Finalizing the Programmatic Agreement:
Resolution Copper Mining Project and Land Exchange
Dear Mr. Daniel:
Please accept these comments on behalf of the Community Working
Group (CWG) in response to the Advisory Council on Historic
Preservation's (ACHP) request for public input for the Resolution
Copper Mine Project and Land Exchange. The ACHP actions to terminate
the Programmatic Agreement at the last minute and decline to sign after
years of participation by the public and after ALL other federal and
state agencies have signed is unprecedented.
1. Please approve the Programmatic Agreement (PA) for the
Resolution Copper Project. This agreement contains provisions that are
vital to historic preservation, cultural integrity, and economic
prosperity for everyone in this region, whom our members broadly
represent. Of specific importance to the Community Working Group are:
Establishment of a Copper Triangle Historic Preservation
Fund aimed at addressing effects from the project on
historic properties and other community infrastructure
throughout the Copper Triangle region
Development and initial funding of a new Castleberry
Campground as mitigation for Oak Flat, to include cultural
resources interpretive information
The PA also contains provisions that we believe must be valuable to
tribal interests, including:
The Emory Oak Collaborative Tribal Restoration Initiative
Foundation for Tribal Program Funding
Tribal Cultural Fund
Tribal Education Fund
Archaeological Database Funds
This agreement has been widely vetted with the affected residents,
eleven affected tribes, agencies, and varied interests in this region.
As we understand it, all of the required and invited signatories to the
PA have signed it, except the ACHP, and the vast majority of Native
American Concurring Parties have also agreed to its provisions.
Further, and much broader in scope, the Environmental Impact
Statement (EIS) that is dependent on approval of the PA contains
agreements and mitigation measures negotiated through seven years of
good-faith collaboration among the affected communities, Forest
Service, and Resolution Copper Company, without which the effects of
this project would be devastating to the human and physical environment
and economies of this region.
We believe that the National Environmental Policy Act (NEPA) and
National Historic Preservation Act (NHPA) processes have been carefully
and admirably carried out, as envisioned, for this project, and that
the objectives of reducing impacts to a significant extent have been
met. Throughout the process, agreements have been forged among the
affected parties, local communities, Resolution Copper Company, and the
Tonto National Forest that address most of the major issues of concern
to this region that were evidenced before the EIS began. The result of
these agreements is that the many communities and individuals initially
concerned or opposed to the Resolution Copper Project are now
supportive of the project, ONLY because, over many years, reasonable
balance has been achieved between impacts and meaningful mitigation
commitments.
2. Historic resources and cultural history are important, along
with prehistoric and Native American cultural resources. ``Section 106
of the National Historic Preservation Act (NHPA) requires federal
agencies, in consultation with state and tribal partners and other
stakeholders, to consider the effects of undertakings, proposed to be
carried out by them or subject to their assistance or approval, on
historic properties to ensure that historic preservation needs are
considered along with project requirements.''
Mitigation agreements for this project have been designed to ward
against the ``boom/bust'' economic cycles typically experienced by
communities in this region for the past 150 years. From a historical
perspective, the modern history of this region is intrinsically linked
to copper mining. Mining is the historical context of the area, so the
important non-Native resources of the region are all associated with
mines, mining, and the communities that grew up and thrived around
copper mines. To a large extent (nearly 30%), these communities are
comprised of people of Hispanic heritage, stamping their culture on the
region for generations since the earliest miners hailed from Mexico.
This heritage should be respected equally with other cultural concerns.
The PA seeks to recognize the importance of all these historic and
cultural resources through a commitment to fund wide-ranging
preservation efforts.
3. Everyone should have a voice in the Resolution Copper Project
outcomes. This Community Working Group was formed in 2013 to provide
constructive dialogue between Resolution Copper Company and the
multiple stakeholder groups and community leaders in and around
Superior. The purposes of our group are to learn independent analysis
about the Resolution Copper Project, advise the company on community
issues and concerns, and develop suggestions and programs for reducing
negative impacts of the project and enhancing its potential benefits.
The CWG provides two-way dialogue between Resolution and a broad range
of individuals and groups and organizations that span multiple areas
across three counties to balance the need for jobs and economic growth
with environmental conservation and historical preservation. The CWG
includes representatives of the many community groups, interests, and
varying perspectives who have come together to preserve and enhance the
values and resources of this region from the Phoenix East Valley to the
Copper Triangle (Superior, Miami, Globe, Winkelman, Hayden, Kearny).
The group has also included representatives of the San Carlos Apache
community and multi-generational local families who hold varying
historical interpretations of the cultural significance of Oak Flat to
those presented to the ACHP by a few special interests.
4. The EIS and PA represent good-faith efforts conducted over
several years that have increased public trust in the federal
government and Resolution Copper Company. As mentioned above, there was
much skepticism before the EIS began about its effectiveness and about
the sincerity of those involved to thoroughly study and address
impacts. As a result, members of this CWG--as a whole, and as
representatives of important community organizations--have participated
extensively and in good faith during the coordinated Forest Service's
NEPA and NHPA processes over many years. Members of this group have
been instrumental in developing and supporting the array of agreements
and mitigation measures included in the PA and in the EIS. These
measures are critical to the future survival and prosperity of this
region and, individually, to the local governments and civic
organizations represented on the CWG. Although these measures may not
be important to one group who did not participate in the NEPA/NHPA
process, they are important to us and the voice of this group should
matter.
The CWG and its members have devoted tens of thousands of volunteer
hours over seven years to this effort. If the PA is not advanced and
finalized, and if a final Record of Decision can't be released, this
good-faith work to consensus that has spanned years will have been in
vain. More importantly, this would represent an extremely bad-faith
effort on the part of the Advisory Council on Historic Preservation to
change course at the last minute after extensive participation and time
spent by the Forest Service, other state and federal agencies, the Town
of Superior, the CWG, and all its member organizations who have
participated for years along with Resolution Copper Company. The ACHP's
actions send a signal to the whole CWG that our extensive participation
and the mitigation measures that are meaningful to us were worthless.
5. Copper is valuable, and Oak Flat will likely be disturbed in
future with or without the PA and EIS. Regardless of whether the PA is
approved and the EIS completed, the Secretary of Agriculture will grant
title of the Oak Flat Federal Parcel to Resolution Copper no more than
60 days after the final EIS is published (January 15) as legislatively
mandated in section 3003 of the National Defense Authorization Act for
fiscal year 2015. Once in private hands, Rio Tinto or another mining
company in future will be able to extract the copper resource without
benefit of the regulatory and mitigation requirements inherent in the
PA and EIS. Copper is increasingly one of the world's most valuable
resources, even to the point of representing a national security issue,
and it's entirely reasonable to assume that the Resolution claim will
be mined by someone, some day.
6. The Promise to the Public: The ACHP website (www.achp.gov)
states that it takes ``its responsibilities to the American public
seriously'' and the ACHP mission is to ``ensure that historic
preservation needs are balanced with Federal project requirements.''
The ACHP customer service standards state that the ACHP is ``committed
to providing first-class service. When you conduct business with us, we
will treat you with courtesy and respect.''
Our request of the ACHP is that you remember that ALL views of the
American public matter. We have had ``meaningful involvement'' and we
believe that the Programmatic Agreement and associated measures
outlined in the Record of Decision strikes that balance. We ask that
you take the time to treat our comments and views, and this entire
process and the time spent by many stakeholders, with courtesy and
respect and as such move forward to sign the Programmatic Agreement.
We believe that the greater good should prevail here and that the
ACHP should sign the PA to ensure vital environmental, social, and
cultural mitigation as well as economic benefits that flow from it to
this multicultural, historic, active mining region.
Thank you for your consideration,
MEMBERS OF THE SUPERIOR COMMUNITY WORKING GROUP:
Barbara Armitage, Lynne Nemeth,
Superior Historical Society Boyce Thompson Arboretum
Pam Bennett, Lynn Martin,
Queen Valley Homeowners JI & JF Ranches
Joanne Besich, Ricardo Provencio,
Optimist Club of Superior United Superiorites
Mila Besich, Todd Pryor,
Town of Superior Town of Superior
Jeffrey Bunkelmann, James Schenck,
Central Arizona College Rebuild Superior, Inc. & Legends
of Superior Trail
Rick Cartier, Fernando Shipley,
Superior Chamber of
Commerce City of Globe & Cobre Valley
Regional Medical Center
Pamela Dalton-Rabago, Silvia Werre,
Superior Chamber of
Commerce Top-of-the-World
Fred Gaudet, Bruce Wittig,
Arizona Trail Association Queen Valley Fire Department &
Queen Valley Water Improvement
District
Martina Burman, Arlynn Godinez,
Town of Kearny Superior Unified School District
Sylvia Kerlock, Supervisor Woody Cline,
Town of Winkelman Gila County
______
Copper Corridor Economic Development Coalition
Oracle, AZ
February 25, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
The Copper Corridor Economic Development Coalition (CCEDC)
represents and supports the communities along the Copper Corridor in
Arizona, including Superior, Kearny, Hayden, and Winkelman. Our mission
is to attract, create, and retain quality jobs and businesses and to
support community leadership; and we have engaged and supported the
Resolution Copper project for over a decade, participating in good
faith and providing comments along the way.
As President of the CCEDC, I write to you in support of the
Resolution Copper Project, the Final Environmental Impact Statement,
and most importantly, the Programmatic Agreement, all of which have
been the subject of a rigorous review and engagement process for more
than seven years. The CCEDC is incredibly disappointed to hear of the
ACHP's actions to terminate the Programmatic Agreement at the last
minute, after years of participation and after all other federal and
state agencies have signed.
The CCEDC understands and appreciates that the Programmatic
Agreement incorporates significant cultural heritage preservation
measures created through nearly a decade worth of discussions with
Native American Tribes and local communities in the Copper Triangle.
Mining and ranching history has been a fabric in the communities that
the CCCEDC serves and the Programmatic Agreement and the NEPA process
show how historic preservation and economic growth can be balanced.
The CCEDC supports the mitigation measures lined out in the
Programmatic Agreement, including the construction of the Castleberry
Campground and the cultural heritage fund to preserve historic and
cultural character in the towns in the Copper Corridor. This is an
innovative and impressive balance of historic preservation and local
economic diversification.
This recent decision by the ACHP tells the CCEDC and other local
organizations that our participation and voices do not matter. It is
disheartening to see that ACHP has put a single focus and sole
importance on one group of stakeholders; and not all who participated
fully in this process.
The CCEDC urges you to reconsider ACHP's position on the
Programmatic Agreement as quickly a possible, so all communities and
stakeholders can benefit from the mitigations agreed upon for this
project.
Thank you for the opportunity to comment on the Programmatic
Agreement and the CCEDC looks forward to seeing this project move
forward without further delay.
Thank you,
Celestino ``Tino'' Flores,
President
______
Eastern Arizona Counties Organization
Show Low, AZ
February 22, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
The Eastern Arizona Counties Organization includes Gila County,
Navajo County, Greenlee County, Graham County, Navajo County, Apache
County, and Cochise County. Our primary mission is to plan and
implement specific environmental programs impacting economic
development in the Counties we serve. Such programs include forest
restoration, watershed restoration, energy, water, recreation,
threatened and endangered species, infrastructures, public lands and
natural resources planning.
The Resolution Copper Project and associated Environmental Impact
Statement are issues of significant interest to our organization,
especially those member counties who will see direct benefit from the
project. Copper mining is part of the fabric Arizona's history and this
project will continue that tradition through its operations and through
several cultural preservation measures outlined in the Programmatic
Agreement.
Those measures are meaningful to many stakeholders, including local
communities across the copper Triangle and Native American Tribes who
participated extensively in consultation on the EIS and Section 106
progress that was coordinated by the United States Forest Service. The
data recovery measures for historic properties associated with mining
will further our knowledge of the history of the Copper Triangle region
and specifically the Pioneer Mining District. Tribal communities will
be participating in the data recovery through the tribal monitor
program, providing jobs and job training as well as information and
knowledge. For beneficiary communities, these measures and the economic
benefits Resolution Copper can deliver will ensure our mining
communities continue to prosper and live on while balancing historic
preservation through the measures outlined in the Programmatic
Agreement.
The recent action of ACHP related to the Resolution Copper
Programmatic agreement is of significant concern from our perspective
as it calls into question the integrity of the Advisory Council taking
a political position at the very end of a process they have
participated in for years. The USFS coordinated a thorough and rigorous
NEPA process run in parallel with the Section 106 process which has
spanned more than seven years and three administrations. The
Programmatic Agreement was included in the Draft EIS for public comment
and underwent almost a dozen versions, incorporating stakeholder
feedback all along the way, including feedback from the Advisory
Council.
We are keenly aware of the delicate balance required when
considering public lands and natural resource planning. The established
process of developing programmatic agreements is critical to addressing
concerns of rural communities most directly impacted by projects as it
provides a voice to those communities. Furthermore, this dangerous
precedent could have far reaching consequences to economic development
opportunities in rural Arizona and also the much-needed infrastructure
improvements needed across our country associated with any and all
federal decisions. It is for these reasons that adherence to the
processes described in Programmatic Agreement and finalization of that
document are critical and we support that direction.
Therefore, we ask that ACHP reconsider its position on the
Resolution Copper Programmatic Agreement in alignment with your
organization's previous statements that USFS has completed consultation
in line with Section 106 and the agreement should be implemented as
drafted.
Sincerely,
Jason Whiting, Nelson Davis,
Eastern Arizona Counties
Organization Chair Eastern Arizona Counties
Organization Director
Navajo County Supervisor Apache County Supervisor
Richard Lunt, Peggy Judd,
Eastern Arizona Counties
Organization vice-Chair Eastern Arizona Counties
Organization Director
Greenlee County Supervisor Cochise County Supervisor
Steve Christensen, Pascal Berlioux, PhD, MBA,
Eastern Arizona Counties
Organization past Chair Eastern Arizona Counties
Organization
Gila County Supervisor Executive Director
______
GILA COUNTY
Board of Supervisors
Globe, Arizona
February 22, 2021
Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Daniel:
I am a County Supervisor in Gila County, Arizona, and I appreciate
the opportunity to comment on the Advisory Council on Historic
Preservation's (ACHP) decision to terminate the Programmatic Agreement
for the Resolution Copper Project in Arizona. This Programmatic
Agreement (PA) was developed among Resolution Copper, the US Forest
Service, Arizona State Historic Preservation Office, and Native
American Tribes so the Environmental Impact Statement (EIS) can proceed
to a Record of Decision. The process has taken many years to develop
and has included many thousands of volunteer hours from local citizens
who have a vested interest in this project.
The EIS that is dependent on approval of the PA contains agreements
and mitigation measures negotiated through years of good faith
collaboration between the affected communities and Resolution Copper,
without which the effects of this project would be devastating to the
environment and economies of this region. The results of these
agreements is that the many communities and individuals that were
initially concerned or opposed to the Resolution Copper Project are now
supportive of the project ONLY because of these mitigation commitments.
The ACHP actions to terminate the PA at the last minute, after
years of participation and after ALL other federal and state agencies
have signed is unprecedented. The ACHP must consider that the Forest
Service coordinated the NEPA process with Section 106 of the National
Historic Preservation Act and provided multiple opportunities for
public comment on the project, which has spanned many years. I urge,
the Advisory Council on Historic Preservation to reconsider their
decision.
If you have any questions regarding this letter, I would be more
than happy to discuss any of these points with you.
Sincerely,
Steve Christensen,
Gila County Supervisor District I
______
GILA COUNTY
Board of Supervisors
Globe, Arizona
February 23, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Daniel:
I am a County Supervisor in Gila County, Arizona, and I appreciate
the opportunity to comment on the Advisory Council on Historic
Preservation's (ACHP) decision to terminate the Programmatic Agreement
for the Resolution Copper Project in Arizona. Even though the mine is
located in Pinal County, Arizona it will have a profound effect on Gila
County residents.
This Programmatic Agreement (PA) was developed among Resolution
Copper, the US Forest Service, Arizona State Historic Preservation
Office, and Native American Tribes so the Environmental Impact
Statement (EIS) can proceed to a Record of Decision. The process has
taken many years to develop and has included many thousands of
volunteer hours from local citizens who have a vested interest in this
project.
The PA contains provisions that are vital to the historic
preservation, cultural integrity, and economic prosperity for everyone
in this region:
Establishment of a Community Development Fund specifically
aimed at addressing effects from the project on historic
properties and other community infrastructure for everyone
in the Copper Triangle region.
Development of a new Castleberry Campground as mitigation
for Oak Flat, to include cultural resources interpretive
information.
The agreement has been widely vetted with all of the
affected residents and interests in the local area.
The ACHP actions to terminate the PA at the last minute, after
years of participation and after ALL other federal and state agencies
have signed is unprecedented. The ACHP placed a singular focus and sole
importance on one group of stakeholders that has refused to participate
in the process, and yet the ACHP only listened to them. I urge you to
reconsider your decision.
If you have any questions regarding this letter, I would be more
than happy to discuss any of these points with you.
Sincerely,
Tim R. Humphrey,
Gila County Supervisor District II
______
GILA COUNTY
Board of Supervisors
Globe, Arizona
February 22, 2021
Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Daniel:
I am a County Supervisor in Gila County, Arizona, and I appreciate
the opportunity to comment on the Advisory Council on Historic
Preservation's (ACHP) decision to terminate the Programmatic Agreement
for the Resolution Copper Project in Arizona. Even though the mine is
located in Pinal County, Arizona, it will have a profound impact on
Gila County citizens as well.
This Programmatic Agreement was developed among Resolution Copper,
the US Forest Service, Arizona State Historic Preservation Office, and
Native American Tribes so the Environmental Impact Statement (EIS) can
proceed to a Record of Decision. The process has taken many years to
develop and has included many thousands of volunteer hours from local
citizens who have a vested interest in this project.
A Community Working Group (CWG) was formed in 2013 in order to
provide a conduit between Resolution Copper Company and the multiple
stakeholder groups and community leaders in and around Superior. The
CWG has included community members from nearby Gila County as well. I
personally was invited to join the group in 2019 and during my
participation I have learned a great deal about the project, and I have
been impressed with Resolution Copper's willingness to listen and work
with the local communities. The EIS that is dependent on approval of
the PA contains agreements and mitigation measures negotiated through
years of good-faith collaboration between the affected communities and
Resolution Copper Company. The agreements and measures are unmatched in
our communities that have relied on mining for more than 100 years.
Mining and ranching history has been the fabric of the Copper Triangle
for a century and the PA and the NEPA process run by the Forest Service
shows how historic preservation and economic growth can be balanced.
The ACHP actions to terminate the PA at the last minute, after
years of participation and after ALL other federal and state agencies
have signed is unprecedented. I urge you to revisit your decision and
take into consideration all of the hard work that has gone into this
project not only by Resolution Copper, local and state government, but
affected citizens as well.
If you have any questions regarding this letter, I would be more
than happy to discuss any of these points with you.
Sincerely,
Woody Cline,
Gila County Supervisor District III
______
GILA COUNTY
Globe, Arizona
February 24, 2021
Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for ACHP and USFS Finalizing the Programmatic Agreement:
Resolution Copper Mining Project and Land Exchange
Dear Mr. Daniel:
I am the County Manager for Gila County, Arizona, and I appreciate
the opportunity to provide comments on the Advisory Council on Historic
Preservation's (ACHP) decision to terminate the Programmatic Agreement
(PA) for Resolution Copper Mine Project and Land Exchange. Although not
located within the geographic boundaries of Gila County, Resolution
Copper has and continues to create an economic benefit to Gila County.
From a historical perspective, modern history of this region is
intrinsically linked to copper mining and has been for over 100 years.
Mining is the historical context of the area, so the important non-
native resources of the region are all associated with mines, mining,
and the communities that grew up and thrived around copper mines. The
PA seeks to recognize the importance of all these historic and cultural
resources through a commitment to fund wide-ranging preservation
efforts. The PA was developed among Resolution Copper, the U.S. Forest
Service, Arizona State Historic Preservation Office, and Native
American Tribes so that the Environmental Impact Statement (EIS) can
proceed to a Record of Decision.
The EIS that is dependent upon approval of the PA contains
agreements and mitigation measures representing good-faith efforts
between all affected communities and Resolution Copper Company. The
ACHP's actions to terminate the PA at the last minute, after all other
federal and state agencies have signed is unprecedented. The ACHP
placed a singular focus and importance on one group of stakeholders
that has refused to participate in the process, yet the ACHP only
listened to them. I urge, the Advisory Council on Historic Preservation
to reassess their decision and take into consideration all the hard
work that has gone into this project.
Please feel free to contact me should you have any questions
regarding this letter.
Respectfully submitted,
James Menlove,
County Manager
______
Greater Phoenix Leadership
Phoenix, Arizona
April 7, 2021
Hon. Tom Vilsack, Secretary of Agriculture
United States Department of Agriculture
1400 Independence Avenue SW
Washington, DC 20250
Dear Secretary Vilsack:
Greater Phoenix Leadership (GPL) has worked for over four decades
to improve the quality of life and economic vibrancy for the greater
Phoenix area and the State of Arizona. We represent over 100 Arizona
CEO's and their nearly 300,000 employees across a diverse range of
industries. We work to advance initiatives, public policies and
projects that with build a stronger and better Arizona.
We have consistently supported the Resolution Copper project and
the federal land exchange necessary to develop and operate the mine.
This mine will have a significant and lasting impact on the economy of
Arizona generating approximately $61 billion in economic value to our
state and creating thousands of good paying direct and indirect jobs.
This will have a very positive impact on our state's priorities for
education and infrastructure development.
While the economic impact of this project is important, so too are
the environmental and stakeholder benefits. We have been very impressed
with the conservation initiatives the company has embarked upon and the
extensive consultation efforts to involve all key stakeholders in the
process.
The parcels included in the Resolution Copper land exchange total
5,400 acres and have extensive conservation value. They include a
parcel which spans over seven miles along the San Pedro River, one of
the few remaining free flowing rivers in the Southwest. The San Pedro
corridor is one of the most important riparian habitats in the Sonoran
and Chihuahuan deserts. Other parcels transferring to federal ownership
would be part of La Cienegas National Conservation Area. Parcels
included in the exchange are home to dozens of threatened and
endangered species, critical habitat, and riparian and aquatic
ecosystems, which have long been recognized for their scarcity and
overall contribution to wildlife diversity. Some of the properties
contain river systems that are eligible for scenic designation under
the Wild and Scenic Rivers Act with habitat for native fish as well as
rainbow and brown trout.
The Resolution Copper project will also protect parcels which are
home to numerous Native American archeological sites, including
petroglyphs, structure ruins, and grinding sites. The Apache Leap
parcel, an area of sheer cliff faces and hoodoos contains some of the
most significant Western Apache archeological sites in the region. The
land exchange requires that the Apache Leap area be incorporated into a
Special Management Area for permanent cultural heritage protection and
administration by the Tonto National Forest.
The Resolution Copper project is the only Congressionally mandated
land exchange requiring a full Environmental Impact Statement (EIS)
prior to exchange of title. The Tonto National Forest, several local
communities in the Copper Triangle, stakeholders from three rural
counties, nearly a dozen Tribes, multiple federal and state agencies
all participated together to work with Resolution Copper during the
comprehensive review under the National Environmental Policy Act (NEPA)
for almost a decade. Not only would the Town of Superior have the
ability to grow and develop with additional land as part of the land
exchange, the EIS also contains important mitigation measures to expand
recreation and the diversity of the local Copper Triangle economy. Very
importantly, with the cooperation of consulting Native American Tribes,
the first of its kind tribal monitor program was created employing
dozens of Native American tribal members to ensure a transparent
assessment and cataloging of sacred and culturally significant sites.
Tonto National Forest has worked tirelessly to produce a nearly
3,000-page Final Environmental Impact Statement (FEIS) with hundreds of
independent analyses and a decade of meaningful collaborations and
consultations with Native American Tribes. We applaud the outstanding
work by the Tonto National Forest, and we urge you to encourage the
Administration to republish the FEIS in the very near future and move
this most important project forward.
Sincerely,
Neil Giuliano,
President and CEO
______
Mr. Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Resolution Copper Mining Project and Land Exchange; Tonto National
Forest, Pinal County, Arizona ACHP Project Number: 012344;
Response to Termination of Consultation
Dear Mr. Daniel:
Please accept these comments in response to the press release
issued by the Advisory Council on Historic Preservation (ACHP) on
February 11, 2021 announcing that it had terminated consultation on the
Resolution Copper Mining Project and Land Exchange and inviting public
comment on that decision. I am very concerned by this decision. It is
my position as an attorney familiar with the Resolution Copper Project,
the National Historic Preservation Act (NHPA), and the regulations
governing the ACHP that this decision is based on an incorrect
interpretation of the law and a distorted version of the facts related
to the impacts of the Resolution Copper Project and the development of
the Programmatic Agreement. The ACHP should reverse that decision and
sign the Programmatic Agreement. If ACHP proceeds with this course of
action, then the Forest Service should approve the project and
implement the measures described in the Programmatic Agreement to
resolve adverse effects to historic properties.
I have more than 42 years of experience in the natural resources
industries as a policy and legal expert. I have a BSBA and JD from the
University of Missouri. For 23 years I served as the Executive Director
of the Northwest Mining Association/American Exploration & Mining
Association (AEMA), retiring in March 2019. I continue to provide
consulting services to the minerals industry as a policy and legal
expert. During my tenure at AEMA, the Association established itself as
the recognized national voice for exploration, the junior mining
sector, and maintaining access to public lands.
I also served as a Trustee of the Rocky Mountain Mineral Law
Foundation for approximately 20 years and worked closely with the most
respected mining, public land and environmental attorneys in the
country. I gained in-depth knowledge of the General Mining Laws, the
environmental and public land laws and the proper interpretation of
those laws. As executive director of AEMA, I worked closely with
members on NHPA issues and compliance with ACHP regulations,
particularly implementation of and compliance with the Section 106
consulting process. I continue to consult to the industry on Mining Law
issues.
I also am very familiar with the Resolution Copper Project and the
Land Exchange authorized and mandated by the FY 2015 NDAA. Resolution
Copper joined AEMA during my tenure as executive director and
representatives of Resolution Copper served on the Association's Board
of Trustees. I toured the Resolution Copper Project site, including Oak
Flat in February 2017 and received a complete briefing on the project.
I authored March 2016 comments on behalf of AEMA opposing the
nomination of Oak Flat Historic District Traditional Cultural Property
to the National Register of Historic Places, and July 2016 comments on
the Resolution Copper Project and Land Exchange Environmental Impact
Statement. It is with this experience, background and knowledge that I
submit these comments for your consideration.
The ACHP actions to terminate the Section 106 consulting process
after years of Tribal and public participation, and refusal to sign the
Programmatic Agreement at the last minute, after all other state and
federal agencies had signed the agreement, is unprecedented and
inappropriate. It appears the ACHP's February 11, 2021 decision was
driven by political interests that favor the interests of one Tribe and
a small group of vocal project opponents over the fair administration
of the ACHP's duties under the NHPA. The fact that the February 11,
2021 termination letter was, within days, featured as the most
prominent exhibit in the San Carlos Apache Tribe's motion for a
preliminary injunction in its lawsuit against the Forest Service
seeking to block the project is troubling.
As both the FEIS and the Programmatic Agreement (an appendix to the
FEIS) document, it is overwhelmingly clear that the Forest Service has
conducted extensive consultation with affected tribes and other
interested parties. The final version of the Programmatic Agreement
includes significant, substantive measures to resolve adverse effects
and, where impacts cannot be mitigated, to respond directly to the
requests of local tribes and communities to offset the adverse effects.
Impacts to Oak Flat were recognized from the beginning and
acknowledged in the Programmatic Agreement in words that came directly
from the affected tribes. Given the geologic fact mineral deposits
cannot be moved and must be developed where they are found, impacts to
Oak Flat are unavoidable because a world class copper resource lies
under Oak Flat. The NEPA and NHPA processes were rigorous and took many
years. The Forest Service, working with many federal and state
cooperating and consulting agencies, and based on numerous Tribal and
public comments has approved a plan with numerous limitations,
stipulations and mitigation, that allows development of an important
world class copper resource while limiting impacts to surface resources
where possible and offsetting those impacts where they are unavoidable.
The ACHP's recognition that the project would be a significant impact
to Oak Flat is not an appropriate justification for terminating
consultation or rejecting the Programmatic Agreement that was
negotiated in good faith among the parties and signed by all other
signatories.
Importantly, the Programmatic Agreement adopts specific mitigation
programs that were requested by Consulting Tribes, local communities,
the State of Arizona and developed in consultation among all of the
consulting parties. The ACHP has acknowledged that the consultation
process complies with Section 106 requirements. Thus, all statutory and
regulatory requirements have been addressed and satisfied. There is no
legal or other appropriate reason for not signing the Programmatic
Agreement and the ACHP should have signed it and thanked the Forest
Service and the other consulting parties for their hard work.
I respectfully request that the ACHP sign the programmatic
agreement so that the endowments and programs to consulting tribes and
local communities contained in the Programmatic Agreement are not lost.
Without the implementation of the Programmatic Agreement, Consulting
Tribes and the public will essentially receive nothing in return for
the Congressional authorized and mandated land exchange. If the ACHP
does not reverse course and sign the Programmatic Agreement, then I
recommend strongly that the Forest Service approve the project and
include the measures described and agreed to in the Programmatic
Agreement to mitigate and resolve adverse effects to historic
properties when it issues a record of decision.
Thank you for considering these comments.
Sincerely,
Laura E. Skaer,
Natural Resources Policy Advisor
Attorney at Law--Columbia, MO
______
Statement for the Record
Mila Besich
Mayor of Superior, Arizona
and
Executive Director, Copper Corridor Economic Development Coalition
My Turn: Resolution Copper Needs to Move Forward--With Permits in Place
Superior is my hometown where my family has lived for generations.
As its name implies, it is one of the most superior and scenic places
in Arizona. From the surrounding mountains and canyons to trails and
rock climbing to waterfalls, the magic of Superior's way of life can be
felt. Superior is also a historic mining town where many critical
mining engineering feats took place and where some of the world's
largest copper deposits have been found. Revolutionary designs in
mining like the first air conditioned mine and the longest and deepest
single-lift mining shaft were constructed here. We are proud of our
mining heritage, and as a community, we have a healthy respect and
clear understanding for the challenges that the boom and bust cycles of
mining have created for our community and our region.
Arizona's Copper Corridor is the equivalent of Yukon gold. Some of
the richest and most accessible copper ore deposits are found here in
eastern Pinal and southern Gila counties. Two of the three copper
smelters left in the United States operate in our region. Mining
belongs in this part of Arizona and it can be done responsibly while
protecting the environment and the beautiful landscape that we love and
cherish.
When the Resolution Copper project was introduced to Superior, it
brought a glimmer of hope and opportunity to our small, close-knit
community. Its predecessor, the Magma Mine, was shuttered in 1996 and
opportunities were scarce for Superior to provide employment and
business prospects for our diminishing population.
If the Resolution Copper projects comes to fruition, it will employ
some of the most technologically advanced and modern mining techniques
ever. It will have passed the most thorough and exhaustive
environmental permitting ever and it will boast new jobs focused on
robotics and other innovations that will make this the most
sophisticated, advanced and environmentally sensitive mine in the
United States.
This opportunity was critically important to the Town but not at
the cost of the long-term sustainability of our community and
protection of our precious environmental resources that makes us
Superior. Our community goal has always been to be a town with a mine--
not a mining town. This project helps us achieve this.
From the day this project was proposed, Superior chose to actively
participate in the Resolution Copper Environmental Impact Statement. We
chose to work with our Congressional delegation to bring to light areas
that needed mitigation. We proactively engaged with officials at the
Tonto National Forest and Environmental Protection Agency. We chose to
stay at the table and negotiate with Resolution Copper to ensure that
we had mitigation agreements in place to protect Superior's environment
and socio-economic impact now and for generations to come.
Most importantly, the leadership of Superior understands that this
ore body is not going to magically disappear; it will be mined and it
should only be mined with the full permitting requirements of the
environmental impact statements. Our active participation in the
process affords me the confidence to unequivocally state that this mine
must move forward for the betterment of Superior and our surrounding
communities and to protect the precious environment that we revere.
Recent political maneuvers, fostered by opposition groups to reject
the EIS, have created yet another roadblock to the progress of this
mine and, ultimately, the future of Superior. If these opposition
groups are successful, they will have opened up ``Pandoras box'', as
the lands at Oak Flats will still be officially exchanged in March and
the ore body will still be there.
With Resolution Copper in full ownership of the lands currently
held by the federal government, they could still mine the property.
However, their ownership of these lands will mean that they won't be
required to do the extensive environmental permitting they were
required to do under the parameters of the Southeast Arizona Land
Exchange and Conservation Act.
For years, the Town of Superior, and the people who reside here,
have actively participated in this transparent process as supporters
and, in some cases, in opposition to this project. Oak Flats is
important to our community: it has been a place of recreation, family
reunions, union picnics and cultural celebrations, but it is also the
place that many have gone to work. They have toiled and labored to
provide for their families. The work is sacred to them and their
families. It is part of our community fabric.
Mining will always be part of our economic DNA and will forever be
critical to Arizona's economy and to our national defense. Copper
powers everything from our televisions to our smart phones to our
laptops and smart cars. Demand for copper will only increase as we
become more technologically advanced.
The mine has been approved by the federal government. It is time
for us to move forward with the permitting process. Further delay will
be counterproductive to the goals of those who oppose this mine. When
the land exchange takes effect next month, it could potentially create
more opportunity for this mine to open without the proper permitting,
environmental and socio-economic mitigations that are needed to ensure
that the project is a net positive for Superior and the State of
Arizona. This would be a travesty.
A wise person once told me: if you are not at the table, then they
will eat your lunch. It is time for the opposition groups to come to
the table and help develop solutions. This ore body will be mined, and
it must be mined with the proper protections in place. We have been
fighting for these protections since this legislation became law in
2014. Let's not let them eat our lunch.
______
Statement for the Record
Oddonetto Construction
Oddonetto Construction supports Resolution Copper Mine
Oddonetto Construction is a local contractor working at the
Resolution Copper mine. We are thrilled to be a partner with a company
so heavily invested in the local communities within and surrounding the
Copper Triangle. Resolution Copper's commitment to employing from
within the local communities has allowed us to supply over two hundred
employees over the course of the past five years. Approximately 90% of
the employees have come from within the Copper Triangle communities
including many members of the San Carlos Apache Tribe.
We are excited to see Resolution Copper's continued investments in
the community we call home. Resolution Copper has, by far, gone above
and beyond with their commitment to their employees, communities,
safety, and environmental and historical and cultural preservation. We
continue to strongly support the Resolution Copper project and the land
exchange, including the measures as outlined in the Resolution Copper
Programmatic Agreement which balance historical and cultural
preservation with jobs and economic growth. Our community believes in
Resolution Copper, a sustainable copper mine for our future
generations.
We applaud the work of the United States Forest Service for
publication of the Final EIS for the Resolution Copper project after
years of stakeholder feedback. It is time for this much needed project
to move forward. The foundation of the NEPA and NHPA process is that
all voices and opinions should be considered equally. One paid voice
does not speak for an entire community.
______
February 22, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Dear Mr. Nelson:
I have been a part of the meetings with Resolution Copper in this
journey since 2003 or 2004. This is mining and ranching country and is
our roots. I am a resident of Superior, a member of the Superior
Chamber of Commerce, a member of Rebuild Superior Inc, and a member of
the Community Working Group and have been working to look at practices
and mitigation efforts and comment on the EIS regarding Resolution
Copper to have a transparent and balanced reopening of the mine that
will be instrumental to help our region's economy. The USFS has
conducted an open, transparent, and complete process giving all of us a
voice in the process. I support Resolution Copper and the mitigations
put in place so that EIS can go through.
The development of the Resolution Copper Programmatic Agreement has
not been rushed and ACHP has been involved in its development for
several years. The USFS coordinated the NEPA process with Section 106
of the National Historic process and provided multiple opportunities
for all public and group comment for all phases and over many years. I
participated in the process in good faith however one group though
invited chose not to participate, (However there were members of the
tribe that did participate on their own), in this process proscribed by
the NEPA process and yet the ACHP only is listening to that group now
not all of us. I request and support the mitigation measures in the PA
and the PA and Final EIS should be supported.
It contains provisions that are vital to the historic preservation,
cultural integrity, and economic prosperity for everyone in this
region:
Establishment of a Community Development Fund specifically
at addressing effects from the project on historic
properties and other community infrastructures for everyone
in the Copper Triangle.
Development of a new Castleberry Campground as mitigation
for the Oak Flats, to include cultural resources
interpretive information. Development of the Trail system
worked on by the RUG group and FS.
The agreement has been widely vetted with all the affected
residents and interests in this area.
Also has provisions for the Tribe: The Emory Oak
Collaborative Tribal Restoration Initiative, Foundation for
Tribal Program Funding, Tribal Cultural Fund, Tribal
Education Fund, Archeological Database Funds.
The ACHP actions to terminate the PA at the last minute, after
years of participation and after all Federal and State agencies have
signed is unprecedented. The ACHP actions tell me that my and other's
years of involvement in the work, participation and requested
mitigation measures are worthless. The ACHP ignored all the work,
ignored all our input and I/we do not understand why the ACHP walked
away from this effort that we all spent years developing. What do these
actions tell me and the country about how this process works. Did we
waste our time and should have taken a political approach instead? We
used the process as we believe we should have.
This is so important to this region, the potential for jobs, the
mitigations worked out for all towns and groups are needed and will be
beneficial to the whole. Hopefully you will reconsider and think about
all of us who followed the prescribed process and contributed to this
work and find a way to move this forward and make it happen for all.
Sincerely,
Pamela Dalton-Rabago,
Resident
______
PINAL COUNTY
Board of Supervisors
Florence, Arizona
March 24, 2021
President Joe Biden
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Dear Mr. President:
The Pinal County Board of Supervisors, wish to express our ongoing
support for the Resolution Copper project and land exchange, which will
provide critical economic growth and opportunity, and support the
culture and heritage of future generations. We have been active
participants in the decade-long consultation process that produced
meaningful changes in the scope of the project as requested by
communities and stakeholders and resulted in our support for the
publication of the Final Environmental Impact Statement (FEIS) for the
Resolution Copper Mine in the Federal Register on January 15, 2021. We
are writing to you now to express our concern about the last-minute
decision to rescind the FEIS for the Resolution Copper Mine.
Mining is an important part of the heritage of Pinal County.
Resolution Copper has demonstrated that it will support preservation of
this heritage and rural economic development with measures such as the
Copper Triangle Cultural Heritage Preservation Fund and the Copper
Triangle Community Development Fund. Both measures will help provide
the tools necessary for our rural communities to prosper beyond mining
and well into the future. The Castleberry Campground and many other
recreational trails and new access to climbing will support a continued
tradition of world class outdoor recreation while also expanding
economic diversification opportunities for local communities.
Resolution Copper has also agreed to restore the landscape by spending
$75 million on reclaiming the historic footprint of the Magma Copper
Mine, all while using and building the capacity of our local community
contractors.
We commend the United States Forest Service, Tonto National Forest
for their thorough, thoughtful, and transparent process in which they
listened to all stakeholders and made many changes to the project scope
in response to those voices. Local communities, Native American Tribes,
and other stakeholders actively participated with local, federal, and
state cooperating agencies to provide meaningful input throughout the
process. Comment time frames have been generous and extended several
times at the request of interested parties. The FEIS is nearly 3000
pages and Appendix S of the Final EIS contains hundreds of
consultations spanning more than a decade. We urge you to review the
FEIS and all the components of the project record and proceed with the
FEIS and land exchange so that transparency, fairness, and public
confidence in the regulatory process can be maintained, and that the
many benefits of the project for our residents and the County can be
realized.
Sincerely,
PINAL COUNTY BOARD OF SUPERVISORS
Stephen Q. Miller, Jeffrey McClure,
Chairman, District 3 Supervisor, District 4
Mike Goodman, Jeff Serdy,
Vice-Chairman, District 2 Supervisor, District 5
Kevin Cavanaugh,
Supervisor, District 1
______
PINAL COUNTY
Board of Supervisors
Florence, Arizona
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
As Vice Chairman of the Pinal County Board of Supervisors, I write
to you in support of the Resolution Copper Project, associated
Environmental Impact Statement, and the Programmatic Agreement which
have been the subject of rigorous review for more than seven years.
Making it this far has been no small feat, as it has required the
cooperation of numerous governmental bodies, Native American Tribes and
communities, local Copper Triangle communities and other stakeholders
and interested parties. Several years' worth of consultation and
feedback, representing nearly a dozen versions of the document has
resulted in the Programmatic Agreement--a comprehensive document
spelling out measures addressing cultural heritage measures and
mitigations such that the Resolution Copper project would benefit all
parties. The ultimate fruition of this project is crucial for the
success of Pinal County and its residents.
I am fortunate to represent the fastest growing part of Pinal
County, and have spent the greater part of the last decade intimately
involved in supporting its economic development. I am actively involved
with my constituents who come from all backgrounds, and with confidence
I can state they are in support of this project. The USFS has conducted
this process with full transparency, allowing all interested parties
the opportunity to comment on its outcome. It is unfortunate that the
ACHP would now take a position against signing the Programmatic
Agreement after years of development and careful planning. I urge you
to reconsider the ACHP's position and join the numerous organizations
and local communities that favor it. I look forward to the project
becoming operational as planned, and the great amount of jobs it will
bring for our residents who truly need them.
Thank you,
Mike Goodman,
Vice-Chairman, Pinal County Supervisor, District 2
______
PINAL COUNTY
Board of Supervisors
Florence, Arizona
February 19, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
As Supervisor of District 5 in Pinal County, Arizona, I write to
you with my constituents in mind. Before I became Supervisor, I served
as Mayor of the city of Apache Junction for two terms. My years of
public service have allowed me to take action in the face of
opportunity, particularly when that opportunity would improve the lives
of those residing in Pinal County. The Resolution Copper mine is one
such opportunity. This copper mine is crucial for the continued success
of the County and has been an important factor in planning for the
future of the County for over a decade. I urge you to reconsider ACHP's
position on this project, which will benefit all involved parties so
greatly, as soon as possible.
The Resolution Copper mine is supported by a bi-partisan group of
constituents around the County and presents a unique opportunity to
benefit all groups and individuals involved. The residents who would
benefit from the copper mine are many, as its development would create
new jobs while increasing economic activity in rural Pinal County. The
COVID-19 pandemic has only compounded the difficulties already felt by
families that feel like they've been left behind in our changing
economy. The copper mine is an opportunity for continued economic
growth in an industry that is familiar to the state of Arizona. Copper
mining is engrained in our state's heritage, so much so that it's
depicted on the state seal. It is undoubtedly woven in the fabric of
Arizona's history, and the Programmatic Agreement was designed to
ensure that tradition would continue with a number of cultural
preservation measures in place.
This project is nearly a decade in the making and has already been
through a significant amount of scrutiny. The USFS has processed the
Programmatic Agreement through rigorous review while accepting feedback
from all those involved and interested in its outcome. It has been
developed to include measures supporting the interests of Native
American Tribes, the environment, Pinal County and the state of
Arizona, and should not now fail at the finish line. As I mentioned
previously the copper mine has bi-partisan support, and I firmly
believe its development is in the best interest of all those involved.
I strongly urge you to reconsider the ACHP's position and support the
project's progression, and the future of Pinal County.
Sincerely,
Jeff Serdy,
Pinal County Supervisor, District 5
______
Statement for the Record
John Keedy
Chair, Queen Creek Coalition
Peoria, Arizona
H.R. 1884, ``Save Oak Flat Act''
April 13, 2021
Chairwoman Leger Fernandez, Ranking Member Don Young, full
committee Chairman Grijalva and all of the distinguished committee
members with a thank you for the opportunity to submit testimony on
this matter.
Queen Creek Coalition is a 501(c)(3) tax exempt entity that has
been involved in saving rock climbing and related recreational
resources that could be impacted by the Land Exchange and Mine proposed
by Resolution Copper near Superior, Arizona.
It holds the Recreational Use License that allows recreation on
Resolution's private property and works with Resolution to manage that
recreation. As part of negotiations that were begun around 2006 and
continued forward through the Environmental Impact Study conducted by
the United States Forest Service, QCC has been a central stakeholder
seeking to maximize rock climbing and other recreation in the area. In
the early years of 2006 to 2008 representatives of Queen Creek
Coalition marched alongside members of the Native American community
and sought an equitable solution for all.
However, while many stakeholders who remained in opposition based
on inflexible positions, Queen Creek Coalition took the path of many
other conservation and recreation groups and sought a ``win-win''
through negotiations. QCC found Resolution Copper very willing to work
with stakeholders who were not inflexible. As a result, QCC reached an
agreement in 2012 to maintain the recreation on Resolution's private
property as well as to work with Resolution and surrounding land owners
such as the USFS to achieve a recreational greenbelt around the Mine.
The Land Exchange that was approved in 2015 was in fact a fair
representation of the outcome of many years of negotiation among the
parties who were willing to negotiate. It was a good outcome and should
not be over-turned after many years of negotiation and good faith
efforts by those willing to work toward a mutually acceptable goal.
Therefore, Queen Creek Coalition opposes House Bill 1884 and
encourages Congress to reject it.
______
Final Environmental Impact Statement for Resolution Copper Project and
Land Exchange, Volume 6
APPENDIX S--CONSULTATION HISTORY
The link for the entire Final Environmental Impact Statement for
Resolution Copper Project and Land Exchange Volume 6 is as follows:
https://www.resolutionmineeis.us/sites/default/files/feis/resolution-
final-eis-vol-6.pdf
APPENDIX S. CONSULTATION HISTORY begins on page 409 of the
document.
______
RESOLUTION COPPER
Final EIS Programmatic Agreement Summary:
Process & Commitments
Resolution Copper is making one of the most significant private
investments in Arizona history, developing one of the world's largest
untapped copper deposits in Arizona's Copper Triangle. Once in
operation, the mine could supply up to one-quarter of the nation's
copper demand, support roughly 3,700 jobs at full production and
produce up to $61 billion in economic value for Arizona over the 60-
year life of the project.
In brief:
The publication of the Final Environmental Impact
Statement (EIS) is a critical milestone for Resolution
Copper and our community and tribal partners.
The mitigations and Programmatic Agreement reflect
significant commitments shaped through years of public
consultation. These have had meaningful impacts on the
project design and construction and will bring long-term
benefits for our partners.
The Final EIS will detail the commitments as part of the
public record, and the funding will be agreed to with
specific partners as the project proceeds over time.
Ongoing Community Engagement
Public engagement has shaped this project every step of the way.
The Federal review process, led by the United States Forest Service
(USFS), spent nearly a decade gathering insights from local leaders,
Native American tribes, NGOs, community organizations and businesses to
inform the publication of the Final EIS. USFS communicates with
officials and stakeholders at the federal, state and local levels to
ensure they understand the project. Simultaneously, Resolution Copper
has participated in hundreds of other conversations and engagements,
including numerous community working groups, to collect the input that
continues to shape the project. That robust community dialogue will
continue as we begin the process of allocating funding for mitigations
included in the Final EIS.
Meaningful Mitigation
Resolution Copper expects to invest around $100M in a range of
important programs. While funding will proceed on a separate process
with our partners, Resolution Copper has agreed to invest in programs
that fall into the categories outlined below. We are in a long-term
partnership with our key stakeholders and communities. We will continue
to collaborate on program development and funding through the project's
different phases and life.
Economic Development
Cover net direct costs related to the use of Town of
Superior emergency and municipal services.
Fund land development consultation for Superior planning
on additional residential and economic growth.
Create and fund an endowment to develop sustainable
regional economic development in the Copper Triangle
Communities (Superior, Hayden, Winkelman and Kearny).
Fund development of a new Entrepreneurship and Innovation
Center in the Town of Superior.
Fund the creation of Rebuild Superior to address blight in
the community and preserve community character.
Environmental Mitigation
Tailings facility relocated 30 miles away to Skunk Camp at
the request of the Town of Superior.
Invest significant resources into the Queen Creek
Mitigation Site (1.8-mile reach) to restore natural
vegetation and promote natural streamflow.
Implement monitoring and mitigation measures for
groundwater-dependent ecosystems and wells using EPA-
approved methods.
Invest in measures to reduce sky brightness and potential
dark sky impacts.
Work with ADOT and the Town of Superior to develop a
traffic management plan for the construction period.
Recreation
Fund construction, initial operation, and maintenance of a
new Castleberry Campground to mitigate the loss of Oak Flat
Campground--a historic property and an important local
recreation facility.
Fund the Inconceivable Road Access Plan to improve and
guarantee safe access to popular recreational rock-climbing
areas.
Protection of the Queen Creek Climbing Area, including
funding an endowment to support the continued use of the
area for climbing and bouldering.
Fund the construction and maintenance of a new multi-use
trail network on the Tonto National Forest, in partnership
with the Town of Superior and recreational groups.
Fund improvements to US 60 Park in Superior.
Cultural Heritage Protection
Establish a Copper Triangle Cultural Preservation Fund to
address the project's impacts on historic properties and
other community infrastructure.
Add land for inclusion in the Apache Leap Special
Management Area (SMA) to preserve the natural character of
Apache Leap, allow for traditional uses of the area by
tribes, and protect and conserve cultural and
archaeological resources of the area.
Establish a Tribal Cultural Fund to address: the physical
and visual effects on the Chi'chil Bildagoteel Historic
District and other historic properties significant to
Tribes, Fund the Emory Oak Collaborative Tribal Restoration
Initiative, and Tribal Youth Program.
Education, Community & Youth Program Support
Fund the design, development and construction of a Multi-
Generation Center, including a new gym, library, senior
center and other venue spaces in the community.
Agree to fund a four-year $1.2 million program on STEM
with the Superior Unified School District.
Establish a robust training and apprenticeship program to
prepare more local workers for employment at Resolution
Copper.
Resolution Copper will bring long-term benefits that will play a vital
role in the economic recovery of the region, Arizona and the United
States.
______
Southern Arizona Business Coalition
Tucson, Arizona
Mr. Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Resolution Copper Mining Project and Land Exchange; Tonto National
Forest, Pinal County, Arizona ACHP Project Number: 012344;
Response to Termination of Consultation
Mr. Christopher Daniel:
On behalf of the over 5000 employees directly and indirectly
impacted by the mining industry here in Southern Arizona, the Southern
Arizona Business Coalition stands confidently in support of the
Resolution Copper Project and the NEPA process that has taken place.
This includes the consultation of the Advisory Council on Historic
Preservation (ACHP). Our involvement spans over five years with the
Resolution project.
Our organization was dismayed to hear that the ACHP had at the last
minute terminated Section 106 consultation on the Resolution Copper
Mining Project and Land Exchange and are now inviting public comment on
their decision. Further we believe political pressure had been applied
by certain federal legislators or their staff to motivate this
withdrawal. Their action alienates the Programmatic Agreement and the
time and energy invested by all signers to the agreement and the public
at large. This action seems to be totally contrary to ACHP mission
statement as an Independent Federal Agency established to provide non-
partisan factual information to the President and Congress.
As our comments are brief they are not without genuine concern for
a NHPA and NEPA processes that allows for honest and open opportunities
to find resolve to important concerns expressed during these reviews
and consultations. Unfortunately, the sudden withdrawal and current
state of pandemic left us unable to thoroughly consult with counsel and
more completely detail the legal consequences of the action taken by
ACHP.
In closing, we respectfully request that the ACHP sign the
programmatic agreement to ensure commitments made to the tribes and
local communities contained in the Programmatic Agreement. If however,
the ACHP does not revert back to its original position, stating the
Section 106 requirements were complied with, we respectfully request
the Forest Service move forward and approve the project. We would also
ask that commitments noted in the Programmatic Agreement be upheld by
the Forest Service.
Thank you for your attention to this most important process and our
comments.
Sincerely,
Bill Assenmacher, Rick Grinnell,
Co-Founder Co-Founder, Managing Partner
______
February 24, 2021
Reid Nelson, Director
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: Support for the Resolution Copper Programmatic Agreement
Dear Mr. Nelson:
Superior, Arizona and the nearby Copper Corridor are home to a
mining and ranching legacy you can't find anywhere else. There is
passion, respect, and appreciation for our history, culture, and
heritage that continues to thrive with the progression of the
Resolution Copper Project.
When Resolution Copper begins construction and production, it will
employ some of the most technologically advanced and modern mining
techniques in the world; with employment from the local area expected
to exceed 1,500 during full production. It will have passed the most
comprehensive permitting process any mining project has even seen, with
an ore body that will support the region for decades to come.
As a local resident of Superior, Arizona, twenty-year business
owner in Superior and longtime President of the Superior Chamber of
Commerce, I have spent the last decade dedicated to the historic
preservation of Superior and our mining heritage. I have been immersed
in the engagement, consultation, and participatory process with
Resolution Copper; and have been heavily involved in the creation and
development of the Programmatic Agreement, as it pertains to cultural
heritage and the historic preservation of the Copper Corridor.
In my current capacity as a local resident, local business owner
and community leader, I write to you in support of the Resolution
Copper Project, the Final Environmental Impact Statement, and most
importantly, the Programmatic Agreement, all of which have been the
subject of a rigorous review for more than seven years. I was
incredibly disappointed to hear of the ACHP's actions to terminate the
Programmatic Agreement, with this unprecedented decision, after years
of participation. It is disheartening to know that the ACHP pulled
their support, after all other federal and state agencies have signed.
I understand that the Programmatic Agreement incorporates
significant cultural heritage preservation measures created through
nearly a decade worth of discussions with Native American Tribes and
all local communities in the Copper Corridor. The Programmatic
Agreement and the NEPA process show how historic preservation and
economic growth can be balanced.
I support the mitigation measures lined out in the Programmatic
Agreement, including:
--Construction of the Castleberry Campground;
--Creation of the cultural heritage fund to preserve historic and
cultural character in the towns in the Copper Corridor
This recent decision by the ACHP tells my Chamber members, my
community and I that our participation and voices do not matter. I urge
you to reconsider ACHP's position on the Programmatic Agreement as
quickly a possible, so all communities and stakeholders can benefit
from the mitigations agreed upon for this project.
I am confident that Resolution Copper will continue to actively
engage and continue to progress this project in a manner that is
socially, environmentally and culturally responsible.
Thank you,
Sue Anderson,
Superior Resident, local business owner &
Superior Chamber of Commerce President
______
TOWN OF SUPERIOR
Superior, Arizona
February 23, 2021
Mr. Christopher Daniel
Advisory Council on Historic Preservation
401 F Street NW, Suite 308
Washington, DC 20001
Re: ACHP Programmatic Agreement
Dear Mr. Daniel:
As you know, the Town of Superior has been working with Resolution
Copper Mining to address the multiple impacts of its proposed mining
operations on our community. These impacts include cultural heritage,
socioeconomics, water, and environmental justice, and were analyzed
through an extensive public engagement process and numerous technical
studies. The Town, as well as many other agencies, has engaged in
thousands of hours of meetings and negotiations in order to produce
agreements to mitigate these impacts. In short, the NEPA process has
done its job.
Now, as we are nearing the end of this difficult process, the White
House Advisory Council on Historic Preservation's decision not to take
action on the programmatic agreement has placed the Record of Decision
memorializing these mitigations in jeopardy. We feel this action is
misguided for the following reasons:
1. This will not block the transfer of the Land Exchange properties.
The legislation is tied to the Final Environmental Impact
Statement and will transfer with or without the ROD on
March 15th of 2021. The legislation does not require the
programmatic agreement to proceed with the exchange.
2. This will remove all of the environmental, socioeconomic, water
and cultural mitigations from the table, but will not stop
them from mining. As Oak Flat will now be private property,
the next permitting cycle will be much less expansive,
including only an EA for the proposed pipeline. An EIS or a
404 would no longer be required. All of the mitigations for
the larger permit could be removed from discussion. This
would be a disaster for the affected communities, the
environment, and even the tribes.
Mr. Daniel, we are very appreciative of your consideration of the
many impacts of the Resolution Copper Mine project. We look forward to
continuing this productive dialogue with you and your staff.
Please contact our Town Manager, Todd Pryor at 520-689-5752 or
[email protected], if you have questions or would like additional
information.
Thank you for your attention to these matters of critical
importance to the Town of Superior.
Sincerely,
Mila Besich,
Mayor
______
U.A. Local Union 469
Phoenix, Arizona
April 9, 2021
Hon. Representative Ruben Gallego
131 Longworth House Office Building
Washington, DC 20515
Dear Rep. Gallego:
I am writing to you on behalf of the UA Local 469 Plumbers &
Pipefitters Union, which proudly represents more than 3,500 Arizona
working families, many of whom call the 7th Congressional District
their home.
On April 13th, the House Natural Resources Committee Subcommittee
for Indigenous Peoples will hold a hearing on H.R. 1884, introduced by
Chairman Grijalva to reverse the Congressionally approved land exchange
between the U.S. and Resolution Copper. Since you are a member of the
committee, I want to explain why we believe this short-sighted
legislation would be a huge blow to Arizona's working families.
Copper is one of the most important metals needed to build our
clean energy future, and Arizona is fortunate to have a plentiful
supply. In order to make the Biden Administration's $2 trillion
infrastructure plan a reality, the country needs copper for
manufacturing of electric vehicles, charging stations, wind turbines,
solar panels, storage batteries, and even the transmission lines that
connect renewable energy sources to the grid. We also need the rare
earth critical minerals that are byproducts of copper.
Right now, there's a global copper crunch. In fact, The World Bank
estimates that global copper demand could grow 200% over the next 30
years. There are only two smelters in the U.S. capable of producing
copper today--one in Utah and one in Arizona. And China, in particular,
is gaining fast.
That's why the Resolution Copper mine near Superior, Arizona, is a
vital part of securing America's leadership in the global clean energy
economy. Once fully operational, it has the potential to supply up to
one-quarter of the nation's copper demand.
The mine will create thousands of good-paying jobs for Arizona
workers. Resolution Copper has worked closely with the Arizona Building
Trades to ensure union workers and apprentices will be a part of
building this important project on a Project Labor Agreement (PLA).
Resolution Copper will employ nearly 5,000 tradespersons during its 10-
year construction and ramp-up phases, many of whom have tribal
affiliations. Once completed, the mine could be in operation for sixty
years, paying an estimated $134 million in wages and benefits each year
to 1,500 full time employees. In addition, the mine will create 2,200
indirect jobs in the surrounding communities, benefiting the families
of many workers and tribes in the area and boosting the tax base to
support schools and other local infrastructure projects.
Resolution Copper represents precisely the type of long-term
investment in our economic future that Arizona so urgently needs. And
we are proud it was informed by consultation with hundreds of local
community stakeholders, like tribal leaders and the trade unions, in
the seven-year federal planning and permitting process surrounding this
project.
Chairman Grijalva's legislation threatens to stall this project
indefinitely and slow our ability to address America's copper crunch.
Passing this bill would deny much-needed job opportunities to our union
members and also mean a huge step backward in our country's efforts to
implement progressive energy policies and mitigate the impacts of
climate change.
America, and the world, needs copper for a sustainable future.
Arizona workers and their families need it for a prosperous future. We
can have both with projects like this one. I urge you to not support
this short-sighted legislation.
Please do not hesitate to reach out to me should you have any
further questions about our position on this matter.
Sincerely,
Aaron Butler,
Business Manager
______
United Steelworkers
Washington, DC
April 13, 2021
Chairperson Fernandez
Ranking Member Young
Subcommittee for Indigenous Peoples of the United States
House Committee on Natural Resources
Washington, DC 20515
Dear Chairperson Fernandez and Ranking Member Young:
I write to you on behalf of the members of the United Steelworkers
(USW) union regarding today's hearing on H.R. 1884, the Save Oak Flat
Act. We ask that this letter be put into the record for the hearing.
USW is the largest industrial union in North America and is the
largest mining union in the country. Steelworkers mine iron ore,
copper, potash, salt, sand, silver, palladium, and much more. Like many
stakeholders, we have a unique view of this mining project and want to
share it with the committee.
Our union opposes the legislation under consideration today, the
Save Oak Flat Act (H.R. 1884), introduced by Rep. Grijalva, to repeal
the Congressionally-approved land exchange legislation that would
enable the Resolution Copper mine to move forward. This land exchange
was under consideration by Congress for some time prior to being
finalized in the 2015 National Defense Authorization Act (NDAA). It
should remain in place to allow this important mining project to move
forward.
Overall, copper is an important material that will play a key role
in technologies that will reduce greenhouse gas emissions and improve
efficiency in ways that are necessary for a future that mitigates the
worst impacts of climate change. With the potential to supply up to
one-quarter of the nation's copper demand, Resolution Copper will play
a critical role in securing America's leadership in the global clean
energy economy while creating good-paying union jobs for generations to
come.
The majority shareholder in the Resolution Copper project is Rio
Tinto, which is a union-represented company. The company currently
operates one of the two remaining copper smelters in the United States.
Resolution Copper will supply that highly efficient smelter at
Kennecott in Utah, which is operated by USW members.
Our union has a long history with Rio Tinto that has had its ups
and downs, but we are pleased that through an ongoing dialogue, Rio
Tinto has agreed to neutrality on union organizing at the Resolution
Copper project. In other words, the company will not oppose or
interfere with workers at the facility joining together to form a union
and collectively bargain over working conditions at the site. Should
those workers opt to join USW, our union is committed to ensuring that
the more than 1500 jobs are safe, high quality jobs with family
supporting wages and benefits that benefit the local community, like
the jobs that our members have at Kennecott in Utah, and at other
mining operations across the country.
Bearing in mind our nation's urgent need for copper, our union
recognizes the importance of a circular economy and responsible mining
in creating a low-carbon future. Responsible mining is the only viable
future for the industry, and our union is actively working with
environmental and industry partners to identify the qualities of a
responsible mining project and a responsible mining company to ensure
social responsibility, environmental responsibility, business
integrity, and planning for positive legacies.
As we look at this project at Resolution Copper, we know that it
will have national significance given its strategic ability to supply
the United States with a critical mineral. Our union is eager to ensure
that it is ultimately a responsible mining operation.
We have reviewed the draft Environmental Impact Statement from the
U.S. Forest Service (USFS) and are closely following the Biden
Administration's review of the Final Environmental Impact Statement
(FEIS). Our union recognizes the importance of a thorough environmental
impact analysis for this and any other proposed project. We were glad
that USFS highlighted many important issues and described extensive
engagement with stakeholders, including the tribes, across Arizona that
resulted in design changes for the project. We encourage Rio Tinto to
continue this ongoing stakeholder engagement throughout the development
of the mine.
In our country, we seem to be deadlocked and conflicted around
mining as an industry. These projects are often cast in binary terms--
either you mine OR you protect the environment. But in order to protect
the environment from climate change, we must mine and we must do so in
a way that respects the environment, workers, communities, indigenous
peoples, and other stakeholders.
We appreciate the opportunity to share our perspective with you.
Sincerely,
Roy Houseman Jr.,
Legislative Director
______
White Mountain Apache Tribe
Whiteriver, Arizona
November 6, 2019
United States Forest Service
Tonto National Forest
PO Box 34468
Phoenix, AZ 85067-4468
Re: USFS Consultation Comments on Southeast Arizona Land Exchange and
Resolution Copper Project
Ms. Nez:
On behalf of White Mountain Apache Tribe and colleagues of the
Tribal Council, I would like to thank the United States Forest Service
for the consultation process on the Southeast Arizona Land Exchange and
Resolution Copper Project, and ensuring inclusion of the tribal voice.
The White Mountain Apache Tribe is independent and sovereign,
therefore not one (1) Tribe speaks on behalf of all Tribes, especially
on behalf of Tribes like White Mountain Apache Tribe who has been
partnering and participating in the consultation process.
If you have any questions, please contact my office directly at
(928) 369-6479.
Sincerely,
Jerome Kasey,
Tribal Vice Chairman
______
Statement for the Record
Women's Mining Coalition
April 13, 2021
The Women's Mining Coalition (WMC) wants to thank Chairwoman Leger
Fernandez, Ranking Member Don Young, full committee Chairman Grijalva
and all of the distinguished committee members for the opportunity to
submit testimony on this matter.
Since 1993, WMC has advocated for today's modern domestic mining
industry, which is essential to our Nation. Our mission is even more
important as the nation looks to rebuild our economy and lead the world
toward a clean energy future. WMC's members represent many diverse
sectors including metals, coal, iron ore, construction materials and
industrial minerals companies; manufacturers and suppliers; trade
associations; and consultants.
We believe H.R. 1884, otherwise known as the ``Save Oak Flat Act,''
would cause irreparable harm to the economy of Arizona's Copper
Corridor, erode trust in the federal permitting process and set a
dangerous precedent that puts other critical mining projects in
jeopardy. For these reasons, we urge you to reject this legislation.
The broader context of this debate is important.
The American public is finally starting to understand a truth long
known to those in our industry: Our Nation cannot achieve its clean
energy goals without copper. It is a key component in manufacturing
wind turbines, solar panels, electric vehicles, storage batteries, and
even the transmission lines that connect clean energy sources to the
grid. Many of the critical minerals that are byproducts of copper are
similarly important to manufacturing the advanced technologies that
will power our economy for generations to come. Recognizing the
importance of copper to a clean energy future as well as its
antimicrobial properties, WMC researched and produced the attached
Copper Fact Sheet which we submit for the record along with this
testimony.
Globally, we are already experiencing a copper crunch. And it is
expected to get worse as demand for clean energy grows. By 2050, the
World Bank expects global copper demand to rise by 200%. In the U.S.,
there are only two active smelters capable of producing copper today--
one in Utah and one in Arizona, plus one idled smelter in Arizona. And
China and other countries are working overtime to bolster their supply,
while this Congress considers policies like H.R. 1884 that would
strangle our Nation's ability to compete.
Once fully operational, the Resolution Copper mine near Superior,
Arizona has the potential to supply up to one-quarter of the nation's
copper demand. That's absolutely vital to our ability to compete in the
global clean energy economy.
Of course, the project will also create thousands of good-paying
jobs for residents of the Copper Triangle--jobs that are desperately
needed to spur economic recovery and growth in the region. Resolution
Copper will employ 1,500 full-time workers over the 60-year life of the
mine, paying an estimated $134 million in wages and benefits each year.
The mine also will spur the creation of 2,200 additional indirect jobs.
And it has won strong support from local labor leaders, who see this as
an enormous opportunity for union members and their families.
All told, Resolution Copper is expected to contribute up to $61
billion in economic value for Arizona over the project's lifetime. It
will boost state and local tax revenues by between $88 million and $113
million each year of operations, while the federal government could see
an extra $200 million in tax revenues per year.
These are real benefits to a community that desperately needs
economic investment and opportunity.
That is part of the reason why so many local leaders have been
strong advocates for the project. Another is because these same
leaders--along with tribal leaders and many other community
stakeholders--have been a critical part of the extensive, years-long
federal review and permitting process.
It should be noted that the Resolution Copper project is the only
Congressionally-mandated land exchange requiring a full Environmental
Impact Statement (EIS) prior to exchange of title. For nearly a decade,
the Tonto National Forest, several local communities in the Copper
Triangle, stakeholders from three rural counties, nearly a dozen Native
American Tribes, and multiple federal and state agencies have all
worked together with Resolution Copper during the comprehensive
National Environmental Policy Act (NEPA) review process.
As a result of these efforts, a number of significant changes were
made to the project design and Resolution Copper committed to important
mitigations to address environmental, socioeconomic and cultural
concerns associated with the land exchange. These would enable the Town
of Superior to grow and develop with additional land. They would expand
recreation and help diversify and grow the local Copper Triangle
economy. And notably, they would also ensure ongoing support for the
first-of-its-kind tribal monitor program, which was created with
consulting Native American Tribes, employing dozens of tribal members
to ensure a transparent assessment and proper cataloging of sacred and
culturally significant sites and artifacts on the property surrounding
the mine.
To many in the mining community, the Resolution Copper project
represents the model for what a sustainable, modern American mine can
be. The permitting process, while long and arduous, was thorough and
completely transparent to all stakeholders who willingly engaged in
good faith. It was a process borne out of compromise to garner
bipartisan support. And we know many of us believe that is something we
could all use more of these days, especially in Congress.
To throw all of this hard work and progress away right now would
cause irreparable harm, not only to the local community at the center
of this project but to the future of mining across our great nation.
We note with great concern the addition of Section 4(b) which would
go beyond the repeal of the congressionally mandated land exchange and
withdraw from mineral entry the entire land exchange area consisting of
2,422 acres. This would more than triple the amount of land withdrawn
from exploration and development, and expose the federal government to
substantial takings liability given Resolution's ownership of valid
existing rights in one of the largest undeveloped copper deposits in
the world. The only purpose of this section is to permanently put these
lands off limits to mining.
As stated in our Copper Fact Sheet, proposals to put lands off
limits to mining or curtail mining on public lands are ill-considered
policies that will increase our reliance on foreign minerals and
disrupt domestic mineral supply chains. The United States can become a
minerals supply chain powerhouse, but not if Congress withdraws lands
from mineral entry and enacts policies putting lands off limits to
mining. The withdrawal language in this legislation sets a horrible
precedent and sends a strong antimining message from the federal
government that will chill future investment in finding and developing
domestic mineral resources. This language further exasperates our
Nation's current dependency on foreign sources of critical minerals. In
order for the United States to achieve its clean energy and new
technology goals, public lands with mineral potential must remain open
to mineral exploration and development.
The inescapable fact is America's clean energy and economic future
are dependent on mining. We have to find a way to secure a domestic
supply of the natural resources we have in abundant supply as safely
and sustainably as possible. And in order to do that, we must find ways
to balance economic development opportunities with environmental and
tribal concerns.
As the National Research Council of the National Academy of
Sciences recognized in a 1999 report, ``Only a very small portion of
the Earth's continental crust (less than 0.01%) contains economically
viable mineral deposits. Thus, mines can only be located in those few
places where economically viable mineral deposits were formed and
discovered.'' The Arizona Copper Triangle is one of those rare places.
If we cannot mine in the historic Copper Triangle area of our country,
then where can we?
Passing this legislation would effectively shut the door on a
project that would benefit Arizona and then entire nation and send a
signal to other companies that America is closed for business when it
comes to mining, no matter how responsible the approach.
That would be a huge mistake.
We urge you to consider the full picture and broader impact as you
make your decision on this matter. Accordingly, we strongly urge you to
oppose H.R. 1884 and vote no.
Thank you for this opportunity to provide this testimony.
Respectfully submitted,
Sara Thorne, Emily Arthun,
2021 WMC President WMC Coordinator
______
YAVAPAI-APACHE NATION
Camp Verde, AZ
November 7, 2019
Nanebah Nez Lyndon
Tribal Relations Program Manager
Tonto National Forest, Supervisor's Office
2324 E McDowell Rd.
Phoenix, AZ 85006
Re: USFS Consultation Comments on Southeast Arizona Land Exchange and
Resolution Copper Project
Dear Ms. Nez Lyndon:
On behalf of Yavapai-Apache Nation, I would like to thank the
United States Forest Service for the consultation process on the
Southeast Arizona Land Exchange and Resolution Copper Project, and
ensuring inclusion of the tribal voice.
The Yavapai-Apache Nation submitted a pre-mitigation request letter
in September 2019, to mitigate and off-set the impacts to the
environment and cultural heritage of the Project.
It is important to note that each Tribe participating in
consultation, represents itself, as we are each self-governing and
sovereign governments. One Tribe does not speak to determine the
position of all Tribes.
As the comment period concludes, it is important to note that the
Nation is concerned about the location of the tailings. We know that
mining tailings have lasting impacts on communities and environments.
We do request that Tribes have the opportunity to continue to
participate in the process of tailings location.
Sincerely,
Jon Huey,
Chairman
______
YAVAPAI-APACHE NATION
Camp Verde, AZ
September 17, 2020
Nonabah Nez
Tonto National Forest
United States Forest Service
Re: Consultation and Mitigation Process of the Southeast Arizona Land
Exchange and Resolution Copper Project
Dear Ms. Nez:
On behalf of the Yavapai-Apache Nation, we want to thank you for
your effort in the official tribal consultation process with the U.S.
Forest Service regarding the Southeast Arizona Land Exchange and the
Resolution Copper Project.
The Yavapai-Apache Nation, as many others Tribes, signed the
Problematic Agreement and have been participating in the official
consultation process with the USFS. This process is the official
government-to- government consultation process for Tribes.
Due to the COVID-19 public health pandemic, we want to officially
request that the U.S. Forest Service not delay the consultation process
or the mitigation process of the Southeast Arizona Land Exchange and
Resolution Copper Project.
As federally recognized Tribes, we each have the same opportunity
to participate in the government-to- government consultation process,
and it is not fair to delay the process at the request of any single
Tribe.
We appreciate your consideration to this request. If you have any
questions, please contact the Executive Office at (928) 567-1021.
Sincerely,
Jon Huey,
Chairman
______
YAVAPAI-APACHE NATION
Camp Verde, AZ
December 13, 2019
Neil Bosworth, Supervisor
Tonto National Forest Service
2324 E. McDowell Road
Phoenix, Arizona 86006
Re: Yavapai-Apache Nation Comments on the Resolution Copper Mine EIS
Dear Supervisor Bosworth:
On behalf of the Yavapai-Apache Nation, we share our concerns and
recommendations regarding the Resolution Copper Mine.
Consultation:
The consultation with the Tonto National Forest Service and the
Yavapai-Apache Nation has been fair and open. Your most recent effort
was an inclusive event attended by concerned Tribes in late October
2019. The meeting was beneficial to discuss important issues and
respond to them. The meeting was conducted with several Tribes who
shared their perspectives; however the Nation prefers a government to
government consultation as a face to face conversation between the
Nation and the Tonto National Forest Service. We look forward to
scheduling a consultation in the near future.
THE TRIBAL MONITORING PROGRAM
We support this effort as a step forward in the evolution of
Cultural Resource Management (CRM). We have some concerns about how
information gathered is being incorporated into the data set. We
believe the monitoring program should be more fully integrated into the
long-term CRM plan. This is a positive program and with further
consultation with the Nation the concerns will sort out over time.
LOCATION OF THE MINE SPOILS/TAILINGS
Vincent Randall, the Nation's Apache Culture Director has been
involved with the process of designating a tailing site since its
inception, including visiting the proposed sites. The challenge has
been to identify a location with minimal environmental and cultural
heritage impact. Our preferred alternative is the Skunk Camp near
Hayden.
CONTINUITY
Enclosed is the Nation's letter dated October 6, 2017 for your
reference regarding Apache Leap and the Resolution Copper Mine. We are
fully aware of the significant ongoing cultural and environmental
impacts it will generate. It is our intention, working in conjunction
with the Tonto National Forest Service, to mitigate the impacts to Shii
Ke Yaa (the Apache Homeland) to the extent we can.
Thank you for your attention to this matter. Additionally, the
Nation appreciates the work Nanebah Nez Lyndon has done to make the
consultation process professional and comprehensive. The Nation
submitted an official letter in October 2019 reflecting our
participation in the process, as well as a letter requesting mitigation
measures that we believe off-set the cultural and environmental impact
of the project. It is our hope the process continues without
interruption and in respect to those Tribes who have actively
participated in the process.
Cordially,
Jon Huey,
Chairman
______
Ms. Leger Fernandez. The Chair will now recognize
Representative Soto for 5 minutes.
Mr. Soto. Thank you, Madam Chair.
I just wanted to express my appreciation to both you and to
the Committee on working on the Oak Flat issue. It was
something I was proud to co-sponsor. Just this past week, I
read an amazing article in The Washington Post talking about
the rights of passage for young women coming of age through the
Oak Flat ceremonies. There is clearly a long ceremonial history
for this sacred land, seeing whether it was in Bears Ears with
destruction that comes about when we don't protect these sacred
lands to now with Oak Flat. We need to continue to play an
active role.
So, I wanted to make sure to just express my support here
today, and if there are any other questions that you, Madam
Chair, wanted to ask, I would defer some time to you to give
you more time to be able to do that since I just got into the
meeting about 5 minutes ago.
Ms. Leger Fernandez. Thank you very much, Representative
Soto. I think I am fine. I do appreciate the offer.
Mr. Soto. In that case, I support your efforts, and I yield
back.
Ms. Leger Fernandez. Thank you.
So, this concludes the time that we have set aside for the
Members to ask their questions. I truly want to thank the
Members. There was great conversation today about the competing
interests, and I express my deep appreciation to our expert
witnesses for their insightful answers to those questions, as
well as their testimonies.
As I stated before, the members of the Committee may have
some additional questions for the witnesses, and we will ask
you to respond to those in writing. Committee Rule 3(o) asks
that members of the Committee must submit witness questions
within 3 business days following the hearing, and the hearing
record will be held open for 10 business days for these
responses.
If there is no further business----
Ms. McCollum. Madam Chair?
Ms. Leger Fernandez. Yes.
Ms. McCollum. I don't have a question for the witnesses,
but I would like to redirect a mis-statement that was made
about how this piece of legislation came to be in a conference
committee report.
Do I submit that to the staff?
Ms. Leger Fernandez. Yes. Please submit that, and we will
make that part of the record, so that it responds to the
testimony.
Ms. McCollum. Thank you, Madam Chair.
Ms. Leger Fernandez. If there is no further business,
without objection, the Subcommittee stands adjourned.
[Whereupon, at 2:39 p.m., the Subcommittee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Access Fund: Testimony for the Record on H.R. 1884 dated
03.29.21.
Ak-Chin Indian Community:
-- Letter to Sen. Sinema to Request to Co-Sponsor H.R. 1884/
S. 915, the Save Oak Flat Act dated 04.12.21.
-- Letter to Rep. O'Halleran to Request to Co-Sponsor H.R.
1884/S. 915, the Save Oak Flat Act dated 04.12.21.
-- Letter to Sen. Kelly to Request to Co-Sponsor H.R. 1884/
S. 915, the Save Oak Flat Act dated 04.12.21.
Anthropological Research, LLC: Testimony for the Record on H.R.
1884 dated 04.13.21.
Apache Stronghold:
-- Complaint as Filed in the U.S. District Court dated
01.12.21.
-- Declaration of Cranston Hoffman, Jr. dated 01.14.21.
-- Declaration of John R. Welch, PhD dated 01.20.21.
-- Declaration of Naelyn Pike dated 01.14.21.
-- Declaration of Wendsler Nosie, Sr., PhD dated 01.14.21.
-- Opening Brief of Plaintiff-Appellant Apache Stronghold,
Case No. 21-15295 dated 03.18.21.
-- Wendsler Nosie, Sr.--Testimony for the Record on H.R.
1884 dated 04.22.21.
Arizona Mining Reform Coalition: Testimony for the Record on
H.R. 1884 dated 04.09.21.
Center For Biological Diversity:
-- Statement for the Record on H.R. 1884, the Save Oak Flat
Act dated 04.13.21.
-- Article titled, ``Kearny Mayor signs letter to President
in support of Resolution Copper without City of
Kearny's approval'' dated 04.28.21.
-- Letter to Rep. Grijalva in Support of H.R. 1884/S. 915
dated 04.19.21.
-- London Mining Network Letter to Rep. Grijalva in Support
of H.R. 1884/S. 915 dated 04.16.21.
Cocopah Tribe: Resolution No. CT-2021-07 dated 04.09.2021.
Concerned Citizens and Retired Miners Coalition: Testimony for
the Record on H.R. 1884 dated 04.13.21.
Danyell Dahn:
-- Article titled, ``Safety concerns for Indigenous women in
resource development: MMIWG inquiry'' dated
06.06.2019.
-- Article titled, ``San Carlos Lake's dry-up is earliest
ever as water levels plummet'' dated 04.20.21.
-- Article titled, ``Southwest braces for water cutbacks as
drought deepens along the Colorado River'' dated
04.06.21.
-- Arizona State Land Department Letter to Tonto National
Forest RE Resolution Copper Draft EIS Comments
dated 11.07.2019.
-- Statement for the Record on Oak Flat.
Earthworks: Testimony for the Record on H.R. 1884 dated
04.19.21.
First Nations Heritage Protection Alliance: Testimony for the
Record on H.R. 1884 dated 04.20.21.
Fort McDowell Yavapai Nation:
-- Letter to Arizona Senators to Request to Co-Sponsor S.
915 dated 04.12.21.
-- Letter to Representatives to Request to Co-Sponsor H.R.
1884 dated 04.12.21.
-- Resolution No. Ft. McD. 2021-35 dated 04.20.21.
Havasupai Tribe:
-- Letter to Representatives and Senators to Request to Co-
Sponsor H.R. 1884/S. 915, the Save Oak Flat Act
dated 04.13.21.
-- Resolution No. 26-21 dated 04.13.21.
Hopi Tribe: Letter to Arizona Senators to Request to Co-Sponsor
H.R. 1884/S. 915, the Save Oak Flat Act dated 04.12.21.
Hualapai Tribe:
-- Letter to Rep. Grijalva to Request to Co-Sponsor H.R.
1884, the Save Oak Flat Act dated 04.12.21.
-- Letter to Sen. Sanders to Request to Co-Sponsor S. 915,
the Save Oak Flat Act dated 04.12.21.
-- Resolution No. 19-2021--Supporting Oak Flat Act dated
04.09.21.
La Posta Band of Mission Indians: Resolution No. 212104A.
Muscogee (Creek) Nation: Testimony for the Record by the
Hickory Ground Tribal Town of the Muscogee (Creek) Nation dated
04.21.21.
National Wildlife Federation: Letter to Reps. Grijalva and
Westerman to Request Support for H.R. 1884, the Save Oak Flat
Act dated 04.12.21.
Navajo Nation: Letter to Arizona Senators to Request to Co-
Sponsor S. 915, the Save Oak Flat Act dated 04.12.21.
Oglala Sioux Tribe: Letter to Leader Schumer, Sen. Manchin,
Speaker Pelosi, and Rep. Grijalva to Request Support and to Co-
Sponsor H.R. 1884/S. 915 dated 04.26.21.
Oneida Nation:
-- Letter to Rep. Fitzgerald to Request to Co-Sponsor H.R.
1884, the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Gallagher to Request to Co-Sponsor H.R.
1884, the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Grothman to Request to Co-Sponsor H.R.
1884, the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Kind to Request to Co-Sponsor H.R. 1884,
the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Moore to Request to Co-Sponsor H.R. 1884,
the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Pocan to Request to Co-Sponsor H.R. 1884,
the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Steil to Request to Co-Sponsor H.R. 1884,
the Save Oak Flat Act dated 04.13.21.
-- Letter to Rep. Tiffany to Request to Co-Sponsor H.R.
1884, the Save Oak Flat Act dated 04.13.21.
-- Letter to Sen. Baldwin to Request to Co-Sponsor S. 915,
the Save Oak Flat Act dated 04.13.21.
-- Letter to Sen. Johnson to Request to Co-Sponsor S. 915,
the Save Oak Flat Act dated 04.13.21.
Outdoor Alliance: Letter to Chair Leger Fernandez and Ranking
Member Young in Support of H.R. 1884 dated 04.20.21.
Pascua Yaqui Tribe: Letter to Arizona Senators to Request to
Co-Sponsor S. 915, the Save Oak Flat Act dated 03.24.21.
Patagonia: Testimony for the Record on H.R. 1884 dated
04.16.21.
Poarch Band of Creek Indians: Letter to Rep. Carl to Request to
Support and Co-Sponsor H.R. 1884 dated 04.21.21.
Pueblo of Tesuque: Letter to Rep. Leger Fernandez in Support of
H.R. 1884/S. 915 dated 04.20.21.
Red Cliff Band of Lake Superior Chippewa Indians: Resolution
No. 4/20/21D dated 04.20.21.
Representative Grijalva: Op. Ed. Article titled, ``Don't trust
this mining company to protect Oak Flat. Look what it did in
Australia'' dated 11.16.20.
Salt River Pima-Maricopa: Resolution No. SR-3863-2021 in
Support of H.R. 1884 dated 04.07.21.
Samish Indian Nation: Letter to Rep. Larsen, Senators Murray
and Cantwell to Request to Co-Sponsor H.R. 1884/S. 915 dated
04.12.21.
San Carlos Apache Tribe:
-- Press Release dated 04.13.21.
-- Resolution No. NV-19-183 Supporting the Protection of Oak
Flat and Other Native American Sacred Spaces From
Harm dated 11.22.19.
San Pasqual Band of Mission Indians:
-- Letter to Sen. Feinstein to Request to Co-Sponsor H.R.
1884/S. 915 dated 04.20.21.
-- Resolution No. SP 042021-15 dated 04.20.21.
Save Oak Flat Act of 2021--Map dated 03.15.21.
Shawnee Tribe:
-- Letter to Rep. Mullin to Request to Co-Sponsor H.R. 1884/
S. 915 dated 04.16.21.
-- Letter to Sen. Lankford to Request to Co-Sponsor H.R.
1884/S. 915 dated 04.16.21.
-- Resolution R-04-14-2021-A dated 04.14.21.
Shoshone-Bannock Tribes: Letter to Sen. Crapo, Sen. Risch, and
Rep. Simpson to Request Support and to Co-Sponsor H.R. 1884/S.
915 dated 04.20.21.
Terry Rambler, Chairman of the San Carlos Apache Tribe: Article
from The Hill titled, ``Congress can protect sacred Oak Flat in
Arizona from mining project'' dated 04.13.21.
Tohono O'odham Nation: Letter to Rep. Grijalva to Request to
Co-Sponsor H.R. 1884, the Save Oak Flat Act dated 04.12.21.
Tommy Caldwell, Global Sports Activist for Patagonia: Testimony
for the Record on H.R. 1884 dated 04.09.21.
Tonto Apache Tribe: Resolution No. 21-08 dated 04.07.21.
Tribal Organizations: Letter to Leader Schumer, Sen. Manchin,
Speaker Pelosi, and Rep. Grijalva to Request Support for H.R.
1884/S. 915 dated 04.27.21.
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and
Canada: Letter to Rep. Grijalva opposing H.R. 1884 dated
04.09.21.
White Mountain Apache Tribe: Resolution No. 04-2021-68 dated
04.08.21.
Women's Mining Coalition: Copper Fact Sheet.