Problems with Bill to Trade Away Oak Flat/Apache Leap
On March 28, 2006, S. 2466—the “Southeast Arizona Land Exchange and Conservation Act of 2006”—was introduced by Senator Jon Kyl and Senator John McCain (R-AZ).
The bill directs the Forest Service to carry out a land exchange requested by Resolution Copper Company (RCC), a Delaware-based limited liability corporation that is wholly owned by Rio Tinto (UK) and BHP (Australia/Canada), two of the largest mining companies in the world.
- This bill is premature. Before we can decide on the merits of any exchange, the public must review and debate a plan of operation for an actual mine.
- Federal law makes it clear that RCC has the ability to build a mine on public land without a land exchange. 137 out of 183 major hard rock mines in the US that have opened since 1975 have operated on public land.
- The lands that the American public would receive as partial compensation for losing Oak Flat and Apache Leap are not withdrawn from any use except mining or geothermal development. If the bill were to become law, these parcels could immediately be opened to grazing and other uses that work against conservation. Of particular concern is that there are no requirements that the lands be managed to preserve any conservation characteristics.
- There is no language maintaining any public access to the Oak Flat/Apache Leap area except for a 500 acre conservation easement.
- The land exchange bill provides no acknowledgement that Oak Flat has been federally protected from mining for over 50 years by executive order. This order, PLO 1229, is still as valid today as it was in 1955.
- The bill fails to require any environmental analyses under the National Environmental Policy Act to consider the long-term implications of this massive proposed mine.
- Although the express purpose of the bill is to facilitate the development of a mine by Resolution Copper, there is no discussion of the mine itself.
- There is no statement of water resource use, acquisition, or disposal for the proposed mine at Oak Flat.
- There is no discussion of the enormous environmental and recreational losses, mountains of mining tailings, and associated pollution caused by this mine.
- There is no discussion of the land values in the bill and no appraisals are needed unless the bill becomes law.
- The bill does not address the loss of access to Oak Flats/Apache Leap by traditional Western Apache people for religious and cultural purposes, or the protection of artifacts, lands, or springs needed by Western Apache.
- Apache Leap, an important historical and cultural landmark, would not only become private land, it would end up in the middle of a major mine.
Section 4 – Land Conveyances and Exchanges
- Resolution Copper is responsible for hiring the contractor and paying the cost for the land appraisal
- This gives RCC a huge advantage in getting an appraisal more favorable for the foreign-owned company than for the American public.
Section 5 – Valuation of Land Conveyed or Exchanged
- Only the Secretary of Agriculture determines whether the appraisal is fair.
- The bill forbids any reappraisal or updating of the appraisal.
- RCC has every incentive to lowball the appraisal.
- There is little chance for public input into the appraisal. The Secretary of Agriculture is required to provide a “summary” of the appraisals but not detailed information.
- Even if the public objects to the appraisal, the exchange is mandated by Congress and could not be undone.
Section 6 – Conservation Easement
- Despite the conservation easement, RCC is allowed to mine under Apache Leap if they can demonstrate—it is unclear to whom—that the method used will not impact the surface.
- The conservation easement cannot impose any additional restrictions on RCC.
- This provision ensures that only state laws that exist at the moment the bill becomes law would apply to RCC.
- According to the bill, RCC is not liable for any damage done to Apache Leap by mining activities.
- The Forest Service is not allowed to be a party to the conservation easement and is not allowed to enforce or monitor the conservation easement.
Section 7 – Incorporation, Management, and Status of Acquired Land
- Land traded by RCC to the American public for conservation purposes is not protected from grazing and there are no provisions that the land be managed for conservation purposes.
Section 8 – Public Uses of Federal Land
- Only the Secretary of Agriculture decides whether a replacement campground to Oak Flat is adequate.
- If the bill passes, there is a maximum of two years for the public to have access to the campground even though the company would not be ready to mine for at least another decade.