[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 3301, SOUTHEAST ARIZONA
LAND EXCHANGE AND
CONSERVATION ACT OF 2007
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS
AND PUBLIC LANDS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Thursday, November 1, 2007
__________
Serial No. 110-52
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL, II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Chris Cannon, Utah
Frank Pallone, Jr., New Jersey Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin Jeff Flake, Arizona
Islands Stevan Pearce, New Mexico
Grace F. Napolitano, California Henry E. Brown, Jr., South
Rush D. Holt, New Jersey Carolina
Raul M. Grijalva, Arizona Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam Cathy McMorris Rodgers, Washington
Jim Costa, California Bobby Jindal, Louisiana
Dan Boren, Oklahoma Louie Gohmert, Texas
John P. Sarbanes, Maryland Tom Cole, Oklahoma
George Miller, California Rob Bishop, Utah
Edward J. Markey, Massachusetts Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon Dean Heller, Nevada
Maurice D. Hinchey, New York Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island Doug Lamborn, Colorado
Ron Kind, Wisconsin Mary Fallin, Oklahoma
Lois Capps, California Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, FORESTS AND PUBLIC LANDS
RAUL M. GRIJALVA, Arizona, Chairman
ROB BISHOP, Utah, Ranking Republican Member
Dale E. Kildee, Michigan John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Rush D. Holt, New Jersey Stevan Pearce, New Mexico
Dan Boren, Oklahoma Henry E. Brown, Jr., South
John P. Sarbanes, Maryland Carolina
Peter A. DeFazio, Oregon Louie Gohmert, Texas
Maurice D. Hinchey, New York Tom Cole, Oklahoma
Ron Kind, Wisconsin Dean Heller, Nevada
Lois Capps, California Bill Sali, Idaho
Jay Inslee, Washington Doug Lamborn, Colorado
Mark Udall, Colorado Don Young, Alaska, ex officio
Stephanie Herseth Sandlin, South Vacancy
Dakota Don Young, Alaska, ex officio
Heath Shuler, North Carolina
Nick J. Rahall, II, West Virginia,
ex officio
------
CONTENTS
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Page
Hearing held on Thursday, November 1, 2007....................... 1
Statement of Members:
Flake, Hon. Jeff, a Representative in Congress from the State
of Arizona................................................. 3
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 1
Prepared statement of.................................... 2
Statement of Witnesses:
Bahr, Sandy, Sierra Club, Grand Canyon (Arizona) Chapter..... 30
Prepared statement of.................................... 32
Bear, Raphael R., President, Fort McDowell Yavapai Nation.... 12
Prepared statement of.................................... 13
Holtrop, Joel, Deputy Chief, National Forest System, U.S.
Department of Agriculture.................................. 3
Prepared statement of.................................... 5
Johnson, Luke, Deputy Director, Bureau of Land Management,
U.S. Department of the Interior............................ 6
Prepared statement of.................................... 7
Nosie, Wendsler, Sr., Chairman, San Carlos Apache Tribe...... 16
Prepared statement of.................................... 18
Rickus, John, President, Resolution Copper Mining, LLC....... 26
Prepared statement of.................................... 27
LEGISLATIVE HEARING ON H.R. 3301, TO AUTHORIZE AND DIRECT THE EXCHANGE
AND CONVEYANCE OF CERTAIN NATIONAL FOREST LAND AND OTHER LAND IN
SOUTHEAST ARIZONA. (SOUTHEAST ARIZONA LAND EXCHANGE AND CONSERVATION
ACT OF 2007)
----------
Thursday, November 1, 2007
U.S. House of Representatives
Subcommittee on National Parks, Forests and Public Lands
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:02 a.m. in
Room 1324, Longworth House Office Building, Hon. Raul M.
Grijalva, [Chairman of the Subcommittee] presiding.
Present: Representatives Grijalva, Bishop, Christensen,
Flake and Lamborn.
STATEMENT OF THE HONORABLE RAUL M. GRIJALVA, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you. Let me call the Subcommittee
meeting to order, a legislative hearing on H.R. 3301, Southeast
Arizona Land Exchange and Conservation Act of 2007. I will
begin the meeting as we wait for our colleague, the Ranking
Member, Mr. Bishop, who will be here shortly. At that point, if
he has an opening statement, he will do that at that time.
In calling the Subcommittee to order today, we will be
receiving testimony on H.R. 3301 introduced by my good friend
and colleague, Mr. Ed Pastor. It authorizes and directs a land
exchange and conveyance of certain national forest lands and
other lands in southeast Arizona. At its heart, H.R. 3301 seeks
to convey the 3,000 Oak Flat parcel, which is currently managed
by the Forest Service.
Much of the Oak Flat parcel is currently operated as a
Forest Service campground and is also popular for rock
climbing, acorn gathering by Native American tribes. Beneath
the Oak Flat parcel is what many have categorized as one of the
largest existing copper deposits in North America.
Resolution Copper Company is seeking to facilitate a land
exchange in order to acquire the Oak Flat parcel for mining
purposes. The Oak Flat parcel lies adjacent to Resolution
Copper Company's existing private land and the site of the
former Magma Mine. Resolution Copper would then convey to the
Forest Service and the Bureau of Land Management a variety of
different properties in southern Arizona.
Land exchanges and conveyances can often be burdensome on
the public interest. Because of its complicated nature, I think
the measure before us today merits very careful consideration.
I would suggest that even the parcels that the Federal
Government would acquire under H.R. 3301, the overall benefit
to the public interest is still in question.
Many have suggested that Resolution Copper should pay a
royalty on the proceeds from mining on Federal lands that they
would acquire, and I tend to concur. I look forward to hearing
the thoughts of each of our witnesses on the topic of the
benefits to the public interest of this measure and this
legislation.
I am pleased today that we are joined by Chairman Nosie of
the San Carlos Apache, President Bear of the Fort McDowell
Yavapai Nation. Located on the Forest Service land in question
is the Apache Leap, an area of significant cultural and
historic value to these tribes.
Furthermore, the Oak Flat parcel is an area of cultural
significance for acorn gathering. These areas are very
important to both tribes, and I am pleased that their
leadership is here today to share those concerns and their
thoughts. I also want to echo the concerns raised by Arizona
Governor Napolitano about the tribes' need to be engaged in
discussions regarding the mine and land exchange.
These lands hold significant cultural value to the tribes,
and there needs to be outreach to them before the legislation
moves forward. I would also like to thank all of our witnesses
for being with us today. We look forward to receiving your
testimony. As I said, when Ranking Member Bishop arrives, if he
has an opening statement we will hear it at that point.
With that, let me call the first panel forward, please.
There will be, as we know, a five-minute limit on the oral
presentations. Excuse me. Before we do the introduction of our
witnesses, let me turn to my colleague from Arizona, Mr. Flake,
for any opening statement he might have regarding the
legislation.
[The prepared statement of Mr. Grijalva follows:]
Statement of The Honorable Raul Grijalva, Chairman,
Subcommittee on National Parks, Forests and Public Lands
The Subcommittee will come to order. Today we will be receiving
testimony on H.R. 3301, the Southeast Arizona Land Exchange and
Conservation Act. H.R. 3301, introduced by my good friend and
colleague, Representative Ed Pastor, authorizes and directs a land
exchange and conveyance of certain National Forest land and other lands
in southeast Arizona.
At its heart, H.R. 3301 seeks to convey the 3,025 Oak Flat parcel,
which is currently managed by the Forest Service. Much of the Oak Flat
parcel is currently operated as a Forest Service campground, and is
also a popular site for rock-climbing and acorn gathering by Indian
tribes. Beneath the Oak Flat parcel is what many have characterized as
one of the largest existing copper deposits in North America.
Resolution Copper Company is seeking to facilitate a land exchange
in order to acquire the Oak Flat parcel for mining purposes. The Oak
Flat parcel lies adjacent to Resolution Copper Company's existing
private land and the site of the former Magma Mine. Resolution Copper
would then convey to the Forest Service and the Bureau of Land
Management a variety of different properties in southern Arizona.
Land exchanges and conveyances can often be burdensome on the
public interest. Because of its complicated nature, I think the measure
before us today merits some careful consideration. I would suggest that
even with the parcels that the Federal Government would acquire under
H.R. 3301, the overall benefit to the public interest is in question.
Many have suggested that Resolution Copper should pay a royalty on the
proceeds from mining on the Federal lands they would acquire and I tend
to concur. I look forward to hearing the thoughts of each of our
witnesses on the topic of the benefits to the public interest of this
measure.
I am pleased that we are joined today by Chairman Wendsler Nosie of
the San Carlos Apache and Mr. Raphael Baer of the Ft. McDowell Yavapai
Nation. Located on the Forest Service land in question is the Apache
Leap, an area of significant cultural and historical value to these
tribes. Furthermore, the Oak Flat parcel is an area of cultural
significance for acorn gathering. These areas are very important to
both tribes and I am pleased they have joined us today to share their
concerns.
I echo concerns raised by Arizona Governor Napolitano about the
tribes needing to be engaged in discussions regarding the mine and land
exchange. These lands hold significant cultural value to the tribes and
there needs to be outreach to them before this bill moves forward.
Again, I would like to thank all of our witnesses for being with us
today. We look forward to receiving your testimony.
I would now like to recognize Ranking Member Bishop for any opening
statement he may have.
______
STATEMENT OF THE HONORABLE JEFF FLAKE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Flake. I thank the Chairman. I will be very brief. I
just want to say I appreciate those who have traveled a long
way to get here, particularly those from Arizona, and commend
those who have been involved in this process and this
legislation. This is very important for the State of Arizona I
think for the mining industry and appreciate those of
Resolution Copper for the work that they have done to make sure
that those locally are informed about what is going on here and
involved in the process.
So I look forward to this hearing and this process moving
forward. I thank the Chairman.
Mr. Grijalva. Thank you, Mr. Flake. Let me call on the
witnesses a five-minute rule in terms of the oral presentation,
and your statements will be entered into the record entirely.
Any extraneous material that any of the witnesses might have
will also be entered into the record in its entirety.
With that, let me turn to Mr. Joel Holtrop, Deputy Chief,
National Forest Service. Welcome, again, sir.
STATEMENT OF JOEL HOLTROP, DEPUTY CHIEF,
NATIONAL FOREST SYSTEM, USDA FOREST SERVICE
Mr. Holtrop. Thank you, Mr. Chairman and members of the
Subcommittee for the opportunity to provide the Department of
Agriculture's view on H.R. 3301, the Southeast Arizona Land
Exchange and Conservation Act of 2007. My remarks are limited
to those provisions of the bill directly related to National
Forest System lands and will defer to the Department of the
Interior on provisions relating to the lands managed by the
Bureau of Land Management.
The Department believes that the acquisition of the
nonFederal parcels to be managed in the National Forest System
would provide protection for riparian habitat and water rights,
archeological sites, two miles along a permanently flowing
trout stream, a year round pond and an endangered cactus
species.
The Department appreciates that several changes have been
made to this proposal in response to previous testimony to
address various concerns, and in this context the Department
supports the exchange as well as the valuation provisions and
believes it is in the public interest, although some concerns
remain regarding the overall bill.
H.R. 3301 is a complex land exchange bill that directs the
Secretary of Agriculture to convey to Resolution Copper certain
lands and interests in the Tonto National Forest in Arizona in
exchange for private lands and funds to acquire additional
lands in the State of Arizona for management by the Forest
Service and the Bureau of Land Management.
It also directs the Secretary of Agriculture to convey to
the Town of Superior a cemetery, some 181 acres adjacent to the
Superior Airport and Federal reversionary interest in the
airport site already owned by the town. It is our understanding
that upon completion of the land exchange Resolution Copper
would explore the possibility of developing a very deep copper
mine beneath the Oak Flat parcel.
Section 4[d] of the bill requires that the exchange
contemplated by H.R. 3301 will be completed within one year. We
believe that this is insufficient time to complete all the
necessary work for the exchange including the development and
review of a mineral report, completion of appraisals and
surveys, verification of title documents and the many
environmental clearances, reviews and the consultation with
Indian tribes required under various laws, regulations and
policy as outlined in Section 4[e].
The bill directs the Secretary to design and construct a
campground including access routes on the Globe Ranger District
of the Tonto National Forest within two years to replace the
Oak Flat Campground. Preliminary indications are that it will
be difficult to find a suitable replacement site within the
Globe Ranger District.
We are also concerned that the $500,000 Resolution Copper
is directed to pay for the replacement campground is
insufficient in that the two year timeframe will be difficult
to meet. We request that this requirement be made
discretionary, that the legislation reflect the total cost of
the campground replacement to protect the taxpayers' interest
and that the two year deadline be dropped.
Section 8[a][3] requires the Secretary to continue to
operate the Oak Flat Campground for two years or until a
replacement campground is constructed. The Department objects
to the requirement that it operate a campground located on
private lands as well as the waiver of liability for Resolution
Copper. We recommend that this section be amended to reflect
that the campground will only be operated by the Secretary
until the land is transferred.
Section 8[c][3] identifies areas to be closed to public use
upon enactment of the Act. We recommend that area closures be
negotiated based on the needs expressed in mining plans of
operation during the period between bill enactment and
consummation of the exchange, should it occur.
Finally, we would like to work with the Subcommittee and
bill sponsors on several technical changes to the bill. For
example, it should be clarified that the Secretary will convey
by quit claim deeds and that title to lands received by the
government must meet attorney general's title standards.
This concludes my statement, and I would be happy to answer
any questions you may have.
Mr. Grijalva. Thank you, sir.
Let me turn to Mr. Luke Johnson, Deputy Director, Bureau of
Land Management. Welcome back. You would probably be happier
back here preparing questions than answering them, but
nevertheless, welcome.
[The prepared statement of Mr. Holtrop follows:]
Statement of Joel Holtrop, Deputy Chief, National Forest System,
U.S. Department of Agriculture
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to appear before you today to provide the Department of
Agriculture's view on H.R. 3301, the ``Southeast Arizona Land Exchange
and Conservation Act of 2007.''
I will limit my remarks to the provisions of the bill directly
related to National Forest System lands and will defer to the
Department of the Interior on provisions relating to the lands managed
by the Bureau of Land Management.
H.R. 3301 is a complex land exchange bill that directs the
Secretary of Agriculture to convey to Resolution Copper Mining, LLC
(Resolution Copper) certain lands and interests in the Tonto National
Forest, Arizona, in exchange for private lands and funds to acquire
additional lands in the State of Arizona for management by the Forest
Service and the Bureau of Land Management (BLM).
The Department believes that the acquisition of the non-federal
parcels to be managed in the National Forest System (NFS) would provide
protection for riparian habitat and water rights, archeological sites,
two miles along a permanently flowing trout stream, a year round pond
and an endangered cactus species. The Department appreciates that
several changes have been made to this proposal in response to previous
testimony to address various concerns. In this context, the Department
supports the exchange as well as the valuation provisions, and believes
it is in the public interest, although some concerns remain regarding
the overall bill.
The bill directs the exchange of a 3,025-acre area referred to as
the ``Oak Flat'' parcel from the United States for five parcels of land
owned by Resolution Copper: the 147-acre Turkey Creek parcel in Gila
County; the 148-acre Tangle Creek parcel in Yavapai County; the 149.3-
acre Cave Creek parcel in Maricopa County; the-266 acre JI Ranch parcel
in Pinal County (all located within the Tonto National Forest); and the
640-acre East Clear Creek parcel in Coconino County located within the
Coconino National Forest. The bill requires that, in addition to the
above exchange lands, Resolution Copper shall pay $7,500,000 into a
special Treasury account for acquisition of additional lands in
specified areas within the State of Arizona.
The bill requires a 695-acre conservation easement for the Apache
Leap escarpment on lands to be conveyed from the United States to
Resolution Copper. This conservation easement would provide permanent
protection for the parcel from surface disturbance and ensure future
public access and use.
H.R. 3301 also directs the Secretary of Agriculture to convey to
the Town of Superior, upon receipt of a request, the 30-acre town
cemetery, approximately 181 acres adjacent to the Superior airport, and
Federal reversionary interest in the 265-acre airport site already
owned by the Town.
It is our understanding that upon completion of the land exchange,
Resolution Copper would explore the possibility of developing a very
deep copper mine beneath the Oak Flat parcel.
Section 4(d) of the bill requires that the exchange contemplated by
H.R. 3301, will be completed within one year. The Department believes
that this is insufficient time to complete all the necessary work to
complete the exchange, including the development and review of a
mineral report, completion of appraisals and surveys, verification of
title documents, and the many environmental clearances, reviews, and
the consultation with Indian Tribes required under various laws,
regulations, and policy, as outlined in Section 4(e).
Section 8(a) directs the Secretary to design and construct a
campground, including access routes, on the Globe Ranger District of
the Tonto National Forest within two years to replace the Oak Flat
campground. Preliminary indications are that it will be difficult to
find a suitable replacement site within the Globe Ranger District. We
are also concerned that the $500,000 Resolution Copper is directed to
pay for the replacement campground is insufficient and that the two-
year time frame will be difficult to meet. We request that this
requirement be made discretionary, that the legislation reflect the
total cost of campground replacement to protect the taxpayer's
interest, and that the two-year deadline be dropped.
Section 8(a)(3) requires the Secretary to continue to operate the
Oak Flat Campground for two years or until a replacement campground is
constructed. The Department objects to the requirement that it operate
a campground located on private lands, as well as the waiver of
liability for Resolution Copper. We recommend that this section be
amended to reflect that the campground will only be operated by the
Secretary until the land is transferred.
Section 8(c)(3) identifies areas to be closed to public use upon
enactment of the Act. We recommend that area closures be negotiated
based on the needs expressed in mining plans of operations during the
period between bill enactment and consummation of the exchange, should
it occur.
Finally, we would like to work with the Subcommittee and bill
sponsors on several technical changes to the bill. For example, it
should be clarified that the Secretary will convey by quitclaim deeds,
and that title to lands received by the government must meet Attorney
General's title standards. We would also like to ensure the maps
described in the bill are referenced and dated properly.
This concludes my statement and I would be happy to answer any
questions you may have.
______
STATEMENT OF LUKE JOHNSON, DEPUTY DIRECTOR,
BUREAU OF LAND MANAGEMENT
Mr. Johnson. Thank you very much. Mr. Chairman and members
of the Subcommittee, I thank you for the opportunity to testify
on H.R. 3301, the Southeast Arizona Land Exchange and
Conservation Act. I would like to summarize my remarks and
request the full statement be submitted for the record.
H.R. 3301 provides for the exchange of a 3,025 acre parcel
of Forest Service managed land in exchange for a number of
private parcels and a cash payment to the Forest Service fund.
In general, we defer to the Forest Service on those issues
directly related to Forest Service lands.
We support the principal goals of H.R. 3301 and commend the
sponsors for the changes that have been made to the legislation
since last Congress in response to concerns that were raised.
We would like the opportunity to continue to work with the
sponsor and the committee on a number of additional
modifications to the legislation.
It is our understanding the intent of the legislation is to
facilitate an exchange with Resolution Copper Mine and Company
who has indicated its intention to explore the possibility of a
very deep copper mine near Superior, Arizona, and wishes to
acquire the Forest Service parcel overlying the copper deposit
as well as the subsurface rights.
The legislation provides for the exchange of a number of
parcels of private land to the Federal Government. Two of the
private parcels are identified for transfer to the Secretary of
the Interior. The first is a 3,073 acre Lower San Pedro parcel
east of the Town of Mammoth, Arizona, and straddles the San
Pedro River.
The acquisition of these lands would enhance a key
migratory bird habitat along the San Pedro River, and we would
welcome them into BLM management. We do, however, have some
management concerns surrounding the counsel we would appreciate
the opportunity to resolve. The second is the Dripping Springs
parcel which presents a number of problems outlined in detail
in our testimony that we would like to resolve before the bill
moves forward.
We note the BLM does not currently have the resources or
staff to manage a rock climbing area to replace the existing
one on Forest Service lands that is expected to be displaced as
a result of the exchange. Other issues requiring clarification
include timing of the exchange, appraisal related provisions
and the equalization of values as well as some more technical
issues.
Thank you for the opportunity to testify, and I would be
happy to answer any questions you might have.
[The prepared statement of Mr. Johnson follows:]
Statement of Luke Johnson, Deputy Director, Bureau of Land Management,
U.S. Department of the Interior
Thank you for the opportunity to testify on H.R. 3301, the
Southeast Arizona Land Exchange and Conservation Act. The legislation
provides for the exchange of a 3,025-acre parcel of Forest Service-
managed land in exchange for a number of private parcels and a cash
payment to a special Forest Service fund. Two of the private parcels
are identified for transfer to the Secretary of the Interior. In
general, we defer to the United States Forest Service on those issues
directly related to Forest Service lands. We support the principal
goals of H.R. 3301, and we appreciate that a number of changes have
been made to the legislation since last Congress in response to
concerns we raised. However, we would like the opportunity to continue
to work with the sponsor and the Committee on a number of additional
modifications to the legislation.
It is our understanding that the intent of the legislation is to
facilitate an exchange of land with Resolution Copper Mining.
Resolution Copper has indicated its intention to explore the
possibility of a very deep copper mine near Superior, Arizona, and
wishes to acquire the 3,025-acre Forest Service parcel overlying the
copper deposit as well as the subsurface rights.
The legislation provides for the exchange of a number of parcels of
private land to the Federal government. We note that while the bill
states that two of these parcels are to be conveyed to the Secretary of
the Interior, it is our understanding that the intention of the
sponsors is for the parcels to be under Bureau of Land Management (BLM)
management. The parcels identified are:
3,073 acres along the Lower San Pedro River near Mammoth,
Arizona;
160 acres within the Dripping Springs area, near Kearny,
Arizona.
The lower San Pedro parcel is east of the town of Mammoth, Arizona,
and straddles the San Pedro River. The acquisition of these lands would
enhance a key migratory bird habitat along the San Pedro River, and we
would welcome them into BLM management. While H.R. 3301 directs the BLM
to manage the lower San Pedro parcel consistent with the management of
the existing San Pedro Riparian National Conservation Area (NCA)
designated by Public Law 100-696, it specifically does not make these
lands a component of that NCA. The new lands lie along the same
riparian corridor, but they are at least 60 miles downstream (north) of
the existing NCA, and have substantially different resource issues and
needs. We recommend the lands either be designated as a separate unit
of the existing NCA (with their own management guidance), or that they
be managed consistent with the other lands in their vicinity under
existing BLM Resource Management Plans. We understand there is a
collaborative effort of stakeholders currently underway with whom we
would like to work in developing the direction for the management of
this area.
The Dripping Springs parcel presents several problems. The
legislation proposes to transfer 160 acres in the Dripping Springs area
northeast of Hayden to the BLM. The BLM is then directed in section
8(b) to transfer these 160 acres plus an additional approximately 2,000
acres of public land to the Arizona State Parks Board for the purpose
of a rock-climbing area to replace a similar area currently managed by
the Forest Service that is within the area to be transferred to
Resolution Copper. The bill directs the transfer to Arizona State Parks
at no cost as soon as the new State Park is established.
The Department can support the transfer of the existing 2,000 acres
to the State of Arizona. The majority of these lands were previously
identified for disposal. However, we recommend that the legislation
provide for an immediate transfer of these lands to the State without
waiting for the establishment of the State Park. The BLM does not
currently have the resources or staff to manage a rock climbing area to
replace the existing one on Forest Service lands that would be taken
over by Resolution Copper in this exchange. Therefore, since Dripping
Springs has been designated as the replacement area, we urge its
immediate transfer to the State so that appropriate management of the
area can be arranged. In addition, we do not believe that it is
appropriate for the 160-acre parcel to be a part of the Federal
exchange when the BLM will simply act as a pass-through for the State.
Any arrangements between Arizona State Parks and Resolution Copper
should be handled outside of the Federal exchange.
H.R. 3301 also requires the BLM to provide public access to Arizona
State Parks to construct a road to the new rock-climbing area. The
proposed road stretches over approximately six miles of rough terrain
and, in addition to crossing BLM-managed land, also crosses state and
private property. The legislation would require Resolution Copper to
pay up to $500,000 to the Secretary of the Interior for transfer to
Arizona State Parks for the construction of the road. We believe that
the funding for the road should be between Resolution Copper and the
State of Arizona rather than involve the Secretary of the Interior.
Section 8(b)(2)(A) requires the immediate granting of a right-of-
way across Federal lands for the road. We believe it is important to
determine the appropriate route for the road through a full and open
public process consistent with the provisions in FLPMA and encourage
the bill be amended to allow us to do so. The BLM is happy to provide a
right-of-way for the road but does not believe it should be involved in
the design, payment, or construction of the road.
Other issues requiring clarification include: timing of the
exchange; appraisal-related provisions; and, the equalization of values
provisions. Section 4(d) of the legislation requires that the exchange
be completed within one year. Based on our experience with exchanges,
we do not believe that this is sufficient time for the completion and
review of a mineral report, completion and review of the appraisals,
and final verification and preparation of title documents. Preparation
of a mineral report is a crucial first step toward an appraisal of the
Federal parcel because the report provides the foundation for an
appraisal where the land is underlain by a mineral deposit.
Accordingly, adequate information for the mineral report is essential.
We recommend adding a provision requiring Resolution Copper to provide
confidential access to the Secretaries of Agriculture and the Interior
(and their representatives) to all exploration and development data and
company analyses on the mineral deposits underlying the Federal land in
order to ensure an accurate appraisal.
Finally, we would like the opportunity to work with the sponsor and
the Committee on miscellaneous technical items including maps for the
areas to be exchanged. In the case of lands to be transferred to or
from the Secretary of the Interior, the maps should be completed by the
BLM.
Thank you for the opportunity to testify, I will be happy to answer
any questions.
______
Mr. Grijalva. Thank you, sir, and let me begin.
Mr. Holtrop, I understand that an appraisal has not been
completed on the lands in question in H.R. 3301, however, if
based on any preliminary estimates do you expect that the lands
exchange under H.R. 3301 to be of equal value?
Mr. Holtrop. Well, as you stated, there has not been an
appraisal completed to this date yet. What the bill allows for
is cash equalization to assure that the equal value exchange
would occur.
Mr. Grijalva. The one year time limit imposed on the land
exchange, does that give you enough time to complete the NEPA
analysis, ESA consultation, tribal consultation?
Mr. Holtrop. We are concerned that it does not provide
enough time. Even just the appraisal of the land itself can
take up to a year and the mineral appraisal on top of that, and
with all of the environmental review and consultation of the
tribes, as you mentioned, the one year period of time does not
appear to be sufficient to us.
Mr. Grijalva. Out of curiosity, the Eisenhower
administration removed Oak Flat Campground from mining in 1955.
Do you know why?
Mr. Holtrop. The mineral withdrawal at that time was done
to protect the Federal Government's interest in the capital
improvement of the campground that exists there.
Mr. Grijalva. In the provision that allows the Secretary of
Agriculture to grant a permanent conservation easement for
Apache Leap to qualify as a grantees, how would you expect the
Secretary to decide which grantee would receive that
conservation easement?
Mr. Holtrop. Well, as I read the bill what is required is
that Resolution Copper would provide a conservation easement
acceptable to the Secretary, so it is my understanding that
Resolution Copper would do the process of determining who would
be the grantee of the conservation easement. If that were
acceptable to the Secretary that would be accepted. The bill
requires that the grantees be either a government unit, a
tribal unit or some land trust organization.
Mr. Grijalva. Today, as you know, the House will be
considering H.R. 2262, the Hard Rock Mining and Reclamation
Act. If the mining operation in question were left on Federal
lands rather than exchanged through this legislation, how would
royalty payments on the mining operation change under the
legislation that is being considered today if that were indeed
to become law?
Mr. Holtrop. Well, I am afraid I am not prepared to answer
that. I am not familiar with what the effect of the new bill
would have on that, and because of that I don't have a position
on how that would be.
Mr. Grijalva. On the next panel we are going to hear from
tribal leaders with regard to their comments and concerns
regrading the legislation. Has the Forest Service engaged in
any discussions with the tribes in question regarding this
exchange?
Mr. Holtrop. Yes, we have. We have been involved in
informal discussions. As I understand it, the Tonto National
Forest has been working with eight or nine different tribal
entities in informal discussions as we were finding out
information about the proposed exchanged.
There has been visits to the sites with the tribes to look
at the various heritage sites and protection that would be
necessary and mitigation measures that might be necessary, but
until there is a firmed up Federal action there has not been
formal consultation at this stage yet.
Mr. Grijalva. One question for Mr. Johnson. The provision
in the legislation directs the establishment of a replacement
climbing park due to the loss of that activity to the Oak Flat
parcel. Should the deal to have this area managed as a state
park fall through would BLM be able to manage this area, the
climbing park?
Mr. Johnson. Well, as you know, Mr. Chairman, the BLM is
presently managing the Dripping Springs land, the parcel that
you referenced. Because of the added attention that has come to
that particular area since then, the BLM certainly is aware
that there has been an increase in usage in that site, although
the BLM is not managing it for that particular use at this
time.
If a road were to be constructed under the legislation we
would expect that there would be a substantial increase in
visitation there. It should be known that the BLM does not
presently have the staff or the resources to manage it
consistent with the expectations that might come with that
site. The BLM would hope that the arrangement outlined in the
legislation for the state to take ownership of that and the BLM
to transfer ownership of those acres to the State of Arizona
would be the ultimate outcome.
Mr. Grijalva. Let me turn to Mr. Bishop. If we have another
round I have just one additional question.
Mr. Bishop?
Mr. Bishop. I have only one question for either Joel or
Luke. The Oak Flat Campground area that was set aside back when
I was I think three, no one has been able to tell me why that
was set aside. Do either of you know?
Mr. Holtrop. It was set aside to protect the Federal
interest in the capital improvement of the campground.
Mr. Bishop. Do you know any more about why they did that,
though? I mean, is that the sum and substance of why it was set
aside?
Mr. Holtrop. My understanding that was the sum substance of
why that was set aside. It is not uncommon I don't believe when
there is a Federal improvement on a parcel that a mining
interest would create a difficulty of us continuing to protect
that improvement to do a withdrawal in that case.
Mr. Bishop. Was this action done in isolation or was it
part of a larger approach of dealing with making some kind of
land arrangements within the State of Arizona?
Mr. Holtrop. I don't know the answer to that. I would be
happy to try to find that out and get back to you later.
Mr. Bishop. Thank you. That is it.
Mr. Grijalva. Mr. Flake?
Mr. Flake. Thank you, Mr. Chairman.
Mr. Holtrop, can you comment a little on the ecological
value of the lands being transferred to the Federal Government
as opposed to the lands that you relinquish control over?
Mr. Holtrop. There is some significant ecological values as
to the land that would be coming into the National Forest
System lands. There are watershed values in an area of course
where water is a very important resource, some of the lands
have an endangered cactus species associated with them, there
is two miles, a free flowing stream associated with some of
them, and so there is high ecological values. Those are just
some of those values.
Mr. Flake. So as far as cash value it is net wash as it
always is, but ecological value, the Federal Government is
getting a pretty good deal?
Mr. Holtrop. There are significant values that are
associated with the properties that we would be receiving, and
there obviously are significant values associated with the Oak
Flat parcel as well. The valuation would be based on economic
values.
Mr. Flake. Right, but the ecological value here is one of
the reasons that the Forest Service, and BLM and others are
supporting this exchange?
Mr. Holtrop. The position of us being in support of it is
based on a recognition of the values associated with the
parcels that we would be receiving which are significant, and
there would be further analysis done as we went through this
process to further ascertain those values.
Mr. Flake. Right. Thank you.
Mr. Johnson, you mentioned that the legislation should be
amended to compel Resolution Copper to provide, you know,
mineral information for the purposes of appraising the land. Is
that common or is this setting new precedent?
Mr. Johnson. I think that the necessity of having the full
information and that information at the disposal to BLM is part
of what would be a standard for preparing that information and
assessing what the mineral values would be.
Mr. Flake. My guess is that information is not often
available. What happens when it is not there?
Mr. Johnson. Well, in this particular case it is my
understanding that with the proponent the BLM would be serving
in the role while the Forest Service would prepare the mineral
report, would review that and would want access to that to be
able to ensure that the mineral values were fully assessed and
to ensure that the taxpayer was receiving an equal exchange and
an equal outcome in the exchange.
Mr. Flake. All right. Thank you.
Mr. Grijalva. Thank you, sir. I will forward the
opportunity to my colleagues.
One follow-up question, Mr. Holtrop, because as the
question came up earlier. Elaborate on some of the questions or
concerns that you might have regarding the relocating of the
campground.
Mr. Holtrop. There are going to be some difficulties with
finding a suitable location for an additional campground or a
new campground on the Globe Ranger District. We have looked at
three different sites to date. Each of those sites have
different issues associated with them. They have issues of
access, they have issues around hazardous materials from prior
mining activities, there are issues with private land
neighboring some of those campground sites.
The site that we feel best about at this point has some of
those concerns but has a significant access issue associated
with it where we would probably have to construct about a mile
of road in order to get to the campground site. So those are
some of the issues that we are dealing with. Then the
additional concern that my testimony raised was the concern
that the $500,000 would be insufficient to pay for the cost of
the construction of that site.
Mr. Grijalva. Thank you.
Mr. Flake?
Mr. Flake. Just a follow-up to that. You mentioned that two
years is insufficient and $500,000 is insufficient. Rather than
leaving it open ended, do you have a realistic estimate in
terms of both time and cost?
Mr. Holtrop. I believe a more realistic estimate of cost
when you consider of course we would have to do the
environmental analysis and determine the site and that could
change the cost considerably, but if we were to go to the site
that currently appears to be the best, if there were the need
for a road to be constructed to the site the road itself would
be over $1 million in cost.
The average cost for every camp unit on the Tonto National
Forest over the past several years has been nearly $40,000 per
unit. The campground that we are giving up is about a 19 site
campground, so the cost of the development of the campground
itself would be close to $700,000. When you include the
environmental analysis and some of the other things, $2 million
might not even be enough, but that might be a more reasonable
estimate.
Mr. Flake. Thank you.
Mr. Grijalva. Let me thank the witnesses. Appreciate it
very much. If there is additional questions we will provide
those in writing.
With that, let me call the next panel up. Thank you very
much, and I appreciate you being here. Let me begin this panel
with Raphael Bear, President, Ft. McDowell Yavapai Nation.
Mr. President?
STATEMENT OF THE HON. RAPHAEL BEAR, PRESIDENT,
FT. McDOWELL YAVAPAI NATION
Mr. Bear. Thank you very much, Mr. Chairman, members of the
Subcommittee. Thank you for the opportunity to appear before
you today on H.R. 3301. My name is Raphael Bear, I am the
President of the Ft. McDowell Yavapai Nation located in Ft.
McDowell, Arizona.
We recognize the increasing global demand for copper has
resurrected the mining industry and fostered interest in
deposits previously deemed unprofitable. Resolution Copper
Company, or RCC, is proposing to mine a deposit estimated to be
worth in the tens of billions of dollars. However, we believe
the feasibility of this mine, the equalization of the exchange,
environmental damage along with the potential economic benefits
as purported by RCC have not been fully or fairly appraised or
analyzed.
We are extremely concerned that the mine will cause
irreparable harm to the environment. In conveying Federal land
to the private entity, RCC will be effectively exempt from NEPA
or other environmental protections. Furthermore, provisions for
reclamation in the 1872 Mining Act are inadequate and the
Surface Mining Control and Reclamation Act of 1977 are not
applicable for copper mining.
Our paramount concern is where and how will tailings and
overburden be relocated. In consulting with geologists and
geomorphologists it does not appear that there are sufficient
previously abandoned surface mine pits that could either
temporarily or permanently house the predicted hundreds of
thousands of tons of material generated per day for 40 years of
mining, much of it which will contain a number of toxic
substances.
Will unspoiled canyons be sacrificed to store this
material? Thus, in the absence of truly meaningful Federal laws
regulating copper mining who will make determinations of what
land will be sacrificed, land that the Yavapai hold so dear?
Added hydrologic studies are needed to determine how
aquifers and water in this region will be affected. For
example, groundwater pumping will dewater natural springs in
riparian areas such as Devils Canyon. These areas are not only
hydrologically significant but are sacred to the Yavapai people
and will be lost forever as a result of groundwater pumping.
Although a conservation easement would provide protection
for Apache Leap from surface disturbance dewatering of the
tunnels would cause a serious draw down of the water table of
the region and result in subsidence in and around the Leap.
Additionally, if financial conditions prove this mine
impractical what guarantees are there to assure water will be
replaced back into the aquifer prior to mine closure?
Thus, before this legislation moves forward we request that
the Secretary of Agriculture be directed to commission and
independent third-party analysis of the hydrologic and
engineering reports that evaluate potential impacts of the
area. Underscoring our concerns are Arizona's mining laws. RCC
will probably spend little in bonding to underwrite either the
cost of remediation during mining operations or upon mine
closure.
Typically self-bonding or corporate guarantees are all that
is required. The impacts of sulfuric acid and other
contaminants from lead solutions and other processing with
copper are well-documented. However, mining companies in
Arizona have been known to walk away from their clean up
obligations.
For example, Asarco Mining Company recently declared
bankruptcy. The cost of remediating their mines are reported in
the hundreds of millions of dollars. This region is tied to our
cultural and religious heritage as it is our ancestral
territory. I cannot express in words how deeply felt this
sacred area is to my people. It simply transcends words.
This exchange weakens or renders unenforceable current
Federal Indian protection laws such as National Historic
Preservation Act, or NHPA. Thus, how will the Yavapai cultural
heritage or resources, whether tangible or intangible, be
preserved or protected?
Ultimately, damage that will result from this mining
operation cannot be mitigated simply by placing a dollar value
on it or by exchanging it for some other land that is far from
the area of concern. Thus, at this time we believe that there
are too many unresolved serious issues that could be fully
addressed prior to congressional approval.
Mr. Chairman, members of the committee, on behalf of the
Ft. McDowell Yavapai people I thank you for the opportunity to
express our deep concern regarding this proposed legislation.
Thank you very much.
Mr. Grijalva. Thank you, Mr. President.
Let me now turn to Wendsler Nosie, Chairman, San Carlos
Apache.
Mr. Chairman?
[The prepared statement of Mr. Bear follows:]
Statement of President Raphael R. Bear, Fort McDowell Yavapai Nation
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to appear before you today. My name is Raphael Bear, I am
the President of the Fort McDowell Yavapai Nation located in Fort
McDowell, Arizona. I have been invited to testify today on the proposed
Southeast Arizona Land Exchange legislation, H.R. 3301, that will
authorize and direct the exchange and conveyance of National Forest and
other land in central and southeast Arizona. My comments, both written
and oral, will specifically address and provide evidence as to why this
proposed mining operation causes great concern to the People of the
Fort McDowell Yavapai Nation.
We recognize the increasing global demand for copper has
resurrected the mining industry and fostered interest in deposits
previously deemed unprofitable. This includes a large undisturbed ore
body beneath the original Magma Mine and about 7000 feet below Apache
Leap (1000 ft below sea level), as well as Oak Flat and Devils Canyon,
just east of Superior, AZ. The Resolution Copper Company, herein
referred to as RCC, is exploring the feasibility of mining this deposit
estimated to be worth in the tens of billions of dollars. The proposed
House and companion Senate bill (S. 1862), directs the Secretary of
Agriculture to convey and dispose of 3025 acres within the Tonto
National Forest (FS) including the Federally Protected Oak Flat
Campground. This would exchange land from Federal to private property--
property that was once inhabited by the Yavapai People. Given the
current economic conditions our country and the State of Arizona are
facing, this type of endeavor with the potential to generate millions
of dollars in tax revenues could be looked on favorably. However, the
feasibility of the mine, the equalization of the exchange, the
environmental and cultural losses, and potential economic benefits as
purported by RCC has not been fully or fairly appraised or analyzed.
At this time, the Congressional Budget Office (CBO) and /or Office
of Management and Budget (OMB) cannot truly evaluate the exchange as
the Federal government has yet to perform a substantive economic
evaluation of the land that houses the copper and other minerals. We
believe that appraisal-related provisions and the equalization of
values provisions are needed prior to Congressional passage. As H.R.
3301 is drafted, all mineral deposits within the Federal parcel are not
accounted for in the evaluation. As of today, RCC asserts that there
may be over 24,000,000 tons of copper (600,000 tons per year for 40
years). In today's market, that would translate to roughly $150
billion. Thus, the Federal parcel is orders of magnitude greater in
value than that of the non-federal parcels selected for exchange. The
mineral report is an essential step toward an appraisal of the Federal
parcel and therefore critically needed to assure the parity of the land
exchange. However, section 4(d) of the legislation requires that the
exchange and other critical documentation be completed within one year
after congressional passage. We do not believe that this is sufficient
time for the completion, analysis, and review of a mineral report and
appraisals. Once RCC has completed their evaluation and analysis, we
call for an independent, 3rd party review of the engineering reports
for this operation. This must be accomplished in consultation with all
affected parties, including the Fort McDowell Yavapai Nation, prior to
this legislation moving forward. At this time, relying on the RCC
current engineering report or the Department of Agriculture review of
this report is insufficient. On a monetary level, RCC financially
recoups all mineral profits at the expense of the public making such an
exchange grossly disproportionate.
Oak Flat is a major piece of this land exchange. In 1955, Oak Flat
campground was recognized by President Eisenhower as an important U.S.
resource. This area was specifically withdrawn from mining activity
when the he signed Public Land Order 1229. I will not expound on
reversing President Eisenhower's decision as others before me have
either testified or documented the significance of this region.
However, when designated lands are legally protected from future
anthropogenic disturbances, in this case mining activity, then
congressionally reversed, any assurances that other Federal land that
is deemed culturally important or environmentally critical is also in
jeopardy. Thus, this exchange sets a dangerous precedent.
As past stewards of this land, we are deeply concerned that the
mine will cause irreparable harm to the environment including, but not
limited to, contaminating scarce water supplies, decimating the land
base directly through mining practices and post mining subsidence,
destroying habitat for endangered species, and causing massive surface
damage. The bill does not specifically direct the Secretary of
Agriculture to perform or have performed in-depth, critically needed
environmental studies and analysis of the mining operation. RCC will be
effectively exempt from National Environmental Policy Act (NEPA) and
any opportunity for public involvement afforded by NEPA. The NEPA
process mandates analysis and disclosure of environmental impacts,
allowing all affected parties and decision-makers to review and
comprehend the risk assessment. The Yavapai People are a critically
affected party in this legislation. As such, the Secretary of
Agriculture must direct RCC to provide full disclosure of all pertinent
environmental information regarding the mining operation, including a
substantive mining and reclamation plan prior to congressional mark-
ups.
Currently, there are no stringent mining laws that govern copper
mining. Provisions for reclamation in the 1872 Mining Act are
inadequate and the Surface Mining Control and Reclamation Act of 1977
is not applicable for copper mining. The majority of environmental
protections that these Federal lands are currently afforded are through
federal law but many may become inapplicable once the exchange becomes
law. Our paramount concern is where and how will overburden and
tailings be re-located? In consulting with geologists and
geomorphologists, it does not appear that there are sufficient,
previously abandoned surface mine pits that could either temporarily or
permanently house the predicted 100,000's of tons of material generated
per day for the 40 years of mining. Much of this material will contain
an array of toxic substances. Will unspoiled canyons be sacrificed to
store this material? Furthermore, technologically enhanced naturally
occurring radioactive materials (TENORM) are waste elements within
stockpiles that release toxins into the environment. Subterranean toxic
metals pose little harm to human health. However, when brought to the
surface, stockpiled, exposed to the air, and subjected to various
technological processes, there is a potential for adverse effects to
humans. This is particularly true in Arizona where there are abundant
deposits of radioactive metals and poisonous arsenic. Thus, in the
absence of truly meaningful Federal laws regulating copper mining, who
will make determinations as to what lands will be sacrificed--land that
my People hold so sacred? We must be consulted and allowed to
participate in the process.
Once the land is conveyed, under the mining laws of the State of
Arizona, RCC will probably not be required to expend cash to post a
bond to underwrite either the cost of remediating toxic spills during
their mining operations, or for their pollution clean-up upon mine
closure. Typically, self-bonding or corporate guarantees are all that
is required. The impacts of sulfuric acid and other contaminants from
leach solution are well documented and thus I need not elaborate.
However, in Arizona, mining companies who declare bankruptcy leave
behind large clean-up obligations. For example, Asarco, which owns many
mines in Arizona, declared bankruptcy and was reported to have left
100's of millions of dollars in clean-up costs. Thus, a greater level
of financial responsibility should be mandated as there is much risk
associated with this projectq
As related in previous public testimony on earlier versions of this
bill, a major scientific concern relates to groundwater pumping as it
will de-water this region. Riparian areas and natural springs such as
Devils Canyon are not only hydrologically significant but are sacred to
the Yavapai People and will be lost forever as a result of groundwater
pumping. Although a conservation easement would provide protection for
Apache Leap from surface disturbance, dewatering of the tunnels will
cause a serious drawdown in the water table of the region and will
result in subsidence in and around the Apache Leap. Further required
investigations vis-a-vis water must also address:
What empirical and realistic predictions are made for
long-term water-use over the 40 plus years of mining? Has the long-term
availability and sustainability of water use been assessed?
How will dewatering of the mine be executed? Will water
removed from the shafts prior to copper removal be stored? How will
water be replaced in an environmentally safe and effective way after
ore is removed?
If during the course of mining operations, financial
conditions prove this mine impracticable, what guarantees will be made
to assure that water will be replaced back into the aquifer?
By conveying the land from public ownership to a private entity,
much of the permitting process, particularly regarding clean water, is
effectively removed. For example, if one looks at recent federal court
rulings concerning private property across the U.S., Sections 402 and
404 of the Clean water Act have often been rendered unenforceable
(Section 402--National Pollutant Discharge Elimination System; Section
404--regulates the discharge of dredged and fill material into waters
of the United States, including wetlands). Thus, what safeguards will
be congressional mandated to prevent water contamination or a decrease
in quality that will/may result due to either direct or indirect
discharge or result from this type of mining technique?
In essence, feasibility and economic studies in regard to water
have not been fully addressed. Furthermore, given the on-going long-
term drought and resulting potential water shortages within the State,
including the Colorado River (BOR Colorado River Water Shortage
Criteria Documentation, 2006-7) it is imperative that long-term
strategic projections and economic data substantiate that water for
mining purposes is the most beneficial use for the State as a whole.
Thus, before this legislation moves forward, we request that the
Secretary of Agriculture be directed to commission an independent, 3rd
party analysis of the hydrologic and engineering reports that evaluate
potential impacts of the entire area including Devils Canyon and Apache
Leap. This analysis must be in direct consultation with the Fort
McDowell Yavapai Nation.
Mining will also impact lands that are tied to our cultural and
religious heritage as this region is part of the Yavapai ancestral
territory. As stated earlier, many federal protections will be removed
from this land. Hence, the Native American Graves Protection and
Repatriation Act (Public Law 101-601) or any provision of the American
Indian Religious Freedom Act (42 U.S.C. 1996), the National Historic
Preservation Act (6 U.S.C. 4701 et seq.), and the Religious Freedom
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.) that are designated
to protect areas important to Native American's may be inapplicable or
unenforceable. As stated above, dewatering, land subsidence, polluting
of the land and water; all of these activities will desecrate this
sacred area. I cannot express in words how deeply felt this land is to
the Yavapai--it simply transcends words. Damage that probably will
result from this project cannot be mitigated simply by placing a dollar
value on it or by exchanging it for some other land that is far from
the area of concern. Specific questions that must be addressed include,
but are not limited to, the following:
What, if anything, in this legislation will account for
Yavapai cultural resources in the area? Given the extent of land that
will be needed for all mining operations, what federal authority will
statutorily assure that cultural assessments of the entire area will
not just represent a ``cursory review''? How will all collected data--
raw and published--be disseminated to the Yavapai? What provision will
ensure that this information will not become public domain so that
culturally sensitive and sacred areas will not be subject to vandalism?
Where will material be housed if removed from the site?
Storage or dissemination of materials must be formally and legally
agreed to by the Fort McDowell Yavapai.
What language in the bill is the federal government
proposing to assure that Yavapai cultural heritage, whether tangible or
not and regardless of lineage, is going to be preserved in such a way
that it meets with our approval?
As the bill is currently written, the Native American
Graves Protection and Repatriation Act (NAGPRA ) may not be applicable
once the land is conveyed. Therefore, what language will be added to
assure the protection or removal of sacred burial sites will meet with
our approval?
In summary, the language of the bill, as currently drafted, does
not adequately address: 1) the mineral report and appraisal of the
Federal parcel to assure the parity of the land exchange; 2) the
weakness of Federal and Arizona's current statutes or laws governing
copper mining; 3) the lack of an extensive mining plan, reclamation
protocol, or bonding assurances; 4) groundwater and surface water
issues; 5) subsidence issues; 6) the need for a third party,
independent Environmental Impact Statement on the entire mining
operation; and 7) Federal environmental and cultural protections
afforded public lands are no longer applicable once the land is
conveyed. We have additional concerns but many are addressed in
Governor Napolitano's letter of August 24, 2007 outlining very specific
economic, environmental, and cultural omissions in the current bill.
The San Carlos Apache Tribe has also expressed many of these very same
concerns. Other Arizona Tribes have articulated their grave
trepidations on this bill and provided documentation under separate
cover. Thus, at this time, we believe there are too many unresolved
serious issues that must be fully addressed prior to congressional
approval.
Mr. Chairman, members of the Committee, on behalf of the Fort
McDowell Yavapai People, I thank you for the opportunity to express our
deep concerns regarding this proposed legislation.
______
STATEMENT OF THE HON. WENDSLER NOSIE,
CHAIRMAN, SAN CARLOS APACHE
Mr. Nosie. Chairman, first I would like to introduce
myself. I am Wendsler Nosie, Chairman of the San Carlos Apache
Tribe. I also have Jonathan Kicheon, council member, and also,
Leon Anderson, who is a former veteran, also here for the first
time. I would like to thank you. I, again, thank you for the
opportunity to give us an opportunity to speak freely and to be
open with you of our concerns.
Not reflecting so much on my relative to my right, Mr.
President Bear, of the concerns he expressed which is also in
my written testimony I would like to say that first, the
biggest part that I hear not being discussed is the religious
aspect of the place to the people, the first people of this
nation.
It concerns us at the most highest because of the
reflection that it would give to the identity of who we are as
native people. Oak Flat is a place where a blessed gift was
given to the people about morals, and ethics and how to
maintain the Earth. That is the biggest part that is missing
within this consultation that we speak of because who gives the
right for anyone to tamper with any other person's religion
rightfully to practice?
In this history it is a known fact, the history of America,
that Native Americans have been put aside and not recognized on
their religious belief. Our religious belief is who makes us
who we are which makes this North America very unique because
God had given a blessed gift here that in so many ways we try
to express and we try to share.
There was a question brought up earlier of Eisenhower. Here
sits before me a feather off a feather that was given to
President Eisenhower of the uniqueness of Oak Flat. In those
days from what I understand at least the President and the
committee members at that time spoke with the native people to
realize the importance of the religious aspect of that area and
with the people who had suffered, who had given their sacred
life, their soul, by leaping to their death because of what was
to come to them of a change that no one understood.
It was important to them to maintain who they were and who
they are. Those chose that life by jumping and giving their
life to sacrifice it for the future, which today for us it
lives in us every day, every hour, every second. With all the
people who lived in that area and were prisoners of war in San
Carlos and not given the opportunity to go back, even though we
resided in San Carlos, we were never given the opportunity to
go back to our homelands.
So as you can see, a lot of our elders today feel with
inside them the hurt, the abuse, and to have to maintain where
we are at to reach out to Oak Flat and to those areas of what
was significant importance to us in a spiritual way of life. So
it is really devastating when you look on the religious part of
it.
In America a lot of words that were defined in trying to
define the Apache language is really not true because what we
are talking about when we say crown dancers or devil dancers,
those are angels, no different than any other religion that
practice about what angels are.
The crown of the head represents the halo, and all the
marking within that represents everything that was given from
the creator, God, who is known throughout the world by many
names that were given to us, which makes this place very
significant to us, and never being allowed to go back to
practice who we are but to sneak there and to be able to do it.
Water. Now, when we speak of water, water is for everybody
today. We realize that the world isn't going to change to allow
us to be who we are, but now today speaking on behalf of not
only Native Americans but speaking for the people that live in
that area, water, Arizona doesn't have water. What we have
there is water to the future.
With this kind of mining, it is going to pull everything to
one place and contaminate the water. What is really left for
Arizona? Those of you who call yourself Arizonans should know
that because it is important that we keep Arizona alive with
what we have.
Health concerns. A big issue. I have been telling this
since Superior Globe Miami that just look at the gravesites,
the cemetery. Many of those people lost their lives on account
of their health with mining. Right now there is no check and
balance, so what we see to the future is more devastation. When
it comes to health, a lot of people are going to be diagnosed
with cancer and everything else that it brings. So this is one
of the great warnings that we are bringing out to the people
that is very important.
The future. Man, if we have a future at all we have to say
no to this bill. I am asking the committee to kill this bill
because if there is a future for Arizona it comes back to the
water, the spirit of Arizona. If we are Arizonans, then we know
that is important. Now, from what I understand a lot of these
companies are from foreign countries which would lead the other
side of the world.
This is America. We should make that decision ourselves. We
should learn from what has happened in the other part of the
world to know that what we need to do here, and it is to keep
America the way it is and to learn from each other so that we
can better America.
But, again, like I said, I am just asking on behalf of all
the tribes, White Mountain, Camp Verde, Tonto, Hualapai, and
Hopi and with my relative to my right, that we kill this bill
because for the betterment of Arizona, and for the betterment
of our people and the generations that are yet to be born which
is very important. Thank you.
Mr. Grijalva. Thank you, Mr. Chairman.
Now, let me turn to Mr. John Rickus, President, Resolution
Copper. Welcome, sir.
[The prepared statement of Mr. Nosie follows:]
Statement of The Honorable Wendsler Nosie, Sr.,
Chairman of the San Carlos Apache Tribe
My name is Wendsler Nosie Sr. I am Chairman of the San Carlos
Apache Tribe. Thank you for the opportunity to submit testimony to the
Subcommittee on National Parks, Forests and Public Lands concerning the
Southeast Arizona Land Exchange and Conservation Act of 2007 (H.R.
3301).
The Tribe is submitting this testimony to express its strong
opposition to the legislative land exchange proposed by H.R. 3301,
which would allow foreign owned mining giants, Rio Tinto PLC (UK) and
BHP Billiton Ltd (Australia), to desecrate the aboriginal homeland of
the Apache People and acquire and mine approximately 3,025 acres of
public lands near Superior, Arizona. H.R. 3301 would also bypass the
``hard look'' required by the National Environmental Policy Act, 42
U.S.C. Sec. 4321 et seq. (NEPA) and other important environmental and
cultural resource protection laws.
The lands to be acquired and mined by Rio Tinto and BHP Billiton
under H.R. 3301 are referred to by non-Indians as Oak Flat and Apache
Leap. These lands are sacred and holy places. So too is the nearby area
known as Devils Canyon which also will be desecrated if this
legislative land exchange is approved. The Apache People, as well as
other Native Nations in Arizona and elsewhere, including the White
Mountain Apache Tribe, the Yavapai-Apache Nation, the Tonto Apache
Tribe, the Hopi Tribe, the Hulapai Tribe, and the Mescalero Apache
Tribe in New Mexico, are compelled to oppose H.R. 3301, not only for
our People, but for all of the people who pray that the unique features
and habitat of Oak Flat, Apache Leap, and Devils Canyon will continue
to be preserved for future generations.
The Holy and Sacred Sites of Oak Flat, Apache Leap and Devils Canyon
Well before Oak Flat, Apache Leap, and Devils Canyon were
appreciated for their unique habitat and features by hikers, bird
watchers, off-road enthusiasts, and rock climbers, these Lands were
home to the Apache People. In our native language Oak Flat is called
Chich'il Bildagoteel, and it lies in the heart of T'is Tseban country.
The Oak Flat area is bounded in the east by Gan Bikoh or Crown Dancers
Canyon, and in the north by Gan Diszin or Crowndancer Standing. These
canyons are called ``Devils Canyon'' and ``Queen Creek Canyon'' by non-
Indians.
For as long as may be recalled, our People have come together here.
We gather the acorns and plants that these lands provide, which we use
for ceremonies, medicinal purposes, and for other cultural reasons. We
have lived throughout these lands, and the Apache People still come
together at Oak Flats and Apache Leap to conduct religious ceremonies
and to pray or take rest under the shade of the ancient oak trees that
grow in the area. The importance of these lands has not changed. These
are holy, sacred, and consecrated lands which remain central to our
identity as Apache People.
In the nearby area called Devils Canyon, we have placed marks,
which are symbols of life on Earth, on the steep ledges and canyon
walls that rise high above the stream that has carved deep into the
Canyon, and we buried our ancestors in the Canyon's heart. The
escarpment of Apache Leap, which towers above nearby Superior, is also
sacred and consecrated ground for our People for a number of reasons,
many of which are not appropriate to discuss here. You should know,
however, that at least seventy-five of our People sacrificed their
lives at Apache Leap during the winter of 1870 to protect their land,
their principles, and their freedom when faced with overwhelming
military force from the U.S. Calvary which would have required them to
surrender as prisoners of war.
The traditional cultural significance of these lands, as well the
presence of other historic sites on the lands of Oak Flat and Apache
Leap, and in Devils Canyon, render these landscapes and sites eligible
for inclusion on the National Register of Historic Places under the
National Historic Preservation Act, 16 U.S.C. Sec. 470 et seq. (NHPA).
Yet, allowing Rio Tinto and BHP Billiton to acquire and mine these
lands through the legislative land exchange proposed by H.R. 3301 would
destroy the cultural and historical significance of these lands under
the NHPA, and desecrate this place of profound religious importance for
our People. Rio Tinto and BHP Billiton ask Congress to approve this
exchange for the single-minded purpose of providing the best possible
profit to the shareholders of two foreign mining companies, which have
no identity or loyalty to the United States, and which will suffer no
adverse consequences for their profit.
The Apache People cannot, under any circumstances, support this
result, especially where the devastating impacts from the mining
activities to be conducted on, around, and deep underneath this sacred
place will be felt forever once the mining is finished, leaving our
future generations to suffer the legacy of damage left behind.
If enacted, H.R. 3301 would bypass the laws enacted by Congress for
federal land exchanges. Congress has insisted that the normal
administrative land exchange process must include Tribal consultation,
meaningful public input, and close scrutiny of the proposed exchange
and mining project under NEPA and other environmental and cultural
resource protections laws, including, but not limited to, the NHPA, the
Endangered Species Act, 16 U.S.C. Sec. 1531 et seq. (ESA), the Native
American Graves Protection and Repatriation Act, 25 U.S.C. Sec. 3001 et
seq. (NAGPRA), the Archaeological Resources Protection Act, 16 U.S.C.
Sec. 470aa et seq. (ARPA), and the American Indian Religious Freedom
Act 42 U.S.C. Sec. 1996 et seq. (AIRFA). In addition, the federal
decision makers would have to consider less harmful and environmental
damaging alternatives. The rationale and justification for this special
legislative land exchange has never been explained by the supporters of
H.R. 3301.
The Unique Environments of Oak Flat, Apache Leap, and Devils Canyon Are
An Important Refuge for Plants and Animals and a Place of Peace
and Solitude for Its Visitors
Since time immemorial, our People have understood the unique beauty
and importance of Oak Flat, Apache Leap, and Devils Canyon. In more
recent history, the importance of these lands has been recognized by
scientists, biologists, and outdoor enthusiasts. Tourists from Arizona,
and indeed, all over the world, travel to this unique region of Arizona
to see and experience the beauty of these places.
Deep pools of water are captured at the bottom of Devils Canyon as
it slices through the high desert on its way to Mineral Creek and
eventually to the Gila River. These pools provide a cool and safe home
for a diverse number of plants and animals. The region, like all of
Arizona, is suffering under a long period of drought. The water which
still courses through Devils Canyon has become a precious ribbon of
life. The Canyon provides some of the last suitable habitat for a large
number of animal and plant species--species that can no longer find
refuge in other riparian areas in Arizona, as these areas can no longer
be counted on to provide the most important element of life for all
beings--water.
The flows in Devils Canyon and throughout the region, will be
depleted and subject to contamination if Rio Tinto and BHP Billiton
acquire the lands of Oak Flat and Apache Leap through the land exchange
proposed by H.R. 3301. Given the fragile state of Arizona's water
supply, certainly these concerns should be subjected to close scrutiny
through the normal environmental review process established by Congress
in NEPA and other environmental laws. These protections would be
bypassed by H.R. 3301.
Oak Flat and Apache Leap sit at an approximate elevation of 4,200
to 4,600 feet above sea level, making it a cool respite for travelers
from Phoenix who visit the area as Highway 60 skirts Oak Flat
Campground before running through Devils Canyon. The campground and
picnic area at Oak Flat are surrounded by large boulders and towering
outcrops, while in the campground and picnic area below, ancient oak
trees provide shade for hikers, campers and picnicking families, and
give crucial sanctuary for many important bird species--a fact that has
been well documented by local Audubon societies.
The unique and sensitive ecosystem of Oak Flat is not only fertile
ground for medicinal plants and herbs essential to the cultural and
religious practice of the Apache People, but the endangered Arizona
Hedgehog cactus (Echinocereus triglochidiatus var. arizonicus), which
is listed under the Endangered Species Act, also inhabits the Oak Flat
area. Other threatened and endangered species are known to be in the
area as well, including the Lessor long-nosed bat and the Chiricahua
leopard frog. Under H.R. 3301, however, the land exchange and resulting
mining project could be constructed and operated without compliance
with the federal consultation requirements required by the Endangered
Species Act.
The importance of Oak Flat was recognized in 1955 when, through the
efforts of the Eisenhower Administration, 760 acres of Oak Flat, known
as ``Oak Flat Campground'', were withdrawn from all forms of
appropriation, including mining, under the public land laws through
Public Land Order 1229 (PLO 1229). This was done despite the fact that
Oak Flat Campground was already located in the heart of an active
mining district. Since this time, mining interests have attempted to
push back or set aside the protections for Oak Flat found in PLO 1229
on several occasions. Despite strong pressure, federal decision makers
have consistently rejected such attempts, choosing instead to preserve
the important values of Oak Flat for future generations. There is no
justification for Congress to abandon its responsibility to protect
these treasured lands today.
The protections for Oak Flat mandated by PLO 1229 remain just as
valid today as when they were first issued in the 1950s. If these lands
are exchanged by H.R. 3301, and acquired by Rio Tinto and BHP Billiton
for their mining purposes, the unique values of Oak Flat will be
destroyed forever. Despite this fact, H.R. 3301 fails to provide any
legal basis or justification for Congress to override the legal
authority of this important public land order.
Overview of the Resolution Mining Project to Be Facilitated by H.R.
3301
The details of Rio Tinto's and BHP Billiton's plans to mine the Oak
Flat and Apache Leap Area are not fully known. Although a mining plan
would normally be required if the exchange was conducted pursuant to
the requirements of an administrative land exchange and the Federal
Land Policy Management Act of 1976, 43 U.S.C. 1701 et seq. (FLPMA),
such a plan has not been publicly released. In addition, the exact
location of the proposed project footprint and the lands to be acquired
by Riot Tinto and BHP Billiton have never been disclosed.
H.R. 3301 references a map titled ``Southeast Arizona Land Exchange
and Conservation Act--Federal Parcel--Oak Flat'' dated January 2005, as
the description of the approximately 3,025 acres of land located in
Pinal County, that Rio Tinto and BHP Billiton would acquire from the
Tonto National Forest for their mining operations, which includes the
760 acres of Oak Flat Campground, as withdrawn by Public Order No.
1229. See H.R. 3301, Sec. 3(3). It is significant that Rio Tinto and
BHP Billiton have not made the legal description or map of the lands
which they are asking Congress to give them through H.R. 3301 readily
available for public review. To the knowledge of the Apache Tribe,
these companies also have not made the legal description or map of
these lands readily available to Congress along with the proposed
legislation.
In addition, H.R. 3301 describes a 695 acre ``conservation
easement'' area for Apache Leap, within the 3,025 acres of federal land
that would be acquired by Rio Tinto and BHP Billiton, as depicted on a
map titled ``Apache Leap Conservation Easement Area,'' dated November
2006. Again, the companies have not made this map or the legal
description of the 695 acres of lands in this conservation easement
area readily available to the Apache Tribe or public, and quite
possibly Congress. While the Apache Tribe objects to this ``Apache Leap
Conservation Easement Area'' because it will not in fact protect this
sacred and holy place of the Apache People, we also object because both
the Tribe and the public have not been provided full disclosure of the
boundaries and location of these lands.
Although (a) the precise location of the lands to be acquired and
mined are unknown; and (b) the details of Rio Tinto's and BHP
Billiton's mining plans for Oak Flat and Apache Leap have not been
disclosed, the following aspects of the project seem clear, based upon
the limited explanations of the project recently made available on the
website of Resolution Copper, Resolution Copper Mining, LLC (Resolution
Copper) (the named joint venture of Rio Tinto and BHP Billiton) see
www.resolutioncopper.com, (last visited 10/25/2007), as well as a
review of certain permit application documents submitted to Arizona
Department of Environmental Quality (ADEQ) by Resolution Copper:
Resolution Copper is a joint venture of Rio Tinto and BHP
Billiton. Resolution Copper is the successor in interest to Magma
Copper Company (and certain earlier mining interests) which previously
conducted copper mining in the area proposed for the Resolution Copper
project, including in the area just west of Oak Flat and near Superior,
Arizona. While a large mine shaft (known as Shaft No. 9) was drilled in
1973 after a massive copper ore deposit was discovered approximately
7,000 feet below the surface of the ground, the large copper ore
deposit was never developed.
After Resolution Copper was formed by Rio Tinto and BHP
Billiton, the foreign mining giants turned their attention to whether,
and by what means, the massive copper ore body located somewhere below
Oak Flat could be extracted from deep within the earth. Despite the
incredible opportunity for profit the ore body represents, they quickly
settled on one of the oldest, cheapest, most dangerous, and
environmentally damaging mining methods available in the industry
today. This method is known as block-caving. By using this method,
Resolution Copper's own website reveals that they could extract up to
600,000 metric tonnes of saleable copper from the mine every year for
at least 40 years before the ore body would be exhausted.
Under today's copper prices, listed on the London Metal
Exchange on 10/25/2007, the saleable copper extracted from these public
lands (if these lands are exchanged to Rio Tinto and BHP Billiton),
would have a value of around $185.6 Billion Dollars. The appraisal
requirements of H.R. 3301 do not adequately ensure that the public will
receive fair value for these minerals.
Through block-caving, Resolution Copper would develop a
series of tunnels deep below these sacred lands, and directly below the
massive ore body, which is located, in part, underneath Oak Flat and
Apache Leap. Using blasting and other techniques over the 40+ years of
the mine, Resolution will break up and remove the ore body from the
ground for further processing, creating an enormous void in the Earth
that will eventually collapse in on itself, causing significant surface
subsidence throughout the project area, including at Oak Flat and
Apache Leap, and possibly Devils Canyon, Highway 60, and elsewhere. It
is unknown if closure plans for the project have been prepared for the
Resolution Copper Project.
The Resolution Copper Mining Project Will Result in Massive Surface
Subsidence and the Desecration and Destruction of the Oak Flat
Area, Apache Leap, and Devils Canyon Despite the Proposed
``Conservation Easement'' Inserted in H.R. 3301
Under the normal requirements for a land exchange in accordance
with NEPA and FLPMA, Congress would require federal decision makers to
conduct interdisciplinary studies and closely scrutinize the inevitable
surface impacts of the mining project on Oak Flat, Apache Leap, and
nearby Devils Canyon. They would be required to consult with the Apache
Tribe and interested members of the public throughout the process, and
would have to consider the impact of the surface subsidence on the many
eligible sites and landscapes found in this area as required by the
NHPA and other laws. They would also be required to evaluate the effect
of surface subsidence on the traditional cultural and religious
elements of this landscape for the Apache People. Rio Tinto and BHP
Billiton seek to have Congress exempt them from all of these important
requirements of the law through H.R. 3301.
The Apache People do not accept the purported ``conservation
easement'' found in Sec. 6 of the proposed legislation as a substitute
for the complete protection of Oak Flat, Apache Leap, and Devils
Canyon. The holy and consecrated nature of these places are not
embodied solely in the physical feature known as Apache Leap. Oak Flat
and nearby Devils Canyon are also holy, sacred and consecrated grounds.
They are all in their place in a unique and irreplaceable region. The
traditional cultural and religious values of these places for the
Apache People, and the collective integrity of the entire area as a
whole, will be destroyed by the surface subsidence and other aspects of
the mining proposed by Resolution Copper.
Even if Apache Leap was protected from subsidence by the proposed
conservation easement (which it is not), this important cultural,
religious and historic site would eventually be surrounded by 2,330
acres of land that will be irretrievably damaged and defiled by the
proposed mining project. This includes the lands of Oak Flat and nearby
Devils Canyon. This would be akin to leaving the sanctuary of a church
intact, but allowing for the desecration and destruction of the rest of
the church, which destroys, in itself, the purpose of the church as
community gathering place and place of worship.
While H.R. 3301 would purport to prohibit ``commercial mineral
extraction'' from under the proposed conservation easement, it does not
prohibit Resolution Copper from tunneling under Apache Leap or from
conducting other below ground operations directly below the escarpment.
In addition, nothing in H.R. 3301 would require Resolution Copper to
cease its mining operations and block-caving activities in the
surrounding area should these operations and activities show signs of
damaging or desecrating Apache Leap. Indeed, under Sec. 6, the
responsibility of maintaining and preserving Apache Leap would be
shifted to the grantee of the conservation easement. Resolution Copper
would be relieved of any obligation to change its mining plan or
operations to avoid harming this sacred place.
These serious problems are multiplied by the fact that H.R. 3301
would bypass the normal federal requirements of NEPA and other federal
laws enacted by Congress--laws that would normally require Resolution
Copper to perform adequate studies and conduct modeling in order to
predict how their mining activities will impact surrounding surface
features. Under H.R. 3301, impacts to Apache Leap would only be known
when and if they occur. By then it will be too late.
Furthermore, while Rio Tinto and BHP Billiton ``promise'' today
that they will change their mining methods if Apache Leap is
threatened, their promises ring hollow to us. The risks of massive
surface subsidence presented by block caving are well documented. Once
these lands are in the private hands of Rio Tinto/BHP Billiton, it will
be too late for the government, the Apache Tribe, or the public to do
anything if these foreign mining companies break their promise or
discover that their hopeful predictions are wrong.
In addition, the foul environmental track record and history of
shameful treatment of indigenous people by Rio Tinto and BHP Billiton
are well known. Their record speaks volumes.
Both companies' operations over the years have left a wake of
environmental destruction, human rights complaints, and lawsuits filed
worldwide. Here in the United States, the Greens Creek Mine in Alaska
(owned by Rio Tinto and two other companies) is alleged to be that
state's second largest discharger of toxic waste, releasing 59 million
pounds of toxic chemicals in one year, and violating the Clean Water
Act 391 times. In the United Kingdom, Rio Tinto's Capper Pass smelter
dropped an estimated 1.3 pounds of lead and other emissions on area
residents each week during its operation, leading to a settlement
agreement with hundreds of claimants in which the company refused to
accept blame, but provided compensation to those with cancer and other
illnesses.
On the other side of the world, current and former residents of
Papua New Guinea were compelled to file suit in United States federal
court against Rio Tinto, alleging violations of international law,
including war crimes and crimes against humanity in Rio Tinto's
operation of a large scale mine in that country. In relation to another
mining operation in Papua New Guinea, villagers sued BHP Billiton for
more than $4 Billion in damages for the destruction of the Ningerum
people's traditional lands in which they have lived since time
immemorial. BHP Billiton eventually was forced to abandon the
destructive mining project after studies showed that the operation was
causing great environmental harms, but the company is accused of
failing to see that the project was properly managed upon its
departure. Villagers are no longer able to safely eat locally harvested
fish or food grown from their own gardens. It is estimated that it will
take 300 years to clean up the area of the contamination which the
mining operation caused.
It is often stated that history is prophesy. In this case, the
historical conduct of Rio Tinto and BHP Billiton provide no assurances
that these companies will keep their promise to protect Apache Leap, or
for that matter, to protect the environment and respect the traditional
culture and religious values of the Apache People.
Finally, the conservation easement proposed by H.R. 3301 for Apache
Leap does nothing to address the impacts of the mine to the surface and
groundwater supply in the region. It also fails to address the imminent
threat of environmental contamination to the surrounding soils and
sediments, and the surface and groundwater presented by this massive
mining project. These are extremely serious consequences which, under
H.R. 3301, would not be studied or modeled by Rio Tinto and BHP
Billiton.
The Resolution Copper Mining Project Will Dangerously Deplete
Groundwater and Surface Water Supplies Throughout the Region
The massive mining operation to be facilitated by H.R. 3301
threatens to dangerously deplete surface and groundwater supplies
throughout the region--water supplies that are already relied upon and
desperately needed by others in Arizona. H.R. 3301 does not require
Resolution Copper to perform any modeling or proper studies of the
impact of their project on the regional water supply and hydrology. To
date it is unknown if such work has been undertaken. That which is
known is briefly summarized below.
The copper ore body is estimated at its highest point to
be located 7,000 feet below the surface; however, because the actual
surface of the Earth at Oak Flat and Apache Leap already sits between
4,100 feet and 4,600 feet above sea level, the top of the massive ore
body appears to be actually located at approximately 3,000 feet below
sea level.
Given the depth of the ore body, as well as its immense
size, throughout the 40+ year life of the mining project, Resolution
Copper will have to aggressively conduct extensive ``dewatering''
activities in order to continually pump and remove the surface water
and groundwater which will increasingly migrate into the enormous
cavity created by the removed ore and waste rock (and the extensive
tunnel system needed for the mine), nearly all of which will be located
well below the elevation of the streams in the region, and will cut
through the region's groundwater aquifers.
This depletion of the regional groundwater supply can be
described as a ``bathtub effect'', in which surface water, tributary
groundwater, and aquifers located above, beside, and beneath the
excavated ore body and mining tunnels (on the outside edges of the
bathtub) constantly migrate to and from the bottom of the bathtub (the
vacant ore body and mining tunnels). As this process continues over the
40+ year life of the project, the mine will deplete many billions of
gallons of water from the surface water and groundwater throughout the
region, including depleting (and/or contaminating) springs sacred to
the Apache People. Neither Rio Tinto nor BHP Billiton have the legal
right to disrupt, deplete or contaminate this water under any law.
Finally, the alteration of both the subsurface and the
surface geological structure of this area as the result of the block-
caving process and imminent surface subsidence (which will take place
as gravity and the weight of the Earth above the enormous cave created
by this mine cause the cave to collapse in on itself) will alter the
natural state of the aquifers and surface drainage of the watersheds
throughout the region forever.
A microcosm of the dangers to the regional water supply presented
by a mine of this magnitude has already been realized by Resolution
Copper as it struggles to dewater the deep mine shaft known as Shaft
No. 9, located just west of Oak Flat. Shaft No. 9 was drilled by
Resolution Copper's predecessor in interest in 1973. According to
permit application documents filed by Resolution Copper with the
Arizona Department of Environmental Quality, Shaft No. 9 was drilled to
an approximate depth of 800 feet below sea level. Shaft No. 9 was
originally pumped free of water through of process called mine
``dewatering.'' However, when the dewatering process was stopped,
surface and groundwater flooded the Shaft.
Resolution Copper estimates in its permit application documents
that it will take at least 18 months to 2 years to pump all of the
migrating surface and groundwater out of Shaft No. 9, in order to
facilitate mining operations. To do this, Resolution Copper predicts it
would be required to pump at a rate of 2,500 gallons per minute (for 18
months to 2 years) just to initially dewater the Shaft. To keep Shaft
No. 9 dry after initial dewatering, Resolution Copper estimates it
would then have to remove water from the Shaft at a rate of 300 to 800
gallons per minute throughout the 15 year life of the Shaft. If Shaft
No. 9 is kept dry for the 15 year life of the Shaft, this single mine
shaft, by itself, will permanently remove and deplete over 8 billion
gallons of water from the regional water supply. This would be enough
to supply at least 46,900 Arizona homes for an entire year.
The problem of depletion to the regional water supply demonstrated
in microcosm by Resolution Copper's Shaft No. 9 represents a very small
fraction of the total depletion to the water supply which will be
caused by the ``bathtub effect'' created by Resolution Copper's tunnels
and shafts, and the removal of the copper ore body itself, which is
located at least 3,000 feet below sea level. This problem will increase
over the 40+ year life of the project, and it will continue forever
after Rio Tinto and BHP Billiton remove and sell the copper and other
metals from the mine and wire their profits to locations outside the
United States. We Americans will be left with an ever increasing toxic
stew of hazardous mine wastes, contaminated water, and the inevitable
collapse of the area. Indeed, the water found in Shaft No. 9 has
already been shown to be contaminated by Arsenic, Nickel and Beryllium.
Even if these heavy metals are removed through treatment, the water
from Shaft No. 9 is likely to be unsafe to discharge into nearby Queen
Creek because of dangerously high levels of pH and Total Dissolved
Solids. It also cannot safely be used for irrigation without first
being blended with water of a better quality.
The threat to the regional water supply created by dewatering the
mine will also be multiplied by the construction of stormwater
retention and impoundment features and other small dams and diversion
channels, which are designed to temporarily detain any rainfall or
other sources of water (such as streams and washes) within the
footprint of the project to avoid any discharge of contaminated water
into adjacent or nearby creeks and streams. Migration to these water
sources, however, will nevertheless happen over time. In addition, the
mining process itself will consume enormous amounts of water. As noted
above, Resolution Copper does not have the legal right to this water.
The serious depletion problems also cannot be solved by the use of
Central Arizona Project Water, as Resolution Copper may suggest. The
bulk of CAP water is already dedicated and committed to other uses and
users in Arizona, including for use in future Arizona Indian water
rights settlements. There simply is not enough CAP water to meet
Resolution Copper's demand for this giant mining project. In addition,
the ``banking'' of CAP water that is purportedly being undertaken by
Resolution Copper, will not eliminate the burden of this mining
operation on the regional water supply, as CAP water is banked at
locations near Phoenix, Arizona, for later withdrawal in the Phoenix
Active Management Area. This is, of course, far from the area of the
proposed mining project near Superior, Arizona. Therefore, there is no
enhancement to the local water supply by virtue of Resolution Copper's
``banking'' CAP water. Any inference by Resolution Copper that there
will be sufficient water under the legal control of Resolution through
its CAP banking to conduct its mining operations would be false.
The dangerous limits to Arizona's water supply are well known. The
demands on this finite water supply only increase under the continued
pressure of drought, a fast growing population, and other additional
demands from development and mining. The impacts on the regional water
supply presented by the Resolution Project have not been studied or
subjected to public review and scrutiny. Under the legislative land
exchange proposed by H.R. 3301, such studies and mandatory public
review would not be required. It is clear that the impacts to the
regional water supply will be real and substantial. It would be a
dangerous leap of faith to facilitate this land exchange without
studying this matter in great detail and providing the results of such
studies to the public for review.
The Project Threatens to Contaminate the Surface and Groundwater and
Sediments and Soils of the Region
Resolution Copper has not prepared, or at least has not made
publicly available, a mining plan or mine closure plan for this massive
mining project. If they have performed studies or other assessments
regarding the project's potential to contaminate the surrounding area,
we have not seen them, and we serious doubt that Congress has seen
them. We also have not seen the details of the environmental
protections (if any) that Resolution Copper may intend to put in place
if Congress allows them to circumvent federal law to acquire and mine
these lands. Certainly, the protections do not appear in H.R. 3301.
The United States' short-term experience with mines of this type
does not provide it with adequate information to evaluate the long-term
and irreparable impacts of such a large scale block-caving operation
conducted deep in the Earth--impacts that may take many centuries to
manifest. In fact, the United States' experience with any mining
technique is just a little over 200 years old. Yet, we are only now
experiencing some of the disastrous results of early Spanish, Mexican,
and American mining practices in the west, which will compound over
time.
Mining operations, especially large scale copper mines like the
block-caving operation proposed by Resolution Copper, eventually result
in the contamination of the surface and groundwater (and sediments and
soils), not only in the immediate area of operation, but often,
throughout the adjoining and related aquifers. It is simply not a
matter of ``if'', but ``when.'' For example, groundwater is frequently
contaminated when water from the mining project containing heavy metals
and other contaminants migrates from the project into surrounding
aquifers. Surface water is contaminated when liners leak, pipes burst,
or stormwater impoundments fail. These problems also result in
contamination to the sediments and soils of the region. We have
experienced these dangerous events with unfortunate frequency in
Arizona and New Mexico.
The threat of significant environmental contamination presented by
the Resolution Project, coupled with the cumulative environmental
effects of other significant historic and future mining activities in
the region, must not be lightly cast aside by Congress, or others who
may be blinded by Resolution Copper's promise of short term economic
gain and employment. The dangers of environmental contamination
presented by this massive mining project are very real. H.R. 3301 would
bypass the requirement that these dangerous impacts be studied or
considered and subject to public scrutiny. H.R. 3301 would also
foreclose the possibility that less dangerous alternatives be
considered. This is not acceptable to the Apache People, and it should
not be acceptable to Congress, as the representative of the American
People.
No Justifiable Rationale Exists for Avoiding the Normal Administrative
Land Exchange Process in Favor of H.R. 3301
Rio Tinto and BHP Billiton have failed to provide any meaningful
reason why the legislative land exchange proposed by H.R. 3301 is
justified. They have not explained why the ``hard look'' required by
NEPA and other important environmental and cultural resource protection
laws should be bypassed through H.R. 3301. For the Apache People, there
is no reason.
The primary justification relied upon by Rio Tinto and BHP Billiton
to support this massive mining project appears to be its potential to
create jobs for the local community of Superior, Arizona, and its
neighbors.
While it is correct that the construction and operation of the
Resolution Copper mine will create jobs in the short term (numbers vary
considerably on the estimated total amount of jobs, type of job, and
terms of employment), the truth is that the jobs created by this mine
will not be filled by people from the local Superior community or even
neighboring towns.
Resolution Copper, like other mining companies such as Phelps Dodge
Corporation (now owned by Freeport McMoRan Copper & Gold Inc.), Teryl
Resources, and others, are developing and expanding their copper mining
operations throughout Arizona due to increased copper prices. Hundreds
of job openings for these mining operations have yet to be filled by
these companies, who are now finding that they must recruit employees
from as far away as Phoenix or Tucson, and in some instances, from
outside the State. Hefty signing bonuses are being offered for some
jobs, and some mining companies, like Freeport McMoRan, have created
programs which would allow employees who have homes in Phoenix and
elsewhere to live at the mine during the week and return to their
families on the weekends. If local job creation is one of the primary
justifications for the Resolution Copper project, than it would seem
that this need has already been met by other mining companies in the
area.
Finally, it should be noted that by Resolution Copper's own
accounts, it is only in the ``Pre-feasibility'' phase of development
for the mining project. See www.resolutioncopper.com/res/whoweare/
project_development_steps.pdf (last visited 10/26/2007). In fact,
Resolution Copper does not intend to begin mine construction until the
year 2013.
Quite simply, there is no urgent need for Congress to act on the
legislative land exchange proposed in H.R. 3301. If Rio Tinto and BHP
Billiton desire to acquire Oak Flat and Apache Leap for their mining
project (which the Apache Tribe urges should never be allowed),
sufficient time exists for these foreign mining giants to follow the
established federal administrative land exchange process (which all
Americans normally must follow), which would require a ``hard look'' at
this project under NEPA and other laws, and consideration of the
profound concerns that the Apache People and members of the public
maintain about this project.
The Apache Tribe understands the role that mining has played in
Arizona's brief history as a State. However, there are some places in
the world that simply should not be destroyed or desecrated under any
terms or for any reasons. Oak Flat, Apache Leap, and Devils Canyon are
some of these places. On behalf of the Apache Tribe, and the Native
Nation's named earlier, we urge you not to support H.R. 3301 in any
form, and to take all actions within your power to protect these holy,
sacred, and consecrated lands from harm.
______
STATEMENT OF JOHN RICKUS, PRESIDENT,
RESOLUTION COPPER
Mr. Rickus. Thank you, Mr. Chairman and members of the
committee. My name is John Rickus, I am the President of
Resolution Copper based in Superior, Arizona. I want to thank
you for the opportunity to present the support of the bill as
it is an important step toward the development of a large
underground copper mine in the historic mining district.
If you look up at the screen you will see the deposit
exists in this area here, and this area is the old magma mine
that you can see there. The old body is an extension from the
old magma mine mineralization. Because of its depth at 7,000
feet below surface, it will be complex and take a considerable
period and money to develop.
I am going to focus on four issues: economic benefits,
environmental benefits, mitigation of stakeholder concerns and
fair value to the public.
Economic. We will spend over $10 billion in capital over
mine life. Mine will last for at least 40 years from the
commencement of production. It will generate 1,400 permanent
jobs, all of which will be high paying, and there will be
significant additional jobs during the construction phase. In
addition, there will be indirect jobs, and we anticipate that
this could be in the region of 6,000 to 7,000 additional jobs
in the region.
Our financial models indicate that the tax benefits to the
United States are substantial, and the tax return is several
times the return to the shareholders of resolution. This
project is large and is projected to produce 25 percent of the
domestic demand for copper in the United States, copper coming
from Arizona.
Second, environmental benefits. I have a net positive
environmental benefit in terms of acreage to the public and
Arizona. In 2004, we started a voluntary clean up of the
historical mining area which is to the north of Superior. We
started a voluntary clean up of this area which had been mined
since 1910. We are spending $50 million to clean up that area,
and we will have cleaned up 2,000 acres.
There were tailings dams, an old smelter, and so on, on
that site. We didn't have to do that until after our mine
closed, which will be around 2060 or so, but we did it as an
act of good faith now. The lands that we have pulled together
as has been previously mentioned have very high ecological
value, and we are offering 5,539 acres in return for 3,000 of
nonriparian land.
We will deposit tail ends in old open pit mines. There are
many in the region, and there is plenty of space. We anticipate
this will result in the re-landscaping of a considerable number
of acres way in excess of 3,000. Therefore, the land
potentially affected by mining will be half that which we
anticipate landscaping.
Mitigation. Our mining operations will have an impact in
the Oak Flat area. There is the campground there, and there is
the Oak Flat area in general. As was indicated, we will provide
$500,000 for a replacement campground, we will be looking at
alternative camp climbing domains and we are looking to ensure
that the climbers can climb in this area, which we own, for as
long as possible, possibly in perpetuity.
We are establishing working group with all the climbing
factions within Arizona. As you know, we are putting a
permanent conservation easement on Apache Leap--for those that
don't know it, it is this feature here--and we are including
some of our private land in that conservation easement.
Mr. Chairman and members of the committee, there may be
other areas of concerns to the Apache Nations. We have tried to
reach out as evidenced by the letters that we have submitted
for the hearing record, and we would welcome direct dialogue in
the very near future, and have always said that and have always
welcomed the Apache Nations into our offices, but they haven't
come as yet. The exchange provides fair value to the taxpayer.
Appraisal. We will use Department of Justice appraisal
methodology. The valuation of the land will ignore our
ownership of the mining claims, and we are paying for the full
value of Apache Leap and then placing it into conservation
easement. These are considerable concessions. There will be
full cash equalization.
If the appraisal indicates we owe additional monies it will
go into a special fund for Federal land in the Coconino, San
Pedro, Las Cienegas and Sonoran Desert. If it is the reverse
and the value of the land we are conveying is higher than the
land received that will be donated to the United States
government for purchasing land in Superior.
My last comment concerns royalties. We are of course aware
of the mine law reform legislation currently working its way
through this committee and the House. As previously stated,
even before this process we assumed that the up front payment
of fair value based on a royalty of the government. We would be
pleased to work with this committee as to how mining law reform
might relate to this land exchange and to deal with any changes
to that appraisal that may be necessitated by passage of such
reform.
The intent of this would be to ensure that the value is
fair, that there is not duplication of payment, to ensure that
the lands we have offered are fully credited and that the
public will receive these important offered lands as part of
the solution. So I reiterate, we are very willing to work with
this committee on these matters.
Thank you very much, and I would be happy to answer
questions afterward.
Mr. Grijalva. Thank you very much, sir.
For our last witness, Ms. Sandy Bahr from the Sierra Club.
Ms. Bahr?
[The prepared statement of Mr. Rickus follows:]
Statement of John Rickus, President, Resolution Copper Mining, LLC
Mr. Chairman and Members of the Subcommittee:
My name is John Rickus. I am the President of the Resolution Copper
Mining LLC (``Resolution Copper''), which is a company headquartered in
Superior, Arizona and which is owned by subsidiaries of Rio Tinto plc
and BHP-Billiton plc. I am here in support of H.R. 3301 and to briefly
describe the efforts we have made to ensure that the land exchange and
other provisions of H.R. 3301 are in the best interest of all the
parties involved, including the general public.
The goal of the land exchange, from our perspective, is for us to
acquire approximately 3,025 acres of National Forest land, which is
comprised of mining claims that we hold and an existing campground. For
ease of reference, I will refer to it collectively as the Oak Flat
parcel. As you can see from our display and the map attached to my
testimony, the Oak Flat parcel either abuts, or is heavily intermingled
with, private land that Resolution Copper already owns. Much of that
private land was the site of the old Magma underground copper mine,
which operated from 1912 to 1996 and produced 25 million tons of copper
ore. We are in the midst of spending an estimated $50 million to clean
up the old tailings and other remnants from that mine and we have spent
$15 million on the cleanup to date.
After the Magma Mine was closed in 1996, further exploratory
drilling revealed the existence of a very large copper deposit located
adjacent to the old mine workings, but 4500 to 7500 feet below the
surface of the Oak Flat parcel, where the temperatures are up to 175
degrees Fahrenheit. We will sink deep shafts and tunnels to access the
orebody in order to conduct the mining operations. When in operation,
the mine will provide approximately 25% of the nation's annual needs
for copper from a safe, domestic source and create 1400 permanent, high
quality technical jobs--several thousand jobs during mine construction,
and a very large number of service related jobs in the region. It will
also generate income, property, severance and other Federal, State and
local tax revenue that we believe will be several times the amount of
the value of this project to our company.
As I just indicated, developing a mine of this magnitude a mile to
a mile and a half beneath the surface is an extremely expensive and
financially risky proposition--involving $750 million in exploration
and feasibility work and $4 billion or more of capital investment,
before mine construction is finished and mining can commence to produce
minerals in commercial quantities. To justify this type of investment,
we believe it is prudent to first own the land where we will operate.
Fragmented land ownership simply does not promote efficient mine
permitting, development and operation. In addition, because we will be
intensively using the Oak Flat parcel for access, exploration and
development, much of it will lose its recreational value. Ownership of
that land will also enable us to provide the necessary protection of
the public from our mining operations.
The mine will be a deep underground mine. Unlike an open pit mine,
this mine will have minimal waste rock dumps. We will ship the ore from
Oak Flat using an underground tunnel with a conveyor to an existing
open pit mine site, where we will upgrade the copper ore to produce a
concentrate for sale or further processing. The concentration process
generates a waste sand known as tailings, that will fill up at least
one existing old open pit mine, which we will then reclaim and re-
vegetate. We believe that will be a very important long-term benefit to
the environment.
Now, we realize that when we ask to remove land from public
ownership, it is incumbent upon us to try and convey to the public
lands that have even greater environmental and other public values than
the lands we are receiving. We have worked with the Forest Service,
BLM, Arizona Game & Fish, and numerous Arizona conservation
organizations to achieve that in H.R. 3301.
As it now stands in H.R. 3301, Resolution Copper will convey 8
parcels of land, totaling approximately 5,539 acres, to the United
States in the exchange. Whereas most of the Oak Flat parcel is
relatively flat, and has no permanent water--the 8 parcels we have
assembled for exchange are exceptionally rich in ecological,
recreational and other values and many of them have significant year-
round water resources. The other attributes in these offered lands
include:
1) seven miles of river bottom and riparian land along both sides
of the free flowing San Pedro River, which is one of the most important
migratory bird corridors in the United States;
2) two miles of trout stream and other fish and wildlife habitat
along East Clear Creek in the Coconino National Forest;
3) possibly the largest, and most ancient, mesquite forest (or
bosque) in Arizona;
4) 956 acres of extremely diverse grassland habitat in the
Appleton-Whittell Research Ranch--an existing preserve jointly managed
by the Forest Service, BLM and the Audubon Society inside the Las
Cienegas National Conservation Area;
5) four in-holdings in the Tonto National Forest which have
significant riparian, ecological, cultural, historic and recreational
amenities, including populations of the endangered Arizona hedgehog
cactus, and a rare pond fed by a year-round stream; and
6) a 160 acre parcel to add to the proposed rock climbing
recreational area.
H.R. 3301 provides that we cannot acquire the Oak Flat parcel
unless we convey all 8 of the parcels to the United States, regardless
of value. If the 8 parcels appraise at more than the Oak Flat parcel,
H.R. 3301 requires that we donate the excess value to the United
States.
As a result, this land exchange is guaranteed to result in very
significant net gains to the United States in: 1) river bottoms and
riparian lands; 2) habitat, or potential habitat, for threatened,
endangered and sensitive species; 3) public recreational opportunities;
4) habitat for innumerable species of flora and fauna; 5) important
bird areas; and 6) year-round water resources--a rarity in many parts
of Arizona.
We have submitted letters for your record from various units of
local government, conservation organizations and other interested
parties either supporting the entire land exchange, or supporting
Federal acquisition of the 8 parcels we will be conveying to the public
in the exchange.
Mr. Chairman, we have also agreed to several provisions in H.R.
3301 that are designed to ensure that the taxpayers receive full fair
market value in this land exchange and that any facilities or
activities we displace in acquiring the Oak Flat parcel are adequately
replaced, or improved upon. I will briefly describe those provisions in
the order they appear in H.R. 3301:
Subsection 5(a) of H.R. 3301 provides that all appraisals
will be conducted in accordance with U.S. Department of Justice
appraisal standards, which are used for all Federal land transactions.
The Forest Service will write the appraisal instructions and all
appraisals must be formally reviewed and approved by the agency. This
means that the appraisal process will be under the government's
complete supervision and control.
We realize that mineral appraisals can be difficult,
especially where unpatented Federal mining claims are involved.
Accordingly, we have agreed to have the Oak Flat parcel, 75% of which
is overlain by our unpatented mining claims, appraised as if our mining
claims do not exist. That is a very significant concession on our part
and will guarantee that the taxpayers get the full fair market value
for the land they give up in the exchange. It should be noted that such
value is determined by the assumption that a royalty exists in favor of
the government, and which is then paid up front. That provision has
been in H.R. 3301 and its predecessors since inception, even prior to
the current mining law reform efforts. Paying that up front--by
delivery of the sensitive environmental lands--ensures that the
government receives this value without having to depend on future
operations for this return. This is, as previously noted, in addition
to the very substantial local, state and federal taxes that will be
paid by the operations.
To protect the portion of the Oak Flat parcel that
comprises Apache Leap, we have agreed to a permanent 695 acre
conservation easement for Apache Leap, which will preclude surface
development of the Apache Leap and which will prohibit us from mining
underneath the Apache Leap. The easement has been voluntarily enlarged
this year to include 105 acres of our existing private land. Note that
as drafted, we will receive no credit in the appraisal for the
easement. We understand that Apache Leap holds cultural and historic
importance to the Apache tribes and this is one of the main reasons for
the easement. H.R. 3301 contemplates that the easement will be held by
a governmental or NGO body, which may include the Apaches. We have also
provided a $250,000 endowment to administer the easement. As you know,
H.R. 3301 also states the intention of Congress that we enter into an
agreement with interested Apache to allow for continued acorn gathering
at the Oak Flat Campground and requires that the JI-Ranch parcel that
we will convey to the Forest Service as part of the exchange, will be
available for acorn gathering. In addition, we have on numerous
occasions both formally and informally indicated to a number of Apache
tribes that we stand ready to engage in dialogue with them to see if
there are other areas where we can address their concerns.
As for outdoor camping and recreation, H.R. 3301
specifies that the existing Forest Service campground at Oak Flat,
which has 16 minimally developed campsites, will be replaced with a new
campground or campgrounds, and Resolution Copper will pay up to
$500,000 of the costs thereof.
Also as you know, Mr. Chairman, portions of the Oak Flat
parcel and adjacent areas, including areas of our existing private
land, are areas currently used for rock climbing and bouldering. To
accommodate these activities, we have agreed to three separate actions.
First, subsection 8(b) of H.R. 3301 facilitates the establishment of a
new rock climbing State Park, if the State so chooses. We have already
spent in excess of $1.5 million to identify and develop the climbing
resource in the Park area, and to buy private land for inclusion in it.
Our road builders have studied the proposed access road to the Park,
and are confident we can build it to the specifications set forth in
H.R. 3301 for the $1 million we have pledged. Secondly, we signed a
private license agreement with the Access Fund that authorizes
continued rock climbing on two parcels of our existing private land
where climbers were previously trespassing, and on one parcel we will
acquire from the Forest Service. Thirdly, we are in the process of
forming a climbers' working group to discuss ongoing access and
climbing issues and to expand and enhance these opportunities, so long
as it is safe to do so.
If the government appraisal process determines that we
owe additional funds in the exchange, section 5(b) of H.R. 3301
requires us to pay full cash equalization into a special fund to be
used for the acquisition of new Federal land in either the Coconino
National Forest, San Pedro River Corridor, Las Cienegas NCA, or in the
Sonoran Desert.
My last comment concerns royalties. We are, of course, aware of the
mining law reform legislation currently working its way through this
Committee and the House. As previously stated, even before this process
we assumed the up front payment of fair value based on a royalty to the
government. We would be pleased to work with the Committee as to how
mining law reform might relate to this land exchange and to deal with
any changes to that appraisal that may be necessitated by passage of
such reform. The intent would be to ensure that the value is fair, that
there is not duplication of payment, to ensure that the lands we have
offered are fully credited and that the public will receive these
important offered lands as part of the solution. So, we are very
willing to work with this Committee on these matters.
That completes my testimony. I very much appreciate the opportunity
to testify before you today and stand ready to answer any questions
that you may have. It is my hope that H.R. 3301 will now proceed with
all due pace so that we can continue the work on this critical project.
______
STATEMENT OF SANDY BAHR, SIERRA CLUB
Ms. Bahr. Mr. Chairman, members of the Subcommittee, for
the record, my name is Sandy Bahr, I am the Conservation
Outreach Director for the Sierra Club's Grand Canyon Chapter in
Arizona. I appreciate the opportunity to provide information on
H.R. 3301. My comments will focus primarily on the problems
with the exchange, the negative impacts of the mine it will
facilitate and why it is bad policy to avoid the National
Environmental Policy Act.
First, I would like to address the loss of Oak Flat picnic
and campground. H.R. 3301 allows Resolution Copper Company to
privatize Oak Flat. Oak Flat was recognized by President
Eisenhower as an important area back in 1955 when he signed
Public Land Order 1229. It specifically put this land off
limits to future mining activity and reserved it for
campgrounds, recreation and other public purposes.
Oak Flat provides many recreational opportunities for
Arizonans including for the people in the local communities.
Activities include hiking, camping, rock climbing and birding.
The area has four bird species that are on the National Audubon
Society's watch list of declining species that are of national
conservation concern. Also, the endangered Arizona hedgehog
cactus is found in the area. Oak Flat is an important part of
our history and also has significant values for Native peoples
as you have heard earlier.
H.R. 3301 rescinds Public Land Order 1229. In Section 10 of
the bill titled Miscellaneous Provisions it revokes any public
land order that withdraws Federal land. It is a bad precedent
and a bad message for the Congress to give up an area that has
been protected for more than 50 years. We are also concerned
about potential threats to Devils Canyon, which is nearby.
Devils Canyon provides important riparian habitat in a
state where much of our riparian habitat has been degraded or
destroyed. Considering its proximity to the proposed mine and
the amount of water the mine will utilize there are significant
risks of dewatering Devils Canyon.
H.R. 3301 allows Resolution Copper to bypass the National
Environmental Policy Act as would be required if this land
exchange was evaluated through the administrative process. An
administrative exchange would require an environmental impact
statement including an examination of alternatives, the
environmental impacts, the cumulative impacts and possible
mitigation of the impact.
Without it, there are key questions that are outstanding
including, is it necessary to give up Oak Flat for this mining
operation? If the information that Resolution has provided on
this proposed mine is accurate it will be a large copper mining
operation, perhaps the largest in Arizona and one of the
largest in the United States.
To allow the company to circumvent the National
Environmental Policy Act on such a large mine that has great
potential to negatively affect the surrounding environment and
to leave all those unanswered questions would be wrong. State
laws are not adequate to ensure this level of analysis. There
is no state environmental policy act and no act that looks at
the larger public interest relative to this exchange.
It is clear that Resolution Copper will benefit from the
exchange. It is less clear that the public is getting a fair
return or that it is worth the loss of important public lands.
It is difficult to understand how the exchange could move
forward without solid appraisals including on the value of the
copper itself.
Resolution has indicated that it is a large ore body. Their
website right now says 48 billion pounds of copper. If valued
at $3 per pound, the ore body would be worth $144 billion.
Another concern with the mine is its ultimate reclamation.
Arizona has relatively weak requirements in this area. Right
now our state contains over 100,000 abandoned mines and many
contaminated sites.
I just want to quickly touch on some of the inherent
problems of land exchanges. They can be effective tools, but
there are certainly many pitfalls. They should be used
judiciously. Even with administrative exchanges often the
public lands are under valued while the private lands are over
valued, and there have been numerous reviews to indicate that.
Arizonans have made it clear how they feel about land exchanges
by six times since 1990 rejecting land exchange authority for
the Arizona State Land Department.
In summary, I just want to say H.R. 3301 does not represent
a land exchange that is in the broader public interest. We lose
Oak Flat Campground. If an area that has been protected from
mining and other negative actions for over 50 years can be
given up so readily, what is next? What is really protected?
There is no real environmental analysis or significant public
involvement process, and there are many unanswered questions.
Answering them after the fact does not ensure the public's
interest is served.
The loss of Oak Flat and any protections for it and the
withdrawal of the protections in the bill, the failure to
provide an adequate analysis of the exchange up front, the
magnitude of the potential impacts of this land exchange, the
failure to include any appraisal or valuation of the minerals
up front and the potential threat to Devils Canyon and Queen
Creek, for all of those reasons, the Sierra Club is strongly
opposed to this land exchange. Thank you.
[The prepared statement of Ms. Bahr follows:]
Statement of Sandy Bahr, Sierra Club, Grand Canyon (Arizona) Chapter
Mr. Chairman, members of the Subcommittee, thank you for the
opportunity to provide information on H.R. 3301 Southeast Arizona Land
Exchange and Conservation Act of 2007. My comments will focus primarily
on the problems with the exchange itself and the negative impacts of
the mine it will facilitate. I will outline the concerns about the
particular bill, why it is bad policy to avoid the National
Environmental Policy Act review and analysis process, and also address
some of the inherent problems with land exchanges themselves.
Loss of Oak Flat Campground
First, I would like to address the loss of Oak Flat Picnic and Camp
Ground. H.R. 3301 will allow Resolution Copper Company (Rio Tinto--55%
owner--headquartered in the United Kingdom, and Broken Hill
Properties--45% owner--headquartered in Australia), which acquired the
old Magma Mine near Superior, Arizona to privatize Oak Flat Campground.
Oak Flat campground was recognized by President Eisenhower as an
important area back in 1955, when he signed Public Land Order 1229 (see
Exhibit A, PLO 1229) which specifically put this land off limits to
future mining activity and reserved it for camp grounds, recreation,
and other public purposes. Oak Flat provides many recreational
opportunities for Arizonans, including for those in the local
communities, and for others from around the country. Recreational
activities in the area include hiking, camping, rock climbing, birding,
bouldering and more (see Exhibit B, photo of Oak Flat)
Oak Flat is a key birding area. Four of the bird species that have
been sighted at Oak Flat are on the National Audubon Society's watch
list of declining species that are of national conservation concern
including the black-chinned sparrow, Costa's hummingbird, Lewis'
woodpecker, and gray vireo. The endangered Arizona Hedgehog cactus
(Echinocereus triglochidiatus var. arizonicus) also inhabits the Oak
Flat area and is threatened by this proposed mine.
Oak Flat is an important part of our history and also has
significant cultural values for native peoples, including for acorn
collection. Because of the significance of Oak Flat, its history of
providing a respite for travelers and those seeking relief from the
hubbub of the urban environment, the significance of the area for the
Apache people, and the important recreational opportunities it offers,
the Sierra Club is strongly opposed to this land swap.
In addition to privatizing this important area, H.R. 3301 also
rescinds P.L.O. 1229. In Section 10 of the bill, titled ``MISCELLANEOUS
PROVISIONS'', it revokes any public land order that withdraws Federal
land or the land to be conveyed to Arizona State Parks. It is
disturbing to see this withdrawal of the protection for Oak Flat.
Considering all the pressures on our public lands, the important
services and opportunities they provide, and the important respite from
the increasing urbanization they provide, it is a bad precedent and a
bad message for the Congress to give up to a mining company an area
protected by President Eisenhower more than 50 years ago.
Threats to Devils Canyon
Devils Canyon is located in the Tonto National Forest and on State
Trust Lands near the proposed mine, just northeast of the town of
Superior. It flows into Mineral Creek which is a tributary of the Gila
River. Devils Canyon provides important and all too rare riparian
habitat in a state where much of our riparian habitat has been degraded
or destroyed--most estimates indicate that more than 90 percent has
been lost to water diversions, groundwater pumping, and other
activities. It is an area enjoyed by hikers and climbers and those
seeking some relief from the heat. Sycamores and Arizona alders thrive
on Devils Canyon's water and also provide valuable habitat for
wildlife. (See exhibit C--photo of Devils Canyon.)
Considering its proximity to the proposed mine and the amount of
water the mine will utilize, between 17,000 and 19,000 acre feet of
water per year (see RCC website.), the risks of dewatering Devils
Canyon are significant. Banking Central Arizona Project water at a
remote location as the company is currently doing will not protect this
important riparian area.
No Meaningful Environmental Analysis
H.R. 3301 allows Resolution Copper Company to bypass the National
Environmental Policy Act (NEPA), as would be required if this land
exchange was evaluated through the administrative process. An
administrative exchange would require a NEPA Environmental Impact
Statement on the exchange itself, including an examination of
alternatives, the environmental impacts, the cumulative impacts
(including past and anticipated impacts in the area), and possible
mitigation of the impacts. This type of analysis helps the public
better evaluate whether they are getting a fair exchange and also
evaluate the true environmental impacts of such an exchange. A NEPA
analysis can identify a less environmentally harmful alternative as
well. It is clear that Resolution Copper Company (RCC) will benefit
enormously from this exchange. It is less clear that the public is
getting a fair return on the loss of Oak Flat, the possible damage to
Devils Canyon, and the threats to Apache Leap.
Because there is no real NEPA process associated with the exchange,
there is no opportunity for the public to review a Mining Plan of
Operation. Instead, what we have is a shifting landscape of different
answers to the same questions. We might argue with the agencies about
how much information and analysis needs to be done on the exchange in
an administrative process, but at least there is opportunity to make
that argument.
There are key questions outstanding on this proposal which make it
impossible to say the exchange is in the larger public's interest.
Where is all the mining waste going to go? What are they going to do
with the tailings? Is this a sulfide ore, which is often the case for
ore that is below the water table? If it is, how are they going to
address the acid mine drainage from the rock dumps? How are they going
to process the ore? At one point they suggested using the leach pad at
Pinto Valley, but if their estimates on the amount of ore are accurate,
they could only process a fraction of the ore at that leach pad. Are
they going to smelt the ore? If so, where? Clearly there are
significant air quality issues associated with that, not to mention
considerable energy use.
Resolution Copper Company indicates that they will complete an
Environmental Impact Study in 2009. That study will have little
relevance if this bill has already passed and the land exchange has
been consummated. If done properly and with a solid open public
process, an environmental analysis can inform the proposed action. A
study after the fact does not allow that, plus there will be no
opportunity to choose the no action alternative or a less
environmentally damaging alternative. We will not know the effects of
this proposed mine on Devils Canyon until after the fact. We will not
know if it is really necessary for the public to give up Oak Flat in
the exchange or if they can mine this ore body without it until after
the deal is done. The study after the fact might make people feel
better about the deal, but its value is negligible, at best, as it will
not change the outcome.
If the information that Resolution Copper Company has provided on
this proposed mine is accurate, it will be the largest mining operation
in Arizona. It would be larger than the Phelps Dodge Morenci Mine and
one of the largest working copper mines in the United States. To allow
the company to circumvent the National Environmental Policy Act on such
a large mine that has great potential to negatively affect the
surrounding environs and that has so many unanswered questions
associated with it, would just be wrong.
Value of the Land and the Ore
A critical issue that is not addressed by this legislation is the
value of the lands that RCC will acquire. There is no real discussion
of the known and anticipated mineral values on the U.S. Forest Service
(public) lands. It is difficult to understand how this land exchange
could move forward without solid appraisals, including on the value of
the copper itself. The Mineral Report and Feasibility Study help
provide the basis for the appraisal. The value of the exchange cannot
possibly be properly evaluated without that.
Resolution Copper Company has indicated that this is a large rich
ore body. The company's website indicated that there were 30 billion
pounds of copper last month. This month, the website says it is 48
billion pounds or 600,000 tons of copper per year for 40 years. That is
a huge shift in the numbers in just one month. If valued at three
dollars per pound, the ore body would be worth $144 billion. If a Net
Smelter Royalty of only three percent was applied for purposes of
placing a value on the minerals, RCC should be giving the public $4.32
billion in exchange lands. What they are offering is a tiny fraction of
that.
Weak Reclamation Requirements
Another concern with the mine is its ultimate reclamation. Arizona
has weak reclamation requirements and has seen the negative impacts of
mining for decades. Our state contains over 100,000 abandoned mines and
while there is a fund for addressing abandoned mines, there is little
allocated to it. We have many contaminated sites that are directly
attributable to mining including the Pinal Creek site, east of this
proposed mine, and the Iron King Mine, which has been proposed for
listing on the federal Superfund National Priority List.
The financial assurance mechanisms are not very strong either as
Arizona does not require cash or bonds or paid-up insurance, but
instead will accept ``corporate guarantees'' or a company's promise to
pay. If the company goes bankrupt before reclamation is complete, such
as is the case with some of the ASARCO mines, then the public, the
taxpayers, have to pay for any reclamation.
Inherent Problems with Land Exchanges
While land exchanges can be a tool for conservation, it is a
limited tool and the pitfalls are many. It should be used very
judiciously. Even with an administrative exchange that would include
examination of alternatives and would look at the environmental
impacts, it is difficult to determine if the public's interest is
really being served. Even though the federal land management agencies
are required to do thorough reviews and ensure that a trade is in the
public interest, there are significant problems. The General Accounting
Office (GAO) issued a report in June 2000 where it examined a total of
51 land exchanges, most of which occurred in the west (BLM and the
Forest Service: Land Exchanges Need to Reflect Appropriate Value and
Serve the Public Interest, GAO/RCED-00-73, June 2000.) The GAO auditors
found that often the public lands were being undervalued while the
private lands were being overvalued, resulting in significant losses to
taxpayers. The agency also found that many of these exchanges had
questionable public benefit.
The GAO discovered that there were some exchanges in Nevada in
which the nonfederal party who acquired federal land sold it the same
day for amounts that were two to six times the amount that it had been
valued in the exchange. While that would not necessarily be the case
here, we do know that the non-federal party is likely to make billions
of dollars off this land, far short of what the public will get in
return.
While the GAO was examining administrative exchanges, it noted that
there are inherent problems with exchanging lands no matter the
mechanism. In particular, it noted that there are no market mechanisms
to address the issues relative to value for value. The GAO indicated:
At least some of the agencies' continuing problems may reflect
inherent underlying difficulties associated with exchanging
land compared with the more common buying and selling of land
for cash. In land exchanges, a landowner must first find
another landowner who is willing to trade, who owns a desirable
parcel of land that can be valued at about the same amount as
his/her parcel, and who wants to acquire the parcel being
offered. More commonly, both landowners would simply sell the
parcels they no longer want and use the cash to buy other
parcels that they prefer. In this way, the value of both
parcels is more easily established when they are sold in a
competitive market, both parties have more flexibility in
meeting their needs, and there is no requirement to equalize
the values of the parcels. Difficulties in land exchanges are
exacerbated when the properties are difficult to value--for
example, because they have characteristics that make them
unique or because the real-estate market is rapidly
developing--as was the case in several exchanges we reviewed.
Both agencies want to retain land exchanges as a means to
acquire land, but in most circumstances, cash-based
transactions would be simpler and less costly.
They went on to say that program improvements could not address
these inherent difficulties and recommended that Congress ``consider
directing the agencies to discontinue their land exchange programs
because of the many problems identified and their inherent
difficulties.''
If land exchanges are ever suspended and these more market-oriented
mechanisms used, it would be critical that the agencies focus on
selling smaller parcels that are not contiguous with the larger public
lands and then use the dollars to finance acquisition of inholdings and
key ecological areas.
Land exchanges have been very controversial in Arizona, which may
be one more reason that large corporations do not want to go through
the National Environmental Policy Act process which includes
significant public involvement. Arizonans have made it clear how they
feel about land exchanges by rejecting six times land exchange
authority for the Arizona State Land Department.
In 2003, an independent entity, the Appraisal and Exchange Work
Group, was formed to review Bureau of Land Management (BLM) land
exchanges. The Work Group's report concluded that BLM's land appraisals
were inappropriately influenced by the managers wanting to complete the
deals and that these unduly influenced appraisals cost the public
millions of dollars in lost value in exchanges with private entities
and state governments.
One land swap resulted in an ethics violation investigation of
Kathleen Clarke, the BLM Director at the time. The proposed San Rafael
Swell land exchange would have cost federal taxpayers $100 million
because the BLM lands were so undervalued. The Office of Inspector
General's Report on the San Rafael Land Exchange found that several BLM
employees devalued the public lands and kept information from Congress
(Page 23 of Report).
Summary of Concerns about H.R. 3301
H.R. 3301 does not represent a land exchange that is in the broader
public interest. A large contiguous parcel of public land--3,025
acres--that includes Oak Flat Campground is conveyed to Resolution
Copper Company. Approximately 4583 acres is conveyed to the public,
some of it in rather small parcels, but even the larger parcel by the
San Pedro is significantly threatened by future nearby development.
It is pretty clear that President Eisenhower believed he had
protected Oak Flat when he issued the Public Land Order. If an area
that has been protected from mining and other negative actions for over
50 years, can be given up so cavalierly, what is next? This sets a
terrible precedent. This proposed land swap should be rejected and the
impacts of such a major action properly evaluated.
There is no real environmental analysis or significant public
involvement process. What will this do to Devils Canyon? Where will the
ore be processed? What about the rock waste? How will the concerns of
the native peoples be addressed? And most of all, what is the rush? Why
is there not time allotted for adequate public review, analysis, and
appraisal? Even if RCC started moving forward with plans to mine today,
it is unlikely they would be ready to mine this copper for several
years. There is plenty of time to do a thorough analysis and look at
the alternatives, the costs, the values of the lands--including
environmental and cultural--and to consider the public's concerns.
For these reasons and more, we oppose H.R. 3301.
Again, thank you for the opportunity to discuss this important
issue.
[NOTE: The exhibits submitted for the record have been retained in
the Committee's official files.]
______
Mr. Grijalva. Thank you very much. Let me start. Mr.
Chairman, Mr. President, thank you for being here today and
sharing your opinions and your views with us. Let me ask a
question that comes up all the time relative to the discussions
about this land exchange. Were either of the tribes that you
represent part of the initial discussions on this proposed land
exchange, if you wouldn't mind answering?
Mr. Bear. No, Ft. McDowell was not. For that matter, Ft.
McDowell was not contacted until about six months ago after a
meeting with Senator Kyl, and then there were attempts,
telephone calls that happened at that point by Resolution
Copper that we did not return because we did not feel at that
time that we were prepared to talk to Resolution Mining.
We feel at this time this is a congressional issue, that we
need to be here at this table with Congress to talk this out.
Thank you.
Mr. Grijalva. Mr. Chairman?
Mr. Nosie. Yes. San Carlos takes the same stand on that
because we were not contacted, and as far as the way we
understand is that it would be the United States government
contacting us on something highly this dramatic as far as where
the tribe stands, but at this point, no.
Mr. Grijalva. OK. There is a provision in the legislation
that would find an alternative site for the acorn gathering
should acorn gathering no longer be safe on the Oak Flat
parcel. Does the provision for alternative site address the
religious and cultural significant points that you made during
your testimony?
Mr. Bear. Mr. Chairman, let me kind of add a little more to
the last question, then I will answer this one. Further yet in
the question you asked earlier, RCC, Resolution Copper Company,
did not do their diligence in their process in answer to your
last question. Now, in answer to your question about the
replacement for acorn gathering, there is no replacement. As
you well know, land is land, and what it is, and what my people
hold, as I mentioned, in their hearts dear to their hearts.
That is a spiritual type thing that we as Native people do.
We believe that obviously God has given that land to us, and
that is there for all of us to benefit from.
Mr. Grijalva. Mr. Chairman?
Mr. Nosie. Chairman, it is the same thing. It is not the
acorn issue, it is the fact that it is a spiritual place. With
spirituality, everything is through a corridor, and you have to
really understand the religion to really know the significance
of it. We have never been given that opportunity in America to
express that, so, no.
Mr. Grijalva. Yes, but if I may, Mr. President and Mr.
Chairman, there is a provision in the legislation that would
express the intention of Congress that Resolution Copper can
negotiate an agreement with your tribes on acorn gathering in
the Oak Flat area, a concern, and react to one of the points in
there that that agreement would be revokable at any time. Your
reaction to that?
Mr. Bear. Mr. Chairman, I can answer that. There is a six
month period to do that, and we feel that is not acceptable.
That is a one way agreement, and six month time is not
sufficient. There is some trust responsibility here as well
from the Federal Government as trustees over Indian country. We
feel they don't want to avoid that. We want to make sure that
the Federal Government does participate in that.
Further yet, there is room for renegotiation on this. There
is no legal recourse that they can honor if this land is every
conveyed. That is some of our questions.
Mr. Grijalva. OK. The last point, and then I will have some
follow-up questions for the other witnesses, but to both the
Chairman and the President, a suggestion that has been made
that a third-party engineering review conducted to gauge the
potential impact of mining operation on Apache Leap to assess
whether that conservation easement is adequate or not, how do
you see that third-party engineering review?
Mr. Bear. Mr. Chairman, definitely there is a need for that
third-party review of that, not only of the easement, but also,
we ask for the hydrological research needed to be done. In
addition, what happens if copper prices all of a sudden plummet
as we live in the economy that we live today? What assures,
what guarantees that water will be replaced back into the
aquifer if Resolution Copper Mining does leave?
There are some hydrologic engineering reports that need to
be done. That was in my written statement, and also in my
detailed statement that is already there.
Mr. Grijalva. Thank you. Mr. Chairman, any comments?
Mr. Nosie. No. The same thing applies.
Mr. Grijalva. Thank you.
With that, Mr. Bishop?
Mr. Bishop. Mr. Chairman, clarify this for me. Is both Oak
Flat and Apache Leap considered a land of religious
significance to the Apache Nation?
Mr. Nosie. Yes, the whole top of the mound on Oak Flat.
Mr. Bishop. You mentioned some other tribes there as well.
Does the Hopi Nation, for example, have that same view of the
land?
Mr. Nosie. Yes. We have had a joint signature opposing the
bill.
Mr. Bishop. All right. Ms. Bahr, I asked earlier if anyone
knew why the administration had separated or set aside Oak
Flat, and no one has an institutional memory to know why it was
actually done. Does your organization know why? I don't really
want speculation here, I just want to know, do you know why it
was set apart?
Ms. Bahr. Congressman Mr. Bishop, all I can refer to is the
public land order which was issued, and in the public land
order they said that it was for campgrounds, and for picnicking
and other public purposes. It was part of a larger public land
order. It has been an area that is popular for camping and
picnicking for some time. It is on the way between Superior and
the Globe area, and is a nice stop over.
Mr. Bishop. Is that a long answer for saying no, we really
don't know why it was specifically set apart?
Mr. Rickus, if I could ask you just one question. In some
respects I really don't understand why you need the land
exchange in the first place. Last week while the mining law was
being debated in this room we heard expert testimony from
environmental groups saying that anybody could buy public land
for $250 an acre, and that is why they were pushing the mining
law reform bill.
They also said there are no environmental laws that are
being followed under existing law, and that is why the change
had to take place. So my question is, why do you need a land
exchange? If my calculations are correct all you need to do is
pay $7,560.50, and the mine would actually be yours.
Mr. Rickus. The campground is prohibited with entry, and
the land exchange includes the campground.
Mr. Bishop. So you mean under existing law you can't really
buy public land for $250 an acre and operate under the 1872
environmental laws?
Mr. Rickus. We could.
Mr. Bishop. OK. Actually, I think my question was in the
negative, and you answered in a positive, but I think we both
said the same thing.
Mr. Rickus. I think so, yes.
Mr. Bishop. You can't buy it for $250 an acre, right?
Mr. Rickus. No.
Mr. Bishop. OK. I yield.
Mr. Grijalva. Mr. Flake?
Mr. Flake. Thank you.
Mr. Nosie and Mr. Bear, you had mentioned that you have not
sat down with Resolution Copper to this point to speak directly
to them?
Mr. Bear. Yes. Thank you, Mr. Flake. We met with Senator
Kyl about six months ago, and it was after that that we had
calls from Resolution Copper on this issue. I don't think we
talked to them at all, and we felt that the due diligence, the
responsibility of Resolution Copper, was not honored in this
because we were not contacted in this process.
However, we don't feel we need to be contacted at this
point because we feel this is something that we are talking
with Congress about at this point. Now, we are still in the
process of analyzing this situation to see what benefits or how
it impacts us. I mean, there is a lot of things here, so many
that all these things need to be analyzed properly. Thank you,
Mr. Flake.
Mr. Flake. Mr. Nosie, you have any comment there?
Mr. Nosie. No, but we did get information out of Town of
Globe, the possibility of this mining. As anything else, you
know, get the ball rolling and then have the tribes at the very
end. But, again, you know, we felt that there is the trust
responsibility with the Federal Government and the tribe to
make those initial contacts of the possibilities of what may
occur.
Mr. Flake. As it stands, whether this exchange goes through
or not, Resolution owns a significant chunk of land. In fact,
they own more now than they would after the exchange.
Mr. Rickus, is that correct?
Mr. Rickus. That is correct, yes.
Mr. Flake. Whether this exchange goes through or not it
would seem that to find some kind of common ground and to
discuss differences that you have would be useful I would
think.
Mr. Rickus. And I totally agree. In fact, when we first
embarked on this project in 2002 we were asked by the Forestry
Service that they would be responsible for liaison with the
Apache Nations and would they mind that we just stayed in the
background there, and so we did. In early 2005, we were
endeavoring to engage with the San Carlos in particular and the
White Mountain, and we were scheduled to meet with them before
the Senate hearing last year.
A resolution was passed by the two Nations not to talk to
us, and so the meeting was canceled. We have since then been
endeavoring to make contact, and there are a series of letters,
which you have, which outline the attempts that we have made.
Our door is always open, and we have made that point several
times, that any members of the Apache Nations can come and talk
to us.
Our filing cabinets are open. They can look at what we have
got. Anything but confidential information about personnel,
salaries and so on is open for them to examine whenever they
wish. That invitation is open and remains open since.
Mr. Flake. I would simply say that it would make our job
easier here I think if the parties could sit down and discuss
some of the differences and present them to us in that way.
Ms. Bahr, you brought up NEPA. Is there anything in the
agreement at all in the legislation which would prohibit the
Forest Service from moving through with some kind of NEPA
analysis?
Ms. Bahr. Mr. Flake, there is nothing that prohibits it,
but if the land exchange goes through it is NEPA after the
fact. There is no opportunity to change the land exchange or to
determine that it is not in the public's interest which would
be required if it was an administrative exchange. They have to
determine that it is in the public's interest, and also, you
know, look at some alternatives. So it would be after the fact.
Mr. Flake. You mentioned that Arizonans had turned down six
times some types of land exchanges or efforts to do something.
Could you explain that a little further?
Ms. Bahr. Absolutely. Mr. Flake, six times the legislature
has placed on the ballot measures that included land exchange
authority for the State Land Department, and six times the
voters have rejected that. It is since 1990 because it was
after a Court decision that determined they were
unconstitutional.
Mr. Flake. How many land exchanges have occurred in Arizona
in the last couple of decades say?
Ms. Bahr. I couldn't give you the exact number. I would be
happy to look that up. There have been some Federal land
exchanges, and many of them have been controversial.
Mr. Flake. Has the Sierra Club ever supported a land
exchange to your knowledge?
Ms. Bahr. In Arizona?
Mr. Flake. Yes.
Ms. Bahr. In recent history, I would say not in recent
history.
Mr. Flake. So even with the Forest Service testifying that
the ecological trade is a good one, is a net plus for the
taxpayers, or the citizens, or whatever, in terms of ecological
value, that still doesn't persuade the Sierra Club or others to
even consider any land exchange?
Ms. Bahr. Mr. Flake, I think it is debatable as to whether
it is a net ecological value, but one of the concerns that we
have about land exchanges, which I did put in my written
testimony, is that it is hard to get a handle on what is in the
public's interest and the values associated with it, and that
often the public lands are under valued and the private lands
over valued in those exchanges, and that, you know, they set up
one part of the state up against the other part of the state
and sometimes different parts of the country and that is one of
the reasons they are controversial because the values over here
aren't necessarily the same over here, but they are still
important.
Mr. Flake. Thank you.
Mr. Grijalva. Thank you, Mr. Flake.
Ms. Christensen, any questions?
Ms. Christensen. No. Having just come in, I will defer
questions to anyone else.
Mr. Grijalva. Thank you. Let me follow-up with the other
witnesses some questions.
Mr. Rickus, you mentioned that the Forest Service said to
defer discussions with the tribes because they were going to be
the liaison to that discussion. So there were no conversations
prior to the submission of the previous version of this
legislation in the 109th Congress from your company to the
tribe?
Mr. Rickus. There were some conversations in early 2006,
and if my memory serves me right, the hearing was in April or
May. So we did have conversations earlier than that, yes, and
correspondence.
Mr. Grijalva. With the tribes?
Mr. Rickus. With the tribes, but never formally with the
tribal councils, always informally. I might inform you that our
company had a joint venture and an office on the San Carlos for
two years where we were endeavoring to reach agreement to
explore for copper deposits on the San Carlos Reservation with
them. That was our exploration group, and that occurred I think
in 2002.
Mr. Grijalva. OK. And briefly, I think Mr. Flake brought
the point up about discussions, and I concurred, that you heard
from the tribal leaders about the continued opposition because
they feel the land exchange doesn't address very important
cultural and religious significance to both tribes. How do you
respond to that question, and how do you see that question even
mitigated?
Mr. Rickus. We are obviously very sensitive to all issues,
and we from day one tried to mitigate stakeholder concerns. We
are very happy to discuss such sensitive issues at any time and
would really welcome the opportunity to sit down with both
Chairmen and Chairmen of other Apache Nations to see how we can
resolve and mitigate their concerns.
Mr. Bear. Mr. Chairman, may I comment?
Mr. Grijalva. Certainly.
Mr. Bear. Thank you. The Yavapai people, my people, are not
Apache, we are Yavapai. The linguistics are totally different,
so we have worked together in the past because of our close
association brought closer together by forest relocation and
imprisonment. So my people, the Yavapai, are not Apache,
although we have worked close together with the Apache.
Now, further, the question about the why not just work
together or supporting working together, we believe that this
is a Federal bill that is being proposed, therefore, we are
here to talk to you, that there is some trust responsibility
here on behalf of the Federal Government, so we bring this up
to you.
Now, Ft. McDowell Yavapai Nation was never contacted until
six months ago. Thank you.
Mr. Grijalva. OK. Your point being that this is a
government to government discussion?
Mr. Bear. Yes.
Mr. Grijalva. OK. Mr. Rickus, in a recent letter that we
received from the Governor, she expressed concerns with the
alternative climbing park. She stated in there quite pointedly
that Resolution Copper should cover the projected $8 million in
capital cost. Your response to that letter and to that request
from the Governor?
Mr. Rickus. When we first promoted the idea of a state
park, the State Park Board were convinced in their studies that
there would be 150,000 visitors a year to the park and that it
would be an economically viable concern. When a state parks
bill was passed to that effect, the documentary evidence
indicates that they were convinced that it was going to make
money and be a viable state park.
We have since talked to the Governor's staff about this
issue and have indicated to them that the best thing that they
can do would be to sit back and watch just how many climbers
would visit this place, and if they were encouraged to form a
state park due to a large number of visitors then they could
consider a state park and make that move in the future.
You will notice in the bill there is no date or time period
for the government of Arizona to formulate a state park.
Mr. Grijalva. Thank you. And my second time around time is
running out.
Ms. Bahr, my apologies. I do have some questions, and I
will submit those in writing. You can respond to those, and
they will be part of the record.
Ms. Bahr. Thank you. Be happy to.
Mr. Grijalva. Thank you. Mr. Bishop, any further questions?
Mr. Bishop. In the interest of time since we are going to
have a vote very soon I will do any other further questions in
writing as well.
Mr. Grijalva. Mr. Flake?
Mr. Flake. Just one quickly. Mr. Rickus, you mentioned that
you are confident that the analysis has been done to protect
the stability of Apache Leap in terms of the engineering from
the deep mining that would occur. Can you comment further on
that?
Mr. Rickus. Certainly. We will be mining away from Apache
Leap to start with, and our mining activities for the first 20
years will be some considerable distance away from Apache Leap,
and any effective caving won't get anywhere near the area for
approximately 35 years. So we will have 30 years of mining
record where we can monitor 24 hours a day what is happening to
the rocks to satisfy ourselves what is happening.
If there is any potential effect to Apache Leap, we will
not mine any ore to the west and sterilize it. That is a firm
undertaking that I have made on the television, in the press,
written it up many times, and we will stick by that firmly and
totally. I have slides and so on to demonstrate that, but I am
sure in the interest of time may not wish to go through all of
that.
Mr. Flake. Mr. Holtrop testified earlier that $500,000 was
insufficient to construct a new campground. Do you think that
$500,000 is or is that something that can be worked out in the
end?
Mr. Rickus. Well, we have not seen where the Forestry
Service are proposing the new campground would be, so I can't
really comment on that at the moment. We are happy to have a
dialogue in that respect.
Mr. Flake. You mentioned that this could ultimately produce
about 25 percent of copper, the output. Is the United States a
net importer or exporter of copper at the moment?
Mr. Rickus. It is a net importer of copper, and in the
future as a lot of the existing mines run down it will become
more dependent on foreign imports.
Mr. Flake. All right. Thank you.
Mr. Grijalva. Thank you, Mr. Flake. Before we adjourn, I
would extend, anybody have any closing comments? Mr. Flake? Mr.
Bishop? Ms. Christensen?
[No response.]
Mr. Grijalva. I did that because I do.
Mr. Bishop. Well, then, if you want me to.
Mr. Grijalva. No. Thank you very much, all the witnesses,
to clearly people that have traveled from Arizona to be here.
Very much appreciated your time and your comments. I want to
summarize some of the matters today that we have learned
regarding H.R. 3301. It is clear I think from today's hearing
that there are a number of concerns about the measure that is
before us today.
These concerns are not only important to the people of our
home State of Arizona, but also touch on larger policy
considerations that the Subcommittee should look at in terms of
land exchanges. I think in moving forward the following items
need to be addressed.
First of all, it is very clear that these lands hold very
significant cultural and religious values to Ft. McDowell
Yavapai Nation and the San Carlos Apache. There is no question
both tribes need to be better included in the discussions on
the matter in the future.
The Forest Service shared with us that the land exchange is
not of equal value in the written testimony. Perhaps more needs
to be done to equalize the land exchange even given the cash
reimbursement clause that is in there. The Forest Service
shared with us the one year time limit on the land exchange
will not give enough time for NEPA, ESA consultation and tribal
consultations.
We either need to strike that provision or work with the
Forest Service to modify it. The Forest Service shared with us
that it would be very difficult to relocate the campground if
the funding is inadequate. It appears that Resolution Copper
may need to consider dealing with that funding and offering
more funding.
Also, the Forest Service need to be consulted on a better
way to deal with any relocation process. We heard from the BLM
they don't have the capacity to manage the rock climbing park
should the state not take it. Governor Napolitano thinks
Resolution Copper should provide $8 million to cover cost of
the state park. Resolution Copper needs to consider the request
from the Governor.
Let me thank you. I think there is additional issues, the
hydrology issue that was brought up. I really believe that as
consideration of moving this matter forward careful
consideration of all the elements have to be taken into
account. I think because it does have implications beyond just
a simple land exchange that this needs to be a deliberate due
diligence process where it is transparent and every participant
affected by it knows what is going on.
So I look forward to additional information in the future,
and, like I said, there were issues that have been raised today
that need to be very desperately addressed. With that, let me
adjourn the meeting and thank all of you very much.
[Whereupon, at 11:17 a.m. the Subcommittee was adjourned.]